Ferguson a Week Later

After a pretty good Thursday night, things got tense on Friday. Cops were guarding some stores, but they were attacked by a few of the protesters and several officers were injured. The police then retreated to a perimeter, which resulted in a situation eerily reminiscent of the 1992 L.A. riots, when the police withdrew from whole areas of the city, leaving residents to fend for themselves.

A bunch of teenagers began looting some of the stores, and Ferguson residents moved to block the looters and protect the stores, essentially providing their own police protection. They weren’t entirely successful and some of the stores were heavily looted. At one point a fire broke out in one store, and residents entered it and used bottles of soda to extinguish it, thus also taking on the duties of the fire department.

(I was watching some live streaming video from a guy with a cell phone, and I got to see one of the young black men guarding a storefront get a call from his mother and then turn the phone over to an Al Jazeera correspondent who had been interviewing him. The correspondent then assured the women that her son was behaving “very responsibly.”  The 21st century is a very strange place.)

I’ve since heard that the police retreat was arranged between community leaders and the police commander, but it was weird having cops posted close enough to antagonize people but not doing anything to, you know, fight crime.

Friday, Missouri Governor Jay Nixon declared a state of emergency in Ferguson, and imposed a curfew from midnight to 5 am. I really don’t understand this police obsession with people being out late at night. First of all, it’s Saturday night, and they want everyone to be home by midnight?

And are there no night jobs in Ferguson? I know there’s a 24-hour Walmart, but it looks like that’s in St. Louis. Still, there must be gas stations or convenience stores. And of course bars, although police probably consider them to be part of the problem.

Anyway, I followed events on Twitter last night, and the curfew went about as well as you’d expect. Tell the people of Ferguson they have to be off the streets at midnight, and everybody interprets it the same way: There will be a clash between protesters and cops at midnight. It was like the governor had announced the schedule for a sporting event.

Team Black showed up early in the evening, as usual. Community leaders such as Antonio French urged residents to go home before the curfew, as did the New Black Panthers, who also formed a buffer zone at times between protesters and the cops to try to keep things peaceful.

By midnight there were only a few hundred people in the streets, and a large portion of the press was packed into a sort of First Amendment pit at one end of the protest area. A number of reporters had defied the curfew by moving out into the neighborhood, and the folks at VICE News were live-streaming video from their position in the crowd, thus blatantly documenting their disregard for the curfew.

Team Blue took the field shortly thereafter, as rather a lot of cops with riot gear and armored vehicles gathered in front of the journalist holding area. One of the vehicles had a sniper-looking guy on top, although SWAT snipers also function as observers, so this wasn’t necessarily as threatening as it appeared. They began clearing the street with smoke rounds and then, in violation of an earlier promise made by Capt. Johnson, they fired tear gas as well.

Afterwards, the police explained that as they closed in, someone in the crowd began shooting — seriously wounding another person in the crowd — and the police used tear gas in response. They were unable to capture the shooter.

The night was pretty much quiet after that. The curfew will be in effect again tonight, so I expect everyone to set it off around midnight again.

Ferguson Turns On a Dime

I tried, I really did. When I first heard about the shooting of Michael Brown by a Ferguson, Missouri police officer, I tried to give them the benefit of the doubt.

A lot of police shootings are perfectly legitimate, stopping bad people from doing bad things. Beyond that, there are cases where the victim didn’t deserve to get shot, but you can understand why it happened — people who were holding toy guns, cops who mistook a harmless object for a gun, accidental discharges, confusing situations, shots that miss the target and hit someone else. These may involve various degrees of recklessness or risk on the part of the shooter, but they aren’t straight-up murders.

The most prominent witness, Dorian Johnson, describes something that sounds an awful lot like a murder:

Brown made it past the third car. Then, “blam!” the officer took his second shot, striking Brown in the back. At that point, Johnson says Brown stopped, turned with his hands up and said “I don’t have a gun, stop shooting!”

By that point, Johnson says the officer and Brown were face-to-face. The officer then fired several more shots. Johnson described watching Brown go from standing with his hands up to crumbling to the ground and curling into a fetal position.

That sounds pretty bad, but there’s no way for me to tell if Johnson is mistaken or even lying. For all I know, he never even met Brown; it wouldn’t be the first time a supposed witness had completely fabricated a story to get attention. It was certainly possible that this was just a terrible mistake. In theory.

Then we all got to see how police work is done in St. Louis County, and in Ferguson in particular. For several nights, peaceful protesters have been met with heavily armed riot cops. On Wednesday, police announced that protests would be allowed during the day, but that a curfew would be enforced at night.

Why? Why should people not be able to go outside late at night in their own neighborhood? As Lt. Max Geron of the Dallas police says,

“Most protesters will meet, protest, and go home when they feel they’ve made their point. If they aren’t breaking any laws, they can be left to express themselves.” Establishing a dispersal time then gives protesters something to rebel against. “When you establish arbitrary rules that have no basis in law, the police then feel they have to enforce those rules or they look illegitimate. They can set these rules with the best of intentions, but they just end up creating more problems for themselves.”

The police in Ferguson did set a curfew time, and to deal with the problems they created, police sent about a platoon of SWAT (-ish) officers, complete with armored vehicles and a sniper on the roof, as seen in this shot by The Huffington Post‘s Ryan Reilly:

Heavily-armed SWAT-like cops doing crowd control in Ferguson, MO. Photo by Ryan Reilly 2014-08-13
Heavily Armed Crowd Control

As night fell, the police tried to move the protesters off the streets. They started with a sort of Jedi mind trick, thanking the protesters for leaving before they actually left, and then telling the protesters that they should join their friends who had left. It was pretty funny in a sort of creepy not-getting-the-joke kind of way. (“You should probably leave now. All the the really cool people have left. You don’t want to be a loser by staying…” wasn’t actually what they said, but that was the undertone.)

Then came the teargas, followed by a handful of Molotov cocktails from the protesters, followed by more teargas. For an example of what that’s like, check out this video taken a little later in the night by Polarbear Productions of the police trying to drive off a crowd standing in the street. It starts with the loud chirp of an LRAD crowd control weapon in warning mode — followed by a barrage of smoke or teargas and rubber bullets.

This is no way to treat people who are just hanging out in their own neighborhood. “Not disbursing,” regardless of how they charge it, isn’t what you’d call a real crime.

The police in Ferguson also expended a lot of effort trying to stop people from recording them or reporting on what they were doing. Ryan Reilly was detained with Wesley Lowery from the Washington Post while they were hanging out at a McDonald’s restaurant tweeting and recharging their phones. (For God’s sake, somebody get these people external battery packs!) The police told them they were being arrested on trespassing charges, but after Matt Pearce from the Los Angeles Times called the police chief for a statement about it, they were kicked loose without any paperwork.

I think it was probably arresting the reporters (and also St. Louis Alderman Antonio French who was tweeting from the scene) that drew a lot of mainstream media attention. More politicians have weighed in on the matter, and the Missouri State Police have moved in to replace the St. Louis County police.

Stunningly, that seems to have changed everything. The state troopers are led by Capt. Ron Johnson who (a) is black and (b) has really good leadership skills. He seems to have taken a page out of Salt Lake City Police Chief Chris Burbank’s protest playbook, because he and his men showed up in regular uniforms rather than riot gear, they didn’t bring rifles or armored vehicles or tear gas, and they just began mingling with the crowd, talking to them and marching down the street with them. (From some of the reports, it sounds like the police are staged nearby and are keeping an eye on the area, because there were a few minor incidents and the cop cars showed up immediately to deal with the problem.) After a while, a lot of the cops just left the area, and the residents of Ferguson had their streets to themselves. Just a bunch of people hanging out at an outdoor event in the neighborhood.

Maybe I’m just fooling myself, but based on what I’m reading on Twitter, it felt last night like the situation had settled down. The reporters gave up hunting for conflict and shuffled off to their hotels. Obviously, things could still have gone wrong — there are rumblings on Twitter all the timee — and it could still slip out of control with another fatal gunshot, but it no longer feels like that fatal gunshot is imminent.

So the immediate threat of violence has abated, and the long-term solution to American race relations is still a work in progress. That just leaves the original problem that started it all: The circumstances of Michael Brown’s death. To give you some idea of where I’m going with this, up until last night — before Capt. Ron Johnson filled the world with brotherly love — my original title for this post was “Fuck Tha Ferguson Police In Particular.”

Given how badly the police have handled everything else in Ferguson — and I realize it was the St. Louis County cops who deployed their SWAT team, not the Ferguson cops, but it’s all happening on Ferguson’s patch and to the people the Ferguson cops are supposed to protect and serve — I don’t see any reason to think they give a damn about the people of Ferguson. At least not the black ones. This seems like exactly the kind of environment that would tolerate the kind of cop that would someday lose his temper and execute a young black man. And then try to cover up the crime.

At this point, I’m pretty sure the Ferguson police are capable of anything. We know they attack peaceful protesters, I think they’re harboring a murderous cop, and frankly, I’d like to know where all of them were when Biggie and Tupac got shot.

This tweet actually sums it up pretty well:

I had to go to sleep before I could finish this post, and now I see that the night was fairly peaceful, and that the Ferguson police department has made good on their promise to reveal the shooter’s name, which is Darren Wilson.

They’ve also picked this moment to reveal that they believe Michael Brown was a suspect in a what is either a strong-armed robbery or shoplifting at a nearby store. Obviously, as everyone is tiresomely point out, that’s not a reason to kill him. However, if it’s true, it makes it more plausible that he responded violently when confronted by Wilson. Ferguson police also say Dorian Johnson was involved in the same robbery/shoplifting incident, which would cast doubt on his credibility as a witness.

That said, the Ferguson police have not, as far as I know, said anything to contradict Dorian Johnson’s account of the shooting, which is that Wilson shot Brown in the back from some distance and then shot him again while he was surrendering. Nothing Brown did beforehand could possibly justify that.

Which makes it kind of weird that the police would release the report about Brown at this time. It’s almost like they were pissed off at having to reveal the shooter’s name, so they decided to smear Brown’s memory in retaliation, even though it has very little to do with officer Wilson’s behavior.

You know, after Capt. Johnson’s performance at calming things down last night, I was wondering how the Ferguson police would attempt to snatch defeat from the jaws of victory. Sigh. Hopefully the peace will hold for another night.

One other note: Police initially refused to name the officer who shot Brown, claiming there were security concerns, and earlier I said that sounded reasonable. But now that I think about it, I’m not convinced. We’ve known that NYPD officer Daniel Pantaleo apparently killed Erik Garner in New York for weeks, and he’s still okay. Out of all the thousands of officers who have killed people, how many times have any of them been the victim of retaliatory violence? Heck, FBI sniper Lon Horiuchi shot and killed Victoria Weaver at Ruby Ridge, an event which angered an awful lot of people, including a large number of well-armed right-wing nut jobs, and he’s still fine 22 years later.


The news out of Ferguson, Missouri has had me riveted to Twitter. St. Louis Alderman Antonio French has been tweeting and posting Vine videos from Ferguson for days, and Wesley Lowery from the Washington Post has been tweeting regularly and he’s got an article up. If you haven’t been following the story, Dara Lind at Vox has a pretty good summary.

Tear Gas in the streets of Ferguson, MO. Photo by @WesleyLowery 2014-08-11
Tear Gas In Ferguson

When this story first broke, I found myself conflicted over how to react to it. I was angry that a police officer shot Michael Brown for no good reason…if that’s really what happened. There’s been no definitive information either way, but subsequent events have not exactly painted a rosy picture of the Ferguson Police Department.

About a year and a half ago, I blogged about Colin Flaherty’s racist slant on news reports of black violence:

You can see what Flaherty’s doing here. He has obsessively curated a collection of reports of violent incidents at establishments frequented by black people, probably because they are in black neighborhoods. These are real incidents — sometimes an idiot cutting in line at a sale, and sometimes a dozen or so kids who might be gang members — but Flaherty tries to portray these incidents as mob action by attributing the violence to every black person in the building. Thus a fight between a handful of teenagers in a mall food court becomes, in his mind, a riot by every black person in the mall.

I’ve seen a bit of the same thing on Twitter and in some news reports regarding the events in Ferguson. The first night, right after the shooting, everything actually went pretty smoothly in Ferguson and the protests ended somewhat peacefully. However, there were several reports of protesters chanting “Kill the police!” But from what I could find, it sounds like at most a handful of protesters might have yelled that, and some people just attributed it to all the protesters.

On Sunday night some protesters were looting stores, at least one of which was set on fire.

Monday night’s protests were more peaceful, but the police responded in force, apparently using Warrior Cop as a guidebook for dealing with protesting citizens. They eventually cleared the streets with tear gas and some kind of non-lethal projectiles. They also ordered the press in particular to leave the area — even calling press offices and telling them to call in their reporters — which doesn’t sound legal.

It’s not generally a good sign when government forces don’t want the press around, although it’s hard to believe they thought they could keep anything shady out of the news in an age when so many people have cell phones. For example, Ray Downs at the Riverfront Times has protester-recorded video of cops reportedly launching tear gas at people standing in their own yard. (Note: There is rather a lot of swearing.)

That’s not to say the professional press hasn’t been getting some good pictures. In part, that’s because the protesters are making an effort to set them up. I’m particularly impressed by this emerging protest tactic captured by Ben Kesling of the Wall Street Journal.

Photo of a protestor with his hand in the air by Ben Kesling of the Wall Street Journal.
Hands Up, Don't Shoot

Here’s another one by journalism student Markia Holt:

Photo of protestors with hands in the air by Markia Holt.
Hands Up, Don't Shoot

I think that’s just brilliant. By holding up their hands and yelling “Don’t Shoot,” they are submitting to authority, and yet because Michael Brown was supposedly doing the same thing when he was shot, they are rather vividly calling to mind the police violence that started it all. They’ve managed to add an undertone of “fuck you” to a surrender ritual. It’s almost Gandhi-esque.

One more example, this time from Whitney Curtis of the New York Times. I’ve been seeing this everywhere:

Riot police confront an unarmed young black man with his hands in the air in Ferguson, MO. Photo by Whitney Curtis for the New York Times. 2014-08-12
Riot Police Confront a Protestor

That photo image is a little fuzzy, but in tribute to the late Joel Rosenberg, firearms instructor and a one-time co-blogger here, I think I have to make one particular comment: Get your finger off the trigger, dumbass!

Detail of photo in which riot police confront an unarmed young black man with his hands in the air in Ferguson, MO. Photo by Whitney Curtis for the New York Times. 2014-08-12
Rule 2 Violation

It’s still not clear what the hell happened Saturday night between Michael Brown and the officer who killed him. As I’m writing this, St. Louis County Police have not released many details from their investigation. As is usually the case, they haven’t even released the name of the officer who shot Brown. Given the unrest in the streets, I can understand their concern for the officer’s safety, especially if he has a family. On the other hand, you know what we call it when anonymous government functionaries kill citizens without consequence? A death squad. Let’s hope the St. Louis County police eventually see their way toward transparency.

One thing the police have revealed about the shooting is their contention that Brown attacked the officer in his car and tried to take his gun. As I mentioned before, this kind of close quarters struggle over a weapon is just about the only situation that could justify shooting an unarmed man.

In an interview with Trymaine Lee at MSNBC, a friend of Brown’s named Dorian Johnson tells a very different story:

Now, in line with the officer’s driver’s side door, they could see the officer’s face. They heard him say something to the effect of, “what’d you say?” At the same time, Johnson says the officer attempted to thrust his door open but the door slammed into Brown and bounced closed. Johnson says the officer, with his left hand, grabbed Brown by the neck.“I could see the muscles in his forearm,” Johnson said. “Mike was trying to get away from being choked.”

“They’re not wrestling so much as his arm went from his throat to now clenched on his shirt,” Johnson explained of the scene between Brown and the officer. “It’s like tug of war. He’s trying to pull him in. He’s pulling away, that’s when I heard, ‘I’m gonna shoot you.’”

“I seen the barrel of the gun pointed at my friend,” he said. “He had it pointed at him and said ‘I’ll shoot,’ one more time.”

A second later Johnson said he heard the first shot go off.

“I seen the fire come out of the barrell,” he said. “I could see so vividly what was going on because I was so close.”

Johnson says he was within arm’s reach of both Brown and the officer. He looked over at Brown and saw blood pooling through his shirt on the right side of the body.

“The whole time [the officer] was holding my friend until the gun went off,” Johnson noted.

Brown and Johnson took off running together. There were three cars lined up along the side of the street. Johnson says he ducked behind the first car, whose two passengers were screaming. Crouching down a bit, he watched Brown run past.

“Keep running, bro!,” he said Brown yelled. Then Brown yelled it a second time. Those would be the last words Johnson’s friend, “Big Mike,” would ever say to him.

Brown made it past the third car. Then, “blam!” the officer took his second shot, striking Brown in the back. At that point, Johnson says Brown stopped, turned with his hands up and said “I don’t have a gun, stop shooting!”

By that point, Johnson says the officer and Brown were face-to-face. The officer then fired several more shots. Johnson described watching Brown go from standing with his hands up to crumbling to the ground and curling into a fetal position.

It sounds plausible, and the struggle at the car comports with police claims. I think it’s possible that the officer and Brown got into some kind of struggle — perhaps when the officer pulled up and grabbed him — and perhaps the officer got angry and shot… Or perhaps, from his standing position outside the car, Brown started to get the better of the officer, who felt the need to pull his gun and defend himself… I can almost make this work as a terrible misunderstanding…

But not if the rest of Johnson’s story is true. Not if the officer shot a fleeing man in the back and then gunned him down as he surrendered. That would be murder.

Of course, Dorian Johnson could be lying. I have no way of knowing. I’ve heard that other witness accounts are similar, but I don’t know much about them.

The police are supposed to be investigating, but they’ve been behaving a little strangely. For one thing, as of earlier today they still haven’t interviewed Johnson, according to his lawyer. I don’t know how the police normally handle these kinds of investigations, but I would think a close eyewitness is someone they’d want to talk to. Even if they think Johnson is a lying little weasel who’s covering for his dead friend, wouldn’t investigators at least want to get his statement to lock it down?

Then there’s the autopsy, about which something was just released:

It shows he died as the result of gunshot wounds. Police won’t specify how many times the teen was shot.

The autopsy was done by the St. Louis County Medical Examiner’s office on Sunday, the day after Brown was shot.

Police won’t release any further details of the autopsy, pending the results of toxicology tests. Those should be available in the next four weeks.

I’m not sure why the police would be delaying the release of this information. They’re going to have to release the body to the family pretty soon, at which point the family will be able to get their own answers.

One of the things I’ve been trying to understand is why this killing has produced such an explosive reaction. There wasn’t this much of a reaction when NYPD Officer Daniel Pantaleo apparently strangled Eric Garner. And there wasn’t this much protesting when Beavercreek, Ohio police officers Sean Williams and David Darkow shot John Crawford III after he failed to put down a realistic-looking air rifle. But then I guess I’m answering my own question. There has been a rash of killings of black men by cops, including Ezell Ford, killed in LA on Monday. Not all necessarily the result of evil intent, but killings nonetheless.

Meanwhile, night has fallen on Ferguson, and Twitter is full of rumors of a shooting.

Something happening in Ferguson, OH the night of 2014-08-12. Photo by Antonio French.
Ferguson Tonight

Another Cop Shoots Another Black Kid

I hate this kind of story.

Reportedly an as yet unnamed police officer in the St. Louis suburb of Ferguson, Missouri has shot and killed an unarmed 18-year-old black kid named Michael Brown. Area residents gathered in the street, there was shouting, police assembled to try to keep order, there was a bit of a riot, and eventually things quieted down without too much damage.

The most important word in that last sentence was “reportedly.”

The early reports on breaking stories like this are often inaccurate. Some eyewitnesses have said Brown was surrendering, others say he was running away. At least one eyewitness has said the officer walked up to Brown while he was lying on the street and shot him in the back a few more times.

Who do we believe? The police? The eyewitnesses? Given what we know about eyewitness testimony, and the fact that their stories conflict, which eyewitness should we believe? We don’t even know if they really were eyewitnesses. That account of a cold-blooded street execution seems like something someone would make up to cause trouble. In a crowded urban area with thousands of people, there’s got to be at least one person crazy enough to want to insert himself into the story by running up to the first reporter on the scene and making up an exciting story. Or they could be completely honest witnesses who saw a cop commit a horrifying crime.

But unless the officer deliberately killed Brown, it’s probably not a murder, in which case it might be some lesser crime having to do with recklessness or depravity or some manner of culpable error. Or it might fall into the category of what I’ve sometimes heard called an “excusable” shooting, meaning that the victim didn’t deserve to die, but that the officer isn’t to blame. That is, he made an honest mistake.

(Shooting someone who was wielding a realistic-looking toy gun is a classic example of an excusable shooting. The resulting death is wrong and unnecessary, but you can understand why the officer believed he was doing the right thing at the time.)

On the other hand, if Michael Brown really was unarmed, which seems likely (but not certain) since the police haven’t reported finding a weapon, then there’s almost no way this can turn out to be a justified shooting. If this were a justified shooting, that would mean we thought the officer did the right thing, and if another officer found himself in the same situation, we would want him to do the same thing. If this were a justified shooting, that would mean the officer was in fear for his life and shot in self defense. Which seems unlikely, given that Michael Brown had no weapon.


The only way I can think of that the officer would be justified in shooting an unarmed person is if that unarmed person attacked the officer at close quarters and tried to take his gun. Then the officer might have no choice but to shoot to defend himself.

Which brings me to this:

An unarmed teenager killed Saturday by Ferguson police, spawning continuing community unrest, had struggled for an officer’s gun in a patrol car first, officials announced this morning.

So the story being told by the police is exactly the one that would justify the shooting. It would exonerate the officer, justify his actions, and make it more difficult for Brown’s family to sue the city. Which is convenient for the cops.

But that doesn’t make it untrue. Maybe the cop who shot Brown is telling a self-defense story not because it’s the only one that clears him but because self-defense is the only reason he would shoot an unarmed kid.

I hate this kind of story.

I should point out that calling a shooting “justified” or “excusable” is not legal terminology, at least not the way I’m using it. I don’t remember where I first heard the terms used that way to classify non-murderous shootings, but it seems to me like a helpful way to think about the right and wrong of lethal force.

I should also point out that by the time you read this, and maybe even before I publish this, some important part of the story could change, and some or all of the possibilities I discussed above could be ruled out by events. That won’t stop people with agendas from picking sides before all the facts are known.

I really hate this kind of story.

Update: Just so I don’t come across as a complete narcissist, I am angry that a cop gunned down an unarmed black kid for no good reason…if that’s what happened. Fuck. I think I should be angry. In fact, I’m pretty sure I should be angry. Heck, I practically want to be angry. But I don’t know if I should be angry. Crap. I hate this kind of story.

Is The Legal Field Ready for CSO?

A couple of days ago, Scott Greenfield was writing about some of the complexities of federal sentencing, when a commenter named Jake proposed a crazy solution:

Was there ever a task in the courtroom more ripe for automation?

Well, yes, there’s tons of administrative crap that can be, or has been, automated. However, Jake had a particular problem in mind that he’d like to solve:

As a representative of the ignorant masses, I find comfort in the notion that everyone would be given sentences using the same criteria, and never again subjected to the whimsy of some of the judges I’ve read about on this blog.

Scott is in agreement with him as to the goal:

This “problem,” that judges impose disparate sentences on seemingly like-situated defendants, has long been a vexing problem. It was one of the foundational arguments for the Sentencing Guidelines, to create greater consistency in sentencing across the country, so that a judge sentencing a defendant in a drug conspiracy in Wichita would impose a sentence reasonably the same as one in Brooklyn.  Consistency was the goal, and from a substantial distance, it appeared to achieve that goal.

The problem was that it failed miserably to accommodate the myriad personal details that comprise the heart of sentencing. Indeed, it precluded judges from doing so, forcing lawyers into striving mightily to come up with arguments about why their defendant’s circumstances fell outside the “heartland” of the guidelines.  Most of the time, these arguments failed. One size fits all sentencing was imposed, and those who feared mercy slept well at night.

Interestingly, a commenter named David hit on the obvious solution almost immediately, which is to use a randomly assembled team of sentencing judges and take the average of their sentences as the final sentencing result (with some complications if the sentences don’t converge sufficiently). Scott dismisses this idea as off-topic, but in fact it directly addresses the exact problem Scott described. Because the judges wouldn’t be working from a strict guideline, they are free as judges to “accommodate the myriad personal details that comprise the heart of sentencing.” Yet because they are averaging the sentences across a group of judges, there will be less likelihood of imposing “disparate sentences on seemingly like-situated defendants.”

That conclusion falls out of some basic math and statistics. If you have a sample population that exhibits a certain variance between samples — such as judges passing sentences — and you collect the samples into groups, then the variance between the group averages will be smaller than the variance between the individual samples. This is why diversifying a stock portfolio reduces risk, and it’s why people pool their risk by purchasing insurance for disasters they can’t afford. Since each judge’s sentence is averaged in with the others, no single judge indulging his whim can change the sentence too much.

This is, of course, a highly impractical idea that would be difficult to organize and expensive to operate. (Although lots of sporting events use it, and shouldn’t criminal sentencing be at least as orderly as the judging in Olympic ice dancing?) However, it’s still a lot more realistic than the idea of automated sentencing.

Actually, Jake may have been imagining something fairly modest. Perhaps he only meant to automate the calculations. I’m pretty sure that lawyers who have to work with the guidelines already have worksheets and spreadsheets for that. It wouldn’t be much of a step to write some sort of program that asks questions or presents forms to fill out and then calculates the sentencing range, kind of like TurboTax for federal sentencing.

I’m surprised there isn’t an iPad app for that already. I tried looking for one, but all I could find were copies of the guidelines that you could install. There was nothing to help with the calculations. There is the U.S. Federal Sentencing Guidelines calculator website written by Josh Goldfoot, which seems to walk you through a sentencing calculation, but that was just a personal project that appears to no longer be maintained. In any case, it’s certainly a doable project.

But it may not be a worthwhile project. After all, when it comes to automating things on a computer, the calculations are the easy part. The hard part is the work done by the lawyers and judges: Interpreting the guidelines and determining whether or not they apply to a particular case. It’s probably not possible with current technology to teach a computer to think like a lawyer.

But maybe we can cheat. That’s what Google does.

Search engines can do some amazing things these days, but they don’t actually understand what’s written on a web page. The science of natural language understanding hasn’t yet come far enough for computer programs to understand a natural human language the way humans do. What Google does is generate complex statistical information about the words on web pages, and then it observes human behavior in creating and clicking on links to determine which pages have information that is relevant to user queries. Google doesn’t understand (at least not the way a human would) what’s written on a web page, or what a user wants from a query, but that doesn’t stop it from “learning” how to help people find information.

The legal world has already begun to use this kind of machine learning technology during e-discovery to make document review more efficient. If a party to litigation responds to a discovery request with 100,000 documents, the other side will have to have a team of lawyers review the documents to decide which ones are actually relevant to the matter at hand. If those documents are in electronic form, however, it’s possible to use predictive coding to speed up the review process.

The way it works is that the document review team starts by reviewing a representative sample of the document set, scoring each document based on what relevance it might have to the case. The predictive coding software generates statistical summaries of the documents, and it uses those statistical summaries to analyze the choices made by the human document reviewers. This is similar in concept to the way Google looks at how people use links on the web. The software then tries to predict how the human reviewers would score all of the remaining documents. This guess can then be used to prioritize the review of the remaining documents, to try to find the most useful material as soon as possible.

In theory, we should be able to build a Sentence-O-Matic 1000TM using the same principles. We would start with a training set of documents from, say, 100,000 criminal cases. We’d input all of it into a machine learning system. Some of the data would be structured values, such as the identity of the laws under which the defendant is being charged, his prior convictions, and demographics data. Much of the data, however, would simply be the text of the documents themselves, along with tags to identify what they are — motions, briefings, arguments, testimony, transcripts, and so on. The data would also have to include the resulting sentence.

We’d then let the system crunch on the data for a while, to try to find relationship rules between the structured and unstructured data about the cases and the resulting sentences. It could, for example, discover that certain words in certain documents in certain types of cases are correlated with higher or lower sentences. Once we have a complete set of rules, we can run the algorithm the other way around: We feed documents from another test set of, say, 10,000 cases, and let it apply the rules to predict the sentences, and we score it on the accuracy of the result. We repeat the learn-and-test cycle over and over, tweaking the algorithms each time, until it’s accurate enough for our purposes. The resulting system will respond like a hypothetical average judge.

At least that’s the theory.

And it’s a theory that sometimes works. Predictive coding for e-discovery is a real thing, and there’s a reason why so many of the world’s browsers use Google as their home page. But from what I know about predictive analytics, it’s not ready for a task like this. It’s great for supporting a human task — finding websites to read or prioritizing documents for review — but I can’t see it replacing humans at critical tasks. There’s a reason we don’t use analytics engines to replace doctors or engineers, and I can’t see them replacing lawyers or judges either.

(Remember back when a lot of companies tried using automated document searches in place of customer service representatives for emailed support questions? That didn’t work out very well, did it?)

Of course, if we actually did try something like this, you know what would happen, right? All of those annoying SEO “experts” would start offering their Criminal Sentencing Optimization (CSO) services to lawyers, to help them prepare documents that are stuffed full of whatever it takes to game the Sentence-O-Matic. “We’ll show you how to fill your briefs with proven sentence-reducing keywords!”

I don’t think anyone wants to live in that world.

What Could Be Worse Than Raising the Minimum Wage?

I see that our mayor has proposed a city ordinance to raise Chicago’s minimum wage to $13 an hour. The current minimum wage in Illinois is $8.25/hour, a buck over the federal minimum, so that amounts to a 58% hike. This follows Seattle’s decision to increase their minimum wage to $15 a few months ago, and it’s in step with attempts to raise both the Illinois and federal minimum wages.

There are a number of arguments against raising the minimum wage — it’s poorly targeted, it causes economic distortions, it’s unfair — but the one that attracts the most attention is the argument that increasing the minimum wage will cause a drop in employment among the kinds of workers who earn minimum wage.

Exactly how the job market responds to increases in the minimum wage is a somewhat murky issue, and research on the effects of raising the minimum wage have been inconclusive. However, the idea that increasing the minimum wage will hurt employment is not based on some esoteric theoretical proposition that has caught economists’ fancy. It’s based on a very broad theory that has proven itself often: When the cost of something goes up, people will buy less of it.

It’s that simple. The whole world of commerce is built around that theory, and we see it working every day. For example, it’s a lot easier to eat at a restaurant than to make dinner at home, and restaurant food likely offers better taste and more variety, and yet people don’t eat dinner out every day, because restaurants are more costly than eating at home. Alternatively, if you’re at the grocery store and you notice a great sale on your favorite food, you’ll probably buy more, which means that before it went on sale, the higher price was making you buy less. That quantity demanded declines as prices increase is pretty much the way of the world.

Therefore, I think we can safely say that raising the minimum wage (1) increases the income of low-skilled workers who were earning less than the minimum wage, (2) raises the cost of hiring low-skilled workers, and therefore (3) makes hiring low-skilled workers less attractive for employers. The benefit of increased pay comes in exchange for increased labor costs for employers.

Still, raising the minimum wage does provide some benefit to low-skilled employees, and it may even provide a net benefit, since the people who lose their jobs will be losing crappy minimum wage jobs. There are worse ways to help low-skilled workers.

As proof of that, Sarah Jaffe at In These Times is touting an even worse idea: The Bad Boss Tax.

As conceived, the “bad business fee” legislation would require companies to disclose how many of their employees are receiving public assistance from the state or federal government. Companies would then pay a fine based on the de facto subsidies they receive by externalizing labor costs onto taxpayers.

Some of the proposals for implementing this “bad business fee” would be a compliance nightmare:

The fee might be implemented on a per-employee basis—in Cook County, Illinois, NPA and JWJ partners are considering a $5,000 charge for each employee receiving public assistance—or as a lump sum based on how much an entire sector costs taxpayers, which would then be split up among the employers in that sector. The organizers also want to hold big businesses accountable for their supply chains and franchisees. For instance, if McDonald’s Corporation got slapped with a fee for each restaurant that underpays its workers, it could be pushed to include higher wages in its franchise contracts. Similarly, if Walmart had to pay not just for its retail employees, but the workers in its warehouses, it might have an incentive to require better wages from subcontractors.

Well, whatever else it does, this will certainly increase employment of accountants and lawyers. I mean, can you imagine the nightmare of a business having to obtain these reports from dozens or hundreds of suppliers and thousands of franchisees?

And can anyone seriously believe that charging businesses $5000 for hiring people who are on public assistance will not discourage businesses from hiring people who are on public assistance? How will low-skilled laborers acquire the skills they need to get off public assistance if we make it harder for businesses to give them jobs?

In fact, the low-skilled laborers are being cut out of the process almost completely. As with raising the minimum wage, the bad boss tax would also take money away from businesses that hire low-skilled workers, making them less attractive as employees, but at least increasing the minimum wage funnels the money from employers to low-skilled employees. The “bad business fee,” on the other hand, would take money from employers and give it to the government.

To be sure, the money would only be used to fund the finest of progressive social programs:

At a municipal level, Murray explains, the money could go to an existing development department that could manage and distribute the money. On a statewide level, it could be distributed through the revenue department as a tax break for workers. There’s also the possibility of distributing some of the funds to nonprofits involved with direct worker support, childcare or food assistance.

McGrath says the money could go to bolster the public services that workers rely on, or to hire more people to enforce wage and hour laws. “Minnesota succeeded in raising its minimum wageto $9.50 an hour by 2016 and indexing it to inflation,” he says. “But we have a paltry number of wage and hour investigators in our state. How will we know that people are actually being paid the wage that was just won?”

Elsewhere, other community and labor partners are busy brainstorming about what would make sense in their states and cities. In Chicago, housing subsidies are a possibility; in New York, the money could be used to offset the rising costs of public transportation; in San Francisco, a combination of housing and transportation issues is under consideration, as gentrification has rapidly made it harder for low-wage workers to live near their jobs. In New Mexico, using a bad business fee to support early childhood education is being discussed.

This is a familiar pattern for spending on social welfare programs. It seems that wherever you find a recognizable group of disadvantaged people, you will find a buzzing cloud of middle class people who make a living off of providing them with government-paid services. It would be simplest, and arguably most efficient, to just give poor people the money they need to improve their lives, but instead the money is used to hire social workers, clerks, lawyers, psychologists, and childcare specialists or it’s used to fund programs in education, public transit, or housing.

In this case, to be completely cynical about it, the logic at work seems to be, “Those greedy companies aren’t paying workers enough, so we should tax the companies and use the money to hire people like me to provide services to their workers.”

The public choice implications aren’t pretty either. Once there are thousands of people earning a living by providing services paid for by the “bad boss tax” on workers receiving public assistance, won’t that create a constituency that never wants workers to get off public assistance?

In that way, the fee is win-win. If companies seek to avoid it, they end up doing something just as good for their employees, or even better. Martin says, “For me in particular, the better part is my boss may be thinking, ‘Well, I should just pay my employees better. I should just pay a living wage. I should just give Cliff some benefits.’ ”

Or “Cliff shows promise and I was thinking of promoting him, but now I can’t afford the $5000 I’d have to pay to keep him around. Better to terminate him and give the hours to Mary and Bill.”

Or “I should just terminate Cliff and Mary and Bill and replace all three of them with one employee trained to operate the machine that does their job.”

I think proponents of this idea are sacrificing the welfare of the people they claim to be helping so that they can revel in the joy of punishing businesses they don’t like.

What Democracy’s All About?

NYPD Police Commissioner Bill Bratton has been taking a lot of crap, deservedly so, for his comments after Eric Garner died while being arrested for selling untaxed cigarettes on the street. In a news conference, with mayor Bill de Blasio standing at his side, Bratton came out full-authoritarian:

According to Mayor de Blasio and Police Commissioner Bratton, the NYPD will continue to strictly enforce laws against loosie peddlers and subway dancers. “I can understand why any New Yorker may say, that’s not such a big offense,” de Blasio said. “But a violation of the law is a violation of the law.”

Commissioner Bratton added, “We need the public’s help also to appreciate that when an officer does approach you to correct your behavior, that you respond. That’s what democracy is all about.”

I think I sort of understand what Bratton was getting at. I think he was trying to say that we live in a democracy, and that out of respect for that venerable institution, good citizens should cooperate with the people enforce its laws. Of course there’s also the point that democratic government is supposed to exist to serve the people. People like Eric Garner.

I think there are several observations I can make about this whole affair:

  1. Police Commissioner Bill Bratton is a tone-deaf asshole. Right after officers under your command have killed a guy for selling loose cigarettes is not the best time to be lecturing everyone else about their civic duty to cooperate with the police. Bratton and his officers should be thinking about how better to fulfill their own duty to protect and serve.
  2. Laws are sometimes enforced by assholes. Psychopathy is not just for criminals — many psychopaths function well enough in society to stay out of prison. Some of them become businessmen, some of them become politicians, and some of them become cops. Some of them become Sheriff of Maricopa County, Arizona, or Police Commissioner of New York.
  3. It was not the intent of the legislature in enacting cigarette taxes that violators be killed. Bratton’s point about democracy may justify the initial decision to confront Garner, but it doesn’t justify killing him. However that happened, even though it’s probably not murder, the officers were not carrying out the will of their democratic leaders.
  4. Law enforcement is inherently violent. All laws are ultimately enforced through violence. Nobody goes to jail voluntarily. Usually the mere threat of violence is enough to make people cooperate with the justice system — they get into the police car, they show up for court, and they go to jail — because they know that if they refuse to cooperate, they will face violent and even deadly enforcement.
  5. It wasn’t a quality-of-life crime. “Broken windows” enforcement is about going after people who commit minor quality-of-life crimes in order to discourage a cultural of lawlessness. Selling untaxed cigarettes is not a quality-of-life crime, it’s a revenue crime. Garner was improving the quality of life of the people he sold to. But he was depriving the government of revenue.
  6. “Broken windows” isn’t what they say it is. The theory behind “broken windows” enforcement comes from an academic study in which people were more likely to commit a crime if they had reason to believe that nobody cared, such as a nearby broken window. However, as former NYPD Deputy Commissioner Jack Maple discusses in The Crime Fighter, “broken windows” works mostly as a type of pretext stop: Bust a guy for selling loose cigarettes and you get to take his life apart to look for other crimes.
  7. Legislators should know all this. I’m sure if you asked the legislators who passed the law that Garner allegedly broke, they’d tell you they never intended cops to kill people over it, yet the fact that some cops are assholes who kill people is no great secret. The legislators knew the kind of people who would be enforcing their laws and they passed them anyway. The resulting deaths are statistically inevitable. As I’ve said before, I wish legislatures would think about how laws are enforced before they pass them.
  8. If “broken windows” works, they should try it on cops. Maybe if they prosecuted the crap out of these cops and hit them with truly pants-shitting prison sentences, it would discourage the NYPD’s culture of lawlessness.

Sorry for the rant. Just had to work it out of my system.


Scattershot: Leaving Cops in the Dust, Shock Doctrine, and CSI: Gallifrey.

Random shots around the web:

  • Yet another case of judges saying you can drive away from the cops. Well, not that you can actually do that, but if you open your window because a cop pulled up behind you, got out of his car, and knocked on your window, you are totally doing that voluntarily for purposes of admissibility of evidence, because you absolutely could have driven away. (I mentioned a similar case here.)
  • According to the synopsis, Naomi Kline, who argued in The Shock Doctrine that right-wing ideologues used disasters to impose their value on others, is arguing in This Changes Everything that climate change is an opportunity for left-wing ideologues to impose their values on others.
  • CSI: Gallifrey.
  • Something stirs from slumber in Bat Country.
  • Making Satan look like a sensible choice.
  • Maggie ruins my fond memories of Scully.


Why Obamacare Means Insurance Refunds

At the reliably hyper Addicting Info, Wendy Gittleson is excited over upcoming insurance refunds due to the Affordable Care Act:

In a story that’s bound to send Republicans straight into the spin cycle, it was announced on Thursday that insurance companies will be refunding Americans $332 million because they’ve been overcharging them for healthcare.

That’s about a buck per American. And it’s funny she should mention overcharging, for reasons I’ll get to in a minute.

A generally ignored by Fox News part of the Affordable Care Act (aka, Obamacare) mandates that insurance companies spend at least $.80 of every dollar on *gulp* healthcare. The other $.20 can go toward administrative costs and all the other perks that CEOs of giant insurance companies enjoy. The law is even stricter when the policy is sold to a large employer, with a full 85 percent needing to go to healthcare. In other words, anti-Obamacare people, your insurance company is not charging you more because of Obamacare.

Actually, the ACA tends to push health insurance premiums up for three reasons:

First, the ACA specifies minimum coverage for all health insurance plans that can be used to satisfy the requirements of the Act, and anyone with less inclusive plans will have to switch to a conforming plan. All other things being equal, better coverage costs more, so some people will be paying more for insurance.

Second, the ACA limits the ability of insurers to refuse to cover pre-existing conditions or to charge more for them. To compensate for the losses they take covering people with pre-existing conditions, insurers have to increase the premiums they charge everyone in the plan.

Third, the medical loss ratio requirements of the ACA encourage insurance companies to demand higher premium payments. This is relevant to Gittleson’s post, but it requires a little explanation.

Insurance plans under the ACA are required to pay out at least 80% of premiums as benefits paid for members’ healthcare costs, taking their overhead costs (including profits for investors) out of the remaining 20% of premium payments. If, after everything has settled, it turns out they’ve paid out less than 80% of premiums received, they have to refund enough of the premium to get back up to an 80% payout. (This is what Gittleson is talking about.)

So, for example, if an insurance company took in $1 billion in premiums, it would be required to spend at least $800 million on healthcare. If instead it paid out only $700 million in benefits, it would have to refund $125 million back to plan members to get the loss ratio back to 80%.

It doesn’t work the other way around, however. If the company pays out $900 million in healthcare costs, they don’t get to send plan members a bill for $125 million. They just have to eat the $100 million loss. This asymmetry has consequences.

Assume that a particular insurance plan’s actuaries predict that the company will have to pay out $800 million in claims, and that there’s a 50/50 chance the actual claims will be over or under that amount by $100 million. Before the ACA, the company would estimate its costs at $800 million for payouts and $200 million for overhead costs, which means they’d want to charge $1 billion in premiums. When the year is over, they find out how well they did. If payouts were $900 million, they lose $100 million, but if payouts were $700 million, they’d make an extra $100 million in profits. On average, their outcome would be to have neither extra profits nor extra losses.

(You might be asking why the insurance company wouldn’t just charge an extra $100 million in premiums so they don’t lose money even if claims are $100 million higher. The answer is that I’m assuming that they are setting premium prices as high as they can in a competitive market. Every other insurance company faces the same costs, and therefore can offer insurance at the same price — which, as I said, already includes profit. If any company tried to raise its prices over that of other companies, it would lose all its customers to them.)

Under the ACA, however, the situation is no longer symmetric. With $1 billion in premiums, if payouts were $900 million, they’d lose $100 million that year, but if payouts were $700 million, instead of making an extra $100 million, they’d have to refund $125 million in premiums for a net $25 million dollar loss. So on average, with an equal chance of claims being $100 over or under estimates, the company would lose the average of $100 and $25 million — a projected loss of $62.5 million.

An insurance plan that is designed to lose an average of $62.5 million every year is bad business. To avoid the loss, insurance companies are going to want to raise premiums to $1.125 billion. Then if they had a good year and only paid out $700 million in medical costs over and above their fixed $200 million in operating costs, they would have to refund $250 million, for a loss of $25 million, but if they had a bad year and paid out $900 million in medical costs and $200 million in operating costs, they would make $25 million in profit. Symmetry would have returned, and they would once again have neither extra profits nor extra losses.

(Raising prices because of the incentives in the ACA is not blocked by competitive pressure because every other insurance company is also governed by the ACA and faces the exact same incentives.)

Obviously, I’m greatly oversimplifying, but the basic principle remains: By letting insurance companies take unexpected losses but not allowing them to keep unexpected gains, the ACA is actually encouraging insurance companies to raise their premiums to create a reserve against claims losses.

Note that insurance companies don’t actually make more profits this way, and consumers don’t actually pay any more for healthcare, because the high premiums are eventually refunded to consumers. However, the refunds don’t represent a saving for consumers either: The refunds are coming out of elevated premiums that are caused by the ACA itself.  Obamacare is just forcing insurance companies to take more in premiums so they can give it back as refunds later.

Rebates are not the goal of the Affordable Care Act. In a perfect world, there would be no rebates at all. The idea is that insurance companies will charge the right amount off the bat. The goal is also for the companies to cut overhead.

Costs have been going on the right trajectory. In 2011, the year the law took effect, insurance companies owed their customers $1.1 billion. Last year, that number was cut by more than half, at $500 million. Overhead costs have gone down too – to just 11.5 percent.

That’s a good thing if insurance companies actually cut costs, but that may not be what happened. A lot of people think that insurance companies deliberately underbid their premiums this year in order to gain market share. This is suggested by the reports that a number of insurance companies didn’t participate in the ACA exchanges (presumably priced out of the market by the underbidders) and the expectation that premiums will be increasing next year.

And regardless of what happens over the short term, the ACA sets up some funny incentives over the long term. In my example above, you’ll note that when healthcare costs were high, the insurance companies made more profits, but when healthcare costs were low, the insurance companies lost money because of the way refunds are calculated. The limits on medical loss ratios mean the insurance companies essentially have to live on their 20% of the pie, so naturally they do better when the pie is bigger. In the short run, they still have to compete with each other for customers, so they will want to control increasing medical costs, but in the long run they will do better if medical spending increases.

Unfortunately, increased spending doesn’t necessarily translate to improved health, because the insurance companies will benefit as much from wasteful spending as they will from spending that produces real health benefits.

If cutting overhead to 15-20 percent seems like an unrealistic goal in the free market, perhaps they could learn a lesson or two from Medicare, which conservatively, has an overhead of just 6 percent.

That’s because Medicare recipients typically have higher healthcare costs than the younger people covered by private insurance. It’s easier to keep the overhead down when your non-overhead expenses are proportionately high.


I’m Sure That Goes Both Ways

Here’s how I imagine my traffic stop going:

Officer: License and proof of insurance.

Me: Here you go.

Officer: Do you know why I pulled you over?

Me: Uh, no I don’t, officer.

Officer: You were doing 75 in a school zone.

Me: I’m sorry to hear you experienced that. I place the highest priority on safe driving, and I have passed all state-required driving requirements. I’ll investigate my recent driving behavior and I’m committed to learning any lessons that may arise from the results of my investigation.

Officer: Seems fair. Have a nice day!

Inspired by this horror, but we’ve all heard the same responses from police departments when their officers are accused of brutality. I’m sure that’s just what they’re looking for from me, right?

(Hat tip: Maggie McNeill)

Maggie McNeill at Liberty On the Rocks

So last weekend I had a conversation with my wife that went something like this:

Me: I’ve got some busy evenings this week. On Tuesday…um, this is going to be one of those awkward conversations…

Her: As long as you’re not seeing any hookers.

(silence for a few seconds)

Me: How about a retired hooker?

(silence again)

Her: That would be okay.

Maggie McNeill is the retired escort who blogs at The Honest Courtesan., and she has been on a driving tour of the country to promote her book, Ladies of the Night, which is a collection of short stories in various genres featuring members of the oldest profession. Both the book and her appearances are also opportunities to promote sex worker rights. I dropped in on her Tuesday evening appearance at a Liberty On the Rocks meeting at the Goose Island Brewpub on Clybourn.

Maggie McNeill at Liberty on the Rocks Chicago

Maggie wasn’t the only sex worker there. Serpent Libertine from SWOP Chicago was sitting at a corner, and I briefly said hello because I’d like to interview her someday about sex work activism in Chicago (assuming I ever get around to doing actual journalism again). A couple of male sex workers spoke up at the meeting as well.

I chatted with Maggie for a few minutes before her presentation, and I told her that before I started learning about prostitution enforcement through her blog, I hadn’t realized that the United States actually has one of the harshest anti-prostitution legal environments in the developed world. To emphasize this, I then somewhat ironically suggested that that the much-hated Swedish model of legalization, which emphasizes prosecuting clients and pimps instead of prostitutes, seemed like it would actually be an improvement. This turned out to be a mistake, because it derailed Maggie into explaining the problems of the Swedish model, which I kind of already know from reading her blog. Maggie was very patient and polite about it, though.

Many of the things Maggie spoke about will be familiar to regular followers of her blog, but it was still worth the trip to hear her talk about them. Her presentation ties it all together in a way that a series of blog posts just don’t.

Some of what she had to say was kind of depressing. We’re at a time when gay marriage is increasingly recognized and marijuana legalization is breaking out all over, yet sex worker rights have had some recent setbacks from dangerous legislation. I find it particularly worrying that Maggie describes a trend toward fighting prostitution with anti-racketeering prosecutions. That way leads down the same road to hell that the War on Drugs has been on for 40 years.

The cops and prosecutors and their enablers aren’t calling it the “War on Prostitution” however. Most people don’t really see prostitution as a threat to society or — perhaps more importantly when trying to stir up a moral panic– to society’s children. Instead, there’s been an increasing emphasis on “sex trafficking.” With the specter of strange men who will kidnap your children and force them into sex slavery, it’s a lot easier to get funding for anti-trafficking task forces and pass “tough” anti-trafficking legislation.

But since actual sex slavery is very rare in this country, they end up busting pretty much the same people they would have busted for prostitution. Then prosecutors pick a few of them to be charged with trafficking, perhaps for handling money or answering a phone, or perhaps just for being male. Clients get swept up for trafficking, as do male and transgendered sex workers. Sometimes sex workers are charged with trafficking each other.

All of this is a worrisome development. Maggie doesn’t quite reach Balko-esque levels of gut-punch, but the thought of the drug war’s industrialized system of arrest and incarceration metastasizing into sex work is depressing. On the other hand, just being in the room with people like Maggie and Serpent Libertine is kind of exciting. It feels a bit like being at the start of a civil rights movement.

I say “a bit” because I know that feeling is mostly subjective. It comes not because a sex worker rights movement is starting but because I’m learning so much more about it lately. The modern sex worker rights movement in the United States goes back at least as far as Margo St. James and COYOTE in the 1970s, and there has been a lot of progress by sex worker’s rights movements in other countries. (I’m pretty sure what I’m feeling is the same thing that leads journalists to write stories about a “new trend” they just heard about, no matter how long it’s actually been going on.) In some sense, my interest in the sex workers’ rights movement is actually a product of the movement’s outreach to non-sex-workers.

In any case, if Maggie comes to your town, it’s worth your time to meet her and hear what she has to say.

It’s the Better Government Party…or Is It?

I get a lot of spammy email about political issues and politics, but this one caught my attention:

Subject: A New Political Party- The Better Government Party Created by Mike Mann

Dear Mark,

I hope this e-mail finds you well!

I wanted to introduce my client, Mike Mann, to you in regards to your upcoming political features and interviews. A Washington D.C. native and Domain guru, Mann has decided to take on the task of establishing a new political party in the United States that he has dubbed the Better Government Party. We would love for you to highlight him in a business and/or political spotlight feature.

Mike Mann is the founder of non-profit and for-profit corporations including:

— SEO.com

— DomainMarket.com

Oh. That’s pretty much where I could have stopped reading. Because nobody in their right mind wants one of those search-engine-optimizing domain hoarding sleezebags to have political power.

But I didn’t stop reading. It was just too weird:

His vision for the Better Government Party is to eventually displace Republicans and Democrats, whose parties he says are useless, corrupt and fraudulent. His party will be built on transparency, trust and accountability. Better Government Party is willing to move past the political differences that divide our great nation along superficial lines.

**Mann is known as the man who bought up 14,962 domain names in 24 hours and had the three fastest-growing companies on the Inc. 500 in 2012. A lifelong philanthropist and lobbyist, Mann has the knowledge, experience and background that has readied him to create a party built on transparency, trust and accountability.

“Americans are so used to Congressmen lying, cheating and stealing that they have been conditioned to think it’s acceptable,” says the 46-year-old Washington, D.C., native, whose mother worked for the Environmental Protection Agency and father defended cases before the Supreme Court. “I’m trained and studied. I’m from Washington. I know this stuff.”

Yeah, okay. That doesn’t sound at all nutty.

Also, “better government for everybody” (or whatever) is not exactly an informative party platform. Before I’d support someone, I’d want to know what his vision of better government looks like.

So at this point I just had to visit the website to take a look at his — er, I mean the Better Government Party’s — positions on the issues. At first it all seemed like a lot of populist pablum. For example, this is from the vision statement:

Fiercely anti government corruption

Believes in healthcare for all US citizens

Believes in the best education for all US citizens

Believes in very strong environmental protection

Believes in an extremely simplistic tax structure like a flat tax or value added tax

Believes in free market economics

That’s a little vague, not to mention that the healthcare, education, and environmental positions are in conflict with the free market position. And frankly, it’s hart to tell from this short sample, but the whole site has a kind of “assembled from scraps” feel to it.

My first clue was at the bottom of the vision statement page, where I found this note:

Thanks for reading

Disrupt the Status Quo! — go Third Party!

Please also see:



He’s actually linking to some of his other websites, including his “get rich quick” book.

Then I noticed that every page on the party site has an ad for WebStreetJournal.com, another one of his properties. There’s also a domains page on the Better Government Party website which has the message, “Do you have what it takes to turn one of these domains into a powerful next generation corporation or charity?”

Given that it’s on the Party site, you might think these are domains being offered to like-minded individuals or organizations as part of an effort to build a grassroots movement, but that turns out not to be the case. This is just a list of domains for sale at Mann’s DomainMarket.com site: HelpAmerica.com lists for $15,000, StopTheHate.com lists for $25,000, and InnerCityYouth.com lists for a whopping $45,000.

Holy Crap! Do you see what’s really going on here? I’m about 95% convinced that Mike Mann must have realized that the upcoming elections in 2014 and 2016 will cause a surge of online discussion of politics and decided to start a political party — or at least the web presence necessary for a half-assed pretense of a political party — in order to attract links that will boost the search engine page rank for his business sites.

That would mean the entire Better Government Party is one big SEO strategy for his other sites.

Site Meter WTF?

Have you been seeing pop-up ads on my blog?

You see, a couple of days ago I was fiddling with some darned thing here in WordPress — I can’t remember what it was anymore — and I wanted to take a look at how the page lays out to ordinary people. As a logged-in WordPress user, I get extra features like a command bar at the top and special links I can click to edit content, and I wanted to get a look at the site without any of that. I could just log out, but then I’d have to login again to tweak it some more, and that’s a pain.

So instead, I launched the Chrome browser in “incognito” mode, which runs the browser with no cookies of any kind, as if it had never been launched before, which means my blog will treat it like just another random first-time visitor.

And the darnedest thing happened. Some kind of full-page ad popped up and completely covered the contents of my blog? At the top it had the words “A Message From Our Sponsors” with a link in the upper right corner labeled “Click to continue to site” or something like that. It was just like one of those full page ads you sometimes get when you follow a link to a big media property like Forbes.

What the fuck?

Just to be clear, I don’t put ads like that on my blog. I have an Amazon banner on the right side, and another one at the bottom of every article, and that’s it. Whatever this was, I didn’t do it.

I flipped on developer mode in the browser and took a look at another page. I wanted to see where it was getting content from. This page didn’t show the ad, but when I looked at the Network tab, I was in for another shock. The first file was the main HTML page, and the next dozen or so were the usual bits and pieces from the wordpress folder, bits and pieces of CSS, Javascript, and a handful of images. An awful lot of the rest of the files were stuff I didn’t recognize.

There’s always some of that on a page. If you use widgets or Javascript code to link to Twitter or Facebook or Amazon or Gravatar, the tiny stub of code you use to do that pulls down more code and other assets that it needs to function. But this went beyond any of that. It was hitting a horrifying array of unfamiliar sites:

  • specificclick.net
  • vindicosuite.com
  • yashi.com
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As near as I can tell, every single one of those is in some way associated with web advertising. Someone was using my blog to get credit for distributing ad content. At the very least, they were probably littering my visitors’ browsers with tracking cookies.

I’m truly sorry about that. This is an embarrassing discovery, and I apologize.

On discovering this, I got a little panicked. My mind went to a bad place: It was possible I had been hacked via malware in a WordPress plugin. WordPress and all its plugins and themes are built on PHP and PHP is wide open: Every WordPress plugin, every theme, has complete access to all the files in a web server account. If any one of the plugins is malicious, it can infiltrate itself into a WordPress installation in ways that are hard to remove. It’s like a virus.

You should never install WordPress plugins or themes from an untrustworthy source. The plugins and themes that you can find from within WordPress via the Add New button have been somewhat vetted by the community and are probably safe, but with the exception of a few reputable vendors, you should never download and install a theme or plugin from another web site. One study on a small sample of random free WordPress themes found that 100% of them had some kind of hidden code to insert tracking cookies or place hidden links on the site. Every single one.

I had been careful about adding plugins, but maybe I had made a mistake, or maybe one of them had slipped past the guards on the WordPress repositories. I began disabling plugins, starting with the most recent ones, and refreshing the page to see if the invading websites were still there. Eventually I got down to just a handful of trusted plugins — Google, Amazon, stuff everyone installs — and the ads were still there.

The culprit turned out to be one of the oldest things I had ever put on my site: The Site Meter badge. I’ve had that thing on my website since before WordPress. I think I even had it before MovableType, back when I was hosted on Blogger. At the time, every blogger in the world used Site Meter to track their stats, and I was no exception.

Site Meter didn’t press their advantage, however, and they didn’t keep up with the times. Their simple counter and statistics are no match for a modern powerhouse like Google Analytics or Woopra. Apparently, at some point they just gave up trying to monetize stats and started just pushing out all kinds of advertising crap. Given how many advertising companies they’ve sold my site to, I assume they’re trying to squeeze out as many tiny fractions of a penny as they can.

(This was actually good news, since Site Meter was just a <script> tag I had embedded in the footer. It didn’t run any PHP code on my site, so it couldn’t have corrupted anything else. It all ran in the relatively safe sandbox of my visitors’ browser.)

I Googled around about this, and apparently everyone else noticed the problem a few years ago. I wasn’t paying attention, and I missed it. I guess that’s because I don’t really use Site Meter any more, and I would have abandoned it, but…it was the oldest counter I had on the site, and I was enjoying watching the numbers climb. It used to go up pretty fast, and I would have reached my first million several years ago, but my site statistics took a dive about 6 years back when I was busy taking care of my parents.

According to Site Meter, I still haven’t quite reached my first million visits. The counter currently sits at 999315.

And there it will stay.

Considering a Geiger Counter

It probably says something about me that I’m thinking of buying a Geiger counter.

It’s not that I really have a need to detect radioactivity, exactly. But you know all those CSI shows where they pull out the UV light and shine it around a crime scene to find suspicious stains? If you tried that at home, the ultraviolet light would probably find all kinds of messes — where the dog peed on the rug, or a child spilled food, or granddad didn’t quite make it to the bathroom that one time — things you’d probably rather not know are there. And you’re really better off not knowing what would show up if you tried that on the sheets the next time you’re staying at a cheap hotel.

Well, I have this theory that there’s a little bit of the same thing going on with radioactivity. That is, I think if I poked around with a Geiger counter in some likely places — the alleys behind hospitals, university science buildings, junkyards that are not supposed to be used for radioactive waste — I’ll bet I’d find some radioactivity that’s hanging out where it’s not supposed to be.

Also, all kinds of radioactive stuff got into the wild in the early days of the nuclear age, and some of that stuff is still knocking about — radioactive samples from educational kits, mid-1900’s red-glazed earthenware, radioactive materials that were not properly disposed of and we reworked into everything from elevator buttons to jewelry — and it would be fun to try to find some of it.

Truthfully, I need to research this a lot more. I need to have a much better plan for finding stuff than just “looking around.” I’m not even sure what kind of Geiger counter I’d need. I’ll have to come up with theories backed by historical evidence for how radioactive materials could get into the environment in quantities I could detect with equipment I can afford. Then I’d have to come up with a plan for searching for it, preferably without attracting the kind of attention you might get when someone points out the strange guy with a clicking box to the police.

It probably says something about my marriage that when I told my wife I was thinking of buying a Geiger counter, she was genuinely surprised that I didn’t already have one.

Net Neutrality Pisses Me Off

The debate over “net neutrality” just makes me angry. The purpose of net neutrality is to force internet service providers to carry all content equally. The ISPs — really mostly cable companies — would like to dump net neutrality so they can charge special rates for certain content such as streaming video. This would allow them to offer “high-speed lanes” to services like NetFlix and Amazon Instant Video. As their opponents like to point out, however, dumping net neutrality would also effectively allow them to degrade less favored content, which would give cable companies a lot of control and allow them to discriminate against certain content providers.

The economic argument against net neutrality is the argument in favor of free markets: The cable companies should be able to provide whatever level of service they want to any content they want, as long as they can get customers to pay. This would tend to solve the problem of discrimination because while some content providers would pay more for higher quality service, the cable companies would still have to carry all content at reasonable speeds, otherwise they would lose customers. Competition for viewing households will keep them in line.

Except it won’t.

That’s because, by and large, the cable companies do not compete with each other. Here, for example, is a map of the service areas for Comcast and Time Warner Cable, the two largest cable companies (courtesy of Lance Ulanoff at Mashable):

Comcast and TWC

You’ll see that Comcast is red and TWC is blue. What you won’t see, however, is any purple, because for the most part, Comcast and TWC do not directly compete for viewers. (There are other cable companies, but they don’t compete against Comcast and TWC either.) No cable company controls the whole national market, but customers don’t care about the whole market, they care only about the cable service available in their home. And for most individual homes there is only one available cable company. That means that my free market solution won’t work: Competition won’t keep ISPs in line because there is no competition.

That’s why the net neutrality argument pisses me off: It wouldn’t even be an issue if the cable companies weren’t local monopolies, yet almost nobody is talking about that.

Undoubtedly there are some areas which are served by only one cable company because they don’t have the customer base to support more than one, but in most cases the reason only one cable service is available is because the local government doesn’t let any competitors provide service. The cable companies have somehow managed to get local regulators to give them a monopoly. And almost nobody is talking about that either.

If cable companies faced real competition, they wouldn’t be able to degrade service for some content because customers wouldn’t stand for it. They’d have to provide high speed service for everything, and probably a lot faster than they’re providing now. They’d also have to provide web sites that are actually useful, service technicians who are motivated to solve problems, and customer service offices that don’t make you feel like an intruder.

I wish we could stop arguing about “net neutrality,” which only fixes part of the problem (at the cost of further interfering with the free market) and begin talking about the real problem, which is the local cable monopolies. Perhaps the best approach would be to only relax the requirement for net neutrality in areas where there is strong broadband internet competition — at least four or five competing providers.

The problem with that idea is that under any regulatory system, the cable companies will probably get the government to define “competition” so broadly that it’s meaningless. Don’t believe me? Then go to the official National Broadband Map website and get a list of all the supposed cable providers for your home address. Check the result against the services actually available from the listed companies. Do they all provide speeds as high as in the official listing? Are some of them exotic business-quality services that are far more expensive than the cable company? Heck, how many of them are not landlines at all — just cell-phone providers with internet-capable towers in your neighborhood?

Have I mentioned that this really pisses me off?

2013 Road Trip Report – Part 4: The Road to Avalon

(I’ve been writing a rambling travelogue for last year’s trip to the Jersey shore. Part 1 got me from Chicago to Toledo, Part 2 got me to Wilkes-Barre, Pennsylvania, and Part 3 got me to New Haven, Connecticut. I’m running out of interest in writing these, but I think I have at least one more.)

I woke up the next morning and started my drive to Avalon. I decided to take the Merrit Parkway into New York City because it sounded more scenic, and I wanted to try out the GoPro camera now that I had a good memory card. This time I tried mounting it by sticking it out through the moon roof and clamping it in place with the motorized sliding panel. Unfortunately it got tilted to one side almost immediately. I can correct that in post, but there isn’t nearly enough resolution to play with in video as there is in a still image.

Here’s a sample of what I got:

I reached New York at a reasonable time of day, but that didn’t stop me from getting stuck in bad traffic. It took me a good hour to get through the bulk of the city. Maybe longer. Eventually I made it onto the Garden State Parkway. I had wanted to get some video of that, but it was raining and I was running a bit late.

My wife had flown out earlier, and she had rented a car at the airport to get around, so the plan was for her to drop it back office at the Atlantic City airport rental car return, where I would pick her up on the way to Avalon. There was some construction at the airport, and we both got confused and parked in the wrong place — she was in airport parking of some kind, and I had driven my car into the rental car return area. She eventually brought her car in, and I got a ticket from the rental agent to get our car out of the lot.

Then we drove down into south Jersey to Avalon, where our friends had rented a house for a couple of weeks.

The Queen is a Fink!

I’ve known for many years that access to this blog is blocked in mainland China. Well, sometimes it is and sometimes it isn’t. I imagine it all depends on how recently I’ve mentioned the Tiananmen Square Massacre. As I write this, it’s not being blocked (I checked here), but that could change since I just mentioned the Tiananmen Square Massacre twice now.

However, thanks to the London-based Open Rights Group (which I stumbled upon in the sidebar on Charlie Stross’s blog), I’ve discovered that my blog is now banned by some of the ISP content filtering recommended by the U.K. government.

You may remember hearing that the UK had pressured ISPs into blocking pornography in their default settings. (People who wanted to receive it could remove the block.) But the blocking also included other categories such as malware, drugs, gambling, suicide, weapons and violence, obscenity, hate, cyberbullying, and hacking. This site is not particularly about any of those things, but I do discuss them in the context of analyzing public policy, and like most automated filtering, it blocks a lot of stuff that it shouldn’t.

I checked around on my blogroll, and surprisingly few of them are blocked. Scott‘s not, and neither is Popehat, despite their extensive discussion of criminality. Even Pete Guither’s Drug WarRant isn’t blocked, and all he talks about is drugs. On the other hand, Maggie McNeill‘s site about sex work is blocked kind of a lot, and anthropologist Laura Agustín‘s site about migrant sex work is blocked a little. It sounds like the Brits are threatened by the sexiness.

Or maybe I just say “fuck” too often.

You can check your site here.

(Title allusion here.)

Keep Talkin’ Judge

One of the most amazing developments in the legal blogosphere last year was the emergence of the Hercules and the Umpire blog, because it was written by an actual sitting federal judge. It wasn’t just warmed-over pablum, nor was it some sort of scholarly legal blather. Instead, like a classic blogger from the early days, a federal judge just started telling us what it’s like to do his job. He expresses his opinion about a variety of related issues, he takes a stand, and he even goes off on a rant from time to time. In a few cases, his blog posts have pissed people off and earned him some harsh criticism.

Welcome to the blogosphere, Judge Kopf. We’ve got donuts.

I don’t actually read Hercules and the Umpire very often unless I find a reference to it from one of my regular daily reads. In part, that’s because Judge Kopf’s focus on issues affecting the judiciary is a little too specialized for me. I’m not familiar enough with the issues to understand how to think about them, and I’m not interested enough in them to learn more. My concerns tend to focus on the design and consequences of public policies, whereas HatU is more about how the judiciary does the things they do.

Along those lines, Judge Kopf wrote on Saturday about the Hobby Lobby case, in which the Supreme Court ruled that, due to the religious beliefs of its owners, the Hobby Lobby chain did not have to comply with the regulatory interpretation of the Affordable Care Act by offering certain specific kinds of female contraceptives in its employee medical plans. I had previously made the point that this was a relatively minor issue that was turning into a giant legal and political battle that has now gone all the way to the Supreme Court, and that we could expect more such battles in the future because the ACA made all kinds of healthcare-related decisions into political issues.

Kopf’s point was based on a similar view of the importance of the contraceptive mandate:

To most people, the decision looks stupid ’cause corporations are not persons, all the legal mumbo jumbo notwithstanding. The decision looks misogynistic because the majority were all men. It looks partisan because all were appointed by a Republican. The decision looks religiously motivated because each member of the majority belongs to the Catholic church, and that religious organization is opposed to contraception. While “looks” don’t matter to the logic of the law (and I am not saying the Justices are actually motivated by such things), all of us know from experience that appearances matter to the public’s acceptance of the law.

The Hobby Lobby cases illustrate why the Court ought to care more about Alexander Bickel’spassive virtues“–that is, not deciding highly controversial cases (most of the time) if the Court can avoid the dispute. What would have happened if the Supreme Court simply decided not to take the Hobby Lobby cases?  What harm would have befallen the nation? What harm would have befallen Hobby Lobby family members who would  have been free to express their religious beliefs as real persons? Had the Court sat on the sidelines, I don’t think any significant harm would have occurred. The most likely result is that one or more of the political branches of government would have worked something out. Or not. In any event, out of well over 300 million people, who would have cared if the law in different Circuits was different or the ACA’s contraception mandate was up in the air?

The reason Judge Kopf advances for avoiding highly controversial cases is to preserve the legitimacy of the court. After all, the court has no army to enforce its decisions, so people — including politicians, bureaucrats, and police officers — obey the court out of a tradition of respect and mutual acceptance of the legitimacy of its decisions, and the court would do well to not to waste that obedience on heated controversies that aren’t very important in the grand scheme of things:

Bickel was not trying to protect the Court itself. On the contrary, he realized that there were “hot button” cases that an anti-democratic Court would of necessity be required to resolve. It was for those rare “fate of the nation” cases, where the Court’s legitimacy mattered most to public acceptance of a really important decision, that required the Court to conserve this very scare resource.

Judge Kopf thought it was time for the Supreme Court to ease up before they lose the support of the people:

Next term is the time for the Supreme Court to go quiescent–this term and several past terms have proven that the Court is now causing more harm (division) to our democracy than good by deciding hot button cases that the Court has the power to avoid. As the kids say, it is time for the Court to stfu.

Kopf is essentially arguing that it is necessary for the Supreme Court to allow some injustices to go uncorrected in order to retain the moral authority necessary to correct other injustices that are presumably more important. He’s not saying that making that kind of tradeoff is a good thing, only that it’s a necessary thing for the long-run good of the justice system.

I never thought of that before, but my gut feeling is that it makes some sense, especially since the Supreme Court is always limited by time constraints. The sheer volume of cases means the have to pick and choose which ones to hear, and so they might as well be strategic about it. On the other hand, there’s also the argument that the best way to maintain the court’s authority is to use it regularly, so that people become accustomed to acceding to its authority. I think this is a fascinating discussion about how the Supreme Court can assert leadership in the national legal arena.

However, according to Scott Greenfield, a number of people latched onto something that completely escaped me, the very last word of Kopf’s post, “STFU.” Apparently, this might be the first time that a sitting Article III judge has publicly told the highest court in the land to “Shut The Fuck Up.”

Responding in part to this controversy, Judge Kopf reprints a letter he received from a lawyer, advising him that it is time to stop blogging:

[...] in my 25 years as a lawyer, it is my inescapable conclusion that an important element, perhaps the most indispensable one, in our legal system’s ability to deliver justice is public trust in judges.

Well, I’m going to dispute his premise right there. I have no doubt that public trust in judges is an important part of the legal system’s ability to deliver justice. But I think something even more important than public trust in judges is that the judges be worthy of that trust.

In order for our system to work, the public must know that a judge will decide matters thoughtfully, impartially, respectfully, and on the merits.

This is where I have a fundamental disagreement with Kopf’s letter writer: He wants the public to “know” something that simply isn’t true. We certainly want judges to decide matters thoughtfully, impartially, respectfully, and on the merits, and I’d like to think that the majority of judges will do that the majority of the time, but certainly they won’t all do that every time.

How does such attention and reaction create an appearance that assists the public’s acceptance of the law, help people trust judges, foster faith in our system, and advance the cause of the delivery of justice?

It probably doesn’t, and it probably shouldn’t. There’s such a thing as placing too much trust and confidence in judges. Some judges will be idiotic, other times they will be assholes. Our judicial system is unavoidably human and therefore necessarily imperfect. Trust and faith in the system are important, but only to the extent that they are based on a realistic assessment of the quality and capabilities of the system. Trusting judges too much is just as bad as trusting them too little.

As I understand it, part of your motivation for continuing with your blog is your passion that “federal trial judges be seen as individuals with all the strengths and weaknesses (baggage) that everyone else carries around.” [...] I fail to understand the particular level of importance you apparently ascribe to folks’ possession of that understanding about judges. What difference does it make whether federal trial judges’ strengths and weaknesses and baggage are properly understood?

The same difference it makes for anybody else in any other job: We want to make sure we aren’t depending on them to do something they are incapable of doing.

[...] a judge should display the thoughtfulness and restraint appropriately expected of people who have accepted society’s call to judiciously make important, vital decisions. It is entirely proper for us to expect that judges not be publicly profane, lewd, or disrespectful; and it is entirely proper to expect judges’ words and deeds to be consistent with the high ideals of integrity and justice. In fact, the success, or lack of success, of our legal system largely depends on judges’ meeting these standards.

Here the judge’s critic has subtly switched subjects. Until now he has been speaking about the extent to which Judge Kopf’s blog undermines public confidence in the judicial system (and implicitly about whether that would be a bad thing). In this section, however, he changes his focuses to the more personal question of whether Kopf is behaving properly in his role as a judge.

I don’t know enough about the court system to have a strong opinion about whether Kopf’s uncensored comments on his blog illustrate that he is unfit to be a judge. (My gut feeling is that we tolerate much worse from judges, just not in the form of blog posts.) What I do know is that regardless of whether you think Kopf is a thoughtful judge who provides valuable insights into the humanity of the federal judiciary, or you think that Kopf is an intemperate fool who should resign from the bench, you think that because of his blogging. You’ve learned something about Judge Kopf specifically and the judiciary in general. Whether this is good news or bad news, it’s still information, and more information is always better.

So if Judge Kopf decides to stop blogging because he feels it undermines his ability to do his job as judge, that might make sense. I wouldn’t know. But if Judge Kopf is worried that his blogging will undermine public trust in the judiciary, I say keep talking. Undermining trust in the judiciary might be just what we need. Or not. But we’ll have a better chance of figuring it out if we know more about it.

Much Ado About $300

I think the reaction to the Hobby Lobby case is going to make me mental. Case in point:

Protesting the Hobby Lobby Decision

That’s from a Mother Jones article by Erika Eichelberger and Molly Redden titled “In Hobby Lobby Case, the Supreme Court Chooses Religion Over Science”. Does the young woman holding the sign realize that she’s saying it’s not her boss’s business that she wants him to pay for her contraception? This is as dumb as those right-wing protesters who want to “keep the government out of my Medicare.” If she doesn’t want her boss involved, she can buy the contraceptives herself. It’s her insistence that her employee health insurance should cover contraception that causes her employer to be involved.

As for the Mother Jones article’s main point about science and religion,

According to the Food and Drug Administration, all four of the contraceptive methods Hobby Lobby objects to—Plan B, Ella, and two intrauterine devices—do not prevent the implantation of a fertilized egg into the uterus, which the owners of Hobby Lobby consider abortion. Instead, these methods prevent fertilization.

I’m not sure that’s a completely accurate description when it comes to some forms of IUD. My admittedly sketchy understanding is that if an egg does get fertilized, the IUD could interfere with implantation, which meets some religious people’s definitions of abortion, which they regard as the murder of babies. That may not actually be true, but it’s what a lot of people believe, which is pretty much the definition of religion.

However, it’s not the Supreme Court that is choosing religion over science. Congress did that when they passed the Religious Freedom Restoration Act (RFRA). When a later Congress passed the Affordable Care Act (ACA, also called Obamacare), they left the choice of required insurance coverage up to the regulatory bodies of the Executive branch. However, because they were either neglectful or cowardly, Congress failed to specify how to resolve conflicts between RFRA and ACA. The Obama administration chose to require contraception coverage, the folks at Hobby Lobby objected, and the whole mess dragged through the court system until it was finally resolved by the Supreme Court.

As I’ve said before, this is a stupid way to run a healthcare system. All of this fuss is about four items in the ACA required formulary. All of this fighting is about a benefit which Megan McArdle argues is worth about $300 per year to the fraction of the population that uses it. When you make the provision of healthcare a matter of public policy, you make every element of the healthcare system a matter of politics. There are going to be a lot more battles like this one.

The Pope On Drugs

A few days ago, over at Crimlaw, Ken Lammers, whom I admire, had a few things to say about the idea of legalizing drugs. Ken starts by quoting Pope Francis, whom I admire somewhat less. (Hey, what can I say? I was raised a Lutheran, and the First Rule of Lutheran Club is the Catholics are wrong.) When it comes to drugs, the Pope is (no surprise) an old-school anti-drug conservative:

Let me state this in the clearest terms possible: the problem of drug use is not solved with drugs!

No, but that’s not really the point of legalization.

Drug addiction is an evil, and with evil there can be no yielding or compromise.

It appears that His Holiness hasn’t quite passed the word to the rest of the team. The Catholic Church, to its credit, runs rather a lot of addiction rehab facilities, and they take a different view. One of the first addiction recovery services I found, Catholic Charities, Diocese Trenton, has this to say about addiction: “No matter which kind of addiction, it is important to recognize that addiction has nothing to do with one’s morality or strength of character.”

In fact, the overwhelming sentiment toward addicts by the people who treat them is one of compassion. For the Pope to imply that they are evil goes against the basic principles of addiction treatment, including the addiction recovery services offered by his own church.

But perhaps I misunderstand. Perhaps the Pope is distinguishing between the addict and his or her addiction. Perhaps the latter is evil, and the former is only its victim. Hate the sin but love the sinner and all that. Fair enough. But under those terms, those of us who favor legalization are also trying to help the sinner.

To think that harm can be reduced by permitting drug addicts to use narcotics in no way resolves the problem. Attempts, however limited, to legalize so-called “recreational drugs”, are not only highly questionable from a legislative standpoint, but they fail to produce the desired effects.

If the Pope believes that, then the Pope has a limited understanding of the desired effects of drug legalization. If all currently illegal drugs were legalized tomorrow, I wouldn’t use any of them. I want drugs legalized because I want the police to stop sending armed SWAT teams to raid homes and shoot dogs. I want police to stop shackling people and hauling them off to be locked in cages for years. I don’t want legalization because I want drugs. I want legalization because I want the police to stop killing innocent pastors and setting babies on fire. That would be a “desired effect.”

Substitute drugs are not an adequate therapy but rather a veiled means of surrendering to the phenomenon.

I don’t know enough about addiction therapy to say whether methadone and other substitutes are an effective treatment for drug addictions. But I’m pretty sure the Pope’s plan to lock drug users in cages is not therapy either.

Here I would reaffirm what I have stated on another occasion: No to every type of drug use. It is as simple as that. No to any kind of drug use. But to say this “no”, one has to say “yes” to life, “yes” to love, “yes” to others, “yes” to education, “yes” to greater job opportunities. If we say “yes” to all these things, there will be no room for illicit drugs, for alcohol abuse, for other forms of addiction.

On this I personally agree with the Pope. I’ve said “no” to illegal drugs all my life, and I plan to continue to do so. I rarely even drink booze, and that’s legal. Where we differ is that I don’t want to force my lifestyle on other people.

Ken Lammers has some commentary of his own:

…I find this to be a distillation of my personal beliefs about drugs. Legalization is unlikely to do the user much good. It will just switch the dealer from some guy on a corner to some guy behind a 7-11 counter.

Ken apparently doesn’t see any contradiction between those last two sentences. Buying drugs of uncertain origin, purity, and composition from a guy whose real name you don’t know is a dangerous way to get high. A drug user would be much safer buying a carefully manufactured product from a storefront backed by a corporation that wants to preserve the value of its brand and which can be hit with a multimillion dollar class-action lawsuit if the product is defective. I’m guessing that will do drug users a lot of good.

Also, the guy behind the counter at 7-Eleven isn’t going to wrestle him to the ground, throw the cuffs on, and haul him off to jail. That’s also good.

And I doubt that any cocaine producing Columbian cartel could ever match the predatory nature and capabilities of Big Pharma. After all, the Medellin cartel can’t run ads during the super bowl or deliver its product to every single grocery store, pharmacy, and convenience store in America – Proctor & Gamble (pepto bismo) and Bayer (aspirin) already do.

Here we come to a more profound difference between my views and Ken’s (or the Pope’s). I think that having digestion aids and pain medication conveniently available just a few minutes away is one of the advantages of our modern civilization. The Walgreens down the block stocks thousands of items — canned soup, milk, batteries, shampoo, condoms, light bulbs, toys, memory cards, makeup, candy — and it’s open 24 hours, so I can get what I want, when I want it. I think making high-quality recreational drugs available on the same basis is a good thing. It’s certainly better than having the manufacture and distribution of recreational drugs controlled entirely by criminals.

Anyone who believes addiction will decline in such an atmosphere is either naive or choosing to turn a blind eye to reality.

One distinction that seems not to be recognized by the Pope, and maybe Ken Lammers, is that drug use is not the same as drug addiction. People can use drugs without becoming addicted or ruining their lives, and there are far more casual drug users than addicts, even for relatively scary drugs like meth and heroin. When it comes to a less dangerous drug like marijuana, millions of people have proven that safe use is possible. Plenty of marijuana smokers have gone on to have normal, successful lives, including the current President of the United States. And his predecessor. And the one before that.

The risk of arrest and prison is part of the cost that the drug user pays when deciding to consume illegal drugs, so legalizing drugs is the economic equivalent of lowering the price. In addition, everyone in the supply chain incurs a risk of arrest and prison just for handling the drugs, and they all demand compensation for the risk, which results in a high price for the final consumer. So legalizing drugs will also reduce the actual price charged to consumers. Economics 101 tells us that lowering the price will increase the consumption, so I fully expect drug use to go up if drugs are legalized.

Whether drug abuse or addiction will also go up is more complex question. If some percentage of drug users are destined to become drug addicts, then increasing the number of users will increase the number of addicts, assuming that the new users are just as likely as the original users to develop addiction problems.

On the other hand, industrialized production and distribution will reduce impurities and variations in quality, reducing health complications and making overdoses less likely. And I think that increased social acceptance will make it less likely that drug users will be excluded from their communities, less likely that they will have trouble finding jobs, and more likely that they will be able to get help when they need it, especially since they can ask for help without fear of being arrested. Even for those who are addicted, the low cost of recreational drugs will reduce the financial burden of addiction. Finally, legalized drugs will directly benefit both casual users and addicts by eliminating the risk of arrest and imprisonment, and the reduction in enforcement efforts is a benefit in itself — no more late night raids, no more innocent grandmothers getting shot, no more puppycide.

I believe that legalizing drugs will probably increase drug consumption, but I think it will also reduce the harm caused by drugs, including the harm caused by law enforcement agencies and the justice system. That’s why we sometimes call it harm reduction. I suppose it is a “compromise,” but it’s not a compromise with evil, it’s a compromise with reality.

The Pope, on the other hand, seems to be engaged in magical thinking: He apparently believes that if we say “No to every type of drug use” then people won’t abuse drugs. He doesn’t seem to realize that his version of saying no necessitates the creation of a massive government program of spying on citizens, violently assaulting them, and throwing them in cages.