Facebook Thinks I Like What?!?

Over on her Facebook page, writer Jennifer Abel is getting pissed off at some of the stuff Facebook is recommending for her:

If this were England, I would sue Facebook for libel; I am THAT offended by the pages they suggest I “like.” Seriously: what the hell did I EVER post, here or anyplace else, to make anybody think I’m a bigot who would support any of those vile organizations designed specifically to deny full human rights to gay people? Hey, Facebook: why not recommend that I “like” Stormfront and the Klan, too? After getting a swastika tastefully tattooed on my ass, of course.

This is why I like Jennifer so much.

Later, in a comment, she elaborates:

…Seriously: for all the stuff I’ve posted on Facebook — including things like “Aww, how sweet, this same-sex elderly couple is getting married” — what the hell makes them think “Oh, yeah, Jennifer is a GREAT candidate to join one of those hateful anti-gay groups with the word ‘family’ in the title”? And given all the anti-TSA stuff I’ve done, what the fuckity-fuck makes them think I want to get a degree in “Homeland Security”?

You don’t have to spend all your free time in Facebook to know what she’s talking about. Facebook can recommend some strange stuff.

I don’t know how Facebook chooses recommendations, but I know a little bit about data mining and searching document collections, and I think I can make some educated guesses. I’m assuming that the algorithms used by Facebook for finding recommendations are related to the algorithms Amazon uses to make product recommendations and (to a lesser extent) the algorithms Google uses for document search. If I’m right, several mechanisms seem likely to be the culprits behind Facebook’s strange recommendations.

We should start with a fact that some people find surprising: No matter what it seems like, neither Facebook nor Google nor Amazon has any idea what you’re talking about. Computers understand a lot of artificial languages — Java, C#, PHP, HTML, CSS, Python — because they are constructed according to rigorous sets of simple rules and talk about a limited set of concepts. When it comes to understanding natural languages such as English, however, random 3rd-graders have much better reading comprehension than even the most advanced software. A service like Google only appears to understand our language because it uses some very clever shortcuts and a lot of processing power.

Early search engines worked entirely off of the individual words in a piece of text, ignoring context completely. On any given web page, rare words scored high and common words scored low. Extremely common words like “and” and “the” were ignored entirely. So if someone searched for several unusual keywords, and your web page happened to have those words, it was likely to be returned near the top of the list of results.

(This is why it’s hard to get to the top of the list for keywords like “criminal lawyer” — the word combination is not very rare — but it’s slightly easier to get to the top for “New York criminal lawyer” and much easier to get to the top of “Muncie Indiana criminal lawyer free consultation”.)

Search technology has gotten better, but to get an idea how primitive it remains, you only have to look at one of the most well-know natural language applications in the world, Apple’s Siri. The voice recognition system is pretty good at figuring out the words (compared to earlier voice systems) but once it gets the words, Siri still has trouble making sense of what you’re trying to say. Ask it “How far away is Moscow?” and it shows you Moscow on a map. It completely missed the question and fell back on matching the keyword “Moscow”.

(Impressively, WolframAlpha gets the answer right — guessing at my location from my IP address — but that’s exactly the kind of question it was designed to answer. You can stump it easily enough with other questions. Siri, by the way, knows about WolframAlpha, but it wasn’t smart enough to recognize my question as the kind of query it should refer to WolframAlpha.)

If Facebook looks at the text of posts to make recommendations — and I’m not sure that it does — it probably can’t understand the text in a post any better than Siri. If you rant about anti-gay discrimination in your timeline — or “like” a page that opposes anti-gay discrimination — Facebook’s computers may pick up on the words and phrases you use, such as “gay” or “family” or “God”, but they won’t have a clue why you’re using those words, or how much you disagree with religious objections to gay marriage. Organizational Facebook pages that support gay marriage and those that oppose it probably seem very similar to a keyword-oriented matching algorithm — they’re talking about the same thing from two different points of view, after all — and if you keep ranting about the Department of Homeland Security, Facebook will assume you want a job there.

Facebook adds to the confusion because it’s always talking about things for you to “like,” but the traditional goal of search engine technology was not to find things you like, but to find things that are relevant. When Facebook tries to find stuff for you to “like,” it essentially treats content you create as a giant query in a search engine. So if you like 10 pages that talk about gay marriage and you write about gay marriage in your timeline, Facebook will recommend other pages and people that talk about gay marriage, but it can’t understand if you support or oppose gay marriage.

If you think of Facebook as recommending relevant things rather than likeable things, then its suggestions to Jennifer were dead-on: She may not like them, but they matter to her, and they spurred her to write about them. (And, in the time it took me to write this, she has gone on to write a Daily Dot article on the subject.)

Facebook’s algorithm for finding suggestions probably depends on data drawn from three basic sources. First, there’s stuff you like, post on your timeline, or otherwise interact with. Second, there’s stuff your friends like, post on timelines (yours or theirs), or otherwise interact with. Then, given those two collections of stuff, Facebook’s algorithm can find other people who have shown an interest in the same things. From that collection of people, the algorithm derives its third data set, consisting of things those other people like, post on their timelines, and otherwise interact with.

[Update: Gideon reminds me in a tweet that there's a fourth source of data: Other sites you visit, and the things that you do there, provided those sites load Facebook content, even if you don't click on it. Facebook would be able to use this to increase the number of people used to build the third data set above.]

This last mechanism is similar to how Amazon can look at the products you buy and recommend other items you might like. It’s based on finding other customers who view and buy the same things as you and then looking at what else those people tend to view and buy. With large data sets — Google, Amazon, and Facebook are all about “big data” — these algorithms can be very effective. (I find that Amazon in particular makes some eerily accurate guesses.) So if you “like” something wildly popular like Dr. Who, Facebook’s computers will find tons of people with similar interests and notice that they also share interests in shows like Star Trek or Farscape, which Facebook will probably recommend to you.

However, when the data is very sparse, the queries can return highly variable results of little significance. It’s similar to how the accuracy of a survey falls off when the sample size is small: Ask 10,000 people about their vote and you can predict the outcome of the next election; ask 5 people about their vote and your result is random nonsense. Since Amazon and Facebook are essentially surveying other people with similar interests in order to predict your interests, if your interests are obscure and unusual then there won’t be many other people from whom to get data, which can lead to strange results.

Suppose you search Amazon to find something obscure, maybe a little-known French translation of an old Turkish book. If it’s esoteric enough, perhaps only one other person has also bought that book in recent times. And then let’s assume that maybe a month later they had to buy a toy for their daughter and settled on a My Little Pony play set. Now, when you visit the page for your obscure book, Amazon’s algorithms are going to look for all other people who bought that product and then at all the other products they bought. And in this hypothetical case with only one other buyer, Amazon is going to see your French translation and offer you Twilight Sparkle.

A similar effect occurs when something really big hits Amazon: So many people buy it that no matter what product you search for, some of the people who bought your product also bought the hugely popular thing. So when you search for a new camcorder, Amazon recommends the new Twilight novel.

I’m pretty sure Facebook is not immune to this problem and may even make it worse because it gives extra weight to people near you in the social graph, effectively narrowing its dataset. If you “like” a little-known performance artist that almost no one else has heard of, then when Facebook’s algorithm searches for other people who like that artist, it may only find one person anywhere near you in the social graph who likes that artist. And if that person also likes Stormfront and the KKK, guess what Facebook’s algorithm is going to suggest?

Another big issue is that a search engine like Google is engineered to produce stable result sets. Given the same query, it should return the same result set every time. You might not always see it that way, e.g. if the queries go to two different servers using document indexes with different update schedules, but the design intent is to return the best result, which should be always be the same for the same incarnation of the document database.

That wouldn’t work on Facebook. You’d quickly grow tired of receiving the same recommendations over and over, no matter how much you liked them. So Facebook’s servers probably try to mix things up a bit, randomly pulling in suggestions from much farther afield than if they used a purely mathematically optimal set.

It’s possible too that Facebook pays attention to what you click on, and if you ignore its best guesses too often, it demotes those suggestions and lets something else into the recommendations list. If you keep ignoring its suggestions, more and more of the weird low-ranked pages will bubble up and be recommended.

Finally, think about how you respond on those rare occasions that Facebook suggests something you actually like: You look at it, and you click “like”, and it joins the collection of all the other things you already “like”. And now Facebook has no need to ever recommend it to you again. Between the things you “like” when you set up your account, and the things you “like” along the way, after a little while all of the good suggestions get used up, and all that’s left is the weird stuff.

To summarize, let me first remind you that this is just guesswork on my part — I don’t know anything definitive about Facebook’s algorithms for recommendations — but here are some of the factors that I think contribute to the screwiness of Facebook’s recommendations:

  • Facebook doesn’t understanding natural languages so it doesn’t understand what you and your friends are writing about.
  • Keyword-based matching finds text that uses similar words, which may or may not express similar ideas.
  • Text search and data mining algorithms are intended to find stuff that is relevant or interesting to you, which may not mean it’s stuff you really “like.”
  • Facebook’s recommendations to you are influenced by your friends’ activities and interests.
  • Facebook’s recommendations are also influenced by other people who show the same interests as you and your friends.
  • [Update: Facebook also learns about you from your activities on affiliated sites.]
  • Topics that are very popular can overwhelm the algorithms and show up everywhere.
  • Activities related to rare or unusual topics can have the effect reducing the amount of data available for data mining, which increases the variability and reduces the significance of the results.
  • Bottlenecks in the social graph can also reduce the amount of data available for mining, which increases the variability and reduces the significance of the results.
  • In the quest for clicks, Facebook intentionally offers you unusual opportunities.
  • By ignoring suggestions for things you do like, you may be encouraging Facebook to show you other things.
  • You use up all the good stuff early, so the stuff you get later tends to be crap.

As I said at the beginning, most of this is guesswork, but I think that if even half of my guesses are correct, it’s not hard to see why Facebook recommendations are so strange.

Ripley R.I.P.

We adopted Ripley about 14 years ago from the Orphans of the Storm animal shelter about 10 miles north of Chicago. We had been thinking of getting a kitten, but we decided to get an adult cat, in part because most people pass them over in favor of kittens, but mostly because when you get an adult cat, what you see is what you get. If you adopt an adult cat, the way they are when you meet them is the way they’ll be for the rest of their lives.

We found Ripley by sitting down in the adult cat room and paying attention to which cats came over to play with us. Cat D51 (back then Orphans didn’t name them) came over to both of us several times and climbed right up into our laps. He responded to attention and purred and didn’t pick fights with the other cats. We decided to bring him home with us and name him Ripley, after Sigourney Weaver’s character in Aliens.

Just like at the shelter, Ripley loved to come visit us. The first time I laid down on the couch after bringing him home, he hopped right up and sat on my chest, purring. Almost every evening, my wife would sit in the reclining chair to read or watch television and Ripley would slowly creep up and curl up on her lap or her chest, where she could hold him and pet him. He was her best cat ever.

Toward the end of January, Ripley was diagnosed with immune mediated hemolytic anemia, which meant his immune system was attacking his red blood cells. Our vet gave him two transfusions and put him on very high dosages of immune suppressants. The drugs were causing liver damage, so we had to taper them off, and at yesterday’s vet visit, his red blood cell count was a little below normal again, and by this morning he was barely moving, so we took him right back to the vet for more tests. His red blood cell count had gone way down in just 15 hours, and his blood chemistry indicated multiple organ failure. There was nothing else we could do for him.

Ripley will be sorely missed. My wife is heartbroken. We’re both taking the day off from work.

Here he is with my old cat Dozer, who passed away in the summer of 2011. They were a couple of really good cats.

Ripley With Dozer
Larger ImageRipley With Dozer

Drug Kingpins With Badges

A few years ago, I was complaining about what I called “profitable punishment”  — any type of criminal or administrative punishment that makes money for the government imposing it. The ostensible purpose of imposing punishment for crimes is to discourage people from committing crimes, but when municipalities and police departments can enrich themselves with fines and forfeitures, it distorts the criminal justice system:

[Profitable punishment] provides a much greater incentive for unnecessary criminal laws. But even when fines are used to punish genuine crimes, they also provide a perverse incentive to not actually reduce the amount of bad behavior. When a city is spending a million dollars a year running a batch of red-light cameras, the last thing they want is for everyone to drive safely.

As Radley Balko points out in his recent HuffPo piece on proposed changes in Tennessee asset forfeiture law, the ill effects of profitable punishment have perverted drug enforcement:

That can create some odd incentives. For example, in a 2011 report, Nashville’s News Channel 5 found that the vast majority of police stops looking for suspected drug smugglers were made on the side of the highway leaving the city, not the side entering it. For police coffers, it was better to let the drugs come into Nashville, be sold and then seize the cash as the dealers left town.

Likewise, in a 1994 study published in the journal Justice Quarterly, criminologists J. Mitchell Miller and Lance H. Selva found that several police agencies delayed making busts of suspected drug houses until most of the drug supply had been sold. They waited until the drugs had already hit the streets so that they could maximize their forfeiture bounty.

In other words, police have perverted their anti-drug enforcement policy so that illegal drug dealing has become a source of revenue for the department.

I’ve complained in the past that forfeiture laws turn police departments into auto theft rings and pirates. My guess is that if anyone other than a police department deliberately allowed drug deals to take place and then took money from the drug dealers, prosecutors would hold press conferences and call them “drug kingpins.”

Fitzgerald’s Law

Over at Simple Justice, Scott Greenfield has been smacking around former federal prosecutor Patrick Fitzgerald, because Scott’s not happy with the advice Fitzgerald is giving to some corporate clients. At times, Scott seems puzzled by the things Fitzgerald is saying (although I suspect Scott is faking to highlight the outrageousness).

Here are some summaries of what Fitzgerald said (from Mark Herrmann at Above the Law), followed by Scott’s puzzled responses:

First, if you’re responding to allegations made by a whistleblower, don’t assume that you’ll avoid trouble by explaining that the whistleblower is nuts. Whistleblowers may often be nuts — it takes a certain personality to blow the whistle — but the fact that you’re nuts doesn’t necessarily mean that you’re wrong. Even a stopped clock tells the right time twice a day. It’s okay to explain briefly to prosecutors that the whistleblower is nuts, but the heart of your presentation must respond to the allegations.

So nuts doesn’t equal wrong? True, but not exactly new.  Maybe the white collar “specialists” at Biglaw never crossed a junkie snitch, but for the rest of us, this is pretty 101 stuff.

Scott’s totally missing the context here. Fitzgerald isn’t approaching this as a trial. Here, see if this one helps:

Second, for many corporate criminal investigations, the company’s misconduct may be less important than how the company responded to the misconduct. If you have a few hundred (or a few thousand, or a few tens of thousands, or more) employees working in your organization, then some of those employees won’t follow the rules. That’s inevitable, and prosecutors understand it. What distinguishes good corporate citizens from bad ones is often not the misconduct itself, but how the corporation responded when it learned of the misconduct.

Ah, now we’re getting a bit trickier. So the secret is to presume guilt before the government does (or just pretend, for the sake of pleasing the fine men and women in federal buildings) and throw a few people under the bus to satisfy their bloodlust?  Perhaps we could give this trick a cool name, like “when baby prosecutors say jump, corporate titans ask “how high”?

Well, yeah. That’s pretty much what he’s saying. Still don’t get it? This next one gives the game away:

Third, Fitzgerald suggested providing a candid, comprehensive narrative when you meet with prosecutors. Too many companies, says Fitzgerald, hold their cards close to the vest, not wanting to give prosecutors information unnecessarily. That leaves the prosecutors to rely exclusively on the FBI’s version of the facts, which probably won’t paint the company in a great light.

The last thing a multinational corporation wants is to have a prosecutor rely on what the FBI says, so Fitzgerald’s solution is to confess to snatching the Lindbergh baby up front?

You see? Fitzgerald is concerned the prosecutors won’t get all the facts right. It’s as if he thinks getting the right facts to the prosecutor is what matters to defendants — as opposed to getting the facts to the official finder of facts, which is supposed to be the judge or the jury.

Or so I’ve been told. When criminal defense lawyers give me advice on how to stay out of jail, I try to pay attention, and one of the things I’ve heard pretty clearly is that no matter how much you want to set the record straight with cops who are questioning you or a prosecutor who is threatening you, the best thing you can do is to save your story until you can tell it to the judge and the jury. They’re the only ones that matter. (Unless your lawyer tells you otherwise.)

In a comment on his own post, Scott Greenfield makes it pretty clear what he thinks of Fitzgerald’s nonsense:

It’s my understanding that Fitzgerald does not handle defense, which makes it very unclear what he does other than gave speeches and show people the quickest way to the United States Attorney’s office.

Here’s what bothers me: Fitzgerald was a successful U.S. Attorney for 24 years, and was involved in the prosecution of everyone from Sheikh Omar Abdel Rahman to  Illinois Governor Rod Blagojevich. He’s not just some random political hack. He knows how federal prosecutions work. What if he’s telling it like it is?

I’ve heard plenty of people complain that federal prosecutors have too much power. Lawyer Harvey Silverglate has argued that the federal criminal code has become so expansive and is interpreted so broadly that the average American commits three felonies a day, at least according to the interpretations offered by U. S. Attorneys in past prosecutions. What this implies is that any federal prosecutors who decides to take a close look at your life will find something they can prosecute you for, and the longer they look, they more they’ll find.

Further, many federal laws are so vague and so harsh that it’s easy to find interpretations that can have you facing a lot of prison time. This leaves a lot of leeway to prosecutors in their charging decisions. For the same act, they maybe able to charge you with misdemeanor with no prison time, a felony that will get you a year in jail, or a special felony that comes with a 5-year mandatory minimum. This puts a lot of power in the hands of federal prosecutors.

So what if Fitzgerald is right, and the most important thing you can do is please the federal prosecutor?

If it’s true, it’s a damning indictment of the federal justice system that Fitzgerald has been part of for over two decades. If the law makes criminals of us all, and our freedoms can be taken at the whim of powerful prosecutors, then we no longer live under the rule of law but the rule of powerful men, and our freedom is a lie.

Sometimes it sure seems that way, but I sure hope Fitzgerald is wrong and Scott is right.

1-800-LAW-REP-4

Here’s a phone number worth memorizing if you live in Chicago:

1-800-LAW-REP-4

It sounds like marketing for some kind of cheesy lawyer, but it’s actually an 18-year old program that is supporting our Sixth Amendment right to counsel by filling in some of the gaps surrounding the Supreme Court’s decision in Gideon v. Wainwright, which was handed down 50 years ago today.

Gideon made it clear that the right to counsel in a criminal case didn’t just mean you had the right to bring a lawyer; it meant you had a positive right to have a lawyer. If you couldn’t afford one, the government had to provide one for you. This ruling created our public defender system.

(Public defenders are one of the few government programs that us libertarians can love. We may not be very fond of big government, but I can’t recall ever hearing a libertarian denounce the public defender system. If the government is going to spend money trying to screw us into the ground, they can damned well spend some money to defend our rights.)

However, as Jeff Gamso points out, Clarence Earl Gideon got his new trial, but the decision forever associated with his name doesn’t cover every situation in which a lawyer would be helpful:

Gideon had no lawyer to help him ask the Supreme Court to hear his case.  The court’s decision didn’t change that.  Nothing in the last 50 years has.  The accused has a right to an appointed lawyer at trial and on a first appeal.  If the state offers two levels of appeal (most do in most cases) he doesn’t have a right to a lawyer at the second.  He doesn’t have a right to a lawyer to pursue a collateral attack on his conviction through state or federal habeas corpus procedings.

There’s a similar problem at the front end: The defendant’s right to have a lawyer under Gideon doesn’t start until he becomes a defendant. You have the right to counsel at any time, but the government doesn’t have to provide you with a lawyer until it decides that you’re too poor to afford one on your own. And that doesn’t happen until a judge says so, which means that from the time a police officer first looks at you funny until the time the deputies stand you up in the courtroom, you’re on your own.

As you might expect, the kinds of people who choose public defense as their life’s work are not the kind of people who are happy with the limitations of Gideon, and they try to work around them. The Bronx Defenders, for example, are well known for providing a wide range of legal services related to criminal matters, and they’ll talk to anyone about a criminal matter at any time. They maintain a 24/7 hotline for helping people handle police encounters. “The ability to find legal advice before the formal assignment of a public defender can make all the difference and influence whether someone is arrested at all,” says Executive Director Robin Steinberg.

One of the reasons the Bronx Defenders can do this is that they’re organized as a private firm that provides public defense services under a contract. This gives them the latitude to receive money from other sources, including government grants and private donations, which they can use to fund additional legal services.

Here in Chicago, the Law Office of the Public Defender is part of the Cook County government, and therefore the Illinois state government, which limits its ability to provide extra legal services (although it does provide some non-criminal legal representation). Illinois public defense lawyers can only provide representation after they are appointed by a judge at their client’s first court appearance. (Gideon informs me that pretty much the same is true in Connecticut.) They can’t even talk to you about your case until that happens. The problem is, by the time you’ve been arrested and charged, you’ve probably already passed up several opportunities where a lawyer could have helped you.

Matt Haiduk, a crimlaw blogger from nearby Kane County, suggests these three signs that you need a criminal defense lawyer:

1. The police want to talk to you at the station.

2. They are reading you your Miranda rights or telling you that you have a right to remain silent.

3. Things get weird. [I.e. the cops do something that makes you uneasy.]

In none of those situations will you be able to get a lawyer from the Cook County Public Defender’s office. In fact, even if you are under arrest, you still have to wait for your first court appearance before the Public Defender’s office can help you. So what are you supposed to do in those situations?

That’s where 1-800-LAW-REP-4 comes in. It’s the 24/7 hotline run by First Defense Legal Aid, a nonprofit organization that provides free advice and representation to people who are arrested or detained by the Chicago Police. In fact, the Cook County Public Defender’s office FAQ recommends that parents call the FDLA if one of their children is arrested.

(This support from the Public Defender’s office is not surprising; the former Chief Executive, Edwin Burnette, is on the FDLA board. So are several current and former assistant public defenders, a few law professors, and a bunch of other local lawyers, including author Scott Turow and both Terry MacCarthy and his successor, Carol A. Brook, from the Federal Defender Program.)

The Chicago Commons Association launched the FDLA in 1995 to provide legal advice and representation for people in police custody. In 2003, they emerged as a standalone 501(c)(3) nonprofit corporation. With a surprisingly small budget (about $166,000 in 2011 according to IRS filings) they staff their 24-hour hotline and provide other services using over 100 volunteer lawyers and law students.

According to their most recent annual report, a parent or other legal guardian is the most likely caller for an arrestee, followed by peers, professional advocates (social services, the PD’s office), siblings, and other relatives. Clients themselves call the FDLA only about 2% of the time. FDLA lawyers visited clients in police stations 277 time in 2011. About 30% of these clients (37% of juveniles) were released without charges.

Those lawyers face some legal hazards of their own. Two years ago this month, FDLA volunteer lawyer Sladjana Vuckovic was visiting with a client in a police interrogation room, and she let him use her cell phone. Other local criminal defense lawyers claim this is not unusual, but perhaps because her client was accused of killing a police officer, prosecutors charged her with the crime of bringing contraband into a penal institution. The case went to trial, and in November of last year she was found not guilty.

In addition to operating the hotline and providing representation to people in police custody, FDLA has an educational Street Law program that teaches people, mostly juveniles, how to protect themselves and their rights during encounters with the police. In 2011 FDLA volunteers gave 130 presentations, reaching 3200 people. (They have a handout for those who want the short version.) They also work with a lot of community organizations and schools to get the word out.

Personally, I’m glad I heard about the FDLA. I realize that as an educated, gainfully-employed, middle aged white guy with no criminal record, my chances of being picked up by the police are relatively slim. Yet for as long as I can remember, I’ve always had the feeling that someday I’ll get arrested. And if or when that happens, I’d like to have a plan.

I know I’m supposed to Lawyer Up and Shut Up, but I’ve always had a problem with the lawyering up part because, despite being involved with the legal blogging community for years, I have no idea who I’d hire if I got into trouble. And shackled to a desk in a police station is a hell of a place to try to figure it out.

Now I know I can just call 1-800-LAW-REP-4.

Of course, for the time being at least, I’m pretty far from being indigent, so I’d probably feel obligated to make a donation large enough to cover the cost. Oh, what the heck…In celebration of the 50th anniversary of Gideon v. Wainwright, I just made a small donation through my employer’s matching gifts program. If you want, you can donate through the FDLA front page.

(Now if I can just find a public defender to hug…)

Poking Holes In the Cat

So, lately my wife and I have been poking holes in one of our cats.

Our brown tabby, Ripley, is getting on in years, and we’ve noticed he’s been resting more, eating less, and generally just slowing down. We figured it was just old age, but in January he suddenly got much worse, so we took him to his vet, who figured out that he was suffering from something called immune mediated hemolytic anemia, which meant his immune system was attacking his red blood cells. IMHA has a very high mortality rate, and our vet figured there was less than 50% chance he would survive, even with treatment.

They gave him a blood transfusion to restore some of the blood’s oxygen-carrying capacity, which immediately restored some of his vitality. Then they kept him for a week for additional treatment, which included a bunch of drugs and a second transfusion.

When he was released from the veterinarian hospital a few weeks ago, Ripley was OK, but he hasn’t been bouncing back as well as our vet would like him to. There have also been a couple of days in which he started to crash during the day — stopped eating and drinking, and stayed in one location all day — so we had to take him back to the vet so they could give him more drugs and rehydrate him.

Since his release, we’ve been giving him several drugs, including high doses of the steroid prednisone, which suppresses his immune response. It also has side effects, which could include the problems with appetite and sluggishness, and our vet decided it was time to taper it off, which we’re doing now.

Also, to make sure he’s hydrated, every day we put Ripley on a high work table, hang a bag of veterinary-grade lactated ringers solution off our bookshelves, pull Ripley’s skin so it forms a tent-shape away from his body, poke the needle in, and open up the valve until he’s received 150 milliliters of fluid under the skin.

Ripley’s holding on and doing okay this past week, so it’s probably helping.

Still, it seems like a very weird thing to do.

RipleyAtTheVet

Update: As it turns out, when I wrote this, Ripley was nearer the end than we knew. He will be missed.

Yeah, It Kinda Feels That Way…


Hat tip: Charlie Stross.

Putting Angry Words in Perspective

One of the reasons I’m not a criminal defense lawyer despite my obvious interest in the subject, is that I’m pretty sure it would make me angry all the time.

Even now, when I think about the things I hate about our criminal laws and the way those laws are applied, I get all worked up with simmering rage at the hubris and callousness of those who claim to protect us. The war on drugs, civil forfeiture, border control, violent cops, control-freak legislators, heartless prosecutors — I hate it all, I hate the people responsible for it, and I want them to suffer for the evil that they’ve done.

Eventually, I calm down. And then I write a blog post about it. What you read here is often the product of anger and frustration. Thank you for enabling me.

That little bit of anger serves me well as a blogger, but I’m glad that dealing with the criminal justice system is not my full-time job. I can’t imagine the stress of having to work within the system and having to struggle with all that bullshit every day, with much more than rhetoric on the line. I would probably say something in anger that I’d later regret.

Which brings me to criminal defense blogger Rick Horowitz, who wrote a scathing and angry post about way the criminal justice system will take away people’s rights bit by bit unless you fight over everything.

Not only was it angry, it was apparently also anger-making, because the next day, the courthouse deputies decided it was time for some payback:

…I put my bag on the x-ray machine belt, as always, and pulled out my identification to show, as always. But I was stopped.

“You have to empty your pockets.”

“What?,” I asked.

“You have to empty your pockets.”

“Why?”

The officer said something about a new security issue or something along those lines. He stated that they were making all court personnel and attorneys empty their pockets now.

“A court person went through just ahead of me,” I said, motioning in the direction the prosecutor had gone. “You didn’t check her.”

And then one of them told me it was because of my blog post yesterday. He even specifically referenced the sentence that they found so offensive. “So now you’re a security risk,” I was told.

Rick has since removed some of the offending material from his post — because on re-reading he agreed it went too far. (He’s a former Nobody’s Business co-blogger and a friend, so I won’t quote the excised material, but can find it online if you look.) What he wrote was incendiary, but it doesn’t really justify the response.

The Fresno County Sheriff’s Department, however, has proven that I was on the right track. In addition to the above, I went through two more complete searches — basically, every time I left the court, when I returned, I was searched again. They opened my bag, and then opened everything inside my bag, on the pretense that they were looking for “something metal” that showed up in the x-ray machine. What they did today proved that they can be a lawless force which, when it does not get its way, is to be both feared and resisted.

…At least a few attorneys — including me — think that there was a plan in place this morning to set up a situation where I could be given a beatdown, which almost certainly would have been followed by criminal charges against me for “resisting arrest,” or “assaulting an officer,” or something similar to that. Because that happens to more people than you could possibly imagine, more often than you would believe. And, as I said, there is reason to believe they were trying to set it up — reason enough that another attorney decided to stick around “just in case.” (Which is probably why it didn’t happen.)

I have to admit, my first reaction was that maybe Rick’s being a little paranoid. (A beatdown in the courthouse? Really?) But then I realized that the reason I don’t think of the Fresno County Sheriff’s Department as a bunch of feckless thugs is because I really don’t know anything about the Fresno County Sheriff’s Department. I mean, what if it’s run by some kind of psychopathic third-world-dictator-wannabe? You know, like Maricopa.

Today, as I said, I went through three complete searches. I suspect for a long time to come, I’m going to go through more. Until there are enough for me to go to court over it. Because there is no probable cause to search me. I have never done anything illegal, nor have I threatened to do anything illegal, nor would I do anything illegal. I’m carrying the same things in my bag today that I’ve carried every day for as long as I’ve been an attorney. My bag has been through their x-ray machine probably thousands of times over the years, and until today, I never had a problem.Why?

Because piss off a cop — even if it’s just by writing something they don’t like — and they will show you just how far from being public servants they have gone. They are our overlords.

I think that to put this in the right perspective we have to keep in mind Rick is a lawyer, meaning he writes and talks for a living. And that’s all he did in his blog post. He wrote some words. And when he showed up in court, he was just there to drop off some more words.

It was the Sheriff’s deputies who had shown up prepared to do violence. I’m not even talking about the purported plan for delivering a beatdown; I’m talking about their everyday job. If Rick or anyone else had tried to walk through the security checkpoint with going through the required rituals, the deputies were ready with their weapons — guns and batons and maybe tasers and pepper spray — prepared to do violence to anyone who defied them.

In the grand scheme of civilization, that’s a good thing. Sometimes violence is the only way to stop violence, and we need to defend ourselves and the important institutions of our society, which is why we have armies and police forces.

But shouldn’t the people who deal in violence be subject to much more scrutiny than those who deal in words? And shouldn’t they be just a little less sensitive?

I remember when Representative Gabrielle Giffords was shot, and all these politicians were getting on television and making pronouncements about inflammatory rhetoric and telling us to “tone it down”. For example:

But in Pima County, Ariz., Sheriff Clarence Dupnik suggested “all this vitriol” in recent political discourse might be connected to Saturday’s shootings. “This may be free speech,” he told reporters, “but it’s not without consequences.”

As I pointed out at the time, Sheriff Dupnik has his own SWAT team. Rick Horowitz and I and a hundred more bloggers like us couldn’t do as much damage in ten years as Dupnik’s SWAT team could do in one bad day. And within four months of my writing that, they had their bad day, when the Pima Sheriff’s office killed U.S. Marine Jose Guerena during an apparently pointless raid on his home.

One of the recurring themes of this blog has been that violence does not magically become non-violent just because it is approved by the criminal justice system. Capital punishment is still the taking of a human life, prison is still caging a human being like an animal, and SWAT raids are still a form of home invasion. They’re not exactly the same — because the police are presumably restrained somewhat — but the damage does not go away. We may permit this violence because we believe it is necessary to prevent greater harm, but it’s still harmful in itself.

Much police violence is not abusive but rather normal police activity. We probably don’t even think of it as violence, but it still takes a toll, as described so well by Nicholas K. Peart, a 23-year old black man living in New York city:

We were talking, watching the night go by, enjoying the evening when suddenly, and out of nowhere, squad cars surrounded us. A policeman yelled from the window, “Get on the ground!”

I was stunned. And I was scared. Then I was on the ground — with a gun pointed at me. I couldn’t see what was happening but I could feel a policeman’s hand reach into my pocket and remove my wallet. Apparently he looked through and found the ID I kept there. “Happy Birthday,” he said sarcastically. The officers questioned my cousin and friend, asked what they were doing in town, and then said goodnight and left us on the sidewalk.

Less than two years later, in the spring of 2008, N.Y.P.D. officers stopped and frisked me, again. And for no apparent reason. This time I was leaving my grandmother’s home in Flatbush, Brooklyn; a squad car passed me as I walked down East 49th Street to the bus stop. The car backed up. Three officers jumped out. Not again. The officers ordered me to stand, hands against a garage door, fished my wallet out of my pocket and looked at my ID. Then they let me go.

I was stopped again in September of 2010. This time I was just walking home from the gym. It was the same routine: I was stopped, frisked, searched, ID’d and let go.

These experiences changed the way I felt about the police. After the third incident I worried when police cars drove by; I was afraid I would be stopped and searched or that something worse would happen. I dress better if I go downtown. I don’t hang out with friends outside my neighborhood in Harlem as much as I used to. Essentially, I incorporated into my daily life the sense that I might find myself up against a wall or on the ground with an officer’s gun at my head.

That isn’t police brutality from a few bad cops, it’s the everyday behavior of New York’s finest. And it’s exactly what the police department wants them to do. Low-level violence of this sort is part of the job description.

If you think it’s no big deal, if you think “Oh, it’s just a stop-and-frisk,” or “Oh, it’s just an arrest,” then you’re missing the reality of what’s happening. As Molly Crabapple says,

Arrest is always violent. The NYPD may or may not break your ribs, but the process of arrest in America is still a man tying your hands behind your back at gunpoint and locking you in a cage. Holding cells are shit-encrusted boxes, often too crowded to sit down. Police can leave you there for three days; long enough to lose your job. If this seems obvious, I say it because the polite middle classes trivialize arrest. They talk about “keeping people off the streets.” They don’t realize that the constant threat of arrest is traumatic, unless it happens to them or their kids.

Getting back to Rick Horowitz’s confrontation, the Fresno County Sheriff’s police bring that threat of arrest to work every day. I wish they’d pay more attention to how they conduct themselves, and less attention to a guy who’s only bringing words.

The name’s Jorge Mario Bergoglio, but everybody calls me Psycho.

Does anyone else find it suspicious that the Catholic Church, which has complained about not having enough money because of scandals and reduced earnings from collection plates, elected the 33-1 long shot?

Who’s Responsible For a Wrongful Conviction?

I’m a fan of the TV show Castle, largely because of its character-based humor and the fact that it stars Nathan Fillion. Of course, being a show about a mystery writer who helps the New York police solve crimes, it does occasionally go over the top in its worship of the criminal justice system.

I especially remember one episode where the detective team discovered someone who had been wrongfully arrested by some other New York cops and been convicted of a crime they did not commit. The show’s lead detective soon gave the poor guy the good news that (I’m paraphrasing from memory) “The District Attorney discovered that your lawyer made some mistakes, and he’s going to release you soon.”

Crazy, right? It was the district attorney’s people who made the mistake of prosecuting an innocent man, and now they’re trying to blame his lawyer for not being able to stop them? Of course, it’s just a silly TV show.

Or is it?

The lawyer for a woman suing the city alleging a host of civil rights violations has, in an unusual legal turn of events, himself become a defendant in the civil case he filed.

In answering the lawsuit brought late last year by Nga Truong, who was charged by Worcester Police with killing her infant son four years ago based on what was later ruled to be a coerced confession, city lawyers have hit back with a third-party complaint against her lawyer, Edward P. Ryan Jr.

“Her lawyer allowed almost two years to pass before he made a motion to get her released by suppressing her confession. While there are numerous defenses in this case, our position on this point is that, if the city is somehow found liable for the excessive incarceration, then the lawyer who represented her also bears liability for her time in jail,” Mr. Moore said.

Now, I’m not a lawyer, so I’m not in a good position to criticize Ryan for taking too long to file his motion. For all I know, he might have had a good reason for the two year delay. Although Scott Greenfield is a lawyer, and he has doubts:

That said, the delay in submitting motions, assuming that they could have been submitted earlier, presents a second issue that merits concern. Too many lawyers fit their work on behalf of their clients into their schedule. They’ll get to motions when they find the time, or when the mood strikes. In the meantime, the client sits in jail, thinking that she has a lawyer working diligently on the case.

It’s not that client expects, or would be reasonable to expect, that the lawyer has no other clients, no other work, that might possibly interfere with the lawyer’s spending 24/7 on the defendant’s case. It’s expected and understandable.  But if you can’t make time to prepare and file motions for almost two years, good motions, then something is wrong.  No defendant should have to sit in a cell that long before her attorney has her case on the front burner.

Given that, I can even see where the Worcester police are going with their argument. It’s an argument that actually makes sense in other contexts. For example, if you hit a baseball through my living room window, you pretty clearly owe me damages to the tune of whatever it costs to repair one broken window. But if I know about the broken window and foolishly don’t repair it for a month, during which time two rainstorms blow water in and damage the furniture, walls, and flooring, there’s little chance a court will make you pay for all of that mess. Once I’m aware of the broken window, I have a certain responsibility to mitigate the damage, so all the damage that I could have prevented is my problem.

In the case of a wrongful conviction, I can think of a few reasons (although perhaps not legally sound reasons) why the rule about mitigating damages shouldn’t apply.

First of all, I’ll bet it just doesn’t. I’ll bet there’s already some legal doctrine or case law that covers this sort of thing.

Second, the Worcester police department had all the proof of a coerced confession in their hands and the city could have acted on it at any time. If you broke my window, you probably don’t have the right to enter my home to clean it up, but the District Attorney’s office surely has the power to undo its own mistakes and get innocent people out of prison.

Third, as I’ve argued before, wrongful imprisonment should be a strict liability offense. Grabbing people out of their homes and locking them in cages is an inherently dangerous activity that can do great harm to innocent people if something goes wrong. If it’s your job to do that sort of thing, you should be especially careful about it and take full responsibility for the consequences, including full responsibility for wrongfully imprisoning someone.

Sequestration — Bring It On

I’ve been reading President Obama’s helpful guide to the things that sequestration will force the goverment to cut (the link is to the Illinois version) and I’ve realized that most of the cuts from sequestration fall into two categories:

The first category consists of cuts that would be pretty damned awesome:

  • …Illinois will lose about $587,000 in Justice Assistance Grants that support law enforcement, prosecution and courts, crime prevention and education, corrections and community corrections, drug treatment and enforcement, and crime victim and witness initiatives…
  • …the automatic cuts would reduce loan guarantees to small businesses by up to approximately $900 million…
  • …The FBI and other law enforcement entities would see a reduction in capacity equivalent to more than 1,000 Federal agents…
  • …The Economic Development Administration’s (EDA) ability to leverage private sector resources to support projects that spur local job creation would be restricted…
  • …U.S. Customs and Border Protection (CBP) would not be able to maintain current staffing levels of border patrol agents and CBP officers as mandated by Congress. CBP would have to reduce its work hours by the equivalent of over 5,000 border patrol agents and the equivalent of over 2,750 CBP officers…
  • …The Transportation Security Administration (TSA) would reduce its frontline workforce, which would substantially increase passenger wait times at airport security checkpoints. TSA would need to initiate a hiring freeze for all transportation security officer positions in March, eliminate overtime, and furlough its 50,000 officers for up to seven days.

Intrusive busybodies, useless bureaucrats, politically connected businesses, and thugs with no respect for freedom. Fuck them all. And the Administration’s report leaves out the best part:

  • …the Drug Enforcement Administration will lose $166 million from its $2.02 billion staffing and appropriations budget…
  • DOD’s Drug Interdiction and Counter-Drug Activities budget of $1.6 billion will be reduced by $157 million
  • DOJ’s Interagency Crime and Drug Enforcement budget of $528 million will be reduced by $43 million
  • The DEA Diversion Control Fee Account budget of $335 million will be reduced by $25 million
  • The Office of National Drug Control Policy budget of $25 million will be reduced by $2 million
  • The High-intensity Drug Trafficking Areas Program budget of $239 million will be reduced by $20 million
  • “Other Federal Drug Control Programs,” with a total budget of $100 million, will undergo $8 million in cuts.

Don’t think of it as budget cuts, think of it as an investment in freedom. Reading that list makes me feel like the night before Christmas.

The second category of cuts, on the other hand, consists of threats that, if allowed to happen, should be grounds for impeaching President Obama:

…Up to 1,100 disadvantaged and vulnerable children could lose access to child care, which is also essential for working parents to hold down a job…

…around 5,230 fewer children will receive vaccines for diseases such as measles, mumps, rubella, tetanus, whooping cough, influenza, and Hepatitis B…

…up to 373,000 seriously mentally ill adults and seriously emotionally disturbed children could go untreated…

…At the major gateway airports, average wait times could increase by 30-50 percent. At the nation’s busiest airports, like Newark, JFK, LAX, and Chicago O’Hare, peak wait times could grow to over 4 hours or more. On the southwest land border, our biggest ports of entry in California and Texas could face wait times of 5 hours or more during peak holiday weekends and travel periods…

…Title I education funds would be eliminated for more than 2,700 schools, cutting support for nearly 1.2 million disadvantaged students…

…Cuts to special education funding would eliminate Federal support for more than 7,200 teachers, aides, and other staff who provide essential instruction and support to preschool and school-aged students with disabilities…

…More than 100,000 formerly homeless people, including veterans, would be removed from their current housing and emergency shelter programs, putting them at risk of returning to the streets…

…close to 8,900 homeless persons with serious mental illness would not get the vital outreach, treatment, housing, and support they need…

The federal budget is famously bloated and wasteful. Yet when forced to trim between 1 and 2 percent of the budget (depending how you count) these are the things Obama says he would cut.

Let’s put that in perspective. At the beginning of the year, the federal government unceremoniously (and with surprisingly little debate or media coverage) increased payroll taxes by 2 percent. And all over America, millions of middle-to-low income-families — anybody with earnings below the cap, really — quietly learned to live with a 2 percent cut in the family budget.

But now when the government is asked to cut its budget by about the same percentage, they say they’ll have to cut programs that help women and children, the sick and the disabled. It’s hard to interpret this as anything other than a threat.

This whole problem came to a head originally with the debt ceiling crisis in the summer of 2011, at which point Obama gave the Republicans everything they wanted and set up the sequestration plan in return for postponing the hard decisions until after the election. If the Democrats are right that the Republicans are holding us hostage, it’s only because the Democrats sold us out to them so they could stay in power.

Despite all this, my gut tells me that thoughtlessly imposing across-the-board cuts is a dumb idea. But you know what? We’ve been trying the dumb idea of profligate borrowing and spending since 2008 and it hasn’t done much to fix the economy. Could sequestration really be any worse than that mess? I say let’s try it and find out.

Everything Seems Evil When You Add Sex To It

One of the lessons I’ve learned from reading Maggie McNeill’s Honest Courtesan blog for the last couple of years is that opponents of sex work will try to make even the most routine business practices sound evil. I just finished a three-part think piece about some aspects of that, and already Maggie has pointed me to another.

I remember years ago reading some feminist anti-sex-work exposé of strip clubs which revealed that many clubs don’t even pay their dancers. In fact, the clubs were so exploitative that they actually made the dancers pay them. Shocking! And also, as it turns out, unclear on the concept of how strip clubs work.

More recently, as the Wichita Eagle reports, the Kansas Department of Labor has decided to crack down on this supposed exploitation:

The Kansas Department of Labor won a victory for strippers when the state Supreme Court ruled that exotic dancers are employees of the club where they work, not independent entertainment contractors.

So now the club will be required to treat strippers as employees, withholding taxes and providing unemployment insurance.

Meanwhile, here are some of what the Eagle piece refers to as “conditions inside the club”:

Club owner John Samples bought the majority ownership in Club Orleans in 2002. Two years later, he stopped paying the dancers a nominal salary, leaving tips from customers as their only source of income, according to court records. The court decision doesn’t require the club to pay the dancers a salary, because tips can be considered as wages under Kansas law.

This is some sort of Bizarro-world labor law. All of the money paid to the dancers is coming from the gentlemen who patronize the club, yet under Kansas labor law those payments are now considered to have been wages paid by the club, even though the club never payed the dancers any money.

According to the Labor Department, dancers were required to pay non-negotiable “rent” for use of the stage and dressing rooms, as well as extra fees for the disc jockeys and bouncers.

The rent was higher during peak business hours and the women paid extra to use the more private “VIP” and “Champagne” rooms to entertain guests.

That really makes it sound exploitive, doesn’t it? Especially with the scare quotes around “rent.” Not only was the club not paying the dancers, but the dancers were being force to pay the club, and pay even more to use the special rooms.

One thing that’s notably missing from the Eagle article — and many other accounts of such supposed exploitation of women by strip clubs  — is any mention of the reason why dancers put up with such conditions. You can read all about how much the dancers are paying and what kinds of rules they have to follow without coming across any mention of the fact that exotic dancers can easily earn $1000 or more in tips every week. That’s for less than 40 hours of work on a job that has fairly flexible hours and no educational requirements.

On the other hand, I think the club’s defense that the dancers are independent contractors is nonsense that has no relation to economic reality. After all, if the dancers were independent contractors, the club would still be paying them for the work they’re doing, just not as employees. (In contracting jargon, they’d be getting paid on a 1099 instead of a W-2.) But the club isn’t paying them a dime.

So what does that make the dancers then? Well, as they said during Watergate, if you want to understand what’s really going on, you have to follow the money. And the money is flowing from the dancers to the club. You know what that makes them with respect to the club?

Customers.

That’s what you call people who pay a business for services. The gentlemen patrons are customers because they pay the club a door fee for the right to come in and see the dancing girls, and the dancing girls are customers because they pay the club a house fee for the right to come in and sell dances to the gentlemen patrons. Both the men and the dancers are customers of the club.

That may sound crazy, but it’s not an uncommon business arrangement for vendors to pay for a venue in which to conduct business. Flea markets operate this way, for example. Chicago’s Randolph Street Market charges consumers $10 to come in and shop, and they charge vendors $75 to $300 for the right to operate a display space and sell stuff to the consumers. The strip club is doing something very similar.

But what about all those rules the dancers have to follow, as if (according to the Kansas Department of Labor) they were employees?

House rules governed what the dancers could do in their shows and the prices they had to charge for specific types of dances. Employees of the club would enforce the price structure on the dancers and the customers, court records said.

The women were required to sign in with the bouncer at the beginning of a shift and weren’t allowed to leave the premises until the end of the shift, according to the Labor Department.

Again, that’s no different from how a flea market operates. The Randolph Street Market has tons of rules for vendors as well. Some of them are there to protect consumers, other are designed to keep vendors from interfering with each other’s business, and some of them are for the benefit of the venue owner.

Note that some of the club rules exist for the benefit of the dancers. When the article says “employees enforce the price structure” it means that the club does not allow dancers to offer discounts. This benefits the dancers because they don’t have to compete against each other on price. Essentially, it’s a miniature price-fixing cartel. As with all cartels, cheating is a problem. Dancers have an incentive to draw customers away from other dancers by offering lower prices, which encourages the other dancers to cheat by lowering their prices as well. But when they all lower their prices, they all lose money. The club’s rules about the price structure prevent this. Essentially, the dancers are paying the club to provide enforcement of the cartel rules.

The Eagle article doesn’t mention it, but many strip clubs enforce is a “no-touching” rule, or at least a “no handjobs, no blowjobs, no sex” rule. Again, this is cartelization to reduce competition. If some of the dancers offered “extras,” then the other dancers would be faced with the choice of either losing customers to those dancers or offering extras themselves. However, the dancers can avoid the pressure to offer extras by agreeing collectively not to do so. Again, the dancers pay the club to prevent cheating that would hurt them all.

Even the rules setting work hours are part of the enforcement services provided by the club. If too many dancers show up at one time, there won’t be enough gentlemen patrons to go around, and the short-term average per-dancer income will be low for that night. On the other hand, if too few dancers show up for some shifts, the gentlemen patrons won’t be able to get dances and over the long term they’ll stop showing up, which will also reduce the dancers’ income.

The latter situation is a real concern with the flea markets’ big brother, the shopping mall. One of the reasons consumers like shopping malls is because they can hit several stores in a single trip. If some of those stores keep shorter hours, however, the malls will be less beneficial for consumers, which will naturally reduce the number of consumers coming to the mall, which will in turn reduce the sales volume of all the stores at the mall, not just the ones that are closed. For this reason, malls set standardized hours of operation and assess penalties against stores that don’t comply.

Something similar goes on with department store makeup counters and jewelry counters. Many of them are stocked and staffed not by the department store but by the manufacturers, who have to pay the store for the right to sell their product there. The contracts include detailed rules about hours of operation and staff training to ensure that store patrons receive the expected level of service.

I’m not saying strip club owners are saints who only want to help the poor dancing girls. They’re in it for themselves, trying to make some money by mediating the transactions between the dancers and their customers. Sometimes they do this in direct zero-sum opposition to the dancers’ interests — by charging house fees, for example — but to get dancers to pay those fees, they have to offer something of value — the venue, a DJ, a stage with a pole and flattering lighting, booze, bartenders, waitresses, snacks, parking, security, advertising, credit card processing, and enforcement of standards of conduct and pricing. They’re selling a service. Just like any other business.

Alarming Asteroid News…If It Were True

Yesterday, Roger Ebert tweeted:

Bad luck. The asteroid that came so close to Earth is coming baaaaak. dld.bz/chPtq

Well, of course. It’s a known near-Earth object. They do that by definition. But the linked article by Andrew Malcolm at Investor’s Business Daily was a little more alarming than that, at least until I realized he was making stuff up:

Now, about that other bad news. According to the same computer calculations, in 2080 the orbit of 2012 AD 14, if unaltered in these next 67 years by some super-natural force like Bruce Willis, will slam into Earth at almost 18,000 miles an hour.

That explosive encounter, NASA says, will release about 2.5 megatons of energy into the atmosphere, causing “regional devastation.”

Um. No.

First of all, there’s no asteroid called “2012 AD 14.” The proper designation of the asteroid that just flew past the Earth is “2012 DA14″ indicating that it was the 351st object logged with the Minor Planet Center in the second half of February 2012. (Whole ugly numbering system explained here.)

Second, the day after it passed the Earth — and two days before the publication date on Andrew Malcolm’s article — it was removed from the Sentry Risks Table. That’s the up-to-date listing of all potential collisions by known asteroids for the next 100 years.

Newly discovered asteroids get added to this list if the margin of error for their projected orbital track could possibly allow them to hit the Earth on one or more dates in the next 100 years. As the asteroids are repeatedly observed over the years, scientists refine their estimate of the orbit, and the shrinking margin of error reduces the number of possible dates for an impact. For example, the top item currently has a 1 in 59,000 chance of hitting the earth some time after 2078. This means that that the orbital track is good enough to eliminate the possibility of an impact at any earlier date. Eventually, when no possible impact dates remain in the next 100 years, the object is removed from the table.

Because 2012 DA14 was removed the day after its closest approach, I’m pretty sure what happened is that it came in range of so many telescopes and radar systems that its orbit has been thoroughly pinned down that there was no longer any doubt that it will keep missing the Earth for the next 100 years. Indeed, the Minor Planet Center records 297 observations of the orbit of 2012 DA14 on February 16th alone.

There are still many as-yet-undiscovered near-Earth asteroids out there, some of them probably quite large. It’s possible — arguably inevitable — that one of them will hit us some day. But not 2012 DA14. At least not soon. We know it far too well.

The Outrageous Park Doctrine

For some reason, the folks at Public Citizen sent me a hardcopy of their Health Letter, and at the back they have a feature titled “Outrage of the Month!” This month’s example titled “More About Drug Industry Lawlessness” by Sidney M. Wolfe, M.D. is about regulatory violations by pharmaceutical companies, and it’s definitely outrageous, but not for the reason he thinks.

Eric Blumberg, deputy chief counsel for litigation at the FDA, pulled no punches. Commenting on the growing, billions-per-year monetary fraud settlements by the drug industry, he stated: “Money is clearly not doing the job; qui tam (whistleblower) complaints are still falling across my desk like snowflakes! We need to employ a ‘bigger hammer,’ to send people to jail.” He advocated, as he has previously, greater use of the so-called Park Doctrine, which allows prosecutors to hold corporate executives personally responsible for regulatory infractions without need to prove prior knowledge or intent to defraud. Blumberg pointed out that under the Park Doctrine, corporate executives and managers not only have a positive duty to seek out and take steps to eliminate fraud, but also a duty to put into place policies and procedures to prevent violations. This duty, he stated, cannot be delegated to lower-level executives or employees.

[Emphasis in the original.]

As the emphasized portion highlights — and in context Wolfe clearly thinks this is a great idea — FDA deputy counsel chief Eric Blumberg wants to eliminate the mens rea requirement in American criminal law, at least for some things that piss off the FDA. He literally wants to be able to charge drug company executives as criminals for things they they didn’t even know about.

Apparently this outrage is already used for some purposes by the FDA, because it’s mentioned in their Regulatory Procedures Manual. The summary of the Park Doctrine is chilling:

The Park Doctrine, as established by Supreme Court case law, provides that a responsible corporate official can be held liable for a first time misdemeanor (and possible subsequent felony) under the Federal Food, Drug, and Cosmetic Act (“the Act”) without proof that the corporate official acted with intent or even negligence, and even if such corporate official did not have any actual knowledge of, or participation in, the specific offense.

Doctor Wolfe apparently thinks this is a good thing. I wonder how he’d feel if his profession was regulated the same way, and doctors could be jailed for billing errors by their clerical staff. (Then again, his bio makes it sound like he hasn’t actually treated a patient in 40 years, so who knows?)

As you might suspect, the mens rea requirement has been eroding for a while now, thanks to the leviathan regulatory state:

The mens rea requirement of the criminal law embodies the fundamental principle that punishment requires personal fault.

However, this principle also renders the criminal law a very poor mechanism for economic regulation. Regulation is not concerned with punishing wrongdoing, but with ordering human interaction so as to improve social welfare. To achieve this end, regulation must prohibit not merely conduct that is wrongful in itself (in lawyers’ Latin, malum in se), but any conduct that would thwart the overall regulatory scheme even when it is not wrongful in itself (malum prohibitum). When such regulatory offenses are embodied within the criminal law, the assumption that everyone is on notice of what the law requires–that ignorance of the law is no excuse–does not hold. Citizens may violate  malum prohibitum laws without personal fault–without a guilty mind. To the extent that the mens rea requirement prohibits punishment in such cases, it undermines the efficacy of the regulatory scheme–something that suggests that regulation is best enforced administratively through civil sanctions.

Unfortunately, at an ever-accelerating rate over the course of the 20th and 21 st centuries, federal and state governments have elected to employ the criminal law as a means of achieving regulatory ends. To do so, they have created a myriad of criminal offenses known as “public welfare offenses” that would be virtually unenforceable if the government had to prove that they were committed intentionally. As a result, Congress and the state legislatures did away with the  mens rea  requirement for such offenses, allowing citizens to be convicted of a crime even if their violation was merely inadvertent or was entirely innocent. Further, under what is called the “responsible corporate officer doctrine”, supervisors may be punished for the inadvertent or innocent violations of their subordinates.

“Responsible corporate officer doctrine” is another term for the Park Doctrine.

It’s never been an excuse in criminal law that you didn’t know that what you were doing was a crime (no matter how many thousands of pages of law you’re supposed to obey), and I guess now it’s not even an excuse that you didn’t know a crime was going on. I guess we should be thankful that, at least for the moment, they still have to tell us what crime we’re accused of.

The State of the Union in 2013

The official Whitehouse web page on the State of the Union speech asks as to give our responses, so as is the tradition at Windypundit, I have a few thoughts. In a break from tradition, however, instead of posting the whole speech, I’ll just post a few excerpts

Tonight, thanks to the grit and determination of the American people, there is much progress to report. After a decade of grinding war, our brave men and women in uniform are coming home. After years of grueling recession, our businesses have created over six million new jobs. We buy more American cars than we have in five years, and less foreign oil than we have in 20. Our housing market is healing, our stock market is rebounding, and consumers, patients, and homeowners enjoy stronger protections than ever before.

Your mileage may vary.

So, together, we have cleared away the rubble of crisis, and we can say with renewed confidence that the State of our Union is stronger.

Hey, the state of the union is strong. Who saw that coming?

But we gather here knowing that there are millions of Americans whose hard work and dedication have not yet been rewarded. Our economy is adding jobs — but too many people still can’t find full-time employment. Corporate profits have skyrocketed to all-time highs — but for more than a decade, wages and incomes have barely budged.

Two things: First, corporate profits are paid to shareholders, where they are counted as income. So somebody must be getting the money.

Second, most economists believe that the income statistics understate the welfare increase due to advancing technology. Our phones are better, our cars are better, our computers are better. These things are hard to convert to a dollar value, so in the interest of reliable measurement, they are left out of the calculation. I’m not saying it’s tons better, but it’s better.

It is our unfinished task to make sure that this government works on behalf of the many, and not just the few; that it encourages free enterprise, rewards individual initiative, and opens the doors of opportunity to every child across this great nation.

Remember those phrases. I have a feeling I’ll be mentioning them again.

Over the last few years, both parties have worked together to reduce the deficit by more than $2.5 trillion — mostly through spending cuts, but also by raising tax rates on the wealthiest 1 percent of Americans. As a result, we are more than halfway towards the goal of $4 trillion in deficit reduction that economists say we need to stabilize our finances.

I’m not sure exactly what he’s talking about, but that sort of statement about deficit reduction usually just means that our current plan for the next ten years is to spend $4 trillion less than our previous plan for the next ten years. It doesn’t mean we’ll actually spend less than we have been, and anyway it’s all kind of theoretical at this point.

Already, the Affordable Care Act is helping to slow the growth of health care costs.

Actually, there’s some evidence it’s increasing some costs…which is, I guess, not incompatible with slowing the growth…well played Mr President, well played.

Our first priority is making America a magnet for new jobs and manufacturing. After shedding jobs for more than 10 years, our manufacturers have added about 500,000 jobs over the past three. Caterpillar is bringing jobs back from Japan. Ford is bringing jobs back from Mexico. And this year, Apple will start making Macs in America again.

God, it’s always about manufacturing with politicians! Like the rest of us don’t count. Only about 9 percent of the people have manufacturing jobs. Does anybody remember “make sure that this government works on behalf of the many, and not just the few” from only a few paragraphs back? I guess sometimes government does work just for the few.

So tonight, I’m announcing the launch of three more of these manufacturing hubs, where businesses will partner with the Department of Defense and Energy to turn regions left behind by globalization into global centers of high-tech jobs. And I ask this Congress to help create a network of 15 of these hubs and guarantee that the next revolution in manufacturing is made right here in America. We can get that done.

Industrial policy. Because that always works.

Now, if we want to make the best products, we also have to invest in the best ideas. Every dollar we invested to map the human genome returned $140 to our economy — every dollar.

Yes. I agree. If we’re going to invest in research, it should be in the kind of basic science that benefits everybody. That’s generally the sort of thing where a little government investment can go a long way.

But for the sake of our children and our future, we must do more to combat climate change. Now, it’s true that no single event makes a trend. But the fact is the 12 hottest years on record have all come in the last 15. Heat waves, droughts, wildfires, floods — all are now more frequent and more intense. We can choose to believe that Superstorm Sandy, and the most severe drought in decades, and the worst wildfires some states have ever seen were all just a freak coincidence. Or we can choose to believe in the overwhelming judgment of science — and act before it’s too late.

That’s not quite how the science works. It’s almost impossible to attribute a single weather event — such as a hurricane or a drought — to climate change. Sometimes, the weather just does what it does. It really could just be a freak coincidence. Global warming is proven by statistics, not anecdotes.

I’m also issuing a new goal for America: Let’s cut in half the energy wasted by our homes and businesses over the next 20 years. We’ll work with the states to do it. Those states with the best ideas to create jobs and lower energy bills by constructing more efficient buildings will receive federal support to help make that happen.

Actually, lower energy bills should be their own reward. If that’s not good enough, perhaps it’s time to increase the cost of energy.

So tonight, I propose a “Fix-It-First” program to put people to work as soon as possible on our most urgent repairs, like the nearly 70,000 structurally deficient bridges across the country. And to make sure taxpayers don’t shoulder the whole burden, I’m also proposing a Partnership to Rebuild America that attracts private capital to upgrade what our businesses need most: modern ports to move our goods, modern pipelines to withstand a storm, modern schools worthy of our children. Let’s prove that there’s no better place to do business than here in the United States of America, and let’s start right away. We can get this done.

Hey, giving out public construction contracts! Obama really is from Chicago! I guess sometimes government does work just for the few.

Right now, there’s a bill in this Congress that would give every responsible homeowner in America the chance to save $3,000 a year by refinancing at today’s rates. Democrats and Republicans have supported it before, so what are we waiting for? Take a vote, and send me that bill. Why would we be against that? Why would that be a partisan issue, helping folks refinance? Right now, overlapping regulations keep responsible young families from buying their first home. What’s holding us back? Let’s streamline the process, and help our economy grow.

I wish I knew what he was talking about here. Government promotion of the idea that banks should loan money to everyone who wants a home was a big cause of the mortgage crisis.

And that has to start at the earliest possible age. Study after study shows that the sooner a child begins learning, the better he or she does down the road. But today, fewer than 3 in 10 four year-olds are enrolled in a high-quality preschool program. Most middle-class parents can’t afford a few hundred bucks a week for a private preschool. And for poor kids who need help the most, this lack of access to preschool education can shadow them for the rest of their lives. So tonight, I propose working with states to make high-quality preschool available to every single child in America. That’s something we should be able to do.

Hey, more jobs for teachers! I guess sometimes government does work just for the few. I mean, this may not be a bad idea, but it’s also a handout to Democratic supporters.

So tonight, I ask Congress to change the Higher Education Act so that affordability and value are included in determining which colleges receive certain types of federal aid. And tomorrow, my administration will release a new “College Scorecard” that parents and students can use to compare schools based on a simple criteria — where you can get the most bang for your educational buck.

You could also let the banks take more risk on student loans and restore the right of college students to declare bankruptcy. You’ll get more bang for your bucks when the people providing the bucks have more skin in the game.

Real reform means strong border security, and we can build on the progress my administration has already made — putting more boots on the Southern border than at any time in our history and reducing illegal crossings to their lowest levels in 40 years.

The reduction in immigration is almost certainly because our economy tanked, not because of Obama’s odious border enforcement.

Real reform means establishing a responsible pathway to earned citizenship — a path that includes passing a background check, paying taxes and a meaningful penalty, learning English, and going to the back of the line behind the folks trying to come here legally.

Again, there is no frickin’ line. Not unless you actually start letting them in. Although maybe that’s what he means with this part:

And real reform means fixing the legal immigration system to cut waiting periods and attract the highly-skilled entrepreneurs and engineers that will help create jobs and grow our economy.

…Tonight, let’s declare that in the wealthiest nation on Earth, no one who works full-time should have to live in poverty, and raise the federal minimum wage to $9.00 an hour.We should be able to get that done.

The key phrase being “no one who works.” The general rule of demand is that people buy less of something when its price goes up, so raising the minimum wage should reduce the number of available jobs. As it happens, however, econometrics studies have found little if any effect on jobs from raising the minimum wage (probably because low labor mobility forces workers to take below-market jobs). But if we keep raising it, eventually we’ll get it high enough to start killing jobs. I hope this isn’t the time.

In fact, working folks shouldn’t have to wait year after year for the minimum wage to go up while CEO pay has never been higher.

What, other than class warfare, do those things have to do with each other? CEO’s get lots of money for a variety of reasons, not all of them good, but that’s a problem of corporate governance that has little to do with minimum wage policies.

Tonight, let’s also recognize that there are communities in this country where no matter how hard you work, it is virtually impossible to get ahead. Factory towns decimated from years of plants packing up. Inescapable pockets of poverty, urban and rural, where young adults are still fighting for their first job. America is not a place where the chance of birth or circumstance should decide our destiny. And that’s why we need to build new ladders of opportunity into the middle class for all who are willing to climb them.

Propping up failed cities is not a good policy. Cities with shrinking populations should make adjustments to what they’ve become.

Let’s offer incentives to companies that hire Americans who’ve got what it takes to fill that job opening, but have been out of work so long that no one will give them a chance anymore. Let’s put people back to work rebuilding vacant homes in run-down neighborhoods.

The homes are vacant because people don’t want to live there. Why fight it? Tear down the vacant homes and turn them into parks. Or let neighbors buy them to expand their plots, as larger play areas for children or as small farms for locally-grown food. Or maybe car parks. Really, just do whatever works when population density declines.

And this year, my administration will begin to partner with 20 of the hardest-hit towns in America to get these communities back on their feet. We’ll work with local leaders to target resources at public safety, and education, and housing.

These cities are emptying out. They don’t need housing.

We’ll give new tax credits to businesses that hire and invest.

No. Please don’t. It will just distort business decision making to try to score some tax relief, probably by gaming the system. Also, if you do this, then businesses that did the hard work of hiring and investing last year will then be forced have to compete against businesses that got a government handout this year. That’s not fair.

Now, as we do, we must enlist our values in the fight. That’s why my administration has worked tirelessly to forge a durable legal and policy framework to guide our counterterrorism efforts. Throughout, we have kept Congress fully informed of our efforts. I recognize that in our democracy, no one should just take my word for it that we’re doing things the right way. So in the months ahead, I will continue to engage Congress to ensure not only that our targeting, detention and prosecution of terrorists remains consistent with our laws and system of checks and balances, but that our efforts are even more transparent to the American people and to the world.

Obama has promised transparency before, and he failed to deliver. Heck, he’s actively fought transparency. The only prosecutions of those involved in torture under the Bush administration have been those who blew the whistle on it.

America must also face the rapidly growing threat from cyber-attacks. Now, we know hackers steal people’s identities and infiltrate private emails. We know foreign countries and companies swipe our corporate secrets. Now our enemies are also seeking the ability to sabotage our power grid, our financial institutions, our air traffic control systems. We cannot look back years from now and wonder why we did nothing in the face of real threats to our security and our economy.And that’s why, earlier today, I signed a new executive order that will strengthen our cyber defenses by increasing information sharing, and developing standards to protect our national security, our jobs, and our privacy.

That doesn’t sound good…

But now Congress must act as well, by passing legislation to give our government a greater capacity to secure our networks and deter attacks. This is something we should be able to get done on a bipartisan basis.

He says “secure our networks.” I hear “control our networks.”

Now, even as we protect our people, we should remember that today’s world presents not just dangers, not just threats, it presents opportunities. To boost American exports, support American jobs and level the playing field in the growing markets of Asia, we intend to complete negotiations on a Trans-Pacific Partnership. And tonight, I’m announcing that we will launch talks on a comprehensive Transatlantic Trade and Investment Partnership with the European Union — because trade that is fair and free across the Atlantic supports millions of good-paying American jobs.

Free trade is always good. If that’s what this is (and the whining from the protectionist left suggests it is) then it’s a good thing.

We also know that progress in the most impoverished parts of our world enriches us all — not only because it creates new markets, more stable order in certain regions of the world, but also because it’s the right thing to do. In many places, people live on little more than a dollar a day. So the United States will join with our allies to eradicate such extreme poverty in the next two decades by connecting more people to the global economy; by empowering women; by giving our young and brightest minds new opportunities to serve, and helping communities to feed, and power, and educate themselves; by saving the world’s children from preventable deaths; and by realizing the promise of an AIDS-free generation, which is within our reach.

That all sounds real good. I hope it happens.

In defense of freedom, we’ll remain the anchor of strong alliances from the Americas to Africa; from Europe to Asia. In the Middle East, we will stand with citizens as they demand their universal rights, and support stable transitions to democracy.

More freedom in the world. Sounds great. See if you can send a little of that freedom our way while you’re at it.

Defending our freedom, though, is not just the job of our military alone. We must all do our part to make sure our God-given rights are protected here at home.

Then stop violating our rights. That would be doing your part!

Of course, what I’ve said tonight matters little if we don’t come together to protect our most precious resource: our children.

Protecting the children. That never ends well, legislatively speaking. In this case, it’s gun control:

It has been two months since Newtown. I know this is not the first time this country has debated how to reduce gun violence. But this time is different. Overwhelming majorities of Americans — Americans who believe in the Second Amendment — have come together around common-sense reform, like background checks that will make it harder for criminals to get their hands on a gun. Senators of both parties are working together on tough new laws to prevent anyone from buying guns for resale to criminals. Police chiefs are asking our help to get weapons of war and massive ammunition magazines off our streets, because these police chiefs, they’re tired of seeing their guys and gals being outgunned.

If you want to get “weapons of war…off our streets” then stop giving them to police departments!  These guys and especially these guys are not outgunned. And neither was this guy, or these guys. If you want to get weapons of war off the streets, you go first. Reverse the trend toward increasingly militarized police forces.

But as Americans, we all share the same proud title — we are citizens. It’s a word that doesn’t just describe our nationality or legal status. It describes the way we’re made. It describes what we believe.

It also describes the rights we’re supposed to have and the freedoms that the government is supposed to protect.

It captures the enduring idea that this country only works when we accept certain obligations to one another and to future generations, that our rights are wrapped up in the rights of others; and that well into our third century as a nation, it remains the task of us all, as citizens of these United States, to be the authors of the next great chapter of our American story.

I suppose it does. My chapter would not include the War on Drugs, grabby TSA agents, vast armies of border guards, or cops and other government officials that hate us for our freedoms.

On the Significance of Mass Shooters

Over at Reason, Nick Gillespie takes a look at spree-killer (and ex-cop) Christopher Dorner’s “manifesto” and pronounces it useless:

If there is a message buried deep within Dorner’s incoherent litany of recriminations, anger, and random name-checks, it’s this: People who go on shooting sprees typically tell us very little about society at large. They are by definition far, far beyond the range of normal (or even abnormal) behavior and, as such, shouldn’t be used to generalize about larger social forces at work.

That sounds right to me, but let’s put some numbers to it:

Mother Jones magazine (unlikely to downplay shooting statistics) counts 29 people who committed mass shootings in this country in the last decade. In that same period, the United States had 50 Nobel prize winners.

Using an average of 3 shootings per year, and making the unrealistic assumption that each shooter lives out his full U.S. life expectancy of almost 80 years, that works out to a total of 240 mass shooters among us, many in jail (and many only among us in theory by my unrealistic assumption) in a population of over 313 million. That’s less than one in a million of us, even by the most generous assumptions. By comparison, we have over 400 billionaires.

These killers do not represent us. They are nothing like us.

ICE Agents Got That Can’t-Throw-People-In-Jail Blues

My previous post on immigration discussed the Obama administration’s proposal for immigration reform. I wasn’t thrilled with it, and I laid much of the problem with the abusive use of power by the Immigration and Customs Enforcement agency.

So now today I read that Chris Crane, president of the ICE employees’ union, wants its agents to have even more power.

[T]he National ICE Council 118, which represents agents in the Department of Homeland Security’s immigration enforcement wing, is demanding broader latitude to arrest and deport undocumented immigrants.

You know, I don’t like it when unions tell businesses how to operate — when they don’t allow truck drivers to help unload trucks, or conference hall exhibitors to set up their own exhibits — but that sort of thing pales in comparison to my hatred for law enforcement agencies that tell us what our laws should be.

Crane highlighted limited authority to arrest and deport undocumented immigrants as one of the biggest contributors to low morale. In particular, he singled out the Obama administration’s Deferred Action for Childhood Arrivals program, which grants tens of thousands of young immigrants a temporary reprieve from deportation.

Said Crane, “News has spread quickly through illegal alien populations within jails and communities that immigration agents have been instructed by the agency not to investigate illegal aliens who claim protections from immigration arrest under DACA.” Additionally, he bemoaned the fact that current policy prohibits ICE from prosecuting individuals for illegal entry or overstaying a visa unless they had also been convicted for criminal misdemeanors.

So your fakey police job turns out not to allow you to be as aggressive as you’d hoped? Boo fuckin’ hoo. If you don’t like it, quit.

The result, suggested Crane, was widespread “low morale” among ICE agents, which he implied may have contributed to “the tragic shooting in a Los Angeles ICE office last year, in which an ICE Agent shot his own supervisor and was himself shot and killed by another ICE employee.”

Let me get this straight. Crane’s people are shooting each other, and he thinks that’s a great argument for giving them even more power and responsibility?

God, what a whiny little shit. I mean, what kind of psychopathic fuck whines about how his feelings are hurt because he can’t throw enough people in jail?

Taking a Look at Obama’s Immigration Reform

I just got an email from Cecilia Muñoz, who is the Director of President Obama’s Domestic Policy Council, outlining the administration’s proposal for immigration reform. Rather than use the abbreviated description in the email, I’ll use the slightly wordier summary on the Whitehouse web site:

FACT SHEET: Fixing our Broken Immigration System so Everyone Plays by the Rules

“So everyone plays by the rules” is a worrisome phrase. The biggest problem with our immigration system is not some people are not playing by the rules, but that the rules themselves are stupid, arbitrary, and cruel. One of the most effective ways to get people to play by the rules is to have good rules.

America’s immigration system is broken. Too many employers game the system by hiring undocumented workers and there are 11 million people living in the shadows.  Neither is good for the economy or the country.

If we’re going to complain that 11 million people are hiding, let’s be clear about who they’re hiding from. They’re not living in the shadows because they’re afraid of their employers; they’re living in the shadows because they’re afraid of the Immigration and Customs Enforcement agency.

The page goes on to outline 4 key principles of “President Obama’s commonsense immigration reform proposal”:

Continuing to Strengthen Border Security: President Obama has doubled the number of Border Patrol agents since 2004 and today border security is stronger than it has ever been.  But there is more work to do.   The President’s proposal gives law enforcement the tools they need to make our communities safer from crime.  And by enhancing our infrastructure and technology, the President’s proposal continues to strengthen our ability to remove criminals and apprehend and prosecute national security threats.

Doubling border security and building wall sounds wasteful, as does giving law enforcement “the tools they need to make our communities safer from crime,” which also sounds like it will lead to some sort of abridgment of our rights.

Cracking Down on Employers Hiring Undocumented Workers: Our businesses should only employ people legally authorized to work in the United States. Businesses that knowingly employ undocumented workers are exploiting the system to gain an advantage over businesses that play by the rules. The President’s proposal is designed to stop these unfair hiring practices and hold these companies accountable.  At the same time, this proposal gives employers who want to play by the rules a reliable way to verify that their employees are here legally.

There are a couple of things very wrong with that paragraph. First of all, it shouldn’t be the job of employers to enforce federal immigration policy. That’s the job of the United States government. And just because the government can’t do its job, doesn’t mean they should push these responsibilities onto private employers, turning every business owner into an unpaid ICE agent.

(Some of you may think that’s crazy talk, but it used to be the law of the land up until sometime in the 1980′s. Before that, nobody had to show ID and fill out an I-9 form to take a job. Worrying about an employee’s immigration status just wasn’t the employer’s job, nor had it ever been.)

The second problem is that the President and Congress really ought to ask themselves why employers that hire illegal immigrants are able to “gain an advantage over businesses that play by the rules.” Is it because those rules are bad for business? In that case, wouldn’t it make more sense to get rid of the bad rules? Or maybe it’s because illegal immigrants can be exploited. But the reason they are open to exploitation is because they can be imprisoned and deported if they come to the attention of the authorities. If you’re working illegally in the U.S. and you get cheated (or for that matter, if you get robbed or raped or beaten), do you go to the authorities? Or do you try to handle it as best you can on your own?

Earned Citizenship: It is just not practical to deport 11 million undocumented immigrants living within our borders.

Not only is it impractical, it’s also a very cruel thing to do, ripping all those people away from their friends, families, and communities. Someone has to say it.

The President’s proposal provides undocumented immigrants a legal way to earn citizenship that will encourage them to come out of the shadows so they can pay their taxes and play by the same rules as everyone else.  Immigrants living here illegally must be held responsible for their actions by passing national security and criminal background checks, paying taxes and a penalty, going to the back of the line, and learning English before they can earn their citizenship.

That last sentence has a lot of bad parts. National security and criminal background checks are a good idea — we don’t want terrorists and gangsters to get a free pass — but the devil is in the details, and given that ICE has no sense of proportion and uses their own private definition of criminality by treating misdemeanors as felonies, and dismissals as convictions — I’m more than a little worried about how much damage they can do.

I’m not sure what taxes and penalties they’re talking about here, but I have similar concerns about how those will be calculated. It’s one thing if the IRS just grinds through the process for back taxes, and quite another if the the monkeys at ICE will be assessing penalties of their own.

As for “going to the back of the line,” that’s complete nonsense. “The line” is why so many immigrants come here illegally in the first place. The quota for immigrants who just want a job — and have no special skills or relatives living here — is only about 10,000 people per year. Before the economy collapsed, illegal immigration was at least 500,000 people per year. If they had waited in line, it would have taken 50 years to get a work visa. Nobody is willing to wait that long to make a better life for themselves and their families. Going to the back of the line — even just having “the line” — is how we got here in the first place.

There will be no uncertainty about their ability to become U.S. citizens if they meet these eligibility criteria.

That would be great if it actually happened. Who’s going to invest in America if they aren’t sure they won’t be kicked out? But this means committing to not kicking people out without a damned good reason. In our three-felonies-a-day society, any government employee who gets paid to kick out immigrants will be able to do so for the stupidest of reasons.

The proposal will also stop punishing innocent young people brought to the country through no fault of their own by their parents and give them a chance to earn their citizenship more quickly if they serve in the military or pursue higher education.

Great idea. But why isn’t being innocent good enough? Since becoming a citizen would be better for everybody, why make it harder by adding extra criteria?

Streamlining Legal Immigration:  Our immigration system should reward anyone who is willing to work hard and play by the rules.  For the sake of our economy and our security, legal immigration should be simple and efficient. The President’s proposal attracts the best minds to America by providing visas to foreign entrepreneurs looking to start businesses here and helping the most promising foreign graduate students in science and math stay in this country after graduation, rather than take their skills to other countries.  The President’s proposal will also reunify families in a timely and humane manner.

So the wealthy, the educated, and those with family members here will have it easier than other immigrants? That’s not reform. That’s our immigration policy today. Most of the people who have come here illegally are neither wealthy nor educated — that’s kind of why they want jobs here — and most of them don’t have close family here (aunts, uncles, cousins, nieces, and nephews don’t count).

Let’s look at the “Streamlining Legal Immigration” section a little closer by examining the detailed items listed further down in the Whitehouse press release:

Keep Families Together: … The proposal also raises existing annual country caps from 7 percent to 15 percent for the family-sponsored immigration system.

Cut Red Tape For Employers: The proposal also eliminates the backlog for employment-sponsored immigration by eliminating annual country caps and adding additional visas to the system.

Dropping the essentially racist country caps is a great idea, but there is no principled reason to drop them for employer-sponsored immigrants while keeping them for family-sponsored immigrants. The contrast between these two sections makes clear that the proposed reforms are being driven mostly by the needs of businesses that want to hire immigrants, rather than concern for the welfare of the immigrants themselves. The next provision makes that crystal clear:

“Staple” green cards to advanced STEM diplomas:  The proposal encourages foreign graduate students educated in the United States to stay here and contribute to our economy by “stapling” a green card to the diplomas of science, technology, engineering and mathematics (STEM) PhD and Master’s Degree graduates from qualified U.S. universities who have found employment in the United States.  It also requires employers to pay a fee that will support education and training to grow the next generation of American workers in STEM careers.

In other words, they’re going to allow in cheap high-tech workers so businesses don’t have to pay American high tech workers so much. I guess there’s a lot less political pressure to allow in more graphics designers, artists, waitresses, and auto mechanics.

Finally, check out the thicket of economic micromanagement in these three sections:

Create a “startup visa” for job-creating entrepreneurs:  The proposal allows foreign entrepreneurs who attract financing from U.S. investors or revenue from U.S. customers to start and grow their businesses in the United States, and to remain permanently if their companies grow further, create jobs for American workers, and strengthen our economy.

Expand opportunities for investor visas and U.S. economic development: The proposal permanently authorizes immigrant visa opportunities for regional center (pooled investment) programs; provides incentives for visa requestors to invest in programs that support national priorities, including economic development in rural and economically depressed regions; adds new measures to combat fraud and national security threats; includes data collection on economic impact; and creates a pilot program for  state and local government officials to promote economic development.

Create a new visa category for employees of federal national security science and technology laboratories: The proposal creates a new visa category for a limited number of highly-skilled and specialized immigrants to work in federal science and technology laboratories on critical national security needs after being in the United States. for two years and passing rigorous national security and criminal background checks.

Every industry and every single business that wants to hire cheap immigrant labor will have to lobby Congress to make sure their needs are on the approved list. You don’t think that will lead to any corruption, do you?

If we really want to reform our immigration policy and reduce the damage caused by illegal immigration, the solution is to make legal immigration predictable, easy, and fast. Strip out the country caps, shorten the wait for permanent residency, and make it legal for everyone living here to work here.

Abusing US Attorney Carmen Ortiz

I’ve been following some of the discussions about the prosecutorial conduct that may have lead to Aaron Swartz’s suicide, but I haven’t posted anything about it because it didn’t seem all that unusual, except for the suicide, which is not really all that unusual either. I didn’t initially understand why so many people are heaping verbal abuse on US Attorney Carmen Ortiz for doing what a lot of prosecutors are doing. It took me a while to realize that many of these people were encountering this kind of thing for the first time.

That’s actually pissing off criminal defense lawyers like Gideon at a public defender, who is wondering where all this outrage suddenly came from:

To all of you who’ve been engrossed by the above; shocked by it, angered, even, I say: welcome to the real world. Welcome to the world that’s existed around you for decades, but that you’ve been too blind to see.

Because Aaron Swartz wasn’t special. Not in that sense. He was just like every other criminal defendant that walks through the doors of every courthouse in America: a conviction waiting to happen. He was an opportunity for someone to flex their muscle over; for someone to teach a lesson to; for a system to fail to live up to its promise. Aaron Swartz is no different that the guy who sat in jail for 5 years waiting for a trial, or the guy who was arrested 20 years after the crime and the Supreme Court changed substantive law just to ensure that he was prosecuted, or the guy in whose case the judge texted the prosecutor questions to ask, or the man who refuses to give up his First Amendment rights and keeps getting arrested or the inmate who loses his appeal because his lawyer didn’t file the right paperwork and the courts don’t care, or Ronald Cotton or Cameron Todd Willingham, or maybe tomorrow: you. In the eyes of the law, there was no difference between any of them: their crimes may have been disparate; their rights all the same to eviscerate.

And over at Simple Justice, Scott Greenfield makes a different point about those who want to name-and-shame Ortiz the way she handled this case:

The naive and uninitiated think this is about Carmen Ortiz’s efforts to enhance her political career. There may be an element of self-aggrandizement in here, but it’s puny compared to the bigger issues of overcriminalization, prosecutorial overreaching, fundamental fairness in the criminal justice system. It reduces a problem that has been growing for 50 years, touched tends of thousand of people, made America the largest incarcerator in the world and caused enormous harm to society, to a triviality.

Scott’s got a point here. The problems with our criminal justice system do not begin and end with the prosecution of Aaron Swartz, and Ortiz is not the only only person doing terrible things to people in the name of justice.

On the other hand, this isn’t the only bad thing Carmen Ortiz has done. At the risk of promoting the one-bad-apple myth, I just found out that Ortiz is also the villainous prosecutor in another case I’ve been following. She’s the US Attorney who was trying to steal the Motel Caswell:

At the $57-a-night Motel Caswell in Tewksbury, Massachusetts, just the right amount of wrong is what the federal government says it needs to take the business from the family that has operated it for 57 years.

That amount, it turns out, is tiny. During a recent trial before a U.S. magistrate judge in Boston, a federal prosecutor cited one heroin overdose and 14 incidents in which guests or visitors were arrested for drug crimes at the motel from 1994 through 2008—a minuscule percentage of the 200,000 or so room rentals during that period—to show the business is a “dangerous property” ripe for seizure.

The government is arguing that the hotel’s 69-year old owner, Russell Caswell, knew or should have known about the drug dealing on his property. Of course, as is typical, they’re not actually charging him with a crime. That would require hard work to meet a substantial burden of proof. Instead, they’re just trying to take the motel.

(By the way, for those of you who are unfamiliar with civil forfeiture proceedings: Yes, it really does work that way. They don’t have to prove you’re guilty to take your property. I am not making this up.)

Under federal law, property used to “facilitate” a drug crime is subject to forfeiture. In 2000 Congress added a safeguard aimed at preventing exactly the sort of injustice Caswell faces: An owner can stop a forfeiture if he shows, by “a preponderance of the evidence,” that he did not know about the illegal activity or that, once he discovered it, he “did all that reasonably could be expected under the circumstances to terminate such use of the property.”

Caswell, whose father built the motel in 1955, has not been accused of any wrongdoing, and the local Motel 6, Fairfield Inn, Walmart, and Home Depot have had similar problems with drug activity. But the government argues that Caswell was “willfully blind” to drug dealing and could have done more to prevent it.

So why the focus on the Motel Caswell? Because it’s valuable enough to steal:

This cruel surprise was engineered by Vincent Kelley, a forfeiture specialist at the Drug Enforcement Administration who said he read about the Motel Caswell in a news report and found that the property, which the Caswells own free and clear, had an assessed value of $1.3 million. So Kelley approached the Tewksbury Police Department with an “equitable sharing” deal: The feds would seize the property and sell it, and the cops would get up to 80 percent of the proceeds.

Fortunately, Ortiz lost:

In a major triumph for property rights, a federal court in Massachusetts dismissed a civil forfeiture action against the Motel Caswell, a family-run motel in Tewksbury, handing a complete victory to owners Russell and Patricia Caswell.  In one of the most contentious civil forfeiture fights in the nation, Magistrate Judge Judith G. Dein of the U.S. District Court for the District of Massachusetts concluded, based on a week-long bench trial in November 2012, that the motel was not subject to forfeiture under federal law and that its owners were wholly innocent of any wrongdoing.

Unfortunately, Ortiz may appeal:

U.S. Attorney Carmen Ortiz said her office is weighing an appeal against a Tewksbury motel owner who criticized her for prosecutorial bullying last week after he won his battle in the feds’ three-year bid to seize his business, citing drug busts on the property.

Of course, this sort of abuse isn’t unique to Ortiz either. And for every millionaire hotel owner they go after, forfeiture operations probably take dozens of homes and hundreds of cars from poorer people. Ortiz did not invent the abuses she is currently being pilloried for. But doesn’t she still have it coming nonetheless?

Update: And now this story is spreading about another case handled by Ortiz’s office:

In the latest setback for Boston’s beleaguered U.S. attorney, red-faced feds admit they may have arrested the wrong man during a massive gang and drug takedown two weeks ago because he looked like someone they wanted, after they were forced to tell a judge there was “sufficient doubt” that he was the suspect.

Again, arresting the wrong person is not that unusual, but that’s still no excuse.

(Hat tip: Reason)

 

Addicted to Harlotry — Part 3: Capital Investment

In Part 1, I introduced the concept of rational addiction and argued that failure to account for it causes us to underestimate the benefits that other people receive from certain activities, which may lead us to believe that there is something unnaturally wrong about their high levels of consumption.

Then in Part 2, I explored the ideas of a supply-side version of rational addiction in which past production of some good or service makes it less costly to engage in future production of that good or service, using as an example the difficult job of caring for the very sick and elderly.

Please join me now for the thrilling conclusion.

You’ll notice that I started out talking about the demand for goods like video games and heroin, but now I’ve switched to talking about the supply of labor for nursing and firefighting and prostitution. The idea of extending rational addiction and intertemporal complementarity to the supply side is an idea I came up with on my own. It’s a pretty obvious extension of some basic economic ideas (economists often extend theories of consumption to things we don’t usually think of as consumption), and I don’t think it would be controversial, but I wanted to try to find actual economists saying something similar.

It took me a while. My research skills don’t go much beyond Google, and I didn’t have much luck at first. Searching for obvious things like “economics of prostitution and rational addiction” got me a lot of hits for stories about drugs addicts who engage in prostitution to feed their habit. I didn’t do much better when I stretched my knowledge of economic jargon to search for phrases like “prostitution and intertemporal complementarity” or “intertemporal cross-elasticity of supply.”

Eventually, I did stumble across what I was looking for, and really, it should have been obvious.

It’s common to use the word “capital” to mean money, as in capitalizing a corporation, but to an economist, capital refers basically to tools. That is, to the things we make in order to improve our ability to make other things. To a baker, capital is the kitchen and cooking utensils. To an airline, capital is the airplanes and all the associated airport facilities and service equipment. To a web publisher, capital is the website hardware and software.

(Note that capital goods are not consumed in the process — that would be raw materials — and things like land are not capital goods because we don’t have to produce them.)

Because capital goods have to be produced, however, they take away from production of consumer goods. So every business has to decide what capital it needs to achieve the desired level of production, and it has to expend effort to first produce (or spend money to buy) capital goods before it can produce the consumable goods it will sell. You have to have a kitchen before you can bake some bread, you have to buy airplanes before you can sell travel tickets, and you have to build a website before you can monetize page views.

Because the stock of capital must be accumulated at some cost before it can be used to produce the salable goods and services, it is an investment. This is why money invested to start or grow a company is called “capital”– it’s used to buy or build the real economic capital.

Much of the reason we in the industrialized nations live so much better than the rest of the world is because we have accumulated a huge stock of capital. Here in the United States, we produce $11 trillion in consumer goods annually because we have an estimated $28 trillion in private and government-owned capital.

But there’s more to capital than just what is owned by business and government. Economists consider many personally-owned durable goods to be personal capital, in that we don’t consume them directly but we use them to produce other goods and services that we consume. Cars produce transportation, refrigerators and stoves produce meals, and homes produce housing. To account for this, we have to add another $22 trillion in residential assets, bringing the total stock of U.S. capital to about $51 trillion.

Even that figure is only a fraction of all the capital in the U.S., because not all capital is physical goods like factories and airplanes and homes and cars. Some capital is intangible.

Consider why a surgeon makes far more money in a day than most other laborers: Because he knows how to perform surgery. That’s a skill he acquired by paying for an expensive education and spending a great deal of time training. Developing the ability to perform surgery required a sacrifice, an investment of money, time, and energy that could have been spent on other things. But having made that investment, he now profits from being able to produce an incredibly valuable service. In other words, a surgeon’s training and skill is a form of capital. It’s an example of what economists call human capital. Indeed, to an economist, a surgeon consists of little else but human capital.

Because it’s intangible, human capital is kind of a squishy concept. You can see physical capital like airplanes and factories and tools, and you can trace the transactions involved in its purchase or construction, but human capital is created and forever invisibly encoded in the mysterious convolutions of the human brain. This makes it less obvious than it probably should be. But just because it’s impossible to see doesn’t mean it’s any less real.

Estimation of the stock of human capital is difficult because it doesn’t show up in most accounting records — it has to be deduced from other numbers and from estimates of its effects — but by all estimates the U.S. stock of human capital is gigantic. I found a study from 2006 that estimated the U.S. stock of human capital was an incredible $212 trillion — more than four times the current stock of physical capital. As much as our way of life in the U.S. benefits from our accumulation of capital, most of that capital is held in the minds of our people. We live as well as we do because of what we’ve made ourselves into.

And some of us, to bring this post back around, have made ourselves into people who can tolerate unpleasant jobs.

If you take on work that others consider unpleasant because it simply doesn’t bother you, then you are exploiting your personal natural resources. Just as people with good voices can more easily become singers, people with a limited sense of smell can more easily become garbage collectors, and people who don’t mind having sex with lots of strangers can become happy hookers.

But if you take on work that others consider unpleasant because you have become used to it through experience, then your tolerance for that unpleasant job is the result of an investment in your human capital. Like any other investment, it comes at a cost, partly of time and energy, but also at the cost of enduring the initial unpleasantness needed to build up tolerance. The logic for this is the same whether you’re a nurse getting used to the burden of caring for sick people, a fireman running into burning buildings, or a prostitute having sex with strangers.

I’ve been playing a bit fast and loose with the definition of rational addiction, in that I’ve mostly been talking about the effects of intertemporal complementarity, the mechanism by which present consumption makes future consumption more beneficial. But rational addiction is more than that. The theory of rational addiction assumes that people are aware of the phenomenon of intertemporal complementarity and take it into account when making decisions. That’s what makes it rational.

Engaging in certain types of “addictive” behavior is a rational thing to do. From the first time our parents convince us to try some new type of food, or take us somewhere we don’t want to go and tell us we’ll make friends there, aren’t we always finding ourselves in situations where perseverance pays off?

The rational nature of these kinds of decisions is especially clear if we switch to the supply-side view and think in terms of investment in personal human capital. We go to school so we can start careers, and we take crappy jobs so we can learn skills to get better jobs. We take music lessons so we can play an instrument, we exercise so we’ll have better health, and we take a thousand falls off surfboards so we can learn to ride the big waves.

I should conclude by pointing out that I can’t actually prove any of this. In my defense, I’m not really describing a theory so much as a point of view based in some not-terribly-controversial economic theories. The scientific question would be whether those theories actually apply to prostitution. It’s hard to imagine that they don’t, since they have been shown to apply to just about everything else, but given the illegal and hidden nature of prostitution, it seems nearly impossible to get the kind of data you’d need to prove it.

For example, if it becomes known that prostitution will be less profitable in the future — either because it will cost more or pay less — then these theories both predict that prostitution should begin dropping off immediately, either because rationally addicted prostitutes will face a reduced value of future prostitution, which by intertemporal complementarity means that present prostitution will also be less valuable, or because prostitutes who are investing in their ability to tolerate unpleasantness will be facing a reduced return, discouraging that investment.

Even if given a natural experiment, such as a jurisdiction deciding to increase the penalty for prostitution (thus raising its cost for prostitutes) at some point in the future, it would be difficult to distinguish the effects of rational addiction or human capital investment from other effects, such as prostitutes who switch to other work early because they don’t want a period of unemployment, or who work harder to build up a savings buffer before the costs go up. It’s hard enough to do those kinds of studies when everything is out in the open with honest bookkeeping.

So what’s the point of all this? If you’ve stuck with me through all five thousand or so words, you may have been wondering if I have a point. I think I have a few of them.

The first point is that I like thinking about stuff like this. I warned you up front that this would be a one of my long thinking-out-loud pieces. I’ve meandered from prostitution to addiction to video games, and linked them all together with my understanding of some economic theory. I also managed to tie in some national capital stock accounting and a couple of personal stories about a difficult time in my life. It’s the kind of thing I enjoy reading, and I certainly hope you do too.

(If not…sorry. I’m planning some cat blogging later.)

My second point is that there’s nothing special about how and why most women become prostitutes. You don’t have to assume that prostitutes are brainwashed and turned out by evil pimps in order to explain how they get into the profession or why they stay in it. Ordinary theories of economics seem to offer reasonable explanations. Economists have long been making similar findings with regard to illegal drug dealing — once you find a way to convert the risks of prison and street violence into equivalent dollar costs, drug dealers make risk-vs.-reward decisions just like every other economic actor — and I expect that similar results would be found in detailed studies of the economics of prostitution. As Maggie McNeill often argues, prostitution is not much different from other jobs, except for the sex. And getting arrested.

My third point is that I think a lot of people don’t get the second point. The phenomena of being “turned out,” of becoming numb to the horrors, and of getting caught up in “the life” are not unique to prostitution, and getting used to unpleasant work is not evil in and of itself. Failure to realize this leads to believing in nonsense such as “false consciousness,” brainwashing, and ubiquitous-yet-hard-to-find human trafficking rings.

My fourth point is that I suspect our attitude towards people with chemical addictions influences our attitude towards people with rational addictions. After all, both types of addiction produce similarly unusual behavior as seen from the outside. Depending on our views, we may think of junkies and alcoholics as either morally weak or tragic victims, so it’s not surprising that many people take the same view of video game addicts and sex workers.

Re-reading all this, I should probably clarify that I’m not saying that prostitution is a good thing for women, and I’m not encouraging more women to become prostitutes. The economic theories I’m talking about are positive, not normative. They depend on no moral judgement. If I’m right, they describe what happens, but they are in no sense a prescription for what should happen.

Even the staunchest advocates for sex workers agree that prostitution is not for everyone. Some prostitutes may find it liberating, but for many others, it’s just a way to pay the bills. And for most women, it’s something they’ll never do. I can’t possibly decide what would be best for any woman. As a libertarian, of course, I would leave that decision entirely up to her.