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Snitches Get Disses

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Eugene Volokh notes a disturbing federal case regarding 18 U.S.C. § 1513(e), part  of the witness retaliation statute, which appears to criminalize retaliatory speech against witnesses:

And U.S. v. Edwards, a nonprecedential decision handed down Thursday by the Sixth Circuit, read it precisely this way:

Joy Edwards made numerous derogatory posts on Facebook about a confidential informant who testified against her brothers during their criminal trial. The Facebook posts revealed the informant’s identity and called him—among other things—a “snitch.” Edwards was indicted on a single count of retaliating against a witness in violation of 18 U.S.C § 1513(e). At a bench trial, the district court found that the informant suffered harm as a result of these Facebook posts and that the posts were intended to retaliate against the informant. Edwards was convicted and sentenced to short terms of prison and lesser forms of confinement….

Basically, a confidential informant referred to as D.B. did controlled buys from some drug dealers to set them up for arrest. A few months after the trial, the sister of several defendants attacked D.B. on social media:

  • Re-posting another user’s photo of D.B. on the witness stand and calling him a “snitch” in the comments section
  • Commenting on her own post saying “f*** him,” “Look at that bitch ass snitch lips! They are crack up and ashey white from running it so much! His bitch ass needs some WD40!”
  • Re-posting another user’s doctored photo of D.B. holding a t-shirt with a police badge on it
  • Re-posting another user’s photo of D.B. with the caption “stop snitching” over it, to which Edwards added, “Snitch ass bitch”
  • Commenting on her own post in response to another user’s question about the identity of D.B., saying, “This guy is snitching! He snitched on my brothers! And lied about everything!”
  • Re-posting another user’s photo of D.B. with the caption “Snitching like a bitch”
  • Re-posting another user’s picture featuring hands in police handcuffs with the caption “Man up … Shut your mouth. Take the charge and don’t snitch.”
  • “Liked” numerous other users’ posts of similar material

It’s important to note two things here. First, all of this activity took place after the trial was over, so this wasn’t a case of interfering with a trial by attempting to intimidating a witness. Second, although the posts revealed D.B.’s name and other personal information, none of these posts amount to a “true threat” or an “incitement” which would not be protected by the First Amendment.

Nevertheless, it was enough to send her to jail, and her conviction was upheld:

The court upheld Edwards’ conviction—not because her speech was a true threat or incitement (again, this statute doesn’t require proof of that), but simply because it was intended to retaliate and was intended to and did cause “harm”

As Eugene Volokh explains, that isn’t normally considered to be an exception to First Amendment protections. As long as you don’t make false statements of fact, it’s entirely legal to say things about people that you know will make their life difficult.

Volokh summarizes 18 U.S.C. § 1513(e) as applying to

  • “Whoever knowingly,
  • “with the intent to retaliate,
  • “takes any action harmful to any person, including interference with the lawful employment or livelihood of any person,
  • “for providing to a law enforcement officer any truthful information relating to the commission or possible commission of any Federal offense,

That’s extremely broad. Taken at face value, this would make it nearly impossible to criticize anyone who reported a crime to federal law enforcement, even when the crime is…not a very big one:

(@CrimeADay says “18 USC §1865 & 36 CFR §2.11 make it a federal crime to picnic in violation of the picnicking conditions in a national park.”)

So if someone reported you to the rangers for a picnicking violation, and you found out they owned a car dealership in your town, you would not be allowed to call out the dealership owners as joyless assholes, because that would be “retaliation” which could cause them to lose business.

It’s not even clear you have to have a connection to the crime to get in trouble. In theory, if I called out D.B. by name in this post for being a snitch ass bitch, I could be charged with a crime, as could you if you reposted it somewhere.

For that matter, if news broke that a major politician reported one of his neighbors as a “suspected terrorist” with no more evidence than that he was dark skinned and wore a turban, it looks like we would technically be in violation of the witness retaliation statute for attacking him on Twitter during election season, because that would interfere with his livelihood.

The good news is that the decision in the appeal did not reach the First Amendment issue for technical reasons, and it won’t set a dangerous precedent. Nevertheless, at least one federal prosecutor and one federal judge didn’t see a problem with this law.

In any case, this issue will probably end up in court again, and as Eugene Volokh says,

I hope that, when the First Amendment question is squarely presented to an appellate court, it will recognize that the statute (at least unless it’s sharply limited to threats, incitement, or nonspeech conduct) is unconstitutionally overbroad.

You can read Eugene Volokh’s whole post here.

Have Keyboard, Will (not) Travel

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I don’t normally blog about my day job, but I’m genuinely proud of the work I’ve been doing, and (for reasons that will become clear) this is as good a time as any to talk about it.

For the last eight years, I’ve been developing legal technology for Thomson Reuters. It started when I applied to an interesting-sounding job at a small company called Serengeti Law, which had just been acquired by TR. Serengeti’s product was a web-based legal matter management tool called Serengeti Tracker, which corporate legal departments purchased to help manage the costs of legal matters being handled by outside law firms. TR was investing heavily in this product, now called Thomson Reuters Legal Tracker, and they brought me on board to help build it bigger and better.

I know a few lawyers who practice solo or in small firms, but Tracker was designed for the practice of law on a whole different scale. Just imagine how much legal work a company must need for it to be cost-effective to spend tens of thousands of dollars per year on software just to track outside spending. And Legal Tracker has over 1300 customers.

When I first took the job, I wasn’t planning to stay very long. I had been freelancing for a decade (which gave me the flexibility to take care of my parents in their final years) and this job would be my first step back into corporate life. Legal billing software didn’t sound very exciting, so I figured I’d give it a few years and then move on to something more interesting.

I was pleasantly surprised. Software that helped lawyers pay other lawyers wasn’t exactly the coolest tech product, but the process of creating it allowed me to do what I did best: Solve interesting problems. You want to add feature X to the product? You want to support technology Y to meet customer demand? I could make that happen. Later, I led project teams that made that happen. We got things done. We shipped code. We built tools that people could use.

All in all, it was an amazing software development experience. We had all the tools we needed, we used a flexible agile methodology, and we were encouraged to take the time to do things the right way. We even got to work from home full-time. But what really made the job enjoyable was the people I worked with. It was a terrific engineering culture — quality-oriented, ego-free, blame-free, and asshole free. This was everything I wanted in a job.

Unfortunately, this happened:

Thomson Reuters will close the Bellevue, Wash. headquarters of Legal Tracker, an online billing and analytics affiliate, as part of a larger series of layoffs and office consolidations.

Legal Tracker itself is not going away, but the office will close next summer, and the headquarters will shift to Thomson Reuters’ Toronto office, spokesman Dave Moran told GeekWire. The office closure will affect roughly 60 people, though Thomson Reuters is still working through how many will be laid off and if any will transfer.

…

The move to shutter the Bellevue office is part of a broader series of layoffs at Thomson Reuters that will see the company cut 3,200 jobs and close 55 offices by 2020. Toronto-based Thomson Reuters employs about 27,000 people across the globe, and it includes a news organization, services for the legal industry and financial software.

Although I live in the Chicago suburbs, I was attached to the Bellevue, Washington office, which makes me one of the unlucky three thousand. As of this month, I’m out of a job.

This is one of the risks of working for a large company. No matter how well you do your job, sometimes your future depends on strategic issues beyond your control. It’s the way large corporations work, and I’ve always known that getting laid off was a possibility. Which is not to say that it doesn’t suck to lose my job.

But out of all the times I’ve lost my job…this was my favorite. Thomson Reuters has been a good place to work. Even the layoff process has been professional and dignified. I had plenty of advanced warning this was coming, and everybody has been really helpful. My severance agreement is confidential, but I think I can safely say that it was acceptable. I would still recommend TR to anyone thinking of taking a job there.

That said, I’m still out of a job, which means I’m back in the job market. So if you need a software developer, I’m available, as long as I can work from home. I’ve gotten used to that arrangement, and I’m not ready to give it up, especially now that my wife also works from home.

I work mostly with C#/.NET these days, but I also know SQL and basic web technology. I also have a lot of history with C/C++. In the meantime, I’ve learned some Python, and I’ve tinkered with PHP and Java…and a whole bunch of other things, really, because I’ve been writing software for a long time. 

In the meantime, I’m going to have some time on my hands, and I wouldn’t mind working on some sort of project that dovetails with the themes of this blog. So if any of you have ideas for something related to law or economics (or whatever) that could use a little help from a tech nerd like me, get in touch. Maybe we can do something interesting together.

Is Chief Hopper a Perpetrator of Domestic Violence?

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Evan Rachel Wood, who plays Dolores Abernathy on Westworld, has been taking a bit of flack on Twitter for this:

(Because I don’t trust Twitter embeds, she wrote: “You should never date a guy like the cop from #strangerthings Extreme jealousy and violent rages are not flattering or sexy like TV would have you believe. That is all.”)

Some of her critics have been tediously pointing out that Sheriff Jim Hopper is a fictional character, as if we don’t discuss the ethics of of fictional characters all the time. (Also, as I’ll explain in a minute, part of Wood’s point is that real people aren’t like Hopper.)

Many other critics make a somewhat better point, which is that Hopper never hits Joyce Byers or any of the kids. He may be filled with rage, but he doesn’t actually hurt anyone — except the show’s bad guys, of course. That’s not a completely satisfying response, however, because angry men don’t have to actually hit women to scare the crap out of them, and scaring the crap out of someone is certainly abusive.

All of which brings me to the point that I think Wood was trying to make with her tweet: Fictional people like Hopper and real people like Hopper are not the same thing.

Fictional Sheriff Hopper is a guy with issues. He gets angry a lot. However, no matter how pissed-off he gets, Hopper would never actually hit Joyce or any of the children. We know this, because we recognize him as a well-known fictional archetype: The Violent Male Who Only Hurts Bad People.

That guy is everywhere in our fiction, from James Bond to Dominic Toretto to John Wick. Many comic superheros fit the mold — Batman, Wolverine, Deadpool, the Punisher, the Hulk, Hellboy — as do many of the love interests in romance novels. Actors like Arnold Schwarzenegger, Sylvester Stallone, and Dwayne Johnson have spent half their careers playing some variation of that character. When we see this guy, we all know him, and we all know he’s not going to hurt the innocent people in his life.

The objection that abusive men don’t have to hit women to abuse them doesn’t really apply either because, by the rules of the genre, the fictional women and fictional children in his fictional life are quite aware that he won’t hurt them. In Stranger Things, Joyce Byers is startled and confused by Hopper’s rage at times, but she never reacts like she’s really afraid of him.

(I didn’t re-watch the entire show, but I can’t remember any real fear of him. If I got that wrong, I’ll have to walk this back.)

Another example of this is Arnold Schwarzenegger’s character in Kindergarden Cop. He’s tough police detective who goes undercover as a school teacher. Much of the humor in the movie comes from the fact that no one is afraid of him — not the women teachers, not the lady principle, and not any of the children.

In the real world, violent people don’t follow genre rules. People with impulse control problems aren’t always able to draw the lines so carefully. They don’t just get violent with criminals and terrorists. They hurt people who are close to them, either because they can’t tell the difference, or because they just don’t care. In real life, guys who act like Hopper can be dangerous to have in your life.

We put up with a lot in fictional characters that we shouldn’t in real life. Fictional TV cops like Walt Longmire or Steve McGarrett beat the crap out of suspects, and we’re more or less okay with it, because Cop Who Breaks All The Rules For Justice is another well-known archetype. This cop may break the rules, but he always only does it to keep really bad people from getting away. This is unlike real-life rule-breaking cops, who are more likely to beat the crap out of 15-year-old turnstile jumpers who mouth off.

Another example is the character of Leroy Jethro Gibbs on NCIS. As a fictional character, he comes across as a stern teacher and charmingly gruff boss. But a real-life boss who bullies his employees, sometimes even hitting them, is an HR nightmare who drags down everyone on his team. 

Or, getting back to Stranger Things, let’s think about the character of Eleven for a minute. This is a child who was isolated and emotionally abused all her life, and who was subjected to unethical science experiments. And at every moment she is carrying a weapon — her dangerous psychic ability — with which she has already killed at least a dozen people. Knowing all this about her, would you really let her anywhere near your children?

It’s the nature of our relationship to fiction that we empathize with the protagonists of a story, even when they are objectively bad people. The move Bonnie and Clyde from 1967 is a notorious example that made a couple of murderous bank robbers into romantic protagonists. More recently, the writers on Breaking Bad used this effect with Walter White, intentionally making him into a self-absorbed violent jerk…who we still wanted to see win.

The effect doesn’t always work, however, because sometimes viewers have trouble getting past real life. I liked the Major Crimes police procedural stories, but every now and then I found myself yelling at the screen because they did something I had read about in one of Radley Balko’s gut-punching stories of police misconduct. I also had trouble enjoying the 1991 comedy Nothing But Trouble, about a bunch of big-city travelers who get in trouble in a small town ruled by a sadistic judge who likes to use a special machine called “Mr. Bonestripper” to execute people without a proper trial. It’s supposed to be a dark comedy, but I couldn’t get it out of my head that there are real places in the world where sadistic rulers find amusing ways to kill people who anger them.

For Evan Rachel Wood watching Stranger Things, it was Hopper’s out-of-control anger that was too close to reality. She knows a thing or two about sexual assault and domestic violence, and Hopper set off some warnings. He’s an entertaining character, but she wouldn’t want the real-world version of him in her life.

Doing Something About Tuition Debt

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Democratic presidential candidate Elizabeth Warren has a plan to deal with tuition loan debt:

My plan for broad student debt cancellation will:

  • Cancel debt for more than 95% of the nearly 45 million Americans with student loan debt;
  • Wipe out student loan debt entirely for more than 75% of the Americans with that debt;
  • Substantially increase wealth for Black and Latinx families and reduce both the Black-White and Latinx-White wealth gaps; and
  • Provide an enormous middle-class stimulus that will boost economic growth, increase home purchases, and fuel a new wave of small business formation.

Naturally, Democratic presidential candidate Bernie Sanders has his own plan to deal with college debt:

When Bernie is in the White House, he will:

  • Cancel the entire $1.6 trillion in outstanding student debt for the 45 million borrowers who are weighed down by the crushing burden of student debt. This will save around $3,000 a year for the average student loan borrower.

There are a lot of things wrong with this idea.

For one thing, it’s not an incentive mechanism. Most of the time, when we as a society give money to someone for doing something, it’s because we want to encourage that activity. So we subsidize solar energy to encourage development of cleaner energy sources, and we subsidize housing to encourage home construction and ownership. Subsidizing certain things is usually a way to encourage socially desirable behavior.

But that’s not the case here: Student debt cancellation does nothing to encourage students to go to college because it only affects people who have already been to college. It’s a pure giveaway (that just happens to be going to a bunch of young people who are likely to vote).

Supporters of tuition debt cancellation are quick to argue that debt cancellation would provide an economic stimulus:

The result is a huge student loan debt burden that’s crushing millions of families and acting as an anchor on our economy. It’s reducing home ownership rates. It’s leading fewer people to start businesses.

First of all, we’re not exactly talking about gigantic loans. 45 million people owing $1.6 trillion works out to about $36,000 per person. That’s not a “crippling” debt. Most of the time, when you hear really high numbers, it’s for people getting loans for advanced degrees such as law or medicine. The average college debt is more like financing a well-equipped Ford Taurus.

Keep in mind, too, that people with college degrees tend to earn more money. According to the most recent Education Pays report,

In 2015, median earnings of bachelor’s degree recipients with no advanced degree working full time were $24,600 (67%) higher than those of high school graduates. Bachelor’s degree recipients paid an estimated $6,900 (91%) more in taxes and took home $17,700 (61%) more in after-tax income than high school graduates.

That difference alone is enough to theoretically pay off a $36,000 student debt in a little over two years at peak earnings. Even taking other costs into account — including the opportunity cost of going to college instead of working — a college education is a good investment:

The median four-year college graduate who enrolls at age 18 and graduates in four years can expect to earn enough relative to the median high school graduate by age 34 to compensate for being out of the labor force for four years and for paying the full tuition and fees and books and supplies without any grant aid.

In other words, paying off the tuition debts of college graduates means giving free money to  people who are already destined to be financially better off than most.

Furthermore, getting a college education is just one way of investing in your future. There are plenty of small business owners who have spent $36,000 to equip a restaurant or machine shop, or remodel an office. I’m sure they would also benefit if Elizabeth Warren or Bernie Sanders cancelled their debt.

Or what about people who took out loans to pay for college tuition and just now finished paying off their debt? They’ve got to feel cheated by all this. And it’s hard to argue that their case is much different, because I’m sure giving them $36,000 would help them buy a house or start a business too.

We should also consider the classic invisible people: Those who didn’t go to college because they couldn’t afford it. Imagine what it’s like the be a woman who made the prudent decision to stick with waitressing for a few more years only to hear that people who went to college are getting a $36,000 handout. Why shouldn’t she get $36,000 too? She probably needs the money more, and giving it to her would be at least as much of a stimulus as giving it to a college student.

Or for that matter, we could just let taxpayers have the money. All other things being equal, not paying college graduates $1.6 trillion would leave $4900 for every man, woman, and child in the United States. 

I should note that there is one group of people for whom debt cancellation makes some sense: People who went to college but did not graduate. These people are seriously screwed, because they’ve got the debt — for the cost of however many years as they went to college — but they don’t receive any of the benefits that come with earning a degree. And unlike college graduates, these people really are likely to be poor, so getting out from under the debt will be a serious struggle.

It’s almost like we need a debt cancellation program that is targeted to these people. Maybe some sort of means-tested program, that only cancels their debt if they really are having difficulty paying it down…

Of course, the U.S. already has such a program. It’s called bankruptcy. When someone has debts they can’t pay, declaring bankruptcy allows them to get out from under the debt and move on. The lender does take a loss when a debtor declares bankruptcy, but if the debtor was never really able to pay the loan, then the lender is really just recognizing a loss that has already occurred. And the great thing about bankruptcy is that it works for everyone who’s in debt over their head, not just college students.

Although, actually…college tuition loans are one of the few debts that cannot be discharged through the ordinary bankruptcy process. A series of murky changes to bankruptcy law since the 1970s have made it much harder to get out from under student loans. It can be done, but the process is poorly defined and applicants are unlikely to succeed.

While I question the wisdom of giving gobs of money to college graduates, I think it makes no sense to block people with tuition debt from having the same bankruptcy protections as everyone else. The good news is that there’s actually a bill that would fix this problem. It’s the Student Loan Borrower Bankruptcy Act of 2019, which is supported by both Sanders and Warren. Let’s use the debt protections we have, rather than inventing expensive new ones.

How Much is 16.5 Tons of Cocaine Really Worth?

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A few days ago, the Office of the U.S. Attorney for the Eastern District of Pennsylvania put out a Twitter press release with a typical law enforcement estimate of “street value”:

I heard about this because my local neighborhood criminal defense blogger, Matt Haiduk, had a few things to say about the “street value” estimate, using an analogy to ketchup:

If I cut out the middleman I can actually get 60 gallons- or 7680 ounces of ketchup! At a price of of only $457.20 it comes out to a street value of…

…how would I even know? What am I going to do with 60 gallons of ketchup? I couldn’t eat it all before it went bad- that’s nasty. I couldn’t repackage and sell it to my friends- I don’t have anywhere to store it, I can’t ship it, and I definitely don’t have “60 gallons of ketchup” worth of friends.

There is no street value to 60 gallons of ketchup. There’s only wholesale value. And that wholesale value is A LOT lower per-ounce than the personal use bottles I buy.

Read the whole thing.

Matt’s ketchup analogy gets at the problem, but I’m going with a different analogy. Let’s talk about fine handmade wood furniture, like this beautiful Shaker Style desk from Vermont Woods Studios:

Contemporary Craftsman Executive Desk

As depicted, made out of Cherry wood, putting this desk in your office will cost $5,274.

Now suppose the cops stop and confiscate a truck hauling a container full of milled Cherry lumber. The maximum load limit for standard 40-foot shipping container is 57,759 pounds (just under 29 tons). The standard unit of measure for rough wood is the board-foot, which is a 1ft by 1ft piece of wood that is 1 inch thick. Since Cherry wood weighs about 50 pounds per cubic foot, we can calculate that the container holds 13,862 board-feet of Cherry wood.

Given the dimensions of the desk above, I think a woodworker could make the whole thing — top, back and side panels, drawers and legs — from about 80 board-feet of lumber. Thus the truck is carrying enough wood to make 173 executive disks selling for $5,274 each, for a total of $912,402. In other words, by the logic of drug “street value,” the cops just confiscated a truck carrying Cherry wood with a “street value” of almost a million dollars.

But really, they didn’t. What the cops got was a raw material that could eventually be converted into an end consumer good worth a lot more, through the application of rather a lot of labor. But until that labor is applied and paid for, the value of what they got is a lot less — about $95,000 by my estimate. (And even that is assuming small lots at retail prices. A wholesaler would probably offer less.)

It’s the same with the cocaine. Raw cocaine on the truck is of comparatively little value. It doesn’t become valuable until it’s actually in the noses of the people who will be using it, and it takes a lot of work to get it there. That 16.5 tons of cocaine would have to be diluted with filler, broken down into smaller packets, and transported to stash houses around the country, where it would be cut and broken down further into 1 kilo bricks and then eventually into ounces and grams and even individual lines of cocaine for sale to end users. This requires couriers, drivers, packers, and chemists, along with security and lookouts and people to supervise them.

The cocaine intercepted by the government, like the Cherry wood in my example, is just a raw material that has yet to go through a production and distribution process that will add a lot to its value. Trying to calculate its “street price” is like finding a pile of clay and pricing it as pottery, or finding $50 worth of canvas and paint and pricing it as a $500 finished painting.

Drug warriors might object that I am missing the point: They could accept that much of their billion dollar valuation depends on labor that is yet to be done, and then they could argue that by stopping the cocaine in its raw bulk form, they are preventing it from fueling all that future criminal labor that would be involved in getting it out onto the streets. By stopping the cocaine now, they are stopping a bunch of criminals from earning a billion dollars distributing it.

That’s probably a pretty fair argument. But let’s examine why it’s so profitable to distribute cocaine: All of the steps in the distribution process have to take place while the cops are actively trying to stop them. It costs money to secure the operation against law enforcement interference, and even then, getting arrested is still a huge risk for everyone involved, so the price of cocaine has to include both the cost of avoiding arrest and a premium paid to people to accept the substantial risk of arrest that remains.

Just how large are the costs of risking or avoiding getting arrested? Well, it turns out that cocaine has a legitimate medical use as a topical anesthetic during sinus surgery. Last I heard, medical grade cocaine sold for this purpose at a cost of about $30 per ounce, or a little less than $1 million per ton. I can’t find current pricing, but if that still holds, then the 16.5 tons of cocaine seized by the cops would be worth about $15.8 million dollars if it were legal. In other words, if we accept the U.S. Attorney’s office’s claim that the cocaine has a street value of $1 billion, we can estimate that police attempts to suppress the cocaine trade have driven up cocaine prices by 6200 percent!

And all of it goes into the hands of criminals, thanks to the war on drugs.

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