August 2007

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Continuing my series of articles on bad, sloppy, or downright evil lawmaking, I’d like to talk a little bit about how much states love to suspend or revoke people’s driver’s licenses.

A suspended license is a branch of a problem I mentioned earlier: Free Punishment. A suspended license is just a database entry and a form letter. It probably costs the state less than a buck, but causes a lot of misery to the person who suddenly can’t drive.

(It may even be a profitable punishment: Around here, after the period of suspension expires, there’s a $70 fee to have your license restored, plus a $5 fee to get a new copy of your license.)

In some cases, of course, suspending a license makes a lot of sense. Here in Illinois, they will take your license for reckless driving that kills or injures someone, driving drunk or refusing a breath test, drag racing, eluding police, or being involved in a lot of accidents or getting a lot of tickets for moving violations. We can argue over the details, but in general it makes good sense to take the license of someone who demonstrates they cannot handle the responsibility of driving.

Your license can also be suspended or revoked if you lied to get the license, if you haven’t paid for your license, of if they issued you a license in error when you weren’t really qualified. Again, these reasons all make sense.

In some cases, however, it’s clear that the suspensions are little more than legislative theater to get tough on something. For example, they can take someones license for “violating the Cannabis Control Act, the Illinois Controlled Substances Act, the Methamphetamine Control and Community Protection Act, or the Use of Intoxicating Compounds Act while that individual was in actual physical control of a motor vehicle.”

It doesn’t stop there: They can take a license if someone “Has been convicted of the following offenses that were committed while the person was operating or in actual physical control, as a driver, of a motor vehicle: criminal sexual assault, predatory criminal sexual assault of a child, aggravated criminal sexual assault, criminal sexual abuse, aggravated criminal sexual abuse, juvenile pimping, soliciting for a juvenile prostitute and the manufacture, sale or delivery of controlled substances or instruments used for illegal drug use or abuse in which case the driver’s driving privileges shall be suspended for one year[.]”

In other words, if you have a valid license which you obtained legitimately, and you haven’t done anything that shows your driving endangers other people, they can still take it from you. None of the crimes in the last two paragraphs involves the use of a vehicle as an element of the crime, yet you can still lose your license just because you happen to commit the crime while driving a car.

I’m not saying that people who commit those crimes shouldn’t be punished, but suspending their license has no connection to the crime and makes no sense.

I suppose supporters might argue that if someone uses a car as a place to molest a child, it’s a good idea to make sure they don’t have that opportunity again. Sure, that makes plenty of sense, but the state should do that by putting child molesters in jail. I mean, what kind of half-assed stunt is it to take away a child molester’s driver’s license?

Anyway, you can also lose your license if you have a gun in your car. Or if you vandalize someone else’s vehicle. Or if you use a vehicle to deliver alcohol to a minor.

If you don’t have your car tested for emissions when you’re supposed to, the license of everyone listed on the registration will be suspended. Isn’t that going to make it kind of hard to bring the car in for a test?

If I’m reading this stuff right, they will also take your license if you operate a garage or a parking lot and you discover an unclaimed vehicle but don’t report it to the police in a timely manner.

Note: I’ve probably got at least half of this wrong. I found all these rules by poking around in the Illinois Compiled Statutes. It’s a big mess. Not only do the traffic laws specify license suspensions, but the laws for the Illinois Secretary of State’s Office (which handles driver licensing) have a whole different set of reasons for suspension. I’m sure I found it confusing because I’m not a lawyer, but I’m told that even traffic lawyers and Secretary of State employees have trouble figuring out what it all means.

A few months ago, I posted a followup to my Jury Duty series in which I expressed my curiosity about whatever happened to the defendant, whom I called “Jose.” I had been unable to find out what sentence he received.

Well, one of the prosecutors (I think the one I referred to as the “blonde prosecutrix”) just stumbled across that entry:

Imagine my surprise to see a Jury that I prosecuted detailed on a blog I randomly found during a Google search. The Defendant […]–never returned for sentencing and currently has an outstanding warrant for his arrest. The Judge that told you he was looking at Probation for the Aggravated Battery has since this trial revoked each and every person’s bond once convicted because [Jose] blew it for everyone else.

I had just recently discovered that myself.

In the same earlier post, I had mentioned that some of the jurors thought Jose’s needlessly elaborate testimony was a setup for a civil suit. I doubted this because the stakes seemed so small. After all, Jose’s only injury was only a bloody nose.

I hadn’t really thought it through. There’s more to such a suit than just an injury:

You touched on a possible civil suit from the Defense team after this trial–that was very astute. The Defense usually chooses a Jury trial on a case they believe they can win to test their witnesses for a civil jury trial if the defendant is acquitted. They can sue the Town where the officer is employed for false arrest and Civil Rights violations. Usually a town settles because it is cheaper than litigating the case. The defense team you saw pursues these case frequently.

(Note: I have edited the prosecutor’s comments slightly to remove the use of the defendant’s real name.)

This sounds like a good idea to me:

Oath of Presidential Transparency For Open, Transparent, and Accountable Government

I, __________________________, candidate for President of the United States, pledge to the American Public that, if elected President of the United States, my administration will be fully and robustly committed to open, transparent, and accountable government principles.

Effective management, accountability, transparency, and disclosure of taxpayer expended resources by federal agencies are of the utmost importance to maintain the trust of the American people. The paramount goal is effective and efficient delivery of critical government programs to the American people. Results-oriented management of federal agencies and taxpayer resources must be aggressively pursued and must provide maximum value for the public good.

Within 30 days of accession to the Presidency, I will execute an Executive Order ensuring timely implementation of, and administrative commitment to, the letter and spirit of the Federal Funding Accountability and Transparency (FFAT) Act of 2006 (PL# 109-282, 120 Stat. 1186).

The FFAT is supposed to establish a free searchable website that lists every person or organization that receives federal funds, so we’ll all know where the money’s going.

Signed, so far, by Senator Barack Obama (who was instrumental in passing the FFAT), Rep. Ron Paul (the most libertarian candidate), and Sen. Sam Brownback.

I upgraded to Microsoft Outlook 2003 a few weeks ago, and I just sort of assumed that if anything went wrong there’d be error messages or something.

It turns out that Outlook and the Windypundit mail server aren’t talking to each other. I didn’t notice because I have about half a dozen email accounts coming into Outlook and all the others seem to be working.

I finally realized that people were sending me things I wasn’t getting, and I realized what had happened. I checked the server and it has about 600 messages (most of them trying to sell me replica watches or making libelous innuendos about my genitals).

I’m trying to fix it now…

DUI lawyer Lawrence Taylor has been writing for a while about the resistance by breathalyzer manufacturers to various legal attempts by defense lawyers to get a peek at the source code for software that controls the machines. As a civil libertarian and software developer, I have mixed feelings about this.

I can certainly understand why the defense would want to know more about the software that is saying their client is guilty. On the other hand, I also understand why the company doesn’t want to give up the source code. It’s valuable stuff.

Lawrence Taylor has been fighting some of the crazier aspects of our DUI laws for years, but I think he hits far off the mark in some of his commentary on this issue:

I’ve also written ad nauseum about the myriad problems that render these machines inaccurate and unreliable. Among other things, for example, their operation and computation of blood alcohol levels is controlled by an old Z-80 microprocessor — an historical antique that used to drive the original Pong computer game.

The implication here, that the old processor makes the breathalyzer unreliable, is just plain wrong. There could be a lot of things wrong with the breathalyzer equipment, but that’s almost certainly not one of them.

The Zilog Z80 is a well-understood processor with a 30-year operational history. It has been used in hundreds or thousands of embedded applications, from hard drive controllers to financial point-of-sale devices to electronic musical instruments. All its bugs, quirks, and glitches have already been discovered. I’ll bet it’s been 20 years since anyone found out anything new about it.

When it comes to microprocessor designs, old means reliable. Old processors like the Z80 are the mainstay of critical systems. Their reliability has been proven by years of use in the real world. Processors of similar vintage are used to control medical instruments and spacecraft, including the Space Shuttle.

(I looked for examples of Z80 processors in life-critical applications, but haven’t found any. They’ve been used in outer space, but I didn’t find any examples where human life depended on it.)

Commenting on a manufacturer’s refusal to divulge the source code that runs their breathalyzer, Taylor says:

Kind of makes you wonder what the manufacturer is trying to hide, doesn’t it? Maybe the secret software code for computing blood alcohol levels isn’t all that it’s claimed to be?

Or maybe they’ve spent a few million dollars developing the source code and they regard don’t want to give it all away to settle a legal matter they’re not a party to.

Consider another scenario: Suppose there was a criminal case that relied on a digital photo that had been enhanced in Photoshop to reveal someone’s face. If the accuracy of the enhancement became an issue, should a judge really be able to order Adobe to give him hundreds millions of dollars worth of source code so the defense could examine it?

On the other hand, a company that makes breathalyzers seems much more involved in the resulting DUI case than Adobe is in my hypothetical example, so maybe they shouldn’t have the same protection I think Adobe deserves. I’m just not sure how to draw a principled distinction.

(Hat tip: Mike at Crime & Federalism.)

I remember back when I was a kid and I did something wrong, sometimes my parents would handle it separately, and I’d get yelled at or punished by both of them for the same misdeed. It seemed so unfair.

Lawmakers do much the same thing. Only instead of doing it at the same time, they do it one after another. Not a year goes by that my state legislators don’t bump up the penalties on a few crimes. Then when someone commits one of these crimes where the legislature has been piling on like this, they get hit with years of invented penalties all at once.

As with all the items so far in my Evil Lawmaking series, I’m not complaining about what’s been made a crime (although in some cases I have objections), rather I’m complaining about how the laws are written.

To my mind, the questionable nature of these piled-on statutes is self-evident: After decades of lawmaking, is it really possible that legislators are continuing to discover never-before-seen gaps in the criminal code? Or is it just that lawmakers are putting on a show, legislative theater if you will, to try to convince their constituents that chaos would reign without them?

By the way, for anyone tempted to be impressed by some of my photography, when I was getting the photo of the toilet and plunger for the previous item, I had to take nine shots to get a composition I liked with the correct exposure to show details in both the white and the black objects. And I still had to use Photoshop to crop it a little and adjust the contrast curves to bring out the details of the black plunger cup against the black tile floor.

(Also, I spent about 10 minutes trying to come up with a toilet-related pun for the title before settling on the execrable result you see above.)

Yesterday I was moving some boxes into my new rental storage locker. As I went to get a cart to haul the boxes, I once again saw all the signs asking us not to steal the carts. It’s a realistic concern. I’m moving out of my old storage locker because people stole all the carts and management decided not to replace them.

When I finished, I used the bathroom, where I found this disheartening reminder of the depths of human depravity:

Chained Toilet Plunger
Larger ImageChained Toilet Plunger

That’s right. They had to chain down the plunger for the toilet because otherwise people would steal it.

I mean, who steals a toilet plunger? And why? Did they just happen to need one right now? If not, what were they doing about toilet clogs before?

In a post a few weeks ago, I pointed out that Mississippi dentist Dr. Michael West, a bite mark analyst who often gives expert testimony in criminal trials, isn’t much of a scientist. I based my conclusion on Radley Balko’s Reason article, which included this description of West’s methodology:

But even in an already imprecise field, Dr. Michael West has taken forensic odontology to bizarre, megalomaniacal depths. West claims to have invented a system he modestly calls “The West Phenomenon.” In it, he dons a pair of yellow goggles and with the aid of a blue laser, he says he can identify bite marks, scratches, and other marks on a corpse that no one else can see—not even other forensics experts.

Conveniently, he claims his unique method can’t be photographed or reproduced, which he says makes his opinions unimpeachable by other experts.

That’s nonsense. If it’s not repeatable, it’s not science. Dr. West might as well be claiming divine revelation because, after all, no one can reproduce that either.

I’ve been thinking about this a lot, trying to explain why West’s assertion that he alone can do these tests is so wrong-headed. I can’t quite explain it in a way that completely satisfies me, but I think it’s fair to say that his method has problems with validity and robustness.

Forensic analysis starts with simple observable (or measurable) facts. Then you apply some general rules about the world to to derive new facts. When police find fingerprints on a murder weapon that are a match to a suspect’s fingerprints, they can use the general rule that no two people have the same fingerprints to derive a new fact: The suspect touched the murder weapon.

It should be obvious that in order for the analysis to be valid, the underlying general rule must be valid: If fingerprints were not unique, then a print match would be much less useful.

What’s less obvious is that the methodology for determining the observable facts must also be valid. If you don’t have a good way to determine that two fingerprints match, then you can’t be sure you’ve proven anything new. In other words, it’s not enough that the idea behind the analysis is sound. The the procedures for gathering and analyzing the data must also be valid and repeatable.

Consider the science of forensic bloodstain pattern analysis. Blood from a wound will be spattered around a crime scene in different ways depending on how the wound is inflicted and the victim’s post-wounding position and movement. The effect is a routine application of the physical laws governing the behavior of fluids and has been proven experimentally.

When a forensic scientist analyzes the scene of a bloody crime, however, he’s actually working backwards: Instead of figuring out how the blood will spatter for a particular crime, he’s looking at the resulting spatter and trying to figure out what caused it.

That seems like it ought to work, but we can also imagine reasons why it might not: Spattered blood may be difficult to classify properly, it may be hard to define the edges of a smeared droplet, different scenarios may produce identical droplets, and so on. Even if we know all about how a violent act produces blood spatter, whether or not a forensic analyst can work backwards to understand a violent act is a separate question that is itself subject to testing.

Complicating matters further, there’s also always a question how well the analysis works on the margins and where to set the limits. How large does a blood spatter pattern have to be for a forensic analyst to be able to reliably differentiate between high-velocity and medium velocity impact spatter? A square foot? A square inch? How much of a fingerprint is needed to get a reliable match? 14 points on a thumb? 4 points on a partial index finger?

As far as I know, these and other questions of validity have been investigated and answered quite thoroughly for fingerprint analysis, and a little less so for bloodstain pattern analysis. Since the “West Phenomenon” can’t be performed by anyone else, I doubt it’s ever been subject to a real scientific investigation of its validity.

Scientific tests can also be analyzed in terms of their robustness. A robust test isn’t very sensitive to changes in the testing conditions. For example, a robust chemical test will be accurate across a wide range of room temperatures, and will yield the same results regardless of how fast the technician stirs the beaker. An even more robust test will work even if the technician doesn’t use enough of one reagent, and it may be resistant to the most likely contaminants. A robust test methodology produces accurate results under a wide variety of conditions.

Since the conditions of the test are largely under the control of the person performing the test, this way of thinking about robustness leads us to an interesting and counter-intuitive conclusion: The most reliable scientific tests are those that can be performed by the stupidest people.

For example, I’ve had no medical training whatsoever, but with simple medical equipment from Walgreen’s I can measure my father’s blood pressure and blood sugar levels well enough for his doctor to use those numbers to assess his health. These are very robust tests because lots of people can learn to do them.

Not robust enough for you? How about measuring body temperature? Body weight? The tests for those are so robust that literally billions of people know how to do them. I’m no lawyer, but I doubt anyone has ever been prevented from testifying about body weight because of lack of expertise.

For an example of the middle ground in robustness, think about radar speed detection. Have you ever seen one of those electronic “Your Speed” signs along the road that supposedly shows you if you’re speeding? The numbers jump all over the place, and you can’t tell if it’s showing your speed or the speed of another car near you. That’s because it’s just a radar gun bolted in place and pointed down the road. With no one to aim it and no way to tell where it’s pointing, it’s probably the ultimate in unskilled operation, and it fails miserably. Clearly, radar speed detection requires a trained operator to get accurate results.

Other forensic tests, such as fingerprinting and bloodstain pattern analysis are even more complicated, requiring lots of training and practice. The most complicated forensic procedure of all is probably a forensic autopsy, which is why the people who do them have to be trained for years. Yet all of these forensic procedures can be performed by hundreds if not thousands of people in this country alone.

When Dr. West claims he’s the only one who can perform his method of testing, he’s saying that he’s the only person with the talent to do the test. But that’s just another way of saying that his method is totally lacking in robustness: Anyone else who tries his method will introduce enough variation into the process to make it fail.

I can’t help but wonder how often Dr. West himself introduces enough variation to cause the test to fail. Maybe Dr. West’s estimate of the number of people who can use his methods is too high by one…

I should add that just because a test procedure is difficult and not robust doesn’t mean it’s useless. It’s still possible to get great results by going to the expense and effort of controlling the test conditions very carefully or repeating the test enough times to build up confidence in the results. However, any such activity would surely either require or result in the ability of other people to reproduce the “West Phenomenon”

Finally, while I have some training in science and statistics, I have no legal training, so while I’m somewhat confident that I’ve accurately described the scientific approach to thinking about these things, I have no idea if a court would care about any of this.

I think Rudy Giuliani may well be the most authoritarian of the mainstream presidential candidates. The man loves power too much. Here he is in a speech from 1994, before 9/11 made people forget what an ass he is:

We look upon authority too often and focus over and over again, for 30 or 40 or 50 years, as if there is something wrong with authority. We see only the oppressive side of authority. Maybe it comes out of our history and our background. What we don’t see is that freedom is not a concept in which people can do anything they want, be anything they can be. Freedom is about authority. Freedom is about the willingness of every single human being to cede to lawful authority a great deal of discretion about what you do.

I think Rudy Giuliani is so law-and-order that he’s Vlad Ţepeş waiting to be reborn. If you pitched the question to him in just the right way during a debate, I’m sure he’d enthusiastically support sending a message to would-be lawbreakers by impaling convicted criminals on the street corners and leaving their bodies to rot in the hot sun.

(Hat tip: Balko.)

Mirriam at Not Guilty finally gave birth to her twins—two baby boys!

I don’t know the details, but I know she had a hard time getting pregnant and went through IVF hell to do it. Then, when it was time to get the babies out, she had to have a Caesarean section. It all sounds like a lot of work.

Congratulations Mirriam and Drue! And Good Luck!

When I saw that an advance copy of the new Showtime series Californication was availble on Netflix, I had mixed feelings. A comedy starring David Duchovny could be really good. He’s proven his comedic chops on The Larry Sanders Show and he brought some humor to his role on The X-Files as well. Plus, advanced reviews tend to generate a good number of hits on the blog. However, I was afraid I would like it and not be able to watch future episodes as I don’t have Showtime. That’s something I needn’t have worried about.

Duchovny plays Hank, a bachelor with writer’s block and a penchant for unavailable women. He sleeps with one married woman after another on his path to self destruction. It’s played for laughs – not big laughs, but ironic puffs of air escaping your nostrils kind of laughs. I didn’t find it very funny, and aside from normal respiration, there was no air coming out of my nose. As a character study, I suppose it’s mildy interesting and the acting is fine, but I just don’t care enough about any of the characters to continue watching. Even if I did have Showtime.

If you are still interested in checking it out for yourself, Californication premiers on Showtime Monday August 13th at 10:30 pm / 9:30 Central.

Update: I should have mentioned that this is R-rated fare and not meant for the kiddies. Mature situations, nudity and foul language.

Yesterday I wrote about the moral perils of punishing people in a way that is profitable for the government. Today, the Gary Washburn of the Chicago Tribune gives me another example:

Driving-related fines and fees provided the city treasury with more than $210 million last year. That represented about 4 percent of the 2006 budget, a small, but significant amount. A projected 2008 revenue shortfall of a similar size, $217 million, has brought predictions of a menu of tax, fee and fine increases to plug the gap.

That’s not an incentive that’s going to favor the ordinary citizens of Chicago.

Daley administration officials insist their system is fair, and they say that motorists who think they’ve been cited in error are guaranteed due process.

They can contest their tickets by mail or in person before an administrative hearing officer, presenting photos or other proof to bolster their cases, officials say. If found liable, they can appeal the decision in Cook County Circuit Court.

An administrative hearing officer is a city employee, not an independant judge, so it’s a stretch to call this due process. Consider the experiences of Heather Thorne, who found a police officer writing a parking ticket for her car:

“I asked him where the sign was,” said Thome, 35, a temp worker. “He said there used to be a sign on ‘that’ pole, and it hasn’t been there for two years. My logical question was, ‘How can you write a ticket?’ And he told me he doesn’t want to, but his boss tells him he has to go out every day and write tickets.”

Thome said the cop advised her to appeal to the city’s Department of Administrative Hearings. She did, by mail, with a photo of the scene—sans sign—enclosed. She still was found liable.

Well, that just means that Thorne needs to appeal to the Cook County Circuit Court in order to get this matter heard before a real judge, right?

Not exactly. You see, the ticket was only $50, but the fee for filing the appeal would be $93.