October 2009

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The lights went out around 12:15 last night. Some people talk about how nice it is to relax and do nothing while the power is out, but for me, losing electrical power is like losing a limb.

When the power failure hit, I was sitting in front of the computer working on a couple of things I wanted to finish by tomorrow. I’m staring straight at the monitors, so the first sign of a problem was when things got a little dark in the periphery of my vision and something started buzzing and beeping in the computer rack.

I looked up, and the lights had gone out. The noises were coming from the UPS, which had cut in like it’s supposed to, keeping me from losing anything I was working on. Even my internet connection was still up because the cable modem and router are also protected by the UPS.

With the power out, the UPS battery was draining fast, so I had to shutdown the computers before the UPS ran out. I bought myself some time by shutting down my old computer first. I don’t do much with it, so I just clicked Shutdown, and it took care of itself. I had about 25 windows open on my main computer—including windows running inside a VMware virtual computer—so shutting it down was a much more involved process.

Once I had both computers shutting down, I grabbed my iPhone and used it as a flashlight to find my way around the house.

I was momentarily puzzled when I got to the living room. The room lights were out, as is normal at that time of night, but there was a bit of a glow, and lots things still had indicator lamps on. I had assumed the power was out, but maybe it was just my office. Had I just over-reacted to a blown circuit breaker?

Nope. The power really was out. The diffuse light in the room was coming from my wife’s laptop, which had switched over to its batteries. The other lights in the room were coming from the cable box and Tivo by the television. I have them both running off a small UPS so that a power glitch while I’m out of the house doesn’t wipe out an evening of television.

I stepped into the kitchen and grabbed a real flashlight. A glance out the window confirmed that the whole neighborhood was out.

I made my way back to the office and found the power switch on the UPS to kill the damned beeping and prevent the battery from going to the bottom of the cycle. I didn’t bother with the UPS for the Tivo.

Finally, I made my way back to my wife’s computer and put it in standbye mode to conserve its battery. Then I pulled out my iPhone and (after tweeting about the problem) set up an alarm to ring in the morning to wake me up in case the power hadn’t come back.

Almost immediately, the power came back on.

I went back into my office and started the UPS and both computers. Then I went into the living room and flipped on the lights. Nothing happened. Which makes sense, I realized, since the lights are computer-controlled from my old computer, and it probably hadn’t finished booting yet.

Once my computers were up, I thought it would make an amusing (or at least readable) blog post, so I started writing this message. About half way through, the power failed again.

So I shut down the computers again and went to sleep.

When I was on a criminal jury a few years ago, the judge impressed on us how important our job was. He made sure we took it seriously. Which is one of the reasons this bullshit makes me so angry:

The Minnesota Supreme Court, in a 4-3 decision, has now ruled that Bong Water (water which had been used in a water pipe) was a “mixture” of “25 grams or more” supporting a criminal conviction for Controlled Substance crime in the first degree.  The crime is the most serious felony drug crime in Minnesota, with a maximum penalty of 30 years in prison for a first offense.

Let me make this clear: If you mix an illegal drug with an ounce of water, you can be charged with having 1 ounce of a drug mixture. Then, if you dilute the drug by adding another ounce of water, you can be charged with having a larger amount—2 ounces—of the drug mixture, even though in both cases you had the exact same amount of the actual drug.

I may not be applying the law correctly in my example, but the essence of this decision is that diluting the illegal drug with a legal substance increases the severity of the crime.

This is not an isolated example of bizarre legal thinking:

…a guy dumped his meth in the toilet.  The cops scooped the water out, weighed it, and used the weight of the toilet water as the basis for his prosecution.  Since they scooped more than 600 grams of water out of the toilet, that put him over the limit for a 1st degree felony.

The jury gave him 85 years in prison…

This is, the Court said, what the legislature intended.

This is mind-bogglingly stupid. Folks, it’s basic math and logic. I mean, we teach children how to do fractions to avoid this kind of mistake. If this is what the legislature intended, then the legislature is an ass.

(Hat tip to Jamie for both examples.)

I’ve been following the foolishness that is the War On Drugs for decades, and this is one of the stupidest things I’ve ever heard of. But this is not the first time I’ve heard of it. I can recall a case where the government wanted to use the weight of the container that held the drugs in calculating the sentence.

Tell me, the next time someone lectures me how important the rules of jury service are—don’t discuss the case, let the judge decide what the law is, follow the evidence, don’t visit the crime scene, don’t nullify—why (other fear of punishment for contempt) shouldn’t I tell them to go fuck themselves? If the legislature and the prosecutor and the judge can ignore something as fundamental as physical reality—hell, basic math—why should us jurors be impressed by any of their rules? Clearly, the rules don’t really matter.

I don’t blog about the death penalty very much, mostly because I don’t care about the death penalty very much. I’m not saying it’s unimportant, but I just don’t have the urge to write about it. My position on it has been pretty bland: Some crimes are so evil that the perpetrators have forfeitted their right to live, but my libertarian leanings prevent me from trusting the government to execute the right people for the right reasons.

The extremists on both sides bother me. There’s a difference between believing the death penalty produces a net benefit to society, and the lusty desire for executions that seems to animate some of its supporters. Conversely, no matter how much you disagree with the death penalty, it’s wrong-headed to hold a candlelight vigil for John Wayne Gacy.

Over at a public defender, Gideon has come out of his blogging hiatus, and he’s posted about the Death Penalty Information Center’s new report on the cost of the death penalty. It’s a mixed bag, but I think its economic theory has solidified my opinion against the death penalty.

Parts of the report don’t pass the smell test, starting with the subtitle—“Reconsidering the Death Penalty in a Time of Economic Crisis”—which comes across as a desperate attempt to make the death penalty relevant to the hot topic of the moment.

Another dubious feature of the report is a survey of police chiefs that seems to reach some surprising conclusions:

  • When asked to name one area as “most important for reducing violent crime,” greater use of the death penalty ranked last among the police chiefs, with only 1% listing it as the best way to reduce violence…
  • The death penalty was considered the least efficient use of taxpayers’ money…

These results aren’t as impressive as they may seem at first glance. It’s too easy to game the results through a careful choice of alternative items.

For example, if I wanted to argue for eliminating the exclusionary rule for evidence in a criminal trial, it would be great for my side if criminal defense attorneys said it was unimportant. No problem. Just ask them a question like this:

When it comes to giving defendants a fair trial, which of the following features of our justice system is most important:

  • The presumption of innocence.
  • The right to trial by an impartial jury.
  • The protection against double jeopardy.
  • The right to confront witnesses.
  • The exclusionary rule. 

I think there’s a pretty good chance that if you asked a thousand criminal defense attorneys that question, the exclusionary rule would be at the bottom of their rankings. Then I could put out a report boldly claiming that “defense attorneys rate the exclusionary rule as the least important requirement for a fair trial.”

(If they didn’t rate it the way I wanted, I could just change the questions and try again.)

On the other hand, when you ignore the hyperbole and fake(ish) survey, the report makes an interesting economic case, starting with the estimated cost of a death sentence:

The high costs to the state per execution reflect the following reality: For a single death penalty trial, the state may pay $1 million more than for a non-death penalty trial. But only one in every three capital trials may result in a death sentence, so the true cost of that death sentence is $3 million. Further down the road, only one in ten of the death sentences handed down may result in an execution. Hence, the cost to the state to reach that one execution is $30 million.

That’s a lot to pay to execute somebody, and it may be worse than that:

In 2008, the California Commission on the Fair Administration of Justice released an exhaustive report on the state’s capital punishment system… The report found that the state was spending $137 million per year on the death penalty… Since the number of executions in California has averaged less than one every two years since the death penalty was reinstated in 1977, the cost for each execution is over $250 million.

So is an execution worth $30 million? Or $250 million?

That depends, of course, on what the benefits of an execution are. Death penalty blawger Tom McKenna has referred to evidence that each execution has a deterrent effect that results in 18 fewer murders for every execution. (I think he’s talking about Is Capital Punishment Morally Required? Acts, Omissions, and Life-Life Tradeoffs by Cass R. Sunstein and Adrian Vermeule, which gets the figure of 18 from Does Capital Punishment Have a Deterrent Effect? New Evidence from Postmoratorium Panel Data by Hashem Dezhbakhsh, Paul H. Rubin and Joanna M. Shepherd.) This figure is highly controversial, but for the sake of discussion, let’s accept it.

That leads us to the next question in our quest to determine the value of an execution: How much is a human life worth? It’s easy to say that human life is priceless, but as economists have shown, that’s not how we behave.

Economists have sifted through large data sets to uncover how people make decisions that affect their own mortality. How much will people spend on a safer car to reduce their chance of dying in an accident by 1% over the life of the car? How much more do you have to pay people to take dangerous jobs? How much more do houses cost in safe neighborhoods?

These studies typically show that people value their own lives at between three and ten million dollars. I’ve heard a number of economists use a value of $8 million per life, so that’s what I’m going to use.

Finally, we can plug in all the numbers. According to the paper, executing someone could cost around $30 million dollars. Add to this the value of the executed criminal’s life (he counts too) and an execution has a cost to society of $38 million. On the other hand, the 18 lives saved are worth $144 million. Therefore, under our assumptions, the death penalty provides a net benefit to society of $106 million per execution.

That’s great for the death penalty, but only if it’s true. For example, the benefit goes away completely if we use the alternate cost estimate obtained in California. In that case, the $144 million value of the averted murder victims pales in comparison to the $258 million cost of the execution.

There’s also the problem that these studies are difficult to perform and not terribly robust. The Death Penalty Information Center’s report refers to a summary paper (Uses and Abuses of Empirical Evidence in the Death Penalty Debate by John J Donohue and Justin Wolfers) which argues for an interpretation of the data that finds no significant deterrent effect. For one thing, all of the benefits seem to be concentrated in Texas. Drop that one state from the data, and executions have no significant effect on the murder rate. Or keep Texas and simply weight the data by population, and again the benefits vanish.

(If this data is meaningful, it tends to confirm some criminologists’ opinions that that the deterrent effect does not emerge until you start to execute a lot of people. Killing one or two criminals a year just won’t get people’s attention. Not enough to rise above the noise.)

Basic economic theory says that people respond to incentives, and that’s pretty much what we find whenever we study human behavior, so I’m confident that executions must have some deterrent effect. But if we believe Donohue and Wolfers, then it seems unlikely the effect is very large. I’ve heard of other studies which conclude that each execution only deters 3 murders. That’s $24 million worth of human lives saved at a cost of $38 million—almost $13 million each—which is a poor bargain. And the true deterrent factor could be much smaller.

Understand that I’m not saying we shouldn’t spend tens or hundreds of millions of dollars to save lives. What I’m saying is that resources are scarce (economic crisis or not), so if we decide to spend money saving lives, we should be careful to spend it in a way that will save the most lives possible, which probably isn’t on executions.

In California, for example, the death penalty costs $137 million per year, but with one execution every other year, even using the highest estimates of the deterrence effect, they are preventing only 9 deaths per year. I’m having trouble finding figures, but that sounds like enough to hire hundreds of additional police officers, firefighters, and EMTs, or to cover the unreimbursed operating costs of maybe a dozen Level I trama centers (it depends on the patient mix), or to fund better infection control protocols in the state’s hospitals.

There are dozens of things that might change the benefit-cost calculation for executions, and I can’t possibly consider them all here, but if saving lives is the reason for executing criminals, I think there are better ways to spend our money.

This sounds like good news:

Federal drug agents won’t pursue pot-smoking patients or their sanctioned suppliers in states that allow medical marijuana, under new legal guidelines to be issued Monday by the Obama administration.

It’s about damned time.

Random shots around the web:

I really don’t understand healthcare reform.

People keep saying that one of the biggest problems with our current system is that about 45 million people don’t have health insurance. There are reasons why that number doesn’t tell the whole story, but I can understand why people are concerned. What I don’t understand is how any of the reform plans would fix the problem.

I’ve been meaning to blog about it, but I wasn’t sure where to start. Thankfully, Jennifer Abel has come to my rescue with her op-ed in the Guardian:

Before I say anything about America’s healthcare reform boondoggle, I’d like you to behold my brilliant plan to end hunger once and for all (and then, after you behold it, go and kick yourself for not thinking of it first).

Providing food to those without is simple, really: we’ll just pass a strict law requiring all hungry people to buy some, and if they don’t, fine them harshly enough to persuade even the most recalcitrant ones it’s in their best interest to eat something once in a while.

Now change “food” to “health insurance,” and behold: you have what Congress and President Obama want to inflict upon hapless constituents like me.

Yes, the healthcare plan includes mandatory health insurance for everyone. So the plan for making sure everyone is insured is…to require everyone to buy insurance.

Understand that this isn’t going to make much difference to the 85% of us that have health insurance already. We won’t have to pay a dime under this new plan. The only people who will have to come up with money are the people who are uninsured now. I have trouble seeing how this will help them.

In fact, if we remember Watergate and “follow the money,” the most obvious beneficiary is the insurance industry. How great would it be to work in a business where people are forced to buy your product?

I’ve been skeptical of healthcare reform from the start, but for those of you in favor of it, is enriching the insurance industry what you had in mind?

Over at Popehat, blogger Ezra has a suggestion for future awards of the Nobel Peace Prize:

I submit that the prize be awarded each year in perpituity to the nation of Bhutan. In 1972 their king uttered the simple phrase “Gross National Happiness is more important than Gross Domestic Product.” Since then, Bhutan has systematically and doggedly worked towards increasing the happiness of it’s people. This is not some hippy-dippy rainbows & unicorns idea. It is deeply Bhuddist and something the entire government works towards.

Think about that, a government that is actually concerned about the happiness of it’s people, and is serious enough about it to put the resources of the government into better facilitating that happiness (heh, sorry libertarians..) It’s fascinating to me to see a country take the same principles and statistical management we put into capitalism and focus it on something “touchy-feely.” For that effort alone Bhutan deserves the award.

It’s interesting to look at some of the items measured by the Center for Bhutan Studies in calculating their GNH index:

Emotional balance indicators
Spirituality indicators
Family vitality indicator
Socialization indicator
Kinship density indicator
Dialect use indicator
Traditional sports indicator
Community festival indicator
Artisan skill indicator
Value transmission indicator
Basic precept indicator
Folk and historical literacy indicator
Ecological degradation indicator
Ecological knowledge indicator
Afforestation indicator

I should note that I’ve cherry-picked some of the sillier ones. The GNH also includes a number of reasonable indicators for factors such as health and time use. Still, the sillier ones make it easier to game the numbers.

I think we can forgive Ezra for being charmed by the idea of a government that tries to make its people happy, especially after 8 years of a government that treated us like we might suddenly attack them with exploding footwear. It wouldn’t be as good a story if the facts in Bhutan turned out to be a little ugly.

As it turns out, the facts in Bhutan are a little ugly. The folks at Freedom House have this to say:

Reversing its long-standing tolerance of cultural diversity, the government in the 1980s began imposing restrictions on Nepali speakers, also known as Southern Bhutanese, ostensibly to protect the culture of the ruling Ngalong Drukpa ethnic group. In 1988, the government began stripping thousands of Nepali speakers of their citizenship. The newly formed Bhutanese People’s Party (BPP) responded in 1990 with sometimes violent demonstrations, prompting a government crackdown. Tens of thousands of Southern Bhutanese fled or were expelled to Nepal in the early 1990s, with credible accounts suggesting that soldiers raped and beat many villagers and detained thousands as “antinationals.”

That was all under King Wangchuck the 4th, the same guy who made the pronouncement Ezra quotes approvingly above. I’m guessing that Bhutan’s Gross National Happiness measurement probably didn’t include ethnic minorities.

As you’d expect, Bhutan doesn’t have a terribly free press either, nor freedom of assembly. Protesters and the journalists who report their activities are at considerable risk of arrest.

As Wangchuck 4 gave way to Wangchuck 5, freedom in Bhutan has improved somewhat. Amnesty International is reporting some progress, and with the new constitution and national elections last year, Bhutan is now a constitutional monarchy, which has prompted the folks at Freedom House to upgrade its rating from Not Free to Partly Free.

Bhutan’s ecomony is weak, with a per-capita GDP of only $5200 in 2008. That’s just slightly more than one third of the per-capita GDP of Mexico. Nevertheless, this is a huge improvement over Bhutan’s 2006 figure of only $4100, making Bhutan technically the fastest growing economy in the world.

With figures like that, it’s not hard to see why King Wangchuck was hoping to get people to ignore the GDP.

Popehat has Blawg Review #233 today, and the theme is based on the story of Joshua Norton I, Emperor of the United States and Protector of Mexico. If you haven’t heard of Emperor Norton before, it’s a cool story.

By the way, thanks to my co-blogger Joel, Blawg Review will be coming here in about a month.

A friend of mine sent me a link to a New York Times piece by Randy Kennedy about photographer Mitch Epstein. He’s doing a series of photographs about America’s energy policies, photographing things like gas stations and power plants. As you might expect these days, he gets stopped by police a lot.

I agree with my friend’s assesment:

I remember stories about such things in the Soviet Union or Yugoslavia, thinking how lucky I was to live in America…

I too remember being told about how in Russia the police would stop you if you tried to take pictures of certain buildings. I was glad we didn’t have that here.

As we say, 9/11 changed everything. Suddenly, police got jumpy if they saw someone taking pictures of things like transportation infrastructure and power plants. And they weren’t real happy about having their own pictures taken either.

In one sense, the First Amendment is holding up despite the onslaught. The courts have remained pretty clear on this. Taking photographs in public places is not a crime, and I haven’t heard of anybody getting convicted for it.

On the other hand, just because there’s no law against taking pictures of whatever you want doesn’t mean you are completely free to take pictures of whatever you want. Police can still ask you what you’re doing, ask for ID, and ask to see the pictures. Except maybe for the ID, you don’t have to answer them, and you sure don’t have to let them see your pictures. Most cops are actually well-trained in the freedoms of the press, and if you can manage a professional tone, they’ll give you back a little respect.

But if they get pissed at you for some reason, they can do a lot of things to harass you, starting with detaining you and taking your (possibly very expensive) camera. They’re not supposed to take your camera without a court order, and your lawyer can get their lawyer to make them give it back, but if there are no pictures in memory, or the camera is damaged, they can say it was that way when they got it.

Actually, the cops are allowed to seize your camera without a court order if they’re in the process of arresting you, and a few photographers have found themselves arrested for some catch-all crime like disorderly conduct or interfering with police business. These charges usually don’t stick, but they’ll mess with your life and discourage you from taking those kinds of pictures again. Which is the point, and the problem.

Carlos Miller has a whole website about these kinds of incidents at Photography is Not a Crime.

Well, now that the Nobel Committee has decided that the major qualification of a peace prized laureate is being Not George Bush, I think there’s a few folks worth considering, beyond those usually being mentioned.

Hell, restricted this just to folks who, like Nobel Laureate Jimmy Carter, have been President, we’ve got quite a few choices.  I suggest the following

Bill Clinton: in the Agreed Framework, when President Clinton explored the inadequacy of remuneration for absention agreements in limiting nuclear proliferation, he expanded pioneering work beginning with Aethelred the Unready’s payments to the Danes and continuing with the surprisingly un-awarded Neville Chamberlaine’s work, almost a thousand years later, at the Anglo-German declaration in Munich.  For this expansion on previous implementations of danegeld, Clinton is far more worthy of the Nobel than Obama.

Ronald Wilson Reagan:  there are few things in modern history that have both distanced the spectre of global war and increased the opportunity for peaceful development than the collapse of the Soviet Union. While quite literally billions of people aided in that effort, the final push culminated during the Reagan administration, with the Strategic Defense Initiative, which finally forced the Soviets to spend themselves into bankruptcy and irrelevance; the fall came soon after.  While, clearly, the fathers of SDI include not only General Daniel Graham, as well as Pournelle and Possony — see the Strategy of Technology — the final push by the Reagan administration included persuading the Saudi entity to lower oil prices, forcing the Soviets to deplete their cash reserves, rather than selling oil to enhance them, a .

Harry S. Truman: Operation Downfall would have finally ended WWII, certainly, but at a huge cost of lives, both US and Japanese.  Casualty estimates for the Olympic campaign vary, but there’s little reason to quibble with the Shockley estimates of hundreds of thousands of Allied deaths, and multiple millions of Japanese.  The bombings of Hiroshima and Nagasaki resulted in roughly a quarter million deaths — an order of magnitude smaller.   

[I started writing this days ago, and the story’s gone stale, but I’m posting so little these days that I figured I should get it out there.]

Some time ago, Radley Balko brought us the story of Sally Harpold, who bought two boxes of cold medicine within a few days of each other, thus violating Indiana’s law against buying more than 3 grams of pseudoephedrine within a one week period.

The idiocy of setting the limit so low is astounding. It’s based on a single person’s normal consumption, which means that if you and your spouse catch the same cold, you each have to make a trip to the drug store to buy medicine. If your kids catch the cold too, they’re out of luck, because there’s no one left to buy medicine for them. And if you forget to take the bottle to work, you have to sniffle all day, because you can’t just buy another one. And be careful handling the bottle, because if you spill it you can’t get a replacement.

It’s almost as if they weren’t thinking at all when they wrote these laws. Or else they were thinking more about the needs of law enforcement than about anything related to justice or prevention of harm. There’s a lot of that going around.

I’ve been trying to come up with a taxonomy of bogus criminal charges—the kinds of crimes that make me very suspicions whenever I hear that someone was charged with one of them. So far, my taxonomy is pretty sparse, and I don’t have a clear idea of how the categories fit together, but I’m getting there.

For example, one of the categories is fictitious crimes. These are crimes where some of the elements are legal fiction. The classic example is Possession With Intent, in which a suspect is accused of having drugs in a large enough quantity that he must have intended to sell them, even though there’s no evidence of him having done so. Any connection to selling drugs exists only in the mind of the cop, prosecutor, or legislator, depending who you want to blame.

Closely related, but slightly different, is something I call trimming the elements. That’s when you have a crime that’s just like another crime, except it’s missing one of the elements. I’m not talking about legitimate differences in the degree of harm such as the lack of a weapon or wounding or whatever it is that makes Battery a lesser crime than Aggravated Battery. I’m talking about situations where the lesser crime has been created simply to make the job of law enforcement easier by removing an element that’s inconvenient to prove. Consider the crime of Drinking While Driving. It’s kind of like Drunk Driving, except they don’t have to prove intoxication. They just have to catch you drinking booze while driving.

When the legislature trims the elements far enough, they eventually get to things that are completely non-crimes. For example, the tricky part of arresting someone for Drinking While Driving is that the cop has to catch them in the act. Sneaky people who want to drink while driving can just pass the bottle to a friend if they get pulled over.

The legislative response has been to snip off the element of the crime that involves actually drinking the booze, resulting in Open Container laws that make it illegal to have an open alcoholic beverage container in the passenger area of a car, even if the driver isn’t drinking from it. In their zeal to punish dangerous behavior, legislators have made a crime of the completely harmless act of letting your friends drink while you drive.

Grandma Harpold’s crime seems to fall into this last category. In particular, it’s a subset of non-crimes I think of as criminalizing the suspicious. That’s when the legislature decides to make it easier for cops to arrest us by making it a crime to do something that was formerly a mere cause for suspicion. A lot of the crimes that the feds call “Money Laundering” work this way.

Until these pseudoephedrine laws were passed, a drug cop who noticed someone buying a lot of pseudo might suspect that they were planning to cook it up into some crystal meth. But bare suspicion would only be the beginning. To make his case, the cop would have to conduct a full investigation—perhaps involving surveillance, interviews, and undercover operations—until he could prove the suspect’s involvement in the drug trade.

That’s a lot of hard work. It takes time and costs money. Wouldn’t it be so much easier if, instead of all that labor-intensive investigation, the legislature just made it a crime to buy too much pseudoephedrine? That way, when cops found out someone bought a lot of pseudo, they could skip all that dreary and difficult investigation and cut straight to the arrest.

Note that in describing these bogus crimes, I’m not asking you to accept any crazy libertarian ideas about freedom. You don’t have to believe that the war on drugs is evil to understand that there’s something wrong when police can arrest a grandmother for buying medicine for her family.

About the only good thing I can think about in the whole Polanski fooforaw is that it gives folks who wouldn’t otherwise have had one an easy opportunity to stake out a not particularly morally difficult or brave position against middle-aged guys raping young girls, and in favor of said assholes being given appropriate punishment for it.

Miami lawyer Brian Tannebaum takes a little time out from both what is apparently a very successful legal practice (as well as endless fascinating with moderately expensive wine and an obsession as to which group of men is marginally better at transporting an oblate spheroid constructed of a fragment of inflated swine’s epidermis in an arbitrary direction) to point out some obviousnesses; Brian has, from time to time, a keen eye for the obvious.

A lot of folks have been blogging about Polanski.  I’ll join in, perhaps, but  . . . I’d like to know a little more, before I start flogging my own keen eye for the obvious.

Which leads to my questions — which aren’t of the hypothetical of “What sort of rope would, in a saner society, be used to execute the ‘suspended sentence’ that the bastard deserves?” as easy and tempting a target as that might be.

Nah.  Realistically — and forgetting about what should or shouldn’t be done — what sort of sentence would a guy who doesn’t have a plea bargain be likely to face, today in California, for the offense Polanski pleaded guilty to?  (I’m not asking about what somebody who pled out recently would get; the law may have changed in CA in the ensuing decades, and I’m assuming — although certainly willing to be corrected — that he’d be sentenced based on what the law was then, as opposed to now.)

Also:  on the flight charge or charges, what would the CA crimes be that he’s at least possibly going to be prosecuted for violating by his flight?  And what, should he be charged and convicted, would he likely to face in terms of time for those?

I’m not asking any lawyer to put his law license into the pot for the purposes of satisfying my curiousity, but if anybody — with or without a law degree — has any knowledge on the subject that they’d care to share, I’d love to see it in the comments.


The AP’s Deborah Yao explains:

The Federal Trade Commission will try to regulate blogging for the first time, requiring writers on the Web to clearly disclose any freebies or payments they get from companies for reviewing their products.

The FTC said Monday its commissioners voted 4-0 to approve the final Web guidelines, which had been expected. Violating the rules, which take effect Dec. 1, could bring fines up to $11,000 per violation. Bloggers or advertisers also could face injunctions and be ordered to reimburse consumers for financial losses stemming from inappropriate product reviews.

I’ve done a few product reviews—mostly books—and I’ve been thinking about doing more, but that $11,000 fine sounds scary. That’s more than all the money I’ve made off this blog in the entire seven years I’ve been writing it. I wonder what sort of disclaimer I’ll have to include to avoid a disasterous fine?

The commission stopped short of specifying how bloggers must disclose conflicts of interest. Rich Cleland, assistant director of the FTC’s advertising practices division, said the disclosure must be “clear and conspicuous,” no matter what form it will take.

Aw, come on! What does that mean? Is it enough to say “I got a free copy of this book to review”? Should I boldface it? Put a box around it? When they tell us to obey the rules, it would sure help if they’d actually tell us what the rules are.

The FTC’s proposal made many bloggers anxious. They said the scrutiny would make them nervous about posting even innocent comments.

To placate such fears, Cleland said the FTC will more likely go after an advertiser instead of a blogger for violations. The exception would be a blogger who runs a “substantial” operation that violates FTC rules and already received a warning, he said.

So if I review some product and forget to disclose that I got it for free, the best case is that the FTC will go after the advertiser who, having no control over what I disclose, is totally blameless. The worst case is that some FTC bureaucrat will decide my blog is “substantial,” which I’m going to guess is not actually defined in the guidelines.

It has always pissed me off how much Congress delegates their legislative authority to regulatory bodies. Rather than spell out the law and the consequences so that we can understand them, Congress all too often simply empowers some agency to work out the rules and the punishments.

Then, as in this case, by not spelling out the details of the required disclosure or the criteria for enforcement, the directors of the regulatory agency punts the decisions about the details into the hands of some future bureaucrats. In the worst case, what a blogger can or cannot do will depend on a series rulings and court cases instead of some clearly defined statute.

Well, that’s not quite the worst case, as Patrick at Popehat illustrates:

Define “substantial,” in plain English, please.  And also, define how the guidelines will punish those who file frivolous FTC complaints against a blogger for reasons that have nothing to do with advertising. “Hey, this guy sure does criticize the government a lot. I wonder whether he’s getting free stuff from Amazon?”

Exactly, although I doubt they’d take on someone like Glenn Reynolds. He’s far too mainstream. I think they’ll use this as an excuse to attack what they’ve always attacked: Things that are, by some politicaly useful definition, sinful. If these guidelines go into effect, it won’t be very long before they hit sites that review pornography, tobacco, alcohol, and guns.