November 2009

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It looks like Seattle police may think the Sunday morning shooting deaths of four Lakewood police officers was the work of a guy who was reportedly out on $150,000 bail from another couple of crimes. However, the thing that everyone’s going to be talking about is the fact that he had previously been sentenced to a 95-year sentence in Arkansas, but he was released early after his sentence was commuted by then-Governor and former—and presumably future—Republican presidential contender Mike Huckabee.

For Huckabee, this could be a Willie Horton moment. The suspect is even black like Horton, meaning that Huckabee’s defenders will get to call his detractors racists. If the discussion of the political implications for Huckabee goes on more than a couple of days, then I predict that this will mark the beginning of the 2012 campaign season.

I’m more worried that it will lead to an election-fueled backlash against lenient treatment of prisoners. Don’t get me wrong, I’m not saying that a guy who kills four cops should be let out the door, and if our legislators can craft a fine-tuned change to the law to prevent such catatrophes, I’m all for it.

The thing is, our legislators can’t do that. Oh, they might start with a law that only punishes the truly violent and depraved, but then they will slide down that slippery slope of harsher and harsher sentences until the prison population grows by yet another million.

Remember the “three strikes” laws? They were supposed to hit repeat violent offenders with really long sentences so they can’t anyone else. The concept has devolved over the years to include harsh sentences for smaller and smaller crimes, including victimless crimes like drug dealing. In some places, a few grams of cocaine can land you in jail for 20 years if you have prior offenses. A repeat DUI offender can get a 55-year sentence in Texas.

It’s not hard to imagine this incident touching off another round of “get tough on crime” bills—some of them named after the dead police officers, no doubt—that miss the mark and hurt a lot of people who don’t deserve it.

Or maybe I’m the one who’s over-reacting and nothing like that will happen.

For the last twenty years or so, my wife and I have spent every Thanksgiving with my parents. However, my parents both passed away this year. Everyone says the holidays are hard times after a loss, and I’ve had two of them, so I’ve been a bit concerned about how this Thanksgiving would go. Fortunately, some good friends have invited us to join them for dinner.

This year, my friends have helped me through a lot, and they’re still helping. This Thanksgiving, I’m thankful for my friends.

I’m guessing that most of you are neither lawyers nor career criminals, which means that, like me, your most significant role in the criminal justice system is probably going to be juror. As Norm Pattis explains, this means you’re going to be kept in the dark:

When we refuse to let juries know the truth about the consequences of a conviction in a criminal case we hamper a jury’s ability to check the abuse of power. Juries that are not fully informed can’t do their job. Withholding truth from juries is dishonest…

We want juries to decide facts and facts alone, leaving to the judge the responsibility to impose such conditions as the law requires. This rigid separation of fact and law results in moral paralysis, however. In what other context do we ask folks to make a decision regardless of the outcome?

Be sure to read the whole thing.

Allowing the jury to makes its decisions without knowledge of the consequences would make sense if the jury’s fact-finding process was well-defined—like a laboratory test or a gymnastics score—but it’s not.

The instructions to jurors famously include the phrase “proof beyond a reasonable doubt” but, almost as famously, the word “reasonable” is never defined for the jury. It’s left to the jurors themselves to figure out what it means. And as a practical matter, wouldn’t you expect that the reasonableness of the doubt depends on the consequences of being wrong?

Random shots around the web:

 (Hat tip: Megan McArdle, Virginia Postrel, Radley Balko)

Putting a public option in the comprehensive healthcare reform bill is a stupid idea.

Note that I’m not saying that the public option is a stupid idea, nor am I saying that comprehensive reform is a stupid idea. Either or both of those things could be stupid, but that’s not what I’m talking about. I’m saying it’s stupid to have a comprehensive reform bill and a public option.

Here’s why: The stated purpose of the public option is to ensure that insurance companies offer quality healthcare by providing a competing option. If employees don’t like any of their private choices, they can take the public option. Because of this, a public option is a complete solution to the healthcare insurance problem. No other significant tinkering is needed.

A healthcare reform bill with a public option needs only to spell out the terms of the public option to guarantee that every American can receive that level of healthcare. It doesn’t matter what other healthcare plans are offered by employers, because if they are inadequate, the employee can always avoid them and choose the public option. And if the private plan is better than the public option, then the employee is better off by choosing it. Thus, no private plan can make an employee worse off, so there’s no need for additional regulation.

Regulation of the healthcare insurance business and a public option for healthcare insurance are two solutions to the same problem. One of them is unnecessary.

“We tend to idealize tolerance, then wonder why we find ourselves infested with losers and nut cases. — Patrick Nielsen Hayden “I have seen gross intolerance shown in support of tolerance.” — Coleridge

Cue the music.

The United Nations has proclaimed today, November 16, as the International Day of Tolerance. This came in the wake of the UN proclaimimg 1995 the International Year of Tolerance — whose successes Wikipedia documents in grueling detail. (Apparently, many did not get the memo.)

Worldwide response to this abbreviated version has been dramatic.



The anonymous multi-author blog Popehat has a lot of good stuff, but earlier this week, blogger “Patrick” posted some irresponsible alarmist claptrap that I cannot in good conscience allow to remain unanswered. I’m talking, of course, about his long-winded and poorly-reasoned discourse on the so-called “zombie apocalypse.”

Patrick tries to frame the debate as a question of whether we should be more frightened of slow-moving or fast-moving zombies, apparently hoping we will blindly accept the preposterous premise that zombies are an existential threat to humanity.

The best depiction of such things in action comes from the films of George Romero, specifically Night of the Living Dead, Dawn of the Dead (avoid the shoddy and inferior “remake”), and Day of the Dead, cautionary fables based in actual fact, concerning the remote but ever-present possibility of worldwide holocaust at the hands of the hungry dead.

I’m not a zombie denialist, and I certainly have no sympathy for the zombie coddlers who advocate we follow a live-and-let-rot policy. Nevertheless, zombie outbreaks are purely a local problem. Talk of a “worldwide holocaust” is at best misinformed and at worst a deliberate manipulation for political or financial gain.

There are six main reasons there won’t be a zombie apocalypse.

The first reason is the simplest to understand, and it provides the title of this blog post. Zombies will not overcome humanity because we can shoot them in the head. Or chop their heads off, or blow them up, or crush them under the wheels of a truck…anything, really, that stops the brainstem from controlling the body.

This always works. In every account of a zombie outbreak, regardless of whether the zombies are fast or slow, regardless of whether they are caused by an infection which makes people violently insane or whether they are truly the risen dead, shooting them in the head always, always ends the threat.

And the really great thing about shooting zombies in the head is that everybody knows about it. In every new zombie movie, the hapless victims may gape in slack-jawed fear at the zombies’ resistance to damage, but the audience is yelling “Shoot them in the head!” at the screen.

(Documents recently declassified by the Obama administration reveal that the “two to the chest, one to the head” police gunfight tactic introduced in the 1980’s was not driven by fear of assailants wearing body armor as claimed in the training manuals, but was in fact part of a DOD civil defense initiative intended to covertly prepare first responders for zombie outbreaks.)

The second reason there won’t be a zombie apocalypse is the inverse of the first. When you think about it, it shouldn’t be so surprising that a bullet to the head works on zombies, because a bullet to the head works on a lot of problems, including people. We’re as vulnerable to a headshot as the zombies are. But here’s the important part: Zombies don’t shoot people in the head.

That’s because zombies are not tool users. They show almost no sign of being able to use weapons, and in the few reported cases of weapon use, they were largely ineffective. Some dim memory of humanity may allow a zombie to fire a gun, but there is no evidence that they have the forethought, wisdom, or manual dexterity to load a gun.

The third reason there won’t be a zombie apocalypse is revealed in the walking v.s. running debate: Some zombies may follow you in a slow walk, and some zombies may charge you in a dead run, but no zombie is ever going drive a car to catch you. The most advanced motorized conveyance ever used by zombies is a shopping mall escalator.

So when the living dead come after us, we can just hop in our cars and drive away, while the army drives a few battalions of troops into the heart of the zombie infestation to shoot them in the head.

Whenever I lecture on the importance of not overstating the zombie problem, the most common objection is that since our dead will turn into zombies, the more of us they kill, the larger their army grows. They will get stronger as we get weaker, until they outnumber us.

The truth—and the fourth reason there won’t be a zombie apocalypse—is that we vastly outnumber them, and we always will.

Sure, when someone dies during an ongoing zombie incident, there’s a possibility that their body will rise up to become another zombie, but the idea that people killed by zombies will turn into zombies is a fiction that irresponsible film makers have foisted on the public. It makes for great drama when someone receives a mortal wound from a zombie, but limps back to his brothers in arms, only to die and rise as a zombie against them. But in real life—as both the film makers and the they-will-outnumber-us alarmists are conveniently forgetting—it almost never happens that way.

The reality is that most zombie-caused fatalites are due to an individual’s being outnumbered and overwhelmed by the undead, with the inevitable result that the victim is eaten. It’s kind of hard to rise from the dead when your flesh has been stripped away by a ravenous hoard of ghouls. This is especially true when the zombies are the brain-eating variety, since having their brains eaten is provably just as bad for zombies as shooting them in the head.

The fifth reason there won’t be a zombie apocalypse is that zombie resurrection can be prevented by routine public health practices with regard to disposal of dead bodies. The CDC recommends that bodies should be disposed of by direct cremation in times of zombie infestations. If convenient cremation is unavailable, or if families object, hospital personnel (or first responders in the even of an unattended death) can discretely sever the deceased’s spinal cord at the base of the skull.

At the risk of repeating myself, I should also point out that in emergency situations, the responsible state agencies—or even groups of concerned citizens—can quell zombie activity among human casualties by shooting them in the head.

The sixth reason there won’t be a zombie apocalypse is that zombies just aren’t very effective combatants. In addition to not employing weapons or vehicles as force multipliers, zombies lack coordination at even the tactical level, and they are incapable of developing and promulgating evolving combat doctrines.

In the 1940’s the free world beat back the industrialized might of Germany and Japan, and throughout the remainder of the century we were prepared to do the same to the Soviet Union. By comparison, zombies are a weak, disorganized, low-tech threat, comparable to terrorists or small insurgencies at best.

Even that gives us too much credit, because insurgent warriors can sometimes fend off a large industrialized opponent by hiding out among the general population and only attacking when they are certain to obtain a tactical victory. Through this process, they wear down the morale of their opponent’s civilian population or the will of their government until the opponent eventually gives them what they want.

This is standard revolutionary doctrine, but it won’t work for the zombie hoards because (a) they lack a sense of a common goal, (b) they are unable to restrain themselves from attacking even in cases where they will clearly lose, (c) they are unable to hide among the general population, and (d) no matter how far our morale drops, we’re never going to give them what they want, because what they want is to eat us.

For all these reasons, zombies are not a significant threat to national or species security. Zombies victories are almost always the result of an unexpected outbreak hitting a small group of people. Once the alarm is sounded and professional counterzombie forces are brought to bear on the problem, it is quickly resolved. At the end of the day, we just have to shoot them in the head. 

What happens when a bunch of students at Danvers High School in Massachusetts have fun at school by saying “Meep” like Beaker on The Muppet Show?

Principal Thomas Murray bans it and threatens them with suspension.

Then, when a smart-ass lawyer sends an email to school officials saying, in its entirety,


Theodora Michaels

…what happens then?

Assistant Principal Mark Strout responds by forwarding her mail to the Danvers Police Department.

So what happens when the story spreads across the interweb and people everywhere start writing about it?

Well that’s all up to you now, isn’t it?

(Hat tip: Scott Greenfield)

This is priceless:

Dear Professor Lessig:

I have been informed that you are having former New York Governor Eliot Spitzer speak on ethics this Thursday November 12, 2009. This sounds fascinating and I would love to attend but the restrictions of my probation won’t allow me to travel out side New York City.

For nearly 5 years, I supplied Mr. Spitzer with high priced escorts while he was both Attorney General and Governor.  For this crime, I served four months on Rikers Island, had all of my assets confiscated and am now considered a sex offender on 5 years probation. Mr. Spitzer broke both state and federal laws and walked away free.

I am greatly intrigued as to what Mr. Spitzer could contribute to an ethical discussion when as Chief Executive Law Enforcement Officer of NY he broke numerous laws for which he has yet to be punished. As Attorney General he went around arresting and making examples out of the same escort agencies he was frequenting.

That’s Manhatten madam Kristin Davis, who has a few questions for the former Governor, such as:

3. Is it ethical for you to tip off your favorite escort service days before a bust so that they may disappear?

4. Is it ethical to try to book an assignation with a escort under a fake name after you were banned by my agency for being abusive to women?

I’m guessing he won’t have a lot of answers.

(Hat tip: Hit & Run)

Looks like the Fox network killed off yet another show I like, adding Dollhouse to a list that includes Terminator: The Sarah Connor Chronicles, Drive, John Doe, Strange Luck, Profit, Millenium, The Adventures of Briscoe County Jr., and of course Firefly.

Special note to Joss Whedon, Tim Minear, and Summer Glau: The people who run Fox don’t really like you. They are only pretending to be your friends so they can be mean to you by cancelling your shows.

One bit of good news for Joss fans, I guess, is that this might speed up the Dr. Horrible sequel.

Veteran’s Day always made me think proudly of my father. Now that he’s passed on, it’s kind of a sad day. I’ve got nothing else to say, really.

the Berlin wall fell:

At the end of a plodding news conference, Politburo spokesman Guenter Schabowski offhandedly said East Germany was lifting restrictions on travel across its border with West Germany.

Pressed on when the regulation would take effect, he looked down at his notes and stammered: “As far as I know, this enters into force … this is immediately, without delay.”

Schabowski has said he didn’t know that the change wasn’t supposed to be announced until the following morning.

East Berliners streamed toward border crossings. Facing huge crowds and lacking instructions from above, border guards opened the gates — and the wall was on its way into history.

I guess they saw that the fall of the wall was inevitable, so everybody just decided to roll with it.

Miami Criminal Defense Lawyer Brian Tannebaum asks us “Why do conservatives apologize for the government?”

But there is a more disturbing trend in conservative thought when it comes to criminal justice. Maybe it’s not a trend, just more visible with the advent of blogs and online comments on newspaper websites, but it appears that conservatives have abandoned their desire for limited government.

? That cracks me up every time I read it. Yes, Brian, the Bush Administration did not exactly make its mark by shrinking the government.Appears

I say this because more and more I read comments in response to innocent people being released, charges being dismissed, and not guilty verdicts that are written by conservatives apologizing for not rooting for the government.

“Hey listen, I’m a conservative, and I think they overcharged this guy.”

“I think the government went way overboard in this case and I’m a conservative.”

“I can’t believe the prosecutors are wasting their time with this case, and I’m a conservative.”

So, please, tell me, what am I missing?

That’s not an apology. That’s strengthening the credibility of their opinion by pointing out that it goes against their law-and-order predisposition. To see how this works, let’s try substituting a different political persuasion. Which of the following statements carries more rhetorical weight?

“Hey listen, I’m a conservative, and I think they overcharged this guy.”

“Hey listen, I’m a liberal wine-drinking criminal defense lawyer, and I think they overcharged this guy.”

The first one is surprising, and it gets your attention. The second one, not so much.

My understanding is that conservatives, while chest beating their “law & order” philosophy that has turned our criminal justice system into political talking points for elected officials, believe in limited government and believe that a government with too much power is a “bad” thing.

So why do conservatives apologize when they believe the government has gone too far in the criminal justice context?

Are they hypocrites, or am I confused?

Well, I don’t know about Brian, but I’m certainly confused. How is it inconsistent for conservatives who hate big government to lament clear cases of government going wrong?

I can’t speak for conservatives, but I think I might have an understanding of how libertarian conservatives see the situation, and why it confuses other people.

The key insight is that when (libertarian-ish) conservatives say they want small government, they don’t mean they want government to be smaller in general. Rather, “small government” is shorthand for a government that limits itself to a few critical tasks, such as national defense, crime prevention and criminal justice, and a civil court system for enforcing contracts and handling torts.

Libertarian conservatives are not offended when the government wields immense powers in the execution of these tasks because these tasks are the defining reason for having a government. If not for the need for national defense and criminal and civil justice (and a few other things), there’d be no need for a government at all.