Author Archives: Mark Draughn

America’s Harvest Box: Socialism for Republicans

About a year ago, my friend Jennifer was mocking our current lack of school choice with this analogy to the Supplemental Nutritional Assistance Program (SNAP):

…the system we have, wherein people are given food stamps to spend at whatever store they please, is FAR better than a system wherein poor people are only able to get food from ONE specified grocery store in their neighborhood — and if that store is subpar and has a crappy selection of food, tough shit for them; if they want to shop at a decent grocery store, their only option is to move to a neighborhood which has one. Yet that dysfunctional hypothetical is EXACTLY how our public education system works now.

The SNAP program is far from ideal, but it’s much better than Jennifer’s laughably zany idea.

Fast forward a year, however, and it turns out that the Trump administration has come up with something much, much dumber.

The Trump administration wants to slash food aid to low-income families and make up the difference with a box of canned goods — a change that Office of Management and budget director Mick Mulvaney described in a Monday briefing as a “Blue Apron-type program.”

“What we do is propose that for folks who are on food stamps, part — not all, part — of their benefits come in the actual sort of, and I don’t want to steal somebody’s copyright, but a Blue Apron-type program where you actually receive the food instead of receive the cash,” Mulvaney said. “It lowers the cost to us because we can buy [at wholesale prices] whereas they have to buy it at retail. It also makes sure they’re getting nutritious food. So we’re pretty excited about that.”

People have come up with a lot of questions about this plan, and I have a few concerns of my own.

[Update: And so does my friend Jennifer, who scooped me on this angle with a post of her own.]

Will it really be cheaper? Sure, the government can buy the food in bulk, but they still have to distribute it to everyone, which is a job that retailers do right now. Can the government actually perform the distribution cheaper than people whose livelihood depends on controlling costs?

What about delivery costs? Under the current system, the cost of getting the food to people’s homes is born by the SNAP benefit recipients themselves, in the sense that they pick the food up themselves. Granted, delivery is probably a nice time-saving benefit for recipients, but there’s no way it’s cheaper for the government.

What about people who move a lot? What about transients and migratory farm workers? What about people who crash with friends? What about the homeless? How will the delivery service work for them?

(Frankly, I wouldn’t expect the deliveries to last. Somebody will decide that since poor people aren’t working, they have plenty of time to pick the food up from a local depot…thus more closely conforming to Jennifer’s original mocking suggestion.)

Even if the system of in-kind food distribution reduces costs, I’m pretty sure it will be far from cost effective — recipients will be getting far less bang for the buck. With food stamps or EBT cards, the recipients get to make their own choices about which foods to buy, which means they can carefully target their needs. That’s just naturally more efficient than letting distant bureaucrats decide what they need.

I hope these food packages will be customized to handle common medical situations, such as low sugar for diabetics, gluten-free for people with celiac disease, no peanuts for those with allergies. On the other hand, the proposed “America’s Harvest Box” program closely resembles the USDA’s current Commodity Supplemental Food Program, which offers only 52 different foods. Even a 7-Eleven stocks over a thousand items.

In any case, there are other reasons besides medical needs for customizing food choices. Secretaries, store clerks, dock workers, nursing mothers, and heart patients all have different food requirements. In addition, many poor people don’t have very versatile kitchens, so they would be better off if they could select foods they can cook easily. And it’s a lot easier to satisfy a picky child with the 30,000 choices from a grocery store than to force them to eat foods they don’t like.

In the long run, with billions of dollars to be spent on food every year, the selection of items to offer is almost certain to be captured by lobbyists for the agriculture industry. They won’t care what foods poor people like, and they won’t even much care what foods are healthy. Instead, food choices will be driven by which agricultural sectors contribute the most money to campaigns or have the most employees in swing states.

The craziest thing about “America’s Harvest Box” program is that it is a giant government-run program proposed by Republicans. Conservatives are supposed to love efficient free markets and hate planned economies, but when Republicans propose programs like this, it shows they don’t really understand why free markets are good. They don’t really believe that individual consumers making choices for themselves will be far better at it than buildings full of government bureaucrats. They only give lip service to “free markets” because it’s what they think their donors want to hear. In practice, gigantic socialist agricultural programs go over just fine with American Republicans. 

Show Me the Memo! Or GTFO!

If I’m following the story correctly, California Representative Devin Nunes, a Republican who sits on the House Intelligence Committee, has prepared a 4-page memo which purports that the FBI lied in some way to the Foreign Intelligence Surveillance Court (FISC) to get permission to wiretap a Trump aide who was supposedly talking to the Russians. 

Democrats are arguing that Republicans only want to release the memo to protect Trump by derailing Muller’s Russia investigation. Republicans are arguing that the memo should come out because it will show that the Russia investigation is driven by partisan hackery. And now the FBI is now saying they have “grave concerns” over the memo because it is misleading and reveals secrets.

To hell with all of them. Either show us the memo or shut up about it. All this speculation is pointless when the memo itself is right there.

The First Year of President Trump

I gotta say, it hasn’t been as bad as I thought it would be.

Last year about this time I was concerned about four major policy areas where I thought Trump could ruin things. He’s been active in all of them, but as I suggested, he’s done the most damage in the area where he has the most direct control: Immigration. Trump’s attempt at a Muslim ban fell apart pretty quickly because it was so poorly executed (although that did not stop our traitorous Homeland Security department from trying to stop permanent residents from re-entering the country). He keeps trying though, with the result that our immigration system is in turmoil. He has also been creating chaos for the “Dreamers” who were brought here as children, leaving their status unresolved and in jeopardy for most of the year. Trump is a wrecking ball.

Lest you think Trump has some principled objections to illegal immigration, he’s also been pushing for more restrictions on legal immigration, including a reduction in the diversity lottery, reduced acceptance of refugees, restrictions on family immigration, and a bizarre scoring system for merit-based immigration.

Trump has done less damage to our healthcare system. The direct Obamacare repeals all failed, and cutting the advertising budget appears to have only slightly lowered enrollment this year. On the other hand, the tax bill removes the individual mandate for next year, without making much in the way of offsetting adjustments, which greatly increases the risk of a health insurance death spiral in 2019.

Trump is moving even slower on Trade. He appears to have killed U.S. participation in the Trans-Pacific Partnership, but that hadn’t been approved anyway, so it’s not so much a setback as a failure to make progress on a trade deal that wasn’t all that great. On the other hand, the recent tariffs on solar panels and washing machines show Trump’s willingness to steal from some Americans for the benefit of the better connected. In addition, that kind of unpredictability discourages investments.

Finally, I haven’t been paying a lot of attention to foreign policy, but I think I would have noticed any really bad blunders, like nuclear war. And the leaders of most other nations seem to understand that Trump’s bluster shouldn’t be taken too seriously. (The fireworks in North Korea have remained rhetorical.) I do have this vague impression that by restricting trade we are losing influence, and nations like China are moving in, but that may have happened anyway as China becomes wealthier.

Clearly some people have lost big under Trump, but as bad as some of those things are, the overall damage has been surprisingly limited: The broad economic indicators have continued their long streak of improvements and no major disasters have befallen us.

To be honest, I expected much more of a shit show, but things have held together better than I thought.  I think this reflects less on Trump as a President than on the resilience of our institutions, but it’s still good news.

For the coming year, I expect continued turmoil in all of these areas, and I’ll add criminal justice to the list, as the Trump administration continues to reverse federal policies and as the reduced oversight of state law enforcement plays out.

(Now let’s see what happens in the State of the Union address.)

Shitholes and the American Dream

I know I’m late to this story, but it took me a while to figure out how to say what I wanted to say about one of the more recent things President Donald Trump said about immigration:

President Trump grew frustrated with lawmakers Thursday in the Oval Office when they discussed protecting immigrants from Haiti, El Salvador and African countries as part of a bipartisan immigration deal, according to several people briefed on the meeting.

“Why are we having all these people from shithole countries come here?” Trump said, according to these people, referring to countries mentioned by the lawmakers.

Trump then suggested that the United States should instead bring more people from countries such as Norway, whose prime minister he met with Wednesday.

I do think people should be mad at Trump, but I think a lot of people are mad at him for the wrong reason.

Many people, especially those from Haiti and Africa, have been disputing the word “shitholes.” Given the sorts of things I write, I can’t complain about the obscenity, and if we take “shithole” as a hyperbolic way of saying those are not very nice places to live — at least when compared to developed countries like the United States — then many of those places are indeed…crudely speaking…shitholes.

Obviously, quality of life varies from person to person, and there’s no clear way to measure it, but there are some commonly-accepted proxy measurements, such as GDP per capita, infant mortality, and the Freedom House rating. So we can observe that Haiti has a GDP per capita of $1,784, which is less than 1/30 of what we produce in the United States, the infant mortality rate is eight times higher than the U.S., and Freedom House rates Haiti as only Partly Free.

Furthermore, when Haiti was hit with a magnitude 7.0 earthquake just outside of Port-au-Prince in 2010, the collapse of its poorly-constructed buildings killed at least 100,000 people. By comparison, when a similar 6.9 earthquake struck near far-wealthier San Francisco in 1989, it killed only 63 people. After Haiti’s earthquake, the country suffered a cholera outbreak that killed an additional 9,480 people. Compared to how we live in the United States, Haiti is a pretty awful place to live.

Sub-Saharan Africa is more of the same. GDP per capita is about $3,823 per person per year. Of the 25 largest countries, encompassing 90% of the population, the best economic performance comes from South Africa, with $13,225 GDP per capita, which is less than 1/4 the US GDP per capita. Infant mortality in the best country is five times that of the United States, and about half the countries have infant mortality rates more than ten times the U.S. rate. Freedom House’s ratings tell us that 39% of the population is living in countries that are not Not Free and only 11% of the people are fully Free. Of the seven famines that have occurred so far this century, six of them were in Africa.

These are not uniformly terrible places. They have pockets of commerce and industry, of art and science, and they have some areas that are great places to live. But on average, for most of the people living there, quality of life sucks compared to the United States.

It’s important, however, to put this in perspective. Modern humans first show up in the fossil record about 300,000 years ago. For most of the time since then, up until the start of what economist Deirdre McCloskey calls “The Great Enrichment” a few hundred years ago, the average human lived on the equivalent of about $3 per person per day, and the infant mortality rate was as much as fifty times worse that the current U.S. rate. The poorest countries of the world today, including Haiti and Africa, have a quality of life that is still better on average than what most humans have experienced throughout almost our entire existence as a species. In other words, until quite recently, the entire fucking planet was a shithole.

(Just as there are exceptions within even the poorest countries today, there were exceptions throughout history — wealthy cities such as Babylon, Memphis, Athens, Alexandria, Rome, Constantinople, Tenochtitlan, and Beijing — but only a small group of people were ever able to live in them.)

Author William Gibson famously said, “The future is already here — it’s just not very evenly distributed.” He might as well have been talking about the Great Enrichment. It started a few hundred years ago and it took off big time in the West. It’s spreading everywhere, but in some places it has only just begun.

Having said all that, I still think Trump, and people who agree with him, are badly wrong. To begin explaining why, let me tell you two true things about myself:

True Thing #1: Judging by my income, I am one of the most productive people in the world. I’m easily in the top 1% world-wide. (See the Global Rich List to find out how you rank.)

True Thing #2: True Thing #1 has almost nothing to do with me. I’m reasonably smart, reasonably well educated, and I have a reasonably good work ethic, which helps a bit, but almost all of my advantage over the rest of the world comes from having the great good fortune of living in the United States. If I were to move to Haiti or El Salvador or Zimbabwe, my productivity, and therefore my income, would crash down to the local levels or worse. I would probably die an early death.

The opposite is also true: Conditions in the “shitholes” of the world have almost nothing to do with the people who live there. Trump’s biggest mistake was not calling some countries “shitholes,” but in not recognizing that just because people live in shitty places doesn’t mean they are shitty people.

When people from third-world countries come here, they will find an advanced modern civilization with safe drinking water, mass immunization, efficient transportation, rule of law, personal and economic freedom, private property, courts that enforce contracts and award damages for torts, educated people, massive capital investment, real estate titles, innovative technology, reliable institutions, useful ethics and traditions, and millions of other highly productive people to trade with. In that environment, they will become vastly more productive.

In theory, that should be obvious to supporters of the MAGA revolution. The campaign was premised, after all, on the idea that the United States was suffering not because its people were lacking, but because its rulers were terrible, and if we just replaced the establishment politicians at the top, the greatness of the American people would carry the day and Make America Great Again. Unless you have some theories about the superiority of white people, there’s no reason to assume that all the problems of places like Haiti and Africa aren’t also caused by terrible leaders, and that the bulk of the people there are just as good as we are.

Another major cause of poor conditions in Haiti and Africa is that they have been subject to centuries of colonialism, exploitation, corruption, and slavery. And even when the colonial powers pulled out, they left behind damaged governments, damaged institutions, and a damaged civil society — all the ingredients for spawning corrupt dictatorships.

Some defenders of Trump’s remarks claim that he’s just restating our policy of merit-based immigration:

The argument that the U.S. should prioritize admitting immigrants with better education, skills and financial resources has been a legitimate policy position for decades.

That excuse doesn’t work because “Haiti” is not a level of education, and “Norway” is not a skill. Trump didn’t say “Why do we get so many fruit pickers instead of mechanical engineers?” He was talking specifically about national origin.

You could argue that national origin is not race, and therefore it’s not racist, but it’s still Trump judging people collectively by the groups they involuntarily belong to, rather than as individuals. It may not be racism, but it’s the same kind of thing as racism. And given the general racial characteristics of people in Norway and people in Africa or Haiti, it’s not hard see that Trump wants fewer brown people.

Furthermore, so-called “merit-based” immigration is a pretty freaking weird thing for “small government” conservatives to support. Talk to conservatives about business regulations, and they’ll argue that companies can reach agreements with their customers and employees without unnecessary government intervention that would only increase costs and stifle innovation. Ask a conservative about limiting fossil fuel consumption or distributing clean energy subsidies, and they’ll explain that our mix of energy sources should be decided by the market, and that the government should not be “picking winners” in the economy.

The basic argument is that there’s no good reason to believe that government employees know enough about the economy to make those kinds of decisions better than the market can. This seems like an argument that applies to immigration policy as well: There’s no possible reason to believe that Trump or Congress know enough about the U.S. economy to plan the mix of education and skills that millions of employers will need in the workforce for years into the future. And yet suddenly conservatives think we need federal government to forcibly control who we can hire from other countries: “Sorry Haitians, we’re only taking Norwegians this decade.”

Speaking of Norway, let’s address Trump’s puzzlement over why we don’t get more Norwegian immigrants. The most obvious reason is that Norway is a small country with only 5.3 million residents — slightly fewer than Minnesota. Haiti has twice as many people, and Sub-Saharan Africa has close to 200 times as many. We don’t get many Norwegians because there aren’t many Norwegians.

Even allowing for population differences, there’s also the fact that Norway’s GDP per capita is about 20% higher than that of the United States, and the infant mortality rate in Norway is half the U.S. rate. So the answer to we don’t get more immigrants from Norway is Why would they want to come? Compared to Norway, the United States is the shithole.

That’s kind of how immigration works. Whether they’re traveling across the ocean, relocating to another city for a job, or moving to a better school district, people migrate in hope that the new place they live will lead to a higher quality of life. We’re all here because someone decided they wanted to get the hell out of some shithole somewhere else.

Let people live someplace better, someplace that rewards hard work and innovation, and they will live better lives. When Emma Lazarus put these words in the Statue of Liberty’s mouth,

“Keep, ancient lands, your storied pomp!” cries she
With silent lips. “Give me your tired, your poor,
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore.
Send these, the homeless, tempest-tost to me,
I lift my lamp beside the golden door!”

I like to believe that she wasn’t inviting the poor and homeless to come here because we would take care of them, but because we would not get in their way. We would let the huddled masses have their freedom. We would take in the wretched refuse, and we would let them seek the opportunities that would allow them to thrive. That was, and for many immigrants still is, the American Dream.

One Week at the Litter Box

A few years ago, we bought a Litter-Robot automated cat litter box. It’s a spherical litter box that detects when a cat has been inside and rotates itself to dump the resulting clump of cat litter into an internal compartment. It makes maintaining the box easier, and it suppresses the odor much better than regular cat boxes. Our dentist had bought one and she swore it did a great job, so we decided to try it.

But the big question was, would the cats recognize this contraption as a litter box? Our plan was to put it near their old litter box and see if they used it. If we only had one cat, this would be simple: We’d check the collection tray in a couple of days, and if we found clumps then we’d know he’s using it. But how could we make sure all three cats were using it? It’s not like we could watch it all the time.

The solution is obvious, and I’m sure most of you already figured it out: I setup a motion-detecting web camera with night vision that uploads captured frames to a server. Then we just reviewed the images to make sure that we saw all three cats in there.

Afterward, I turned about a thousand captured images into a short video for your enjoyment:

Oprah For President?

Ever since her speech at the Golden Globes, people have been floating the idea of Oprah Winfrey for President. This is, of course, a silly idea. Or it would have been, before Trump. Oprah, like Trump, has no experience in government. Like Trump, Oprah is a celebrity who has had considerable success at business. And like Trump, Oprah embraces junk science. If not for the example of Trump, electing her President would seem ludicrous and highly unlikely.

(This is not to say that Oprah is the same as Trump. Oprah is, as far as I can tell, a much better person.)

I wonder, when the Republicans chose Trump as their candidate for President, didn’t they realize they would be normalizing the idea of an inexperienced celebrity President? And if so, didn’t they realize which party has the most celebrities?

Republicans are going to learn that lesson the hard way when the Winfrey/Hanks 2020 campaign heats up.

Questionable Free Speech at Drexel University

Associate Professor George Ciccariello-Maher is now gone from his position at Drexel University. A year ago, I blogged a brief contingent defense of his controversial “white genocide” tweet. (Contingent because it only applies if he meant what I guessed he meant.) Drexel condemned his tweet at the time, but took no further action against him. It would have been nice if they had explicitly supported his right to free speech, but their actions were in keeping with the principles of free speech: They didn’t stop him from speaking, but they didn’t refrain from using their own free speech to criticize him. 

However, after several other controversial tweets — one criticizing the way our society honors the soldiers who carry out American foreign policy, another blaming the Las Vegas shooter on Trumpism and white entitlement — Drexel placed him on administrative leave in what sounds like a classic case of the “heckler’s veto”:

The university says the issue is safety, but not everyone is buying that explanation.

Drexel’s statement is as follows: “The safety of Drexel’s students, faculty, professional staff and police officers are of paramount concern to Drexel. Due to a growing number of threats directed at Professor George Ciccariello-Maher, and increased concerns about both his safety and the safety of Drexel’s community, after careful consideration the university has decided to place Professor Ciccariello-Maher on administrative leave. We believe this is a necessary step to ensure the safety of our campus.”

Sometimes, giving in to the “heckler’s veto” is unavoidable when the forces of oppression vastly outmatch those defending free speech. If the protests against Ciccariello-Maher overwhelmed Drexel’s campus security and budget to the point where they couldn’t protect the Drexel community from the danger, then shutting down the controversial professor may have been their only way out. Some fights just can’t be won.

That said, here’s how Ciccariello-Maher describes the problems that led to his resignation:

This is not a decision I take lightly; however, after nearly a year of harassment by right-wing, white supremacist media outlets and internet mobs, after death threats and threats of violence directed against me and my family, my situation has become unsustainable.

Sorry, but that doesn’t sound like the level of danger that would justify giving in to the hecklers. I haven’t seen the specific threats (and the specifics certainly could matter) but as a general rule, anonymous threats against public figures are garbage, and they certainly shouldn’t occupy campus security very much. I’m not aware of any actual violence committed against Ciccariello-Maher, and it’s not as if they had thousands of protesters show up to wreak havoc.

Furthermore, all the threats appear to have been against Ciccariello-Maher and his family, not the Drexel community at large, so if Ciccariello-Maher felt unsafe, he could at any time have placed himself on leave. That he chose not to do so may have increased the risk for him, but there’s no reason to believe it endangered anyone else at Drexel.

I’m not sure what to make of his resignation. On the one hand, he did that to himself, which is not Drexel’s problem. On the other hand, this smells a lot like constructive termination. That’s when an employer doesn’t technically terminate an employee, but it makes the employee’s situation so bad — taking away responsibilities, badmouthing them to the public, assigning them all the worst tasks — that they quit on their own. Constructive terminations are common when dealing with employees who are protected from at will termination by law or contract — civil service employees, union employees, and tenured faculty. So it sounds a lot like Drexel found a way to fire a tenured professor for the words that he said.

As a private organization, Drexel has no First Amendment duty to protect Ciccariello-Maher’s speech. However, as FIRE points out in their coverage, Drexel had publicly announced that they supported his freedom of speech only to carry out a private investigation about which they have shown little transparency. Professor Ciccariello-Maher may very well be a rabble rouser, an anti-American jerk, and a colossal bore, but Drexel has not shown itself to be a friend of free speech and academic freedom.

Just Consequences

There was an interesting criminal case out of Fairfax, Virginia the other day, involving a young lady named Sandra Mendez Ortega who stole some jewelry from Lisa Copeland while cleaning her house. The Washington Post lays out the events this way:

The case began with Copeland’s discovery in September 2016 that her engagement and wedding rings were missing from the container where they were usually kept. The engagement ring had been her grandmother’s, made in 1943, and the two rings were appraised at $5,000 in 1996, Copeland said. Copeland didn’t realize a third, inexpensive ring had been taken until it was turned in.

Fairfax City police investigated and interviewed the three women who had cleaned the home. All three denied taking or seeing the rings, court records show, and no one was charged.

But after the interviews, Mendez Ortega reportedly felt bad about the theft, admitted to her boss that she had the rings and turned them over to him. The police were contacted and Mendez Ortega confessed to them as well, saying she returned the rings after learning they were valuable. The police had her write an apology letter to Copeland, in Spanish, which said in part, “Sorry for grabbing the rings. I don’t know what happened. I want you to forgive me.”

The case went to trial, and the jury found her guilty. But in Virginia the jury is not only the finder of facts, but also has the job of deciding the sentence. I’ve heard Virginia criminal defense lawyers complain that this can lead to very harsh sentences, because jurors lack the sense of proportion that a seasoned criminal judge would have. In this case, however, the jury went the other way:

What the jury did was extraordinary. They felt bad for the young woman, pregnant with her second child, and agreed that she had made a dumb, youthful mistake. Reluctantly, they convicted her of the felony. But the fine they imposed was her daily pay as a maid, $60. And then they took up a collection and gave her the money to pay the fine.

Naturally, this has pissed off some law-and-order types. Gatewaypundit hilariously lives up to the stereotype by blaming the whole thing on liberal jurors who are just looking for a chance to hurt America by granting special favors to illegal immigrants:

AUTHOR’S NOTE: Fairfax County residents are some of the best educated, most worldly and wealthiest and liberal people in the nation. They can spot an illegal alien right away as they have willfully turned the D.C. suburb in to a haven for illegals. Mendez Ortega’s appearance on the witness stand during the penalty phase after her conviction made it clear she fit one of the profiles of illegals-she doesn’t speak English and worked as a a maid.

Fox News also leads with the illegal immigrant angle, and runs essentially the same story under the headline “Couple’s fury as jury pays illegal immigrant maid’s fine after jewelry theft conviction.”

That’s referring to the victim, who comes across as remarkably unsympathetic in news reports. I don’t mean that she has no sympathy for the woman who stole from her (although she doesn’t seem to), but that after reading her statements to the media I have very little sympathy for her. Obviously, stealing from her was wrong, and it was also a crime, but in the aftermath of the trial, she comes across as disturbingly vindictive. For example, regarding the letter of apology that Mendez Ortega wrote to her:

Copeland said she has never seen that letter, and that Mendez Ortega has never apologized to her in person. “Never saw it,” Copeland said. “Never heard about it until the trial, during sentencing.”

Well, the reason Copeland never saw the apology letter has nothing to do with Mendez Ortega. Copeland never saw the letter because the Fairfax police never gave it to her. That’s because they were deceiving Mendez Ortega when they got her to write a letter to Copeland. It a trick to strengthen the case against her, since almost anything she’d say in an apology for the theft would also be an admission of damaging facts. It’s a confession in the defendant’s own hand, which will be damning in court.

Nevertheless, Sondra Mendez Ortega most certainly did apologize for what she did. It’s not her fault that the police never delivered it. And as for an apology in person before trial, I’m pretty sure that’s an insanely bad idea. At the very least it would be another confession, and it could easily be construed as witness tampering.

“I was outraged,” Copeland said. “I was just flabbergasted. I didn’t think $60 equated to the crime at all.”

That was my first reaction too, but when I think about it, the outrage seems overblown. After all, this was

  • a non-violent crime
  • by a first-time offender
  • who turned herself in,
  • returned everything she took,
  • and showed up to face her trial.

Given all that, the jury’s sentence of time-served with a nominal fine (and the collateral consequences of a felony conviction) doesn’t seem completely out of line. Many judges are aware of what jail can do to people, and they’re reluctant to put first-time offenders through the system for fear it will make everything worse.

At trial, the facts were not really in dispute. The jury did not hear from Mendez Ortega during the case in chief, but they were already sympathetic to her. “We didn’t feel she should have been tried and convicted,” said Memmott, the foreman. “We tried every way we could to find some way of not convicting her. But the legal standard was very clear.” Two other jurors agreed that the felony conviction was appropriate, given the facts and the law.

I’ve been on a jury that convicted someone of a felony. It’s not a fun experience, signing that verdict sheet and knowing I’m saddling them with a felony record and possibly consigning them to a cage for a long time. Just because they deserve punishment doesn’t mean it feels great to dish it out. All things considered, I’d rather I never have to do that again. Which is why this bit makes me so crazy:

Lisa Copeland was amazed. “The fact that she confessed,” she said, “and they didn’t want to convict her? I don’t get this. That’s basically saying it’s okay to steal.”

Good God. The jury may have said they didn’t want to convict her, but they did in fact convict her. So the victim is basically angry because the jurors didn’t enjoy it enough. What the hell?

(Obviously, she’s the victim here, and therefore she deserves some slack, but I can’t help wondering if one of the reasons for the light sentence was that the jury somehow picked up on her vindictiveness, found it as ugly as I do, and decided they didn’t want to give her what she wanted.)

Still, the most frustrating response comes not from the victim or Fox News or Gatewaypundit, but from ethicist Jack Marshall at Ethics Alarms, whose post first brought my attention to the case.

As is usual, I have a number of quibbles with Jack’s analysis. For example,

“Justice had to be done,” said another juror, Janice Woolridge, explaining the guilty verdict. “But there’s also got be some compassion somewhere. Young people make bad decisions. We just couldn’t pile on any more.”

[…]

(Note to juries: your job is to determine the facts and guilt or innocence. Compassion should be left to judges.)

The parenthetical comment is not how things work in Virginia, where jurors are given the responsibility for determining not only the facts but, in the event of a guilty verdict, the sentence as well. Thus considerations of compassion are entirely appropriate.

One of Jack’s commenters explains this to him in a comment, to which Jack responds,

In this case, the judge should have rejected the jury’s fine and imposed one they’d really have to dig down deep for.

That’s also not the law in Virginia. When a criminal jury recommends a sentence, the judge can only lower it, not raise it.

I’m not a lawyer, so I shouldn’t throw too many stones, but since Jack teaches legal ethics for a living, it would be nice if he got the law right. To be fair, this was a free blog post, not professional advice, so he definitely deserves some slack for shooting from the hip. But he’d make his point more effectively if he focused on the jury’s decision making instead of ranting about ordinary Virginia criminal procedure.

However, as I mentioned in a comment (which Jack called “obnoxious and unfair, as well as ignorant”), in the unlikely event that anyone ever asked me if they should hire Jack to teach legal ethics, I would point them to these two statements:

If she had confessed and was remorseful, why did she plead not guilty?

[…]

If you are guilty and admit it, then you don’t try to get lucky with a jury.

Jack is certainly not the only lawyer to think it’s unethical to plead not guilty. (As far as I can tell, it’s pretty much criminal defense lawyers v.s. everyone else — which is practically a criminal lawyer’s job description.) But I think this is the result of confusing the legal meaning of a “not guilty” plea with the common everyday meaning, as Illinois lawyer Jeremy Richey explained some time ago:

Those words do not operate in a vacuum; they are part of our legal system. Our legal system establishes a presumption of innocence for every person charged with a crime and places a burden on the government of proving the accused guilty beyond a reasonable doubt. When a person utters the words “not guilty” in court, all the players (such as the judge, prosecutor, and defense lawyer) understand that the person is requiring the government to carry its burden.

In other words, pleading not guilty is the mechanism by which you secure your constitutional right to a jury trial. And in Virginia in particular, pleading not guilty is a necessary step in claiming your right to be sentenced by a jury instead of a judge. There’s nothing unethical about asserting your rights.

In the comments, Jack attempts to draw a careful line between the ethics of a lawyer and of the client:

An ethical lawyer tells a guilty client that he or she has a good chance of being acquitted, and lets the client decide, after advising the client on the right thing to do. An ethical law-breaker turns himself in, pleads guilty, and accepts the just consequences of wrongdoing.

I see what Jack is getting at here, but it’s nonsense. First of all, on a practical level, how would this work? Is the defendant supposed to meet with her lawyer, discuss her case in detail, listen carefully to his wise counsel, and then just go ahead and ignore everything he recommended? Or do I misunderstand, and when Jack talks about “advising the client on the right thing to do,” does he mean that the lawyer should tell his client to plead guilty? Not for tactical reasons, but because it’s “the right thing to do”?

But why would it be the right thing to do? Owning up to your sins and accepting “the just consequences of wrongdoing” is great ethical advice for, say, a child apologizing to his mother for breaking a vase full of flowers, or a husband explaining to his wife how he lost the rent money at the track. But is has nothing to do with what goes on in a criminal proceeding. Jack is trying to smuggle an awful lot of bullshit into his argument on the backs of the words “just consequences.”

Pleading guilty isn’t the same as accepting the “just consequences.” Pleading guilty means accepting whatever consequences the prosecutor can convince the judge to impose, and there’s no basis for believing those consequences will be just. In an ideal world, the judge will be a neutral party, but the prosecutor will always be your adversary. At best, he’s going to be a stern by-the-book guy, and at worst he’ll be a fucking monster. In any case, the decision will be made by a system that is now biased against you.

So what happens if you feel a 90-day sentence is a just consequence, but the prosecutor is thinking more like five years? Contrary to the implications of Jack’s argument, there’s no a priori reason to assume the prosecutor’s preferred sentence is a just one. Normally, this would be resolved in plea bargaining, where you (through your lawyer) and the prosecutor negotiate to a sentencing plan that is acceptable to both of you. That won’t work, however, if you’ve already committed to a guilty plea, because your only bargaining power comes from your ability to walk away from the bargaining table and demand a trial.

(We can’t be sure, because the news stories don’t say, but it’s quite likely that this case went to trial after an unsuccessful plea bargaining stage. Ms. Mendez Ortega was probably willing to accept consequences for her actions, just not the consequences the prosecutor was willing to offer.)

It’s not sensible to believe that “just consequences” will result from an adversarial system where one side agrees in advance to the other’s terms, and it’s not unethical to refuse to accept such one-sided terms.

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