ABA Survey: Large Numbers of Americans Are Clueless

Well, not really. They say,

A majority of the survey respondents agreed with statements that "judicial activism" has reached the crisis stage, and that judges who ignore voters’ values should be impeached. Nearly half agreed with a congressman who said judges are "arrogant, out-of-control and unaccountable."

Does that mean that half of Americans are condemning as "activist" those judges who are slavishly following the law and Constitution instead of the values of voters?

A Plea In the Works, or Delay Tactics?

Over at Volokh, Orin Kerr tentatively disagrees with Norm Pattis on the DeLay indictment.

It seems more likely to me that DeLay knew the indictment was coming one way or another, and he figured that he was better off politically if he could put off the indictment for as long as possible.

A comment back at Crime and Federalism suggests something similar, that the statute of limitations may have been waived "in order to gain more time to try to convince the prosecutor not to file charges". But if you read the indictment (PDF Format), you find the following:

* The statute of limitations is three years;
* The date of the alleged offense was September 13, 2002;
* The time stamp on the indictment is September 28, 2005.

Did DeLay really waive the statute of limitations to buy himself a whopping two weeks? Let's take a look at what Tom DeLay has to say about the status of the prosecution as of two weeks ago:

Despite his longstanding animosity toward me and the abusive investigation that animosity has, unfortunately, rendered, as recently as two weeks ago, Mr. Earle himself publicly admitted I had never been a focus or target of his inquiry.

That statement appears to leave open three possibilities:

1. Tom DeLay is engaged in flagrant misrepresentation - that is, he was in active negotiations with Mr. Earle and very much knew himself to be a target of the inquiry, even as Earle suggested otherwise in public;

2. Tom DeLay was approached within the past two weeks with news of a pending indictment on more serious charges and, despite the expiration of the statute of limitations on the conspiracy charge, cut the deal Norm suggests; or

3. Tom DeLay was approached within the past two weeks with news of a pending indictment on more serious charges, cut a deal with the prosecutor to waive the already-expired limitations period on the conspiracy charge in order to buy time to try to avoid indictment, and the prosecutor immediately sought an indictment for conspiracy.

If we were in fact seeing scenario #3, I would expect DeLay to be complaining bitterly about the prosecutor's actual treachery, rather than whinging about what seems to be imagined treachery. Also, the indictment reflects that two alleged co-conspirators (James Walter Ellis and John Dominick Colyandro) were indicted on September 13, 2005, raising the possibility that one or both have agreed to testify against DeLay.

Thus, assuming that DeLay is telling the truth in his public statement, the stronger theory appears to be the one advanced by Norm Pattis.

With Sources Like These....

So Judy Miller has been freed to testify by her source, I. Lewis Libby, Vice President Dick Cheney's chief of staff.

The publisher of The Times, Arthur Sulzberger Jr., said in a statement that the newspaper supported Ms. Miller's decision, just as it had backed her refusal to testify.

"Judy has been unwavering in her commitment to protect the confidentiality of her source," Mr. Sulzberger said. "We are very pleased that she has finally received a direct and uncoerced waiver, both by phone and in writing, releasing her from any claim of confidentiality and enabling her to testify."

So why didn't Scooter give Miller the green light a long time ago, to save her from jail in the first place? What's so special about the "new and improved" waiver which gives Miller certainty that it is uncoerced (this time)?

Mr. Libby wrote to Ms. Miller in mid-September saying he believed that her lawyers understood during discussions last year that his waiver was voluntary.

It took a star reporter for the New York Times a full year (and a couple of months in jail) to find out that one of her highly placed sources had released her to disclose his identity? The New York Times may claim that it provides all the news that's fit to print, but... tell me I'm wrong, that it's leaving out some key details.

Delay to Plead Guilty?

Norm Pattis says yes.

Church & State

A year or so ago I read an editorial out of Europe, suggesting that American churches should be grateful for the barrier between church and state, observing that in a continent without such barriers (and even with official state churches) the culture of dependency of the church upon the state was associated with much lower levels of church attendance, contributions by parishioners, and religious belief as compared to the United States. As the Bush Administration continues its course of paying church groups to perform charitable works, both prospectively through "faith based initiatives" or retroactively following disaster relief efforts, we may have the opportunity to see if the same holds true in this country. (Why "dig deep" for the collection tray, after all, when the government is paying for the church's good works?)

The Importance of Marriage

In today's Washington Post, William Rasberry instructs us of a growing disconnect between marriage and motherhood for poor mothers.

Unlike earlier generations, they don't look to marriage to give their children "a name" or for economic stability; they see it as a crowning achievement -- something to look forward to after they have their children, decent jobs and a house of their own. To marry earlier, they insist, is to leave themselves prey to the controlling and abusive men who are available to them in their inner-city Philadelphia and Camden, N.J., neighborhoods.

Meanwhile, Maggie Gallagher has produced an analysis of recent research on family structure and delinquency that concludes that -- after controlling for race, income and education -- boys who grow up without fathers are several times more likely to end up in jail. Earlier studies, says Gallagher, who is president of the Institute for Marriage and Public Policy, show that children raised outside marriage are more prone to poverty, substance abuse, school failure, delinquency and adult crime.

Wait a second... I thought Maggie Gallagher was a staunch opponent of marriage. Oops - I guess that's only gay marriage.

Seriously, though, Gallagher is an ideologue who rails against gay marriage, single parent households and abortion rights, with a consistent subtext that there should be a diminishment of the wall between church and state. She is sufficiently reliable in her opinion that she was commissioned by the Bush Administration to write brochures on the subject of marriage, but sufficiently unreliable in her candor that she "forgot" to tell her readership of the arrangement when subsequently editorializing in favor of Bush Administration policies. You don't need to be told which positions Maggie holds or what conclusions her organization advances - if it didn't support her position, she wouldn't be talking about it.

The description reminded me of a rather unpersuasive interview I heard on NPR a few weeks ago, with author Peggy Drexler. While Drexler was asserting that her recent book, "Raising Boys Without Men", was intended only to show that single mothers and gay couples didn't have to fret about the absence of a male presence in their household, her arguments have widely been viewed as anti-male. She argued in effect that most of the supposedly deleterious effects of single parent households are tied to other factors, and that single mothers who lived in decent neighborhoods with stable incomes were producing sons who fared no worse, and sometimes better, than those from "traditional" families.

What I found unpersuasive about this was her methodology (interviews with the boys and their mothers over a period of years), which seemed designed to screen out both opposing viewpoints and unstable families (which are likely to drop out of a longitudinal study). She frequently referred to her findings as following a scientific methodology, but never used the magical words "peer reviewed" in relation to her more controversial findings. Which is not to say that there aren't many single parent households and gay households raising fine children, or "traditional" households which aren't - it's just to say that she seemed to be letting her ideology drive her research and her conclusions. Which I guess makes her Maggie Gallagher's counterpart, save for the fact that Drexler at least performs research.

So I was not particularly suprprised when I Googled Gallagher's organization the "Institute for Marriage and Public Policy" and found that the report mentioned in the Raspberry column was apparently prepared to rebut Drexler:

Can Married Parents Reduce Crime? 9/21/05
Maggie Gallagher, president of the Institute for Marriage and Public Policy says, "Results like these are a reality check for people such as Peggy Drexler ("Raising Boys Without Men") who argue that it is only poverty, and not father absence, that hurts children. Boys are hardwired to grow into men. But they are not hardwired to grow into good family men. That’s a job for mothers and fathers working together."

Well, there's a scientific assertion.... You can download the report (in PDF format) from Gallagher's site.

The report isn't actually a study - it's a survey of studies. And it doesn't actually conclude that "after controlling for race, income and education ... boys who grow up without fathers are several times more likely to end up in jail" - it states, "recent research strongly suggests both that young adults and teens raised in single-parent homes are more likely to commit crimes, and that communities with high rates of family fragmentation (especially unwed childbearing) suffer higher crime rates as a result". Raspberry should have checked his source.

Lest you believe that Gallagher's advocacy for government intervention in the family is premised in her concern for poverty, her writings will quickly set you straight:

We expect our governments, local, state and federal, to respond to our citizens' needs, all of them, even those too poor or too stupid to get out of the way of a Category 5 hurricane.

Given Gallagher's position that it is a matter for contempt and derision to suggest that government should help the poor, her advocacy for government policies relating to marriage can safely be presumed to be about something other than a concern for poverty.

Protecting My Bandwidth

After a recent computer problem, I unplugged my cable modem and router for a few hours to completely reset them. (Well, that was more time than necessary, but since I left the house....) After I got things back up and running, I started to experience a periodic error message about an IP conflict. So I rebooted my wife's computer, which seemed to solve the problem. Except....

Tonight, I saw the same message, but this time my wife's computer was off. Hm. My computer obviously isn't conflicting with its own IP number.... Oops - I forgot to password protect the wireless connection after I reset the router. I set a new password, and voila - no more errors.

I guess one of my neighbors will be investing in their own Internet connection sometime soon.

Giving Customers What They (Don't) Want

Recent changes over at the New York Times, specifically their moving editorials into a "for pay" category while adding additional services for paying readers, reminds me of a place I used to work. They had two subscription products, one of which ("Product A") was popular and lucrative, the second of which (("Product B") was a big money loser. They got the brilliant idea of eliminating both products and replacing them with a single new product - giving buyers less of "Product A" at a lower price, and throwing in "Product B" for free. But the customers weren't thrilled, pointing out that had they wanted "Product B" they would have signed up for it in the first place. After about four years, the combined product was changed to offer all of both the original products; but at a lower price than the organization had been able to charge for Product A alone before making the changes.

Let's just say, I'm not convinced that the best way to convince customers to pay for a product they want is to add features that the customers haven't previously used or requested. If the editorials themselves aren't expected entice people to sign up for Times Select, perhaps the pricing model (or subscription model) should be reconsidered.

As they say, time will tell.

Unconstitutional Sentences

Mike's recent Crime and Federalism post, mentioned below, about trial taxes also opines that plea bargaining is unconstitutional. This reminded me of a sentencing practice I used to encounter from time to time in a particular county. Specifically, the defendants were told at the time of the plea hearing that if they paid restitution in full at sentencing, they would get a lesser sentence than if they did not. I asked some lawyers in that county about the practice, and they indicated that they knew they had a valid constitutional objection, but that the trial court judges had already rejected the constitutional argument, and that their clients somehow always managed to come up with the money so they never had the opportunity to appeal the issue. Eventually, though, a defendant was unable to pay, and the Court of Appeals held that a defendant's ability to pay must be considered when offering a reduction of a sentence of incarceration in return for up-front payment of restitution.

If you'll excuse the shift in topics.... As much as people complain about the civil justice system, some of the worst systemic defects are found within the criminal justice system. But as a society we largely let them pass below the radar, because they largely work to the disadvantage of the defendant. The wrongly convicted are viewed as exceptional, or as "probably guilty of something else, anyway". Constitutional rights are derided as "loopholes". And, with poor defense funding and often overworked public defenders or underqualified appointed attorneys, "junk science" often rules the day - in favor of the prosecution. (Prosecutors complain of a so-called "CSI Effect", but some of their brethren have contributed to the problem through presentation of junk and overstated science testimony about hair and fiber evidence, bite marks, gunshot residue, footprints, "shaken baby syndrome"....)

The Trial Tax

Over at Crime and Federalism, Mike argues that the tough criminal sentences handed out to white collar offenders constitutes a trial tax.

Now, I have already spoken unsympathetically to those who sympathize with the "poor little rich boys" who just can't help themselves from stealing from the corporate coffers, defauding investors, or obstructing justice and are supposedly "punished enough" by the humiliation of being caught. But I want to be clear about a couple of things: First, everybody's sentence should be fair and proportionate, whether they are convicted by trial or plea. Second, states should do a better job of screening prisoners, such that those who pose no realistic risk of flight or of harm to other prisoners are not housed in medium to maximum security prisons. Third, there should not be a "trial tax" - and courts should work to minimize any appearance of a trial tax. (Particularly where plea bargaining enters the equation, in my humble opinion, rationalizing a "trial tax" on the basis that somebody who pleads guilty shows more "remorse" than somebody who goes to trial doesn't cut it.)

Meanwhile, I wouldn't mind seeing those who advocate for the "poor little rich boys" say a word or two about the effect of the criminal justice system on criminals who breathe less rarified air. You know - the ones who have to mortgage their homes to pay for their lawyers, to bear the public stigmatization of charges, to have their families stressed by the accusation and the burdens of trial, and who certainly don't have a few million dollars in the bank to fall back on even if they are ultimately acquitted. Or, for that matter, those who enter pleas to inappropriate charges, or who are wrongly convicted because they could not afford an adequate defense, investigative help, or necessary expert witnesses.

(Not) Celebrating History

Britain is apparently compiling a list of terrorist events throughout history (acts of violence against people, property, and electronic systems if intended to advance a political, religious or ideological cause or to influence a government, except for those involving Ireland), with the intention of making their celebration a crime. This made me wonder for a moment about Guy Fawkes Day, but then I realized that Britain isn't celebrating the terrorist event. It's a celebration of the arrest, torture and violent execution of the terrorist, which renders it altogether civilized.

Justice Ginsberg Supports Pedophilia?

This post over at the Volokh Conspiracy brings to mind my prior thoughts on gotcha politics.

Sorry, Chief - I Just Don't Buy It

I understand why the town of Gretna and its police chief are trying to redeem themselves in the eyes of the world - what a black eye. The chief of police protested on NPR's All Things Considered,

"I'm very pissed off ... I am, because I've been painted as a racist and this community's good reputation has been blemished because of something that we did because the city of New Orleans was ill-prepared to handle the situation that they had and expected us to evacuate their city without any preparation, without any notice, without any contact ...

"We were not contacted by anybody in the city of New Orleans, police or city officials, prior to, during, or since the storm. No one called us and said, can you handle these people? Can you help?"

I will concede that it would not be an easy task to suddently have to deal with thousands of refugees fleeing a flooded city. I just wasn't aware either that a town had the right to shoot over the heads of civilians in order to prevent lawful entry, nor that the victims of a hurricane and flood deserved refuge only if city officials gave advance warning of their plight. And I just can't buy the chief's logistical arguments that, after one day in which the town shuttled 5,000 evacuees from the bridge to a FEMA site:

"I realized we couldn't continue, manpower-wise, fuel-wise," Lawson said Thursday. Armed Gretna police, helped by local sheriff's deputies and bridge police, turned hundreds of men, women and children back to New Orleans.

Let me get this straight - he was able to amass a force of his own officers, sheriff's deputies and bridge police, maintain a 24 hour watch to prevent any evacuees from crossing the bridge, justify shooting firearms over the heads of civilians, while making no provision to provide for the safety and welfare of those his actions trapped... because it would take too much manpower to keep the buses running? Because, although there was apparently plenty of fuel to carry officers to the bridge, there wasn't enough gas in town to power the buses? Admittedly, there's something more which colors my skepticism:

After someone set the local mall on fire Aug. 31, Gretna Police Chief Arthur S. Lawson Jr. proposed the blockade.

* * *

Sometime on Wednesday, Aug. 31, a fire broke out in the mall, next to the local branch of the sheriff's office, and police chased suspected looters out of the building.

Mayor Harris had had enough. He called the state police.

"I said: 'There will be bloodshed on the west bank if this continues,'" Harris recalled. " 'This is not Gretna. I am not going to give up our community!' "

This, of course, is blamed on evacuees although I have not seen any evidence to support that contention. I could speculate that the Gretna mayor and police assumed that they were evacuees, because they were darker in complection than the majority of town residents; but would that help the chief's case that closing the bridge wasn't a racially motivated decision? And if it is that easy to call the state police for backup to close the bridge, why should we presume it would have been harder for them to request additional drivers and fuel for buses (assuming a shortage actually arose)? I liked this statement as well,

An African-American officer fired at least once in the air to calm the group, Lawson said, but that was when they were still loading evacuees on buses the day after the storm. Lawson said he planned to investigate other allegations, such as excessive force.

Shooting over people's heads to calm them? And why bring up the officer's race?

The NPR piece concluded with a valid question,

"Chief Lawson would like to know without communication, food, water, enough buses and gasoline, how long would it take another American city to reach the limits of its compassion?"

I dunno.... A week?

Google's Copyright Woes

I do find it interesting, as Google is being sued over its Google Print service, how differently online and traditional publishers view copyright - and Google's services. For most online publishers, being included in Google's index is a blessing, bringing both traffic and revenue. It is expected that Google's spiders will attempt to reach any given site, and it is accepted that it is the site owner's responsibility to install a file or line of code which will instruct Google (or any other search engine) not to index its content. It is understood that in the process of indexing content, every major search engine maintains a copy of the code from the page and, again unless instructed otherwise, will display that "cached page" to users of their services.

In the print world, the reaction seems to be anger and fear - how dare Google suggest that copyright owners "opt out" if they don't want Google to maintain a copy of their works on its servers? It will be interesting to see how this pans out - and if as a result of this litigation over printed matter, at the end of the day webmasters will have to expressly invite Google (and other spiders) in before they will be included in search engine results.

Budget Cuts Nobody Would Feel

According to Senator Tom Coburn (R-OK),

The fact is, is we -- I know of $100 billion in cuts that we could make tomorrow that nobody would feel.

If I recall correctly, the Republicans control both houses of Congress and the White House. If in fact there are $100 billion in budget cuts that could be made which "nobody would feel", why weren't they made five years ago?

Private Markets, FEMA and HUD?

With the catastrophe in New Orleans, the Bush Administration has proposed a program which will help poor (former) residents of New Orleans become homeowners on what is presently federal land. But in the short-term, thousands will be herded into temporary housing - trailer parks constructed under the auspices of FEMA, meant (in a paraphrase of an official who was describing the planned parks) to be comfortable enough to live in but not comfortable enough such that people will want to stay.

NPR, a few days ago, aired a program (sorry, I'm not sure which one) which described life in a similar trailer park in Florida. Some of the residents spoke of the difficulty in finding alternative housing. One didn't want to move to a new apartment that wouldn't take her dog. Another couple, despite having employment and having lived rent-free for a year, claimed that they had been unable to raise money for a security deposit and first month's rent. The description of the park made it seem like it fit the description above - not a place anybody would truly want to stay over the long term. But hundreds of people had lived in the park for a full year, with no apparent intention of going anywhere.

This raises some "free market" questions. Since the Bush Administration occasionally pretends that there are free market solutions to just about any problem, and that the market can resolve most issues better than government, why are they so distrustful of the free market when it comes to housing? There are millions of rental units available in the United States, and it may well turn out to be cheaper to negotiate rental contracts with their owners than to build (and ultimately throw away) thousands upon thousands of new "rent free" housing units in temporary trailer parks. And even if it's not, Bush is writing a blank check for post-Katrina clean-up, so why not give private landlords a boost?

Beyond that, there's our nation's public and subsidized housing. If the free markets are the best solution, and home ownership helps lift people out of poverty, why aren't home ownership programs being implemented through HUD? Instead we have what amounts to more permanent versions of the FEMA trailer parks - housing units that, even if well-built, is often permitted to deteriorate to the point where the are comfortable enough to live in but not somewhere you would want to stay over the longer term. (And yet, as with the "temporary" Florida trailer park, people stay for the longer term anyway.)

So how about shifting HUD's focus from rental units to condo units? Give anybody with a job, no matter how mediocre, a subsidy toward the purchase of a condo unit as opposed to a rent subsidy. Convert many public housing projects into condos, put condo boards in charge of them, and have them contract with private companies for maintenance services. Rather than subsidizing section 8 rental housing, subsidize section 8 condo housing. Let the working poor become homeowners. Create a community with a stake in their property, rather than one which falls victim to slumlords and to neighbors who see no downside to trashing the place.

Granted, such a program probably wouldn't work for all people, and there would probably be some catastrophic failures along the way. (I am reminded of an effort in England, some decades ago, to move people out of crumbling houses into newly (but poorly) constructed row houses, with the net effect being the realization that by the time they finished the initial transition the first set of "replacement" houses would, themselves, have to be replaced.) But the status quo is not particularly impressive, so isn't it worth taking a look at a possible market solution? (Or are we only interested in "market solutions" which follow the model of "trickle down economics".)

What Language Do Those Brits Speak, Again?

Google announces "Polyglot pictures":

People all around the world are photo-mad, snapping digital photos everywhere they go. Today people in Australia, Austria, Belgium, Brazil, Canada, China, France, Germany, Hong Kong, India, Italy, Japan, Netherlands, Russia, South Korea, Spain, Switzerland, Taiwan and the UK have a new tool: Google's Picasa photo organizer in their own language.

I know some Canadians are Francophones, and I'm still trying to figure out what "didgeridoo" means, but particularly for the Brits I would have thought that the, um, English language version would have worked for them.

Intention vs. Perception

Context: A search for missing keys.

Overheard:

How about I see yo' keys?

What?

I see yo' keys!

That's not funny.

Like in Harry Potter - accio keys.

Oh... I thought you were saying....

White Collar Crime

In white collar crime legal circles, it is often suggested that white collar criminals are somehow deserving of lesser sentences because of the hardship imposed on their families, or the stigma they must endure from the conviction. When it comes to criminal CEO's, I guess it's harder for the family at the top to give up two or three homes, access to the company jet, and half of their domestic staff, than it is for the family of a blue collar criminal to go on ADC. (And just look at all the sincere contrition in Mike Milken's official biography.)

Here's another one - after a criminal CEO loots a company, diminishes its value for shareholders (perhaps destroying employee retirement accounts in the process), and maybe even puts it out of business... a long prison term is unnecessary because "Their positions of power have been stripped from them and they are unlikely to have the ability or power to ever be a menace to society again." Hm. As were the positions of the cops who tortured Abner Louima.

Oh, but "that's different" because it's assaultive behavior. (And it's different from a Jean Valjean, who will always have the temptation of grocery stores from which to steal.) Well then, one word: Deterrence.

A Schedule of Damages for Malpractice Cases?

One of the stranger reform proposals I occasionally hear emerge from the medical circles is the notion of a "schedule of damages" for medical malpractice cases. This ostensibly would give greater certainty and predictability to jury verdicts in malpractice cases - rather than picking a number based upon the evidence and testimony presented at trial, jurors would be asked to match the plaintiff's injuries to a schedule and award damages accordingly. Or perhaps they would simply be asked to itemize the plaintiff's injuries, and the judge would apply the schedule.

It won't fly.

Why not? Leaving practical issues aside, because it would undo the biggest accomplishment of the medical malpractice insurance companies in their quest for "tort reform" - damages caps. Think about it. Take the worst malpractice injury you can think of - let's say, quadriplegia, or leaving somebody in a persistent vegetative state, or killing somebody, or leaving somebody conscious but completely unable to communicate or interact with the outside world. Under "tort reform" measures in most states, that's worth at most $250,000.00 in non-economic damages. So what's paraplegia worth? $200,000.00? What's a single paralyzed limb, or an amputated limb worth? The loss of vision in both eyes? In one eye? $50,000.00? What if you have a combination of injuries - do you sum the damages, award only the value of the injury deemed most serious under the schedule, or... what? Can you imagine a legislature trying to foist such a schedule on the public?

As caps on non-economic damages have had no apparent effect on insurance rates, perhaps we shouldn't be surprised that doctors are looking for alternatives. And perhaps it would even be true that a schedule of damages would work better for doctors and for victims of malpractice than the present caps. But the insurance companies are not going to give up the fact that if their insured kills or cripples you, your non-economic damages are capped at a level that would be absurdly low if placed on even a modestly fair schedule of damages.