Topic: General

Jury Independence

Some good news for jury independence.  Three terrific rulings in three weeks.  I don’t know if this is an indication of anything significant, but I’ll take it.

First, some background.  The Sixth Amendment to the Constitution says that in all criminal prosecutions, the accused shall enjoy trial by jury.  The government has undermined that right in several ways.  First, it uses plea bargaining tactics [.pdf] to deter the accused from exercising the right to trial.  Second, the government tries to stack juries with people who will not question the law.  A prosecutor, for example, might ask a pool of potential jurors, “Anyone here have a problem with the war on drugs?”  After a show of hands, the prosecutor judge will then say something like, “Thank you for your candor.  Everyone who raised their hand is excused from jury service today.”  Third, after a jury is finally selected, the jurors will be told that they may not vote their conscience.  They must instead “follow the law” as it is explained by the trial judge.  Jurors are told that their job is to determine “the facts” – did the defendant initiate the attack or was she acting in self-defense, as she claims?  Sometimes that neat separation between the facts and the law breaks down, such as when a prosecutor wants to enforce a ban on handguns.  There is no factual dispute for the jury to decide when the defendant openly admits “Yes, I brandished a handgun.  But it was only to stop that guy from raping me.”  We rarely see such cases because prosecutors are clever enough to dispose of the case with a plea bargain.  “Ma’am, we understand you might have been raped, but what you did was against the law.  We don’t want you to go to prison for two years in these circumstances.  If you waive your right to a trial and plead guilty, we’re prepared to offer you five hours of community service, okay?”

The government uses these tactics every day and the courts have ruled that they are perfectly legal and constitutional.  This was not always the case.  Our second president, John Adams, said “it is not only the juror’s right, but his duty, to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.”  American law has drifted so far from that idea, that if I put John Adams’s statement on a sign and walked outside a criminal courthouse, I might get arrested if I were to try and hold my ground against overzealous ”security personnel” from the courthouse.  Still, Cato publishes articles and books that make the case that the modern legal trend is wrongheaded.  Prominent academics, most notably, Amar, Green, and Reynolds, seem to agree, but the opposing view remains fairly dominant.

That’s the bad news.  Now to the good news.  Under modern law, it is still verboten for a trial judge to issue a direct order to the jury, such as “We will take a short recess now and I want the jury to retire and then return with a guilty verdict in twenty minutes.”  Similarly, it is also illegal for a judge accomplish the same end, but after-the-fact by overturning an acquittal and declaring the defendant “guilty.”  Those legal propositions are not disputed, but from time to time courts must decide cases where there is an allegation that the jury was “coerced” in some way.  The good news is that over the past few weeks there have been three such rulings and in each instance, the court came to the defense of jury independence.

Here’s a quick and dirty summary.

In a Maryland case, a note was sent to the judge after the jury started deliberating in a criminal matter.  The note complained that one of the jurors “did not trust the police no matter the circumstance.”  The judge responded by instructing the jury that such a skeptical point of view should have been disclosed by the juror before the case began.  The judge went so far as to say that this juror “might be violating the oath” that the jurors took earlier.  Shortly thereafter, the jury returned a guilty verdict.  On appeal, the defendant argued that the judge had coerced the verdict.  The Maryland Court of Appeals found coercion and overturned the conviction.  The appeals court said the trial judge’s admonishment may have caused the juror in question to “rethink her legal obligation,” go against her conscience, and vote with the majority.  In other words, it is improper to interfere with the jury’s independence.  Butler v. State. (Md Ct App) [.pdf] .

The second case involved a man on trial for first-degree assault.  The jurors were told that if they found the man not guilty of first degree assault–or if they simply could not unanimously agree on the first-degree charge, they should consider whether he was guilty of second-degree assault.  The jury returned a guilty verdict on the second-degree charge.  When the verdict was announced, the prosecutor asked the judge to clarify whether the jury was deadlocked on the first-degree charge or whether they had unanimously agreed that the defendant was not guilty of first-degree assault.  The judge proceeded to inquire of jury foreperson what had happened.  The jury foreperson explained that the jury was deadlocked and could not reach an agreement as to first-degree assault.  The trial judge then announced that, with respect to the first-degree charge, there was a mistrial, not an acquittal.  That finding is significant because the double jeopardy safeguard is triggered after an aquittal verdict, but not for mistrials because of hung juries.  The prosecution promptly announced its intention to retry the defendant and the defense objected.  The Supreme Court of Washington agreed with the defense that the court had acted improperly: “The trial judge erred by inquiring into the jury’s thinking about the first degree assault charge. … The jury’s resolution on first degree assault is beyond the realm of inquiry.”  In other words, state functionaries, including trial judges, should not interfere with the jury’s independence–most especially in a manner that might prejudice the defendant.

The third case involved the high-profile federal prosecution of Ed Rosenthal on marijuana charges in 2002.  This was one of the major skirmishes between Californians and the federal government over medical marijuana.  In 1996, California voters approved an initiative to allow marijuana use in certain medical situations.  The feds took the hard line: We don’t care what state law says, there is no “medical exception” to the federal ban on marijuana possession.  On the eve of Rosenthal’s trial, federal prosecutors asked the trial judge to lay down some ground rules for the trial.  No medical marijuana defense.  And Rosenthal should not be allowed to make any argument aimed at jury nullification. The judge readily agreed to those requests.  Weeks later, as the jury was deliberating Rosenthal’s fate, one juror decided to contact her attorney-friend to ask a question about a legal point.  The juror was frustrated because she had surmised from questions asked during the early jury selection phase of the case that there was a medical marijuana angle–and yet there was no evidence introduced in the case about medical marijuana.  This troubled the juror–so she phoned her attorney-friend to ask ”if [she] had to follow the Judge’s instructions, or if [she] had any leeway at all for an independent thought.”   The attorney responded by saying that jurors definitely had to follow the judge’s instructions and went so far as to say that a juror “could get into trouble” for acting outside of those instructions.  Rosenthal was subsequently convicted by the jury, but on appeal, he raised this episode as one reason that he should be given a new trial.

[Digression: After the trial, the jurors were shocked at the information that had been kept from them and many approached Rosenthal and his legal team to explain why they voted the way they did.  Several wanted to help in his appeal in any way they could].

The federal appeals court agreed with Rosenthal’s argument and overturned his conviction:

Jurors cannot fairly determine the outcome of a case if they believe they will face “trouble” for a conclusion they reach as jurors.  The threat of punishment works a coercive influence on the jury’s independence, and a juror who genuinely fears retribution might change his or her determination of the issue for fear of being punished. United States v. Rosenthal (9th Cir). [.pdf].

Good stuff.

Republicans Tripping on Medicare Prescription Drugs

President Bush is touring the country to let seniors know that May 15 is the last day they can enroll in the Republicans’ new Medicare drug program without penalty.  Yet his administration’s boasting about the new Medicare drug program is less than convincing.

  • The administration blares that a seemingly impressive 35.8 million seniors (or 83 percent of Medicare enrollees) now have prescription drug coverage.  Really?  The Congressional Budget Office reported that 75 percent of seniors already had drug coverage before the Republican program was created.  Unless the administration improves on that 8 percentage-point gain, its new entitlement will cost about $9,500 per newly covered senior in 2006 and about $32,000 per newly covered senior by 2015.
  • Of those 35.8 million drug-covered seniors, only eight million actually enrolled themselves in the program (19 percent of seniors).  The rest either stayed with the drug coverage they already had, or are Medicaid enrollees who were automatically enrolled.
  • Even some of those who “voluntarily” enrolled were essentially pushed.  The program encourages employers to drop retiree drug coverage.  Employers like J.C. Penney, Jostens, and Raytheon have already done this.  That leaves many with little choice but to enroll.  The CBO has estimated that this fate will befall close to three million retirees, in spite of the estimated $150 billion Congress is throwing at employers who keep their retiree coverage.  (General Motors gets $4 billion, while Ford gets nearly $2 billion.  Don’t you wish you had a lobbyist?)
  • Medicare’s trustees reported last week that the unfunded liability of the drug program is still greater than that of the entire Social Security program.
  • Medicare’s public trustees also reported that the program’s cost – to date – is lower than had been anticipated “due to recent slower growth in overall prescription drug spending and lower enrollment in stand-alone prescription drug plans than was expected a year ago, among other factors.” 

Republicans are essentially throwing your tax dollars–and their limited government principles–off the back of a truck.  And they’re still having a hard time persuading people to enroll in their entitlement program.

Libertarianism and Health Care

I recently did an interview with Catallarchy, a group blog made up of young libertarians. Sample Q&A:

While you come out in favor in free-market reforms in your book, how politically feasible do you think these reforms are?

Not at all. The most important proposal I make is to phase out Medicare. That’s a non-starter politically. But these ideas only become possible if you start to talk about them and people begin to understand that they make sense.

Many people view the US healthcare system as “free-market” and the rest of the world, especially England and Canada, as “socialized”. Is this the case?

The more I look at, the less free-market it seems. Take health care finance. In every major country, the consumer is insulated from at least 80 percent of health care costs. In the U.S., it’s 85 percent, which is one of the highest rates of third-party payments, or what I call insulation. In most other countries, it’s 80-85 percent government, and 10-15 percent paid for by consumers out of pocket. In the U.S., it’s about 45 percent government and 40 percent private insurance, with 15 percent out of pocket. So if we’re more market-oriented, it’s because of that 40 percent that’s paid for by private insurance. That is not a big deal.

As I have realized lately (since writing the book), health insurance is a favorite playtoy for state regulators. You could say that in most states, insurance products and services are designed by regulators, and the private companies just compete in terms of marketing. So insurance companies cannot innovate either in terms of product or in terms of risk management. In my book, I say that the main benefit of markets is innovation. The way the insurance market is regulated, we don’t get that. What’s not in my book is my rant about regulation of health care providers, with its heavy credentialism and rent-seeking. My latest pet peeve is physical therapy, which I suspect could be taught reasonably well in a one- year trade school course to high school graduates, and which recently instead had its requirement raised to three years of post- graduate training!

Although it uses my new Cato book Crisis of Abundance as the main focus, the interview ranges into other topics, from teaching economics to where I like to take vacations.

“Fair Trade” Coffee: Answering Peter Singer

It just came to my attention that noted Princeton philosopher Peter Singer blogged recently about a Cato study I did back in 2003 on the slump in world coffee prices. (By the way, this isn’t Singer’s first brush with Cato. He served graciously as one of the commenters in the March issue of Cato Unbound, which addressed the question “When Does Inequality Matter?”

In his blog post Singer takes issue with my characterization of the growing market for “fair trade” coffee (coffee sold at a premium price that benefits farmers in “fair trade” cooperatives) as a “well-meaning dead end.” Here’s an excerpt:

With some justification, he argues that the real cause of the fall in coffee prices was not the profiteering of multinationals, but big increases in coffee production in Brazil and Vietnam, combined with new techniques that make it possible to grow coffee with less labor and hence more cheaply.

In Lindsey’s view, if we want to assist coffee growers, we should encourage them either to abandon coffee and produce more profitable crops – and here he rightly points to rich nations’ trade barriers and subsidies as obstacles that must be dismantled – or to move into higher-value products, like specialty coffees, that bring higher prices.

What is curious about Lindsey’s argument, however, is that the Fairtrade coffee campaign can be seen as doing just what he recommends – encouraging coffee farmers to produce a specialty coffee that brings a higher price. Pro-market economists don’t object to corporations that blatantly use snob appeal to promote their products…. So why be critical when consumers choose to pay $12 for a pound of coffee that they know has been grown without toxic chemicals, under shade trees that help birds to survive, by farmers who can now afford to feed and educate their children?

To which my response is: I agree! If people want to produce and market coffee under a “fair trade” label and other people want to buy it, I’m all for it. Far be it from a libertarian to speak ill of capitalist acts between consenting adults….

So why did I call “fair trade” coffee a dead end? I did so in the context of discussing the causes of and possible solutions to the worldwide coffee glut that had resulted in record-low prices for struggling farmers. In that particular context, I criticized the “fair trade” movement for demonizing all other segments of the market as unfair and exploitative. Further, I argued that socially conscious coffee was never going to be more than a small niche market, and thus it was a “dead end” as far as resolving what was then called the “coffee crisis.” Far more promising, I wrote, was the booming “specialty” or gourmet coffee market. That assessment was based on the empirical judgment that, for the foreseeable at least, the upside of the snob appeal market was dramatically greater than that of the social conscience market.

Three years later, that assessment is holding up. As of 2005, “fair trade” coffee constituted only 1.8 percent of the overall U.S. market and 4.1 percent of the specialty market. In other words, snob appeal is outselling social conscience by better than 20 to 1. “Fair trade” products are doing somewhat better in Europe, but they’re still a minority taste.

Meanwhile, what’s going on with coffee prices? The coffee crisis was due primarily to a big runup in low-cost supply (from Brazil and Vietnam in particular). As a result, green coffee prices were stuck around 50 cents a pound during the first years of decade. With recent production cutbacks in Brazil, however, prices have now rallied to nearly a dollar a pound. Shifts in supply and demand, not quixotic denials of their relevance in determining prices, have brought improved market conditions for the world’s coffee farmers – at least for the time being.

Surrendering the Argument on Health Care

A new Rasmussen poll shows that a third-party presidential candidate promising universal health care coverage would run virtually even with a Republican candidate and ahead of a Democrat. This is the latest sign of dissatisfaction with our current health care system.

But it also shows what happens when we abandon principles and co-opt the arguments from the left. From Massachusetts Governor Mitt Romney’s individual mandate to President Bush’s Medicare prescription drug benefit, many Republicans and conservatives appear to have conceded to the idea that expanded—indeed universal—coverage should be the goal of health insurance policy.

Very seldom do you see anyone making the case that government-run health care will inevitably lead to rationing and the denial of care. Even less do you see anyone, outside of Cato, arguing that we must shift the health care debate away from its single-minded focus on expanding coverage to the bigger question of how to reduce costs and improve quality through greater consumer control.

Given a choice between national health care and national health care “lite,” it’s not surprising that a great many people favor the real thing. We are not going to win this argument unless we a) make a clear case against more government involvement in health care, and b) offer a clear consumer-based alternative.

Robert Jackson and NSA Spying Reconsidered

I enjoyed Roger Pilon’s and Bob Levy’s debate on NSA surveillance Friday. I’ll confess I’m in general agreement with Bob. However, I post to note one wrinkle: Bob mentioned Justice Jackson’s opinion in the Steel Seizure Case (Youngstown Sheet & Tube Co. v. Sawyer) in support of his position against the NSA surveillance program. In the Steel Seizure Case, Jackson’s concurrence set out a tri-partite framework for assessing presidential power, in which he argued that the power of a President acting without congressional authorization is at its lowest ebb. The problem is that no one knows what exactly this means.

In the spring edition of The Green Bag (available here), Jack Goldsmith (my onetime international law professor and former head of the Office of Legal Counsel) discusses a recently discovered draft of Jackson’s (never filed) concurrence in In re Quirin—the case involving the military trial and eventual execution of enemy saboteurs captured on U.S. soil during World War II. The draft opinion sheds some further light on Jackson’s views.

Here’s the basic gist:

[Jackson] ‘began in Quirin with the fixed presumption that the Court has no business reviewing military judgments in time of war, and he never deviated from that position.’ Jackson clearly stated the basis for this presumption in the closing paragraph of his draft opinion in Quirin:

‘[I]n the long run it seems to me that we have no more important duty than to keep clear and separate the lines of responsibility and duty of the judicial and of the executive-military arms of government. Merger of the two is the end of liberty as we in this country have known it. If we are uncompromisingly to discountenance military intervention in civil justice, we would do well to refuse to meddle with military measures …’

Jackson’s is a somewhat strange middle position: He felt it was the Court’s duty to declare extra-legal actions undertaken in the service of national security unconstitutional when the Court confronted such acts. But Jackson also seemed to believe that courts should not directly interfere with the carrying out of such unconstitutional “military measures.” In effect, Jackson believed the Court, when confronted with illegal actionj must declare it as such, but should leave the remedy to the political process.

What would Jackson have done in a case reviewing the NSA surveillance program.? It is hard to tell. But to the extent he would have viewed the program as a “military measure,” part of the “necessities and practices” of warfare, he might well have wanted the Court to declare it illegal and then abstain from directly ordering an end to the surveillance program.

What if They Held an Election and Nobody Came?

The interesting story about the new Associated Press-Ipsos poll is not the further decline in approval ratings for President Bush and the Republican Congress. The interesting story is how the decline is being driven by discontent among self-identified conservative voters.

Bush’s disapproval rating among conservatives is 45%. That is not as high as the overall 66% disapproval score, but it is quite remarkable considering Bush is supposed to be—according to the media—the most conservative president since Ronald Reagan. Even more stunning is the whopping 65% negative score among polled conservatives for the Republican Congress. Close to a third of conservatives surveyed would be happier if the GOP lost control of Congress.

There are many reasons for the low poll numbers. But one of the primary drivers of conservative discontent with the GOP has got to be that the Republican Congress and President Bush are the biggest spenders since LBJ.

The AP-Ipsos results seem to corroborate what other pollsters have discovered among likely voters over the past two years. In February 2006, a George Washington University Battleground poll revealed that only 36% percent of those surveyed trusted Republicans in Congress to keep spending under control—down from 47% in the same poll two years before. This isn’t because Democrats have effectively wrapped themselves in the mantle of fiscal responsibility. It’s entirely a result of the public realizing that the GOP is no longer a party committed to small government.

As a result of this, many Republicans might shift from being “likely voters” in November to deciding they’d rather not put up with the fuss of showing up to vote at all. And that’s exactly what has Republican strategists worried. Why would conservatives bother to pull the lever for a Republican candidate when continued GOP control of Congress seems likely only to give them the sort of Big Government they would expect from Democrats? That’s not what Republican leaders want to hear from their base before a mid-term (read: low turnout) congressional election in which support of the party faithful is essential to victory.

Pundits suggest that the poll numbers of late are a harbinger of a 1994-like realignment in Congress. It’s probably too early to make such grand predictions. Perhaps a better historical comparison is with the 1998 congressional elections.

At that time, Republicans were coming off of a year when they seemed to have made peace with Big Government. A few weeks before the midterm elections of 1998, the Republican Congress approved a budget that hiked non-defense discretionary spending by over 5% that year—low by comparison to today’s budgets, but over twice what was promised in the Contract with America budget. They also funded a record amount of pork-barrel projects, reversed their promise to phase-out farm subsidies, and passed a highway bill that at the time was the most expensive and earmark-laden in U.S. history. In other words, the 1998 session of Congress was in every way a rout of the very ideals that sparked the Republican Revolution in the first place.

What was the result? The GOP lost a net three seats in the House, narrowing their majority to five seats. Exit polls showed that turnout among self-identified conservatives dropped 6% from 1994 to 1998. This may not sound like a lot, but consider this: Republican House candidates received a total of 32 million votes, and Democratic candidates received 31 million votes—a difference of about 2%. In a race that close, Republicans needed all the help that could be mustered from self-identified conservatives. But those voters were clearly peeved that Republicans had lost their fiscal backbone and decided to stay home on Election Day.

Whether 2006 will be a replay of 1998 or even 1994 will at least partly depend on whether Republicans can dispel their reputations as big spenders.