Topic: Law and Civil Liberties

What Would You Do?

You know you haven’t done anything wrong, so you have always assumed that you have nothing to worry about from police officers and prosecutors. Maybe a remote chance of a misunderstanding, but nothing that couldn’t be quickly cleared up. After all, why would the police bother you when you do not break any laws?

Now consider the nightmare case of James Calvin Tillman.

The police arrest Tillman for rape. He asserts his innocence, but the victim says she is sure that he is the culprit. Prosecutors offer Tillman a plea bargain. If Tillman will agree to waive his right to a trial and plead guilty, the state will agree to a 8 year prison sentence. However, if Tillman declines the deal and exercises his right to a trial, the state promises to seek the maximum penalty: 45 years imprisonment.

Questions:

What do you think a guilty man would do in such circumstances?

What would you have done in those circumstances?

What do you think Tillman did?

Tillman went to trial and was found guilty. After serving 18 years in prison for doing nothing wrong, he was just released on the basis of a recent DNA test.

It is always curious how the Governor, the Mayor, the Warden, the District Attorney, and the Police Chief never seem to be on the scene when the wrongly convicted person is released from jail. Maybe they just happened to be out of town on more important business!

Anyway, some people hold the view that it is not realistic to expect perfection. They say, “What’s important here is that a tragic mistake was discovered and corrected. The system worked.” Well, yes, but does it not make sense to see how that mistake was discovered and to consider ways in which such mistakes can be avoided in the future?

If we assume that the police and prosecutors are correct 95 percent of the time, then there are 100,000 innocent people in prison. On top of that, thousands and thousands more may not be locked up, but they have acquired criminal records because they got swept up in a police investigation and no one in the government believed their story.

At the risk of sounding unsophisticated, one way to minimize the mistakes is to actually have more trials, so that an impartial jury can weigh evidence. We really don’t have trials anymore. The cases that you hear about on the news—Scott Peterson, Michael Jackson, Martha Stewart, Enron CEOs—are part of the paltry 4 percent of cases that go to trial. Our courthouses are mostly gigantic plea bargaining centers. And plea bargaining rests upon the legal fiction that the government does not retaliate against a person for exercising his constitutional right to a trial.

When a judge accepts a plea deal, he’ll ask whether the accused is pleading guilty “voluntarily.” This is a staged ceremony. No one is supposed to mention the prosecutorial threats (we’ll throw the book at you!) that will be carried out if the accused insists upon a trial.

One might say, “Tillman got a trial and look what happened to him.” True enough, but I suspect many, many more errors are buried in the plea bargaining statistics.

Let’s reduce the dishonesty and wrongful prosecutions in our system by abolishing plea bargaining.

The FDA and Your Dinner Plate

Two years ago, Time asked me to write one half of a short point-counterpoint on the obesity debate for a special issue of the magazine entirely devoted to how government should intervene to prevent the fattening of America.

My job was to defend the notion of personal responsibility (my meager 350 words were the only such defense the entire issue). I remember squabbling with one of the magazine’s editors over one contention I made in the article – that it was only a matter of time before public health activists and the federal government would attempt to regulate the portion sizes of food served in restaurants. Seemed like a logical prediction of where things were headed. The editor accused me of hyperbole, and nixed the prediction from the piece.

Last week, this story hit the wires:

Those heaping portions at restaurants – and doggie bags for the leftovers – may be a thing of the past, if health officials get their way.

The government is trying to enlist the nation’s eateries in the fight against obesity.

The report, funded by the Food and Drug Administration, lays out ways to help people manage their intake of calories from the growing number of meals prepared away from home, including at the nation’s nearly 900,000 restaurants and other establishments that serve food. One of the first things on the list: cutting portion sizes.

“We must take a serious look at the impact these foods are having on our waistlines,” said Penelope Royall, director of the health promotion office at the Department of Health and Human Services.

The recommendations are voluntary.

For now.

More Temperance Tomfoolery

This morning on the radio, I heard the Washington Post’s Richard Morin express alarm at the latest study from the Center on Addiction and Substance Abuse regarding underage drinking. This year’s study — like previous studies from CASA — declares underage drinking a monumental problem, and concludes that the alcohol industry is not only to blame, but that the industry’s bottom line is dependent on continued consumption by minors.

Morin is an ideas guy. He should know better than to buy into what a baldly neoprohibitionist group like CASA puts in its press release without a bit of skepticism. Unfortunately, he’s not alone — this short NY Times piece bites on the study, too.

CASA has an unfortunate history of fudging data in pursuit of an anti-alcohol agenda. The group had to apologize and retract a 2002 study just hours after its release when critics pointed out massive errors in methodology.

The invaluable Statistical Assessment Service at George Mason University (STATS) takes a crack at this year’s study and, once again, finds it lacking:

Here are a few numbers that don’t make sense: according to their estimate, over 20 billion drinks are consumed by underage drinkers. STATS was unable to reconstruct this number. According to their own analysis, 47.1 percent of kids age 12-20 are “drinkers”, that is, they consume at least one drink per month. According to the 2000 U.S. Census, there are 35.8 million people in the United States in this age range; of these, just under 17 million drank in the past month. The average number of drinks/month, according to the data given in this article, is 35.2 per person per month– or about 422 per year. This amounts to about 422 times 17 million, or just under 7.2 billion drinks per year, far from the 20 billion reported in their table, and used for their analysis. For these same kids to consume 20 billion drinks, each teen would have to consume over 1,000 drinks per year, or almost three drinks a day!

STATS runs through CASA’s other hysterical claims, debunks them, then concludes:

The upshot of all this: the number of drinks consumed by youth under 21 is overestimated, the cost per drink is overestimated, the amount of drink attributed to abuse and dependence is overestimated, and the benefit to the industry of youth drinking and alcohol abuse and dependence is overestimated.

Alcohol industry giant Diageo has started a blog to debunk neoprohibition nonsense. Regarding the CASA study, Diageo also points out that nearly all statistical data indicate a sharp decline in underage drinking over the last 15 years, as well as sharp declines in the social problems one might associate with alcohol abuse — drunk driving fatalities, for example. (While Diageo is an alcohol manufacturer, the data it cites come from the federal government.)

Two other points to consider in all of this:

  • This type of data manipulation is alarmingly common among anti-alcohol activists. Just a couple of months ago, the American Medical Association (which has adopted an odd, militant temperance philosophy of late) was caught passing off an Internet poll on spring break and alcohol consumption as scientific, complete with a made-up margin of error. That story was all over the media before any reporter or editor thought to look at its methodology. And it’s unlikely that the millions who saw the original story on the Today Show or read about it in USA Today saw the handful of follow-up stories showing the poll to be little more than anti-alcohol propaganda.
  • There’s no question that underage drinking is common, and much of it is unhealthy (though I don’t buy into the notion that each time a glass of alcohol touches a 19-year-old’s lips qualifies as an incident of “abuse”). But it’s not nearly as widespread as the neoprohibition crowd would have you believe.  Nor is putting bans or severe limitations on alcohol marketing the proper way to address it.   

Unfortunately, neither CASA and its comrades in temperance nor the alcohol industry will consider what I think is a far more sensible approach: Abolish the federal drinking age and, at the state level, adopt a more realistic minimum age — 18 or 19 for purchase, with no minimum for consumption under parental supervision.

Prohibitions on intoxicants have never worked, and never will. They encourage binging and “underground” consumption.

Supreme Court, Meet Sweet Science

Debates about constitutional rights often take the form of either-or propositions. Either the Supreme Court must take an iron stand on high principle, come what may, or we are left with a world of politics-takes-all.

More often than not, that intuition is right. But sometimes, the court can take a few lessons from the sweet science of boxing. Great fighters don’t always win the fight in a toe-to-toe slug match. In hard fights, it can take a bit of fancy footwork. As I argue in this piece, that’s exactly what’s needed in a confrontation between the Supreme Court and the president over NSA surveillance.

Five Years in Prison for Online Gambling

Next week, a law takes effect in Washington State that makes Internet gambling a Class C felony, punishable by up to five years in prison. It’s the same class of felony reserved for child pornographers, animal torturers, and people who make threats on the governor’s life.

Lawmakers and state officials say the intent of the law isn’t to go after gamblers themselves. One wonders, then, why the bill was necessary. The “bet taking” side of online gambling is already a federal crime, and has been for years. That’s why gambling sites are incorporated and located overseas.

The only conceivable reason why a bill might be needed would be to clear up the ambiguity on the “bet placing” side of the transaction. No one seems to know whether the user-end of online gambling is legal. This bill is quite clear on that – the placing of bets via the Internet is now a felony in Washington. Indeed, one official conceded to the Seattle Post-Intelligencer that vice agents have already begun breaking into the homes of people gambling online to warn them that the activity is illegal. They’ll now be able to arrest them too.

In addition to the usual paternalistic objections, the bill also raises significant privacy concerns. How will state officials know who’s gambling unless they’re closely monitoring citizens’ online habits? Will they begin snooping through ISPs?

The other option would be to track the finances of suspected gamblers. That’s even more troubling. Most gaming sites now conduct transactions with U.S. customers through offshore payment services like Neteller or FirePay (U.S.-based PayPal was threatened out of the business by federal prosecutors via the PATRIOT Act). In industry jargon, these are called “ACH” transactions. They’re more commonly known as a “virtual check.” But banks can’t trace the nature of ACH transactions. They can only trace the name of the vendor. A customer could be using Neteller or FirePay to purchase just about any good or service online. But it’s conceivable that merely using either service could be enough to set off red flags for state investigators.

Though predicated on concerns about problem gambling and children’s access to gaming sites (virtually impossible, by the way), it’s probably worth noting that the Washington law has been pushed with heavy backing from the state’s bustling bricks-and-mortar casino industry. Sort of undercuts the notion that moral aversion to gambling is motivating all of this. The politically powerful horseracing industry won an exemption from the ban too.

If there’s a bright side to the bill, it’s the public reaction to it. Comments posted on the state legislature’s website aren’t just overwhelmingly negative, they’re scathing. In fact, polls show most Americans are by and large opposed to state and federal attempts to prohibit Internet gambling.

More on the folly of Internet gambling prohibitions here and here.

Toward a Liberal Federalism?

Apropos of the Marriage Amendment issue: one of the happy accidents of the Bush administration is that the president has been so determined to centralize social policy in the United States that he’s actually made some liberals appreciate the virtues of federalism.  See this piece by the New Republic’s Franklin Foer or this one from Stanford’s Richard Thompson Ford for examples. 

Early on in his administration, President Bush promised to:

make respect for federalism a priority in this administration.  Respect for federalism begins with an understanding of its philosophy.  The framers of the Constitution did not believe in an all-knowing, all-powerful federal government.  They believed that our freedom is best preserved when power is dispersed.  That is why they limited and enumerated the federal government’s powers, and reserved the remaining functions of government to the states.

Respect for federalism would require respecting the voters of Oregon when they set up a law allowing terminally ill patients to end their suffering with the help of their doctors. Respect for federalism would require respecting the voters of California and 10 other states that allow cancer patients, AIDS patients and others to use medical marijuana.  Yet on these issues and many other issues that the Constitution leaves to the states – crime, education, marriage – President Bush has fought very hard to increase Washington’s involvement – usually in ways that offend Blue State sensibilities.

With the Red Team doing the centralizing, it’s only natural that the Blue Team would look favorably on a more decentralized system.  I’ve always been a bit uneasy about some of the liberal justifications for federalism, such as Justice Brandeis’s “laboratories of democracy” argument.  Just who are the lab rats in that metaphor?  (Note that Foer lists Elliot Spitzer as one of the bold experimenters liberals should emulate.) 

But the virtues of federalism are plain, and appreciating them shouldn’t depend on who’s up or who’s down.  Federalism makes it easier for Americans to escape unwelcome state experiments with fiscal and social policy.  It enhances the political power of individual citizens by allowing important decisions of governance to be settled closest to where Americans live and work. And it avoids making politics a centralized war of all against all, where each contested moral issue is settled in a one-size-fits-all fashion at the level furthest from the people.

I hope that the Republican assault on federalism leads to a resurgence of decentralist liberalism.  I fear that, as with the Right, the Left’s interest in subsidiarity will last about as long as its exile from federal power.  Yet hope springs eternal.