Jury Independence

By
Tim Lynch

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.

Topics: 
General, Law and Civil Liberties

Republicans Tripping on Medicare Prescription Drugs

By
Michael F. Cannon

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.

Topics: 
General, Health Care, Tax and Budget Policy

New at Cato Unbound: Boaz on Leadership for Limited Government

By
Will Wilkinson

In today’s installment of Cato Unbound, Cato’s executive vice president David Boaz argues that the Republicans have failed Reagan’s vision, offering their own brand of meddlesome statism as an alternative to the Democrats’. Boaz maintains that there is in the U.S. a constituency for limited government, but it is in need of a principled leader. So those who hold fast to limited government ideals

must translate that vision into policy proposals, organizations, and political movements. As John the Baptist prepared the way for Jesus, advocates of liberty and limited government must make ready the ideas, the platform, the networks that could serve a political leader who wanted to take on the task of clearing away the late 20th century’s accumulated burden of bureaucratic systems, unfunded liabilities, overextended military commitments, and usurpations of the responsibilities of free citizens.

Writing in Friday’s edition, Ross Douthat and Reihan Salam argue, less hopefully, that although a renewed push for smaller government isn’t in the cards, Republicans can realistically hope to win reforms that promote “freedom, self-reliance, and individual initiative”—values at the core of the limited-government movement. In the current climate, Douthat and Salam write, “simply calling for the rollback of government appeals only to those already in the winner’s circle of American life…” So, they argue, Republicans “need to accept that government will remain large in the short run … while pursuing long-range strategies that will produce a more opportunity-friendly, less statist America.”

Later this week, David Frum will kick off the informal blog conversation among this month’s contributors with a reply to their comment essays. Keep your feed readers tuned!

Topics: 
Cato Publications, Government and Politics

The False Hope of Public Diplomacy

By
Justin Logan

Last week, the Government Accountability Office released a report titled “U.S. Public Diplomacy: State Department Efforts to Engage Muslim Audiences Lack Certain Communication Elements and Face Significant Challenges.” [.pdf]

The report focuses mainly on structural and programmatic aspects of the US public diplomacy effort, but it hints at a central problem.  It has become a cliche in Washington to refer to the crisis in public diplomacy, the idea being that we need to get our message out better.  America’s unpopularity in the Muslim world, the thinking goes, is the result of poor communication.  The trouble with this logic is that it rests on the notion that it is somehow the presentation, not the product itself, that is the problem.

The GAO report points out that, by and large, where Muslim anti-Americanism is concerned, US foreign policy is the culprit:

All of our panelists agreed that U.S. foreign policy is the major root cause behind anti-American sentiments among Muslim populations and that this point needs to be better researched, absorbed, and acted upon by government officials.

This echoes the Defense Science Board’s 2004 report on strategic communication [.pdf], which put the point rather more tersely:

American direct intervention in the Muslim World has paradoxically elevated the stature of and support for radical Islamists, while diminishing support for the United States to single-digits in some Arab societies…Muslims do not “hate our freedom,” but rather, they hate our policies.

Granted, US public diplomacy could improve a great deal.  But emphasizing public diplomacy as the problem implies that somehow people in the Muslim world just don’t understand our foreign policies.  The stark reality is that they understand our policies well enough.  They just don’t like them very much.

It’s true enough that foreign policy isn’t a popularity contest, and on the rare occasions when vital American interests are threatened, say, by a pending terror attack, public opinion ought to be low on the list of our concerns.  But in too many cases, US foreign policy unnecessarily inflames public opinion in the Muslim world.  The invasion and occupation of Iraq, the erstwhile US military presence in Saudi Arabia, US support for tyrannical regimes in the Arab world, and the unrelenting push to maintain a US military presence on Muslim lands, all have greatly increased the potential recruiting pool (let alone sympathy) for groups like al Qaeda.

That’s why the GAO is right to say that the “point needs to be better researched, absorbed, and acted upon by government officials.”  Until our foreign policy itself is fixed, all the public diplomacy in the world won’t fix our image problem—or deflate support for al Qaeda—in the Muslim world.

Topics: 
Foreign Policy and National Security

Libertarianism and Health Care

By
Arnold Kling

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.

Topics: 
General, Health Care

“Fair Trade” Coffee: Answering Peter Singer

By
Brink Lindsey

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.

Topics: 
General, International Economics and Development

Stumbling on Paternalism?

By
Will Wilkinson

Harvard psychologist Daniel Gilbert’s new book, Stumbling on Happiness, appears to be all the rage. Cato Institute adjunct scholar Tyler Cowen thought it was the best book he had read this year, until he forgot, and nominated David Warsh’s Knowledge and the Wealth of Nations instead. In any case, Gilbert is one of the world’s experts about “affective forecasting,” i.e., our ability to predict how we will feel in the future. Generally, we overshoot the mark. Here’s a bit from Scott Stossel’s review in the NYT:

Events that we anticipate will give us joy make us less happy than we think; things that fill us with dread will make us less unhappy, for less long, than we anticipate. As evidence, Gilbert cites studies showing that a large majority of people who endure major trauma (wars, car accidents, rapes) in their lives will return successfully to their pre-trauma emotional state — and that many of them will report that they ended up happier than they were before the trauma. It’s as though we’re equipped with a hedonic thermostat that is constantly resetting us back to our emotional baseline.

Why might this be of political interest? Recall that part of J.S. Mill’s famous libertarian argument against paternalistic interference in On Liberty is based in the following claim:

… with respect to his own feelings and circumstances, the most ordinary man or woman has means of knowledge immeasurably surpassing those that can be possessed by anyone else.

If we are systematically wrong in our predictions about how our circumstances will relate to our feelings, then it might seem that experts, like Daniel Gilbert, may be better placed than we are to know what is and is not going to make us happy. Some paternalism may be called for after all.

There are several things to say in response to this line of thinking. Let’s set aside the tricky moral replies, and focus on a major practical problem for teasing paternalistic implications out of our “affective ignorance.”

Even if some experts know better than we do what will make us happy, it is very unlikely that those experts will be the ones determining paternalistic policy. Consider that the very same people who make systematic mistakes about their future feelings are the voters in democratic elections. And, as Bryan Caplan’s work shows [.doc], voters are likely to be even more profoundly mistaken about politics than about their own affairs.

Successful politicians are likely to reflect the biases of the voters. Take the War on Terror, for example. Gilbert’s work implies that whatever the harm of another terrorist attack may be, it probably will not be as bad as we imagine, and we would get over the wound rather more quickly than we think (indeed, more quickly than it may be comfortable to acknowledge). But that doesn’t keep voters or politicians (who share the same psychology, after all) from being extremely anxious about another terrorist attack.

There’s a good chance that lots of people mispredict how bad things would be if drugs were legalized, or if same-sex marriages were legally recognized. The consequence is that we get politicians who appeal to us because they make the same errors—or even because they convince us that things will be even worse than we thought (which was already way worse than it would really be) if they aren’t elected. And these are the people who determine paternalistic policies, not experts like Daniel Gilbert.

Even if you ask politicians to appoint experts, they will not consult experts on expertise to determine who the real experts are. Their beliefs about who is and isn’t an expert, like their beliefs about anything else, will reflect their biases. If I were President, Leon Kass might be the last person I would think of to head my Council on Bioethics. But if you look at his bio, you can certainly see why he looks like an expert to some people. The upshot is that happiness-based paternalistic policy may be more likely to be based on the work of Dr. Rick Warren than on the work of Dr. Daniel Gilbert.

So, a realistic account of human psychology shows that we can be pretty bad at predicting what is really going to make us happy. But a similarly realistic account of actually existing political institutions shows that they are likely to be even worse than individual decision-makers. If we make systematic errors, then democracy will simply aggregate our errors. And politicians, who make the same errors we do, will reflect our errors, and will often have an incentive to reinforce them to their political benefit. Even if expert knowledge exists—even if Daniel Gilbert knows better than you do about what will and won’t make you happy—democratic institutions will not be reliable at identifying it or applying it.

Topics: 
Government and Politics, Political Philosophy

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