Winning, But Losing

When the government accuses someone of a criminal offense, it typically proceeds to exert enormous pressure on the accused to surrender the right to a jury trial. Fewer than 10 percent of the criminal cases in America go to trial. Plea bargaining dominates the system.

Sometimes a person will insist on a trial. This is risky because if the government gets a conviction, it will mete out extra punishment because it was forced to go through the “trouble” of a trial. But if the jury sides with the accused, the state loses, right? Wrong.  The state can still unleash punishment after an acquital. 

Hard to believe, I know. Here’s a recent ruling (United States v. Ibanga) in which the Court is at pains to explain the law.

After an eleven-day trial, a jury acquitted defendant Michael Ibanga of all of the drug distribution charges against him and one of the two money laundering charges against him in the Indictment. The single count of which defendant Ibanga was convicted typically would result in a Guidelines custody range of 51 to 63 months. However, the United States demanded that the Court sentence defendant Ibanga based on the alleged drug dealing for which he was acquitted. This increased the Guidelines custody range to 151 to 188 months, a difference of about ten years. …

What could instill more confusion and disrespect than finding out that you will be sentenced to an extra ten years in prison for the alleged crimes of which you were acquitted? The law would have gone from something venerable and respected to a farce and a sham.

From the public’s perspective, most people would be shocked to find out that even United States citizens can be (and routinely are) punished for crimes of which they were acquitted.

[…]

The Sentencing Guidelines have accomplished much good in the course of standardizing the sentencing process. Similarly, the Fourth Circuit’s post-Booker presumption approach is a politically savvy parry to the thrust of those who call for more stringent measures, such as the expansion of mandatory minimums. However, it is a charade to say that the Sixth Amendment violations inherent in the Guidelines are cured simply by intoning the word “advisory.” Saying something is so does not make it so.

One of Charles Dickens’ characters, Mr. Bumble, famously observed, “If the law supposes that, … the law is an ass– an idiot.” Charles Dickens, Oliver Twist 463 (3d ed. The New American Library 1961). He was referring, of course, to a legal fiction that had no basis in reality. Many of our fellow citizens believe that Mr. Bumble was right — that the legal process is rigged through sleights of hand that defy common sense. It would only confirm the public’s darkest suspicions to sentence a man to an extra ten years in prison for a crime that a jury found he did not commit. (Italics added.)

This case stands out because the ruling is bitterly critical of this aspect of sentencing law. Most court rulings affirm this stuff all the time, without comment. 

I should point out that the state is powerless to do anything in the typical TV drama situation where there is a single murder charge that the jury is considering against someone. If there’s a single charge and the jury says “not guilty,” the prosecutor cannot do anything about that result. But that’s TV. Nowadays, when a case goes to trial, there are multiple charges. And if the jury comes back with a single “guilty” verdict, the government might still drop a ton of bricks on the defendant — even if the jury said “not guilty” on a dozen other charges.

Does the existence of such a power influence a person’s decision with respect to whether he ought to “waive” his right to a jury trial in first place — and accept a plea bargain? What do you think?

The constitutional right to a jury trial is on life-support and that’s where the government wants it. Go here for Cato articles related to sentencing.

P4P All Over the Private Sector

At yesterday’s Cato policy forum on pay-for-performance (P4P) in Medicare, I argued the Medicare bureaucracy should stay out of P4P largely because Medicare would ruin the idea. A Medicare-administered P4P program would be less flexible than private efforts, more likely to harm patients, and the very providers that P4P aims to discipline would have way too much say in a Medicare P4P program. I recommended confining P4P to private Medicare Advantage health plans. Read my full argument here.

Harvard’s David Cutler argued that Medicare should get involved in P4P because private insurers didn’t have the purchasing power to really force providers to change. At the time, I was unaware of this study by Meredith Rosenthal and her colleagues in this week’s New England Journal of Medicine. They report:

More than half the HMOs, representing more than 80% of persons enrolled, use pay for performance in their provider contracts. Of the 126 health plans with pay-for-performance programs, nearly 90% had programs for physicians and 38% had programs for hospitals.

That probably doesn’t match Medicare’s purchasing power. But it does suggest that P4P can gain a toehold through the private sector.

Global Warming Science — Utter Garbage

… at least, that’s what one might think about the state of the literature today after reexamining a paper by Isabelle Chuine et al. that was published a couple of years ago in the journal Nature (subscr. required). 

Chuine et al. claimed to have developed a method for estimating summer temperatures in the French wine region of Burgundy from 1370 to the present based on the dates that grapes were harvested. Using this method, the authors asserted that the summer of 2003 was the warmest summer in Burgundy since 1370. The study was offered up as yet one more piece of evidence that global warming is running amuck. 

But not so fast — it turns out that the estimates offered by Chuine et al. have absolutely no relation with observed temperatures and that no one ever bothered to check whether their estimates matched hard data when the two coincided. In a forthcoming paper for Theoretical and Applied Climatology, Douglas Keenan tears the Chuine paper limb from limb

More importantly, Keenan calls attention to the overall shoddiness of the scientific press today and the researchers publishing therein:

What is important here is not the truth or falsity of the assertion of Chuine et al. about Burgundy temperatures. Rather, what is important is that a paper on what is arguably the world’s most important scientific topic (global warming) was published in the world’s most prestigious scientific journal with essentially no checking of the work prior to publication.

Moreover — and crucially — this lack of checking is not the result of some fluke failures in the publication process. Rather, it is common for researchers to submit papers without supporting data, and it is frequent that peer reviewers do not have the requisite mathematical or statistical skills needed to check the work (medical sciences excepted). In other words, the publication of the work of Chuine et al. was due to systemic problems in the scientific publication process.

The systemic nature of the problems indicates that there might be many other scientific papers that, like the paper of Chuine et al., were inappropriately published. Indeed, that is true and I could list numerous examples. The only thing really unusual about the paper of Chuine et al. is that the main problem with it is understandable for people without specialist scientific training. Actually, that is why I decided to publish about it. In many cases of incorrect research the authors will try to hide behind an obfuscating smokescreen of complexity and sophistry. That is not very feasible for Chuine et al. (though the authors did try).

Finally, it is worth noting that Chuine et al. had the data; so they must have known that their conclusions were unfounded. In other words, there is prima facie evidence of scientific fraud. What will happen to the researchers as a result of this? Probably nothing. That is another systemic problem with the scientific publication process.

Unfortunately, few enviro-beat reporters take the time to critically examine the avalanche of papers crossing their desk claiming this, that, or the other. Fact-checking rarely if ever occurs. The Globe and Mail, for instance, was absolutely breathless about Chuine’s findings. After all, what a topical hook: global warming will screw up your pinot noir!

The lesson here is that you can’t assume that anything in the scientific literature has ever been given even a cursory critical review prior to publication. Peer-review means nothing. Swallow this stuff at your own risk. 

When Patients Change, Do Providers Change Too?

Harvard’s David Cutler visited Cato yesterday to participate in a small group discussion about cost-effectiveness in medicine, and also in a panel on improving quality in Medicare. (You can watch the latter event here in a couple of days.) My colleague Arnold Kling blogs about issues discussed at both events. 

I am struck by one issue that emerged, which has to do with price-sensitivity, provider behavior, and health outcomes. Cutler argued that when patients are more price-sensitive (i.e., when they have to pay for more of the cost of their medical care), they tend to cut back both on care that would have done nothing for them, and on care that would have helped them. He postulates that if we were to move all Americans into health savings accounts (HSAs), thereby making patients more price-sensitive, we would see worse health outcomes than we see now. 

I am skeptical of that prediction. I think that if the move to HSAs were confined to a small, randomly selected subset of the population (call it “Rand II”), Cutler’s prediction would be more plausible — though by no means certain. There is precious little evidence that suggests — and it does no more than suggest — that for some patients, greater price-sensitivity leads to worse health outcomes. 

However, even if we assume that Rand II would show that greater price-sensitivity leads to worse health outcomes, it does not follow that we would get the same result were the entire population made more price-sensitive. The reason is that with a population-wide shift, the supply side of health care markets would respond to the enormous change on the demand side. Faced with patients who are less eager to consume medical care, providers would have to do a lot more to sell their services, including:

  • conducting research on the usefulness of their services,
  • improving the quality of their services,
  • lowering their prices, and
  • educating patients about the value of their services.

These responses should enable patients to make smarter decisions about what to consume and what to avoid. Instead of having patients cut back equally on beneficial and useless care, they would cut back on useless care more, having more help discerning between the two. Downward pressure on prices should make cutting back on beneficial care even less frequent.

MIT economist Amy Finkelstein demonstrates that the supply side of medical care does respond to demand-side changes. For 30 years, economists believed that the expansion of health insurance (which reduced price-sensitivity) had a relatively small impact on the growth of health spending. That belief was based on the effects of a demand-side study (Rand I), which was too small to induce or measure any supply-side responses to the change in price sensitivity. Using a data set that does capture and allow her to measure supply-side responses, Finkelstein estimates that the effect that the expansion of health insurance had on health spending is six times greater than the demand-side-only experiment Rand I suggests. 

Casual observation suggests that supply-side responses are helping price-sensitive patients make better choices right now. At the same time that HSAs and other insurance options are making millions of patients more price-sensitive, insurers and entrepreneurs are furnishing more of the price and quality information that patients need.

It would be foolish to claim that the supply-side response to price-sensitive consumers would be so great that patients would have perfect information and would never make mistakes. Yet most opponents of making patients more price-sensitive make the equally foolish assumption that there would be no supply-side response to the new incentives coming from the demand side. I say “most” because Cutler and others are not in this group. If I understood Cutler, he acknowledges that there will be such supply-side responses, and that we have no way of knowing whether or how much they would improve health outcomes.

True enough. But it’s something like 50 percent of the debate over HSAs and health outcomes. T’would be nice to have opponents of HSAs and the like acknowledge and engage it.

Don’t Tread on Me

Attorney General Alberto Gonzales does not like it when members of Congress poke their noses into the affairs of the executive branch. 

Consider today’s Washington Post report on this week’s release of the transcript from an April House Judiciary Committee hearing on such matters as domestic surveillance and treatment of potential terrorists. During the hearing, Gonzales repeatedly evaded lawmakers’ questions.

Here’s a snippet from the exchange between Gonzales and Rep. Jerrold Nadler (D-NY):

Nadler: Can you assure this Committee that the United States Government will not grab anybody at an airport or anyplace in U.S. territory, and send them to another country without some sort of due process?

Gonzales: Well, what I can tell you is that we’re going to follow the law in terms of what—

Nadler: Well, does the law permit us to send someone to another country without any due process, without a hearing before an administrative, an immigration judge or somebody? Just grab them off the street and put them on a plane, goodbye without — we’ve done that. Does the law permit us to do that? Do we claim that right?

Gonzales: I’m not going to confirm that we’ve done that.

Bush and Gonzales have this message for the Congress: Go back to investigating steroid use among athletes or something, but don’t tread on us!

Barack Is So Dreamy

The growing political infatuation with Sen. Barack Obama (D-IL) is fascinating, in part because it’s cropping up across the political spectrum.

The Dems’ weakness in the knees is understandable, given the appealing alternative Obama offers to the party’s otherwise underwhelming roster of standard-bearers. On the Right, David Brooks’ Oct. 19 NYT column “Run, Barack, Run” (subscr. required) titters with excitement over a possible Obama ‘08 presidential bid. And in our corner of the political universe, a few libertarians have confided that they are also smitten with Illinois’ junior senator.

All of these valentines are surprising, given that they’re directed at a senator who has been in Washington for less than two years, and who has no gubernatorial experience. But perhaps it’s the unknown that’s appealing. Like a Rorschach test, we can look at Obama’s not-yet-established political profile and see the outlines of our own beliefs — whatever those beliefs may be.

His surface appeal is understandable; the senator comes across in interviews as thoughtful, bright, caring and articulate. Just as impressively, he doesn’t immediately start mouthing the usual ideological foolishness that has become standard in the puppet theater of D.C. politics.

However, I’m not sure Brooks is correct when he writes that Obama “has a compulsive tendency to see both sides of any issue” and that he is wonderfully free of narrow-mindedness. Consider the senator’s April 2005 speech to the National Press Club, in which he claims Social Security reformers and HSA proponents are motivated by a belief in Social Darwinism:

There’s something bracing about the Social Darwinist idea, the idea that there isn’t a problem that the unfettered free market can’t solve. It requires no sacrifice on the part of those of us who have won life’s lottery — and doesn’t consider who our parents were, or the education we received, or the right breaks that came at the right time.

But I couldn’t disagree more. If we privatize Social Security, what will we tell retirees whose investments in the stock market went badly? We’re sorry? Keep working? You’re on your own?

[…]

And yet, this is the direction they’re trying to take America on almost every issue. Instead of trying to contain the skyrocketing cost of health care and expand access to the uninsured, the idea behind the President’s Health Savings Accounts are to leave the system alone and give you a few extra bucks to go find a plan you can afford on your own. You deal with double digit inflation by going to the doctor less. Instead of strengthening a pension system that provides defined benefits to employees who’ve worked a lifetime, we’ll give you a tax break and hope that you invest well and save well in your own little account.

Of course, the supporters of private accounts and HSAs are not Social Darwinists who want to throw the sick and feeble to the wolves. The various Social Security reform proposals that have been floated include safety nets (not to mention choice), and HSA plans require the purchase of catastrophic health insurance. A thoughtful criticism of those policies would question their workability and the adequacy of the safety nets — yet, that is not what Obama offered in his speech. It thus seems that either (1) the senator is not really thoughtful about Social Security and health care policy, or (2) he is not the open-minded non-ideologue that Brooks claims.

But perhaps this is being too hard on Senator Obama. His Press Club remarks and other such comments may be instances of him playing the political games and mouthing the ideological mantras that are required of politicians. Perhaps the man behind the Politician Obama curtain is every bit as dreamy as his admirers claim.

And indeed, Democrats interested in the Oval Office have sometimes proved to be great benefactors to free markets and limited government. Would Ted Kennedy have been such a champion of transportation regulation reform in 1977 if he hadn’t wanted to take a shot at the White House in 1980? Would Bill Bradley have been such a strong proponent of the 1986 tax reform if he weren’t angling for a 1988 presidential bid? Would Bill Clinton have signed welfare reform in 1996 if he weren’t worried about winning a second term later that year?

Perhaps a Presidential Candidate Obama will soon be whispering sweet nothings into our ears in the form of Social Security or Medicare reform. Or perhaps a President Obama would nurture a more thoughtful and humble federal government and a civil society that re-embraces the fundamental American ideal of individual liberty.

Or perhaps I’m just lost in the magic of his eyes…