Archives: 01/2007

“Working Through a Lot of Psychological Issues”

Byron York has an illuminating piece on President Bush’s decision to escalate the war in Iraq. York says that in a meeting with conservative columnists in November last year, Bush

described the period in early 2006, after the Iraqi elections but before the formation of the government, as the White House waited — and waited and waited — for the Iraqis to get their act together. “It was just an agonizing period,” Bush said. But the administration had no choice but to be patient with Iraqis who weren’t used to trying to create a multi-party government. “Part of this is a brand new experience for these guys,” the president explained. “We are working through a lot of serious issues, kind of psychological issues with these folks, as well as what it means to actually build consensus.”

It’s Not Just About Nifong, Part I

Last month, District Attorney Michael Nifong announced that he will not be bringing rape charges against the Duke University lacrosse players. (Other criminal charges are still pending). Nifong himself is under fire for his handling of the case. Conservative scholar Thomas Sowell says Nifong should be removed from office and disbarred. Fox’s Bill O’Reilly goes further and says Nifong should be jailed. (For details on this case, start here).

Nifong’s actions should be scrutinized and he should be held accountable for any wrongs he has committed. However, since this criminal case is receiving national attention, it is important that this matter be placed in its proper context. It would be a mistake for any observer to sigh and say, “It’s so unfortunate that these young men were unlucky enough to be (a) falsely accused and (b) find themselves in the jurisdiction of a ‘rogue’ prosecutor.” That’s only part of the picture. The case is not just about Nifong. The laws and policies that are in place too often allow miscarriages of justice to take place.

Today, I will examine the law concerning speedy trials in North Carolina.

The criminal charges against the Duke students are based upon allegations arising from a party on the night of March 13-14, 2006. It will be a year before the criminal trial gets underway–so laypeople may be curious to know how the speedy trial protection comes into play. Unfortunately, this constitutional “guarantee” has lost its vitality.

Four years ago, the Supreme Court of North Carolina decided a case called State of North Carolina v. Henry Bernard Spivey. It is quite a story, which I will summarize below. (For those interested in reading the full legal opinion, go here. The legal citation is: 579 S.E.2d 251 (2003).)

The case began in October of 1994 when police officers arrested Henry Bernard Spivey, locked him up, and charged him with a crime. After that, no action was taken.

Weeks and weeks go by–no action.

Then months and months pass–no action.

After a full year goes by, Spivey, who has no formal education, writes out his own rudimentary legal motion to the court which he titles “Requesting a Prompt and Speedy Trial.” In this motion, Spivey explains that nothing is happening on his case. Prosecutors are not doing anything. His own court-appointed lawyers are not doing anything. Spivey basically says the Constitution says that he is supposed to “enjoy” a right to a speedy trial … I have been locked up for a year and I would like my trial.

Spivey’s motion is totally ignored.

Two more years pass! Then, Spivey’s court-appointed attorneys wake up and make a formal legal motion to dismiss the case because his right to a speedy trial has been violated.

No one is in any hurry to respond to this legal motion. Eight more months roll by until the court schedules a hearing on the speedy trial motion.

At this hearing, the judge listens to the arguments from the defense and the prosecution. The judge concludes that he needs further briefing on the legal issues and documentation from the court records to verify Spivey’s claims.

At this juncture, one would think that the court would reconvene in a week, check the documentation, and resolve the issue before the court. It did not happen. Another entire year goes by until the case is reheard by a different judge. At this hearing, prosecutors admit that the prisoner, Spivey, has now been in jail for four and a half years without a trial. They admit that, but they do not concede that the prisoner has been denied a speedy trial.

The attorneys representing the State of North Carolina say Spivey has not proven any “wilful misconduct” by the government. And besides, the courthouse is clogged with cases and there are staffing shortages. Under these circumstances, delays are inevitable. Thus, there is no speedy trial violation.

The trial judge agrees with the state’s argument. Spivey’s constitutional argument is rejected.

Spivey’s attorneys appeal, but the trial court is affirmed. Spivey’s attorneys then take the case to the Supreme Court of North Carolina, but that court also affirms the ruling of the trial court.

Two justices dissent from the ruling. The dissenters point out that the idea behind the speedy trial guarantee goes all the way back to Magna Carta. They said the prosecutors in this case either did not recognize the problem that they were creating for themselves–or they ignored it. Either way, a crowded court docket cannot justify a delay of four years. The justices said they doubted whether a single citizen in the state would find the delay acceptable if it concerned a spouse–or a son or daughter who was waiting for their day in court. The dissenters also wondered about the ramifications of the ruling. What if the backlog of cases continues–or gets even worse? In the year 2020, will seven year delays become an accepted norm? The majority of the North Carolina Supreme Court did not respond to those questions.

State of North Carolina v. Spivey established a legal precedent in North Carolina for resolving speedy trial disputes.

That was 2003. Now speed up to the Duke University case. One of the accused students, confident of his innocence, requested a speedy trial. Prosecutor Nifong responds by saying that he does not want to have a quick trial. He would rather wait a year and try all of the students together. The judge must decide this dispute. The judge checks the precedents and denies the motion for a speedy trial. And his decision is legal and constitutional because of the Spivey precedent.

Practical result: Prosecutors in North Carolina have the power to drag a person’s name through the mud for a long time before they have to prove their allegations in court.

False Fordham Hopes

For a moment yesterday, I thought that the Thomas B. Fordham Institute, arguably the nation’s foremost neo-con education think tank, had gotten the message that the federal government can’t create education policies that work for parents and children rather than politicians and bureaucrats. Sure, I hadn’t had much success when I tried to make this point to Fordham vice president Mike Petrilli for a solid week last April, but maybe something had changed.

Why’d I think that? Yesterday, Petrilli had a surprising op-ed on National Review Online denouncing the No Child Left Behind Act, which set off my fleeting hopes. Indeed, Petrilli suggested that getting the feds out of education completely might actually be a better option than sticking with NCLB:

Into the “Don’t Do it At All” bucket goes everything else. No more federal mandates on teacher quality. No more prescriptive “cascade of sanctions” for failing schools. No more federal guarantee of school choice for children not being well-served. The states would worry about how to define and achieve greater teacher quality (or, better, teacher effectiveness). The states would decide when and how to intervene in failing schools. The states would develop new capacity for school choice. These are all important, powerful reforms, but they have proven beyond Uncle Sam’s capacity to make happen.

Could it be that Petrilli had come to realize that federal policies are doomed because the bureaucrats and policymakers that Washington promises to hold “accountable” have all the lobbying power, while parents have little to none? Is it possible that he went even further than that, realizing that the key to innovation and progress in education is the same as the key to innovation and progress in all other endeavors: Letting individuals freely pursue their own interests – in the case of education, through universal school choice – rather than government pulling their strings through rules, regulations, and standards?

Alas, no. The very day I read Petrilli’s NRO piece, I attended a New America Foundation event on Senator Chris Dodd’s (D-CT) new proposal to create national science and math standards. There I saw the Thomas B. Fordham Institute listed right above the National Education Association on a roster of organizations endorsing Dodd’s idea, and Petrilli himself spoke in favor of the proposal.

But I really didn’t need to go to the panel discussion to see that my hopes were unfounded. Petrilli’s piece itself reveals that he and Fordham still haven’t gotten the message. For one thing, it fails to explain that the only way to make schools really accountable is to enable all parents to remove their kids – and their money – from schools that don’t work and put them into schools that do. Moreover, at the same time Petrilli acknowledges that NCLB has been a failure – just like all federal involvement before it – he states that among many “powerful” ideals underlying the law that he still supports is the notion “that improving education is a national imperative, and that the federal government can and should play a constructive role.”

What a disappointment.

Question Authority

ABC News conducted a mock test to see if ordinary people would be willing to inflict pain on other people.  Researchers found that if an “authority figure” tells them that the infliction of pain is “necessary,” the folks will usually go along and obey the commands. 


In 1961, social psychologist Stanley Milgram asked those same questions. That was the year Nazi Adolf Eichmann, on trial for his war crimes, denied responsibility for his actions by saying he was simply doing what his superiors told him to do.

Contemplating this rationalization, Milgram came up with a famous and controversial experiment to examine what happens when ordinary people are faced with morally questionable orders. What he learned shocked not only him but the entire world.

In the experiment, conducted at Yale University over a period of months in 1961, an authority figure — “the experimenter” — dressed in a white lab coat and instructed participants to administer what they believed were increasingly painful electric shocks to another person.

Although no one was actually receiving shocks, the participants heard a man screaming in pain and protest, eventually pleading to be released from the experiment. When the subjects questioned the experimenter about what was happening, they were told they must continue.

And continue they did: Two-thirds of Milgram’s participants delivered shocks as they heard cries of pain, signs of heart trouble, and then finally — and most frightening — nothing at all.

The response to the experiment was enormous, and in 1975, strict guidelines about regarding psychological experiments on humans shelved any further potential replications. Since then, scientists have been stymied in efforts to replicate Milgram’s study.


“Primetime” wanted to know if ordinary people today would still follow orders, even if they believed their actions were causing someone else pain. Would as many follow the seemingly dangerous and painful orders as in the original experiment?

In ABC News’ version of the Milgram experiment, we tested 18 men, and found that 65 percent of them agreed to administer increasingly painful electric shocks when ordered by an authority figure.

Read the whole thing.  A very disturbing “cultural indicator.”


Silver Lining in the National Science Standard Cloud

Andrew Coulson does a wonderful job illuminating just how misguided and doomed national curriculum standards are … but there is a silver lining!  With national science standards, we can all look forward to a vicious national debate on Intelligent Design versus Evolutionary Theory!

Just think of the fun: instead of those boring discussions of national security, we’ll have presidential debates and party litmus tests on Darwin … and if we’re lucky, on judicial nominees’ position on Darwin!  Perhaps each party can include an entire curriculum in their platform.  A national discussion about precisely what every single child should learn in their first 12 years of schooling is exactly what we need to bring a bit of heat and life back into this snooze-fest “Era of Good Feelings,” Part II that we’re living in.

Ahnold’s Very, Very Bad Movie

Arnold Kling is far too kind in his description of Arnold Schwarzenegger’s new health care proposal.  While I suppose it is possible for the plan to have been worse (it could have endorsed Massachusetts-style managed competition, for instance), the plan gets almost everything wrong, from its tax on employment to its individual mandate, from increased welfare subsidies to increased insurance regulation.  The proposal will end up hurting workers, employers, health care providers, and health care consumers.  Consider just some of what the Governator is calling for:

  • More spending, more taxes.  According to the nonpartisan taxpayers foundation, California’s state/local tax burden is the 15th highest in the nation, and its business climate ranks 45th out of the 50 states.  Californians already pay $4,451 per-capita in state and local taxes.  Governor Schwarzenegger’s proposal is expected to cost at least $12 billion in additional state spending.  He would finance it through a variety of new taxes, including taxes on health care providers and businesses.
  •  An Employment Tax.  The governor came to office promising to improve the state’s struggling business climate.  Now he proposes a mandate that every business with 10 or more employees would be required to provide its workers with health insurance or pay a four percent payroll tax.  Such a mandate simply increases the cost of hiring workers.  Employers will inevitably hire fewer workers. (Imagine a nine-employee company trying to decide whether to hire that tenth worker).  Some may even be forced to lay off current employees and others will offset their costs by reducing wages or wage increases.  California’s business taxes are already the highest in the West.  Governor Schwarzenegger’s plan will only make this worse.
  • More Welfare.  Governor Schwarzenegger would offer subsidies for a family of four with incomes as high as $60,000 per year, extending dependence on government well into the middle class.   Those subsidies should be understood for what they are—welfare, with all the drawbacks and unintended consequences that go with welfare programs.  Compounding matters, Governor Schwarzenegger would extend these subsidies to illegal immigrants.  Immigrants traditionally come to this country to work, not for welfare.  Governor Schwarzenegger would be sending them a very different and very bad message.
  • An Individual Mandate.    Not only would an individual mandate represent an extraordinary infringement on individual liberty—every Californian would be required to purchase a specific government-defined product, simply because they live in California–it opens the door to widespread regulation of the health care industry and political interference in personal health care decisions.  The governor claims that a mandate is necessary to reduce the cost of uncompensated care from uninsured individuals seeking care from hospital emergency rooms.   But uncompensated care represents only 3-5 percent of health care spending, a problem but hardly a crisis large enough to justify such a radical response.
  • More regulation.  The biggest reason why people don’t buy health insurance today is that it is too expensive.  One reason for this is California blizzard of insurance mandates covering everything from dental anesthesia to in vitro fertilization.  Those mandates and other insurance regulations raise the cost of insurance, particularly for the young and healthy who often choose to go without insurance rather than pay excessive premiums.  But rather than take on the special interests by reducing mandates and cutting regulation, Governor Schwarzenegger proposes new regulations, including a requirement that insurers cover all applicants, regardless of whether they are in perfect health or on their deathbed.  These new regulations will only drive up the cost of insurance, requiring either more government subsidies or imposing a greater financial burden on business and individuals.

Governor Schwarzenegger seems to be under the impression that health care in California suffers from too little government regulation, control, and subsidies.  He’s just plain wrong.

The California Health Plan

A few things I find interesting the proposed California health plan.

1. Although it mandates health insurance, it envisions high-deductible health insurance policies as satisfying the mandate. Apparently, the thinking is in terms of a deductible of $5000 for an individual, as opposed to Massachusetts, where they think that “high-deductible” is about $1000.

2. It does not create an equivalent of the Massachusetts “connector.” The more one looks at it (see this description, for example), the “connector” is micro-managing individual and small-group health insurance in Massachusetts, leaving the private sector essentially no room to maneuver. The “connector” really ought to be re-named for what it is, a central planner.

3. Funding the plan with a tax on health care providers is interesting. In my new Cato Unbound essay, I write about today’s overly generous health insurance coverage:

For health care providers, insulation is a bonanza. Because consumers are not spending their own money, they accept doctors’ recommendations for services without questioning them and without concern for cost. Faced with an insured patient, a health care provider is like a restaurant catering to convention-goers with unlimited expense accounts. The customer will gladly take the most high-end recommendation and not worry about the price.

The Governator’s plan is to pay for a subsidy to health care consumers by putting a tax on health care producers. Thus, the push for health insurance becomes something other than a pure windfall for providers.

4. The plan explicitly envisions health insurance for illegal immigrants. If you think of that as a humanitarian issue, you may like it. But if you think about it in terms of the incentive it provides to illegally immigrate, it sounds problematic. Also, I am curious as to how the state is supposed to administer a program for illegal immigrants with one hand and enforce immigration laws with the other.

Of course, not all details have emerged, and the legislature has yet to put its imprint on any plan. So it may be premature to comment at any length.