March 2012

March 22, 2012 10:45AM

In Defense of ‘Stand Your Ground’ Laws

Amid the ongoing furor over “Stand Your Ground” laws, adopted in Florida and about half the other states, the New York Times invited me to take part in a “Room for Debate” round‐​table on the subject. An excerpt from my contribution:

Under any criminal law, injustice can result if cops get the facts wrong. The Sanford, Fla., police, accused of buying a dubious self‐​defense tale after the Trayvon Martin shooting, will now come under searching scrutiny for that decision. Sanford’s mayor says his town is eager to stand corrected by the evidence as a fuller story emerges.

So who’s left to disagree? Not the authors of Florida’s Stand Your Ground law, who told The Miami Herald that the law they sponsored applies only to cases of genuine self defense and won’t protect neighborhood‐​watcher George Zimmerman if critics of the Martin shooting are right about what he did that night. …

I go on to point out ways in which a robust right of self‐​defense has historically proved to protect the interests of victims of domestic violence and racial minorities. (On the latter, see, for example, cases from Ossian Sweet’s in the 1920s to the present day; more here and here, and from my Cato colleague Jonathan Blanks here.)

What really set off the NYT commenters was my observation that “Despite doomful predictions from gun foes, concealed carry (now the dominant rule) and liberalized self‐​defense laws (adopted by half the states) haven’t touched off the great warned‐​of surge of gun violence.” Here are some particulars. Between 2004 (the year before the law’s enactment) and 2010 violent crime in Florida dropped sharply, and homicides per capita also dropped, though not sharply. News stories often mention that (quoting ABC): “Since the law was enacted seven years ago, justified homicides in Florida have jumped threefold, according to the Florida Department of Law Enforcement.” But a tripling in the assertion of this defense (from a low base) tells us little in itself since the whole idea of the law was to make the defense more available. In particular it does not signify that some sort of killing began to happen three times as often, even if some seem determined to interpret it that way.

I agree that the details of Florida’s or similar laws are not to be assumed optimal and can properly be revisited to make sure they work well. But I note with alarm the number of seemingly liberal‐​minded persons, at the Times and elsewhere, who seem perfectly comfortable with calls for gutting self‐​protection as a criminal defense at the behest of prosecutors who would find their jobs easier that way. Have they now decided that the goal of punishing more guilty persons is worth relaxing our vigilance about not mistakenly punishing the innocent among them?

March 21, 2012 3:32PM

Plea Bargaining in the Supreme Court

The Supreme Court issued two rulings today related to plea bargaining. What if a defense attorney fails to pass along a prosecutor’s offer to his client? And what if a defense attorney gives a client really bad advice so an offer is rejected and, after a trial, the client gets a lengthy prison sentence? The Supreme Court grappled with what should be the appropriate remedy, if any, in such circumstances.

Lurking in the background of these cases is the practice of plea bargaining itself. Most Americans mistakenly think that we have a system of jury trials because they tend to hear about such cases on the news. Well, yes, some people have jury trials and some people win the lottery–most do not. According to the figures cited by the Court, “ninety‐​seven percent of federal convictions and ninety‐​four percent of state convictions are the result of guilty pleas.” Of the nine justices on the Court, seven did not perceive any problem with this situation.

Justices Scalia and Thomas couldn’t ignore the elephant in the room. Unlike the majority, they said plea bargaining is a “necessary evil” and that it has been “a somewhat embarrassing adjunct to our criminal justice system.” Here’s an excerpt from the Scalia dissent in Lafler v. Cooper (joined by Thomas):

In the United States, we have plea bargaining a‐​plenty, but until today it has been regarded as a necessary evil. It presents grave risks of prosecutorial overcharging that effectively compels an innocent defendant to avoid massive risk by pleading guilty to a lesser offense; and for guilty defendants it often—perhaps usually—results in a sentence well below what the law prescribes for the actual crime. But even so, we accept plea bargaining because many believe that without it our long and expensive process of criminal trial could not sustain the burden imposed on it, and our system of criminal justice would grind to a halt.

Well, that is the standard explanation offered, but as I noted in this article for Reason magazine, please observe that the main justification for the way in which the overwhelming number of cases are handled is a pragmatic argument–i.e. there’s just no other way of handling so many cases! The argument is not that plea bargaining is a terrific way to administer justice. And what about that “risk” of “compelling” persons to plead guilty–does that not threaten, you know, the constitutional right to trial by jury? Without much elaboration, Justice Scalia just says we “accept” it for pragmatic reasons. Oh. Today is just not a day for originalism I guess.

For additional background, go here.

March 21, 2012 12:33PM

The Country’s Biggest Spy Center

Under insufficiently sharp questioning, the head of the National Security Agency, Keith Alexander, has denied the substance of a Wired report on the agency’s massive new computer facility and the capabilities the government has to monitor our communications—even heavily encrypted communications.

If you want a sense of how Congress, still panicked by 9/11, has abdicated its responsibilities and permitted the construction of a “turnkey totalitarian state,” read the whole thing.

March 21, 2012 11:50AM

Same‐​Sex Marriage Won’t Harm Maryland Families

A letter writer in my Maryland hometown newspaper, the Frederick News‐​Post, advanced an unusual claim the other day: “Statistically, natural marriage is weakest and illegitimacy most prevalent wherever same‐​sex marriage is legal.” I wrote a letter to the editor, published today, pointing out that

the reverse is true. Per cdc​.gov, the states with the nation’s lowest divorce rates are Massachusetts (recognized same‐​sex marriage in 2004) and Iowa (in 2009).

Most states with same‐​sex marriage likewise have lower, not higher, rates of out‐​of‐​wedlock childbearing. States and countries in this category have some of the highest life expectancies, education levels and prosperity in the world. After Maryland has joined them, we will come to wonder what the fuss was about in permitting our law to accommodate the realities of modern life.…

How did the original letter writer come to imagine the reverse? From her letter, she may have been relying on the work of Religious Right polemicist Frank Turek who in turn seems to have relied on the 2004 writing of Ethics and Public Policy Center fellow Stanley Kurtz. When SSM was brand new and first making legal headway in places like northern Europe, Kurtz advanced an exceedingly strained and much‐​criticized argument trying to blame it for Scandinavian family trends generally. Now, eight years later, there is vastly more data available from countries around the world (Canada, Spain, etc.) and from U.S. states confirming that SSM neither causes nor correlates with divorce or out‐​of‐​wedlock birth rates above Western norms — results that would prove no surprise to libertarian columnist Steve Chapman, who has pointed out the extent to which predictions of harm to family structure from gay marriage seem allergic to empiricism.

March 21, 2012 11:20AM

Supreme Court Invalidates Patent on Human Thought

On Tuesday, the Supreme Court invalidated a patent that effectively claimed ownership of a fact about the human body. A joint brief by the Cato Institute, Competitive Enterprise Institute, and the Reason Foundation had urged the high court to reject the patent, arguing that it posed a threat to freedom of thought and innovation.

The patent focused on a class of drugs called thiopurines, which are used to treat autoimmune diseases. When a patient takes a thiopurine drug, it is processed by the body into chemicals known as “metabolites.” Doctors measure metabolite levels in order to properly adjust the dosage of thiopurine drugs.

A company called Prometheus Labs filed a patent on a thiopurine drug testing process. The patent didn’t cover the drugs themselves or any particular method for measuring metabolite levels—these had already been invented years ago by other companies. Rather, Prometheus patented the idea that particular metabolite levels “indicate a need” to raise or lower the drug dosage. In effect, Prometheus was claiming ownership of a basic fact about the human body.

When the Mayo Clinic created its own thiopurine testing product, Prometheus sued. It argued that when a doctor used Mayo’s test, she could infringe Prometheus’s patent by thinking about the scientific correlation is disclosed. And that, in turn, made Mayo an accessory to the doctor’s infringing thoughts.

But Mayo argued that the patent was invalid because it claimed a law of nature, something the Supreme Court has said repeatedly isn’t eligible for patent protection. Mayo’s argument was supported not only by the Cato Institute, but also by the American Civil Liberties Union, the American Medical Association, the American Association of Retired Persons, and many other groups. They warned that it was dangerous to grant patents that can be infringed by mere thoughts, and that such patents would harm the quality of medical care by restricting doctors’ access to information.

In an unanimous decision by Justice Stephen Breyer, the Supreme Court reiterated its traditional principle that you can’t patent laws of nature, and held that the concrete steps of the patented process—administering the drug and measuring metabolite levels—were too conventional to transform an unpatentable idea into a patentable process.

The decision—and the fact that it was unanimous—is important because it reaffirms the principle that abstract ideas and laws of nature are not eligible for patent protection. But we would have liked to see Justice Breyer go further. After a series of disastrous decisions by lower courts in the 1990s, the Patent Office began granting a large number of patents, such as those for “business methods” and software, that seemed inconsistent with the Supreme Court’s ban on patenting laws of nature and abstract ideas. Those same decisions gave rise to the medical diagnostic patents that were at issue in Tuesday’s decision. But the Supreme Court has yet to address the broader question of whether the changes of the 1990s were consistent with the Supreme Court’s precedents. It ducked the question in a 2010 decision about business method patents, and Justice Breyer seems to have ducked it again in this decision. The result has been a great deal of uncertainty about what can be patented, and an explosion of patent litigation in the software industry. Mayo v. Prometheus was a step in the right direction, but it was also a missed opportunity to rule on these broader questions.

March 20, 2012 5:10PM

Paul Ryan’s Budget: It’s Still Big Government

Chris Edwards provided an ample overview of Rep. Paul Ryan’s (R-WI) budget proposal, so I won’t rehash the numbers. Instead, I’ll just add a few comments.

Democrats and the left will squeal that Paul Ryan’s budget proposal is a massive threat to the poor, the sick, the elderly, etc, etc. It’s baloney, but a part of me thinks that he might deserve it. Why? Because the excessive rhetoric employed by the left to criticize lower spending levels for domestic welfare programs isn’t much different than the excessive rhetoric Ryan uses to argue against sequestration‐​induced reductions in military spending. For instance, Ryan speaks of the “devastation to America’s national security” that sequestration would allegedly cause. (See Christopher Preble’s The Pentagon Budget: Myth vs. Reality).

Now I’m sure that I’ll receive emails admonishing me for failing to recognize that the Constitution explicitly gives the federal government the responsibility to defend the nation while the constitutionality of domestic welfare programs isn’t quite so clear. Okay, but what are Ryan’s views on the constitutionality of domestic welfare programs?

At the outset of Ryan’s introduction to his plan, he quotes James Madison and says that the Founders designed a “Constitution of enumerated powers, giving the federal government broad authority over only those matters that must have a single national response, while sharply restricting its authority to intrude on those spheres of activity better left to the states and the people.” That’s nice, but then he proceeds to make statements like this:

But when government mismanagement and political cowardice turn this element of the social contract into an empty promise, seniors are threatened with denied access to care and the next generation is threatened with a debt that destroys its hard earned prosperity. Both consequences would violate President Lyndon B. Johnson’s pledge upon signing the Medicare law: ‘No longer will older Americans be denied the healing miracle of modern medicine…No longer will young families see their own incomes, and their own hopes, eaten away simply because they are carrying out their deep moral obligations to their parents, and to their uncles, and their aunts.’ To fulfill Johnson’s pledge in the 21st century, America’s generations‐​old health and retirement security programs must be saved and strengthened.

Social contract? Well, so much for those enumerated limits on federal power.

Ryan’s “Statement of Constitutional and Legal Authority” only cites Congress’s general power to tax and spend. Based on the contents of his proposal, which would do little to rein in the federal government’s scope, one could conclude that Ryan’s view of federal power is almost as expansive as that of his Democratic colleagues. Yes, Ryan would reduce the size of government by reducing federal spending as a percentage of GDP. But as I often point out, promises to reduce spending in the future don’t mean a lot when you have a federal government that has the ability to spend money on pretty much any activity that it wants. And under Ryan’s plan, the federal government would be able to continue spending money on pretty much any activity that it wants.

March 20, 2012 4:26PM

Power Yes, Trigger No

There is little question that parents have too little power in elementary and secondary education. In fact, they have almost no power: they can vote, but are otherwise usually relegated to being class moms, or holding bake sales, or some other fluffy “involvement” that gives them no real say over how their children are educated. Adding insult to injury, that doesn’t often stop professional educators from blaming parents when students don’t do so well.

To remedy the problem, the trendy thing seems to be “parent trigger” laws that would, generally speaking, allow a majority of parents at a school declare that they want to fire the staff, or bring in a private management company, or some other transformation. It’s been the spark behind some especially heated conflicts in California, as unions and parents of different stripes have been doing battle with each other. It is also the subject of a New York TimesRoom for Debate” exchange today.

While I sympathize—obviously—with those who advocate giving parents more power, I cannot help but conclude that the parent trigger is a very poor way to do this. For one thing, it is inherently divisive: what about the 49 percent, or 30 percent, or whatever percent of parents who don’t want the changes the majority demands? They’ve got no choice but to fight it out with their neighbors. It is also inefficient: individual children need all sorts of options to best meet their unique needs and abilities, but the trigger would just exchange one monolithic school model for another.

The trigger, quite simply, is no substitute for real educational freedom: giving parents control of education funds, giving educators freedom to establish myriad options, and letting freedom, competition and specialization rein.

There is, however, one gratifying thing about the parent trigger: it has made historian Diane Ravitch—who constantly decries the destruction of “democracy” were we to have educational freedom—express outrage about “51 percent of people using a public service hav[ing] the power to privatize it.”

Um, isn’t majority rule what democracy is all about? Or do government schooling defenders really just invoke the term because it sounds so nice and is such a potent rhetorical club?

The answer, it seems, is getting more clear.