Quotulatiousness

December 16, 2014

America’s “terribly warped justice system”

Filed under: Law, Liberty, USA — Tags: , , , , — Nicholas @ 00:03

Conrad Black talks (partly from first-hand experience) of how badly served the United States is by its justice system:

… everyone in the United States, from the president and the wealthiest and most admired citizens down, is, in some measure, a victim of this now terribly warped justice system. No one is safe and everyone pays for it. The legal cartel is riveted on the back of the country like a horse-leech and extracts $1.8 trillion a year from the American economy as the legislators and regulators add 4,000 new measures with weighty sanctions each year, for the delectation of their confrères at the bar. At any time, 1 percent of the entire adult population is incarcerated, at a cost of about $150 billion annually and usually in unconstitutionally inhuman conditions; another 6 or so percent of all adults, male and female, are awaiting conviction (99.5 percent of those tried are convicted, an absurdly implausible number rivaled only by North Korea) or are under supervised release by often pettifogging probation officers at further great cost to the country. There are 48 million convicted felons in the United States, and even if decades-old unstigmatizing offenses such as failing a breathalyzer or being disorderly at a fraternity party are omitted, this means that approximately 15 percent of American adult males are designated felons. This is an absurd and barbarous number achieved by equal-opportunity multi-ethnic injustice, albeit unevenly applied. It presents African Americans a chance to form an invincible coalition in whose victory they would be the principal winners.

Though evidence of police and prosecution abuse pours in through the media every week, the majority of Americans, personally unaffected by the failings of the system, complacently believes that they live in a society of laws envied by the world. Neither supposition is correct. The United States has six to twelve times as many incarcerated people per capita as other prosperous democracies: Australia, Canada, France, Germany, Japan, and the United Kingdom. This appalling state of affairs has developed gradually over the last 40 years, as the percentage of prosecutions resolved by (very often) abusive applications of the plea-bargain system without a trial has risen from about 80 (an unheard of number in other democratic countries) to 97. The percentage of incarcerated people among the population has multiplied by five in that time, so the U.S. today has 5 percent of the world’s people, but 25 percent of its incarcerated people (and 50 percent of its lawyers – counting only those countries in which a serious professional entry course is required to practice that occupation).

The Supreme Court has sat like a shelf of suet puddings while the criminal-justice system has become a conveyor belt to the country’s bloated and corrupt prison system, and lawyers have become an immense industry, hiding its avarice behind a fog of insipid pieties about the rule of law (which, as the phrase was meant by the authors of the Bill of Rights, can scarcely be said to exist in the U.S.). New York federal judge Jed S. Rakoff wrote in the New York Review of Books on November 20 that the traditional American notion of the day in court is “a mirage” because of the corruption of the plea-bargain system, in which inculpatory evidence is extorted from witnesses in exchange for immunity from prosecution, including for perjury. Every week there is some new exposé of horror stories of prosecutorial abuse, yet prosecutors enjoy an absolute immunity, even when it is revealed that they have committed crimes of obstruction of justice, as in the infamous Connick v. Thompson decision of 2011: An innocent man spent 14 years on death row because prosecutors willfully withheld DNA evidence they knew would, and ultimately did, acquit him; the U.S. Supreme Court narrowly overruled the damage award to the wrongfully convicted Mr. Thompson on a spurious technicality.

December 12, 2014

Supreme Court swings and misses on cellphone privacy ruling

Filed under: Cancon, Law, Liberty — Tags: , , , , — Nicholas @ 07:00

Michael Geist on the most recent Supreme Court of Canada ruling on the ability of the police to conduct warrantless searches of cellphones taken during an arrest:

The Supreme Court of Canada issued its decision in R. v. Fearon today, a case involving the legality of a warrantless cellphone search by police during an arrest. Given the court’s strong endorsement of privacy in recent cases such as Spencer, Vu, and Telus, this seemed like a slam dunk. Moreover, the U.S. Supreme Court’s June 2014 decision in Riley, which addressed similar issues and ruled that a warrant is needed to search a phone, further suggested that the court would continue its streak of pro-privacy decisions.

To the surprise of many, a divided court upheld the ability of police to search cellphones without a warrant incident to an arrest. The majority established some conditions, but ultimately ruled that it could navigate the privacy balance by establishing some safeguards with the practice. A strongly worded dissent disagreed, noting the privacy implications of access to cellphones and the need for judicial pre-authorization as the best method of addressing the privacy implications.

The majority, written by Justice Cromwell (joined by McLachlin, Moldaver, and Wagner), explicitly recognizes that cellphones are the functional equivalent of computers and that a search may constitute a significant intrusion of privacy. Yet the majority cautions that not every search is a significant intrusion. It ultimately concludes that there is the potential for a cellphone search to be intrusive, it does not believe that that will be the case in every instance.

Given that conclusion, it is prepared to permit cellphone searches that are incident to arrest provided that the law is modified with some additional protections against invasion of privacy. It proceeds to effectively write the law by creating four conditions: a lawful arrest, the search is incidental to the arrest with a valid law enforcement purpose, the search is tailored or limited to the purpose (i.e., limited to recent information), and police take detailed notes on what they have examined and how the phone was searched.

December 7, 2014

A Supreme Court decision that actually improved privacy rights for Canadians

Filed under: Cancon, Law, Liberty, Technology — Tags: , , , — Nicholas @ 12:08

The courts have far too often rolled over for any kind of police intrusions into the private lives of Canadians, but a decision from earlier this year has actually helped deter the RCMP from pursuing trivial or tangential inquiries into their online activity:

A funny thing happens when courts start requiring more information from law enforcement: law enforcers suddenly seem less interested in zealously enforcing the law.

Back in June of this year, Canada’s Supreme Court delivered its decision in R. v. Spencer, which brought law enforcement’s warrantless access of ISP subscriber info to an end.

    In a unanimous decision written by (Harper appointee) Justice Thomas Cromwell, the court issued a strong endorsement of Internet privacy, emphasizing the privacy importance of subscriber information, the right to anonymity, and the need for police to obtain a warrant for subscriber information except in exigent circumstances or under a reasonable law.

The effects of this ruling are beginning to be felt. Michael Geist points to a Winnipeg Free Press article that details the halcyon days of the Royal Canadian Mounted Police’s warrantless access.

    Prior to the court decision, the RCMP and border agency estimate, it took about five minutes to complete the less than one page of documentation needed to ask for subscriber information, and the company usually turned it over immediately or within one day.

Five minutes! Amazing. And disturbing. A 5-minute process indicates no one involved made even the slightest effort to prevent abuse of the process. The court’s decision has dialed back that pace considerably. The RCMP is now complaining that it takes “10 hours” to fill out the 10-20 pages required to obtain subscriber info. It’s also unhappy with the turnaround time, which went from nearly immediate to “up to 30 days.”

In response, the RCMP has done what other law enforcement agencies have done when encountering a bit of friction: given up.

    “Evidence is limited at this early stage, but some cases have already been abandoned by the RCMP as a result of not having enough information to get a production order to obtain (basic subscriber information),” the memo says.

July 14, 2014

When unions took over the public sector

Filed under: Bureaucracy, Business, Economics, Government, USA — Tags: , , , , — Nicholas @ 09:09

Dmitri Melhorn says the union movement is missing an opportunity to be more relevant in the private sector, because public sector unions don’t help poorer workers (because public sector union members are middle class professionals, not working class):

Progressive hostility to [Harris v. Quinn], however, is shortsighted. Harris and decisions like it have the potential to revitalize progressive politics by restoring the relevance and political potency that labor held in the early-to-mid-20th century. The great labor leaders of that era — AFL-CIO President George Meany, President Franklin D. Roosevelt, and the like — agreed with the majority in Harris: it was both impractical and inadvisable to afford public employees compulsory collective bargaining rights.

Roosevelt said that collective bargaining and public workers’ right to strike would be “unthinkable and intolerable.” Meany said it would be “impossible.” In the view of these leaders, civil service laws from the Progressive Era of the 1890s to 1920s had made government jobs good and safe. Labor and progressives, therefore, needed to focus on blue-collar workers’ need to fight collectively for basic safety, dignity and living wages. Through this focus, the United States saw historic gains in the well-being of workers and the country’s middle class.

That labor heyday lasted through the 1950s, but starting in the late 1960s labor lost ground. Public-sector unions grew rapidly, but private-sector unions shrank. By 2012, public-sector workers had union membership rates more than five times higher than rates among private-sector workers.

Essentially, the public-sector unions sucked up all the oxygen. Talented labor organizers opted to work with government workers: their members were relatively prosperous and well connected, so they were easy and lucrative to organize. As explained in Jake Rosenfeld’s book What Unions No Longer Do from earlier this year, this shift to public-sector unions meant that unions no longer fought primarily for the working poor. Instead, much of their muscle was devoted to improving the status of middle-class professionals.

July 5, 2014

So how would they react to a strong pro-liberty Supreme Court decision?

Filed under: Law, Liberty, USA — Tags: , , , — Nicholas @ 10:43

Shikha Dalmia says that the relatively mild pro-liberty decisions from the US Supreme Court in this session have driven progressives wild. It’s hard to justify going to DEFCON-5 over Hobby Lobby or Harris … isn’t it?

This week, the United States Supreme Court handed down two rulings that are a victory for the liberties of religion, speech, and association enshrined in the First Amendment. That ought to be cause for a double celebration on July 4. But instead, the rulings, issued on the narrowest possible grounds, constitute a victory so modest — and have elicited a response from the left so hysterical — that anyone serious about liberty can’t help but be a little depressed right now.

The case that has attracted disproportionate attention is informally known as Hobby Lobby, and it challenged ObamaCare’s contraceptive mandate. This mandate requires all for-profit companies to provide all 20 forms of birth control approved by the FDA, including pills and “abortifacients,” even though they violate the Christian (Assembly of God, to be precise) convictions of the owners of Hobby Lobby, an arts and crafts chain in Texas, who were willing to cover “only” 16.

[…]

None of this, however, prevented the left from throwing a collective hissy-fit. Social media erupted into tiresome taunts of fascism. Ann Friedman called the ruling a “blow to reproductive rights” that made her want to issue “an outraged scream, sort of a combination groan-wail…while beating my fists against the desk on either side of my laptop.” (Hey Ann, be careful: A new laptop will cost you several years’ of contraceptive pills. Generic versions sell at Costco for $25 a month.)

Such moral huffing and puffing was also on display in response to the Supreme Court’s ruling in Harris vs. Quinn. That case involved the right of family members of disabled loved ones to offer care without having their state aid garnished by public unions. Harris, a mom who was providing home care to her 25-year-old disabled son, had sued the state of Illinois for forcing her to pay dues to a government union.

But what in the name of Jimmy Hoffa does looking after her son have to do with the union?

Apparently, because she receives state subsidies for caring for her son, Illinois, along with a dozen other states, considers her a “home health care worker.” This means she must submit to the exclusive representation of a government union in collective bargaining negotiations — even though she supports neither the union nor its goals.

The Tsilhqot’in Nation and British Columbia, now with legal standing and everything

Filed under: Britain, Cancon, History, Law — Tags: , , — Nicholas @ 10:32

When I saw the initial reports on the Supreme Court’s decision in Tsilhqot’in Nation versus British Columbia it sounded like the Supremes were ordering the province to pack up and move out … that most (all?) of the land previously known as British Columbia was now to be handed back to the First Nations bands. I guess it’s not quite so apocalyptic, although it will complicate things. Colby Cosh talks about the historical record that informed the decision:

Like everyone else who has studied the Supreme Court’s dramatic decision in the case of Tsilhqot’in Nation v. British Columbia, my response largely amounts to “Well, sure.” “Tsilhqot’in” is the new accepted name of the small confederacy of B.C. Indian bands long called the Chilcotin in English. They live in a scarcely accessible part of the province, and one reason it is scarcely accessible is that the Chilcotin prefer it that way. In 1864, they fought a brief  “war” against white road builders, killing a dozen or so. The leaders of the uprising were inveigled into surrendering and appearing before the “Hanging Judge,” Matthew Begbie. True to his nickname, he executed five of the rebels. But that road never got finished.

In most of Canada, occupancy by “settlers” whose ancestors arrived after Columbus has been formally arranged under explicit treaties. There is a lot of arguing going on about the interpretation of these treaties. But, broadly speaking, most of us white folks outside B.C. have permission to be here. Our arrival, our multiplication and the supremacy of our legal system were all explicitly foreseen and consented to by representatives of the land’s Aboriginal occupants. The European signatories of those treaties recognized that First Nations had some sort of property right whose extinction needed to be negotiated.

Oddly, this concept was clearer to imperial authorities in the 18th and early 19th centuries than to those who came later. The Royal Proclamation of 1763, for instance, recognized the right of Indians to dispose of their own lands only when they saw fit. By the time mass colonization was under way in British Columbia, the men in charge on the scene had absorbed different ideas. Concepts of racial struggle were in vogue, and so were straitlaced, monolithic models of human progress.

And the problems going forward?

The biggest problem for large infrastructure projects in the B.C. Interior may not be the collective nature of “Aboriginal title” alone, but the fact that it is restricted in a way ordinary property ownership isn’t. “It is collective title,” writes the chief justice, “held not only for the present generation but for all succeeding generations. This means it cannot be alienated except to the Crown, or encumbered in ways that would prevent future generations of the group from using and enjoying it.” The special category of legal title devised for First Nations turns out to have a downside: Even completely unanimous approval of some land use by a band or nation may not suffice if people who do not yet exist are imagined disagreeing with it. Would you care to own a car or a house on such terms?

Update, 11 July: Perhaps I spoke too soon that this ruling didn’t mean the non-First Nation inhabitants need to move out of the province.

British Columbia First Nations are wasting no time in enforcing their claim on traditional lands in light of a landmark Supreme Court of Canada decision recognizing aboriginal land title.

The hereditary chiefs of the Gitxsan First Nations served notice Thursday to CN Rail, logging companies and sport fishermen to leave their territory along the Skeena River in a dispute with the federal and provincial governments over treaty talks.

And the Gitxaala First Nation, with territory on islands off the North Coast, announced plan to file a lawsuit in the Federal Court of Appeal on Friday challenging Ottawa’s recent approval of the Northern Gateway pipeline from Alberta.

The Kwikwetlem First Nation also added its voice to the growing list, claiming title to all lands associated with now-closed Riverview Hospital in Metro Vancouver along with other areas of its traditional territory.

They cite the recent high court ruling in Tsilhqot’in v. British Columbia.

[…]

In the short term, the ruling will impact treaty negotiations and development in the westernmost province, where there are few historic or modern treaties and where 200 plus aboriginal bands have overlapping claims accounting for every square metre of land and then some.

“Over the longer term, it will result in an environment of uncertainty for all current and future economic development projects that may end up being recognized as on aboriginal title lands,” wrote analyst Ravina Bains.

June 17, 2014

BC supreme court attempts to extend jurisdiction over Google’s global services

Filed under: Cancon, Law, Liberty, Media, Technology — Tags: , , , , , — Nicholas @ 08:10

Michael Geist talks about another court attempting to push local rules into other jurisdictions online — in this case it’s not the European “right to be forgotten” nonsense, it’s unfortunately a Canadian court pulling the stunt:

In the aftermath of the European Court of Justice “right to be forgotten” decision, many asked whether a similar ruling could arise in Canada. While a privacy-related ruling has yet to hit Canada, last week the Supreme Court of British Columbia relied in part on the decision in issuing an unprecedented order requiring Google to remove websites from its global index. The ruling in Equustek Solutions Inc. v. Jack is unusual since its reach extends far beyond Canada. Rather than ordering the company to remove certain links from the search results available through Google.ca, the order intentionally targets the entire database, requiring the company to ensure that no one, anywhere in the world, can see the search results. Note that this differs from the European right to be forgotten ruling, which is limited to Europe.

The implications are enormous since if a Canadian court has the power to limit access to information for the globe, presumably other courts would as well. While the court does not grapple with this possibility, what happens if a Russian court orders Google to remove gay and lesbian sites from its database? Or if Iran orders it remove Israeli sites from the database? The possibilities are endless since local rules of freedom of expression often differ from country to country. Yet the B.C. court adopts the view that it can issue an order with global effect. Its reasoning is very weak, concluding that:

    the injunction would compel Google to take steps in California or the state in which its search engine is controlled, and would not therefore direct that steps be taken around the world. That the effect of the injunction could reach beyond one state is a separate issue.

Unfortunately, it does not engage effectively with this “separate issue.”

June 13, 2014

Supreme Court rules unanimously in favour of internet privacy

Filed under: Cancon, Law, Liberty, Technology — Tags: , , , , — Nicholas @ 13:11

Some great news on the privacy front, this time a decision handed down by the Supreme Court of Canada, as reported by Michael Geist:

This morning another voice entered the discussion and completely changed the debate. The Supreme Court of Canada issued its long-awaited R. v. Spencer decision, which examined the legality of voluntary warrantless disclosure of basic subscriber information to law enforcement. In a unanimous decision written by (Harper appointee) Justice Thomas Cromwell, the court issued a strong endorsement of Internet privacy, emphasizing the privacy importance of subscriber information, the right to anonymity, and the need for police to obtain a warrant for subscriber information except in exigent circumstances or under a reasonable law.

I discuss the implications below, but first some of the key findings. First, the Court recognizes that there is a privacy interest in subscriber information. While the government has consistently sought to downplay that interest, the court finds that the information is much more than a simple name and address, particular in the context of the Internet. As the court states:

    the Internet has exponentially increased both the quality and quantity of information that is stored about Internet users. Browsing logs, for example, may provide detailed information about users’ interests. Search engines may gather records of users’ search terms. Advertisers may track their users across networks of websites, gathering an overview of their interests and concerns. “Cookies” may be used to track consumer habits and may provide information about the options selected within a website, which web pages were visited before and after the visit to the host website and any other personal information provided. The user cannot fully control or even necessarily be aware of who may observe a pattern of online activity, but by remaining anonymous – by guarding the link between the information and the identity of the person to whom it relates – the user can in large measure be assured that the activity remains private.

Given all of this information, the privacy interest is about much more than just name and address.

Second, the court expands our understanding of informational privacy, concluding that there three conceptually distinct issues: privacy as secrecy, privacy as control, and privacy as anonymity. It is anonymity that is particularly notable as the court recognizes its importance within the context of Internet usage. Given the importance of the information and the ability to link anonymous Internet activities with an identifiable person, a high level of informational privacy is at stake.

Third, not only is there a significant privacy interest, but there is also a reasonable expectation of privacy by the user. The court examines both PIPEDA and the Shaw terms of use (the ISP in this case) and concludes that PIPEDA must surely be understood within the context of protecting privacy (not opening the door to greater disclosures) and that the ISP agreement was confusing at best and may support the expectation of privacy. With those findings in mind:

    in the totality of the circumstances of this case, there is a reasonable expectation of privacy in the subscriber information. The disclosure of this information will often amount to the identification of a user with intimate or sensitive activities being carried out online, usually on the understanding that these activities would be anonymous. A request by a police officer that an ISP voluntarily disclose such information amounts to a search.

Fourth, having concluded that obtaining subscriber information was a search with a reasonable expectation of privacy, the information was unconstitutionally obtained therefore led to an unlawful search. Addressing the impact of the PIPEDA voluntary disclosure clause, the court notes:

    Since in the circumstances of this case the police do not have the power to conduct a search for subscriber information in the absence of exigent circumstances or a reasonable law, I do not see how they could gain a new search power through the combination of a declaratory provision and a provision enacted to promote the protection of personal information.

Update, 7 July: A few weeks later, the US Supreme Court also made a strong pro-privacy ruling, this one mandating a warrant for police to search the contents of a cellphone.

Politico‘s Josh Gerstein has more on the ruling in in Riley v. California:

The Supreme Court’s blunt and unequivocal decision Wednesday giving Americans strong protection against arrest-related searches of their cell phones could also give a boost to lawsuits challenging the National Security Agency’s vast collection of phone call data.

Chief Justice John Roberts’s 28-page paean to digital privacy was like music to the ears of critics of the NSA’s metadata program, which sweeps up details on billions of calls and searches them for possible links to terrorist plots.

“This is a remarkably strong affirmation of privacy rights in a digital age,” said Marc Rotenberg of the Electronic Privacy Information Center. “The court found that digital data is different and that has constitutional significance, particularly in the realm of [the] Fourth Amendment…I think it also signals the end of the NSA program.”

Roberts’s opinion is replete with rhetoric warning about the privacy implications of access to data in individuals’ smart phones, including call logs, Web search records and location information. Many of the arguments parallel, or are virtually identical to, the ones privacy advocates have made about the dangers inherent in the NSA’s call metadata program.

May 22, 2014

Dickens 2.0 – debt prisons of the 21st century

Filed under: Law, USA — Tags: , , , , — Nicholas @ 00:01

At Outside the Beltway, James Joyner calls attention to the widespread practice of sending minor offenders to prison for failing to pay minor fines:

NPR’s “Morning Edition” has been running a series called “Guilty and Charged,” chronicling the plight of Americans forced to go to jail because they’re unable to pay the court fees and fines associated with very minor infractions. The Supreme Court ostensibly outlawed the practice three decades ago but left the determination as to whether defendants are truly to poor to pay or simply unwilling to trial court judges. Not shockingly, perhaps, they almost invariably presume the latter.

You can listen to Tuesday’s segment, “Unpaid Court Fees Land The Poor In 21st Century Debtors’ Prisons,” at the link. Unfortunately, they only have the audio and not a transcription. Aside from what I’ve already written in the introduction above, what really stood out to me was the sheer contempt judges displayed to indigent defendants. Despite being highly educated professionals supposedly trained in the law and selected for their ability to dispassionately way evidence and reach just results, those featured on the program were positively knee-jerk and sneering. It was as if they’d plucked some random yahoo from a Denny’s, dressed him in a black robe, and had him preside over the trial.

Today’s follow-up, “Supreme Court Ruling Not Enough To Prevent Debtors’ Prisons,” was if anything more infuriating. It dove deep into the case of Kyle Dewitt, an Iraq War vet who went to jail and got caught up in an unending series of problems with the law over catching the wrong species of bass at the wrong time of year.

[…]

I’ve long been of mind that we ought to do away with fines as a means of punishment altogether. Whether paying $150 for exceeding the speed limit (almost always some nominal fine for the offense and a much higher amount for “court costs,” owed even if one just mails in the fine and never goes to court) is a deterrent depends entirely on one’s financial circumstances. It was a big deal when I was in college; it’s a nuisance now. Further, those with the means will often spend far more than the fine plus court costs to hire an attorney to plead it to an offense that doesn’t come with points that go against their license or their insurance record. It’s incredibly inequitable.

April 27, 2014

Gerrymandering

Filed under: Politics, USA — Tags: , , , , , — Nicholas @ 09:49

Former US Supreme Court Justice John Paul Stevens has published a book in which he calls for certain amendments to the constitution, one of which is quite appealing:

1. Requiring that congressional and state legislative districts be “compact and composed of contiguous territory” to stop both parties from carving out safe seats.

US electoral districts can be particularly odd creatures. In a post from 2010, Zombie looks at the “top ten” gerrymandered districts … and they’re hard to believe. Here’s North Carolina-12, number 10 on the list:

This is what most people imagine when they think of a gerrymandered district — what I call “Gerrymander Classic.” NC-12 looks very much like the gerrymandered districts of the 19th century, but taken to extremes. As bad as it is, NC-12 at least looks like a congressional district, with meandering lines, consistent width, and hand-drawn appearance. As we’ll soon see, modern gerrymandering is often another animal altogether, with jarring shapes and artificial boundaries that are not just offensive to the eye but somehow feel like an insult to rationality.

This is what most people imagine when they think of a gerrymandered district — what I call “Gerrymander Classic.” NC-12 looks very much like the gerrymandered districts of the 19th century, but taken to extremes. As bad as it is, NC-12 at least looks like a congressional district, with meandering lines, consistent width, and hand-drawn appearance. As we’ll soon see, modern gerrymandering is often another animal altogether, with jarring shapes and artificial boundaries that are not just offensive to the eye but somehow feel like an insult to rationality.

Coming in at number 5, it’s Illinois-17:

Political scientists love to cite IL-17 as the prototypical gerrymandered district, and you are likely to see IL-17 used as the illustration in many academic treatises about redistricting. And we can see why here. Its shape has often been described as “a rabbit on a skateboard,” though to me it looks more like an embryonic ichneumon wasp with a pancreatic cyst. We saw above how PA-12 was a gerrymandering blunder by the Republicans; IL-17 is the opposite, a gerrymandered district created by Democrats to ensure themselves a seat in western Illinois — but which this year was snatched from their grasp by Tea Party candidate and now congressman-elect Bobby Schilling. Ooops! The Democrats went out on a limb when drawing IL-17 — several limbs, by the looks of it — but the wave election of 2010 changed the electoral landscape. Let me repeat my warning to over-confident redistricters next year: THINGS CHANGE. Gerrymander at your own risk.

Political scientists love to cite IL-17 as the prototypical gerrymandered district, and you are likely to see IL-17 used as the illustration in many academic treatises about redistricting. And we can see why here. Its shape has often been described as “a rabbit on a skateboard,” though to me it looks more like an embryonic ichneumon wasp with a pancreatic cyst. We saw above how PA-12 was a gerrymandering blunder by the Republicans; IL-17 is the opposite, a gerrymandered district created by Democrats to ensure themselves a seat in western Illinois — but which this year was snatched from their grasp by Tea Party candidate and now congressman-elect Bobby Schilling. Ooops! The Democrats went out on a limb when drawing IL-17 — several limbs, by the looks of it — but the wave election of 2010 changed the electoral landscape. Let me repeat my warning to over-confident redistricters next year: THINGS CHANGE. Gerrymander at your own risk.

And finally, the circa 2010 winner of the most gerrymandered district in the United States award, Illinois-4:

Here it is: The most ridiculous congressional district in the entire country. No, you’re not looking at two districts; IL-4 has two absurdly gerrymandered halves held together by a thin strip of land at its western edge that is nothing more than the median strip along Interstate Highway 294. The end result is a gerrymandered gerrymander, a complete mockery of what congressional representation is even supposed to be. As with AZ-2, the intention behind IL-4 was to create an ethnic enclave, in this case an Hispanic-majority district within an otherwise overwhelmingly non-Hispanic Chicago. Problem is, Chicago has two completely distinct and geographically separate Hispanic neighborhoods — one Puerto Rican, the other Mexican — but neither is large enough to constitute a district majority on its own. Solution? Lump all Hispanics together into a supposedly coherent cultural grouping, and then carefully draw a line surrounding every single Hispanic household in Chicago, linking the two distant neighborhoods by means of an uninhabited highway margin. Voila! One Hispanic congressperson, by design. And as a side-effect, the most preposterous congressional district in the United States.

Here it is: The most ridiculous congressional district in the entire country. No, you’re not looking at two districts; IL-4 has two absurdly gerrymandered halves held together by a thin strip of land at its western edge that is nothing more than the median strip along Interstate Highway 294. The end result is a gerrymandered gerrymander, a complete mockery of what congressional representation is even supposed to be. As with AZ-2, the intention behind IL-4 was to create an ethnic enclave, in this case an Hispanic-majority district within an otherwise overwhelmingly non-Hispanic Chicago. Problem is, Chicago has two completely distinct and geographically separate Hispanic neighborhoods — one Puerto Rican, the other Mexican — but neither is large enough to constitute a district majority on its own. Solution? Lump all Hispanics together into a supposedly coherent cultural grouping, and then carefully draw a line surrounding every single Hispanic household in Chicago, linking the two distant neighborhoods by means of an uninhabited highway margin. Voila! One Hispanic congressperson, by design. And as a side-effect, the most preposterous congressional district in the United States.

The kicker? Those ten are at least legal in that they’re contiguous. Zombie goes on to show some even more outrageous examples where that requirement is blatantly ignored.

The state of the US judicial system

Filed under: Law, Liberty, USA — Tags: , , , , — Nicholas @ 00:01

In a column about Mark Steyn’s legal battles with Michael Mann, Conrad Black takes time out to revisit the overall state of the US court system:

… American justice is in a shocking condition. Too many judges in the U.S. are elected; too many are ex-prosecutors; the battle over capital punishment has taken all the air out of the room in which the infamous severity of American sentences and the unspeakable lopsidedness of prosecutorial success should be debated. This is a country that inspired the world with a vision of freedom and democracy (though Great Britain, Switzerland, much of the Netherlands, and Scandinavia were just as democratic at the time of the American Revolution). Yet the entire legal apparatus has sat like a gigantic suet pudding and the Supreme Court, in between its four-month vacations, has drunk the Kool-Aid of its own bathwater. The Fifth, Sixth, and Eighth Amendment guaranties of due process, just compensation for seizure of property, grand jury deliberations as assurance against capricious prosecution, prompt justice, access to counsel (of choice), impartial jury, and reasonable bail have been put to the shredder. The United States has six to twelve times the number of incarcerated people per capita as Australia, Canada, France, Germany, Japan, and the United Kingdom, the nearest comparable countries. Even after removing from the totals all those with unstigmatizing records irrelevant to their hireability today (DUI or disorderly conduct decades ago, for example), about 15 percent of adult males are felons.

Prosecutors win 99.5 percent of their cases, 97 percent of them without trial, because of the plea bargain system, which has often been reduced to a sleazy extortion or subornation of confected and rehearsed inculpatory testimony in exchange for immunities, including from the perjury sponsored and approved by the prosecutors. This is far from what was intended by the authors of the Bill of Rights and the original propagators of the tenuous theory that American independence was a new order of the ages and the dawn of government of, by, and for the people, vested with inalienable rights, according to self-evident truths.

Beyond all that, the American legal profession is a suffocating cartel that saps 10 percent of American GDP and through its members in legislatures and regulatory authorities adds 4,000 statutes and regulations a year to the law books, steadily tightening its strangulation of American life, all and always in the name of a society of laws and the ever more equitable refinement of civilization. It would have been impossible and unreasonable to anticipate that so perceptive and spontaneous and fearless an observer as Steyn would not steadily broaden his range of fire, as he has. At one point Steyn began filing motions on his own behalf—the best written court documents you may ever read—that drip with disdain for the judicial process. He quotes Lady MacBeth and describes various pieces of the case using phrases such as “multi-car pileup,” “zombie-like,” “Potemkin hearing” and “meretricious folderol.” It would have been equally unreasonable not to foresee that the authorities upon whom his withering fire descended would not resent this deserved if unaccustomed hostility, and whatever one may think of Mann, he cannot be faulted tactically for trying to tuck himself under the wing of an affronted legal establishment. That does not justify Mann’s infliction of the hockey stick upon the world (like the great Montreal Canadiens point-man Bernard “Boom Boom” Geoffrion lowering — with considerable but probably not sufficient provocation — the real article onto the cranium of a New York Ranger forward sixty years ago) any more than it whitewashes Mann’s own insults. He has dismissed the immensely respected Danish scientist and intellectual Bjorn Lomborg as “a career fossil fuel industry apologist”; Judith Curry, co-editor of the Encyclopedia of Atmospheric Sciences and an honored member of the National Research Council’s climate research committee, as a “serial climate disinformer”; Australian journalist Andrew Bolt as a “villainous” threat to the planet who is paid by Rupert Murdoch “to lie to the public” (Mann apologized for this one after Bolt—in solidarity with Steyn—threatened a lawsuit); and the rest of us as mere “climate change deniers.”

April 23, 2014

Desegregation

Filed under: History, USA — Tags: , , , — Nicholas @ 08:04

An interesting article in the New Yorker by Jelani Cobb discusses some of the aspects of the struggle to desegregate American schools that I hadn’t heard of:

The architects of Jim Crow were fixated by notions of white racial purity, but black people subjected to that dictatorship of pigment were concerned with a different question: In a hostile society, is it better to be isolated from those who view you with contempt or in close proximity to them? In retrospect, it is easy to see segregation as a moral evil unanimously despised by black people, but even its fiercest critics betrayed ambivalence about what its end would mean. In the thirties, W. E. B. Du Bois inspired rancorous debates within the N.A.A.C.P. by arguing, in his writing, that there were important economic benefits — the built-in market for black businesses, for instance — that came with segregation. James Nabrit, Jr., an attorney who handled a school-desegregation suit in Washington, D.C., that became one of the cases grouped with Brown, went on to become president of Howard University, a job that entailed the seemingly paradoxical task of preserving and furthering an all-black educational institution. Three of the other attorneys who worked on Brown, including Thurgood Marshall, had, in fact, met as students at Howard’s law school, and they began their desegregation work under the tutelage of Charles Hamilton Houston, the school’s dean. Black teachers in South Carolina, where another of the desegregation suits had been filed, worried, with some cause, that integration would end a state of affairs in which black children, though deprived of equal resources, at least benefitted from teachers who did not calibrate their expectations according to the color of their students’ skin.

The Supreme Court decision on Brown, in 1954, marked a moral high point in American history, but the practice that it dispatched to the graveyard had already begun to mutate into something less tangible and far more durable. What would, in the end, preserve the principle of “separate inequality” was not protests like the one staged by Orval Faubus, the governor of Arkansas, who deployed the National Guard to Little Rock’s Central High School, in 1957, in order to keep black students out. Instead, it was policies like the Interstate Highway Act, whose passage one year earlier helped spawn American suburbia. In the wake of Brown, private schools, whose implicit mission was to educate white children, cropped up throughout the South. The persistent legacies of redlining, housing discrimination, and wage disparity conspired to produce segregation without Jim Crow — maintaining all the familiar elements of the past in an updated operating system.

To the extent that the word “desegregation” remains in our vocabulary, it describes an antique principle, not a current priority. Today, we are more likely to talk of diversity — but diversification and desegregation are not the same undertaking. To speak of diversity, in light of this country’s history of racial recidivism, is to focus on bringing ethnic variety to largely white institutions, rather than dismantling the structures that made them so white to begin with.

And so, sixty years after Brown, it is clear that the notion of segregation as a discrete phenomenon, an evil that could be flipped, like a switch, from on to off, by judicial edict, was deeply naïve. The intervening decades have shown, in large measure, the limits of what political efforts directed at desegregation alone could achieve, and the crumbling of both elements of “separate but equal” has left us at an ambivalent juncture. To the extent that desegregation becomes, once again, a pressing concern — and even that may be too grand a hope — it will have to involve the tax code, the minimum wage, and other efforts to redress income inequality. For the tragedy of this moment is not that black students still go to overwhelmingly black schools, long after segregation was banished by law, but that they do so for so many of the same reasons as in the days before Brown.

H/T to ESR for the link.

April 3, 2014

Big money in US politics gets bigger

Filed under: Media, Politics, USA — Tags: , — Nicholas @ 07:48

Jonathan Rauch looks at the implications of the McCutcheon decision of the US Supreme Court this week:

The 5-4 ruling along the usual conservative-liberal lines, while not unexpected, has broad implications. Like it or not — and assuredly, progressives do not like it — the era of effective limits on contributions to federal politicians is drawing to a close. Want to write a million-dollar check to support a candidate? Chances are that now, or someday soon, you can.

For four decades, since the campaign finance reforms of the 1970s, limits on big-dollar, direct gifts to politicians have been the beating heart of the progressive paradigm. Before McCutcheon, donors could give only $2,600 to an individual candidate in any one election cycle — and they could only give an aggregate of $48,600 to all campaigns. (Here’s the whole list of contribution limits.) In McCutcheon, the court struck down the aggregate limit, reversing its own prior holding in the seminal 1976 case Buckley v. Valeo.

[…]

A calamity for the 1970s paradigm? Yes. A calamity for progressives? Maybe not. There is a way forward, a potential win for both freedom and political accountability, though it requires progressives to hold their nose and swallow hard: raise contribution limits. A lot. A whole lot. Like, allow contributions of up to $1 million for presidential campaigns and up to $200,000 and $50,000, respectively, for Senate and House campaigns. (In 2012, an average winning Senate campaign spent $10.4 million, and a winning House campaign spent $1.6 million, according to Vital Statistics on Congress.) At the same time, as part of the deal, close the wide gaps in today’s rules requiring the disclosure of donations.

Wait. Allow Senate candidates to hit up victims — sorry, donors — for $200,000 at a time? Legitimize contributions of a size that virtually guarantees special attention from office-holders? Why should progressives conceivably support that? Because the old means no longer serve the desired ends. As of now, the case for low contribution limits has all but evaporated — even if you believe, as I do, that the limits once made sense and that the Buckley court was correct in upholding them.

One of the reasons those of us north of the border are often shocked at US political spending is that Canadian election campaign limits are a tiny fraction of the US numbers. You could run a national political campaign and candidates in every riding (308 in the last election) for less than the cost of seven average US senate races. This may explain the limited success of US campaign tactics (and tacticians) periodically imported from the US.

March 30, 2014

“[E]very Ohio political candidate has escaped from a lunatic asylum and all Ohio ballot initiatives are the work of Satan”

Filed under: Humour, Liberty, Politics, USA — Tags: , , — Nicholas @ 10:11

P.J. O’Rourke finally made his mom proud by filing a brief of Amici Curiae to the US Supreme Court:

Ilya Shapiro, with a J.D. from the University of Chicago Law School, is Senior Fellow in Constitutional Studies at Cato and editor-in-chief of the Cato Supreme Court Review. He often files amicus briefs, especially in cases where constitutionally guaranteed rights are imperiled. But these briefs are serious in tone even though Ilya is funny in person.

He’s also self-effacing, saying, “There are people who know more about Constitutional law than I do, and there are people who are funnier than I am, but I do occupy the very small area of overlap in that Venn diagram.”

The Venn diagram seemed like the only proper approach to a law that would make you a criminal in Ohio for saying that Buckeye president William Howard Taft was so fat his wife had to grease the doorframe and tell him there was a banana cream pie in the Blue Room to get him into the White House.

The fight-a-laugh-with-a-laugh brief was Cato Legal Associate Gabriel Latner’s idea. He wrote the first draft. Cato Research Fellow Trevor Burrus added research. And more jokes. Then Ilya Shapiro took over. I was asked to read it and give it my endorsement because I am an expert on being run out of Ohio. Ask my mother.

Politico posted a condensed version of the brief, and I shared the byline with Ilya. On the Above the Law blog David Lat called it the “Best Amicus Brief Ever.” (Albeit that’s a low “bar” — notice how I casually toss in legal jokes now that I’m arguing a case before the Supreme Court.) And a lawyer friend of mine congratulated me on what he said was the first legal brief in history to go viral.

March 5, 2014

QotD: “Truthiness” and the First Amendment

Filed under: Humour, Law, Liberty, Quotations, USA — Tags: , — Nicholas @ 10:22

In modern times, “truthiness” — a “truth” asserted “from the gut” or because “it feels right,” without regard to evidence or logic5 — is also a key part of political discourse. It is difficult to imagine life without it, and our political discourse is weakened by Orwellian laws that try to prohibit it.

After all, where would we be without the knowledge that Democrats are pinko-communist flag-burners who want to tax churches and use the money to fund abortions so they can use the fetal stem cells to create pot-smoking lesbian ATF agents who will steal all the guns and invite the UN to take over America? Voters have to decide whether we’d be better off electing Republicans, those hateful, assault-weapon-wielding maniacs who believe that George Washington and Jesus Christ incorporated the nation after a Gettysburg reenactment and that the only thing wrong with the death penalty is that it isn’t administered quickly enough to secular-humanist professors of Chicano studies.

Everybody knows that the economy is better off under [Republican/Democratic]6 presidents — who control it directly with big levers in the Oval Office — and that:

    President Obama is a Muslim.
    President Obama is a Communist.
    President Obama was born in Kenya.
    Nearly half of Americans pay no taxes.7
    One percent of Americans control 99 percent of the world’s wealth.
    Obamacare will create death panels.
    Republicans oppose immigration reform because they’re racists.
    The Supreme Court is a purely political body that is evangelically [liberal/conservative].8

All of the above statements could be considered “truthy,” yet all contribute to our political discourse.

5. Wikipedia.com, Truthiness, http://en.wikipedia.org/wiki/Truthiness (last visited Feb. 28, 2014) (describing the term’s coinage by Stephen Colbert during the pilot of his show in October 2005). See also Dictionary.com, Truthiness, http://dictionary.reference.com/browse/truthiness (last visited Feb. 28, 2014).
6. Circle as appropriate.
7. 47 percent to be exact, though it may be higher by now.
8. Again, pick your truth.

Ilya Shapiro and P.J. O’Rourke, BRIEF OF AMICI CURIAE CATO INSTITUTE AND P.J. O’ROURKE IN SUPPORT OF PETITIONERS, Susan B. Anthony List v. Driehaus [PDF], 2014-02-28

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