Hammer Time

Wait.. I mean it's finals time. Therefore, posting will probably be light over the next ten days. My excuse for the past week is allergies. Here in St. Louis we have been under attack from pollen and mold. I have been just able to make it to class, the gym and my bed. But the rain has finally come and my headaches ought to abate.

And I just might post a bit here off and on, as legal issues come up in my preparation for the big exams.

Nanny State

In the comments to the post below, Pie brings up a point about "the government... sav(ing) me from myself" with respect to seatbelt laws. And it is an argument made by many folks, some of whom are libertarians, as the decry the nanny state. At times it may be a fair argument to make, but there is a bit more to the picture.

Many laws that have a safety motivation are indeed designed to protect a person from herself. However, the benefit of the law runs to others as well. Imagine if you will that there is an accident and the driver of the car is not wearing her seatbelt. She suffers injuries greater than if she had been wearing a seatbelt. The cost is borne not only by the injured person, but by society. Suppose the person has to be airlifted to a hospital and requires emergency medical care and an operation. All of these resources have now been expended and are no longer available.

Perhaps the alternative use of the helicopter was to transport a donor kidney for a transplant. Or that emergency medical care may have been used by another trauma victim. For all of these resources expended there is another person or persons who have thus been denied use of these resources. Additionally if the injured person is not insured, then society directly bears the cost of treatment. Either way, there is a genuine cost to society for these injuries suffered as a result of not wearing one's seatbelt. Thus, the injury is to society as well as to the individual.

That is not to say that these societal costs (externalities) justify a strict seatbelt statute and enforcement. Rather, it is to show that there are costs and benefits that are borne by individuals not captured by the initial analysis. Just as there is a cost to society for diverting police resources to pulling over people who are violating the seatbelt law, there are also costs to society for injuries of unbelted drivers (or passengers). It is not a simple analysis focused solely on individual rights versus government power.

All Benefit, No Cost?

One of my pet peeves about news reporting is its use of partial research findings. To wit, in the most recent issue of Midwest Traveler (AAA magazine) a story says- "Making Missouri's safety belt law stricter would say 89 lives and prevent more than 1,000 serious injuries each year, a federal highway official recently said."

After reading this sort of claim, what right-minded person could be against making the change to the law (safety belt as primary, meaning a motorist could be pulled over for that reason alone)? The only problem is that there is no mention of the policy's cost. For example, if more officers would be needed, that is a cost. Or, if the same number of officers obtains, then to move to a primary enforcement would mean diverting officers from whatever else they may be, or might be, doing. There is also a cost involved with re-allocating a finite resource. Would highway stops for safety belt violations take time away from capturing other offenders? If so, what is that cost?

In order to determine if a policy change has merit, people need to be informed not only of the benefit, but also of the cost. This is not to say that the cost here outweighs the benefits, for given the information I am as ill-equipped to make that decision as anyone else. But this is just a warning that any policy change will have attendant costs, as anytime finite resources are allocated, or re-allocated, some other potentially meritorious use of those resources i being foregone.

Computers + Targeting + Redistricting = Polarization

A lot of ink (and pixels) have been spent over the past decade ruing the decline of civil discourse in society and in our institutions. To some of my collegaues on the left, the problem has been simply that the GOP took over Congress and leveraged talk radio and Fox News to create a vitriolic atmosphere in America. But that seems to be too simplistic of an explanation. And, it begs for a more nuanced view.

Let us look at Congress and Congressional elections as an illustration. The increase of technology (computers, targeting software) has provided a means for the two parties to craft ever more ideologically monolithic congressional districts. From very liberal CD's in Massachusetts to very conservative ones in Alabama, the polar extremes are more than adequately represented. Of course, each district contains a certain amount of non-homogeneous voters, but always less than enough to be a critical mass.

In terms of the break down of the non-homogeneous voters, a fairly sizable portion are quite likely moderates of one stripe or another. This view is bolstered by the closeness of presidential elections and what has been termed a 50-50 country. No presidential candidate in recent history has run either too far left or too far right as the battle is fought over the middle portion of the voting public. However, this phenomenon does not play out at the Congressional level where the incentive is to be closer to one of the polar extremes. (I should note that by Congressional I mean only the House of Representatives; I think that Senate races tend to be fought much more like Presidential contests as does legislative behavior.)

So, if what this argument posits is true, what does it all mean? If our system, with the help of technology has provided a means for the most partisan of folks to be elected then how can we expect them to become any less partisan when they set foot in the chamber? A couple of decades ago, prior to the advent of election technology, CDs were much more heterogeneous and members were therefore limited by a diffuse electorate. This heterogeneity was a check on rampant partisanship that is now absent.

There are now no more than a couple handfuls of truly competitive CDs in the country. This is not the fault of one particular party, but of both. The power over the redistricting process has always brought about its share of compromises between the parties as they try to protect certain incumbents. However, with the richness of voter data now available and the quality of computer modeling, parties are able to draw CDs that not only divide neighborhoods, but will split a street up in order to ensure a certain composition of voters. There is massive collusion between the two parties to divide America into two distinct camps.

The only solution is to strip state legislatures of the power to set electoral districts. At the Congressional level, CDs could be drawn by a special master appointed by the appropriate Federal District court(s). And for state legislative races, the special master would be named by the state's highest court. I realize that the obvious objection to this scheme is its anti-democratic nature, that allowing a special master to draw electoral maps takes that power away from the people. But, that argument rests on what is a merely theoretical proposition that the people actually control the process at this point.

Guest Post

Those of you who have read this site for any amount of time (or have perused the archives) probably realize that my views on the Iraq war have changed drastically over time. Initially, I supported the war and even took cheap shots at those who opposed it. While no big fan of Bush, I gave him the benefit of the doubt. I never believed that Iraq qas involved with 9-11, but I was willing to believe that Saddam possessed WMD. After all, why would the President lie to the American people. Or, alienate the vast majority of the world for an illusory premise of war.
With hindsight, comes great awareness. An awareness that this administration will lie to the country when it suits their interests. And that they will use every means at their disposal to thwart all attempts to uncover the truth.
With that lenghty introduction, I bring to you a guest post (actually it is two combined into one) from a fellow student whose husband is one of the Marine Reservists currently in Iraq. These were initially generated as a response to a debate on our listserv and have been slightly edited.


In your post you stated that, "we're not afraid to use our well-trained, powerful military to defend America against these threats. Who exactly is the "we?" I am not aware of any inquiry made by our government to
determine a level of popular agreement before sending our loved ones into a war zone.

Exactly where did you get the information that led you to believe that those who have been sent into this combat are "well-trained?" The last most recent deployment of roughly 100,000 Marines were reservists. Do
you have any direct knowledge of what constitutes "well trained" and whether or not those that were sent meet the definition? I am sorry but I must disagree with your clearly uneducated assertion. My husband was
sent to Fallujah (the most dangerous city in Iraq, the "cemetery of Americans") more than 3 years after his basic training was completed having had only one weekend a month and one week a year of training during his tenure as a Marine reservist.

And how dare you attempt to voice bravery ("we're not afraid") when you yourself are in absolutely no danger regardless of what occurs in Iraq. If you had to contend with constant mortar attacks and the daily
possibility of not only being killed, tortured or injured but of never seeing your children grow into adults and never seeing your family again, I believe that fear would exist in you as well.

Before you begin to explain to me that my husband and the other reservists made the choice to enlist, do some research on the motivations of those that enlist in the military, as well as the military's target of minorities, individuals from low income families and 1st and 2nd generation immigrants.

If you want an accurate depiction of bravery take a look at the website for the Brook Army Medical Center in San Antonio Texas.

You ask if we have "forgotten that Pres. Bush was the only President ever to fly into a foreign war zone, and he did that just to visit the troops on Thanksgiving Day to say how proud and thankful he was of their
service. I think thats a more relevant "symbolic message" than Pres. Bush's work location."

I dare not forget a media stunt like that in which our president uttered those careless words "bring it on" (putting more of our soldiers' lives in harm's way). And they did! More than 600 American soldiers have been
killed in Iraq since the president announced the end of major combat.

In closing, I will leave you with these wise words so that perhaps in the future you will not so eagerly place your foot in your mouth; "no investigation, no right to speak."

Part II

I take serious offense at your suggestion that I characterized my husband or the other enlistees as either victims or stupid. The comments I made about the initiatives of the military in targeting specific groups come not from my relationship with enlistees but from my position as an intern in the advertising and marketing division with the Defense Manpower Data Center (DMDC) with the Dept. of Defense.

The propensity for young Americans to enlist in the military is measured through in-depth surveys of youth who take the ASVAB. The resulting marketing strategy is to target those who don't experience an adolescent developmental stage called a psychosocial moratorium. This describes the period in adolescence where youths are interested in and engage in determining inter alia their career paths.

American parents of moderate to high wealth are in the enviable position of being able to offer their children access to the experiences necessary to make these decisions while supplying them with the security that they will have a home, food, health care and the myriad of basic comforts their less fortunate counterparts can not take for granted. The military is not only aware of the disparity in the lack of resources among minorities, the poor and immigrants they prey on it.

How Times Change

Four Are Held on Gun Charges After Brawl at Campus Party
Check out this quote-- "They didn't have any metal detector," said Robert Patterson, 18, a freshman communications major from Trenton. "Anything was bound to happen. You could bring anything you wanted."

Huh? Since when do people think it is a good idea to bring "anything" to a dance on a college campus? Do we really need to have metal detectors at EVERY public gathering? Have we become that much like animals? Seriously people.. grow the f*ck up and act like you know.

In Remembrance

And when this happens, when we allow freedom to ring, when we let it ring from every tenement and every hamlet, from every state and every city, we will be able to speed up that day when all of God's children, black men and white men, Jews and Gentiles, Protestants and Catholics, will be able to join hands and sing in the words of the old Negro spiritual, "Free at last, free at last. Thank God Almighty, we are free at last."

Vote Mark Smith

Vote Mark Smith - Missouri Third Congressional District
This is also known as Dick Gephardt's district (of course, Cong. Gephardt is retiring and may be our VP). There is a crowded field of candidates in the race, ranging from really conservative (think Zell Miller) to really liberal (think Ralph Nader). Mark is somewhere in the middle and refers to himself as a "Practical Progressive".

While this is not a very competitive seat for the general, the primary is important and will set a tone for where the Democratic Party wants to go in the future. We have a choice between Lefty daydreamers, Righty DINOs and Sensible Centrists. I think Mark is firmly in the last group and would make a wonderful representative for the District, the state of Missouri and the Democratic Party.

(disclosure: Mark is also known to me as Dean Smith and while that may call into question my objectivity, I think anyone who knows me realizes that I am not swayed by school authority in any manner, shape or form.)

Conspiracy and Regulatory Offenses

As more and more jurisdictions move away from the Powell doctrine and hold that ignorance of the law is no defense to a conspiracy charge, it leaves open the possibility of being punished twice for an unintentional crime. While strict liability has its appeal with respect to certain offenses, it seems to be quite unfitting for conspiracy. The whole notion of conspiracy revolves around a premeditated plot to commit an act. Yet, when that act is not subject to a mens rea requirement, there is not any notion of evil intent. Therefore if we import the same strict liability construct to the conspiracy to commit aspect of the crime, the act itself is proof of a conspiracy.

While there may be times that such a scheme is sensible, imagine the following--

The state of Zed requires that mattress tags not be cut off and to do so is a strict liability crime. X and Y are a couple who live in Zed and have a mattress. X holds the tags and Y cuts them off with scissors. Under the laws in most jurisdictions X and Y would be chargeable not only with cutting of the tags, but also of conspiracy to cut the tags.

Perhaps the solution lies in the sentencing decisions of judges who will hopefully see the ridiculousness inherent in similar situations. More appropriately though would be for legislatures to eliminate conspiracy for certain regulatory crimes.

Conspiracy, Attempt and Overt Actions

The criminal law seeks to make a distinction between conspiracy and attempt. While many jurisdictions now make an overt action a requirement for conspiracy, it still falls short of the sort of activity required to produce an attempt. The overt act requirement for conspiracy may be satisfied by an activity that might be categorized as equivocal or preparatory. This sort of action is used to show that the conspiracy has somehow been set in motion.

For example, X and Y are conspiring to kill Z. X goes to the store to purchase a large hunting knife, that ma be used in the plotted killing. It can be said that X has set the conspiracy in motion with his purchase.

But what purpose does this serve? For if their plot is actually completed, then the murder of Z will be the primary evidence of the conspiracy. And, if the plot is thwarted prior to any attempt on Z, then is it really important to punish X and Y (assuming that the thwarting happens well before any damage has been done)? A better question might be is the value of punishing X and Y greater than the risk that we are punishing someone for no greater offense than to have talked about killing a third person and buying a hunting knife.

When we seek to punish for conspiracy well before any substantive criminal activity is accomplished we run the substantial risk of punishing innocent people. The further away from the attempt to commit the substantive crime that interdiction takes place, the more tenuous the relationship is between the criminal thoughts and criminal intent. Of course, by moving the line closer towards the criminal action we run the equal risk if failure to interdict and thus a greater risk of injury.