Utilitarian vs Retributive

>> Friday, February 20, 2009

David has a rather impressive post on theory of punishment. The part that best captures my own view on the subject is this excerpt,

On the other hand, it also provides an out for politically or economically-powerful individuals to escape liability for even the most horrific of crimes, if they claim that society would suffer more by their removal than it would gain through punishment. Because the idea of "social gain" is always indeterminate, punishment becomes solely the province of the poor and marginalized, and even can become a collateral weapon against social dissidents who are labeled "undesirable". This a just a sampling -- the literature in this field is rich and dense, and won't be resolved in the space of a blog post.

Outside the academy, though, I suspect most of us blend together elements of both schools. We want our mechanisms of punishment to achieve social goals -- make us safer, rehabilitate wrongdoers, recompense victims -- while still staying at least tied to some rational conception of culpability.

The basic reason that i do not agree with the strong utilitarian view is that- to me - the only law, rule or custom, is that which is enforced. The reasoning behind this is that without enforcement a "law" even if passed by a duly elected legislature has no real effect on the lives of the populace and does not serve, as a law is meant to do, as a restraint on behavior. My conception of the law is that it is meant as a way to constrain behavior and to take civilization out of a violent and unstable state of nature. If we do not enforce the a law in some way what is the point of the law? It would constrain nothing, have no impact.

The obvious counter is that things passed but not enforced do exist but as "bad law" or dormant law. I disagree with this because it does not meet the basic qualification of impacting behavior. If it becomes enforced later in time then it is law but while it goes unenforced it is nonexistant. The ability of utilitarians to create situations where "laws" will always go enforced because they will lack deterrence that outweighs social harm makes the theory rather unappealing to me. such a theory runs counter to the basic idea that no man is above the law.

I think the best example of this is the current fight to prosecute certain members of the past administration for torture and various other crimes. If these people are never punished for their actions did they really commit crimes? im hard pressed to say yes. By allowing high officials to escape punishment we effectively write new law that says that it is better to "look to the future" instead of investigate past political abuses. This is a policy that supported the pardoning of nixon, pardoning of iran contra associates, and the non-investigation of the Bush Admin. These people commit crimes and then fall back on the utilitarian justification that their punishment offsets the benefit of preventing future abuses.

It also seems to me that utilitarians should have a hard time in justifying punishment for crimes against humanity given the common recurrence of such crimes across the historical arc. Punishing one party for committing genocide has not ever deterred others from pursuing such a course. In fact punishment for genocide can get in the way of creating peace as is the case with the ICC subpoena for the leader of Sudan. Yet we cannot say that people who are clearly responsible for the murder of thousands or millions of people do not deserve to be punished? That runs counter to any idea of intrinsic human rights.


Just Say No to Benevolent Dictators

>> Monday, February 16, 2009

Seeing venezuala repeal their term limits on the office of the presidency has brought to mind something about executive power in our own country. This is the "trust me" idea. The idea that as citizens what we need is to trust our presidents to use their expansive power wisely and that by simply highlighting past abuses or saying that they wont happen again. I feel that simply airing dirty laundry from the Bush administration or discovering the truth is not enough to prevent future abuses by the executive. In this light i would like to see President Obama and the Congress take more concrete steps to prevent a repeat of the Bush administration in the future and to roll back the executive branch's power.

Dave Waldmen presented a question about Obama and the use of signing statements to avoid having to enforce the executive pay measures passed in the stimulus bill.

Whatever the differences, let's be clear about what it means that Congress has passed this set of restrictions, and President Obama is signing them into law tomorrow. Any changes he'd like to see made, he ought to seek to have made legislatively. After two weeks of seeing the stimulus bill watered down and slashed in a futile attempt to "reach out" to Republicans who all eventually gave him the finger, do you think we could maybe, possibly not have the President unilaterally take an axe to a wildly popular provision added to the package by members of his own party?

I'm not a presidential adviser, of course. But I'm thinking that maybe this ought to be approached with a bit more caution, and more signals need to be sent that the President is committed to making any fixes he wants through the legislative process. Any ambiguity isn't likely to help him when it comes time to sell another $2 trillion round of TARP funding in the coming weeks. The constant worry of Obama's most critical allies on the Hill with respect to the TARP is that Congressional oversight not fall by the wayside. If the White House's opening move on oversight is to announce its intention not only to make decisions unilaterally, but to brush aside enacted statute in doing so, we're going to be in for a bumpy ride.

I view presidential signing statements as unconstitutional. To me the represent the executive making a determination about what is and is not constitutional that is reserved for the courts. The presidents job is to faithfully execute the laws not to alter clear language and modify statutes for political purposes. If Obama where to make a signing statement that established his intent not to enforce the executive pay cap that would be an unconstitutional act. He would be making law, not enforcing it. When an executive simply rewrites the laws passed by a duly elected legislature he takes on the character of a dictator.

Similarly, when the executive branch labels a topic protected by national security and orders law suits thrown out they are acting in a dictatorial manner. The executive should not be able to simply throw out law suits based on alleged national security requirements without a review by the judiciary as the legitimacy of that assertion. Congress should pass legislation to end the governments assertion of such a broad state secrets provision.

These are just two of the most obvious examples of how a president acts in an undemocratic and dictatorial manner. It is now, when we have Obama as President that we need congress to step to the plate and firmly roll back, in law, the unitary executive style expansion of power that has been happening since Reagen. Congress during the Bush years managed to let the executive branch have whatever it wanted because Bush was Keeping us safe. This exact language is the language of subjects not citizens. The President is not a paternalistic figure who takes care of all our problems, Presidents are supposed to be leaders. Leaders are not empowered to simply do whatever they think is best, especially under our constitution. Presidents, even the good ones are not all powerful.

While i believe Obama is of sound moral and ethical character we are a nation of laws and not of men. As a country we cannot simply sit back passively as our elected leaders "do whats good for us". We need laws, accountability, and checks on a leader be it Obama or any one else. I do not want a benevolent despot who leads me like a sheep where he says is best, otherwise id be a conservative. We shouldn't need to trust our leaders not to torture or spy on us. Just say no to benevolent dictators.


Hoping Obama Fails

>> Saturday, February 14, 2009

It is clear at this point that the Republican strategy is to hope for the failure of barack obama. If your doubting that i can point you to this. The general idea is that the republicans are going to obstruct as much as possible, declare everything is a horrendous mistake, hope it fails, and then run against it in 2010 and 2012. This they believe is the best way back into power without actually coming up with anything new that might actually solve the problem. Is this strategy correct or is there another way?

The obstruction strategy seems to be the easiest. Of course it has the drawback that it will fail spectacularly if obama is successful at turning things around. I believe their is a much better option for the republicans that has the added benefit of not endangering the future of the country. The Republicans should try to actually fix the situation along side Obama.

Ridiculous though it sounds there is actually a path back into power by helping obama. It requires that the republicans elevate the idea of bipartisanship to a level that makes them seem like coequal in any policy discussion, take visible credit when things that are popular pass, hope everything actually succeeds and the country returns to the point of "normalcy". At that point they can take credit for the return to better times and ague that they are the better stewards of prosperity than the democrats. Essentially they try and pull a second 2000 style election. Obama comes in fixes everything up and the american people decide at that point they can afford to go in another direction.

I mentioned the importance to the republicans of keeping the idea of bipartisanship as one of the most sought after policy hurdles. This allows for policy proposals to be framed in a gop centric manner. everything will be defined as how the republicans will respond or approve and this makes them seem like the final arbiters of policy, giving them more legitimate credit claiming in the future. The democrats think that by gaining republican support for bills they gain cover if the plan fails because they can say republicans voted for it too. However, republicans will simply charge that as the party in power the Dems crafted the failure and that they tried to improve it and were stopped etc. being bipartisan simply robs democrats of the credit while keeping them responsible for the failure.

this is not a short term plan. The key to this plan is the short attention span of the american people and the press. It might seem unimaginable that the american people would forget what happened the last time they turned a surplus and peace over to the republicans but this will be eight years down the road. By assisting in the recovery the republicans can argue they were just as responsible for the turn around and that the Bush years are long gone. The media of course would be more than happy to carry that "counter intuitive" type of story.

Kos has made the argument that if the democrats pass health care and the other aspects of their agenda that they will have a lock on the power structure for a generation. I think that this fundamentally misreads the long term appreciation for a universal health care system the american people will feel. If its done early enough in the new term it has eight years to become simply another part of the american landscape. If it becomes thought of as unremarkable the democrats running on the "but we brought you health care" platform could easily find themselves out of power. Elections are generally prospective rather than retrospective and counting on legislative achievements to carry us for a generation seems incorrect.

Several bloggers, which i cant recall off the top of my head, have made the point that voting for the stimulus and working with obama would mean acknowledging that their world view was incorrect. I dont think this is quite right. they could easily claim that they were trying to work within the system to minimize the damage done by the government and that a yes vote was simply the price for that minimization.

i think the odds of republicans adopting something like this are remote to say the least. this would require much more subtlety and long term planning than republicans seem interested in. also it requires a rather meek congress that allows the republicans to continue to dictate terms of the debate without asserting dem control. There is also the problem of facing whoever comes after obama and making the case against that person as the steward of prosperity. just something to think about.


Another Sneaky Provision in Stimulus

>> Friday, February 13, 2009

The NYT is reporting that buried deep in the cavernous bill that is the economic relief bill is a provision restricting CEO compensation for the companies who take tarp money. For those who wanted restrictions on CEO compensation and thought that Sec. Geithner was too conciliatory this was a big victory.

Perhaps because he may be facing a reelection challenge, Sen. Dodd (d) Connecticut inserted the provision.

The restriction with the most bite would bar top executives from receiving bonuses exceeding one-third of their annual pay. Any bonus would have to be in the form of long-term incentives, like restricted stock, which could not be cashed out until the TARP money was repaid in full.
The biggest difference between Mr. Dodd’s provision and the Treasury rules is that the new stimulus provision would apply to any company that either has received money or will receive money in the future under the Treasury’s financial rescue program. By contrast, the plan announced by Mr. Geithner would apply only to companies that receive federal money in the future.

The revised rules do not impose a formal cap on executive compensation, unlike the Treasury proposal. Under that plan, banks were barred from paying more than $500,000 in salary until they repaid the TARP funds to the government. (Banks were permitted to offer bonuses in restricted stock.) Senator Dodd’s rules, however, go a step further, prohibiting banks from awarding restricted stock to 25 top executives equal to more than one-third of their annual cash compensation until the banks have repaid all the money owed.

As usual there are defenders of the compensation who are aghast at this provision.

But some experts on executive compensation warned that the restrictions could unleash unintended consequences, like encouraging banks to increase salaries to make up for diminished incentive pay. Even then, they warned, banks were likely to lose top talent.

“These rules will not work,” James F. Reda, an independent compensation consultant, said on Friday. “Any smart executive will (a) pay back TARP money ASAP or (b) get another job.”

Let's examine these claims. First the paying back of tarp money. If a company can pay back tarp money and remain solvent that sounds fine.= to me. The entire point is to have the money repaid. If you dont need it give it back. Are we supposed to assume that companies who actually need the money will give it back? What sense does that make? the company goes under without the money then the ceo is out of a job and is single handily responsible for sinking the company because he didnt want to limit his own pay. That person should never be in charge of another company and should be out of a job.

Second the idea that they will get another job. Fine. These banks need money because they are insolvent and not able to exist without it. That means these executives are failures. they are bad at their jobs and should look for new ones. I am very doubtful you cant find someone to take the job for the big salary offered. Its not like the smartest and best people are working at the failed banks. So who cares if they get another job unless Mr. Reda means we dont want them to sink another company.

The third claim is one made at several points in the article, that banks will just pay their executives more because there is no hard cap. I think dodd is just daring the heads of these companies to increase the actual salary to the equivalent of the current compensation. The optics for that are terrible and any ceo who tried is likely to be flayed alive by shareholders. In addition there are likely to be tax issues with doing that. The current system exists for a reason and Dodd's provision looks like it does a decent job of cutting down on the compensation.

Several of the restriction opponents discuss the lack of "pay for performance" this provision would create. This of course overlooks the fact that these people receive the money whether they suck or not. Strictly speaking there is pay for performance but it just cant exceed a third of the salary.

The opponents seem to suggest that what this restriction does is create a farm team where people could go and after proving themselves get called up to the majors where they can make the big bucks. Again, all of this must be considered in the light that this applies only to companies who take tarp money. If they repay the money, no more restrictions. So turn the company around and it all goes away.

So a this point im wiling to give dodd some props.


AP Sued Over Copyright Infringement

>> Tuesday, February 10, 2009

In an ironic turn of events the AP is now on the receiving end of a lawsuit over copyright violations. Shepard Fairey is actually suing the AP over the iconic HOPE poster. Fairey is asking the court for a declaratory judgement as to the proper copyright status of the work, specifically he is asking the judge to declare that his work is fully protected under the fair-use exception.

Before getting into the prospects for Fairey in the suit i should also note that there is actually a question over whether the AP actually owns the photo to give it standing in any lawsuit it might choose to bring in the future.

Further complicating the dispute, Mr. Garcia contends that he, not The Associated Press, owns the copyright for the photo, according to his contract with the The A.P. at the time. In a telephone interview on Monday, Mr. Garcia said he was unsure how he would proceed now that the matter had landed in court. But he said he was very happy when he found out that his photo was the source of the poster image and that he still is.

It really would be amazing to see the AP sued and held liable for attempting to claim ownership of the photo. In addition there are apparently possible criminal penalties for someone who falsely asserts a copyright ownership. Someone in the AP could theoretically go to jail if they are deemed to have fraudulently asserted claim to the copyright. This will certainly merit watching, now on to fair use....

The idea that Fairey would have a fair use defense has been kicked around the blogs a bit. That link is to an excellent discussion of the prospect at concurring opinions. The comment section is worth a definite read. Here is the argument for fair use from Daniel J. Solove professor of law at the George Washington University Law School.

Fairey's Obama poster strikes me as sufficiently different from the photo. There is certainly a resemblance, but they are far from identical.

To the extent that some elements of the photo are duplicated in the poster, it isn't clear that Obama's facial expression is unique enough to give the photographer the right to copyright all subsequent renderings of it. Can one, by taking a photo of a person, have copyright over all subsequent depictions of that person from that angle or with a particular expression or posture?

Moreover, the poster might constitute fair use. The fair use factors include:
1. the purpose and character of the use
2. the nature of the copyrighted work
3. the amount and substantiality of the portion taken, and
4. the effect of the use upon the potential market

The poster isn't a direct copy of the image. The background of the photo and other details are different in the poster. The poster is quite different in its use and nature from the photo, and the market for the poster strikes me as significantly distinct from that of the photo. The AP seems to be attempting to be money-grubbing here with this rather petty copyright claim.

Without researching all the case law to see how heavily each factor is weighted and how each is measured its hard to straight up say that it is fair use. If i had to choose though i agree with Prof. Solve that the poster is fair use though i would like to see him elaborate on the distinction he makes in the market for the photo and the poster. Both seem to be marketed to the general public and fans of obama.

Most of the law profs who commented at Concurring Opinions felt that the work was transformative enough that it would succeed under a fair use defense so there is a good chance that Fairey actually wins his declaratory judgment. It would be good to see the AP lose a copyright claim.


Holder and Obama State Secrets Doctrine Continue

Something that has made waves among the legal and civil libertarian blogosphere is the Obama administrations continuation of the State Secrets Doctrine. The doctrine was created as a means to shield things the government did not want the public from plaintiffs in lawsuits. As with everything else the Bush Administration took this powerful secrecy tool to the next level. There was a great hope that the Obama administration would curtail the practice. Things like this seemed to feed the hope,

"The attorney general has directed that senior Justice Department officials review all assertions of the state secrets privilege to ensure that is being invoked only in legally appropriate situations," Justice Department spokesman Matt Miller said yesterday.

"It's vital that we protect information that if released could jeopardize national security, but the Justice Department will ensure the privilege is not invoked to hide from the American people information about their government's actions that they have a right to know," Miller said.

Yay right? Well not so much.

"In a closely watched case involving rendition and torture, a lawyer for the Obama administration seemed to surprise a panel of federal appeals judges on Monday by pressing ahead with an argument for preserving state secrets originally developed by the Bush administration.

In the case, Binyam Mohamed, an Ethiopian native, and four other detainees filed suit against a subsidiary of Boeing for arranging flights for the Bush administration's "extraordinary rendition" program, in which terrorism suspects were secretly taken to other countries, where they say they were tortured. The Bush administration argued that the case should be dismissed because even discussing it in court could threaten national security and relations with other nations.

During the campaign, Mr. Obama harshly criticized the Bush administration's treatment of detainees, and he has broken with that administration on questions like whether to keep open the prison camp at Guantanamo Bay, Cuba. But a government lawyer, Douglas N. Letter, made the same state-secrets argument on Monday, startling several judges on the United States Court of Appeals for the Ninth Circuit.

"Is there anything material that has happened" that might have caused the Justice Department to shift its views, asked Judge Mary M. Schroeder, an appointee of President Jimmy Carter, coyly referring to the recent election.

"No, your honor," Mr. Letter replied.

Judge Schroeder asked, "The change in administration has no bearing?"

Once more, he said, "No, Your Honor." The position he was taking in court on behalf of the government had been "thoroughly vetted with the appropriate officials within the new administration," and "these are the authorized positions," he said.

What are we to make of this? Holder promised a review and apparently such a review was conducted here and it produced the same result as under Bush. Clearly then this must be a truly clear cut case for total secrecy. Again, not so much.

"A British 'resident' held at Guantanamo Bay was identified as a terrorist after confessing he had visited a 'joke' website on how to build a nuclear weapon, it was revealed last night.

Binyam Mohamed, a former UK asylum seeker, admitted to having read the 'instructions' after allegedly being beaten, hung up by his wrists for a week and having a gun held to his head in a Pakistani jail.

It was this confession that apparently convinced the CIA that they were holding a top Al Qaeda terrorist."

That this case was reviewed and the government felt compelled to maintain the same arguments is a horrifying indicator. The general problem is that there is seemingly an underlying need for a variation of the doctrine. As it was originally envisioned it was meant to keep select documents out of evidence because to reveal them would severely harm national security. While in theory this is a well founded doctrine in practice it has always been abused. The case that created it was in fact a government cover up. Glenn Greenwald has detailed the congressional efforts at reform here.

If we are going to have a doctrine of this nature it needs to be codified in law with clear intent and no wiggle room for the president. Some pieces of evidence maybe but entire cases? no. Even the government needs to be accountable to its people and embarrassment is no reason to deny justice.


Would It Take Soup Lines?

There are some people out there who just dont seem to understand exactly whats going on. These people are readily identifiable, they call themselves cable news reporters, centrists, and often republicans. These people exist in a reality all their own where nothing catastrophic could ever hurt america for any length of time. Time heals all wounds and eventually things will go on as they always have. or something. for these people i simply have to ask what would it take for them to understand that things are really really bad for a large and growing swath of the american people? Do we need soup lines on the streets of every neighborhood? do we need shanty towns occupying the parks across this country?

First, the context.

When that amount of slack in employment is taken into account, Mr. Rosenberg found that the ‘real’ unemployment rate has actually climbed to 13.9%, an all-time high for the period he studied, and up from 13.5% in December and 11.2% a year ago.

I think the people i loathe the most in this debate are actually the centrist democrats. They dont even benefit if the package fails like the republicans do. these people simply lack a basic grounding in the plight of the people the legislation effects. case and point is Sen. Ben Nelson (D-Neb.), the leader of the centrists,

I watched the interview live and it was readily apparent that Sen. Nelson simply lacked the intellectual capacity to understand the magnitude of the problem. When Rachel Maddow presses him on the fact that he made the package less stimulative he claims he didnt. this is a complete and total lie unless we believe that the money he cut was not actually going to be used. By definition if the government does anything with the money it has a stimulative effect. there may be a diminishing returns problem but no one has asserted that yet.

He simply said it was a lot of money. Yes we know that but we have a big problem. If he wants to take the thune approach and stack it all up he should also consider retirement. His claim that no one would be losing a job because of this is clearly false as those state employees who are laid off because of budget cuts will soon attest. massive budget shortfalls will be met with spending cuts and spending cuts end up meaning salary cuts.

So Sen. Nelsons conception of the problem seems to be that it is not really as serious as 900 billion or a trillion dollars. This is despite the fact that the projected productivity shortfall is upwards of two trillion dollars. The question for senator nelson is at what point he would be ok with a stimulus package that is more than the one he created? under what conditions would he have allowed that extra education funding to go through? my guess is that he needs to see soup lines outside his house and people camping on his lawn before he gets the magnitude of the economic problems were facing.

yea its a little ranty but really what the hell was he talking about with the curriculum stuff and special education? the money is already there, they were trying to give them money talking about unfunded mandates is a total nonsequiter.


President Qaddafi of the United States of Africa

>> Tuesday, February 3, 2009

This is a story that i found moderately interesting, the proposal for a United states of Africa. The catalyst for this discussion was the election of President Muammar el-Qaddafi of Libya to the Chairpersonship of the African Union. It seems a strange concept that all of Africa could untie along the E.U. model with common currency, passport, military, etc. What does this election of Qaddafi signal for the immediate future of the A.U. and Africa? How did Qaddafi get elected as the head of the A.U.? Its a more interesting story than you think.

From Foreign Policy Passport,

It's not as if the title came unexpectedly. North Africa was up for the regionally rotating seat. So beginning last summer, Qaddafi crowned himself "king of kings," quite literally by inviting 200 traditional rulers to Libya so that they might elect him. He arrived at the AU summit with seven more well-dressed kings by his side (turns out they didn't make the guest list and weren't allowed in). And once inside, Qaddafi is said to have circulated a letter with a simple message: I am king of kings, and I expect to be treated like one. No big shocker when the closed door vote put Qaddafi at the reigns.

Keeping up with Qaddafi's eccentricities is certainly an engaging pastime. But the big news is actually that he might be good at the job. The Libyan leader garners a lot of respect where it is most needed these days. In Zimbabwe, Qaddafi's credibility as a leader who has 'stood up' to the West and supported anti-apartheid in South Africa could at least win him an audience (and some sway -- should he use it) with Mugabe. Likewise, Qaddafi could do some good in Somalia where a newly elected moderate-Muslim President, Sheik Sharif Sheik Ahmed, desperately needs help holding together a weak government. Qaddafi has the oil money and religious credentials to push the right ways.

Qaddafi's main focus at the summit was the promotion of a United States of Africa. He has set a rather ambitious goal for his plan, July. In order to achieve it he has gone so far as too alter procedure to require a 2/3 vote against the proposal in order to defeat it. He created a system where silence is acceptance. How realistic is it that the African Union transforms the continent of Africa into a single nation state?

[A]n expert on the African Union called the vision of the United States of Africa a "ludicrous fantasy on the part of [Col] Gaddafi."

Kathryn Sturman at the South African Institute of International Affairs said many African leaders would not be prepared to give up their national sovereignty to join the proposed single-state federation proposed by the Libyan leader.

Ms Sturman said the chair of the group does not have any singular decision-making power, and cannot push through any changes without the consensus of the other leaders.

The idea for a United states of Africa is not new and although it seems overly ambitious to believe it will be brought about in July the idea is not to be dismissed. There are significant possible benefits to the countries and people of Africa if the manage to successfully unite into a functioning state. It would immediately increase their bargaining power on the world stage in areas such as climate change and global trade.

As always with ventures of this type there are considerations of sovereignty and nationalism to address. Even in Africa where there are numerous failed states, (somalia hasnt hada government in 18 years) and massive infrastructure problems. There is also a question of shared identity in a pan-african state.

It is very hard to create a legitimate government based on a strong federalist model where the central government is weak and the sub states have a great level of autonomy. unless the central government can exert considerable control over the substrates then it would make dealing with the internal problems of Africa like HIV/AIDs incredibly difficult. Note how hard it is to get the different african states to commit to peacekeeping missions in other african countries. If Africa were to unite the people who formerly identified as Congolese or Libyan would be required to fight in somalia and other hot spots.

Anything that manages to reduce the violence and poverty in Africa should be welcome. However the United States of Africa seems like an idea that will be long in the making. Africa has many problems that it must deal with before it is stable and successful enough to unite under one government. Colonel Qaddafi can dream but the USA II is a long way off.


Deep Into the weeds

if you have ever wanted to get really deep into the philosophy behind law and jurisprudence i recommend this blog,


it combines two of my favorite things law and philosophy, would that i was good at either.


End of the Exclusionary Rule? Pt. I.

>> Monday, February 2, 2009

Herring v. United States decision, a 5-4 majority concluded that unlawful police conduct should not require the suppression of evidence if all that was involved was isolated carelessness. The majority presents the facts of the case are as follows,

On July 7, 2004, Investigator Mark Anderson learned that Bennie Dean Herring had driven to the Coffee County Sheriff’s Department to retrieve something from his impounded truck. Herring was no stranger to law enforcement, and Anderson asked the county’s warrant clerk,Sandy Pope, to check for any outstanding warrants for Herring’s arrest. When she found none, Anderson asked Pope to check with Sharon Morgan, her counterpart in neighboring Dale County. After checking Dale County’s computer database, Morgan replied that there was an active arrest warrant for Herring’s failure to appear on a felony charge. Pope relayed the information to Anderson and asked Morgan to fax over a copy of the warrant as confirmation. Anderson and a deputy followed Herring as he left the impound lot, pulled him over, and arrested him.A search incident to the arrest revealed methamphetamine in Herring’s pocket, and a pistol (which as a felon he could not possess) in his vehicle. App. 17–23.

There had, however, been a mistake about the warrant. The Dale County sheriff’s computer records are supposed to correspond to actual arrest warrants, which the office also maintains. But when Morgan went to the files to retrieve the actual warrant to fax to Pope, Morgan was unable to find it. She called a court clerk and learned that the warrant had been recalled five months earlier. Normally when a warrant is recalled the court clerk’s office or a judge’s chambers calls Morgan, who enters the information in the sheriff’s computer database and disposes of the physical copy. For whatever reason, the information about the recall of the warrant for Herring did not appear in the database. Morgan immediately called Pope to alert her to the mix up, and Pope contacted Anderson over a secure radio. This all unfolded in 10 to 15 minutes, but Herring had already been arrested and found with the gun and drugs, just a few hundred yards from the sheriff’s office.

Chief Justice Roberts Delivered the opinion of the court,

The Fourth Amendment forbids “unreasonable searches and seizures,” and this usually requires the police to have probable cause or a warrant before making an arrest.What if an officer reasonably believes there is an out-standing arrest warrant, but that belief turns out to be wrong because of a negligent bookkeeping error by an-other police employee? The parties here agree that the ensuing arrest is still a violation of the Fourth Amendment, but dispute whether contraband found during a search incident to that arrest must be excluded in a later prosecution.

Our cases establish that such suppression is not an automatic consequence of a Fourth Amendment violation.Instead, the question turns on the culpability of the police and the potential of exclusion to deter wrongful police conduct. Here the error was the result of isolated negligence attenuated from the arrest. We hold that in these circumstances the jury should not be barred from considering all the evidence.

The Majority has three major anchors for its reasoning in this case. The first is the isolation of the conduct, the second is the conduct is negligent as opposed to reckless, and the third is the attenuation of the arrest. All three of these points work to a simple learned hand cost benefit analysis on the part of the majority. The majority asks, is the deterrence more valuable than the conviction? Their answer is no for the three reasons stated above.

The majority must engage in policy analysis as a part of their balancing equation. They do attempt to identify what deterrent value is presented by excluding the evidence. Unfortunately they assert that because the errors are not systematic or the result of intentional ignorance on the part of either Dale or Coffee County there would be no deterrence value. This i think is flagrantly wrong as the dissent by Justice Ginsburg makes clear,

The exclusionary rule, the Court suggests, is capable of only marginal deterrence when the misconduct at issue is merely careless, not intentional or reckless. See ante, at 9,11. The suggestion runs counter to a foundational premise of tort law—that liability for negligence, i.e., lack of due care, creates an incentive to act with greater care. The Government so acknowledges. See Brief for United States 21; cf. Reply Brief 12.

That the mistake here involved the failure to make a computer entry hardly means that application of the exclusionary rule would have minimal value. “Just as the risk of respondeat superior liability encourages employers to supervise . . . their employees’ conduct [more carefully],so the risk of exclusion of evidence encourages policymakers and systems managers to monitor the performance of the systems they install and the personnel employed to operate those systems.” Evans, 514 U. S., at 29, n. 5 (GINSBURG, J., dissenting).

Consider the potential impact of a decision applying the exclusionary rule in this case. As earlier observed, see supra, at 2, the record indicates that there is no electronic connection between the warrant database of the Dale County Sheriff’s Department and that of the County Circuit Clerk’s office, which is located in the basement of the same building. App. 39–40, 43, 45. When a warrant is recalled, one of the “many different people that have access to th[e] warrants,” id., at 60, must find the hard copy of the warrant in the “two or three different places” where the department houses warrants, id., at 41, return it to the Clerk’s office, and manually update the Department’s database, see id., at 60. The record reflects no routine practice of checking the database for accuracy, and the failure to remove the entry for Herring’s warrant was not discovered until Investigator Anderson sought to pursue Herring five months later. Is it not altogether obvious that the Department could take further precautions to ensure the integrity of its database? The Sheriff’s Department “is in a position to remedy the situation and might well do so if the exclusionary rule is there to remove the incentive to do otherwise.” 1 W. LaFave, Search and Seizure §1.8(e), p. 313 (4th ed. 2004). See also Evans, 514
U. S., at 21 (STEVENS, J., dissenting).

It hardly seems like it should go without saying but the definition of negligence is that your conduct was unreasonable and that you should have done better. The 4th amendment expressly forbids unreasonable searches and seizures. The majority bifurcates the conduct of the arresting officers seemingly in the face of the Leon precedent which requires that the Court look at the conduct of all the officers involved. This would invite the treatment of the Dale County officers present in the dissent and also breaks down the idea of attenuation presented by he majority.

The dissent illustrates a real world policy impact that the interconnection of modern law enforcement presents. The database of one police department may be linked to countless others not only in neighboring counties but around the country. It is a common occurrence that the actions taken by police not at the scene or in the neighboring counties will cause arrests. If we are dealing in the objective realities as the majority contends then we should not excuse negligent conduct that leads to an arrest as somehow unconnected to the actual stop.

Databases are becoming an essential tool for law enforcement and we should be interested in keeping those records as up to date as possible. The majority glosses over this point by relying on the idea that a "systematic" failure to update the databases would lead to exclusion but the definition of systematic is more than likely a high burden. After all the warrant in error in this case went 5 months without being resolved and in this fast passed world 5 months is a very long time.

The final point that the dissent makes that i think the majority was well aware of and in fact encourages is the lack of due process, day in court, for the violation of the acknowledged 4th amendment right. The majority appears to believe that the violation does not warrant redress because the conduct is not intentional. I cannot disagree more strongly. To eliminate redress for the violation of a constitutional right neglects to treat to constitution and the rights it contains with proper respect. To expect police officers who earn convictions to be reprimanded is asking a lot.

There is always a backlash when accused criminals go despite no culpability on the part of arresting officers. Here though the fact that the negligence was a result of police conduct should negate any of those arguments. The police as a whole are not clean in this and they should have been penalized for the negligence they displayed in this case. However the majority felt otherwise.

Next time i will explore the idea that the rule is in danger of being eliminated in its entirety.


Ink Stained Hands

Reading the reports of the voting in Iraq one thing has become clear, the Iraqis have an excellent system for identifying those who vote and those who dont. Poli Sci research has shown that one of the most effective ways to get people to vote is social pressure and the possibility of being identified as the person who didnt vote. In Iraq the means of identifying those who have done their civic duty is far more effective than the "i voted" sticker handed out at american polling places.

If your not familiar with the Iraq ink system for identifying voters here is a description courtesy of the NYT

Next, each voter will place his or her ballot inside a locked box - and then the piece de resistance of Iraqi elections will take place: Voters will dip their index finger into a vat of indelible ink, which is done to try to prevent people from casting multiple ballots.

In the past, Iraq has used purple ink for this purpose. This time, the color is literally a state secret. Members of the election commission will only say the ink will come from outside the country.

While the design of the program is to increase the trust and legitimacy of the elections the side effect has been to create a point of pride for the iraqi citizenry. Some who dont vote have even tried to replicate the ink process so as to avoid being singled out as a nonvoter,

New York Times stringer in Mosul – HIS FAMILY VOTED.

As a journalist stationed in one voting center, I was not able to vote. It made me very sad at heart that I was sitting out these elections (especially after boycotting the last ones).

After work I rushed to my assigned voting center only to find it long closed. I started blaming myself for not voting before heading to duty. At home, I was overjoyed to see my family’s purple forefingers. I hid my hand in my pocket, slipped to my room and dipped my finger in a bottle of ink. Not out of fear but out of a desire to be part of this great experience.

People underestimate the importance of a social symbol like the ink stained fingers to the construction of a democratic society. It adds cohesiveness by linking the voting citizens to the national identity. In addition, the more prominent the symbol the more people will be driven to obtain it. In the case of an "i voted" display this can only increase participation in the democratic process, something needed in systems that lack legitimacy or where boycotts are common.

One issue with a system where the voter is physically marked in this manner is that it tends to discriminate against absentee voting. I am sure that if a similar ink based system was implemented here in the states that absentee voters would be taken into account. The Democrats have been trying to increase absentee voting as much as possible so it seems like they would want to alleviate any potential discouraging factors.

Looking that the turnout in Iraq there seems to have been a number of logistical problems that prevented turnout from reaching the point many thought it would. These problems include the curfew, failing to find your name on the voting registration and the inability to reach the polling place of registration due to displacement. These problems can be mitigated in future elections and that they indicate the desire to vote instead of apathy is a good sign.

If the Times is to believed the early returns from the election seem to indicate a strengthening of the secular parties and support for current prime minister al-maliki. An increase in the strength of secular parties is also something i would consider to be healthy for the future of an iraqi democracy. I am partial to liberal western rights and that conception and the freedoms that come with it for women, glbt, and minorities will not be likely under an islamic theocracy.

For voting stories from iraq read, here.


The Man of Steele

>> Sunday, February 1, 2009

Most of the coverage of Michael Steele has focused on the prospect of increasing diversity in the republican party. what apparently has been lost in the shuffle is that he is not a good political strategist. his take on the stimulus bill is classic for how short sighted it is.

"[T]he goose egg that you laid on the president's desk was just beautiful. Absolutely beautiful."

Steele apparently lives in the same bubble that all house gop members live in where hoover is king. Steele lives in a world where factual evidence is completely and totally ignored. For example,

Steele couldn't praise [House Republicans] enough, and at times, he was at a loss for words. "You and I know that in the history of mankind and womankind, government -- federal, state or local -- has never created one job," he said. "It's destroyed a lot of them."

Putting aside the fact that Steele was at one point the Lt. Gov of Maryland, someone actually employed by the government, to claim government does not create jobs is insane. The basic essence of a job is being paid to do something. The government pays millions of people to do things. When we buy military supplies or pencils we need someone to make those and the government is enabling their employment with those contracts. The entire military is employed by the government. Marine, Sailor, Fighter Pilot, all are government jobs.

I would like to give Steele the benefit of the doubt and assume he meant something that makes sense but really i dont know what it is. the traditional conservative argument is that the private sector is the most efficient and best creator of jobs not that government is incapable. apparently steele's leadership is taking them to the next level.


O-le,O-le, O-le, O-le! O-le, O-le!

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