December 31, 2013

And You Thought [Insert Crappy Beer Name]* Tasted Like Piss!

Ignore the headline on this article from the Atlantic - it's the kind of thing that comes from running an excerpt adapted from a book as a standalone article.  It doesn't purport to prove what it promises, but there's an interesting bit of history buried in it.  Besides, I clicked on it, so you, gentle reader(s), must bear some consequences, right?

In an all-too-slight discussion of whether the roots of religion can be traced to the use of hallucinogenic plants and the like, the article detours into a discussion of one particular plant, Amanita muscaria or "fly agaric," which is described as "certainly the world's most famous mushroom."  Whatever that means (it gets good tables at restaurants?).  It's available all over the globe, used everywhere from northern Asia to Mexico, and (by one telling) may be the basis for the substance Soma discussed in ancient Hindu scriptures.

But that's not the interesting, and mildly amusing, part.  No, that comes courtesy of Philip Johan von Strahlenberg, a colonel in the Swedish army of the early 18th century.  See, for 21 years at the beginning of the century Sweden (and others) fought a war with Russia (and others), during which von Strahlenberg became a prisoner of war.  He spent 12 years in Siberia and, in 1736, wrote a book about his observations of the locals:
Among other things he described the use of Amanita muscaria as an intoxicant by the local people. He also noted the following unusual behavior: 'The poorer Sort, who cannot afford to lay in a Store of these Mushrooms, post themselves, on these Ocassions, round the Huts of the Rich, and watch the Opportunity of the Guests coming down to make Water; And then hold a Wooden Bowl to receive the Urine, which they drink off greedily, as having still some Virtue of the Mushroom in it, and by this way they also get Drunk.'
Lest you think this is just a Swede with a grudge making fun of the locals, the practice first revealed by von Strahlenberg was confirmed by further observation.  Said observation provided more details on the practice, including the fact that the shroom is so potent that:
it was observed that the drinking of drug-containing urine could continue for up to five cycles passing from one individual to another before the urine lost its capacity for intoxication.
When it comes to getting fucked up, human beings can be a pretty determined and resourceful lot (one of many reasons the War on (Some) Drugs is such a farce).  Think paint huffers or addicts who, when the find out they can no longer crush Oxycontin pills, turn to the next best thing - heroin.  Regardless, drinking piss has to rank right up there on the list of WTF ideas.

* I'm not a beer drinker.  I wasn't even a drinker at all until I met my wife (boy does that sound worse than it really is!).  In order to provide verisimilitude to you, dear reader(s), I asked around for a good example of a shitty beer that might be said to taste like piss.  Sadly, I got too many varying answers to make it possible to choose one.  Apparently a lot of it tastes like piss, so I'm not really missing anything.  So, in order to get the full snark experience, please insert the name of your least favorite beer - the kind you'd take to a mortal enemy's party - in this spot.

December 27, 2013

Friday Review Year In Review

2013 wasn't the most productive year here at Feeding the Silence, but if there was one thing I returned to time and again, even in fairly fallow periods, it was the Friday Review.  Partly, I'm sure, that's because if I have something to say about a movie, album, or book this is the best place to do it.  It's also due to the fact that, based on page views at least (meager though they be), this feature is fairly popular.  So, here's what you might have missed in the past 12 months:




More to come in 2014!

December 25, 2013

Christmas Treats!

To commemorate the festive occasion, have a little Christmas classic, reimagined by our friends in the Great White North:

Alas, not every Christmas song can be of such lasting quality.  Revel in this complete destruction of a disturbingly awful recent example, which is richly deserves (NSFW, naturally):

Merry Christmas, Happy Holidays, Sweet Saturnalia, etc. from the crew here at FtS!

December 23, 2013

Of Persons, Legally Speaking

I've written before about the Supreme Court's Citizens United decision and about how I generally think the Court got it right.  Now, I concede there are legitimate arguments that they didn't and I'm open to the argument that decision had a negative effect on the last election, but that's not really a concern of the First Amendment.  But my biggest pet peeve when I hear people (on the left, mostly) complain about Citizens United is when they insist the Court made some sort of sweeping, never before contemplated, holding about corporations being "people" in some sort of legal sense.

I bring this up because the idea of what constitutes a "person" legally has raised its head in a couple of cases the Court has accepted for review dealing with the Affordable Care Act's contraceptive coverage mandate.  There's some argument that because the Court found a corporation's First Amendment right to free speech was violated in Citizen's United, it will do the same with a corporation's putative Free Exercise rights.  But that's not quite the right question to ask.

Eric Posner dives into this a little bit, bringing in another recent legal case championed by the political left - an attempt to use New York's habeas corpus statute on behalf of chimpanzees being held in captivity.  He makes a couple of important observations.

First, he explains how the concept of non-humans being legal "persons" is not only not a new thing, but essential to the workings of the law:
The law also treats various nonhuman, nonsentient entities as 'persons' for certain legal purposes. Corporations, estates, trusts, partnerships, and government entities are often defined this way. Walmart, Illinois, and the California Pension Fund can sue, for example, without anyone asking if they have a right to abortion. Sometimes, corporations can bring suit (or be sued) because a statute explicitly gives 'persons' that right, and defines 'persons' to include corporations. At other times, the statute does not define 'persons,' but courts interpret the word to include corporations because they believe that is what Congress intended. This transubstantiation of corporations into persons advances some pretty uncontroversial policy goals. If corporations lacked personhood, you couldn’t sue FedEx for crashing a van into your car, or Walmart for selling you a defective space heater that burns down your home, or J.P. Morgan for defrauding you when you get a lemon mortgage. You wouldn’t be able to enter into contracts with a corporation at all. Legislatures and courts have been treating corporations like persons for hundreds of years: There is even a general interpretive rule in the law that when Congress says 'persons,' it means corporations as well, unless the context of the statute provides otherwise.
In other words, we want corporations to be persons sometimes because, if not, they'd exist wholly outside the law.

The other point he makes, which I think is important, is that in cases like the ACA one or the chimp habeas one, the ultimate issue is whether the particular statute it issue was meant to include itself in that group of applications where corporations are persons.

Hobby Lobby’s opponents do not argue that RFRA doesn’t apply to corporations—they can’t, because it is undisputed that the statute applies to nonprofit corporations like the Catholic Church. The argument instead is that Congress did not intend RFRA to apply to for-profit, commercial corporations. Whoever is right, the answer turns on what Congress intended, not the metaphysics of personal identity.
This, I think, is a particularly important part when it comes to any big deal Supreme Court case.  In the media those tend to get boiled down into one or two grand issues, great questions of metaphysics and politics that capture popular attention.  In actuality, it's almost always more technical than that, wrapped up in procedural oddities that make it impossible for the Court to really take such questions on directly.

So, when Mitt Romney famously (and politically tone deafly) said, "corporations are people, my friend," he was neither completely wrong nor right.  Sometimes they are, sometimes they aren't.  And it's been that way for a long long time.

December 20, 2013

Friday Review: The Weight of the World

In spite of what Foreigner says, it never really feels like the first time.  There's just something about the spark of discovery that can't be replicated.  That's true of music as much as it is of, well, other things.

When Sanguine Hum took the stage at ROSFest 2012 I hadn't heard note one from them.  They only had one album out and I was perfectly willing to wait and see what they were all about in a live setting.  That worked out well, as they completely blew me away.  I went out and got a hold everything related to the band I could, from their album Diving Bell to a pair of EPs by a prior incarnation of the band called Antique Seeking Nuns.  I even tracked down an electronic side project called Nunbient. I was musically smitten.

Then, this year, along came The Weight of the World.  A new album!  Oh, joy!  Oh, rapture!  Oh . . . hey, wait a minute.  This isn't quite the same, is it?  No, this time I've got some idea what to expect going in.  The result, as it happened, was that the new album landed in my mind with a kind of depressing thunk.  It wasn't bad, certainly, but wasn't brain rattlingly brilliant.

That was months ago.

Now, I'm pretty convinced that The Weight of the World is, in fact, brain rattlingly brilliant.  It takes the style of Diving Bell, refines it even further and adds some neat extras (some imported from Nunbient, to my pleasant surprise).

Take "From the Ground Up," which opens the album with just a synthy beat and vocals, unlike anything from Diving Bell.  Things get more "organic" once the whole band joins in (Matt Barber favors a lot of Rhodes piano, which is far from a bad thing) and the long, lilting vocal lines sit atop winding guitar and synth lines.  Similar touches of electronica infuse "Cognoscenti" and the exponential spiraling of "Day of Release," as well.  A couple other tracks, including the instrumental "In Code," conjure a Zappa-esque feel with some finely crafted tuned percussion work.  All this leads to the epic title track, which wraps up everything in neat, if sprawling, package.

In the end, it's hard to pin down just what it is about Sanguine Hum that hits my musical sweet spot.  Their music is dense, layered, and complex but doesn't come off as "complicated" just for the sake of it.  In other words, the band doesn't scream "progressive rock," it's just as proggy as it wants to be.  On the other hand, it's generally melodic and tuneful, but with a dark edge to it that doesn't exactly leave you walking down the street whistling. Antinque Seeking Nuns had a Canterbury-ish sense of humor that's lacking, or at least tempered by serious melancholy, in Sanguine Hum.  Maybe that's it - that combination, leavened with a heavy dose of genuine Englishness, curdles into something I just can't resist.  It doesn't sound like anything else out there, that's for certain.

Regardless, The Weight of the World lives up to its ambitions and is, if not the very best album of the year, certainly one of them. So, no, it's not like the first time.  It's even better.

The Weight of the World, by Sanguine Hum
Released 2013

1. From The Ground Up (5:35)
2. System For Solution (8:02)
3. In Code (4:35)
4. Cognoscenti (3:57)
5. Day Of Release (5:51)
6. Phosphor (3:04)
7. The Weight Of The World, Parts 1 to 3 (14:51)

Matt Baber (keyboards, drum programming)
Joff Winks (guitar, vocals)
Brad Waissman (bass)
Andrew Booker (drums)

December 18, 2013

Changing the Labels Doesn't Change Reality

I'd like to think I'm above falling for click-bait headlines, but I guess I'm as susceptible to it as anyone else.  So, when I saw the subheadline on this piece at Reason - "Would a free society be a crime-free society?" - I just couldn't help myself.  Shame that the substance doesn't live up to the promise.

To be fair, Sheldon Richman says right off the bat that he's not Utopian and doesn't:
foresee a future of new human beings who consistently respect the rights of others.
Rather, he investigates the historical distinction between crimes - wrongs committed against and punished by the state - and torts, which are private causes of actions individuals bring against each other in order to be made whole again.  In simple terms, a murder is a crime and will result in the perpetrator being sent to prison, while medical malpractice is a tort, resulting in someone (an insurance carrier, most likely) making the victim whole via monetary compensation.

The history itself is interesting.  As Richman explains, tort once reigned above all.  It was only as English kings began to accrue more power (and, Richman argues, quest for more money) that more things became crimes.  Richman sees this development as something "[l]iberty-minded people should regret," although it happened centuries ago.  He argues, while stating that the reasons are "too obvious to need elaboration," that a justice system aimed solely at restitution is more preferable to what we've got now.

I can't say I buy that, possibly because I occasionally deal with clients who are ordered to pay restitution, in the rare case where there's an actual victim involved.  The sad fact is, for a lot of people, paying full restitution simply isn't an option.  Furthermore, you'll still need some kind of coercive agency with the power to force those who can pay to actually do so.

Aside from practical considerations, I'm not sure restitution as the goal of the system is theoretically feasible.  Most tort cases involve monetary damages that can fairly easily ascertained.  But how does one determine the proper amount of restitution for murder?  Or rape?  Or some kind of systematic problem like perjury?  It just doesn't lend itself well to those kinds of crimes.

In the end, all this is sort of pointless because Richman doesn't show how any revised system would eliminate crime itself, it would just change the labels.  There may be different ways to deal with the aftermath of somebody whapping me over the head with a crow bar or kidnapping somebody's child, but regardless of what you call the system those are still crimes as any modern person would call them.  Sadly, Richman had it right when he said that people aren't simply going to start behaving nicely anytime soon.

I'm sympathetic to what, I think, is Richman's underlying point - that the prevalence of victimless crimes is something that ought to be of concern to anybody who thinks "freedom" is a good idea.  As I said, the current criminal justice system is clogged with people charged with offenses that have no actual victim.  But swinging all the way to the other direction and thinking, just by switching a label, that we can eliminate victims is just silly.

On a side note, I find it ironic that a libertarian and/or anarchist would resort to dealing with a problem simply by changing the label on it.  That doesn't make the problem go away, just obscures it for a while.  It's a favorite tool of repressive governments everywhere.  As Babylon 5 once had a character explain when asked when all the problems on Earth - homelessness, crime, unemployment - were solved:
When we rewrote the dictionary.
In the end, it's a trick, and not even a very clever one.

December 17, 2013

You Wouldn't Like Them When They're Angry

When courts review an encounter between a cop and a member of the public to see whether the Fourth Amendment prohibition against unreasonable searches and seizures has been breached, they do so by evaluating the "totality of the circumstances."  That is, facts that, taken in isolation might appear innocent, can be given a not-so-innocent meaning when evaluated in context.  As a result, it's hard sometimes to say just what behavior will get you in trouble with cops and what won't.

To take just one example, in US v. Foreman, 369 F.3d 776 (4th Cir. 2004), a driver was pulled over based in part on the driver's "lack of eye contact" with the officer.  The court upheld the stop, but one of the judges noted (citations omitted):
[The officer's] instant reliance on [the driver's] lack of eye contact is at odds with the government's stance in other cases, in which officers attempt to ground reasonable suspicion — and sometimes successfully do so — on the fact that an individual looks or stares back at them.
In other words, it's hard sometimes to figure out just how to behave when there's a cop about.

One thing, however, is for certain - if you make a cop angry, you will most likely regret it.  As noted legal theorist Chris Rock once explained in a related context, if you make the cops chase you, you can be damned sure they're bringing an ass kicking with them.  Similarly, YouTube is littered with clips of drivers who, during a traffic stop, piss off the officer and wind up getting tasered (or worse) for their sin.

This came up most recently in one of the odder crimes to circle the Web, the theft of electricity.

Earlier this month, a Georgia man plugged his Nissan Leaf into an outlet on the outside of a school to recharge.  According to the man, he did this while watching his son play tennis at the school courts.  Later, rather famously, he was arrested for theft for stealing what appears to be, about, five cents worth of electricity.

Putting to one side the whole issue of whether this is either really a crime or, if it is, one that warrants 15 hours worth of detention after arrest, consider the police version of events.  In it, an officer responds to a 911 call and found the car hooked up at the loading dock.  Then:
a man on the courts told the officer that the man playing tennis with him owned the vehicle. The officer went to the courts and interviewed the vehicle owner. The officer's initial incident report gives a good indication of how difficult and argumentative the individual was to deal with. He made no attempt to apologize or simply say oops and he wouldn't do it again. Instead he continued being argumentative, acknowledged he did not have permission and then accused the officer of having damaged his car door.

* * *

Given the uncooperative attitude and accusations of damage to his vehicle, the officer chose to document the incident on an incident report. The report was listed as misdemeanor theft by taking.
The emphasis is mine.  You'll rarely find it so boldly stated - this guy got charged with a crime because he was an asshole to the cop.  Granted, it's never wise to argue with a cop, particularly if it looks like he's not going to write you up for anything (if you get pulled over and the cop says you were doing 75 and you were only doing 73, if he's going to let you off with a warning why argue the point?), but that's still not a really good basis to charge someone with a crime, either.

Having said that, sometimes you can be too nice.

In Ohio, an officer pulled over someone for going 45 in a 35 zone.  As a court later related:
Patrolman Haslar approached Fontaine’s vehicle, advised him of the reason for the stop, and then requested his driver’s license, proof of insurance, and registration, which Fontaine immediately provided. Patrolman Haslar further stated that, during this exchange, he became suspicious of criminal activity. Specifically, Patrolman Haslar testified as follows: 'While speaking to Mr. Fontaine I felt that his body language and his behavior was a little bit unusual. He was extremely — like almost overly polite, and he was breathing heavily at times while I was talking to him.'
Calling this "reasonable suspicion" (the lowest measure of evidence needed to justify a search), the officer patted down the driver and a second officer arrived with a drug dog.  Some pot and a gun were found in the car and the driver was arrested.

Thankfully, the trial court suppressed that evidence.  Even more thankfully, the appeals court shot down an appeal by the state, agreeing that being "overly polite" and breathing heavily weren't enough to constitute reasonable suspicion.  Still, the fact that it was even arguable shows how far down the rabbit hole we've gone when it comes to the Fourth Amendment.

December 13, 2013

Friday Review: Earth Abides

If Isherwood Williams is the future of the human race, perhaps best just to let it go and call it an eon.

I sometimes have a problem coming to things too late.  By the time I saw The Godfather and its sequel, the culture was so saturated in mob stories - from Casino and Goodfellas to The Sopranos (did I mention I came to it late?) - that it didn't seem fresh or all that interesting.  That's not a knock on its quality, just that it didn't really do it for me.

I get the same vibe from Earth Abides.  It is one of the first, if not the very first, examples of the post-apocalyptic "last man on Earth" subgenre of science fiction.  Published in 1949, it's won its share of acollades, including inaugural International Fantasy Award.  Heck, the version I read/listened to was even introduced by Connie Willis, no slouch herself.

So why doesn't Earth Abides do anything for me?  No, scratch that - why did it encouraged in me a positive loathing, at least at times?  Certainly part of it has to do with the genre itself having been played out ad nauseum over the ensuing decades.  The vistas of empty cities, decaying landmarks, overgrown lawns, and the like are all fairly common now.  Same for the struggle to survive in a world where the conveniences of modern life are gone.

That's certainly part of it, but a large part of my negative opinion of Earth Abides is that it is deeply entwined with its lead character, a hero who really is anything but.

Said hero, referred to as Ish for most of the book, is at an isloated cabin in the woods near San Francisco when some kind pandemic hits that wipes most of humanity off the Earth.  How he escapes that fate isn't really explained (it may have something to do with an infection from a rattlesnake bite he was fending off), but that's not important.  What is important is that when Ish comes down from the mountains to rejoin society, society's pretty much gone.

Early on Ish cites his background as a geographer and his termperment as giving him the perfect tools to observe how the planet will reclaim itself without mankind around to mess things up.  While this leads to some interesting digressions into the survival (or not) of particular environments or critters, it also, unfortunately, highlights the fact that Ish (and the author) are much more interested in watching than doing.  In fact, my main problem with the book is that we're trapped in Ish's head most of the time, even when he describes events that could serve as narrative jumping off points for some real drama.

A perfect exmaple - the book is divided into three main parts and covers over fourty years.  However, most of those years are blazed through in a pair of chapters in which Ish simply ticks of things that happend, including births and deaths that impact the makeup of the little tribe that just might be the future of the human race.  In addition to giving short shrift to those kinds of events, this allows Ish (and the author, by extension) to ignore lots of potential conflicts that could arise among a few dozen people trying to make a go of it after the world goes to shit.  There's very little dialog and even less tension, since everything is filtered through the lens of Ish's perception

Which is a major problem, because Ish is, sad to say, pretty much an asshole (I haven't disliked a main character this much since I read The Magicians).  His stand offishness doesn't come off as a chacater trait that will make it difficult to integrate with the new world, a barrier to overcome (which might have been interesting).  Instead, it's part of a smug superiority complex about himself compared to the rest of what's left of humanity.  Most of the first half of the book is taken up by an epic transcontinental journey during which Ish meets some other survivors, none of whom measure up to his standards for companionship.  Once he returns to the San Francisco area and settles down things get no better.  He repeatedly puts down the others in his little group as being stupid, not interested in intellectual matters, and generally inferior to him.  None of them are up to the task of rebuilding civilization, which Ish thinks is important, but not important enough to ever do anything about.  All of this wouldn't be so bad if we had something other than Ish's word to go by, but since we rarely see anybody else in action it's hard not to think he's just an elitest prick.

It doesn't help that Ish is very much a creature of his time.  The women of his little group (again, by his description only) are good for little more than house keeping, baby making, and a generic sense of "strength" in the face of even more generic adversity.  The one exception is Evie, a grown woman with some kind of mental deficiency or developmental disability.  For the most part she's simply an other, always kept apart from the tribe's subgroups when Ish feels the need to give us a census.  He even muses about killing her simply to be done with her and the problems she presents.

Evie's only part to play in the story is when an outsider, Charlie, comes to town with two of the younger men who have made another (aborted) transcontinental journey.  He's immediately "trouble" and starts to move in on Evie, probably giving her the only real attention she's recieved in years.  Ish is concerned and it's easy to see why - it looks like Charlie intends to take sexual advantage of a woman who's not metnally competent.  Good for Ish.  Only, it turns out, Ish's real concern is not for Evie's individual rights or bodily integrity, but that the resulting offspring would be idiots and, thus, drag the tribe down.  When Ish and a few others decide to off Charlie, it's less out of a sense of protecting an innocent than from some misguided low-tech eugenic concern.

It also doesn't help matters that Ish constantly changes the way he feels about the world lost and the world as it might be when he's gone.  On the one hand, he belittles some of his companions for holding onto memories of things from the old world that won't return for a long time, if ever.  On the other, he extols the virtue of books and the need to consume the knowledge in them, even if he never finds anyone worthy of his pursuit of that knowledge.  He wants someone to rebuild civilization, but it's never clear why as he didn't seem to have much fondness for it.

Which, oddly, counts for the greatest strength of Earth Abides.  For all its faults, the story itself is not the stereotypical one of surivovors picking up the pieces of a shattered world and trying to rebuild it.  Instead, Ish and his fellows just live, for years and years (all to easily, if we're honest), without undertaking great quests or schemes for rebuilding.  That's not the direction most works in the genre it helped spawn take, so kudos for that.

I recognize the prime place Earth Abides has in the genre's history.  And I recognize that, read at an earlier time with a more open mind, perhaps it would have a great impact on a reader (as it has to many others).  But on the verge of 2014, I have to admit that I just don't get it.  Earth may abide, but I don't think I'd be able to abide Ish for very long.

The Details
Earth Abides
By George R. Stewart
Published 1949
Winner, International Fantasy Award (1951)

December 11, 2013

Will Work for Beer

I am so totally not making this up.

Not to be outdone by the Swedes closing prisons left and right, the Dutch have discovered another frontier of substance abuse treatment.

Amsterdam has a problem with litter. It also has a problem with alcoholics. The solution? Smush 'em together like a penalogical Reese cup:
Fred Schiphorst finally landed a job last year and is determined to keep it. He gets up at 5:30 a.m., walks his dog and then puts on a red tie, ready to clean litter from the streets of eastern Amsterdam. 
* * *
His workday begins unfailingly at 9 a.m. — with two cans of beer, a down payment on a salary paid mostly in alcohol. He gets two more cans at lunch and then another can or, if all goes smoothly, two to round off a productive day.
But, as the Dutch equivalent of Ron Popeil might say, that's not all. Schiphorst and others similarly employed also get lunch, some tobacco, and 10 euros a day (about $14 according to today's exchange rate). It's an attractive offer, as the program has a lengthy waiting list.

Nor is it as crazy as it sounds:
The basic idea is to extend to alcoholics an approach first developed to help heroin addicts, who have for years been provided with free methadone, a less dangerous substitute, in a controlled environment that provides access to health workers and counselors.
'If you just say, ‘Stop drinking and we will help you,’ it doesn’t work,' said Mr. Wijnands, whose foundation gets 80 percent of its financing from the state and runs four drug consumption rooms with free needles for hardened addicts. 'But if you say, ‘I will give you work for a few cans of beer during the day,’ they like it.'
And it appears to be working, giving the folks involved an alternative to "just sitting in the park and drinking themselves to death." The guys doing the cleaning are positive about it, as are the local residents who had to deal with the aforementioned park drinkers. Prior police-oriented crackdowns did nothing other than move the alcoholics around and lead to fights with cops.

At bottom, this appears to be a good example of how to deal with substance abuse issues. It views these folks as human beings in need of assistance, not as rogues flaunting the law. This is a public health issue, not a criminal one.

Finally, credit where credit is due, the idea did not originate in the home of Amstel and Heineken. That honor goes to our friends up north, where the Molson and Moosehead roam.

December 9, 2013

Score One For Sweden

Ah, Sweden.  'tis a wonderful place, with a deep well of excellent prog bands, from the bucolic symphonic splendor of The Flower Kings to the brutal RIO of Gosta Berling's Saga. It is a place where, so the song says, "the coulds are nice," where "the weather's realy pleasin' and they have good rice."  Then, of course, there are Volvos.

Now they've got another thing to add to the "pro" column, at a time when most other countires, and certainly ours, can't hope to match them - they're closing prisons (via):
Sweden has experienced such a sharp fall in the number of prison admissions in the past two years that it has decided to close down four prisons and a remand centre.

'We have seen an out-of-the-ordinary decline in the number of inmates,' said Nils Öberg, the head of Sweden's prison and probation services. 'Now we have the opportunity to close down a part of our infrastructure that we don't need at this point of time.'
Before you say, "well of course they're going to shut down prisons when the crime rate drops," keep in mind that the crime rate in the United States - particular the violent crime rate (you know, where there are actual victims) - has been going down for decades.  

In spite of that (although some will argue because of that), we put more people in prison than any other place on Earth:
The US has a prison population of 2,239,751, equivalent to 716 people per 100,000. 

China ranks second with 1,640,000 people behind bars, or 121 people per 100,000, while Russia's inmates are 681,600, amounting to 475 individuals per 100,000.
The Swedes, by contrast, lock up only about 76 of every 100,000 people, good for either 112th or 180th in the world, depending on who's counting.

To what do the Swedes attribute this sudden surplus of prisons?  Part of it stems from a recent court decision that limited drug sentences, but part of it is also a reflection of:
Sweden's liberal prison approach, with its strong focus on rehabilitating prisoners.
In fact, in the editorial announcing the numbers Öberg argued:
Sweden needed to work even harder on rehabilitating prisoners, doing more to help them once they had returned to society.
Can you imagine something similar happening in this country?  Think about how those prison closures would quickly become economic issues.  After all, so many poor rural communities are tying their futures to the booming prison business, who's to say that closing prisons wouldn't wind up like trying to get rid of weapons systems the Pentagon doesn't want because of the pork associated with their production?  At best, we'd wind up with a bunch of uselessly open empty prisons.  At worst, the powers that be would find new and devious ways to keep them full.

So, congrats, Sweden on your sudden excess of punitive real estate.  Please don't sell them off to any Americans, OK?  It's hard enough to keep my clients close to home as is.

December 5, 2013

What I've Been Up To

Hello again, gentle reader(s). In case anybody's wondering where I've been and what I've been up to the past couple of months, here's the info.

Largely, things have been quiet here at FTS because I haven't had a lot to say about what's going on in the world. There's only so many times you can look at political bullshit going on in the world and say, "is't that some political bullshit?" The powers that be provide us with lots of said excrement, but its not really worth talking about.

For the past month I've largely directed my creative energies toward National Novel Writing Month, as usual. This year was different because my project for Nano was a sequel. The Endless Hills is book two of the trilogy that began with The Water Road back in 2009. That tome, along with last year's project, Moore Hollow, are both to the point where I'm ready to do something with them, but I'm not sure what that something should be.

When I started writing fiction in earnest several years ago I never really gave any thought to what would happen when I had a "finished" product.  I didn't do it to find a new career or seek stardom, although it would be nice for people (aside from my lovely, supportive, and insightful wife) to read the stuff.  To the extent that I started with short stories the process there is pretty straightforward - finish story, polish 'til it gleams, submit it directly to magazine/website/anthology. No muss, no fuss, but plenty of rejection.

Speaking of short stories, I've joined an online critique group, Critters, that caters to writers of sci-fi, fantasy, and horror.  The deal is that in return for reading and critiquing the work of others, they do the same for you.  I've found it extremely helpful, particularly reading what other people are writing.  It forces you to think critically about a story, what its trying to do, how it might do it, etc.  That really carries over to your own writing.  The feedback I've gotten on a couple of short stories has been very helpful.

I also got a chance to take in my first West Virginia Writers conference up in Elkins. It was a good chance to hang out with like minded folks and learn some good stuff.  It certainly won't be my last.

But back to publishing novels, which is a whole different story from shorts. If you want to publish with one of the big houses, you need to get an agent first. That means sending queries and manuscripts out all over the place and hoping they connect. If you are interested in working with a smaller press you can submit directly to them, but the query/manuscript process is largely the same (frustratingly, just about everybody does it a little bit differently). Either route will give you what most people think of as "real" publishing - an editor, cover designer, layout specialists, and all that. It's the gold standard.

On the other hand there's the increasingly respectable avenue of self publishing, particularly in electronic (Kindle, etc.) format and particularly in the sci-fin/fantasy ghetto in which I live. The author retains completely control (and a bigger cut of sales), but you have to either contract out all the work a publisher normally does or do it yourself, which opens up all kinds of potential problems. In addition, marketing primarily electronic books seems like a real effort. All in all, I'm not sure I'm up for it.

Regardless, any decision on which way to go (or to go one way with one book and another with the other) is put off until the first draft of The Endless Hills is done. It's a bit more complex than The Water Road. That book only had two main characters with stories that paralleled each other. This one's got about eight "main" characters, many of which converge at one point, but many others don't. Lots of plates to keep spinning!

Musically, I've got a song in the can that needs mixed and given a new name. The working title is too stupid, even for me. It starts out heavily indebted to OMD's "The New Stone Age," but then goes in a different direction. I've also embarked on a cover of "Kashmir," so we'll see how that goes.

That's it. Regular service (or semi-regular, at least), resumes next week.

November 30, 2013

I've Been a Bit Busy


50,317 words for November. If it's predecessor was any indication, there's about 85,000 words left to go before a first draft is done.  Nonetheless, it feels good to set a goal and meet it.

More details on this project, and others, in a few days.

Until then, hooray for me!

October 18, 2013

Friday Review: Compliance

Some movies are labeled “inspired by a true story” to avoid lawsuits and distance the film from the real life inspiration. Others are labeled that way because, if they didn’t, you’d think “there’s no way this kind of shit could really happen.” (Still others do it just to fake you out).

Compliance needs the label because what happens on screen shouldn’t ever happen in real life, but it did.

Between the mid 1990s and mid 2000s there were a string of incidents – more than 70 in all – in which a man would call some retail establishment, claim to be a cop, and convince a manager to “investigate” an underling for some alleged offense. The orders included a strip search, confinement while waiting for the “police” to arrive, and a constant search for purloined funds (for a lengthy article about the scam see here).

Compliance dramatizes the basic outline of one of most heinous incidents – one that progressed so far that it included forced oral sex and cavity searches. Along the way, it asks an awful lot of questions about why people do things others tell them, based on nothing more than what the courts call, in another context, “apparent authority.”

Compliance tells the story of Becky, a 19-year old front-counter employee at a nondescript chicken-based fast food joint. Her manager, Sandra, has lots of things on her mind - $1500 in spoiled food, a “fiancé” who won’t pop the question, and a parcel full of unenthused teens for a workforce – when a man calling himself “Officer Daniels” calls. He accuses Becky of stealing from a customer within the last hour. He also claims that he has the customer with him, that there’s video surveillance of the whole thing, and he’s got Sandra’s boss on the other line. Won’t she help him with this investigation?

Of course she says yes, even though she’s seen nothing to suggest Becky is a thief. The caller uses that initial agreement to drive Sandra (and, eventually, her would-be fiancé) into being his agent on the scene, doing all sorts of degrading things to Becky in the name of “clearing things up” and keeping Becky from being taken to jail.

One of the interesting dynamics in the film is how there are multiple levels of “compliance” happening. First, and most obviously, there’s Sandra who acquiesces to the authority of an alleged cop and, to a lesser extent, her boss. Second, there’s the dynamic between Sandra who has to both bring some of her employees into the action or, at the very least, fend off their questions about what’s going on. In the end, they defer to their boss. Finally, and more esoterically, there’s the entire idea that regular ideas about how the world works should come to a grinding halt in order to secure evidence of criminal wrongdoing. It hangs over the people involved here just as much as it did to folks in Boston when parts of the city were locked down following the Boston Marathon bombing.

Particularly fascinating to my defense lawyer brain was how Sandra used the certainty of Becky’s guilt to keep her own underlings in line. The incident as described by the “cop” doesn’t really make any sense – as several other employees point out. It would have caused a huge scene and the allegedly wronged party would’ve sought out Sandra to complain (indeed, we see another customer complain about a poorly made sandwich – it’s a tough crowd!). Nevertheless, whatever doubt Sandra has about Becky’s guilt is suppressed on behalf of a clear narrative – there’s been a crime, I’m in charge, don’t fuck with me.

In the end, a little bit of skepticism on Sandra’s part would have gone a long way toward averting the whole situation. A simple call to her superior or to the police to confirm the investigation (we learn in a postscript that the police station is only a few blocks away) would have put an end to the farce from the beginning. But that requires the ability to disbelieve, which is hard for some people to do, particularly when it comes to people presented as authority figures. Compliance shows how far some people will go without pushing back against that kind of authority.

The Details
Released 2012
Directed & written by Craig Zobel
Starring Ann Dowd, Dreama Walker, Pat Healy, et. al.

October 2, 2013

We Won! But We Still Suck!

Sorry, this post isn’t about my alma mater’s football team, who managed a complete turnaround to dump Oklahoma State last weekend. Although, hey, woo-hoo for that, right?

No, this is about the stunning cap to the horrible year another of my sports crushes has had, that being DC United. Take a look at the current standings in MLS’s Eastern Conference and you’ll see why:

Not only are they at the bottom of the standings, they’d have to stretch quite a bit to even be the next-to-worst team in the table. For comparison’s sake, the walking disaster that is Chivas USA, the floor in the West, is on 26 points. What’s even worse is that DC had a great surge at the end of last season, returning to the playoffs and making it to the Eastern Conference final (vanquishing NYRB along the way – joy!). Things should have been better this year, or at least not this much worse.

Which is what makes last night all the more confounding and impressive.

This season marks the 100th year of the US Open Cup. This is the American equivalent to the English FA Cup and similar competitions across the world – knock-out competitions (as opposed to league play), generally open to a wide swath of teams from various levels within the country. Essentially, it’s a national championship. It’s fabled, particularly in England, for matches when the lower-division underdogs upset the top-division fat cats.

Well, last night, DC knocked off Real Salt Lake – first place in the West, 1 point behind NYRB for tops in MLS – in Salt Lake to win this year’s Open Cup, 1-0. The lowest of underdogs knocked down Goliath. Thank you, Lewis Neal, for the goal!

As a DC fan I am, of course, quite pleased. It doesn’t erase the turd of a season the team’s had in MLS, but hardware is hardware and hopefully it will be a springboard leading to turning things around next year. But it does make me wonder if such an upset is part of what keeps the broader American sporting public from caring about the Open Cup. After all, the final was consigned to broadcast on GolTV, which isn’t even available on DirecTV or Dish Network anymore. That’s disappointing in an era when soccer is widening its reach on “real” TV – why, even this past Sunday, NBC took a moment during their primetime NFL pregame show to run through the Premier League scores from the weekend.

Honestly, I think the whole process confuses casual fans. In American sports there is one competition, one goal. Every NFL team has one preferred endpoint for the season – winning the Super Bowl. There is no ancillary glory to be won along the way. An English Premier League team, on the other hand, begins the season looking at several ways to win glory – the league itself, the FA Cup, the League Cup, not to mention European competitions. At the end of the NFL season, there is one champ to rule them all. By next spring in England there will be several.

So I’m not sure that the Open Cup fits well into the consciousness of the typical American sports fan. Which is a shame, because it’s a competition with a rich history that rivals the World Series or Stanley Cup and is more ancient than anything professional football or basketball has to offer. It deserves more attention.

And, hey - my team won it this year!

September 18, 2013

Getting High, Rationally

Many years ago I saw a documentary on HBO about a community of meth users somewhere in the Midwest (I want to say Missouri, but don’t hold me to that). This was before meth exploded into the national consciousness, but the behavior of those folks matched preconceptions of how addicts (of cocaine or heroin, in prior ages) behaved. All they cared about was the hit, the rush, and they’d do whatever it took to make the next score.

But what if that’s not right? What if the decision by most drug users to get high is as rational as your decision about what to have for dinner? That doesn’t fit the stereotype of the out of control junkie, but research is starting to show that might be the case.

The New York Times has an interesting profile of a researcher who has studied how addicts behave in terms of how they decide to get high. He’s got a good reason to be interested in the issue:
Long before he brought people into his laboratory at Columbia University to smoke crack cocaine, Carl Hart saw its effects firsthand. Growing up in poverty, he watched relatives become crack addicts, living in squalor and stealing from their mothers. Childhood friends ended up in prisons and morgues.
Hart’s research has suggested that the popular conception of the drug user isn’t accurate:
when he began studying addicts, he saw that drugs weren’t so irresistible after all.

‘Eighty to 90 percent of people who use crack and methamphetamine don’t get addicted,’ said Dr. Hart, an associate professor of psychology. ‘And the small number who do become addicted are nothing like the popular caricatures.’
Hart conducted studies – first with crack cocaine users, then meth users – in which they received a hit in the morning (of “pharmaceutical-grade cocaine,” which must be some good shit) and then offered them a choice later in the day: more drugs or some economic reward (money or store vouchers) in its place. Starting a $5, Hart found that users who had a smaller hit in the morning would take the money later in the day. Users who got a big dose in the morning still chose more drugs.

Later, however, he upped the reward:
He also found that when he raised the alternative reward to $20, every single addict, of meth and crack alike, chose the cash. They knew they wouldn’t receive it until the experiment ended weeks later, but they were still willing to pass up an immediate high.
Which means what, exactly, for how society should view drug use and addiction? It’s actually pretty obvious, if you think about it:
Crack and meth may be especially troublesome in some poor neighborhoods and rural areas, but not because the drugs themselves are so potent.

‘If you’re living in a poor neighborhood deprived of options, there’s a certain rationality to keep taking a drug that will give you some temporary pleasure,’ Dr. Hart said in an interview, arguing that the caricature of enslaved crack addicts comes from a misinterpretation of the famous rat experiments.

‘The key factor is the environment, whether you’re talking about humans or rats,’ Dr. Hart said. ‘The rats that keep pressing the lever for cocaine are the ones who are stressed out because they’ve been raised in solitary conditions and have no other options. But when you enrich their environment, and give them access to sweets and let them play with other rats, they stop pressing the lever.’
Which brings me back to the Missouri meth crowd from the HBO doc years ago. For about the first half hour you think, “holy shit, these people are pathetic junkies,” but the more you notice the world around them, the more you start to think it’s not hard to see why they’d seek any kind of respite they could.

That’s why the War on (Some) Drugs is bound to always be a losing proposition – you’re not fighting an enemy on a battlefield, you’re battling a basic human desire to feel better and to escape the world around you, if only for a moment.

August 19, 2013

I Am Not Dead

So, hey, everybody – what’s up?

It occurred to me over the weekend that it’s been more than a month since I posted something here. So I thought I’d just pop my head up to say that I’m not dead. I haven’t been set upon by a marauding horde of art snobs or what have you. I just haven’t had much to say that’s blogworthly lately. That and I’ve been expending my creative energies making music and writing (well, polishing) fiction.

I’ll be back, at some point, when I find something about which I can’t keep my virtual mouth shut. Until then . . .

July 18, 2013

Stick Your High Art Where the Sun Don’t Shine!

OK, not really. I’ve got nothing against what most people think of as “high” art – I enjoy quite a bit of it – I just object to the classification. Regardless of how well-meaning or merely taxonomic it strives to be, it carries an implied judgment of “low” art as being, somehow, not worth as much. By further implication, it suggests that those who enjoy or make “low” art are somehow lesser than those who deal with “high” art.

I bring this up because of a recent essay over at the New York Times philosophy blog by Gary Gutting (with an assist from Virginia Woolf) about the divergence. Along the way, he appears to argue that musical worth, at least (it’s unclear if his metrics would apply to literature, film, or visual arts) can actually be quantified and judged objectively.

Along the way, he lays down this assertion:
Centuries of unresolved philosophical debate show that there is, in fact, little hope of refuting someone who insists on a thoroughly relativist view of art. We should not expect, for example, to provide a definition of beauty (or some other criterion of artistic excellence) that we can use to prove to all doubters that, say, Mozart’s 40th Symphony is objectively superior as art to ‘I Want to Hold Your Hand.’ But in practice there is no need for such a proof, since hardly anyone really holds the relativist view.
* raises hand *

I’m not sure how many of us there are, but I for one will proudly admit to being a relativist on the quality of art. Someone’s interaction with art is so personal, so bound up in the quirks of our own experiences, that it’s impossible to convert that interaction to some kind of objective measurement. For the record, I’m not ignoring the objective fact of consensus – that I like something a majority of the world can’t stand doesn’t make them right and me wrong, but it does mean I’m swimming against the current.

Anyway, back to the philosopher, who continues:
We may say, ‘You can’t argue about taste,’ but when it comes to art we care about, we almost always do.
Well, yeah, people will argue about things that matter to them, be it art, politics, or sports. Just because we do doesn’t mean the arguments can be won on some kind of objective scale. Humans will argue about anything!

He goes on:
You may, for example, maintain that the Stones were superior to the Beatles (or vice versa) because their music is more complex, less derivative, and has greater emotional range and deeper intellectual content. Here you are putting forward objective standards from which you argue for a band’s superiority. Arguing from such criteria implicitly rejects the view that artistic evaluations are simply matters of personal taste. You are giving reasons for your view that you think others ought to accept
Several things strike me as wrong about this.

The most important one, I think, is that Gutting is conflating the manner in which someone defends a preference with the actual basis upon which that preference rests. I’ve listened to an awful lot of music in my four decades on the planet, from the most popular radio hits to the most obscure wind band compositions. A lot of those I’ve listened to because of “hey, if you liked X, you’ll like Y, too” recommendations. I’m not sure they’re worth any more than a coin flip when it comes to predicting whether I’ll like it or not. Some things move me, some things don’t. The same is true for everybody, isn’t it?

More likely, these “objective” standards upon which Gutting relies are not the considerations we have when we decides something moves us, but post-hoc rationalizations to try and explain why that thing moved us. At the end of the day, I can’t really say why I prefer Marillion to Magma.* I suppose I could dig into the construction of the various songs and come up with some reasons for it, but they’d be meaningless. Most of the time, I’d rather listen to Brave than Udu Wudu. But sometimes not, you know? I can’t really tell you why.

Gutting’s reference to “objective” standards make me think of people who argue about whether one athlete is better than another when they’re separated by decades. Yes, statistics will be trotted out to support argue that Pele is better than Lionel Messi (or vice versa), but they don’t prove anything. Too many years have passed, the game has changed, etc. Ultimately, we have our favorite in mind before the argument begins and scramble to find some justification for it. If it was as simple as “consult these objective measurements” there’d be nothing to argue about.

Another flaw in Gutter’s presentation is assuming that those things he lists are “objective” to begin with. I’ll give him a pass on complexity for now (although more of that later), but the others have not just some, but large amounts of, subjectivity inherent in them. Whether something is “derivative” is a value judgment, in the end. Any musician is influenced by other music she’s heard and is, to some point, derivative of what’s come before. What’s the dividing line for being too derivative? What if it’s a parody, pastiche, or homage, anyway? Even more untethered from objective measurement are a piece’s “emotional range” and “intellectual content.”

As for complexity, how to measure it and what it means isn’t readily apparent. “Complex” generally implies some amount of difficulty, but any musician will tell you that sometimes playing something “simple” precisely and with musicality is more difficult than playing something that’s a tangled flurry of notes. Furthermore, that something is more complex doesn’t make it inherently more likely to connect with the listener. Quite the opposite, in fact. Returning to the Marillion/Magma example, few would argue if you called Magma’s more complex, but that wouldn’t lead inexorably to a conclusion that it was superior. For some folks it would be, for some folks it wouldn’t. For some people, there is a point where there are simply too many notes.

For another thing, using complexity as some sort of taxonomic tool fails to conflate like with like. Of course a three-minute song recorded in the early days of multitrack recording by four guys is less “complex” than a half-hour long symphony written to be performed by a full orchestra made up of dozens of people. So what? How does that help us judge either piece? It’s like saying desert is less nutritious than the main course – it utterly misses the point.

Someone in the comments to Gutter’s piece trotted out Duke Ellington’s aphorism:
There are simply two kinds of music, good music and the other kind
But even that’s not quite right – there’s what you like and what you don’t; what moves you and what doesn’t; what you want to hear and what you don’t. That a lot of people agree with you, or a consensus develops down through history that a particular work is a masterpiece doesn’t change that.

At the end of the day, as I said, art is personal. To label some of it “high” and some of it “low” throws up class barriers where none really exist. People like what they like. Sometimes, they like the same stuff you do. Sometimes they don’t. Deal with it.

* Before I get any angry letters in Kobaïan, I dig Vander’s bunch when I’m in the mood. Don’t take it personally.

July 16, 2013

Quick Hits

As usual, when I disappear for a few weeks, things start to pile up. Here’s a few interesting things that passed through my field of vision in the recent past.

Good News on Private Prisons?

I’ve written before about the evil of privatizing prisons, replacing one of the state’s core functions (under anybody’s idea of how big the “state” should be) with businesspeople in pursuit of a healthier bottom line. Shockingly, it turns out that when the bottom line is in play, things at the prison actually go to shit. It’s gotten so bad that several states have backed out of their contracts (via).

Admittedly, it’s hard to ignore stuff like this:
Idaho cut ties with the corporation on Wednesday, which turned the state’s largest prison into a violent hellhole inmates called ‘Gladiator School.’ Earlier this year, CCA was caught understaffing the prison and using prison gangs to control the population. The company admitted to falsifying nearly 4,800 hours of staffing records to squeeze more money out of the state for nonexistent security work. Shift logs at the prison showed the same security guards working for 2 to 3 days at a time without breaks.
Similar conditions popped up in Mississippi and Texas (in two different facilities). My cynical side thinks that the only way the private prison movement gets turned back is when it turns out they actually cost more than doing it the old fashioned way. Maybe I’m wrong. I’d like to be.

Your Militarized Police Force

Radley Balko has written for years about abusive police tactics and the Fourth Amendment, first over at Reason and more recently at Huffington Post. In the current issue of the ABA Journal he provides an overview of the rise of militarism in American police forces and how it manifests itself every day. He writes:
Today in America SWAT teams violently smash into private homes more than 100 times per day. The vast majority of these raids are to enforce laws against consensual crimes. In many cities, police departments have given up the traditional blue uniforms for “battle dress uniforms” modeled after soldier attire.

* * *

But it isn’t just drugs. Aggressive, SWAT-style tactics are now used to raid neighborhood poker games, doctors’ offices, bars and restaurants, and head shops—despite the fact that the targets of these raids pose little threat to anyone. This sort of force was once reserved as the last option to defuse a dangerous situation. It’s increasingly used as the first option to apprehend people who aren’t dangerous at all.
Read the whole thing, and don’t forget the various statistical tables and what not spread throughout. The explosion in the number of SWAT teams (and their deployment) over the past few decades is staggering. Balko makes a pretty good argument that the growth is driven by money, particularly a federal grant program with the name Byrne attached to it (unfortunately).

Oh, and they shoot dogs too. Lots of ‘em.

Judicial Idiocy, With a Prosecutorial Assist

Courtroom misbehavior has to really be of the prime variety to surprise me anymore these days, but this situation certainly meets that high standard.

Let’s set the scene – a courtroom in Texas, where a criminal trial is underway. A prosecutor in the gallery (not the one actually trying the case) gets a text, suggesting a line of questioning for the prosecutor to pursue. She scribbled the text “word for word” and has her investigator run the not up to the prosecutor. Now, guess who sent the text?

The trial judge.

That’s right. The judge presiding in a criminal case gave advice to the prosecution appearing before her in that case! Even worse – or at least equally bad – is that the other prosecutor, used as a conduit for the message, didn’t think twice about passing it on. The only positive note is that the investigator reported the judge, probably at the risk of losing his own job.

But the absolute icing on the cake of idiocy? That conduit prosecutor who passed on the note? She’s a judge now, too. Of course she is!

July 11, 2013

Your Facebook Friends Are Not Legal Authority

The other day I took a little dig at Roger Dean (or his lawyers, actually) for including in his lawsuit against James Cameron an assertion that his claims were “backed up by ‘numerous comments on the internet.’” Sadly, I only had to wait another day for an even sillier version of the appeal-to-the-Internet legal argument to appear, and in a much more local dispute, to boot.

Wyoming County is nestled within the southern West Virginia coal fields, having been carved from neighboring Logan County in the middle of the 19th century. Last week, a group of local religious folks built a Ten Commandments monument on the courthouse lawn, uninvited and without permission (or warning, apparently). What’s going to happen to it now is, of course, a source of controversy.

The county prosecutor, who doubles as the county attorney,* sees nothing problematic about the display. In reaching that decision, he consulted the ultimate authority:
Cochrane asked his Facebook friends for feedback and about 280 people of 300 responded in favor of the monument.
Thankfully, we’re not to the point where legal questions – much less ones of Constitutional magnitude – are resolved by Facebook plebiscite.

Cochrane’s advice to the county commission is to do nothing, right now, and let the monument stay. To his credit, he’s on record as supporting the placement of other monuments, including, perhaps, one like American Atheists recently put up in Florida to complement another Ten Commandments monument. That’s because, presumably, Cochrane has some familiarity with the concept of a public forum.

The Supreme Court has recognized that what speech a government is required to allow in a particular area is largely determined by how open to the public that area is. Traditional public forums – think sidewalks and such – are nearly wide open and are subject only to content-neutral time, place, and manner restrictions. Other areas can become public forums based on governmental action.

The Fourth Circuit dealt with a good example of the public forum issue recently. It arose in a case from Lexington, Virginia in which the Sons of Confederate Veterans wanted to put up Confederate flags on some city light poles in honor of Lee-Jackson Day (a state holiday in the Old Dominion). The city agreed, but after protests from the citizenry it instituted a new policy for such displays that limited flags hung from the city poles to those of the United States, Virginia, and the city of Lexington.

The SCV sued, arguing that the city’s decision violated their First Amendment rights. The court disagreed and upheld the dismissal of the lawsuit. The court noted that prior to the revision in city policy they light poles had been a limited public forum, open to all groups and used by, among others, the city’s two universities. However, by adopting the new policy and limiting the displays to government flags, it closed the public forum. Notably, the court shot down the SCV argument that an improper motive for closing the public forum was a First Amendment violation in and of itself.

So, the citizens of Wyoming County likely have two options – leave the Ten Commandments monument up as part of a public forum that welcomes others or take it down and close the forum to religious speech altogether to avoid running into Establishment Clause problems. For, when he says this:
Cochrane said the issue is whether the monument promotes Christianity over other religions, and he doesn't think it does. 
* * * 
‘I researched different religions as far as whether the Ten Commandments is discriminatory or not,’ Cochrane said. ‘Basically a type of Ten Commandments is cut across a lot of religions.’ 
* * * 
The monument promotes laws that are based on some of the commandments and not any religion, he said. Also many people recognize the Ten Commandments as a universal code of conduct.
Cochrane is utterly wrong. Yes, the Ten Commandments includes some broad, general, moral principles to which most people would agree (don’t kill, lie, etc.), though those are hardly unique to Judaism, Christianity, or Islam. However, several of the Ten Commandments are explicitly about the proper worship and adoration of the Abrahamic God:
  • I am the Lord thy God 
  • Thou shalt have no other gods before me
  • Thou shalt not make unto thee any graven image 
  • Thou shalt not take the name of the Lord thy God in vain
Anyone who thinks those apply to “a lot of religions” is in the same headspace as the waitress at Bob’s Country Bunker, who explained that they have “both kinds” of music there – “country and western!” Those are religious directives, explicitly at odds with not only the directives of other religions with billions of believers around the world but with those of us who have no religion at all.

It’s perfectly OK to believe them yourself, to put them up in your house or on your lawn. But if you want the allure of state backing, by putting them up next to the courthouse, you’ve got to invite others to play, too.

* In most of the smaller West Virginia counties, the prosecutor does this kind of double duty, advising the county commission on civil legal matters.

July 9, 2013

Lawyers Come Out of the Sky, They Sue There

Let’s be honest, the only thing Avatar really had going for it was that it was visual eye candy, a truly impressive thing to look at. I mean, come on, the “Dances With Smurfs” plot was old and hackneyed when Eric Cartman came up with it! But, at least, the move was pretty to look at and immersed you in something you’d never seen before. Unless, of course, you’re a fan of Yes or Asia or many other prog (and related) bands. Not for nothin’, but when Avatar first broke a good number of prog lovers made the point that Pandora looked an awful lot like some of the album covers done by Roger Dean for those bands (and others). Things like:

Yes, Fragile (1971)

Yes, Yessongs (1973)

Yes, Keys to Ascension (1996)

Asia (1982)

Uriah Heep, Sea of Light (1995)

Now Dean has filed suit against James Cameron, looking for a cut of the bounty Avatar raked in (and that the in-production sequel surely will as well):
In his legal action, Mr Dean - described in the papers as ‘an international artist and designer, whose evocative and visionary images... created a new genre of work’ - has claimed Cameron had ‘studied and referenced his art in preparation for the film’. The papers continued: ‘The similarities of each such work are substantial, continuing, and direct so as to rule out any accidental copying or similarity in scenes common to the genre.’
Now, I’m not an IP lawyer, but I wonder how much of a case Dean really has here. For one thing, the history of art is a history of appropriation, between which and outright theft there’s a slim and sometimes blurry boundary. For another, I’m not sure this:
Mr Dean said his claims were backed up by ‘numerous comments on the internet’.
counts as controlling, or even persuasive, legal authority. On the other hand, as this article points out with some side-by-side comparisons, the similarities are striking. And it’s not as if Cameron is completely ignorant of the potential influence:
Meanwhile, since we pointed out the resemblance between Avatar and Roger Dean’s artwork a month ago, there’s been a flurry of discussion on the subject online. Entertainment Weekly asked director James Cameron whether he got his idea for the floating mountains from a Yes cover, and he laughed. ‘It might have been... Back in my pot-smoking days.’
Those are some mighty profitable weed sessions, then, James. Throw Roger a bone for the homage that was much of Avatar. It’ll at least keep him from designing the state set for Yes’s next cruise ship adventure (for which we’ll all be thankful).

June 20, 2013

A State By Any Other Name

A century and a half ago, today, my home state actually became a state. So, happy birthday, West Virginia! But, did you know, West Virginia almost had a different name? And if it had, might things have worked out a little differently for those of us born without an aunt in Richmond (or, for Charlestonians, near the beach)? When the voters of the counties that would become West Virginia voted (mostly) not to leave the Union, the name originally given to the area was Kanawha, after the Kanawha River that flows through Charleston and into the Ohio. That did not go over very well when the Wheeling convention drafting the new state’s constitution got underway in December 1861. One delegate objected, arguing:
one reason I have for striking it out is that I am a Virginian. . . . It always makes me think of the Virgin Mary, the mother of our blessed Redeemer. It is a name that I almost revere; and I am utterly opposed to leaving it out and substituting the name ‘Kanawha’ in its stead.
Some other delegates harrumphed the importance of maintaining a link to Virginia. Another objected that naming the state Kanawha would lead to confusion with Kanawha County. He concluded:
Therefore I can see no peculiar claim that Kanawha has. There is a very pretty river there of this name - nice river - but there is no particular euphony in the name; or perhaps no claim from historical considerations. I do not know of any.
Anyone who’s heard someone from out of state try to pronounce “Kanawha” has to admit it does have some problems in the euphony department. Still another objecting delegate noted the beauty of the Kanawha river and valley and “suppose[d] they are very clever people,” which is a wonderfully backhanded compliment. Other names were proposed – Western Virginia, New Virginia, Columbia, Allegheny, Augusta and, of course, West Virginia.* It prevailed overwhelmingly in the final vote (getting three times more votes than poor Kanawha). While one of the reasons given for not naming the new state Kanawha was to avoid confusion with the already extant Kanawha County, there were similar concerns expressed about having “Virginia” in the name, too:
this thing may have some practical effect. You are so attached to Virginia that you are unwilling to lose the name. You look for immigration from other states. Will it be one of the means of inducing them to come here that you tell them that this is Virginia still - that you are to create the impression that Virginia policy is still to govern? Gentlemen, let that impression go abroad through the land, and the very name of Virginia, the very idea that Virginia may still prevail over this portion of the State, will prevent hundreds and thousands from coming within your borders.
Another delegate was more blunt:
Sir, there is more in this than perhaps I have said. If you make an agreement with eastern Virginia that after the division takes place, one is to be called East and the other West, or one is to be called Old Virginia and the other New, there might be less impropriety in it; for then it would indicate a division of territory, but, sir, under any circumstances they are to retain the name. They are to be Virginia and we are to be Little Virginia or New Virginia, or West Virginia, or some other soubriquet which is to degrade us in comparison with them. That is what gentlemen are driving at, sir.
Those concerns turned out to be valid. Sure, there are other states with geographically based names, but they’re complimentary to each other – North Dakota has its South Dakota, South Carolina has its North Carolina. But there is no East Virginia, just plain old Virginia. Making things more confusing, there is still an area referred to as western Virginia (a large hunk of which, to make things even more confusing, lies to the south of West Virginia!). It’s not hard to have sympathy for folks raised elsewhere who can’t really separate West Virginia from the old commonwealth (hence the “an aunt in Richmond” joke).

Would our founding fathers have been wise to listen to those concerns and choose a name that was completely unique? It probably wouldn’t have hurt. But I doubt it would had made a huge difference over the past 150 years. A name is not destiny and West Virginia’s current state has more to do with geography, shifting economic winds, and good ole’ fashioned political shenanigans than anything else.

Besides, regardless of what the state would have been called, it would still be Almost Heaven. Still full of beautiful vistas and babbling mountain streams, deep green mountains and rolling valleys. It would still be home to the same kind of slightly-out-of-step-with-modernity population it has today. Whatever it was called, West Virginia would still be West Virginia.

And, hey, if Futurama’s any guide (and when has it led you astray?), we’ll get our revenge on the mother commonwealth:

We’ll just have to wait another thousand years or so.

* NOTE: I’ve always seen “Vandalia” listed as one of the proposed names, but I don’t see it in this transcript, at least. Wikipedia includes it, however. Make of that what you will.

June 18, 2013

Are You a Copyright Scofflaw?

That sounds like an odd question to ask in the 21st Century, in the era of Bittorrent, when the breakthrough of Napster fades like a crumbling building in the rear view mirror, doesn’t it? But I’m not talking about anything electronic, anything dealing with the Internet, or even the complaints that the modern generation thinks everything should be free. I’m talking low tech. I’m talking old school. I’m talking something you do only around your closest family and most dear friends. I did it just this past Sunday. I’m talking . . . about singing “Happy Birthday.” Yes, that’s right, it appears that “Happy Birthday” is copyright protected:
If you want to sing the song on TV, or in a restaurant, or whatever, you have to pay a licensing fee to Warner/Chappell, the music company that owns the rights. The company makes about $2 million a year off the song, according to one estimate. 
* * *
The story of the song is long and weirdly complex. The short version is: A pair of sisters published a song called ‘Good Morning to You’ in 1893. Over the next few decades, the song morphed into ‘Happy Birthday to You.’ In the 1920s and '30s, a couple versions of the birthday song were published in copyrighted songbooks.
That’s why, for instance, when you see some poor schmuck being embarrassed by a phalanx of unenthused waitpersons on her birthday at some restaurant they’re never actually singing “Happy Birthday.” It’s cheaper to have someone write a song just for that chain (and, hey, you get the brand out there more!). But that may soon change, thanks to director Jennifer Nelson, who made a documentary on the song’s history and place in the culture. When it came time to put an actual performance of the song in the film, she found she had to pay Warner/Chappell $1500. She’s not alone:
Ms. Nelson is not the first documentarian to confront the issue of paying to use the Happy Birthday song. The filmmaker Steve James paid $5,000 to use the song in the acclaimed 1994 documentary ‘Hoop Dreams,’ in which it is sung at a man’s 18th birthday party. ‘It was an important scene,’ Mr. James said in a 2005 article in The New York Times, ‘there was some amazement that Arthur had made it to 18. Of course, we wanted that in.’
What Nelson has done is take the whole matter to court, seeking to have the song declared part of the public domain (the suit is based on work done in a law review article a few years ago). I don’t know enough about copyright law (or the tortured history of “Happy Birthday”) to offer an opinion on her chances of winning. I hope she does, though. Who needs the threat of Warner/Chappel’s enforcers breaking down your door just as the cake and ice cream gets handed out?

June 14, 2013

Friday Review: The Raven That Refused to Sing (and Other Stories)

I’ve had a strange relationship with Steven Wilson. Or with his music, anyway.

My first exposure to his stuff was Porcupine Tree’s The Sky Moves Sideways, which left me completely unimpressed. It wasn’t until I heard Porcupine Tree in their later, more streamlined Stupid Dream phase (via a webcast of their set at NEARFest) that something clicked. I’ve been a fan since, although I’ve not dug back into the older stuff (Sky . . . still doesn’t really do it for me).

Given that Porcupine Tree is essentially Wilson’s baby, it made sense to check out his other stuff. I really like most of what I’ve heard of No-Man (his collaboration with vocalist Tim Bowness) and would really like to get my hands on his droney ambient project Bass Communion (they’re maddeningly hard to come by). So when Wilson went “solo,” such as it was, I came along for the ride.

His first album, Insurgentes, mined a lot of his influences that were tangential to progressive rock, if they had any relation at all. As such, it’s not overtly “proggy,” but has a pan-genre inclusiveness to it that makes it really interesting. I like it more than most people, however. Grace for Drowning, his second effort, wore the influences of his work remixing the King Crimson catalog and went down a much more prog-through-the-lens-of-jazz path. In spite of an amazing list of collaborators, Grace . . . has never done much for me.

Which brings us to The Raven That Refused to Sing (and Other Stories). To tour Grace . . . Wilson put together a killer band that included Marco Minnemann, Theo Travis, and Nick Beggs. From that tour he took those guys right back into the studio for The Raven . . .., hoping to capture some of the energy of the live shows.

The result is pretty impressive, even though it doesn’t get me as excited as it does many prog fans. The Raven sounds even more like an homage to 70s symphonic prog, right down to the extensive use of the original King Crimson Mellotron (it pays to be friends with Bob Fripp). It’s used to particularly good effect near the end of “Luminol,” which in other places fires off riffs that remind me of “21st Century Schizoid Man” (or, more recently, another Wilson collaborator – Steve Hackett’s “Mechanical Bride”). The highlight for me is “Holy Drinker,” with some fantastic organ and synth bits. The title track is also a beautiful, mournful cap to the whole experience.

I’ve lived with Grace for Drowning since it came out, waiting for it to grow on me and rip my head off. It’s never happened. But in the few weeks I’ve had to digest The Raven . . ., I’ve found myself warming to it noticeably. Not an immediate “wow,” but definitely an impressive, layered grower. There’s nothing wrong with that.

The Raven That Refused to Sing (and Other Stories), by Steven Wilson
Released 2012

1. Luminol (12:10)
2. Drive Home (7:37)
3. The Holy Drinker (10:13)
4. The Pin Drop (5:03)
5. The Watchmaker (11:43)
6. The Raven That Refused To Sing (7:57)

Guthrie Govan (lead guitar)
Nick Beggs (bass, Stick, backing vocals)
Marco Minnemann (drums, percussion)
Adam Holzman (Rhodes, Hammond, piano, Minimoog)
Theo Travis (saxophone, flute, clarinet)
Steven Wilson (vocals, guitars, bass keyboards, Mellotron)

June 13, 2013

Another Take On Punishment and Rehabilitation

Two words I would not associate with the criminal justice system are “swift” and “certain.”

Take a conversation I had with a client a couple of weeks ago. I was explaining the prospects for his case on appeal, digging into the procedure of the Fourth Circuit and how the whole thing worked. At the end, I had to tell him that, even if we won on appeal (it’s a nice issue, but you never know, right?) that would be about a year after he was sentenced. Patience isn’t just a virtue for those in the criminal justice system, it’s an essential.

Thing is, the system works the same way regardless of how you’re swept into it. A murder case may be more factually complex than a probation revocation, but the broad strokes are the same – you get charged for doing something wrong, you go to court to argue about it, and some sentence is imposed if you’re guilty. It may take months, if not years, to reach the end point, but which time who can remember what the hell you did to make it here in the first place?

One judge in Hawaii came up with what might be a better way, at least when it comes to probation/parole/supervised release violators. Judge Alm (a former US Attorney) came onto the bench in 2001 and immediately found the current system for such folks problematic and not very effective. So he switched things around:
The program, called Hawaii’s Opportunity Probation with Enforcement, or HOPE, is based on simple precepts that the judge who created it likened to ‘Parenting 101.’ It immediately jails, for no more than three or four days, offenders who miss a probation appointment or fail a drug test. Operating under the theory that judicial punishment should be ‘swift, certain, and proportionate,’ it seeks to turn around behavior that the system ordinarily, though inadvertently, seems to perpetuate. A proffered meth pipe attains a new significance, the thinking goes, when it comes attached to the prospect of an immediate three-day tour behind bars. Moreover, such brief, predictably enforced jail stays are congenial to prisoners used to a more unpredictable and, to their minds, arbitrary system.
So simple, but it appears to be working:
Participants in HOPE were 55 percent less likely than members of a control group to be arrested for a new crime, 72 percent less likely to use drugs, and 53 percent less likely to have their probation revoked. As a result, they served 48 percent fewer days of incarceration.
As a result, HOPE-like programs have appeared in over a dozen states.

Of course, a program like that can really only happen in a supervisory context, where probationers are required to follow lots of rules that don’t apply to regular folks. It’s not clear to me how you could apply the swift/certain punishment idea in new criminal cases without running into serious due process issues.

One interesting observation of those in the HOPE program involves their perception of the process:
’Ordinarily, when you ask an inmate why he’s behind bars, it’s always someone else’s fault,’ Hawken said. ‘ ‘I’m in jail because the judge is an SOB’; ‘I’m in jail because my probation officer had a bad day.’ ‘ But in Honolulu she encountered men and women who, unbidden and unpressured, praised the system that put them away, and told her they were locked up because they had ‘messed up’—something so unusual, she said, that it made her skin tingle. ‘That language of personal responsibility is unimaginable if you’re a criminal justice researcher.’
Now, in my experience the old saw that everybody who is in prison thinks their innocent isn’t the case. People are a lot more honest about their transgressions than that. However, what I have noticed is that there is a certain percentage of defendants who lose sight of any culpability on their part in their plight and view the entire predicament as a kind of game to be won or lost without any regard to their behavior. That’s particularly true when the only real “defense” someone has is a motion to suppress evidence that, otherwise, shows them to be dead-bang guilty. My own personal theory is that it doesn’t help those clients down the road to get caught up in the “game” and lose sight of what they did and how things need to work when they get out of prison.

HOPE offers a different take on criminal justice. It appears to be one of the truly unusual examples of a true win/win situation. The probationers do better overall and spend less time going back to jail. The public benefits by a reduction in crime, reduced cost (due to shorter incarceration), and a more efficient criminal justice system. Let’s hope (so to speak) it continues to spread.