The Vestiges Remain

A few weeks ago I wrote a review of a book, Slavery By Another Name, that makes the persuasive case that slavery in the United States extended well past its official abolition after the Civil War, in the form of a criminal justice system that imprisoned black men on trumped up charges and then rented them out to local businesses as excessively cheap labor. One aspect of the system that kept it rolling was that the county sheriffs who had control of most of those inmates had financial incentives to rent them out and pay next to nothing for their care and feeding.

Those kinds of odd financial arrangements that provided a motivation for state officials to do wrong have a long history in the United States. For example, in Georgia at one time the low-level judges who issued search warrants had only one means of getting paid – issuing warrants ($5 a pop). Obviously, this created a financial incentive for those judges to issue warrants, regardless of whether they were supported by probable cause. In Connally v. Georgia, the Supreme Court held that such system was unconstitutional, as it violated the Fourth Amendment’s requirement for a neutral, detached magistrate to issue such warrants. In doing so, it relied on earlier cases reaching similar results for cases where the judge was only paid if the defendant was convicted and fined and where a mayor, doubling as a traffic court judge, imposed fines upon conviction that went to the town coffers.

Given the sad history laid out in Slavery By Another Name and repeated decisions from the Supreme Court about the dangers of mixing financial motives with law enforcement, you’d think such incentives would be a thing of the past. You’d be wrong:

It took almost three quarters of a century, but one Sheriff in Alabama is finally speaking out against a 1939 law that allows for the state’s 67 sheriffs to keep leftover money the state provides to each municipality for feeding inmates in local prisons.

Sheriff Mike Rainey reportedly received $295,294 from the local, state and federal governments to spend on food for the county’s inmate population. But thanks to the old law, Rainey is entitled to pocket any money left over after he fulfills his responsibility of feeding his inmates.

It’s worth noting that Alabama was pretty much ground zero for much of Slavery By Another Name, so no surprise that the system has held on there for so long. But at least Rainey seems to view his charges as something kind of like human:

Rainey also has ordered the jail to serve healthy, fresh food to inmates.

‘Incarceration is punishment. I know some people think you shouldn’t worry about what an inmate eats, but I think it’s a moral issue,’ Rainey said. ‘They’re not getting filet mignon, but they’re certainly not being served green bologna, nor will they be served something like that.’

Wow, what an enlightened attitude. And he’s a Republican. Credit where credit is due. He’s pushing for the law to change, but prior attempts have stalled, so we’ll see.

What’s really pathetic about the whole thing is figuring out how anybody ever ended up with excess funds in this situation:

The state provides sheriffs with $1.75 per day to feed each inmate. The federal government funds inmates housed in state facilities at $3 per day.

Take This Ballot and Shove It

I’ve already said that I won’t be voting for Barack Obama this fall, as I did in 2008. As a result, it most likely means I won’t vote for anybody in the presidential race (sorry GOP friends – I won’t vote for Romney, either). Given the choices on the state and local races further down the ballot, I might skip out on most of those, too. I’ve decided I can no longer play the “lesser of two evils” game. My decision not to vote if those are the only realistic choices is a political statement, just as much as voting for one side or the other is.

Which is why this column (via) rubs me all kinds of wrong ways. In it, Peter Orszag, a former Obama OMD* director and current vice chairman at Citibank (but I won’t hold that against him, much), argues that the solution to our political mess is mandatory voting. Putting the power of the state behind the decision to vote would do all sorts of wondrous things. In other words, Orszag wants to turn the Government into Diddy:

Douche and Turd
Get More: SOUTH
PARKmore...

Orszag cites Australia as a success story for mandatory voting, which has seen its rate of participation jump from levels similar to ours up to 91%. I’m not sure how a 9% failure rate for “mandatory” voting is really a success, but put that to one side for now. I will concede that Orszag is correct that a mandatory voting law would increase voter participation. Most people do what they’re told, after all, particularly where there’s a punishment for not doing so. This is no shock.

But why take that drastic step? For one thing, Orszag argues that if people had to vote they would pay more attention to issues and thus become a better informed electorate.** I’m not sure that follows, but perhaps some people might take it more seriously if they have to do it anyway. However, his citation to another proponent who asks:

Jury duty is mandatory; why not voting?

makes me wonder what planet he’s living on. Because so many citizens eagerly jump at the chance to serve as jurors. There are no jokes about how a jury is comprised of 12 people too stupid to get out of it or anything, right?

Orszag’s second alleged benefit of mandatory voting is a bit rich, coming from a vice chairman of Citibank, namely that it would reduce the influence of money in elections:

Turn-out-the-vote efforts, often bankrolled by big-money groups, would become largely irrelevant. Negative advertising could be less effective, because a central aim of such ads is to discourage participation in the opponent’s camp.

I’ll assume that’s an accurate statement of where the money is spent now and why, but Orszag presents no evidence to support his argument that mandatory voting would make all that money magically disappear. Voters, after all, still have to actually get to the polls (for the most part), giving candidates and parties an incentive to continue efforts to get them there. And, again, if he thinks that all the money pouring into elections will simply evaporate if everybody has to vote, instead of finding other means of expression, he’s living in a fantasy world.

I’ll at least give Orszag credit for wanting to jump start public participation in elections and politics. After all, more democracy is a good thing, right? Who would argue otherwise? Turns out, Orszag did, just a few months ago:

To solve the serious problems facing our country, we need to minimize the harm from legislative inertia by relying more on automatic policies and depoliticized commissions for certain policy decisions. In other words, radical as it sounds, we need to counter the gridlock of our political institutions by making them a bit less democratic.

I don’t even disagree with him that the ability of any group to govern these days is so limited as to make it almost worthless. But, still, I’m not the one trying to get everybody to the polls by force to vote for people who would be hamstrung by the kind procedural limitations Orszag was selling not so long ago.

In the end, what Orsazg doesn’t address is the fact that the decision whether to vote at all, as much as the decision about who to vote for, is a political act. If the slowly slumping number of those who think voting is worth their time concerns folks like Orsazg, trying to force them to vote is the wrong response. The right response is to wonder why people are so certain that voting is worthless and think about how the system might be revamped to change that. But that’s a long, messy, and inconclusive process. Much better to ladle on another legal requirement and declare the problem solved.

* Office of Management and Budget. Not Orchestral Manoeuvres in the Dark, unfortunately.

** He cites research about what Ilya Somin at Volokh calls rational ignorance when it comes to voting. In other words, that since an individual vote is so unlikely to have an impact on an election, it’s rational for voters to spend their time doing things other than becoming informed on the issues. Nobody heeds the lesson of Futurama:

Fry: If I were registered to vote, I'd send these clowns a message by staying home on election day and dressing up like a clown.


Leela: You're not registered?


Fry: Nope. Not vaccinated, either. Besides, it's not like one vote ever made a difference.


Leela: That's not true. The first robot president won by exactly one vote.


Bender: Ah, yes. John Quincy Adding Machine. He struck a chord with the voters by pledging not to go on a killing spree.


Farnsworth: But, like most politicians, he promised more than he could deliver.

Super Lawyer Powers, Activate!

I’ll be the first to admit that the daily grind of being lawyer isn’t exactly glamorous or even all that exciting. In my job, there’s an awful lot of sifting through cases and cold records, heading down argumentative dead ends. My trial-level colleagues do the same with witnesses and such. It’s a grind most of the time, to be honest.

Which is why this story in the New York Times the other day tickled me so much, because it shows a lawyer springing into action like he was responding to the Bat Signal. The story involves a great specimen of a particular Tyranosaur that is only found in Mongolia. In fact, it’s a violation of Mongolian law for it such bones to even leave the country, which meant its presence at an auction in the United States raised a few red flags.

After a series of phone calls, a Houston lawyer named Robert Painter (who had previously done business with the Mongolian government) was retained to stop the auction. And thus he sprung into action, tracking down a federal judge on a Saturday to enter an order to halt the auction. But that wasn’t enough:

Mr. Painter said he sent the order electronically to Heritage [the auctioneers] and then flew to New York to make sure the auction did not proceed. He worried that once the fossil was sold, it would disappear forever.

He arrived to find the fossil being showcased in the auction room.

‘The auctioneer said the sale would proceed contingent on the outcome of a court case,’ Mr. Painter said in an interview.

Mr. Painter said he called the judge, Carlos Cortez, on his cellphone.

‘I stood up, raised my cellphone, and said, ‘I have the judge, and he’s ready to explain to you how this violates the court’s order,’ ‘ Mr. Painter said.

How brilliant is that? You’d think it would bring proceedings to a screeching halt, wouldn’t you?

Alas no, at least not immediately. The auction went forward (the skeleton fetched just over $1 million), although the sale itself it on hold pending litigation. One would think that violating a federal judge’s order would make people quake in their boots. Apparently not.

Still, well done Mr. Painter! I want an action figure, but only if the cell phone with the judge on it isn’t sold separately.

In Which My Irony Meter Explodes

Just before I went on vacation, I saw this odd story in the local paper:

A Boone County native was shot Saturday night in rural Montana while hitchhiking across the U.S., working on a memoir titled, ‘The Kindness of America.’

Ray Dolin, 39, originally of Julian, was sitting and eating on the side of U.S. 2 about three miles west of Glasgow, Mont., when 52-year-old Charles Lloyd Danielson III shot him. The shooting appears to be random, Valley County Sheriff Glen Meier said.
Dolin was shot in the upper arm.

His injuries are non-life threatening.

I didn’t give much thought to it, beyond the obvious irony of someone writing a book about kindness in American being violently attacked by a fellow American. But that’s not quite true, because I also thought that the story just feels weird. Whatever our faults as a people, Americans don’t generally just drive up and shoot people for no reason at all. But I put it out of my mind and went on vacation.

When I got home, what do I find but a follow up:

A hitchhiker’s chilling tale of being shot in a random drive-by along a rural Montana highway quickly unraveled when no gun could be found in the supposed perpetrator's pickup, authorities said Monday.

As usual, when something sounds too good to be true (in this case, like a coincidence out of a piece of fiction), it usually is. Dolin has admitted that he shot himself and carried out the whole hoax to promote his book.* Bad as that itself is, pity the poor bastard he fingered as the shooter – he spent time in jail based on this. Which, if anything, seems to ruin the thrust of Dolin’s book.

Or at least his willingness to talk about it:

Since authorities revealed that they think Dolin shot himself, he has not returned telephone messages seeking additional comment.

Ya’ think?

* Those who shoot people to “promote the sale of my book” generally don’t end well.

Where I've Been

Sorry for the lack of posting the last week or so. I was off on the road . . .












Details shortly.

Friday Review: Diving Bell

As I said in my ROSFest review a few weeks ago, Sanguine Hum was one of the band I went into the festival not really knowing anything about. Seriously, I had not heard note one from this band. All I knew was that their sole release, Diving Bell, had come out in 2010 and had just been rereleased by the new Antenna imprint from Esoteric Records.

My general policy, when it comes to festival bands, is that if they have only one album out I wait until after I’ve seen them perform to pick it up. For whatever reason, my brain has concluded that buying a band’s only album ahead of time and being disappointed is infinitely worse than buying one album out of ten but being equally disappointed. It’s music, I don’t expect it to make sense to anyone but me (and, at times, that’s a stretch).

That proved more difficult at ROSFest than I anticipated. I had seen Diving Bell at a couple of vendor tables during the weekend, but they slowly disappeared as the weekend went on. By the time the band finished it’s set on Sunday morning, everybody was sold out. But not to worry! Although the band explained that they had trouble getting their merchandise across the Atlantic to Gettysburg, they did have about 40 or so CDs with them. To the post-set meet and greet I went, then, with high hopes.

As it happened, the CDs the band had with them weren’t Diving Bell, but a pair of EPs from their prior incarnation, Antique Seeking Nuns (more of them later). I picked those up, anyway, but walked away feeling like an excellent album from a great new band had slipped out through my fingers over the weekend. So I did what any semi-modern man would do in such a situation.

I ordered it off Amazon.

Which is a roundabout way of saying I really liked their set at ROSFest. Thankfully, their studio output doesn’t disappoint, either. I have a hard time pinning down just what it is about this band that I like so much. Part of it, certainly, is the continuous sonic presence of Rhodes electric piano in their tunes. It’s one thing to hear it pop up here and there on a record. It’s quite another for it to be a defining tonality, which is something you generally see in the jazzier corners of the prog world (as I write this, I’m listening to the late and very much missed Alberto Bonomi of D.F.A. work it in that style).

That aspect makes more sense in light of the band’s work as Antique Seeking Nuns, which has a lot of Canterbury influence. Indeed, it’s almost neo-Canterbury in spots. As Sanguine Hum, the band’s sound has shifted somewhat to be more “rock” and incorporate some of the style of modern quasi-prog (think Radiohead or the like), but that Canterbury undercurrent is there all the same.

Long ago in an Email conversation with Robert Pashman of 3rDegree (new album due this fall!), he explained how one of the problems they had in finding an audience was that the band wasn’t “weird” enough for prog fans, but was too weird for the mainstream. I get the same vibe with Sanguine Hum (although they do it with different influences than 3rDegree). On the one hand, there’s nothing going on here that should scare away the music loving masses – this ain’t Magma or Present, after all. On the other, there’s just enough oddness infused in the music that folks interested only in simple background music will find it too dense and, yes, “weird.”

But questions of genre classification and prog purity are pointless – this is an excellent album from an interesting and talented group of guys. Get your own Diving Bell – you won’t regret it. Listen for yourself:



Details
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Diving Bell, by Sanguine Hum
Originally released 2010, rereleased 2012

Tracks:
1. No More Than We Deserve (5:08)
2. The Ladder (3:56)
3. Dark Ages (4:42)
4. Coast Of Nebraska (6:15)
5. The Trial (6:06)
6. Nothing Between Us (6:10)
7. Diving Bell (5:46)
8. There's No Hum (4:50)

Bonus tracks for 2012 rerelease:
9. Tonic For The Snoring (4:19)
10. The Eternal Abyss [excerpt] (5:41)
11. Circus For A Dying Race (6:19)

Players:
Joff Winks (guitars, vocals, drum programming & samples)
Matt Baber (Rhodes, synthesizer, percussion)
Paul Mallyon (drums, percussion)
Brad Waissman (bass)

‘Cuff ‘em All!

Sometimes I wonder whether cops are ever taught anything about the Fourth Amendment except for how to work around it. Consider . . .

Someone robbed a bank in Aurora, Colorado (near Denver). Police searching for the robber got a “reliable tip” that the suspect was in a car at a nearby intersection. So what did they do?

‘We didn’t have a description, didn’t know race or gender or anything, so a split-second decision was made to stop all the cars at that intersection, and search for the armed robber,’ Aurora police Officer Frank Fania told ABC News.

Officers barricaded the area, halting 19 cars.

That’s a pretty interesting definition of “reliable,” given the lack of detail in the tip. And since it provided no real way to sort through all the people in those cars:

From there, the police went from car to car, removing the passengers and handcuffing the adults.

‘Most of the adults were handcuffed, then were told what was going on and were asked for permission to search the car,’ Fania said. ‘They all granted permission, and once nothing was found in their cars, they were un-handcuffed.’

What a shock – innocent citizens jumped by cops, ordered out of their cars, and handcuffed for doing nothing at all willingly provided whatever consent the cops needed to finish their sweep. Sadly, I suspect such “consent” would hold up in court. After all, courts have held for years (in the context of when Miranda warnings must be given) that being handcuffed by police doesn’t mean you’re in custody. Why should this be any different?

By the time they found the “suspect” – in the 19th of the 19 cars searched (it’s always the last place you looked!) – the whole operation had taken nearly two hours. I put “suspect” in quotation marks because, based on the reportage, what they found doesn’t really support that conclusion. But that’s not important right now.

What’s important is that you’ve got dozens of people stopped, detained, and otherwise harassed by law enforcement based on the most general of tips. I agree with Eugene Volokh that this seems to be a clear Fourth Amendment violation. Alas, I’m not sure that anything will come of it. In the grand scheme of things, a two-hour detention probably doesn’t rack up much in the way of monetary damages (although I suppose a class action might juice things up a bit). And that assumes that the cops don’t have qualified immunity anyway, as they seem to in most Fourth Amendment cases. As for the “suspect’s” chances at suppression, I’ll leave that to one side for the want of facts.

But, hey, needlessly detained citizens, look on the bright side. Count yourself lucky that the cops were only looking for a bank robbery suspect rather than a designated terrorist. Then they would have just drone bombed the intersection and been done with it. And guess what? All those adults of military age who just happened to perish in the blast get to become terrorists posthumously, too! Collateral damage? What collateral damage?

A Slo Groove For Humpday

I very rarely go into the studio with any concrete ideas about what I want to do (and when I do, they tend to be things that popped into my head during CLE sessions – go figure). I usually just sit down, start plonking about, and see what comes out.

That’s what happened with this track. It springs from a simple two-note riff (if you can call it that) I settled into after twiddling the knobs on the Minitaur. From there I built some chords, some rhythm, and some things to dance on top. A laid back, easy going thing, perfect for the middle of the week. Enjoy!



For the gear heads, this is all Minitaur (basses, obviously) and M50 (pads, arpeggio, and electric piano). Plus the drum machine, of course.

The Sentencing Shuffle

I started my career as a public defender working in state court. Those cases, with a couple notable exceptions, were all about guilt or innocence. They may not have all been whodunits, but even the whytheydunits (as my boss called them) focused on culpability – manslaughter versus murder, self defense, what have you. Sentencing in such cases was mostly an afterthought, at least from an appellate standpoint.

Federal work is almost completely backwards. Fact is, we have very few cases where guilt or innocence is really an issue that can be fought over. Most often, the argumentative heavy lifting comes either before “trial” (of which there are vanishingly few in the first place) in suppression hearings or after trial at sentencing. My trial colleagues start talking about sentencing during their first meetings with clients, usually. It’s where the action really is in most federal criminal cases.

I say all that as background to this interesting story from the Washington Post (via) last week about Ricardo Urbina, a federal district court (aka trial level) judge who recently retired after 31 years on the bench. Largely, it argues, because he’s had enough of passing sentence upon people:

‘I do not have a passion for punishment,’ he said, a statement that helps explain why he is one of the more lenient sentencers on the D.C. federal bench, according to statistics. ‘If there is a way the court can contribute to the rehabilitation process, it is more likely the person will return to the mainstream.’

As an example of the kind of difficult analysis that Urbina is leaving behind, the story focuses on the sentencing hearing for a woman who had helped her boss in a fraud scheme, for which he had already been sentenced to four years in prison:

Because so much money had been stolen, federal prosecutors argued in court papers that Urbina should sentence the former office manager to the low end of the sentencing guideline range of 18 to 24 months in prison.

Her lawyer countered that Borgono deserved just a year of home detention and two years of probation because the Peruvian immigrant, who became a U.S. citizen in 2007, had not reaped a dime in the scheme’s proceeds beyond her $500-weekly salary. She also cooperated extensively with authorities and helped them build their case against her boss, a man sentenced by Urbina to nearly four years in prison. And, the attorney argued, she had the support of her community: The judge’s folder was filled with heart-felt letters from her relatives, friends and even her priest.

In the end, he gave her house arrest, probation, and restitution. Whether that’s the right or wrong sentence I have no clue – good defense lawyering, regardless. But think about what it must do to someone to weigh those kinds of things, day in and day out, and hold such power over the lives of other human beings. No surprise that, after three decades, Urbina would walk away.

As for judges with a passion for punishment . . . well, there’s them, too:

Friday Review: Storia O Leggenda

I’ve got a bad habit of buying my first album by a particular band, getting home and reading some reviews, and discovering that I bought the wrong album to use as an introduction. Thankfully, I didn't make that mistake with Le Orme, one of the classic bands from the 1970s Italian prog scene. My first exposure to them was a hunk of their 2005 NEARFest performance on the Rising to the Surface DVD. So I grabbed Felona e Sonora and Uomo di Pezza and was hooked.

Well, there’s a flip side to digging into a band's catalog in the right place and falling hard - you keep exploring and, eventually, you find a dud. That's the case with Storia O Leggenda. It’s not right to say it’s “bad” - it really isn’t. But it's not a classic and it’s not what really moves me when I think of Italian prog bands.

Le Orme was always one of the more lush, symphonic of bands – much more Genesis than King Crimson, if you catch my drift. So long as they were working through lengthy instrumental sections with occasional vocals, that’s cool..Technically, Le Orme avoided “epics,” but tended to run a lot of shorter tunes together to achieve the same effect. But here, the songs stay short, but are more individualized. There’s a greater emphasis on lyrics and vocals, with the music becoming less involving.

Which leads to a problem of my own limited faculties. One of the cool things about prog is that it really flourished in outposts around the world. Although it’s generally thought of as particular English, it first made popular headway in Italy and eventually spread all over. I’ve got albums from every inhabited continent except Africa, for crying out loud! That means lots of lyrics I have no chance of understanding since they’re, you know, in foreign and such.

Generally, that’s not a problem. With very few exceptions, prog is not about the words, it’s about the music. Vocals in another language don’t pose a problem because the voice itself is more important than the message. Hell, after all these years I’m still not sure what Jon Anderson is on about most of the time, and that’s in English! But it sounds good, right?

Yeah, until the words do start to become more important. It’s one of the reasons I don’t really get a lot of neo-prog with lyrics in other languages. That’s a subgenre where words make more of an impact and if I can’t understand what they’re saying, what’s the point? Unfortunately, that’s the problem I’ve got with really digging into this album. The music is nice enough, but it doesn’t do much more than support the vocals, which might as well be gibberish for all I know. Judging by the cover art, it has something to drooling horses. As a result, I just can’t get that much out of it.

Which is only to say, in the long and storied history of Le Orme, they had an off day. Everybody’s entitled to that.

Details
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Storia O Leggenda, by Le Orme
Released 1977

Tracks:
1. Tenerci per mano (4:40)
2. Storia o leggenda (5:05)
3. Il musicista (4:40)
4. Come una giostra (4:25)
5. Se io lavoro (4:20)
6. Un angelo (4:50)
7. Il quadro (4:10)
8. Al mercato delle pulci (4:05)

Players:
Antonio Pagliuca (keyboards)
Aldo Tagliapietra (bass, voice, Indian harp)
Michi Dei Rossi (drums, percussion)
Germano Serafin (guitars)