A Crummy Commercial?

In a few days, TBS will kick off its annual A Christmas Story marathon.  That's the movie where the hero, young Ralphie, learns that the secret decoder ring he's waited and waited on for weeks is really just a way to shill for Ovaltine.  In Ralphie's words:

Be sure to drink your Ovaltine. Ovaltine? A crummy commercial? Son of a bitch!

Now, I'd like to think I'm both wiser and more cynical than a 9-year-old kid growing up in the 1930s or 1940s, but it still honks me off when somebody tries to sell me something disguised as anything but.

So say hello to DirecTV, this year's Christmas dipshits.

I was a DirecTV customer for a long time and had no problems with the service.  But when K and I got married and moved, it made more sense to get our TV and Internet pipes from the same land-bound service (which has generated it's own share of issues - how was Stephen Colbert's last show?).  As a result, they send me entreaties to come back in the mail all the time, which is fine, as they're easily identified and chucked in the trash.

On Friday, this came in the mail:

Except with my full address on it, obviously.  Now, I don't think I know anybody in El Segundo, California, but you never know, right?  Maybe some long lost friend is trying to get in touch or something.  Looks like a Christmas card - it's even got a snowflake stamp and Frosty on in, for fuck's sake.  So I open it up, and what do I find inside:

 A crummy commercial!  Naturally, it went right in the trash.

Look, I'm not a person who holds the Christmas (and related holidays) season holy or thinks it's entitled to some kind of inherent respect.  But if you want to sell me something, don't dress it up like it's some personal correspondence.  Call it an ad and be done with it.  I'll at least respect you while I throw the ad away.

Money, the Courts, and Real Priorities

A wise woman once said, "money talks, and bullshit walks." Sadly, more and more it's the money that drowns out everything when it comes to judicial elections.  But it's important to pay attention to the bullshit, too, and particularly to who is pushing it and why.

But first, let's get a few things clear.  Judges should not be elected.  They are not politicians, in the traditional sense.  They should not - and cannot - promise to voters to rule in particular ways on certain issues.  Most importantly, judges need the independence to apply the law as it exists, even when it's unpopular to do so.  Most often, that comes in criminal cases.

In fact, as this lengthy article from The Atlantic (and The Marshall Project), criminal cases, and fear mongering about them, tends to be the them of the millions of dollars of advertising outside groups pour into modern judicial elections.  The theme is simple and familiar - one candidate is "soft on crime" because she was either a defense attorney at one time in her career or, as a judge, she ruled in a vaguely pro-defendant way.  That the claims are exaggerated or, at least, more nuanced than presented is a feature, not a bug.

One of the many examples they discuss is one from West Virginia featuring a big player who is now a criminal defendant himself:

When coal executive Don Blankenship wanted to unseat an unsympathetic West Virginia justice in 2004, he didn’t run ads in the name of Massey Energy Co. He funneled nearly $2.5 million to a PAC called “And for the Sake of the Kids” to produce commercials alleging the incumbent had freed a child rapist and allowed him to work as a school janitor. In reality, Justice Warren McGraw had voted with the majority that a juvenile sex offender already on probation should have been sent to rehab instead of back to jail when he was caught drinking and smoking pot. The judge Blankenship helped elect reversed a $50-million ruling against Massey Energy, culminating in a landmark Supreme Court ruling that found the campaign contributions constituted 'a serious risk of actual bias.' (More recently, Blankenship was indicted in November over a 2010 mine explosion that killed 29 miners.)

This is an interesting development, for two reasons, one disturbing and one more revealing (but ultimately disturbing, too, in its own way).

It's taken as a given that these ads influence voters - if not, why run them?  Ilya Somin has written a lot about the rational ignorance of voters.  That is, basically, that the value of any single vote is so minimal that it's rational for would be voters to devote their time to things other than learning about politics, candidates, etc.  If that's true (and I'm somewhat convinced) for regular elections, imagine what it must be like for judicial elections.  After all, most folks will never appear before a judge they vote for or against, so how much thought will they give to that choice?

But even worse is that evidence is mounting that the ads are changing the way judges make decisions:

A growing body of research suggests that soft-on-crime attack ads may be changing how judges rule on criminal cases. In the American Constitution Society’s study of state-supreme-court races, Emory University law professors Joanna Shepherd and Michael Kang concluded that the more TV ads aired, the less likely individual justices are to side with a defendant. The impact was fairly small but statistically significant, showing that doubling the number of TV ads in a state with 10,000 ads increased the likelihood of a vote for a prosecutor by an average of about 8 percent.

* * *

Previous studies have found that Pennsylvania judges handed out longer sentences as an election approached, and that Kansas judges chosen in partisan elections gave harsher punishments than those who kept their seats in nonpartisan retention elections. A 2013 survey of seven states with judicial-election spending of $3 million or more, conducted by liberal organization Legal Progress, asserted that 'as campaign cash increased, the courts studied began to rule more often in favor of prosecutors and against criminal defendants.'

While judges deny any kind of influence, numbers don't lie.  They may not be as damning as they appear at first blush, but they aren't good.  It's bad enough for a would-be judge to use "tough on crime" language to get on the bench.  It's even worse for a judge to worry about keeping his seat while making a ruling in a case, criminal or otherwise.

The other thing, the more revealing thing, about all this spending is where it's coming from.  The article chronicles how most of this money comes from out-of-state groups that, for the most part, don't really seem to have anything to do with criminal justice.  In fact, most are pro-business groups using crime as an issue to support pro-business jurists.  For example, one group that spent nearly half a million dollars in a Michigan election was actually based in Virginia and formed by ex-tobacco company execs to fight smoking regulations.

But in some cases, it's worse than that, because the groups funnelling in money for these fearful spots that raise the spectre of child molesters running amok or killers being set loose at least make noises that they care about criminal justice reform:

Koch Industries, owned by the conservative activist Koch brothers, gave $460,530 this year to the Republican State Leadership Committee and $50,000 to the North Carolina Chamber of Commerce’s PAC—money that helped fund an ad promising 'no leniency' for violent criminals in Illinois and one praising a North Carolina candidate for 'putting murderers, drug dealers, and sex criminals in jail,' among others. In the same year, they’ve emerged as champions of due process and indigent defense, announcing a 'major' grant to the National Association of Criminal Defense Lawyers* and sponsoring a forum on the problem of mass incarceration.

Another wealthy family took part in that Michigan campaign, while also giving millions of dollars to an organization that fights mandatory minimums.

While you might argue that tactics are not the same thing as principled positions, it's a little disturbing to see people who claim to care about criminal justice reform stoke the fires of fear and misunderstanding that will keep it from happening.  Not to mention, the studies above show that there might be some actual impact on the judging, which makes the criminal justice system worse, not better.

It also provides evidence for those who argue that organized libertarians are really only concerned with money and property issues.  While they may say the right things about decriminalization or our exploding prison population, where are they putting their resources?  Where they think it will benefit their own bottom line.

Like I said - money talks, bullshit walks.

* Full disclosure - I am a member of NACDL.

An Adversary Is Not a Panacea

Of the many features that separates and Anglo/American legal system from the civil code system that most of the rest of the planet uses, the one that really sets it apart is that ours is an adversarial system.  Two parties enter the courtroom, battle it out from their own perspectives and, most of the time, a winner emerges.  If the "truth" (if you follow me) comes out in the process, so much the better.  Key to this system is that each party controls its own agenda.  Neither the court nor the public at large gets a say in how a case is presented (or not).

Now, one of the few exceptions to this is the grand jury process, which is decidedly one sided.  The prosecutor runs the show.  The defendant usually doesn't have anything to do with it, much less the defense attorney.  Which is part of what makes the grand jury decisions in Ferguson and Staten Island so unusual.  As a result, some folks are wondering whether all that prosecutorial discretion isn't such a good thing, particularly if the prosecutor doesn't seem to want to get an indictment.

There's a discussion to be had there, but one thing that would not improve results, if we're assuming a prosecutor soft-pedaling things, is the presence of a defense lawyer.  This column at Slate offers a refrain I've heard before, but is worth repeating:

The version of Michael Brown’s shooting that the grand jurors heard was engineered by the prosecutors, who vigorously questioned witnesses when their testimony contradicted Wilson’s story and barely questioned witnesses whose testimony supported the officer’s version. Wilson received especially lenient treatment by the lead prosecutor. The final question he asked was whether there was anything else that Wilson wanted the jurors to know. He did:

'One of the things you guys haven’t asked that has been asked of me in other interviews is, was he a threat, was Michael Brown a threat when he was running away. People asked why would you chase him if he was running away now. I had already called for assistance. If someone arrives and sees him running, another officer and goes around the back half of the apartment complexes and tries to stop him, what would stop him from doing what he just did to me to him or worse ... he still posed a threat, not only to me, to anybody else that confronted him.'

There was no defense attorney to question Wilson’s self-serving statement to the jurors.

Emphasis mine.  This after the author lauds preliminary hearings as an alternative to grand juries because:

These 'prelims' are open to the public, and they are adversarial. Witnesses are questioned and cross-examined by prosecutors and defense attorneys, all of whom must abide by the rules of evidence.

All that's true, but what would it have changed?  Why on Earth would a defense attorney in the grand jury have questioned Wilson about his "self-serving statement?"  That's not the defense attorney's job.  Nor would a prelim have made things any better.  Sure, it all would have been public, but, again, if the prosecutor is not inclined to grill the defendant (if he testifies), why would defense counsel do so?

There's an awful lot wrong when it comes to police getting away with horrible behavior, for various reasons.  Those need to be addressed.  But call to completely revamp the grand jury process - one that, like most other parts of the Bill of Rights, doesn't actually apply to the states - seems awfully short sighted.

The problem isn't that, occasionally, when a cop is involved, grand juries act as the kind of brake on state action they were intended to be.  The problem is that, in the run of the mill case involving a regular civilian, they hardly ever act that way.

On Prosecuting the Torturers

In the wake of the Senate report on torture by the CIA (and its contractors - leave it to we Americans to privatize our atrocities), there hasn't been a whole lot of ink spilled on what should be done to those who engaged in illegal behavior.   Generally that means prosecution, but should it?  There are at least a couple of arguments that it shouldn't, even if the folks are guilty as sin.

The first, and more persuasive argument, was set out by Anthony Romero, head of the ACLU* in the New York Times the day the report was released.  Although the ACLU has been in the forefront of trying to get all the details of our torture programs out in the open, he argues against prosecuting those involved (up to and including Bush, Cheney, and Rumsfeld).  It's not a matter of giving up - it's a more clever gambit:

with the impending release of the report from the Senate Select Committee on Intelligence, I have come to think that President Obama should issue pardons, after all — because it may be the only way to establish, once and for all, that torture is illegal.

* * *

Mr. Obama is not inclined to pursue prosecutions — no matter how great the outrage, at home or abroad, over the disclosures — because of the political fallout. He should therefore take ownership of this decision. He should acknowledge that the country’s most senior officials authorized conduct that violated fundamental laws, and compromised our standing in the world as well as our security. If the choice is between a tacit pardon and a formal one, a formal one is better. An explicit pardon would lay down a marker, signaling to those considering torture in the future that they could be prosecuted.

Problem is, I don't think pardons really work that way.  For one thing, I don't think one needs to formally "accept" a pardon for it to become effective, much less do so with conditions attached.  For another, I don't think accepting a pardon would concede that the conduct at issue was a crime.  

In fact, just the opposite could be true.  I might take a pardon precisely because I think my conduct wasn't criminal, in order to head off politically-motivated prosecutions in the future.  It would be no different than the West Memphis Three agreeing to enter an Alford plea to a lesser charge in order to be released from prison (and death row, for one guy), even though they maintain they're innocent.

So, while Romero gets some credit for creative thinking, I don't think handing out pardons would get him where he wants to go.

Eric Posner, on the other hand (writing over at Slate), has a much more disturbing take.  He argues that there should be no prosecutions because, well, in essence, politicians are untouchable:

But Obama’s best argument for letting matters rest is the principle against criminalizing politics. This is the idea that you don’t try to gain political advantage by prosecuting political opponents—as governments around the world do when authoritarian leaders seek to subvert democratic institutions. Of course, if a Republican senator takes bribes or murders his valet, the government should prosecute him. But those cases involve criminal activity that is unrelated to the public interest. When the president takes actions that he sincerely believes advance national security, and officials throughout the government participate for the same reason, then an effort to punish the behavior—unavoidably, a massive effort that could result in trials of hundreds of people—poses a real risk to democratic governance.

Obama’s problem is that if he can prosecute Republican officeholders for authorizing torture, then the next Republican president can prosecute Obama and his subordinates for the many questionable legal actions of the Obama administration—say, the drone strike that killed Anwar al-Awlaki and three other American citizens.

The full impact of Posner's reasoning is that no politician could ever be held accountable for a crime he or she commits, aside from something like garden-variety murder.  Crimes committed in the service of a political office can be committed with impunity, because of the danger of political justice.  I certainly agree that a series of bilateral criminal investigations done only for political motives would be bad for the country (although, honestly, how much worse?).  But that doesn't mean winning an election means immunity from wrongdoing just to avoid that fate.  Surely there's a line - doesn't sanctioning and carrying out a regime of torture that includes acts previously prosecuted as war crimes by this very country cross it?

One thing that both Romero and Posner say, and that I agree with completely, is that no prosecutions will actually happen. it's naive to think otherwise.  That doesn't mean we have to shrug and accept it or, much worse, justify it.

* Full disclosure - I am a card carrying member.