01 December 2010

A Round Tuit (50)

A Round Tuit

When it comes to legal blogging, there seems to be no shortage of writing worth reading once one gets around to it.

What's that? You have no round tuit? My friend, you are fortunate indeed, for never before in human history have round tuits been so readily available. If you need one, Carbolic Smoke Ball Co. has them in stock.

While you place your order, I'll share a few posts which are worth your attention.

Coalinga Prison Overcrowding

At least our weather's nice.

I generally find myself resorting to that on those (thankfully rare) occasions when I feel obliged to speak-up in defense of California. There's no denying that California is a dysfunctional place, though you could generate a healthy debate were you to ask a group of people where California's dysfunctional nature is most apparent. A strong candidate would be the state's prison system, which is one of the most dangerous and regressive in the country.

Year after year, more conduct is criminalized, more criminalized conduct is punished by imprisonment, and the sentences imposed are longer and with fewer opportunities for early release. There are few checks on this cycle — citizens are naturally fearful and are made more so by propaganda about drugs and gangs; unionized police and prison guards are benefitted personally and collectively by the status quo and its emphasis on law enforcement funding at the expense of other concerns; prosecutors and politicians secure their political futures by remaining "tough on crime", even when it becomes clear that diminishing gains are bought at an outrageous social and financial cost.

Setting aside civil liberties concerns and meaningful inquiries about the efficacy of increased criminalization of nonviolent offenses and of harsher sentencing, the general consensus has been that the ongoing wars on crime, on drugs, and on being non-white and/or unpopular are sustainable provided we keep spending money to build and staff new prisons. That's certainly not what I'd choose, but Californians have the right to spend their money stupidly until it runs out. If a majority want to blow it on overcompensated law enforcement officers, wasteful propaganda programs, and costly corrections facilities, so be it.

When the demands for prison space outstrip the funding available, however, there would seem to be only two options: either "right-size" your criminal laws and prison population to fit what budget you have or get more budget. In the current economic climate, the latter is not feasible; there's no more money to be had and there's no political will to cut elsewhere to sustain an unsustainable law enforcement stance. That leaves just one option, right? Well, true to its nonconformist nature, California has pursued a third option — keep jailing more and more people but stop spending so much on prisons. Brilliant! Overcrowding leads to violence and underfunding means poor prison healthcare, both of which tend to thin the herd a bit. Stack people like cordwood and let them prey on one another until the budget balances.

There are a few pesky details to overcome, including that whole Eighth Amendment "no cruel and unusual punishment" thing. There's also the unpleasant revelation that prison unions will only go along with the scheme so long as you don't let the prisoner-to-guard ratios get so far out-of-whack that their members are put in harm's way. Dead guards pay no union dues, you know.

Like any Ponzi scheme, California's unsustainable prisons policies were doomed to fail at some point; the questions were when that failure would occur and what would finally tilt the balance. The answers might just be "this term" and "the Supreme Court".

Ashby Jones previewed this week's arguments in Schwarzenegger v. Plata, a long-running case which raises a Constitutional challenge to California's prison overcrowding and which has made strange bedfellows of prison inmates and guards, both groups opposing the state:
A three-judge panel in a California federal district court ruled in January that overcrowding in the state’s prison system, the nation’s largest, is the main cause of substandard medical and mental health care that violates prisoners’ Eighth Amendment right to be free from cruel and unusual punishment.

On Tuesday, that ruling is set to be reviewed. On one side: inmates and prison guards, who agree with the lower court.

“It’s so dangerous in California’s prisons that the courts have an obligation to protect prisoners,” says Donald Specter, director of the Prison Law Office, a prisoner-rights advocacy group in Berkeley that brought the challenge.

On the other side stands the state of California, which is arguing the lower-court ruling should be overturned.

California argues that the federal judges overstepped in issuing the release order, which is on hold pending review by the Supreme Court. The state also opposes the order partly because it doesn’t want thousands of prisoners spilling out into general society.

At issue in the case, known as Schwarzenegger vs. Plata, is whether the judges correctly applied the relevant 1996 law, the federal Prison Litigation Reform Act, governing how federal courts can get involved in the management of state prisons.The high court may choose only to address whether the three-judge panel had the authority to issue the release order—not whether it was necessary or whether overcrowding is the primary cause of constitutional violations.
Lyle Denniston noted that the case is so complicated that the time alloted to oral arguments has been increased by a third. He explained the legislation involved — the Anti-Terrorism and Effective Death Penalty Act and the Prison Litigation Reform Act — and offered his insights about the likely outcome of the challenge:
The [Prison Litigation Reform] Act takes two separate approaches. It imposes one set of requirements on prisoner lawsuits that seek any kind of future relief in prison conditions. A second part deals only with the requirements for a court order to actually release inmates from custody as a remedy — treated by the Act as “the remedy of last resort.” Such a release order, Congress specified, could involve either reducing inmate population outright, or barring new admissions to prisons. A cap on a facility’s total population is one of the options.

Prison release orders, however, may be issued only when they are “truly necessary” to remedy an actual violation of prisoners’ rights under the Constitution or a federal statute. A court may issue a release order only if previously issued orders for less intrusive relief have failed to remedy the problems found, and only if the prison’s managers have had a reasonable time to carry out those prior orders. If both conditions are met, the judge must ask turn to a three-judge District Court if there is to be an order to release inmates.

Before issuing any such order, the three-judge Court must find by “clear and convincing evidence” that crowding is the primary cause of the violation of a federal right, and that no other, more modest relief will suffice.


Strategically, the state’s brief on the merits amounts to a federalism plea, based on the contention that California is making solid progress on the problems in its prisons, and should be freed of a draconian release order to do so without endangering public safety.


It is fair to assume that a number of Justices, and possibly even a majority, approaches this case with some fairly heavy skepticism about a court order that would turn loose tens of thousands of prison inmates, with no dependable assurance that the state would be able to take — or to afford — the steps necessary to prepare many of those inmates for life on the outside. If that perception is sound, the breadth of the release order, at least, may be at risk.

At the same time, there is likely to be some sentiment within the Court against going so far to narrow the authority of three-judge District Courts under PLRA as to make the prisoner release option a meaningless part of PLRA. Congress clearly intended that option to exist, whether or not some Justices may think it an extravagant remedy for an institutional health menace.

The chances seem strongest that the Court, if it rules on the merits, will demand that any release order that ultimately emerged be strictly confined to inmates who are themselves suffering from maladies that can be attributed to the health hazards of overcrowding. California’s prospects for prevailing, to some degree, seem at least moderately good.
Denniston provided the best recap and early analysis of the arguments as well, characterizing these as "at times... close to being rowdy":
The focus of attention shifted fully to Justice Kennedy, as the other Justices appeared very closely divided as they made clear where they stood for or against what the District Court had done in ordering that upwards of 35,000 inmates be turned loose in California over the next two years. And, if what Kennedy said controls how he would be voting on the final outcome, it seemed that he would not be willing to overturn that release order in its entirety, but would find ways to indicate that the remedy had to be reshaped or pared down in its scope.


Justice Alito was the only member of the Court who made it obvious that he was convinced that no prisoner release order should have been issued in the California case. He could not see, he suggested, how setting a limit of the total prison population would get at the problem of inadequate medical care for the inmates. The solution that the District Court adopted, after concluding that nothing else would work to protect the health of the inmates and the prison staffs, was that the prison population must be cut down to 137.5 percent of design capacity within two years. It is now somewhere around 195 percent of capacity.

The Chief Justice displayed considerable skepticism about the District Court’s approach, and Justice Antonin Scalia, who took comparatively little part in the exchanges, also was doubtful. Since Justice Thomas said nothing, it is unclear how he would react, but the normal expectation would be that he would vote with the Court’s conservatives.

The three-judge District Court, and the two single District judges who had previously been handling the two overcrowding cases that are now combined, had quite conspicuous support Monday from Justices Stephen G. Breyer, Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor. Justice Ginsburg, now and then abandoning her usual gentle and understated manner, was energetic in her defense of the need for the courts to do something after the hazards to inmate health had been litigated for two decades.
It doesn't seem an extraordinary proposition that if the state wants to pursue a policy whereby it obliges its prosecutors and judges to imprison non-violent and petty offenders and lock-up violent criminals for vastly-extended periods of time, it must bear the costs of its decision. California's built a house of cards and the Supreme Court should not sustain it from fear that tens of thousands of released inmates will go rampaging through our streets upon release.

How many of those tens of thousands are non-violent offenders who could be dealt with by means short of imprisonment? How many have already served long prison terms for "drug war" crimes carrying ridiculously-long sentences? How many are subject to deportation orders upon release and could be returned to other countries rather than spend years more as California's costly house guests? How many represent little risk of reoffense due to strong family ties, promising work prospects, or increased age or maturity?

Contrary to the contentions of the many states which have lined-up in support of California's position, this crisis is of California's own making and is in key respects unique to this state. Yes, other states have overcrowding problems as well, but none to the degree we do and none (as far as I know) for the reasons we do. California has, over decades, opted to criminalize things which need not be criminal. Again, other states have done this also, but none as extensively as California has. We have bound the hands of judges with mandatory sentences; we have rewarded prosecutors who demonstrate "tough on crime" credentials by seeking maximum penalties for all offenses (and even for things which merely resemble offenses); we have opted to imprison thousands more than we were prepared to protect and treat within prison walls.

It's a simple enough equation: if Californians are willing or able to spend only to a certain level on prison facilities, staffing, and medical and mental health care, and that level of spending only supports a certain prison population, we cannot imprison more than that number. Perhaps we can fudge a bit around the edges — a bit of crowding here, a cheaper program there, improvements in technology now and again, outsourcing to private prisons in other areas when needed — but the bottom line is more-or-less unchanged. Limitless imprisonment means limitless spending; limited spending necessitates limited imprisonment. California wants limited spending and limitless imprisonment; the law doesn't and the Supreme Court shouldn't accommodate this.

Lyle Denniston's take — that the Court will seek a middle road which minimizes prisoner releases (and public and political backlash and risk of violent reoffenses by those released) but upholds the basic premise that California's overcrowding must be solved by a reduction in its prison population — seems sensible. The PLRA seems an attempt by Congress to wipe away nearly every remedy for poor prison conditions while recognizing, exceedingly grudgingly of course, that when extraordinary conditions exist there must be some extraordinary legal remedy (including judicially-enforced caps on prison populations) to correct it. California's crisis is such an extraordinary situation and to hold that even here the remedy is unavailable should be unpalatable to a majority of the Court. California complains that to order releases rather than allow the state to reduce its prison population by a bit here and there from time-to-timewould endanger public safety. I hope that it won't, certainly, but the fault lies with our legislators and ourselves, not with the Court majority should it enforce the law as it currently exists.

The Plata appeal is certainly not the only Court-related criminal law news this week. Admittedly, I missed former Justice John Paul Stevens' multiple appearances recently in The New York Times, in The New York Review of Books, and on CBS' 60 Minutes program because, respectively, I don't read The New York Times except for a few sections online, have never read The New York Review of Books and suspect that I'd be hard-pressed to find a copy within thirty miles of my home, and am not 87 years old. It's on occasions like this, then, when I'm grateful that the legal blogosphere doesn't let anything worth noting escape its attention and comment. Agree or disagree with him, Justice Stevens' discussion of his changed views on the death penalty was undeniably worth noting.

Douglas Berman drew my attention to Adam Liptak's article in the Times. In that article, Liptak discussed Stevens' comments in the Review of Books specifically and his broader commentary on the death penalty more generally:
In 1976, just six months after he joined the Supreme Court, Justice John Paul Stevens voted to reinstate capital punishment after a four-year moratorium. With the right procedures, he wrote, it is possible to ensure “evenhanded, rational and consistent imposition of death sentences under law.”

In 2008, two years before he announced his retirement, Justice Stevens reversed course and in a concurrence said that he now believed the death penalty to be unconstitutional.


In a detailed, candid and critical essay to be published this week in The New York Review of Books, he wrote that personnel changes on the court, coupled with “regrettable judicial activism,” had created a system of capital punishment that is shot through with racism, skewed toward conviction, infected with politics and tinged with hysteria.

The essay is remarkable in itself. But it is also a sign that at 90, Justice Stevens is intent on speaking his mind on issues that may have been off limits while he was on the court.

In the process, he is forging a new model of what to expect from Supreme Court justices after they leave the bench, one that includes high-profile interviews and provocative speeches.


...Justice Stevens defended the promise of the Supreme Court’s 1976 decisions reinstating the death penalty even as he detailed the ways in which he said that promise had been betrayed.

With the right procedural safeguards, Justice Stevens wrote, it would be possible to isolate the extremely serious crimes for which death is warranted. But he said the Supreme Court had instead systematically dismantled those safeguards.

Justice Stevens said the court took wrong turns in deciding how juries in death penalty cases are chosen and what evidence they may hear, in not looking closely enough at racial disparities in the capital justice system, and in failing to police the role politics can play in decisions to seek and impose the death penalty.
I've felt a certain amount of affinity for Stevens' misgivings and changes of heart vis-à-vis capital punishment because I've shared those, although we don't necessarily agree on the particulars. In concept, I accept that some crimes are so serious that execution is an appropriate punishment; I also believe that there is some place, however slight, for retribution in a system otherwise focused on rehabilitation to a greater extent and on incapacitation to a lesser one. More importantly, I don't think that capital punishment necessarily runs afoul of the Constitution. My misgivings are not about the death penalty itself but about how it's applied in the United States today.

I agree with Stevens that with sufficient procedural safeguards, capital punishment could be reliably reserved only for the most serious crimes. Increasingly however, that concept seems less theoretical than fantastic. The problems in our justice system are as apparent on our nation's death rows as anywhere and these are not procedural or logistical ones; these are fundamental flaws in the system which are not capable of simple correction. The answer, in short, is not that we need more rules; it's not even that we need the courts to enforce those rules more consistently. The problem is that there are incentives for many in circumventing procedural safeguards and few repercussions for doing so.

At every stage of the "justice" system, we know that prisoners are fast-tracked toward near-certain convictions. Not always but often enough, Police arrest under dubious circumstances and manipulate evidence and testimony to support their actions and to punish those they believe deserve it. Prosecutors overcharge and pursue maximum penalties because it benefits their ambitions and authority to do so; too many of them conceal evidence they're obliged to turn-over to defense counsel and oppose testing which could prevent miscarriages of justice or exonerate the wrongfully-convicted. Judges favor the state's cases, treating prosecutors and police as colleagues and defendants and defense counsel as adversaries to be overcome. Juries are composed of those predisposed to punish and are subjected to prosecution fear-mongering. The public approves it all and redoubles its calls for everyone to be "tough on crime" ("crime" including an increasing array of anti-social activities which are offensive but often not dangerous except in the abstract).

Not every case is corrupted any more than every defendant is innocent, but there is enough corruption in the system that we can't reliably say that, forgetting thousands of other prisoners for a moment, at least all of those who are on death rows deserve to be there. The activities of the Innocence Project have demonstrated that owing to human fallibility, pride, and deceit, there are a great many people there who do not belong there; it appears likely that a few executions have been carried-out where the actual guilt of the condemned is questionable.

All in all, I believe that however acceptable capital punishment might be in concept, our reality is so far from there that arguing the particulars is pointless. It's senseless to debate this so long as our system is so inherently unjust. Stevens may blame the Supreme Court for taking wrong turns along the way, but so long as the determination of who lives and who dies in our justice system is no more just than a lottery's result, wringing one's hands about the failures of any one part of the death penalty system is a secondary concern — and a very distant second at that. I see no alternative to stopping capital punishment in America unless and until it can be made to work properly and with certainty. Relying on the goodwill of those with vested interests in the prosecution, condemnation, and execution of prisoners is unacceptable.

Jeff Gamso argued that the premise of a just and reliable system (or anything remotely near to it) is a false one — full stop — and capital punishment can therefore never be appropriately or fairly imposed. To my mind, dismissing the theoretical possibility entirely or accepting it but recognizing its unattainability in the foreseeable future are functionally equivalent, even though these represent very different moral positions. I find Gamso's lengthy and eloquent critique of Stevens' death penalty jurisprudence and post-Court writing particularly persuasive:
On July 2, 1976, just over six months after he joined the Supreme Court, Justice Stevens joined with a majority of the court to hold that the new laws in Georgia, Florida, and Texas provided sufficiently guided discretion to ensure that the death penalty would be applied fairly and rationally. Gregg v. Georgia.

As Justice Brennan explained, Stevens thought that those state's new statutes would
adequately safeguard against the risk that the death penalty was imposed in an arbitrary and capricious manner.
The belief was fanciful then. Over time, the fact of the fantasy became obvious. It could not be done.

It wasn't until February 1994, just six months before he retired, that Justice Blackmun acknowledged the impossibility.


Gregg's conclusion that Georgia and Florida and Texas had written laws that would avoid the unfair, irrational, arbitrariness that led to Furman was doomed from the start. The problem wasn't that the Court's personnel would change and lack adequate respect for the views of those they replaced. The problem wasn't who would ascend to the Court.

The problem was in the very idea that the decision of who should live and who should die can be made rationally, without bias or favoritism, and without a nod to local politics and the media, that it can be done properly by judge or jury, that discretion can ever be adequately guided or cabined, that whole congeries of ideas.

It's not merely a chimera. It's a flat-out lie.

It can't be done, and we pretend it can only when we bury our heads in the sand and imagine that judges and juries and lawmakers and governors are all passionless and disinterested.
Scott Greenfield is is also a more resolute opponent of capital punishment than I. He pointed-out that even for those who've consistently opposed the death penalty, Stevens' comments about his change of heart are unsettling:
The point, at least for purposes of this post, isn't that Justice Stevens' late-in-life conversion that the death penalty could not be constitutionally applied, but that all the hard work put into the issues. From the deep-parsing of law to the aggregation of statistics to the dotted "i"s and crossed "t"s in a typographical fashion that not only met the court's requirements but added a persuasive appearance, none had any impact on the only factor that mattered: Powell was replaced by Anthony Kennedy, and Brennan was replaced by David Souter.

This isn't to impugn any justices' vote or position, or to suggest that one was right (or righter) than the other. That's a matter for other days based on particulars. The only point to be made here is that we want to believe that the Supreme Court decides cases based upon reason and logic, with a bit of precedent thrown in for consistency.

To believe otherwise is to admit that we're wasting our time playing this game. It suggests that this is a big charade, spouting platitudes about the greatness of the system to men and women whose decisions were made long before we stepped foot in the courthouse. If so, that really sucks.


That wild swings in the law are based upon the vote of a single justice is really a remarkable indictment of the process. Noting that 5-4 decisions changing what is, and isn't, constitutional reduces the idea that the fundamental law doesn't swing with the popular mood to a farce. Few would disagree that basic constitutionality shouldn't change with the personnel, but then each new justice believes they're just returning the court to balance and, once they've put their imprint on the Constitution, those who follow should keep their mitts off.

The new paradigm, where retired Supremes spill their guts as to what went wrong, and what is wrong, with the court may be viewed as a bad thing, undermining the dignity of the institution and the integrity of its decisions. As the least dangerous branch, the only one without the ability to tighten the purse strings or order the army to mobilize, it's powerless without integrity and the respect it engenders.

As familiarity breeds contempt, we are seeing justices less as the protectors and defenders of the Constitution than a bunch of folks with an agenda, determined to reshape society in their image. This doesn't mean they don't believe in their judicial philosophy, or that they're acting in any manipulative or malevolent way, but that they put on robes and get to leave their fingerprints all over the Constitution no matter what it said the day before they took their oath.

U.S. Department of Security Theater Logo

The Transportation Security Administration's unique brand of inept-yet-self-righteous authoritarianism continues to be discussed in the legal blogosphere. This past week, the main topic was changing public sentiment and the agency's and the media's reactions to "Opt-Out Day". Ted Frank, who's dedicated a new blog, The TSA Abuse Blog, to these topics, noted a substantial change in opinion polling numbers since "Opt-Out" protests began to spread across the internet and into public consciousness:
Policy opposition to the TSA has been muted because of repeated polls showing something like 81% of Americans support the new screening methods. Of course most Americans don't fly, and most Americans hold opinions even when their only information on the subject was prompted with a pollster's question. Even I, someone who has been annoyed with the TSA since 2002, was alright with the naked scanners—until I learned that they weren't any more effective than a standard metal detector, that they had potential radiation problems, and that they were considerably slower than regular metal detectors. Well, good news. The "don't touch my junk" publicity has shifted public opinion dramatically.
Frank cited a recent Zogby poll which showed that 48% of Americans are now motivated to choose alternate travel options and 61% of likely voters oppose the TSA's use of full-body scanners and aggressive pat-downs. Though the poll indicated that respondents overwhelmingly prefer full-body scans to pat-downs (by 48% to 7%), this is akin to choosing which STD you'd prefer to get; very understandably, a sizable percentage (42%) preferred neither. Of all the numbers the poll offered, I found these the most telling:
Of those polled, 52% believe the enhanced security measures will not prevent terrorist activity, almost half (48%) say it is a violation of privacy rights, 33% say they should not have to go through enhanced security methods to get on an airplane, and 32% believe the full body scans and TSA pat downs to be sexual harassment.
For some time now, critics have dismissed the TSA screening as abusive and nothing more than "security theater"; what once were outlying sentiments are now mainstream, if not majority, ones.

For me at least, one of the strangest aspects of the brouhaha over the TSA's enhanced screening methods has been the mainstream press' vocal support for these invasive, abusive procedures. I don't recall such whole-hearted support for less-intrusive, more justifiable screening methods implemented during the Bush Administration. When an issue has united a broad coalition of civil libertarians, anti-war liberals, and conservative prudes, it seems exceedingly odd that the mainstream media has rallied behind the government in opposition to mounting public sentiment. That backing hasn't been by half-measures, as many have noted. At the Popehat blog, Ken collected both stories of recent TSA abuses and editorial reactions to criticisms of those abuses:
Despite evidence of pervasive problems — from humiliations driven by brutal indifference to deliberate misconduct — many members of the chattering classes continue to tell Americans they ought to just shut up and take it. For every account, they have a dismissive response.

So when Mary in Texas, one of the Americans whose stories have been gathered by the ACLU, gives this account:
The TSA agent used her hands to feel under and between my breasts. She then rammed her hand up into my crotch until it jammed into my pubic bone…. I was touched in the pubic region in between my labia…. She then moved her hand across my pubic region and down the inner part of my upper thigh to the floor. She repeated this procedure on the other side. I was shocked and broke into tears.
- Mary in Texas
. . . the Louisville, Kentucky Courier-Journal is there to tell Mary that she is a big crybaby.
At what point did Americans turn into a nation of crybabies? Surely it preceded the sudden squall-fest resulting from new security measures at some U.S. airports — although the fuss kicked up over the weekend and continuing into this busiest of travel weeks has been loud enough to get everyone’s attention.
Ken noted other editorialists who labeled critics as "partisan hacks" or "hysterics" and suggested that opposition to the TSA somehow dishonored our troops in Iraq and Afghanistan. Though over the Thanksgiving travel period many Americans subjected themselves to the TSA's freedom fondling unenthusiastically but quietly, many others were not just eager to be scanned and groped but also eager to tell the media. Mark Bennett quoted nearly a dozen such folk and had some harsh words for them:
You are fit only to be subjects, not citizens of a republic. May posterity forget that you were our countrymen.

Our nation will never be safe for everyone. Even today, a terrorist could shove a bomb up his butt, walk through security, and blow a plane out of the sky. Even now, “whatever it takes” includes cavity searches. If you would join me in saying, “no further,” flying halfway around the world would still be safer than driving 200 miles on the freeway.

TSA cannot keep you safe. TSA did not stop the shoe bomber or the underwear bomber. Scope-or-grope would probably not have caught the underwear bomber. TSA has never caught a terrorist (if they had, you can bet that the organization that releases screening-area video in response to criticism would have trumpeted the fact). Your reliance on the government to keep you safe is false.

What’s more, by allowing the government to do “whatever [it claims] it takes,” you are complicit in terrorism.
Mike Cernovich came across an opinion piece from Marc Thiessen in the right-wing National Review. Thiessen dismissed the "Opt-Out" protests and suggested that instead we should thank TSA agents for sacrificing their Thanksgiving holiday "to keep us safe from terror"; Cernovich respectfully disagreed:
The Republican Party is the Party of Beta Males.

Indeed, the GOP is beta by definition, as the sine qua non of betaness is abdication. A beta male does not take responsibility for his life, but instead seeks the protection of some Other. Just look at Thiessen's concluding words:
They may very well be planning something equally spectacular for the tenth anniversary. So when we stop to give thanks for all our blessings this weekend, let’s give thanks for the people who spend their days and nights working to stop the terrorists from succeeding — including the men and women of the TSA.
Wrong, motherfucker. The last terrorist attacks have been prevented by passengers - passengers who, unlike Thiessen, were willing to stand up against evil. Those who would say, "Enough!"
Mark Bennett also commented on Thiessen's "We ♥ TSA" essay and ran the numbers:
TSA apologists like to point to the failed plots that TSA didn’t stop as evidence of the need for TSA: TSA failed to stop the underwear bomber / shoe bomber / whatever, so we need to give the TSA more power. Thiessen uses the example of the 2006 Al Qaeda plot to blow up
seven transatlantic flights departing London’s Heathrow Airport — with more than 1,500 passengers on board — headed for New York, Washington, Chicago, Montreal, Toronto, and San Francisco.
Never mind that Heathrow is outside TSA’s bailiwick. Let’s run the numbers supposing that Al Qaeda had succeeded in 2006 in killing 1,500 people on flights leaving US airports. There were 50 other commercial air travel fatalities in 2006 (the Lexington Comair crash), so a successful Al Qaeda domestic-travel megaplot would have raised the number of fatalities to 1,550. There were 724,733,000 passenger emplanements in 2006. So if such a plot had succeeded the risk of getting on a plane in 2006 would have been 2.13 in a million. The same year there were 1.42 fatalities per million highway passenger miles, so getting on a plane in 2006 (if the imaginary domestic plot had succeeded) would have been about as dangerous as driving 150 miles.
Jack Goldsmith was more sympathetic to Thiessen's arguments, particularly his suggestion that the current backlash reflects a public which has "begun to forget" the events of September 11. Goldsmith wrote that:
There is little reason to think that the public today has the terrorism threat “in perspective.” Just as 9/11 sparked fears that probably led the public to overstate the threat, nearly a decade without a successful attack has almost certainly led the public to underestimate the seriousness of the threat it cannot see. I cannot prove that the threat is greater than the public thinks, of course, but I bet that any senior national security official would say, based on much more information than the public has, that it is. Indeed, that seems to be the premise underlying TSA’s refusal to back away from its unpopular screening procedures. It is also one reason why Barack Obama has embraced so many counterterrorism policies of his predecessor.

In my book on this subject [The Terror Presidency: Law And Judgment Inside The Bush Administration], I wrote that “the Terror Presidency’s most fundamental challenge is to establish adequate trust with the American people to enable the President to take the steps needed to fight an enemy that the public does not see and in some respects cannot comprehend.” This is a challenge that Lincoln and Roosevelt did not face in their wars. As I wrote:
This growing gap between the government’s view of the terror threat and what it thinks must be done to stop it, and the public’s view of the matter, is an enormous problem for the Terror Presidency and for the country. “[P]ublic sentiment is everything, Abraham Lincoln once said. “With public sentiment, nothing can fail; without it, nothing can succeed.” When the public does not share a President’s assessment of a threat, the President has a hard time garnering the trust and support necessary to meet it.
This, I think, is what Thiessen meant when he said that “[t]he current uproar could happen only in a country that has begun to forget the horror of 9/11.”
As much of the discussion over the past couple of weeks anticipated the planned "Opt-Out Day" protests on 24 November, it's fair to ask how those protests went. The consensus amongst the mainstream media outlets and many commentators was that the protests "fizzled" as major airports experienced no notable delays in security screening and relatively few people actually opted-out from full-body scans. Mark Bennett argued that even if that's so, the protest might still be considered a success and, what's more, there's considerable reason to doubt the official numbers:
There are many ways to measure success. It could be measured, as its organizers say, by awareness raised. In those terms, it was a glowing success. People, including congresscritters are asking tough questions....

Success could also be measured by increased proportions of people opting out. The legacy media’s numbers, fed to it by TSA’s propagandists, tell only part of that tale. There were 113 opt-outs at LAX (or was it 133 out of 50,000 total passengers as of mid-afternoon?), but we have no information on how many passengers were asked to submit to full-body scans. Unfortunately, TSA keeps that information and—tellingly—they aren’t talking.
That absence of key information was also noted by Jonathan Adler, amongst many others:
Here’s an interesting round-up of stories suggesting the Transportation Security Administration kept body-image scanners (and the associated aggressive pat downs) out of service over the holiday weekend. If so, it was a cynical effort to dampen growing concerns about the TSA’s new security measures — so the TSA could proclaim “Opt-Out” day had become “TSA Appreciation Day” – and one that is likely to fail. As I noted here, the body-image machines and new pat downs have only been installed in less-than-twenty percent of the airport security lanes in the country, so if their use is objectionable to many travelers, then the groundswell will return as the TSA puts the new scanners and policies in place.
Nate Silver explained why the missing information is critical to understanding whether the low numbers of opt-outs indicated a lack of protest by the traveling public or an avoidance of it by the TSA:
I have no reason to doubt the two specific claims that the T.S.A. has made: first, that security lines at most airports were manageable (if not, I’m sure we would have seen plenty of evidence to the contrary, between tens of thousands of passengers with cellphone cameras), and second, that a relatively small number of passengers opted out of the new screening procedures.

Nevertheless, there are several things that the T.S.A. isn’t telling us — pieces of information that would seem to be critical to any comprehensive assessment of the efficacy of the new procedures.


If, for instance, the scanners were only in use at one of LAX’s terminals, and then only for part of the day, perhaps only some small fraction of LAX outbound passengers passed through them, which means that the opt-out rate would have been considerably higher than what T.S.A. is implying.

This is particularly relevant given that there were anecdotal reports that the new scanners were not used over the holiday weekend at some checkpoints where they normally are (an allegation the T.S.A. has denied.) Now, these reports need to be interpreted cautiously, since some of them may have come from infrequent fliers who don’t have a good handle on whether or not the new machines are used under ordinary circumstances. Still, the T.S.A.’s data is not really worth very much without knowing how many passengers had the option of opting out — meaning, that they were asked to pass through full-body scanners than metal detectors — and how this compares to a normal day.
Jacob Sullum and Mike Masnick accepted that even if the TSA was cooking the numbers a bit, the protests seemed to have generated less mainstream participation than organizers had hoped. Sullum characterized enhanced screening as just another of a series of outrages which Americans soon come to accept as the "new normal":
It does not surprise me that few travelers opted for the less pleasant, more humiliating search option in order to make a statement. Those numbers do not necessarily mean that most Americans have no problem with the new procedures.... Still, Americans have a history, at airports and elsewhere, of quickly getting used to invasions of privacy and infringements of liberty aimed at enhancing public safety. Requirements that originally seemed objectionable—from surrendering your pocket tools and beverages to taking off your shoes, from mandatory seat belt laws to DUI roadblocks, from divulging your Social Security number to showing your papers, from letting police dogs sniff your luggage or your car to signing a registry when you buy allergy medicine—soon become the new normal. And when it comes to deciding when a search or seizure is "unreasonable," practices that people readily learn to tolerate are more likely to be upheld by the courts.
Masnick wrote that he thought the "Opt-Out Day" idea was a silly one; he wonders now whether it might have been harmful to the cause it sought to promote:
In retrospect, it may have been worse than silly. Since there was no corresponding gridlock at airports, it appears that the press has now decided that because "national opt-out day" was a failure, it means people don't really care about the TSA's new policies. In other words, the failure of the protest means this "story" is over, much to the relief of the TSA and the administration, who now thinks it can go on ignoring the very real concerns of passengers.

This is a problem.

It's no surprise that the media storm over the TSA procedures had an arc. It's how major media stories go. But, it's unfortunate that there was this misguided focus on getting a bunch of people to do stuff on a particular day (and a day when they are probably least interested in actually doing what's asked of them). Because of that, suddenly, to the major media, it feels like this story is "over."

Odds n Ends Shop

We can always rely on Lyle Denniston's level-headed and knowledgeable Supreme Court reporting; my respect for his work is apparent to anyone who regularly reads these Round Tuit posts (or even just this one — he's linked twice in the first section above). His colleague at SCOTUSblog, Anna Christensen, noted this past week that Denniston had posted his 2,000th post at the site. That he's been doing this longer and more prolifically than most others is worth recognizing; when one reflects on the extraordinary — and extraordinarily-consistent — quality of those posts, Denniston's is a milestone worth applauding throughout the legal blogosphere and beyond. I wonder whether in the past few years any reporter, online or off, has contributed as much fine reporting and insight about the high court's activities and cases as he has. Christensen wrote, and I think it's safe to suggest that we all agree, that:
SCOTUSblog is incredibly privileged to feature Lyle’s brilliant legal commentary as a major component of our Supreme Court coverage. Lyle’s writing is what allows SCOTUSblog to make the Supreme Court accessible to all our readers – attorneys and non-lawyers alike – and his keen eye for upcoming issues and for post-ruling fallout has allowed us to provide our readers with the most up to date and timely reporting available. On behalf of the entire SCOTUSblog team and our readers, I sincerely thank Lyle for all 2000 of his SCOTUSblog posts, and look forward to reading 2000 more.
After a few weeks ranting about the TSA and the dysfunctional justice system in California and elsewhere, I need a break. I know that for reading these rants you deserve a break, too, but let's keep this all about me. After all, you can tune me out anytime; I have to live with myself 24/7 and for that I deserve your sympathy. To relax, I enjoy watching television (what, you thought I was spending hours at the gym?), particularly soccer matches and British programs; on those rare occasions when I turn off the TV, I like to spend time outdoors enjoying the abundant sunshine we have here in California. This past week, the legal blogosphere discussed all three.

A UEFA Champions League match between Spanish side Real Madrid and Dutch club Ajax finished with an expected result — Real overpowered Ajax easily — but provoked widespread controversy with a pair of unusual cautions against prominent Real players. Long story short, the players lined-up for free kicks but then wasted time in particularly obvious fashions, leading to the referee showing both yellow (caution) cards. Mike Madison discussed the game and the fallout:
The accusation: Real manager Jose Mourinho (who is Portuguese) is accused of sending messages to the two players (via other Real players), instructing them to intentionally incur the yellow cards. Why? Under standard UEFA rules, accumulated yellow cards result in a suspension for the following match in the competition. Alonso and Ramos had previously collected yellow cards that put them on the brink of suspension. By triggering the standard ban, they now must sit — against Auxerre. No harm to Real there! Had the players not acquired their cautions against Ajax, they would have risked receiving a yellow card in a later match and having to serve suspensions for a match that matters. After the Auxerre match, they will have a clean slate.

Did Mourinho put the fix in? Of course, he has denied any wrongdoing, and the case against him and his players is built entirely on circumstance. Aside from the curious behavior of the players, Mourinho is well-known as a controversial but masterful tactician.

UEFA is investigating. Suspensions for the players of more than one match — which could impact Real during the knockout stage — appear to be within its power. On the one hand, the circumstantial case against Real appears strong, but the case for further suspensions derives largely from a rather vague sense of fairness that is borrowed from the world at large and applied to the soccer world. The case against further suspensions is based on more soccer-specific norms: Even if Real gamed the system, the system is game-able, and Real should not be punished for taking as much as the rules permit.
While UEFA announced yesterday that it would fine and suspend Mourinho for a game (the players were also fined), Karma proved itself a swifter judge. In Monday's high-profile match between Real and its arch-rivals Barcelona, Real were utterly beaten 5-0; it was reportedly the worst defeat any Mourinho team has ever suffered.

Blogger ObiterJ at the UK's Law and Lawyers site discussed a television program of which I'd not previously heard, Garrow's Law:
The BBC Television series "Garrow's Law" is proving to be very popular. It is based on criminal trials which took place at The Old Bailey in the 18th century and highlights both the harshness of the system and the unfairness of the trial processes of the day.


A defendant (formerly referred to as "the prisoner at the bar") was not permitted to give evidence on his own behalf until the Criminal Evidence Act 1898. Today, the defendant may not be compelled to give evidence but is competent to do so - (here). However, failure to testify might result in inferences being drawn and these might be adverse to the defendant. The "right to silence" - whilst technically remaining in place - has been abrogated to a considerable extent: Criminal Justice and Public Order Act 1994 ss. 34-39.

A right of appeal from conviction by a jury came with the creation of the Court of Criminal Appeal by the Criminal Appeals Act 1907. This court superseded that Court for Crown Cases Reserved which could only consider points of law. It was through cases such as Adolf Beck and George Edalji that the need for an appellate court was shown to be necessary. The Court of Criminal Appeal existed until 1966 when the modern Court of Appeal with its Civil and Criminal Divisions was created.

Historically, the speedy and almost cursory nature of trials was remarkable and the harshest of punishments were handed down. Many crimes were punishable with sentences such as death, transportation etc. Evidence was not tested to anything like the extent applicable today.
As the Garrow's Law series does not appear to be available over here via DVD or download, I may need to... ahem... explore other channels. In the meantime, I can get away from the tube and enjoy the great outdoors — provided that, in this tight economy, I do it only at night. Kevin Underhill introduces us to Angeles Duran, who now owns the sun:
Angeles Duran did not say how much she was going to charge people for using the Sun, but she did confirm that she owns it, that her claim is legally valid, and that she will be charging a fee. Duran, a 49-year-old Spaniardess, said she had registered her claim with a local notary public and now owned the Sun free and clear.

The document reportedly declares that Duran is the owner of "the Sun, a star of spectral type G2, located in the center of the solar system, located at an average distance from Earth of about 149,600,000 kilometers." So if that's the same star you have been freeloading off all this time, get prepared to ante up.

If only you had been paying attention, this could have been you. "I did it," Duran said, "but anyone else could have done it. It simply occurred to me first." And don't think she didn't do her homework before dashing down to the notary public's office. Duran said she is aware that there is an international treaty that precludes ownership of extraterrestrial objects, but said the treaty applies only to countries, not to their individual citizens. "I backed my claim legally," she said. "I am not stupid, I know the law."
Good enough for me.

Presumably, if she's going to charge for access to sunlight, she'll have some way to cut-off those of us who refuse to pay (Angeles... there's no need to reinvent the wheel... Montgomery Burns already thought this scenario through). If she has the ability to control sunlight, doesn't she then have an obligation to do so? If she fails to prevent the sun from illuminating my property, do I have an action for trespass? If I get a sunburn, can I sue for personal injury? There are all sorts of possibilities here.

It's been estimated that in the United States alone, more than 100 million people are sunburned each year. At last, we may have found a way to ensure full employment for all those otherwise-unemployable graduates our law schools churn-out each year. If you're a 3L at a law school in the bottom tiers of the U.S. News rankings, you owe Angeles Duran a muffin basket.

Header pictures used in this post were obtained from (top to bottom) Carbolic Smoke Ball Co., University of California, Berkeley Goldman School of Public Policy, Schneier on Security, and Paris Odds n Ends Thrift Store.

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