Lawyers in the blogosphere are always complaining that having a presence on the internet doesn't bring them more business, just more people asking for free legal advice. Today, while cleaning out a bunch of spam email, I discovered that somebody was asking me for free legal advice.

Since I'm not a lawyer in any way, shape, or form, I figured I'd throw it out to all my readers, some of whom I believe are actual lawyers.

I came across your site / blog and I thought perhaps you could answer a question.  My 23 yr old sister has started making extra money selling her used panties.  Is there anything illegal in Illinois regarding buying or selling used panties?  I worry about her safety, but also the legality.  Perhaps, this would be an interesting topic for you as well.  Thanks

Used panties are not really a very interesting topic for me, thanks for asking. Nevertheless, I'm throwing it out for my readers. Any takers? Anyone want to jump in here? If you're an Illinois laywer, this could be your chance to own the state's used-panty legal advice market!

I've learned from long experience that nobody ever contributes anything if you just ask. But if you write something yourself, everybody will jump in to correct it. So here are my NON-LAWYER bits of advice to young ladies thinking of selling their unmentionables:

• Get advice from an actual lawyer.
• Illinois law enforcement is probably not the problem. Federal law enforcement is.
• Invest in a plastic bag sealing machine to keep in the freshness of that just-sweated scent.
• Just because it's kinky doesn't mean you won't have to do all the paperwork any other business would have to do. If local authorities discover your activities, this is an easy way for them to make trouble for you.
• The limiting production factor is the time it takes to wear the panties long enough to impregnated them with the smell of a woman. To avoid idling the process, be sure to order new panties well before the last pair ships. Don't forget you'll need time for modeling and updating the web site before you can bring in new orders.
• There's probably nothing illegal about selling used clothing or shipping it through the mail. But when you model the clothing and send flirtatious messages to customers, it becomes a sex-related business, and the government gets a little weird about stuff like that.
• Boyshorts are slower movers than you'd think. You'll need them for completeness, but don't let them build up in inventory.
• There's a world of difference between soiled and wet. Shipping bodily fluids through the United States Postal Service is probably a very bad idea. You say "soiled panties," the Postal Inspection Service says "biological hazard in contravention of anti-terrorism laws." I made that up, but the post office really can be dickish about things like that.
• Including a "special" photograph and a hand-written perfumed note is a nice way to say "thank you" to a regular customer. Don't put the note in the bag with the panties though, it ruins the smell.
• Always follow Mark Bennett's million dollar legal advice.

That's all I've got. Anybody else have suggestions? Corrections? Angry and abusive rants?

One of the bigger crimlaw news items these days is a report from the Columbia School of Law that claims Texas executed an innocent man in 1989. According to an AFP wire story by Chantal Valery:

The report, entitled "Los Tocayos Carlos: Anatomy of a Wrongful Execution," traces the facts surrounding the February 1983 murder of Wanda Lopez, a single mother who was stabbed in the gas station where she worked in a quiet corner of the Texas coastal city of Corpus Christi.

...

Forty minutes after the crime Carlos DeLuna was arrested not far from the gas station.

He was identified by only one eyewitness who saw a Hispanic male running from the gas station. But DeLuna had just shaved and was wearing a white dress shirt -- unlike the killer, who an eyewitness said had a mustache and was wearing a grey flannel shirt.

DeLuna denied killing Lopez and instead identified Carlos Hernandez as the killer, but it appears police didn't give his claim much credence. Prosecutors even accused DeLuna of making up Carlos Hernandez. DeLuna was convicted and sentenced to death, and six years later he was executed.

The Columbia report identifies an actual person named Carlos Hernandez who was in the area at the time. He looked a lot like Carlos DeLuna, and police knew who he was. He was eventually imprisoned for murdering another woman. He died there of natural causes, but not before repeatedly confessing to the murder for which DeLuna was executed.

I haven't read the actual report, but from what I'm hearing, it makes a pretty good argument. I think Texas has probably executed an innocent man. He might not be the only one, if you believe the forensic argument that Cameron Todd Willingham didn't commit the murder for which he was executed in 2004.

Regarding the DeLuna case, Houston criminal defense lawyer Mark Bennett says we should shout it from the rooftops:

The position of most adherents of the death penalty is that there are enough procedural safeguards built into the system that nobody has ever been executed for a crime he did not commit, and that the probability that someone factually innocent could be executed is so small that it does not merit chucking the penalty altogether.

It should be noted at the outset that the dissent does not discuss a single case--not one--in which it is clear that a person was executed for a crime he did not commit. If such an event had occurred in recent years, we would not have to hunt for it; the innocent's name would be shouted from the rooftops by the abolition lobby.

Kansas v. Marsh (Scalia, J., concurring).

Prepare for that to change. Shout it from the rooftops: Carlos DeLuna, executed in Texas for the 1983 murder of Wanda Lopez.

Well, why not? I guess. I'm not really surprised by this news, though. Although some death penalty proponents have their heads in the sand, if we continue to have capital punishment, execution of an innocent person is inevitable.

About six years ago I got into an argument with a prosecutor who blogged that "the error rate for carried-out executions remains zero." At the time, neither the Willingham nor DeLuna cases had come to light. Even if we ignore those cases, however, the prosecutor's statement was misleading on two counts.

First, nobody knows the ultimate truth about the errors of our system of capital punishment. It's not as if God comes down after the execution and tells us whether we got it right. We'll never be able to rule out the excution of an innocent person with perfect certainty. The best we can do is talk about the rate of discovered errors.

There have been a number of cases where death row inmates had their sentences -- or even their convictions -- overturned because some error was discovered in the process that put them there. Proponents of the death penaltly say this is an example of the system working and correcting its mistakes. That's true enough, the system corrected a mistake, but that doesn't mean the system has corrected all its mistakes.

Imposition of the death penalty is a long road that starts with the sentence and ends with the execution. In between, there are a bunch of corrective measures, appeals and reviews, each of which reduces the chance of an erroneous execution. It's a mistake to think that no innocent people have reached the end of the road just because we don't know their names.

In response to a couple of comments along those lines, the prosecutor responded,

Nice try, but the issue is not what statistical probabilities tell us, since they after all are only educated guesses. The point I have made is that the known error rate for completed executions stands at zero. That is fact, not conjecture: there has not been a single case of an innocent person being executed who was thereafter shown to be factually innocent. It's as simple as that, and all the statistical gymnastics in the world do not change that actuality.

This brings us to the second reason it's misleading to look at the error rate for carried out executions. The prosecutor dismissed "conjecture" about the error rate, but that ignores the purpose of our argument. We're talking about capital punishment because we are trying to make a policy decision: Should we continue to execute criminals? And if so, under what circumstances?

This is necessarily a decision about our future, and when it comes to our future, we don't have the facts yet. Even if we could prove, with absolute and perfect certainty, that no innocent person has been executed, that doesn't prove we won't execute one tomorrow. When it comes to the future, conjecture is the all we've got.

We've got to make decisions about the future of our capital punishment system, and that requires us to understand how our capital punishment system behaves, for which the best evidence is its performance in the past. But the past is only a sample of the system's behavior, not a complete description. We use past performance data to constrain statistical models that predict its future.

Suppose you flip a coin five times, and it comes up heads all five times. Would you be willing to declare that the coin is a perfect head-flipping coin? Probably not. What if you got 10 heads in a row? That should make you more confident, but is it enough? How many times in a row would the coin have to come up heads before you would be willing to bet something valuable on it? Something like the life of an innocent American.

Let me try to make this a little more complete with a very rough mathemetical model. Suppose we can approximate the decision to execute someone -- from identification of a suspect to throwing the final switch -- as a linear series of steps. If there are N steps in the capital punishment system, and at each step i there is a probability p_i (where 0 <= p_i <= 1) that an innocent person will slip past, then the probability p_execution of an innocent person slipping past all the steps and being executed is given by:

p_execution = p₁ × p₂ × p₃ ×...× p_N

Simple math tells us that The value of p_execution can only be zero if at least one of the terms p_i is zero. That is, unless one step in the process is perfect, the whole process is necessarily imperfect. If any death penalty proponent really thinks the process is perfect, I invite them to identify the one perfect step so we can save a lot of time and money by dispensing with the rest of the justice system.

If that's too abstract, then imagine our current policy extended into the distant future. Assume we execute about 50 people year, and assume we do it for the next million years. Do you really believe we can execute 50 million people without even one of them being innocent? No? Great, then we agree the death penalty isn't perfect. Now we're just arguing about the number.

Elsewhere in his concurrence on Kansas v. Marsh, Justice Scalia cites Oregon District Attorney Joshua Marquis's absurd calculation of a false felony conviction rate of only 0.027%. However, assuming that DeLuna and Willingham were both innocent (as seems likely to me), and knowing that there have been 1295 executions since the Supreme Court decided it was constitional (again), we can set a lower limit on p_execution of (2/1295=) 0.15444%, more than five times higher than Scalia's number.

The wrongful execution rate of 0.15444% is a lower limit because we can't be sure there weren't more innocent people executed. We've discovered two of them, but the total number depends on the probability of discovery p_discovery of a wrongful execution, and right now all we can say is

p_execution × p_discovery = 0.15444%

The smaller the probability of discovery, the more innocent people must have been executed for us to discover two of them.

In the end, Scalia did get it right:

Like other human institutions, courts and juries are not perfect. One cannot have a system of criminal punishment without accepting the possibility that someone will be punished mistakenly.

That may sound callous, but it has the advantage of being true.

Chicago will be hosting the NATO summit meeting this month, and it's turning into a typical display of government arrogance. For a recent example, the Metra commuter rail system has announced that they will be stopping service on the line that runs through the summit location:

Metra plans to operate regular service on 10 of its 11 lines. For the Metra Electric Line, most trains will operate, although some stations and the Blue Island branch line will be closed for all or part of the summit. Those closings are detailed below.

In other words, "Sorry, you poor working stiffs who have been our customers for years, but we're doing important stuff here and you'll just have to make do."

Naturally, they're also using this as an excuse for various infringements of our Fourth Amendment rights:

Riders of all lines may be subject to screening and baggage checks, with more extensive screening on the Metra Electric Line. Passengers on all lines will be prohibited from carrying many items onboard trains and will face other security restrictions outlined below.

These restrictions apply to all lines, even those that have nothing to do with the NATO summit, and Metra's description of the changes is kind of chilling:

In addition, the following safety measures apply to riders of all Metra lines during the three days (May 19, 20 and 21) of the summit:

1. Riders may be subject to search and/or screening before boarding or while en route.

2. Riders may carry only one bag not exceeding 15 inches square and 4 inches deep. Boxes, parcels, luggage, backpacks and bicycles will not be allowed on trains. Banned items cannot be stored at Metra stations. They must be removed or they will be disposed of.

3. Riders may not carry any food on the trains. Liquids and personal effects (such as makeup) must be less than three ounces in size. This includes coffee and other beverages. Breast milk can be carried but is subject to inspection and should be declared during any screening.

4. Riders may not carry any type of tools, pipes, stakes, wood or weapons, including pocket knives and pepper spray, on the trains.

5. Law enforcement personnel must identify themselves and present their credentials and any weapons. Security guards will not be allowed to carry any weapons onboard.

Failure to comply with these safety measures or instructions from law enforcement personnel, or attempted avoidance of screening, will result in ejection from the station or further police action.

The suspicionless searches amount to some kind of internal checkpoint, which is bad enough, but the rest of the rules are going to inconvenience thousands of people. No tools or pocket knives? What's the theory here? That someone will use a Swiss Army knife to derail a train? And the rules against food and beverages sound insane.

They even have the 3-ounce beverage rule! That was put in place on airplanes because of the theoretical threat that 3-ounces of liquid explosives could bring down a plane. I'm no expert, but I'm pretty sure 3 ounces of explosives wouldn't do much damage to a 40-ton solid-steel Metra passenger car, let alone a whole train of cars. And in the worst case, the train can just roll to a stop.

Remember, this is not just for people entering the NATO summit site. It affects everyone riding on the entire commuter rail system. Because, you know, someone might threaten the NATO summit from 15 miles away by carrying a sandwich onto a rail car.

The powers that be in NATO and Washington, D.C., and Chicago City Hall have decided to host this summit, and they're cracking down with the violent power of they state because they're scared that somebody somewhere might do something they don't understand and control. This is the totalitarian impulse in action.

(Hat tip: Tina Sfondeles and Casey Toner at the Chicago Sun-Times.)

A few weeks ago at the Ethics Alarms blog, Jack Marshall published his list of 24 ways people justify unethical behavior. He starts the list with an old rationalization that is the basis for several others:

1. The Golden Rationalization, or "Everybody does it"

This rationalization has been used to excuse ethical misconduct since the beginning of civilization. It is based on the flawed assumption that the ethical nature of an act is somehow improved by the number of people who do it, and if "everybody does it," then it is implicitly all right for you to do it as well: cheat on tests, commit adultery, lie under oath, use illegal drugs, persecute Jews, lynch blacks. Of course, people who use this "reasoning" usually don't believe that what they are doing is right because "everybody does it." They usually are arguing that they shouldn't be singled out for condemnation if "everybody else" isn't.

Since most people will admit that principles of right and wrong are not determined by polls, those who try to use this fallacy are really admitting misconduct. The simple answer to them is that even assuming they are correct, when more people engage in an action that is admittedly unethical, more harm results. An individual is still responsible for his or her part of the harm.

If someone really is making the argument that an action is no longer unethical because so many people do it, then that person is either in dire need of ethical instruction, or an idiot.

Despite Jack's warning in the last paragraph, I'd like to write a few posts about situations where "everybody does it" is a actually a pretty good argument. I'll let you decide whether I'm in need of ethical instruction or if I'm just an idiot.

I'll start with the most obvious example: I don't think anyone in this country doubts that driving on the left-hand side of a two-way road is unethical. First and foremost, it creates an immediate and potentially deadly hazard to oncoming traffic. Second, even if there's no traffic, driving on the left side increases the possibility that a pedestrian will get hit because he or she was looking the other way. It's so dangerous that I think we can safely say that only drunks and maniacs drive on the left-hand side of the road.

Or Englishmen. At least while they are in England, because everyone there drives on the left-hand side of the road.

I'm not sure how people ended up driving on different sides of the road in different countries -- the best explantions I've heard have something to do with differences in the types of wagons pulled by horse-drawn teams -- but whatever the reason, once one side began to dominate common practice, it would have been a huge gain in safety and efficiency to require everybody to drive on that side.

In other words, it's the right thing to do because everybody does it.

(Arguably, the ethical rule is not "drive on the left side of the road" but rather "drive on the agreed-upon side of the road." Driving on the other side is unethical not because there's something bad about that side, but because it violates our common agreement about how to drive safely. That common agreement is exactly the sort of consensus ethical rule I'm talking about when I say that "everybody does it" can be a good justification.)

For another example, in the condo building where I live, except for the occasional party, I never hear the sounds of my neighbors' lives. It would be rude for any of us to play lound music or crank up the television. If was a persistent problem, it would be cause for a complaint to the board.

This is very different from when I lived in a college dormitory, and everyone played loud musing all day and late into the night. It's not that my college dorm mates were any less ethical than my condo neighbors. They were just younger and in college. Tolerating their neighbor's loud music was a small price to pay for being able to play their own loud music. If anyone had complained, he would have been the one behaving rudely.

It was a case of different cultures, different rules. When the rules are defined in terms of cultural norms, then "everybody does it" isn't just an excuse, it's the way the rules are made.

It's important to note that cultural norms variation of "everybody does it" only works when everybody involved is a willing participant in the culture. It's no excuse for cultural practices such as gay bashing, slavery, or burning the heretics.

Welcome to the new century, Mr. President, thank you for joining us.

"I have to tell you that over the course of several years as I have talked to friends and family and neighbors, when I think about members of my own staff who are in incredibly committed monogamous relationships, same-sex relationships, who are raising kids together; when I think about those soldiers or airmen or marines or sailors who are out there fighting on my behalf and yet feel constrained, even now that 'don't ask, don't tell' is gone, because they are not able to commit themselves in a marriage, at a certain point I've just concluded that for me personally it is important for me to go ahead and affirm that I think same sex couples should be able to get married," Obama told Roberts in an interview to appear on ABC's "Good Morning America" Thursday.

I don't see why Obama couldn't have said that three years ago, but I'm glad he finally said it. By way of explanation, he said his thoughts went through an "evolution" to reach this decision.

The president stressed that this is a personal position, and that he still supports the concept of states' deciding the issue on their own.

So...still a little more evolving to do...

Whenever I get tired of checking the bestseller lists on my Kindle book reader for new novels to read -- the top of the list has been owned by Hunger Games and Lisbeth Salander ever since I got the thing -- I like to try out a few of the cheap e-books. It's a bit like checking out experimental theater productions: Most of them turn out to not be very good, but sometimes they're unusual and different enough to get your attention.

I've been thinking for a while that it might be fun to blog about a few of these books, and the first one I'd like to tell you about is Shifted, by Colin D. Jones. It's been a while since I read it, and even at the time, it defied easy explanation, but I'll try.

First, however, I should point out that even though the main character is a werewolf of sorts, Shifted is not one of those books spawned by the popularity of the Twilight books or the Underworld movies. It's not even a counterpoint to those storylines. Colin Jones arrives at his werewolf story from a whole different direction.

Or maybe from several different directions. Shifted is kind of a coming-of-age story about a kid who grows up in an abusive environment and discovers that he has a...werewolf, of sorts...inside him, or maybe alongside him, since there's something about quantum physics and multiple universes. There's a ghost of sorts too, and secretive government agents, and a little bit about Norse legends.

Jones pulls these elements together from all over the place, and assembles them into a story that -- while not exactly a seamless whole -- isn't nearly as messy as it sounds. Jones's writing style is simple and unpretentious, and the book is a pretty quick read.

A couple weeks ago, Jack Marshall wrote a post criticizing the ethics of George Zimmerman's legal team. Later that same day, California criminal defense lawyer Mary Frances Prevost at California Criminal Lawyer Blog wrote a post about the same subject. Her post used many of the same words. And rather a lot of the same phrases and sentences.

Marshall decided to call her out for plagiarism on Thursday. Given that Prevost's blog is basically marketing her lawfirm, my guess was that Prevost had hired someone to ghost-write her blog, and that person had figured they could just steal Jack's post instead of doing actual work. I figured that she'd probably apologize when she found out.

That's not what happened, according to Jack Marshall in a followup post a few days later. He had emailed Prevost, asking for "an explanation, and failing that, an apology, a retraction, and proper credit." Instead, according to Jack, she responded via Facebook with a message that included this:

I have counseled with one of the country's premiere ethics attorneys. Here's the result: 1) accusing me of a crime is defamation per se and unethical; 2) suggesting that my entire law practice has been based on unethical conduct is defamatory and unethical. I maintained copies both of your email and blog. It is clear that you are hell bent on engaging in systematic harassment and unethical conduct, the likes of which can, and most likely will, develop into a lawsuit unless rescinded forthwith.

It is clear you have little to do in your life besides sent me emails accusing me of crimes, and writing poorly written blog posts accusing me of immoral behavior. Interesting how one making such claims, engages in most egregious conduct himself....But the sheer amount of energy really suggests something more: a lack of work; too much time; off your meds. I suggest you take a look inward and remove your defamatory and unethical blog post regarding me. Indeed, you should come clean on your blog. You've practiced law only two weeks before giving up. Yet, your resume suggests far more experience. I think you should rethink what you've done.

[paragraph breaks added for readability]

Perhaps this is a good aggressive response in the legal arena, but it doesn't go very far in the blogosphere. For all I know, she could very well be right to question Jack Marshall's motives and knowledge of legal ethics, not to mention his sanity, honesty, writing skils, and personal hygiene. Lord knows, I strongly disagree with a lot of what Jack says. But when I quote what he writes, I follow the standard blogger ethic: I give credit and a link. And that highlights what this response is missing: She never addresses the substance of Jack's complaint. She neither admits nor denies the alleged plagiarism.

What really bothers me about Prevost's response, however, is her accusation that Jack is obsessed and has too much time on his hands. For someone who's been running a blog for five years, she really doesn't know much about blogging.

An email and a blog post do not come within a mile of being systematic harassment by blogosphere standards. Jack was just passing by. He says he sent one email, and he'd only written the one post at the time. Prevost could have just ignored him and he'd probably have moved on to something else. Instead, she responded in anger, triggering a second blog post. And now Jack says he filled out a bar complaint.

[Update: Jack says he hasn't filed the bar complaint yet and isn't sure that he needs to. See comments.]

As a criminal defense lawyer, Prevost probably gets the question all the time, "How can you defend those people?" I can almost see my defense lawyer readers flinching as they read that. It's not that they don't have a good answer, it's just that they're really tired of the question, and of the implication that there's something wrong with them for doing what they do.

For bloggers, I think the equivalent question is "Why are you bothering with this?"

I get that a lot. I'll read some news story, and some aspect of it will stick in my brain, and eventually a blog post will come out of it. This is how blogging works. Quite often, we leave the big, obvious stories to the news media and focus our attention on an interesting detail. And for some reason, this upsets people.

They say we're missing the big picture, as if the details couldn't possibly hold an important lesson. They accuse us of bias in picking a subject, as if having a point of view was sufficient to prove us wrong. They tells us we're ignoring the important story, as if life was a television script, and it would be confusing if too many things were happening at once.

This is the weakest possible criticism of a blog post. If you're not interested in what we're writing about, just stop reading. If you actively dislike what we're writing about, then write your own blog. In your own words.

One of my regular blog reads is Ravings of a Feral Genius where Jennifer Abel rants about libertarian topics. Jennifer's a writer by trade, not just by virtue of having a blog, which means she gets paid and published in real publications, the most prominent of which is probably her column in the Guardian.

This last Wednesday, however, Jennifer made this stunning announcement:

If you go to the newsstand and buy the May 2012 issue of Playboy, YOU WILL SEE ME INSIDE! .... no, wait, that came out wrong. Let me try again: if you buy the May 2012 Playboy, you'll find my latest anti-TSA column inside. It's on page 42 (which, as any Douglas Adams fan knows, is the ultimate answer to life, the universe and everything).

Whatever else Playboy is about, they've often attracted quality writers, so that's a pretty cool publication credit for Jennifer. Naturally, I wanted to read it.

That turned out to be harder than I thought. Playboy's website doesn't let you read much of its content without paying, and the May issue isn't even online yet. This meant I would have to go out and buy a printed copy of a magazine. Yeah, I know. Back before the web was big, I used to buy a bunch of magazines, but they were mostly about either computer software or politics, and these days you can find plenty about either of those subjects online. I had no idea where to buy a printed copy of Playboy.

I drove out at lunch time to a nearby magazine shop, but they turned out to have closed a while ago. The next day I tried some nearby convenience stores, but they all apparently stopped selling magazines without my even noticing. Last night I stopped in at Barnes & Nobel, but I could only find a single copy of Playboy, and it wasn't the right issue. I guess all that print-is-dead hype was pretty real.

Finally, I found out that City Newsstand in Evanston had the May issue, so I drove out there today and sent my wife in to get a copy. Score!

The article is in the Playboy Forum section (which is nothing like the Penthouse Forum section). If you're a regular reader of Jennifer's blog, it will be a familiar subject, although as an amateur writer, it's fascinating to see how she's adopted her style to the publication. I don't quite understand what's different, but it feels like there's about 20% less scorn and derision which, given her feelings about the TSA, is pretty amazing. It almost feels a bit (dare I say it?) playful.

Anyway, check it out. (Normally, that would be a link but, you know, dead-tree media.)

One of the things Kip Hawley left out of his explanation of why the TSA sucks is the TSA's infestation of other forms of transportation, such as the one described in this press release from the Houston Metropolitan Transit Authority:

In an unprecedented approach that involved four law enforcement agencies - including federal agents - METRO launched a national BusSafe pilot program last Friday that saturated its system and resulted in quality arrests, making transit safer for passengers.

The METRO Police Department, Houston Police Department, Harris County Precinct 7 Deputy Constables and 15 agents - part of so-called viper teams - from the Transportation Security Administration (TSA) joined forces in a synchronized, counter-terrorism exercise that focused on bus stops and shelters and transit centers.

Law officials performed random bag checks, conducted sweeps with our K-9 drug and bomb-detecting dogs, and assigned both uniformed and plainclothes officers at transit centers and rail platforms to detect and prevent criminal activity.

The call it a "counter-terrorism exercise," but in the very next paragraph they mention drug-sniffing dogs, which of course have nothing to do with catching terrorists. And given the incredibly self-serving nature of this press release, they would have mentioned it if any of the "quality arrests" had been for something even remotely resembling terrorist activity.

In reality, what they did was setup an internal checkpoint -- a place were citizens just going about their business are forced to show their papers and submit to questioning and investigation by the authorities -- which is the hallmark of tyrannical governments everywhere, and a sign of creeping totalitarianism here.

Naturally, our elected representatives don't see the problem:

Congresswoman Sheila Jackson Lee (D-Texas District 18), a senior member of the House Homeland Security Committee, called this a new era for the TSA, and a new era for surface transportation security.

"We're looking to make sure that the lady I saw walking with a cane...knows that METRO cares as much about her as we do about building the light rail," said Jackson Lee at the news conference.

What the hell is that? Mention a woman with a cane and somehow that makes it alright to harass citizens for no reason? Is she that stupid? Or does she think we're that stupid?

(Hat tip: Mark Bennett.)

Update: And now the Houston METRO folks have realized that "random" searches may not hold up in court, so they're trying to change their story. Mark Bennett is all over it.

According to Kip Hawley the TSA's airport security system is broken:

Airport security in America is broken. I should know. For 3½ years--from my confirmation in July 2005 to President Barack Obama's inauguration in January 2009--I served as the head of the Transportation Security Administration.

You know what Kip? Fuck you. You're part of the problem. The very first words out of your mouth should be "I'm sorry." Anything less is just not good enough.

You know the TSA. We're the ones who make you take off your shoes before padding through a metal detector in your socks (hopefully without holes in them). We're the ones who make you throw out your water bottles. We're the ones who end up on the evening news when someone's grandma gets patted down or a child's toy gets confiscated as a security risk. If you're a frequent traveler, you probably hate us.

I've flown once since 9/11. I still hate you. I hated you even before I flew. You know why I hated you, even though I hadn't flown? Probably not. It's because I have something called empathy for other people. I realize that's a foreign concept for you, but you really should try it out.

Any effort to rebuild TSA and get airport security right in the U.S. has to start with two basic principles:

First, the TSA's mission is to prevent a catastrophic attack on the transportation system, not to ensure that every single passenger can avoid harm while traveling. Much of the friction in the system today results from rules that are direct responses to how we were attacked on 9/11. But it's simply no longer the case that killing a few people on board a plane could lead to a hijacking. Never again will a terrorist be able to breach the cockpit simply with a box cutter or a knife. The cockpit doors have been reinforced, and passengers, flight crews and air marshals would intervene.

We've been telling you this for YEARS, you dumb son of a bitch! Years!

Sigh. According to Hawley, it's not all his fault, and I have to admit his explanation rings true:

I wanted to reduce the amount of time that officers spent searching for low-risk objects, but politics intervened at every turn. Lighters were untouchable, having been banned by an act of Congress. And despite the radically reduced risk that knives and box cutters presented in the post-9/11 world, allowing them back on board was considered too emotionally charged for the American public.

We did succeed in getting some items (small scissors, ice skates) off the list of prohibited items. And we had explosives experts retrain the entire work force in terrorist tradecraft and bomb-making. Most important, Charlie Allen, the chief of intelligence for the Department of Homeland Security, tied the TSA into the wider world of U.S. intelligence, arranging for our leadership to participate in the daily counterterrorism video conference chaired from the White House. With a constant stream of live threat reporting to start each day, I was done with playing defense.

Still, he's kind of clueless:

Taking your shoes off for security is probably your least favorite part of flying these days. Mine, too.

Actually, most offensive part is when the TSA pricks look at us naked and touch us in places that strangers shouldn't touch us. I realize that system came online after Hawley left the TSA, but it was going through procurement while he was in charge.

Eventually, he gets to a list of changes he proposes, most of which are pretty good:

What would a better system look like? If politicians gave the TSA some political cover, the agency could institute the following changes before the start of the summer travel season:

1. No more banned items: Aside from obvious weapons capable of fast, multiple killings--such as guns, toxins and explosive devices--it is time to end the TSA's use of well-trained security officers as kindergarten teachers to millions of passengers a day...

2. Allow all liquids...

3. Give TSA officers more flexibility and rewards for initiative, and hold them accountable...

The TSA's basic problem with accountability is that it is responsible for enforcing its own standards. That's not very effective, especially since TSA employees have civil service protections that make them hard to fire. They aren't law enforcement officers, so they don't need to be government employees. The best way to hold airport security employees accountable is to lay off 90% of TSA employees and go back to the private security system we had before. Turn the remaining TSA officers into inspectors that hold the private system accountable.

4. Eliminate baggage fees: Much of the pain at TSA checkpoints these days can be attributed to passengers overstuffing their carry-on luggage to avoid baggage fees...

You could also try to make baggage handling safer and more efficient. Stop losing bags. Stop letting baggage handlers and TSA officers steal stuff. All that security, and someone can still walk off with anything you check. That's why people carry stuff on.

To be effective, airport security needs to embrace flexibility and risk management--principles that it is difficult for both the bureaucracy and the public to accept. The public wants the airport experience to be predictable, hassle-free and airtight and for it to keep us 100% safe. But 100% safety is unattainable. Embracing a bit of risk could reduce the hassle of today's airport experience while making us safer at the same time.

Again, some of us have been telling you that for years.

--Mr. Hawley is the author of "Permanent Emergency: Inside the TSA and the Fight for the Future of American Security," to be published April 24 by Palgrave Macmillan.

Like we didn't see that coming...

Security expert Bruce Schneier, who has been explaining the TSA's errors for years, has posted his reaction, which is basically that Hawley has finally caught up to the rest of us. Also, Hawley was saying something completely different as recently as one month ago.

Wow, it looks like somebody hacked into John Derbyshire's email and sent one of his publishing outlets something that would make him look a racist asshole. I mean, would even a jerk like Derbyshire really write shit like this?

(10a) Avoid concentrations of blacks not all known to you personally.

(10b) Stay out of heavily black neighborhoods.

(10c) If planning a trip to a beach or amusement park at some date, find out whether it is likely to be swamped with blacks on that date (neglect of that one got me the closest I have ever gotten to death by gunshot).

(10d) Do not attend events likely to draw a lot of blacks.

(10e) If you are at some public event at which the number of blacks suddenly swells, leave as quickly as possible.

(10f) Do not settle in a district or municipality run by black politicians.

(10g) Before voting for a black politician, scrutinize his/her character much more carefully than you would a white.

(10h) Do not act the Good Samaritan to blacks in apparent distress, e.g., on the highway.

(10i) If accosted by a strange black in the street, smile and say something polite but keep moving.

Holy Crap!

I keep thinking I must not be getting the joke, that this is some kind of rude satire, and I'm just missing the clues that give it away, like someone who never heard of Chris Rock tuning into the middle of him doing his "Controversy LaRue" character.

In my heart, though, I know Derbyshire's just a tool.

Update: Derbyshire, who is best known as a writer for National Review, isn't:

Derb is effectively using our name to get more oxygen for views with which we'd never associate ourselves otherwise. So there has to be a parting of the ways. Derb has long danced around the line on these issues, but this column is so outlandish it constitutes a kind of letter of resignation. It's a free country, and Derb can write whatever he wants, wherever he wants. Just not in the pages of NR or NRO, or as someone associated with NR any longer.

Cue complaining about NR's caving in to political correctness in 5...4...3...

[WARNING: This post is part of an April Fools Day prank. The Arizona bill is real, but the bill by Senator Lieberman is completely fictional. Eric Turkewitz was the ring leader for this event, and he has the wrap-up. The short version is that no one bit who should have known better.]

This weekend we're seeing a one-two-punch against freedom of speech -- at least as it exists on the internet -- one from Arizona, the other from the U.S. Senate.

You may have heard of the first punch, in the form of a stupid law that I can only guess is an overreaction to the "bullying" panic. The Media Coalition offers this description of Arizona House Bill 2549:

Arizona House Bill 2549 would update the state's telephone harassment law to apply to the Internet and other electronic communications. It would make it a crime to communicate via electronic means speech that is intended to "annoy," "offend," "harass" or "terrify," as well as certain sexual speech.  However, because the bill is not limited to one-to-one communications, H.B. 2549 would apply to the Internet as a whole, thus criminalizing all manner of writing, cartoons, and other protected material the state finds offensive or annoying.

The Media Coalition explains what's wrong with this in their letter to Arizona Governor Janice Brewer:

Government may criminalize speech that rises to the level of harassment and many states have laws that do so, but this legislation takes a law meant to address irritating phone calls and applies it to communication on web sites, blogs, listserves and other Internet communication. H.B. 2549 is not limited to a one to one conversation between two specific people. The communication does not need to be repetitive or even unwanted. There is no requirement that the recipient or subject of the speech actually feel offended, annoyed or scared. Nor does the legislation make clear that the communication must be intended to offend or annoy the reader, the subject or even any specific person.

In other words, this law would enact broad censorship of the press, and precisely because its result is so blatantly unconsitutional, I'm not too worried about it, even if it spreads outside of Arizona.

The second punch comes at the federal level, from reliable internet panic-monger Senator Joe Lieberman.

I know a lot of blogs attract crazy people, but I don't get too many of them here. I was reminded of this recently when I got a comment on this post about Julian Assange blaming me for the decline of journalism since Walter Cronkite died (or something). Perhaps the most dangerous sounding was "Albatross," who stopped by to defend writing about his fantasy of killing one of my former co-bloggers, and even he wasn't as crazy as that short summary makes him sound. I'd like to think the relative lack of crazy is because all of you regular readers are so goddamned intelligent and level headed, but I suspect it has more to do with the fact that there just aren't very many of you.

But even if the craziness in the comments got much, much worse, I don't have to spend too much time worrying about it, largely due to Section 230 of the Communications Decency Act, which makes it clear that web sites that accept content from third parties are not considered publishers of that content, and are therefore not legally responsible for it. Essentially, comments I receive are not editorial content of this blog; they're more like sheets of paper pinned to the billboard at a neighborhood community center.

All that could change if Senator Lieberman gets his way with a stupid new bill he's just proposed. The bill changes Section 230 to essentially strip away the protection against third-party content, making every blogger responsible for what commenters post. This will kill or cripple the lively comment areas of many blogs.

Even worse, remember that in many cases the blogs themselves are third-party content on someone else's site, such as blogs hosted by Live Journal, Blogger, or Wordpress. (The Huffington Post media empire itself would never have gotten off the ground if this law had been passed a few years ago.) There's no way those companies could afford to police the millions of blogs for which they would now be liable, and I suspect most of them would go out of business. Even my own humble blog might go under, since the company I pay to host it might somehow become liable for its content.

The Arizona law seems blatantly unconstitutional, but I'm not sure to what extent something as technical as the status of third-party content is constrained by the Bill of Rights, especially since 1st Amendment lawyer Brian Cuban seems concerned:

One may look at this and think, "good riddance to sites like the Dirty" but free speech for one is free speech for all, even commentary we find offense.  If this amendment passes, we are all stripped naked in our ability to engage in the honest and blunt discourse that anonymous commenting protects. It  puts an unbearable burden on not only the sites we might not like but the sites that encourage legitimate discourse. All consumer rating sites would disappear practically overnight.

Hat-tip to Florida criminal defense Lawyer Brian Tannebaum, who takes a Voltaire-esque stand:

I'm not a fan of the sewage that is most anonymous comments. In my little part of the blogging world they come from lawyers, lawyers parading as cowards - afraid to express their thoughts unless protected by anonynimity. But I certainly don't support federal legislation controlling the sewage.

Strangely, Mark Bennet thinks it might be a good idea:

Obviously, making it possible for web hosts to be held responsible for the conduct can't help but raise the tone. Letting people who have been libeled online seek justice from those who allow the comments rather than chasing anonymous ghosts will essentially bring much-needed grown-up (but -- and this is the key -- nongovernmental) supervision to the Internet, raising barriers to entry and therefore the quality and utility of the discussion.

I think the Other Mark is forgetting that he doesn't own the servers his blog is hosting on, and if this stupid bill passes, he might get an ugly surprise when his hosting company decides they don't have the time to research the facts behind some of the potentially libelous things he writes.

First Amendment Badass (and restauranteur) Marc Randazza confirms my interpretation and, naturally, stands strong, so I'll let him have the last word, in his inimitable style:

Although Lieberman is touting this amendment as an anti-terrorist effort, this action will have a chilling effect on all forms of Internet speech. Service providers from Comcast to Consumerist may now be treated as publishers to content posted to their websites. This opens up the possibility that review sites and others that rely on third parties for content will be held responsible for those very same deranged, sub-literate contributions. Lieberman's proposed amendment will have a chilling effect on free speech, as any site that does not want to drown in legal bills likely won't accept anonymous comments.  If you're a sissy with paper-thin skin or an obsession with "bullying," rejoice, I suppose.

...

Needless to say, inhibiting anonymous speech is an attack on this right in gross.  It will be a grave day if this amendment succeeds.  Although anonymous speech on the Internet is not always the most intelligent, it still has its place in public discourse -- for me to poop on.  Civil liberties should not be victims in the attempt to curb terrorism, yet we have already succumbed to the Scylla and Charybdis of the TSA and NSA in entrusting our rights to the benevolent government.  At this point, what's one more right ceded to the security theater's alphabet soup?

Eternal vigilance, folks. Enternal vigilance.

For those interested in the numbers, the Mega Millions jackpot stands at $540 million. That's the estimated nominal value of the annuity payout over 25 years (26 payments, the first one is immediate and the rest are at the end of the year). That annunity is calculated based on the current cash prize pool of $389 million.

If you won that cash prize, the federal government's tax bite would be about $136 million, based on the top marginal tax rate of 35%. (And really, the top bracket is all that matters for this kind of money.) There could also be a state income tax, depending where you live. For those of you here with me in Illinois, that's another 5% or about $19.5 million.

That leaves you with a mere $233 million after time-value-of-money and tax calculations. Given the 1 in 175,711,536 odds of winning the Mega Millions jackpot, this means that each Mega Millions lottery ticket you purchase has a mathematically expected value of $1.33.

That's right, for the first time I know of, the Mega Millions lottery is above the breakeven point. It could actually make some kind of financial sense to buy a ticket.

Of course, that's only if you're completely risk-blind, since the most likely outcome by far is loss of all your money. By comparison, synthetic CDO's backed by residential mortgages were a much safer investment even during the crash.

If you have a handy $175 million in cash, it might make sense to use it to buy all 175,711,536 possible lottery tickets, which would guarantee you a $58 million profit.

Well, that's not quite true. You see there's one thing these calculations didn't take into account, which is that someone else could also pick the winning number. I don't know the odds of that happening -- it depends on how many people buy tickets -- but if even one other person wins, it will cut your prize in half to about $117 million, for a net loss of $59 million.

Because of this possibility -- multiple winners splitting the prize pool -- even at a jackpot of over half a billion dollars, the Mega Millions lottery still might not actually be at breakeven.

Paul Krugman has a strange take on the Stand Your Ground law:

Florida's now-infamous Stand Your Ground law, which lets you shoot someone you consider threatening without facing arrest, let alone prosecution, sounds crazy -- and it is.

Florida's Stand Your Ground law may or may not be crazy -- the devil is in the details -- but Krugman's description of it misses by a mile. The legal principle that lets you "shoot someone you consider threatening without facing arrest, let alone prosecution" is plain old self-defense.

Krugman tries to make this sound sinister by using the deceptive phrase "consider threatening" which implies that the standard for opening fire is weak and highly subjective. In general, the standard is stronger than that: It's not self-defense unless a reasonable person in the same situation would fear for his life. Typically the defendent would have to prove that the person he shot had the means, opportunity, and intent to do great bodily harm. Also, the shooter has to have clean hands: You can't generally initiate a confrontation with someone and then shoot them if they fight back.

Now, I'm not a lawyer, and there is a lot of state-to-state variation in the details of how these laws are written and interpreted. For all I know, Florida law may enact a frightenly broad definition of self-defense. But that's not what Stand Your Ground laws are about:

The distinguishing factor of "Stand Your Ground" laws, which have been under renewed debate since George Zimmerman killed Trayvon Martin, is a simple concept: The rule was that a person had the duty to retreat if he can safely do so rather than use force against an aggressor in proportion to the force being used against him. "Stand your ground" laws eliminated this duty.

You may or may not think that's a good idea, but in either case, you'd be thinking more clearly than Krugman was.

Also, I don't know enough about the American Legislative Exchange Council (ALEC) to know if Krugman's description is accurate, but Krugman's link to Corrections Corporation of America (CCA) sounds like nonsense:

But where does the encouragement of vigilante (in)justice fit into this picture? In part it's the same old story -- the long-standing exploitation of public fears, especially those associated with racial tension, to promote a pro-corporate, pro-wealthy agenda. It's neither an accident nor a surprise that the National Rifle Association and ALEC have been close allies all along.

I'm not saying that CCA doesn't participate in ALEC -- it does -- but it's hard to see why a private prison corporation would back a law that puts fewer people in prison.

Update: And then there's this line:

And if there is any silver lining to Trayvon Martin's killing, it is that it might finally place a spotlight on what ALEC is doing to our society -- and our democracy.

So, Trayvon Martin was shot to death...but there's still a "silver lining" because some semi-shady public/private thinktank will get bad publicity. Good to know.

I'm sure you've all heard that Geraldo Rivera has diagnosed the problem in the Trevon Martin shoooting: He wore a hoodie!

Geraldo's case is, well, not entirely insane.

People do react to the symbols you wear. Ask any ex-hippie from the '60's if he was harassed about his long hair. That's not an entirely crazy response to long hair either: Hippies wore long hair as a statement, and some people were offended by the statement. Then other people started wearing long hair just because it seemed cool. They weren't trying to make a statement, but that didn't keep them from being treated as if they were.

No one controls the meanings of symbols -- not even the symbols of language, as the internet has taught us with its fast evolution of new words ("LULZ") or old words with new meanings ("trolls") -- and no one controls the meaning of an article of clothing. Which can have unexpected consequences.

American businessmen have sometimes run into this problem in England. In the clip above, Geraldo is wearing a striped tie. His tie looks mostly grey, but these striped "rep" ties come in all colors, and a lot of businessmen in America like to wear them. So do a lot of businessmen in London, but in London, these ties mean something.

To English men, striped ties are symbols of their affiliations. The patterns are specific to each organization. There are ties for schools, ties for clubs, and ties for military regiments (which is probably where the tradition of such ties began). It sometimes rubs them the wrong way to meet with an American businessman who shows up wearing a tie that represents a school that he didn't attend, or a Royal Army regiment he couldn't possibly have served in.

I've heard that kids in America's inner cities run into a similar problem with more tragic results when they unknowingly wear some element of gang colors -- just because they thought it was cool -- and then run into gang members who aren't pleased to see their colors disrespected, or find themselves in the territory of a rival gang, when they're not even in the gang.

In any case, just as the backwards-facing ball cap stopped being a gang symbol about the time parents started wearing them on outings with their kids, I don't think the hoodie is really much of a sign of a miscreant any more. My wife and I are both middle-aged white folks, and we've been wearing hoodies for years.

On the other hand...

A few weeks ago. My wife and I were returning home on a Saturday evening when, over a period of about three minutes, we saw eleven Chicago Police cars go flying by with the full light show. Curious what was going on, I downloaded a police scanner app to my phone, and we listened in on the radio chatter.

As we listened for the next 90 minutes or so, we learned that it was a manhunt for some people who had shot (without success) at a police officer. The police had only a sparse description, but it was enough to catch at least one of them as we listened: Two males. Wearing hoodies.

Imagine how awesome it must be to live in Alabama, where voters get to choose their next Chief Justice on the Alabama Supreme Court.

On the one hand, there's the Republican candidate, Roy Moore. He had the job before, at least until a few years ago when he was kicked off the bench. He's the judge who insisted on having a copy of the Ten Commandments displayed in his courtroom. When a federal court ordered it removed, he refused, and the Alabama Court of the Judiciary responded by removing him from the post.

Moore is also not too fond of teh gay:

To disfavor practicing homosexuals in custody matters is not invidious discrimination, nor is it legislating personal morality. On the contrary, disfavoring practicing homosexuals in custody matters promotes the general welfare of the people of our State in accordance with our law, which is the duty of its public servants... The State carries the power of the sword, that is, the power to prohibit conduct with physical penalties, such as confinement and even execution. It must use that power to prevent the subversion of children toward this lifestyle, to not encourage a criminal lifestyle... Homosexual behavior is a ground for divorce, an act of sexual misconduct punishable as a crime in Alabama, a crime against nature, an inherent evil, and an act so heinous that it defies one's ability to describe it.

So that's the Republican.

Then there's his opponent, Democrat Harry Lyon, who favors mandatory random drug testing for all high school students, in public and private schools. Also, one day while discussing the illegal immigration problem, this came out of his mouth:

"My idea is to bring attention to the problem and let the Legislature [and courts] decide," Lyon said. "I'd give them 90 days to make arrangements to make them leave and if after that, you'd have to go to public execution."

He also gave an interview, partially transcribed here:

Tim Lennox: "'It would only take five or 10 getting killed and broadcast on CNN for it to send a clear message not to fool, or not to step foot rather, in Alabama.' Is that an accurate quote?"

Harry Lyon: "That's an accurate quote. You have have to get tough on things like this. We're losing 35 to 50 soldiers a day in Iraq and Afghanistan. It's a tough proposal, but the legislature would have to approve it."

Lyon: "If I were an illegal alien in Alabama and I read that in the newspaper, I wouldn't wait around for laws to be passed, I would be going back to my homeland. They broke in here, they violated our laws. It's no different than breaking into your house."

And then somewhat later:

Lyon: "Now, I can assure you that proposal would fly right through the Alabama legislature is one of these illegal immigrants were to blow up the Galleria, OK?"

Lennox: "Well, but there's no indication that any immigrants in Alabama, illegal or otherwise, have done anything along these lines--"

Lyon: "Well, there's no indication about 9/11 until the buildings came down."

Lennox: "I mean, are you suggesting that this is a real concern of yours?"

Lyon: "Absolutely. These people are not here legally, they are here illegally. What do they care about the laws of Alabama, or the United States? Slap in our face."

He now claims he was being facetious (see the comments), but you can watch the actual interview (starts around 6:00, the second part comes around 19:50) and decide for yourself.

Roy Moore's campaign page is here (warning: plays audio on load).

Harry Lyon's criminal defense firm web site is here (although I wouldn't recommend him if you're worried about collateral immigration issues).

(Hat tip: Ed Brayton)

Today I did something that probably would have disappointed my father if he were still alive: I voted in the Republican primary.

My father was a yellow dog Democrat. Oh, there were a few Democrats he wouldn't vote for -- such as Tip O'Neill, whom he considered corrupt -- but he would never have voted for a Republican. In his declining years, he hated George W. Bush most of all. Whenever I took him to the VA hospital, he always insisted I position his wheelchair in the waiting room so he wouldn't have to see Bush's portrait on the wall. I was glad he lived to see Bush depart the Whitehouse.

Of course, as regular readers could probably guess, I voted for Ron Paul. His positions on several issues differ from mine in some important ways, but he comes a lot closer to my views than anyone else in the Republican party, and I long ago lost all respect for the current occupant of the Whitehouse. Paul hasn't got a chance in hell of winning, but I hope he'll have more influence after this. More importantly, I hope his libertarian ideas of freedom will become more popular, and that future candidates will make more of an effort to win the votes of people who hold libertarian values.

I also just like messing with Republicans.

I don't know if I could explain my vote in a way my dad would have understood. But I do know that the reason my dad hated George Bush so much is because he got our country into these painful wars in Afghanistan and Iraq. And Barack Obama has turned out to be every bit the warmonger Bush was. I don't think my dad would agree with many of Ron Paul's other policies, but I'd like to think he'd be okay with me voting for the only candidate of either party who wants to end the wars.

Even if he is a Republican.

I once heard a story -- I'm not sure where, but it seemed reputable at the time -- about a Ford automotive plant where one of the assembly line workers realized, after some time assembling cars, that he had been doing it wrong. He told his boss, and Ford had to pull hundreds of cars from the delivery process and re-work them to fix his mistake, at a cost of over a million dollars.

So what did Ford do to this employee who made such a costly mistake? They gave him that month's award for quality improvement. After all, he'd prevented a lot of defective cars from being sold.

Some people who've heard this story have called it idiotic to reward an employee who caused so much damage. What was Ford thinking? To understand, let me tell you another story. This one comes from W. Edwards Deming's Out of the Crisis.

A company was looking at ways to improve quality at one of its factories, when they noticed something funny about the monthy defect reports. The monthly reports clustered around an average, as expected, but the deviations from that average were lopsided.

On the bottom edged, with fewer defects, they trailed off as expected -- some months were a little better than average, a few were much better, and occasionally they had a really good month. But on the top edge, some months were worse than average, but never too bad. Above a certain cutoff point, there was noting. Not a single month had a defect rate higher than this cutoff number.

What really spelled it out for the quality team was that the monthly quality figures showed a spike of reports just below the cutoff. The defect rate tailed off away from the average and then spiked just before cutting off completely. In a quality reporting data set, this almost certainly means that someone is faking the numbers. When the real defect count was below average or not too high above average, they were getting the honest defect report. But whenvever the real defect count went above the cutoff, someone changed to to a number just below the cutoff, causing the numbers there to spike.

The quality team eventually figured out what was going on. Word had gotten around the factory that the company's managment were planning to shut that factory down if its defect rate got above a certain number. (It's not clear from the story if this the truth, but it's what everyone at the factory believed.) So the quality assurance person responsible for that factory was hiding defects when the count got too high. From his point of view, he was saving thousands of jobs.

This is exactly what Ford was trying to prevent. By rewarding a worker who reported a massive screwup, they hoped to reassure everyone that they would not be punished for reporting their own mistakes or for giving management bad news. This is because one of the early lessons learned by statistical quality control experts is that you can't punish people for giving you bad news if you want accurate news.

Which brings me to the New York Police Department, Officer Adrian Schoolcraft, and a recent investigation into how the CompStat program was run, as reported by the Village Voice:

For more than two years, Adrian Schoolcraft secretly recorded every roll call at the 81st Precinct in Brooklyn and captured his superiors urging police officers to do two things in order to manipulate the "stats" that the department is under pressure to produce: Officers were told to arrest people who were doing little more than standing on the street, but they were also encouraged to disregard actual victims of serious crimes who wanted to file reports.

Arresting bystanders made it look like the department was efficient, while artificially reducing the amount of serious crime made the commander look good.

The NYPD tried to stomp all over Schoolcraft, even having him involuntarily committed to a psychiatric ward, but under pressure from outside, they also ran their own investigation, and the Village Voice got a copy.

Investigators went beyond Schoolcraft's specific claims and found many other instances in the 81st Precinct where crime reports were missing, had been misclassified, altered, rejected, or not even entered into the computer system that tracks crime reports.

These weren't minor incidents. The victims included a Chinese-food delivery man robbed and beaten bloody, a man robbed at gunpoint, a cab driver robbed at gunpoint, a woman assaulted and beaten black and blue, a woman beaten by her spouse, and a woman burgled by men who forced their way into her apartment.

"When viewed in their totality, a disturbing pattern is prevalent and gives credence to the allegation that crimes are being improperly reported in order to avoid index-crime classifications," investigators concluded. "This trend is indicative of a concerted effort to deliberately underreport crime in the 81st Precinct."

Remember, as Radley Balko points out, this was at the same time as the NYPD was arresting people in bogus marijuana arrests in which officers stopped people and tricked them into pulling small amounts of marijuana out of their pockets. (Possessing small amounts of marijuana is not a crime in New York, but displaying it in public is.) This allowed officers to pad their arrest statistics with the kinds of crimes that are discovered and cleared at the same time.

John Eterno, a criminologist at Molloy College and a former NYPD captain, says that what was happening in the 81st Precinct is no isolated case. "The pressures on commanders are enormous, to make sure the crime numbers look good," Eterno says. "This is a culture. This is happening in every precinct, every transit district, and every police housing service area. This culture has got to change."

As for Mauriello, he's no rogue commander, says Eterno, who has published a book about crime reporting with John Jay College professor Eli Silverman. "Mauriello is no different from any other commander," he says. "This is just a microcosm of what is happening in the entire police department."

Indeed, it is clear from Schoolcraft's recordings that Mauriello was responding to pressure emanating from the Brooklyn North borough command and police headquarters for lower crime numbers and higher summons and stop-and-frisk numbers.

This is a standard recipe for disaster in quality control -- and CompStat is at heart a statistical quality control program. Take a bunch of people doing a job, make them report quality control data, and put pressure on them to produce good numbers. If there is little oversight and lots of pressure, then good numbers is exactly what they'll give you. Even if they're not true.

The entire Village Voice article by Graham Rayman, "The NYPD Tapes Confirmed," is filled with a lot more information and disturbing examples.

I think I first heard of Marc Randazza when one of the other bloggers around here started calling him a "First Amendment Badass," and that's how I always think of him.

I didn't really encounter him, however, until Jon Katz posted this bit about Randazza a few years ago. I took the opportunity to poke fun at Marc in the comments about the absurdist severity of his blog's terms and conditions. I suspect that much of it is unenforecable, and he knows it, but it looks like he had fun writing it. For example, he's got a wonderful blacklist of people who aren't allowed to quote from his blog, including any member of the KKK, Stormfront, or the Nazi party, a bunch of politicians, the American Family Association, and a variety of named persons he finds annoying, include Joe the Plumber.

Marc responded in the comments, poking fun at me for some of the things in my blog's Terms and Conditions. We then exchanged a few emails, in which he gave me a little free legal advice and offered to help me register the Windypundit trademark. (I haven't actually taken him up on that, however, because one or another of us has always been busy. I should probably get around to it.)

Now, he might not like me suggesting that Marc Randazza will help you for free but, well, he just might. For example, Randazza and Ken-at-Popehat recently teamed up to give free help to a science blogger who was being hassled by a quack.

The fun thing is that Marc Randazza doesn't just win cases, he wins them with attitude, as when the copyright trolls at Righthaven were demanding the domain names of everyone they claimed had infringed on their intellectual property. Not only did Randazza beat the crap out of them in court, but his actions forced them to auction off their own domain name.

In case you didn't notice, today is kind of an informal let's-celebrate-Marc Randazza day in the blogosphere. Other celebrants include:

• Marc Randazza: First Amendment Badass.
• Marc Randazza, Hero.
• Marc Randazza would support me, right?
• Righthaven, Liquified
• Marc Randazza: The Mark of Excellence
• Marc Randazza: 1st Amendment Lawyer Exemplar
• Marc Randazza: Super Lawyer, Super Blogger?
• Marc Randazza, First Amendment Lawyer, on the Rush Limbaugh Fiasco
• Marc Randazza: A Sentinel For Free Speech

So Good Luck, Marc Randazza. You're my first call if I get sued for anything I write in my blog!

I've held off writing anything about the whole contraceptives/Sandra Fluke/Rush Limbaugh mess because it's a classic example of an important political debate turning trivial, stupid, and misogynistic. At the top level, we have the ongoing debate about how to reform the healthcare industry in this country. The current big and controversial plan is the Affordable Care Act, which is either going to save or destroy our medical industry, depending on what you believe.

The first step down toward stupidity is that under the Affordable Care Act every health insurance plan is supposed to include a lot of things that don't belong under an insurance plan. As a general rule, it's a bad idea to buy insurance that pays for things you can afford to pay for directly. Insurance is supposed to be a mechanism that protects you against disasters. This is why your car insurance protects you against the risk of major car repairs due to a crash, but not the risk of replacing worn-out tires or changing dirty oil. It's also why it's foolish to want health insurance to cover routine office visits and inexpensive medications. It's cheaper to pay directly.

So why do health insurance plans cover these things? Two reasons, one good, the other bad. The good reason is that some of these things actually reduce your overall healthcare costs, so it's to your insurance company's advantage to cover you completely. This is efficient and good for everybody. The bad reason is that your medical expenses are not deductible from your taxes (unless they're huge) but your employers are allowed to deduct the cost of buying you medical insurance from their taxes. Essentially, you are funnelling payments for your routine medical care through your employer to avoid paying income tax. It's a complicated and wasteful response to tax policy.

The first step down toward trivia is the discussion over the requirement that all health insurance plans should provide contraceptive pills for women. If this was any other medication, it would hardly be worth discussing. In any serious attempt to reform healthcare, the criteria by which drugs are included in the formulary requirements for the standard insurance plans should be spelled out and applied to all medications. There shouldn't be any need for Congress to decide these things on a pill-by-pill basis.

That's where the Catholic Church enters the fray with their insistence that contraception is immoral, and that they shouldn't have to pay for something they consider immoral. I don't understand the Chuch's position on contraception. I've heard explanations, but they always make it sound like the Catholic Church thinks that (1) people shouldn't have sex for any reason other than to have a child, and (2) the way to stop them from doing that is to force them to have unwanted children if they do. Both of those points sound stupid to me, but I was raised as a Protestant, so I might be biased.

This all leads to a confrontation over whether or not religious freedom means the Church should receive special accomodations as a religious institution so that it can sidestep the requirement to fund contraception. Given that I've heard that contraception is one of those things which insurance companies like to include for free because it reduces their long-term costs, the Church may actually be paying more for the privilege of refusing to provided birth control to women, which seems stupid and more than a little misogynistic.

Then we get Sandra Fluke's testimony before congress. It was largely a typical and unremarkable litany of the the difficulties women face from having to pay for birth control. I don't think there's any doubt that women's lives would be better if they received free birth control, just as their lives would also be better if they received free iPads. But the money for either of those things has to come from someone, and I'm sure those other people's lives would be better if they were allowed to keep the money. There's an argument to be made here, but Fluke's testimony was little more than a plea to be given someone else's money. There was nothing unusual about this, as asking to be given someone else's money accounts for a large fraction of the reasons people talk to members of Congress.

Then, for some reason. Rush Limbaugh got involved, which did nothing to reduce the stupidity of the discussion and really cranked up the meanness. He did some radio bits where he tried to portray Sandra Fluke as a "slut" and a "prostitute" who wanted to be "paid to have sex."

For some reason I don't quite understand, out of all the outrageous things that Limbaugh says, this one really upset people, to the point that they are organizing boycotts against his sponsors. My co-blogger Ken tells me it's because Limbaugh didn't just call her names, he really laid into her during a lengthy series of degrading tirades.

Maybe. I haven't heard Rush Limbaugh's show for any length of time since 1994, but I distinctly remember he used to go into a lengthy series of tirades about everything -- although mostly, it seemed, about what other people were saying about him -- and I somehow doubt this was any different. Just bad luck on Rush's part, I guess.

Some of Rush's defenders responded by reminding everyone the Bill Maher called Sarah Palin some bad words. And thus the debate on national healthcare has degenerated into an argument over which side has meaner talk show personalities.

And then, as I was writing this, I found out that Gloria Allred is trying to encourage a Florida State Attorney to press criminal defamation charges against Rush Limbaugh for "falsely and maliciously imputing to her a want of chastity" because "his reference to Ms. Fluke as a 'slut' and 'prostitute' were baseless and false." I think somebody needs to explain to Ms. Allred that there is a hell of a lot of territory between "slut" and "chaste."

I'm a Bobcat fan from way back, so I'll probably want to go see this movie, which he wrote and directed, if it actually gets released to theaters. After which, there will probably be Congressional hearings.

Oh my God. Seriously? Houston criminal defense lawyer Mark Bennett has just announced on his blog that he's running for office as a Judge on the Texas Court of Appeals. It even brought Old Man Greenfield out of retirement.

The good news is that he'd be a great person to have on the bench. The bad news is that he's running on the Libertarian ticket. To which I can only respond:

Mark, my friend. You're running as a Libertarian? Do you realize they are insane? Are you insane? You haven't got a chance. Not prayer, not a hope. If I hooked up an electron microscope to the Times Square JumboTron, it wouldn't be powerful enough to see the infinitesimally small possibility that the voters would pick a Libertarian, let alone a Libertarian criminal defense lawyer. It just can't work.

So how can I help?

Update: A couple of weeks ago, in response to Scott Greenfield's announcement that he was shuttering his blog, Mark Bennett wrote:

...some day--probably very soon--someone will publicly say something so outrageously stupid, illogical, unethical or ugly that it will pull Scott back in.

Congratulations, Mark, on being the one!

Jamison Koehler has a post up on his blog offering tips for new bloggers. Although he wrote it specifically for legal bloggers, and some of the examples might not make sense if you don't know the personalities, it's good advice for anyone considering a new blog. If you're thinking you might like to join the conversation, you should check it out.

Naturally, I have a few thoughts on the subject...

Sometimes I write for other bloggers. At the beginning especially, I was intrigued by the back-and-forth among other bloggers I read and sought to participate in the discussion. The problem with this, I have found, is that these entries don't hold up very well over time.  I'll look back at a blog entry I did one or two years ago and wonder what we were ever talking about.  Reading such a blog entry can be like listening in on one side of a telephone conversation.

I say you shouldn't worry about how well your posts will hold up over time. Just because a topic is short-lived doesn't mean it isn't worth your time to think about and write about. However, if you want readers from the distant future to understand what you're saying, make sure to link to other parts of the conversation and quote relevant parts, in case the linked pages go away. It may help to recap a bit. I usually try to do all this in one obvious paragraph, so people already familiar with the context can skip it.

Regarding tip #3, "Find Your Voice," if your writing skills do not extend to consciously creating a style for yourself (as mine do not), or if you're just not sure what your style should be, the best way to find a style is to just keep writing. Eventually, you will adopt certain habits -- certain turns of phrase, certain narrative structures -- and your style will emerge.

There's also some important tension between rule #5, "Do Your Own Thing," and rule #8, "Lurk Before Joining the Conversation," because of the implication that you are lurking so you learn the rules. It's important to keep in mind that while it's helpful to know the rules, you don't have to obey them.

Also, once you start blogging, for God's sake, make sure you really do join the conversation. Link to other bloggers, and talk about the things they talk about. It's really the heart of what makes the blogosphere different from other media.

I've always been wary of Godwin's Law -- the internet maxim which says that if you are in an argument and you compare someone or something to Hitler or the Nazis, you automatically lose the argument. (Actually, Mike Godwin's original comment was more nuanced than Godwin's Law has become today. Wikipedia has a nice summary.)

Granted, there's way too much of that going around. Not everyone we dislike is a Nazi, and no matter what a lot of silly protesters said, George W. Bush didn't turn into Hitler and Barack Obama won't either. We invoke Godwin's Law as a reminder that such comparisons are often ridiculous, and also as a reminder that an analogy can become a replacement for careful thought.

On the other hand, Godwin's Law can also become a replacement for careful thought, if we allow it to shutdown the debate.

Part of the reason we have Godwin's Law is also part of the problem with it: When we think about Hitler and the Nazis, we naturally think of their greatest crimes, and compared to the Holocaust, all our current problems seem small, which is why a comparison is so often foolish. Nothing happening in the United States today comes close the ultimate horrors of Nazi Germany.

However, it's important to remember that Adolf Hitler didn't murder 12 million people on his first day, and those ultimate horrors were preceded by many lesser horrors. Hitler was active in German politics for over a decade before becoming Chancellor, and it would be another nine years before the Wannsee conference and the Final Solution. So while it's correct to say that nobody in America today is as bad as Hitler, it's also correct to point out that for the first fifty years of his life, neither was Hitler.

Yet it's not as if Hitler was a nice guy for most of his time in office. It's not as if Germany was a great place for Jews (or Gypsies or homosexuals or any of the other victims) right up until the moment the death camps began operating. There were clues to what was coming, and those clues are worth thinking about today. It's not enough to remember history; we also have to recognize the evils of history when we see them again, if we don't want to be doomed to repeat them.

As Kevin Carson says in his own denounciation of Godwin's Law:

Godwin's Law, by treating Nazi Germany as some sort of unique, metaphysical evil in human history, essentially nullifies its practical lessons for people in other times and places. Although Nazi precedents are now used as symbols of ultimate evil -- just look at Darth Vader -- they didn't seem anywhere so dramatic to the German people at the time they were happening.

Nazi repression came about incrementally, in the background, as people lived their ordinary daily lives. Each new upward ratcheting of the security state was justified as something not all that novel or unprecedented, just a common sense measure undertaken from practical concerns for "security."

After all, the bulk of Hitler's emergency powers were granted by the Reichstag after a terrorist attack (blamed at the time on communists), a fire which destroyed the seat of Germany's parliament. Any parallels to 9/11 and USA PATRIOT are, of course, purely accidental. Each new security clampdown, after an initial flurry of discussion, was quickly accepted as normal because it didn't affect the daily lives of most ordinary people. And of course, those ordinary people had nothing to fear, because they'd done nothing wrong!

The Nazis weren't the last totalitarian bastards the world will ever see, and when the next Adolf Hitler begins his rise to power, it will be a lot harder to stop him if we're not allowed to point out that he's acting just like the last Adolf Hitler.

Jennifer Abel gives an example of how this works:

I've been banging the anti-TSA pro-civil liberties drum on this blog since 2006, the same year I started it. And America's gotten worse, incrementally, as people lead their ordinary lives. It led directly to the passage and acceptance of the NDAA, with its unconstitutional insistence that the government can arrest any citizen at any time with no evidence, no trial, no legal rights at all, provided the government first says "Trust me, he's totally a terrorist." It's led to what Carson calls a "de facto internal passport" required for travel within the borders of our own country. And when those who support these laws watch documentaries on the rise of the Third Reich, they shake their heads in patriotic superiority and swear "It can't happen here."

But of course it could happen here. America is still basically a free country, but there's no natural law that says it has to stay that way. There are certainly things going on in this country that look a lot like the early days of the Nazi rise to power. The TSA's metastasis into a system of internal checkpoints (the hallmark of totalitarians everywhere) is one good example. Another example, is the War on Drugs, which strikes me as a slow-motion Kristallnacht, with drug users and the inner-city poor in place of the Jews. 

I can't point to any major American politician and say he's the next Hitler, but I can think of a at least one minor figure who certainly fits the uniform: Maricopa County Sheriff Joe Arpaio. He fought the DEA's war on drugs for 25 years, he brags about the cruelty of his prisons (in which inmates regularly die), he uses the investigative powers of his office to intimidate people who criticize him -- including journalists and other members the justice system -- and he has even tried to imprison judges who ruled against him or his officers. And to top it off, much of his political power comes from exploiting racial and ethnic hatred against illegal immigrants.

So in the spirit of civil disobedience against Godwin's Law, I'll say it out loud: Sheriff Joe Arpaio is like Hitler. Not like the Hitler who killed millions in the death camps, of course, but like Hitler from twenty years before, filled with hate and lusting for power. But not as successful. And unlike the real Hitler, we don't need a time machine to stop him. We can do it by voting him out of office.

That said, identifying "the next Hitler" isn't really the important point. Hitler wasn't evil because he was Hitler. Hitler was evil because he did evil things. Similarly, our goal need not be to stop the next Hitler. Our goal should be to recognize when people in our government are doing evil things, and spread the word so they can be stopped. If that means saying that they're behaving like Nazis, so be it.

If you've ever tried to use Google to find a lawyer for a DUI or traffic offense, you've probably stumbled across one of those relentlessly SEO optimized sites that isn't actually a law firm but promises to put you in touch with a lawyer. Basically, they're referral services.

This always seemed annoying but harmless to me. To Spokane, Washington criminal defense attorney Steve Graham, however, it seemed like something worth a bit of investigation:

I googled the phrase "Spokane dui lawyer" and came across the site www.1800duilaws.com, and typed in some very sensitive information about my "case". I conducted the experiment from a coffee shop in north Spokane. About 5 minutes after I entered the details of my "Spokane DUI case", the comment I had entered into the site 1800duilaws.com came back to me in the form of a spam email to my law firm email account.

The contact form on these websites usually includes something along the lines of "you are not forming an attorney-client relationship," which sounds like they're just warning you that no one has promised to be your lawyer yet. What they don't say explicitly, however, is that this means that what you are writing is not a privileged communication. The people who receive them are not acting as your lawyer, and they have no legal obligation to keep your secrets.

I was aware of this, but as Graham explains, it's much worse than I thought:

The lawyers who receive this information aren't even necessarily DUI lawyers...Many of the lawyers could be friends, neighbors, or relatives of the DUI suspect, and the lawyers are under no obligation to keep the information confidential. In Washington state, it is not uncommon for a lawyer to defend DUI cases in the county district courts, but to work as a part-time prosecutor in the local city or municipal courts...It is possible that a DUI suspect could have his or her DUI case information sent directly to the city prosecutor's email inbox.

Geez. I did not see that one coming.

Steve Graham's post has a lot more information, including one site that masquerades as a law firm with offices in thousands of U.S. cities.

Read the whole thing.

My Nobody's Business co-blogger Rogier has a pretty good article up about divine delusions v.s. observable reality. It's a plea for rationality, even if faith and mysticism seem like more fun. As is often my way, I have a small quibble.

Rogier and his opponent are discussing a Facebook poster's insistence that a bit of lens flare in a photo of a pyramid is actually a sign that the "goddess era has arrived." Rogier's opponent is arguing that her subjective interpretation has meaning.

So here's perhaps how she making the connection between her beliefs and aspirations and this photo. This photo for her is a symbol of her convictions: To bring the masculine energy (which she perceives is out of whack) into balance with the feminine energy.

He goes on to conclude:

So this image is a visual confirmation and symbol of her beliefs, and makes perfect sense.

Rogier had a problem with that:

I don't see how he arrived there. At all. Unless he means that it makes perfect sense for some poor guy in an asylum to believe that he is Napoleon Bonaparte, or for the cat lady down the street to worship her scraggly charges as multiple reincarnations of Nefertiti. Yes, it makes sense to those two people, I'm sure. But almost everyone else easily recognizes the outsized fallacies involved.

There is no equivalence between the unprovable views of Cat Lady and Fake Bonaparte on the one hand, and the provable ones of Richard Feynman, Neil DeGrasse Tyson, and all the rest of science on the other.

This is where I feel the need to add a small clarification. I think "provable" is the wrong word. The key difference between the theories of scientists and the pronouncements of mystics is not that they can be proven, but rather that they can be disproven. In the terminology of Karl Popper, the theories of scientists are falsifiable.

What distinguishes a scientific theory from other kinds of ideas -- personal beliefs, religious faith -- is that scientific theories allow you to make predictions about the world that can be tested and that might be found false. (Note that I'm not saying that a theory has to be disproven to be scientific -- that would make it a false theory -- only that it has to be conceivable that it could be disproven.) Conversely, if there's no way that an idea can be disproven, then it's not really a scientific theory. If the theory can't be tested against the real world, that means it doesn't say anything useful about the real world.

Rogier's opponent implicitly agrees that the goddess theory is not falsifiable:

For her [the Facebook poster] it's a sign that the goddess era or whatever has arrived. Who's going to prove she's wrong?

If no one could ever prove her wrong, then she's not saying anything interesting about the world.

I know that everybody stuck here in the wake of the mortgage securities crisis hates bankers, but it still seems like there's something wrong about this:

The news for Wegelin, its headquarters nestled in the town of St. Gallen next to the Appenzell Alps near the German-Austrian borders, would only get worse. Six days later the U.S. Justice Department, acting on plans it had been making for weeks, indicted the 270-year-old bank on charges of enabling wealthy Americans to evade taxes on at least $1.2 billion from 2002 through last year. U.S. criminal laws apply to foreign banks that do business in the United States, even if the banks, like Wegelin, have no U.S. branches.

So the United States is prosecuting Swiss banking executives for helping Americans evade income taxes, even though the bank's activities did not violate Swiss law. Apparently we've made it illegal for anyone anywhere in the world to violate our tax laws, even if they never enter the United States to do so, and even if doing so isn't a crime where they are.

[Wegelen's leading partner Konrad] Hummler's error, rival Swiss bankers say, was in thinking Wegelin was safe from a U.S. indictment just because the bank didn't run any U.S.-based branches.

This is a terrible precedent (although it's hardly the first time). What if other countries started regularly doing that to us? Would we want Americans to be prosecuted for apostasy in Iranian courts for evangelizing and converting Muslims to Christianity in Alabama? Would we want American web site operators prosecuted for helping France-based bloggers violate European hate speech laws?

Martin Naville, chief executive of the Swiss-American Chamber of Commerce in Zurich, told Reuters that Hummler had "exposed himself pretty heavily" around 2009 by publicly calling America the "worst aggressor since the Second World War" while taking in tax-evading clients fleeing other Swiss banks in the wake of the crackdown. "Clearly, he made some people very angry," Naville said. "And usually, the boomerang comes back."

What Hummler said is over the top, but it's not a crime. I would like to think that federal prosecutors have better ways to prioritize their time than prosecuting people who piss them off.

I'm taking my employer's mandatory security training course, and I just ran across this paragraph:

The World Wide Web is a powerful tool for such tasks as research, communication, marketing and more. It provides access to more information than we could read in our lifetimes. Unfortunately, it has also become inundated with sites that are completely inappropriate for our work environment.

True, but that's not an unfortunate thing about the Web. It's an unfortunate thing about being at work.

A few months ago, after reading posts about the concept of reasonable doubt in our legal system by Scott Greenfield and Rick Horowitz, I decided to tackle the subject myself. Despite my facetious claim of a breakthrough, I didn't really reach any great conclusions, but that didn't keep me from rambling on for a while. (And it's not going to stop me this time, either.)

As with many of my more thoughtful posts, it received almost no comments. At least until a few days ago when a grad student named Sam emailed to ask for a little more information about where I got my ideas. He wisely starts with flattery:

Hi Mark,

I am writing my thesis about moral certainty/reasonable doubt in the moral context of the ascertaining of death. I came across an article in your blog, which I found rather interesting...

Sam then goes on to discuss the idea a bit, with references to James Q Whitman, James Franklin's The Science of Conjecture, Pius XII, and John Paul II. Then he asks me for a bit of information.

...

Is there any book on the history of moral certainty/reasonable doubt that you can recommend me? I would be interested in non-historical books as well.

Thank you for taking time to read this e-mail. I would greatly appreciate if you could answer me.

Yours truly,

Sam

I don't know of any books about the history of moral certainty per se, but I can think of a few books that directly or indirectly influenced the way I discussed the subject in the previous post. I started to explain this in a brief reply, but I soon realized I had enough material for a blog post, and I thought someone else out there might be interested.

Although I'm not a scientist, I have great admiration for the discipline of scientists, and much of my thinking about issues of certainty and doubt is based on what I've read about the philosophy of science, which is somewhat related to the philosophy of pragmatism. On that subject, the most obvious book to read is William James's Pragmatism, but I've found that C. S. Pierce explains the philosophical issues more clearly.

One of the key points of pragmatism is that when trying to answer a question, it matters a great deal why you're asking. Here's an excerpt from one of James's lectures that is illustrative of both the pragmatic approach and James's writing style:

Some years ago, being with a camping party in the mountains, I returned from a solitary ramble to find every one engaged in a ferocious metaphysical dispute. The corpus of the dispute was a squirrel -- a live squirrel supposed to be clinging to one side of a tree-trunk; while over against the tree's opposite side a human being was imagined to stand. This human witness tries to get sight of the squirrel by moving rapidly round the tree, but no matter how fast he goes, the squirrel moves as fast in the opposite direction, and always keeps the tree between himself and the man, so that never a glimpse of him is caught. The resultant metaphysical problem now is this: Does the man go round the squirrel or not? He goes round the tree, sure enough, and the squirrel is on the tree; but does he go round the squirrel? In the unlimited leisure of the wilderness, discussion had been worn threadbare. Every one had taken sides, and was obstinate; and the numbers on both sides were even. Each side, when I appeared therefore appealed to me to make it a majority. Mindful of the scholastic adage that whenever you meet a contradiction you must make a distinction, I immediately sought and found one, as follows: "Which party is right," I said, "depends on what you practically mean by 'going round' the squirrel. If you mean passing from the north of him to the east, then to the south, then to the west, and then to the north of him again, obviously the man does go round him, for he occupies these successive positions. But if on the contrary you mean being first in front of him, then on the right of him, then behind him, then on his left, and finally in front again, it is quite as obvious that the man fails to go round him, for by the compensating movements the squirrel makes, he keeps his belly turned towards the man all the time, and his back turned away. Make the distinction, and there is no occasion for any farther dispute. You are both right and both wrong according as you conceive the verb 'to go round' in one practical fashion or the other."

The relevant point is that in order to think about how to define reasonable doubt, we have to keep in mind how we're going to use the answer. The definition is inseparable from its use.

If you want a more rigorous approach to thinking about certainty and doubt, you might want to learn about the way scientists use probability and statistics to quantify the degree to which they can be certain that a theory is true based on limited evidence.

In science, the evidence is limited because scientific theories are statements about universal truths. For example, suppose your theory is that a flipped Euro coin is more likely to land heads than tails, perhaps because of aerodynamics or weight distribution. You can't possibly do an exhaustive test: Not only are there billions of Euro coins in the world, but each coin can be flipped essentially an infinite number of times.

The only way to test a theory like that is to look at a small sample of all the possibilities. Conduct an experiment by flipping a few coins, tabulate the results, and then use probability and statistics to answer this question: What are the chances that I would get these experimental results even if my theory is wrong?

For example, if you flipped 10 coins and got six heads, that's very poor proof: A little math with the binomial probability distribution tells us that there's a nearly 38% chance of getting at least 6 heads in ten flips. In other words, if the Euro coin is totally fair -- 50/50 -- there's still a 38% chance of getting 6 or more heads in ten flips. With odds like that, it's hard to distinguish whether our theory is correct or not.

Our certainty is increased, however, if our result is stronger or if there are more tests. So if we get 7, 8, or 9 heads, the likelihood if it happening even if our theory is wrong is 17%, 5%, or 1%, respectively, indicating we can be more confident that the theory is true. Alternatively, we can also be more confident if we increase our sample size. The probability of getting 60 heads in 100 flips even if our theory is wrong is just under 3%. That's good enough for publication in some fields.

In a criminal case, the jury is evaluating the prosecution's theory that the defendant is guilty. Although the jury is not deciding a universal truth, the evidence is still limited to whatever could be learned about the crime, and without experimentation there's no way to increase the amout of evidence. Nevertheless, the same rules apply: The jury's certainty about its conclusions depends on the strength and quantity of evidence, so in order to reach a conclusion, they need either a few pieces of very good evidence (the defendant's DNA) or a lot of poor evidence (partial fingerprints on the gun, the defendant owns the same kind of car that was seen leaving the scene, a witness who picked the defendant out of a lineup). Either way, the question for the jury is: What are the chances that this evidence would exist even if the prosecutor's theory was false?

(I'm pretty sure juries don't actually think about the problem this way, let alone try to calculate the probabilities, but the math still applies whether they use it or not.)

It's important to note that, as a matter of math, neither scientific experiments nor criminal trials can offer perfect certainty. There is always the possibility of error. The chances of a mistake never go to zero. There is always the chance that the jury will convict an innocent person or release a guilty one. Therefore it's important to recognize that, whatever we decide we mean by reasonable doubt or moral certainty, it's never going to be perfect.

I learned about the math when I took a college-level course in probability and statistics that used the book Probability and Statistics for Engineers and Scientists by Walpole, Myers, and Myers. I have qualms about recommending it, however, because it gets bad reviews on Amazon and it's a textbook for a class, so it's not really oriented toward someone trying to learn the subject by themselves.

Also, learning college-level calculus-based probability and statistics is probably more of a commitment than you're prepared to make. I don't have an actual book to recommend, but I suggest you find one that approaches the subject on a level you're comfortable with. Note that this shouldn't just be a book about statistics -- how to calculate the mean or find a median -- it should specifically address the use of probability and statistics to test scientific hypotheses. This is often called "experimental design" in the table of contents.

This leads somewhat naturally to the third influence on my discusison of reasonable doubt: Statistical quality control. Whether they're making cars or computers or just parts for something else, some portion of every factory's output is going to be defective. This defective output has a cost: Either the product is discarded or reworked, or it is delivered to customers who will demand a refund or replacement.

Manufacturers would like to turn out perfect products, but reducing defects comes with a cost. Every time you add a new inspection step, you increase the cost of production. Eventually, you can make your product so expensive that nobody wants to buy it, no matter how good it is. The key is to spend money to improve your product only until you reach the point where the cost of eliminating one more defect is higher than the cost of allowing the defect through the system.

The first relevant point for moral certainty/reasonable doubt is that perfection has a trade-off: We have to strike the right balance between the cost of error and the cost of quality. In a factory, the cost of quality is an increased cost of production. In criminal justice, quality is two sided: There are two kinds of errors, and the cost of reducing errors on one side is an increase in errors on the other side.

If the jury instruction sets the bar too high, you'll make it extremely unlikely that they'll convict an innocent person, but you'll do so at the cost of freeing too many guilty people. On the other hand, if you choose a system that makes it extremely unlikely the guilty will go free, you'll do so at the cost of wrongly imprisoning too many innocent people.

The second relevant point comes from the emphasis statistical quality control places on the importance of using operational definitions. When you tell someone to measure something, you should also tell them exactly how to measure it. For example, you don't just say, "The temperature of the reaction vessel should be 220°C."

Instead, you should give detailed instructions something like this:

"Obtain a Fluke 52-2 digital thermometer from the instrument cabinet. Verify that the calibration sticker has not expired. Using the provided cable, connect the digital thermometer to each of the upper, middle, and lower integrated thermocouples on the reaction vessel. Allow the probe to stabilize for 30 seconds on each thermocouple before recording the reading. If any two readings are more than 12°C different, disgard all readings and file a malfunction report with your supervisor. If the readings are successful, average the values of the three readings. The reactor vessel is at the correct temperature only if the average temperature is at least 220°C and no single reading is below 119°C."

As you'd imagine, the second instruction is a lot more likely to produce accurate, repeatable results than the first. This suggests to me that the judge should try to provide the jury with a similarly operational definition of reasonable doubt.

The most famous name in statistical quality control is W. Edwards Deming, and I think reading a little bit of either Out of the Crisis or The New Economics would be worthwhile. J. M. Juran offers a more business-like approach in Juran's Quality Handbook.

Quality control helps you understand how the process affects the error rate, but before you can develop a policy, you also have to know the costs of your errors and therefore the benefits of preventing them. Sending an innocent person to prison has direct costs for the person, the prison system, and society; but freeing the guilty allows them to continue their predatory behavior.

In addition, an especially large and mysterious cost is the incentive that the error creates for others: What happens when criminals realize they are unlikely to be punished for their crimes? What happens when society loses faith in the justice system's ability to protect the innocent?

Analyizing the strange and far-ranging consequences of changing incentives is something that economists have been studying for years in a field called benefit-cost analysis. There are books on the subject, but to get the flavor of it, I recommend Armchair Economist by Steven E. Landsburg. Be warned that Landsburg has some rather strong opinions and is something of a curmudgeon, but his description of cost-benefit analysis is relatively easy to understand, and the end notes contain references to more scholarly publications.