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.

At about the time that Brittany Norwood was beating and stabbing Jayna Murray to death inside a store in a shopping mall, two employees in the Apple store next door heard sounds of the struggle coming through the wall.

The Apple Store employees were closing up for the night. One of them heard strange sounds from the other side of the wall: grunts, thuds, hysterical screams.

"Talk to me. Don't do this," a voice said. "Talk to me. What's going on?"

"At that point, there was some more sounds, kind of, screams, yelps, yells," Jana Svrzo, a manager at the Apple Store in Bethesda, said Friday, testifying on the third day of Brittany Norwood's murder trial in the killing of her Lululemon Athletica co-worker.

The screams faded. Then Svrzo heard low, quiet tones.

"God help me," Svrzo recalled hearing. "Please help me."

After hearing all that, Svrzo and the other employee, Ricardo Rios, didn't do anything about it. They neither called the police nor investigated it themselves.

I heard about all this from Jack Marshall at Ethics Alarms, who has this to say about it:

We need to agree on the proper treatment for people like this -- self-centered, fearful slugs who can't summon the fortitude and decency to help a fellow human being in peril even when it only requires a phone call. They are not quite criminals, but they are significant contributors to the evil in the world, the kind of citizens who accept the benefits of society but won't lift a finger to contribute to it.

...

I don't want to hire someone like Svrzo. I don't want her as a neighbor or a friend. If I'm an independent service provider, I don't want her business; if I'm a banker, I don't think she's trustworthy enough to get a loan. Her conduct is unacceptable in a cooperative society, and the one constructive thing she can do now is to serve as a living lesson to others that there are minimum standards to participating in civilization, and consequences of failing to meet them.

That would have been my reaction too, except that I've seen stories like this before, and I've learned to be skeptical. I can't rule out evil as an explanation for her behavior; it's entirely possible that Jana Svrzo is exactly the kind of psychopath who wouldn't bother to help a woman being beaten to death. However, given what I've read so far, I feel the need to point out that you don't have to make that assumption to explain what happened. Inaction that at first seems inexplicably callous sometimes turns out to be rather ordinarily human.

My guess is that the most critical factor in explaining her inaction is this: Until that day, I'm pretty sure that Jana Svrzo had never heard someone being beaten to death before. In fact, I'm willing to bet that she had never even seen a serious fight. And now we're supposed to assume that she should have been able to figure out what was going on just by how it sounded? Through a wall?

That doesn't sound possible. At least not unless she had reason to be familiar with the sounds of close-in personal brutality, perhaps from growing up in a violent family. Otherwise, all she heard was some strange sounds.

Well, then, what about the cry for help? According to the news story, she heard a variety of noises -- variously described as grunts, squealing, and screams -- and while this was going on, she heard someone say "Talk to me. Don't do this," and then "Talk to me. What's going on?" And later she heard a different voice say "God help me," and "Please help me."

Again, knowing what we know now, it's pretty obvious that something bad had happened. But it's not hard to imagine other scenarios which Svrzo would have had to consider. She heard two people in a room, some noise, and one of them asked for help. Isn't it possible that she was asking the other person for help? If you've never witnessed a violent crime before, what would be your first guess?

It's really easy to misunderstand novel situations like this and make a dangerous mistake. About 20 years ago, I was in my kitchen, and I happened to glance out into the parking lot, where I noticed one of the other residents of our condo was kneeling next to her car, like she'd dropped her keys and they'd skittered underneath it. A few minutes later, I happened to glance out again, and she was still there, and I wondered what the heck that silly woman was up to...and then I put it together: She was elderly, she was overweight, it was winter, and the ground looked wet. She had slipped on the glare ice and couldn't get up.

I didn't realize what had happened the first time because she wasn't lying down like an injured person -- in fact, she wasn't injured at all, she simply didn't have the strength to pull herself up by her arms when her feet had no grip on the pavement. This was many years before I had to help take care of my parents (and my own knees still worked like they're supposed to), so I'd had no experience with people who had infirmities. I had no way of recognizing what had happened from one brief glance.

Once I saw her again and realized she probably wasn't in that position voluntarily, my wife and I went down to help her. She was fine. No big deal.

But had I not glanced down at her a second time, things might have ended less happily. She was down on the ground between two cars where it was hard for someone to see her, so she could have been stuck for long time in the freezing cold. She might even have died from exposure. And if I told people that I'd seen her there on the ground, they'd think I had let her die on purpose.

One of the things that affects how people react to a situation is their observation of how everyone else is reacting. I used to work across the street from a housing project, and whenever there was a loud bang, I'd look to the reactions of the residents to determine if it was a gunshot or something harmless, because they could tell the difference.

Svrzo called over co-worker Ricardo Rios, but according to his testimony, he couldn't make out much of what he was hearing. So both of them heard something strange, but each of them saw that the other wasn't too alarmed. They reinforced each other's decision to do nothing.

If my wife had glanced out the window at our fallen neighbor and decided that she was just fiddling with something on her car, she might have laughed at my ridiculous concerns, and she might have convinced me. Later, when our neighbor's lifeless body was discovered, we'd both look like callous psychopaths to people who hadn't been there.

I think there's a fair chance that Svrzo also thought that if something was really wrong, someone else would provide help. After all, how often do any of us find ourselves in a situation where we have the opportunity to save someone from serious injury or death? (In 47 years, it's only happened to me once that I know of, and I'm not sure anything bad would have happened if I hadn't been there.) The noises Svrzo was hearing were coming from another store in the mall. Surely if anything bad had happened, another person in the store would have helped, right?

There's a saying -- I've seen it used with respect to medical diagnostics: "When you hear hoof beats, think horses, not zebras."

The point is that when faced with a mystery, the most likely explanation is probably going the correct explanation. When a patient presents with flu-like symptoms, your best bet is to assume he has the flu, at least until you learn more.

Based on Svrzo's actions, she obviously knew something wasn't right, but what are the chances that anything in her life experience could have prepared her for this? You and I and everyone we know will probably go through our whole lives without hearing anyone being murdered. I'm assuming she's no different in that respect. So on that terrible night, she heard some strange hoof beats, and she decided it was probably just horses. Because, really, what else could it be?

By now, some of you are probably sputtering that I'm just making stuff up. That I can't possibly know what was going through her head. That I wasn't there.

True enough. But then again, neither was anyone else who is criticizing her. They read the accounts of what happened, and they consider the facts, and they reach the only conclusion that makes sense: That she's a callous narcissist.

What I'm trying to do is point out that there may be another way to fit the facts to the known range of human behavior. Of course, in doing so, I might be making the same horse-or-zebra mistake that I think Svrzo made. Psychopaths are pretty rare, but the ordinary failures of human cognition are not, so I'm guessing this is an ordinary failure. But I could be wrong.

I decided to write this post for a couple of reasons. First of all, there are a couple of lessons we could learn, the most important one being: If you need help from strangers in a strange situation, don't just ask for help. Tell them you've been attacked and tell them what you want them to do. Be very specific. Not "Help me!" but "Help! I've been stabbed! Get me an ambulance! Somebody get me an ambulance!"

No, I'm not blaming the victim. Jayna Murray was severely wounded and probably had no idea anyone could hear her. I'm just saying that if you or I ever find ourselves in need of emergency medical help, it's something we would do well to remember.

(Here's another example of the kind of thing I'm talking about: Somewhere I read about an incident in which a doctor choked to death in the middle of a medical conference dinner, surrounded by dozens of other doctors. It sounds at first like gross incompetence, but really, how many doctors have ever seen someone actually choking to death before? This is why if you're ever unable to breath because you're choking on something, you should make sure you put your hands to your neck and make a face like you're gagging, so people understand what you need.)

Another lesson is that if nobody else is taking charge of the situation, it may be that you're the one who has to take charge. If my speculation here is correct, then Jana Svrzo is not the villain that some people have made her out to be. But if something different had triggered in her brain, if she had decided that, you know, maybe she should call the police, just to be safe...then Jana Svrzo might have been a hero. And Jayna Murray might still be alive.

Wouldn't it be cool to be the hero? You can't be one though, unless you take action.

Finally, Jack Marshall had this to say:

...the societal condemnation of individuals who allow another human being to be harmed when they have it in their power to summon assistance is appropriate, and should occur informally, like most enforcement of social behavioral norms.

Well, there's some evidence that people may be taking things much further than Jack intends. I Googled Jana Svrzo, and I find a blocked Twitter page, a missing LinkedIn page, an inactive flickr stream, a missing Facebook page and, well, you get the idea. There seems to be only one Jana Svrzo out there, and she seems to be hiding from something.

I'm guessing that people are harassing her. If she's the narcissistic bitch that some people think she is, then in a sense she has it coming. (Although, really, if she's that narcissistic, she's not going to be the least bit bothered by what other people think.)

But if she's just an ordinary person who made an understandable mistake under terrible circumstances...let's not make this any worse than it already is.

Defenders of Caylee's Law have been arguing in my comments and elsewhere that even though the rush to legislate will result in a poorly-written law, my fear that it will punish innocent parents and babysitters far more than it helps any child is unfounded, because prosecutors will use their discretion wisely and mercifully.

In most cases, I'm sure they're right, but why rely on it? Why not just take the time to write a good law? It's not like there aren't grandstanding prosecutors out there who will punish people just to make themselves look tough, and it doesn't take more than a few handfuls of them to ruin a lot of lives.

Radley Balko has an example:

Last April, Nelson was crossing a street with her three children when her 4-year-old was struck and killed by a car. She was crossing at an intersection, but was apparently not in a designated crosswalk. The driver who killed her had been drinking, taking painkillers, and was blind in one eye. He also has two prior hit-and-run convictions. Nelson and her daughter were also struck and injured. Residents of Nelson's apartment building have complained to the city about the intersection. The nearest crosswalk is a half mile away.

In other words, she jaywalked, and she had very, very bad luck. Here's what the wise and merciful prosecutor did:

Nelson was charged with second-degree vehicular homicide. Which is insane. She was convicted last week. When she's sentenced later this month, she could spend more time in jail than the man who struck and killed her son. The prosecutor will say he was just enforcing the law. The jury will say they were just applying it. Both are excuses to duck responsibility (prosecutors can decline to bring charges, juries can nullify). But if both are true, then the time to prevent the unjust application of well-intentioned laws is to anticipate those applications while the laws are being written and proposed.

Which is the whole point I've been trying to make all along.

I've been getting slammed in the comments to my earlier post about why Caylee's Law is a bad idea, as has Radley Balko on his piece in the Huffington Post. Perhaps people will ease up a bit if I point out that Serena Straus, a former prosecutor in the Bronx Sex Crimes and Domestic Violence Unit, also thinks that Caylee's Law is a bad idea.

Some of her reasons are pretty familiar, such as the lack of deterrence:

Certainly, Caylee's law would be no deterrent. Let's play this out. I murder my kid and have an hour to report it:

"Hmm...I can report this murder that I just committed thereby avoiding 1 - 5 under Caylee's Law, but then I will be giving law enforcement access to all kind of wonderful forensic information that will lead to my conviction of 25 to life for murder. So....do I turn the body in or do I hide it somewhere hoping that by the time someone finds it, the condition will be so bad that forensics are useless....hmmmm...."

Or the troublesome definitions:

Even the requirement to report a child missing or risk criminal penalty is fraught with complications: What's the age cut off? Is it 18 and under?  12 and under?  5 and under?  When does the clock starts ticking?  Is it when your 15 year old tells you they are leaving to sleep at a friend's house or 15 hours later when you find out they lied?

But Straus also points out a few unintended consequences that could do more harm than good:

The potential for the police to be flooded with unwarranted complaints from guardians who think the kids are fine but are afraid of going to jail is real. Also, again, guardians who are going to do the right thing (or have half a brain) are going to report a child missing regardless.  And we don't want to punish or deter later reporting for fear of jail.  Take the case of a parent whose kid has a tendency to not be totally honest about where they are going.  They say they are sleeping at a friend's house.  They lied.  The parents find out 25 hours later - do you want to punish them for reporting within a reasonable time under their circumstance? Do you want to deter them from reporting with threat of prison?

This is similar to the ways the drug laws have discouraged people from seeking medical attention for drug users: You're at party where there are drugs, and your friend becomes agitated, has difficult breathing, and then passes out. Knowing what the police will do if they find evidence of drugs, do you call 911 for an ambulance? Or do you wait to see if he'll recover by himself?

If something like Caylee's Law is enacted, parents of children who have been missing more than 24 hours will have the same kind of wonderful decision to make.

I haven't posted anything about Casey Anthony trial. I'd pretty much like to keep it that way because, really, I don't know anything about the case. On the other hand, I know there's a long and painful history of laws like this:

FOR IMMEDIATE RELEASE
July 6, 2011

Contacts: Michelle Crowder, "Caylee's Law" petition-starter, 918-289-8479 (CDT)
Brian Purchia, Director of Communications, brian@change.org, 202-253-4330 (PDT)
Rebecca Buckwalter-Poza, Campaign Director, rpbp@change.org, 919-423-4783 (EDT)

***PRESS RELEASE***
CAMPAIGN TO CREATE "CAYLEE'S LAW" GOES VIRAL
Oklahoma woman calls for parents who fail to notify police of missing child to be charged with felony; more than 37,000 supporters join in less than 24 hours

WASHINGTON, DC - More than 37,000 people in all 50 states have joined a Change.org campaign calling for a federal law -- called "Caylee's Law" -- that would make the failure of a parent to notify law enforcement of a child's disappearance a felony.

Casey Anthony was found "not guilty" of first-degree murder or manslaughter on Tuesday in the case of her two-year-old daughter Caylee's death. One of the central controversies of the case has been the fact that Anthony never notified law enforcement that her daughter was missing. Caylee was last seen on June 16, 2008; grandmother Cindy Anthony notified the police on July 15, a month later.

After hearing the verdict and seeing a Facebook page response, Oklahoman Michelle Crowder started a Change.org petition asking Congress to create "Caylee's Law," making it a federal offense and a felony for a parent or guardian to fail to report a child's disappearance to law enforcement.

Nearly 2,000 people have signed the "Caylee's Law" petition each hour since its creation, making it the fastest-growing campaign on Change.org.

"When I saw that Casey Anthony had been found not guilty in the murder of little Caylee, and that she was only being convicted of lying to the police about her disappearance, I was sickened; I could not believe she was not being charged with child neglect or endangerment, or even obstruction of justice," said petition-starter Michelle Crowder.

"I saw a page on Facebook proposing that a law be made, but I saw nothing about a petition being started for it. So, I decided to start one on Change.org because I have signed several petitions on the site and I knew it would be a way to reach people and hopefully get something done."

Michelle continued, "I am hoping that this will be made into a federal law so that no other child's life, disappearance, and/or death is treated in the manner that poor Caylee's was treated. No child deserves that."

"There is extensive debate about this issue, and this campaign has been remarkable," said Change.org founder Ben Rattray. "In less than 24 hours, a woman in Oklahoma has recruited tens of thousands of supporters for her cause. Change.org is about empowering anyone, anywhere, to take action on the issues that are important to them, and it is the perfect platform for this record-breaking campaign."

Change.org, the world's fastest-growing platform for social change, was profiled this week in the New York Times, Sacramento Bee, and Washington Times.

Live signature totals from the "Caylee's Law" petition on Change.org:
http://www.change.org/petitions/create-caylees-law

Facebook page that prompted Michelle to start the Change.org campaign:
http://www.facebook.com/CreateCayleesLaw

Facebook page tied to Michelle's Change.org petition:
http://www.facebook.com/pages/Create-Caylees-Law/239305669422074

(I've left all the links in the press release so you can see the startling amount of self-promotion involved. Most of those links that appear to lead to a news story -- e.g. "thousands of supporters" or "record-breaking campaign" lead right back to the Change.org petition page.)

You don't have to follow news about our criminal justice system for very long to know that laws named after (alleged) crime victims are often just legislative theater ("Behold! I have done something about this problem!"), in which case they are usually a poorly-written overreaction to a single incident, and they usually do more harm than good.

Here's the text of the petition:

Create Caylee's Law, Not Reporting Child's Death Should Be a Felony

Greetings,

On July 5, 2011, at 1:15 pm CST, Casey Anthony was found not guilty of first degree murder in the death of her daughter Caylee Anthony. The only charges she now faces are four counts of falsifying police reports, each of which only carries a 1 year prison term. Since she has been in jail since August 2008, she will be out of jail ENTIRELY too soon.

I'm writing to propose that a new law be put into effect making it a felony for a parent, legal guardian, or caretaker to not notify law enforcement of the death of their child, accidental or otherwise, within 1 hour of said death being discovered. This way there will be no more cases like Casey Anthony's in the courts, and no more innocent children will have to go without justice.

Also, make it a felony for a parent, legal guardian, or caretaker to not notify law enforcement of the disappearance of a child within 24 hours, so proper steps can be taken to find that child before it's too late.

The case of Caylee Anthony was tragic, and there is no reason for another case like this one to hit the courts. Let's do what is necessary to prevent another case like this from happening.

[Your name]

Offhand, I see at least four problems.

First of all, why should this be a federal crime? The related crimes -- murder, manslaughter, endangering a child -- are not generally federal crimes.

Second, does it really make sense to require parents to notify law enforcement within one hour? My God. I don't have children, but my guess is that if you discover your child dead, it could take you an hour before you even have the strength to get up off the floor.

Third, most children who die in the home, or otherwise in their parents' care, are not murder victims. They die of accidents or medical conditions. Thus, nearly all parents who suffer the death of a child -- and are therefore subject to this law --- are not actually criminals. They did nothing wrong. And they know they did nothing wrong. So, in the midst of mind-numbing tragedy, they might not realize they're supposed to call the cops. After all, it's not like the cops can help.

Fourth, the petition says parents are supposed to notify law enforcement of the disappearance within 24 hours. I don't know if it's true, but haven't we all heard that the police won't even begin a missing person investigation until at least 24 hours have passed? So why try to report it before then? And if we're talking about a troublesome teenager, involved with drugs, I'd imagine that disappearances of several days are not unusual. And if you suspect your child is involved with drugs, calling the police is probably a terrible idea.

Most of the problems I've mentioned might sound like they could be handled with a carefully drafted law. For example, the requirement to report a disapperance could be limited only to young children like Caylee. That's the logical and sensible thing to do. Then again, it would be logical and sensible if laws against child molestation did not apply to 18-year-old boys who have consensual sex with their 16-year-old girlfriends, and yet they do. Logic and sense often go out the window when children are involved.

The problem is that laws like this -- laws named after people -- are usually passed for show, and so thoughtful, careful drafting is not a priority. If someone actually does propose a Caylee's Law (and I'm guessing someone will) it may not have any of the flaws I've suggested here, but it's a good bet that it will have something wrong with it.

There's also a good chance it will be loaded up with unrelated provisions. After all, why should it apply only to children? Don't we care about the elderly too? Or the mentally impaired? And isn't there something else on the law enforcement wishlist we could add to the bill?

And then there's the issue of how the law will actually be applied. I predict that many years will go by before the law is used in a case similar to the Casey Anthony trial. On the other hand, if history is any guide, a law like this will probably turn into a de-facto sentencing enhancement/plea-bargaining chip.

For example, when a parent kills his own child in a drunk-driving accident, in addition to the DUI, reckless endangerment, manslaughter, or whatever else would be typical, he might find himself charged with a Caylee's Law violation because he was too drunk to report the death in a timely fashion. It's just another charge on the pile to get a little more jail time.

Or maybe the missing-child reporting requirement will be used to harass the families of suspected criminals: "You say you don't know where your son is? And you haven't seen him since Friday? That's more than 24 hours. Tell us where he is, or we'll arrest you right now."

None of this will address the problem that has everybody so upset: The impression that Casey Anthony got away with doing evil because there just wasn't enough evidence. Caylee's Law would do nothing to fix that. Instead, Caylee's law would criminalize certain actions or inactions, not because they are especially evil, but because they are easy to prove. And that's no way to write criminal law.

Update: Radley Balko says it better:

This is a bad way to make public policy. In an interview with CNN, Crowder concedes that she didn't consult with a single law enforcement official before coming up with her 24-hour and 1-hour limits. This raises some questions. How did she come up with those cutoffs? Did she consult with any grief counselors to see if there may be innocuous reasons why an innocent person who just witnessed a child's death might not immediately report it, such as shock, passing out, or some other sort of mental breakdown? Did she consult with a forensic pathologist to see if it's even possible to pin down the time of death with the sort of precision you'd need to make Caylee's Law enforceable? Have any of the lawmakers who have proposed or are planning to propose this law actually consulted with anyone with some knowledge of these issues?

This is exactly what I mean about the trouble with hastily-passed laws. People could go to jail for breaking this law, and Crowder didn't even spend a day doing research. That's irresponsible and dangerous.

Well...I sure didn't see this one coming:

CHICAGO -- The FBI has requested a DNA sample from "Unabomber" Ted Kaczynski as part of its investigation into the 1982 deaths of seven Chicago-area people who took cyanide-laced Tylenol from packages that had been tampered with, officials said Thursday.

Wouldn't that be something? Damn. I remember the Tylenol poisonings. In a way, we all do, every day. Some of you youngsters may not realize this, so...

You know how when you get a bottle of pills or a jar of cheese spread, and you have to tear off that plastic wrapper before you can unscrew the cap? Thirty years ago, there was no such thing. Thirty years ago, hardly any food or medicine products came with tamper-evident packaging.

Then, in 1982, seven people in and around Chicago died after taking Tylenol that had been laced with potassium cyanide. It was a pretty scary time: If the killer could put poison in Tylenol, couldn't he could put poison in any other medicine or food? And couldn't anyone else who had a grudge against society?

Over the next few years, we began putting little plastic wrappers on every food or medicine that opened with a cap. Every time you scrape your fingers trying to peel one of those off, it's because of the Tylenol murders.

The Tylenol killer has never been caught, although there have been at least two copycat poisoning murders, both of which were attempts to distract authorities from a single specific person who was the intended victim. It remains one of the FBI's biggest unsolved cases. It would be amazing if they could pin this on Kaczynski. I don't think I've heard anyone talking about him as a suspect for the Tylenol killings before.

On the other hand,

John Balasz, Kaczynski's attorney, said he thinks the FBI wants Kaczynski's DNA simply to rule him out as a suspect in the Tylenol case.

"You've got to ask the FBI how serious they are. I think it's probably more that they want to exclude him," he said.

Balasz said he's "completely convinced" that Kaczynski had no involvement in the case.

Frankly, the government has a shaky record in this area. Just ask "person of interest" Steven Hatfill. And when the government finally decided he wasn't responsible for the antrax letters (and paid him millions of dollars in damages), they picked a new suspect who was conveniently too dead to defend himself. So I'm not about to jump to any conclusions about Kaczynski as the Tylenol killer.

In 1985, John Thompson was convicted of murder. In later years, however, defense investigators discovered that the prosecutor, New Orleans Parrish Assistant District Attorney Gerry Deegan, had intentionally withheld evidence. This was a violation of Thompson's rights under Brady v. Maryland, and Thompson's conviction was vacated. He was tried for murder again, and after eighteen years in prison—fourteen of them on death row—he was acquitted and released.

As you'd expect, Thompson then tried to sue the people who had violated his rights. That turned out to be trickier than you might think, as Norm Pattis explains:

Given the vagaries of the law of prosecutorial immunity, the man wrongly sent to death row could not sue the prosecutor who withheld the evidence, Gerry Deagan. He was performing his duty as a prosecutor: under the court's functional test for determining when to grant prosecutors a pass, the law blew Deagan the tyrant's kiss.

That the law forgives prosecutors for their honest mistakes is perhaps understandable, but I don't have a clue why it forgives them for their dishonest mistakes. In any case, it's a really great deal for prosecutors.

Thompson instead chose to sue New Orleans Parrish District Attorney's Office. There's a trick to this, however, as Jessica Fitts explains at SCOTUSblog:

in City of Canton v. Harris, the Court made clear that a governmental entity can be held liable under Section 1983 for its failure to train employees only if the plaintiff can prove "deliberate indifference" to an obvious risk that constitutional violations will directly result from the policy or custom. In so holding, the Court discussed two hypothetical scenarios that might meet this standard: (1) cases in which the policymaker has been alerted to a training problem by a series of prior violations; and (2) cases involving single incidents, in which the need for training is so glaringly obvious that constitutional violations are inevitable.

Since this was more-or-less a single case, Thompson's lawyers had to prove that his situation met the "glaringly obvious" requirement for a single incident. Impressively, they succeeded, and Thompson was awarded $14 million.

Unfortunately, earlier this week, the U.S. Supreme Court decided Connick v. Thompson and took it all away. Basically, as far as I can tell, the Supremes bought the DA's argument that prosecutors are highly-trained professionals who should have known, and did know, that not disclosing Brady materials was wrong. That Deegan chose to break the rules doesn't mean the DA's Office failed to train him or other prosecutors. It just means that Deegan was a bad guy.

Some of the lawyers around here are explaining why they think the Supreme Court is wrong (Norm, as mentioned, Scott Greenfield, Rick Horowitz), with various level of detail. With all due respect, however, I disagree. I think that on the issue directly before them, the Supreme Court got it right. I'm not a lawyer, so make of this what you will, but based on the test in Canton and the facts as I understand them, the problem did not arise due to the DA's office's deliberate indifference to a training problem.

That's not to say I don't think Thompson deserves a big check from the government for what they did to him. Rather, as I see it, the problem is that Thompson shouldn't have had to prove deliberate indifference or any other training problem. All he should have to prove to make his claim is that he was imprisoned in error, that he was imprisoned when the law says he shouldn't have been imprisoned. Why does the reason for the justice system's error matter?

In slightly more legal terms, I think a claim for wrongful imprisonment imprisonment should be a matter of strict liability. In ordinary civil litigation, the strict liability standard usually applies to situation that are inherently dangerous, such as hauling explosive chemicals on the public roads. (If the escaped Bronx Zoo cobra injuries someone, my guess is that the zoo will be strictly liable for keeping dangerous animals.) It seems to me that the justice system's practice of grabbing people off the street and locking them in cages is inherently dangerous. When they hurt innocent people, for any reason, they should pay the price.

The rationale for applying strict liability is pretty simple. Our criminal justice system exists to provide a public good, law and order, and all members of the general public benefit from it. Of course, our criminal justice system also has costs. There's the cost of cops patrolling the streets and the cost of detectives solving crimes. There's the cost of the prosecutors and investigators. There's the cost of the courthouse and the judge and the clerks and the bailiffs. Then there's the cost of all the holding cells and jails and prisons, including all the prison guards. These costs are all paid for using funds collected as taxes from the same general public that receives the benefit.

There's one more cost of our criminal justice system: Wrongful imprisonment. No matter how good we make our criminal justice system, it's still going to make mistakes. Even at it's very best, It will, from time to time, put the wrong people in prison. This is an inevitable consequence of an imperfect system for deciding who goes to prison. And wrongful imprisonment is just as real a cost of criminal justice as running a police force or operating a court system.

In which case, shouldn't it be paid for by the general public, just like any other cost? That is, when we wrongfully send a guy like Thompson to prison, shouldn't we pay the price to compensate him for all that he lost by being in prison? Note that the why of it just doesn't matter, because it doesn't change the loss he suffered at our hands. (Except if he actively tried to get imprisoned, such as to protect the actual culprit.) Instead, under the current system, the entire cost of wrongly sending a guy like Thompson to prison is going to be paid by Thompson himself. That doesn't seem very fair, does it?

I'm not sure how to calculate the extent of the damages that New Orleans Parrish owes Thompson. Maybe we let the the lawyers sort it out in a lawsuit, or maybe to avoid a long and drawn-out process, the state should specify a reasonable level of liquidated damages.

(What's reasonable? Well, my engineering brain appreciates consistency, and since the Department of Labor has decreed that a person's time is worth a minimum of $7.25/hour, with time-and-a-half for overtime, we can calculate that for each 168-hour week he's in prison, he's due $1682.64 per week, or about $87,000 per year. Thus, on the day he was released, the people of New Orleans Parrish owed John Thompson at least $1.5 million. Minimum.)

Again, this is just a cost of operating the justice system, and everyone who benefits from the operation of the justice system should share in its costs, including paying off people who are wrongfully imprisoned. If the people paying the bills don't like the high costs, perhaps they need to make sure they have better prosecutors. In any case, the prosecutor's misbehavior is not Thompson's problem.

(Hat tip: I used this post by Steve Landsburg to refine my argument a bit.)

Here's an excerpt from a statement by the Middlesex County, Massachusetts, District Attorney's office about the SWAT shooting of 68-Year-Old Eurie Stamps while he was lying on the floor:

As Officer Duncan moved to the right of Mr. Stamps, just past Mr. Stamps' shoulders, he had to step to his left.  As he stepped to his left, he lost his balance, and began to fall over backwards. Officer Duncan realized that his right foot was off the floor and that the tactical equipment that he was wearing was making his movements very awkward.  While falling, Officer Duncan removed his left hand from his rifle, which was pointing down towards the ground, and put his left arm out to try and catch himself.  As he did so, he heard a shot and then his body made impact with the wall.  At that point, Officer Duncan, who was lying on the ground with his back against the wall, realized that he was practically on top of Mr. Stamps and that Mr. Stamps was bleeding.  Officer Duncan immediately started yelling "man down, man down."  Numerous SWAT members began calling for medics and alerting team members that there was a person down that needed medical attention.   Officer Duncan told another officer on scene within moments of the incident that he had stumbled and lost his balance while moving to get in a better position, and as he was falling, his gun fired.

Whenever I post something critical of a SWAT team, I always hear from someone who tells me that I don't know anything about SWAT because I haven't been there. They're right that I don't know much about SWAT, but I do know a thing or two about how guns work, and I've received training on safe gun handling.

In order to shoot Eurie Stamps, Officer Duncan had to break two rules of gun safety: (1) He had to have the gun pointed in an unsafe direction, and (2) he had to have had his finger on the trigger. I can understand how the gun got pointed in the wrong direction--Duncan stumbled and lost control of his rifle. That part is a plain and simple accident.

Further, it's a natural human reaction to grab onto things when you fall, so I can understand how his fingers might have clamped onto the gun as he stumbled. But reflexive hand squeezes are a well-known problem in gun handling--people can also give an involuntary squeeze when startled by a loud noise or when they sneeze--which is the reason for the rule that you keep your finger off the trigger.

Now read those last three words of the excerpt again: "His gun fired." That's undoubtedly true has far as it goes, but contrary to the implication of the passive sentence structure, guns don't just fire themselves. Officer Duncan pulled the trigger.

(There are a couple of other possibilities. Perhaps as the officer fell, his rifle got twisted around in his hand, although I can't picture how this could happen in a way that puts his finger on the trigger at the same time his rifle is pointed at someone lying on the floor. Another possibility is the the trigger got caught on something in the environment. However, the DA's statement mentions neither of these things.)

None of this makes Officer Duncan a murderer. It doesn't even make him a bad person. It may not even mean he's reckless with a firearm: Even people with excellent gun handling skills make mistakes. They forgetfully put their finger on the trigger, but they don't pull it, so no harm done. Or maybe they have an accidental discharge, but the weapon wasn't pointed at anyone, so no harm done. And every once in a while, someone with excellent safety skills just has their worst day ever, and they shoot an innocent person entirely by accident.

It's not just possible for it to happen, it's bound to happen. Accidental shootings are an inevitable consequence of having large numbers of people handling firearms. But not all gun handling situations are created equally. A confusing, high-stress, guns-ready situation like a SWAT raid is much more likely to result in an accidental shooting than the ordinary patrol activities of police officers.

So the question we should be asking ourselves is not just whether Officer Duncan was reckless in handling a gun, but also whether Officer Duncan and the other members of the SWAT team should have been there at all. Are the benefits of all these SWAT raids worth the inevitable deaths that will occur?

I don't think so. I think it's time to re-think how police departments handle drug-related warrants, and that should include serious consideration of eliminating drug raids altogether.

You've got to be friggin' kidding me. I mean, I know that scaring people is part of the whole tough-on-crime business, but really?

Rick Horowitz and I have been exchanging messages about some website design issues, and that got me to poking around Rick's new law practice website, which lead me to another of Rick's websites: GangDefense.com, which eventually led me to his practice areas page. That's where Rick mentions in passing that California has an anti-gang law called the STEP Act, in which the "STEP" stands for...wait for it...Street Terrorism Enforcement and Prevention.

That's right, they're not just gangs, they're Street Terrorists!

A depressing story about a group of thirteen-year-olds who allegedly strong armed another thirteen-year-old to rob an iPhone contained what I considered to be a strange additional fact in the case. An 18-year-old "was charged with disorderly conduct after police said he was present at the time of the robbery and did nothing to stop it."

It's been a long time since I posted anything at When Falls the Coliseum, but I finally got around to writing something new for them. It's about the recent verdict by an Oregon jury, calling for the death penalty for Bruce Turnidge and his son Joshua for the murder of two police officers. There's a part of the prosecutors' argument that just doesn't seem like the sort of thing we should allow in a free country.

Here's the link: Death For Extremist Speech?

Every once in a while, I get the urge to make predictions. That's because I believe that if someone claims to understand something, they should be able to successfully predict future developments. My track record, therefore, demonstrates that I don't understand anything.

(Oh, sure, I called a few easy ones, like that John Mark Karr didn't really kill JonBenet Ramsey or that McCain would lose the presidential election. On the other hand, I was completely wrong about everything I predicted for the last season of Battlestar Galactica.)

Anyway, here's my prediction about the future of Julian Assange:

First, the UK and Sweden have treaties and a good working relationship, and the charges against him are for real crimes (whether they are sustainable is another matter) so I think he's going to be extradited to Sweden.

Second, I think Assange will ultimately be extradited to the United States, but it's going to be tricky. For one thing, I hear that freedom of the press is very strong in Sweden, and I've also heard that Sweden won't extradite people for what they consider to be a political crime, which is how the Wikileaks affair is likely to be seen over there.

This brings us to the main question (and my main prediction): With what crimes will the Justice Department charge Assange? I'm not a lawyer, of course, so my predictions should hardly be taken as definitive analysis, but I've been watching how my goverment works for a long time, and I think I can see where this is going.

Despite what some of the loud-mouthed politicians and pundits say, Assange can't be charged with Treason. He's not a U.S. citizen, and he's never had a relationship to the U.S.--such as residency or military service--that would bind him to a duty of loyalty.

A more likely possibility is the Espionage Act, which makes it a crime to say things that interfere with the smooth running of the military. Amazingly, the Espionage Act has been held to apply to foreigners who commit their crimes outside the United States, even though that would seem to allow for such absurdities as prosecuting the entire adult population of Germany and Japan after World War II. This is exactly the sort of thing that would make the Swedish (or even British) courts deny extradition.

Also, the Espionage Act may run into problems with the First Amendment. It was ruled constitutional in 1919, but more recent court decisions have picked away at it, and in today's courts it just might be ruled unconstitutional.

So, when the Department of Justice goes after Julian Assange, they're going to want to avoid charging him with anything too exotic. They're going to charge him with a crime for which they have successfully extradited lots of other people, they're going to charge him with a crime which is not teetering on the edge of unconstitutionality, and they're going to charge him with a crime for which they have a long track record of conviction.

In other words, they're going to charge him with money laundering.

Wikileaks is a somewhat secretive organization, and to preserve that secrecy, its staff has probably had to be a little sneaky with their funding. I think the Justice Department is going to investigate how Wikileaks has been funded, and they're going to find something that breaks the rules. The DOJ might throw in a few other charges for show, but it will be the money laundering charges that do all the hard work.

At least, that's my prediction.

Thanks to Scott Greenfield, I just found a new site that just might turn out to be a great source of things to blog about. It's called Right on Crime, and it promises to be about "The Conservative Case For Reform: Fighting Crime, Prioritizing Victims, and Protecting Taxpayers." With a tag line like that, something tells me they don't have a lot of libertarians on their board.

Taking a look at their Statement of Principles, you can see the result, right in the first paragraph:

As members of the nation's conservative movement, we strongly support constitutionally limited government, transparency, individual liberty, personal responsibility, and free enterprise. We believe public safety is a core responsibility of government because the establishment of a well-functioning criminal justice system enforces order and respect for every person's right to property and life, and ensures that liberty does not lead to license.

Sigh. They've got two out of three of John Locke's natural rights of man--life and property--but when it came to liberty, they just couldn't quite commit to unconditional respect. They had to throw in that bit about ensuring that "liberty does not lead to license"...whatever that means. That's the problem with the conservative law and order agenda in a nutshell: Not enough respect for freedom.

Now let's look at a few of those principles:

Applying the following conservative principles to criminal justice policy is vital to achieving a cost-effective system that protects citizens, restores victims, and reforms wrongdoers.

1. As with any government program, the criminal justice system must be transparent and include performance measures that hold it accountable for its results in protecting the public, lowering crime rates, reducing re-offending, collecting victim restitution and conserving taxpayers' money.

All that, and not a word about protecting innocent people from erroneous punishment. That is, after all, why we supposedly go through the trouble of having a justice system. Otherwise we could save ourselves a lot of money and just let the police beat the crap out of anyone they think might have done something wrong.

2. Crime victims, along with the public and taxpayers, are among the key "consumers" of the criminal justice system; the victim's conception of justice, public safety, and the offender's risk for future criminal conduct should be prioritized when determining an appropriate punishment.

Just once, I would like to see someone with a victims' rights agenda explain why, if the victims are so important, we waste resources punishing people for victimless crimes.

3. The corrections system should emphasize public safety, personal responsibility, work, restitution, community service, and treatment--both in probation and parole, which supervise most offenders, and in prisons.

4. An ideal criminal justice system works to reform amenable offenders who will return to society through harnessing the power of families, charities, faith-based groups, and communities.

Maybe this would be easier if we didn't let violent gangs control the prisons? Prisoners need to be taught to follow society's rules, not the rules of the prison yard. When a prisoner's quality of life depends more on the mood swings of other inmates than on anyone working for the prison system, rehabilitation is going to be a steep uphill climb.

5. Because incentives affect human behavior, policies for both offenders and the corrections system must align incentives with our goals of public safety, victim restitution and satisfaction, and cost-effectiveness, thereby moving from a system that grows when it fails to one that rewards results.

Again, no mention of protecting the innocent, let alone the rights of the accused.

6. Criminal law should be reserved for conduct that is either blameworthy or threatens public safety, not wielded to grow government and undermine economic freedom.

I don't know what that's all about. What do they mean by "blameworthy"? Or maybe it's better to ask what conduct they think should not come under criminal law?

Now here are a few principles I wish they'd mentioned:

• Reducing the number and magnitude of incidents in which the innocent are wrongly punished.
• Preventing the rights of free citizens from being infringed by government law enforcement employees.
• Swiftly and decisively punishing lawbreakers who act under color of authority.
• Preventing activist cops and prosecutors from stretching the criminal code to punish behavior which was never before considered illegal.

Or isn't that the kind of out-of-control government that conservatives are worried about?

I don't know. I'll have to read more of the Right on Crime website. Maybe all that is in there somewhere...

Why does anybody pay attention to what law enforcement employees think should be a crime? This is from Michele Leonhart's confirmation hearing as head of the DEA:

"I'm a big fan of the DEA," said [Sen. Jeff Sessions of Alabama], before asking Leonhart point blank if she would fight medical marijuana legalization.

"I have seen what marijuana use has done to young people, I have seen the abuse, I have seen what it's done to families. It's bad," Leonhart said. "If confirmed as administrator, we would continue to enforce the federal drug laws."

Well, that's sort of the job...

"These legalization efforts sound good to people," Sessions quipped. "They say, 'We could just end the problem of drugs if we could just make it legal.' But any country that's tried that, Alaska and other places have tried it, have failed. It does not work," Sessions said.

"We need people who are willing to say that. Are you willing to say that?" Sessions asked Leonhart.

"Yes, I've said that, senator. You're absolutely correct [about] the social costs from drug abuse, especially from marijuana," Leonhart said. "Legalizers say it will help the Mexican cartel situation; it won't. It will allow states to balance budgets; it won't. No one is looking [at] the social costs of legalizing drugs."

When I was in school, I learned that legislatures made the laws, and executive bodies, such as the DEA, enforced them. So who the hell is Michele Leonhart to tell us what the laws should be? I mean, she has the same right to speak out as anyone else, but why would anyone bother to listen? She's an expert at law enforcement, but that doesn't mean she knows anything much about the moral and ethical reasoning needed for good lawmaking.

I've pointed out before that we have so many laws that allow police departments to seize cars that we're turning our police forces into auto theft rings with badges. And I've commented several times on the police practice of conducting home invasions in the name of the War on Drugs.

Now, it appears that Orleans Parish in Louisiana has graduated to hostage taking:

The man, Tyrone Claiborne, had been mistakenly arrested on a warrant meant for a man with the same birthday named Tyrane Claborne. The wanted man had failed to pay his fines and fees while in the Section C drug court after pleading guilty to attempted heroin possession with the intent to distribute.

Another judge had handled the drug plea before Willard took over the section.

According to [Public Defender Stuart] Weg, Willard asked whether the two men were related. "Upon discovering that the two are brothers, the judge declared that the matter was a 'family affair' and that he intended to continue holding Tyrone L. Claiborne until he... could cause his brother to appear before the court," the lawsuit says. 

Awesome. What a fabulous idea! This was initially unintentional (I assume) but really, why should the Sheriff's department go through the tedium of tracking down the subject of a bench warrent when it's so much easier to just grab up a few relatives and use them as leverage?

(Hat tip: Simple Justice)

Imagine that you're walking along the street, or in the park, with your family, minding your own business, when a stranger comes up and wants to talk. The stranger is quite rude about it, and won't leave you alone. Then the stranger starts touching you, on the arms, on your chest, even groping up and down your legs and brushing against your genitals. Even worse, the stranger starts touching your family the same way--your wife, your son and daughter.

You're outraged, but you don't dare try to stop this obscene intrusion, because under the stranger's jacket you can see a gun. And even if you could do something about that, the stranger is part of a crew, and the others have guns too.

This grotesque violation is reality for hundreds of thousands of people every year in New York and other major cities. And complaining to the police does no good whatsover, because the the strangers with the groping hands are the police.

The New York Times's Bob Herbert just wrote about this:

The police in New York City are not just permitted, they are encouraged to trample on the rights of black and Hispanic New Yorkers by relentlessly enforcing the city's degrading, unlawful and outright racist stop-and-frisk policy. Hundreds of thousands of wholly innocent individuals, most of them young, are routinely humiliated by the police, day in and day out, year after shameful year.

...

From 2004 through 2009, city police officers stopped people on the street and checked them out nearly three million times. Many were patted down, frisked, made to sprawl face down on the ground, or spread-eagle themselves against a wall or over the hood of a car. Nearly 90 percent of the people stopped were completely innocent of any wrongdoing.

I didn't see it mentioned by name, but I assume all of this is happening under the exception to the Fourth Amendment's prohibition of unreasonable searches and seizures known as the "Terry Stop," during which, according to Wikipedia,

For their own protection, police may perform a quick surface search of the person's outer clothing for weapons if they have reasonable suspicion that the person stopped is armed. This reasonable suspicion must be based on "specific and articulable facts" and not merely upon an officer's hunch. This permitted police action has subsequently been referred to in short as a "stop and frisk,"

Keep in mind that reasonable suspicion is the easiest standard for a police officer to meet. It can be based on unknown shapes under the clothing, suspicious behavior, or probably even simply being in a known gang location.

[Update: In the comments, Scott Greenfield informs me that the rule governing police behavior in New York is somewhat more complicated than Terry v. Ohio. Read his comment for the explanation and proper cite.]

It's true that evidence gained from improper searches can sometimes be excluded at trial, but let Scott Greenfield explain why that's not a solution:

While the remedy for an unconstitutional stop and frisk that results in an arrest may (or may not) be suppression, the 90% ordered to kiss pavement and get some boot-love while wandering hands touch private parts get nothing.  Zero, zippo, nada.  There's no incentive for the police not to stop and frisk at will because there's no price to be paid for it.  Find something and get an arrest.  Find nothing and move on to the next black man

This is the eternal argument against the exclusionary rule: It only helps the guilty. Usually this argument is made by law-and-order types who want to get rid of the exclusionary rule, but it's also an explanation of why the exclusionary rule is not enough: It doesn't help innocent people whose rights are trampled by police. They have no remedy.

(After-the-fact lawsuits aren't as helpful as we might hope, as Norm Pattis explains in a new post.)

One of the emerging themes of my posts here at Windypundit is the idea that when something bad happens to you, the reason it happens has no effect on the injury you suffer. For example, if a crazy person kidnaps you and locks you up in a small cage for five years, you're going to have a really bad time of it. However, if lying cops and an overzealous prosecutor send you to jail for five years for a crime you did not commit, you're going to have an equally bad time of it.

In fact, even if you did commit the crime, you're still going to suffer if you have to spend five years in prison. The only difference is that this time you'll deserve it. But that isn't going to make it any easier for you.

Similarly, I can't think of any reason that being fondled by a police officer during a Terry stop would be any less unpleasant than being fondled by a stranger at a bus stop. That latter is called (I think) sexual assault, but it's hard to see how it's better when a police officer does it.In fact, if a stranger does it, at least you can slap them away, or simply run away. Try that with a cop and you'll be arrested.

(You might object to my calling this a sexual assault when the officer's not doing it for his own sexual gratification, but that would only make a difference if we were considering charging the cop with a crime. In this post, I'm more concerned about harm to the victim, which doesn't seem much reduced by the assailant's benign motives. That said, don't forget that lots of sex crimes aren't motivated by a desire for sexual pleasure, but by a desire to dominate, control, and humiliate the victim. An abusive body search sure seems like a good way to do that.)

Stop and think for a minute about how insane this is. You can be minding your own business--standing at the bus stop, or walking in a park--and a cop can come up to you and begin interrogating you. Then, even though he has injected himself into the situation, he can now use his own safety concerns as a pretext to fondle your body to check for weapons or (realistically) anything else he can find, and if you resist his groping hands, he can subdue and arrest you. Put simply, you can be doing nothing wrong, and a cop can still legally create a reason to arrest you.

If you ask a cop why he's allowed to interrogate you in a situation like this, he'll explain that it's just a conversation, and in the land of the free, anyone can start a conversation. If you ask a Supreme Court Judge (or at least Scalia) why the fruits of this interrogation are admissible as evidence, he'll explain that it was non-custodial, meaning you were free to leave. However, even though your leaving would ensure the officer's safetly (much as his leaving you alone would), that's off the table during a Terry stop.

Besides, does anybody really believe the argument that the search is necessary for officer safety? It's probably a really good idea to search someone before transporting them, but I have trouble believing a pat-down is a serious part of police street safety, especially when compared to police weapons, armor, and tactics.

Besides, why are people with concealed weapons only dangerous to police? Under the offered safety rationale, shouldn't we all be allowed to pat down the people standing next to us at the bus stop? I know some of my readers are criminal defense lawyers, and I have a question: Doesn't this I-was-patting-them-down-for-weapons-because-I-was-concerned-for-my-safety argument sound like something one of your less reality-bound clients might offer as an excuse for groping women on the bus?

There's one more thing I just have to comment on. In his post about these abusive searches, New York criminal defense lawyer Scott Greenfield suggests a strange solution to this problem. It's a solution that lacks any of the practicality and sensibility we normally expect from him. It's a solution that seems utterly disconnected from the reality of law enforcement and criminal law.

Naturally, I thought of it years ago, and I like it a lot. Here's Scott's idea:

Struggling with this question, however, I've come up with a solution.  Every time a cop frisks someone and comes up empty, he should have to pay the person $10.  Not so much as to strike fear in the wallet of a police officer, but enough to make a cop think twice before hassling someone for nothing.  After, ten dollars here and ten dollars there, and pretty soon you're talking about a day without donuts.

(Scott, I think you've been reading my blog way too much.)

The beauty of this idea lies in the way it makes use of a couple of principles of economics--incentives and revealed preference. I've been an amateur student of economics for years, and one of the most important lessons is that people respond to incentives.

Scott's solution is a classic example of solving a problem by adjusting the incentives. When police do a stop-and-frisk, the incentives are lopsided. If they're right, and they find something, they get an arrest. But if they're wrong, then despite the discomfort they've cause for others, they lose nothing except a few minutes of their time. Naturally, police do a lot of stop-and-frisks.

Making police pay a price for all those stop-and-frisks would change the incentives. It would force police to choose more carefully when they want to grope people's bodies. And it's a tunable solution: If cops are still doing too many searches, you just raise the stop-and-frisk price to $20. If they're not doing enough searches, you lower it a bit.

Another thing I like about this proposal is the way it makes use of revealed preferences. You see, economists are a lot like Dr. Greg House: They think everybody is lying. If you want to know what people want, don't listen to what they say, watch what they do. For example, a lot of people will say that it's wrong for a business to hire illegal immigrants, but when they're looking for a cheap contractor to remodel their house, they don't inquire into the immigration status of his employees. They say they want one thing, but their true preferences and motives are revealed by the choices they make.

So while there's not a chance in hell of anything like Scott's fee-for-search plan ever being implemented (and I'm sure he knows it), it would sure be interesting to try it for a few months just to see how police respond to the change, and what this reveals about their true preferences. I imagine police place a high value on their own safety, so if stop-and-frisks really are a safety measure, we wouldn't expect their frequency to decline very much. Ten dollars here and there would be worth it to the officers making the decisions.

On the other hand, if the stop-and-frisks are not really about officer safety--that is, if the officer safety rationale is just a ruse to bypass constitutional search and seizure protections--then we could expect police officers to respond to the fee by significantly reducing the number of stop-and-frisk searches they perform, thus revealing their true motivations.

I'm pretty cynical about these things, so my guess is that implementing Scott's $10-per-search fee would cause cops to greatly reduce the number of stop-and-frisks they perform. And if we set the fee just a little higher, maybe at $25, I wouldn't be surprised to see the stop-and-frisk rate go all the way to zero.

Two cops have filed a libel suit against the Chicago Police Superintendent, Jody Weis, because they were investigated for beating a handcuffed teenager.

Though Weis never identified Meuris and Vanna by name to the news media, he published their names in an internal communication sent to others in the Police Department, said their attorney, Daniel Herbert.

How is an investigation of officers to take place if no one is allowed to mention their names in any internal communications? This would be a laughable, frivolous suit if it weren't for the message being sent by the officers.

I just spotted an article about a women hit by a Chicago Police vehicle this morning. (This site often changes the text of their articles several times. Here's how it reads as of 16:30 CDT):

A woman in her 60s was injured this morning after she was struck by a Chicago police vehicle in the Albany Park neighborhood, officials said.

The accident happened about 6:17 a.m. at the intersection of Kedzie and Montrose Avenues, said Chicago Police News Affairs Officer Darryl Baety.

The police vehicle was responding to a "high priority" call involving a sexual assault in progress, Baety said. Baety did not know if the vehicle's emergency lights were activated.

The woman sustained lacerations and bruises to her head and was taken to St. Francis Hospital in Evanston, Baety said.

The woman's condition was not available.

Chicago Police News Affairs Officer Darryl Baety's pants are on fire.

A sex offense 4546 Kedzie. 4546 Kedzie, at the McDonalds.

Caller says the police were out earlier for a male Hispanic who was naked and, uh, exposing himself out in front of the McDonalds.

The guy is back. He's standing near the bushes on the side of the building, keeps coming back.

The caller, [caller's name], would like to speak with you; says she can point him out.

A minute or so later the officer involved in the accident called in to report it and request an ambulance "ASAP".

All the way from Suffolk County, New York, I now present the newest trick for the legislature that has solved all other problems, the animal abuser registry:

Suffolk County has officially become the first county in the nation to pass a bill to establish a public animal abuser registry. Authored by the legislature's majority leader, Jon Cooper, D-Lloyd Harbor, the bill creates the first publicly searchable database of convicted animal abusers, which Cooper said he hopes officially exists within the next few months.

It's basically the same idea as a sex offender registry, but for people who are convicted of abusing animals. They will have to register for five years, paying a $50 fee each time.

I'm having trouble finding details about the registration plan, but based on how the sex offender registries have worked, I think it's safe to make some predictions about the problems we'll see if this dumb idea catches on:

• The registry requirement will be retroactive. Thus, people who previously plead guilty to an animal abuse crime--e.g. to get out of jail with time served because they couldn't afford bail--will find that the state has reneged on the deal--by adding the registration requirement and fine of up to $250. (The justification will be that registration is not a criminal penalty but an administrative procedure, which makes breaking promises okay.)
• The premise will turn out to be false. I suspect that animal abusers, like child molesters, are mostly opportunistic, not predatory. They will mistreat their own pets, but they are unlikely to go hunting around the neighborhood to abuse pets. (That happens, but I'll bet it's not a typical animal abuse case, not by far.)
• The definition of animal abuse used by the registry will turn out to be more expansive than people are expecting. You might think sex offender means a child molster, but there are people on sex offender registries for hiring adult prostitutes. (I've heard rumors of cases of drunks who pass out while urinating in an alley or a park. When they wake up, they're being charged with indecent exposure, and they end up having to register as sex offenders.) Similarly, expect the animal abuse registry to include people who violate leash laws, miss vaccination dates, or fail to pay for pet licenses.
• Reciprocity will be a nightmare. It's bad enough for sex offenders, having to figure out whether a crime they committed in another state is registerable in the state where they live. I suspect it will be even worse for animal abuse, since the crimes and punishments are likely to be more broadly defined.
• The information in the registry will be nearly useless. For example, according to the Chicago sex offender registry, there are four sex offenders who live within 1/4 mile of my house. There's some descriptive information, but there's no description of the nature of the crime, how long ago it happened, how long they've been out of prison, whether they're under supervision, or if there were mitigating circumstances. There's a difference between a predatory child molester who's just been let out, a guy who raped a woman 25 years ago, and an 18-year-old guy who had sex with his 15-year-old girlfriend. It's hard to imagine that the animal registry will be any more detailed or useful.
• Animal fanatics will harass people on the list. You know it will happen.

Advocates of animal abuse registries think they have a response for that last point:

Other states also expressed concern over the fact that if these abusers' names were readily accessible, members of the public would harass abusers. Otto disagreed with this statement.

"There is no right to privacy when it comes to criminal history," [said Stephan Otto, the director of legislative affairs at the Animal Legal Defense Fund]. "There are other ways for people to find out this information if they really want to know it. This just makes the process more efficient."

How can Stephan Otto be smart enough to become director of legislative affairs for the ALDF, and yet not see that making it easier for people to find animal abusers will consequently make it easier for people to harass animal abusers? I've thought about trying to teach Stephan Otto how this works by posting his home address and phone number right here. After all, it only took me a few minutes on the web to find it, so by his logic there's no harm in publishing it, right?

Cooper added, "I think that the public has the right to know if their next door neighbor has been torturing dogs."

As Stephan Otto has helpfully pointed out, they already have the right to do this, because their next door neighbor's criminal history is a public record. So why do we need registration, again?

Another problem with Cooper's statement is the explicit assumption that people arrested for animal abuse have been torturing animals. There are other types of abuse that are included in the animal abuse statistics besides torture. Many of those are equally repulsive, but some of the other categories include neglect, hoarding, smuggling, and theft, which are not the same kinds of crimes.

(Neglect, I should point out, is not always intentional cruelty. Sometimes people take on more than they can handle, or the animal caretaker gets sick, or they can't afford proper care, or they simply don't know how to take care of an animal with special needs. These are problems, but not necessarily the sort of sadism that might justify abuse registration.)

I'm especially concerned with how animal abuse is defined. People in the animal rights movement have some pretty broad ideas about what constitutes animal cruelty, and I'm guessing that these ideas are law in some counties and municipalites, which are likely to be the same ones that will pass animal abuse registry laws. For example, animal rights activists have been campaigning against breeding of pets, complaining about amateur breeders creating too many animals without homes and excoriating professional breeders for cruel breeding practices. So it's conceivable that you could get busted in one town for letting your cat have kittens and then move to another town and find you're now required to register as an animal abuser. (I don't actually know of anywhere that criminalizes puppies and kittens currently.) 

The Suffolk County registration program also has an interesting conflict of interest, because it will be run by the Suffolk County Society for the Prevention of Cruelty to Animals (SPCA), with funding from the registration fees. In other words, the SPCA will be depending in part on a continual supply of animal abusers for its operating income. That can't lead anywhere good.

Look, I have three cats, and I wouldn't want to see them hurt, but this kind of law is just political grandstanding. If anyone seriously believed that criminal registries were really an effective crime fighting tool, you'd see them for other kinds of crimes. How come sex offenders have to register, but murderers don't? I mean, wouldn't you want to know if your neighbor was a murderer? Or even better, wouldn't you want to know if someone in your neighborhood was an arsonist? That could really be a problem.

A team of researchers at Iowa State University has just published a paper that estimates the cost to society of several violent crimes. Led by Matt DeLisi, an associate professor of sociology and director of the criminal justice program, the team came up with the following numbers:

Crime	Social Cost 2008 US$
Murder	17,252,656
Rape	448,532
Armed robbery	335,733
Aggravated assault	145,379
Burglary	41,288

Scott Greenfield at Simple Justice stumbled onto this study through a New York Times op-ed by Charles Blow, and he isn't buying any of it:

it's studies like this, and op-eds that assume some level of credibility, that make sound policy sound absurd.  Want to kill a good idea?  Wrap it up in crap.
...

I'm not calling the Iowans liars or morons.  I've no doubt that in some parallel academic universe, applying logic that defies any semblance of reality and only by suspension of reality can link together theoretical costs and values that would never otherwise exist, and then only if you hop up and down on your left foot while turning your head to the left and squinting.  No, I'm sure they have a basis for their numbers.

He further elaborates in a comment:

Do you credit that every murder costs $17.25 million?  If not, then the argument relying on this incredible number is rendered similarly incredible.

Sigh. I can't really defend this paper, because I don't nearly enough about it or the economics behind it, but I have a vague idea of what the paper is trying to do, and I think it's a good idea. So consider what follows a defense of this kind of research, if not this research in particular.

I think there are several things going on here, and it's not as crazy as Scott thinks it is. That's because economists use an expansive and all-inclusive definition of cost.

Over the last couple of decades, academic economists have been engaged in what I've heard called "economic imperialism"--trying to apply the techniques of economics to fields not traditionally thought of as economic in nature.  Some of this is quite experimental, and the results should be taken with a huge grain of salt. Often, the real purpose of the study is not so much to learn about it's subject, but to test the methods of the study itself to see if they return results that are robust and meaningful.

I don't know enough about economics to judge the quality of the Iowa State study. Are the studies it's based on considered reliable? Are they cited often in other studies? How are academic economists reacting to this study? Perhaps they're excited. Or perhaps they're all going "Bah, it's just DeLisi again!" I haven't got a clue.

That said, an average cost to society of $17.25 million per murder doesn't strike me as outrageously wrong, at least not by the standards of these kinds of studies, meaning I doubt it's more than twice the correct figure.

Keep in mind that this isn't an estimate of just the out-of-pocket costs, it also includes all the intangible costs. Acacemic economists insist that just because intangible costs are very difficult to measure doesn't make them any less real. We may have our doubts about the value of the intangible costs, but that doesn't mean we can arbitrarily assume them away. Intellectual honesty compells us to make an estimate, or at least admit to our assumptions.

So, right from the start, when someone is murdered, society loses the value of that person's life. That seems like an impossible thing to put a number to, but as I discussed in a previous post about the death penalty, economists have ways of figuring these things out. I can't follow the details of their calculations, but their methodology makes sense to me. Obviously, the number they come up with is going to be a very rough, but I've read that $8 million is a common estimate. This accounts for almost half of DeLisi's $17.25 million figure.

Most of the rest of the figure is due to what the researchers are calling "willingness to pay." This is an estimate of the cost our society is willing to pay to prevent murders. As such, it doesn't quite represent the cost of a murder. Rather, it represents the cost of living in a society that has murderers among us.

That cost is rather high, because it includes literally everything we do to avoid murder. To start with, there's the cost of our police departments and our justice system. I don't mean the direct cost of catching murderers, but the entire cost of police patrols, the 911 system, and the having detectives standing by in case a murder occurs. Preventing murder isn't the only thing the police do, but some fraction of their budget has to be apportioned to murder prevention.

We also have personal costs of preventing murder, such as security hardware and alarms for our businesses and homes. If you pay more for a house in a low-crime neighborhood, some portion of the annualized cost of the house is attributable to avoiding being a murder victim. If you quit your job as a liquor store clerk because you're afraid you'll get shot in a holdup, that's part of the cost too. Every door lock, every cell phone, every personal firearm, all of these things--they're all part of the cost of living with murderers.

Finally, we pay a cost in opportunities not taken. Every time you compromise the quality of your life in order to reduce your risk of death at the hands of another, you are paying the cost of avoiding murder. Every man who foregoes a nighttime jog through the park, every woman who decides not to leave the bar with an interesting stranger, every child who turns down a friendly driver's offer of a ride--they're all paying the murder cost.

These things add up, and they add up to a hell of a lot. All of which brings me back to Charles Blow's op-ed, which contains this interesting paragraph:

By their estimates, more than 18,000 homicides that the Centers for Disease Control and Prevention recorded in 2007 alone will cost us roughly $300 billion. That's about as much as we've spent over nine years fighting the war in Afghanistan. That's more than the 2010 federal budget for the Departments of Education, Justice, Housing and Urban Development, Health and Human Services, Labor and Homeland Security combined. Does anyone else see a problem here?

It's a huge figure, but you have to put it in some perspective. It amounts to about $1000 per year for every man, woman, and child. That's a lot of money, but it's less than we spend on a lot of other things such as food, transportation, and entertainment. Personally, my wife and I spend more than that on telecommunications.

Here's one quick factoid I've been wanting to work into a blog post for months: Economists have used this same approach to benefit-cost analysis to estimate the cost in the U.S. of traffic congestion, including motor fuel, the value of driver and passenger time, pollution, and the cost of avoiding congestion by taking different routes or driving at different times or simply not making trips. It works out to about $50 billion per year. In other words, the social cost of murder is about six times the social cost of traffic jams. It doesn't sound so bad when you put it that way, does it?

(Obviously, murder is much worse than a traffic jam, but traffic jams are a far more common problem, and the aggregate misery should not be ignored. Think of it this way: Suppose someone invented a technology that allowed you to completely avoid traffic jams but slightly increased your chance of a fatal accident. How much more dangerous would it have to be for you to not take advantage of it?)

Here's another way of looking at the cost of murder: The United States gross domestic product for 2009 was $14.119 trillion, so the $300 billion cost of murder was about 2.1 percent of GDP. The Iowa State paper cites studies that suggest that the total social cost of all crime is a little over three times higher the cost of murder, or roughly $1 trillion. That means the cost of crime amounts to about a 7 percent drag on our economy. This doesn't strike me as an outrageous number.

I should mention that parts of the Iowa study strike me a bit odd. For one thing, the study assigns the victim's life a value of less than $5 million, which is lower than the $8 million estimate I've seen elsewhere. I think this is because the $8 million economists' estimate includes a willingness-to-pay component which the study's authors have lumped into their own willingness-to-pay figure, but I'm not smart enough to be sure.

It's also a little odd that the numbers are presented with absurd precision: $17,252,656 for a murder. If this is like most of these kinds of estimates, I'd be surprised if it was considered accurate to even two significant figures. In fact, many of the numbers in the paper are presented without any characterization of the amount of error. I assume this is because the numbers are pulled from other studies, and the error is described there, but then shouldn't the numbers be rounded off for presentation?

More confusing to me, however, is that one of the components the authors include in the cost of murder is the lost productivity of the murderer while he is in prison. I don't understand the reason for this. The lost productivity of the murderer is a cost that is paid solely by the murderer himself. If we're going to include the murderer's costs, shouldn't we also include all his intangible costs as well? After all, a prisoner is essentially undergoing the same ordeal as a kidnap victim. I'm guessing that his willingness-to-pay to avoid spending years in prison is pretty high.

And if you're going to consider the costs paid by the murderer, shouldn't you also consider the benefits? After all, murderers kill for a reason. They kill for the same reason anybody does anything: To improve the quality of their lives. The victim of a murder is worse off, but the murderer himself is better off for having gotten rid of a cheating spouse or a rival drug dealer. He may not be better off in prison, but prison is a risk, not a certain cost. 

That's probably not a path we want to go down. It would be better to eliminate the murderer's benefit-cost calculation by making the technical assumption that the murder's decision to kill included an evaluation of the risk of incarceration. Thus, while we don't know all the details, we can assume that the kill was a risk-adjusted good thing for the killer. Then we just leave all the murderer's costs and benefits out of the final equation.

I suspect that the authors included the murder's lost productivity because of they were following the reprehensible but common practice of counting offender productivity losses as a loss to society. I see this a lot in arguments about the war on drugs: Prohibitionists like to argue that drug use leads to lost productivity--as if our personal productivity somehow belonged to society or our employers instead of to us as individuals.

One final point, and then really, I will stop writing: The same expansive benefit-cost ratio that gives us the $17.25 million cost of murder can also be used to estimate the costs of overcriminalization. These are probably also surprisingly huge if you're not used to economic benefit-cost analysis. Not only do you have to count the cost running the prisons, you also have to count the cost of imprisonment to the prisoners themselves.

In a previous post, I used the average salary of $11.40 per hour to calculate that it would cost $23,712 per year to hire a high-school dropout for 40 hours a week for a full year. I used this to set a floor on the cost of imprisonment. I think I could improve on this estimate by using the pay figures for jobs that require the worker to be on-site for 24 hours a day like a prison does. For example, unlicensed deckhands on oceangoing vessels make $25,738 - $34,376 a year. Of course, unlike prisoners, deck hands aren't required to be onsite for the entire year. They also receive benefits, including pensions. And shipboard living conditions are much nicer than in prisons.

Perhaps a better way to look at the real cost of a single year in prison from the point of view of the prisoner is to ask how much you would be willing to pay to avoid prison for a year. $20,000? $50,000? $250,000? Add to this all the costs of abusive police officers and overzealous prosecutors--every hispanic man who is hassled by the cops for sitting on the stoop of his own home, every black man who avoids driving through certain neighborhoods because he doesn't want to get pulled over, every businessman who has to hire lawyers to help him avoid breaking detailed regulations.

As a libertarian, I would also add the cost of the vast and pointless enforcement against all manner of consensual crimes, including drugs, gambling, pornography, prostitution, and all the related non-crimes such as money laundering. It's all pure deadweight loss, with no significant benefits.

I don't have any good estimates for these costs, but I'll bet incarceration, even of the guilty, is hideously costly to society. Incarceration of the innocent is even worse because it brings no benefits, it allows the true offender to roam free to offend again, and it chips away at the value our institutions of justice. I like to mock our justice system, but on an international scale and a historic scale, our trustworthy institutions are a valuable asset. We should be careful to treat them that way.

Thirty years ago, Philip B. Crosby wrote Quality Is Free, in which he explained how a business that improved its products could earn higher profits. The basic insight was that the earlier you catch a product defect, the cheaper it is to fix: Catching a defect during your outgoing quality assurance testing is a lot cheaper than dealing with a product return from a customer, which is costly in terms of labor and damage to your reputation. And both of those options are more expensive than manufacturing your product right the first time. Thus, efforts to improve quality at the front end will more than pay for themselves at the back end.

I was reminded of this when Scott Greenfield (via Doug Berman) linked to an ABC news item about Missouri's new sentencing program. The basic idea is to bring a bit of empiricism to the judge's sentencing decisions. The Missouri Sentencing and Advisory Commision has collected statistics on convicted persons' recidivism rates and actual time served for various crimes committed in Missouri, and judges can now query the database through a website to learn what the typical outcomes have been for the charge and type of defendant before them.

The most interesting item in the report is section titled "Costs of Incarceration and Supervision" which shows the cost to the State of different sentences, based on the cost of services and the historical expected time served.

For example, here's the result for an offender with a light criminal record who is conviced of Robbery in the 2nd degree:

Mitigating Sentence:	Community Structured Sentence - 5 years enhanced probation @ $1,792 per year. Total Cost = $8,960
Presumptive Sentence:	Shock Probation or Drug Treatment - 120-Day incarceration @ $6,294 + 5 years probation @ $1,354 per year. Total Cost = $13,064
Aggravating Sentence:	Prison - 7 years prison assuming expected actual time served of 60% = 4.2 years in prison @ $16,823 per year + remaining sentence of 2.8 years on parole @ $1,354 per year. Total Cost = $74,448

This shows the real cost of cost of getting tough on crime: The heavy prison sentence costs nine times as much as probation. (And according to the site, recidivism is slightly less likely for the probationers.)

Now we can do some math. A year in prison costs $16,823, but a year of probation only costs $1,792, a difference of about $15,000. According to this site, the top of the pay scale for an experienced public defender is $120,000 a year. Therefore, a public defender need only get a combined sentence reduction of 8 years across all of his clients in an entire year to reduce the cost of the prison system enough to completely pay for his salary.

A few caveats are in order: That figure of $120,000 is only for the public defender's salary. He also gets benefits, including an eventual retirement. In addition, the true cost of putting a public defender to work also includes the cost of stuff like support personnel, supplies, utilities, and office space. I don't have figures for the overhead costs of public defense, so just to have some numbers to work with, let's assume that it's similar to the cost of engineering overhead, for which I know that a 3.5:1 ratio is reasonable, giving a fully-burdened cost of about $540,000. That raises the total number of years to 36, which we might as well round to 40.

When I started writing this, I asked Gideon how how long he thought it would take to knock a century of prison time off his clients' sentences. It's obviously a crazy question, but he gave me a wild-assed-guess of "over a year" or maybe just a few weeks if you do well in a big case or two. Since I assume that a PD earning at the top of the salary range gets a lot of big cases, I think it's safe to say that he could easily save the state 40 years of prison time per year.

In other words, while I admit I haven't seen real numbers, it seems reasonable to assume that public defense is free.

 

Just a quick note to point out something that really annoyed me this morning. Chicago cops are protesting at police headquarters.

Before the marchers stepped off, several hundred officers were gathering in front of police headquarters, carrying signs including "More police/No Weis!!", "Simply resign" and "Free Cozzi," referring to Officer William Cozzi, who was convicted of beating a handcuffed patient in an incident that was caught on videotape.

Yup. Chicago cops are seriously pissed off that one of their own wasn't allowed to beat up a citizen who was already handcuffed to a wheelchair. They are so upset about losing their rights to beat handcuffed wheelchair bound citizens they need to picket Superintendent Jody Weis, who did nothing to stop the evil federal government from prosecuting the fine upstanding officer who did the beating.

Others have said sweeping personnel changes at the start of his tenure sent the wrong message. But his handling of Cozzi, who beat a suspect handcuffed to a wheelchair, rankled officers the most.

A female demonstrator who said she was an 11-year veteran of the police department but who declined to give her name, was wearing a yellow T-shirt reading: "In case of emergency, run like hell!"

"We don't run away, we go to," she said.

Yes, the heroism of officers like William Cozzi has been documented.

Don't you understand? If police become afraid to beat up people in wheelchairs it will be the end of civilization! Gangs of criminals will roam the streets beating people up with no fear of being locked away for their crimes!

It appears that Sheriff Joe Arpaio is continuing his efforts to turn Maricopa County, Arizona, into some kind of third-world hellhole:

The Maricopa County Attorney's Office has chosen not to prosecute Arizona Department of Corrections staff in the death of inmate Marcia Powell.

Powell, 48, died May 20, 2009, after being kept in a human cage in Goodyear's Perryville Prison for at least four hours in the blazing Arizona sun. This, despite a prison policy limiting such outside confinement to a maximum of two hours.

The county medical examiner found the cause of death to be due to complications from heat exposure. Her core body temperature upon examination was 108 degrees Fahrenheit. She suffered burns and blisters all over her body.

Witnesses say she was repeatedly denied water by corrections officers, though the c.o.'s deny this. The weather the day she collapsed from the heat (May 19 -- she died in the early morning hours of May 20) arched just above a 107 degree high.

According to a 3,000 page report released by the ADC, she pleaded to be taken back inside, but was ignored. Similarly, she was not allowed to use the restroom. When she was found unconscious, her body was covered with excrement from soiling herself.

Powell who had been diagnosed as mentally-ill, was serving a sentence for prostitution, a victimless crime.

As usual, the authorities are refusing to prosecute the authorities because they just don't think they have enough evidence:

County attorney spokesman Bill Fitzgerald issued the following terse statement.

"There is insufficient evidence to go forward with a prosecution against any of the named individuals," he e-mailed me, declining to elaborate further.

And I'm sure if Powell's pleas for help and slow death had been caught on video, this Fitzgerald badgelicker would have been whining that it "lacks context."

I'd say that Joe Arpaio should eat shit and die, but really, after something like this, that would be letting him off easy.

(Hat tip: Jennifer Abel, who contrasts this bit of prostitute murder with the absurd worry about banning Craigslist ads for adult services.)

I had met my friend Fritz at a local pizza joint for some lunch, when we noticed something suspicious at another table: A couple of pasty-looking white guys, they had briefcases on the table and were exchanging things them while speaking in hushed tones. They wore paramilitary outfits -- matching blue shirts and pants and matching blue jackets -- and we could see suspicious shapes under their jackets, which had the letters I, C, and E on the back. I guessed that was a hidden reference to some sort of terrorist organization, possibly even the dreaded narco-terrorists, since everyone knows that "ice" is street slang for crystal meth.

We were concerned for our well-being and for those of other restaurant patrons, so Fritz counted quietly -- one...two...THREE! -- and we both leapt up and drew our weapons. Thanks to the exciting new gun laws here in Chicago, I was armed with my recently purchased Smith & Wesson 9mm pistol and Fritz had one of those blocky H&K USP pistols.

I yelled "Freeze! Don't move!" while Fritz screamed "Hands up!" We had caught them cold. Both of them jerked their hands up as their eyes got real big, and I think one of them pissed his pants. Fritz maneuvered around behind them, and I started going through the contents of their briefcases, which turned out to be mostly shipping manifests of some kind. They had circled some items in red. Clearly, they were smuggling something into the country, possibly components for a dirty bomb.

When I questioned them, they claimed they were part of some government agency called "Immigration and Customs Enforcement" which seemed like something they made up to explain the lettering on the jacket. For one thing, everyone knows that it's called the "Immigration and Nationalization Service." More importantly, Chicago is hundreds of miles from any international border. They tried to explain this with some bullshit about O'Hare International Airport being nearby, so I shoved them both to the ground and Fritz stood on their heads for lying to us.

As it turned out, their story kind of checked out, so we had to let them go. Boy were they pissed off! All because we made a little mistake. They even threatened to arrest us, but what could they do? We hadn't actually shot anybody, and that's what counted, so we did absolutely nothing wrong.

As you probably guessed, none of that actually happened. I was just fantasizing about what it would be like if ordinary folks could get away with stuff just like law enforcement officers do. I was inspired by Brian Tannebaum's post about some ICE agents who did pretty much that exact same thing to the Boveda family last week, and then explained that it was okay because nobody got hurt.

I'm thinking I could turn this into a series. Maybe next time I'll fantasize about getting caught on video beating a helpless person senseless and getting away with it because the police felt the video didn't show enough context to establish that I didn't have a good reason.

Scott Greenfield wrote today about a case involving a police officer who caught one of those lucky breaks in court that cops seem to get so often:

It seemed as if things couldn't get any worse for Police Officer Patrick Pogan, when his arrest of Christopher Long, a cyclist in the Critical Mass rally, for attacking him was covertly videotaped.  Only 10 days on the job and he was shown to be a violent attacker and liar.  He had a great future ahead of him on the NYPD.  Except for that video.

Finally prosecuted.  Finally convicted, though not of the vicious assault on Long, because cops have to be allowed some latitude in vicious harming people, but convicted of filing a false instrument.  And yesterday, Patrick Pogan was sentenced to life.  No, not life in prison.  Not life on probation, Not life in community service.  He was given a conditional discharge by Justice Maxwell Wiley, which is a non-sentence sentence that says, go back to your life and have a nice day.  You've suffered enough.

So a jury convicted him, but the judge gave him no punishment whatsoever. Scott concludes his post this way:

Yet there must be a consequence when a police officer is caught, irrefutably, lying.  There must be a message that lying cops will not be tolerated.  Give him 30 days.  Give him probation.  Give him something.  The message must be that a cop cannot lie without consequences.

Instead, Patrick Pogan got life.  His own life, to live whatever way he chooses, as he's now free to move on without consequence.  The message has been sent.

It's another in a long line of good points from Scott Greenfield. But with all due respect, Scott made a mistake when he titled this post "The Big Shove Cop Gets Life." When I read that title, I assumed he was talking about another case which he blogged about last year, linking to the original report by Sara Jean Green of the Seattle Times:

Witnesses have provided conflicting accounts of when two King County sheriff's deputies identified themselves to an Edmonds man who ran from the deputies. He suffered life-threatening skull fractures when his head struck a concrete wall as one attempted to arrest him early Sunday in Belltown.

Seattle lawyer Sim Osborn, who has been retained by Christopher Harris' family, said both deputies wore black uniforms and yelled to Harris from a half-block away in a darkened alley. He said one witness reported the two deputies didn't identify themselves as law-enforcement officers until after Harris began running down the alley sometime after 1 a.m. Sunday. Osborn said Harris stopped running a few blocks away, apparently after realizing the two men chasing him were deputies.

There's video of the incident. It happens in the first few seconds, and it's unpleasant to watch:

(Scott and I recently had a discussion in his comments section about the distinction between a mere accident and a conscious disregard for human life. This incident seems like a clear case of the latter.)

At the time, the police were still investigating, and everything was up in the air. I wondered what happened to Christopher Harris and the deputy who shoved him.

It turns out that Sara Jean Green followed up on this story a year later in an article that came out last May. The cop who shoved Harris -- now identified as King Country Deputy Matthew Paul -- seems to have gotten away with it:

After reviewing the chase and apprehension of Harris, prosecutors found no basis to charge Paul with a crime. After an internal investigation cleared the deputy of wrongdoing, the King County Sheriff's Office called the incident "a tragic accident."

In other words, to use Scott's terminology, Deputy Matthew Paul got life. His own life. He gets to go on as if nothing happened.

As for Christopher Harris, he wasn't so lucky:

Sarah Harris goes through the motions of her day trying hard not to think about what life was like a year ago -- or what it would be like now if not for "the incident."

She feels guilty leaving the house, even if only for a couple of hours to visit her mom or sister, to run errands, or go grocery shopping. She still cries every night.

Her husband, the first boy she kissed and the only man she's ever loved, suffered a catastrophic brain injury when his head slammed into a concrete wall after a brief footchase with two King County sheriff's deputies on Mother's Day 2009. He's now confined to bed, unable to talk, walk or do anything for himself.

Christopher Sean Harris spent six weeks at Harborview Medical Center, where his family was encouraged to remove him from life support because doctors didn't think he'd ever come out of a coma. But he did, and was transferred to an Edmonds nursing home in June.

Sarah Harris, who worked as a manager for Nordstrom and dreamed of becoming a buyer for the department store, gave up her job to care for her husband.

...

Doctors can't put their finger on Chris Harris' condition, Lamb said. Based on brain scans, they say he shouldn't be able to move or make sounds. Yet, he can respond to simple commands and appears to have symptoms of "locked in" syndrome since he's aware of what's going on around him.

He even recognizes loved ones -- his mother, his uncle, old friends from high school -- who visit.

"He'll stare at someone for a really long time, and then you'll see the change in his eye," Sarah Harris said. "It clicks, and all of a sudden he knows who he is looking at."

I guess, in a different way, Christopher and Sarah Harris got life too.

Our laws against child pornography were created many years ago, when the production of child pornography was a much more difficult process. A would-be child pornographer had to use film cameras to take the pictures. And since a commercial lab would report him to the police, he had to have the equipment and skill to develop the film as well. Pretty much the only people willing to go through that much trouble were dedicated scumbags.

That's not the case anymore. I haven't seen any statistics, but I'm pretty sure that today the single largest group of child pornography producers -- by sheer number of images and videos -- are children. We can blame it on modern cell phones with built-in cameras, which give every child all the tools they need to create and distribute child pornography. And who has better access to naked children than a child?

Thus, we have the great "sexting" epidemic. And naturally we have the moral panic which goes with it. So we have teen couples who make videos of themselves having sex and get busted for child pornography, and we have 15-year-old girls busted for sending pictures of themselves to other kids.

All of which brings me to a rather surprising new law that's just been passed by the Illinois legislature:

Teens who forward or post online racy pictures of their underage classmates would get juvenile court supervision that could result in mandatory counseling or community service under legislation sent to Gov. Pat Quinn today.

...

The first measure aims to educate teens about the dangers of "sexting" while modernizing state statutes for the Internet age. Under current Illinois law, teens caught with nude photos of other juveniles can be charged as sex offenders, lawmakers said.

...

The Illinois bill, which passed 52-0, doesn't penalize youths who send or receive the risque photos but choose not to distribute them widely. It applies to kids under 18 who use computers or cell phones to distribute the pictures, and the court supervision amounts to a scolding.

That seems...sensible. The bill addresses the issue of sexting with a sense of proportion and avoids branding children as sex offenders. Our legislators appear to have successfully resisted the urge to moral panic and moral grandstanding.

I didn't see that coming.

From Bill Otis at the slightly disturbing Crime & Consequences blog, here's a pro-death penalty argument that I just can't get enough of:

Recently I noted that prison security  --  or, more precisely, the inevitable fallibility thereof  --  puts the lie to abolitionist claims that LWOP will keep us as safe as the death penalty.  In-prison murder, erroneous release, and escape are among the lethal problems we can expect (and already have, for that matter).

In other words, let's execute more criminals because the people who run our prisons are incompetent.

(The linked story, on the other hand, is rather amusing. It includes sheep.)

In the movies and on television, bank robbers are daring and audacious. After storming the bank in a blitz attack that stuns the guards, they force the bank manager to empty the vault while they raid the teller drawers. All the while, one of them yells out a precise two-minute countdown that will allow them to escape before the police respond.

In real life, bank robbers are mostly kind of dopey. You'd expect that, since the thought process behind most bank robberies goes something like this:

• I want money.
• Banks have money.
• I'll rob a bank.

This is why there are so many stories about robbers who can't think of any other bank to rob besides the one they use, where everybody knows them, and they write their demands to the teller on one of their own deposit slips.

Gideon points us to the latest development in dumb bank robberies:

Two accused bank robbers might have just been trying to save time when they called ahead and demanded that the bank have the cash ready when they got there. But placing and order for cash didn't get them far.   

Albert Bailey, 27, and a 16-year-old, both from Bridgeport, called People's United Bank on Stratfield Road about 10 minutes before they came to rob it on Tuesday afternoon, the Connecticut Post reports.

"You can't make this stuff up," Sgt. James Perez, Fairfield police spokesman, told the Post. "They literally called the bank and said to have the bag of money ready on the floor because they're coming to rob the place."

Then, true to their word, they showed up - just as police were coming to greet them.

Gideon wants us to decide what sort of sentence these two clowns deserve.

Packrat explains:

There is no shortage of advice out there about what you should do when you are forced to interact with the police. Just do a search and you'll find a multitude of sites devoted to explaining what your rights are when dealing with law enforcement and how you should go about asserting those rights...

But, strangely enough, there is an absolute lack of advice available out there about what you should do once a police officer violates those rights... and there will be no shortage of questions you'll have once it happens to you.

Read the whole Police Misconduct Victim's Guide at Injustice Everywhere.

Cops.

I've always known that police officers get special treatment when accused of a crime, but I always assumed it was just a good deal that the cops gave to other cops. I never knew there was an official court ruling about it.

Radley Balko points to a St. Louis Post-Dispatch article about the Garrity Rule:

In 1967, the U.S. Supreme Court resolved it with what came to be known as the Garrity Rule. It says a public employee can be compelled by threat of discipline to admit criminal activity, but the information cannot be used for prosecution.

Wikipedia puts it a slightly different way:

The Garrity warning is an advisement of rights usually administered by US federal agents to federal employees and contractors in internal investigations. The Garrity warning advises suspects of their criminal and administrative liability for any statements they may make, but also advises suspects of their right to remain silent on any issues that tend to implicate them in a crime. It was promulgated by the US Supreme Court in Garrity v. New Jersey (1967). In that case, a police officer was compelled to make a statement or be fired, and then criminally prosecuted for his statement. The Supreme Court found that the officer had been deprived of his Fifth Amendment right to silence.

I don't understand this ruling at all.

If my boss thinks I committed a crime, he can ask me questions about it. As far as I know, if I refuse to answer, it's perfectly legal for him to terminate my employment. (There may be unemployment compensation issues.) And if I answer, he's free to take my statements to the police so I can be prosecuted. Why should any of that change if I'm working for the police department?

To put this in perspective, consider what can happen if a prosecutor charges me with a crime and gets the judge to set bail high enough that I'm stuck in jail for months. There's nothing to stop the prosecutor from offering me a deal that will get me out of jail with time served if I plead guilty.

So, to summarize:

• Threat of jail: Not a violation of the right to remain silent.
• Threat of being fired: Violation of the right to remain silent (cops only).

Am I missing some nuance, some subtle principle of law, that makes this make sense?

One more thing from Wikipedia about the Garrity Rule:

The Garrity warning helps to ensure suspects' constitutional rights, while also helping federal agents preserve the evidentiary value of statements provided by suspects in concurrent administrative and criminal investigations.

Perhap---I'm willing to listen to a good argument explaining why I'm wrong---but living in Chicago, I can tell you something else the Garrity warning helps ensure: Police department coverups. By "forcing" an officer to give a statement, the department can keep his statements from being used against him by a prosecutor, or ever reaching the media.

In the Post-Dispatch story above, the coverup is pretty clear:

In the World Series case, internal affairs assigned two detectives to concurrent investigations. One, focused on internal discipline, did the Garrity interviews and put together a file for administrative use. The other was barred from the Garrity material and assigned to see if there was enough other evidence to support criminal charges.

Circuit Attorney Jennifer Joyce, who was highly critical of the officers who let their friends and family use the tickets, could examine only the latter file before announcing there was no evidence of a crime.

...

The St. Louis Police Department told [Circuit Judge Philip Heagney ] Feb. 8 that Garrity prevents it from fully complying with his Dec. 11 order to provide an activist with its files on officers disciplined for using 2006 World Series tickets seized from illicit scalpers.

...

Police officials claim the interviews are private, as personnel records.

So the prosecutor's office can't get all the evidence the police have gathered (which sounds like obstruction to me) and no one outside the police department ever gets to see it either.

No way that could go wrong.

I've been reading How to Stop a Stalker by Mike Proctor, a former detective in Westminster, California.

I'm fascinated by some aspects of forensic psychology, so I was hoping the book would discuss the psychology of stalkers and how to discourage them. However, Proctor's book is more about how stalking is defined as a crime and how police handle it. There are several chapters on personal safety and security gear, but none of that is specific to stalking. This book just wasn't about what I thought it would be about.

Some of Proctor's policework is a little disconcerting. It's not that he's doing anything illegal or even unethical, but I'm used to thinking about police activity in the context of victimless crimes, where pretty much everything police do is wrong. So when proctor describes searching a stalker's house, I feel uncomfortable, even though I know that stalkers are real criminals.

Actually, I should clarify: The stalkers Proctor talks about are all clearly criminals, but I'm a bit less certain that everyone prosecuted under the anti-stalking laws was as bad as these guys. I mean, human behavior didn't suddenly change in 1990, so why did we suddenly have all these laws against stalking? It has the smell of a moral panic, like satanic ritual abuse or sexting, and nothing good ever comes from that.

Part of what worries me is that anti-stalking laws seem like an attempt to punish stalkers for the implied threat of their conduct rather that for their actual conduct. As long as the implied threat is an intended threat (i.e. the threat does not exist only in the minds of the victim and the police) that seems like a legitimate reason for punishment, but I suspect there's room for abuse.

Proctor tells the stories of several terrible stalking incidents. Actually, "incident" is the wrong word. Being pursued by a serious stalker is like being in a low-intensity war. It drags on for years, and you never know when something bad is going to happen.

What's amazing to me is how ineffective the police seem to be. Here you have a guy harassing someone, making threats, breaking into their house, vandalizing their car, and it goes on for years without the stalker receiving any punishment. Yet somehow the police find the time to arrest a guy for being naked in his own home.

Although I didn't get what I was looking for from this book, I did find a few passages in Proctor's description of how a stalking trial works that will amuse or infuriate some of my readers:

Once the defense counsel has gathered up the entire discovery information and has made at least a brief review, she may go to the presiding judge and ask for what she feels is a reasonable disposition to resolve the case---in other words, what it will take to close out the case. The judge then reviews the facts of the case and gives the defense attorney an ideas as to whether probation will be appropriate in the case, or, if a jail sentence is warranted, the approximate length of the sentence. The defense counsel then discusses this information with the defendant, who can either accept or deny the offered sentence. (That is, what the district attorney and the defense have agreed is a reasonable sentence.) Sometimes, though not often, the defense attorney may push for his client to plead guilty to the charges, but his client may fail to cooperate. This is known in the trade as a "lack of client control." In this situation, the defense counsel is forced to go to trial.

Yes, because the client's stubborn insistence is the only reason a defense lawyer would ever go to trial. Maybe Proctor is just so good that he's never given a D.A. a weak case.

After the prosecuting attorney is finished with his questions, the defense counsel gets a turn. It is the defense counsel's job to make sure none of his client's rights are violated, and to defened the client against the charges, if possible. Unfortunately, it is our opinion that too many defense attorneys attempt to liberate their clients by clouding the issues. This is accomplished by trying to put words in your mouth, back you into a corner, or make you look confused and unsure of yourself. This is usually done in an effort to sway the jury into wonderin whether you are sure of the facts of the case. It may not be right, but perception planse a definite rols in a trial setting. If the jury thinks you are lying or confused, it will cause problems for the prosecution. In all fairness, we do know defense attorneys who actually do what they are supposed to do, that is, defend their client in a true and just manner, but it has been our experience that these individuals individuals are few and far between.

 I sure hope that's true if I ever need a defense lawyer.

It looks like Seattle police may think the Sunday morning shooting deaths of four Lakewood police officers was the work of a guy who was reportedly out on $150,000 bail from another couple of crimes. However, the thing that everyone's going to be talking about is the fact that he had previously been sentenced to a 95-year sentence in Arkansas, but he was released early after his sentence was commuted by then-Governor and former---and presumably future---Republican presidential contender Mike Huckabee.

For Huckabee, this could be a Willie Horton moment. The suspect is even black like Horton, meaning that Huckabee's defenders will get to call his detractors racists. If the discussion of the political implications for Huckabee goes on more than a couple of days, then I predict that this will mark the beginning of the 2012 campaign season.

I'm more worried that it will lead to an election-fueled backlash against lenient treatment of prisoners. Don't get me wrong, I'm not saying that a guy who kills four cops should be let out the door, and if our legislators can craft a fine-tuned change to the law to prevent such catatrophes, I'm all for it.

The thing is, our legislators can't do that. Oh, they might start with a law that only punishes the truly violent and depraved, but then they will slide down that slippery slope of harsher and harsher sentences until the prison population grows by yet another million.

Remember the "three strikes" laws? They were supposed to hit repeat violent offenders with really long sentences so they can't anyone else. The concept has devolved over the years to include harsh sentences for smaller and smaller crimes, including victimless crimes like drug dealing. In some places, a few grams of cocaine can land you in jail for 20 years if you have prior offenses. A repeat DUI offender can get a 55-year sentence in Texas.

It's not hard to imagine this incident touching off another round of "get tough on crime" bills---some of them named after the dead police officers, no doubt---that miss the mark and hurt a lot of people who don't deserve it.

Or maybe I'm the one who's over-reacting and nothing like that will happen.

I don't blog about the death penalty very much, mostly because I don't care about the death penalty very much. I'm not saying it's unimportant, but I just don't have the urge to write about it. My position on it has been pretty bland: Some crimes are so evil that the perpetrators have forfeitted their right to live, but my libertarian leanings prevent me from trusting the government to execute the right people for the right reasons.

The extremists on both sides bother me. There's a difference between believing the death penalty produces a net benefit to society, and the lusty desire for executions that seems to animate some of its supporters. Conversely, no matter how much you disagree with the death penalty, it's wrong-headed to hold a candlelight vigil for John Wayne Gacy.

Over at a public defender, Gideon has come out of his blogging hiatus, and he's posted about the Death Penalty Information Center's new report on the cost of the death penalty. It's a mixed bag, but I think its economic theory has solidified my opinion against the death penalty.

Parts of the report don't pass the smell test, starting with the subtitle---"Reconsidering the Death Penalty in a Time of Economic Crisis"---which comes across as a desperate attempt to make the death penalty relevant to the hot topic of the moment.

Another dubious feature of the report is a survey of police chiefs that seems to reach some surprising conclusions:

• When asked to name one area as "most important for reducing violent crime," greater use of the death penalty ranked last among the police chiefs, with only 1% listing it as the best way to reduce violence...
• The death penalty was considered the least efficient use of taxpayers' money...

These results aren't as impressive as they may seem at first glance. It's too easy to game the results through a careful choice of alternative items.

For example, if I wanted to argue for eliminating the exclusionary rule for evidence in a criminal trial, it would be great for my side if criminal defense attorneys said it was unimportant. No problem. Just ask them a question like this:

When it comes to giving defendants a fair trial, which of the following features of our justice system is most important:

• The presumption of innocence.
• The right to trial by an impartial jury.
• The protection against double jeopardy.
• The right to confront witnesses.
• The exclusionary rule. 

I think there's a pretty good chance that if you asked a thousand criminal defense attorneys that question, the exclusionary rule would be at the bottom of their rankings. Then I could put out a report boldly claiming that "defense attorneys rate the exclusionary rule as the least important requirement for a fair trial."

(If they didn't rate it the way I wanted, I could just change the questions and try again.)

On the other hand, when you ignore the hyperbole and fake(ish) survey, the report makes an interesting economic case, starting with the estimated cost of a death sentence:

The high costs to the state per execution reflect the following reality: For a single death penalty trial, the state may pay $1 million more than for a non-death penalty trial. But only one in every three capital trials may result in a death sentence, so the true cost of that death sentence is $3 million. Further down the road, only one in ten of the death sentences handed down may result in an execution. Hence, the cost to the state to reach that one execution is $30 million.

That's a lot to pay to execute somebody, and it may be worse than that:

In 2008, the California Commission on the Fair Administration of Justice released an exhaustive report on the state's capital punishment system... The report found that the state was spending $137 million per year on the death penalty... Since the number of executions in California has averaged less than one every two years since the death penalty was reinstated in 1977, the cost for each execution is over $250 million.

So is an execution worth $30 million? Or $250 million?

That depends, of course, on what the benefits of an execution are. Death penalty blawger Tom McKenna has referred to evidence that each execution has a deterrent effect that results in 18 fewer murders for every execution. (I think he's talking about Is Capital Punishment Morally Required? Acts, Omissions, and Life-Life Tradeoffs by Cass R. Sunstein and Adrian Vermeule, which gets the figure of 18 from Does Capital Punishment Have a Deterrent Effect? New Evidence from Postmoratorium Panel Data by Hashem Dezhbakhsh, Paul H. Rubin and Joanna M. Shepherd.) This figure is highly controversial, but for the sake of discussion, let's accept it.

That leads us to the next question in our quest to determine the value of an execution: How much is a human life worth? It's easy to say that human life is priceless, but as economists have shown, that's not how we behave.

Economists have sifted through large data sets to uncover how people make decisions that affect their own mortality. How much will people spend on a safer car to reduce their chance of dying in an accident by 1% over the life of the car? How much more do you have to pay people to take dangerous jobs? How much more do houses cost in safe neighborhoods?

These studies typically show that people value their own lives at between three and ten million dollars. I've heard a number of economists use a value of $8 million per life, so that's what I'm going to use.

Finally, we can plug in all the numbers. According to the paper, executing someone could cost around $30 million dollars. Add to this the value of the executed criminal's life (he counts too) and an execution has a cost to society of $38 million. On the other hand, the 18 lives saved are worth $144 million. Therefore, under our assumptions, the death penalty provides a net benefit to society of $106 million per execution.

That's great for the death penalty, but only if it's true. For example, the benefit goes away completely if we use the alternate cost estimate obtained in California. In that case, the $144 million value of the averted murder victims pales in comparison to the $258 million cost of the execution.

There's also the problem that these studies are difficult to perform and not terribly robust. The Death Penalty Information Center's report refers to a summary paper (Uses and Abuses of Empirical Evidence in the Death Penalty Debate by John J Donohue and Justin Wolfers) which argues for an interpretation of the data that finds no significant deterrent effect. For one thing, all of the benefits seem to be concentrated in Texas. Drop that one state from the data, and executions have no significant effect on the murder rate. Or keep Texas and simply weight the data by population, and again the benefits vanish.

(If this data is meaningful, it tends to confirm some criminologists' opinions that that the deterrent effect does not emerge until you start to execute a lot of people. Killing one or two criminals a year just won't get people's attention. Not enough to rise above the noise.)

Basic economic theory says that people respond to incentives, and that's pretty much what we find whenever we study human behavior, so I'm confident that executions must have some deterrent effect. But if we believe Donohue and Wolfers, then it seems unlikely the effect is very large. I've heard of other studies which conclude that each execution only deters 3 murders. That's $24 million worth of human lives saved at a cost of $38 million---almost $13 million each---which is a poor bargain. And the true deterrent factor could be much smaller.

Understand that I'm not saying we shouldn't spend tens or hundreds of millions of dollars to save lives. What I'm saying is that resources are scarce (economic crisis or not), so if we decide to spend money saving lives, we should be careful to spend it in a way that will save the most lives possible, which probably isn't on executions.

In California, for example, the death penalty costs $137 million per year, but with one execution every other year, even using the highest estimates of the deterrence effect, they are preventing only 9 deaths per year. I'm having trouble finding figures, but that sounds like enough to hire hundreds of additional police officers, firefighters, and EMTs, or to cover the unreimbursed operating costs of maybe a dozen Level I trama centers (it depends on the patient mix), or to fund better infection control protocols in the state's hospitals.

There are dozens of things that might change the benefit-cost calculation for executions, and I can't possibly consider them all here, but if saving lives is the reason for executing criminals, I think there are better ways to spend our money.

[I started writing this days ago, and the story's gone stale, but I'm posting so little these days that I figured I should get it out there.]

Some time ago, Radley Balko brought us the story of Sally Harpold, who bought two boxes of cold medicine within a few days of each other, thus violating Indiana's law against buying more than 3 grams of pseudoephedrine within a one week period.

The idiocy of setting the limit so low is astounding. It's based on a single person's normal consumption, which means that if you and your spouse catch the same cold, you each have to make a trip to the drug store to buy medicine. If your kids catch the cold too, they're out of luck, because there's no one left to buy medicine for them. And if you forget to take the bottle to work, you have to sniffle all day, because you can't just buy another one. And be careful handling the bottle, because if you spill it you can't get a replacement.

It's almost as if they weren't thinking at all when they wrote these laws. Or else they were thinking more about the needs of law enforcement than about anything related to justice or prevention of harm. There's a lot of that going around.

I've been trying to come up with a taxonomy of bogus criminal charges---the kinds of crimes that make me very suspicions whenever I hear that someone was charged with one of them. So far, my taxonomy is pretty sparse, and I don't have a clear idea of how the categories fit together, but I'm getting there.

For example, one of the categories is fictitious crimes. These are crimes where some of the elements are legal fiction. The classic example is Possession With Intent, in which a suspect is accused of having drugs in a large enough quantity that he must have intended to sell them, even though there's no evidence of him having done so. Any connection to selling drugs exists only in the mind of the cop, prosecutor, or legislator, depending who you want to blame.

Closely related, but slightly different, is something I call trimming the elements. That's when you have a crime that's just like another crime, except it's missing one of the elements. I'm not talking about legitimate differences in the degree of harm such as the lack of a weapon or wounding or whatever it is that makes Battery a lesser crime than Aggravated Battery. I'm talking about situations where the lesser crime has been created simply to make the job of law enforcement easier by removing an element that's inconvenient to prove. Consider the crime of Drinking While Driving. It's kind of like Drunk Driving, except they don't have to prove intoxication. They just have to catch you drinking booze while driving.

When the legislature trims the elements far enough, they eventually get to things that are completely non-crimes. For example, the tricky part of arresting someone for Drinking While Driving is that the cop has to catch them in the act. Sneaky people who want to drink while driving can just pass the bottle to a friend if they get pulled over.

The legislative response has been to snip off the element of the crime that involves actually drinking the booze, resulting in Open Container laws that make it illegal to have an open alcoholic beverage container in the passenger area of a car, even if the driver isn't drinking from it. In their zeal to punish dangerous behavior, legislators have made a crime of the completely harmless act of letting your friends drink while you drive.

Grandma Harpold's crime seems to fall into this last category. In particular, it's a subset of non-crimes I think of as criminalizing the suspicious. That's when the legislature decides to make it easier for cops to arrest us by making it a crime to do something that was formerly a mere cause for suspicion. A lot of the crimes that the feds call "Money Laundering" work this way.

Until these pseudoephedrine laws were passed, a drug cop who noticed someone buying a lot of pseudo might suspect that they were planning to cook it up into some crystal meth. But bare suspicion would only be the beginning. To make his case, the cop would have to conduct a full investigation---perhaps involving surveillance, interviews, and undercover operations---until he could prove the suspect's involvement in the drug trade.

That's a lot of hard work. It takes time and costs money. Wouldn't it be so much easier if, instead of all that labor-intensive investigation, the legislature just made it a crime to buy too much pseudoephedrine? That way, when cops found out someone bought a lot of pseudo, they could skip all that dreary and difficult investigation and cut straight to the arrest.

Note that in describing these bogus crimes, I'm not asking you to accept any crazy libertarian ideas about freedom. You don't have to believe that the war on drugs is evil to understand that there's something wrong when police can arrest a grandmother for buying medicine for her family.

... and a look back at how to solve the problem of the armed village idiot...

There's folks who say (I'm one of them) that the MCPPA is one of the best carry permit laws in the country.  They -- we -- have a point. 

Quick digression:  I'm occasionally praised for being one of the folks who helped write the law.  That's flattering, but it's not true; I've learned a fair amount about how to draft legislation since, and do have some future plans to help write some in the future, but, just to keep the record straight:  I had no hand at all in authoring the bill.

(In fact, because I was involved in writing the book at the time that the law was being negotiated and drafted, Joe Olson and I made the decision that, for ethical reasons, I was to be kept out of the loop on the discussions, so as not to unfairly disadvantage a -- hypothetical and nonexistent, as it turned out -- competitor.  In retrospect, I think we bent over too far backwards, but . . .)

While the main author of the bill was Lynda Boudreau, then a member of the MN House, most of the language was drafted by Joseph Olson and David Gross.  It's hard to overstate the importance of Joe in the modern Second Amendment movement, so rather than get into it, just take my word for it:  he's one of the giants.  It's easy to understate the importance of David's contributions; David does it all the time.  While Joe had a lot of trial experience in his younger days, he's mainly been an academic for some decades, now; David's experience in the trenches -- and the lessons learned from that experience -- was critical.

One of the problems facing anybody crafting a carry law is this:  who should and shouldn't get a permit?  One view -- and it's mine -- is that the Second Amendment simply recognizes a right, and that there should be no need for permits at all; we don't, after all, have to get a religion permit in order to be able to fast on Yom Kipper, attend High Mass, or head over to D'Amico to worship the Flying Spaghetti Monster by consuming the traditional zuppa de clams, after all.

But, as a practical matter, that wasn't what was going to happen in Minnesota in 2003 -- or probably ever.

Another view -- which I reject -- is that carrying a handgun for personal protection is a great privilege, which only the most special people should be allowed to have.

The MCPPA strikes a balance.  As a matter of presumption, just about anybody who is legally entitled to possess a firearm at all, and who has gotten what can be comically minimal training in the safe use of a pistol --

Training may be demonstrated by ... completion of a firearms safety or training course providing basic training in the safe use of a pistol...  

(b) Basic training must include:

(1) instruction in the fundamentals of pistol use;

(2) successful completion of an actual shooting qualification exercise; and

(3) instruction in the fundamental legal aspects of pistol possession, carry, and use, including self-defense and the restrictions on the use of deadly force.

-- gets a permit within thirty days of applying. 

But, you might say, what do you do about the borderline cases?  Let's say you have some raving nutcase who is able to get through a minimal carry class, and who hasn't gotten in such serious legal trouble that he's forbidden from so much as possessing a firearm, even under supervision -- are you saying that he gets to wander around with a loaded handgun, until he commits a felony?   

Good question; I'm glad I asked it.   

One simple solution would be to give some governmental authority -- the local sheriff, say -- the right to decide that some applicant was just too dangerous and nutty to be wandering around in public with a loaded gun.  And that would have some benefit to it, sure.  But it would also have some risks:  what do you do about a sheriff who goes beyond that?  Historically, in Minnesota and everywhere else, anytime you give some politician or government official any power at all, some are going to abuse it.

And there was a real history of permit denial abuse in Minnesota.  The Richfield police chief famously said that, as far as he was concerned, if you're running down the street being chased by an axe murderer, you shouldn't be able to have a gun to defend yourself.  (No, I'm not making that up.)

Which is why the MCPPA provides both authority to the sheriff, and a check on it.

(a) The sheriff must, within 30 days after the date of receipt of the application packet described in subdivision 3:... (1) issue the permit to carry [or] ... (3) deny the application on the grounds that there exists a substantial likelihood that the applicant is a danger to self or the public if authorized to carry a pistol under a permit.

Hmmm... so the sheriff can deny a permit to a known knutcase, even if he isn't legally barred from handgun possession. But what, you ask, is to stop the sheriff from just denying it to, well, everybody?  Yeah, sure, somebody can take him to court, but that gets expensive.

And here's where Joe and David were stone fucking brilliant; I'm going to quote the whole subdivision, adding some emphasis:

Subd. 12.Hearing upon denial or revocation.

(a) Any person aggrieved by denial or revocation of a permit to carry may appeal by petition to the district court having jurisdiction over the county or municipality where the application was submitted. The petition must list the sheriff as the respondent. The district court must hold a hearing at the earliest practicable date and in any event no later than 60 days following the filing of the petition for review. The court may not grant or deny any relief before the completion of the hearing. The record of the hearing must be sealed. The matter must be heard de novo without a jury.

(b) The court must issue written findings of fact and conclusions of law regarding the issues submitted by the parties. The court must issue its writ of mandamus directing that the permit be issued and order other appropriate relief unless the sheriff establishes by clear and convincing evidence:

(1) that the applicant is disqualified under the criteria described in subdivision 2, paragraph (b); or

(2) that there exists a substantial likelihood that the applicant is a danger to self or the public if authorized to carry a pistol under a permit. Incidents of alleged criminal misconduct that are not investigated and documented may not be considered.

(c) If an applicant is denied a permit on the grounds that the applicant is listed in the criminal gang investigative data system under section 299C.091, the person may challenge the denial, after disclosure under court supervision of the reason for that listing, based on grounds that the person:

(1) was erroneously identified as a person in the data system;

(2) was improperly included in the data system according to the criteria outlined in section 299C.091, subdivision 2, paragraph (b); or

(3) has demonstrably withdrawn from the activities and associations that led to inclusion in the data system.

(d) If the court grants a petition brought under paragraph (a), the court must award the applicant or permit holder reasonable costs and expenses including attorney fees.

That last paragraph isn't just unusual in carry laws; it's unique.  And it provides a good, albeit imperfect, check on bad judgment or bad faith by the sheriff:  while the denied applicant does have to come up with some money -- usually around $3000 -- for a lawyer, if he wins, the court must order the sheriff to pay him back.

Nobody's perfect, not even -- maybe particularly not -- guys with badges. And it works both ways to correct errors.

Let's take a perhaps not entirely hypothetical case.  Some guy with a history of relatively minor brushes with the law -- interfering with a 911 call, a couple of disorderly conducts and two DWIs, say, manages to get through some sort of carry class at local gun shop -- and applies for a permit.  Looking at the application and his criminal history, the deputy says something like, well, Josh hasn't been in trouble again for a few years; maybe he's gotten his act together -- let's just cut the guy a break, and issues the permit.

Well, maybe it was the right call at the time; maybe not.  But let's say that this perhaps hypothetical guy goes on to pick up another DWI, a third and then a fourth disorderly conduct conviction, and tops it off with a 5th degree assault when he peppersprays a customer at his security guard job, and spends thirty days in jail.  

Is the sheriff out of luck just because none of those are felonies?

Not at all.  Look at the law, again, specifically Subd. 4 (c):

The sheriff must conduct a background check by means of electronic data transfer on a permit holder through the Minnesota Crime Information System and the National Instant Criminal Background Check System at least yearly to ensure continuing eligibility. The sheriff may also conduct additional background checks by means of electronic data transfer on a permit holder at any time during the period that a permit is in effect.

Yup.  Every year, the sheriff has to redo the electronic background check at least once, and can do it at any time.  And if he finds that there is, as the law says, "a substantial likelihood that the applicant is a danger to self or the public"? 

See Subd 8:

The sheriff ... may file a petition with the district court therein, for an order revoking a permit to carry on the grounds set forth in subdivision 6, paragraph (a), clause (3).

Pretty neat, eh?  Which is among the many reasons why, in the greater scheme of things, the MCPPA is probably the model against which other modern, mainstream, commonsense "shall issue" carry permit laws will be measured.

Oh -- and as a minor thing: it's also why one village idiot (pictured at right) will likely be getting a knock on the door, sooner than later, and finding a deputy serving him with his copy of a revocation petition.

All's well that ends well.

Via the mysterious Dr. X comes an interesting lawsuit that touches on the issue of medical professionals performing forensic tests, a subject I recently blogged about. Here's how Frank Main at the Chicago Sun-Times describes it:

Lisa Hofstra said she was the "charge nurse" in the emergency room on Aug. 1 when the officer approached her at about 4 a.m. The officer requested she perform a blood work-up on a DUI suspect, the lawsuit said.

Hofstra told the officer the suspect needed to be admitted to the hospital before she could draw the person's blood. Hofstra said she told a police lieutenant that it was the hospital's protocol to wait until a suspect was admitted, and the lieutenant agreed, she said.

The lieutenant left the emergency room.

Then Hofstra called her supervisors, but before they could respond, the officer put her in handcuffs in front of her co-workers and escorted her to a squad car, according to the lawsuit.

She was then released at the scene, and no charges were ever filed. She says the handcuffs were too tight and she received injuries which were treated at the emergency room.

Hofstra's complaint against Officer Rodriguez and the city of Chicago includes Section 1983 claims of excessive force, federal and state claims of false arrest, and a state claim for battery.

I don't know any more than this, but clearly something crazy happened here. What kind of nutball cop disrupts the operation of a hospital emergency room by dragging away the triage nurse for no good reason?

There seems to be something missing from this story, however. I doubt that even the craziest nutball cops do things like this (very often) to people who are courteous and polite. My guess is that Nurse Hofstra "mouthed off" or committed some other imagined offense that cops like to interpret as a crime. Triage nurses have to be decisive and firm with demanding people, so perhaps she was a bit brusque in her dealings with officer Rodriguez.

She disrespected his authoritah, and he decided to teach her a lesson. Now her lawyers are going to teach him one.

As a libertarian, I'd like our government to be a lot smaller, but even I acknowledge that there are a number of essential government functions. One of the most important of these is the justice system.

That's why it angers me so much that our justice system (at all levels) has drifted so far from the core mission of protecting us from people doing bad things. Instead, it seems we're increasingly prosecuting people for fake crimes (such as resisting arrest or disorderly conduct), fictitious crimes (such as intent to distribute), dubious catch-all crimes (such and conspiracy or obstruction), victimless crimes (such as gambling or prostitution), and non-crimes (such as money laundering).

By now, even when the crime sounds legitimate, I still have my doubts. For example, Chicago model Rachel Jay links to a news article about a photographer she's worked with who was later charged with child pornography:

During the investigation, it was discovered that a 17 year-old girl had lewd photos of herself of professional quality in her possession.

After the teen was interviewed, she was able to provide information which led to the sheriff's detectives in executing a search warrant at Kozel's home.

Detectives said during the search, they seized photographic equipment, computers, electronic storage devices and a commercial copier printer that Kozel is alleged to have used to produce child pornography.

So, nude pictures of a 17-year old girl? It's technically child pornography, but it's not what most of us think of when we hear the term. The girl is over the age of consent in this state, so it would have been legal for the photographer to have sex with her. And she kept the pictures, so I'm guessing this was a voluntary photo session. It was stupid, and it was a crime, but it's not the reason we have such tough child pornography laws.

The investigation may well have turned up evidence of much worse crimes than I'm aware of, but these days I wouldn't count on it. Law enforcement folks love to say they've caught one of those nasty child pornographers even when, really, they haven't.

[Update: Rachel Jay stopped by in the comments to explain that at the time of this arrest, Kozel was out on bail for a previous 19-count arrest for possession of child pornography, something that wasn't clear from the news articles I found.] 

This leads me to something I've been meaning to post about for a while now. It's my guess that---based on the raw numbers---the vast majority of sex crimes against children are committed by...children.

It's long been the case that most "crimes" of statutory rape were committed by young men against their completely willing but slightly younger teenage girlfriends. Fortunately for an awful lot of people, police don't spend a lot of effort to catch horny teenagers, rightly preferring to arrest older people who are genuinely exploiting children.

Still, with millions of teenagers having sex, a few of them are bound to get caught up and punished by the justice system beyond all reason. That probably explains a few of the young faces you can see at this disturbing post at Classical Liberal. (Hat tip: Radley)

The first image is a screen capture from the Idaho Sexual Offender Registry, showing someone with a recorded offense of LEWD COND W/MINOR CHLD U/16, which I think means lewd conduct with a minor child under the age of 16.

The offender himself is a 14-year-old boy.

It's entirely possible, of course, that this boy is a creep who took advantage of a younger person. Maybe he even forced himself on his victim and plead out to lewd conduct. He could be 145 pounds of violent psychopath. As could all of the other 13 young boys pictured in that post. But I think it's far more likely to be the unintended consequence ('cause God help us if our leaders intended to do this to our children) of a lot of stupid tough-on-crime laws.

These laws vary wildly. In some states the laws are crafted so poorly that a teenage couple can have sex legally until the older one hits a certain age, then the law expects them to stop until the younger one catches up to the age of consent. Other states have sensible romeo and juliet laws that don't punish the older sex partner unless the age difference is fairly large. In still other states, a 15-year-old boy and his 14-year-old girlfriend can both be charged as sex offenders.

Thanks to the electronic revolution, the same sad state of affairs is affecting the crime of child pornography. Soon, if not already, the vast majority of child pornography will be created by children themselves. On the basis of raw image count, millions of children with cell-phone cameras can produce far more lewd photos of children than a few perverts ever could.

I've already written about poor Amber and Jeremy, a couple of teenagers who were convicted of taking pictures of themselves having sex. Judge James Wolf justified this stupidity by saying that "if these pictures are ultimately released, future damage may be done to these minors' careers or personal lives." Of course, now the future damage to their careers and personal lives will come from being labeled as sex offenders for the rest of their lives, which is far worse than a few embarassing pictures.

For a teenager, it's really easy to run afoul of these laws just by taking a pictures of themselves. If they send these pictures to a boyfriend of girlfriend, they're distributing child pornography, and the friend who received the picture is in possession of child pornography. Sounds silly, but as at least one teen has found out, that's the law.

Nobody wants their children to be victims of a sex crime. But neither do we want them to be the victim of an out of control sex crimes prosecution.

See update, below.  Timmy Dolan isn't taking the disgrace of his deparment lying down; he's issued a stern memo decrying . . .

. . . the criticism.  Sigh.

 

The Minnesota Metro Gang Strike Force scandal continues to unravel; hopefully some of the various coverups will, as well, sooner than later.  Among the latest developments:  Chief Tim Dolan of MPD announces that 

his department was informed by Luger and Campion that seven of his officers assigned to the Strike Force were involved in several allegations of misconduct. Dolan also said in an interview that some officers who were involved in allegations were supervisors.

Hmm... according to the Heimerl report, there were, at last report, three supervisor-grade (Sergeant or up) MPD cops on the MGSF. "Some" officers, according to Dolan, involved in "allegations" were supervisors.

But Dolan isn't going to take that sitting down.  He and his cops are fed up.  (I think he misspelled "lawyered up.")  Let's take a look at just some of the recent of their greatest hits:

Fresh upon being returned to the MPD after the dissolution of the Strike Force Gang, Heimerl is now, according to the MPD, a sector commander.  Ghu knows what the others of the supervisors from the MGSF are up to.  But if any of MPD's MGSF cops have been taken off the street and assigned counting the plastic spoons in the break room, it's been a closely-held secret.  But it isn't just the cops involved in the MGSF who have disgraced Dolan's department.

The Jenkins video of  at least one MPD cop mistaking a possibly drunk driver for a soccer ball? No prosecution of the kicker; the FBI is looking into it.

Then there was the $495,000 settlement after one of Dolan's badged boys punched an innocent bystander -- resulting in two brain surgeries.  That not enough? 

There's the "antics" at the end of last month, when a bunch of drunk MPD cops -- these guys apparently can't even play a game of softball without disgracing themselves after -- "picked a couple of fights and told patrons no one could stop them because they were all cops," according to witnesses.  (The gentle term, "antics" is that of the badgelickers at Fox9 -- I'd find a less gentle term.)  This after being too drunk to get into a strip club, and before the shooting started . . . which the MPD carefully didn't report.

And that's just the recent news. 

The opening paragraph of Rochelle Olson's story is chilling:

Minneapolis Police Chief Tim Dolan said today that he and his 900 officers are "fed up" with bad publicity about the department when he says they are performing better than ever in crime fighting and officer behavior.

Yeah, the poor dears are just underappreciated by the public.  I guess they need to go get themselves a new public.

"I believe the Minneapolis Police Department is better than ever," Dolan said.

Shit, Timmy -- you mean it's always been worse than this?  Maybe it Olson quoted him wrong, or mistranslated; it probably sounded more credible in the original German.    

 

Update:

 

And this just in from Dolan, who is shocked, shocked at . . . the criticism of his department.

 

Let's take a read:

 

The recent cases that have come to light in the media make me and other employees of the Department mad. 

... at the cops who have stunk up their badges?  Nah.

The alleged actions of a few are being used to discredit all the great work that my 1100 employees do everyday.  In reality, I believe that, in this region and possibly the country, the Minneapolis PD does the most and expects the most from our officers - and holds them to the highest degree of professionalism.

Who are you going to believe?  Dolan or your lying eyes?

Let's talk about some realities of the MPD:
We have well over a million contacts per year with citizens.
A few less than 900 officers handle about 400,000 calls for service a year; that is about 1100 calls per day.
My officers make over 30,000 arrests a year; that comes to about a 100 arrests per day.
My officers conduct around 1,500 traffic stops in a busy week.

Although my officers have over a million contacts with citizens each year we still only see about 200 complaints a year against our officers.  And that number has decreased in each of the three years of my administration.  That percentage of complaints is actually lower than the percentage seen by the LAPD which is currently being praised for a low level of complaints.  Of the 200 cases that are filed about 90 result in open Internal Affairs cases.  Of those 90 cases we had about a dozen sustained excessive force cases last year.

There are, basically, only a few reasons why complaints might be low.

• There really isn't much to complain about.  That's Dolan's position, but him vouching for his department is kinda self-serving.  That doesn't mean he's lying or wrong, but it is the sort of thing where you'd want to count the change.
• People who have legitimate complaints think that filing one with the MPD is just a waste of time.  That's certainly my feeling -- and given how Dolan himself, in a previous job, waved away a minor complaint I had, some years ago (it was just an arrogance and stupid public relations thing -- a couple of his detectives decided to run my plates because they didn't like my "Criminals [heart] Unarmed Victims" bumper sticker.  I happened to be in the coffee shop while they were giggling over the possibility of having the car towed if there was some outstanding traffic ticket, which is the only reason I know that).
• People who have legitimate complaints fear retaliation.  By design, the complaint process makes an anonymous complaint impossible -- and, to be fair, the MPD warns erstwhile complainants on their website that their complaint will not be anonymous, and that's true.  (They also say that a complainant will be contacted by IA within five days; that's simply not true.)

I take investigations of complaints against my officers seriously.  In my last three years in office 16 officers have either resigned or been terminated due to our investigations of: theft, domestic assault, misuse of force, DUI, lying, and other misconduct.  And I am likely not done this year.

Ya think?

That number of terminations exceeds any previous administration.  Let me make it clear - I don't like firing police officers.  I wish I never had to fire an officer.  However, I must hold all my employees accountable for their conduct.

What we have also done is implemented internal technology and practices that make us the most transparent agency in the Midwest.  These are our videos being played on TV.   We take complaints against officers in many forms including on-line.  We publish our complaint statistics every year in our Annual Internal Affairs Unit report.

Yes, you do.  And you constantly aver that a low complaint rate means that you're doing a peachy-keen job, rather than that it's pointless.  Did the guy who got stopped for a DWB and arrested and booked into jail on a fictional crime (possession of hollowpoints) ever file a complaint?  Last time I heard, he hadn't -- and your sergeant apparently felt that "unarresting" him was all the apology he needed.  The guy who did get a gun pointed at him by one of your off-duty cops -- like many MPD cops, he was of the ignorant opinion that permit holders must conceal their carried handguns to the satisfaction of MPD cops -- had his complaint dismissed without any review at all.

So rest assured I take these recent allegations seriously. 

Gotta say, I'm not resting all that assured, Tim.

In looking at the recent allegations I can say that we were already aware of most of them and had already begun internal investigations before they became public.  The most recent video shown was sent to IAD for review the day after the incident.  At our request it was reviewed by an outside agency and declined for criminal prosecution, and it came back for our standard review process.  Our system worked for that incident.

Again, let's go to the video, with particular attention to events starting at around 4:05 into it -- on what planet is the kicking okay?

I view each incident as an opportunity to better our processes and review what we expect of our officers and how they are trained.  In light of recent incidents I have enhanced our force review process and I am changing our use of force training.

Sincerely,

Timothy J. Dolan
Chief of Police

I fail to see the sincerity.  The anger, sure.  Sincerity?  Nah.  You start encouraging complaints about bad service, figure out why that "Shots Fired" I mentioned some months ago never got a response, put an end to "arrest the gun" and treat rousting as a policy violation, and then let's talk.

I won't hold my breath.  

Let's start off by reviewing the key paragraph in our last episode:

On April 16 of 2008, Sheriff Bob Fletcher and Ramsey County Attorney Susan Gaertner filed a hundred-page petition (here's Part 1; here's Part 2) with District Judge Joanne Smith, requesting that the judge revoke what they called Wilson's "conceal and carry permit", and documenting, in great detail, each and every one of the incidents above. In detail. The petition had been written and researched by David Rossman -- then a deputy assigned to Sheriff Fletcher's gun permit unit.

Which, combined with all the other strangenesses, was more than strange enough.

This morning it got stranger.  The following was posted in the comments -- go look for yourself.

I represent Ms. Wilson. You are wrong on many of your facts.

In addition, the incidents of 2004 and 2007, did not involve Michelle Rae Wilson. Those incidents involved another "Michelle Wilson". Ms. Wilson has no son named Terrance. She was not the perpetrator in those situations. I guess you should print at retraction.

All of this is wrong:

"In 2004, two neighbors accused Wilson and another son of pouring sugar in their car's gas tank; according to police records, one said that, "Michelle Wilson threatened to blow up her house and kill her. She taunted her to go outside." She owed Wilson $60, and couldn't pay. Vandalism is a crime; terroristic threats are a felony.

"But Wilson was never prosecuted -- SPPD Officer Kong just left a card at the house -- and it all went away.

"In 2007, Nakeshia Britton, a high school classmate of Wilson's son Terrence, got another restraining order, claiming that Wilson, her son and others had followed Britton's school bus home, after which Wilson and her son Terrence, "came up on the porch with broken beer bottles and a bat trying to hit me... and told Edna, my foster mom, to let me come out so they can kick my retarded ass." She said that they tried to force their way in."

Michelle has a clean record. Her friends and neighbors love her. You wrote a very unfair and factually false piece as it pertains to her.

Thanks,

Gary Wolf
Attorney for Michelle Rae Wilson

I'm always up for correcting any facts, of course, and I have no particular reason to doubt Mr. Wolf's claims of this morning that the 2004 and 2007 incidents were another Michelle Wilson.

In fact, I think he's right. Hence:

Addendum and digression:

Let me put that more strongly:  Oops.  I missed something.  After getting Mr. Wolf's email this morning, and reading his comment, as reprinted above, I went back and looked again at the voluminous documentation that Sheriff Fletcher filed with the court, and went over it with my friend, David Gross, who had reviewed both the piece and the revocation petition before.

While it's clear that the 1996 incident is Mr. Wolf's client, Michelle Rae Wilson, it's also clear, upon review, that the 2004 and 2007 incidents are, as he says, another Michelle Wilson, who lived at another address.  We missed that, when reviewing Sheriff Fletcher's petition.

End of Addendum.

But, let's be clear:  they're not my facts.  The source for the story wasn't my imagination -- I'm just a fiction writer, by trade, and I couldn't have made this stuff up; it's far too weird for fiction. 

The 1996 incidents, which Mr. Wolf doesn't dispute was his client (and, to be fair, he doesn't admit it, either) is from sections #6 and #7 in Sheriff Fletcher's and County Attorney Susan Gaertner's revocation petition, and their Exhibit K and and Exhibit L, both of which were submitted to the court in support of that petition.

Somebody accused of hounding an ex for four years (and that's what the accusation is in Exhibit K and L; I don't know if the accusers were lying) being issued a carry permit in Ramsey County?  Let's not be silly.  That wouldn't happen unless the applicant was connected -- say, by being the aunt of a Saint Paul cop.

But let's turn to the two incidents that Mr. Wolf does [addendum:  accurately] dispute. 

The 2004 incident, which Mr. Wolf does say was some other Michelle Wilson (and why would he lie?  I can't imagine a reason, and don't think he is) is also from Sheriff Fletcher's revocation petition, in which he claims that Respondent -- that's Mr. Wolf's client -- was named as a criminal suspect, and which Sheriff Fletcher supports with his Exhibit J.

The 2007 incident, which Mr. Wolf also says was some other Michele Wilson, is, yet again, from Sheriff Fletcher's revocation petition, in which Sheriff Fletcher claims that Respondent -- that's still Mr. Wolf's client -- was hit by a restraining order, and which he supports by his Exhibit I.

Let's assume -- he does seem credible to me; you decide for yourself -- that Mr. Wolf is right.  Why -- when trying to revoke a carry permit of a woman who was sitting in jail, accused of murder -- did Sheriff Fletcher throw accusations about another Michelle Wilson into the mix?

I wish I knew.  I think it's a fascinating question.

There are others.  Why wasn't the 1996 restraining order enough reason for Sheriff Fletcher to deny Michelle Rae Wilson's permit application in the first place?  He's certainly denied other applicants for less.  Why, when she was sitting in jail, did he apparently throw every accusation he could find up against the wall and see what would stick?  Wasn't the murder charge enough?  And why, after years in the Ramsey County Sheriffs Office gun unit, was David Rossman transferred to patrol after researching and writing that petition?

Apparently, one of the possibilities I raised in the last episode has not panned out:  it was apparently not a reward for the accuracy and thoroughness of the research he did in the revocation petition.  What did happen with the bumbling Deputy Rossman, and why?  Is it possible that, after deciding that Rossman is too incompetent to properly shuffle paper around, Fletcher put him in a squad car with a handgun and a shotgun to do things requiring far better and sharper judgment than he'd already demonstrated was lacking during his time in the gun permit unit?

I'd love to know the answers to all of these questions.

And there's more. Me, I think it would also have been news to many of us, back in 2008, after the murder, that the accused murderer was a Saint Paul PD dog cop's aunt, using supposedly, the gun that that same cop had given her.  Doesn't that sound like news to you?

Ah, if only there were some enterprise locally, that hired people to look into interesting questions about public figures and public officials, then reviewed and edited their reports, and printed them daily upon some inexpensive medium for public distribution.

Instead, what we've got is the Pioneer Press and the Star Tribune.

Really.

For those of you who think I'm going all Rush Limbaugh with this "feminazi" stuff: chill.  I'm talking about Elisha Strom, the now ex-wife of convicted kiddie porn felon, the loathesome Neonazi Kevin Alfred Strom. (The two of them had a falling out of some sort.  Nazis, like other people, find breaking up hard to do at times.)

That's her, at right, in a photo from around 2003.  She is apparently as uncharming as she looks, and calling her a Feminazi is only fair, because she's the closest thing the neonazis have to a feminist, okay? 

Okay.  Fine.  If she happens to be out walking someday and a cow falls out of a clear blue sky to squash her flat, that would be a sad thing only because it would be a waste of a good cow.  Got it.

But, alas, what she's apparently been charged with an is, basically, blogging and photograpy. The scumbag neonazi bitch has a blog; she makes comments hostile to, and posts snapshots of some local cops. 

Well, blogging and photography aren't a crime, and it would really be a shame -- really -- if all of our civil rights were further degraded because people wouldn't support the rights of this feminazi scumbag to write and to take pictures.

So:  please support the rights of this feminazi scumbag.  It's important that her case get coverage, and that she be acquitted of the absurd chages. 

Damn.  Well, you don't always get the good poster boys and girls on this civil rights stuff.  Yeah, sometimes you luck out and get a real hero like Rosa Parks, or Savana Redding.

But most of the time it's scumbags like Ernesto Miranda or Elisha Strom.

Live with it.

(h/t Scott over at SJ) <

[update, 8/19/2009 -- and if you thought this was weird before, you ain't seen nothing, yet.  Check out the comments, and watch for the update, later today.  JR]

The End of Carl Jackson

Maybe the 911 call was not Carl Jackson's worst mistake.

But it was his last one; it got him killed. He would have been smarter to run, instead.

It would have been smarter not getting involved with Michelle Rae Wilson in the first place; she had a history of not playing well with others, and getting away with it.

In 1996, Wilson was hit with two restraining orders when an ex-boyfriend's wife accused her of repeated hangup calls to her home and workplace -- over a four year period; it had been going on since 1992 -- and the ex-boyfriend himself asked the court to have her told to stay away. She had been, he said, leaving harassing messages, over years, demanding "closure." The court said yes, and the orders were issued.

Two orders -- the ex-boyfriend asked for one, too. Harassment is a gross misdemeanor -- up to a year in prison -- and the second strike is a felony.

But Wilson was never prosecuted, and it all went away.

In 2004, two neighbors accused Wilson and another son of pouring sugar in their car's gas tank; according to police records, one said that, "Michelle Wilson threatened to blow up her house and kill her. She taunted her to go outside." She owed Wilson $60, and couldn't pay. Vandalism is a crime; terroristic threats are a felony.

But Wilson was never prosecuted -- SPPD Officer Kong just left a card at the house -- and it all went away.

In 2007, Nakeshia Britton, a high school classmate of Wilson's son Terrence, got another restraining order, claiming that Wilson, her son and others had followed Britton's school bus home, after which Wilson and her son Terrence, "came up on the porch with broken beer bottles and a bat trying to hit me... and told Edna, my foster mom, to let me come out so they can kick my retarded ass." She said that they tried to force their way in.

Assault is a crime -- anywhere from a misdemeanor to a multi-year felony -- but Wilson was never prosecuted, and it all went away.

Just as well she didn't use the gun that time. For Nakeshia Britton and her baby, at least.

Whatever else you can say about Michelle Rae Wilson, she didn't let go easy. No particular reason why she should, maybe. While accusations seemed to follow her, they were never -- not ever -- accompanied by criminal charges, much less convictions.

Michelle Rae Wilson seemed untouchable.

When she and Jackson broke up after a brief relationship, that hadn't changed. Jackson's new fiancee, Chillnail Hollingsworth, wasn't the only person who Jackson had complained to about Wilson; he'd also told a mutual friend, Fred Reman, that Wilson was harassing him at work, and leaving numerous harassing messages on his cell phone.

So it's perhaps understandable that, on a cold, dark January day in 2008, Jackson found himself inside her home at 690 Iglehart Avenue, on a quiet block in St. Paul.

What else could he do? Complain to the authorities? Others had been here and done that, and all that had happened was a few restraining orders, and a cop's business card left on a porch.

Maybe he didn't have a lot of faith in paper.

She wouldn't let go, and he wanted her to let go. And he had good reason to try to get her to leave him alone, and maybe he could talk her out of it. Or maybe he could do more? Who knows?

Maybe he hit her, maybe not; maybe she hit him. When she went to the bedroom, he shouldn't have stayed in the living room. He didn't even have his winter coat off; he should have headed out the door and escaped into the night.

Instead, he got on the phone with 911. He hadn't thought it through; he didn't open the conversation with a cry for help, but with, "How you doing this evening?" like he was getting ready to go on a date.

"My ex-girlfriend is here beating me upside the head," he said, "and I'm trying not to hit her. I'm trying to get out of the house."

He asked for help. He explained that she had guns in the house, and that she had threatened to kill herself, and --

Then there was shouting, and six gunshots.

And it all went quiet. The only person in the conversation was the 911 operator.

Jackson had been shot at from a distance, six times, leaving shell cases scattered between the bedroom and the living room.

He had been hit three times. One bullet had entered the right side of his chest at a thirty-degree downward angle, breaking a rib, puncturing a lung, grazing the liver to end up under the skin of his back. Another downward shot, this one at a 45 degree angle, had entered his left shoulder and ended up in his right lower back.

He might, possibly, have survived those two, despite the legendary -- meaning "largely fictional" -- special lethality of the no-longer-manufactured "Black Talon" bullets that had pierced his flesh.

But the other distant gunshot, the one to the forehead, also fired downward at 45 degrees, had gone far enough through his brain and was traveling fast enough to break his spine, and that would killed him all by itself.

No, it wouldn't have taken one of those quarter-century old "Black Talon" bullets to kill him, not with a shot through the brain.

Any bullet streaking through his brain would have done it.

Jackson was dead before the Saint Paul police secured the scene, and long before SPPD K-9 Officer Robert Edwards managed to talk Wilson into coming outside and surrendering peacefully to Officers Breci and Rhoades.

It was the doggie cop who talked her out. While it's not usual for K9 cops to talk perps out of a building, perhaps it's understandable, in this case:

Officer Robert Edwards of the St. Paul Police Department, the man who talked Wilson out of the building, is the nephew of Michelle Rae Wilson.

He is also, by his own admission, the man who had provided her with the Glock pistol that killed Jackson, the one that he had given her when -- despite her colorful history -- she had applied for and had been issued a Minnesota Permit to Carry a Handgun by Bob Fletcher, Sheriff of Ramsey County, a permit she had held for around two years, even after the 2007 incident on Nakeshia Britton's porch.

Michele Rae Wilson was a carry permit holder on the night that somebody in her home fired that Glock, putting three Black Talons into Carl Jackson.

She has been charged with Murder in the Second Degree in that case; she's scheduled to go on trial this November.

And while there's no need to have any sort of permit to keep a gun in the home, she won't have her carry permit when she goes to court; it's been taken away from her.

On April 16 of 2008, Sheriff Bob Fletcher and Ramsey County Attorney Susan Gaertner filed a hundred-page petition (here's Part 1; here's Part 2)with District Judge Joanne Smith, requesting that the judge revoke what they called Wilson's "conceal and carry permit", and documenting, in great detail, each and every one of the incidents above. In detail. The petition had been written and researched by David Rossman -- then a deputy assigned to Sheriff Fletcher's gun permit unit.

Yes. The Ramsey County Sheriff's office had access to Wilson's documented history of restraining orders and the accusations of death threats, attempted assaults, and stalking that, even before the killing, argued that she was a danger to others.

But until she allegedly killed one ex-boyfriend with the gun that her cop nephew had provided to her, there's no evidence whatsoever that they raised a finger other than to punch the keys on their computer to print out her permit.

It was three months and three days after she allegedly shot and murdered Carl Jackson that Sheriff Fletcher's office applied to have the St. Paul cop's aunt's permit revoked.

It probably wouldn't have mattered much; she was sitting in jail, unable to raise the $250,000 bond that the court had set.

And Carl Jackson was dead.

Part Two: Permits, Numbers and Other Games

In 2003, Minnesota changed its law as to how handgun carry permits -- sometimes erroneously called "Conceal and Carry" permits -- are issued.

Between 1974 and 2003, permit issuance was at the almost entirely unfettered discretion of police chiefs and sheriffs.

In 2003, that changed, with the passage of the Minnesota Citizens Personal Protection Act.

Since then, with a short interregnum when the law was overturned and passed again, permits are issued to any law-abiding US citizen or permanent legal US resident who takes a certified carry class, and then passes a background check. Right now, around 65,000 Minnesotans hold such permits, issued by their local sheriffs, which enables them to carry guns -- openly or concealed -- in most public places, although it didn't change much about laws involving gun possession in the home.

But the sheriffs have been left with a serious responsibility, and that's embedded in Minnesota Statute 624.714, which spells out that a sheriff can "deny the application on the grounds that there exists a substantial likelihood that the applicant is a danger to self or the public if authorized to carry a pistol under a permit."

And they do.

Not often -- the vast majority of people who apply have perfectly fine records -- but it happens, about 1% of the time, statewide.

Given Michelle Rae Wilson's history and the fact that Sheriff Fletcher issued her a carry permit, you might think that the Ramsey County Sheriff's office is reluctant to deny a permit application.

You would be wrong. When it comes to carry permit applications, Bob Fletcher is the Prince of Denial.

In 2006, the year that Wilson applied for and got her permit, more than 9,500 people applied across the state of Minnesota, 690 of them in her own Ramsey County.

Of those close to ten thousand applications statewide, only 177 applicants were denied.

79 of those denials were in Ramsey County -- almost half of the denials in Minnesota that year, and almost all of them based on the conclusion by Sheriff Fletcher that the applicant was "dangerous to self or others."

While the rest of the state has a denial rate very close to 1%, the 2006 Bureau of Criminal Apprehension report on the sheriffs shows that the denial rate in Sheriff Fletcher's Ramsey county was more than ten times that of the rest of the state, and his office spent more money per application on their permit issuance/denial program than any other department -- $100,000 on personnel costs alone, that year.

Their expenditures were topped only by the much larger Hennepin County, where the HCSO processed almost three times as many permits for about the same total cost.

Whatever else can be said about the RCSO permit program, it doesn't skimp on spending money, or devoting staff to it. At least one deputy, David Rossman, was assigned fulltime to permit investigation and processing -- and the RCSO takes a very hard line in permit applicants, and spends whatever it has to check them out. Most of the time. It doesn't take much to get denied in Ramsey County.

One happily married couple was turned down by the sheriff because police had been called to their home by a neighbor, years before, over a noise complaint, and while that call had resulted in no arrest nor any prosecution -- not even a citation for noise -- Sheriff Fletcher decided that that one, long-ago incident made them both "a danger to self or others."

Another was denied for being the subject of a restraining order -- just like Michelle Wilson. But unlike Michelle Wilson, he had gone to court and successfully fought the restraining order, demonstrated to the judge that he was the victim of harassment, and then successfully sued his harasser for filing a false complaint. Still, Sheriff Fletcher thought that single, disproven allegation made him dangerous.

Many have been denied for a single DUI conviction, often years and years past, despite having a squeaky-clean record ever since. Sheriff Fletcher thinks that a single, ancient DUI is clear and convincing evidence that that somebody is a danger to self or others, and has denied many applicants on that basis.

He says the applicants are still a danger; courts disagree.

Attorney Marc Berris has received "at least fifteen calls" from people who have been declared by Sheriff Fletcher to be a "danger to self or others" because of a single DUI, despite having had clean records both before and ever since. He's been retained by many denied applicants and taken at least three such single-DUI cases to court and had those denials overturned, and prevailed in other excessively-aggressive permit denial appeals, so much so that he half-seriously says that the Ramsey County Sheriffs Office has become his single best-paying client. Why? Because Minnesota Statute 624.714 provides that when a permit denial is overturned, the court must issue a judgment against the denying sheriff for "reasonable costs, including attorneys fees," and the RCSO has been paying a lot of Marc Berris' fees, of late. Come Christmas, he might send them a t-shirt as a thank you.

It's not just the single-DUI cases.

Others have been denied on the basis of a single arrest where no charges were ever brought. In one of Berris' present cases, his thirty-year-old client was labeled as dangerous by Sheriff Fletcher for having been arrested as a fourteen-year old, after having gotten into a fight in his neighborhood. Sheriff Fletcher also doesn't like his boyhood tattoo.

In the carry permit instructor community, the perhaps exaggerated story is that in Ramsey County, people get denied for a couple of speeding tickets.

Not Michelle Rae Wilson, the aunt of Saint Paul Police Department K9 officer Robert Edwards, the man who gave her the Glock pistol that she is accused of using to murder Carl Jackson.

She got hers.

And, according to the indictment, with the gun that her nephew had given her, on January 13, 2008, she shot Carl Jackson dead in her home.

Part Three: Questions, Questions, Questions, and Some Answers

The Wilson story raises a lot of questions; others it answers.

One is easy: her carry permit didn't have anything to do with her ability to shoot and kill Carl Jackson, if in fact she did that. You don't need a carry permit to possess a gun in your home, or to accept it as a gift from a relative, whether or not he's a cop.

That's easy. It's as easy to figure out what would have happened if she had been, in any of her previous incidents, charged with and convicted of a violent felony: she would have been legally barred from so much as possessing a gun, anywhere, even in her own home.

But that didn't happen. You can't be convicted without being tried, after all, and she was apparently never even arrested. There's a saying, "you may beat the charge, but you won't beat the ride." Michelle Wilson, it seems, up until January 2008, beat several rides.

Here's another easy one: the whole notion of equal treatment under the law -- as embodied in the Minnesota Citizens Personal Protection Act -- appears not to operate in Bob Fletcher's Ramsey County Sheriff's Office. Have a shouting match with your spouse, and both of you will be denied carry permits as dangerous ten years later. Be the aunt of a Saint Paul cop and you apparently have to be indicted for murder before it will be revoked.

Equal protection under the law? Not in Ramsey County.

Still, while I freely admit to being other than Bob Fletcher's biggest fan, but it's simply not true that by issuing her a carry permit when he had denied people with much less compelling histories that he put the murder weapon in her hand.

No, the gun -- a Glock Model 17 -- was given to her by her nephew, the Saint Paul police officer. And he almost certainly didn't put it in her hand; a new Glock is sold in a nice plastic box -- maybe he gift-wrapped it, too.

Whether or not it was a murder weapon will be decided by a jury of Michelle Rae Wilson's peers.

It's still not completely clear to me how this aunt of a Saint Paul police officer managed to escape any criminal record until being charged with murder. Murder is almost never a beginner's crime, and what there is on the record about Wilson's behavior is suggestive of previous criminal behavior, of stalking and harassment, of at least one death threat and in the 2007 case, of an assault.

But it's important to remember that the public record does not contain the whole story -- the multiple requests for orders of protection and the 2004 police report contain only statements of the complainants, not Wilson's responses or explanations. All stories have at least two sides, and it's possible that all of the people, over the years, who complained to the police and the courts about Michelle Rae Wilson were lying, or leaving out important facts.

And it's also possible that those could be the only troubling incidents in Wilson's history -- before the death of Carl Jackson, that is.

And despite the lack of any criminal arrest, prosecution, or conviction record in Deputy Rossman's detailed dossier, it's not impossible that each and every one of them was fully investigated by St. Paul law enforcement, despite her status as the aunt of a Saint Paul cop, and properly determined to be of a noncriminal nature, or that the St. Paul City Attorney and the Ramsey County Attorney made a good faith decision -- well, several good faith decisions, actually -- not to prosecute after those investigations.

After all, such investigations are not part of the public record. Yet.

Perhaps the Saint Paul Police Department, the Saint Paul City Attorney's office, and the Ramsey County Attorney's office will produce statements on these matters, clarifying what is, at best, a very puzzling situation.

Other things still puzzle me. I hadn't before thought of David Rossman, Fletcher's deputy, as being awfully thorough, or service-oriented. Yet, when he wrote up the application for revocation of Wilson's permit, he didn't just document the facts around the alleged murder, and her arrest and being held in jail in lieu of a quarter million dollar's bond. No, he went to the trouble to point out the history of the restraining order against her, in excruciating detail, complete with exhibits, of episodes reaching back years before she had applied for her carry permit, and of the 2007 incident on Nakeshia Britton's porch.

Why throw all that in? Was it just out of a sense of completeness, or was David Rossman quietly trying to put Wilson's history into the public domain, knowing that the revocation application would become available to anyone who asked?

I wouldn't want to guess. I do know that some time after he filed that application, he was transferred from Sheriff Fletcher's gun permit unit to the Ramsey County Sheriff's patrol unit. Was that a promotion in reward for thorough police work? Just a random rotation to a new set of duties? Or something else? I don't know.

There's a lot that I don't know or understand about this. For more than a year, the Wilson revocation application has been available for the asking -- when my friend Mark Okern asked for it, he was promptly given it, without any fuss whatsoever.

You can look at it, too, if you'd like.

Did nobody else bother to look? That's another mystery. There were only three local press reports on the murder -- all were brief and fragmentary. Not one mentions that Officer Edwards of the Saint Paul Police Department had given Wilson the Glock she allegedly used to kill Jackson, nor the previous restraining orders; the WCCO report says simply that she was charged with murder in connection with Jackson's death, and only a couple of dozen words more.

The metro area has two major newspapers, with national reputations, as well as several weekly ones. It has more television stations than that, each with a news department, staffed with fulltime professional journalists.

But you haven't heard this story from any of them, but from a balding, middle-aged science fiction writer, part time carry permit trainer, and Second Amendment activist -- you know: just a guy who believes in all that stuff about truth, justice, and the American Way -- aided by a few friends who have been willing to run some errands, make a few phone calls, and talk and think some things out.

Why are you only hearing it from us, and only reading about this here, and now?

There's a lot of puzzlements in this.

I've got another one. The Ramsey County narrative appears to be that while or after beating Jackson, Wilson went to her bedroom to retrieve her Glock, and shot Jackson from a distance. How much distance? The medical examiner's report characterizes them as "distant," as opposed to, I suppose, "contact" or "close range." Deputy Rossman's report doesn't go into that kind of detail.

Yet all three rounds entered Jackson's body in a sharply downward direction -- one at thirty degrees, the other two at a 45 degree angle. How did this 5'7" woman supposedly manage that?

Maybe we'll find out on November 2. Maybe sooner. Maybe never.

Because, in Ramsey County, there is special treatment for special people.

Part Four: Special Treatment for Special People at the RCSO

Give the devil his due: Sheriff Fletcher did the right thing in moving to revoke Wilson's permit to carry according to the explicit procedures and substance of the Minnesota Citizens Personal Protection Act of 2003; he followed the law in enforcing it. In this case.

Finally.

After the shooting, and while she was in jail.

Before then, she got a pass. It seems more than likely that the "pass" was based on "Who You Know." And that's corruption -- a denial of equal treatment by the law to everyone else, and "special," favorable treatment for a few.

It is also appears that Wilson received this "special person," favorable treatment, long before she applied for the permit, and which may have affected her legal status to possess the firearm with which she shot Jackson.

Was it because the community in which she lived and acted that received less attention, care, and protection from law enforcement? Was it that her nephew is a cop? Both? Something else, as well? I don't know.

I do know that there are special rules for special people in Ramsey County. That shouldn't be news to you, either, with this coming on the heels of the Metropolitan Gang Strike Force debacle, whose problems were apparently centered in that same Ramsey County, under the nose of that same Sheriff Bob Fletcher, who not only turned a blind eye to them, but also helped create and perpetuate the culture that led to the Gang Strike Force disgrace, through the development of the personnel, through his Saint Paul cop buddy who he had put in charge, and kept in charge.

Let's remember: Fletcher defended the Strike Force and his people -- and, official table of organization aside, they were his people -- vehemently and vociferously, and did his level best to keep that misbegotten unit going . . . and succeeded until the Hennepin County Sheriff, Richard Stanek, withdrew his people from the Strike Force.  Because, it seems another Sheriffs Office had developed and allocated the personnel to the Gang Strike Force whose culture -- call them "ethics," if you will -- would not only not allow them to participate, but also required them to attempt to expose the apparent corruption and not cover it up.

If it weren't for Sheriff Stanek and Chris Omodt of his department -- among others -- the gang strike force would probably still be up to their old tricks, under the uncaring gaze of their defender, Sheriff Bob Fletcher. Same old wine; it would just be in a new package, but still the same thing.

That's wrong.  And surely you don't think the last disgraceful episode of the Gang Strike Force has been played out in public, anymore than you'd think that Michelle Rae Wilson was the only cop's relative getting special treatment from the RCSO.

 Why would you think that it's anything but special rules for special people there?

That's not equal protection under the law. That's not, as the saying goes, truth, justice and the American Way.

It's wrong. And it gets people hurt, and maybe killed.

And it really must be put to a stop.








Author's note: I'm grateful for the great help I've gotten in researching and writing this from Joseph Olson, David M. Gross, Marc Berris, Andrew Rothman, and Mark Okern. And from the staff at Ellegon, Inc.: Felicia G. Herman, and Judy Rosenberg. (I'm married to the former, and the latter is our older daughter.)

When Truth, Justice, and the American Way happens, it's a team effort.

You could look it up.

Chicago police officer Anthony Abbate---caught on video beating up a young woman bartender---has been sentenced. He got probation.

Note that Abbate is still a police officer. The Independent Police Review Authority has recommended he be fired, and it sounds like he was convicted of a felony, which should disqualify him for the police force, but God only knows what the Police Board will do.

Chicago's Police Board is often described as the "civilian review" component of the disciplinary system, which sounds good, but as I understand it, the only thing they can do in police disciplinary actions is to either approve, reduce, or eliminate the recommended punishment. In other words, it's a way for the city political structure to protect officers who have connections.

My guess is that Abbate doesn't have any connections good enough to survive so publicly disgracing the department, but...this is Chicago.

The thing is, Abbate's not the real problem. He's just a drunken fool. Notice, however, that there's been no word in months about the allegations that other officers tried to cover this up and intimidate witnesses with threats of arrest. That would be a criminal conspiracy within the police department.

Nothing to see here. Move along.

[I started to comment on this over at Simple Justice, but there's so much going on here that I decided to do my own post. As usual these days, it's a bit late.]

I may be a libertarian, but I'm not a cop hater. Sometimes, however, cops make it very hard not to hate them. Go read Scott Greenfield's story about a cop who hit a surrendering suspect and put him in a coma. Here's a bit of a description from the source article at the Seattle Times:

Seattle lawyer Sim Osborn, who has been retained by Christopher Harris' family, said both deputies wore black uniforms and yelled to Harris from a half-block away in a darkened alley. He said one witness reported the two deputies didn't identify themselves as law-enforcement officers until after Harris began running down the alley sometime after 1 a.m. Sunday. Osborn said Harris stopped running a few blocks away, apparently after realizing the two men chasing him were deputies.

"He was blindsided," Osborn said of Harris. "It was not a tackle but an absolute, bone-crushing hit." Harris' head struck a concrete wall. Since then, he's been in a coma and on life support at Harborview Medical Center.

There's video of the hit too, but what apparaently sets Scott off is the comments over at OfficerOne.com. Here's an example he quotes:

Great job Deputy! That suspect FLED on foot and turned toward you. What were his intentions when he turned, fight, weapon, surrender? We may never know but you did right and will be vindicated!

Yes, exactly, what were his intentions? I can just imagine the officer's debriefing:

I was chasing after him, yelling "Stop! Police!" And then the crazy bastard stopped! Who knows why he did that? Naturally, I had to take him out!

That reminds me of a case a few years ago where a police officer pulled a car over, walked up to the driver's window and asked him for his license. Then the cop shot the driver. His reason? The driver suddenly reached for something.

I'm no expert, but this seems to be a common pattern with police violence against innocent people: The cops form the incorrect opinion that someone is a bad guy---either through mistaken identity or misfiring intuition---and then fit all subsequent behavior into that pattern. Even when the suspect does something innocent and cooperative, the cops fit it into their bad-guy mod