A libertarian take on procedure

This is an interesting short interview with libertarian Radley Balko on police practices and prosecutors. All of it is worth reading, but I would draw your attention particularly to this:

DIA: You've written about the creeping militarisation of law enforcement in America. How has this trend manifested itself and what are the consequences for the quality of policing?

Mr Balko: The most obvious way it has manifested itself is in the explosion in the use of SWAT teams and similar paramilitary police units over the last 25 years. The criminologist Peter Kraska has surveyed their use over that time. He's found that the total number of SWAT-team deployments in the 1970s was a few hundred times per year, over the entire country. By the 1980s, it was a few thousand times per year. And by around 2005, Mr Kraska estimates around 50,000 times per year. The surge has been driven entirely by the drug war, with the vast majority of SWAT deployments being used to serve drug-related search warrants.

This has led to a militaristic mindset among America's police departments, beyond just SWAT teams. Driven by "war on crime" and "war on drugs" rhetoric set by political leaders, police officers have increasingly taken on the psyche of soldiers. There's a pervasive and troubling "us versus them" attitude in policing today. Policing has become more reactionary, more aggressive, and it's poisoning the relationship between the police and the communities they serve.

I should add that I don't think police officers themselves are to blame for this, nor, obviously, are all police officers guilty of it. These are problems spawned by 35 years or so of bad policies set by politicians. That's really where any reform would need to start.

Right / Left cooperation on criminal justice reform

While the political rhetoric of "law and order" often separates liberals and conservatives, the question of the substantive effects of criminal procedure have always suggested room for common cause between liberal critics of police procedures and sentencing and conservative/libertarian concerns with expanding state power. Today's New York Times has an interesting piece previewing 6 upcoming Supreme Court cases that deal with criminal justice issues and includes many quotes from across the political spectrum advocating for significant reform in this area. This is all quite relevant to yesterday's class discussion of law and order and the questions we will discuss next week as well.

Dog sniff lineups

Should an identification of a suspect's scent by a dog in a "scent lineup" be enough to imprison someone? Enough to convince a suspect to agree to a plea bargain?

In several of the cases that were based on Deputy Pikett’s dogs, however, the scent lineups appear to have provided the primary evidence, even when contradictory evidence was readily available. Mr. Bickham spent eight months in jail after being identified in a scent lineup by Deputy Pikett’s dogs, until another man confessed to the killings. In an interview, Mr. Bickham scoffed at the accusation that he had taken part in three murders, noting that he has been hobbled by bone spurs and diabetes and is partially blind.

Ronald Curtis, another Houston man jailed on the basis of Deputy Pikett’s dogs, was released from jail nine months after being accused of a string of burglaries. Store videos showed that the burglar did not resemble him. “Nobody was listening,” Mr. Curtis said.

The plea: follow up

We are left hanging at the end of The Plea as to what will happen to two of the documentary's subjects. A quick google gave me this 2005 New York Times profile of the filmaker Ofra Bikel which talks about several of the cases. Gampero and Jarrett each received parole after the airing of the documentary which appears to have had significant effect on their cases.

Did Texas execute an innocent man?

In the case of Cameron Todd Willingham, it looks like they did. Texas's governor Rick Perry has done quite a bit to obstruct an investigation into the case, and recent statements by Willingham's lawyer raise many questions about whether Willingham received competent legal advice during his trial. Note also that Willingham refused a plea bargain that would have resulted in life imprisonment.

Link dump

Ok, ok, I have been totally remiss in keeping up the blog, for the 3 of you who check once in a while. Here are some recent events, articles, or cases of note.

The Supreme Court has accepted Kiyemba v Obama which will determine whether or not federal courts have the authority to order the release of detainees following Boumediene.

Is the rate of violent crime determined by levels of lead poisoning? Economist Rick Nevin argues that the drop in violent crime in the 1990s can be explained by bans on leaded gasoline and reductions in lead paint, and finds similar results in 9 different countries tied directly to the timing of lead reductions. While this may be similar to the widely publicized, and criticized, argument in Freakanomics that legalized abortion lead to the drop in violent crime, the fact that Nevin finds these results in 9 different countries, and the medical evidence on the effects of lead as a powerful neurotoxin, makes a strong case for his findings. If Nevin is correct, then it would seem we should divert as much money as possible from prisons to lead abatement programs. How likely is that?

Americans' perceptions of the crime rate used to correlate pretty closely with actual crime rates. When crime rates went up, people thought they were going up, and when they went down, people thought crime was going down. But since 2001, perceptions and reality no longer correlate. Why? No one seems to know.

The Supreme Court is hard to study due to all the secrecy surrounding the justices and their deliberations. Very little material ever becomes public, and even when it does it may or may not shed much light on key cases. When Justice Stevens retires, the papers of Justice Potter Stewart, who retired in 1981, will finally become available. While there may be some new information about deliberations over key cases during his tenure, we won't know until we see them. Maybe your grandchildren will get drive their flying cars to New Hampshire to study Justice Souter's notes on Bush v Gore sometime during the Malia Obama presidency because they won't be opened to the public until 2059.

The Supreme Court will be hearing a lot of business cases this term, and it may be interesting because there is speculation that Justice Sotomayor may be the first economic progressive on the court in a long time (Clinton's nominees are considered business friendly moderates) although no one is really sure how she will vote in these business cases. She has already asked some searching questions about the practice of treating corporations as artificial persons having the same rights as actual human people.

Republicans in the Senate have pretty much shut down the judicial confirmation process.

Medical malpractice & torts

There is a great article in today's New York Times on medical malpractice costs and the research related to them. Please read the story right away as it is directly relevant to what we have been talking about in class and our other reading assignments.

The direct costs of malpractice lawsuits — jury awards, settlements and the like — are such a minuscule part of health spending that they barely merit discussion, economists say. But that doesn’t mean the malpractice system is working.

The fear of lawsuits among doctors does seem to lead to a noticeable amount of wasteful treatment. Amitabh Chandra — a Harvard economist whose research is cited by both the American Medical Association and the trial lawyers’ association — says $60 billion a year, or about 3 percent of overall medical spending, is a reasonable upper-end estimate. If a new policy could eliminate close to that much waste without causing other problems, it would be a no-brainer.

At the same time, though, the current system appears to treat actual malpractice too lightly. Trials may get a lot of attention, but they are the exception. Far more common are errors that never lead to any action.

After reviewing thousands of patient records, medical researchers have estimated that only 2 to 3 percent of cases of medical negligence lead to a malpractice claim. For every notorious error — the teenager who died in North Carolina after being given the wrong blood type, the 39-year-old Massachusetts mother killed by a chemotherapy overdose, the newborn twins (children of the actor Dennis Quaid) given too much blood thinner — there are dozens more. You never hear about these other cases.

As they say, read the rest.

Rule 11 motion

An important event in A Civil Action is the rule 11 motion filed by the defendants - something we'll be talking about next week. We talked last week about frivolous lawsuits and what mechanisms were already in place to sort many of them out. Anyway, here's an example of Rule 11 in action against a "birther" who has filed multiple lawsuits alleging that President Obama was not born in the US. The link is to a Federal Judge's order, based on Rule 11, fining her $10,000 for continuing to press her claim despite having been ordered to desist.

Stevens to retire?

Rumors abound that Justice Stevens may be planning to retire at the end of the new Supreme Court term. The gist of this rumor is that since Stevens has only hired one clerk for the 2010-11 term, and he would normally have hired all four clerks by now, that he must be planning to step down. Retired justices are allowed to hire one clerk. This all makes perfect sense, but when I googled "Justice Stevens retirement" I got pages of news stories and blog posts predicting his retirement going back at least as far as 2006, so I'd not read too much into the most current rumors. That said, many people predicted Justice Souter's retirement based on his not hiring clerks for this SC term.

A Bit of Borking in Progress

The Bork nomination is much talked about and comes up a number of times in our reading. For many commentators, this nomination was the beginning of a steady politicization of judicial nominations but as our reading shows, this is not the case. Nominations have always been political in nature. Nonetheless, the Bork nomination was quite combative and many key players are still around (such as Joe Biden). I wasn't able to find many clips from the Bork hearings but due to Kennedy's recent death, this famous interchange from the hearings was posted. The article which forms the basis for many of the criticisms Kennedy lists here is “Neutral Principles and Some First Amendment Problems” (47 INDIANA LAW JOURNAL 1971) which remains a frequently read and cited argument about not only the First Amendment but a wide range of constitutional rights and the reach of Supreme Court authority in interpreting privacy and other liberties. Bork spent much of the hearing trying to get out from under his arguments in this piece, suggesting that his thinking had changed or that the article no longer reflected his views on all issues. Bork is one of the best examples of a nominee who was considered well qualified but was successfully opposed on ideological grounds, including 6 republican votes against his confirmation.

Supreme Court confirmation hearings

We may take a look at several of these in class to help with our discussion, but they are all interesting and give a flavor for what these hearings look like.

My favorite, because it is funny, is listening to Justice Sotomayor explain nunchuks to Senator Hatch. This came up because she had ruled in favor of a state law regulating nunchuks and Senator Hatch was trying to get a sense of her stance on the Second Amendment.


In this clip, Senator Sessions asks about Sotomayor's statements regarding her life experiences and how they affect judging. Side note: Sessions was nominated to the federal bench by Ronald Reagan and was not confirmed by the then Republican majority Judiciary committee due to questions about, as journalists tend to put it, racial insensitivity in his conduct as a US Attorney.


And in this last clip, which cannot be embedded, we see Sotomayor's opening statement. There are many other clips available on youtube if you click over from any of these three.

Political Science and the 2008 election

Yesterday I complained that very few political scientists, the people who actually study nominations and confirmations, were invited onto television coverage of the Sotomayor hearings. Since not too many of you had watched that coverage, I thought another example of the same phenomenon would be helpful. During the 2008 election, we also saw very few political scientists interviewed about the campaign. This campaign, like all campaigns, was covered as a kind of breathless serial narrative on the 24 hour news cycle. Reporters expected us to believe that any given day's news was the crucial turning point in the election - that Obama's bitter Pennsylvanians "clinging to guns" comments would throw the election to McCain, or McCain's embarrassing "the fundamentals of the economy are strong" comment after Lehman Brothers collapsed was the end of his campaign. Coverage of the Palin pick swung both ways - first the press told us that she was generating so much excitement that Obama was doomed, then that her actual campaign trail performance cost him the election. In reality, none of these things probably affected the outcome of the election. Obama won 53% of the vote, *exactly* the average percentage predicted by political science models long before the election. In fact, if memory serves, pretty close to the percentage predicted before the nominees were even chosen.

What does the election have to do with Supreme Court nominations? This piece about the 2008 election by Gelman and Sides lays out pretty nicely the case for political science over pundit commentary that I was trying to make yesterday. What they say about the election pretty much covers Supreme Court nominations as well. That Sotomayor would be confirmed was a foregone conclusion from the moment she was nominated (barring some scandal coming to light) but we got months of excited hyperventilating press commentary (much of it from "experts" who didn't know squat) about whether she would or wouldn't confirmed.

Press coverage of major Supreme Court cases is often pretty good on the outcomes - reporters can count liberal and conservative justices just as well as anyone and predict votes. We'll look at some of this coverage during the term as the Court begins to hear oral arguments in October and can discuss whether they are covering the whole context of important cases as well as they should.

By the way, Gelman and Sides write the Monkey Cage political science blog - it focuses mostly on American politics (with a bit of baseball) but the issues they take up are interesting, and they present recent academic research in a very accessible way.

Welcome back

Things are cooking for the start of Fall semester 2009. I've started updating the blogroll to the right, the syllabuses are finished, the reserve readings are on file at the library, and I will be posting new content relevant to all of my fall courses and activities at this location. Stay tuned for more.