Categories
General

Why Life Imprisonment is Wrong


photo credit: BlatantNews.com

When I read Jay Hutchinson’s post about Why Capital Punishment is wrong I could not sit still without sharing the opposite perspective so that some people can recognize that the issue is not one sided or clear cut. I am not one who believes in excessive punishment and I would not argue that a justice system without an option for capital punishment is inappropriate, but the longer I live the more I recognize that I have never heard an argument against capital punishment that did not ring hollow on some level.

When Jay speaks of the “hypocrisy” of a government killing to prove that killing is bad he both makes a very poor argument and misses the point of capital punishment entirely. The shallowness of that argument is apparent when we recognize that government has a legitimate position of authority with regard to society and thus has some limited permissions not available to society as a whole. For his argument to work you would have to be able to argue that a father was being a hypocrite for making a rule that his child could not use matches when he uses matches to light the furnace when it goes out. Another example would be trying to argue that police departments are hypocritical for enforcing speed limits on the population while they and other emergency workers regularly exceed the speed limit in the course of their work. The use of capital punishment is not to show that killing is bad, it is meant as a consequence of certain actions as a way to demonstrate unacceptable behavior through the punishment and as a way to remove future threats to society. That certainly does not mean that capital punishment is the only way, or even necessarily the most desirable way to meet these goals, but it is not simply to show that killing is bad.

Of Jay’s three official arguments, two of them hinge on far from common occurrences – the change of heart and the wrongful conviction. That these are not true in the majority of cases does not mean that they are not legitimate concerns, but governing based on exceptions is a very dangerous practice. The fact is that most of the time the person convicted is the guilty party and of those convictions that are overturned a sizable number are overturned on technicalities, not necessarily because the defendant was innocent  – nothing we can do in our justice system will ever make it 100% accurate, but we do fairly well. Jay gives exactly one exceptional example of a change of heart while claiming that “people often have a change of heart on death row.” I’m not sure how we could determine “often” since no metric, including professions of innocence, can accurately draw a line between those who have a change of heart and those who don’t. Even if we could draw that line accurately part of a change of heart for those who are guilty is an acceptance of the consequences of their actions. If society has determined that death is the appropriate consequence for our actions then a real change of heart would include coming to terms with that punishment for our actions. (After all, just because Bernie Madoff changes his heart about defrauding millions of people out of billions of dollars and promises never to manage money again does not mean that he should not face the consequences of his previous actions.)

His third argument is not dependent on the exceptional case – the financial cost of capital punishment is almost universally higher than the financial cost of life imprisonment. Like governing based on exception however, governing based on financial considerations alone is dangerous. Besides that, there are things we can do to change the equation (considering that the vast majority of appeals result in no change of sentence one option would be to reduce the number of available appeals).

For those who are still convinced that capital punishment is just wrong please consider the alternative and see if we are not stuck between a rock and a hard place.

Categories
General

How Economies Work


photo credit: unforth

When Adam Smith wrote The Wealth of Nations he was not writing about how economies and markets should work, he was writing about how they do work. Anyone who wants to know how they do work must read that book. Be prepared – it’s long and very detailed and you must be committed to doing a good deal of intellectual work if you are going to really understand it. The copy I have been reading is over 400 pages of small print and it is completely lacking in filler material.

I could not even pretend to give a summary of the book (as Wikipedia does) but I would like to point out one crucial detail that few people seem to realize and which shreds virtually every economic move our government makes. Money is a representation of value. Value is a representation of work and the only accurate determiner of price. Price controls and subsidies cannot alter the actual value of goods and services – all they can do is distort the representation of value and confuse the consumer by manipulating the data. Anytime there is a manipulative force in an economy the economy will respond, it will conform to the manipulation, but it still operates on the same universal laws.

I can easily understand how people today would be confused about the laws of economics because we have pundits, professionals, and even many economists who talk about the forces of economics as if they were under the control of men. The fact is that men can operate in accordance with those laws or they can try to manipulate them, but regardless of what we may observe the laws of economics will be obeyed and we will receive the consequences of our actions even if we are not sophisticated enough or have long enough lives to recognize those consequences. No matter how hard or how high we throw a ball – even into (or out of) orbit, it still must obey the laws of gravity.

The laws of economics are exactly as universal as the laws of physics. You can stand around all day arguing with a physicist about how gravity operates but at the end of the argument gravity will be unchanged. In your argument you can propose many great new ideas about how gravity should work, but gravity will be unchanged. If you have a misunderstanding of how gravity does work and operate based on that misunderstanding it will not preclude the possibility that you could design an airplane that flies, but designing an airplane that has not crashed yet does not prove that your understanding of gravity is correct and odds are pretty good that if your understanding is flawed the plane will have a flaw in its design that will either cause a crash or make the plane less functional than a plane designed by someone who understands the laws of physics.

What we have today in Washington – among both political parties – are a bunch of people most of whom grossly misunderstand the laws of economics and who believe that the laws of economics are no less subject to revision than the speed limit on an interstate highway. They mistake the reference to an invisible hand and believe that it refers to sleight of hand. The do not recognize the fact that there is nothing tricky or supernatural about the laws that Smith explained centuries ago. He did not make them up, he simply wrote them down after decades of study and observation – like any good scientist. In fact, the name of the book is “An Inquiry into the Nature and Causes of the Wealth of Nations.”

Categories
National

Hate Crime

I keep thinking about the tragedy at the Holocaust Museum yesterday. I find it tragic and unfortunate that the security guard is the one who has died while the assailant is still alive. I have heard that authorities are considering whether this was a hate crime. Personally I think that it is painfully obvious that this was a hate crime but has me thinking once again that there is no reason that hate crimes should be treated differently than any other crime.

Imagine if the security officer had been killed in the midst of a robbery. In that case this would not be a hate crime, but the officer would be just as dead as he is now so the incident is no less tragic and the crime no less grievous. In my mind, if the punishments we dole out for a crime ore not severe enough then we should change the punishments for the crime, not reclassify some instances as “hate crimes.”

The only time that I can see any argument for any legislation against the attitudes and beliefs that we try to prosecute with hate crimes legislation is in the case of speech. I believe it might be possible to draw a line where hateful speech is worthy of criminal prosecution where other inflammatory but not “hate” speech would be protected.

Categories
General

Constitutional Amendment V

We’ve all heard the concept of taking or pleading “the fifth {Amendment}” in court but there is more to that amendment than simply not testifying against yourself.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb, nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The Grand Jury which must indict for capital crimes in in addition to, not in place of, a jury of peers that all other criminal cases receive. The only exception in this grand jury is military courts in time of actual service. This amendment also contains the provision against double jeopardy (I wonder if that ever worried the game show hosts) although that protection only extends to criminal cases – civil cases may be brought multiple times for the same offense. (I guess that would also cover the game show. 😉 ) It also appears that a person might be compelled to witness against themselves in a civil case. The statement that we cannot be deprived of life liberty or property nor have property taken for public use without compensation seem to stand as a second bulwark against unreasonable seizure as protected in the fourth amendment.

Categories
General National

Constitution of the United States

Having completed a review of each of the 85 Federalist Papers I am excited to finally write about the Constitution of the United States that they were written to promote. My goal is to reduce the Constitution to a very simple outline showing the form of government that we were meant to have. I will ignore any parts of the Constitution which have been subsequently changed through the amendment process. I hope that by doing so it will be easy to see where we have strayed from the formula. Also, I just want to say in advance that I will not address any of the amendments here – each will be treated separately in future posts.

  • Article I
    • All legislative authority resides in Congress (in other words the president cannot make any laws).
    • Members of the House of Representatives must be at least 25 years old and live in the state they represent. The number of representatives for each state is based on their population but there may not be more than 1 representative for every thirty-thousand people.  Note that there is no stipulation limiting the size of the House of representatives while our population has more than tripled in the last century (from 92 Million in 1910 to over 300 Million now). Representatives are elected to two year terms. The House of Representatives holds the power of impeachment.
    • Members of the Senate must be at least 30 years old and live in the state  he is elected to represent. The Vice President is to serve as the president of the Senate, but cannot cast a vote unless the voting is tied. Senators are elected to six year terms. The Senate is to hold a trial when someone is impeached to determine if they should be removed from office. Interestingly, Senators must take an oath when sitting for an impeachment trial.
    • Each state has the power to choose when they will hold elections.
    • Each house of Congress determines the qualifications for their members (think back to the issue of replacing Obama after he was elected President) and each sets their own rules and keeps their own record. During the congressional session, neither house can adjourn for more than three days or to a new location without the consent of the other house.
    • Members of both houses are to be paid for their service, but they cannot hold any office that was created or received a pay increase while they were in Congress. Also, they are immune from arrest during the session of Congress except for treason, felonies, or breach of the peace.
    • All bills for raising revenue must originate in the House of Representatives. The House and the Senate must pass a bill before it is presented to the President. If the President vetoes the bill it may becomes law if each house of Congress reconsiders it and passes it by a 2/3 majority. When voting on a veto override the name and vote of each member of Congress must be recorded. If the president does not return a bill within 10 days (signed or vetoed) while Congress is in session the bill becomes law. If Congress ends their session before the ten days and the president chooses not to sign then the bill does not become law.
    • Section 8 lists the powers that Congress expressly holds in lawmaking (like establishing weights and measures, regulating commerce, coining money, and establishing post offices).
    • Section 9 lists laws that Congress is forbidden to pass (like ex post facto laws and granting titles of nobility).
    • Section 10 lists powers that are forbidden to the states. The list includes items granted to Congress (coining money, entering treaties with foreign nations) and also items that had also been forbidden to Congress (ex post facto laws and titles of nobility).
  • Article II
    • The president is the chief executive of the nation. He must be at least 35 years old and is elected to four year terms. He is to be paid for his service, but his pay cannot be raised or lowered during a term. The exact words of the presidents oathof office are supplied in the Constitution – he is to "preserve, protect and defend the Constitution of the United States."
    • The president is the leader of the army and navy and has to power to pardon any offense except in cases of impeachment. He can make treaties if two thirds of the senate approves the treaty and the senate must confirm those whom he nominates for government positions (such as Supreme Court justices). If the Senate is nto in session he can make temporary appointments that alst until the end of the next session of Congress.
    • If impeached and conviceted of "treason, bribery, or other high crimes and misdemeanors" the president and any other officers of government are to be removed from office.
  • Article III
    • The Supreme Court and any lower courts formed by Congress are the judicial authority of the nation.
    • Section 2 lists the jurisdiction of federal courts (such as when a foreign nation is involved, or in disputes between states).
    • Section 3 defines what constitutes treason.
  • Article IV
    • States are to honor the actions of other states.
    • States are to treat citizens of other states as they treat their own citizens.
    • Section 3 lists how new states may be created or admitted to the nation.
    • Each state is required to have a republican form of government.
  • Article V
    • If two thirds of each house of Congress vote in favor, Congress can propose amendments to the Constitution  which must be ratified by three fourths of the state legislatures. If two thirds of the state legilatures request it, Congress shall call a convention for proposing amendments – which must be ratified by three fourths of the state legislatures in order to become law. In either case,  no amendment may deny a state of equal representation in the senate unless that state shall consent to the amendment.
  • Artivle VI
    • The new government assumes all debts incurred under the Articles of Confederation
  • Article VII
    • If nine of the states choose to ratify the Constitution in convention it shall be considered binding upon each of the states that ratifies it.

I find it interesting that half of the Constitution is centered on Congress and yet we focus the bulk of our interest in the executive branch. Perhaps that is why we have become so ineffective at electing people who will adhere to the supreme law of the land – we are misinterpreting it in our political focus.

Categories
National

Revolving Doors

This year the state legislature tried to close a revolving door. In 2007 Congress tried to close their version of that door. I’m not sure how well either of them will work over time, but if it’s important to close revolving doors, maybe we should try closing another revolving door – the one from one federal elective office to the Presidency.

Admittedly, few sitting legislators have been elected as President, but you have to go back to 1900 to find a presidential election where a Senator did not seek the presidency (there were generally members of the house seeking it as well). Maybe if we placed a two year restriction after leaving a federal legislative office before a person could seek the presidency we might have fewer members of Congress trying to use their offices as stepping stones to the Oval Office.

Of course that would simply guarantee two year presidential campaigns, but at least those campaigns would not include a guaranteed fallback of a seat in the Senate for sitting senators.

Categories
culture National

“Our Hands Are Tied”

Despite rumors to the contrary, this country is still based on the rule of law – especially when the law favors a guy who has a "bonus" in excess of $6 Million dollars coming to him. By now almost everybody has certainly heard about the $165 Million of bonuses being paid to AIG execs. In a discussion on NPR this morning Renée Montagne asked why the government could not cancel the payments considering that they own 80% of AIG through their $170 Billion in bailouts. The answer was that the government can’t just rip up an existing contract because this is a country ruled by law. That is a nice answer that is true on the surface so long as you only give it a passing glance in near total darkness. Just since the beginning of this year Congress has passed a law allowing judges to rewrite the terms of an existing, legal mortgage contract. (I use that example not because it is better or worse than nullifying the payments of bonuses stipulated in a legal employment contract but because it is so similar to what we are saying can’t be done because we are a country ruled by law.)

The question remains, what does all this mean. We do not actually want to become a country where the government can come alter a private, legal agreement anytime they decide it would be a good idea to do so. Let’s see what we can learn from some of the options that have been proposed.

Tear Up the Contracts

If we want to admit that we are not a country that follows our own laws this would be the best course of action. That’s not going to happen because it runs contrary to our sensibilities as a nation. We may break our own laws, but we won’t admit it openly like this. A "bonus" that is guaranteed is no bonus, it’s a salary – one that these executives have proven they don’t deserve. A company that would offer or even accept an employee on such compensation terms should not be receiving a government bailout – in fact it should not even be in business.

Executives Voluntarily Forgo Their "Bonuses"

This would be the morally correct course of action for those who stand to receive their bonuses. This won’t happen because those who will receive the bonuses know that having AIG on their resume for 2008 may make them virtually unemployable for a while if they ever need another job. They also know that AIG is not financially sound even with the government money it has received so they can’t be assured that their current jobs won’t evaporate. They are going to take what they can get legally for as long as they can so that they can ride whatever storms may come their way.

Give Them Another Bailout

This one won’t sound popular on the surface – and it won’t happen either – but I have to throw it in here. This was an early idea of mine. The government should offer AIG another bailout that would be structured like so – The government gives AIG another $135 Million in bailout money on the condition that all those who stand to receive bonuses sign a contract that nullifies their bonuses – thus the company receive the benefit of an extra $300 Million while the taxpayers only foot another $135 Million of the bill. If AIG refuses the offer (which they would) it would prove that they don’t need the money as much as we were told to believe they were – just like the stories on NPR this morning about all the banks who are opting out of the TARP funds because of the "excessive" restrictions that Congress has written into the TARP legislation (plus those who want to opt out, but aren’t sure they can). The fact is that many of the businesses that are taking our government funny money are doing so because it’s being offered more than because they need it. (Why put yourself at a competitive disadvantage if you can stomach the attached strings?) I hope that Congress continues to make these funds more and more restrictive.

Reduce Their Salaries to $1 for 2009

I wish (but doubt) that the nation is not foolish enough to fall for this ploy. This is the most likely course of action because it is the one that AIG has proposed. Most of the people getting these bonuses should not even be employed based on their past performance. Reducing their salaries would be a generous act even if we were to also strip their bonuses. Besides, they may take a salary of $1 for the year, but they will also take a new bonuses next year after our outrage has died down (and they’ll weather our new outrage again if need be). Most of them are receiving bonuses that exceed the annual income of the majority of American households. They can live on the $1 salary comfortably if they want to because of the bonuses that that "punishment" would allow them to take.

Categories
State technology

Predictable Responses

As newspaper Editorial Boards begin to write about SB 208 their positions mirror what I called the tip of the iceberg and what we expected on the day that SB 208 was announced. In fact, one might almost wonder in passing if the editorial in the Standard Examiner was written by the same person who wrote the editorial in the Deseret News. Both dismiss the idea that they oppose this because it cuts into the revenue they get from publishing legal notices and both suggest that a state run website would not treat all legal notices equally. Also, neither editorial mentioned that this website would help city governments and citizens to save money on all the legal notices that they are required to publish. Essentially all their objections boil down to scare tactics as shown by this response to the Standard Examiner editorial.

As I read the Deseret News version I had a thought about an amendment to the bill that would expose the sincerity of the newspapers in their "public service" claim for opposing this. If the bill were amended to stipulate that the legal notices website allow bulk uploads of legal notices from entities such as newspapers (at bulk rates), and also allow a feed or other source for newspapers to print or otherwise republish the notices from that site (if they so choose) then I can see no reason for newspapers to object – besides the revenue competition. If the papers really are not afraid of the competition – if they honestly believe they are opposing this on public service grounds – they should simply offer to post on the state website any legal notices they receive so that their service complies with the new law (assuming it passes).

The Deseret News also provided two claims that need to be debunked.

In addition, as any Web surfer can attest, Web sites are not dependable. They are subject to technical issues, and they don’t make a reliable and enduring archivable record the way newspapers do.

As a long-time web developer I can say that whatever temporary glitches a website may have does not change the fact that web sites can produce reliable and enduring archivable records. In fact, the most reliable archivable records of newspapers are digital. For proof of that simply go look at archive.org. I can pull up old websites of mine that I know no longer exist on any computer where I ever published them. Even if a government site went down it is not likely that it would be lost.

The bill claims it would cost the state nothing. However, Web sites require considerable maintenance and personnel. Even if this new site were to fall under existing state government Web services, it still would cost taxpayers. Newspapers, on the other hand, store and archive data for nothing other than the cost of a legal notice.

This statement completely ignores what was actually said when SB 208 was first unveiled. The site would not cost taxpayers anything not because Sen. Urquhart is ignoring the cost of running a site, but because the site would charge a nominal fee to cover the costs of the website.

I have nothing against the newspapers – sometimes they have useful information – but they have yet to show a solid reason why they deserve a captive market for legal notices. To prove that, I would encourage a removal of the cap on what they can charge for legal notices (this would be even more broad than what they are pushing for in SB 161) if SB 208 is passed.

Categories
General

Two Forms of Government

I really appreciated the video that Scott shared yesterday. (You can see the full video below.) It reminded me that there are only two distinct forms of government. One is transient as it depends on the life of the ruler(s) while the other is stable because it is based on a foundation of written law. Of course we can make changes to that foundation, but the core is rarely changed, if ever.

Our nation was founded upon the rule of law. That was the whole purpose of most of our founding documents (Magna Carta, Mayflower Compact, Articles of Confederation, Constitution, Bill of Rights). The scariest thing in our modern political system is not the goals and ideals of any of the political parties, it is the almost universal attitude within every party that their ideals supercede the law of the land. A perfect example of that attitude was posted as a comment last month stating:

principles . . . must transcend and over-ride individual provisions of the Constitution

Good government depends on that statement being universally rejected. As I responded then:

principles . . . must not transcend or over-ride individual provisions of the Constitution . . . instead those bedrock principles must be used to guide the amendment of the Constitution

Categories
State technology

Legal Notice – SB 208

I was going to post a summary of the meeting, but many other people have already done a good job of that (Holly, JM Bell, Jason, Bob, Joe). So far, it appears that only JM Bell and BenJoe have taken the time to create something more than a back-of-the-napkin post of quotes and initial reactions.  (That’s not a criticism of the other posts, by the way.) From the meeting itself I only want to post one little gem from Sen. Urquhart:

It’s not government’s job to prop up an industry.

I wish someone would tell that to Congress.

Now, my initial thoughts were that I can’t wait to see how the media reacts to this. The very tip of the iceberg comes in the form of a comment that has been posted on a couple of the blogs that wrote initial reactions.

The claim is that the newspapers are already developing a website that would serve a similar purpose of providing more access and wider distribution of legal notices. Personally, I won’t hold my breath. Even if their site is close to production I would have to see it before deciding if it really serves the public. There is no reason that citizens should be mandated to publish through the newspapers – just as there would be no justification for mandating that they could not publish through the newspapers.

If newspapers are pushing to raise the cap on what they can charge for legal notices I have a hard time imagining that they are planning to offer the services of their new website for free or even at a low cost.

I think the heart of the comment is in this paragraph:

As has been the case for centuries, public notice is best served by a third-party, independent source. There should be a be check and balance on government power. In other words, should the fox be watching the henhouse when it comes to legal notices? Also, should the government be in the business of creating its own communications bureaucracy?

I think we need to define who the parties are to this system. The government has nothing to gain by not publishing some legal notice that has been submitted so I’m not sure that you could claim that they are any less independent than the newspapers. I don’t believe that publishing legal notices gives any power to the press. The whole statement sounds like a breathless rush to throw out something that might make people reject this proposal without any real argument against it.

A more thoughtful question was posed during the briefing (I believe by Ethan Millard):

Why should government take over a market that has been a private transaction?

My answer has two parts. First – is it really a private transaction when government has already mandated that the transaction take place? Second – I would not argue that government should take over such transactions, only that there is very little reason why government should avoid making the legal requirement that drives those transactions as painless as possible. If there were already some low-cost way for people to meet the requirements of providing legal notice that provided the requisite distribution of the notice then there would be no reason for this bill.

The fact is that government should not be mandating a captive market, as the legal notice requirement currently does. Newspapers have become dependent on their captive market – that’s not healthy for them and they need to fix it even if SB 208 were not being proposed. Let’s free people to allow publishing of  legal notice outside the newspapers and then eliminate the cap on what newspapers can charge for the notice when people choose to publish through the papers.