Tag Archives: Glenn Reynolds

Rioters Inflict Racial Injustice

02 Tuesday Jun 2020

Posted by in Free Speech, racism, Terrorism

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My fervent hope is that the reaction of horror to George Floyd’s murder is universal. However, my perspective on the violence that’s erupted over the week since is also one of disgust. The perpetrators are using Floyd’s death as an opportunity to unleash attacks that undermine civil society and often hurt people of color more than anyone.

The peaceful protests against police brutality and racism in cities across the country are earnest calls for reform, and they also represent fine tributes to all victims of racism. But a different dynamic takes hold when peaceful protesters are infiltrated by violent elements. Agitators use the cover of the protests and typically begin to dominate the scene as darkness falls, though sometimes it happens in broad daylight. The violence, arson, looting, and shooting are perpetrated by a combination of those whose political motivations go well beyond needed reforms to the justice system and other opportunists who are primarily interested in loot, or just a riotous a good time. There are also some otherwise non-violent protesters emboldened by the agitators to cheer on these acts of violence.

As others have said, the rioting does not serve to honor George Floyd in any way, and it does nothing to end racism or racial victimization. By cheering on these malefactors you lose any legitimate claim as an enemy of racism. The rioting, if anything, brings harm to the black community. Black lives are lost in the strife, such as the retired police captain in St. Louis who was shot Monday night defending his friend’s pawn shop. Blacks are also losing their livelihoods as a consequence of the destruction.

The left-wing, anarchist agitators are modern blackshirts masquerading as anti-fascists. Their interest, and delusion, is the violent overthrow of our government. They are largely white millennials, mostly male, and largely unemployed as a result of the ill-advised coronavirus lockdowns imposed in many states. Antifa has been prominent in these attacks, often running under Black Lives Matter flags, and the radical wing of BLM participates as well.

These pigs have been coddled by leftist state and local government officials in many cities, who send outmanned police forces to try to keep the damage in check while releasing those arrested the next day. President Trump was absolutely right on Monday to call out the national guard and raise the possibility of deploying military forces where state and local officials are incapable or unwilling to bring these situations under control.

And here’s the thing: all it takes is a few agitators, along with their enthusiastic but less ideological recruits, to destroy communities. There have been larger numbers in big cities, perhaps a few thousand hard-core shit disturbers. Slowly but surely, perhaps due to Trump’s prodding, state and local politicians are awakening and enabling law enforcement to effectively quell the unrest. The agitators, who are fairly well organized, are being infiltrated by moles who will undermine their operations and perhaps aid in prosecuting higher-level organizers and funders at the federal level. In the end, the force of anarchists is fairly small and the local support they manage to stir is fleeting.

While we recoil at the harm inflicted by the riots, another perspective is offered by the equity markets, which have been relatively unfazed through the turmoil. The values of firms in the security business have risen, but otherwise, as one investment strategist says:

“‘Right now it’s limited enough that it’s not perceived as having a meaningful economic impact,’ said Willie Delwiche, investment strategist at Baird. ‘The risk to the market right now is excessive optimism,’ and headlines from protests could simply be dampening that optimism a bit, he added.”

The riots are destructive of lives and economic value, and while we mourn those caught up in these tragedies, the situation does not portend a total social collapse. The overall impact on the U.S. economy expected by markets is not of a magnitude suggesting great instability. This too shall pass, though not easily for the small businesses and employees being ruined by the double jolt of lockdowns and riots.

Besides the outright harm to the black community by the riots, there are other disturbing elements that must be confronted. I keep hearing “White silence = violence”. No, “white silence” is neither responsible for the actions of George Floyd’s killer nor the riots in the streets. What must one say to avoid personal responsibility for the aberrant behavior of Derrick Chauvin and the rioters? What I hear are ignorant excuses and accusations: the violence is inexcusable and it is no one’s fault but the participants, whatever their circumstances.

People of good faith oppose the brutality inflicted by bad cops and a system that tolerates them. It is surely time for some reforms, as the following suggests:

And there are still other promising criminal justice reforms to consider. We need to end the drug war, which is particularly harmful to minority communities.

I bemoan the poor circumstances and education that have burdened many of the disaffected protesters, and even the rioters. I advocate for policies that I believe promote improved education and family stability. I have advocated for a safety net. I have shared my distaste for the unnecessary COVID-19 lockdowns that forced so many of these individuals out of their jobs for several months. But from some quarters, the demands have no end. Not until I bow down on my hands and knees to apologize for the sins of generations past. Who cares if they weren’t my ancestors? I’m white! The next demand is reparation payments to today’s generations of blacks. Don’t complain that impoverished whites won’t share in the gains, though there are more than twice as many of them. They simply failed to capitalize on the opportunity afforded by their privilege. I’m sorry for the sarcasm….

Please mourn George Floyd’s horrible death and support the protests against the brutality that killed him, but do not pretend for a moment that the violence is in any way justified, or that it will create a healthier society. Don’t root for that shit. And don’t cast aspirations at your fellow men and women as if the color of their skin is responsible for the social ills you’ve taken up as a cause. It does nothing to further solutions.

Left’s Pandemic Response: Politics As Usual

17 Tuesday Mar 2020

Posted by in Health Care, Pandemic, Regulation

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The Left asserts that President Trump dismissed and dismantled the nation’s Pandemic Response Team. That’s bullshit. So is the claim that the CDC was defunded. The news media and certain pundits have helped to feed this narrative. Or, as Glenn Reynolds calls those pundits, “Democrat operatives with bylines”.

First of all, the team in question was not at the CDC, a fact that hasn’t always been clear from the commentary on this issue. It was a team of White House overseers at the National Security Council’s “Directorate for Global Health Security and Biodefense”. What happened was this: the senior director of that team resigned after John Bolton was appointed to head the NSC. Bolton might have wanted him out, but what we know is the director resigned. Subsequently, that team was folded into another directorate as part of an long-overdue consolidation. Health experts from the team remain on the NSC staff today. Yet Sen. Sherrod Brown (D-OH)—and many others since—had the temerity to charge that Trump had fired “the entire Whilte House pandemic team”. Well, at least he didn’t imply that it was the CDC.

Tim Morrison wrote the following in the Washington Post yesterday:

“Because I led the very directorate assigned that mission, the counterproliferation and biodefense office, for a year and then handed it off to another official who still holds the post, I know the charge is specious. …

When I joined the National Security Council staff in 2018, I inherited a strong and skilled staff in the counterproliferation and biodefense directorate. This team of national experts together drafted the National Biodefense Strategy of 2018 and an accompanying national security presidential memorandum to implement it; an executive order to modernize influenza vaccines; and coordinated the United States’ response to the Ebola epidemic in Congo, which was ultimately defeated in 2020.”

This assessment at Brietbart.com quotes former senior NSC official Richard Goldberg:

“Weird. A year later I was inside the NSC working with talented global health/biodefense professionals who coordinated an incredibly effective response to Ebola. They’re still there. Working hard. On .”

It’s true that Bolton sought to eliminate red tape, duplication, and bureaucracy within the NSC, and that was wholly justified. According to Morrison, the NSC staff quadrupled from the 1990s through the second Obama term. Pandemics are supposed to be the CDC’s purview, but the proliferation of administrative layers is what happens as government grows uncontrollably. Leslie Eastman at Legal Insurrection questions whether the U.S. needs a permanent “Pandemic Response Team” in the White House. She quotes GOP Chairwoman Ronna McDaniel:

“JAN 7: CDC established a coronavirus incident management system, two days before China announced the outbreak. … Pelosi began Week 3 of withholding her sham impeachment articles. 

JAN 21: The CDC activated its emergency operations center to provide ongoing support to confront coronavirus. …What were Congressional Democrats focused on? Writing their opening arguments for their bogus impeachment trial.”

Well, bully for the CDC. As for “defunding the CDC”, the facts are this: the proposed budget submitted to Congress by the Trump Administration in February, but never passed, did indeed include cuts to the CDC’s budget, which has grown over the years as it expanded its mission from fighting infectious diseases to matters like obesity, racism, and questions of social justice. The cuts proposed by Trump, however, were primarily to state grants. Actually, the proposal called for increased CDC staffing, and it funded all programs related to infectious diseases. But no matter, because that proposal is unlikely to become part of any appropriations bill that would pass Congress.

True to form, the Left plays politics in the middle of a national crisis. When the Trump Administration told airlines that it was considering banning flights from China in late January, it was called racist. Now, of course, he hasn’t done enough. A huge irony, however, is that Trump’s biggest mistake was in trusting the FDA and the CDC’s authority to develop and regulate testing for the coronavirus. They botched it. In a classic case of over-regulation, they prohibited hospitals and labs from conducting tests developed privately or by academic researchers, insisting that everyone wait for the “approved” test to be distributed. Then, the test they released in early February was flawed, costing additional weeks before testing was available.

 

Living Constitution, Dying Liberty

14 Saturday Mar 2020

Posted by in Living Constitution, Originalism

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What would a “living Constitution” mean if the right wing “gave it life”, as it were? Your answer ought to reveal a truth you’ve probably overlooked if you’re a “living constitutionalist”.

The U.S. Constitution protects the rights of individuals against the coercive power of the state. It offers a thorough bulwark against that power not only by enumerating certain rights, such as the rights to free speech and free association, but also by recognizing the existence and sanctity of a complementary set of unenumerated rights. The Ninth Amendment states:

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” 

The nearly 250 years since the nation’s founding have seen a debate in judicial case law about whether the Constitution should be interpreted based on its original language, or whether modern social and technological realities should change the way it is interpreted. This pits constitutional “originalists” against advocates of a so-called “living Constitution”.

Antiquated? Or Inconvenient?

For example, there is disagreement about whether the Second Amendment right to bear arms is broad, or limited to certain very small arms, or whether it should permit no private ownership of arms at all. Another example: do modern sensitivities men that constitutionally unprotected “fighting words” now encompass opinions that are merely controversial? Do expressions of support for such policies as flexible wages really fall under the rubric of racism, “hate speech”, or fighting words? Here’s one more: does the (unenumerated) right to life allow the state (and so the law) to claim a greater interest in protecting the contentment of a healthy, but reluctant, prospective mother than in the life of her unborn child?

Three years ago, Randy Barnett asked a question about the living constitution amid the debate over the confirmation of Justice Neal Gorsuch, an avowed originalist. Barnett asked:

“Why would you possibly want a nonoriginalist ‘living constitutionalist’ conservative judge or justice who can bend the meaning of the text to make it evolve to conform to conservative political principles and ends? However much you disagree with it, wouldn’t you rather a conservative justice consider himself constrained by the text of the Constitution like, say, the Emoluments Clause?”

That question was followed-up recently by Glenn Reynolds: his thought experiment asks how a right-wing majority might fashion a “living Constitution”, an exercise that should chasten “living constitutionalists” on the Left. He first notes that efforts to fight terrorism can become a real threat to civil liberties. As such, they represent a form of living constitutionalism. Will your on-line behavior and your phone calls be closely monitored, perhaps searching for various keywords? Will formerly unreasonable searches and seizures be sanctioned by an anti-terror, living Constitution? We haven’t gone very far in that direction, even in the immediate aftermath of 9/11, but it’s easy to imagine a wave of support for such a revision under certain circumstances.

We’ve certainly witnessed erosions of civil liberties under the so-called “War on Drugs”. The courts have not always stood in the way of extra-Constitutional actions by law enforcement. A right-wing living Constitution might sanction certain searches, seizures, and confiscation of private property, to say nothing of the intrusion into the choices of individuals to use drugs privately. The same is true of the “War on Prostitution”.

Imagine a right-wing judiciary interpreting various forms of audio, video, and virtual reality content as violations of standards of “decency”. Imagine a case involving a restrictive FCC ruling of this nature, and the Court finding the FCC’s censorship constitutional at the federal level, not merely at a community’s level.

Imagine state legislation that forces the Court to weigh-in on whether federalism and states’ rights outlined in the Tenth Amendment outweigh the federal regulatory powers conferred by Article I’s Interstate Commerce Clause. Crazy? Maybe, but a conservative Court could decide that such an interpretation could permit state taxes, pollutants, or other restrictions on residents or businesses domiciled in other states.

Originalism? Or “Stretch” Originalism?

Reynolds mentions a few other possibilities, but without more detail, some of these examples seem muddled because the hypothetical interpretations could, conceivably, represent sound originalism, as opposed to conservative distortions of original intent. But perhaps these are all matters of degree, rather than kind. This includes the possibility of a conservative Court rolling back New Deal Court decisions related to price supports, wage supports, labor practices, and Social Security.

The same ambiguity applies to Reynolds’ brief discussion “one-man, one-vote” decisions of the 1960s, which leaned upon the Fourteenth Amendment’s Equal Protection Clause to effectively prohibit states from apportioning either congressional districts or state legislative districts in any way other than proportional representation. This can result in discrimination against certain interests in states having diverse geographies with dissimilar economies or cultures. A conservative court might well chip away at the one-man, one-vote principle out of deference to original intent. This might not be an unreasonable interpretation of the unenumerated powers of states contemplated by the Tenth Amendment.

Then there are so-called reproductive rights. The pro-abortion Left would be aghast, but not surprised, to see a conservative court reverse key decisions that have been made in their favor. The rights to “life, liberty and the pursuit of happiness” are mentioned explicitly in the Declaration of Independence, but not the Constitution. Nevertheless, they are presumed to be among those unenumerated rights recognized by the Ninth Amendment. Thus, with respect to abortion, the dividing line between original intent and living-constitutional overreach by a conservative Court is somewhat muddy. But in the view of the Left, a conservative Court might well reach radical decisions regarding the right to life.

Conclusion

The Constitution exists as a set of governing principles, but the founders’ intent was to  shield rights from fickle waves of majoritarianism, or even would-be despots. You might despise conservatism or statism, but this recognition should serve as a warning to heed the original text and its intent, not to view it as a mere nuisance to the interests of one’s agenda and fellow travelers.

I’ll close with Reynolds’ admonition to “living constitutionalists” of the Left:

“All of these [decisions] would be catastrophic for the left, and I’m sure I could come up with many more examples given time and space. Fortunately for the left, Judge Gorsuch appears to be devoted to interpreting the Constitution as it was understood by the Framers (in terms of its ‘original public meaning,’ to use the law professor definition), and not to embracing a living Constitution. … But my advice to those on the left attacking originalist approaches is this: Be careful what you ask for, because you won’t like it if you get it.”

The Federal Reserve and Coronatative Easing

09 Monday Mar 2020

Posted by in Monetary Policy, Pandemic

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Laughs erupted all around when the Federal Reserve reduced its overnight lending rate by 50 basis points last week: LIKE THAT’LL CURE THE CORANAVIRUS! HAHAHA! It’s easy to see why it seemed funny to people, even those who think the threat posed by Covid-19 is overblown. But it should seem less silly with each passing day. That’s not to say I think we’re headed for disaster. My own views are aligned with this piece by Michael Fumento: it will run its course before too long, and “viruses hate warm weather“. Nevertheless, the virus is already having a variety of economic effects that made the Fed’s action prudent.

Of course, the Fed did not cut its rate to cure the virus. The rate move was intended to deal with some of the economic effects of a pandemic. The spread of the virus has been concentrated in a few countries thus far: China, Iran, Italy, and South Korea. Fairly rapid growth is expected in the number of cases in the U.S. and the rest of the world over the next few weeks, especially now with the long-awaited distribution of test kits. But already in the U.S., we see shortages of supplies hitting certain industries, as shipments from overseas have petered. And now efforts to control the spread of the virus will involve more telecommuting, cancellation of public events, less travel, less dining out, fewer shopping trips, missed work, hospitalizations, and possibly widespread quarantines.

The upshot is at least a temporary slowdown in economic activity and concomitant difficulties for many private businesses. We’ve been in the midst of a “flight to safety”, as investors incorporate these expectations into stock prices and interest rates. Firms in certain industries will need cash to pay bills during a period of moribund demand, and consumers will need cash during possible layoffs. All of this suggests a need for liquidity, but even worse, it raises the specter of a solvency crisis.

The Fed’s power can attempt to fill the shortfall in liquidity, but insolvency is a different story. That, unfortunately, might mean either business failures or bailouts. Large firms and some small ones might have solid business continuation plans to help get them through a crisis, at least one of short to moderate duration, but many businesses are at risk. President Trump is proposing certain fiscal and regulatory actions, such as a reduction in the payroll tax, wage payment assistance, and some form of mandatory paid leave for certain workers. Measures might be crafted so as to target particular industries hit hard by the virus.

I do not object to these pre-emptive measures, even as an ardent proponent of small government, because the virus is an externality abetted by multiplicative network effects, something that government has a legitimate role in addressing. There are probably other economic policy actions worth considering. Some have suggested a review of laws restricting access to retirement funds to supplement inadequate amounts of precautionary savings.

Last week’s Fed’s rate move can be viewed as pre-emptive in the sense that it was intended to assure adequate liquidity to the financial sector and payment system to facilitate adjustment to drastic changes in risk appetites. It might also provide some relief to goods suppliers who find themselves short of cash, but their ability to benefit depends on their relationships to lenders, and lenders will be extremely cautious about extending additional credit as long as conditions appear to be deteriorating.

In an even stronger sense, the Fed’s action last week was purely reactive. Scott Sumner first raised an important point about ten days before the rate cut: if the Fed fails to reduce its overnight lending target, it represents a de facto tightening of U.S. monetary policy, which would be a colossal mistake in a high-risk economic and social environment:

“When there’s a disruption to manufacturing supply chains, that tends to reduce business investment, puts downward pressure on demand for credit. That will tend to reduce equilibrium interest rates. In addition, with the coronavirus, there’s also a lot of uncertainty in the global economy. And when there’s uncertainty, there’s sort of a rush for safe assets, people buy treasury bonds, that puts downward pressure on interest rates. So you have this downward pressure on global interest rates. Now while this is occurring, if the Fed holds constant its policy rate, it targets the, say fed funds rate at a little over 1.5 percent. While the equilibrium rates are falling, then essentially the Fed will be making monetary policy tighter.

… what I’m saying is, if the Fed actually wants to maintain a stable monetary policy, they may have to move their policy interest rate up and down with market conditions to keep the effective stance of monetary policy stable. So again, it’s not trying to solve the supply side problem, it’s trying to prevent it from spilling over and also impacting aggregate demand.”

The Fed must react appropriately to market rates to maintain the tenor of its policy, as it does not have the ability to control market rates. Its powers are limited, but it does have a responsibility to provide liquidity and to avoid instability in conducting monetary policy. Fiscal actions, on the other hand, might prove crucial to restoring economic confidence, but ultimately controlling the spread of the virus must be addressed at local levels and within individual institutions. While I am strongly averse to intrusions on individual liberty and I desperately hope it won’t be necessary, extraordinary measures like whole-city quarantines might ultimately be required. In that context, this post on the effectiveness of “non-pharmaceutical interventions” such as school closures, bans on public gatherings, and quarantines during the flu pandemic of 1918-19 is fascinating.

 

 

 

 

 

The Leninists Among Us

29 Sunday Sep 2019

Posted by in Leftism, Marxism, Tyranny

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I suggested recently that the pursuit of zero-sum gains, and zero-sum thinking generally, is a form of social rot. How timely that Gary Saul Morson has offered this interesting essay on “Leninthink” in the October issue of The New Criterion. It validates my conviction that a zero-sum view of the world invites social brutalism and economic cannibalism. Vladimir Ilyich Ulyanov, better known as Vladimir Lenin, was of course the first premier of the Soviet Union after the Bolshevik Revolution in 1917. His philosophy was a practical derivative of Marxism, a real-world implementation of a “dictatorship of the proletariat“. Morson describes Lenin’s view of social relations thusly:

“Lenin regarded all interactions as zero-sum.To use the phrase he made famous, the fundamental question is always ‘Who Whom?’—who dominates whom, who does what to whom, ultimately who annihilates whom. To the extent that we gain, you lose. Contrast this view with the one taught in basic microeconomics: whenever there is a non-forced transaction, both sides benefit, or they would not make the exchange. For the seller, the money is worth more than the goods he sells, and for the buyer the goods are worth more than the money. Lenin’s hatred of the market, and his attempts to abolish it entirely during War Communism, derived from the opposite idea, that all buying and selling is necessarily exploitative. When Lenin speaks of ‘profiteering’ or ‘speculation’ (capital crimes), he is referring to every transaction, however small. Peasant ‘bagmen’ selling produce were shot.

Basic books on negotiation teach that you can often do better than split the difference, since people have different concerns. Both sides can come out ahead—but not for the Soviets, whose negotiating stance John F. Kennedy once paraphrased as: what’s mine is mine; and what’s yours is negotiable. For us, the word ‘politics’ means a process of give and take, but for Lenin it’s we take, and you give. From this it follows that one must take maximum advantage of one’s position. If the enemy is weak enough to be destroyed, and one stops simply at one’s initial demands, one is objectively helping the enemy, which makes one a traitor. Of course, one might simply be insane. Long before Brezhnev began incarcerating dissidents in madhouses, Lenin was so appalled that his foreign minister, Boris Chicherin, recommended an unnecessary concession to American loan negotiators, that he pronounced him mad—not metaphorically—and demanded he be forcibly committed. ‘We will be fools if we do not immediately and forcibly send him to a sanatorium.'”

The ruthlessness of Lenin’s mindset was manifested in his unwillingness to engage in rationalizations or even civil debate:

“Lenin’s language, no less than his ethics, served as a model, taught in Soviet schools and recommended in books with titles like Lenin’s Language and On Lenin’s Polemical Art. In Lenin’s view, a true revolutionary did not establish the correctness of his beliefs by appealing to evidence or logic, as if there were some standards of truthfulness above social classes. Rather, one engaged in ‘blackening an opponent’s mug so well it takes him ages to get it clean again.’ Nikolay Valentinov, a Bolshevik who knew Lenin well before becoming disillusioned, reports him saying: ‘There is only one answer to revisionism: smash its face in!’

When Mensheviks objected to Lenin’s personal attacks, he replied frankly that his purpose was not to convince but to destroy his opponent. In work after work, Lenin does not offer arguments refuting other Social Democrats but brands them as ‘renegades’ from Marxism. Marxists who disagreed with his naïve epistemology were ‘philosophic scum.’ Object to his brutality and your arguments are ‘moralizing vomit.’ You can see traces of this approach in the advice of Saul Alinsky—who cites Lenin—to ‘pick the target, freeze it, personalize it.'”

This offers a useful perspective on why it’s so difficult to have civil discussions with leftists today. They have inherited versions of Lenin’s polemic style. You’re more likely to be verbally attacked by the Left than to be engaged in a productive exchange of ideas, as I’m constantly reminded by observing the behavior of SJWs on social media. Leftist retribution is swift. Glenn Reynolds has mused, “As the old saying has it, the left looks for heretics and the right looks for converts, and both find what they’re looking for.” That might be too optimistic!

The richest source of zero-sum gains is through the levers of government, which possesses the necessary coercive power to achieve that aim. When coercive power is so ruthlessly exercised, the appearance of loyalty to those in power becomes paramount for survival. This can make it necessary to display an outward acceptance of fanciful claims:

“Lenin’s idea that coercion is not a last resort but the first principle of Party action. Changing human nature, producing boundless prosperity, overcoming death itself: all these miracles could be achieved because the Party was the first organization ever to pursue coercion without limits. In one treatise Stalin corrects the widespread notion that the laws of nature are not binding on Bolsheviks, and it is not hard to see how this kind of thinking took root. And, given an essentially mystical faith in coercion, it is not hard to see how imaginative forms of torture became routine in Soviet justice.

Dmitri Volkogonov, the first biographer with access to the secret Lenin archives, concluded that for Lenin violence was a goal in itself. He quotes Lenin in 1908 recommending ‘real, nationwide terror, which invigorates the country and through which the Great French Revolution achieved glory.'”

Morson provides this revealing quote from the madman Lenin himself:

“The kulak uprising in [your] 5 districts must be crushed without pity. . . . 1) Hang (and I mean hang so that the people can see) not less than 100 known kulaks, rich men, bloodsuckers. 2) Publish their names. 3) Take all their grain away from them. 4) Identify hostages . . . . Do this so that for hundreds of miles around the people can see, tremble, know and cry . . . . Yours, Lenin. P. S. Find tougher people.”

At least today the Lefties try to dox people first, rather than #2. The hanging might have to come later.

There is a real danger in encouraging such zero-sum notions as redistribution and class warfare. Even today’s preoccupation with identity politics is one of zero-sum emphasis. Furthermore, the concepts of mass victimization and social justice promote a delusion of righteousness, a necessary precondition to the kind of monstrous acts of a Lenin. Anyone truly interested in promoting an atmosphere of social cooperation should recognize the echos of Leninism we see today from Leftists on social media and in the streets. These tyrants must be resisted before we’re all on the wrong side of the ultimate zero sum outcome.

Evil HR: Organizational Fetters, Social Fabians

27 Wednesday Feb 2019

Posted by in Identity Politics, Progressivism, Social Justice

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It is with deepest apologies to my friends in Human Resources (HR) that I admit to a long-standing bias: HR can exert a corrosive influence on a company’s ability to serve customers well and profit at it. I’m sure there are exceptions, but HR often pursues missions that are incompatible with the firm’s primary objectives. I’ve had my own difficulties with HR at employers for whom I’ve worked, and those have been of a mere bureaucratic variety. Today, the dysfunction goes much deeper. Many HR departments are engaged in a sort of Fabian gradualism, subverting free enterprise from within and promoting the doctrine of social justice.

Here are a few reasons for casting a skeptical eye on the contributions of HR:

  • It adds little value in screening applicants for certain kinds of jobs, helping to explain why so many job matches occur via professional networks and external recruiters.
  • I have witnessed HR scuttle simple plans to add interns, paid or unpaid, asserting that our department had no authority to institute such a program.
  • HR dreams up ridiculously ambiguous and complex performance assessment methods, which in the end make very little difference in the structure of rewards.
  • HR insists that “promoting diversity” is a key component of every job assessment, forcing staff to engage in written exercises of creative fluffery.
  • It creates incentives that distort hiring and firing decisions based on demographic characteristics rather than actual job qualifications and performance.
  • HR requires staff time for “diversity training”, an effort that is often resented as an insulting and patronizing intrusion on the time employees have to do their jobs.
  • HR emphasizes rewards to “stakeholders”, with little deference to the primacy of shareholders. It’s one thing for a company to maximize its value proposition to customers and prospects and to provide employees with handsome incentives. Those are fully consistent with maximizing the value of the firm. But “stakeholders” includes … just about everyone. Come and get it!
  • And HR relentlessly promotes the creed of “corporate social responsibility“, which ultimately involves a high order of virtue signaling on environmental and other social issues having little to do with the firm’s business.

It is true that HR is tasked with responsibilities that include minimizing a company’s exposure to various legal and regulatory risks. For example, one objective is to avoid any appearance of “disparate impact”. Even policies having a legitimate business purpose might be challenged if results have a statistical association with demographic characteristics. It’s an unfortunate fact that through efforts to manage that risk, HR serves as a spearhead of government intrusion into the affairs of private companies.

HR has thus become a tool through which collectivist ideals infiltrate business practices, to the detriment of the firm’s performance. These are exactly the kinds of things meant by Fast Company when they say HR isn’t working for you.  

Kyle Smith makes no bones about it: companies should simply fire their HR departments. And many can do just that by outsourcing HR functions. Smith’s arguments are couched in the most practical of terms:

“They speak gibberish.” Yes they do. Nowhere is corporate-speak more pervasive than in HR, where they’ll tell you that the organization’s “core competences” must be “leveraged” via “best practices” by “empowered contributors” within “centers of excellence”.

“They revel in red tape.” To paraphrase Smith, HR could rightfully be renamed “Compliance Resources”. These “paper pushing” functions are drivers of bloat and cost escalation, a manifestation of the familiar cost disease endemic to all bureaucracies.

“They live in a bubble.” HR managers have an inflated view of their role in the organization. Smith quotes an HR executive: ”The organization reports to us. It must meet our demands for information, documents, numbers.” Sounds like a classic central planner. Unfortunately, many companies acquiesce to the tyranny of HR bureaucrats, much to their detriment. But Smith’s point here is that HR executives are often out of touch with the way employees truly feel about the company for whom they work, with an exaggerated view of employee enthusiasm. Yet those executives are given responsibilities for which they should know better.

“They aren’t really in your business.” The skill emphasized as most important for success in HR is communications skills, according to Smith (“… what you and I call talking.“) Knowledge of finance, engineering or technology is noncritical. Fair enough, you might say: their role is different, but this goes a long way toward explaining why HR generally fails so miserably in evaluating job candidates. Can you really expect them to craft policies designed to optimize a business’ use of professional talent?

Jordan Peterson takes an extremely dim view of HR. I share his concern that HR, and HR policies, have a tendency to become heavily politicized. Ultimately, this cannot be of value to a competitive firm. As Glenn Reynolds likes to say, “Get woke, go broke“. Peterson’s perspective is societal, however, and he goes so far as to say HR departments are “dangerous”:

“I see that the social justice etiology that’s destroyed a huge swath of academia is on the march in a major way through corporate America. …

… they’ve become ethics departments. And people who take to themselves the right to determine the propriety of ethical conduct end up with a lot more power — especially if you cede it to them — than you think. And that’s happening at a very rapid rate.

The doctrines that are driving hiring decisions, for example — any emphasis, for example, on equity, or equality of outcome — it’s unbelievably dangerous. You don’t just pull that in and signal to society that you’re now acting virtuously without bringing in the whole pathological ideology.”

The value extracted from firms in the service of achieving “social justice” is essentially stolen from its rightful owners. The penalties don’t end with shareholders; employees and suppliers lose a measure of security from a weakened firm, and customers may suffer a loss in the quality of the product. It is as if reparations must be made to parties who are completely external to, and completely unharmed by, the success of the business.

It’s little wonder that companies are outsourcing their HR functions. A classic case is the use of recruiting firms that specialize in identifying talent in particular professions. Another is the outsourcing of benefits management, and there are other functions that can be farmed out. Eliminating bureaucratic bloat is often a focus of firms seeking to rationalize HR. Ultimately, a leaner HR department improves cost control, and keeping it lean reduces its latitude to divert company resources toward endeavors that promote the philosophy of collectivism.

“Othered” By the Left

31 Thursday Jan 2019

Posted by in fascism, Identity Politics, Progressivism

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Progressivism certainly has its discards. The photo showed a trash bin labeled “CATHOLIC DUMPSTER”. Dead bodies were hanging out of the top. A “friend” had posted it on Facebook, ostensibly as humor. I thought it was in poor taste and had the temerity to say so in a comment; naturally I was immediately castigated by a mob for expressing that opinion. The “friend” said that if I really knew him, I’d realize that he loves everyone. That claim was quickly undermined by his partner, who joined the exchange to spew vitriol for Christians. A wiser person on the thread, perhaps detecting a whiff of hypocrisy, noted the likely outrage had the label on the trash bin said “JEWISH DUMPSTER”. Well yes…. Er, maybe. The political Left, it seems, is drifting ever closer to anti-Semitism as well as radical intolerance for Christians. This in addition to outright hostility toward whites, men, or anyone perceived as having “privilege”. The rhetoric is becoming increasingly hateful, vile, and violent.

A recent confrontation in front of the Lincoln Memorial wrapped together several objects of leftist hatred. It involved boys from Covington Catholic High School and left-wing activist Nathan Phillips, an Omaha Indian, as well as a group of black nationalists called the Black Hebrew Israelites. The Covington boys are white, male, Catholic, pro-life, and they wore MAGA caps. They were passive except for chants intended to drown-out shouts of “faggots” from the Black Israelites, but the media almost uniformly portrayed the boys as racist villains in the immediate aftermath, based on incomplete video evidence. It is difficult to ascertain who released the original video, but a longer version proved that the boys were not at fault. Meanwhile, Phillips proved to be a bald-faced liar. He lied about the sequence of events, the behavior of the boys, and about having served in Vietnam. But those lies fueled a media narrative as well as the fertile imaginations of many leftists. The full video reveals that Phillips marched from some distance straight up to one of the teenagers and proceeded to bang a drum in the kid’s face. The boy maintained his composure and kept a calm smile on his face. Later, however, that smile was cited as proof of racism!

A few members of the media retracted the awful things they said about the teenagers and the incident, but others continue to allege that the Covington teenagers were at fault, or that they at least share the blame. Some of the rhetoric is no less hateful than before the full video became available. This is a far cry from the heartfelt entreaties to avoid criticism of any controversial opinions expressed by “the children” in the wake of the Parkland High School shooting. In the present case. the kids have been targeted with a slew of insults and threats to themselves and their families.

Regarding the MAGA caps, I am by no means a Trump enthusiast, but I root for him to do well as our president despite my strong disapproval of some of his policies. You won’t ever catch me in a MAGA cap. However, I do not believe that he and his political base are racist. Trump is an equal opportunity denigrator, but he’s called a racist every time his target happens to be a person of color, as though people of color are always above criticism. Trump is called a racist for his promise to build a wall along the Mexican border to stem illegal crossings, though the same proposal has been offered by many Democrats over the years, including Barack Obama and Check Schumer. Therefore, the very idea that wearing a MAGA cap is a racist signal is transparently political and absurd. That some of the Covington boys wore MAGA caps has reinforced other excuses to target them for vicious criticism.

A further issue is that the Covington boys are privileged, you see, guilty of possessing white, male privilege, even as they defended a black classmate harangued by the Black Israelites. They attend a private school, and so they must be from wealthy families and worthy of progressive hatred. They were in DC for the March for Life, so they are opposed to reproductive choice and must hate women. In fact, it’s been alleged that they were in DC only to oppose the Women’s March. Misogynists!

Hatred for Catholics and for anyone who has attended private schools is always de rigueur on the Left. That was quite clear during the Brett Kavanaugh confirmation hearings. Hatred gushed from the Left not only because they were satisfied of Judge Kavanaugh’s guilt based on unsubstantiated, 11th-hour allegations leveled against him by an SJW, but apparently also because he attended a Catholic boys school! Oh, and he is male. I have another “friend” whose Facebook feed was littered with smears of Kavanaugh, including characterizations of private school kids as “smug little weasels”. As Caroline Lewis said at the time, these “critics” are barbarians. Do you think they don’t want to hurt those they’ve “othered”, or want someone else to hurt them in one way or another? The boundaries of grievance always expand, and will keep expanding until they eat their own.

David French claims that his defense of Christian education prompted an activist to start the #ExposeChristianSchools hashtag. Now, I’m sure everyone who has attended public or private schools can repeat a litany of stories about a few awful teachers they were forced to endure, not to mention the hostile environment that school children often create for one another. But private schools, and religious schools, are often superior options for parents and children. If you don’t like the curriculum, don’t send your kids there. If you don’t think the policies are sufficiently inclusive, or the environment will be unhealthy for your child, then send them elsewhere. But the vilification of an entire segment of the population based on how they choose to educate their children is despicable. They’d ban Christian education if they could… and religion!

Note that the Left’s insistence on state domination is itself a threat of violence. While capitalism and free markets are cooperative in nature, socialism is at its core authoritarian and coercive. If you resist you become an enemy of “the people”, and such enemies will have consequences to pay.

Antifa is unashamedly violent, but it might be only the tip of the iceberg. The rhetoric of the Left has become increasingly hostile toward Christians, Jews, males, whites, Republicans, and of course anyone achieving material success. There is no forgiveness nor genuine love of others in leftist doctrine. Indeed, the “otherism” inherent in leftist identity politics is dangerous and a source of increasing social instability. Their “eliminationist rhetoric” is becoming all too common (scroll down at the link).

For now I’ll continue to engage in the marketplace of ideas. Perhaps it’s becoming a war. Us “others” need to keep voting and never back down. And by all means, be prepared to defend ourselves and our loved ones by any means necessary.

 

 

 

 

 

Bad Idea: Campaign Finance Reform

25 Friday Jan 2019

Posted by in Campaign Finance, Free Speech

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Everyone seems to hate money in politics, and nearly everyone says campaign finance reform is needed to eliminate political corruption… nearly. Money in politics is blamed for allowing powerful interests to “buy” seats in the legislature, or in executive positions, as well as “tit-for-tat” influence over pieces of legislation. But not so fast: attempts at campaign finance regulation in the past have been largely unsuccessful in achieving their goals. Furthermore, campaign finance reforms may have perverse consequences, which I’ll discuss below. More importantly, while “taking money out of politics” sounds noble to many, it starkly implies abrogation of First Amendment rights. Far from “leveling the playing field”, there is a great danger that it would lead to suppression of minority opinions. For those reasons. it’s better to consider other means of ensuring that elected officials behave even-handedly in attending to their duties.

Protected Speech

Former Congressman Ron Paul is highly skeptical that any good can come of campaign finance legislation:

“…campaign finance reform legislation does not limit the influence of powerful special interests. Instead, it violates the First Amendment and burdens those seeking real change in government.”

Here is David Harsanyi on the same point:

“Reducing the power of ‘special interests’ in Washington is always a popular issue with voters. The problem, of course, is that every voter considers another group a special interest. … specific campaign finance reform legislation is always about inhibiting someone’s speech.”

Government attempts to curb speech are bad enough, but there is also interest in subsidizing speech arising from certain quarters. Harsanyi is rightly critical of a House bill that proposes to do just that, and Nancy Pelosi has promised to bring the bill to the floor. Among other things, it would authorize a 6-to-1 federal match of small-dollar campaign donations so as to promote “grass-roots” electoral efforts. It is quite simply a bad idea to create a mechanism whereby government bureaucrats can manipulate campaign funding, potentially favoring certain kinds of speech, via the explicit use of funds from taxpayers who might well blanche at the thought of funding certain campaigns.

The bill would also impose new disclosure requirements on large contributions to 501(c)(4) organizations, which qualify as “social welfare” groups under the tax code, and whose “primary” purpose is not campaign-related. To this he says:

“… this obsession with eliminating anonymity is also a transparent attempt to chill speech and undermine minority opinions.”

Let’s face it: to complain about the use of money in promoting speech is to complain about speech itself. We can all speak out loud, but one can’t hope to spread a message broadly without bringing resources to bear on the effort. That’s true whether you are printing, broadcasting, or spreading messages on social media. It almost always takes staff, including creative talent, equipment, media buying power, and usually office space. If you don’t have the requisite resources then you must hustle, press flesh, cajole members of the media, and join with other like-minded individuals, especially those who might agree to commit resources.

Barring a monopoly on speech, choosing a particular scale at which speech becomes unacceptable is itself a denial of the right to free speech. And that right can be exercised by individuals and by associations of individuals. As to the latter, the form of association makes no difference: the union, nonprofit, and for-profit corporate forms are all valid associations through which individuals can speak as one, just as all for-profit media corporations have always exercised their First Amendment rights. That was the Supreme Court’s ruling in Citizen’s United vs. Federal Election Commission (FEC) in 2009, which remains oddly controversial. Again, if you think the ability to speak from a large platform is too much, then you are also willing to restrict speech by for-profit newspapers and television networks, and you are a tyrant.

Money and Electoral Success

In any case, virtually all campaign contributions originating in the for-profit corporate sector come from employee political action committees (PACs), not from corporations themselves. And since Citizen’s United, there’s been little uptick in campaign contributions from for-profit corporations. In fact, according to this report on campaign finance, unions have been much more aggressive than businesses in leveraging the Citizen’s United decision. The report also demonstrates the unsurprising fact that incumbents tend to spend much more on elections than their challengers. However, the authors note that across incumbents, greater spending is associated with lower vote shares, while the reverse is true across challengers. That just means, however, that incumbents must spend a lot to defeat a serious challenger.

Jeffrey Milyo made the last point more than 15 years ago:

“Most systematic studies, however, find no effect of marginal campaign spending on the electoral success of candidates … How can this be so? The best explanation to date is that competent candidates are adept at both convincing contributors to give money and convincing voters to give their vote. Consequently, the finding that campaign spending and electoral success are highly correlated exaggerates the importance of money to a candidate’s chances of winning.”

There is also a lack of evidence that politicians trade their votes for campaign contributions:

“… donors tend to give to like-minded candidates. Of course, if candidates choose their policy positions in anticipation of a subsequent payoff in campaign contributions, there would be no real distinction between accepting bribes and accepting contributions from like-minded voters. However, studies of legislative behavior indicate that the most important determinants of an incumbent’s voting record are constituent interests, party, and personal ideology.”

A tremendous disparity exists between public perceptions of the importance of money in political campaigns and the actual magnitude of campaign spending. Again, from Milyo:

“If campaign contributions do not buy favors, then why is so much money spent on politics? In fact, scholars of American politics have long noted how little is spent on politics. Consider that large firms spend ten times as much on lobbying as their employees spend on campaign contributions through PACs, as individuals, or in the form of unregulated contributions to political parties (i.e., soft money).”

Milyo’s article was written well before the Citizen’s United decision. At the time it was still illegal for corporations to make campaign contributions, but that seems to have made little difference.

In an Appeals Court decision in 2010, Independent Expenditure Committees (Super PACs) won the right to accept contributions from corporations and individuals beyond federal limits. Super PACs, however, are technically prohibited from coordinating their activities with political candidates for federal office. In fact, Super PACs have been known at times to work at cross-purposes to the political parties whose candidates they generally favor. Furthermore, there is very little evidence that corporate contributions provide more than a small share of Super PAC funds, not even via “dark money” contributions via 501(c) organizations.

Futile Reforms 

Ron Paul (linked above) notes that powerful interests will always find ways to support policies by which they stand to profit. Those interests often benefit from regulatory policies that create burdens for smaller competitors, spending programs that bring fat government contracts, and subsidies in support of favored activities or technologies. However, restricting campaign finance is a particularly troubling and ineffective approach to combating these efforts. As Milyo says:

“The consensus among academic researchers is that money is far less important in determining either election or policy outcomes than conventional wisdom holds it to be. Consequently, the benefits of campaign finance reforms have also been exaggerated.”

Beyond the lack of evidence that reform is needed, Milyo argues that restrictions on campaign contributions may have nasty unintended consequences. First, cross-sectional studies across states have shown that limits on contributions lead to less electoral competition and lower voter turnout. Second, less campaign advertising reduces interest and awareness of candidate positions among voters, also suppressing turnout. Finally, there is a real danger that incumbents can manipulate reform legislation in order to create electoral barriers to potential challengers.

Alternatives

There may be better ways to reduce the influence of moneyed interests on policy than campaign finance reforms. Term limits obviously shorten the duration of the incumbent advantage as well as corrupt actions by any office-holder who is somehow “bought and paid-for”. Most Libertarians favor term limits to reduce corruption and encourage the kinds of “citizen legislators” idealized by the nation’s founders. Others make an opposing argument that it is our electoral duty to remove legislators from office at the ballot box, and therefore term limits were left out of the Constitution for good reason. Still others say that term limits might make corrupt politicians too keen to act quickly.

Another idea is based on the “revolving door tax” often mentioned by Glenn Reynolds. Not infrequently, government bureaucrats are offered lucrative positions with firms whom they regulate, or they take on these firms as private clients once they leave government. Needless to say, this creates perverse incentives for self-interested public servants. Reynolds suggests an additional tax on subsequent income earned after accepting such an offer. Extending the idea to politicians would mean an additional tax on income earned by any former office-holder accepting work for a firm or industry specifically targeted for benefits under legislation they sponsored during their term. There is much detail to be fleshed out, but the idea is fascinating.

Conclusion

Campaign finance reform is futile: there will always be creative ways around it, so it generally doesn’t reap rewards. Campaign funding itself is rather ineffectual at the margin in generating electoral gains. Moreover, campaign finance reform is an endeavor that is almost guaranteed to run afoul of our First Amendment protections of free speech. In addition, the result may a reversion to a less-informed and less interested electorate, lower voter turnout, as well as manipulation of the reform process itself.

The Court and Kavanaugh

08 Monday Oct 2018

Posted by in Supreme Court

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There are both great and hysterically negative expectations for Brett Kavanaugh’s seating on the Supreme Court, depending on one’s perspective. The changes are likely to be much less dramatic than many think, however, according to Glenn Reynolds in his Sunday column. As he says, most cases before the Supreme Court are decided by easy majorities, and that won’t change. On split decisions, Kavanaugh will be less of a “swing vote” than Anthony Kennedy, no doubt, and he will have influence over the choice of cases to be heard by the Court because the selection of a case requires only four justices.

Reynolds thinks Kavanaugh is not as conservative as partisans hope or fear. For example, Reynolds believes he is unlikely to vote to overturn Roe vs. Wade, when and if that question comes before the Court. There may be shifts on narrower questions, such as an earlier definition of fetal viability (in recognition of improved medical technology) and greater protection against arrangements that facilitate illegal funding of abortions by federal taxpayers. Reynolds acknowledges, however, that Kavanaugh is a stronger advocate of Second Amendment rights than Kennedy, so those protections are less likely to be eroded.

Reynolds’ also notes a shift that is likely to take place in legal academia:

“Strange new respect for judicial minimalism. As Harvard Law professor Adrian Vermeule remarked, ‘Law review editors: brace for a tidal wave of legal academic theories supporting judicial minimalism, Thayerianism, and strong — very strong — theories of precedent. Above all: the Court must do nothing without bipartisan agreement, otherwise it is illegitimate.’ The past half-century’s enthusiasm for judicial activism will vanish, as legal academia turns on a dime to promote theories that will constrain the court until a left-leaning majority returns, at which point they’ll turn on a dime again.”

That is all too likely. My liberal friends insist that the four justices on the left are free of political bias. Don’t laugh! I’ll be happy if Kavanaugh, as a justice, sticks to his traditional originalist philosophy on constitutional interpretation. I’m under no illusion that the left side of the bench takes the original meaning of the Constitution seriously.

My own concerns about Kavanaugh have to do with his earlier work in the Bush White House on issues related to national security, including work on the PATRIOT Act. In fairness, that work took place at a time when the horrors of 9/11 were still fresh in our minds. However, years later he wrote a favorable judicial opinion on metadata collection by the government. It’s disturbing that Kavanaugh has ever shown a willingness to relinquish the rights to privacy and due process as a routine matter of national security. The founders’ intent was to protect individual rights from the threat of tyranny, so they expressly limited the power of government through the Constitution. Those who would claim that threats to national security are so compelling as to supersede individual rights are perhaps the very tyrants the Constitution was meant to foil. Nevertheless, my hope is that Kavanaugh, having come face-to-face with those who would prefer to deny privacy and due process rights when it suits them, has gained additional respect for these protections.

The Due Process Right To Plea Bargain

16 Thursday Aug 2018

Posted by in Criminal Justice, Over-Criminalization

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Our criminal justice system is not the exemplar of due process we’d like to think. Instead, the deck is often stacked against defendants because prosecutorial incentives, mandatory minimum sentences and plea bargaining interact in perverse ways. This is exacerbated by our tendency to demand laws against every behavior that offends us, some that are redundant, some with lower burdens of proof, and some that are just silly. Civil justice is subject to excesses as well, as claims of victimhood are bounded only by the fertile imaginations of plaintiffs’ attorneys, but that’s a subject for another day.

Prosecutors tend to be ambitious, which is not necessarily a bad thing. But the U.S. is unique in electing prosecutors, and a “tough-on-crime” message is often successful at the polls. This magnifies the incentive for aggressive prosecution to achieve a high rate of conviction and lengthy sentences. Of course, defendants are often at a disadvantage in terms of the quality of their legal representation, but beyond that are a variety of prosecutorial tactics that can be used in pursuit of these goals.

A nexus between several factors has made the criminal justice system much harsher for defendants. Multiple charges on related and even unrelated crimes, often with harsh mandatory minimum sentences, can help secure a guilty plea on the original charge. The prosecution gets a conviction and avoids the cost of a trial, but the due process rights of the defendant are compromised in the process. Former Federal District Court Judge Kevin Sharp resigned from the bench because he could no longer tolerate the abuses done by mandatory minimum sentences. He offers a couple of examples:

“Antonio was driving down the street and, without being too graphic, he and his girlfriend were engaged in an activity that caused him to cross slightly over the double-yellow line. The police saw it and pulled him over. The police suspected his girlfriend was a prostitute, so they split Antonio and his girlfriend up and asked them questions. The police realized based on her answers that she in fact was Antonio’s girlfriend. Then, the police said, ‘OK, we are going to let you go. Oh, by the way, do you mind if we search your car?’ Antonio, forgetting that he had an unloaded pistol under the front seat of his car, responded, ‘No, go ahead.’ Antonio was charged with being a felon in possession of a firearm. Because he was convicted as an adult in his prior crimes, his mandatory minimum sentence was 15 years. …

Members of Congress, in their desire to be elected and reelected, often show how tough on crime they can be, and they say, ‘Look, mandatory minimums are necessary so that we can take discretion away from the judges.’ But these legislators have not taken away discretion, they have just moved it to the prosecutor, who has a dog in the hunt.“

The so-called “trial penalty” is the subject of a study on the disparate sentences offered in plea deals versus those likely to be imposed if the defendant goes to trial. This disparity is truly a threat to the Sixth Amendment right to a fair trial. Over 97% of federal criminal cases are now settled by plea, and again, rejecting a plea deal can carry considerable risk for a defendant. In fact, in discussing this study, Walter Pavlo puts things starkly: innocent people are pleading guilty. He quotes this finding:

“There is ample evidence that federal criminal defendants are being coerced to plead guilty because the penalty for exercising their constitutional rights is simply too high to risk.”

“How to make an innocent client plead guilty” is the topic of Jeffrey Stein’s confessional on the topic:

“... according to the National Registry of Exonerations, 15 percent of all exonerees — people convicted of crimes later proved to be innocent — originally pleaded guilty. That share rises to 49 percent for people exonerated of manslaughter and 66 percent for those exonerated of drug crimes.

You tell your client that they would probably win at trial, but if they lose, they will go to prison. The plea promises some meaningful benefit: getting out of jail sooner, avoiding deportation, not losing a job, seeing a daughter before her next birthday. But your client would have to accept responsibility for a crime they may not have committed.

The final stage happens in court. Your client has signed the paperwork admitting to something you believe in your gut they did not do. Maybe they acted in self-­defense. Maybe they were standing near the actual perpetrator and were presumed guilty by association because of the color of their skin. Maybe they were the victim of an honest misidentification.”

An episode in South Carolina indicating possible manipulation by prosecutors involved a grand jury, which is convened to hear preliminary evidence in a case and decide whether the defendant should be indicted on charges brought by the prosecution. This particular grand jury approved 904 indictments in a single day, averaging 39 seconds per indictment! In response, 27 defense attorneys filed a motion to have the indictments thrown out. It’s impossible to imagine that all of those cases received serious deliberation. Instead, the grand jury appears to have served as a rubber-stamp for the prosecution.

Over-criminalization is another major factor contributing to the erosion of due process rights. As Glenn Reynolds says, the next step should be fewer laws. This earlier paper by Reynolds made the point more forcefully: “Ham Sandwich Nation: Due Process When Everything Is a Crime” (free download):

“Overcriminalization has thus left us in a peculiar place: Though people suspected of a crime have extensive due process rights in dealing with the police, and people more charged with a crime have even more extensive due process rights in court, the actual decision whether or not to charge a person with a crime is almost completely unconstrained. Yet, because of overcharging and plea bargains, that decision is probably the single most important event in the chain of criminal procedure.

Reynolds offers a number of remedies, including replacement of absolute immunity for prosecutors with “qualified good-faith immunity”, pro-rata allocation of defense costs based on the ratio of convictions to the number of charges, and requiring that earlier plea offers be revealed to the jury at trial.

Today, the many laws we have against victimless behavior overburden the justice system. Have you ever: purchased a large soda? Used recreational drugs? Purchased raw milk? Engaged in oral sex? Played fantasy sports? Used a plastic straw? Vaped? Paid for a sex toy? Sold lemonade from a stand without a permit? Purchased a Happy Meal? Given food to a homeless person? These are just a few activities that are, or soon-to-be, illegal in certain jurisdictions, and I mentioned only one case having to do with licensure. I have not even mentioned crimes promulgated by federal regulators.

In “Enforcing the Law Is Inherently Violent“, Conor Friedersdorf quotes Yale Law Professor Stephen L. Carter:

“Every law is violent. We try not to think about this, but we should.  On the first day of law school, I tell my Contracts students never to argue for invoking the power of law except in a cause for which they are willing to kill. They are suitably astonished, and often annoyed. But I point out that even a breach of contract requires a judicial remedy; and if the breacher will not pay damages, the sheriff will sequester his house and goods; and if he resists the forced sale of his property, the sheriff might have to shoot him.

This is by no means an argument against having laws. … It is an argument for a degree of humility as we choose which of the many things we may not like to make illegal. Behind every exercise of law stands the sheriff – or the SWAT team – or if necessary the National Guard. Is this an exaggeration? Ask the family of Eric Garner, who died as a result of a decision to crack down on the sale of untaxed cigarettes. That’s the crime for which he was being arrested. Yes, yes, the police were the proximate cause of his death, but the crackdown was a political decree.”

Yes, we need “a degree of humility as we choose which of the many things we may not like to make illegal.” We have over-crowded prisons and we have failed to protect the due process rights of the accused. A conviction should require proof of guilt beyond a reasonable doubt. In statistical terms, that would mean a very low p-value. Instead, our system has devolved into one in which defendants presumed innocent are forced to reckon with myriad risks, exaggerated by “kitchen sink” prosecutors and mandatory minimum sentences. The tradeoffs facing defendants are so unfavorable that few cases ever go to trial. The plea bargaining system often reduces the burden of proof to a matter of gamesmanship. For prosecutors, it’s like shooting fish in a barrel.