The Awful French

From the NYT on Roman Polanski’s arrest.

Jack Lang, a former French culture minister, said that for Europeans the development showed that the American system of justice had run amok.

“Sometimes, the American justice system shows an excess of formalism,” Mr. Lang said, “like an infernal machine that advances inexorably and blindly.”

An infernal machine that advances inexorably and blindly.

Yes, that’s right. Pardon my… French… but that’s the whole fucking point.

What would be the alternative? A system of Justice that attunes itself to artistic merit and excuses the crimes of those who enjoy particular patronage? Should an Oscar amount to a Get out of Jail Free card?

Roman Polanski drugged, raped, and sodomized a 13 year old girl.

Arresting him for fleeing sentencing (he pled guilty) for that crime is justice “run amok?”


From John Farr’s execrable column, “Leniency for Polanski”:

This new arrest also smacks of a sneak attack on the now 76-year-old director, who’s been remarried to actress Emmanuelle Seigner for two decades. (He’s probably reformed by now , don’t you think?)

“Sneak attack?” executing a 3o-year old arrest warrant is a sneak attack? What about plying a child with alcohol and Quaaludes? Oh… and he’s married. Well then! Married and a famous movie director? He is surely beyond all law.

From Bernard Henri-Levy’s “Rally Behind Polanksi”,

He risks extradition to the United States for an episode that happened years ago and whose principal plaintiff repeatedly and emphatically declares she has put it behind her and abandoned any wish for legal proceedings.

“Episode?” How about “Rape?”

There is no “plaintiff” in this case. A plaintiff exists in a tort, this was a crime. The state prosecutes crimes, not the victim.

Update 2:

Yes, I know that a movie was made about the Polanski trial. Yes, I know that allegations were made that there may have been judicial misconduct leading up to the sentencing. But that’s a movie, those allegations have not been tried because Polanski fled the country and refuses to appear before a Los Angeles court. If the allegations in Wanted and Desired have not exculpated Polanski it is because Polanski remains a fugitive.

There are three legal issues invlved in the Polanski case:

1) He drugged, raped, and sodomized a 13 year old girl. He plea-bargained and pled guilty to a lesser offense.

2) He fled the country before sentencing for that crime.

3) Allegations have been made that the Judge in the trial (now deceased) had improper dealings with a prosecutor (not the one who tried the case) and may have intended to reneg on the plea-bargain and impose a harsher sentence than 42 days time served.

The issue in 3) cannot be resolved until the issue in 2) has been resolved. Anyone who argues otherwise, is arguing one or more of the following:

1) Victims of persecution should be immune from prosecution for crimes–like rape–because… well I’ve never actually seen the because part argued coherently.

2) She asked for it.

3) He was, like, really cool and made a couple of totally awesome movies and, like, come on it was, like, so long ago and she’s not even famous.

4) She was totally hot and he was really horny so it’s OK.

5) Diane Von Fostenburg thinks he should go free.

6) He’s married.

7) He’s 76 dude… he’s like old. Isn’t being old punishment enough?


Winners and losers

Depending on who you talk to, you’ll get a different list of priorities, but essentially, we all believe that the government’s essential function is to mitigate public risk. Some people want the government to focus on mitigating the risk of global instability, foreign wars, and terrorists. They might agree that a strong internal defense is necessary and that the government should help mitigate the risk of criminality, insurrection, fraud and force. Others want the government to mitigate economic risk; they want the government to stabilize financial markets and to subsidize and regulate economic transactions.

All this risk management comes at a cost. Generally speaking, the higher the risk, the greater the potential reward, the lower the risk, the lower the reward. Mitigating risk means reducing potential profits: trading wealth for security. It doesn’t matter if we’re reducing the risk of terrorist attacks, the risk that we might lose money on investments, the risk that we might get sick, or the risk that we might get mugged. No matter what security we buy, we have to pay for it.

In small doses, that makes sense. We trade a little wealth (or we give up higher rates of growth) for a little security. After all, massive returns in the market aren’t worth much if buildings are exploding around you, if you’re shot in a drug raid, or if you bet on the wrong stocks and your portfolio goes south.  I don’t have a theoretical problem with trading some wealth for some security, but I also don’t want to trade too much. Security doesn’t matter much if I have no wealth. After all, what point security but to protect what I hold dear?

The problem with mitigating risk is that the only way to do it is to spread risk around. You can’t eliminate risk, you can only “level” it off. Let’s say I wanted to reduce the risk of gambling in a casino. I could rig the games to produce a more “equitable” result; fewer losers and fewer winners. Or, I could simply tax the winners and give some of their winnings to the losers. Functionally, the means are different, but they achieve the same outcome. Rigging–or regulating–the casino games is exactly the same as increasing taxes. The increased regulation acts as a damper on winnings, in just the same way that increased taxation does. I can only reduce the risk by reducing the potential reward.

This is true of all risks. I can only lower the risk of financial insolvency for some investors by reducing (either through regulation or taxation) the potential return on investment for everyone. I can only lower the risk of terrorism or foreign attack by reducing the scope of international trade and domestic freedoms (trading security for the potential return on free, open trade).

It’s also true that we can’t effectively mitigate all risk. We have to pick and choose where we want to focus our efforts–and we have to pick and choose whose risk to dampen, whose security to protect, whose assets to rescue. This puts us in the position of deciding who we’re going to let “win,” who we’re going to let “lose,” how big we’ll let the winnings get, and how much we’re willing to lose.

Well, we don’t decide–we let the government decide for us.

When we let the government mitigate our risk, we let the government pick winners and losers.

In any government program, rule, regulation, or tax, there’s a winner and a loser.The stimulus bill picked a lot of winners; in many cases, the winners were explicitly identified. The losers are less visible, but no less real. The taxpayers who will bear the burden of the additional debt are some of the losers, but so too are the firms whose businesses were not sufficiently politically capitalized to merit inclusion. Amtrak gets additional money to continue operating and the taxpayers take a hit. But so do bus companies, the airlines, and anyone who else who competes with Amtrak. The same is true of the bailouts, only more strikingly so. Bear Sterns was bailed out, Lehman Brothers was not.

Winners and losers.

In the course of mitigating risk from domestic criminality, anarchy, fraud, theft, and force, the government generally has a centuries of accumulated legal guidelines to ensure that the selection of winners is made according to well-established procedures and rigorous due-process; we have the courts, rules of jurisprudence, stare decisis, and the common law.

It’s when we get into the mitigating the risk of foreign threats and domestic economic malaise that the criteria for determining who gets to win and who gets to lose becomes… more subjective. Deciding to give Amtrak millions of dollars in operating subsidies, or to assume part of the USPS pension obligations, to bail out AIG, or to tax the bonuses that AIG gave out, to cover this medical procedure and deny that medical procedure, or to decide that mortgage interests should be tax-deductible while rental payments should not be… those are all political decisions.

That’s crucially important. When the government picks these winners and punishes these losers, the reasons are invariably political. Whom to bail out and whom to tax are not decisions made by judging objective criteria–they couldn’t be, because there is no criteria around which to create a decision making framework. These are purely political decisions, made for purely political reasons.

When we ask why Lehman Brothers was ignored, or why some financial windfalls are subject to a 90% tax and others aren’t, why some contracts are honored and others aren’t, why the Treasury addresses some issues and not others, the only answer is because those are the results that are politically expedient or advantageous to the party in power.

It’s not even really appropriate to speak of justice when we talk about these kinds of political decisions, because there’s no sense in which these decisions can be evaluated by any standard relevant to a coherent notion of justice. Justice, when we speak of justice in the courts or justice in law, is a the result of a codified, coherent, and complex process that we have developed and refined over the course of the last three thousand years.

When we speak about the result of a political decision, however, we’re not talking about the result of a process, just the simple manifestation of political will. Is it “right” that the AIG bonuses are subject to a 90% tax? There’s no way to evaluate that tax as “right” unless we define it as right to begin with. In other words, we can’t adjudicate political decisions or subject them to due process, they simply are what they are: the manifestation of political will.

It’s tempting to believe that the politicians exercising these powers are somehow nobler than the rest of us, or that they’re somehow immune to confirmation bias, temptation, and petty grievance, but it’s not true. In fact, it’s emphatically not true. Politicians respond in general to incentives and temptations in the same way that everyone does: they act to maximize their own long term gain. (The formal study of political interest is known as public choice economics.) Politicians will reward those people who are in the best position to reward politicians. Politicians will punish those people who are least likely to benefit them: the “aristocracy of pull.”

We’ve seen the selection of winners and losers on a grand and sweeping scale in the last few months and all of those decisions have been purely political decisions designed made for purely political reasons. This has all been in the cause of mitigating the risk of collapsing financial markets.

But we can’t mitigate that risk without cost, and whatever we choose to do about the risk, the end result will be the same:  we’ll take from some people (the losers) and we’ll give that money to some other people (the winners). The current administration is picking those winners and losers with alarming speed, very little deliberation, and absolutely no due process.

I’m left wishing that we could subject political appropriations to a process as rigorous and as tested as the court system, but we can’t. Such process as exists for deciding political issues is limited to the procedural rules in Congress and the process of elections. To analogize further with the court system, it’s as if we tossed out the common law, stare decisis, the rules of evidence, the adversarial system, and the judge. We’re left with only jury selection and procedure: hardly a reliable system.

The only way to subject questions of political expropriation to an objective process is to take those decisions out of the legislature. Until and unless we can agree to place further limits on the government’s power to extract and expropriate wealth, until we decide that the arbitrary results of influence peddling and political arm-twisting should be disdained rather than ennobled, we’ll continue to see more of the same.

Isn’t that a risk we shouild mitigate?

Obama and the Court

After watching the debate last night, one of my first comments was that Obama’s answer to the question about judicial nominations was quite frightening.

Obama said,

If a woman is out there trying to raise a family, trying to support her family, and is being treated unfairly, then the court has to stand up, if nobody else will. And that’s the kind of judge that I want.

Orin Kerr at Volokh cites a recent Rasmussen poll on this issue:

Should the Supreme Court make decisions based on what’s written in the Constitution and legal precedents or should it be guided mostly by a sense of fairness and justice?

While 82% of voters who support McCain believe the justices should rule on what is in the Constitution, just 29% of Barack Obama’s supporters agree. Just 11% of McCain supporters say judges should rule based on the judge’s sense of fairness, while nearly half (49%) of Obama supporters agree.

On this issue, it looks like the candidate and his supporters are very much on the same page.

The problem is that the court’s responsibility is not to make law, but to interpret law. In the specific case that Obama cited, Ledbetter v. Goodyear Tire & Rubber Co., the statute in question clearly indicated, “A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred.” The Court held that because Ledbetter’s suit was brought after the 180 period had elapsed that she could not sue under that statute.

Obama would prefer that the Court ignore the law in question and instead issue a judgment based on some necessarily obscure sense of social fairness. But that way lies disaster.

Perhaps the most important application of the rule of law is the principle that governmental authority is legitimately exercised only in accordance with written, publicly disclosed laws adopted and enforced in accordance with established procedural steps that are referred to as due process. The principle is intended to be a safeguard against arbitrary governance, whether by a totalitarian leader or by mob rule. Thus, the rule of law is hostile both to dictatorship and to anarchy. (Wikipedia)

If we wish to seek a remedy for issues of social fairness, then we must look to the legislature. The legislature writes law. When we seek a remedy under the law, we look to the courts to apply the law as it is written, not as we might hope it may have been written.

The remedy for Lily Ledbetter lies with Congress to amend the law in question and extend the window of grievance. That Congress failed to amend that law may be failure, but the Court’s application of the law that Congress wrote is not.

If there is any principle of sound governance that I would hope we can all agree on it is the idea that the law should strive, at all times, to be clear, unambiguous, and applied without prejudice.

What’s that word again?

There’s been some discussion about the possibility that the bailout could become a windfall for “taxpayers.” The idea is that the government will be buying distressed assets. When held to maturity, many of these assets will become profitable. Some estimates peg the net profit at over $2 trillion.

I don’t dispute the fact that there may be profit to be found in these assets. But if there is profit to be found, why not let the market enjoy that profit? Then actual taxpayers might realize some return on their investments. If the U.S. Treasury profits from the assets, then that profit is subject to political whim. Any profit the Treasury makes will be spent by the government. It will not be returned to taxpayers. That’s partly why the bailout is such a bad idea. Not only does it require the government to engage in high-risk investment banking, it will always result in a massive transfer of wealth from the private sector to the government.

Taxation slows the economy because the government is extraordinarily inefficient at allocating capital. Even if the Treasury does make $2.2 trillion in this deal, that’s $2.2 trillion that’s been removed from the private sector; exactly as if it had come from an increase in taxation.

Now, many would argue that the cost of inefficiency in government action is a cost we should be willing to pay to receive needed services and infrastructure. (I think that’s an extremely silly argument, but I won’t get into that now.) These people will argue that the government could do a lot with $2.2 trillion. So what if it amounts to a massive tax increase?

Well, the problem is that it wouldn’t be a just tax. Part of the point of democracy is that tax rates are set by representatives that have some accountability to their constituents. A tax rate is just (if not fair) if it’s a legislative tax increase. There’s a reason that only Congress has the power to tax: a very good reason. Giving this money to the executive amounts to a huge transfer of constitutional authority. The legislature will be ceding an enormous amount of power to the executive. In a very, very real sense, the bailout amounts to taxation without representation.

There’s a word to describe an economic system that involves government control of equity and massive appropriations of wealth by a powerful executive.

That word is fascism.

End this war

The lesson of U.S. drug policy is that this world runs on unintended consequences. No matter how noble your intentions, there’s a good chance that in solving one problem, you’ll screw something else up.

There’s an excellent article on the Drug War up at The Rolling Stone.

It’s a long, detailed article and well worth reading. The summary is pretty simple, and shouldn’t surprise most people: The Drug War is a failure. Interdiction is pointless and practically impossible, prison-terms for dealers and users don’t impact either distribution or use, and the money spent overseas is a complete waste. The only thing that works is treatment and that only works on the margins.

Reducing violence is possible, but only by eliminating the black market. The article describes a few urban initiatives that succeeded in reducing violent crime, and each example involves replacing the black market drug trade with a gray market trade (trade that is acknowledged and tolerated by local law enforcement, even if it isn’t legal).

The article ends without a specific call to action, but one that seems unavoidable to this reader: legalize it. All of it.

I don’t say that with the relish that some libertarians do. I understand that heroin is a scourge, I know that meth is bad, nasty shit, and that crack-cocaine is inherently dangerous. And I get that a healthy polity should have little tolerance for drug use and drug users. But it’s the violence that ends lives, ruins families, and destroys communities. And that’s what we need to end.

Drug addiction is a vice and a tragedy. But it’s a private vice and a personal tragedy. The Drug war is a national vice and a global tragedy.

Let’s bring the soldiers home and end this unjust war.

Islam and Sharia

In Saudi Arabia, a woman who was gang-raped was sentenced to 90 lashes. The reason? Before the rape, the woman, who was then 19, had been in a car with a man who was not a family member — a crime under the kingdom’s legal code, which is based on a strict Wahabi reading of Islamic law. Punishing the victim of a brutal rape is reprehensible. Then a Saudi appeals court more than doubled her lashings to 200 and added six months’ jail time, apparently because she had the audacity to publicly challenge the court’s ruling. Her lawyer had his license to practice suspended. — “Lashing Justice”, Dec 3, New York Times more here

If the Klan ran a court in Alabama, this is the kind of justice they would serve.

And yet still, still I see calls for tolerance and understanding.

The Washington Post has this gem:

At a time when Islam is under siege from Muslim extremists and extremists from the Far Right in Europe and America, the judiciaries of Sudan and Saudi Arabia have managed to reinforce the vilification of Islam and used Islamic law as a weapon rather than a yardstick for justice. All our futures depend upon an ability to agree upon a global ethic, based upon mutual understanding and respect, that transcends our religious and cultural differences. Whatever our differences, there can never be an acceptable excuse for injustice and intolerance in the name of our religions.

What kind of global ethic would it be if the Saudis and the Sudanese have a voice in crafting it? How is mutual respect possible in the face of the kind disgusting bigotry and ignorance on display in Saudi Arabia?

Islam is under siege? Islam is under siege? Islam is laying siege! Why are we expected to tolerate the beating and imprisonment of women for petty and ridiculous offenses? Why are we expected to tolerate a society that punishes adultery and homosexuality with death? Why are we expected to tolerate a culture that denies women the right to vote, own property, or testify in court? What kind of “yardstick” would such injunctions yield? How might we measure justice against such plain villainy?

This culture must be condemned. It is a cancer, a disease, and it must be treated as such.

It is pointless to claim that Islam “properly understood” is blameless in this. These are not fringe elements of a minor cult, these are national governments using the holy text of Islam to establish law. This is barbarity built upon ignorance and it must be denounced.

This is not a debate about which religious idiocy is more absurd, it’s a debate about oppression and evil. Believe in whatever religion you will. Your soul is yours to treat as you will. But the moment you mix religion with law is the moment you cast the sanctity of belief aside and become just another slavering bully. And that’s true whether you’re thumping the Quran, the Torah, the Bible, or Dianetics.

The difference is that the Pope doesn’t burn heretics anymore, the Temple was razed a long time ago, and Tom Cruise isn’t stumping for president…. yet. But Sharia is mainstream Islam. And that must be recognized, and that connection must be renounced.

Gillian Gibbons… Freed

The protesters streamed out of mosques after Friday sermons…. They massed in central Martyrs Square, outside the presidential palace, where hundreds of riot police were deployed, although they did not attempt to stop the rally.

“Shame, shame on the U.K.,” protesters chanted.

They called for Gibbons’ execution, saying, “No tolerance: Execution,” and “Kill her, kill her by firing squad.”

Thankfully, Gillian Gibbons, a British expatriate on trial in the Sudan, wasn’t sentenced to death. Instead, she received 15 days prison time and deportation.

Why is she being imprisoned and deported? Why were thousands of screaming lunatics calling for her execution?

Because she named a teddy bear Muhammad.

She’s an elementary school teacher. She gave her class a teddy bear and asked them to name it. The children named it. They brought it home and wrote stories about it. The stories were compiled into a book for the students to share. Evil bitch.

“No tolerance: Execution,” and “Kill her, kill her by firing squad.” That’s what the crowd chanted.

She named a teddy bear. She’s a teacher. They’re imprisoning and deporting a teacher.

Because they don’t need the kind of moral education Ms. Gibbons brought to their children.

Kill her, kill her by firing squad. That’s what the crowd was chanting.

This is so appalling, so disturbing, so foul. A culture that allows this, let alone encourages it, is a waste. It is a cancer, a disease.

Full story here.

12/03/07 Update:
Gillian Gibbons has received a pardon and has been released from custody. She is returning to the UK. (Story here)

However… the story includes the following absurdities.

“Common sense has prevailed,” British Prime Minister Gordon Brown said. He added that Gibbons will be taken to the British embassy in Khartoum after “what must have been a difficult ordeal”.

Common sense has prevailed? Prevailed? In no sense has any kind of sense prevailed. The Sudan is a cultural cesspit, a wasteland of tyranny, genocide, bigotry, and hopelessness. A woman who was trying to teach children has been forced out of her classroom, subjected to the prospect of a whipping, and bounced out of the country she called home by a group of ill-intentioned thugs and despots. There is no common sense in that, just barbarity of the most common and base sort.

But Brown wasn’t the only one.

“I have great respect for the Islamic religion and would not knowingly offend anyone and I am sorry if I caused any distress,” Gibbons said.”

Great Respect for the Islamic religion? Appalling. Disheartening. Unfathomable. The words, “sanction of the victim” leap to mind. Would she hold “great respect” for the Klan? For fascist thugs? Or is she just scared out of her mind? And what would that say about the “Islam as peace” nonsense?

I know, we’re supposed to treat all religions with respect and toleration. But why does pasting a veneer of complete absurdity across the face of tyranny and bigotry render the atrocity of an ideology somehow palatable? I don’t excuse the inquisition just because Torquemada was sincere in his beliefs.

Imagine the following conversation.

IslamoFascistWhackJob: “I believe that women are second class citizens. I believe that Jews are evil. I believe that women should not vote, that an adulteress should be murdered. I believe that Salman Rushdie should die for writing a book. So should a teacher who named a teddy bear after a seventh century illiterate.”

WesternBoob: “You are a moral monster.”

IslamoFascistWhackJob: “But wait! I believe that because the same 7th century illiterate peasant claimed that God spoke to him.”

WesternBoob: “Oh! That’s all right then. Wait, didn’t he have sex with a nine-year old girl?”

IslamoFascistWhackJob: “Yes, but he married her when she was six.”

WesternBoob: “Oh, well… each to his own I suppose.”