The incident at the University of California, Davis put pepper spray back in the headlines.[1] But the appalling conduct by the UC Davis police is not an isolated incident. There have been similar incidents around the country resulting in dozens of deaths.

It is not that police hierarchy is unaware of the potential problems with pepper spray also known as OC for oleoresin capsicum, the active ingredient.

“Many law enforcement and corrections agencies now prohibit the practice of spraying trainees directly in the face with OC. Based on reports of ocular damage, bronchospasm, pulmonary edema, laryngospasm, respiratory arrest, and death following OC exposure, it is reasonable to conclude that exposure during training, particularly repetitive, direct facial spraying of individuals at increased risk, may cause serious adverse effects and possibly even death.”[2]

The underlying problem is the term itself, “non-lethal,” that encourages a mindset that allows police to use these weapons with casual disregard for the consequences.

As Lieutenant Colonel Erik L. Nutley pointed out in a review of non-lethal weapons on the battlefield, these weapons can be deadly.

“…though the term ‘non-lethal’ seems to imply that no fatalities will ever be caused by these weapons, this is not the case. Rather, non-lethal weapons are intended to significantly reduce the probability of these consequences compared to traditional weapons. In fact, DOD policy explicitly states that non-lethal weapons ‘shall not be required to have a zero probability of producing fatalities or permanent injuries.’ … In short, just as their lethal counterparts sometimes fail to kill, non-lethal weapons can sometimes be deadly. The description, therefore, applies to the intent rather than the effect.”[3]

There have been deaths associated with everyone of the “non lethal” weapons used by police today. There is only one circumstance when any these weapons should be used—when the only alternative is to use “lethal” weapons.

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[1] Brad Knickerbocker, UC Davis pepper spray incident goes viral, The Christian Science Monitor, November 20, 2011

[2] C. Gregory Smith, Woodhall Stopford, Health Hazards of Pepper Spray, North Carolina Medical Journal, September/October 1999

[3] Erik L. Nutley, Lieutenant Colonel, USAF, NON-LETHAL WEAPONS: SETTING OUR PHASERS ON STUN? Potential Strategic Blessings and Curses of Non-Lethal Weapons on the Battlefield, Center for Strategy and Technology; Air War College, Maxwell Air Force Base, Alabama, August 2003

Other Useful Links

Meredith Melnick, How Painful Is Pepper Spray?, Time.com, November 22, 2011

Deborah Blum, About Pepper Spray, ScientificAmerican.com, November 21, 2011

 

 

In New Hampshire yesterday, former House speaker Newt Gingrich pulled out the old Bush proposal of privatizing Social Security.[1] It would give people the option of putting their Social Security taxes into private investment accounts. There are three colossal problems  that no proponent has ever addressed. In no particular order these are:

• What about inflation?—Dramatically increasing the money chasing after the same amount of stocks and bonds guarantees inflation, creating yet another bubble on Wall Street.
• What about the losers?—Through various combinations of bad advice, bad choices and outright fraud some people will lose everything. What do we do about them? Wasn’t this the reason we created Social Security in the first place?
• How do we pay for it?—If we can’t find the money to fix the current Social Security system how can we find the money to pay for two Social Security systems, funding private accounts while still paying benefits to those already retired and those near retirement?

The primary reason for privatizing Social Security is to transfer money from working people to the very rich. Those already heavily invested in the market will receive massive windfall profits. And that of course is the reason for trying to privatize Social Security. For decades the top 1% have been the primary beneficiaries of the economy.[2] But it is not enough. Now they want to steal our Social Security.

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[1] Gingrich unveils plan for personal Social Security accounts, Boston Globe, November 22, 2011

[2] Congressional Budget Office, Trends in the Distribution of Household Income Between 1979 and 2007, October 2011

WASHINGTON – U.S. Senators Tom Udall and Michael Bennet today introduced a constitutional amendment to grant Congress the authority to regulate the campaign finance system.

“The flawed Citizens United decision allows corporations, including international corporations, to use their vast wealth to drown out the voices of the American people, and it allows them to do so anonymously from behind shell organizations.” — Senator Sheldon Whitehouse.

“The proposed amendment:

• Authorizes Congress to regulate and limit the raising and spending of money for federal political campaigns and allow states to regulate such spending at their level;
• Includes the authority to regulate and limit independent expenditures, such as those from Super PACs, made in support of or opposition to candidates;
• Would not dictate any specific policies or regulations, but instead would allow Congress to pass campaign finance reform legislation that withstands constitutional challenges.”[1]

While the proposed amendment addresses the most obvious problems with the wrongly decided Citizens United v. Federal Election Commission it does not go far enough. Even more troubling than the result of the Court’s opinion is the reasoning behind it. Writing for the Court[2], Justice Kennedy granted new status and rights to corporations.

“Although the First Amendment provides that ‘Congress shall make no law . . . abridging the freedom of speech,’ §441b’s prohibition on corporate independent expenditures is an outright ban on speech, backed by criminal sanctions.”

By extension the Court has bestowed upon corporations all the rights and privileges of citizenship.

In his dissent Justice Stevens wrote,[2]

“The Framers thus took it as a given that corporations could be comprehensively regulated in the service of the public welfare. Unlike our colleagues, they had little trouble distinguishing corporations from human beings, and when they constitutionalized the right to free speech in the First Amendment, it was the free speech of individual Americans that they had in mind.”

Were I to propose an amendment it would read as follows,

Corporations are not human beings. They are not endowed by the Creator with unalienable rights. They have only those rights enumerated by Congress and the States.

In 1996 when Steve Forbes was running for president he was pushing a plan for flat taxes as a way to “simplify” filing your tax returns. I remember thinking that only someone who has never done his own taxes could think that looking up the tax in the back of the booklet was the hard part. Not only was he proposing a flat tax, he wanted to eliminate all taxes on capital gains. Billionaire Steve Forbes would get a massive tax cut and shift the burden of taxation down to ordinary working people like me.

Now he is at it again, behind the scenes, using Texas Governor Rick Perry to push for a flat tax. Again it will give billionaires like him a massive tax cut while asking the rest of us to pick up the burden.

And Rick Perry isn’t the only candidate pushing this take from the poor and give to the rich philosophy. Herman Cain was first out of the block with an insane 9-9-9 plan. Newt Gingrich and Michele Bachmann, not wanting to be left behind, have both come out supporting flat tax plans.

The Congressional Budget Office just published a report on the distribution of household income[1]. It shows a dramatic concentration of wealth at the very top. The top 1% of the population had an average income increase of 275% while the bottom 60% averaged less than 40%.

Growth in Real After-Tax Income from 1979 to 2007

The top 1% had a dramatic increase in their share of the total income while every other group in the bottom 99% showed a decrease in their share.

Shares of Market Income, 1979 and 2007

For decades US tax policy has favored the very rich. But it’s not enough, they want more. I can understand that. What I have trouble understanding is how a political candidates can be successful pushing tax proposals to the disadvantage of 99% of voters. Do they think we are all stupid? We will have the answer come next November.

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[1] Congressional Budget Office, Trends in the Distribution of Household Income Between 1979 and 2007, October 2011

 

Thirty four states allow the death penalty, and polls show a majority of the people approve of the death penalty, but is it really a good idea?

Recently, Mario Cuomo, former governor of New York, wrote,[1]

“I have studied the death penalty for more than half my lifetime. I have debated it hundreds of times. I have heard all the arguments, analyzed all the evidence I could find, measured public opinion when it was opposed to the practice, when it was indifferent, and when it was passionately in favor. Always I have concluded the death penalty is wrong because it lowers us all; it is a surrender to the worst that is in us; it uses a power  – the official power to kill by execution  – that has never elevated a society, never brought back a life, never inspired anything but hate.

“And it has killed many innocent people.”

“I believed as governor, and I still believe, that the practice and support for capital punishment is corrosive; that it is bad for a democratic citizenry and that it had to be objected to and so I did then, and I do now and will continue to for as long as it and I exist, because I believe we should be better than what we are in our weakest moments.”

He is not the only governor who has struggled with the death penalty.

January 31, 2000

CHICAGO  — Governor George H. Ryan today declared a moratorium on executions of any more Illinois Death Row inmates until a Commission he will appoint to conduct a review of the administration of the death penalty in Illinois can make recommendations to him.

“If there was one moment when Illinois’ death penalty began to die, it was on Feb. 5, 1999, when a man named Anthony Porter walked out of jail a free man.

“Sitting in the governor’s mansion, George Ryan watched Porter’s release on television and wondered how a man could come within 50 hours of being executed, only to be set free by the efforts of a journalism professor, his students and a private investigator.

“ ‘And so I turned to my wife, and I said, how the hell does that happen? How does an innocent man sit on death row for 15 years and gets no relief,’ Ryan recalled last year. ‘And that piqued my interest, Anthony Porter.’ ”[2]

Since 1973, 139 people on death row have been exonerated in the United States.[3]

But moral concerns are not the only reason for questioning the death penalty. FOX News, hardly a bastion of liberal thinking has taken note that the death penalty is expensive.[4]

“An Urban Institute study of Maryland’s experience with the death penalty found that a single death-penalty trial cost $1.9 million more than a non-death-penalty trial. Since 1978, the cost to taxpayers for the five executions the state carried out was $37.2 million dollars — each.

“Since 1983, taxpayers in New Jersey have paid $253 million more for death penalty trials than they would have paid for trials not seeking execution — but the Garden State has yet to execute a single convict.

“A recent Duke University study of North Carolina’s death penalty costs found that the state could save $11 million a year by substituting life in prison for the death penalty.

“But no state matches the dilemma of California, where almost 700 inmates are sitting on death row and, according to Natasha Minsker, author of a new report by the Northern California chapter of the American Civil Liberties Union…Her study found that the cash-strapped state could immediately save $1 billion by eliminating the death penalty and imposing sentences of life without parole.”

The Death Penalty Information Center reached a similar conclusion. In 2009 they reported[5],

“The death penalty in the U.S. is an enormously expensive and wasteful program with no clear benefits. All of the studies on the cost of capital punishment conclude it is much more expensive than a system with life sentences as the maximum penalty. In a time of painful budget cutbacks, states are pouring money into a system that results in a declining number of death sentences and executions that are almost exclusively carried out in just one area of the country. As many states face further deficits, it is an appropriate time to consider whether maintaining the costly death penalty system is being smart on crime.

“The death penalty has been a bloated government program for many decades. The death penalty is not just expensive, it is wasteful. In most places the money is being spent even as the core measures of the system—death sentences and executions—have declined precipitously. It is as if a car manufacturer was keeping all of its factories and showrooms open even though it was producing only a handful of cars that hardly anyone was buying.”

Proponents of the death penalty frequently complain that costs are high because of the seemingly interminable appeals process. But the appeals process is only the tip of the iceberg. Once the death penalty goes on the table everything gets more expensive as the DPIC noted.

“The extra expenses begin mounting as soon as counsel are appointed in a potential death penalty case.”

We are not the only country in the world that executes prisoners. In 2010 there were executions in 23 countries.[6]

China (unknown 1000+)
Iran (252+)
North Korea (60+)
Yemen (53+)
United States of America (46)
Saudi Arabia (27+)
Libya (18+)
Syria (17+)
Bangladesh (9+)
Somalia (8+)
Sudan (6+)
the Palestinian Authority (5)
Egypt (4)
Equatorial Guinea (4)
Taiwan (4)
Belarus (2)
Japan (2)
Iraq (1+)
Malaysia (1+)
Bahrain (1)
Botswana (1)
Singapore (+)
Viet Nam (+)

Is this really the company we want to keep?

There are serious errors with the justice system sending innocent people to death row. The death penalty is expensive. It holds us up to ridicule by all other advanced nations. And it doesn’t even work. States with the death penalty show a higher murder rate than states without the death penalty.[7] Its sole purpose is to allow sleazy politicians to try to win election by appealing to the worst in our nature.

The Fifth Amendment states, “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury … nor be deprived of life, liberty, or property, without due process of law.”[1] Yet on September 30 the US Government deliberately killed a US citizen without an indictment, and without any judicial procedure at all.

As Hugh Gusterson writes in Bulletin of the Atomic Scientists[2], “Anwar al-Awlaki was clearly not a nice person, but the manner in which he was killed on September 30 should trouble us all, regardless of our political orientation.”

 Somewhere in Washington is a legal memorandum[3] that supposedly provides the justification for killing Anwar al-Awlaki, a US citizen in spite of the constitutional prohibition. But we can’t read the memorandum, it is secret. The constitution was written to prevent precisely this type of action by one branch of government. As Hugh Gusterson phrases it, “Since when does the executive branch, alone, get to decide which American citizens should be put to death? Didn’t the United States fight a revolutionary war to put an end to that kind of autocratic abuse of executive power?”

There may be citizens who present a danger to the people and are beyond the reach of normal law enforcement.  And it sounds like Anwar al-Awlaki may have been one of them. But that finding needs to come from an open judicial process and not a secret executive order.

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

[2] Hugh Gusterson, Death by drone, Bulletin of the Atomic Scientists, October 13, 2011

[3] Charlie Savage, Secret U.S. Memo Made Legal Case to Kill a Citizen, New York Times, October 8, 2011

 

We are losing the war on drugs. We are spending staggering amounts of money and we can’t build prisons fast enough. We cannot afford to continue throwing money away on ineffective drug enforcement. Politicians all too often begin the process of creating policy by first throwing out all the facts. This must stop.

On June 2^nd the Global Commission on Drug Policy released a report[1] detailing their findings.

“The global war on drugs has failed, with devastating consequences for individuals and societies around the world. Fifty years after the initiation of the UN Single Convention on Narcotic Drugs, and 40 years after President Nixon launched the US government’s war on drugs, fundamental reforms in national and global drug control policies are urgently needed.”

The commission’s recommendations are summarized in their press release.

• End the criminalization, marginalization and stigmatization of people who use drugs but who do no harm to others.
• Encourage experimentation by governments with models of legal regulation of drugs (especially cannabis) to undermine the power of organized crime and safeguard the health and security of their citizens.
• Ensure that a variety of treatment modalities are available – including not just methadone and buprenorphine treatment but also the heroin-assisted treatment programs that have proven successful in many European countries and Canada.
• Apply human rights and harm reduction principles and policies both to people who use drugs as well as those involved in the lower ends of illegal drug markets such as farmers, couriers and petty sellers.

But writing in Foreign Affairs[2] Mark Kleiman suggests that both current drug policy and the proposed alternatives will not be effective.

 “Current policies, clearly, have unsatisfactory results. But what is to replace them? Neither of the standard alternatives — a more vigorous pursuit of current antidrug efforts or a system of legal availability for currently proscribed drugs — offers much hope. Instead, it is time for Mexico and the United States to consider a set of less conventional approaches.”

He believes that progress demands that we accept our limitations and focus on what can be accomplished.

 “If policymakers are willing to adjust their strategies to reflect both the limits of the possible and the relative importance of various goals, then there could be smaller illicit drug markets, less drug-related violence, and fewer people behind bars. Reducing the number of casual drug users should be a far lower priority than reducing the number of criminally active heavy users of hard drugs; decreasing violence is not only more feasible but also more vital than decreasing the flow of drugs.”

He cites Hawaii’s HOPE program[3] as evidence that such heightened focus on the most serious offenders can be effective.

But he adds a warning that we need to manage our expectations. We cannot win the war on drugs. We cannot make a drug free world.

 “Of course, more logical policies cannot guarantee better results, and even a better result would not be a solution to the drug problem. At best, Mexico and the United States could end up with a result that would be, in the words of the economist John Kenneth Galbraith, merely ‘distasteful’ rather than ‘catastrophic.’ But a bad result is preferable to a worse one.”

We’ve all seen the scenario played out many times on various TV crime dramas. The police find the murder weapon only to have a judge throw out the evidence because the search wasn’t legal.

The judge invoked a constitutional protection called the exclusionary rule. But the exclusionary rule is not anywhere in the constitution.

The fourth amendment reads,

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

There is nothing there about excluding evidence. While its protection against illegal searches and seizures is viewed as the source of the rule, that was not the original understanding. The interpretation of the fourth amendment to require the exclusion of evidence waited until the twentieth century. In 1914 the Supreme Court decision in Weeks v. United States for the first time prohibited the admission of illegally obtained evidence in federal courts. In 1920 the Supreme Court in Silverthorne Lumber Co. v. United States added the “fruit of the poisonous tree” doctrine excluding evidence obtained as the indirect result of an illegal search. And not until 1961 was the exclusionary rule extended to the states in Mapp v. Ohio.

It is important to understand that the exclusionary rule is a judicial construct not a constitutional right. Its purpose is to give teeth to the fourth amendment’s protections. All too often it seems that trials are viewed as a competition and the judge’s job is to provide an even playing field, “May the best lawyer win.” That’s just wrong. A trial should be a search for the truth. Throwing out otherwise useful even critical information makes finding the truth difficult.

That is not to say that the fourth amendment is no longer needed or that we should not be zealous in protecting our fourth amendment rights. The FBI has launched a major attack on the fourth amendment seeking approval for warrantless searches. We need to find a way to protect our fourth amendment rights without throwing out evidence.

I would be very interested in hearing a lively debate on alternatives to the exclusionary rule.

Washington (CNN) — The White House released copies of President Barack Obama’s original long-form birth certificate Wednesday, seeking to put an end to persistent rumors that he was not born in the United States.

Did this finally put to rest the claims that Barack Obama was not born in the United States? Of course not. As Jonathan Swift once said, “It is useless to attempt to reason a man out of a thing he was never reasoned into.”

The facts of the issue were settled long ago. Barack Obama was born on August 4, 1961, at Kapi’olani Maternity & Gynecological Hospital in Honolulu, Hawaii. On June 12, 2008 the Obama campaign responded to the rumors by posting a copy of his birth certificate online. Titled “Certification of Live Birth” and sometimes referred to as the “short form” it is the document anyone born in the state of Hawaii will receive if he asks for a copy of his birth certificate. A variety of Hawaiian state officials have confirmed that it is indeed Obama’s birth certificate. Announcements of his birth appeared in the local newspapers the Honolulu Advertiser on August 13, 1961 and the Honolulu Star-Bulletin on August 14, 1961.

But the lunatic fringe finds none of that persuasive. And as “proof” some offered a supposed Kenyan birth certificate. When it surfaced the document was quickly revealed as a forgery, not even a good forgery. It shows a certificate issued by the Republic of Kenya, three years before the Republic of Kenya existed. Real birth certificates from Kenya in 1961 looked very different.

All conspiracy theories have at their core a major flaw. They presuppose a world filled with very competent people acting in a highly coordinated fashion, with laser like focus on long term goals, maintaining absolute secrecy. That’s not the world we live in. The real world is filled with marginally competent people, who have trouble taking directions and can barely look ahead a few weeks much less decades. And very few people can keep their mouths shut.

So the lunatic fringe will continue to deny all the facts and believe that Barack Obama is not a US citizen, but what about everyone else? Conservative politicians want the lunatic fringe vote. Cynical perhaps, but that’s politics today. The biggest problem is the media that continues to cover the story. Somewhere along the line they have forgotten that journalists have a responsibility to the truth.