As this post details, the case has a variety of briefs with some surprises in terms of how positions fall out. My comment on this case will be limited to Vice President Cheney signing on to a brief opposing the ban.

Normally, interests of the federal govt are represented by the Solicitor General, who argued here that there is a personal right of gun ownership but that the DC regulations were overall rational  (because his job is to defend existing federal gun control laws...) Cheney signed on to a brief with members of Congress urging the Court to strike down DC's law, which includes a ban on handguns in the nation's capital.

So the Bush administration has scaled back many personal freedoms arguing that they need tools to fight their ill-conceived  war on terror. At every chance, they expand powers of the federal government - to wiretap, search, etc. But the one freedom Cheney defends is the right to have handguns in the nation's capital, even though it is well known that Al Qaida practices political assassinations in urban areas?

Let's be clear that this comment does not suggest that terrorists will obey the law, or that the law against handguns will prevent terrorists using them. Rather, the law against guns can be an important tool to disrupt terrorists and terrorist plots.  If law enforcement got wind of something, searched and found weapons, the current law would allow them to make arrests, detain and gather other information. If there's no gun law, then there may or may not be other grounds to hold suspects, but make no mistake that the law is a potentially important tool - or at least as useful as a very, very long list of "tools" the administration has wanted.

[As background, see mar Hamm's Terrorism as Crime, which argues that terrorists commit any number of more minor, everyday crimes in establishing themselves, their identities and further larger plots. These crimes can frequently provide the justification for arrests, just as mafia types get caught up on tax evasion - not the charge we'd really like to bring, but at least it gets them off the street. My StopViolence site has some chapter excerpts; there's an earlier version of this he did for the National Institute of Justice called Crimes by Terrorist Groups (abstract or document/pdf).]

For those interested in the case, here's the prview from Cornell Law School (link at end goes to the rest of the preview)

District of Columbia v. Heller (07-290)

SECOND AMENDMENT, RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS, MILITIA, DISTRICT OF COLUMBIA, GUN BAN, HANDGUNS

The District of Columbia bans possession of handguns, and bans anyone from carrying a handgun or other deadly or dangerous weapon without a license within its borders (the "Gun Ban"). It also requires that any firearms which may be kept within the District, such as rifles, be kept either disassembled or with a trigger lock. These are some of the most restrictive gun laws in the nation. Joseph Heller claims these laws violate his Second Amendment right to "keep and bear Arms." The Supreme Court has not taken a Second Amendment case since 1939, and it has never decided whether the Second Amendment confers a right to bear arms upon individuals or only upon the militias it refers to in its opening clause. In the intervening 69 years, the federal and state governments have passed many laws regulating and restricting the ownership and use of guns. Should the Supreme Court uphold the D.C. Circuit's invalidation of the Gun Ban, it could have a substantial impact on these gun laws and will almost certainly lead to more litigation as gun rights advocates challenge those laws as violating the Second Amendment. If the  Court finds that the Gun Ban is constitutional, it will strengthen the ability of government to regulate gun ownership, and may result in more restrictive gun laws across the country.  (Continue reading this preview via Cornell Law...) 

You can read the transcript of oral argument via the Supreme Court website or Oyez has an audio version (listen to it on the web or download an mp3) along with the transcript.

My favorite quotes include Mr Dellinger (arguming in support of DC's law):

this right of personal liberty, the Blackstonian right, is an unregulated right to whatever arm, wherever kept, however you want to store it, and for the purposes an individual decides, that is a libertarian ideal. It's not the text of the Second Amendment, which is expressly about the security of the State; it's about well-regulated militias, not unregulated individual license [emphasis added]

and 

If you're going to protect the kind of right that is -- that is being spoken of here, different from the militia right, the plain language to do it would be "Congress or the States shall pass no law abridging the right of any person to possess weapons for personal use." And that's not the right that is created here. 

As I noted above, Cheney split with the federal government in this case; public health professionals are on both sides; academics are on both sides; women are on both sides; former Justice Dept officials are on both sides; you get the idea:

In the Alabama case, "the appeals court suggested that the case posed the question whether there is an absurdly narrow (and vulgar) fundamental right to use 'vibrators, dildos, anal beads, and artificial vaginas'." The majority there also rejected the idea of a generalized right of sexual privacy " because (among other reasons) it would encompass pederasty, prostitution and incest -- which the judges believed were clearly proscribable consistent with the Constitution."

What other rights of your do you think could be put in such a way as to make them sound absurd to conservatives who talk about freedom but are all in favor of government intruding on the parts of your life that offend them?

Back to the Texas case:

According to the Fifth Circuit, the district court upheld the law because "there is no constitutionally protected right to publicly promote obscene devices." Those challenging the law [the businesses selling sex toys] "claim that the right at stake is the individual’s substantive due process right to engage in private intimate conduct free from government intrusion." Texas itself proposes that the case is about “the right to stimulate one’s genitals for non-medical purposes unrelated to procreation or outside of an interpersonal relationship.” (See Dorf's Findlaw.com column which discusses the importance of the level of generality in phrasing rights.)

The Fifth Circuit uses Lawrence v Texas as its guide. Lawrence struck down a(nother) Texas law that made it a crime to engage in consensual homosexual intercourse and struck down Bowers v Hardwick (a 1986 case that upheld a similar law). The Fifth Circuit quotes Lawrence:

To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse. The laws involved in Bowers and here are, to be sure, statutes that purport to do no more than prohibit a particular sexual act. Their penalties and purposes, though, have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home.

They emphasize [conservative get-government-off-our-back types take note]: "The right the Court recognized was not simply a right to engage in the sexual act itself, but instead a right to be free from governmental intrusion regarding 'the most private human contact, sexual behavior'." The Fifth Circuit notes that in Lawrence, the Supreme Court "expressly held that 'individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of ‘liberty’ protected by the Due Process Clause of the Fourteenth Amendment. Moreover, this protection extends to intimate choices by unmarried as well as married persons'.” (It took the law a while to recognize that privacy attached to individuals, not marriages, as the right to privacy grew out of a 1965 case Griswold v Conn. involving the right of married couples to use contraceptives.)

What's important Lawrence and this ruling is the precedence given to individual liberty over the state's interest in "public morality laws" (badly named because the act is done in private). Texas asserts an interest in "discouraging prurient interests in autonomous sex and the pursuit of sexual gratification unrelated to procreation and prohibiting
the commercial sale of sex." The Fifth Circuit notes:

In Lawrence, Texas’s only argument was that the anti-sodomy law reflected the moral judgment of the legislature. The Court expressly rejected the State’s rationale by adopting Justice Stevens’ view in Bowers as “controlling” and quoting Justice Stevens’ statement that “‘the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.’”

The Fifth Circuit also notes that the "commercial sale of sex" is a problematic formulation:

The sale of a device that an individual may choose to use during intimate conduct with a partner in the home is not the “sale of sex” (prostitution). Following the State’s logic, the sale of contraceptives would be equivalent to the sale of sex because contraceptives are intended to be used for the pursuit of sexual gratification unrelated to procreation. This argument cannot be accepted as a justification to limit the sale of contraceptives. The comparison highlights why the focus of our analysis is on the burden the statute puts on the individual’s right to make private decisions about consensual intimate conduct. Furthermore, there are justifications for criminalizing prostitution other than public morality, including promoting public safety and preventing injury and coercion.

Frankly, I'm skeptical that prostitution laws uphold public safety - prostitutes are harmed all the time partly because they cannot go to the police and report injuries. That's a different story, but see the decision by a New York court striking down the prostitution law and Stanford Encyclopedia of Philosophy entry on Feminist Perspectives on Sex Markets.

[Hat tip to Health Law Blog] 

If the embedded player doesn't work, here's the link for the playlist (six parts of about 10 minutes each). And just to make sure it's accessible - Part 1, Part 2, Part 3, Part 4, Part 5 and Part 6.

Many thanks to Carole Garrison and EKU multimedia for making this happen.

SUBPRIME FINANCIAL SCANDAL 

On the first page of the Tale of Two Criminals article, I added a box, "Questions we should be asking" and included this:

Why, soon after the S & L crisis, did Congress go on a wave of “cavalier” financial deregulation, creating a “paradox of increasing financial deregulation coming on the heels of the most catastrophic experiment with deregulation in history” [Calivita, Pontell & Tillman, Big Money Crime: Fraud and Politics in the Savings and Loan Crisis]. This question is especially important in light of complaints - discussed in the final section - that the Sarbanes-Oxley reform legislation goes too far, it's unnecessarily rigorous and should be relaxed.

While Sar-Box "reform" is still an issue - it is such a hassle to make sure there's no fraud - what we have seen is massive problems with subprime lending and a host of financial products (CDOs, etc) related to them.  Forbes magazine asks: Credit Crisis: Where was the SEC? (via Financial Armaggedon). A few snippets:

Investment banks, mortgage brokers and ratings agencies are all being blamed for the subprime mortgage bubble and its sudden and stunning demise. But little has been said about the watchdogs at the Securities and Exchange Commission (SEC) and the Financial Industry Regulatory Authority, the regulators who oversee the activities of the banks. They have the power to stop fraud in the business of selling the complex credit derivatives, and they have jurisdiction over whether the complex securities sold by the banks met suitability requirements for the investors who bought them. Yet time and again, they've failed to do so...

Washington and Wall Street have been hesitant to clamp down on the over-the-counter market, the source of much profit-making. Last year, as the subprime market began its collapse, the President's Working Group, which includes the Treasury Department, the Federal Reserve, the SEC and the Commodities Futures Trading Commission, recommended against tighter oversight of the over-the-counter market, in the context of vetoing tighter regulation of hedge funds, saying the industry can self-police...

Leaving it up to Wall Street hasn't proven very effective, however. "The decision by the President's Working Group to recommend no detailed regulation of the over-the-counter market was wrong," says David Ruder, a former SEC chairman and now law professor at Northwestern University.

Thepriceofeverything blog comments on the ability to self-police: "After the dotcom research fiasco (where $10bn was paid in settlement, mysteriously without any acknowledgment of blame) and now subprime, with the apparent connivance of the ratings agencies, expecting Wall Street and the City to show moral leadership is like expecting brothel-keepers to advocate chastity."

In an earlier piece I did with Jeff, Getting Tough on Corporate Crime, Enron and a year of Corporate Financial Scandals, we noted a huge conflict of interest with brokerage houses making millions in fees from companies and having supposedly independent analysts tout them to the public as stocks that should be bought:

brokerage firms came under fire because their high-profile analysts enthusiastically endorsed stocks publicly that they were disparaging privately (in emails), all because their firms derived underwriting fees or other business from the troubled companies. Salomon Smith Barney telecoms analyst Jack Grubman admitted that “The bank supported ‘pigs’ [i.e., stocks in poorly performing firms] in supposedly objective research notes to ensure that [those firms] granted Salomon investment banking business.”  And Merrill Lynch internet analyst Henry Blodgett described some stocks as a “piece of shit” while recommending them to small investors. 

Now, we see some different conflicts of interest with the ratings agencies like Moody's and S & P. They didn't catch all the problems with the bonds and financial products built off subprime loans, and gave the products the top AAA rating. (Imagine you paid Equifax for your credit score and they were dependent on your satisfaction for you to continue pay...)

Moody's and S & P are now being investigated by New York State Attorney General Andrew Cuomo (where is the SEC? Indeed, with Enron and earlier frauds, then NY Attorney general Spitzer did most of the work.) The ratings agencies are going to change the system they use and decide whether to put warning labels on their ratings. Barry Ritholtz, a NY hedge fund manager, suggests this:

WARNING: THESE BONDS HAVE BEEN RATED AAA BY A MAJOR RATING FIRM. THESE RATING FIRMS HAVE PROVEN THEMSELVES TO BE CLUELESS, MONEY-LOSING INCOMPETENTS IN EXCESS  OF A TRILLION DOLLARS IN LOSSES. THEY WERE PAID HANDSOMELY BY THE BOND UNDERWRITER, AND ARE HOPELESSLY COMPROMISED. PURCHASERS OF THESE BONDS ARE ADVISED TO  IMMEDIATELY  KILL THEMSELVES, THUS SPARING THEIR LOVED ONES EMBARRASSMENT IN THE FUTURE. ALSO, THESE BONDS MAY LOSE VALUE. I JUST WET MYSELF MERELY THINKING ABOUT THIS PAPER. WHILE PAST PERFORMANCE IS NOT INDICATIVE OF FUTURE RETURNS, YOU SHOULD BE AWARE THAT PAST PERFORMANCE ALSO SUCKED. DONT BLAME US IF YOU LOSE ANY MONEY, AS WE HAVE NO IDEA WHAT THE F$#@ WE ARE DOING ANYWAY. REALLY, YOU ARE ON YOUR OWN.

Ouch. While you're over at Barry's blog, check out his posting on "occupancy fraud" and the attempt to shift blame for the problems onto individuals: "Zero adult situation across the entire process, and now, wild ass covering and blame shifting."

Looks like we're in good shape - do nothing about this mess, undo Sar-Box soon and wait for the next massive fraud that will take everyone by surprise.  

On the other hand, Kentucky has only done 1 execution and there was not a problem. So the case involves potential problems with the execution protocol, focusing on concerns about administration of the drugs. For example, during oral argument, Justice Stevens forced the concession that if the protocol was followed, there would be no case. But he was also deeply disturbed that one of the drugs in the mix is given to paralyze the inmate but does nothing to bring about death; it prevents contortions and other signs that might be disturbing to witnesses and supposedly contributes to the 'dignity' of the execution. But if the first drug - a pain killer what quickly wears off - is not given in a high enough dose, then the inmate would experience severe pain from the second two drugs. 

As a quick review: The first drug is sodium thiopental, a "fast-acting barbiturate" that makes the inmate unconscious. The second drug is pancuronium bromide, which causes paralysis and stops muscular movement.  The third drug is potassium chloride, which causes cardiac arrest. The sodium thiopental is fast-acting and fast-wearing off, so if the dose is not high enough, the condemned will feel both burning from the other drugs being injected and a "chemical asphyxiation" (choking, etc). But because of the pancuronium bromide, the condemned is paralyzed and unable to show pain. For this reason, the veterinarians do not use it and argue they can more closely monitor the euthanasia of animals.

It seems like the problem should be easy to fix by drawing on doctors to come up with the right dosage and mix to do the job right. But the American Medical Association ethics prohibit doctors being involved in any way. Medical ethics call for doing no harm and require informed consent for medical procedures or specific directives for withdrawing care (and letting the underlying disease cause death). Having doctors participate in executions might also undermine public confidence in medicine, so the American Society of Anesthesiologists has a brief telling the Court that there are problems but they can't help - it is not a health issue or a medical problem.   

So, fixing the problems represents a problem. So does keeping the present system. And the case itself seems to have an inadequate basis for the Court to raise some issues it might want to hear (i.e. alternate drugs and combinations). Finally, the Court has stayed all lethal injections pending the decision here, which means that sending the case back for additional argument would effectively put a moratorium on executions for the near future. Declaring lethal injections unconstitutional until further study would mean going back to electrocutions, maybe even a hanging or firing squad. (Justice Scalia sees no problem with the current system, so there is part of the Court that wants to vote against the inmates and resolve the uncertainty solidly in favor of the present system.)

Welcome to the American death penalty, 2008.

For more information, the following current resources are available: 

Background brief from Cornell Law School; Berkeley Law School "resource kit" on the case; Supreme Court wiki materials.

Transcript of oral argument (note on p 29: the state has practiced and done the execution drill 100 times, but only executed 1 inmate. And people ask why the death penalty is more expensive than life in prison!) The Oyez project has an audio file for those who want to listen to oral argument plus the full transcript.

Links to all briefs in the case (Berkeley Law School/lethalinjection.org) While all the briefs are interesting in some way, I'd suggest the Brief of the American Society of Anesthesiologists (filed "in support of neither party") and the brief by the veterinarians (filed in support of the condemned). The Brief of Critical Care Providers and Clinical Ethicists is quite detailed about pancuronium bromide and filed on behalf of the condemned. [There's also a .pdf summary of all the briefs.]

Sentencing Law Blog (written by a law prof) has background on this case, other challenges to lethal injection and will do a better job keeping current than I will). Prof Berman also has an 8 minute podcast.

Observations Regarding Lethal Injection, by the President of the American Society of Anesthesiologists (30 June 2006). Good brief summary of ethical issues, and part of what I found interesting:

Even more troubling to me is the Missouri court’s move to require an environment more like an “operating room”. I am concerned because anesthesiologists actually have more of a reason not to be involved than other physicians. The more the execution looks like an anesthetic, the less comfortable patients are likely to be with anesthesia. Surgery is already a frightening time and one in which patients need to trust their anesthesiologist. The last thing patients need is to equate the O.R. with a death chamber, to equate anesthetic drugs with death drugs, or to have in their subconscious the specter of the anesthesiologist as an executioner.

Lethal Injection for Execution: Chemical Asphyxiation?  Article in the peer-reviewed Public Library of Medicine journal.

If that's not enough, the Supreme Court wiki has links to more news articles and blogs.  

Among the highlights:

When asked about Christianity and the many who call themselves Christian but do not share his values, Carter commented "I worship the Prince of Peace, not the Prince of Pre-emptive Strikes."

He articulated human rights as simple common sense - the right to have a job, the right to have shelter, the right to have food, the right to basic health care, the right to some human dignity and the right to hope for a better future. [Hallelujah!]

Yes, a silly picture of Jimmy Carter with a cell-phone camera from across a large ballroom.  

He did a great job during the question and answer, especially the final question about whether the reputation of the U.S. was irreparably injured in the global community. No, Carter said - the next president could take huge steps to fixing it in the first 10 minutes. State: The U.S. will not torture; we will abide by the Geneva Convention; we will respect nuclear non-proliferation agreements; we will abide by the Kyoto Protocol on global warming; ...

So, which one of the many presidential candidates in our great two party system will do that?

The simulation imagines human to human transmission that starts in Asia but quickly spreads because of airline passengers.

One of the biggest challenges financial institutions will face is how to cope with absenteeism. In week one, the Treasury exercise directs the financial organizations to assume that 25 percent of their work force is not coming to work, either because of illness or because of fear of being infected or because they are staying home to take care of children who can't go to school because the schools have closed.

To decide who is absent, the Treasury directs the institutions to assume that everyone whose last name begins with certain letters, which could cover the bank president down to the local teller, cannot come to work. The 25 percent absentee rate will jump to 49 percent in week two.

[snip]

Absent employees won't be the only troubles facing the financial institutions. Under Treasury's scenario, they also will have to cope with shrinking Internet bandwidths as more and more people try to work from home. Cash withdrawals from ATM machines are expected to rise sharply and getting the machines refilled will present problems because of rising absentee rates at the armored car companies and the difficulty of getting fuel for the armored trucks as gasoline refineries curtail their production.

The simulation finished last month, although it will be a while before all the results are analyzed a report comes out. In the meantime, TheStreet.com recommends you prepare for the bird flu also. I'm not so sure, but I would look over the recommendations and see which ones reinforce other disaster preparedness ideas you might already be considering. If you take this seriously, then check out PlanForPandemic.com and PandemicFlu.gov.  

Many people like the idea of putting away gold or silver in case of an emergency, especially "junk silver" coins. [Before 1964 U.S. coins were made with silver, giving them a value because of the precious metal and would be easy to trade because it is a known amount of silver in smaller coins instead of a gold bar.] But note that the U.S. Treasury claims the power to seize not just precious metal but all other financial assets if necessary.  You can rub your eyes and blink again, but the sentence will read the same. And it is based on a letter from the Trasury, not the rantings of a paranoid here-comes-the-black-helecopters type.

Now, back to your regularly scheduled reality...

Because most shares are owned by management and large institutions, shareholder votes go overwhelmingly in favor of what the Board recommends. The results are found in the 10Q form (p 40), filed after the annual meeting and we see:

On a stockholder proposal for the Company to provide a semi-annul report to stockholders disclosing certain information with respect to the Company’s political contributions and expenditures, 28,180,340 shares, or 25% of the shares present or represented at the Annual Meeting, voted in favor of the motion, 52,448,090 shares voted against the proposal and 33,524,778 shares abstained.

The 14A also contains new info on executive salaries, which I will soon use to update my existing page on why private prisons do not save money over public prisons (hint - the CEO's salary is $700,000).

This is disappointing but not surprising. It's no consolation, but CCA is in good company with Google. As a column on TheStreet.com explains, the by the New York City Comptroller proposal meant

Google management would have been required to take all legal steps possible to fight any demand for censorship. The company would never have been required to break the law anywhere. But if a government wanted Google to start doctoring search engine results to suppress politically inconvenient truths, that government, any government, would have had to take the company to court to impose its will.

Not much to ask, really. But it was too much for Brin, Page and Schmidt. And it was too much for your fund manager. (Brett Arends, Funds Cave to Google Blind Eye at Censorship 9/26/2007)

Who needs political freedoms and transparency when you have capitalism? 

The usual question is "Why Does She Stay?" but we know the real question should be "Why Is He Violent?" Still, if this is the question you have, then read Why (Some) Women (Sometimes) Stay.  

The issue is changing men's behavior, so I'd suggest checking out the resources on StopViolence.com about Men Working to End Violence Against Women.  

For anyone who is motivated, you can donate to SafeHouse or use your Amazon account to order off their wishlist.  

Of course they're only a few months old and oblivious. But I wondered what the commemorations would be like as they got old enough to read the diary and re-read it over the course of their life.  What would the 25th anniversary of Sept 11 be like?

As I had that thought, I also realized it was very likely that another event would overtake it and be more significant for them.  At that point, my thoughts seemed less appropriate for their diary than my websites, where I have been concerned about future terrorism.

Part of what prompted this line of thinking was doing some updating of the Teaching and Understanding Sept 11 over at my StopViolence site. So, here's the intro I wrote a few days before Sept 11:

Rather than writing a detailed introduction, I will refer readers to the full text of a chapter Mark Hamm graciously allowed to be posted here. It's called Al-Qaeda, the Radical Right and Beyond: The Current Terrorist Threat and it is from his new book. I think it provides an excellent review of what has happened since 9/11 as well as some important thoughts for the future. 

One important worth noting comes from an article written by Kean and Hamilton, the 9/11 Commission Chair and Vice-Chair. Their article, Are We Any Safer Today? notes: "Six years later, we are safer in a narrow sense: We have not been attacked, and our defenses are better. But we have become distracted and complacent." (Washington Post, Sept 9, 2007, B1). They note slow movement on a number of reforms and a very resilient enemy. Of particular significance for the editors of this website is their comment:

We face a rising tide of radicalization and rage in the Muslim world -- a trend to which our own actions have contributed. The enduring threat is not Osama bin Laden but young Muslims with no jobs and no hope, who are angry with their own governments and increasingly see the United States as an enemy of Islam.

Four years ago, then-Defense Secretary Donald H. Rumsfeld famously asked his advisers: "Are we capturing, killing or deterring and dissuading more terrorists every day than the madrassas and the radical clerics are recruiting, training and deploying against us?"

The answer is no.

U.S. foreign policy has not stemmed the rising tide of extremism in the Muslim world. In July 2004, the 9/11 commission recommended putting foreign policy at the center of our counterterrorism efforts. Instead, we have lost ground.

The concern about foreign policy also expressed in my chapter, Demystifying Terrorism: 'Crazy Islamic Terrorists Who Hate Us Because We're Free'? The full text of that chapter is available on this site, and as a preview I answer that they're not crazy. 

With the recent video from bin Laden, it is worth commenting briefly on him and al Qaeda. I have kept my page on bin Laden as the photo of the moment for a while, not just because I've been busy, but because I never bought into the belief we had somehow won and his organization was neutralized. I think this reinforces the resilience of the enemy and think bin Laden is important as an inspiration to many, who is also a shrewd ringleader for al Qaeda. A Washington Post article The New al Qaeda Central discussed the recent failure to keep the pressure on bin Laden, which has given him the chance to regroup, recruit and promote loyalists from within. Part of their take:

"All this business about them being isolated or cut off is whistling past the graveyard," said Michael Scheuer, a former CIA analyst who led the agency's unit assigned to track bin Laden. "We're looking at an organization that is extraordinarily adept at succession planning. They were built to survive, like the Afghans were against the Russians."

So, in a nutshell, we have a vibrant al Qaeda that is easily recruiting from the ranks of people radicalized by what the US is doing in Iraq. Kean and Hamilton are worried about nuclear proliferation and terrorism; Mark Hamm is worried about chemical weapons and terrorism. 

We should be studying these issues all year round, not just thinking about them once a year on the anniversary of Sept 11.

In a way, I guess it doesn't matter that the post was a few days late and I hope it both expanded the time frame during which we think about terrorism and countered even a little complacency.

According to one write-up that has a good Q & A:

The current law links a company's guilt to the gross negligence of an individual who is said to be the embodiment of the company. It has proved very difficult to prosecute large organisations, and the only successful prosecutions have been against small companies where the director and company are essentially one and the same.

The new Act seeks to address this difficulty by focusing on the way in which a company's activities are managed or organised, and it is not reliant on one individual being found guilty of gross negligence manslaughter. The courts will now be able to consider the wider corporate picture, looking collectively at the actions, or more appropriately the failings, of the company's senior management.

In terms of punishments:

Penalties include an unlimited fine, remedial orders and publicity orders. A remedial order will require an organisation to take steps to remedy any management failure that led to death. The court can impose an order publicising the fact the company has been convicted of the offence, providing details, the amount of any fine imposed and the terms of any remedial order made.

None of these ideas are especially new or even very radical - except, perhaps in a country where there is a harsher penalty for harassing a wild burro on federal lands than causing the death of a worker by willfully violating safety laws. (And after 25 years of tough of crime, that didn't change.)

Indeed, I'd tend to agree with the Centre for Corporate Accountability's assesment that "this Bill represents a significant missed opportunity though still allows for some advance in the possibilities of accountability and justice following deaths at the hands of organisations."

I did a search on Google news about this legislation and the only news items were from the U.K., Canada and New Zealand. Not a single story from the U.S. press, not even after the coal miners were trapped and killed by a cave-in possibly related to safety violations. 

So, for those interested:

• Download the full text of the Act
  
• Read the history of the Act and Parliamentary debate 
• The U.K.'s "Corporate Manslaughter" Statute: British Versus American Approaches to Making Firms Responsible for Deaths Resulting from Gross Negligence

Why Is Photographing an Execution A Crime? Once and Future Issues Raised by the Suit to Webcast McVeigh's Execution.

An early edition of Death Work opens with a story about a sailor washed up on an island, and while he is initially apprehensive about the inhabitants, he sees a gallows and is relieved: ‘Ah, civilization!’ A variation of the joke is in the South Park movie, where the televised execution of two Canadians is proclaimed ‘a great day for democracy.’ But the humor became more serious when an internet entertainment group sued to get access to the closed-circuit feed of McVeigh’s execution, which was already going to an auditorium in Oklahoma City. McVeigh supported making the execution more public because he said he favored scrutiny of government action, and the gleefully pro-death penalty Bush administration argued in favor of limiting access to the execution of a terrorist by lethal injection.

This presentation examines two issues raised by this event. First, why is it that a photographer at an execution is a criminal? Why is it a crime to make a video tape of a mass murderer being put to sleep? Second, would the televised execution of a terrorist be a great day for democracy? Why is it that the terrorist who blew up a day care center in the Oklahoma city federal building is the one in favor of public scrutiny of government actions and the government putting him sleep seems to shy away from public accountability?

An examination of these questions starts with a brief history of public executions, private execution statutes and a review of several legal cases involving suits over televised executions. Second, I provide background on McVeigh blowing up the federal building in Oklahoma City and express some surprise that President Bush didn't want to televise the execution given his history of unflinching support for the death penalty. Finally, the presentation reviews the ensuing legal case, Entertainment Network v Lappin, and critiques its conclusion that televising the execution of a terrorist would lead people on death row to feel that the death penalty was dehumanized sport. Given the prevalence of the 'execution card' in political races and all the problems with the death penalty - including many actions of Bush - it's difficult to believe that the televising of McVeigh's execution would lead men the men on death row to feel bad about executions. 

____________

This builds on earlier research (which I noted in an earlier post about the video of Hussein's hanging), but adds in some new information about televised execution case law and a sharper critique of the decision which limited access to the video of McVeigh's execution.

This picture is from Detroit's Labor Day Parade. I wrote about it at the time - the professors' union was on strike and walking in the parade. This was a photo I took bit didn't use at the time.  

What's interesting is looking at the chart of their stock price, especially in light of discussion on various websites about how they're a hot stock and gaining rapidly. I tend to be skeptical because I teach about private prisons and show my class newspaper stories from the 1980s and 1990s saying the same thing. Indeed, the stocks had a good run befre mismanagement, shareholder lawsuits, escapes and riots caused them to go into near bankruptcy.

But here's the chart of their stock price that's included in some of the SEC filings:

Wow - looks great. Where do I buy!

But wait, here's the longer term view:

This bottom chart is a longer time frame. You can see all the hype and frenzy leading up to a monumental, wealth-destroying crash. But if life gives you lemons, make lemonade - take the absolute low point of your stock price (well under $0.50 a share) and make it the starting point to show how much you have recovered.

The compelling story about growing incarceration rates has been constant through this time period. Almost everything I read now about why this stock is a winner I read in the run-up to that 1998 high. I now read the management team is much better, but I also read that CCA founder Doc Crants got innovator of the year awards leading up to the peak.

Why Private Prisons Don't Save Money

I know it is surprising o read they don't, but a study by the National Institute of Justice found a savings of 1% - and many other studies have not been able to find a difference. For their annual report and webpage CCA cherrypicks the studies it uses to show a large savings. But you should be skeptical of that as well as claims they offer better rehabilitation programs that lower recidivism.

With costs savings, consider:

• CEO John Ferguson made more than $1.4 million in salary and bonus. That was for 2005, bith an increase to base salary for 2006. Compare that with a state Dept of Corrections chief. Pay for all the top executives is much higher than their state couterparts.
• Retainer for being on the Board: $50,000 + $3,000 a meeting.
• Recapitalization and refinancing: $32 million ("As of December 31, 2005, we had total indebtedness of $975.6 million")
• General and Administrative Expenses: $57 million
• Exposure to lawsuits: "As of December 31, 2005 and 2004, we had $13.2 million and $16.6 million, respectively, in accrued liabilities related to certain legal proceedings in which we are involved."
• Customer Acquisition Costs: $873,000 + customer list $765,000
• Sale of additional stock: $510,000 

The rest of list of a private prison's overhead costs, with citations to the SEC documents, is part of the Crime Pays resources at my website.  

Why?

I'm not advocating it, but curious to explore the issue. One of the departure points for the piece on McVeigh's almost televised execution is a scene from the South Park movie  (South Park - Bigger, Longer & Uncut). They're televising the executions of the Canadians and announce 'This is a great day for Democracy.'

Isn't that basically the situation with both McVeigh and Hussein. McVeigh killed 186 in an act of terrorism, and many claimed we have a death penalty for exactly this type of crime. No questions of guilt, no thorny racial issues and a chance for the fervently pro-death penalty President Bush to show the skeptical world the face of American executions: putting a terrorist and mass murderer to sleep with the prick of a needle. (Ok, there's some debate about that...) The death penalty doesn't get any more legitimate than that, but we can't pull the curtain and show the U.S. the workings of policy done in their name. (Why is it we have COPS and Court TV, but no punishment TV?)

Hussein is another mass murderer, and President Bush said his execution "is an important milestone on Iraq's course to becoming a democracy that can govern, sustain and defend itself, and be an ally in the War on Terror." But NBC talked about a "wide shot" of the hanging, or even an image from afterwards; "CBS will not show it, no matter what” according to the NY Times. ABC talked about "taste and propriety," which begs the question of why toppling his statue was a huge photo-op, but this milestone is inappropriate? Indeed, the U.S. Army Signal Corp and War Dept shot footage of Nazis at the moment of their hanging, but in this golden era of telecommunications the US allows the hanging to only be recorded with a cell phone?

Again, I'm not advocating the video be run on prime-time with highlights repeated every ten minutes like so many other lesser events. But there seems to be some tension here between our ideas about civilization, democracy and executions. If it's a great day for democracy, then why is it inappropriate television - and given what passes for 'appropriate' on television, saying something is too too tasteless to show is an incredibly strong statement.

• Direct link for Saddam Hussein's full execution video (LiveLeak.com) 

• My other website has numerous resources on televising executions, including the full text of the chapter I wrote (Fear and Loathing in an Age of Show Business), the short piece on why the US should televise McVeigh's execution or abolish the death penalty, the short piece on why the photographer at an execution is a criminal, and some other links on televising McVeigh's execution.

• Audio recordings have been made of some U.S. executions that you can listen to.
  

I'll take a wild guess that the main issue will be standing, the legal doctrine about the ability of a party to sue (in this about the level and directness of harm)...  I'd look for the Court to duck the substantive issue in favor of a narrow, technical/procedural ruling that disposes of the case and leaves the status quo in place.

The direction of oral argument seems to back this up. According to a column over at Findlaw.com, The Supreme Court Oral Argument in the Global Warming Case Reveals What's Wrong With the Standing Doctrine: "Roughly half of last week's oral argument focused not on whether the EPA violated its legal duty in failing to promulgate regulations, but instead on whether Massachusetts and other states have legal standing to seek judicial review of the EPA's inaction. A decision dismissing the case on standing grounds is a real possibility."

The author reviews the general requirements of standing, then explores each one is more detail, so this is a good opportunity to deppen our understanding of an important concept. Here's the short explanation of standing from the Findlaw column:

The standing rules that the Supreme Court has located in the case-or-controversy requirement are complex, but three requirements stand out as particularly strange in a case like Massachusetts v. EPA. The plaintiff must show: first, that the injury alleged by the plaintiff is imminent; second, that the alleged injury is "concrete and particularized," rather than a "generalized grievance;" and third, that it is "likely," rather than merely "speculative," that the alleged injury will be redressed by a favorable judgment.

The remainder of this post reviews the oral argument about standing. That may sound dry, but I think it is important to understand what it means to 'think like a lawyer'  - or at least a Justice - about a social problem like this. After all, many problems we face are cumulative and global, and thsi is a test case of how willing courts are to deal with these.

Looking at the transcript of oral argument, the lawyer for Massachusetts (Milkey) gets about 90 seconds into his opening, and 

JUSTICE SCALIA: I thought that the standing requires imminent harm. If you haven't been harmed already, you have to show the harm is imminent. Is this harm imminent?

MR. MILKEY: It is, Your Honor. We have shown that the sea levels are already occurring from the current amounts of greenhouse gases in the air, and that means it is only going to get worse as the --

JUSTICE SCALIA: When? I mean, when is the predicted cataclysm?

MR. MILKEY: Your Honor, it's not so much a cataclysm as ongoing harm. The harm does not suddenly spring up in the year 2100, it plays out continuously over time. And even to the extent you focus on harms that occur in the future, there's nothing conjectural about that. Once these gases are emitted into the area, and they stay a long time, the laws of physics take over.

JUSTICE SCALIA: Well, there's a lot of conjecture about whether -- I gather that there's something of a consensus on warming, but not a consensus on how much of that is attributable to human activity. And I gather that -- what is it? Something like seven percent of the total carbon dioxide emissions are attributable to automobiles in the United States?

MR. MILKEY: It's actually about 6 percent, Your Honor.

~snip~

CHIEF JUSTICE ROBERTS: How is that consistent with our taxpayer standing cases where the argument is that a taxpayer doesn't have standing to challenge an illegal expenditure as a general matter simply because his contribution, the benefit that he's claiming is so small and so widely dispersed?

MR. MILKEY: Your Honor, it is different because here there is particularized injury that we have shown. The injury doesn't get any more particular than states losing 200 miles of coastline, both sovereign territory and property we actually own, to rising seas.

The conservative justices like to point out that the problem is global, so even if the U.S. does act, other countries might not, so there is not the element of 'redess' that's necessary.

JUSTICE ALITO: To the global. And so, the reduction that you could achieve under the best of circumstances with these regulations would be a small portion of that, would it not?

MR. MILKEY: It would be, we have shown in the record it would be about a two-and-a-half percent over the time it takes to turn the fleet over. But it's important that given the nature of the harms, even small reductions can be significant. For example, if we're able to save only a small fraction of the hundreds of millions of dollars that Massachusetts parks agencies are projected to lose, that reduction is itself significant.

CHIEF JUSTICE ROBERTS: That assumes everything else is going to remain constant, though, right? It assumes there isn't going to be a greater contribution of greenhouse gases from economic development in China and other places that's going to displace whatever marginal benefit you get here.

MR. MILKEY: Yes, Your Honor. But reducing domestic emissions will reduce our harm, the harm we would otherwise face regardless of what --

CHIEF JUSTICE ROBERTS: Not if your harm is the alleged loss of coastline. Not necessarily. It depends upon what happens across the globe with respect to greenhouse emissions.

MR. MILKEY: Your Honor, we would still lose coastline but we would not lose as much because these harms are cumulative, and while reducing U.S. emissions will not eliminate all the harm we face, it can reduce the harm that these emissions are causing. So it will necessarily reduce our harm and satisfy redressibility.

JUSTICE SCALIA: I mean, do we know that that's a straight line ratio, that a reduction of two-and-a-half percent of carbon dioxide -- well, two and a half overall would save two-and-a-half percent of your coastline? Is that how it works? I'm not a scientist, but I'd be surprised if it was so rigid.

MR. MILKEY: Your Honor, I don't believe it's established it's necessarily a straight line. But I want to emphasize that small vertical rises cause a large loss of horizontal land. For example, where the slope is less than 2 percent, which is true of much of the Massachusetts coastline, every foot rise will create a loss of more than 50 feet of horizontal land. And for example, in the State of New York, the Oppenheimer affidavit projects that New York could well lose thousands of acres of its sovereign territory by the year 2020. So the harm is already occurring. It is ongoing and it will happen well into the future.

The Court spends some time wondering if large - or small - landowners with beachfront propoerty would also have standing, and whether Massachussets has additional standing because they are a state. They also debate how similar this case is to EPA's decision to remove lead from gasoline. Then, Justice Scalia has an idea about what 'pollution' means:

JUSTICE SCALIA: To be sure, carbon dioxide is a pollutant, and it can be an air pollutant. If we fill this room with carbon dioxide, it could be an air pollutant that endangers health. But I always thought an air pollutant was something different from a stratospheric pollutant, and your claim here is not that the pollution of what we normally call "air" is endangering health. That isn't, that isn't -- your assertion is that after the pollutant leaves the air and goes up into the stratosphere it is contributing to global warming.

MR. MILKEY: Respectfully, Your Honor, it is not the stratosphere. It's the troposphere.

JUSTICE SCALIA: Troposphere, whatever. I told you before I'm not a scientist. (Laughter.) That's why I don't want to have to deal with global warming, to tell you the truth.

MR. MILKEY: Under the express words of the statute -- and this is 302(g) -- for something to be an air pollutant it has to be emitted into the ambient air or otherwise entered there.

JUSTICE SCALIA: Yes, and I agree with that. It is when it comes out an air pollutant. But is it an air pollutant that endangers health? I think it has to endanger health by reason of polluting the air, and this does not endanger health by reason of polluting the air at all.

MR. MILKEY: Your Honor, respectfully, I disagree, and there is nothing in the act that actually requires the harm to occur in the ambient air. In fact, some of the harm here does occur there.

JUSTICE SCALIA: Well, it talks about air pollution all the time. That's what the, that's what the thing is about, air pollution. It's not about global warming and it's not about the troposphere.

MR. MILKEY: Your Honor, we are not saying, first of all that global warming is air pollution, any more than we're saying that asthma is air pollution. They're both effects. I would point you to the example of acid rain, where the pollutant there, sulfur dioxide, the problem is it causes its harm after it leaves the air, after it gets washed out. Air pollutants do not need to cause harm in the ambient air.

Your Honor, I would add that our interpretation satisfies common sense because, while EPA has plenary authority over substances that motor vehicles emit, those substances are regulated only if EPA determines that they cause endangerment. By defining the term "air pollutant" comprehensively, Congress has not prejudged what may cause endangerment, but it has allowed other pollutants to be regulated as their harms become appreciated. It is EPA's interpretation that fails the common sense test. They have suggested that the term "air pollutant agent" creates an independent test so important that it may prevent some harmful compounds from being regulated without providing any hint of what the term means or how it applies in this case. And they cannot explain any number of anomalies such as the fact that methane is already a regulated air pollutant, yet they claim they can't look at its climate effects.

I think this post has gone on long enough for people to get the idea, and for many to see why the Findlaw column wants to change the standing doctrine. It is interesting, though, that when Mr Garre starts arguing for the EPA, a different set of questioners emerge:

JUSTICE BREYER: Suppose it is not greenhouse gas. Suppose it was Agent Orange. Suppose there a car is coming down the street and it sprays out Agent Orange. And I come into the Court and I say, you know, I think that Agent Orange is going to kill me with cancer. And the reply is, well, we have some scientists here who say your chance of dying of cancer from Agent Orange is only 1 in 30. Maybe 1 in 50. Maybe 1 in a thousand. Maybe 1 in 10,000. And therefore, you have no standing to require the EPA to regulate this pollutant, Agent Orange, which is in a green cloud all over the city.

Now, would you say that the person who's made that claim has no standing?

MR. GARRE: Your Honor, I think that that is a fundamentally different case, for the simple reason that global climate change is a global phenomenon. I mean one --

JUSTICE BREYER: I was only addressing, using that to -- to address your problem that the chances are too small that, in fact, any one individual will be affected by the 7 percent or 6 percent of the material that comes out of the truck -- the CO2.

 ~snip~

JUSTICE SOUTER: But why do they have to show a precise correlation as opposed simply to establishing what I think is not really contested, that there is a correlation between greenhouse gases and the kind of loss that they're talking about; and it is reasonable to suppose that some reduction in the gases will result in some reduction in future loss. Why is that insufficient?

MR. GARRE: Justice Souter, one fundamental reason is that we don't know what the rest of the world is going to do, whether or not --

JUSTICE SOUTER: Let's assume the rest -- let's assume that the rest of the world does nothing. I don't think that's a very reasonable assumption, but let's make that assumption. So that the only thing we're talking is the 6 percent. If the 6 percent can be reduced -- I think the suggestion was over a reasonable period of time, by two and a half percent of the 6, there is, I suppose, reason to expect that there will be, maybe not two and a half percent less coastline lost, but some degree of less coastline lost because there is a correlation between the gas and the loss of the coastline. Why is that an unreasonable assumption to make in order to show causation and redressibility, bearing in mind that redressibility is a question of more or less, not a question of either/or.

They don't have to show that it will stop global warming. Their point is that will reduce the degree of global warming and likely reduce the degree of loss, if it is only by two and a half percent. What's wrong with that?

MR. GARRE: Justice Souter, their burden is to show that if the Court grants their requested relief it will redress their injuries. I'm not aware --

JUSTICE SOUTER: Not redress their injury in the sense that it will prevent any global warming or stop global warming and stop coastal erosion; their argument is a different one. It will reduce the degree of global warming and reduce the degree of coastal loss.

That's their argument. Not all or nothing. But a part. That's what they're trying to show.

MR. GARRE: And that's fine, Justice Souter, I grant you that. But they still have to show that there is reason that it is likely to believe, that the reduction in that tiny fraction of United States emissions, putting aside the 99 percent or the 95 percent in the rest of the world and what they do, and the evidence that shows that greenhouse gas emissions in those countries are increasing, they have to show the regulation of that tiny fraction would have an affect on their alleged injuries, not to completely redress them, Your Honor. We don't say that --

JUSTICE SOUTER: Don't they have to show that it is reasonable to suppose it will have an effect? [Paul's emphasis]

MR. GARRE: They have to show that it is likely, Your Honor. And they haven't even tried to make that showing. [Paul's emphasis]

JUSTICE SOUTER: Why is that showing -- and I agree with, by the way, with the Chief's suggestion a moment ago, life is not, or physics are not so simple as to assume that there's going to be a be a direct two and a half percent reduction of coastline for a two and a half percent reduction from the 6 percent.

But isn't it intuitively reasonable to suppose that with some reduction of the greenhouse gases, there will be some reduction of the ensuing damage or the ensuing climate change which causes the damage? Isn't that fair? [Paul's emphasis]

MR. GARRE: I don't think that it is fair, Your Honor. I don't want to pretend to be an expert on global climate change. But the one thing I can say is from the materials I looked at is that this an extraordinarily complex area of science. I'm not aware of any studies available that would suggest that the regulation of that minuscule fraction of greenhouse gas emissions would have any effect whatsoever on the global -- - [Paul's emphasis]

JUSTICE BREYER: Suppose others cooperate? Suppose, for example, they regulate this and before you know it, they start to sequester carbon with the power plants, and before you know it, they decide ethanol might be a good idea, and before you know it, they decide any one of 15 things, each of which has an impact, and lo and behold, Cape Cod is saved. Now why is it unreasonable? Why is it unreasonable to go to an agency and say now you do your part, which is 6 percent, and now we're going to go to a different agency like NHTSA and we're going to ask them too, and we're going to go to your electricity regulation program, and coal. And there are like not a million things that have to be done, maybe there are only seven. But by the time we get those seven things done, we'll make a big difference. Now what is it in the law that says that somehow a person cannot go to an agency and say we want you to do your part? Would you be up here saying the same thing if we're trying to regulate child pornography, and it turns out that anyone with a computer can get pornography elsewhere? I don't think so.

MR. GARRE: Your Honor, what I would point you to is your decision in Lujan versus Defenders of Wildlife, Justice Kennedy's opinion in ASARCO versus Kadish, where the Court made clear that you cannot establish standing based on predictions of the actions of independent actors not before it. That's true about other agencies that aren't here today. That's true about other countries whom this Court does not have jurisdiction over.

JUSTICE BREYER: So they couldn't have gone in and asked for ozone regulations, because that requires other countries? Or what about dumping heavy metals in the sea, and as the sea gets polluted because of what other countries do, but EPA tried to regulate that. Acid rain they tried to regulate. You're saying there is no standing to ask for any of that.

Since the Court spent little time on other issues, look for this one to be dismissed because of standing or kicked back to a lower court for further arguments on some narrow issues.