Thursday, July 24, 2008

The Extreme Right-Wing Michigan Supreme Court: A Case Study: People v Derror

Michigan has the most extreme right-wing Supreme Court in all 50 states. I don't say this just as hyperbole. I think this can be empirically shown. As part of an effort to do so, I'm going to look at one specific case. I will probably highlight others as well as I get the chance. There are plenty to choose from.

There are a lot of common themes in many of their opinions that I will highlight (mostly through pointing out what is written in the dissent, which does a pretty decent job of highlighting much of what the current majority of the court often does.)

The case is People v Derror. There are two major issues in this case that I will highlight. The first issue was whether 11-Carboxy-THC was a schedule 1 controlled substance. Briefly, this compound is a compound with NO pharmacological effects that forms in the body as part of the process of metabolizing (and ultimately expelling) THC from the body. And THC is the active (and thus usually illegal) ingredient in marijuana. It may be the case that trace amounts of it could be found with a sensitive enough test days, weeks, months, possibly even years after smoking a joint. Which is rather relevant to the second issue, but I'll get to that in a moment.

To end the suspense early, I'll say right now that the court held in Derror that this basically inert waste product was a schedule 1 controlled substance. They held this based on language in the statute that covers "derviative" and then their own interpretation of what a "metabolite" is. The basic "logic" was that, though the statute would appear to some to be referring to "derivative" products that were other drugs such as if you take one illegal drug and change it to make a slightly different drug, either one more potent or, perhaps, one you hope won't be covered under the criminal statute - but in fact is, because "derivatives" are covered, the Court knew what it REALLY meant. The Court took that language, pulled out their trusty dictionaries with all of their varied (and sometimes contradictory meanings) for "derivative" and promptly decided that what it REALLY meant is that any substance that is broken down from the illegal one (THC in this case), even if it is just a natural metabolic process that creates it and even if the substance has no effect on the body or mind.

Of course, this presented them with a slight problem, in that some of the other derivatives of THC in the body include carbon dioxide and water. In order to avoid that, they pulled out their trusty dictionaries and again arbitrarily selected defininitions that would allow them to keep 11-carboxy-THC schedule 1 while avoiding water and carbon dioxide being considered such.

Of course, the whole time they are doing this they are "protesting" that they are just following the "plain language of the statute." This despite the fact that the statute never gives a precise definition for those words nor does it even say which dictionary would be appropriate to consult. This is a common theme with the court. The right-wing justices often claim they are simply acting as pure "textualists" interpreting statutes and yet at the same time, where there are multiple definitions for a word, some that could support their right-wing interpretation, some that would support a more moderate interpration (or even, perish the thought, a liberal one), somehow the correct dictionary definition to use is always the right-wing one.

In this case, they go even further, as the dissent points out. They totally ignored that portion of the statute that says that the Michigan statute (which is identically worded to the federal statute listing schedule 1 drugs) is to be interpreted the same as the Federal statute. And federal courts have never held 11-Carboxy-THC to be schedule one. To the contrary, they hold it is not. But apparently our Supreme Court can ignore this becaues those pesky Federal courts weren't properly interpreting federal law (even though, by law, their interpretations ARE federal law). You see, the Federal courts considered such horrid things as the legislative history of the statute, something Michigan's Supreme Court considers irrelevant - after all, they have their dictionaries!

But now with Derror it gets worse. Because the second issue was whether, regarding the criminal statute for causing an accident while intoxicated, a defendant must be shown to have known he was intoxicted and if that intoxication caused the accident. The court found that no such showing need be made on either count. I could understand the notion of not wanting anyone to be driving around with intoxicants in them. But they go way beyond that here. Because, as noted above, 11-carboxy-THC could theoretically be found in a person weeks or even months or years after smoking a joint. They'd ordinarily have no way to know. So now someone can be arrested and charged with a serious felony for driving with a harmless, natural metabolic by-product that has no effect on driving and which could have been lingering for months. Isn't Michigan wonderful?

Now, the deck is pretty heavily stacked against criminal defendants everywhere. But in Michigan, you are basically screwed. Not just specifically because of Derror, but because that is just an example of the twisted pretzels of "logic" the court is willing to create just to keep defendants good and convicted.

Just to give a little taste of that, even though there is no reason to support it (other than blatent favoritism), prosecutor appeals get priority in Michigan. (They also can file their appeal briefs months or even over a year late and still have it be considered - defendants have to meet their filing deadline (usually only 21 or 28 days) or else). On top of that, one of the right-wing Supreme Court Justices has a standing order that every prosecutor appeal be heard by the Supreme Court. This is significant because the vast majority of cases (including those of criminal defendants who are appealing) never get heard by the Michigan Supreme Court. It is appeal by leave granted. And yet prosecutors get an automatic "in" there.

I hope that by pointing out cases like Derror, I could help at least a few people see just what sort of Supreme Court Michigan has. Most lay people have no idea. It is almost a sick joke amongst the members of the Michigan bar.

Wednesday, July 23, 2008

Busy Week

It has been a busy week (thus the lack of posts...) Just wanted to say that I'm leaving my current job and starting a new one next Monday (thus, the busy week). I'm excited to be doing something new, though I do love my current job. It should prove interesting. If I have time (which I may have today or tomorrow), I'm going to post an example of what I consider to be the right-wing induced insanity of the Michigan Supreme Court.

Thursday, July 17, 2008

Sean Tavis for KS State Rep

Now here is a really interesting web page for someone running for political office, with an interesting strategy - trying to get 3000 people to donate $8.34. It is charming enough it makes me want to vote for the guy and I don't even live in Kansas.

Man Arrested for "Unlawful Photography"

Via Dispatches from the Culture Wars: A man was arrested for "unlawful photography" for taking a picture of a police officer standing by the side of the road while engaged in a traffic stop.

What is interesting to note is that the officer now swears that it was about his fear for being hit with a "laser" and not just about a picture. First, there is no law (and can't be one) against taking a picture of a police officer in public. And second, the picture was taken with an iPhone, which has no laser, no flash, nothing which could be mistaken for a laser. In other words, this officer is full of it.

But this is just another example of how readily one can find police lying their asses off. Imagine all of those instances where it is not so clearly a lie (and where the defendants are poor or otherwise not likely to be believed by authorities). This is just disgusting. If there is any justice, those two officers would be fired, with a public statement from their police department that it was because they were dishonest about official police business and so were not fit to be police officers and could not be trusted to testify truthfully in court. (Thereby killing any chances that they could work as police elsewhere and testify).

This sort of thing just really annoys me. As far as I'm concerned, police need to be held to a higher standard. Instead, they are held to a lower one. People who lie under oath where another person's very freedom is at stake are despicable and ought to be punished severely. Particularly where those liars are police officers.

And (perhaps in homage to the Simple Justice blog), there is already a commenter on the news story who is reminding people that these officers don't really reflect on the police as a whole, they are just "bad apples." And so in my own homage to Simple Justice, I give you:

Wednesday, July 16, 2008

Why this election matters: The lower courts

I recently posted about how the Supreme Court is one big reason why this election matters. This article also points out how the lower courts also matter to a great degree, possibly even more so than the Supreme Court on a practical scale for many people. Because the president appoints all federal judges, not just the Supreme Court. And while the really big issues will get taken up by the high court, the vast majority of cases end at the federal appellate courts. This is because after a federal trial, you get one appeal as of right to the relevant Circuit Court of Appeals. And while you can appeal after that to the Supreme Court, odds are very good that such an appeal, which is by leave only, will be turned down. In recent years the high court has heard less than 100 cases (usually more like 80) per year, in years where the cases in the lower courts number in the many many thousands.

So the final word for most people will be at the Circuit Court. And so for most people the judges appointed at that level will be the most important decisive factor for their case.

With the number of (in particular) young judges appointed by Republican presidents over the past decades, those Circuit courts are all dominated by conservative GOP appointees. All have healthy majorities of GOP people, except for the 9th Circuit, which is more balanced. (And of course, which makes the 9th Circuit the whipping judges for complaints about court rulings made by GOP schills).

The Republicans know this, which is why they pick very young, very ideological candidates for these judgeships, with the intention of them sitting on the bench for decades. That's also why they whine when even a single extremist judge is prevented from confirmation. Witness the mantra of how every judge deserves an "up or down" vote and how suddenly the filibuster is an evil thing that is unsupported by the constitution because Senate confirmation only requires a simple majority (forgetting that this is the same rule for approval of legislation). Of course, they are HUGE hypocrites, because when the GOP controlled the Senate while Clinton was in office, they denied "up or down" votes to HUGE numbers of Clinton appointees, not by filibustering (since they didn't need to) but by simply refusing to even schedule hearings about the confirmation.(*) Dozens of judges sat waiting for years like this, a record number, only to be ultimately denied after Clinton left office. So after doing this to dozens and dozens of Clinton appointees, the GOP whined is ass off about a handful of judges being filibustered early in Bush's tenure. What a bunch of shameless assholes. What is sad, though, is that the know-nothing media just repeated the right wing talking points on this and did not provide any context by pointing out the hypocrisy or what the GOP did to Clinton appointees. Even sadder, the Democrats themselves failed to do this effectively.

But I digress. The main point is, who is president matters for these appointments. Obama may not be a leftie, but he sure isn't a neocon, either (though I've seen PUMAs claiming he is - just proving that there are no limits to how far one can be unhinged from reality (or how willing one can be to spew bullshit) in pursuit of power). Just getting centrist rather than far-right ideologues would be a vast improvement in all of the Circuits. It would help at the trial level as well.

It is about transforming (and salvaging) one entire branch of the government out of only three branches that we have. That is damn important. Anyone who dismisses this as some trivial thing (as PUMAs and those like them have done) is, frankly, stupid and shortsighted.

This election (like others before it) isn't just about one branch of government, but is about two. That's something you can NEVER afford to simply cede to the right-wing crazies, not even for four years. Sure, it sucks that the Democrats often don't give us much better on many issues, but better is still better, and on judges, they are WAY better. It will take decades for the tide to be turned back in judicial appointments. It is time to get started.

(*) - I should also note that a lot of the judges Clinton did get confirmed by the GOP Senate went through a process where Clinton would get a list of acceptable candidates to the GOP in advance, so he would know that his appointees would get their hearings and confirmation. This is notable in contrast to Bush, who when he faced a hostile Senate, just kept sending back the same names over and over and never sought to come to any compromise on his appointments with Democratic Senate leaders the way Clinton did. In other words, Clinton acknowledged the power of the Senate as a co-equal branch and worked with it. Bush just pretended he was god and kept trying to shove the same candidates down the Senate's throat with no consultation and then whined when the Senate didn't bow down and surrender (which actually, it generally did, even with his judicial appointments).

Addendum: I want to add that to a certain degree, I think what happened with Clinton and the GOP Senate was a good thing - the two branches (and parties) cooperated in the process of selecting the third branch. That is as the founders intended. That is why the Senate has confirmation power in the first place. The Executive should not just be able to place anyone he or she wants on the bench. The Senate gets the final decision as to whether or not a potential jurist gets the job. It is not the case that the Senate can only reject someone if they are not "qualified" (whatever that means). The Senate can reject for any reason it wants. Including and especially ideology. Just like the President can select based on ideology. Checks and balances.

Where things got out of whack is where only the GOP Senate acts as a check on a Democratic president while the GOP president basically gets free reign from a Democratic Senate. That is wrong and that also leads to one branch having total say in selecting the third. That's one of the reasons I am uncomfortable when Congress and the White House are controlled by the same party. Of course, it concerns me less when it is the Democratic party, mostly because the Democrats are so good at fighting themselves that they hardly need the GOP as a check. When the GOP has control, though, it is open season on all of us as they all march in authoritarian lockstep and the divided Democratic party doesn't even have the will to slow them down. (Not even when they take Congress back). It almost seems like that the ideal "balanced" government is a GOP Congress (narrow majority) with a Democratic president. Except that even with a Democratic Congress, the GOP seems to still get its way anyway much of the time. The Democrats need to grow a f***ing spine.

Because of those whacked-out dynamics of the parties, it is essential that we have a non-GOP president appointing judges. While we may not get anything better than centrists, that is a far cry better than the right-wing ideologues we are guaranteed to get from McCain.

Very Poor Choice of Headline for Story on Marital Rape

Salon's Broadsheet has an item up about a study on marital rape, a serious topic. As has been recognized for decades in our law, marriage does not immunize a person from being charged with rape for forcing a nonconsenting spouse to have sex. Non-consensual sex is rape, no matter what the relationship between the parties.

Unfortunately, the tagline for the article is horrendous: "You don't feel like it, but you do it for him." It evokes images of the dregs of feminism that equate agreeing to sex after nagging or persuasion as rape, which is one of the most utterly ridiculous things of the many ridiculous things that the dregs of feminism preach. By that same logic, if I have a spouse (or even just a friend) who feels like, say, sitting at home on the couch and then I nag or cajole or otherwise try to strongly persuade said friend to accompany me out to see a movie, sitting in the theater to the end before returning home, and they agree to go, I'd have committed kidnapping and false imprisonment. Uh, yeah.

Tuesday, July 15, 2008

Of Dolphins and Divorces

I just read this article, which speaks for itself: My wife left me because the dolphins at Sea World gave me an erection.

The LW is obviously making it up. But I just thought it was hiliarious for some reason. So now I'm sharing. Funnily enough, the past week's epsiode of Bullshit was about dolphins.

Monday, July 14, 2008

My Ideal Supreme Court

Talking about the Supreme Court, it got me thinking, what is the ideal court? I've thought about this before. Put simply, my ideal court would have two far-right jurists (who still have healthy disagreement with each other), two far-left jurists (who also disagree) and then five centrists with two leaning left, two leaning right, and one leaning neither way. All would have a healthy dose of libertarian in them, probably manifested more economically in the right-wing and more socially in the left, but combined into both in the five centrists.

I would favor this makeup because this would give several voices to each end of the spectrum on the court, which is always important on every case, and yet it would not let either extreme dominate or ever write an opinion without the cooperation of centrists.

What our current court lacks, sadly, is any left-wing jurists. The court is basically made up now of four far-right judges, one right-of-center judge, and then four moderate judges that, at the far end, are only slightly left of center. So basically the court goes from the far right to the center, and that's it. There are no liberal voices to be heard in deliberations. Even were there a single lonely voice there, that could make a lot of difference because at least that point of view would be heard and could give some perspective to the other eight justices. Absent that voice, you have an echo chamber of far-right mixed with the center, which just pushes things further and further right.

My ideal court would have those voices on both sides, but would not allow either side to dominate. I think that would be wonderful if we could get it. Unfortunately, it is not likely to happen within my lifetime, given the current makeup of the court. And even with an Obama victory, we'd still not likely get there - Obama will probably appoint center or center-left candidates to replace other center-lefts (Stevens and Ginsburg), leaving the court basically the same. Which is still a far cry better than ending up with six far-right justices and three centrists, still with no liberals. At least that would keep the status quo. There's even a small glimmer of hope that he'd appoint a true progressive or even two, giving that voice back to the court which it has lacked for so long. The court would still be slanted strongly to the right, but at least we'd be one step closer to my ideal.

(One of these days I'll have to post on the Michigan Supreme Court - the most radical right Supreme Court in the country).

The Supreme Court Matters. A lot. And that's why this election matters.

Digby makes perfectly clear in this post just how much the Supreme Court matters and just how close it is to being a solid, ultra-conservative majority if McCain wins the election.

That should almost go without saying. But what is incredible is that PUMA sound-alikes are posting in that very same post in the comment section posts about how we'll get Bork-like nominees from Obama. I'm sorry, while I'm extremely disappointed in Obama of late, and think his tacking to the right is incredibly stupid, I have actual functioning brain cells and so I know that he is not a far-right wingnut who wants to appoint Borks to the court.

Basically, the argument seems to be, well, Obama is not a far-left candidate, so that means he's really far right. Uh. Sure thing. Being center or even center right does not make one far right. And Obama, by all accounts, is center left. Yes, some of that "center" is on important things like FISA, but that is the same disappointing crap we get with ALL Democratic nominees for president. Probably more likely than not, this year, given that the consultants (and probably Obama himself) feel even more inclined to "tack right" given the hurdle they have of being the first black president (and Clinton would have had the same hurdle being the first woman president). I think that they both would have, for that reason, been even more "right tacking" than usual. Sadly, I don't think they really need to do that, but that's the CW and the Democratic party follows CW like it was a religion.

But I'm sorry, if a person claims that Obama is going to nominate Borks to the court, then that person is so full of bullshit I'm going to have to get out a shovel to catch it as they talk or else I'm going to be buried in it. But then, that is the sort of talk I'm coming to expect from the PUMAs. Of course, I don't know if these commenters are PUMAs - I just know they sure sound like them.

Oh, and those who comment that they don't want to be "thrown under the bus" and so they just dimiss any arguments about the election involving the Supreme Court - well, your arrogant dismissal of that doesn't change the fact that it matters. It matters a lot. For everyone. For probably decades to come. Stevens and Ginsburg are very likely to retire soon. If those two were replaced by McCain, we'd have a 6-3 extreme right dominance on the court for probably the rest of my working life. My children would grow up under the shadow of that court and have children of their own under that court. I shudder to think of what they will face with such a horriblely slanted to the right court. I'm not privileged enough to just sacrifice all of that and wait until 2012 for the second coming of Hillary Clinton. Sorry. This matters. And it doesn't go away just because you are upset that Hillary Clinton didn't win the nomination. Anyone who claims to be a progressive who also supports McCain is either a liar, a fucking moron, or both. (Sorry for the harsh language, I simply can't think of any better way to put it).

Once Again, Police Stupidity (and trampling of rights) Is Given a Pass by the Courts

This just defies reason. Not that the police made a mistake or that the sheriff was a bonehead for destroying an entire crop as marijuana that had first tested negative for being marijuana. What is beyond reason is that the court condones this stupidity. I guess judges can't fall over themselves fast enough when it comes to enabling a police state.

Thursday, July 10, 2008

Equality Thought Police

As the overt racism and sexism of ages past has wound down to a trickle of what it once was (in part because it is basically illegal in many contexts, but probably in larger part simply beacuse people born into the world more recently simply grew up in a world without that and so live accordingly), I see more and more how the real fight now is to eradicate the "subtle" racism, the racism and sexism that is within everyone (well, at least in white males), that whispers into your ear bad things. And yet, there's something that doesn't quite sit right about that with me. Something about it feels off. And thinking about it, it hit me what that is.

It is self-flaggelation that one is supposedly required to do, to continually have an internal dialogue of berating oneself as a racist and sexist for daring to think thoughts that aren't 100% approved by an appropriate authority (such as official radical feminists or what have you). It is the vileness with oneself you are supposed to feel if, say, when a man looks at a woman, he even for the briefest of moments, thinks about how attractive he is and how he'd like to copulate with her, even if he really had no intention of doing so and says nothing about it. It is the vileness with oneself you are supposed to feel if you see someone of a race other than yourself (assuming your own race is white) and don't feel as comfortable as you'd feel with someone who was of your own race or even just the race of those you spend a lot of time with. And I think that, ultimately, that is bullshit. What is that? That is the Thought Police. That is not really about progressivism or equality. It is not sexist to have hormone appropriate thoughts. It is not racist to have experience-appropriate feelings of comfort with the familiar and discomfort with the unfamiliar. That is human and that is entirely unavoidable. And moreover, it is not what defines us. Actions are what define us. Not thoughts. It reminds me of religious people who literally self-flagellated for each impure thought. It is just sick. The brain isn't a machine. People aren't machines. Expecting that or assigning a negative label to that - sexism - racism - is just bullshit used to keep people down and to make the labeler feel superior.

Actions count. Thoughts don't. Sorry, they just don't. On a certain level, we all recognize this - free nations recognize this in their laws, where every criminal law requires actual action to be guilty. We rightly (generally) recognize that those regimes that make ideas or just thoughts alone illegal (by banning them or censoring them) to be morally bankrupt and evil.

Sure, it is good to be aware of what it means to be human - that we are more comfortable with the familiar, which means we will feel more comfortable in a room of people who look like our family because that is who we grew up with and spent time with. That is something that if you are aware of it, you can take steps to mitigate where it would be inappropriate to let that give too much influence to what should be, say, a business decision. But one can't vilify it - it is nothing more than a small part of the same line of thinking that makes people enjoy the company of lifelong friends much more than strangers, because they are familiar and comfortable.

Thinking about copulation with a random stranger based on his or her looks, that is also perfectly natural - and again, just part of the fun of life - so long as you don't act on it inappropriately or, when interacting with that person, forget that they are a person. But then that's something that most people have no trouble with at all.

For those that are trying to bring us to some sort of utopia where such thoughts never happen, and thereby define as bad a world where such thoughts are common, I personally think that such thinking is deranged and disconnected from reality. People will never do that. And they shouldn't have to. So long as people in their actions deal fairly with one another and don't take inappropriate actions with one another, that is all the utopia you could ever need or want.

Any regime that would not stop at punishing you for bad actions but would also seek to make you feel bad and even punish yourself for your very thoughts is an oppressive and evil regime and so people who would advocate it I would see as potential oppressors and evil people. I think this is something many religions try to do to people (such as the bullshit notion that by thinking about sex you are committing adultery).

Truly, what people need to do is just try not to be assholes to each other, and don't worry about what someone else is "really" thinking. It's really none of your business, so long as by their actions they treat you fairly.

Wednesday, July 9, 2008

Don't Talk to Cops

Unless you are the victim of a crime and are calling police to report it, you shouldn't ever talk to the police. Nothing good can ever come of it. After seeing what has happened in dozens of criminal cases, I can state first-hand - there is no benefit whatsoever in talking to the cops. Never. Regardless of innocence or guilt. Regardless of anything.

That's what I tell every friend I have - be polite, but never talk to them beyond answering basic questions, such as giving your identity (which is required in many jurisdictions by statute). Beyond that, it is best not to say anything except that you don't consent to any searches and asking if you are free to go.

But don't take my word for it. From reading of yet another case of testilying, I came across this video by a law professor and he is far more convincing on this topic than I ever could be:

And here's Part II (a cop talking after the professor saying the same thing):

Finally, here's a (long) video about how to deal with cops:

(One final comment: The only thing I would add to the post I linked to about LA Cops lying is that, contrary to the thread, it really isn't an LA problem - it is a general problem with the police. Not that all police lie, but that this sort of thing is not particularly unique to LA.)

Monday, July 7, 2008

Politics are Depressing

What more can I say? At least Bush will be out of office soon. One can only hope that a non-GOP president won't totally sweep under the rug whatever lawbreaking is still apparent after the shredders have done their work up through Jan 20, 2009.


There is a movement out there that formed in the wake of Obama's win (and Clinton's defeat) in the Democratic primary. They call themselves PUMAs, and they are out to reform the democratic party, in particular, they want to force it to be more progressive as they are tired of the choices given them. I became familiar with them through reading reclusive leftist (Violet Socks).

At first, I frankly thought the rhetoric there was a little over the top. And to a degree, it is. Claiming that the more progressive choice is John McCain in the election coming up is, I think, rather dubious. But I can understand the general sentiment. I've felt it myself as I've become frustrated with repeated democratic captiulations. A democratic capitulation is what inspired my name for this blog (and thus my handle). As part of that, I contemplated voting Republican, not because I had any illusions that the GOP was progressive, but because it was the only thing I could think of that might get the Democratic party's attention. In other words, I saw it as the only leverage I had (see Violet Socks on this as well).

I've also read Apostate's posts about how Obama is a conservative. And I've read Barefoot Bum's posts about how he can no longer vote Democratic. I can sympathize with those views. I'm frustrated with the Democratic party. They are about to captiulate on FISA now, and then I hear that Obama is talking more like a right-wing judge than a progressive on the abortion issue. Which is depressing, even if it is just mangled rhetoric rather than reflecting any deeply held position.

I posted as much on that thread in a comment. I also noted that Clinton would not have likely been any different - not on that, not on FISA, not on anything else of significance, because she's also a conservative, like Obama, with very little daylight between them on the issues. In other words, that leverage really needs to do more than just support Hillary Clinton - she's the establishment, or a big part of it. She was no leader on progressive causes any more than Obama is or was. She's part of the problem with the party that is being highlighted now with Obama by the PUMAs. Which is part of the problem I have with the whole PUMA concept - if they are really about change and are not just Hillary Clinton cheerleaders, they would see this - but they don't. They are really all about Clinton. I get the sense that they'd abandon all of their badmouthing of the Democratic party and forgive all if Hillary were somehow made the nominee - abandoning all of their supposed ideals just to get "their" candidate into power.

I sort of lost any respect for them once I realized this. Sort of how I lost a lot of respect for Keith Olbermann when he was soft on Obama and reversed himself on criticism of the FISA surrender once Obama adopted that position. Obivously, he put his support for the candidate ahead of his principles. Which is a damn shame. With the PUMAs, I see the same thing. They put support for Clinton ahead of any priniples. This perception isn't helped by the fact that there seems to be a healthy dose of Obama bashing - some of it deserved, a lot of it rubbish. And no criticism at all of Clinton's conservative positions.

What solidified this in my mind today was when I posted in the thread there about Obama in which I mentioned my disgust and also my sadness that we'd probably have gotten a lot of the same with Clinton - and that comment did not make it past moderation. Now, maybe it will eventually, I don't know. But at that moment my thoughts on this crystalized. No one will ever manage to reform the Democratic party if they aren't serious about it and put issues over personalities. The very same thing the PUMAs complain about so vigorously - about those who support Obama as a personality as opposed to dealing with his actual positions, the PUMAs are guilty of with Clinton.

On another site, a blogger asked for positive reasons only to vote for Obama back during the primary. The rule was, you could not mention McCain or Clinton or make any comparisons in that regard. Certainly, that is an interesting exercise - but then the blogger then took it as an opportunity to argue with every point raised for Obama, belying any claim that she was really an objective, undecided observer. The general tenor of it all made me suspect that the whole point of the exercise was to provide a venue to showcase how Obama supporters don't really have any reason to vote for Obama besides personality. This became evident as that exact claim was made over and over in the thread even after people had posted lots of positive reasons to vote for Obama. Interestingly, when I suggested a separate thread with the same rules, only with only the positive reasons to vote for Clinton, that idea was dismissed. Which made me further suspect impure motives for the original exercise. But I could be mistaken.

As I am now, I am really disgusted with the Democratic party and I am also saddened that Obama is now doing the inevitable (and incredibly stupid) "tack to the right" that stupid Democratic consultants seem to always tell their candidates in presidential elections.

Still, despite all that, I simply cannot reward the lawlessness and horrendously evil behavior of the GOP in the white house with four more years. So I'm stuck. At least I can vote Democrats out of Congress, if it gets to that. But that's not likely. There's no real strong push to actually reform the party. I thought PUMAs might be something along those lines, but now I have concluded that they are not, they are just another cult of personality surrounding Clinton instead of Obama. (Insert sound of big sigh here).

Sunday, July 6, 2008

Official Dungeons and Dragons Miniatures

Though I've gamed off and on for nearly three decades now (most of it in the past two decades), and I also have had miniature figures suitable for gaming over about that same time, I actually did not use minis much when I initially started playing. We'd use white boards or chalk boards or some other means of figuring out where characters were positioned. Of course, now that I use minis exclusively, I can scarcely remember how we did it back then. The rules were not as precise as they are now in terms of positioning. Though position did matter even then.

Specifically, though, I want to talk about the official line of miniatures put out by Wizards of the Coast (WOC). They come in sets, with one new set every four months or so, for three new sets a year. The figures are randomized, so you buy a pack of 8 and then in that pack are something like 5 common figures, 3 uncommon figures and 1 rare. A typical set has 60 different figures, with 24 rares, and lesser numbers of commons and uncommons, such that, at a minimum, you'd need to purchase 24 packs (and get REALLY lucky) to get every single figure in a set. Either that, or you can buy figures on the secondary market, picking exactly the figure you want, but then, some of those rares can cost many times the cost of a single random pack. The figures range in size from small (in game terms) to medium to large. There have also been three (well, soon to be a third next week) packs that have huge figures, which are a size category larger than large.

There is a miniatures game that you can play, spending points to put together bands based on alignment, with stat cards for each figure telling you how that figure performs. And, of course, you can also use those figures in the RPG, as they are of things in the game. That latter use is what I use them for.

Many people complain about the randomness of the figures. Combined with that is a complaint that some of the figures really suck and so it sucks to buy them sight unseen. On top of that, some creatures common to the RPG (and in multiple numbers) end up as rares, so it makes it really hard (or really expensive) to have many of them for use in the game. Other complaints include the fact that they are plastic and some of the paint jobs aren't all that great. There is truth to those complaints. Ultimately, though, I find them useful and I the things I like about them far exceed the things that trouble me.

First, the randomness. It is true that if you want a specific figure, you can't just buy it direct. But then there is the secondary market and the price there is set by market forces - if it is a rare that lots of people want, the price is higher than if it is one that no one particularly wants (except perhaps to complete one's collection). One could blame WOC for that because those market prices do originate with the fact that you can't buy singles from WOC diretly, but then if you really think about it, you'll realize that the price would probably end up there anyway. Here's why:

The minis themselves do not all cost the same amount to make. Some require more paint or time to paint than others. The more expensive ones are subsidized by the cheaper ones with every single purchase of a booster pack, spread out over all of the boosters because of the randomness. If that subsidy did not exist, if you could buy them singly, then you'd have to pay full price for the expensive ones, and you would probably end up with the same price you have now on the secondary market. Or perhaps it would be even higher as the volume of figures bought went down.

As it is, you can get a full set, along with a copious amount of the commons and uncommons, simply by buying 36 boosters per set. Which for normal-sized sets is three factory boxes of a dozen boosters each. The benefit of the factory boxes is that they are massively discounted - you can get almost half off the cost by buying them that way. And the way they are packed, if you do that, you are basically guaranteed to end up with exactly 12 of each common in the set, either 4 or 5 of each uncommon, and every rare except for one or two (with obviously at least 12 duplicate rares because there are only 24 rares total in a typical set of 60). The total price you end up paying is just over a dollar a figure. Which is a bargain.

For comparison: Before these minis came out, you could (and still can) get figures singly. Those figures are generally metal figures - they used to be lead, now they are pewter. And while they certainly can be very detailed and beautiful figures, unpainted, they don't look as good as even some of the average D&D plastic minis. Paint and color makes a big difference. I know. I have over 100 of the metal figures, almost all of which I've had for 20 years. In all that time I've only managed to paint about 30 or 40 of them. I managed to get halfway decent at painting them, too. It was an enjoyable activity. I'm no great artist. But even my halfway decent paint jobs made the figures look a great deal better. So that's one thing that puts the plastic minis ahead of the metal ones - they are pre-painted, and most of the paint jobs are pretty good. Even those that aren't still make the figures look decent most of the time. Even if I dedicated myself for the rest of my life to painting metal figures, I could never come close to the number of painted plastic minis that I have. And the metal ones are and were expensive. Single figures could cost 8 dollars or more. Add to that the cost of the primer and paint and the time it could take to paint (which could be hours) and suddenly a dollar or so for a pre-painted figure doesn't sound so bad. On top of that, painted or not, a metal figure is heavy and is fragile. You certainly don't want to carry several together where they will scrape against each other. My metal figures are lovingly held in soft foam gun cases, no figure ever touching another. In contrast, the plastic ones you can dump in a bin together, though I use Plano boxes (and zip locks) to keep them sorted.

So the plastic ones are superior in many ways. They are cheaper, pre-painted (and thus prettier on average), more durable, more easily stored, and easier to handle.

The randomness, in the end, isn't all that bad, either. As I pointed out above, if you really want to, you can get a full set without too much trouble. It does cost a fair amount to get three factory boxes - usually about $300, but then for that you get about 300 figures and every one in the set. The randomness evens out to a pretty predictable pattern that way. And since I use the figures for playing the game generally, there really isn't any single figure I'm looking for. Overall, what I'm looking for is having enough figures of each type of monster/NPC/PC that might be found in my game. If you just get the factory boxes, over enough sets, that's what you end up with. Without really trying to, I have a good assortment of various humanoids (Orcs, Kobolds, Goblins, etc.), a good assortment of various other common monsters (I won't list them all), and a good assortment of miscellanous individual figures good for players or npcs.

I did not start out buying sets, so I only have a smattering of the early sets, but starting with like the sixth or seventh set, I've gotten the factory boxes and I have pretty much every figure as outlined above. I have also bought some singles to fill in places that I was missing, mostly because I was missing earlier sets. And I have bought some duplicates just to increase the numbers for certain rare figures that aren't seen singly in the game. Now, this could get expensive if sets keep coming out year after year, but I've probably now got enough to cover just about anything so I probably don't need to buy any more to be covered. (With the exception of any huge sets that come out - but then I like huge...)

In absolute numbers, it was a hefty investment. But then I am probably set now for life, as long as I play the game. And if my kids play, they can use that as well (and I hope they do).

There are some figures that really suck in the sense that I really don't see any use for them at all. But out of hundreds of figures, those represent a tiny handful. And most are commons anyway. So overall, I'm very satisfied with the minis. I've gotten a great deal of use out of them, far more use than I ever got out of my metal figures, which I did use in the past, sometimes resulting in pieces being broken or bent.

They certainly help to bring the game to life, 3D representations, in full color, of old favorites and staples of the game. Orcs and trolls, medusae and dragons. I've gotten so used to having them now that I find it hard to remember what it was like without them. (Mostly it was a lot of dice standing in for monsters and a handful of metal figures, very carefully handled).

My only complaint is that some monsters that aren't that rare would have rare figures, and that would be annoying where you'd commonly need not just that monster, but multiples. But as more sets have come out, that has been partially solved either by further rares of the same type increasing the absolute numbers or even by some being made uncommons.

Overall, I'm very happy with the figures, and I would recommend them.

And thus ends the third of my three "fun" posts for the fourth of july weekend. I'd have done four for the fourth, but I simply ran out of time...

Space Legos (Today) Suck!

As promised, here is the second of my three fun and frivolous posts for the holiday weekend.

The topic: Space Legos. More specifically, Space Legos suck. At least they do today. Now, this could be dismissed as mere nostalgia for the toys of my youth, but I have specific complaints and I think I have good reasons to back up my position.

What is great about Legos is that you can make anything out of them, at least, that's the theory. You have a bunch of blocks that can be put together in thousands of ways, limited only by your imagination. It is my contention that the original Space Lego sets, from about 1977 through 1982 or so were the best and that it went downhill from there.

What was so wonderful about those sets was that, from a relative handful of basic parts, you could make spaceships, space stations, space vehicles, moon rovers, space labs, and anything else your space-hearted mind could desire. That kept true to the essence of Legos. What I think made them start to suck was the introduction of more and more specialized parts, parts that gave less and less room for alternate uses. This was perhaps a result of cheaper and easier manufacture of many different kind of plastic parts. But I think it hurt legos - not just the space legos, but ultimately all of them. I look at to see the legos sold today and some of the sets literally look like you have three pieces - one for a "front" one for a "middle" and one for a "back" - like look at the lego boats. That, to me, defeats the whole purpose of legos. Might as well just have a regular plastic toy if the parts are so customized to the function like that.

Looking at the old Space Lego sets, you see a relatively handful of types of parts used to create all sorts of wonderful things. Going through the instructions you see beautiful engineering - how those parts are structured, reinforcing a lattice upon which you build a spaceship, like the wonderful Galaxy Explorer (widely hailed as the pinnacle of Lego Space). Now, there are so many specialized parts that it is difficult to imagine building much of anything but a few variations of what is on the box of any set you buy. Which is too bad. I remember with my own meager collection of sets when I was a kid, I still managed to make duplicates of a particular set I liked - the X-1 Patrol Craft. I doubt I could do that today.

The only place I see a small set of generic blocks is in the big boxes of legos you can buy, and there, they are almost too generic to do much but build simple block structures. With Space Legos, they had a happy medium. What is most disappointing isn't so much that they've made sucky sets since then, it is that they've discontinued making any of the old sets or even anything like them. In looking into those, I've discovered there is a vast secondary market for old Space Legos - and some of the better sets sell for a decent sum, even used and 30 years old. This ought to tell the current owners of Legos that there is a market there. I think they are adrift. I recall reading something about the company having financial woes - perhaps they could help solve them by going back to basics.

As it is, I have the Space Legos from my youth and I also picked up a bunch of sets I never had (but of course would have liked). And now they are sitting in storage, awaiting my children - who in a few years will be old enough to have them to play with. (Well, my oldest (who in two months will be three) will probably be old enough soon, but I'm wary of toys with small parts on the loose with my youngest approaching crawling age (he's in his fifth month now)).

Friday, July 4, 2008

My Thoughts on Dungeons and Dragons 4E (Fourth Edition)

I posted briefly about this before, when it was first announced that the new version would be coming. Now that I've actually read the rules and also the first released adventure, I have further thoughts on the subject. I should state up front that I have yet to actually play the game. I considered waiting until then to opine about the new rules, but then figured that to really do that justice, I'd have to play it more than just for one adventure, up through to the higher levels, and that could take a very long time indeed. I'm sure I will have an opinion at that point (and I'll post it) but I think I've played enough RPGs in my time, particularly enough D&D, that I can get at least a reasonably good feel for the game just from reading the rules. (I wonder if it also helps being a lawyer... heh.)

I want to briefly address one issue that some have with the new edition - the notion that it is just a money sop. Well, guess what, game companies publish to make money. So what? In the end, making a new edition actually should save you money if all you want to do is play 3.5E - because, if you're like me and end up getting all of the books (ok, I'm an addict, so shoot me), the switch means that there are no more books to get. They are done. The 3.5E system is complete. You can now play it to your heart's content, secure in the knowledge that nothing new will ever be put out for it that you'd ever feel the need to buy. Certainly nothing official will be coming. Given the amount of material already published, there is plenty to keep you occupied for the rest of your life, so there's no need to be upset about a new version you don't like - welcome it! There's no requirement that you play it.

At this point, the initial shock has long since worn off. When I first heard the announcement, to me, it just felt too soon, maybe two years too soon. Looking on it now, I can see that the timing probably isn't all that bad, in the sense that 3.5E has been out for a long time and the rules are more than complete. Beyond that, there are so many supplemental books and so many modules out there that it would take decades to get through them all. So it's not like anyone really needed any more 3.5E material to keep on playing it for a lifetime. Though there are a few things I would have liked to see more of (like more books for psions - I've always liked them - and the main problem with them is that they have such a short list of powers compared to, say, Wizards). There are third party books, but those just aren't quite the same (though I've gotten a few things from some of them that a friend has).

Also, there were problems with 3.5E - it was a way better system than 1E and 2E, in the sense that it was a bit more robust, but at the same time, it was classic Dungeons and Dragons. It felt like the older editions - it felt like D&D (really AD&D, as that was what the older editions were). And with that probably came some of the problems. The biggest problem was balance issues, particularly as you got to higher levels, past level 15 (or even 12 according to some). Which is a problem when even non-epic play goes all the way to level 20, and of course, then there's Epic play itself. When I create a character I like to play it all the way - it kinda feels wrong to stop playing before at least reaching 20th level, if not epic level.

Independent of the balance issues at higher level (but perhaps because of them) there are basically no published adventures for higher level play. Even the copious Dungeon Crawl Classics line from Goodman Games only had one or two adventures up to level 15 or so and then a single Epic adventure. I don't know of any other published Epic adventures and there are few sources for adventures levels 15+ (the same with Paizo, whose new Pathfinder campaigns also seem to stop around level 15 or 16 and their standalone modules never seem to be above level 11). Thus, unless you have a lot of time on your hands to create your own high level adventures as a DM (and they take much longer to set up than lower level ones given the complexities of higher level monsters and having to deal with what the players can do, which is almost anything), it is hard to run a game past level 15. Which, while fine for some, again, kinda sucks if you want to go further with your characters.

At the reverse end there is the issue of fragile characters at low level, particulalry first level, where even the lowliest of enemies could potentially kill a character with one lucky hit. Admittedly for some, this is a feature, not a bug. It certainly can make for some memorable and character-defining beginnings of campaigns. Especially for wizards and such who basically get off the one spell and then have to hide in the back and shoot crossbows (badly) or some other such thing. It does foster creativity. It also adds tension and excitement. I had one campaign start off at first level where the players (as I was one) rushed into a situation we probalby shouldn't have and ended up fighting essentially the whole collection of baddies (in that case, goblins) all at once in a big clearing with lots of buildings. We very easily could have had a TPK (total party kill) there. But we worked together very effectively, using cover, creative use of our meager resources and spells, and good tactics, and actually managed to take them all out, though it was a nail-biter. Thus, 3.5E has issues with play, somewhat at lower levels, and then to a great degree at the higher levels and beyond.

This is the one thing that I think 4E clearly has done far better than 3.5E or any other previous edition of the game: support the game all the way up. In 4E the system is built to be balanced air-tight, and easy to play and prepare for as a DM from levels 1 all the way to 30. Of course, this is probably linked into what I see as 4E's biggest problem. It just plain doesn't feel like D&D anymore. I can't say for sure that's how it will feel playing it, but from reading the rules, that's just the overall sensation I get as I parse it all. What hit this home most was the way spells work. Or rather, how they no longer work.

In earlier editions, there is a huge list of spells of varying types from levels 1 through 9 (for the big spell casters) and they could do quite a lot. In 4E, every single class has "at will", "per encounter" and "daily" abilities - a very limited number of each, even at high level. Wizard combat spells are now just "daily" and "encounter" abilities (mostly daily) just like any other class, like fighters, with the only difference being that they get a list of twice as many that they "know" for the daily, and then pick which half to prepare for the day (and can't prepare duplicates).

Then, for most of the non-combat stuff, there are "rituals" which are basically spells, except they cost a huge amount of money to cast (well, some do) and take a really long time to do. They also involve skill checks. And it appears that there is only one list of them, so if you can do rituals, be you a wizard or cleric, you can do any of them. (The only important difference, perhaps, being how good your skills are for a given type of ritual - some use an arcane skill, some use a clerical skill, some use other skills).

I have to admit that the ritual concept isn't all that disconcerting - that could still keep some of the feel of D&D. But the way wizards now are just like every other class, that just doesn't feel right. In fact, reading through the various classes, it kind of feels like all of the classes are exactly the same. I know based on abilities that they are not, that they have different strengths and weaknesses based on role - so part of that is probably due to not having played the game up through the levels, but that's only part of it. There just aren't special abilities for classes like there used to be - like a barbarian's speed going up with time, or things like that.

It was also somewhat strange to me that the at-will powers are all gotten at first level - there are no higher level at-will powers.

On the plus side (for some at least) - characters start out tougher (as do monsters, for that matter). So no worries about an accidental TPK from a lucky critical. That I kind of like. Random things could wipe out a party - and given how as DM you make many more random die rolls than players do, there's a lot of opportunity for that to happen, particularly at low levels (though for some, that's half the fun of starting out at first level in 3.5E).

I also rather like how criticals are now handled - 20 and automatic - and then just do max damage, plus potentially some dice on top of that. It always sucked to roll a 20 in 3.5E only to have that only hit normally - even worse, it sucked when you actually confirmed a critical, then rolled crappy on the dice such that you did less damage than you might have done even with a single hit. Another thing I like is that every type of attack can get a critical and that creatures aren't immune to them. That's another thing I think was a problem in 3.5E - so many creatures that were just totally immune to things from some (or even most) classes. That was just annoying. And it was also unfun for the characters who were totally nerfed in such encounters. Sometimes it allowed for creativity, but a lot of the time, it just meant that certain players would be forced to sit back and be spectators in some encounters and that's just not fun.

In sum, I think 4E looks to be very well balanced and, as such, will probably be fun and challenging to play for all levels, 1-30. It also looks to be quick and easy for the DM to set up adventures, which is a big plus. (This may also result in more published modules, particularly at higher levels). Of course, that still doesn't quite deal with the central issue I have with 4E - that it really just doesn't feel like D&D anymore. 3.5E changed a lot, but it still felt like D&D - that entailed bringing alot of baggage along that probably is why there are the problems I indicated above, but even with those problems, it has been fun to play. But there are plenty of games out there, many of which are fun - the thing is, none of them are D&D. (One that I particularly enjoyed was Shadowrun). Maybe that doesn't really matter. Maybe I'm just clinging to the past. Maybe I'm just nostalgic. But I think that matters.

This difference is probably enough to keep me playing 3.5E - that and the huge number of books I have for it (adventures too) that haven't even been used yet. That said, I will play 4E, too. At the very least, I am planning to run the initial adventure path - nine adventures that Wizards is putting out to take characters from levels 1 to 30. That should give a pretty good overview of the new system. If it is fun, I'm sure we'll keep playing it, through probably not exclusively. Not if we want to get our D&D fix.

Perhaps some of the things that feel wrong will feel better with play. Perhaps some of the things that are missing will be filled in soon (like Druids, Barbarians, Psions, and other old favorites in the upcoming 4E Player's Handbook 2).

After I've played it, I'll reevaluate. In the meantime, game on!

Happy Birthday To US!

Happy Birthday United States! Though technically, the birthday should probably be counted from the date the government was formed. Then again, why not count from today? It is all mostly trivia anyway.

One of these years I'll manage to get out and see the fireworks here - I have in the past, but lately, with the little ones, we are in bed by 10. We heard the fireworks, but can't really see them from our house. Maybe in a year or two we'll take our oldest to see them. She'll be almost four next year's July 4. She wanted to see it this year, but it would have been past her bedtime and we have enough trouble getting her to bed at 10 normally. (Of course, she was up and bouncing off the walls (and us) until 11 last night, per usual.

To celebrate the festivities, I have decided to do a few posts this weekend on subjects of guaranteed frivolity, though that is not to say that they don't involve things people feel passionate about (and like to argue about). At least two involve D&D, and one involves another of my favorite toys. I'm not sure when I'll get to them - this is a holiday, after all, but I will get to them before the weekend is out.

So happy Fourth everyone! Enjoy your holiday!

Thursday, July 3, 2008

The GOP Gets the Vapors

Looks like the GOP has gotten the vapors over General Wesley Clark's true statement that being shot down isn't a qualification for the presidency. Now Bob Dole is also feeling faint.

To which I say: Gotta love how the GOP gets the vapors over a true statement by an unimpeachible source.

The general merely stated that McCain had no strategic command level experience in the military, which is the main sort of experience that would be relevant (and would prepare you for) being commander in chief. That's it. An entirely true and rather uncontroversial statement.

Then the reporter asked him about Obama lacking any such experience, then pointed out that McCain had the experience of being shot down and held captive - all in the context of talking about qualifications to be president, and to this, the general rightly said that being shot down and held as a POW is not a qualification to be president. Which it isn't. And then the GOP just plain got the vapors. Perhaps, they should all just sit down and breathe into a bag before any more of them faint.

(And isn't it interesting how quickly the media picked this up and parroted bullshit, substance-free right-wing talking points).

US Law Abroad

This was just posted at Reason's blog. Apparently the Bush Administration, despite getting the vapors about how "horrible" it was that US law would actually apply to people held in custody by US government officials, is totally OK with claiming that US law actually applies to foreign banks in foreign countries. My favorite quote from the piece:

"Apparently, U.S. law now applies everywhere in the world except Guantanamo Bay."

The audacity and sheer intellectual dishonesty of the Bush administration knows no bounds.

Wednesday, July 2, 2008

More on the Death Penalty

(Minor UPDATE: This link related to DNA evidence and "one bad apple" cops who convict defendants with false testimony seemed somewhat germaine. WARNING: The second video is particularly disturbing).

Dudleysharp has seen fit to fill the comments of my last death penalty post with a rather large array of pro-death penalty boilerplate, some of which I've addressed in the comments of that post, but I thought this deserved special attention. When I pointed out how the deck is stacked against poor defendants in the criminal justice system, he reponded with more boilerplate, including the impressive-sounding 28 steps required for the state to kill someone in (I think) Texas. Well, I thought I'd go through that list to see just how "impressive" that list really is.

Here's the list, first, which I'll go through it one by one:

There are at least 28 procedures necessary in reaching a death sentence. They are: (1) The crime must be one listed as a capital crime in the penal code;

Ok, wow, it must be listed as a crime punished with death - I suppose this is needed, but then, it is also rather trivial and irrelevant to the discussion. Plus, you could have the death penalty on the books for jay walking. That doesn't make it a good thing.

(2) a suspect must be identified and arrested;

Again, rather trivial - why is this a due process step? You can identify and arrest someone without any evidence. Presumably no one in even the most harsh of dictatorships is executed without first having been identified and taken into custody.

(3) Beginning with the Bill of Rights, the Miranda warnings and the exclusionary rules, U.S. criminal defendants and those convicted have, by far, the most extensive protections ever devised and implemented;

The Bill of Rights has been whittled away with time to a great degree. The fourth amendment barely exists anymore - there are more exceptions than enforcements. It is usually trivially easy to get a poor, uneducated defendant to waive any Miranda rights, usually to his detriment. Police are very good at manipulation. And it is amazing the number of interrogations that are not put on tape. Again, just listing this without analyzing how they actually work in practice is rather meaningless.

(4) in Harris County (Houston), Texas a panel of district attorneys determines if the case merits the death penalty as prescribed by the Penal Code (See 12-19);

Ooo, wow, the prosecutors get to get together and unilaterally decide what the charges will be. Prosecutors have a ridiculous amount of power, with little check against it. So I don't see how this is such a great thing for defendants.

(5) a grand jury must indict the suspect for capital murder;

Ooo, see my previous post about how a prosecutor could get a grand jury to indict a ham sandwich.

(6) the suspect is presumed innocent;

Again, this sounds nice on paper, but a lot of people actually assume someone is guilty once they've been arrested and charged. Look at what many people said about the Duke players in that case. Some people STILL think they are guilty, even after the unprecedented admission by the DA's office that they were not only not being charged but that they were innocent.

(7) the prosecution must prove to the judge that the evidence, upon which the prosecution will rely, is admissible;

A lot of judges are former prosecutors and are also elected and plenty seem to err on the side of allowing in all sorts of evidence that probably isn't admissible against defendant. Then, on appeal, when it is found that some evidence really should not have been admitted against defendant, the conviction is affirmed because it is determined by the appeals judges that the evidence was "harmless" because hey, the defendant was clearly guilty. This happens extremely often.

(8) the defendant is assigned two attorneys. County funds are provided to defense counsel for investigation and trial;

Wow. And are these funds at the same level as the prosecutor's office, the state crime lab, and the police are funded?

(9) it takes 3-12 weeks to select a jury;

The time taken to select a jury doesn't say much. Especially considering that probably jurors are disqualified if they have objections to the death penalty, making it more likely that you'll get a jury more biased toward conviction.

(10) trial is conducted;

Wow, they get a trial - why is this a separate step - isn't the jury selection part of that? It kinda seems like this list is padded to be as long as possible.

(11) the burden of proof is on the state;

While true, it is amazing just how easy it is to satisfy. Particularly with a jury that is predisposed to find favor with the death penalty. Techincally, to convict someone of ANY crime, all you need is a single witness to testify that defendant did the crime and have the jury believe that one witness, regardless of how many other witnesses the defense has who say otherwise.

(12) all 12 jury members must find for guilt, beyond a reasonable doubt. In most cases, the jury knows nothing of the defendant's previous criminal acts, at this stage. If found guilty, then, the punishment phase of the trial begins;

LOL - Thanks for the great laugh! "In most cases the jury knows nothing of defendant's previous criminal acts" - that's a good one! Uh, the reality is, it is trivially easy for prosecutors to get into evidence all sorts of prior criminal acts that really have nothing to do with the capital crime. In Michigan this is done under MRE 404(b). It is explicitly a rule of inclusion, not exclusion. And this all comes in during the main part of the trial, not sentencing.

Again, why is the notion of a jury having to find guilt beyond a reasonable doubt listed as a separate step from the notion of having a trial. Isn't that what a trial is? More list padding, it seems.

(13) the prosecution presents additional damning evidence against the murderer, i.e., other crimes, victims, victims’ or survivors’ testimony, police reports, etc;

In other words, all sorts of horribly prejudicial stuff that makes the defendant look even worse than the defendant did at trial.

(14) In order to find for death, the issues to be resolved by the jury are {a}(14) did the defendant not only act willfully in causing the death, but act deliberately, as well,

Which probably also includes an instruction that this sort of intent can be inferred in all sorts of different and creative ways.

{b}(15) does the evidence show, beyond a reasonable doubt, that there is a likelihood that the defendant will be dangerous in the future,

Does this include if they escape from death row? Sure, it is good to have this, but again, beyond a reasonable doubt sounds good on paper, but jurors already pre-selected to be pro-death penalty are probably more likely to find this

{c}(16) if there was provocation on the part of the victim, were the defendant's actions unreasonable in response to the provocations and

Sure, this sounds nice, but where would it ever be reasonable to respond to a provocation with a murder? It seems to me that if it is ever reasonable, that would be for self-defense, in which case, we wouldn't have gotten this far because defendant would have been found "not guilty."

{d}(17) is there something about the defendant that diminishes moral responsibility or in some way mitigates against the imposition of death for the defendant in this case, whereby,
(18) the defense presents all mitigating circumstance, which may lesson the probability of the jury imposing death , i.e., family problems, substance abuse, age, no prior criminal record, mental disability, parental abuse, poverty, etc. Witnesses, such as family, friends, co-workers, etc., are presented to speak and offer the positive qualities of the defendant;

So someone who doesn't have any family or anyone to speak for them is just going to be flushed down the toilet? But popular people will be ok?

(19) the jury must take into consideration those mitigating circumstances (Penry decision) and, if only 1 juror believes that the perpetrator deserves leniency because of any mitigating circumstances, then the jury cannot impose the death penalty;

Again, if the jury is made up only of people who are pro-death penalty and already found defendant guilty unanimously, it makes it more likely that there won't be a doubting juror. Not that it isn't nice that it needs to be unanimous, but with the deck already stacked against defendant from the beginning with the jury selection, this is less of a check than it should be.

and (20) when the death sentence is imposed, the perpetrator receives an automatic appeal.

That's nice - but then with all convictions for any crime, there is one automatic appeal.

(21& 22) the death row inmate is provided an attorney, or attorneys, to handle the direct appeal, at county expense, through both the state and federal courts;

And that automatic appeal you get for any crime also comes with a court-appointed attorney if you can't afford one - in fact, you even get this if you are appealing after a guilty plea. Michigan tried not to provide attorneys at that point and the US Supreme Court said that no, you have to, even in those instances. Of course, you still have the problem with the original attorneys - how much money is allocated for it? In Michigan, it is done on a county-by-county basis (see this post) and generally speaking, the rate paid is about 20% or less of the actual cost to hire an attorney, so quality is really bad. Though it is nice that you get an attorney for both state and federal courts (presumably for habeas corpus). Still, how much those attorneys are paid by the state matters. And I also wonder how many prosecutors work on the other side and how much they are paid.

(23 & 24) the state pays attorneys for the inmate's habeas corpus appeals, at both the state and federal level;

How is this different from the previous point? Generally speaking, the only way you could appeal federally is with Habeas. Looks like more padding here.

(25 & 26) death row inmates may be granted a hearing, in both state and federal court, to present post conviction claims of innocence. The burden of proof for these claims of innocence mirrors that used by the Federal courts;

And that burden is squarely on defendant. I notice you didn't point that out here.

and (27 & 28) Convictions and sentences are subject to pardon or sentence reduction through the executive branch of government, at both the state level (Governor) and federal level (President).

The same is true of any other crime. But of course, politicians are reluctant to look "soft on crime" (whatever that means) and if you look at the sorry record done, for instance, by Bush when he was governor of Texas and had to consider death penalty reductions, this does not exactly impress me.

These 28 procedures represent the broad categories of defendant and inmate protections. Within these 28 procedures, there are hundreds, if not thousands, of additional procedures and protections.

I don't know - just within that list of 28 it looked like things were repeated just to pad the list. If you needed to pad just this list of 28, it rather cuts into your claim that there are even MORE procedures to protect defendants.

Color me unimpressed. Why not save a whole lot of time and money for all those procedures and just have a maximum penalty of LIFE without parole? Unless you can cite statistics showing prison breaks by LWOP inmates are anything but extremely rare, there really shouldn't be any greater risk by doing this and, again, as I pointed out (but you repeatedly failed to address), wrongful executions make it more likely real killers will never be caught because of the reluctance of anyone in the system to want to admit they screwed up after an innocent person has died. They are still reluctant to admit wrongful convictions even absent a death sentence, but they are at least somewhat open to it where the innocent person is still alive and can be released, even if it is decades later.

Tuesday, July 1, 2008

The Death Penalty

As I've mentioned before, I'm against the death penalty. I'm writing now to explain why that is and give my general thoughts on the matter.

While there are many justifications offered for the death penalty, I think they all boil down to two basic arguments: deterrence of future crime and vengence.

There are two types of deterrence against future crime: specific and general. Specific deterence would seem to be inarguable (and almost trivial), in that it refers to the fact that when you execute someone, they can't commit any further crimes. Yet is it really inarguable? I'll get to that in a minute. (And no, zombies are not involved). General deterrence is the idea that, if potential criminals know that they could be executed for a given crime, that they'll think twice about doing it in an effort to preserve their own lives. This is very arguable. Particularly because there doesn't really seem to be any good evidence that shows the death penalty is particularlly effective at creating general deterrence. This is probably in great part because most people don't commit crimes with the expectation that they'll be caught and convicted. And probably those who do have the foresight to recognize the liklihood of being caught don't commit crimes in the first place, even where there is no death penalty.

Thus, I don't really see deterrence sufficient to justify the intentional killing of an otherwise helpless (due to incarceration) human being.

Then there's vengence. I can understand the want for this. I have children. I'd want to kill anyone who even layed the slightest hand on them. Rape or murder them, and you won't survive being in a room alone with me. But that visceral, emotional reaction doesn't justify the death penalty. Because, as I said, I'd have that reaction if you just hit one of my children, and no one wants the death penalty for assault. Vengence seems a rather primitive and blood thirsty thing to make it part of the official "justice" system.

Which brings me to the argument that shows that even specific deterrence doesn't necessarily work. The reason that doesn't work is not because executed criminals will rise from the grave and commit further crimes as zombies - the reason it doesn't work is because it presumes you've actually executed the right person each time, and if you haven't, if the real perpetrator of the crime is free while you execute an innocent person, then all that you've done is guaranteed that the guilty one will never be held accountable (and thus you've freed him or her to commit crimes again). The reason for this is the extreme reluctance of anyone to officially look into already-executed criminals to see if they were actually innocent. No one wants to admit they had a part in executing an innocent person. They'd rather accept the cognitive dissonance of insisting an innocent person is really guilty in an effort to avoid feeling guilt. So this makes it almost impossible for such a case to be reopened to go after the true guilty party.

This gets down to the argument by the pro-death penalty people, that the system is so perfect that an innocent person has never been executed. They point to the lack of evidence of exoneration for any executed person. Of course, this fails to take into account the above-mentioned reluctance for any official involved to want to admit they killed someone innocent. On top of that, all of the mechanisms involved to adjudicate such things stop completely once someone is executed. The dead need no criminal due process. Thus, it is no surprise that there has never been any official exoneration post-mortem - the gears that would show such a thing stop completely at death. Its sort of like how you always find something in the last place you look - after you find something, you stop looking!

But despite this, there is very strong indirect, statistical evidence that a great number of executions were of innocent people. That's from DNA evidence. At this point, the pro-death penalty people will say that DNA proves the system works because hey, look at all of the multitudes that have been released from death row from DNA evidence! See, all of the exonerated ones went free, proving that only the truly guilty were sentenced to die. The problem with that is that, first, not every crime involves DNA evidence, so those wrongful convictions that did not involve it won't be overturned by DNA. And second, DNA testing is a relatively new science - for two hundred years it didn't exist at all. So every single conviction for two centuries that was wrongful and could have been exonerated with DNA instead ended with an execution (barring some other unlikely event). For some reason, the pro-death penalty people I've talked to seem to think that wrongful convictions never happened before DNA, and that they only happened afterwards to the extent that DNA testing has already exonerated some. Which, of course, is so unlikely and ridiculous that it bears no rebuttal.

I've read it in at least once place that the big thing that DNA testing has done for the criminal justice system is pry away the lid and take a peek at how it effective it really is at discerning who is guilty and who is not. For a brief window of time, as convictions that happened before DNA testing could have prevented them work their way through appeals, we get to peek, at least partially, at how well our system did. Because they provide a definitive way to know when a particular case was decided right or wrong. This window will soon close, as now DNA testing can be done before trial, and so in those particular instances where it could exonerate (which is not true in every case - most cases have no DNA evidence at all) the exoneration would happen before trial. This does not mean that there won't be plenty of wrongful convictions, those just will be the ones without DNA (or mostly without, as defendants will still be stuck with mostly ineffective defense counsel).

That peek into the effectiveness of the system should give everyone pause. As I noted before, it is funny how those who have no problem with the system and seem to think that it is 100% effective at adjudicating who can be executed also don't trust the government system at all when it comes to things like delivering mail or handling a civil case against a corporation. Which just goes to show that ideology, for many, trumps reason.

I like to think I'm consistent. I think the system has a lot of problems. I worry more about criminal cases because the stakes are higher (freedom versus money) and also because so many defendants in those cases are at such a disadvantage, with poor counsel with little to no resources.

I simply don't think our system is good enough or fair enough to ever trust it with the decision of life or death. As an added bonus, it would save money not to execute, because the appeals can be so expensive, far more so than it would cost to simply leave someone in jail for life. Plus, as noted above, not killing someone would mean that the system would be more open to examining things that lead to exoneration which could in turn lead to finding the actual guilty party in those cases of innocents being convicted. If people wrongfully convicted are in prison for life, then, there is at least a small chance the guilty one will be brought to justice some day. If innocents are executed, that chance evaporates, because no one will want to admit that level of mistake.

Finally, there really is no need to kill anyone. We can lock people up for life. Most offenses are not life offenses anyway. What causes our prison budgets to explode isn't capital crimes, like murder, it is consensual crimes, like drugs, and those are just plain stupid. But that is the subject for another post.


I just thought this was so incredibly awesome. Plus, I wanted to try embedding youtube for the heck of it.