Double jeopardy reexamined

At our book discussion group Sunday evening I handed out reprints of the First, Fifth, and Eighth amendments in order to make some points about constitutional interpretation. Ed Miller, reading the Fifth Amendment, noticed the expression "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb." He noted the difference from the due process clause, which prohibits deprivations of "life, liberty, or property," and wondered if the prohibition of double jeopardy only extended to capital punishment cases.

Of course, this is not presently the case, but I was amazed that I had not noticed this difference during some 50 years of reading and teaching about the Constitution.

Afterwards, Ed Googled around and found a fascinating law review article discussing this very issue, and proposing that our protection against double jeopardy be narrowed by taking the wording in the Constitution more literally.

The article can be read here.

Off the wall comments on my letter to the editor

In today's Corvallis Gazette-Times a letter of mine appears. It reads as follows:

With Oregon’s governments under financial pressure, Gov. Kulongoski has been looking for ways to economize. Here is an idea that would save $82,000, which could spare a teacher from being laid off or fill a few dozen potholes:

Jeffrey and Marci Beagley were recently sentenced to 16 months in prison for not taking their son to a doctor when this might have saved his life. Since it costs $84.46 a day to keep someone in prison, imprisoning the Beagleys will cost $82,002.21.

This imprisonment is not needed as punishment. The Beagleys already have been severely punished by the loss of their son. Instead, sending them to prison is intended to encourage other members of their church to take their kids to a doctor when they need to, in order to avoid joining them in prison.

This makes sense. But this warning message can be transmitted to church members without actually sending the Beagleys to prison.

Gov. Kulongoski could commute their sentence, conditioned on their not repeating their offense, and with a pointed and well-publicized comment that he would not commute similar sentences for acts committed after the date of their sentencing. This would save the $82,000 and yet send the same message that imprisoning them would.

At a time when people convicted of criminal actions, and not just negligence, are being released from prison early because of the financial crunch, commuting the Beagley’s sentences would be a no-brainer, and I urge the governor to do this at his earliest convenience.

Paul deLespinasse, Corvallis

The very first comment posted on-line is a fascinating example of intemperance combined with an apparent failure to understand the nature of my argument. Note the characterization of the parents whose negligence arguably caused the death of their son as "child-murdering cult members" and "defective parent[s] who think[ ] killing their child is what their imaginary sky fairy wants."

I find that such intemperance often comes from people who post anonymous comments and I can understand their desire not to be associated with them.

This commentator failed to explain why the expenses of prosecuting other parents would be more likely to be incurred if the current couple is not actually jailed. They do not explain why the deterence effect would be lessened by the conditional commutation that I suggested.

Here is the comment in all of its profundity:

token scientist said on: March 16, 2010, 9:38 am

And how much does it cost to prosecute these cases? Is it worth it to set some child-murdering cult members free just to save some money on incarceration if we just end up spending even more money on prosecuting the next defective parent who thinks killing their child is what their imaginary sky fairy wants?

Another, also mercifully anonymous, comment was simple and to the point:

TS said on: March 16, 2010, 12:52 pm

I would rather they would have recieved [sic] the death sentence, could be done rather cheap.

This proposal indeed breaks new ground. American law has never provided the death penalty for negligent homicide, as far as I know. (There is precedent, however, in the former USSR. Briefly back during the Khrushchev period they decided that drunk drivers were killing too many people in accidents, and decreed that such people would be executed. This seemed kind of extreme, but might have been legitimate except for the fact that they applied the new rule ex post facto, that is to drunk drivers who had killed someone before the new rule had been adopted! Even among Soviet lawyers this raised so many eyebrows that the regime reversed this policy in a hurry!)

Sentencing the Beagley's to death is, of course, impossible because our laws provide for no such thing in this case. But even if they could be sentenced to death, it could not be done "rather cheap"! Under Oregon law people usually linger on death row for fifteen or twenty years before they are executed, if ever. Now at $84.46 per day it would cost our taxpayers $616,558 to keep these two people in prison for 10 years, or well over a million dollars for 20 years.

Misguided hymns

I have long thought that a good topic for an adult Sunday school class session might be "criticisms of hymns." Even ignoring the major opportunities presented by the atrocities in which good original poetry has been replaced by bad poetry, or even by total nonsense, in the effort to avoid referring to God as "he" or "him," there are plentiful examples.

My example today will be hymn number 44 in the Congregational New Century Hymnal, "Beautiful Jesus." This piece is also sometimes called "Fairest Lord Jesus" or "Beautiful Savior." Where I think it leaves the rails is in the fourth and final verse:

"All earthly beauty, all celestial radiance, fade when compared to Jesus' face.
Let me not cherish beauties that perish; let me this lovely good embrace."

While I have no quarrel with the first line here, I must strenuously object when the author proclaims "Let me not cherish beauties that perish." Whether we are thinking of beautiful flowers, or of those near and dear to us that we consider beautiful, we know full well that these beauties will not last forever. We are morbidly aware of this fact. All too aware! But that does mean we do not cherish theses beauties; indeed it might lead us to cherish them all the more because we know that nothing is forever but, here and now, there they are!

I cannot sing these words without having such a violent emotional reaction---a combination of a sadness at the mortality of those I love plus irritation at finding such a misguided sentiment in a hymn--- that my eyes water up and I cannot see the music or the words.

It may not be fashionable to criticize hymns since they are meant well and written by very nice people and selected for use in a service by other very nice and well-intentioned people. However someone needs to do it, and I guess I am one such someone.

Thinking about the Supreme Court

Tomorrow evening our book discussion group will be considering Jeffrey Toobin's The Nine, and I have been reading James MacGregor Burns' Packing the Court for a little further background. I haven't gotten very far (128 pages) into Burns, but I can say this for him already: He makes Toobin seem like a flaming moderate!

Burns is emeritus professor of Government at Williams College, and when I was a freshman at Willamette University back in 1957 a textbook he had co-authored, Government By The People, was used in the introductory class. This book was the standard text at many schools for several decades, and a much later edition was still being used when my own textbook, Thinking About Politics: American Government in Associational Perspective, was published in 1981.

The main reason I wrote my textbook was that I considered the many existing texts very inadequate. I don't remember in what respects I found defects in Burns' text, but the title itself was horribly misleading if anyone took it literally.

Government requires organization, and as pointed out by Michels' Iron Law of Oligarchy all organizations are oligarchical: the power to make day to day decisions on behalf of the organization inevitably gravitates into the hands of a few individuals. The U.S. government is no exception to this Iron Law, and is therefore oligarchical, a characteristic it shared with the government of the Soviet Union while it was still around before 1992.

The basic difference between the U.S. and Soviet political systems was that in the Soviet Union government was by some people, who picked their own replacements when vacancies came along or (under Stalin) when members of the elite were taken out and shot. In the United States government was and is by some people, limited by the people through periodic competitive elections and the Rule of Anticipated Reactions.

In any event for better or for worse Burns is a grand old man in American political science, but I think his eventual reputation might have benefited if he had refrained from writing this latest book. Since I will not have finished it before tomorrow night's discussion of Toobin's book, I took a look at some reviews of Burns this evening, including a review in which Toobin (correctly) considered it a "polemic."

I was fascinated by the "solution" that Burns is going to propose towards the end of his book for his claimed Supreme Court usurpation of the power to declare acts of Congress unconstitutional: He would have the president announce after a Court decision he does not like that he is going to ignore it since the Constitution does not explicitly give the Court the power of judicial review. He will only obey the Court's decision if judicial review supporters amend the Constitution to explicitly give this power to the Court. Of course formal amendments take years to put through, which is hardly likely during the term of the president in question.

I am afraid that by getting into the Court so late in life, Burns has put his foot in it. There is such a long tradition of judicial review, and it is so well-grounded in logic, history, and implicitly in the Constitution, that any president who pulled this stunt would be inviting impeachment. For one thing, how does Burns account for the opening language of the Bill of Rights, which provides that "Congress shall make no law ....." doing various things? If this language were not judicially enforceable, why bother to add it to the Constitution? But there is no reason to assume that other parts of that Constitution are not equally enforceable.

Another problem for liberals with Burns' proposal is that some right wing president, election of whom we can never rule out, might use it by analogy to overturn Roe v. Wade, arguing (with more grounds than Burns offers on judicial review) that the Constitution contains no explicit right to privacy, which was the basis for the abortion rights decision, and that he will not enforce that right unless abortion supporters amend the Constitution to provide for it in no uncertain terms.

I doubt if Burns and anybody who might initially feel enthusiasm for his proposal would care to have it used for this kind of purposes!

People who propose radical changes in the rules of the game need to watch out for the danger that their proposed rules might actually be used against them. In Perplexichess (my new version of chess in which 7 chessboards are played simultaneously by teams consisting of a board person for each board plus a grand strategist plus possibly some assistants to the grand strategist) players on each of the 7 boards have the right to change one chess rule--within certain limits-- instead of moving a piece. (To add to the fun, the grand strategist for each side has the right to move pieces of his or her own color from any of the boards to the equivalent location on any of the other boards as long as it is unoccupied, and without having to take turns with the other grand strategist!)

I invented this variation to try to make chess more like law, with a hierarchy of rules (the rules of Perplexichess, the rules of chess, modifications of those rules applicable only to specific boards, etc) some of which can be changed as you go. We used this game in some of my political science classes at Adrian College, at the Pre-Law Institute for high school juniors that I ran from 1978-1984, and once at a state-level math contest for high school students. We discovered that all too often rule changes intended to advantage one side on a board were seized upon by the other side to do great damage to the game of the person who enacted them.

In any event, I doubt if Burns' prescription for what he thinks ails our courts will be taken seriously. But classes might have a grand time discussing the idea!

Dangerous tools

The recent elections in Oregon in which supporters of tax increases argued that the increases would only affect 2% of the population reminded me of some "poetry" I wrote (but did not claim authorship!) and included in my 1981 college textbook:

Theft by government still is theft
and it matters not how much the victim has left;
Goodbye, liberty, farewell, rules
taxes which discriminate are dangerous tools.

When I wrote these lines I was thinking of graduated (or "progressive") taxes in which the percentage paid increases as income increases. I think such taxes smack of pseudolaws, though some thoughtful people do not agree.

Since our income went down considerably for a few years after I retired, I came to see the practical upside to progressive taxes, since our taxes went down so much that our after-tax income did not take as much of a hit as it otherwise would have.

But whatever the merits of progressive taxes, my "poetry" also condemns regressive taxes, in which the rich pay lower percentages of their income than do those with more modest incomes. There is just no excuse, for example, for allowing hedge fund managers to get away with paying capital gains tax rates (very low) on their billions of dollars of income by calling it "carried interest."

For that matter, I am not so sure that having lower rates for capital gains than for wages and salaries should be tolerated. True, it may be seen as an attempt to avoid the injustice of taxes capital "gains" that only reflect decreases in the purchasing power of money---inflation. However it opens the system up to manipulation as the wealthy and well-connected connive to convert their regular income into capital gains.

It might be better to index capital gains for inflation or, if that would be too complicated, just tax the gains at the same rate as wages and salaries, figure that a little injustice is inevitable even in the best of worlds, and figure that it wouldn't be all bad to create a class of wealthy and influential people with a vested interest in discouraging inflationary governmental policies.

Better The "Nuclear Option" Than Reconciliation

President Obama recently urged Congress to use “reconciliation” to enact medical reform legislation. Reconciliation rules allow legislation related to taxes and spending to be enacted by a simple Senate majority without the 60 votes needed to avoid a filibuster.

Democrats no longer have the 60 votes. Reconciliation therefore appears to offer the only hope of enacting medical reforms.

There is an alternative to reconciliation, however: the “nuclear option.” It seems more extreme but would be better than reconciliation in several ways.

The nuclear option would have Vice President Biden, presiding over the Senate, rule that the Senate is not a “continuing body.” Senators would then adopt procedural rules anew for each two-year term. Rules would be enacted by simple majorities. The majority could then adopt rules that do not include a filibuster.

When filibusters were rare, they allowed decisions to reflect not just how many senators were on each side of an issue but also how strongly they felt. Weak majorities could sometimes be trumped by passionate minorities. To some extent, this may have been a good thing.

Recently, though, filibusters have become the rule rather than the exception. This reflects the weakening of moderates in both parties, an unfortunate side effect of using primary elections to select party nominees. Since those voting in primaries are mainly party extremists (or “base”), the Senate has fewer moderates willing to make the compromises needed to produce the 60 votes allowing that body to vote on an issue. Before primaries, nominees were selected by party leaders and were more likely to be moderates.

Since we are unlikely to get rid of primaries, we have to eliminate the filibuster if the Senate is ever going to be able to function again as a normal legislative body.

For health care, the nuclear option would make the unseemly deals needed to pick up the votes of key senators less necessary, since no one Democratic senator could derail things. It would also allow all details of the proposed legislation to be amended, not just those related to taxes and spending.

Even better, the nuclear option would allow Democrats to accept Republican demands to scrap the current bills and start drafting reform legislation all over again. (Republicans might not like the results, but life is tough!) The current bills do not make a lot of sense. The most important provision prevents insurance companies from denying coverage due to preexisting conditions. For this to work the legislation also mandates that (nearly) everybody must buy insurance, but it does not back up this requirement with sufficiently strong penalties for non-compliance.

The mandate to buy insurance is constitutionally dubious, at best, but even worse, it creates an unnecessarily complicated and expensive system. Instead of mandating that everyone buy insurance, why not just provide that insurance and finance it with the tax system? The savings on transaction costs alone would be enormous.

Whether we call the new system “Medicare for all” or “single-payer” or “socialized medicine” is beside the point. Socialism is a poor way to organize an entire economy, but a mixed economy with some elements of socialism might well be optimal. We should be more interested in whether something will work well, and less interested in plastering emotionally-loaded labels on it.

Insurance reform by itself will not solve all of our medical problems. Something still needs to be done about the costs of the specific procedures paid for by that insurance. But no one law will do the whole job, and insurance reform would be a good beginning.

Vice President Biden: it is time to push the “nuclear” button!

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This article has appeared in the Adrian, Michigan Daily Telegram.

Poem for a 50th reunion of college graduating class

For several years I have been on a committee which is planning the 50th reunion of the class of 1961 at Willamette University. Yesterday an article in the New York Times quoted the concluding four lines of a poem that Henry Wadsworth Longfellow wrote for the 1875 50th reunion of his 1825 graduating class at Bowdoin College:

For age is opportunity no less
Than youth itself, though in another dress,
And as the evening twilight fades away
The sky is filled with stars, invisible by day.

The full (very long!) poem is available here.

It is a wonderful poem and very relevant to people approaching a 50th reunion, so I e-mailed it to all the members of the committee yesterday.