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01 July 2002
Cojones

The Hon. Jed Rakoff has cojones. Whether one agrees with his opinion or not, it took a great deal of courage to look closely at a supposedly settled issue and force the higher courts to deal with it.

Affirming his tentative opinion of a couple months back, Judge Rakoff ruled that the Federal Death Penalty Act of 1994 is unconstitutional because it fails to provide adequate safeguards against execution of innocent persons who are nonetheless convicted. This is a breathtakingly bold statement by a District Court judge. Had it come from a "real liberal," one might expect a lot of finger-pointing. Judge Rakoff, however, is "tough on crime," but perhaps in a different way than one might expect. Despite Rudy Giuliani's self-aggrandizement, and Charles Carberry's important role, Jed Rakoff is the one government official who more than any other made it possible for one of the most evil white-collar criminals in post-WWII America to spend some extended vacation time at Club Fed: Michael Milken. Despite considerable pressure from his peers and others (including, by some accounts, more-senior officials in the Reagan Administration), Rakoff kept the pressure on the Milken investigation until the luminaries in the Southern District of New York could see a winning case. Anyone who characterizes Rakoff as "soft on crime" has, to say the least, a very selective memory and a very limited definition of "crime," perhaps bordering on the most-common exception to the Fourth Amendment: driving while being black. Sadly, the Quinones matter that gives rise to Judge Rakoff's opinion has more than a whiff of racial politics about it—and not all "white folks oppressing colored folks," either, as both sides have played the race card while trying to appear not to do so.

All of that said, Rakoff's opinion is both searching and tortured. He is clearly uncomfortable with the entire issue; and he should be. He has come to believe, like the late Justice Blackmun, that he cannot any longer tinker with the machinery of death. Given that there is a nontrivial probability that any trials over the terrorist atrocity last September that take place in New York might be randomly assigned to him, this is crucial.

The key is not the objective impossibility of properly imposing the death penalty. The key is the objective impossibility of ensuring that it is imposed upon the "right" people. Unless the governments bite the bullet and provide defense counsel with the same resources, time, training, and respect accorded to the prosecutors, this is an impossible dream; and perhaps even then. Judge Rakoff knows, from personal experience, that no aspect of the legal system is perfect, and demands perfection of any system that would take the life of a human being on the order of the State. This does not necessarily mean that the State is acting in bad faith in applying for the death penalty. It means only that it is impossible to be confident that any given, randomly selected matter that is potentially "death-penalty qualifying" will be handled perfectly from beginning to end.

The Government should actually be glad that Judge Rakoff issued this opinion now. It will allow consideration of the matter in higher courts, with full briefing, outside the emotional context of dealing with atrocities. Anyone who claims to have no qualms whatsoever about the death penalty is completely oblivious to reality. There can be no doubt that at least twelve people in Illinois alone have been released from Death Row on grounds of later-discovered evidence casting severe doubt on their guilt, let alone culpability. Governor Ryan had the cojones, as a lame duck during the first year of his term due to an extensive association with traditional Chicago politics (which is to say corruption that would make Satan blush), to halt all executions in this state pending a top-to-bottom review of the death penalty system here. Judge Rakoff has been just as courageous, because he has essentially denied himself the opportunity to ever sit on an appeals court. Even though/if he is right, he can never be confirmed.

I have very little confidence in the criminal justice system when the stakes are so high as to potentially merit the death penalty under existing law. The cases are always tinged by politics (such as including drug trafficking, but not billion-dollar fraud, as an aggravating circumstance that may merit the death penalty), and the battlefield is far from equal. Is that to say that objectively nobody ever merits the death penalty? Not at all. Just not this way. And, for that reason, I salute Judge Rakoff for having the balls to force serious consideration of the issue by raising the bullshit flag before the terrorist trials even start.

04 July 2002
The Drowning Pool

The last couple of weeks at the local public pool have been quite interesting, at least in terms of people watching. That's what I do while my son is busy getting his gills wet in the pool itself. (It's too crowded for my comfort, so I don't even try.) Apparently, the Park District has some unannounced special deals going on.

Last week, the special must have been "Beached Whale Night"—admission must have been half off for anyone with over 35% body fat, and free if a single belly-flop would empty the pool. At least four people would have gotten free admission by that standard. I was a good three meters from the edge and got splashed. Fortunately, I was able to protect the library book I was reading.

Earlier this week, we had "Raging Teenage Hormone Night"—free hot dogs for PG-13 conduct, free admission for a week for R and NC-17 conduct, and double if it looks like kiddie porn. Rather an interesting evening. The kid was busy swimming laps, so he wasn't subjected to some of the festivities; it was so depressingly soapoperaish that I only noticed when grabbing a drink, but even the lifeguards (high school kids) were commenting…

I have some suggestions for the rest of the summer. Since next week will be right after Independence Day, I propose Drown a Local Politician day. The following week would probably do well for Shark Week—with real sharks, naturally. Of course, I'll probably be outvoted, and next week will probably be Witchtesting Week (weight down the non-Christian girls and see if they float).

06 July 2002
Another Blind Spot

When going through the list of Hugos every year, one serious WSFS blind spot sticks out. Well, more than one, but we'll just ignore the other seventeen for the moment. There are Hugos for novels, and for "related books" (which may not contain fiction); for various shorter works, and for "dramatic presentations"; for professional editors, and semipro magazines and fanzines (but not for professional magazines); but nothing for anthologies or collections. Individual works forming part of an anthology or collection are, however, eligible for the subordinate awards. On this year's ballot, two novellas, a novellette, and a short story first appeared in collections or anthologies. With the ever-shrinking magazine market, and the long tradition of excellence in collections and anthologies—where would the field be without Dangerous Visions, Again, Dangerous Visions, Orbit, Full Spectrum, Snow White, Rose Red? who would have a feeling for the breadth of excellence without the Dozois and Datlow & Windling annual collections?—this seems an unsurprisingly shortsighted omission. (And no, I will not attempt to rectify it myself, as the "leadership" of WSFS has demonstrated severe hostility to ideas that upset the Established Order of Things in general, and to those that attempt to emphasize quality over popularity in particular. Not to mention an abyssmal misunderstanding of how Rules of Order really operate in a parliamentary setting and the personal animosity because I dared object, but that's for another time.)

Thus, I propose the following new Hugo:

Best Original Collective Work A Hugo shall be awarded for the best original collective work published in book form.

1. Book form means a single work, under a single publisher's catalog and/or ISBN number, exceeding 40,000 words of fiction. It may include poetry, dramatic scripts and plays, nonfiction, and illustrations, but only fiction content is relevant to this award.
2. Collective work means, for the purpose of this award only, a set of at least four works each of which is independently eligible for the Hugo award for novella, novelette, and/or short story, notwithstanding the year of first publication requirements, and notwithstanding the authorship of the works.
3. Original means that at least 60% (sixty percent) of the fiction by both word count and number of entries in the table of contents is eligible for the Hugo award for novella, novelette, and/or short story during the same year as the collective work itself is eligible.

Anyone who thinks this is a good idea is free to present it at the WSFS meeting without attribution. I will not be attending; one organizational meeting (SFWA) per con is more than enough for me. Hopefully, an individual who does so will not be presented with the kind of personal roadblocks in my way. (Yes, as a matter of fact that does mean Mr. Yalow, among others.) Either that, or there has been some considerable maturing, perhaps to the preadolescent stage, on the part of the WSFS old guard. The refusal of this group of dinosaurs to allow for change, given that speculative fiction is the literature of change, says something not quite complimentary about the WSFS. Something almost as not quite complimentary as looking at the nominee lists over the last several years… before getting to the question of sentimentality winning out over actually examining the material for at least one award each of the last several years.

09 July 2002
Sentence Structure

"There but for the grace of [insert deity] go I," thought the judge as he passed sentence on the corporate executive. "But at least he didn't kill anybody."

Are you sure of that, Your Honor? He only stole—pardon me, the prosecutor only proved that he only stole—the entire government budget of a small nation. How many vaccinations, water treatment plants, square meals, or physician visits might that have paid for? Even ten percent?

Closer to home, Your Honor, how many schoolteachers in Appalachia, or healthcare workers in the Bronx, or guidance counselors at Cabrini Green, might that have paid for? Even ten percent?

Or perhaps you remember Mrs. Walker, the one who used to live down the street? Remember how desperate she was because she couldn't afford to help her daughter with the kidney transplant?

The defendant's money came from somewhere, Your Honor. Without his—and it is almost always his, isn't it?—intervention, it might very well have ended up in any, or all, of these places. The defendants at Nuremburg were far, far worse than this defendant, Your Honor.

But none of them pulled the trigger, either. None of them built gas ovens, or personally packed hundreds of men and women into cattle cars. They did, however, manage a criminal conspiracy. Just like the defendant. They believed they were doing right. Just like the defendant.

Prison is cruel, and often not the best way to deal with criminals. However, it is virtually all that we have. Distinguishing between different classes of criminals merely because social class or other background makes the criminal somewhat more similar to those in power is bigotry not much different from the refusal to imprison Klansmen in the South. (Besides, one should remember that Ted Bundy was a law student.)

Trying to pretend that a crime is somehow less blameworthy because one cannot name its victims is equally invidious. The defendant robbed as surely as if he had threatened his victims with a fake handgun whittled out of scrapwood and forced them to hand over their wallets. The victims may not have had that instant of terror; instead, they had years of disquiet as they watched their worlds collapse around them, if they had enough information and were perceptive enough to see what was happening.

And so, Your Honor, you should at least ensure that this criminal has lots of opportunity to spend some truly enjoyable evening hours with gentlemen who lift weights. This criminal should receive the same sentence as a bank robber who stole the same amount of money would receive. Under the sentencing guidelines, a thief who stole as much as did this defendant would receive a sentence of 235 to 293 months of imprisonment followed by 60 months of supervised release, a fine of not less than $25,000 nor more than $250,000 (which, sadly, is the maximum applicable under the guidelines), and restitution of the entire amount stolen without regard to purported hardship that might cause the defendant's family. Think instead of the hardship this theft caused to the unnamed hundreds or thousands of people whose retirement funds have been seriously harmed. It is not just incapacitation, or deterrance, or retribution, that would be served by treating this crime as a real crime. It is society as a whole.

10 July 2002
Parsing Sentences

The cause of yesterday's ire is the United States Sentencing Guidelines and the outright racism inherent in some of the various aggravating and mitigating factors. First, though, a bit on how they work, what they're supposed to do, and why they're evil.

The USSG is a thick book. A very thick book, written in the early 1990s, that has had nearly 1,000 changes made since then. (In the real world, they'd issue a new edition. But this is the government.) Its purpose is to make sentences for various offenses more uniform and comparable. It works by aggregating the related charges, assigning a number called an "offense level," modifying that offense level with aggravating and mitigating factors, and then crossreferencing that offense level with another number calculated from the criminal history of the defendant. The crossreference is a specific range of months. I have analyzed a real-world situation, the Deering matter, in this journal a while back (04 January 2000) if you'd like to give yourself a migraine trying to figure it out.

So, then, why are the Guidelines evil? Because the cart is before the horse. To be an effective deterrant, to properly incapacitate a dangerous criminal, to allow an opportunity for appropriate rehabilitation, and to provide the proper level of retribution, a punishment is imposed on a person due to criminal behavior. The Guidelines have it completely backward: they attempt to create a very narrow definition of the appropriate punishment for an individual who commits an offense with a given set of characteristics. Only the criminal history is taken into account. Yes, it is possible to go outside the Guidelines, but there must be a motion made to do so, and trying to depart upward from the Guidelines results in lots and lots of extra litigation.

In no particular order, here are some of the worst aspects of the Guidelines.

• The various offense levels are rather distorted. An accidental homicide, however bad, is not inherently ten times worse than any fraud. As an example, let's take some of the current corporate accounting nonsense that has resulted in schemes to defraud in excess of one billion dollars. The maximum offense level for someone convicted of being the "kingpin" in such a scheme is only 30; the minimum offense level for attempted murder is 22, and more typically 30. In order to get to that offense level of 30, one must steal $80 million; stealing more is supposed to push the penalty closer to the high end of the guideline range.
• The adjustments are very soft on white-collar crime. For example, the adjustment for "more than minimal planning" is only two offense levels. Similarly, the adjustment for leading a conspiracy is only another two levels. As any white-collar crime that could be prosecuted inherently includes at least one of these factors, but not all that many "traditional" crimes do, the comparison is quite disturbing.
• There is no realistic adjustment for the number of victims of an offense.
• The criminal history factors place inordinate weight on prior convictions for even petty offenses.
• We don't need to go into the issue of drug-quantity sentencing and the racial biases betrayed therein, do we?

The worst thing, though, is that the Guidelines actively discourage a judge from careful consideration of the symbolic value of a given sentence. The Hon. Kimba Wood did an exceptional job in that consideration in her sentencing of Michael Milken. I still think she was far too soft on him, but she was much tougher than the defense had anticipated in their worst nightmares, with the typical overweening overconfidence of white-skinned white-collar defense counsel. The Hon. Karl Forrester did a good job within the Guidelines of handling the Deerings, as he sentenced both of them at the upper end of the Guideline range. Most judges, however, are too much like the nameless jurist in yesterday's entry, particularly for schemes that involve defrauding people whom the judges consider less intelligent than themselves.

15 July 2002
Tomatoes

At least in theory, one of the main features of the Constitution was its emphasis upon the Rule of Law over the Rule of Men. Acton's aphorism "power corrupts, and absolute power corrupts absolutely" could serve as a substitute for the Preamble. However, no institution is free of the temptations of power. Perhaps Acton should have said "the lure of power corrupts, and the lure of absolute power corrupts absolutely." This is the only explanation that I can come up with for the shameful misbehavior of a number of professionals of late.

Thus, I award a good pelting with rotten tomatoes to:

• Attorney General John Ashcroft for his arrogant refusal to allow counsel to individuals being held in connection with various terrorism investigations, for his arrogant direction of the INS to evade a ruling by the United States Court of Appeals for the Third Circuit that allows a bail hearing for certain deportation candidates, for reversing 70 years of government position on the scope of the Second Amendment with a footnote, and for just generally being the most dogmatic attorney general since the end of the McCarthy era.
• The Financial Accounting Standards Board (and their former lawyer, SEC Chairman Harvey Pitt, in somewhat lesser degree) for refusing to admit that there are so many structural and inherent problems with their "profession" that they will not allow outsiders to help them reform it. Ironically, of course, this is one of the tenets of a profession: that, even when it is self-regulating, it allows outsiders to help make major changes. If the ABA and AMA can do it, the bloody accountants can do it.
• Rep. Sensenbrenner for aiding and abetting the FASB (see previous item) with a House bill that will essentially not reform the accounting profession at all.
• Sen. Hollings for not just allowing, but encouraging corporate copyright owners who do not actually create the copyrighted works to misuse the principles of copyright law with his pending legislation—which, at first glance, appears to have been drafted by a lobbying group, and is certainly consistent with everything the movie and music industry trade groups want. Sen. Hollings is thereby devaluing the copyrights of everyone else, such as authors and photographers, by helping make "copyright" a dirty word.

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For some inspired—and perhaps all-too-familiar—lunacy, try Steve Mirsky's article in the August Scientific American (page 94). If only MZB had read it before coming up with her stock list of rejections…

19 July 2002
Turning Japanese

Most of corporate America these days seems to be foundering upon earnings. Or, rather, the absence thereof, and the belated need to admit that there aren't any. This is what "modern accounting" has done for us. At the micro level—determining which of two particular programs has a better inflow-to-outflow ratio—modern accounting does very well. However, it makes three critical assumptions in determining the health of an organization; on even cursory examination, none of them bear up.

1. The whole is always exactly equal to the sum of the parts. The two obvious problems with this are synergy and antagonism. The less-obvious problem is the incompatibility of methods in valuing the various parts. How, for example, should a program aimed at assisting local education in a corporation's backyard be compared to a program aimed at the purchase or lease of Congressmen?
2. The future is now. Everything must demonstrate a net current profit (the definition of which is an accounting nightmare, before one considers Hollywood accounting). This greatly devalues longterm planning.
3. Uncertainty factors are completely discounted in the market price of every relevant line item. Umm, right. If this was true, none of the restatements of earnings would have an effect on the stock market, because the unspoken assumption behind this assumption is that all players both have complete information and are perfectly honest in reporting of data to themselves and to the public.

It appears that corporate America needs to relearn the lessons it should have learned from Japan, Inc. in the 1970s and 1980s. Those lessons have less to do with "just-in-time" inventory management and efficient outsourcing of noncore functions than with maintaining a longterm perspective as the controlling influence on short-term results—not vice versa. As I've remarked before, some of this is required by the Securities Act and its quarterly reporting requirements. Reporting does need to be frequent; the alternative—the market manipulations of the 1920s—is far, far worse than any twenty Enrons or WorldComs. Students of history may recall the South Sea Bubble and Teapot Dome, and their far-reaching effects on economic development for years afterward. (One can argue that Enron is an indirect result of the Teapot Dome scandal.)

As a Modest Proposal, I suggest eliminating the distinction between corporate and personal accounting. Really. After all, corporations want to be persons in so many other ways (such as having free speech rights, the right to sue and be sued, etc.) that they should be placed on the same basis as the rest of us. This would have the further positive effect of equalizing the playing field between corporations and small businesses, particularly sole proprietorships, that cannot deduct many of the expenses that a corporation can deduct. For example, I don't get to deduct my healthcare premiums directly, but only a percentage of them. Corporations are supposed to encourage risktaking and the pooling of financial capital. They don't need specific tax breaks to do that, because there are no realistic alternatives to investing in corporations. Bank deposits, after all, are in corporations. By definition.

23 July 2002
Miscellany

Just a few random thoughts today. I've been working on legal stuff almost nonstop over the last four days, so a touch of reality might be appropriate. (Anybody who thinks that "legal stuff" is reality has never had to deal with it firsthand—or, for that matter, contemplated what it means when a court says that "for the purposes of this motion, the allegations in the complaint are taken as true.")

• One of the most-common justifications that internet pirates use for their various piracies is that they are "doing the author/musician a favor" by providing "free samples." To say this is specious gives it too much respect, as there is a serious logical disconnection here. "Free samples" are, or should be, part of a coordinated marketing plan. Piracy is explicitly not part of any plan by the author or musician (leaving aside the abuses of publishers and the recording industries for a moment, we'll assume that better marketing in reality does benefit the author on a one-to-one basis). For you geeks out here, this is perhaps better expressed like this:

  {free samples in a marketing plan} ≠ {pirated works}

  or, in less-abstract form, the set {authorized free samples as part of a marketing plan} is not congruent with the set {unauthorized, unproofread pirated works released at random} (sorry, I had to limit the symbology to relatively standard HTML). Perhaps any geeks who see this will understand. Naaaah.

• As a whole, this summer's movies really, really suck. Really. Not that this is in substance any different from the last two decades, but there really hasn't been a truly memorable work yet this summer. Spidey was moderately entertaining; Minority Report has had more holes in it than Idi Amin's brain; the less said about most of the rest (particularly including George Lucas's most recent proof that he can't write), the better. Even Road to Perdition (which I have not yet seen) appears to be somewhat less than spectacular. Perhaps The Importance of Being Earnest will be better. As usual, I think we're going to have to wait until fall to see any good stuff. Note to Hollywood: just because you idiots keep what tiny brains you have turned off year round, and completely powered down during the summer, does not mean that the rest of us do.
• The Vaterlandsecuritätsburo—pardon me, Department of Homeland Security—is already off to a really bad start. There is one admittedly tarnished silver lining, though: it will attract the various Geheimstaatspolizeistrebener so that all of the rotten eggs, or at least most of them, will be in one basket.

28 July 2002
Baldrick's Cunning Plan

If you need any proof that your government is for sale to blithering idiots, just take a look at the bankruptcy reform bill in its final stages before approval. The credit-card industry has convinced Congress that it needs protection from credit-card abuses by debtors (and, pray tell, just how did those debtors get the cards in the first place?). Thus, individual debtors will be forced into Chapter 13 (repayment plans) instead of Chapter 7 (liquidation). The difficulty with this is twofold: it encourages debtors to take out home equity lines of credit, which will result in losing their homes when their overextension catches up with them instead of merely losing personal property; and it actually encourages debtors to get even more debt so that a Chapter 13 plan cannot be confirmed.

Bravo, you blithering idiots. Instead of blaming the people to whom you inadvisedly offered virtually unlimited credit, why don't you just be more selective in offering your credit cards? Did I mention that a statistical analysis indicates that only nine issuing banks (now consolidated to seven) were behind over 45% of the credit card debt reported in chapter 7 proceedings in 1999? Can you guys spell "Enron" if I spot you the "e-n-r-o"? Apparently not. Perhaps a foreign-sounding name, instead of a made-up one, would be easier. Let's see… I know. "P-o-n-z-i" spells what?

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Just to prove that I'm obviously an unpatriotic godless commie pinko bastard (yeah, right, after getting my ass shot at to protect Exxon), I'm going to weigh in on the Pledge of Allegiance controversy on the side of the Ninth Circuit opinion. Frankly, I do not believe that Supreme Court precedent allowed the court to make any other decision; and, even aside from that, it's the right decision. Ironically, the key precedent in the matter involves protection of the right to free exercise of religion.

Once upon a time, Lillian Gobitis and her brother were asked to recite—wait for it—the Pledge of Allegiance in their public-school classroom. They refused, as their father had instructed them. The Gobitis family, you see, were Jehovah's Witnesses, and did not believe that they could pledge allegiance to any secular flag because it would constitute worship of an icon. To complicate matters, World War II was raging in Europe. Before long, this dispute made its way to the Supreme Court, which found that forcing the Gobitis children to recite a pledge that, in the teachings of their church, was sinful did not advance any legitimate purpose and constituted an infringement of their right to free exercise of their religion. Even in a wartime environment, the underlying values of this country were considered more important than facial expressions of allegiance to a symbol of the nation by schoolchildren.

Gobitis is now settled law; despite a diligent search, I have not found any reported judicial decision criticizing it since before the McCarthy Hearings began. This makes sense, particularly in a school environment. After all, part of what we are trying to teach in the schools is that actions speak louder than words. In this instance, both the action of respecting the Gobitis family's right to their beliefs and the action of separating those beliefs from their actual loyalty to the United States are critical.

Trying to pretend that the current controversy over the phrase "one nation under God" is in substance any different from the situation faced by the Gobitis children is at best sophistry, and at worst something much more sinister. But then, I'm one of the very, very few line officers who opposed the anti-flag-burning laws and amendments and said anything about it. Democracy is a fragile thing; every imposition of dogma by the State or the Church jeopardizes it. My oath was to protect the Constitution against all enemies, foreign and domestic—and only then to follow the orders of the President and the officers appointed over me. I had no reservation in taking that oath, and I could take it again today. However, I have reservations stating that this is one nation under God; if nothing else, the involvement of US citizens in al Q'aeda operations should demonstrate otherwise. As The Onion quoted God as saying after 11 September 2001, "What part of 'Thou shalt not kill' was unclear?" Or have we forgotten that much of the English population of North America prior to the Revolutionary War got here fleeing religious persecution (or, in some instances, seeking the right to be the persecutors instead of the persecuted)? But then, my ancestors were Chosen, and worshipped a jealous God, so perhaps I just don't have the right Yankee perspective.

There. I think that's enough reflexive irony for one paragraph. The critical thing to remember is that the right to freely exercise religion includes the right to not exercise it at all. A pledge of allegiance that forgets this is, to my way of thinking, a domestic enemy of the Constitution that must, by my oath of commissioning, be fought at every step. Especially if it involves attempts to brainwash schoolchildren—a tactic supposedly endemic to those pinko commie bastards to which righteous Americans would never stoop.

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