Should The Criminal Justice Process Make It Easier For Defendants To Testify?

Over one million defendants pass through the criminal justice system every year, yet we almost never hear from them. From the first Miranda warnings, through trial or guilty plea, and finally at sentencing, most defendants remain silent. They are spoken for by their lawyers or not at all. The criminal system treats this pervasive silencing as protective, a victory for defendants. 

This Article argues that this silencing is also a massive democratic and human failure. 

Our democracy prizes individual speech as the main antidote to governmental tyranny, yet it silences the millions of poor, socially disadvantaged individuals who directly face the coercive power of the state. 

Speech also has important cognitive and dignitary functions: It is through speech that defendants engage with the law, understand it, and express anger, remorse, and their acceptance or rejection of the criminal justice process. Since defendants speak so rarely, however, these speech functions too often go unfulfilled. 

Finally, silencing excludes defendants from the social narratives that shape the criminal justice system itself, in which society ultimately decides which collective decisions are fair and who should be punished. 

This Article describes the silencing phenomenon in practice and in doctrine, and identifies the many unrecognized harms that silence causes to individual defendants, to the effectiveness of the criminal justice system, and to the democratic values that underlie the process. It concludes that defendant silencing should be understood and addressed in the context of broader inquiries into the (non)adversarial and (un)democratic features of our criminal justice system.

Alexandra Natapoof, "Speechless: The Silencing Of Criminal Defendants" 80 New York University Law Review 1449 (2005).

The body text goes on to note that:

The United States's criminal justice system is shaped by a fundamental absence: Criminal defendants rarely speak. From the first Miranda warnings through trial until sentencing, defendants are constantly encouraged to be quiet and to let their lawyers do the talking. And most do. Over ninety-five percent never go to trial, only half of those who do testify, and some defendants do not even speak at their own sentencings. As a result, in millions of criminal cases often involving hours of verbal negotiations and dozens of pages of transcripts, the typical defendant may say almost nothing to anyone but his or her own attorney.

Natapoof cites for the percentage of cases that never go to trial: BUREAU OF JUSTICE STATISTICS, SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS tbls. 5.17 & 5.46 (2002).

Natapoof cites for the percentage of cases that go to trial in which defendants do not testify: Stephen J. Schulhofer, Some Kind Words for the Privilege Against Self-Incrimination, 26 VAL. U. L. REV. 311, 329-30 (1991) (describing 1980s Philadelphia study where forty-nine percent of felony defendants and fifty-seven percent of misdemeanor defendants chose not to testify).

Notably, at least one study, found that statistically juries, in practice, penalize defendants who do not testify by a margin similar to those who do testify and have their prior criminal records revealed in the process. So the benefits of not testifying, in terms of jury outcomes, may be illusory. As the abstract of that 2017 article explains (emphasis added):

This Article explores this complex dynamic, focusing on empirical evidence from mock juror experiments – including the results of a new 400-person mock juror simulation conducted for this Article – and data from real trials. It concludes that the penalty defendants suffer when they refuse to testify is substantial, rivaling the more widely-recognized damage done to a defendant’s trial prospects by the introduction of a criminal record. Moreover, these two penalties work in tandem, creating a “parallel penalty” effect that systemically diminishes the prospects of acquittal and incentivizes guilty pleas.

Also notably, the British criminal justice system establishes fewer penalties for a defendant's testimony, who is unsworn and hence not punishable by a perjury prosecution, and which is not subject to impeachment by a defendant's prior criminal record. 

Metformin As A Cancer Drug

I was thinking about a couple of one line quips I'd seen about oxygen based v. sugar based metabolism of cancer cells and the potential of Vitamin C as a cancer therapy yesterday, and why neither had been exploited, when it occurred to me that the drug metformin usually used for other purposes might be a good cancer drug based on those theories. 

I googled the idea, and what did I get?

Metformin is a standard clinical drug used to treat type 2 diabetes mellitus (T2DM) and polycystic ovary syndrome. 

Recently, epidemiological studies and meta-analyses have revealed that patients with T2DM have a lower incidence of tumor development than healthy controls and that patients diagnosed with cancer have a lower risk of mortality when treated with metformin, demonstrating an association between metformin and tumorigenesis. In vivo and in vitro studies have revealed that metformin has a direct antitumor effect, which may depress tumor proliferation and induce the apoptosis, autophagy and cell cycle arrest of tumor cells. 

The mechanism underpinning the antitumor effect of metformin has not been well established. Studies have demonstrated that reducing insulin and insulin-like growth factor levels in the peripheral blood circulation may lead to the inhibition of phosphoinositide 3-kinase/Akt/mechanistic target of rapamycin (mTOR) signaling or activation of AMP-activated protein kinase, which inhibits mTOR signaling, a process that may be associated with the antitumor effect of metformin. The present review primarily focuses on the recent progress in understanding the function of metformin in tumor development.

Fuming Zi, "Metformin and cancer: An existing drug for cancer prevention and therapy" 15(1) Oncol Lett. 683 (January 2018) (published online November 14, 2017) (emphasis added) 

doi: 10.3892/ol.2017.7412

Word Of The Day

Yahrtzeit is a Yiddish word that means “anniversary,” and is used specifically to refer to the day on which a person passed away.

From here.  Hat tip Lori Goldman.

Bacon Cheese Burgers Are Transgressive

At certain religiously significant times of year, I like to eat bacon cheese burgers with ketchup with caffeinated drinks and beer, especially on Fridays during Lent. 

I am thinking about it now, however, in light of attention to halal considerations near the Muslim Holy Day of Eid at-Fitr which ended this evening.

* They are not kosher (i.el they violate Jewish dietary codes).

* They are not halal (i.e. they violate Islamic dietary codes).

* They violate dietary restrictions for Roman Catholics that apply on Fridays during Lent.

* They are at odds with most Hindu dietary codes that prohibit consumption of beef (i.e. the "sacred cow" rules).

* Caffeine and alcohol violates Mormon dietary laws.

* Many religious sects forbid alcohol consumption.

These are also problematic for modern day dietary Puritans.

* They are neither vegetarian nor vegan.

* The ingredients are also often not organic and not GMO-free.

* The ingredients are often not locally made.

* They can be problematic for lactose intolerant people.

* The buns are generally not gluten free.

* They are no go's for low carb diets, low sugar diets, and low fat diets.

Despite the fact that bacon cheese burgers and beer and caffeinated drinks can be transgressive, particular at certain times of the year, they are nonetheless, widely available in the United States, even at the most religiously sensitive times.

Against Trans-Substantive Health Care Policy

I understand the impulse, particularly in the area of mental health care and reproductive health care for these red haired children of the main allopathic medical system's institutions and health care coverage.

But, I am not convinced that this is a good approach, not withstanding the undeniable existence of strong mind-body connections in certain kinds of conditions.

From an economic perspective, reproductive health care "naturally" is tied to the entire life cycle. Pregnancies in modern civilization are a few times a lifetime thing, at most, so an annual expenditure oriented health care lan isn't a good way to spread the economic burdens associated with them.

Also, reproductive health care happens to be the focal point of intense, intransigent and enduring political conflicts in our society, while making up only a tiny percentage of total health care costs. 

Insulating this controversial but not very expensive part of the health care system from the ordinary uncontroversial heartland of allopathic medical treatments for predominantly physical conditions, which are exceedingly expensive in the United States, and vice versa, makes sense. A lack of controversy, comparatively, is a good step towards securing widespread public support for the expensive ordinary health care portion which it needs.

Meanwhile, mental health care has very modest functional overlap between the personnel who deal with one and those who deal with physical health. One can be a competent mental health practitioner without having a full fledged medical doctor's education the way that a psychiatrist does, and MD's are an extremely high cost way to provide mental health services that less expensive specialist practitioners could provide just as well.

Also, physical health care institutions, for the most part, are designed, perhaps poorly, for patients with mostly episodic acute afflictions for which the normative treatment is a cure or one time recovery, who can effectively advocate for themselves in a large bureaucratic system or have someone to do so on their behalf.

But, a good mental health care system, almost by definition, needs to meet the needs of patients who often by virtue of the condition that they seek to treat are ill equipped to advocate for themselves in a large bureaucratic system, and are paradigmatically chronic, incurable conditions that are part of who someone is as a person, that need to be managed for a lifetime.

Further, some kinds of care like dentistry, hearing and vision care, while superficially like other kinds of allopathic physical health care, seem to work well with different business models based upon narrow specialization among health care practitioners, relatively non-urgent timing needs for care in most cases, and a focus on continuing maintenance and management of symptoms as much as cures, that make conventional capitalist consumer goods and services business models work better for them than for other parts of health care.

Why take sub-industries of the health care system in the U.S. like dentistry and vision care that aren't deeply broken and try to fold them into the rest of the health care system in the United States which is deeply broken? 

Timing Matters

In state and federal politics, what matters is how the subset of people who actually vote feel about their electoral choice on a small range of days in late October and early November, once every two years.

When public opinion is stable, this is no big deal. But, when public opinion is volatile and has lots of almost random noise variation from day to day and week to week, timing becomes critical, because some tactics are more effective at some times than others. When that happens, improbable things that don't reflect the typical or average views of the populace can prevail.

Mid-term election day is about two and a half months away, with mail in ballots going out in October.

The drumbeat of hits against the Trump administration has been relentless, pretty much from the day that he was elected, and mostly in "own goal" and "run on errors" situations that were easily avoidable. There has been one atrocity after another.

Today, Manafort (Trump's former campaign chairman) and Cohen (Trump's former lawyer) were convicted of serious corruption charges, while a California GOP politician and his wife were indicted for campaign finance violations.

The trick for a campaign strategist is to get the timing right. 

Tee public can only think about so many issues at once. If too much happens at once, only the greatest outrages will get notice and the rest announced at the same time will be ignored.

The public has a short memory. If something happens too soon, it may be forgotten. 

If something happens too late, it may not be in time to make an impact. For example, in Colorado, a very large share of all ballots have already been cast on election day, so news then has little impact.

Bad news to spur people to action, has to be balanced against good news like a special election win or near win in a district that should have been unwinnable in normal times.

Our doctors are too educated.

This thoughtful piece in the Washington Post identified the shortage of physicians as a key problem and suggests a solution: fewer years of training for would be physicians, although it begs the question of why we don't simply open up more med schools when there is an ample supply of qualified would be med students.

Another way to shorten the amount of education to be a doctor would be to eliminate the requirement that pre-meds, like pre-law students, earn an unrelated undergraduate degree with only minimal prerequisite course work, before advancing to their professional educations.

In both cases, dispensing with undergraduate educational requirements would also make it easier for the women (who, if they want to establish themselves in profession before having children, are racing a biological clock), and the less affluent, for whom each year of educational requirements removed reduces the cost of getting that education.

An aging population with numerous health needs and a declining physician workforce have combined to create a physician shortage — the Association of American Medical Colleges projects a shortfall of up to 100,000 doctors by 2030. 

Policymakers have proposed many solutions, from telemedicine to increasing the scope of nurse practitioners. But I can think of another: Let students complete school and see patients earlier. 

U.S. physicians average 14 years of higher education (four years of college, four years of medical school and three to eight years to specialize in a residency or fellowship). That’s much longer than in other developed countries, where students typically study for 10 years. It also translates to millions of dollars and hours spent by U.S. medical students listening to lectures on topics they already know, doing clinical electives in fields they will not pursue and publishing papers no one will read. 

Decreasing the length of training would immediately add thousands of physicians to the workforce. At the same time, it would save money that could be reinvested in creating more positions in medical schools and residencies. It would also allow more students to go into lower-paying fields such as primary care, where the need is greatest. 

These changes wouldn’t decrease the quality of our education. Medical education has many inefficiencies, but two opportunities for reform stand out. First, we should consolidate medical school curriculums. The traditional model consists of two years of classroom-based learning on the science of medicine (the preclinical years), followed by two years of clinical rotations, during which we work in hospitals. Both phases could be shortened. In my experience, close to half of preclinical content was redundant. Between college and medical school, I learned the Krebs cycle (a process that cells use to generate energy) six times. Making college premedical courses more relevant to medicine could condense training considerably.  Meanwhile, the second clinical year is primarily electives and free time. I recently spoke with a friend going into radiology who did a dermatology elective. While he enjoyed learning about rashes, we concluded it did little for his education.

In the past decade, several schools have shown the four-year model can be cut to three. For instance, New York University offers an accelerated medical degree with early, conditional admission into its residency programs. The model remains controversial. Critics contend that three years is not enough time to learn medicine. Yet a review of eight medical schools with three-year programs suggests graduates have similar test scores and clinical performance to those who take more time. 

Finally, we can reform required research projects. Research has long been intertwined with medical training. Nearly every medical school offers student projects, and more than one-third require them. Many residencies do as well. Students have responded: The number pursuing nondegree research years doubled between 2000 and 2014, and four-year graduation rates reached a record low. Rather than shortening training, U.S. medical education is becoming longer. The additional years aren’t even spent on patient care. 

Done right, this could still be a valuable investment. Intellectual curiosity and inquiry drive scientific progress. But that’s not why most students take research years. I conducted a study showing that less than a quarter do so because of an interest in the subject matter. The most common reason was instead to increase their competitiveness for residency applications. 

Sometimes a Cigar is Just a Cigar

Trump Tweets Aren't Well Liked

Justin Bieber tweeting about his breakfast gets more likes than the president. So I compared his likes to those of Obama, Hillary and Biden. All of them had massively more popular tweets than Trump--and it wasn't even a good week for them. Their tweets get 3 to 6 times the likes as Trump! While Trump occasionally breaks 130K Bidden hit nearly 700K last week, Hillary nearly 300K and every Obama tweet beat Trump--and Obama didn't even really say anything this week! When he does he's up around 1 million. I don't think a Trump tweet has ever come close to that. The dude has 53.7 million followers and he's averaging about 100K likes--that 1/10 of 1% of his FOLLOWERS likes what he says. And that should give us hope. This guy just isn't popular.

- Via a closed Facebook forum

Quote of the Day

Bacon is the most loved food in the universe and the route to all things swine and divine.

- Via Westword

Women Want Pockets!

Beards Are Back

Men's fashion is also shifting towards a more "natural" look as beards have made a comeback. The result is that razor and shaver sales are way down.

Stories linked to in a previous post on the decline of bras and panties in women's fashion noted reduced spending on underclothes as one reason among many for that trend and shaving less is also less expensive than devoting the time and money to stay clean shaven. Are these trends, in part, a product of tighter economic circumstances for lots of Americans in recent years?

Women's Underclothing Fashion Trends

Middle aged women (a.k.a. Generation X) have stopped wearing panties in large numbers. About 20% no longer wear them even once a week. The numbers aren't quite as great in younger generations, but are much higher than you might naively expect.

Meanwhile Millennial women have in the last few years fairly abruptly decided that they usually won't wear bras in large numbers, a trend that has sent Victoria Secret's holding company's stock into a tailspin. And, it isn't just American women either. Bras are also on the decline in Japan.

Who knew?

Why Did The American Colonies Choose Democracy?

The migration out of Europe and the establishment of North American colonies presents us with a great puzzle: Why did the colonists establish democratic forms of governance? Considering that early democratic colonies appeared even before philosophical works such as those of Locke and Montesquieu were written, it is difficult to make the case that ideology was the driving factor. We show that the calculus of consent model proposed by Buchanan & Tullock (1962) offers a simple but subtle solution this puzzle. Because migrants formed homogeneous communities, and because, thanks to the large geographical expanse, the inter-jurisdictional externalities were small, the efficient level of consensus within each colony was much greater than in Europe, and the scope of efficient centralized decision-making was much smaller. Hence, a structure of decentralized democratic communities emerged as the efficient outcome.

We explain why the calculus of consent is particularly well suited to understand the institutional effects of mass migration, develop three calculus of consent theorems about how the equilibrium decision rules are affected by changes in the underlining costs, and show how these theorems can be used to make pattern predictions about changes in democracy, federalism and economic freedom. We apply the model to explain the differences between Britain and North American colonies. and show that the model also provides useful insight about the differences between colonies, in particular between New England and Chesapeake colonies. In conclusion we briefly discuss the fact that the calculus also provides a quick explanation for the institutional evolution in United States and Europe, in particular for the growth of government.

From Tarko, Vlad and O'Donnell, Kyle W., "Escape from Europe: A Calculus of Consent Model of the Origins of Liberal Institutions in the North American Colonies" Constitutional Political Economy, Forthcoming (June 19, 2018). Available at SSRN: https://ssrn.com/abstract=3199452