The World Turns

You take a week off and the world turns.

South Korea has an attempted self-coup a.k.a. autogolpe, which failed within hours, probably irrevocably dooming the President's conservative leaning party. The attempt failed because in South Korea, even conservatives have some morals and respect the rule of law. Heads are starting to roll (figuratively) at high levels in the South Korean government, although the President has so far postponed an immediate impeachment or resignation. The brief and illegal imposition of martial law was trigged when the majority in parliament tried to impeach several corrupt prosecutors, challenged the President's personal scandals, and wouldn't agree to his budget proposals and the President wanted to shut down his legislative opposition. I fear that the U.S. will not perform as well in the near future when faced with a similar challenge. Republicans are spineless and no longer care about democracy or the rule of law.

In Syria, the thirteen year civil war has ended with the sudden collapse of the Assad regime, now that his two key sponsors, Russian and Iraq, are distracted, ending half a century of dictatorship. The U.S. continues to bomb ISIS forces in parts of Syria that neither the Assad regime, nor the main rebel groups, control.

Russia's economy is starting to seriously stumble two and three-quarters years after it restarted it war with Ukraine.

The Prime Minister of the Bahamas has rejected a request by President-elect and convicted felon awaiting sentencing, Donald Trump, to receive people he wants to deport from the U.S.

Trump has also admitted that his tariff plan will cause U.S. prices to surge, even though he was elected with a central campaign tenant of reducing inflation, and that he plans to carry out many baseless federal criminal prosecutions as a way of securing revenge against his enemies (something that President Biden could short circuit with preemptive pardons). 

Biden, of course, pardoned his son who was convicted of a federal charge, now that he is a lame duck, which is less honorable than trying to thwart Trump. If he has the guts he will commute the sentences of everyone on federal death row to life in prison, thwarting Trump's efforts to execute more people has he did in the final days of his first term. Of course, Trump won't officially be the President elect until the Presidential electors vote on December 17, 2024, although the outcome is a foregone conclusion.

Also, UnitedHealthcare's CEO was murdered in Manhattan. Murder is bad, but he surely deserved it. Behind every great fortune is a great crime.  Big health care companies murder people by spreadsheet every day.

Netflix has a new show called Jentry Chau vs. the Underworld described as follows:

But since Texas is basically hell already, and is already fully of creatures more terrifying than those in any myth, this appears to be basically an evil v. evil conflict, so it might not be all that interesting.

The Ethics Of War and Killing

There was a time, in junior high school, when I was a hard core pacifist, at all levels of the personal to the international level. I no longer hold that view.

War And The Use Of Force Is Sometimes The Answer

At the international level and in the context of civil wars, at least one party in any military conflict usually has no choice in the matter. Someone rebelled against them and attacked them. A pacifist stance that one should just give in to violence and threats of violence, while opposing them with non-violent resistance, simply isn't a workable real world approach.

Similarly, defense of self and defense of others defense to assault and homicide offenses isn't at all problematic. 

Indeed, legally justified war is to a great extent a recognition of this principle in a context where military force is necessary because the state using military force is not strong enough to deal with the threat through the more cumbersome and resource intensive due process and methods of its criminal justice system.

And, there is an aspect to those defenses which is non-obvious, but should be noted. Defending yourself or another against serious crimes, unlike a defense of property justification, requires reasonable necessity, but it does not require proportionality.

Killing thirty hostage takers in order to free one person who has been kidnapped is still legally and morally justified.

What Is Right The Gaza Conflict?

In connection with this idea, one of the factors that weighs heavily against Hamas in Gaza, and against Israel, is that Hamas still has about a hundred Israel hostages taken in the October 7 attack that it launched on Israel (which 57% of adult Gazans surveyed still think was the right decision to conduct, after the fact).

The Israeli-Gaza conflict is complex and multi-factored from a moral and ethical perspective. Israel has a long history of mistreating the Palestinians, and it retaliatory military actions in Gaza have inflicted immense suffering, loss, and hardship that is ongoing on lots of people in Gaza who aren't particularly blameworthy. But the Palestinians insistence on hard line positions that Israel shouldn't exist, that they should get their pre-1948 lands back, that they are justified in killing Israelis more or less at random today, and that several generations later that they are still refugees is extremely dubious. Basically, they lost control of their land to conquest and the time has long since passed for them to suck it up, accept it as a fait accompli, and find a way to move on from that defeat. And, Israel excesses, even if they are not fully justified, are at least understandable, when large majorities of the Palestinian adult population wants them dead and sees no moral problem with killing them at random. I don't think that Israel is responding to the October 7 attack in most ethically justifiable manner. 

But the fact that Hamas deliberately provoked this attack knowing that there would be overwhelming retaliation for it, that fact that the people who elected Hamas still feel that the attack was justified even after knowing the consequences, the fact that Hamas has not released the remaining 100 or so Israeli hostages it holds, the fact that Hamas has an official policy with has wide Palestinian support of favoring the annihilation of Israel, and the fact that Hamas is to some extent best understood as an Iranian proxy force, all greatly mitigate Israeli culpability for retaliating for the October 7 attack and changing the way that Gaza will operate going forward, in a way that has inflicted too much collateral damage on less culpable Gazans.

Israel certainly has no obligation to limit the number of people it kills in its responsive military action in Gaza to be somehow proportional to the 1400 or so people that Hamas killed on October 7-8 or so. At a minimum, it is justified in killing every single member of the Hamas military and those civilians somehow connected to ratifying or implementing the attack on it, to destroying everything that facilitates Hamas's military capabilities, to kill everyone it needs to in order to free those 100 hostages, and to inflict whatever collateral damages on Hamas controlled Gaza is necessary to achieve those ends. The only real ethical question is whether there has been far more collateral damage to Hamas controlled Gaza than is necessary, and on that point, there is a fair argument that there has been and that there is a great risk that the unnecessary part of that collateral damage will be great going forward.

I personally wouldn't find it morally offensive for Israel to deport the entire population of Gaza to someplace new, if a place could be found that would receive them. But Egypt doesn't want the Gazans, and neither does anyone else. 

But, for example, given that Hamas, the government that the Gazans chose in reasonably fair elections to rule them, was armed, provided with intelligence by, and incited to bring the October 7 attack by Iran, Iran has a moral duty to accept a relocation of all of the people of Gaza to its territory and it probably wouldn't be wrong for Israel to involuntarily deport them there and turn Gaza into additional territory for Israelis. Similarly, if predominantly Muslim countries really want to advocate for the well-being of Gazans, they should put their words into action and accept Gazans into their territories as new citizens of their countries.

The Death Penalty

I am also not ethically opposed to the death penalty, per se. There are definitely crimes for which the death penalty is not an excessive or disproportionate punishment. Likewise, an execution or corporal punishment that is excruciatingly painful isn't excessive for a crime that was itself heinous, although it may be undesirable for the government to cater to those who take delight in inflicting pain on others.

In theory, the death penalty could be cost effective relative to the cost of incarcerating someone in a maximum security prison for the rest of their life.

My problem with the death penalty is that, as applied, our criminal justice system is rarely accurate enough to justify the executions of wrongfully or immorally convicted innocent people which frequently occurs, and that our death penalty system as it is currently designed does not save money relative to life imprisonment.

Furthermore, many countries that have not abolished the death penalty, including China, Iran, and Saudi Arabia (and to a lesser extent, death penalty states in the U.S.), routinely use the death penalty for offenses for which it is not justified in circumstances in which the accuracy of their systems in imposing it upon people who are executed is doubtful.

What Criminal Justice Policies Influence Murder Rates?

International data and other analyses tends to find that gun control does indeed influence murder rates. 

One difficulty may be that the effectiveness of U.S. gun control law is impaired by having a border free zone that makes buying guns where they are legal and transporting them to places where they are banned or restricted a trivial matter.

Overall, I'm skeptical of the statistical methods used, which make a lot of seemingly ad hoc methodological decisions. Moody's publication history shows him to be a conservative hack. But nonetheless, it is a study that deserves mention.

This study investigates the effects of most of the major firearm and crime control policies on murder. We use two-way fixed-effects models based on state-level panel data from 1970-2018. We include a comprehensive list of relevant policy variables to control for their influence in determining the effect of each. We do a specification search using four commonly used econometric methods to estimate three models of the crime equation. A Bonferroni correction is used to control for false rejections. A robustness check using new difference-in-differences estimators confirms the results.

We find that, with the possible exception of constitutional carry laws, no firearm policy can be shown to have a significant long-run effect on murder. However, we find that the traditional policies of prison incarceration and police presence significantly reduce murder in the long run. We also find that executions have no significant long-run effect on murder. Finally, there is considerable evidence that three-strikes laws increase murder in the long run.

Carlisle Moody, "A Comprehensive Analysis of the Effect of Crime-Control Policies on Murder" (September 14, 2023). Available at SSRN: https://ssrn.com/abstract=4574358 or http://dx.doi.org/10.2139/ssrn.4574358

Federalism And The Death Penalty

In 2021 there were 22,900 reported non-negligent murders in the United States. Of those murders, 54.4% (12,478) of them were solved, predominantly through state court criminal prosecutions, and secondarily through the death of a few hundred murders a year in the course of the offense, an attempted arrest, or by suicide shortly after committing the murder. (About 10,442 murders per year are not solved.)

But, there were only 311 federal non-negligent homicide prosecutions in that year. Thus, only about 3-4% of all homicide prosecutions are brought under federal criminal statutes, and the balance are brought under state criminal statutes.

Territorial v. Subject-Matter Federal Homicide Prosecutions

Moreover, a large share of the federal criminal homicide prosecutions (probably at least a majority of them) involve murders on Indian Reservations or in some other circumstance where the justification for federal involvement is territorial, rather than under federal laws that are generally applicable throughout the United States.

Only about 1-2% of homicide prosecutions in the U.S. (outside of places where the federal government's authority over murder charges is territorial) are prosecuted in federal court, under federal laws without territorial limitations.

Federal Death Penalty Prosecutions Are Rare

Incidentally, the federal government has brought about 1% of death penalty homicide prosecutions. You can count on your fingers the number of federal death penalty prosecutions committed in states without a death penalty, since the death penalty was reinstated, post-Furman in about 1976.

From 1976 to 8 December 2016, there were 1,533 executions. . . . The South had the great majority of these executions, with 1,249; there were 190 in the Midwest, 86 in the West, and only 4 in the Northeast. No state in the Northeast has conducted an execution since Connecticut, now abolitionist, in 2005. The state of Texas alone conducted 571 executions, over 1/3 of the total; the states of Texas, Virginia (now abolitionist), and Oklahoma combined make up over half the total, with 802 executions between them.

(Source)

16 executions have been conducted by the federal government since 1963.

Of the 16 federal executions took place since 1976, 13 took place during the last six months of the Trump Administration. Specifically:

The last pre-Furman federal execution took place on March 15, 1963, when Victor Feguer was executed for kidnapping and murder, after President John F. Kennedy denied clemency. . .

From 1988 to October 2019, federal juries gave death sentences to eight convicts in places without a state death penalty when the crime was committed and tried. . . .

No federal executions occurred between 1972 and 2001. From 2001 to 2003, three people were executed by the federal government. No further federal executions occurred from March 18, 2003, up to July 14, 2020, when they resumed under President Donald Trump, during which 13 death row inmates were executed in the last 6 months of his presidency. Since January 16, 2021 no further executions have been performed. . . . There are 43 offenders remaining on federal death row. . . .

The most recent person to be executed by the military is U.S. Army Private John A. Bennett, executed on April 13, 1961, for child rape and attempted murder.

The only executions by the federal government committed in states where the death penalty was abolished in the last sixty years were Dustin Lee Honken (Iowa, executed in 2020), Corey Johnson (Virginia, executed in 2021), and Dustin John Higgs (Maryland, executed in 2021). Five other defendants were sentenced to death but died in prison or have not been executed yet, most notoriously the Boston Marathon bomber.

Pro-death penalty conservatives could have used broader federal homicide legislation to expand the death penalty widely into states that have abolished the death penalty, but neither Republican nor Democratic Presidential administrations have chosen to do so, and legislators have not passed budgets or new federal criminal homicide statutes to facilitate this possibility.

The Death Penalty Worldwide - Status Report

The vast majority of executions worldwide are in regimes of either majority Muslim countries (Iran, Egypt, Saudi Arabia, Somalia, Iraq, Yemen, UAE, Oman) or Communist countries (China, North Korea, Vietnam). 

Of the top 11 countries that execute people, #8 is the U.S. and #9 is South Sudan are exceptions to this rule. Botswana, Belarus, and Japan are also exceptions (although none of these countries carries out large numbers of executions and Belarus is arguably residually communist). The Roman Catholic Church meanwhile is firmly opposed to the death penalty.

So, why does the GOP which is frequently anti-Muslim and anti-Communist, and has many Catholic members, like the death penalty so much?

Iran is more democratic than most people think that it is, but it still adheres to barbaric practices and executed more people each year than any country than China.

On a per capita basis, Iran with 88 million people, executes more people than China, which has about 1,400 million people (assuming that China executed fewer than 9,259 people last year, which is probable but hard to determine with certainty due to state secrecy).

Yusef Mehrdad and Sadrullah Fazeli Zare were arrested in May 2020 and sentenced to death in April 2021 for running online “anti-Islam groups and channels,” Mizan said. Authorities convicted both after they were found to be members of a Telegram channel titled “Critique of Superstition and Religion,” according to the US Commission on International Religious Freedom.

From CNN.

Iran executed at least 582 people last year, a 75% increase on the previous year . . . The vast majority of the executions – at least 544 – were of people accused of murder and drug-related offenses, said the report.

From CNN.

Capital punishment was used by 6 of 50 U.S. states in 2022. They were Alabama, Arizona, Mississippi, Missouri, Oklahoma and Texas. According to this source:

Here are the 10 states with the most executions since 1976:

1. Texas - 574
2. Oklahoma - 116
3. Virginia - 113
4. Florida - 99
5. Missouri - 92
6. Georgia - 76
7. Alabama - 69
8. Ohio - 56
9. North Carolina - 43
10. South Carolina - 43

Modest Majority Continues To Support Death Penalty

A majority of adults in the U.S. still support the death penalty, although this isn't uniform nationally. Support for it plummeted, however, from a peak in 1994, and then stabilized, mostly due to Democrats who now tend to be strongly against it.

The majority of Americans, 55%, are in favor of the death penalty for convicted murderers in the U.S. While this marks the sixth consecutive year that support for capital punishment is between 54% and 56%, it is below the 60% to 80% readings recorded in the four prior decades between 1976 and 2016.

When Gallup initiated this measure in 1936, 59% of U.S. adults favored the death penalty for convicted murderers -- and majorities have supported it since then, with the exception of several readings taken between 1957 and March 1972, including the record-low 42% in 1966. After the U.S. Supreme Court ruled the death penalty unconstitutional in June 1972, majorities continued to back it. When it was reinstated in 1976, public support for it grew until it peaked at 80% in 1994. At least 60% of U.S. adults favored capital punishment until 2017, when support dipped to the lowest point since 1972, and today it remains at that level. . . .

Partisans' views of the death penalty differ sharply, with majorities of Republicans (77%) and independents (54%) favoring it but a majority of Democrats opposed (63%) and 35% in favor.

Since 2000 . . . No less than 72% of Republicans have been in favor of the death penalty, and the latest reading is not statistically different from the 2000 reading of 80%. Over the same period, independents' support has been as high as 68% and has only once fallen below the majority level (to 49% in 2020). The current reading is down 14 percentage points compared with 2000. Democrats' support for capital punishment has not been at the majority level since 2012 and has varied the most of the three party groups, ranging from 34% to 65% since 2000. Democrats' latest reading is essentially unchanged from last year's record low for them and is 21 points lower than the 2000 reading.

From Gallup.

The State of Capital Punishment In Ohio

Jones was convicted of a murder committed in Ohio in 1997 for murdering a police officer trying to arrest him on outstanding felony warrants, and sentenced to death in 1998 following a sentencing hearing.

During the penalty phase, Jones’s counsel presented testimony from a clinical psychologist who diagnosed Jones with Antisocial Personality Disorder. The psychologist testified that Black men with this disorder (including Jones) would commit more murders—he claimed that about one in four “African-American urban males” suffered from the disorder, and the only treatment for them was to “throw them away, lock them up.” After hearing this testimony, the jury recommended the death penalty. The court accepted the recommendation and sentenced Jones to death. . . . 

In his post-conviction appeal, Jones did raise this ineffective-assistance claim and supported it with an affidavit from psychologist Hugh Turner. Dr. Turner, who had been contacted by post-conviction counsel, interviewed Jones and conducted new testing. In Dr. Turner’s view, Dr. Eisenberg’s diagnosis of APD was incorrect: Jones primarily suffered from post-traumatic stress disorder

How did Jones come to be betrayed in this fashion by his own court appointed lawyer?

Prior to the trial, held six months after he was indicted for murder, but the court wouldn't let him replace his court appointed counsel who he figured out was ultimately going to sabotage his case at the 11th hour.

the relationship between Jones and his appointed counsel deteriorated. Two hours after the jury was sworn in, attorney David Per Due filed an entry of appearance, having been retained by Jones’s family that day. The trial court held a hearing the following day to discuss the status of Jones’s representation. But after hearing from Jones and the attorneys, the court denied Jones’s motions for Per Due to substitute as counsel and for a continuance, finding that Jones’s relationship to his court-appointed counsel had not broken down beyond repair and that the request for a continuance was made in bad faith and for purposes of delay. The trial proceeded as scheduled with Doughten and Tobik representing Jones. At the close of trial, the jury found Jones guilty of aggravated murder. 

During the penalty phase, the court explained to the jury that they had four sentence options: (1) life in prison without parole eligibility for 25 years; (2) life in prison without parole eligibility for 30 years; (3) life in prison without the possibility of parole; or (4) death.

Appeals by Jones of the conviction and death sentence were rejected repeatedly by the Courts of Ohio, with the Ohio Supreme Court affirming the conviction and sentence on direct appeal in 2001, and a federal district court ultimately denying him relief in a collateral attack on the conviction and sentence.

But, after twenty-four years on death row, the U.S. Court of Appeals before the 6th Circuit vacates his death sentence, but not his conviction of the crime, for ineffective assistance of counsel.

This gross betrayal by his own lawyer and the expert witness his lawyer hired was corrected before any of the originally available sentencing options had been rendered moot after the incredibly prolonged appellate and post-trial litigation (which is typical of U.S death penalty cases). But spending twenty-four years on death row instead of in an ordinary prison sentence was an incredible psychological hardship and excessively severe punishment.

There was also a claim that his lawyers in the original murder trial failed to present evidence that another man had claimed to have murdered the police officer, but because this arguably could have been presented at that trial and was "harmless error" because courts found that the jury wouldn't have believed, this mistake by his trial lawyer went without a remedy and his conviction for murder was allowed to stand.

This is the quality of justice in Ohio's courts, which is very typical of cases in which the death penalty is imposed.

N.B. the 6th Circuit notes in a footnote that: 

During federal habeas proceedings, petitioner legally changed his name to Malik Allah-U-Akbar. For purposes of clarity and continuity, we continue to refer to petitioner by his former name.

Government Sanctioned Murder In Plain Sight

The U.S. criminal justice system continues to be deeply and tragically flawed.

At least 228 people executed in the modern era — or more than one in every seven — were right too soon. That is, they had claims in their case that today would render their execution unconstitutional, but were killed because of a legal regime that arrived too late. 

Roughly 30% of our total include the children and persons with intellectual disability who were executed prior to Roper v. Simmons and Atkins v. Virginia, respectively. 

But the great majority of the people identified in our study raised claims based on doctrine that had already been clearly established by the Supreme Court. If the lower courts had applied Supreme Court caselaw correctly, these people would have gotten relief. Yet the lower courts resisted the doctrine and for years the Supreme Court did nothing to correct them. 

This resistance was particularly egregious in Texas and Florida. In Texas, at least 108 people were executed after the Supreme Court had already established the relevant basis for relief, and in Florida, the total is at least 36. 

At least when it comes to the death penalty, the lower courts seem especially unwilling to follow Supreme Court doctrine that would save a person from execution. The result is a system that routinely kills people even when they are right.

Joseph Margulies, John Blume and Sheri Lynn Johnson, "Dead Right: A Cautionary Capital Punishment Tale" 53(1) Columbia Human Rights Law Review (2021).

Cultural Trends In Twenty-First Century Life

This are a few cultural trends in the 21st century.

Beyond American Media

When I was in high school, one of the very specific things that I wished I had was an ability to access popular culture, news and scholarly works from other countries.

I was a couple of decades ahead of my time, and I assumed at the time that it would probably be impossible, but here we are.

I now routinely listen to music in Japanese, Korean, Tamil, Telugu, French, Spanish, Portuguese, Latin and Hebrew. This is mostly due to Spotify and SiriusXM. 

I watch TV shows and movies from Japan, Korea, Turkey, Mexico, Russia, France, Canada, England, Australia, Ireland, Spain, Germany, China, Taiwan, South Africa, and Sweden. This is mostly due to streaming services like Netflix, Hulu, Amazon Prime and Crunchyroll, but also before that due to independent art house movie theaters.

I read comics from Korea, Japan, Turkey, Canada, Iran, Malaysia, Indonesia, Spain, and France. Mostly, this is due to Webtoons and Top Webcomics, although free scanlations on the Internet (which are harder to find these days after a crackdown) and library collections hooked me on manga and manhwa  ( 만화) and graphic novels.

I read cutting edge scientific journal articles from France, Mexico, Israel, China, Russia, Germany, Denmark, Finland, Polynesia, Australia, Ukraine, Turkey, Taiwan, Japan, Korea, Switzerland, and sometimes many of the above and more in a single publication. I read many of those articles within hours or days of their release. Mostly this is due to arXiv, bioRxiv, PLOS, Science Daily and science blogs. SSRN and blogs provide similar access to legal and social science journal articles.

I read news accounts from most countries in the world. I refer to legal codes and digest from around the world with some regularity, partially for work and partially for hobbies. In both cases, comparative and international law and politics study I did in college and law school has provided a firm foundation.

The novels I read are less cosmopolitan, but there have certainly been translated international titles as part of the mix (a mix that is also now about fifty percent electronic).

It isn't free, but it is far less expensive than I expected.

Societal Norms, Practices And World Views

De-Christianization

The United States is in the most exciting part of the logistic curve of secularization, one that I am a part of, having been raised Lutheran, and having experimented with other mainline Christian churches as a young adult (I was actually an Episcopalian Sunday school teacher for a year in college) despite really losing true belief in God around age fifteen or so. The more time I spend away from it, the more absurd it all seems. And, globalization, especially in media from East Asia, has helped that transition by familiarizing me with societies where Christianity is marginal rather than central, and by providing constant reminders that the world is not uniform religiously, with undermines the worldview of a single monotheistic God that is the same for everyone.

In the 2020 election, fully 45% of Biden voters and 20% of Trump voters were not Christian. Most were non-religious, although not necessarily atheist or agnostic in self-identification, although there are significant numbers of Jews, Hindus, Muslims, adherents of Eastern Religions, neopagans, and spiritual people who don't adhere to an organized religion.

Neither of my children were raised religious or baptized, although they had some exposure to Christianity through grandparents and an occasional funeral, and probably equally as much exposure to Jewish religious services through Jewish friends of the family. They've also each had religious close friends and significant others, one Mormon, one Muslim, some Catholic, and some Orthodox Christian and Jewish. When I was growing up, that would have been unthinkable. Now, it is a typical experience for their generation.

The residual Christianity has grown more conservative and more political, but the association of Christianity with homophobia, with racism, with mistreatment of the poor, with misogyny, with child molestation, with support for rape and domestic violence, and with clergy greed and excess has undermined much of Christianity's moral authority. 

Also, in the last several years this trend has stalled, with non-religious ranks stable and mainline Christianity growing a little at the expense of white Evangelical Christianity. So, it isn't clear is this is just a short term pause, or the beginning of a new trend.

Gay Rights

In high school, I was only vaguely aware that homosexuality existed and had never met anyone who was at a personal level (and never knew that transgender or bisexual or other gender atypical people existed at all). 

This changed dramatically when I went to a college that was a safe haven for LGBT+ folks. My children have had many gay friends (some quite close) and known many LGBT+ adults growing up from a violin teacher of many years to elected officials in Denver to parents of their friends to my clients. 

The legalization of same sex marriage has become the law of the land. I wouldn't have guessed that this would happened by now in my wildest dreams while I was in high school, or even college.

Dating, Polygamy and Marriage

Dating and finding spouses has increasingly become driven by online matchmaking.

Consent is taken more seriously in dating type relationships, and even within marriage (with marital rape widely criminalized), than it used to be, because the "sexual revolution" was seen as having gone too far.

Polygamy (both Muslim and heterodox Mormon, and in my case, some clients of mine who were neither) and polyamory, are familiar concepts now, whose legalization is being vetted. 

Laws against fornication and adultery and unmarried cohabitation are largely gone (outside the U.S. military justice system), effectively decriminalizing these relationships.

In part, this is because, serial monogamy generating children from multiple successive marriages and non-marital relationships has created a de facto sort of polygamy, as it has become normative for both parents to remain involved in the lives of their children even after their parents are no longer together, entwined through parenting time exchanges, child support and sometimes alimony. 

"No fault" divorce certainly helped to facilitate this, but mostly it has been driven by economics as I've discussed many times elsewhere, with the upper middle class living traditional monogamous married life with shared children born into stable marriages, the the working class increasingly having children out of wedlock, not just as teens (indeed teen marriage and child bearing are at all time lows), marrying after having kids more often than before, and having short lived marriages with most marriages not enduring until the couple's children are adults.

Pornography

Pornography is ubiquitous, easily available for free on the Internet, and more hard core than it used to be (except child pornography) and the impact has been not what was expected. Rape is less common despite more reporting and more expensive definitions of it. And, in general, people who consume it have not been more depraved.

Prostitution

The U.S. remains an outlier in criminalizing prostitution almost everywhere but a few counties in Nevada (and even there it is a crime for members of the U.S. military and a firing offense for federal employees and contractors), but the anti-prostitution efforts have focused on "human trafficking", while "sugar baby" relationships have received grudging acceptance.

Birth Control

Hormonal birth control pills were invented about a decade before I was born and both hormonal birth control and IUDs have become ubiquitous and the norm rather than the exception. Unwanted pregnancies are now vastly more rare than they used to be. Opposition even to birth control is another factor that has undermined the authority of conservative Christianity and sent people away from the faith entirely.

Abortion

Abortion was legalized when I was a preschooler and has remained legal despite concerted conservative religious attempts to ban it, but wider use of birth control and better prospects for young women have reduced pregnancy rates in young people to record lows, and the proportion of pregnancies ending in abortions has fallen proportionately to all time post-Roe v. Wade lows. Abortion clinics have faced pressure to close in conservative areas and violence, but over the counter emergency contraception for the first few days after sex without birth control, and the RU-486 abortion pill for early term abortions has reduced the need for clinics in some of the highest demand portions of pregnancy. Deaths from illegal abortions have basically ceased. A conservative U.S. Supreme Court seems poised to overrule or narrow Roe v. Wade. 

Drugs and Criminal Justice

The shadow legalization of marijuana is another thing that would have been unthinkable and radical when I was in high school that is now common place and mainstream and will probably have the last federal government restrictions stripped soon despite our President's history as a leading proponent of the war on drugs. 

The war on drugs has now deescalated in the United States with most of the most draconian drug crime penalties relaxed, and some of the most notorious sentences reduced with commutations and legislative amnesties or sentence reductions for those incarcerated already (although many unlikely people are still serving those draconian sentences today).  But, the U.S. has refrained from moving towards all out decriminalization as Portugal has done very successfully.

But, the war on drugs continues to ravage much of Central America and Mexico, undermining their criminal justice systems and producing the world's highest murder rates in places not in the midst of actual wars. Much of that violence is being fueled with guns illegally imported from the United States.

The death penalty remains, but more states have abolished it and it is being used less often. The courts and the commutation process have thinned death rows considerably, and innocent projects have used DNA evidence and other techniques to cast doubt on a fair minority of sentences.

Public Opinion About The Death Penalty

I suspect that there are also deep regional and demographic differences in death penalty support.

About a fifth of American voters oppose the death penalty in nearly every circumstance: These appear to be the truly committed opponents. About three fifths reliably support the death penalty: they favor it in theory and also want to have a death penalty law in their state. A final fifth of the American electorate approves of the death penalty in some way, in theory, but does not necessarily want the death penalty in their state.

Via the Sentencing Law and Policy Blog.

Colorado Reforms Felony Murder Statute

This statute is an improvement relative to the status quo, although it is still quite harsh in cases  of intermediate culpability. 

Colorado has loosened the sentencing standard for people convicted of being present for but not actually responsible for a killing, bringing it down from an automatic sentence of life without parole to a sentence of between 16 and 48 years in prison.

Gov. Jared Polis on Monday signed into law SB21-124, a bill that he said ensures the “punishment fits the crime.”

“The person who did the murder should do the most time,” Polis said. “If you’re standing there, you are guilty. This keeps that. … (But) you’re not in jail as long as someone who pulled the trigger, or stabbed a person.”

This new law doesn’t apply to past cases and won’t take effect in courts until Sept. 15.

Via the Denver Post. 

A safety valve provision for individuals with particularly little culpability, and an exclusion for deaths of co-conspirators, had already been part of the prior law.

18-3-103. Murder in the second degree - definitions. (1) A person commits the crime of murder in the second degree if: 

(a) The person knowingly causes the death of a person; OR 

(b) ACTING EITHER ALONE OR WITH ONE OR MORE PERSONS, HE OR SHE COMMITS OR ATTEMPTS TO COMMIT FELONY ARSON, ROBBERY, BURGLARY, KIDNAPPING, SEXUAL ASSAULT AS PROHIBITED BY SECTION 18-3-402, SEXUAL ASSAULT IN THE FIRST OR SECOND DEGREE AS PROHIBITED BY SECTION 18-3-402 OR 18-3-403 AS THOSE SECTIONS EXISTED PRIOR TO JULY 1, 2000, OR A CLASS 3 FELONY FOR SEXUAL ASSAULT ON A CHILD AS PROVIDED IN SECTION 18-3-405 (2), OR THE FELONY CRIME OF ESCAPE AS PROVIDED IN SECTION 18-8-208, AND, IN THE COURSE OF OR IN FURTHERANCE OF THE CRIME THAT HE OR SHE IS COMMITTING OR ATTEMPTING TO COMMIT, OR OF IMMEDIATE FLIGHT THEREFROM, THE DEATH OF A PERSON, OTHER THAN ONE OF THE PARTICIPANTS, IS CAUSED BY ANY PARTICIPANT. 

(1.5) IT IS AN AFFIRMATIVE DEFENSE TO A CHARGE OF VIOLATING SUBSECTION (1)(b) OF THIS SECTION THAT THE DEFENDANT: 

(a) WAS NOT THE ONLY PARTICIPANT IN THE UNDERLYING CRIME; AND 

(b) DID NOT COMMIT THE HOMICIDAL ACT OR IN ANY WAY SOLICIT, REQUEST, COMMAND, IMPORTUNE, CAUSE, OR AID THE COMMISSION THEREOF; AND 

(c) WAS NOT ARMED WITH A DEADLY WEAPON; AND 

(d) DID NOT ENGAGE HIMSELF OR HERSELF IN OR INTEND TO ENGAGE IN AND HAD NO REASONABLE GROUND TO BELIEVE THAT ANY OTHER PARTICIPANT INTENDED TO ENGAGE IN CONDUCT LIKELY TO RESULT IN DEATH OR SERIOUS BODILY INJURY.

The residual First Degree Murder statute now reads as follows:

Colorado Murder -In The First Degree (18-3-102)

A person commits the crime of murder in the first degree if:

(a) After deliberation and with the intent to cause the death of a person other than himself, he causes the death of that person or of another person; or

(c) By perjury or subornation of perjury he procures the conviction and execution of any innocent person; or

(d) Under circumstances evidencing an attitude of universal malice manifesting extreme indifference to the value of human life generally, he knowingly engages in conduct which creates a grave risk of death to a person, or persons, other than himself, and thereby causes the death of another; or

(e) He or she commits unlawful distribution, dispensation, or sale of a controlled substance to a person under the age of eighteen years on school grounds as provided in section 18-18-407 (2), and the death of such person is caused by the use of such controlled substance; or

(f) The person knowingly causes the death of a child who has not yet attained twelve years of age and the person committing the offense is one in a position of trust with respect to the victim.

As I read the statute, it also means that a triggerman in a murder committed during a felony does not automatically receive life in prison without parole, and will often qualify for a second degree murder charge, which is more lenient than the act has been described in the popular press as being, and could often secure a second degree murder charge.

Colorado has also abolished the death penalty for first degree murder under prior law. 

 

A Modest Proposal

Every gun owner should be registered in a selective service lottery. Every single time someone is killed as a result of the use of a gun in a crime, someone in that lottery should be selected at random and executed. 

Maybe if they personally bore the consequences, they'd realize that mass, largely unregulated civilian gun ownership is a horrible idea.

SCOTUS Review Of State Court Cases

Cases in which a federal question is present in a state court can, after appeals are exhausted in the state courts, be reviewed via a writ of certiorari by the U.S. Supreme Court. But this review is very rare. State supreme courts, collectively, decide something on the order of 10,000 cases a year.

The precedents created by the cases reviewed have a massive impact on how state courts apply the law. But given that the vast majority of criminal prosecutions and civil cases in the United States take place in state courts, this review is very light. 

Out of all the criminal cases decided in any given year, just two to ten of them (on average about five) will be considered by the U.S. Supreme Court on the merits. A disproportionate share of those cases involve the death penalty.

The number of civil cases from state courts considered by the U.S. Supreme Court on the merits each year is similar.

Appeals to the U.S. Supreme Court from state supreme court cases accounted for 11 cases in 2019 (17% of the U.S. Supreme Court's docket): "The cases from lower state courts were primarily criminal in nature with seven but included four civil cases as well."

Since the beginning of the Roberts Court, the split of cases from lower state and federal courts has, for the most part, hovered around this 10-20% state court case margin.

In OT 2019 almost 73% of the Court’s cases reviewing state court decisions were criminal rather than civil. Over the last five terms though, there has been considerable fluctuation in this balance between criminal and civil cases coming from lower state courts.

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What are the odds of any case getting to the U.S. Supreme Court?

During the Court’s 2012 Term (the 2013 Term will be completed later next month) the Court disposed of a whopping 7602 petitions and granted only 92 petitions for oral argument – a rate of 1.21%. That figure does not count GVRs – the grant of a petition for certiorari, vacation of the lower court’s judgment, and remand of the case. 

That doesn’t seem much better than a snowball’s chance, right? If we separate petitions into two commonly analyzed categories – paid petitions and petitions filed In Forma Pauperis (IFP) – the grant rate changes considerably.

During the 2012 Term, 82 of the 1503 paid petitions filed were granted – a rate of 5.46%. IFP petitions, which made up the bulk of the Court’s docket (80.2%), were granted at a rate of .01% (6099 IFP petitions were disposed of vs. the 10 that were granted).

The number of cases decided by the U.S. Supreme Court on the merits each year is at a historic low for the post-U.S. Civil War era:

 

Dystopian Policy Ideas Are Worth Pondering

From here.

Most people who think about public policy reform are prone to focusing on how to make the world a better place and assume that all people who actually make policy think likewise. But history shows that bouts of bad policy making are common. 

Indeed, we are in the midst of one of those historical moments right now. How many goo-goos would have predicted that:

* The Governor of the State of Georgia would ban localities from adopting face mask requirements in the midst of a pandemic at its peak number of new cases in the state?

* The President would prohibit state health departments from providing updated coronavirus information to the Centers for Disease Control?

* The Douglas County, Colorado Commissioners would adopt a resolution declaring that they would never find an alleged violation of constitutional rights and excessive force by a law enforcement officer to have been committed in bad faith amidst national outrage over excessive uses of force by police?

* A President who would repeal regulations preventing people who had been involuntarily committed for being a danger to themselves and others from buying guns as school shootings reach record highs?

* A President who would attempt to withdraw the U.S. from the World Health Organization in the middle of a global pandemic that no nation is suffering from more severely than the U.S.?

* A President who would support a policy of keeping refugee children cages without access to hygiene and with intentionally uncomfortably cold temperatures?

* An administration that would indiscriminately attempt to repeal almost every environmental regulation on the books (most recently, the protections of the Migratory Birds Treaty)?

* An administration that would try to get the U.S. Supreme Court to repeal health care coverage for tens of millions of Americans in the middle of a pandemic.

* An administration that would attempt to deport medical professionals who are trying to provide healthcare at hospitals overwhelmed with COVID-19 patients?

* A President that has attempted to buy Greenland and sell Puerto Rico?

* A President who thinks that windmills cause cancer, that American forces “took over the airports” during the Revolutionary War (which started in 1776 CE), suggests in a coronavirus press conference that people should drink bleach, and thinks that preventing forest fires is about raking forest floors?

* A President who pardons war criminals and then appears publicly with them to praise them for their crimes?

* A Supreme Court justice who would conclude that it is constitutional and does not violate the Eighth Amendment prohibition on cruel and unusual punishment to execute an innocent person who was wrongfully convicted of murder?

* A Presidential would support a government that tortured and murdered a journalist for an American newspaper and that one of his senior advisors and family members would have helped facilitate the killing?

* Who would have imagined that we'd be fighting a reinvigorated Nazi movement in 2020 and that the President would call them "very fine people"?

There's no way anyone could have predicted these events. Unless, that is, they put on their dystopian brainstorming hat and added a healthy dose of pessimism and cynical humor. 

So, it is a worthwhile exercise to consider dystopian policy ideas, because they aren't as impossibly unlikely as they may seem.

Change, Some For The Better In Saudi Arabia

Crown Prince Mohammed bin Salman has made some reforms that restrict practices that are widely recognized as putting Saudi Arabia among the "uncivilized" countries of the world (he has also relaxed some restrictions on women's rights and expanded democracy at the local government level while retaining an absolute monarchy nationally). But, he's also taken actions that belong in a modern version of the television series "Game of Thrones."

Even with the reforms, Saudi Arabia will still have one of the highest rates of capital and corporal punishment in the world, still criminalizes conduct that is legal in most of the world, and remains one of the most totalitarian countries in the world. But, steps in the right direction are still welcome ones.

It remains to be seen if his policies, reforms and tactics, will be, on balance, positive or negative ones.

"Saudi Arabia's King Salman has ordered an end to the death penalty for crimes committed by minors, according to a statement Sunday by a top official. The decision comes on the heels of another ordering judges to end the practice of flogging, replacing it with jail time, fines or community service and bringing one of the kingdom’s most controversial forms of public punishment to a close. 

King Salman's son and heir, Crown Prince Mohammed bin Salman, is seen as the force behind the kingdom’s loosening of restrictions and its pivot away from ultraconservative interpretations of Islamic law known as Wahhabism, which many in the country still closely adhere to. 

The crown prince has sought to modernize the country, attract foreign investment and revamp Saudi Arabia’s reputation globally. He's also overseen a parallel crackdown on liberals, women's rights activists, writers, moderate clerics and reformers. The 2018 killing of Saudi writer Jamal Khashoggi in Turkey by agents who worked for the crown prince drew sharp criticism internationally. 

The latest royal decree by King Salman could spare the death penalty for at least six men from the country’s minority Shiite community who allegedly committed crimes while under the age of 18, including Ali al-Nimr, who had participated in anti-government protests. Such activity carries terrorism-related charges in the kingdom for disturbing order and disobeying the ruler. In a document seen by The Associated Press, the royal decree orders prosecutors to review cases and drop punishments for those who've already served the maximum 10 years. However, the decree states that terrorism-related cases of minors will be tried differently. . . . 

He said “more reforms will be coming,” and that the two decisions “reflect how Saudi Arabia is forging ahead in its realization of critical human rights reforms even amid the hardship imposed by the COVID-19 pandemic." The decree expands on a previous order by King Salman issued in late 2018, which set a maximum 10-year prison term for minors in certain cases, except for crimes punishable by death. Now the 10-year maximum applies to all crimes by minors, with the possible exception of terrorism-related crimes. . . . 

Saudi Arabia's Supreme Court recently issued a directive to end flogging as a form of punishment sometime in April, according to another document seen by The Associated Press. The public spectacle of whipping a handcuffed prisoner for often non-violent crimes had drawn some comparisons to the types of punishment carried out by extremist groups like the Islamic State. . . . The Supreme Court document said the decision was in line with the kingdom's reforms and developments in the realm of human rights as directed by King Salman and overseen by the crown prince. .. . 

While some crimes, such as murder, may carry fixed punishments under Saudi Arabia’s interpretation of Islamic law, or Shariah, many other offenses are considered “tazir," meaning neither the crime nor the punishment is defined in Islam. Discretionary judgments for “tazir” crimes, such as flogging, have led to arbitrary rulings with contentious outcomes. Muslim countries generally do not practice public flogging. “This is a good step but we are still waiting to see if existing lashing sentences will be reversed and expunged,” al-Ahmed said."

From ABC News. 

The Limits Of Naive Eugenics

A Cluster Of Specific Practices Associated With Islam

When Westerners think about the Islamic world, a number of distinctive cultural practices come immediately to mind:

* Polygamy

* Limitations on the interactions of women with men who aren't family members

* A high frequency of cousin marriage

* Heavy use of corporal and capital punishment

For what it is worth, all of these cultural practices have deep pre-Islamic roots, and are not universal among peoples and societies where Islam is practiced. Islam can be seen more as a moderate reform of these practices in societies that had them (for instance, imposing limits on polygamy and some procedural limitations on arbitrary clan justice) and as a vector for their wider transmission of these practices to societies that did not (often with more limited impact), rather than the ultimate source of these practices.

All of these can be seen as motivated naively by eugenic considerations.

Eugenic Motivations For Polygamy

Polygamy tilts sexual selection in favor of men who have been unusually successful in their society, and pushes men who were unusually unsuccessful in their society out of the gene pool. Animal breeding using this approach heavily with great success to maximize desired traits. Like polygamists everywhere, wife's of polygamous men also tend to have many children per women which is also well established in animal breeding as a successful technique.

Eugenic Motivations For Isolating Women From Non-Family Men

Limitations on the interactions of women with men who aren't family members is a way to prevent infidelity from diluting polygamy and assortive marriage, which men who are excluded from having wives, and polygamous wives who receive less attention from their husbands, may have a more intense inclination to try to engage in than in a more Western style marriage system.

Eugenic Motivations For Cousin Marriage, Their Flaws, And Why The People Who Devised It Didn't Realize This Point

Cousin marriage is one form of assortive marriage that is intended to keep what are believed to be more fit in group genes from being commingled with less fit out group genes that has been widely practice in every place with a hereditary monarchy and aristocracy at those elite levels. Awareness of the risks of inbreeding depression and of the social risks of nepotism and clannishness that this system gives rise to were not really well understood until the 20th century and old habits die hard.

Why didn't experience from animal breeding lead to an awareness of this risk?

Part of the issue is that inbreeding depression doesn't badly affect all children of inbreeding parents. Mostly, inbreeding greatly increases the likelihood that undesirable recessive traits which everyone has in their genome will become dominant in the children. But, lots of children of parents who are cousins are just fine, especially if they are not "double cousins", a concern that no marriage system I am aware of had the foresight to treat differently than ordinary first cousins, but arises naturally in a society with lots of cousin marriage.

Also, while cousin marriage, where it has been practiced, has mostly been perceived as assortive, when the underlying basis upon which assortive marriage is taking place is not itself merit based as opposed to hereditary or even economic, it impedes the capacity of the in group that one seeks to enhance to be enriched with fit people from outside the in group. And, the longer this endures, the more rot degrades the quality of the in group and exclusion improves the quality of the out groups who are not losing their best children to the in group.

In pre-modern agricultural animal breeding, only the males with the traits that breeders deem most desirable breed at all, and females with undesirable traits are also ruthlessly put down rather than bred, without much concern for inbreeding issues per se. So, animal breeders, who are the experts on sexual selection in pre-modern agricultural societies, don't encounter much inbreeding depression.

But, in human societies, where even the most polygamous society has a profoundly higher proportion of breeding males and only the most severe recessive traits or inbreeding depression effects are sufficient to keep someone out of the gene pool, inbreeding is a much more serious issue.

Eugenic Motivations For Capital Punishment

Corporal and capital punishments used heavily (as most pre-modern societies did before they could afford prolonged imprisonment of serious criminals) should keep any genetic tendencies that predispose people to criminal conduct out of the gene pool.

Islamic Societies Are Not A Eugenic Success Story.

Now, in practice, Islamic societies in which all four of these practices are present are not what a naive eugenically minded individual would expect or would have sought from many dozens of generations of applying these polices.

Men in these societies are not measurably less predisposed to engage in criminal activities. The members of these societies are not academic standouts relative to societies that do not adhere to these practices, nor are they standouts with respect to other traits with a significant hereditary component, like conscientiousness or extraversion that are associated with socio-economic success.

How Can We Determine Specific Reasons Why?

The thought experiment and tricky empirical question is to try to tease out what effects these practices have had independently, because inbreeding depression effects may have been so strong that they mask beneficial implications of the other practices that are actually mitigating the downsides of cousin marriage.

For example, both England and the Islamic world have a history of heavy capital punishment use. Is there any evidence that this had a positive long run effect? In part, this is a function of the extent to which genetic predisposition to serious crime is a strong cause of crime. If it is, one would naively expect widespread capital punishment use, if not too inaccurate, to have a positive eugenic effect. But, if non-hereditary factors predominant, capital punishment shouldn't have much of an impact.

In the test case of Mormons, who briefly had high rates of polygamy, but little inbreeding, the social historical and economic historical literature suggests that children of polygamous families had poor outcomes relative to the smaller families of monogamous families, because fewer resources (both in terms of economic resources and less tangible resources like paternal attention) were available per child in polygamous families, and these deficits may have outweighed any eugenic advantage that polygamy could have conferred.

The Case For Humility In Policy Making

This post doesn't seek to provide final answers to the questions these thought experiments ask. Instead, it merely serves as a cautionary reminder that a eugenic proposal, even one that is well meant and seems sound with available knowledge that has solid empirical and theoretical foundations, can fail badly if the analysis overlooks something important in even on of many components of the plan. Hence, policy makers in this arena should show humility.

Political Heresy

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