Bad Karma (Chameleon?)

Boy George jailed for 15 months.

He's no longer, one might say, a man without conviction.

On Looking Forward

Dahlia Lithwick doesn't seem to have much patience for the argument that we should look forward as the Bush Administration is replaced by Obama's:

Those who say that there should be no investigation or prosecution of senior officials who authorized torture and warrant-less surveillance rarely even bother offering legal justifications. They argue that the Obama administration has more urgent problems to contend with. They insist that any such process would devolve into partisan backbiting from which this country could never recover. And they insist, as did Attorney General Michael Mukasey in early December, that there is no basis on which to prosecute the architects of torture and wiretapping policies because each was acting to “protect the security in the country and in the belief that he or she was doing something lawful.”

I personally wouldn't say "there should be no investigation or prosecution of senior officials who authorized torture and warrant-less surveillance"; I would say "If Justice Department officials are aware of crimes, they can consider whether or not to prosecute them". (And here I mean "consider" in the sense that any prosecutor evaluates a case, and choose to prosecute some while passing over others.) I take issue with bringing out the muckrakes and trying to dredge new indictable offenses out of the Bush Administration's... I suppose there's no real need to continue that metaphor; you get the point. There's lots of muck to rake, but there's a real cost and risk in choosing that path.

Of all of the reasons not to prosecute that Lithwick attributes to opponents of (large-scale investigation and) prosecution, the only one I agree with is this: "the Obama administration has more urgent problems to contend with". Sure, the cost of any distraction that resulted from a full-scale investigation of "the crimes of the Bush Administration" would have to be weighed against the benefits of finding and prosecuting crime. Would the benefits, either in the long- or short-term, outweigh the costs? Lithwick apparently believes they will; I suspect otherwise. Lithwick implies that the decision should be made on legal grounds, not practical or political grounds, but even if that's technically possible the nation will nonetheless interpret the choice to prosecute through a political filter.

Others — including unnamed officials on the Obama transition team — have already claimed that there is simply no political will for criminal prosecutions, or even a truth commission.

Is that untrue? I personally haven't sensed a strong public sentiment toward either an independent counsel or a truth commission. If Lithwick is seeing a strong grassroots movement, or is aware of opinion polling suggesting otherwise, I would welcome more information.

We are telling ourselves that bad people did bad things under bad circumstances, but that it’s better to forgive and forget, that we are really truly sorry and it won’t happen again. We sound like a nation of drunks after a bender. We are full of good intentions, but unwilling to hold ourselves to account.

Actually, I have very little sense that a large number of people on either side hold that mindset. I sense that there are people, including myself, who are very worried that the Bush Administration's bad policies will happen again, and that some will be carried forward into the Obama Administration. I've even heard some Bush critics cynically suggest that Obama doesn't want to take action because he doesn't want to tie his own hands. On the other side, there are partisans who would not admit (and perhaps can't contemplate) that any act contemplated by the Bush Administration was wrong, or that any action nominally taken "in the interest of national security" should ever be second-guessed. The number who argue, "We meant well but we were wrong, so let's let bygones be bygones?" They're probably out there, somewhere; I'm just not running across them.

Lithwick argues,

Nobody is looking for a series of public floggings. The blueprints for government accountability look nothing like witch hunts. They look like legal processes that have served us for centuries.

and

Some commentators have suggested that any such truth commission should promise immunity or a pardon in exchange for truthful testimony, but I believe that if it becomes clear that laws were broken, or that war crimes were committed, a special prosecutor should be appointed to investigate further.

Although Lithwick correctly states, "It’s not a witch hunt simply because political actors are under investigation", I disagree with her suggestion that nobody wants the witch hunt / public flogging of former members of the Bush Administration. I believe that some people very much want that, and that they will overshadow the motives of those who want an investigation focused upon determining facts and preventing the recurrence of bad acts. Frankly, as long as you leave the threat of special prosecutors and indictment hanging over the witnesses, all you're going to get at your hearings is a long succession of people who either refuse to testify or, after being subpoenaed, recite, "On advice of counsel, I hereby respectfully exercise my Fifth Amendment privilege against self-incrimination...."

If our world were more ideal, Lithwick's view would prevail - and an efficient, entirely non-political investigation would quickly reveal important truths, help ensure that crimes were punished, help prevent similar crimes in the future, etc. Nobody would have to worry that the prosecution would be perceived as politically motivated, because that would be unthinkable. (But in a world that ideal, we wouldn't be in this position in the first place, would we?) I hate to drag practical concerns and politics into this, but in our often dystopian world and under our imperfect political system that's an unfortunate necessity.

Didn't Ken Starr initially have a very high approval rating, and broad popular support for his Whitewater investigation, before it went metastatic in its "leave no stone unturned" quest to get Clinton? "Oh no", his defenders protest, "he only investigated possible criminal acts he found during his other investigations". "Even if Starr ran amok, this time will be different", proponents of a sweeping investigation of the Bush Administration contend. Yeah, right.

Obama's Correct To Look Forward

Without wishing to minimize the bad acts committed by members of the Bush Administration, the need to prevent recurrence, or even the instinct to seek a bit of revenge for the Clinton impeachment, I just can't get on board with this mindset:

Worst of all, Obama (in response to Stephanopoulos' asking him about the number one highest-voted question on Change.gov, first submitted by Bob Fertik) all but said that he does not want to pursue prosecutions for high-level lawbreakers in the Bush administration, twice repeating the standard Beltway mantra that "we need to look forward as opposed to looking backwards" and "my instinct is for us to focus on how do we make sure that moving forward we are doing the right thing." Obama didn't categorically rule out prosecutions -- he paid passing lip service to the pretty idea that "nobody is above the law," implied Eric Holder would have some role in making these decisions, and said "we're going to be looking at past practices" -- but he clearly intended to convey his emphatic view that he opposes "past-looking" investigations. In the U.S., high political officials aren't investigated, let alone held accountable, for lawbreaking, and that is rather clearly something Obama has no intention of changing

Now I'll grant that there are circumstances when we should look backwards and criminally prosecute bad actors from an outgoing administration, and I'll concede that it's difficult to articulate the circumstances under which that is or is not appropriate, but here's one small measure: If the sins aren't sufficient to trigger impeachment by a Congress controlled by the opposition party, that alone raises a serious question not only about whether they are so serious as to trigger criminal investigation and prosecution, but also whether the opposition party shares culpability for having failed to act sooner.

An after-the-fact appointment of a special counsel, whose job is essentially to dig for criminal acts and prosecute those who committed crimes, not only can be easily spun as "revenge for the Clinton impeachment", but sets a precedent that could haunt any outgoing administration, no matter how squeaky clean. Didn't Ken Starr teach us, no matter where you start out, if you keep expanding the scope of your investigation you will eventually find some opportunity to accuse somebody (rightly or wrongly) of crimes, coerce witnesses, set perjury traps... create a great deal of pain and disruption for the nation and its governance and, at the end of the day, quite possibly accomplish nothing meaningful?

Another problem is that when you create a sideshow of the type proposed, it can take everybody's energy and attention away from the very real issues we must address, while looking forward. Thanks in no small part to Bush, this nation has a lot of very serious problems that need to be quickly addressed. The investigation and prosecution of a host of officials of the outgoing administration has the potential not only to interfere with the new administration's focus, it could polarize the nation, and make the Dems seem as small, petty, obsessed, biased and vindictive as Ken Starr looked to them when he finally released his report.

If Justice Department officials are aware of crimes, they can consider whether or not to prosecute them. There are issues that the new Congress should investigate, and it's possible that crimes will be uncovered there as well. We don't need to look away from the past. But despite the temptation and opportunity, and a mile of muck to dig through, I don't think it's necessary or wise to start appointing special prosecutors to ferret out people and acts to prosecute. Even if it doesn't end up looking as counter-productive as Ken Starr's investigation run amok.

Bush Didn't Make Any Mistakes, But Obama Should Learn From Them

As part of his continuing series of columns in which he demonstrates his eagerness to be invited to Bush's new Dallas home for supper, Michael Gerson shares more thoughts on the incoming Obama Administration.

Part of the appearance of security is rooted in seven years without additional terrorist attacks in America - itself a triumph against violence. It is difficult for a leader to take credit for a negative achievement - for the absence of failure. But here credit is due.

Apparently we're talking about international terrorism, in which case the seven years Gerson sees as warranting credit to Bush represent almost as much time as the eight year period between the first and second attacks on the World Trade Center. Gerson's correct that the passage of seven years doesn't justify complacency, but so far Bush's track record isn't better than Clinton's. If a terrorist attack were to occur in 2009, is Gerson more likely to pen a column describing the failure of Bush's policies, or to accuse Obama of taking his eye off the ball? As if Obama had warnings from the outgoing administration about the threat of al-Qaeda, and a memo on his desk declaring that they intended to attack within the United States, but focused on other priorities?

But there's another way to look at this: After supposedly ramping up to deal with large-scale terrorist attacks, the consequence of which could mirror the effects of a natural disaster, how did the Bush Administration perform? If anything should move us away from complacency, it's that track record.

Gerson sees the Congressionally approved tools used to combat terrorism as non-controversial, but finds room to learn from Bush's excesses:

Yet some methods designed for exceptional cases, such as waterboarding, were ethically disturbing and eventually counterproductive - causing self-inflicted ideological wounds in a largely ideological struggle.

I had almost forgotten that torturing people is "ethically disturbing". It's good to have a "compassionate Christian" around to remind us of that.

And there is little doubt that some administration claims of executive power invited a judicial backlash and undermined the power of future presidents.

Others might argue that the level of judicial deference to Bush is more problematic than the few cases that went against him. Gerson's right that future Presidents will have to remember that their office has limits, and those limits will at times be enforced by the courts. But he's confused about the source of those limits, as they in fact arise from a document the President is sworn to uphold, the Constitution. Gerson continues to explain the consequence of Bush's extra-constitutional actions:

If the administration had sought congressional backing for military commissions in 2001, and later for rules to hold combatants, the resulting legal framework would probably have been upheld by the courts - and would probably have been closer to administration goals than the eventual result.

So had Bush respected the Constitution and separation of powers, and acted accordingly, there would have been less litigation and the outcome would have been closer to what he wanted? That's the consequence Gerson sees from a "judicial backlash [that] undermined the power of future presidents"? The horror!

Gerson is apparently concerned that "enhanced" forms of interrogation won't be available to the CIA:

Or should the CIA be allowed to employ still-classified "enhanced" techniques short of torture? During his campaign, Obama promised the universal application of the Defense Department approach - but that is easier for a candidate than a president to pledge.

Sure, and Obama will have access to classified information that will help him make that assessment. But if we look at the interrogation techniques that worked in finding and killing Abu Musab al-Zarqawi, not only was torture unnecessary, by all appearances it would have been counter-productive. If one is needed, the fact that the result of the investigation was a bombing run intended to kill al-Zarqawi is a reminder that warfare carries a very different set of ethical balances than peace. But it's one thing when you are forced to make tough decisions that challenge your values due to the realities of war, and quite another to repeatedly make ethical concessions out of loyalty to a particular politician or administration without examining the reasoning behind those policies or considering their efficacy.

The hardest issues concern detained terrorists. Guantanamo will and should be closed as a public diplomacy nightmare. Perhaps half of the detainees will be sent home, leaving about 100 exceptionally dangerous men.

Well, so far that doesn't sound very hard. Why, though, do we still have 250 detainees at Guantanamo if it's so easy to sort out the "really bad ones" from the rest, and to send the others home?

The Obama administration will need to decide on a format for trials - much improved but politically discredited military commissions, ordinary civilian courts or some kind of national security courts created by Congress and supervised by the federal judiciary.

But the administration will not be able to try everyone. Some detainees will be too dangerous to release but too difficult to convict in a normal court setting using unclassified evidence. And any president will need the ability to hold and question newly captured terrorists outside the procedures designed for American criminals.

The reality is that you're unlikely to find any of that 100 who cannot be convicted and sentenced to life in prison based upon less sensational charges that don't require public disclosure of classified evidence or investigative technique. Remember John Walker Lindh, who if convicted at trial could have received up to three life sentences plus an additional 90 years in prison? There are many charges that can be brought against those defendants that will prevent them from ever again stepping outside the walls of a federal prison.

But let's assume for a moment that there are a few whose trials would somehow require public disclosure of material that would undermine our continuing efforts to fight wars and combat terrorism. That no number of court orders or protective measures could allow a fair trial without disclosure of that information. What would Gerson suggest then?

Unless Obama returns to a simple exertion of executive authority, he will require congressional authorization to detain people.

So Gerson is suggesting that Obama can spare himself a lot of headaches and better protect the nation by eschewing Bush's unilateralism in favor of constitutional process?

And this will expose a major tension between the new president's military responsibilities and the views of supporters who believe that detainees should be held only in preparation for trial.

Assuming, in fact, it's necessary for Obama to request extraordinary power in relation to some of the detainees. But you know what? There aren't many Obama supporters who actually fit the description Gerson provides - there may not even be any. The vast majority of Obama's supporters have always acknowledged the reality of the situation. Extending habeas corpus rights to detainees held in U.S. prisons is not the same thing as saying "detainees should be held only in preparation for trial" - it relates to whether or not detention is justified. It's a check on abuses and the potential for abuses. You shouldn't have to be much of a student of history to understand why the Founding Fathers were sufficiently concerned about that potential that they inserted habeas corpus rights into the body of the Constitution.

The Lori Drew Case and Prosecutorial Grandstanding

Reactions to the Lori Drew verdict seem to come primarily in two forms:

• Lori Drew is such a horrible person that even if the law is bent to the point of breaking, or even if it sets a really bad precedent, the verdict should stand so that she is punished for her bad acts (see, e.g., news articles that cover the actual charges, yet still describe this as a "cyber-bullying case"); or

• It's really bad public policy and a distortion of the law (18 USC § 1030) to criminalize the violation of a website's terms of service, even if you really want to punish the person who committed the violation. (i.e., "Bad facts make bad law.")

There's another side to this: If the verdict does not stand, and there's a good chance that it will not, the shameless grandstanding by U.S. Attorney Thomas P. O'Brien will have expanded the injustice. It will have given Megan Meier's family the false sense that Lori Drew would go to prison for crimes that should never have been charged. Oh, probably O'Brien will harrumph about how he was right, about how Drew is evil incarnate, and how either the trial court or appellate court has unreasonably second-guessed the good men and women of the jury. Such a reaction would be consistent with what this prosecution is about - the furtherance of Mr. O'Brien's personal and political goals.

Seriously.

Had Mr. O'Brien gone to MySpace and said, "I want to set an example for the nation by prosecuting somebody for violating your terms of service", what are the odds they would have picked this case? If they wished to go after people who create accounts to harass or annoy other users, there are people they can document as having created scores of fake accounts for that purpose. If they wished to go after the misconduct that most affects their bottom line, they would have directed Mr. O'Brien to professional spammers who create hundreds or thousands of fake MySpace accounts to spam MySpace users. You want evidence of MySpace's priorities? If you look at where MySpace expends its own money, it's in the pursuit of spammers.

Further, if MySpace were to go to Mr. O'Brien with it's latest stack of TOS violators - no doubt many thousands per day - and ask Mr. O'Brien to prosecute them, he would reject their proposal as ridiculously burdensome. Prior to seeing the opportunity to grandstand in the Lori Drew case, he most likely would have told them to pursue the violations by terminating accounts, or through the civil courts. Realistically, MySpace wouldn't have even asked.

Right now, Megan Meier's family would have the right to feel underserved by the legal system. Her local prosecutor didn't find that any crime was committed, and Missouri's federal prosecutor passed on the case. Mr. O'Brien was able to produce convictions only on a number of misdemeanors. Meier's mother is, predictably, calling for the maximum sentence, apparently out of recognition that this case is really about what happened to her daughter and not what was prosecuted - an offense against MySpace. Assuming that the sentencing occurs, and that the trial judge is not as interested in self-aggrandizement and grandstanding as Mr. O'Brien, her first disappointment will be that Ms. Drew's sentence is far more lenient. A bigger disappointment is probably forthcoming - If the trial court or appellate courts do their job, it is likely that Ms. Drew will end up having her convictions reversed.

Assuming the verdict is upheld, what's the lesson? That we'll see selective prosecution based upon the outcome to a third party, without regard to the magnitude of harm to the ostensible victim (the online service)? That we're going to be held to an absolute standard of knowing the current terms of service of every Internet service we use (hours of reading per day for an active Internet users), at risk of criminal prosecution if we violate those terms? Are we supposed to be reassured that, although far more egregious violations of the statute occur every minute of every day, that a federal prosecutor is not likely to act unless he gets an opportunity for self-aggrandizement? And the only cost is that an occasional, possibly unpleasant person will be dragged across the country for a show trial, at considerable public and private expense, principally for the benefit of that prosecutor? How... comforting.

Conrad Black's Lament

You know, for many years Conrad Black and his wife were positioned to do a lot to bring attention to the flaws in the criminal justice system, the manner in which the cards are stacked against a defendant, the dismal state of prisons and the limited chance that they'll inspire an inmate to reform.... And if they were now addressing the problems from an insider's perspective - an inmate and his wife, waiting on the outside - their words might still have some resonance. But their words are lost in a sea of self-pity.

Here's Conrad Black - "From my cell I scent the reeking soul of US justice ". Oh, smell that smell. No really, it sounds like he's in a rather nice prison:

Many of the other co-residents are quite interesting and affable, often in a Damon Runyon way, and the regime is not uncivilised. In eight months here there has not been the slightest unpleasantness with anyone. It is a little like going back to boarding school, which I somewhat enjoyed nearly 50 years ago (before being expelled for insubordination) and is a sharp change of pace after 16 years as chairman of The Daily Telegraph.

Black complains,

US federal prosecutors, almost all of whom would be disbarred for their antics if they were in Britain or Canada, win more than 90% of their cases thanks to the withering of the constitutional guarantees of due process – that is, the grand jury as an assurance against capricious prosecution, no seizure of property without just compensation, access to counsel, an impartial jury, speedy justice and reasonable bail.

He seems to have crossed his constitutional protections - the Fourth Amendment protection against unreasonable search and seizure with the Fifth Amendment's prohibition on taking private property for public use without just compensation. But he gets at some of the complaints against the system, particularly the manner in which the grand jury has been transformed from what was intended to be a safeguard against prosecutorial abuse, into what often amounts to an investigative arm of the prosecutor's office, to the point that Judge Wachtler's observation that a Grand Jury can be easily persuaded to "indict a ham sandwich" is met not with surprise, but with a shrug.

The problem with Conrad Black's laments is that they turn from broad statement to personal lament. Does he share the experiences of other inmates or their families? People far less fortunate than him, with far fewer resources to throw into their defense? No, and from his tone he probably hasn't even taken the time to ask. It's not even apparent that he regards his broad statements against the justice system as being particularly true or salient, except in relation to his own case and his own circumstances. It's all about him.

The US is now a carceral state that imprisons eight to 12 times more people (2.5m) per capita than the UK, Canada, Australia, France, Germany or Japan. US justice has become a command economy based on the avarice of private prison companies, a gigantic prison service industry and politically influential correctional officers’ unions that agitate for an unlimited increase in the number of prosecutions and the length of sentences. The entire “war on drugs”, by contrast, is a classic illustration of supply-side economics: a trillion taxpayers’ dollars squandered and 1m small fry imprisoned at a cost of $50 billion a year; as supply of and demand for illegal drugs have increased, prices have fallen and product quality has improved.

Black rattles off these complaints and statistics without relating them to his own case. It wouldn't necessarily be that hard to do - a weakening of civil liberties and protections offered to criminal defendants in the name of looking "tough on crime" or fighting the unwinnable "war on drugs", but alas, Black isn't offering this out of concern for its having been the wrong path to take. Was there any time during his career, when he could have directed scores of investigative reporters to delve into the flaws of the criminal justice system or hired editorial columnists who would have directed scorn and scrutiny at its flaws and excesses, that he had anything to say about these issues? The argument's still about him; he's tossing in the kitchen sink.

A few months back, I read a similar column by Barbara Amiel, Conrad Black's wife. I created a draft blog post, but let it go unpublished.

Writing about Conrad Black's prison sentence, his wife Barbara Amiel has is concerned about the little people:

So what, you ask. What does it matter if one well-off, elderly white woman with too many pairs of expensive shoes now finds her social life largely limited to visiting her dearly missed husband in a US federal correctional institution? Should be interesting material for her as a writer.

But if the rich and well-connected cannot get justice, what chance for anyone else — a question I asked in columns about the law long before I married Conrad. What chance for the orange jump-suited, marginalised young men I saw shuffling in front of the judge in Chicago, silent while their court-appointed attorneys negotiated their freedom away in that tight little legal world, where a client’s fate never disturbs the bonhomie between lawyers.

I would love to see one of those columns... anybody have a piece of yellow, crumbling newsprint where Amiel set aside her typically right-wing views to fret about the quality of criminal defense services?

If ostensibly privileged defendants like us can be baselessly smeared, wrongfully deprived, falsely accused, shamelessly persecuted, innocently convicted and grotesquely punished, it doesn’t take much to figure out what happens to the vulnerable and the powerless: they land, finally, in the 8:45am courtroom parade that takes place all over “America the Free” — the country that “wins” 90% of cases and imprisons more people than any other in the world.

Ostensibly.... That would mean "seemingly" or "apparently". There's no "ostensibly" about it - people with hundreds of millions or billions of dollars in wealth are privileged. And Amiel's over-the-top comparisons only serve to highlight how she elevates her own situation over that of the jump-suited little people:

In any event, were I a clothes-crazy predator and were my husband the arrogant and pompous caricature of the books and films depicting him, what then? ... If Dreyfus had been a loud and vulgar Jew instead of an officer and a gentleman, would his case have been any the less important or his persecution less unjust?

I'm sorry - she just compared Conrad Black's conviction to the Dreyfus Affair? No, wait....

Conrad had no idea, and one could not convince him, that he was in Salem, in the middle of an American witch-hunt. There is no defence against false accusations in Salem.

He's a witch being burned at the stake after a trial by ordeal!

I'm not sure that responding to this level of self-pity and self-righteousness serves to advance any cause, and it seems to me that if anything, it's probably counterproductive to Black's cause. Black now makes it clear that he and his wife are on the same page.

Provocation as a Defense to Murder

Apparently, in the U.K. it's becoming more difficult to raise infidelity as a basis to diminish a murder charge.

This reminds me of a story from law school... that might put you to sleep if I shared enough information for you to understand it. But it was funny if you were there.

Thought Police Unite!

No surprise here:

A United Nations agency is quietly drafting technical standards, proposed by the Chinese government, to define methods of tracing the original source of Internet communications and potentially curbing the ability of users to remain anonymous.

But who's teaming up with China?

The U.S. National Security Agency is also participating in the "IP Traceback" drafting group, named Q6/17, which is meeting next week in Geneva to work on the traceback proposal. Members of Q6/17 have declined to release key documents, and meetings are closed to the public.

Don't get me wrong, as there are legitimate national security interests involved in being able to track Internet activity back to its source, not just communication between criminals, but also attacks on computer systems and networks. But does anybody here think that China's primary focus is on fighting terrorism or DDOS attacks, as opposed to dissident thought? And who believes that even U.S. law enforcement will use this for "fighting terror" - the excuse used to get the camel's nose under the tent for an wide range of law enforcement tools since used primarily to target "ordinary" crime. Also, just as stolen or disposable cell phones are used by criminals who expect to be targeted through those technologies, criminals who wish to use the Internet will find ways to continue.

I don't personally try to erase my Internet tracks, so nobody would have to work very hard to track me down from my activity. Anonymous proxies are a bane to my Internet activities, as they contribute significantly to spamming. But regrettably I don't expect either Chinese or U.S. legal authorities to focus their energy on that particular form of Internet abuse. But people who have legitimate reasons to try to shield their identity - dissident thinkers - can thank the NSA for teaming up with China to help ensure that the Internet is not a safe place for freedom of thought.

Statistics

According to Jeffrey Sedgwick, Director of the Bureau of Justice Statistics,

In 2006, the most recent year for which complete data are available, police received the fewest reports of violent crime and property crime since 1977. What was the cause? Research has shown that, with some exceptions, crime rates decline as the incarceration rate rises. In other words, while the number of people under correctional supervision has gone up, crime has gone down.

So there you go. Correlation = causation.

Fake MySpace Profiles

In terms of "fraud", among the fake profiles on sites like MySpace, the Lori Drew case is about as weak a case as a federal prosecutor could pick. The case was picked due to the outcome, not due to the facts or magnitude of the alleged misconduct. I've seen far worse conduct - networks of fake profiles set up to spam other users (this is no secret: you can buy software to automatically create those profiles and networks), fake profiles meant to defame specific individuals, etc.

While it appears to take action against violations that come to its attention, I see little evidence that MySpace wants to eliminate all fake and dodgy profiles on its service. I suspect that's because that would likely result in a substantial dip in both its claimed number of users and traffic statistics, and it wants to maintain its diminishing statistical lead over its competitors.

Heinous Crimes

The Washington Post, in an unsigned editorial, argues,

There is no crime more heinous than the rape of a child. But does the Constitution allow states to impose the death penalty for such a crime when the child's life has not been taken?

Well, if we accept the first premise, the obvious answer is "yes". But homicide is pretty horrific (and that's without getting into, say, mass murder or genocide), so perhaps we shouldn't start playing a game of "My 'heinous' is bigger than yours." The Post recites,

[A coalition of social workers and interest groups that work on behalf of victims of sexual abuse] argues convincingly that the already gross underreporting of child sexual abuse might only be exacerbated if the death penalty were imposed in such cases. In most such cases, the perpetrators are family members or acquaintances; children might be even more frightened to report a crime if they thought they'd be responsible for the death of someone they knew or even loved. Even if the child was brave enough to come forward, a family member with ties to the offender could prevent disclosure to law enforcement authorities.

Here's something else that probably should have occurred to them: if the penalty is the same whether you leave your victim alive or dead, some will choose the latter. The "Lindbergh laws" imposing long sentences or even the death penalty for kidnapping are often described as having reduced the chances of recovering a kidnapping victim alive.

Selective Prosecution

Detroit Mayor Kwame Kilpatrick is whining that the criminal charges against him represent selective prosecution, as the Detroit Prosecutor has no history of charging people with perjury for lying in civil cases.

Maybe so... but civil defendants' lies and cover-ups don't typically involve convincing the city to settle lawsuits against them for $9 million, hoping to cover up the text messages that prove the perjury as (an undisclosed) part of the settlement.

Even before he was charged, some were making comparisons that, although unflattering to Kilpatrick, are well-deserved. Such as At least Spitzer took it like a man after he got caught.