Politics

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The Supremes and Gay Marriage

There were wonderful thing said by some of the Justices today, but I want to concentrate on the cartoons.  Here are three from the Washington Post.

First Pat Oliphant.

Oliphant 3-26-2013

I love the duck in the corner reminding everyone that this is the same court that gave us corporations as people.

Moving on to Tom Toles.

Toles 3-26-2013

And finally Nick Anderson.

Anderson 3-26-2013

Do we have to say more?

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Infrastructure, infrastructure, infrastructure

One  of my favorite promotional advertisements is an old one.  Rachel Maddow is standing in front of a pile of dirt which could be the beginning of a new highway or of a dam or a bridge abutment.  She points out that the country needs infrastructure and that the private sector does not build it.  And then Elizabeth Warren famously said (quote from Michael Smerconsish on the Huffington Post.)

“There is nobody in this country who got rich on his own. Nobody.” And then she hit her stride:

“You built a factory out there? Good for you,” she says. “But I want to be clear: You moved your goods to market on the roads the rest of us paid for; you hired workers the rest of us paid to educate; you were safe in your factory because of police forces and fire forces that the rest of us paid for. You didn’t have to worry that marauding bands would come and seize everything at your factory, and hire someone to protect against this, because of the work the rest of us did.”

As for the tax implications, Warren said, “Now look, you built a factory and it turned into something terrific, or a great idea? God bless. Keep a big hunk of it. But part of the underlying social contract is, you take a hunk of that and pay forward for the next kid who comes along.” The crowd enthusiastically applauded.

Of course that morphed into the out of context quote used against President Obama:  “You didn’t build it.”

What puzzles me is why the Republicans are so afraid of spending for infrastructure.  And why their fear is making so many Democrats cautious.  Juliette Kayyem tries in her column in today’s Boston Globe to make the link between national security, which every politician is for, and infrastructure.

The United States now concedes that the security of nations is “being affected by weather conditions outside of historical norms, including more frequent and extreme floods, droughts, wildfires, tornadoes, coastal high water, and heat waves.” These have had an impact on food supplies and demographic trends. The global population is expected to hit 8.3 billion by 2030. About 60 percent (up from the current 50 percent) of people will live in cities, putting greater pressure on agriculture, energy, transportation, and water supplies.

We are not alone in our concerns. The American Security Project, a bipartisan think tank, analyzed military assessments worldwide. From China to Rwanda, Belarus to Brazil, over 70 percent of nations view climate change as a top threat to their national security.

The United States now concedes that the security of nations is “being affected by weather conditions outside of historical norms, including more frequent and extreme floods, droughts, wildfires, tornadoes, coastal high water, and heat waves.” These have had an impact on food supplies and demographic trends. The global population is expected to hit 8.3 billion by 2030. About 60 percent (up from the current 50 percent) of people will live in cities, putting greater pressure on agriculture, energy, transportation, and water supplies.

We are not alone in our concerns. The American Security Project, a bipartisan think tank, analyzed military assessments worldwide. From China to Rwanda, Belarus to Brazil, over 70 percent of nations view climate change as a top threat to their national security.

Protecting against it isn’t just a matter of preserving natural resources; it is about adapting everyday activities to the threat. We are in competition with other nations in this regard: Global investments are linked to cities that can function in bad weather, airports that can lure commerce, ports that can deliver goods. When storms are powerful enough to wipe out electrical grids, our nation’s ability to project power is limited by our powerlessness.

She goes on to say that much of the infrastructure fight is a local one.

And we still must become a more resilient society, one whose basic building blocks cannot be knocked out by threats that are utterly predictable. This effort to construct a society with climate challenges in mind isn’t necessarily new, but it comes at a time when the limits of America’s infrastructure are abundantly clear and entirely visible: We all feel them as we drive to work, head to school, or use the subways.

Local governments are already invested in these national security efforts, whether they know it or not. Such efforts range from a mayor’s desire to fix potholes on residential streets to a governor’s promise to modernize public transportation. More than a lack of commitment or resources, it’s actually our hodge-podge of governance structures — New York City has control over its building codes, while Boston’s are often at the mercy of state approval — that too often become impediments to local ingenuity in preparing for oncoming storms.

At the same time as our intelligence agencies were reminding us that the climate poses as much of a threat as Iran or North Korea, the American Society of Civil Engineers last week gave American infrastructure a pathetic “D+” grade (up from a D!). Delayed maintenance investments and the failure to commit to modernization projects undermine economic progress, global competitiveness, and the sense that we live in a well-functioning society.

Boston Public Works Department employees Aroll Victor and Julio Echemendia clear rocks from a pothole in South Boston on March 12.

Boston Public Works Department employees Aroll Victor and Julio Echemendia clear rocks from a pothole in South Boston on March 12.

So back to my question:  Why are Republicans (and many Democrats) so unwilling to invest in infrastructure?  Until we figure this out, our bridges will crumble, our power grids are subject to blackouts, and many people will be like us and spend thousands on front end work due to driving on crumbling highways.  Wouldn’t the money I am going to spend this spring on my car be better spent paying taxes that will fix the roads and put some people back to work?    Just asking.

Photograph City of Boston
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Law and Order: Life imitates art – or is the other way around?

I am a major fan of  Law and Order.  The original not any of the spin offs.  I still like to catch a re-run now and then and particularly like the older ones.  Last week a story in the New York Times about Robert M. Morgenthau the retired DA from Manhattan reminded me of the show.  Morgenthau is the model for the original DA, Adam Schiff, from the TV show. Morgenthau retired about three years ago at 90.  He had been DA for 35 years.

Morgenthau is still practicing law.

Mr. Morgenthau, 93, and two other prominent former prosecutors are asking the United States Supreme Court to take up the case of William Ernest Kuenzel, who has been on death row in Alabama for 24 years.

Based on the testimony of two witnesses, Mr. Kuenzel was convicted in 1988 of murdering a convenience store clerk. Records that became available only in 2010 revealed that those two witnesses — one of whom admitted that he himself was involved in the murder — actually did not implicate Mr. Kuenzel when they first spoke with the authorities. In fact, they originally gave entirely different accounts from what they testified to at trial, but the defense lawyer was unaware that their stories had changed. So were the jurors.

Mr. Morgenthau learned about the case from Jeffrey Glen, a law partner of his late son-in-law. Their firm, Anderson Kill & Olick, was working on the appeal, along with David Kochman. To Mr. Morgenthau’s disbelief, the case was rejected by federal courts in Alabama, which ruled that the new evidence did not “refute the possibility that the defendant committed the crime.”

“It’s so wrong to say there’s presumption of guilt because he was convicted once — without the newly discovered evidence,” Mr. Morgenthau said. “I just thought that was off the wall.”

So Mr. Morgenthau contacted 2 other former DA’s and they have filed a friend of the court brief for the Supreme Court asking them to take the case on appeal.

He contacted Gil Garcetti, who served 32 years in the Los Angeles district attorney’s office, and E. Michael McCann, who was the district attorney of Milwaukee for 38 years, and they agreed to join him in a friend-of-the-court brief.

The opening lines explained why their views were worth hearing: They wrote “from the unique perspective of having overseen and been ultimately responsible for more than 7,000,000 criminal prosecutions.”

The concept of new evidence was what led to the reversal of the conviction of five teenaged boys for the attempted murder of  a Central Park jogger.  In 2009 Carlin DeGuerin Miller wrote for a CBS blog

But his tenure hasn’t been without its share of detractors and controversies,
one of the biggest being the wrongful convictions in the 1989 Central Park
Jogger case. In 2002, DNA evidence surfaced that incriminated someone else in
the rape and Morgenthau himself appeared in court to agree with the defense
request to dismiss the charges.

A good prosecutor knows when to cut his losses.  According to the Times, Morgenthau said

“That was a matter of newly discovered evidence,” he said. “I had to act. This case reminded me of that.”

Law and Order lives on in re-runs and Robert Morgenthau is still fighting the good fight for real.

Robert M. Morgenthau is asking the United States Supreme Court to take on the case of a man who has been on death row in Alabama for 24 years.

Robert M. Morgenthau is asking the United States Supreme Court to take on the case of a man who has been on death row in Alabama for 24 years.

Photograph Hiroko Masuike/The New York Times

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Impasse?! We should look at the Progressive Caucus Budget

President Obama met with the Republicans in the House yesterday.  I think Politico had the best take on the meeting.

After years of pining for more face time with the president, House Republicans  found out Wednesday that Barack Obama looks and sounds the same behind closed  doors as he does on TV.

President Obama meets with Congress. AP Photograph

President Obama meets with Congress. AP Photograph

I think they are finally learning what many of us have known for a while:  what you see is what you get with Barack Obama.  Michelle has been trying to tell everyone this for years.  So he has his line and the Republicans led by Paul Ryan have theirs.  But where does that leave the rest of  us?  How to deal in a meaningful way with the sequester and the budget?  I see two paths:  One, those affected by the cuts start putting on the pressure and two, we begin looking at alternatives to either the Republican or White House budget proposals.

On the first, the lobbying has begun.  The New York Times reports

Construction companies are lobbying the government to spare their projects from across-the-board cuts. Drug companies are pleading with the White House to use all the fees they pay to speed the approval of new medicines.

And supporters of Israel have begun a campaign to make sure the Jewish state receives the full amount of military assistance promised by the United States.

A frenzy of lobbying has been touched off by President Obama’s order to slice spending this year by $85 billion, divided equally between military and civilian programs. The cuts have created new alliances and strange bedfellows.

Hunter R. Rawlings III, a historian of ancient Greece who is the president of the Association of American Universities, joined Wesley G. Bush, the chief executive of Northrop Grumman, the maker of surveillance drones and B-2 bombers, in a news conference in which they denounced the automatic cuts known as sequestration.

Health care and education groups, advocates for poor people, and state and local officials who fought in the past for bigger budgets are now trying to minimize the pain.

How much money do you think will be spent on lobbying?  I don’t even want to begin to add it up.  What a waste of money.  But I guess some people will still have jobs.

For an alternate budget we can look at the Congressional Progressive Caucus budget proposal.    The Economic Policy Institute assisted in putting the budget together and scoring it.  Dean Baker from the Center for Economic and Policy Research calls it “A Serious Budget That the Serious People Won’t Take Seriously”.  The Progressive Caucus has been proposing budgets for a number of years now and takes the position that if their proposals had been adopted, we wouldn’t be in the mess we are in now.

So what exactly are they proposing?

Direct hire programs that create a School Improvement Corps, a Park Improvement Corps, and a Student Jobs Corps, among others.

Targeted tax incentives that spur clean energy, manufacturing, and cutting-edge technological investments in the private sector.

Widespread domestic investments including an infrastructure bank, a $556 billion surface transportation bill, and approximately $2.1 trillion in widespread domestic investment.

Ends tax cuts for the top 2% of Americans on schedule at year’s end

Extends tax relief for middle class households and the vast majority of Americans

Creates new tax brackets for millionaires and billionaires

Eliminates the tax code’s preferential treatment of capital gains and dividends

Abolishes corporate welfare for oil, gas, and coal companies

Eliminates loopholes that allow businesses to dodge their true tax liability

Calls for the adoption of the “Buffett Rule”

Creates a publicly funded federal election system that gets corporate money out of politics for good.

Provides a Making Work Pay tax credit for families struggling with high gas and food cost 2013-2015

Extends Earned Income Tax Credit, and the Child and Dependent Care Credit

Invests in programs to stave off further foreclosures to keep families in their homes

Invests in our children’s education by increasing Education, Training, and Social Services

It would also end the war in Afghanistan and do selective, not blanket cuts to the military budget.  It basically spends money to put people back to work and stabilize the economy.  This assumes that people who work pay taxes and put money back into the economy.  It also achieves deficit reduction.  All through government spending.  As Dean Baker poinst out

For those upset that the budget debate is getting ever further removed from the real world problems of an economy that is suffering from a deficit of 9 million jobs, there is good news. The Congressional Progressive Caucus (CPC) has produced a budget that is intended to make the unemployment situation better rather than worse.

The story of course is that we are still in a situation where we need the government as a source of demand in the economy. This is independent of how much we like the government or the private sector. The private sector does not expand and create jobs just because governments want it to, as is being discovered now by leaders in the United Kingdom, Greece, Italy, Spain and everywhere else where deficit reduction is now in vogue. In the current economic situation, loss of demand from the government is a loss of demand to the economy. That is why recent steps to reduce the deficit, such as the ending of the payroll tax cut (which put money in consumers’ pockets) and the sequester, will lead to slower growth and higher unemployment.

Would this happen with the adoption of the progressive budget?  I don’t know, but I know that what is going on now isn’t working either.  And what is worse, people are tuning out and shrugging their shoulders assuming nothing can be done.

Gail Collins has this fantasy.

White smoke poured from the Capitol today and crowds of onlookers broke into shouts of jubilation, crying: “We have a budget!”

Inside, where the nation’s legislators had been walled off in seclusion, the newly chosen tax-and-spending plan was garbed in the traditional brass staples for its first public appearance. Insiders said it planned to take the name of Budget for Fiscal Year 2014.

I guess that is alternative number three.  Maybe we should try sequestering Congress.

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Star Trek or Star Wars

I’m a fan of the original Star Trek and of the first Star Wars trilogy.  I guess I dropped out after that, maybe moved on or something.  But putting that aside, I love this Ruben Bolling.  Sums up the cultural reference controversy and the sequester all in one.

tom 3-13-2013

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Chief Justice Roberts, voting rights and statistics

During the oral arguments for Shelby County v. Holder, Chief Justice John Roberts quoted some statistics that, according to his interpretation, showed the turnout ratio of minority voters to white voters was worse in Massachusetts than in any other state.  This prompted a quick response from the Massachusetts election officials and a more measured one from Nate Silver on FiveThirtyEight.  As the Chief Justice may be learning, statistics are tricky things.

The day after the remarks by the Chief Justice the Globe headline was

Chief justice blasted over Mass. voting ‘cheap shot’

Talk about feeling insulted!  The nerve to compare us to Mississippi!

“Do you know which state has the worst ratio of white voter turnout to African-American voter turnout?” Roberts asked Donald Verrilli Jr., solicitor general for the Department of Justice, during Wednesday’s arguments.

“I do not know that,” Verrilli answered.

“Massachusetts,” Roberts responded, adding that even Mississippi has a narrower gap.

Roberts later asked if Verrilli knew which state has the greatest disparity in registration. Again, Roberts said it was Massachusetts.

The problem is, Roberts is woefully wrong on those points, according to Massachusetts Secretary of State William F. Galvin, who on Thursday branded Roberts’s assertion a slur and made a declaration of his own. “I’m calling him out,” Galvin said.

Galvin was not alone in his view. Academics and Massachusetts politicians said that Roberts appeared to be misguided. A Supreme Court spokeswoman declined to offer supporting evidence of ­Roberts’s view, referring a ­reporter to the court transcript.

On Thursday,  Galvin tried to set the record straight. “We have one of the highest voter registrations in the country,” he said, “so this whole effort to make a cheap-shot point at Massachusetts is deceptive.”

Map of Section 5 Covered Jurisdictions

Map of Section 5 Covered Jurisdictions (Photo credit: Wikipedia)

So what’s going on here?  Trust Nate Silver to explain.

Section 5 of the Voting Rights Act, which is being challenged by Shelby County, Ala., in the case before the court, requires that certain states, counties and townships with a history of racial discrimination get approval (or “pre-clearance”) from the Department of Justice before making changes to their voting laws. But Chief Justice Roberts said that Mississippi, which is covered by Section 5, has the best ratio of African-American to white turnout, while Massachusetts, which is not covered, has the worst, he said.

Chief Justice Roberts’s statistics appear to come from data compiled in 2004 by the Census Bureau, which polls Americans about their voting behavior as part of its Current Population Survey. In 2004, according to the Census Bureau’s survey, the turnout rate among white voting-aged citizens was 60.2 percent in Mississippi, while the turnout rate among African-Americans was higher, 66.8 percent. In Massachusetts, conversely, the Census Bureau reported the white turnout rate at 72.0 percent but the black turnout rate at just 46.5 percent.

As much as it pleases me to see statistical data introduced in the Supreme Court, the act of citing statistical factoids is not the same thing as drawing sound inferences from them. If I were the lawyer defending the Voting Rights Act, I would have responded with two queries to Chief Justice Roberts. First, are Mississippi and Massachusetts representative of a broader trend: do states covered by Section 5 in fact have higher rates of black turnout on a consistent basis? And second, what if anything does this demonstrate about the efficacy of the Voting Rights Act?

Turns out that the Current Population Survey has a very high margin of error.

One reason to be suspicious of the representativeness of Mississippi and Massachusetts is the high margin of error associated with these calculations, as noted by Nina Totenberg of NPR.

Like other polls, the Current Population Survey is subject to sampling error, a result of collecting data among a random subsample of the population rather than everyone in the state. In states like Massachusetts that have low African-American populations, the margin of error can be especially high: it was plus-or-minus 9.6 percentage points in estimating the black turnout rate in 2004, according to the Census Bureau. Even in Mississippi, which has a larger black population, the margin of error was 5.2 percentage points.

The other problem is that the Chief Justice was using 2004 figures when the 2010 numbers had a lower margin of error.  So what, if any thing can we conclude.

In the chart below, I have aggregated the 2004 turnout data into two groups of states, based on whether or not they are covered by Section 5. (I ignore states like New York where some counties are subject to Section 5 but others are not.) In the states covered by Section 5, the black turnout rate was 59.2 percent in 2004, while it was 60.8 percent in the states that are not subject to it. The ratio of white-to-black was 1.09 in the states covered by Section 5, but 1.12 in the states that are not covered by it. These differences are not large enough to be meaningful in either a statistical or a practical sense.

So did Chief Justice Roberts misconstrue the data? If he meant to suggest that states covered by Section 5 consistently have better black turnout rates than those that aren’t covered by the statute, then his claim is especially dubious. However, the evidence does support the more modest claim that black turnout is no worse in states covered by Section 5. There don’t seem to be consistent differences in turnout rates based on whether states are covered by Section 5 or not.

The bigger potential flaw with Chief Justice Roberts’s argument is not with the statistics he cites but with the conclusion he draws from them.

And here what Silver thinks we should be asking.

…the fact that black turnout rates are now roughly as high in states covered by Section 5 might be taken as evidence that the Voting Rights Act has been effective. There were huge regional differences in black turnout rates in the early 1960s, before the Voting Rights Act was passed. (In the 1964 election, for example, nonwhite turnout was about 45 percent in the South, but close to 70 percent elsewhere in the country.) These differences have largely evaporated now.

How much of this is because of the Voting Rights Act, as opposed to other voter protections that have been adopted since that time, or other societal changes? And even if the Voting Rights Act has been important in facilitating the changes, how many of the gains might be lost if the Section 5 requirements were dropped now?

To put it nicely, the Chief Justice is using correct statistics to come to not only the incorrect conclusion, but also to ask the wrong questions.  Silver concludes

These are difficult questions that the Supreme Court faces. They are questions of causality – and as any good lawyer knows, establishing a chain of causality is often the most difficult chore in a case.

Statistical analysis can inform the answers if applied thoughtfully. But statistics can obscure the truth when they become divorced from the historical, legal and logical context of a case.

We can only hope that some law clerk at the Supreme Court reads FiveThirtyEight and talks to enough Justices.  Given all the shenanigans going on in Section 5 covered and not covered states on voting rules, now is not the time to over turn this modest brake insuring voting rights.

Official 2005 photo of Chief Justice John G. R...

Official 2005 photo of Chief Justice John G. Roberts (Photo credit: Wikipedia)

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Texas, the death penalty and science

Hard to know where the fault lies:  with Governor Perry who seems to like to execute people without seeming to inquire too much about the circumstances or with the anti-scientific cultural bias that seems to inhabit the state.  Both are at play with the pending execution of  Larry Swearingen for a murder he may not have committed.

Jordan Smith (a reporter for the Austin Chronicle) writes for the Nation

Just over a year ago, in January 2012, Texas Governor Rick Perry marked a gruesome milestone: with 239 executions under his belt, he had officially overseen half of all executions carried out in that state since the reinstatement of the death penalty. Since then, Texas has killed fourteen inmates, solidifying Perry’s position as the governor who has presided over the most executions in history. To date, 492 prisoners have been put to death since the state’s death chamber roared back to life in 1982. By the time this issue of The Nation hits newsstands, the number will likely be 493.

Amid so much state-sanctioned killing there is scant official acknowledgment that the state’s capital punishment system is fraught with problems. As the body count rises, nagging evidence points to the possibility that Texas has executed at least one innocent person, and may be poised to kill more. The arson-murder case of Cameron Todd Willingham, killed in 2004, is the best known, but there are many other cases that raise serious questions about the guilt of people on Texas’ death row.

As it moves down the roster of executions scheduled for this year, the state is perilously close to adding another name to its list of potential innocents: Larry Swearingen, whose case highlights a growing tension in Texas between science and the law. Add to that conflict the all-too-familiar problems of prosecutorial bias and tough-on-crime politics, and you’ve got a recipe for wrongful conviction that, when death is involved, can’t ever be remedied.

I’ve written twice about Cameron Todd Willingham, once in 2009 and again in 2010.  Most people who know about the Willingham case believe that this was a case where an man known to be innocent was executed.  According to Smith, it may well happen again.  Interestingly, both cases hinge on science.

In Swearingen’s case, the courts have demonstrated little tolerance for scientific questions that are not only central to his guilt or innocence, but that have implications for every single death investigation in the state. Until Texas courts— particularly the state’s highest criminal court, the Court of Criminal Appeals (CCA)—accept that understanding science is key to doing justice, the risk that innocent men and women will be locked up, or worse, is inevitable. And in the absence of such a eureka moment, Swearingen, whose latest execution date was February 27, will die despite serious unresolved questions about his guilt.

According to the story in the Texas Observer

When a dead body is discovered, investigators can work out the likely time of death in a number of ways. The first clue is the bugs. It can take no time at all for blowflies and house flies to home in, searching for open wounds and orifices in which to lay their eggs. Between 12 and 24 hours later, when the body is cold to the core, those eggs hatch and the larvae feed on the flesh. The insects offer important clues for forensic pathologists, but it’s also important that they note what the outside temperature was in the days and weeks preceding the body’s discovery. That’s because the higher the temperature, the faster the insects will develop and once entomologists have identified the species, they can determine when they hatched and therefore how long that body has been there.

By day four, bacteria have started to break down the tissues and cells, releasing fluids into the body cavities that produce gases and cause the body to bloat. In summer, a human cadaver in an exposed location can be reduced to bones in just nine days—particularly if there are wild animals around.

Decomposition science is morbid but it can help solve heinous crimes. And it could be the key to figuring out if a man sitting on Texas’ death row was the killer in the gruesome 1998 murder of 19-year-old Melissa Trotter.

In February, nine forensic experts took the stand at an evidentiary hearing for convicted murderer Larry Swearingen to explain that precisely because of this decomposition science, they were sure that Trotter hadn’t been dead very long when her body was discovered— as little as a day; as long as 14. Either way, Swearingen couldn’t have killed her, they said, because at the time of her death he was in jail.

Smith concludes his piece in the Nation

Had Melissa Trotter been killed today, it is hard to imagine that Swearingen would be facing execution without the alleged murder weapon or other evidence first being subjected to DNA testing. The use of science, and DNA in particular, in criminal cases has advanced greatly since 1999. “This is evidence that would routinely be tested if the case was investigated today, and any one of these pieces of evidence could produce a DNA profile that could lead to another perpetrator,” says Bryce Benjet, who is working with the Innocence Project on Swearingen’s behalf. “Regardless of where you stand on the death penalty, I think we can all agree that we should be absolutely certain of guilt before putting someone to death.”

Of course, Texas’ efficient death machinery doesn’t necessarily discriminate between the certainly guilty and the probably or even possibly so. Finality of conviction has long been the force driving justice in Texas, especially as practiced from the bench of the CCA. But DNA has already exonerated forty-seven inmates in Texas—one of them on death row—and inspired efforts to ensure better certainty in convictions, in the state and beyond. Whether the court will accept and apply such science in Swearingen’s case—or in the cases of any of the twelve other inmates scheduled for execution in 2013—remains an open question.

Larry Swearingen’s execution has been stayed until evidence can be reexamined.  Let’s hope this happens before the courts and the state get impatient.  Let’s hope the science is accepted before he is put to death, not after as with Willingham.

Larry Swearingen

Larry Swearingen

Photograph Alex Hannaford

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