Archive for the ‘#commonsense’ Tag

What If “Experts” are Wrong?   Leave a comment

https://fee.org/articles/california-s-background-check-law-had-no-impact-on-gun-deaths-johns-hopkins-study-finds/

A new academic study has found that, once again, gun laws are not having their desired effect.

A joint study conducted by researchers at the Johns Hopkins Bloomberg School of Public Health and the University of California at Davis Violence Prevention Research Program found that California’s much-touted mandated background checks had no impact on gun deaths, and researchers are puzzled as to why.

In 1991, California simultaneously imposed comprehensive background checks for firearm sales and prohibited gun sales (and gun possession) to people convicted of misdemeanor violent crimes. The legislation mandated that all gun sales, including private transactions, would have to go through a California-licensed Federal Firearms License (FFL) dealer. Shotguns and rifles, like handguns, became subject to a 15-day waiting period to make certain all gun purchasers had undergone a thorough background check.

More than a quarter of a century later, researchers at Johns Hopkins and UC Davis dug into the results of the sweeping legislation.

It was the most expansive state gun control legislation in America, affecting an estimated one million gun buyers in the first year alone. Though costly and cumbersome, politicians and law enforcement agreed the law was worth it.

The legislation would “keep more guns out of the hands of the people who shouldn’t have them,” saidthen-Republican Gov. George Deukmejian.

“I think the new laws are going to help counter the violence,” said LAPD spokesman William D. Booth.

More than a quarter of a century later, researchers at Johns Hopkins and UC Davis dug into the results of the sweeping legislation. Researchers compared yearly gun suicide and homicide rates over the 10 years following implementation of California’s law with 32 control states that did not have such laws.

They found “no change in the rates of either cause of death from firearms through 2000.”

The findings, which run counter to experiences in Missouri and Connecticut that did show a link between background checks and gun deaths, appear to have startled the researchers.

Garen Wintemute, a UC Davis professor of emergency medicine and senior author of the study, said incomplete data and flawed criminal record reporting might explain the results.

Wintemute noted:

In 1990, only 25 percent of criminal records were accessible in the primary federal database used for background checks, and centralized records of mental health prohibitions were almost nonexistent.

As a result, researchers said as many as one in four gun buyers may have purchased a firearm without undergoing a background check.

“We know at the individual level that comprehensive background check policies work, that they prevent future firearm violence at this level,” saidNicole Kravitz-Wirtz, a researcher who led the survey.

Perhaps unsurprisingly, the findings—which run counter to the conventional wisdom that gun control saves lives—have received almost no media attention.

An exception was the Washington Post, which cited the study (buried 20 paragraphs down) in an article in which the American Medical Association calls for stronger gun control laws at the state level.

AMA President Barbara McAneny told the Post in an interview:

We see this as an epidemic and public health crisis and we think intervening as early as possible is smarter than just building more intensive care units for people who are either killed or damaged and badly hurt by the violence.

Bizarrely, the Post cited the Johns Hopkins-UC Davis study as evidence that what “the AMA is calling for may be needed.”

Apparently, to the Washington Post, California’s failure to effectively enforce background checks that had no discernible impact on gun deaths is evidence that more gun control laws are needed.

Essentially, the study’s authors, the AMA, and the Post appear incapable of seriously entertaining the possibility that sweeping gun control legislation might not have produced the results desired and expected: fewer deaths.

Alas, the experts are behaving exactly as expected.

More than a decade ago, the writer Louis Menand, in a New Yorker article, explained the rationalizations experts make when their theories fail to hold up in our real-world laboratory:

When they’re wrong, [experts are] rarely held accountable, and they rarely admit it, either. They insist that they were just off on timing, or blindsided by an improbable event, or almost right, or wrong for the right reasons. They have the same repertoire of self-justifications that everyone has, and are no more inclined than anyone else to revise their beliefs about the way the world works, or ought to work, just because they made a mistake.

California’s failed gun control law appears to be yet another example of experts, to paraphrase the great Milton Friedman, judging “policies and programs by their intentions rather than their results.”

Despite the dismal record of gun control, expect the media and “experts” to use a repertoire of self-justifications rather than modify their beliefs—regardless of what the evidence shows.

Jonathan Miltimore is the Managing Editor of FEE.org. Serving previously as Director of Digital Media at Intellectual Takeout, Jon was responsible for daily editorial content, web strategy, and social media operations. Before that, he was the Senior Editor of The History Channel Magazine, Managing Editor at Scout.com, and general assignment reporter for the Panama City News Herald. Jon also served as an intern in the speechwriting department under George W. Bush.

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Unseen Benefits of Brexit   Leave a comment

Madeline Grant

https://fee.org/articles/the-unseen-economic-benefits-of-brexit/

In a now-famous essay, “What is Seen and What Is Not Seen,” the great economist Frederic Bastiat warned against judging the value of any activity in a vacuum.

Brexit.pngBastiat’s “broken window fallacy” brilliantly exposes a common tendency to focus on the visible, tangible benefits of an action—the “seen”—while neglecting the “unseen” penalties and long-term drawbacks associated with the same activity—the invisible cost of opportunities foregone.

Though he wrote the essay in 19th-century France, Bastiat’s insights have a timeless wisdom. We live with the consequences of reductive “broken window” thinking every day, especially where public money is concerned. Politicians often praise the visible benefits of public spending, e.g. the number of jobs “created,” without considering whether the funds could have been spent more wisely elsewhere or even how the taxpayer might have spent the cash had it remained in his or her pocket.

For my money, the fraught Brexit debate badly needs a dose of Bastiat.

So far, discussions of the gains and losses of Brexit have understandably tended to focus on the most obvious costs, like the amount Britain may pay in any “Divorce Bill,” the potential “Brexit hit” to companies exporting to the EU, and so on. Of course, these concerns are vitally important, but our focus on the immediate costs of EU departure risks blinding us to the very real costs of maintaining the status quo.

Membership in the European Union carries huge unseen penalties whose implications may not be immediately apparent. The EU’s Common External Tariff, for example, raises prices and so reduces the quantities of goods and services available to ordinary consumers. Since shoppers in the EU lack the counterfactual experience of trading at world prices, this penalty goes unnoticed, but it involves a misallocation of resources on a vast scale.

In adopting the government’s proposed model for close customs cooperation and a common rulebook, we run the risk of finding ourselves with little scope to diverge from EU regulations on goods and unable in practice to strike new trade deals with the rest of the world.

Negotiating the terms of our departure also comes with huge hidden dangers. In adopting the government’s proposed model for close customs cooperation and a common rulebook, we run the risk of finding ourselves with little scope to diverge from EU regulations on goods and unable in practice to strike new trade deals with the rest of the world. It is often pointed out that the UK’s interests in trade agreements are primarily in services, but this makes it even more vital to maintain flexibility over what we can concede in goods to incentivize potential trading partners to strike a deal. The status quo, or anything close to it, carries huge opportunity costs of its own.

Due to a combination of the precautionary principle enshrined in the Lisbon Treaty and the difficulties of getting 28 countries to agree on anything, the EU, intentionally or not, often stands in the way of innovation.

In particular, the precautionary principle, the preferred risk management strategy of EU regulators, places the onus on creators of new technologies to prove their invention is safe where some risk may exist—even if there’s no scientific consensus to suggest any actual harm will occur.

In particular, the precautionary principle, the preferred risk management strategy of EU regulators, places the onus on creators of new technologies to prove their invention is safe where some risk may exist—even if there’s no scientific consensus to suggest any actual harm will occur.

The result? It’s often too much bother to innovate.

During the 19th century, many viewed the emerging railways with a great deal of suspicion. As recorded by cultural anthropologist Genevieve Bell, critics of early locomotives believed “that women’s bodies were not designed to go at 50 miles an hour” and worried that their “uteruses would fly out of [their] bodies as they were accelerated to that speed.” Had Victorian Britain followed some version of the precautionary principle, it’s hard to imagine a single track of rail being laid given the levels of contemporary railway fear.

Of course, moral panic over new technology is nothing new. Now, as in the 1850s, over-cautiousness risks hampering important drivers of future growth.

Given the EU’s structure, history, and current trajectory, the balance of probability suggests AI will be the latest in a long line of missed technological opportunities.

So far, the European Union has taken only tentative steps towards regulating artificial intelligence and robotics, though they are currently consulting on the issue. Yet given the EU’s structure, history, and current trajectory, the balance of probability suggests AI will be the latest in a long line of missed technological opportunities.

Take genetically modified crops. Since their commercialization in many parts of the world during the 1990s, GM crops have raised the quantity and quality of the global food supply while lowering fuel and energy usage, requiring fewer pesticides and reducing both soil erosion and carbon emissions—all with no scientifically-documented evidence of harm to human health. And yet, EU-wide precautionary thinking has meant a de facto ban on GM crops, only one variety of which has ever been approved and grown in Europe.

While farmers outside the EU continue to develop newer, better technologies, hysteria over man-made pesticides has kept European farming methods behind the times. Ironically, foregoing the GM revolution in insect-resistant plant breeding has left European farmers more reliant on pesticides than ever (as has the ECJ’s foolhardy ruling on genome editing earlier this year).

Just last week, the French Finance Minister claimed that EU member states are “very close” to agreeing on a counterproductive tax on the turnover of tech companies, a policy likely to discourage new entrants and inflate costs for consumers.

Given all the above, are the EU’s hyper-cautious regulators likely to pursue a different path when it comes to AI and robotics? Or will it be “business as usual”—namely, when in doubt, tax and over-regulate? Certainly, initial signs, including misguided calls for a “robot tax” from the likes of Guy Verhovstadt, don’t inspire confidence.

If you have to get a human to explain the logic, why bother investing in an AI solution in the first place?

The EU’s new General Data Protection Regulation (GDPR), implemented earlier this year, will almost certainly hinder the development of artificial intelligence by raising costs and limiting access to data. In particular, Article 22 creates a new requirement for humans to review certain algorithmic decisions, a restriction that will significantly raise labor costs, thereby creating a strong disincentive from using AI. After all, the whole point of developing AI is to automate functions that would otherwise be slower, costlier, and more difficult to complete if performed by humans. If you have to get a human to explain the logic, why bother investing in an AI solution in the first place?

These may seem like small concerns in the grand scheme of things, but taken as a whole—and the EU creates a whole lot of regulation—it adds up to an environment often hostile to innovation.

It’s no coincidence that Europe has lagged behind the US for decades when it comes to new inventions, innovations, and entrepreneurship. There are of course important cultural differences between these continents, but much relates to the US government’s comparatively light-touch regulatory approach. Not for nothing are there no tech giants in Europe to rival Facebook, Google, Apple, or Amazon.

Creating a competitive, innovation-friendly atmosphere is a huge potential hidden “win” of Brexit—with correspondingly huge opportunity costs from failing to do so.

Creating a competitive, innovation-friendly atmosphere is a huge potential hidden “win” of Brexit—with correspondingly huge opportunity costs from failing to do so. Indeed, with more leading universities than the rest of Europe put together and an already thriving tech sector, Britain has much to lose compared to many of its neighbors.

One can only imagine what Frederic Bastiat would have made of things like robotics, AI, and machine learning. But I suspect the spirit of his advice would be the same: consider the unseen, and don’t destroy the jobs of the future in a misguided attempt to protect the jobs of today.

Posted November 2, 2018 by aurorawatcherak in economics, Uncategorized

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Genesis of Violence   Leave a comment

Let’s say a man kicks down the door of his ex-girlfriend’s house and she shoots him dead in her foyer.

Who is responsible for his death?

Yes, she shot him, but don’t you suppose she was terrified that he was going to kill her and that’s why she pulled the trigger?

What if she had a restraining order against him because he’d been threatening her for months? Do you think maybe she was justified in shooting him then?

What if she called the cops and they refused to come because he was friends with some of the officers and they felt he was just blowing smoke?

What if his best friends had said she was just being hysterical? He was just trying to correct her negative behaviors. If she’d only just allowed him to beat her that night, all would have been well.

Would you find her guilty of murder if you were sitting on that jury?

Or would you acquit her because he was responsible for the violence and she had no other choice than to defend her life?

And, yes, I am discussing something larger than just a dysfunctional relationship.

Posted October 30, 2018 by aurorawatcherak in Common sense, Uncategorized

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Let’s Discuss Violence   1 comment

A tour around the Internet says some portion of the population is really worried about dying from gun violence … so worried they’re willing to disarm everyone in hopes that will keep them safe and to jail anyone who disagrees.

First, they need to calm down. Your chance of dying of gun violence in the United States is about 30,000 out of a population of 360 million. That’s less than 1% risk. You’re far more likely to get run over by a bus or  bitten by a mongoose than killed with a gun.

Image result for image of violenceSecond, disarming the law-abiding won’t disarm criminals or the police (rather the same thing these days) so it won’t reduce violence … it will just shift how it is done. As a small woman, I am not defending myself against the physical violence of a large man unless I have a gun, which means I am much more likely to become a victim of non-gun violence if I am disarmed. Americans use guns between 100,000 and a half-million times a year to defend themselves from violent crime. My mother was one of those people when I was in junior high and the men she frightened away from our house (by brandishing a gun) went down the road and raped a classmate of mine. Needless to say, I think the ability to defend yourself is non-negotiable.

But let’s take a look at what are the most common gun-violence deaths.

Suicide accounts for 63% of all firearm deaths in the US. It’s the most common gun-related death. And, no, the answer is not “take all the guns away and people will stop killing themselves.” I worked in the mental health field, folks, and I saw this scenario way too many times. The client would be placed in the hospital, their guns (if they had any) would be confiscated, they’d be released and someone would find them hanging in the woods by a rope. Or they’d slit their wrists or they’d save up their anxiety meds and overdose. If someone wants to kill themselves, they will find a way to do that … and do, even while in hospitals for treatment. If violating the right of self-protection was the answer to suicide, Poland, with some of the strictest gun laws in the world, would not have a suicide rate 50% higher than that of the United States, which has some of the more lenient gun laws in the world. Leaving healthy people helpless at the hands of criminals or government thugs will not significantly reduce suicides … which still account for 63% of all gun violence.

Road rage situations.  About 100 people a year die from incidents involving a gun during a road rage incident and in most cases, they were described as the aggressor in the incident, who got out of their car to confront someone they considered to be a jerk and that “jerk” defended themselves with a gun because they preferred not to be beaten to death by an angry driver. And, yes, they could be included in another figure further down.

Gangs. Violence is the accepted norm among gang members, resulting in many becoming victims of gun violence. According to the Center for Disease Control, a staggering 80% of gun homicides are gang-related.

Illicit drug trade. Yes, we could argue that drug laws are likely to result in gun violence from cops, but it’s also true that people already on the wrong side of the law are more likely to commit gun violence than the law-abiding population.

Abusive romances. I’m all about letting people put their pasts well and truly in the past, but we should acknowledge that someone who has previously physically abused a partner is more likely to do so than are those who haven’t.

Gun Free zonesOne study showed that 98% of all mass shootings happen in these places. Gun-free zone signs tell violent people this is a spot where they will encounter little immediate resistance to killing large numbers of people. As for everywhere else, assuming you’re in a state or community that allows concealed carry, these predators may be deterred since they have to wonder if there’s already a good guy with a gun on the property. It might be an explanation for why only 2% of mass shootings occur outside of gun-free zones, but it also explains why states with constitutional carry rarely experience public mass shootings.

Human predator. A significant number (about 700 each year) of gun deaths are justifiable homicide wherein a victim successfully defends themselves from criminal assault. Which, when you think about it, is amazing. If Americans protect themselves from violent crime 100,000 times a year with a gun, but only 700 predator-humans are killed … that says that an awful lot of concealed carry people de-escalate situations while having a gun in their hand … or it could mean that the predators run away when confronted with a gun.

Irresponsible gun owners. There really is no such thing as an accidental discharge of a gun. Someone pulled the trigger or caused a situation in which the trigger was pulled by an inanimate object. Still “accidental” shootings account for 4% of all gun-violence deaths. If you know someone who breaks any of the four rules of gun safety, they are one of a tiny minority of gun owners who give the rest of us a bad image.

Thankfully, the odds of anyone in the U.S. dying from gun violence each year is exceedingly low … about 30,000 out of 360 million people — so less than 1%. Now can we have a conversation about what to do with the behaviors around guns that cause these shootings rather than trying to disarm everyone in a futile attempt to end violence?

What Prisoners Want   1 comment

LELA: My guest today is long-time friend Bern S. He was a close friend and our entry into jail ministry. The friendship came first. We agreed we wouldn’t use your full name … that you’ve had enough of being infamous. So tell us a little bit about yourself.

BERN: I’m originally from the Northeast by way of Texas, but I’ve lived in Alaska for 35 years, so I think I can call myself an Alaskan legitimately. Right?

LELA:  Definitely. Alaskans don’t hand out that title casually, but you’ve done auto repair at 40 below zero, had the wits scared out of you by a bear, and hold a black belt in Copper River salmon fishing, so you definitely qualify. And you’re married to an Alaska-born woman and have Alaska-born children. You get bonus points.

Related imageBERN:  Ooo, like extra credit!  Love it! So your audience now knows I’m a family man and a salmon fisher. I also am a Christian who goes to church when I feel like it and an inventor of wood stove accessories. But that’s not why we’re here today, so ….

LELA: It’s been, what, 24 years?

BERN:  Coming up in September, yeah.

LELA:  You ended up in jail, right?

BERN:  For four years, yes. I don’t like to talk about it, but I stalk you on Twitter and this gal was going after you, so I called you up and said “Interview me!” You didn’t even know she was having a meltdown.

LELA:  I knew, but I was ignoring it. So, we’re not going to talk about what you did to go to jail. That’s in keeping with my belief that felons should have their records expunged when they’re done serving their time. If I could do that for you, I would.

BERN:  I know that. You’re one of the few people who knows the whole story. You’re also one of the few people who has supported me through all of it and I appreciate that.

LELA:  Ain’t nothing good in me. Tell me about prison.

BERN:  Yeah. It sucks. You think the punishment is having your rights taken away from you and visiting your family through glass, but there’s a lot more to it than that.

LELA:  Like?

BERN:  I think people think this is whining ….

LELA:  People think any complaint by a prisoner is whining. Just accept your punishment.

BERN:   Right. Out of sight, out of mind … unless you’re family or a good friend.

LELA:  So, whine away, man! Let them believe what they want.

BERN: Okay. If anyone qualifies for PTSD diagnosis, it’s gotta be prisoners. Not all the guards are bad. Some treat you human, but the whole system is set up to make you feel helpless and hopeless. I’ve had 20 years to think about this and they just want to break you down in hopes that you will never want to go back there again. They change cellmates, like, almost daily. You maybe get to have the same one for a month or two, but not usually. You get to know a guy and then he’s gone and you have no idea what this next guy is all about. Maybe he’s just trying to do his time like you are, maybe he’s an abusive asshole … and anything in between. And you’re sharing an 8×10 cell with him, so you are going to know each other far too well by the end of the first day.

LELA: That sounds chaotic.

BERN: It drives home that you have zero control over your life.

LELA: And you think that’s the point?

BERN: I hope they have a point. I know, you don’t think they have a point.

LELA: That’s how I’m going to write it when I use it, yeah.

BERN:  They wash all the clothes together so your underwear ends up blue or tan. I’ve heard that some prisons it’s pink. It drives home the fact that you’re sharing underwear with hundreds of guys. And then there are the scrubs and deck shoes you have to wear. At least at Spring Creek I got to wear sort of street clothes because I was one of the workers.

LELA: You got to work in prison?

BERN: I was one of the few. I wasn’t a career criminal. I had skills going in and so I got the highest paying job in the complex – 60 cents an hour doing maintenance.

LELA: By maintenance, you mean plumbing, heating, electrical repair … not janitorial.

BERN:  Technically, but when one of the guys in Mike Mod would flush his pants to cause a disruption on a Sunday morning, I’d end up having to clean up the backup, so in reality …. But the State of Alaska no longer does prison industries anymore, so I’m not even sure that my job would be available now.

LELA: Why’d they close down the prison industries? I know they used to make coffins at Spring Creek and there was a furniture store and they used to wash all the Alaska Marine Highway linens at Lemon Creek.

BERN: They said it was financial, but I don’t know how you could get cheaper than paying someone 30 cents an hour to wash clothes.When I would do maintenance, the real workers would never go into the really yuk places and they didn’t clean up feces. That was all me. And I was glad to do it because it meant I was doing something and I got paid.

LELA: Talk about how important that is.

BERN: Doing something or getting paid?

LELA:  Both.

BERN:  Boredom is the biggest punishment. I missed my family. I missed trees. I missed my dog. But I could focus on a date when I would get out and that got me through that. I’d write letters to my wife and talk to my little girl … and my dog … on the phone. But it was the day-to-day that just ate me up. You’ve got nothing to do. The prison library is mostly a joke. There are fewer books on their shelves than on yours. And if I had to read another Zane Grey novel …. There was schooling available then too (not anymore) and I made use of that. But the fact was that I couldn’t fill all the hours I had and working helped with that. Working eight hours a day at 60 cents meant I had $4 a day. I could buy shaving creme or a pad and pencil or an anniversary card for my wife. If I saved up, I could get a gift for my daughter without having to ask my wife to put money on my books so I could buy it.

LELA: I hear it in your voice. It’s humiliating even 20 years later.

BERN: Humbling but not as bad as the mind-numbing boredom of staring at four walls with nothing to do and knowing tomorrow would be exactly the same. Imagine doing that for two and a half years.

LELA:  I can’t.

BERN:  C’mon, writer chick, I bet you could if you tried. Guys would get into trouble just to break the monotony. Of course, that didn’t work out for them because they ended up in segregation staring at even closer walls and sometimes it added to their time. I was fortunate that I had a job to go to because I served exactly the amount of time I was required to serve and not one day more and I didn’t lose even an hour of good time. I couldn’t have done that with nothing to do.

LELA: Good time?

BERN: If you’re good, they take one day off your sentence for every three days served. So, I was sentenced to six years to serve (with probably after), but I only actually served four years.

LELA: And you served the last 18 months in a halfway house, right?”

BERN: That was a whole other kind of humiliating and frustrating, but the good thing there was I could go to a legal job with real wages. I remember how annoying it was that the halfway house would put it in an account and refuse to let me have more than about 20 bucks. I wanted to be able to contribute to my household and they wouldn’t let me. “Well, what if your wife decides to leave you? You’re going to need that money when  you get out.” My release counselor actually said that. I was, like, “man, if she didn’t leave me yet, she’s not planning to leave me now.” Meanwhile she’s driving a car that’s falling apart and working two jobs trying to keep our daughter in clothes and I’m still having to ask her to help me with my expenses. It sometimes seems like they were trying to break up marriages.

LELA: A friend who was a prison guard claims that is part of it and a part he really regretted being a part of.

BERN:  Tom?

LELA:  Yeah.

BERN:  One of the ones who treated us like humans and the administration made him pay for that.

LELA:  He’s enjoying his retirement. So, then you got out. You’re still married. You have two children … they’re adult-ish now. You own your own business. You own a home. You vote in elections.

BERN:  My wife is made of tough stuff … like one of those aspen trees that grows on the bluffs in Chitina. I can’t say enough good things about her. I kind of had to start my own business because the felony kept getting in the way. It just kept coming up. You’d think that after 20 years it wouldn’t be an issue, but employers … well, their insurance companies, anyway … never let you forget.

LELA: Which is why the borderline anarchists are working on a ban-the-box law. I’ll keep working to my dying day to make our criminal justice system stop stigmatizing people for life. It might not work, but I’m not going to stop. Is there something you want ordinary people to know about you and people who have been through what you have been through?

BERN: We’re people just like you. Some of us went into the system for something we didn’t plan and would take back if we could. Others made law-breaking a career, but you know, they don’t put people in jail for that in Alaska anymore. Human have brains and deserve better than staring at four walls for years on end. But more than that, there’s dignity in work and in getting paid real money for real work and prisoners deserve dignity. The reason I called you up was that the person going after you was totally wrong. I’m not illiterate or retarded and neither were most of the guys I was in with. Don’t make the mistake of thinking drug-dealers are ill-informed or idiots. They worked in a system that involves the voluntary exchange of goods. They ran a business, even if the government didn’t get a cut. So it’s not up to suburban housewives and college graduates with a degree in social fluff to decide for us what we can and cannot do with our lives and what few options we have when we’re inside. I participated in a university scientific experiment that involved giving a periodic blood sample and keeping track of what I ate. I actually bought my wife flowers for Valentine’s that year. I got asked last year to take part in a follow-up to that study and I did. If it was a good cause, I’d be glad to take part in an experiment like that now. There’s one where you get to spend a couple of weeks in a closed-up hotel while they try to expose you to the flu so they can develop a vaccine. They pay you $5000 for it. I’m trying to figure out how to put my name in for it because it sounds like easy money … depending on what the actual paperwork says when I read it. I’m obviously going to read that pretty carefully before I sign my name on the dotted line. But more than that … the flu kills and so I think an actual effective vaccine against it would be a good idea and I’m willing to help with that. And you see, that’s where I’m trying to find significance in my culture … a feeling that I’m still a contributing member of society even if society thinks I’m a pariah.

Your troll was partially right … in a broke-clock-right-twice-a-day way — that there were some awful things that happened in the past. Prisons were awful back in the day for very different reasons than they’re awful now. There were medical experiments that were done on prisoners that were cruel and just wrong. You knew about those?

LELA:  Sure. The LSD experiements and the Malaria Project come to mind. There were a lot more than that, but I’d have to look them up to remember them all. But those were decades ago (literally 40+ years ago) and prisoners prevailed in court and are now some of the most highly-protected medical research subjects in the country.

BERN: Absolutely. There are laws — informed consent laws that prisons and medical researchers have to abide by these days. You can even consult your own lawyer before signing. And there’s always a prisoner advocate about to consult too. They won’t let you not consult them. Your troll apparently doesn’t know about those. Which isn’t very surprising. A lot of people don’t actually study anything. They read something a website they agree with writes and they just agree with it without checking the facts. They do it on both ends of politics. And then again, there’s all the people who have never talked to someone like me, let alone anyone actually in prison now, and just assume crap as if they know. There’s this attitude … I run into it even now … that if you’ve ever had a run-in with the law, you must not be very bright. Sometimes I want to just grab people by the shoulders and scream “You could be next, you naive idiot.” Of course, that would be considered assault so I’ll settle for saying it on your blog.

LELA:  They’d probably arrest me for it too. Thank goodness for the internet where you can’t actually shake someone to death. Yes, there are ethical concerns in prisoners taking part in research. There are ethical concerns in non-prisoners taking part in research. It’s research and you could die of the flu if given the flu. But I can’t help think that people like her who object so strong have bought the line that research can be done with computer models instead of actual living subjects. They scream and yell about animal research, never asking if that means the drug will be tested directly on humans and then they scream and yell about human research … and I’m not sure what they think the alternative is. And yet if they get some condition, they want to be treated. Maybe doctors should just start saying “Well, sorry, but we had to stop that research because we couldn’t get enough test subjects.” Then they’d sue the doctor for not treating their condition.

BERN:  Your uncle is a researcher, right?

LELA:  Cousin … yes. I can’t imagine where MS treatment would be today if the attitudes that prevail now were in existence in the 1970s through the 90s.

BERN: More to our topic, HIV research was stymied in the 1980s by concerns about using prisoner research subjects. There’s more IV-drug users in the prisons than in the general population, but you know, they might feel coerced if asked to take part. Imagine how many people died because there were all these huge hurdles to allowing someone like me to take part in a clinical trial just because I was behind bars.

LELA:  And the amazing thing to me is that my advocating for that got me hit with a label of not being compassionate.

BERN:  There’s a lot of phony compassion out there … people who haven’t got a clue, but are certain they know better than the people who are actually involved. They define compassion oddly. And they frequently base their opinions on the opinions of those who haven’t been involved. Nobody should ever be forced take part in something they don’t want to take part in. Everyone should have a choice. Prisoners are pretty good at saying “hell, no!” when it’s something they don’t want to do because they’re already doing something they don’t want to do. But not understanding the basic need for people to have significance … to feel like they’re contributing to society … that seems pretty uncompassionate to me. Yeah, you need to make sure they know what they’re doing, but let people who have so few choices in life make their own choices about whether to give a little blood or whatever. It might just help them to feel like a worthwhile human being again.

https://www.scientificamerican.com/article/should-prisoners-be-used-in-medical-experiments/

 

It’s Not Freedom if You Can’t Exercise It, Part 4   Leave a comment

Clarence Thomas concurred with the majority opinion, writing separately on Jack Phillips’ free speech claim. I like Thomas’ opinions because they are very clearly worded and he doesn’t devolve into legalese.

He begins by agreeing that the Colorado Civil Rights Commission violated Jack Phillips’ right to freely exercise his religion when it treated his religious objections differently from other bakers’ secular objections in a similar case (Jack), showing overt hostility to Phillips’ religion.

Image result for image of wedding cakeThe SCOTUS did not address the free-speech claim because there were uncertainties in the record. Phillips claims he refused to create a custom wedding case to celebrate their wedding case because he would have refused to bake a custom wedding cake for any same-sex couple. The customers asserted that he refused to even sell them a premade cake, which he denies. (Note to self – when controversy comes your way, hit record on your cell phone so there’s no question of what was said). The Colorado Court of Appeals resolved that factual dispute in Phillips’ favor, describing his conduct as a refusal to ‘design and create a cake to celebrate a same-sex wedding.” The Commission’s order required Phillips to sell “any product he would sell to heterosexual couples” including custom wedding cakes, yet even after that description, the Court of Appeals concluded that Phillips’ conduct was not expressive and was not protected speech, reasoning that an outside observer would conclude that Phillips was merely complying with Colorado’s public-accommodations law, not expressing a message, and that Phillips could post a disclaimer to that effect … flouting “bedrock principles of our free-speech jurisprudence and would justify virtually any law that compels individuals to speak. It should not pass without comment.”

The 1st Amendment is applicable to the States through the 14th Amendment and it prohibits that abridgment of “freedom of speech.” In Hurley it was ruled that public-accommodation laws do not target speech, but instead prohibit the act of discrimination against individuals in the provision of publicly available goods, privileges and services.” But sometimes protected speech is impacted and then the 1st Amendment has had primacy. In Hurley, the Court unanimously held that the law requiring the sponsor of a St. Patrick’s Day parade to include a parade unit of gay, lesbian and bisexual Irish Americans violated the sponsors right to free speech because parades are a form of expression and application of the public-accommodations law altered the expressive content of the parade by forcing the sponsor to add a new unit, suggesting that the sponsor agreed that people of gay, lesbian or bisexual orientation have as much claim to unqualified social acceptance as heterosexuals and would tend to imply that their participation “merits celebration.” The SCOTUS rejected the notion that governments can mandate “thoughts or statements acceptable to some groups or indeed all people” as the “antithesis” of free speech. “The Constitution limits the government’s authority to restrict or compel ‘expressive conduct’. The ability to choose what not to say is a primary manifestation of free speech.

Philliips considers himself a cake artist, symbolized by the logo for Masterpiece Cakeshop being a painter’s palate with a paintbrush and baker’s whisk. He designs the cakes, he sits down with each couple to consult on the design. He delivers the cake and sometimes stays and interacts with the guests at the wedding. Guests often recognize his work and seek out his bakery afterward. To him, a wedding cake inherently communicates that a wedding has occurred, a marriage has begun, and the couple should be celebrated. But it’s not just Phillips who believes that. Society has viewed wedding cakes by the symbols since before the American Civil War.

“Accordingly, Phillips’ creation of custom wedding cakes is expressive. The use of his artistic talents to create a well-recognized symbol that celebrates the beginning of a marriage clearly communicates a message.”

Colorado’s public-accommodations law would alter the expressive content of Phillips’ message. Forcing Phillips to make custom wedding cakes for same-sex marries requires him to, at the very least, acknowledge that same-sex weddings are “weddings” and suggest that they should be celebrated – “the precise message he believes his faith forbids.”

Thomas gave due consideration to prior rulings by the Supreme Court showing that the government is not permitted to compel speech or “expressive conduct”. He also addressed the argument that Colorado’s law allowed it to compel Phillips’ speech to prevent the same-sex couple from being denigrated, made to feel inferior or subjected to humiliation, frustration or embarrassment.

“These justifications are completely foreign to our free-speech jurisprudence. States cannot punish protected speech because some group finds it offensive, hurtful, stigmatic, unreasonable, or undignified. ‘If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Again, Thomas gives a lot of consideration to prior SCOTUS rulings.

He also points out what Phillips actually said to the respondents in this case. “I will make your birthday cakes, shower cakes, sell you cookies and brownies, I just don’t make cakes for same sex weddings.” And, then a black justice points out the Court allows racist, demeaning and threatening speech toward blacks. Ruling that the Constitution protects same-sex marriage does not immediately require that those who express a different view are not protected in expressing those views.

Thomas engages in a little “I told you so”, noting that he warned during Obergefell that the Court’s decision would “inevitably come into conflict with religious liberty as individuals are confronted with demands to participate in and endorse civil marriages between same-sex couples.” He predicts further conflict unless the freedom of speech principle is upheld going forward.

Part 5

 

 

It’s Not Freedom if You Can’t Exercise It, Pt 3   Leave a comment

“When the government fails to act neutrally toward the free exercise of religion, it tends to run into trouble.” Neil Gorsuch, Supreme Court justice

Gorsuch wrote a concuring opinion in Masterpiece Cakeshop v Colorado Civil Rights Commission and Justice Alito joined him.

Image result for image of wedding cakeGorsuch stated that the decision hinged on the hostility of the Commission toward Phillips’ beliefs and on their failure to show that their “restriction on religion both serve(s) a compelling interest and (is) narrowly tailored” (Church of Lukumi Babalu Aye v Hialeah (1993)).

The Colorado Civil Rights Commission failed to “act neutrally toward Jack Phillips’ religious faith.” It allowed three other bakers to refuse a customer’s request that would have required them to violate their secular commitments, “yet it denied the same accommodations to Mr. Phillips when he refused a customer’s request that would have required him to violate his religious beliefs.” The Commission’s reasoning was the Phillips’ religious beliefs are “offensive”, in its judgement.

Gorsuch admits that he wrote this opinion mainly to address his two colleagues trying to suggest that the Commission could have acted neutrally toward Phillips’ faith when it treated him differently from the other bakers in a way consistent with the First Amendment.

“Respectfully, I do not see how we might rescue the Commission from its error.”

Mr. Jack argued that the cakes he requested reflected his religious beliefs and so the bakers could not refuse to make them just because they disagreed with his beliefs. The Commission ruled that the bakers didn’t refuse on the basis of his religious faith, but because his message was “offensive” to their own moral convictions.

How is that different from what Jack Phillips did when he refused to bake a wedding cake for a same-sex wedding? Phillips too offered to make other baked goods, including cakes, celebrating other occasions, but he would not design a wedding cake for a same-sex wedding regardless of the sexual orientation of the customer. He subsequently refused the request from the mother of one of the partners. The undisputed factual record shows that Phillips would not make a cake celebrating a same-sex marriage for a heterosexual customer and that he was no unwilling to sell other products to a homosexual customer.

“In both cases, the effect on the customer was the same: bikers refused service to persons who bore a statutorily protected trait (religious faith or sexual orientation). But in both cases, the bakers refused service intending only to honor a personal conviction. … the bakers knew their conduct promised the effect of leaving a customer in a protected class unserved. But there’s no indication the bakers actually intended to refuse service because of a customer’s protected characteristic. … all bakers explained without contradiction that they would not sell the requested cakes to anyone, while they would sell other cakes to members of the protected class (as well as anyone else).”

Gorsuch notes that Colorado law allows that “businesses are entitled to reject orders for any number of reasons, including because they deem a particular product requested by a customer to be “offensive”.  The Commission ignored that and judged Mr. Phillips’ intentions in denying service were “inextricably tied to the sexual orientation of the parties involved” and essentially “irrational.” But, somehow, the intentions of bakers in the Jack case were not “inextricably linked”.  The Commission presumed Mr. Phillips habored an intent to discriminate against a protected class in light of the foreseeable effects of his conduct, but it didn’t presume the same intention toward the bakers’ conduct in the Jack’s case.

“The Commission cannot have it both ways. [It] cannot slide up and down the mens rea scale, picking a mental status standard that suit its tastes depending on its sympathies. Either actual proof of intent to discriminate on the basis of membership in a protected class is required … or it is sufficient to “presume” such intent from the knowing failure to serve someone in a protected class.”

But no, the Commission appeared instead to condemn Mr. Phillips for “expressing just the kind of “irrational” or “offensive” message that the bakers in the Jack’s case refused to endorse.  You can agree with the Commission and consider Mr. Phillips’ beliefs to be irrational or offensive, or consider that he has misinterpreted the teachings of his faith. The Supreme Court has ruled same-sex marriage is a matter of constitutional right and various states have enacted laws that preclude discrimination on the basis of sextual orientation, but those bureaucratic judgments do not survive strict scrutiny under the First Amendment.

“In this country, the place of secular officials isn’t to sit in judgment of religious beliefs, but only to protect their free exercise. … Just as it it is the proudest boast of our free exercise of jurisprudence that we protect speech that we hate, it must be the proudest boast of our free exercise jurisprudence that we protect religious beliefs that we find offensive (Matal v Tam (2017); United States v Schwimmer (1929).”

Gorsuch goes on to say the Commission has tried to maneuver around its failure by claiming Jack asked for a cake with text while Craig and Mullins (the plaintives) sought a decorated cake and then has insisted that the Phillips’ case involved a wedding cake like any other, suggesting there’s no substantive difference between a wedding cake celebrating a heterosexual wedding versus a homosexual one. It’s all a means to deny the neutrality Jack Phillips was due under the law.

It’s irrational to argue that a cake with words conveys a message, but a cake without words does not. Wedding cakes are symbolic baked goods, signifying approval of a “specific system, idea (or) institution.” (West Virinia Bd of Ed v Barnette (1943). “That was precisely the approval Mr. Phillips intended to withhold in keeping with his religious faith.” In denying Mr. Phillips that choice while affording the bakers in Mr. Jack’s case the same choice, the Commission displayed a gross lack of neutrality. Gorsuch insists that the only reasonable course of action is both bakers to be treated the same. To some, all wedding cakes may appear indistinguishable, but to Mr. Phillips, that is not the case — his faith teaches him otherwise “and his religious beliefs are entitled to no less respectful treatment than the [other] bakers’ secular beliefs.”

Gorsuch further relies on the case of Smith, a Jehovah’s Witness who worked in a steel mill, accepting that the sheet steel he worked on might be used in munitions, but objecting to working directly on tanks. “The Court didn’t try to suggest that making steel is just making steel [or] that to offend his religion the steel needed to be of a particular kind or shape. Instead it recognized that Mr. Thomas alone was entitled to define the nature of his religious commitments … not a bureaucrat or judge ….”

Gorsuch confirmed that it is not appropriate for the US Supreme Court to tell Mr. Phillips that a wedding cake is just like any other without regard to the religious significance his faith may attach to it than it is for the Court to suggest that “for all persons sacramental break is just bread and a kippah is just a cap.”

That leaves only one way forward. The SCOTUS will reverse the judgment and hold the Commission’s order set aside. The Commission ought to think about this and use the SCOTUS reasoning in future cases to offer neutral reasons for their rulemaking. Gorsuch also stated that Phillips is entitled to judgment for the past six years facing unlawful civil charges.

Ouch! The State of Colorado may get hit in their pocketbook. And that might be what is necessary to make it clear that government cannot do these sorts of things to law-abiding citizens they happen to disagree with.

Part 4

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