The Wrong Jailers

Last Thursday, the Department of Justice announced it would cease using private prisons, an advance for those of us who think private incentives to imprison people have no place in a free society. Of course, this doesn't end them everywhere; the ACLU has a petition to terminate private prisons for captured illegal immigrants, a contract let by the Department of Homeland Security. And then of course there are the various states using them (the ACLU cites Texas and Louisiana as two that do), though such prisoners are a minority of the overall population.

But private prisons are by no means the only entities pushing to imprison people, as this 2015 Reason essay makes clear. In a review of a Washington Post story reporting that private prison companies CCA and GEO "have funneled more than $10 million to candidates since 1989 and have spent nearly $25 million on lobbying efforts", Ed Krayewski writes "there's a far larger lobbies [sic] invested in large prison populations—corrections officers and their associated unions":

The California prison guards union, for example, poured millions of dollars to influence policy in California alone—it spent $22 million on campaign donations since 1989, more than CCA and GEO have combined, and continues to push for prison expansions. The National Fraternal Order of Police, meanwhile, spent $5 million on lobbying efforts since 1989, more than GEO did. That's not to mention the American Federation of State, County, and Municipal Employees, which includes a "Corrections Union" and lobbies on behalf of all kinds of policies that seek to turn citizens into revenue sources for public employees. They've spent $187 million on campaign donations since 1989, making a far stronger case to be labeled the biggest lobby nobody's talking about than private prisons.

The AFSCME corrections union represents Federal prison guards, and a quick visit to their page makes clear their opposition to private prisons.  If, per the AFSCME, private prisoners represent 22,600 individuals, 12% of the overall population, we can assert a similar sized increase in the ranks of unionized jailers. Which is to say, the union itself has an interest in keeping people imprisoned, and has spent large sums doing so. The jobs it represents involve keeping people in cages, yet we hear nothing from the ACLU about ending public employee unions and their pernicious effects. Just as police unions remain the most strident foe of policing reform, prison guard unions make an awkward bedfellow when ending the War On Drugs is on the table. The modern left cannot see past its historical romanticizing of unions, and so this will not happen.

But let us return to the recent DOJ announcement. All those prisoners will be transferred to Federal jails, with union jailers. If convicts are serving time in whole or in part because of unnecessarily harsh laws and practices advocated by CCA et al. lobbying efforts, in what world is it just that the AFSCME should benefit from that? Isn't that so much tainted fruit? This vital question remains unexplored by the ACLU, who appear mainly concerned the Feds not employ the wrong jailers.

Update: A prescient blog post from Mimesis Law about the ACLU:

How different things are now, when the ACLU is at the head of the movement to restrict our rights. When a public university expels college students for saying something racist, the ACLU applauds. And when the federal government proposes a law to criminalize revenge porn, it’s down to party.

According to the civil rights advocates of today, one little tweak – a mens rea component – is all that’s needed to make the law constitutionally kosher. Never mind that revenge porn is speech. Never mind that it doesn’t fall into a category of exempt speech and is therefore constitutionally protected. Revenge porn is bad, and the ACLU opposes bad things, especially trendy bad things that intersect with feminism.

A lot more there, but the ACLU's complicity with rights suppression is of a piece with their increasingly liberal — not in the older sense — political outlook. I stopped giving to them years ago for this very reason.

Ezra Klein Doesn't Understand Libel Law

Ezra Klein has a penchant for being spectacularly ignorant and wrong, but is nevertheless unafraid to opine on such subjects, viz. healthcare. A couple days ago I encountered a typing of his which purported to make the case that Peter Thiel's funding of lawsuits against Gawker is a bad thing, because, money:

Billionaires might have the resources to fund endless lawsuits that bury their media enemies beneath legal fees, but that doesn't mean they should use that freedom. There's plenty that billionaires can do that they shouldn't, and the more frequently and gleefully they cross that line, the likelier they are to eventually lose the ability to cross it.

But of course, this would not be possible if Gawker didn't have journalistic standards that would make a whore blush. Klein makes the reasonable point that at one time, we did not allow third parties to finance lawsuits — that practice is known as champerty, and was forbidden under the old English common-law regime. But as even Klein admits, citing Walter Olson (all emboldening mine):

...[T]he law used to bar unrelated third parties from paying someone else to engage in litigation and financing a lawsuit in exchange for a share of the damages.

But those laws have fallen out of favor over the past 50 years, in part because lawyers began to see easy access to the courts as being in the public interest. This was driven in part by the rise of public interest litigation — think, for example, of an environmental group finding a third-party plaintiff to sue a company to stop an environmentally sensitive development project.

 So live by the sword, die by the sword, as it were. But so far, at least, all of Klein's perceived threats to Gawker are entirely illusory, or caused by their own sleazebag tendencies. I have a hard time crying for them.

Update 2016-05-30: Comes an excellent summary of why this is a nothingburger, or at least, why the broad public treats it so, by Cathy Young, with many examples of why Gawker is ragingly hypocritical here.

Law Profs Tear Into ALI Draft Rape Statutes

Via @justthoughts19, a long-for-a-blog-post, short-for-legal-analysis look at the American Law Institute's recent proposed changes for their model rape statutes over at Community Of The Wrongly Accused. It raises a lot of the same points I did back when I looked at it in January, while adding a great number of new ones. It starts by noting the turning tide against "overcriminalization", which makes a mockery of the ALI's parallel effort at sentence reform by creating vast new territories of crime:

To understand the draft, please consider a most common behavior in the following hypothetical: Person A and Person B are on a date and walking down the street. Person A, feeling romantically and sexually attracted, timidly reaches out to hold B’s hand and feels a thrill as their hands touch. Person B does nothing, but six months later files a criminal complaint. Person A is guilty of “Criminal Sexual Contact” under proposed Section 213.6(3)(a).

How can this be? The draft explains:

Section 213.0(5) defines “sexual contact” expansively, to include any touching of any body part of another person, whether done by the actor or by the person touched. Any kind of contact may qualify; there are no limits on either the body part touched or the manner in which it is touched…. (Discussion Draft No. 2, Substantive Material, at 31).

The offense arises because Person A failed to obtain the draft’s requisite prior “positive agreement” to the “sexual contact.” Section 213.0(3). The draft repeatedly “makes clear that when a complainant’s behavior has been passive—neither expressly inviting nor rebuking the defendant’s sexual advances, that behavior cannot be considered sufficient to show affirmative permission.” (Discussion Draft No. 2, Substantive Material, at 54) Person A’s guilt is absolute because, “feeling romantically and sexually attracted” and feeling “a thrill as their hands touch,” Person A has no defense against the accusation that the touch included the “purpose of sexual gratification… or sexual arousal.” Section 213.0(5).

Simply put, there is no "safe harbor" here:

At every stage of every physical relationship, the “perpetrator” is at risk with no safe harbor of any type. If the initiator got positive agreement “sufficient to show affirmative permission” (Discussion Draft No. 2, Substantive Material, at 54) to initiate a kiss, the initiator is still at risk because the accuser can always counter by asserting, “I didn’t say you could kiss me that way.” If the initiator got positive agreement “sufficient to show affirmative permission” and did the kiss the right way, the initiator is still at risk with the next identical kiss because, “I didn’t say you could kiss me twice.” The draft acknowledges that its standard “requires the fact finder to focus on the existence of consent regarding each of the disputed sex acts.” Id. and Section 213.0(3).

Objectors to the foregoing analysis might say that prosecution of these offenses and the other examples provided throughout this memorandum would surely be declined or dismissed, but that would require an assumption that every prosecutor, judge, and jury in the country would ignore the Black Letter Law endorsed by ALI.

And, they note, child custody, political battles, and divorces all provide incentives to manufacture this kind of specious and unprovably false charge. "None of this is inadvertent or the result of loose drafting," they continue:

To the contrary, the intentionality of the draft ... is to create very expansive statutes and standards with a 'default position of overcriminalization.... The draft also acknowledges that it is not reflecting any existing social norm or consensus about behavior that should be deemed so extreme as to warrant criminal sanction. Instead, it clearly states that its intention is to coerce conformity to its own choice of new norms for behavior....

 The draft also criminalizes sexual interactions between mental health professionals and their patients, something that hitherto was merely a violation of ethical standards. And then there's the dramatic expansion of penalties for existing crimes:

In addition to creating new offenses, other offenses are elevated up to and including life imprisonment for “aggravating factors.” For example, Section 213.8 elevates rape to the level of first degree murder if the rape occurs in conjunction with a commercial sex act. Section 213.1(1)(b) elevates rape to the level of first degree murder if the rapist utilized a lookout. Many other elevations are found throughout the draft without any demonstration of need for even longer sentences in a prison system that is already over-burdened with geriatric prisoners.

It's hard to overstate just how horrible this is, but the signatories here have done a tremendous favor to the country with this essay. I look forward to more detailed analysis to come.

The Rehabilitation Of Stella Liebeck

I recently encountered a cartoon on Adhesive Comics addressing the Stella Liebeck/McDonald's coffee lawsuit of 1992, the short version of which being, Stella Liebeck, then 79, went to a New Mexico McDonald's and ordered a coffee. As a passenger in the parked car driven by her grandson, she removed the coffee lid to add sugar and cream, but spilled the 180F coffee all over her lap, which resulted in third degree burns on her legs, buttocks, and vagina. (Her sweatpants retained the hot coffee for 90 seconds against her skin, magnifying the damage.) She was hospitalized for eight days, and required skin grafts to repair the damage.

The problem with this retelling is that it gets a central fact wrong, as pointed out by Ted Frank's 2005 post at Overlawyered: the temperature of the coffee was then, and is still, industry standard.

Commenter cmdicely: the industry standard was to serve at a lower temperature

False: The National Coffee Association of the USA recommends serving at 180-190 degrees; another article suggests industry standard is 160 to 185 degrees. [Note: dead link removed.]

According to a Sep. 1, 1994 Wall Street Journal interview with Reed Morgan, Liebeck’s attorney, he measured the temperature at 18 restaurants and 20 McDonald’s, and “McDonald’s was responsible for nine of the twelve highest temperature readings.” Which means that, even before one accounts for conscious or unconscious bias in the measurements, at least three, and probably more (what about the other eleven McDonald’s?), restaurants were serving coffee at a higher temperature. And Starbucks serves at a higher temperature today, and faces lawsuits over third-degree burns as a result (Jan. 2, 2004).

This storage temperature of 180F is still recommended today by the National Coffee Association of the USA.  Moreover, a quick test yesterday on my home coffee maker shows a temperature of 175F:

All of which is to say, the entire basis for Liebeck's suit was false. McDonald's coffee was well within accepted norms of how hot coffee should be. They didn't spill her coffee. The only reason we are talking about this now is that Liebeck was a sympathetic plaintiff; we know this because a subsequent similar case, McMahon v. Bunn Matic Corp., went the other way, and for exactly the reasons described.