February 2013 – Sheila Kennedy

Two Sides of the Issue

The question of DNA testing is evidently coming before the Supreme Court this year. The issue is whether taking DNA from someone who has not been convicted of a crime is a violation of that person’s constitutional right to privacy, to bodily integrity.

You would think that a committed civil libertarian would be opposed to this practice, and perhaps if I knew more about the various situations in which the DNA is collected, and the arguments against its use, I would be. But I am very conflicted.

Unlike fingerprints, which are notoriously unreliable, DNA samples analyzed correctly are accurate. Because they are accurate, they prove innocence as well as guilt–DNA evidence has exonerated literally hundreds of people serving time for crimes they did not commit. It has saved countless others the trauma and expense of trials.

Furthermore, the procedures used to collect DNA are not particularly invasive. Typically, a quick swab of the inside of one’s cheek is all that is required–no more time-consuming than rolling fingers in ink and placing them on a surface capable of accepting the transfer, and barely more intrusive.

That said, there’s a legitimate concern that information from DNA and other identity markers can be abused. An effort to collect DNA from the citizenry at large would constitute serious overreach; it would tempt unethical officials to misuse the information, and identity thieves to steal it.

But what about routinely taking DNA samples from people who are arrested? The argument is that a national DNA bank would allow authorities to solve crimes like rape much more quickly, arguably preventing perpetrators from committing additional crimes before getting caught.

The 4th Amendment was crafted long before modern technology; we have to look to its purpose to determine how it should apply to these modern scientific marvels at our disposal. If taking someone’s DNA is a “search,” what is the probable cause, the legal justification, for that search? Can an arrest for some minor infraction provide that justification? Probably not.

I welcome comments and lessons from readers who know more about this issue than I do, because I see both sides of the argument. The positive results of expanded testing would seem to outweigh the negatives, but–especially in Constitutional law–the ends cannot justify otherwise forbidden means.

There are some very good lawyers who comment on this blog from time to time. I need your help now! What am I missing?

Comments

Sauce for the Goose

Yesterday’s post about the effort to expose the “reasoning” behind Senate Bill 371 got me thinking about equal treatment and its notable absence from other brilliant proposals currently wending their way through Indiana’s legislative process. (As you may recall, SB 371 “protects” women who want prescriptions for abortion pills, and the proposed amendment would similarly have “protected” men wanting pills for erectile dysfunction.)

For example, what would a more balanced approach mean for the bill requiring drug testing of welfare recipients?

So far, the arguments against that measure have been boring–the typical logical, evidence-based objections that routinely fail to persuade our lawmakers. The Indiana Coalition for Human Services, for example, has pointed out that Florida implemented such a program and found it to be ineffective and costly (only 2% tested positive). Others have noted that the available tests are not well-suited for a “pass/fail” situation. Legislative Services estimates the first-year cost to be 1.2 million, much more than is likely to be saved. Etcetera.

Wrong arguments! Logic has rarely prevailed at the Statehouse, and cost-effectiveness is not a concept embraced by our elected culture and class warriors.

So I say, pile on! Not only should TANF recipients be tested, so should all the other welfare moochers who are enriching themselves at taxpayers’ expense. Let’s start with corporate welfare, with the beneficiaries of crony capitalism–the coal-gasification boondoggle,the business enterprises that have persuaded lawmakers to grant them favorable tax treatment, the owners of sports teams we subsidize, and those like ACS that are making big bucks providing services like parking meters–taking a major chunk of the money that the city would otherwise have available for public purposes.

Perhaps we could require drug testing as a condition of getting an education voucher. And let’s not forget all the elected officials–10,400 of them, thanks to Indiana’s archaic township system–who are suckling at the public you-know-what. In fact, we should test everyone paid with tax dollars–teachers, police officers, firefighters, clerks in the City-County Building…Surely, those of us whose tax dollars pay their salaries are entitled to know whether our money is going to substance abusers.

Proponents of drug testing for welfare recipients justify that proposal by pointing to the expenditure of tax dollars. By that logic, we should test everyone we are supporting or enriching with public funds.

What’s sauce for the goose ought to be sauce for the gander.

Comments

Fun with Trans-vaginal Probes….

It was only a momentary diversion, but yesterday the Indiana Senate debated a proposed amendment to the offensive bill requiring (among other things) that poor women wanting prescriptions for abortifacants undergo two trans-vaginal probes.

Here’s the relevant language:

“Before giving, selling, dispensing, administering, prescribing, or otherwise providing an erectile dysfunction drug to a man showing symptoms of erectile dysfunction, a physician licensed under IC 25-22.5 shall do the following:

(1) Examine in person the man showing symptoms of erectile dysfunction.

(2) Conduct a prostate examination or oversee a prostate examination by an individual who is licensed or certified in Indiana and whose scope of practice includes the conducting of a prostate examination.

(3) Document the following information on the patient’s medical records:

(A) The size of the patient’s prostate.

(B) Whether the patient is showing symptoms of benign prostate problems.

(4) Provide the following information to the man diagnosed with erectile dysfunction:

(A) A copy of the final printed drug label.

(B) The name and telephone number for the physician who prescribed the erectile dysfunction medication and information for follow-up care in the event of an adverse event described in section 2 of this chapter.

(c) A physician licensed under IC 25-22.5 who gives, sells, dispenses, administers, prescribes, or otherwise provides an erectile dysfunction drug to a man shall schedule a follow-up appointment with the man at approximately fourteen (14) days after prescribing the erectile dysfunction drug to:

(1) conduct a physical exam, including an electrocardiogram, to ensure that the man is healthy enough for continued sexual activity; and assess the degree to which the erectile dysfunction drug has aided in temporarily relieving the symptoms of erectile dysfunction.

(d) The physician described in subsection (c) shall make a reasonable effort to ensure that the patient returns for the follow-up appointment described in subsection (c), including recording in the patient’s medical records:

(1) the date and time of the follow-up appointment;

(2) a brief description of the efforts the physician and the physician’s staff took to ensure the patient’s return; and the name of the individual who performed the efforts.

There’s more, but you get the idea.

Gee–I wonder why this eminently reasonable amendment, motivated solely by concern for the health of the male patient, was voted down.

Comments

Perverse Incentives

I know this chart has probably been floating around the Internet for a while, but I recently came across it, and it really made me think.

The chart lists 30 major corporations, their profits for 2011, the amount of taxes each paid that year, and the amounts they paid lobbyists. A majority of those listed paid zero taxes on massive profits, thanks to various provisions of the tax code. Many of them actually got money back, again, courtesy of those same arcane provisions. Virtually all of them spent millions of dollars lobbying the federal government; in every case, the amounts spent to influence policy far exceeded the amounts paid in taxes.

What’s wrong with this picture?

There are often sound reasons for using the tax code to encourage behaviors that benefit the greater society. If we want more energy, for example, and we recognize that the costs of exploration and the risk of coming up dry are high, it makes sense to provide a tax incentive to ameliorate that risk. If we want businesses to modernize, to invest in equipment that will make them more productive, offering them the ability to write off those investments over the useful life of the equipment is reasonable. There are many other examples.

The problem comes when the incentives bear no reasonable relationship to the behaviors they are intended to encourage–when those well-compensated lobbyists manage to persuade lawmakers to favor their clients by inserting special provisions in the law or special treatment in the tax code. In the case of oil and gas, for example, companies have not only benefitted from obscenely favorable tax provisions, but have negotiated leases of public lands on terms that have been widely criticized as giveaways. Here in Indiana, Leucadia–a politically well-connected energy company–will benefit from a 30-year agreement with the state that effectively shields the company’s new coal gasification plant from unfavorable market conditions.

Leucadia is hardly an isolated example. There’s a reason someone coined the term “crony capitalism.”

The well-connected and powerful have always been able to influence policy. To a certain extent, it’s an unavoidable aspect of human society. But in 21st Century America, we are dangerously close to corrupting the system, eviscerating checks and balances, and institutionalizing a caste system. Recent studies have documented America’s depressing loss of social mobility. Headlines routinely report the self-dealing of Wall Street bankers and financiers, along with the outrageous salaries and bonuses that bear no relationship to their performance. Jack Abramov, the disgraced lobbyist whose name has become synonymous with K-Street and Washington deal-making, is trying to rehabilitate his reputation in interviews sharing “chapter and verse” of influence-peddling in the nation’s capital, and the picture he paints is not pretty.

Local business-people, shop-owners, mom-and-pop enterprises and other middle-class Americans go to work every day, follow the rules, and pay their taxes when due. They don’t have agents working the halls of the legislature to get them special deals. They don’t have hundreds of thousands of dollars to contribute to Super-Pacs, and Citizens United didn’t free them to donate megabucks to buy a Congressman or two.

Shouldn’t the major corporations that are profiting so handsomely also be paying taxes to the country that makes those profits possible? Those companies depend upon workers educated in our public schools. They rely on our courts to enforce their contracts. Their trucks drive on roads paved by American taxpayers. Tax-supported police and fire-fighters protect their warehouses. Why do they prefer to pay millions to lobby for special advantage rather than simply using that money to pay their fair share of the costs to maintain our physical and social infrastructure?

What are the incentives that lead those who are already rich and privileged to seek even more by gaming the system?

Comments

Deficits

I remain convinced that America has two deficits–one fiscal, and one informational. The economic deficit is important, but the deficit in basic understanding of the world we inhabit is arguably the bigger problem.

Case in point, as Steve Benen reports at Maddowblog: debates about the deficit.

As it happens, the budget deficit is getting smaller. In fiscal year 2010, which was President Obama’s first full fiscal year in office, the budget deficit was $1.3 trillion. In fiscal year 2013, the Congressional Budget Office projects the deficit will be $845 billion. That’s a 35 percent decrease in terms of dollars, and it’s even bigger—41 percent—if you are computing the deficit as a share of the GDP. The percentage drop is even bigger—roughly 50 percent—if you start from fiscal year 2009, which overlapped the final year of the Bush presidency and the first year of Obama’s.

The fact that the deficit is declining is not reason to ignore it, of course, but its size and trajectory are important factors–or should be–in any economic analysis, including proposals about appropriate measures to address it.

The problem is, when Bloomberg News commissioned a survey asking Americans whether they believed the budget deficit was growing or shrinking, just six percent answered the question correctly. Ninety-four percent had no clue. (Of the clueless, 62 percent actually thought the deficit was growing.)

So far as I know, Bloomberg didn’t ask a related question, of equal importance. It would be interesting to determine the percentage of Americans who could explain the difference between the deficit and the national debt.

For that matter, it would be interesting to know what percentage of our elected officials could correctly answer either of those questions.

Comments