Monthly Archives: August 2016

Breach of (Social) Contract

Thanks to ubiquitous smart-phone cameras, social media and Black Lives Matter, the general public can no longer ignore accusations that officers in a number of police departments routinely use excessive force and engage in unconstitutional behaviors.  Investigations by the U.S. Justice Department—most recently in Baltimore— confirm persistent, systemic practices that violate the rights of the citizens we expect police to serve and protect.

For a year following the death of Freddy Gray, the Justice Department monitored the Baltimore police department. The results of that investigation were unambiguous: unconstitutional practices included disproportionate rates of stops, searches and arrests of African-Americans, and excessive use of force against juveniles and people with mental health disabilities. The report attributed these practices to “systemic deficiencies” in training, policies, and accountability structures that “fail to equip officers with the tools they need to police effectively.”

A DOJ investigation of police in Ferguson, Missouri, reached a similar conclusion, finding a “pattern and practice” of discrimination against African-Americans that targeted them disproportionately for traffic stops, use of force, and jail sentences.

Baltimore and Ferguson are hardly unique.

As a practical matter, widespread distrust makes policing infinitely more difficult. Good policing depends upon access to reliable information and co-operation with community leaders; avenues of communication dry up when police are seen as enemies rather than protectors.

Far more troubling than the practical consequences of unprofessional behavior, however, is the damage done to America’s social fabric by what can only be seen as a breach of our most fundamental social contract.

The Enlightenment philosophers who influenced America’s founders proposed a trade of sorts; we call that trade the “social contract.” Citizens would give government the exclusive right to exercise coercive force; in return, government would use that force to protect individual rights—to provide for a society of “ordered liberty,” within which the strong could not prey with impunity on the weak.

We Americans argue constantly about the proper role of government, but there is no serious debate about the state’s obligation to provide for the public safety, or about the right of all citizens to expect equal justice before the law.

When government fails to keep its part of that essential bargain, when it breaches the social contract, it damages the bonds of citizenship and undermines the rule of law.

An old lawyer once told me that there is only one legal question: what should we do? How can our dysfunctional police departments go about changing entrenched, perverse cultures? A few suggestions, drawn from the research literature:

  • Training is key—and currently very uneven. A number of police departments across the country have instituted effective training programs that help individual officers understand implicit bias, calibrate their responses to the magnitude of the threats encountered, and learn techniques that calm, rather than exacerbate, confrontations. Those programs need to be replicated everywhere, but especially in troubled departments.
  • Policies governing police activities need to be clear, effectively communicated to the rank and file, and fairly and strictly enforced. Those policies should also be vetted by lawyers familiar with the Constitution and especially the jurisprudence of the First and Fourth Amendments.
  • Collection of accurate, relevant data is critical. Data is the means by which we measure progress, the standard against which we determine the appropriateness of behavior. It allows self-evaluation, and its public availability also allows other stakeholders to hold police accountable. That data should allow the department to identify problematic officers and intervene before they cross a serious line.
  • Every police department should have a transparent complaint process accessible to citizens, and complaints against police officers should not be evaluated solely by their peers. (In Baltimore, this was evidently a source of considerable—and understandable—distrust.) Complaints should be reviewed by disinterested parties, and policies prohibiting retaliation for filing a complaint should be strictly enforced.

In the long term, departments should focus more attention on the way they recruit and select new police officers. The recruiting process should include psychological examinations to weed out men and women who are likely to abuse authority, or who are otherwise unsuited to the stresses of the profession. And it should go without saying—so I’ll say it—departments should aim for recruits who are representative of the populations they will serve. That sounds easier than it is, but the results are worth the effort.

If Americans still believe in e pluribus unum—if we still want to unite, rather than divide, our many communities—fixing our policing problem is an essential first step.

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Socializing Risk, Privatizing Profits: Big Pharma Edition

My friend Fran Quigley has an important article in Truthout about the skyrocketing prices of lifesaving drugs. The current outrage over a steep hike in Epipen prices makes it particularly timely.

As Fran notes, We the Taxpayers provide research dollars to support drug development (socializing the risk that any particular line of research will hit a dead-end). Big Pharma spends more on marketing than on R and D, charges what the market will bear and then some for the drugs it does develop–and pockets the profits.

It is hard to overstate the level of dysfunction in the US medicines system. The headline-producing greed of “pharma bro” Martin Shkreli was just the most dramatic example of a pharmaceutical industry whose patent monopolies grant it immunity from market forces while its political clout shields it from government regulation. Taking full advantage of taxpayer-funded research, drug corporations make record profits, even by Fortune 500 standards, and pay their CEOs as much as $180 million a year. Those corporations spend far more on incessant marketing to consumers and physicians than they do on research — part of the reason they have largely failed to develop new medicines that address the most deadly illnesses and diseases.

The United States is alone among western democracies in not negotiating drug prices. Medicare and Medicaid represent huge portions of pharmaceutical company customers, but Congress has consistently defeated measures that would allow government to use its leverage to bargain on prices. As a result, as Fran points out, “One in every five US cancer patients can’t afford to fill their prescriptions, and many seniors on Medicare are forced to cut their pills in half to stretch their supply.”

Congressional reluctance to push back against inflated prices and unwarranted price hikes can be attributed to politicians’ disinclination to kill the goose that lays the golden egg: each year, Big Pharma ranks among the biggest spenders on both lobbying and campaign contributions.

A ballot initiative in California–the Drug Price Relief Act– is taking aim at this status quo.

The initiative, recently certified by the California Secretary of State as Proposition 61, calls for state agencies to be blocked from paying more for a prescription drug than the price paid by the US Department of Veterans Affairs. Unlike the Medicare program, the VA is free to negotiate the price it pays for drugs and as a result, pays as much as 42 percent less than Medicare and usually significantly lower than state Medicaid programs. The primary force behind the ballot measure, the AIDS Healthcare Foundation, says the law could save Californians hundreds of millions of dollars a year in lower government costs and lower individual co-payments. The California Legislative Analyst Office says it cannot provide an accurate estimate of the savings, concluding that it is impossible to predict how pharmaceutical companies would react to this first-ever restriction on state drug spending…A July 2016 poll conducted by the initiative campaign, Californians for Lower Drug Prices, showed over two-thirds of voters supporting the ballot measure.

Predictably, the measure is being opposed by the pharmaceutical industry, which is pouring big bucks into a campaign against it. It will be very interesting to see what happens–both in other states and nationally–if the ballot measure succeeds.

There’s an old saying that pigs get fed, but hogs get slaughtered. California voters will decide which category best fits Big Pharma.

Stay tuned….

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A Political “To Do” List

Pretty much everyone I know is absolutely obsessed with this bizarre Presidential race. In one sense, that’s good—people paying attention are unlikely to break for Trump. But the intense focus on the national race means that the 2016 down-ticket elections aren’t getting the attention they deserve—not just the Senate, which is critically important, but also the House and especially state-level offices. A decent-sized Hillary victory is likely to tip the Senate. The sixty-four thousand dollar question is: If Hillary wins big, could Democrats take the House?

Conventional wisdom says no. After the 2010 census, Republicans dominated state governments in a significant majority of states, and they engaged in one of the most thorough, most strategic, most competent gerrymanderings in history. If you have not read the book “Ratfucked”—buy it and read it. (And yes, that’s the real name of the book.) The 2011 gerrymander did two things: as the GOP intended, it gave Republicans 247 seats in the House of Representatives to the Democrats’ 186. That’s a 61 vote margin– despite the fact that nationally, Democratic House candidates received over a million more votes than Republican House candidates.

But that gerrymander did something else; it destroyed Republican party discipline. It created and empowered the 80+ Republican Representatives who comprise what has been called the “lunatic caucus” and made it virtually impossible to govern. That unintended consequence has now come back to haunt the GOP and frustrate the rest of us.

The structural advantage created by the gerrymander was big enough to put the House out of reach for Democrats in any normal Presidential year. But this is not a normal Presidential year.

The author of “Ratfucked,” says that GOP control of the House was designed to withstand a Presidential-year loss “up to and including” 5% nationally. If Hillary Clinton were to win by more than 5%, Democrats could theoretically swing enough seats to control the House. Obviously, that depends on turnout, on the political culture of various districts, and on the quality of individual candidates, but theoretically, at least, it’s do-able.

As endlessly fascinating as the current electoral horse-races are, we need to pay more attention to the systemic problems that are at the root of our increasingly undemocratic electoral system; if we don’t address those, we will never regain a level playing field, and there will be no incentive for the Republican Party to grow up and abandon its current reliance on appeals to racial grievance. Both America and the Democratic Party need an adult, responsible center-right opposition.

Gerrymandering is the practice of partisan redistricting. The desired outcome is as many safe districts as possible: Pack as many members of the opposition party into as few districts as possible, and create less-lopsided but also safe districts for the party in charge.

Safe districts breed voter apathy and reduce political participation. Why get involved when the result is foreordained? Why donate to a sure loser? For that matter, unless you are trying to buy political influence for some reason, why donate to a sure winner? Why volunteer or vote, when it doesn’t matter?

It isn’t only voters who lack incentives for participation: it becomes increasingly difficult to recruit credible candidates to run on the ticket of the “sure loser” party. The result is that in many of these races, voters are left with no meaningful choice.  We hear a lot about voter apathy, as if it were a moral deficiency. Political scientists suggest that it may instead be a highly rational response to noncompetitive politics. People save their efforts for places where those efforts count, and thanks to the increasing lack of competitiveness in our electoral system, those places may NOT include the voting booth.

In a safe district, the only effective way to oppose an incumbent is in the primary–and that generally means that the challenge will come from the “flank” or extreme. In competitive districts, nominees know that they have to run to the middle in order to win a general election. When the primary is, in effect, the general election, the battle takes place among the party faithful, who also tend to be the most ideological voters. So Republican incumbents will be challenged from the Right and Democratic incumbents will be attacked from the Left. Even when those challenges fail, they leave a powerful incentive for the incumbent to placate the most rigid elements of each party. Instead of the system working as intended,  we get nominees who represent the most extreme voters on each side.

Lawmakers who are elected from safe deep-red or deep-blue seats respond almost exclusively to incentives from their districts. They are perfectly willing to ignore their party’s leadership if they think that will get them points back home, or help them avert a primary challenge. As a result, the ability to demand party discipline is a thing of the past. (Just ask John Boehner or Paul Ryan, if you don’t believe me.)

Even worse– reduced participation in the political process, and the feeling that the system has been rigged, diminishes the legitimacy of subsequent government action. Is a Representative truly representative when he/she is elected by 10% or 20% of the eligible voters in the district?

It isn’t just gerrymandering. Money in politics has always been a problem; Citizens United unleashed torrents of dark money, prompted the creation of SuperPacs, and added to the perception that America is no longer a democracy, but an oligarchy.

Particularly worrisome, at least to me, are the persistent efforts to suppress the vote of likely Democratic constituencies. Indiana has the dubious distinction of being the first state to pass a voter ID law. Voter ID, as you know, was justified as a measure to prevent in-person voting fraud—a type of vote fraud that is virtually non-existent. Voter ID laws are really intended to discourage poor people and people of color from voting.

The Voter ID law recently struck down in North Carolina is a case in point: as the court noted, photo IDs most used by African Americans, including public assistance IDs, were removed from the list of acceptable identification, while IDs issued by the Department of Motor Vehicles—which blacks are less likely to have—were retained. Cutting the first week of early voting came in reaction to data showing that the first seven days were used by large numbers of black voters. Other changes made voting harder for people who had recently moved, and blacks move more often than whites.

Indiana not only has Voter ID, we are also one of only two states where the polls close at six, making it more difficult for working people to cast a ballot. We need to change these and other systemic disincentives to democratic participation.

  • We need to work for a Constitutional Amendment overturning Citizens United.
  • We need to establish election day as a national holiday.
  • We need to work for redistricting reform, so that voters choose their representatives instead of allowing Representatives to choose their voters.
  • We should also look at alternatives to the way we conduct primaries, and
  • We need to investigate ways to mitigate the effects of residential sorting.

All of those reforms would help reinvigorate American democracy.

Of course, if Donald Trump becomes President, none of that will matter. The world as we know it won’t be the world as we know it; Canada will probably build the wall and pay for it, and I plan to volunteer for that mission to colonize Mars.

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Smoking and Drinking

Have you ever wondered about the disparity in the way the law treats alcohol, tobacco and marijuana?

As any police officer will attest, a nasty drunk is far more dangerous than someone zoned out on “weed.” As the scientific literature will confirm, tobacco is many times more harmful than marijuana. Not only has the belief that marijuana is a “gateway drug” proved bogus, but for adults, it is less harmful than either smoking or excessive ingestion of alcohol. (No one has ever died of a marijuana overdose, although if your preferred method of indulging is brownies, I suppose the resulting obesity might get you.)

People with addictive personalities will abuse whatever is at hand–alcohol, drugs, even glue. Should we outlaw glue?

The history of America’s war on drugs is too labyrinthian and too racist to recount here, and there are plenty of books and articles on the subject if you are interested in the whole sordid story. Suffice it to say that our mindless war on weed has made the once-profitable cultivation of hemp illegal, prevented study of marijuana’s medicinal value, and not-so-incidentally ruined countless lives (mostly African-American; black people are almost four times more likely to be arrested for marijuana possession than whites, even though both groups use the drug at roughly the same rate.).

But attitudes are finally changing.

In 1969, according to the Pew Research Center, 84 percent of Americans thought the drug should be illegal; by 2015, that number had fallen to 44 percent.

After Colorado became the first state to legalize marijuana, policymakers began to seriously consider a number of issues–especially pot’s potential to generate tax revenue.

Legalization raises a number of questions with policy implications. For example, how can it be taxed? In 2015, Colorado raised $135 million in taxes and fees from legal sales. Another important question: Will states that stop arresting people for selling or having marijuana save money on policing and reduce their incarceration rates? Some 620,000 people were arrested for marijuana possession in 2014, according to the FBI; young minority men were disproportionately targeted. Will more children take to smoking weed? As laws relax and the stigma associated with marijuana recedes, people may use more.

A study from Australia suggests some answers to those questions. The authors looked at what consequences we might expect if marijuana were regulated like alcohol and sold to people above the age of 21. They extrapolated their analysis to include the United States, a country with similar cultural behaviors and economies. Here are some of their findings:

  • The U.S. could raise between $4 billion and $12 billion annually by taxing legal marijuana. These numbers are based on a tax levy of about 25 percent, which is what the state of Colorado charges.
  • When people have more access to marijuana (through legal and illegal means) more people use it.
  • Currently, 17 percent of Australians say they do not use cannabis for fear of legal repercussions; 90 percent of those say that access is not the reason.

Access is evidently not a problem for people in either country; several years ago, an American study found that teenagers in Maryland could obtain illegal marijuana (and other drugs) much more easily than they could obtain legal but regulated alcohol. Legalization and regulation similar to that currently in place for liquor stores would probably reduce today’s easy availability.

The authors determined that a tax rate of 25% wasn’t high enough to incentivize a black market. One of the (many) negative consequences of drug prohibition is the fact that it makes an illegal market profitable.

In the U.S., tobacco and alcohol interests have powerful lobbies, so those substances are legal even though they do far more harm than marijuana.

Just to be clear, I don’t advocate prohibition for any of these; we’ve seen how well that works. Substance abuse is a public health problem; it shouldn’t be a matter for the criminal justice system.

Wouldn’t it be nice if we based public policy on evidence and analysis, rather than moralism and money?

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Uncharted Territory

If this political year feels unprecedented, it’s because it is. Even Nate Silver, oracle of the numbers, admits to its abnormality.

In a normal presidential election, both candidates raise essentially unlimited money and staff their campaigns with hundreds of experienced professionals. In a normal presidential election, both candidates are good representatives of their party’s traditional values and therefore unite almost all their party’s voters behind them. In a normal presidential election, both candidates have years of experience running for office and deftly pivot away from controversies to exploit their opponents’ weaknesses. In a normal presidential election, both candidates target a broad enough range of demographic groups to have a viable chance of reaching 51 percent of the vote. This may not be a normal presidential election because while most of those things are true for Clinton, it’s not clear that any of them apply to Trump.

Silver’s acknowledgement of the “not normal” elements of this particular election came in an essay in which he explored the possibility of a landslide for Clinton. We haven’t had any landslides for quite some time–since Reagan, to be specific–and one of the factors militating against one is the highly partisan divide of the American electorate.

These patterns [close elections versus those won by large margins] seem to have some relationship with partisanship, with highly partisan epochs tending to produce close elections by guaranteeing each party its fair share of support. Trump’s nomination, however, reflects profound disarray within the Republican Party. Furthermore, about 30 percent of Republican or Republican-leaning voters have an unfavorable view of Trump. How many of them will vote for Clinton is hard to say, but parties facing this much internal strife, such as Republicans in 1964 or Democrats in 1972 or 1980, have often suffered landslide losses.

An electoral college vote of 270 or more is all that is needed to elect Clinton. The value of a landslide–or anything close–is that it would sweep in down-ticket candidates. Conventional wisdom says a decisive Clinton win will give the Democrats the Senate, but it will take a massive sweep to wrest control of the extensively gerrymandered House.

A big win wouldn’t only give Hillary a legislative branch she could work with. It would also help Democrats chip away at the Republicans’ huge advantage in the nation’s statehouses. (We might even narrow the gap here in Indiana, where the GOP currently enjoys a super-majority.)

A girl can dream.

Given the intense hatred of Hillary Clinton that has been carefully nurtured by Republicans over the years, there is probably a ceiling to her support, even against the unthinkable disaster that is Donald Trump–a ceiling that will prevent her from winning a landslide. And while it does look unlikely that Trump can rebound from his self-inflicted wounds, the last thing we need in this bizarre election cycle is complacency.

If you’ve read this far, please check to be sure that your voter registration is current and correct–and stay healthy at least through November 9th……

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