politics

Japan’s 99.8% criminal conviction rate

history, law, politics / /

From Hiroshi Matsubara’s “Trial By Prosecutor” (Legal Affairs: March/April 2003):

In 1990, a retired high-court judge gave an influential speech that indicted the criminal justice system [of Japan], citing the nation’s 99.8 percent conviction rate as evidence that prosecutors, not courts, decide the fate of criminals. Criminal trials, he declared, are merely “formal ceremonies” en route to conviction. …

Prosecutors are vested with tremendous authority, and courts routinely defer to prosecutorial judgment. The prosecutor, in collaboration with law enforcement, is expected not only to enforce the laws but to decide how to use them to serve the public good. He is given far broader powers of investigation than his American counterpart, including the ability to search, seize, and interrogate without the interference of defense counsel. Justice in Japan is often equated to cooperating with the prosecutor. One of the earliest changes made by legislators to the American legal framework was the addition of a “societal duty” to submit to questioning upon arrest.

Because of their importance in the Japanese system, prosecutors have an overwhelming need to be right. A single loss can end their career. Prosecutors nearly always go to trial with a confession in hand, meaning that criminal courts are rarely asked to decide guilt or innocence. At trial, the counsel for the defendant usually spends his time trying to demonstrate the client’s contrition, his chances of being rehabilitated, and the low risk he poses to society – factors that affect the sentence, not the verdict.

Even in contested cases, the outcome for defendants is bleak. In American federal courts, about one-fifth of all criminal defendants plead innocent – and of those, one-third are subsequently convicted (state numbers indicate a similar trend). Meanwhile, in Japan, despite the fact that only 7 percent of defendants choose to contest their prosecution, the conviction rate in such instances is still about 99 percent. …

But in the aftermath of this unlikely victory, the system turned on Mainali. A higher court stayed his acquittal and ordered him detained while the finding at trial was reconsidered. In the United States, where defendants are protected against double jeopardy, Mainali’s acquittal would have ensured that he went free. Japan has no such standard: The opportunity to appeal a criminal acquittal is just one more weapon in the prosecutorial arsenal. Critics have pointed out that the stigma of losing a case puts prosecutors under great pressure to appeal each and every acquittal. In the notorious Kabutoyama case, prosecutors spent 21 years unsuccessfully appealing not-guilty verdicts handed down against a teacher charged with killing one of her students. …

Japanese prison terms, for both violent and nonviolent offenses, are shorter than those for comparable crimes in the United States. Murder, for instance, can carry a sentence of as little as three years. What is indisputable, however, is that in failing to emphasize procedural justice – a system based on rights and vigorous advocacy – Japan entrusts the integrity of its system to the good judgment of its prosecutors.

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The way to trick smart people

commonplace book, language & literature, politics, science, security, technology / /

From Paul’s “The easiest way to fool smart people“:

There’s a saying among con-men that smart people are easier targets, because they don’t think they can be conned.

I’m not sure if that’s true, but there’s one scam that’s almost guaranteed to make smart people switch off their brains and reach for their wallets. It’s a trick that’s used so pervasively in our culture, that once you become aware of it, you start to see it everywhere. …

Most smart people have a hidden weakness and it’s this – they’re absolute suckers for anything that sounds clever.

As soon as you start hitting people with technical terms, fancy graphs, famous names and the like, you’ll immediately increase your credibility. If they’re smart, they’re even more likely to find themselves nodding in agreement. Many intelligent people would rather cut off a finger than admit they don’t know what you’re talking about. …

Even better, they can pretend to be teaching their audience something important. A person who was previously completely ignorant about quantum physics now feels as if they understand something about it – even if that something is absolute baloney. The audience have been fed ideas they’ll now defend even against someone who’s a real expert in that subject. Nobody likes to be told that something they’ve been led to believe is wrong. …

Consultants behave this way because they know that’s how to get a sale. Bombard people with clever-sounding stuff they don’t really understand, and they’ll assume that you’re some kind of genius. It’s a great way of making money.

Stock analysts, economic forecasters, management consultants, futurologists, investment advisors and so on use this tactic all the time. It’s their chief marketing strategy for the simple reason that it works.

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Social network analysis by the NSA

law, politics, tech in changing society, technology / /

From John Diamond and Leslie Cauley’s “Pre-9/11 records help flag suspicious calling” (USA TODAY: 22 May 2006):

Armed with details of billions of telephone calls, the National Security Agency used phone records linked to the Sept. 11, 2001 attacks to create a template of how phone activity among terrorists looks, say current and former intelligence officials who were briefed about the program. …

The “call detail records” are the electronic information that is logged automatically each time a call is initiated. For more than 20 years, local and long-distance companies have used call detail records to figure out how much to charge each other for handling calls and to determine problems with equipment.

In addition to the number from which a call is made, the detail records are packed with information. Also included: the number called; the route a call took to reach its final destination; the time, date and place where a call started and ended; and the duration of the call. The records also note whether the call was placed from a cellphone or from a traditional “land line.” …

Calls coming into the country from Pakistan, Afghanistan or the Middle East, for example, are flagged by NSA computers if they are followed by a flood of calls from the number that received the call to other U.S. numbers.

The spy agency then checks the numbers against databases of phone numbers linked to terrorism, the officials say. Those include numbers found during searches of computers or cellphones that belonged to terrorists.

It is not clear how much terrorist activity, if any, the data collection has helped to find.

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Colonialism at its most obvious

history, language & literature, politics / /

From Adam Goodheart’s “The Last Island of the Savages” (The American Scholar, Autumn 2000, 69(4):13-44):

Then [in the 1860s], suddenly, the hostilities [by the Andaman Islanders] ceased almost entirely. There was one cataclysmic battle – fifteen hundred naked warriors came charging out of the jungle, straight up against the guns of a British warship, with predictably ghastly results – and after that, only a few desultory clashes. Quite unaccountably, the natives started wandering out into the settlement and behaving like friends: odd, bright-eyed little people whose merry air suggested that they had forgotten there had ever been bloodshed. The Andamanese would ask for gifts (coconuts, bananas, and, before long, tobacco and liquor) and make amiable sport with the British soldiers, plucking at the brigadesmen’s red coats and pulling on their whiskers. They even began coming voluntarily to live in the “Andamanese Home,” an institution for their welfare that the British established on Ross Island.

But in some ways, their presence was now even more nettlesome than it had been before. The Andamanese had certain noteworthy talents, but few that could profitably be applied to the needs of a colonial settlement. They were excellent bow-men, amazingly proficient swimmers (some could even shoot arrows accurately while treading water), uncanny mimics, and skilled jungle trackers, able to communicate across miles of forest by banging out signals on the buttress roots of certain trees. So the British put them to use hunting down escaped convicts – a reasonable occupation, though hardly enough to occupy them full-time. A few of the natives were employed as nannies, since it was quickly noticed that they were remarkably affectionate with children, the Europeans’ as much as their own. Others were kept as objects of amusement in Port Blair households, to be dressed up and coddled – at least until their masters’ tours of duty ended, when they were left to fend for themselves. “The Government of [British] India,” one official noted approvingly, “[has] adopted a policy towards the aborigines of the Andaman Islands which has made them, above all races of savages, the most carefully tended and petted.” Here are some names given to Andamanese in the nineteenth century by the British, which I came across in various old documents: Topsy, Snowball, Jumbo, Kiddy Boy, Ruth, Naomi, Joseph, Crusoe, Friday, Tarbaby, King John, Moriarty, Toeless, Punch, Jacko, Jingo, Sambo, and Queen Victoria.

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Smallest state park in the USA

commonplace book, history, politics / /

From Gideon Lewis-Kraus’s “The Water Rush” (Oxford American):

Anywhere else, the four and a half acres of muddy, flat grass cross-hatched by asphalt paths and crowned by a green-pink-and-white gazebo would be the town park. Here in Berkeley Springs[, West Virginia], population 663, “the country’s first spa,” it is a state park. It is, in fact, the smallest state park in the nation. Along the embankment on the west side of the park is a camp of low-slung yellow-brick buildings that house the Berkeley Springs, font of the town’s hydrocentric entertainments. Besides the springs, the town’s attractions include antique malls, craft shops, acupuncturists, and a homeopathy museum.

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Soviet-style society & the US

politics / /

From Jim Marcinkowski’s “National Security: The Attack on the Constitution“:

Over the past 30 years, I have served this country in a variety of positions from the FBI to the CIA, and as a lawyer and a prosecutor …

We fought the Soviets and I fought the Soviets because they had a fatally flawed, intolerable system of government where (and think about this):

The government was always right and never apologized;

Any dissent was suppressed, ridiculed, banned or worse;

Secret prisons were denied and never acknowledged or spoken about;

The torture of captives (in Lubyanka) was condoned;

State incarceration was not subject to the checks and balances of a legal system;

Economic plans, like for oil, were established/determined in closed sessions between politicos, commissars and production managers, far outside public view, and where government claimed privilege in so doing;

Wages were set at the lowest common denominator, no matter what Bloc country you were in;

Government agents had access to your medical records, your library records, your telephone, and your e-mail.

A place where judicial power and judicial review were proclaimed concepts, but simply ignored in application;

Where criminal records of young adults were closed to all but the military;

Where a Constitution was a mere facade and ignored by state actors.

Any dissent, debate and protest were deemed unpatriotic;

The public media was bought, paid for, and provided by the state;

The military clandestinely and shamelessly influenced the national media and public opinion;

A place where wrong was declared right;

Where tapping a phone was like tapping a pencil;

Where lying was considered a patriotic skill;

The extraction of natural resources was paramount to any concern for the environment and the impact on the health of its people;

Where the use of “state secrets,” (those things embarrassing to the government) were confused with legitimate issues of “national security”;

A place where “secrecy” and “national security” were used to control debate;

Where legitimate secrecy, was subject to political use and abuse;

Where “legislators” were mere mouthpieces for and rubberstamps of whoever was in power;

Where you lived and died with the permission of the government;

A place where foreign policy was more important than domestic concerns;

Where fear was used as a political weapon and an acceptable means of control;

Where the best medical care was reserved for the influential;

Where wealth was concentrated in the top 5%;

A place where there was no middle class – just a small economic and political elite, and the working poor.

… Since 1995 the Republican Party and its friends in the American corporate structures that so vigorously contribute to and support them have – in the space of a decade – created in this country more than the beginnings of a system that this country spent 50 years trying to dismantle.

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Why it’s hard for prisoners to sue prison systems

history, law, politics, security / /

From Daniel Brook’s “The Problem of Prison Rape” (Legal Affairs: March/April 2004):

When inmates seek civil damages against the prison system, as [Roderick Johnson, a 35-year-old African-American who is suing the Texas Department of Criminal Justice] has done, they must prove not merely that prison officials should have done more to prevent abuse but that they showed “deliberate indifference” – that is, that they had actual knowledge that an inmate was at risk and disregarded it. Showing that a prison guard should have known is not enough, no matter how obvious the signs of abuse.

This standard was established by the Supreme Court in the 1994 case Farmer v. Brennan, in which a transsexual inmate imprisoned for credit card fraud sued federal prison officials for ignoring his rape behind bars. While the court affirmed that prison rape is a violation of an inmate’s constitutional rights and stated plainly that sexual assault is “not part of the penalty that criminal offenders pay for their offenses,” it set up formidable barriers to establishing the culpability of corrections staff. At the cellblock level, the “deliberate indifference” standard discourages prison guards from shining a light into dark corners. What they don’t know can’t hurt them.

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History & numbers on prison rape

history, law, politics, security / /

From Daniel Brook’s “The Problem of Prison Rape” (Legal Affairs: March/April 2004):

In his 18 months at [the maximum-security Allred Unit in Iowa Park, Tex.], [Roderick Johnson, a 35-year-old African-American who is suing the Texas Department of Criminal Justice] did time as the property of the Bloods, the Crips, the Mandingo Warriors, and the Mexican Mafia, all of whom forced him to have sex with their members. They also sold his services to other inmates, usually for between $5 and $10. (A cigarette in Allred goes for $1.50.) …

The prevalence of rape in prison is fearsome. Line officers recently surveyed in one southern state estimated that one in five male prisoners were being coerced into sex; among higher-ranking officials, the estimate was one in eight. Prisoners themselves estimated one in three. (Female prisoners are the victims of rape as well, though they are usually assaulted by male guards, not other inmates; the phenomenon of male-on-male prison rape is generally studied separately.) …

The traditional rationale for prison rape is the lack of women, but most psychologists consider this facile. They see prison rape mainly as a means by which people who have been stripped of control over the most basic aspects of their lives – when to eat a meal, take a shower, or watch TV – can reclaim some sense of power. As one Louisiana prisoner, Wilbert Rideau, wrote, “the psychological pain involved in such an existence creates an urgent and terrible need for reinforcement of [a prisoner’s] sense of manhood and personal worth.” Others believe that prisoners become rapists out of fear of becoming victims themselves; it’s a choice between becoming predator or prey. The psychologist Daniel Lockwood, in his study Prison Sexual Violence, calls this strategy “pre-emptive self-defense.” …

IN 1826, IN WHAT WAS LIKELY THE FIRST PUBLISHED MENTION of prison rape in the history of the republic, the Rev. Louis Dwight wrote that “Boys are Prostituted to the Lust of old Convicts” throughout the institutions he surveyed from Massachusetts to Georgia. Dwight, the founder of the Prison Discipline Society of Boston, a prison reform group, wrote that “Nature and humanity cry aloud for redemption from this dreadful degradation.” It was not until the 21st century, however, that the nation saw its first anti-prison-rape legislation.

Last year, Congress passed the Prison Rape Reduction Act, which allocates $60 million to support rape-prevention programs run by federal, state, and local corrections staff and to aid investigations and punishment of perpetrators. The bill, which enjoyed bipartisan support in the House and the Senate, also requires states to collect statistics on prison rape.

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A history of the public notice

business, history, law, politics / /

From Sasha Issenberg’s “On Notice” (Legal Affairs: July/August 2005):

In the Middle Ages, the Crown designated a half-dozen sites in London where a herald would read proclamations from the king. These announcements first found their way into print in 1665 when the London Gazette, considered the first English-language newspaper (at least as we now understand the term), began publishing. It was the Crown that put out the Gazette, and thus the newspaper was little more than a broadsheet filled with public notices.

In the 1690s, private competition reached the London newsstand. Yet even those newspapers that were not published directly by the government continued to seek its consent and imprimatur. In 1704, across the Atlantic, a newspaper called The Boston Newsletter hit the streets of the Hub; like many early American newspapers, it bore the slogan, “Published by Authority.” Though newspapers had ceased to exist merely for the purpose of publishing government decrees, they continued to run the notices as proof of the papers’ journalistic credibility. “Unlike in our day, it was looked at as an act of authenticity,” says Charles Clark, a professor emeritus of history at the University of New Hampshire who wrote about early American newspapering in a book called The Public Prints.

Sometimes these announcements appeared under the rubric “Proclamations for Royal Government,” Clark explained, but usually papers “just printed the notices in what we would think of as the news columns – even though that distinction is a bit of a stretch for those days. In many instances the notices constituted the news.” (Toward the end of the 18th century, according to Clark, newspapers also began to feature private-sector legal announcements: creditors demanding payment were popular. “The most frequent things,” Clark said, chuckling, “are men putting in notices: ‘My wife is leaving my bed and board. I shall no longer be responsible for her debt.’ “) …

In 1789, among the acts of the first session of the Congress was a directive to the secretary of state to publish all bills, orders, resolutions, and votes in at least three newspapers.

For its efforts at transparency, the fledgling government was rewarded with an increasingly suspicious press. During the 1790s, the Philadelphia-based Gazette of the United States made it clear that government would not be left to speak for itself through notices; the paper placed a correspondent in Congress. “He reported what he saw, not the official words,” Clark said. After the election of George Washington, the colonial press that had cuddled with government gradually became American media that sought to establish distance from it. In addition to soliciting the government for announcements, the press began to cover the government journalistically. …

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iSee: online map of CCTVs in Manhattan

law, politics, security, tech in changing society / /

From Patrick Keefe’s “Camera Shy” (Legal Affairs: July/August 2003):

One extralegal solution is a project called iSee. Launched several years ago, iSee is an online interactive map of the locations of surveillance cameras in Manhattan. To use iSee, you simply open the map of Manhattan and double-click on your point of departure and your destination. After a few moments of computation, iSee generates the “path of least surveillance.”

iSee can be accessed through the website of the organization which created it, the so-called Institute of Applied Autonomy. IAA is a collective of artists, engineers, and scientists who design technologies for the “burgeoning market” of “cultural insurrection.” The organization presents itself as a tech-savvy civil libertarian answer to the Defense Advanced Research Projects Agency, a shadowy R&D wing of the Pentagon. DARPA has recently been in the news for developing the Terrorist Information Awareness project, headed by John Poindexter, which would monitor the everyday transactions of American citizens. Whereas DARPA uses what IAA calls “tools of repression” to take your autonomy away, IAA answers with another set of tools that are intended to give you your autonomy back. …

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In Britain, you can see footage of you captured by CCTV

business, law, politics, security, tech in changing society, technology / /

From Patrick Keefe’s “Camera Shy” (Legal Affairs: July/August 2003):

In London, a city even more intensively scrutinized by closed-circuit television cameras than New York, citizens can at least retrieve copies of footage taken of them through a provision in Britain’s Data Protection Act. Americans have no such legal recourse. …

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Your job? Waiting in line for others.

business, law, politics, weird, writing ideas / /

From Brian Montopoli’s “The Queue Crew: Waiting in line for a living” (Legal Affairs: January/February 2004):

ON CAPITOL HILL, a placeholder is someone paid by the hour to wait in line. When legislative committees hold hearings, they reserve seats for Congressional staffers, for the press, and for the general public. The general-public seats are the only ones available to the so-called influence peddlers, the Washington lawyers and lobbyists whose livelihood depends on their ability to influence legislation. These seats are first come, first served, which is where the placeholders (also called “stand-ins” or “linestanders”) come in. Since most lobbyists and lawyers seeking to rub shoulders with lawmakers don’t have time to wait in line themselves, they pay others to do it for them.

Rather than use an independent contractor, most influence peddlers secure placeholders through one of the two companies that control about 80 percent of the market: Congressional Services Company and the CVK Group, both of which have rosters of on-call placeholders at the ready. Most of the time, placeholders are asked to wait for just a few hours, often arriving around 5 a.m. to wait for hearings scheduled for 10 a.m. If seats are in great demand, however, placeholders can be asked to get in line several days in advance. Congressional Services charges its clients $32 to $40 per hour for each placeholder, and the placeholders themselves make $10 to $15 an hour. …

For the sake of logistics and appearances, the lines usually form outdoors and stay there until a few hours before a hearing. …

Today, however, most placeholders are not nimble students out to earn a little spending money but older men and women trying to make ends meet. Jim Keegan is one of the “Van Gogh veterans,” a group of placeholders discovered by Congressional Services in 1998 when they were standing in line to get coveted free tickets to the Van Gogh exhibit at the National Gallery of Art. …

Now he said he has time to pursue his interests and get paid. “I’ll probably make $2,000 to $3,000 in a good month,” he said. “That’s more than I made at my old job.”

There is a collegial atmosphere among the placeholders – if you leave to go get something to eat, you aren’t going to lose your spot – but simple tasks like going to the bathroom present challenges. During the day, placeholders can go into the Rayburn Building, but after hours they have to make their way over to the public bathrooms at Union Station. Getting sleep is also a problem. Since the lines form on public sidewalks, placeholders are technically not allowed to sit down, and though the Capitol Hill police often ignore them, there are evenings when an overzealous officer will repeatedly wake them up and tell them to stand. …

Once, a group upset over banking regulations brought busloads of protesters to a hearing, only to discover that they wouldn’t be able to get in, thanks to the placeholders. A scuffle ensued, but the placeholders held their ground.

In general, however, most staffers and politicians don’t even notice the placeholders they pass on their way to work. …

Since hearings can be rescheduled or closed to the public at the last minute, the placeholding services insist on getting paid regardless of whether their clients succeed in getting in. Keegan and Herzog’s long wait, for example, ended before they could pass along their spots to their clients: The housing hearing was cancelled because of partisan infighting, and after two days and 20 hours of waiting, the placeholders were sent home on Tuesday at 6:30 p.m.

The next morning, however, after showers and a change of clothes, many of them were back, this time to wait for a healthcare hearing before the Commerce Committee. When I arrived at the Rayburn Building at 9 a.m., over 70 people were waiting to get into the hearing, and by 10, when it was scheduled to start, there were more than 200. The line began around the corner from the hearing room and snaked past elevator banks and Congressional offices. At the front were mostly placeholders, among them a bored-looking young man with red sneakers and a hat worn sideways and a woman in her late 30s wearing a frayed sweatshirt that read “OJ SIMPSON: JUICE ON THE LOOSE.” …

Thirty minutes before the hearing began, the clients started showing up. The placeholders were identified by placards or by assistant managers who worked the line. A bald white man in his 40s with a yellow tie and an expensive suit took his spot and thanked his placeholder. (Congressional rules prohibit tipping.)

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Alcatraz: reality & Hollywood

history, law, politics, security / /

From Dashka Slater’s “Lights, Camera, Lockdown” (Legal Affairs: May/June 2003):

The first two Alcatraz films, Alcatraz Island and The Last Gangster, arrived in theaters in 1937; the most recent, Half Past Dead, came out last November. In the 65 years in between, Alcatraz has been the subject of some two dozen movies and has made guest appearances in many more. There have been prison movies, horror movies, comedies, romances, action films, cartoons, and even porn flicks set on Alcatraz. It’s rare for a Hollywood set to last even a few weeks after a film is complete, but the prison is so popular with filmmakers that a meticulous replica of its cellblock, first created for the Clint Eastwood film Escape From Alcatraz, has resided on a Culver City soundstage for more than 20 years. It has provided penal ambience for hundreds of movies, television shows, commercials, and music videos. …

THE FEDERAL PENITENTIARY AT ALCATRAZ opened on August 22, 1934. It was to be a prison like no other, a high-tech, escape-proof, super-maximum warehouse for the nation’s most incorrigible bad guys. …

The secrecy had been designed to deflate the celebrity reputations of gangsters like Al Capone, who had enjoyed special treatment at other prisons. James A. Johnston, the prison’s first warden, believed that egoism was the chief failing of recidivists. His prescription was total isolation and total anonymity. At Alcatraz, he promised, Capone and his ilk would become “forgotten men.” …

The articles emphasized the prison’s harshness and brutality, chronicling its excruciating rule of silence, which required prisoners to stay mute except during a two-hour recreation period on Sundays, and describing the dank “Spanish dungeons” where prisoners were sent for disobeying rules.

Many of these accounts were embellished, and some of the more lurid tales were pure fabrications. Alcatraz was tough but not barbaric. Inmates were guaranteed the basics of food, shelter, clothing, and medical attention; everything else – work, exercise, visitors – had to be earned. Minor infractions – failing to finish the food on your plate, talking while in the cellhouse, sassing a guard – brought a swift reduction in privileges. More serious violations, like taking a swing at a guard, sent prisoners to the chilly darkness of “the hole.” Particularly obstreperous prisoners were hosed down with cold water from the bay, a practice that earned the warden the nickname “Saltwater” Johnston.

Alcatraz was hardly a country club, but it was still one of the better-run prisons in the United States. Inmates had their own cells, an improvement over bunking with another con. These five-by-nine-foot cells were cramped, but each had its own light and running water, and prisoners could order as many books as they wanted from the prison library. The cellblock was kept at a comfortable 70 degrees and the food was considered some of the best in the prison system. …

Throughout the ’30s, ’40s, and ’50s, films like Train to Alcatraz, Prison Train, King of Alcatraz, San Francisco Docks, and The House Across the Bay picked up the mythology of the “Inside Alcatraz” accounts and ran with it, depicting the prison as a place that made even hardened cons quake in their leg irons. …

… fewer than 300 prisoners [were] kept there at any one time …

The island’s reputation was increasingly out of step with the times, and the prison was facing more tangible problems as well. After years of exposure to the salt air, the fortress was literally falling apart, and the cost of repairs was prohibitive. The prison closed in 1963 …

IN 1972, AFTER LANGUISHING IN BUREAUCRATIC LIMBO for nearly a decade, Alcatraz became a national park, a move that allowed Hollywood to begin making movies on the Rock itself. …

The Park Service originally thought interest in the prison would peter out within five years. Instead, the park receives 1.5 million visitors a year, about five times as many as Antietam or Little Big Horn and nearly as many as Mt. Rushmore. …

Hollywood is responsible, in large part, for making the former penitentiary recognizable as a prison rather than just a decaying collection of empty Depression-era buildings. Escape From Alcatraz brought fresh coats of paint to the mess hall and D block, as well as the yellow stripes (which never existed when the prison was open) that now run down the main cellhouse corridor. Murder in the First funded the restoration of a guard tower on the dock, and The Rock paid for the removal of hazardous waste. Leftover Hollywood props – metal detectors, cell cots, benches, even pillows – have stayed on as permanent adornments, giving tourists a sense of what the penitentiary was like when it was operating. Over time it has become difficult to distinguish Hollywood’s Alcatraz from the real one.

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The tyranny of HOAs

business, law, politics / /

From Ross Guberman’s “Home Is Where the Heart Is” (Legal Affairs: November/December 2004):

ABOUT 50 MILLION AMERICANS BELONG TO HOMEOWNER ASSOCIATIONS, also known as HOAs or common-interest developments, which are composed of single-family homes, condominiums, or co-ops. Four out of five new homes, ranging from starter homes to high-rise apartments to gated mansions, are in one of the nation’s 250,000 HOAs. However they look or whomever they cater to, HOAs impose the same obligations: If you want to buy a property in an HOA development, you must join the HOA, allow a board you help elect to manage shared grounds and other public spaces, pay regular dues and any “special assessments” for upkeep or other costs, and obey a host of quality-of-life rules, even if they’re added after you move in.

In return, the HOA keeps the welcome sign painted, the sidewalk cracks filled, and the flower beds fresh. It may also provide streets, parks, playgrounds, security, snow removal, and utilities that were once the province of local government. But the HOA does more than beautify the neighborhood and preserve property values. It is often the sole driving force behind the Halloween parades and holiday parties that are increasingly rare in an age of bowling alone.

Although structured as nonprofit corporations, HOAs operate as private governments. An HOA can impose fines on those who flout its quality-of-life policies, just as a municipality can penalize those who violate its zoning, antismoking, or noise-control laws. An HOA also levies dues and assessments that are as obligatory as taxes and sometimes less predictable. In exerting these quasi-political powers, HOAs represent one of the most significant privatizations of local government functions in history. …

About half the states allow “non-judicial foreclosures” if owners lapse on their dues. Typically, the HOA’s collection attorney places a lien on the property and announces its new legal status in a local newspaper. The home is then auctioned. Homeowners get none of the due-process protections they could use to ward off other creditors—no right to a hearing and no right to confront their HOA board.

Even in states that require court approval for an HOA foreclosure, the HOA nearly always wins. Under current law, any unpaid dues, no matter how small, can be grounds for foreclosure, particularly once the amount of the delinquency is swelled with interest and fines.

… According to a 2001 study of foreclosures in California by Sentinel Fair Housing, a homeowner advocacy group, when HOAs foreclose, the typical homeowner is $2,557 in arrears. When banks or municipal governments foreclose, by contrast, the typical homeowner owes $190,000 in delinquent payments or back taxes.

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Modern mercenaries

business, history, law, politics, security / /

From Rebecca Ulam Weiner’s “Sheep in Wolves’ Clothing” (Legal Affairs: January/February 2006):

YOU WON’T FIND THE WORD “MERCENARY” on the homepage of the International Peace Operations Association, the trade group for the private military industry. While many of the IPOA’s member companies are staffed by elite former soldiers of the United States military who now make a living hiring themselves out, the so-called “M word” isn’t in the IPOA’s corporate vocabulary. Members are known as private military companies (often called PMCs) or military service providers, who specialize in “private peace operations.” …

In recent years, private contractors have increasingly taken on important military functions, operating in some 50 countries and earning an estimated $100 billion in annual revenue. They provide security to civilian aid workers, other contractors, and even military forces. They train local armies for combat, develop future American soldiers (the firm MPRI helps run ROTC), and interrogate prisoners. At times, they’ve engaged in combat. During the invasion and occupation of Iraq, the U.S. has relied heavily on their support – private contractors make up a workforce of about 20,000, double the British troop presence. …

During the Iraq war, contractors have run the computers that control Predator drones, operated guided missile systems on naval ships, and maintained aerial surveillance and communications systems. In the Persian Gulf war of 1991, the ratio of soldiers to contractors was 50 to 1. In the current Iraqi conflict, it is 10 to 1 and falling.

This proliferation has worried many – in the academy, Congress, the media, and, increasingly, the military – because contractors operate outside the military chain of command and most legal jurisdictions. PMCs have no clear place under the framework of the Geneva Conventions – they aren’t noncombatants, because they carry weapons, but they aren’t lawful combatants, because they don’t wear uniforms. Nor do they fit the anachronistic definitions of mercenaries found in international treaties and resolutions, because those definitions generally require engagement in direct combat.

Soldiers are subject to rules of engagement and can be court-martialed for breaking the law. Contractors are governed most directly by the terms of their contracts – their extraterritorial activities and corporate status make them virtually immune from federal law. …

Worse, critics argue, because the military has no direct control over its contractors, it won’t accept responsibility for their actions. And PMCs allow the Pentagon to evade accountability to Congress, because they circumvent caps on the number of troops approved for deployment and their casualties aren’t counted.

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James Jesse Strang, Mormon King of Michigan

history, politics, religion / /

From Geoffrey Gagnon’s “King James I, of Michigan” (Legal Affairs: September/October 2005):

One letter that isn’t on display is the one that James Jesse Strang said he received from Smith just before the Mormon leader was murdered in June 1844. In the letter, which now resides in a university library, Smith bequeaths the nascent Mormon Church to Strang – a new friend, a Mormon of just five months, and, of all things, a lawyer. “If evil befall me,” Smith wrote to Strang in the letter, “thou shalt lead the flock to pleasant pastures.”

Strang’s rivals, among them Brigham Young, dismissed the missive as a forgery and Strang as an unworthy successor to Smith. Yet a couple of hundred church members – Joseph Smith’s widow, mother, brother, and sisters among them – believed the letter was authentic and that it granted church leadership to Strang. A disgusted Brigham Young took his followers west to Utah and built what is now the fastest growing religion in the United States. Strang took his followers to a remote island in Lake Michigan and declared the place his sovereign kingdom.

Hold up the palm of your right hand and you’re looking at a map of Michigan’s lower peninsula. Thirty miles off the coast of your ring finger sits Beaver Island, a 55-square-mile island on the inland sea of Lake Michigan. Only one building survives from Strang’s sojourn, a museum in which Strang artifacts fill one room. …

An old metal press, long since disappeared, once filled the building’s big front room. Strang used the press to spit out the Northern Islander, the region’s first newspaper, and to print his magnum opus, The Book of the Law of the Lord. The long-winded tome of decrees includes what Strang described as the lost transcription of the meeting between Moses and God on Mount Sinai. …

He settled, for the time being, on being a lawyer. “I should rather be the best hunter in an Indian tribe than a commonplace member of the New York bar,” he wrote. But a decade of legal practice yielded little more than common accomplishments, and little more power than that which was afforded him in his capacity as the postmaster of Chautauqua County. …

Strang met the church’s leader after making the acquaintance of Smith’s brother Aaron, who lived near Strang in Wisconsin. Initially, he wasn’t impressed with Joseph Smith, describing him in his diary as a man of “meager education.” Smith, however, seems to have been smitten with Strang’s intelligence. Within weeks of meeting Strang, Smith baptized him, and just weeks after that, he named him a church elder.

Strang, who as a teen was tossed out of the local Baptist church for questioning its precepts, had called himself the “perfect atheist” before moving West, but once on the frontier he realized he might command from the pulpit the power that had eluded him. Strang didn’t bother to familiarize himself with Mormon doctrine until long after he was a church leader. …

In June of 1844, an anti-Mormon crowd killed Joseph and Hyrum Smith. At the instant Smith met his demise, Strang claimed that he received a visit from an angel who anointed his head with oil and declared him the leader of the Mormons. A few days later, a letter to the same effect, purportedly mailed by Joseph Smith before his death, arrived in Strang’s hand. His years as a postmaster, perhaps, had not been wasted. …

Strang and his followers arrived on Beaver Island in the spring of 1847 and spent three difficult summers recruiting followers before he was convinced he had enough subjects to make a respectable kingdom. In 1850, with 200 followers on hand in an unfinished log tabernacle, Strang enlisted a traveling Shakespearean actor named George Adams to muster all the pomp and circumstance he could. Strang appeared before an audience of several hundred on a moss-stuffed seat, wearing a giant red flannel robe trimmed in white. Adams came before the crowd and placed a makeshift crown on Strang’s head, anointing him King James the First. Taking hold of a two-foot wooden pole, Strang returned the favor and named Adams his prime minister.

IN THE SPRING OF 1851, NOT YET A YEAR after Strang had taken royal possession of Beaver Island, the sound of waves helped cover the midnight approach of a rowboat full of troops and U.S. Marshals. Carrying government-issue revolvers, the men slipped toward the glow of an oil lamp in a square log house. Expecting a fight, they instead found the small village of St. James asleep. Marines lay on the deck of the iron-hulled Michigan, armed and ready to charge the beach. But no shots were fired. Within an hour of coming ashore, the landing party had matter-of-factly taken the king into custody. …

President Millard Fillmore, who had entered office the day after Strang’s coronation, reportedly received news of the frontier king from his brother, Charles Fillmore, who lived in Detroit. He soon began hearing about the king from prominent members of his party as well, who pressured the president to take action. Among them was Abraham Lincoln’s 1858 Senate rival, Stephan Douglas, who was wary of giving the South a secession movement to point to in the North. Fillmore instructed his attorney general and the secretary of the Navy to arrest the king. …

Judge Ross Wilkins told the prosecution that because the king and his followers hadn’t engaged in war against the United States or aided enemies of the nation in doing so, the king couldn’t be convicted of treason. That left the federal government with charges against Strang of trespassing on federal land, counterfeiting coins, and obstructing the mail. …

The next morning they delivered a verdict of not guilty. …

STRANG RETURNED FROM DETROIT AND DECLARED HIS TRIAL VICTORY a mandate for his absolute rule. He modernized the kingdom with roads (the King’s Highway, recently resurfaced, is still traveled), managed a lumber export business and a booming fishing trade, and enacted progressive conservation laws (“Ye shall preserve the trees by the wayside. And if there be none, ye shall plant them”). He even appointed garbagemen to keep the kingdom clean.

A year after his win in court, Strang won election to the Michigan Legislature, representing the island and a huge swath of the northern woods, and he commuted to the mainland to serve a pair of two-year terms. He deigned to recognize Michigan’s government, he said, because he saw that as engaging in international relations with a neighboring country. …

After his court victory, Strang’s absolute power began to corrupt him, if not quite absolutely, then bizarrely. He had a fixation with fashion that led him to decree that, for reasons of health, women should wear only loose fitting, knee-length bloomers as opposed to anything that “pinches or compresses the body or limbs.” The king’s stance, and the resulting uproar, unraveled the kingdom. When a collection of outspoken wives refused to don their new pants, Strang had their husbands flogged with a willow whip for “endeavoring to incite mischief and crime.” He reprimanded his subjects in print as well. “We laugh in bitter scorn at all these threats,” he wrote, using the royal we, in what proved to be one of the final issues of the Northern Islander.

Less than two weeks later, a mob of angered husbands, still smarting from their willow lashings, ambushed the king. Strang was pistol-whipped and then felled by an assassin’s bullet. … When Strang fell, pillaging mainlanders flooded the island to drive the Mormons away. The kingdom was scattered and soon forgotten to all but a handful of us Michiganders.

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The TSA acts outside the Constitution

law, politics / /

From Ars Technica’s “Terrorist watch list follies, and my time in the TSA’s Constitution-free zone“:

So what are your rights if your name is unjustly on the watch-list, and you’d like to be able to move about the country without being singled out by airport screeners and possibly even traffic cops for extra attention? The answer is, unfortunately, that some of your basic Constitutional rights are effectively non-existent if you happen to get caught somewhere in America’s growing terrorist dragnet.

As of right now, there aren’t many rules to which you can appeal for redress—no laws aimed at protecting the accused, no binding judicial decisions, and few formal departmental protocols for addressing grievances. The kinds of rules and precedents that govern most of the other citizen-facing aspects of the federal bureaucracy just aren’t there when it comes to anything terrorism and/or TSA-related. …

To sum up, if you run afoul of the nation’s “national security” apparatus, you’re completely on your own. There are no firm rules, no case law, no real appeals processes, no normal array of Constitutional rights, no lawyers to help, and generally none of the other things that we as American citizens expect to be able to fall back on when we’ve been (justly or unjustly) identified by the government as wrong-doers.

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A short explanation of moral rights in IP

business, law, politics, tech in changing society / /

From Betsy Rosenblatt’s “Moral Rights Basics“:

The term “moral rights” is a translation of the French term “droit moral,” and refers … to the ability of authors to control the eventual fate of their works. An author is said to have the “moral right” to control her work. … Moral rights protect the personal and reputational, rather than purely monetary, value of a work to its creator.

The scope of a creator’s moral rights is unclear, and differs with cultural conceptions of authorship and ownership, but may include the creator’s right to receive or decline credit for her work, to prevent her work from being altered without her permission, to control who owns the work, to dictate whether and in what way the work is displayed, and/or to receive resale royalties. Under American Law, moral rights receive protection through judicial interpretation of several copyright, trademark, privacy, and defamation statues, and through 17 U.S.C. §106A, known as the Visual Artists Rights Act of 1990 (VARA). VARA applies exclusively to visual art. In Europe and elsewhere, moral rights are more broadly protected by ordinary copyright law.

In the United States, the term “moral rights” typically refers to the right of an author to prevent revision, alteration, or distortion of her work, regardless of who owns the work. Moral rights as outlined in VARA also allow an author of a visual work to avoid being associated with works that are not entirely her own, and to prevent the defacement of her works. …

Under VARA, moral rights automatically vest in the author of a “work of visual art.” For the purposes of VARA, visual art includes paintings, drawings, prints, sculptures, and photographs, existing in a single copy or a limited edition of 200 signed and numbered copies or fewer. In order to be protected, a photograph must have been taken for exhibition purposes only. VARA only protects works of “recognized stature;” posters, maps, globes, motion pictures, electronic publications, and applied art are among the categories of visual works explicitly excluded from VARA protection. …

Moral rights are not transferrable, and end only with the life of the author. Even if the author has conveyed away a work or her copyright in it, she retains the moral rghts to the work under VARA. Authors may, however, waive their moral rights if do so in writing.

What constitutes infringement of moral rights?

VARA grants two rights to authors of visual works: the right of attribution, and the right of integrity. The right of attribution allows an author to prevent misattribution of a work, and to require that the authorship of the work not be disclosed (i.e. remain anonymous). The right of integrity bars intentional distortion, mutilation, or other modification of a work if that distortion is likely to harm the author’s reputation, and prevents the destruction of any work of recognized stature.

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