Magical Thinking, Al Queda, and Aliens

The origin of Guantánamo is pure magical thinking, as is the current mainland US resistance to bringing Gitmo defendants onto our soil for trial before federal courts. Perhaps the ancient Hindu practice of untouchability is the clearest analog. A person who can pollute places and people by his very presence in a room, or by casting his shadow upon a Brahmin’s food, is, on one hand, the lowest of the low. On the other hand, he also has a kind of super-power. Remember cooties? Back when we were fifth-graders and the boys had decided that girls had cooties, the girls could chase the boys halfway across the playground threatening to pollute them. Oh, to have that kind of power again!

Well, Al Quaeda, and anybody even remotely suspected of being connected with Al Quaeda, has that power. If any of them are allowed onto US soil, we will instantly dissolve into terror and anarchy. The super-max prisons that now securely hold the worst of our worst home-grown criminals are presumed to be utterly ineffectual against these Muslim super-criminals. Never mind that the latter’s accents and looks make them a lot easier to spot and retrieve than our home-grown murderers and rapists. Never mind that many of them have probably been deprived of most of their physical and mental competence by their treatment at Gitmo. Once their feet touch US soil, they will gain 100 pounds, get a foot taller, and turn green and even meaner than, say, Ted Bundy, Ted Kosinski, and Brian Dugan.

We knew that back in 2001, of course, which is why we created Gitmo in the first place. Those of you familiar with pagan magick know about wards and circles, which create places outside normal space and time to which the most dangerous forces can be restricted. Well, that was Gitmo. The detention facility there was created to be a legal black hole, under no one’s jurisdiction for purposes of legal review, but under the absolute control of the US government for purposes of keeping the Bad Guys from our shores. Of course, as anyone who saw “A Few Good Men” well knows, there is legal US jurisdiction at Gitmo. That’s why the US military servicemembers stationed there can be disciplined and even court-martialed, right there on the base, if they violate the Uniform Code of Military Justice. If they don’t like the result, they can even appeal, first up the military chain of command all the way to the Pentagon, and then to the civilian federal court system on the mainland. But, apparently, the US public can’t handle that truth either. They/we can accept the novel concept of an “unlawful combatant” who is in a different category from prisoners of war, spies and irregulars subject to being shot on sight, and criminal defendants. Such a person therefore cannot be granted any of the legal rights of POWs or criminal defendants. But by reason of some strange compunction, he cannot be shot on sight either (perhaps because many of them were never encountered by US authorities on the battlefield in the first place, but were picked up from local bounty hunters.) Presumably that’s one of the three impossible things a good American is required to believe before breakfast. But we can’t imagine allowing these people to touch our sacred soil, lest they pollute it, and us, with deadly weakness.

Which is closely related to what happens to our sacred soil when the wrong kind of alien touches it. And also what happens to the right kind of alien (ie anti-communists and especially Cubans) touches that same soil—they are immediately free and legal. The soil that renders anti-communist Cubans free and legal is itself rendered vulnerable and polluted by capitalist-wannabe Mexicans. Does Hogwarts know about this?

Red Emma

How Do You Stop a Prosecutor from Overcharging?

It’s an old joke, of course. But not as old as the stereotyping of the relationship between police, and prosecutors, and what Hammett, Spillane, and in a somewhat milder vein, Gardner, used to portray as the intrepid but slightly disreputable private investigator or criminal defense attorney. Avid crime novel reader though I am, I always found that stereotype unpersuasive, perhaps because I’m also an attorney and occasionally do criminal defense work. And I have never been treated with anything but the utmost courtesy by cops and prosecutors. So I figured the hostility between cops/prosecutors and private eyes was just a literary device to generate conflict and complexity in an otherwise too-simple story.

Apparently I was wrong, at least in Cook County. Or, at any rate, the newly-elected Cook County State’s Attorney, Anita Alvarez, reads the same crime novels I do and takes them a lot more seriously.

Some background: David Protess*, a professor at Northwestern University’s Medill School of Journalism, has for ten years or so been running an Innocence Project which has succeeded in getting several convicted murderers off Death Row and getting several other convicts out of the Illinois prison system. His students investigate diligently, and then turn their information over to the State’s Attorney, to prove that their clients were innocent all along. Not just “not guilty” on some technicality or other, like improperly seized evidence or improperly extracted confession—actually innocent. As in “they didn’t do it.” As in “some other dude did it” who may even still be on the street free to do it again. They succeed often enough that the State’s Attorney’s office is evidently a bit embarrassed.

So our new State’s Attorney has decided to strike back. Presented by the Innocence Project with evidence that Anthony McKinney had not committed the 1978 murder for which he was locked up for life, she has subpoenaed the students’ grades, notes, expense reports, and class syllabi, all in an effort to demonstrate that the students were more interested in getting good grades by any means necessary than in getting an actually innocent man out of prison. They paid witnesses to give exculpatory testimony, she says, and the witnesses then spent the money on drugs. They were themselves then rewarded by getting good grades.

Fire and brimstone coming down from the skies! Rivers and seas boiling! Forty years of darkness! Earthquakes, volcanoes…: The dead rising from the grave! Human sacrifice, dogs and cats living together… mass hysteria! Investigators who were themselves being rewarded for getting the evidence may have paid the witnesses who provided it, who then may have spent the money on drugs. Oh the humanity! Ummmm, don’t the cops get paid to dig up evidence? Don’t they occasionally pay informants, or at least cover their expenses? Is it at least remotely possible that some of those informants then spend the money on something other than food, non-alcoholic drinks, transportation, extra socks, a new copy of the Big Book, and a donation to the parish poorbox?

Aside from which, the students say the only pay they gave an informant was his cab fare, paid directly to the driver with instructions not to give the change back to the informant. But what difference would it make if they had given him drug money? Isn’t it the State’s Attorney’s job to check out the information provided by the students? Why is she expecting them to present in finished form, suitable for presentation in court? Why is she persecuting them for not doing her homework for her?

I’m not even going to get into the issues of privilege raised by Medill’s attorneys—if the students are journalists, their notes and personal and academic information should be shielded from seizure by the prosecution, but so what? Even if they’re not journalists, and even if everything Alvarez alleges is true, what difference does it make? There is no legitimate reason for pursuing this stuff, and the most obvious illegitimate reason is that the head prosecutor is finally in a position to pursue a vendetta against the people who have been embarrassing her office for years.

Back when I was working at the Federal Public Defender, my boss told me, while expounding on final arguments, “a lot of jurors vote to convict because they find the prosecutor really likeable and they don’t want to hurt his feelings. You need to point out to them that his feelings won’t be hurt in the slightest, because an honest vote to acquit isn’t a defeat for the prosecutor. He’s not like us—we only win if our client gets acquitted. But the prosecutor wins if justice is done, whichever way that goes.”

This prosecutor is losing.

* Full disclosure: David Protess and I were involved in draft counseling some of the same students at Roosevelt University in the 1970s. He’s a good guy.

RedEmma

Hate Crimes, Special Victims, and the Rest of Us

The new Defense Appropriations Bill either has been or is about to be signed into law, with an amendment that places people under federal protection from those who object to their sexual orientation. I’m certainly in favor of whatever it takes to prevent atrocities like the murder of Matthew Shephard. But I’m getting uncomfortable with statutes that protect only certain groups from crimes that we should all be protected from. I just did a quick run-through of the criminal section of the Illinois Compiled Statutes, and found something like 34 categories of people who are specifically protected from homicide, battery, assault, or hate crimes.

Specifically, that’s:
peace officers
correctional officers
minors
emergency medical technicians
persons over 60
disabled persons
teachers and school employees
unborn children
family or household members of the perpetrator
prison or jail inmates
park employees
caseworkers
bus or cab drivers
state or city employees on duty
sports officials and coaches
emergency management workers
utility workers
pregnant women
judges
merchants detaining shoplifting suspects
child athletes, and
people being victimized because of their
actual or
perceived
race
color
creed
religion
ancestry
gender
sexual orientation
physical or mental disability, or
national origin.

Of course, I’m not including any of the specifications about: who the perpetrator is, or where or when the crime is committed. I just want to know whose life is worth more than that of the average person on the street. (And never mind, for now, that assaulting or battering anybody on the street is, by reason of that fact, aggravated.)

Most jurisdictions have similar catalogs, so far as I can tell. Certainly federal law does. I spent some years as a federal law enforcement official protected by a statute that, I think, imposed a possible death sentence on anybody who murdered me. At the time, I was handling a case in a small local jurisdiction where the mayor had recently hired the killing of the City Attorney with whom my predecessor had been negotiating, so I kind of liked having that protection. But my point, obviously, is that every such jurisdiction (except the feds, who have no generalized murder, assault, and battery statutes) supposedly bans assault and battery against anybody. So why should we need these extra protections?

As to homicide, we really don’t. Homicide statutes get enforced fairly uniformly, except for informal special considerations for Important, or at least Nice, People, as opposed to street people, prostitutes, and prison inmates, and perhaps illegal immigrants—people whom many of us believe we would all be better off without.

But as to assault and battery, we really don’t bother. Illinois apparently doesn’t have any anti-bullying statute yet, but some other jurisdictions do. Bullying mostly involves juvenile-on-juvenile conduct that also clearly constitutes assault and battery. But most of us object to “criminalizing normal youthful hijinks,” even if they would already be criminal if the victim were an adult. Adult-on-adult “simple” assault or battery, unless the victim is within one of these protected classes, or the locus of the crime is a protected place, also gets ignored.

So we have to invent 34+ protected classes of victims and roughly the same number of protected locations to notify our police and prosecutors that “we really mean it” as to those persons and localities. Then we get objections from conservatives and more sinister forces that we are granting “special rights” to some groups at the expense of others. And, unfortunately, they’re right. Some people have special rights to be protected from assault, battery, and other unpleasantries, and the rest of us don’t.

That’s not (conservatives to the contrary notwithstanding) because we value some people more than others. It’s because we cannot be bothered to recognize a general human right to be safe from assault, battery, and other usually petty crimes. We put it into our statute books, but we almost never enforce it.

And that, in turn, is because our law enforcement system doesn’t want to be hauled into every petty dispute between ordinary people. Our police and judges have been all too well trained by their mothers: “I don’t care which of you hit the other one first.
Both of you shut up and sit still, or you don’t get any TV tonight.” “Nobody likes a tattletale.” In school bullying situations, all parties are likely to get the same punishment. This discourages reporting, which is just fine with the teachers. With children, or with unimportant people in general, the point of a disciplinary system is not to do justice, or even to inculcate good habits of behavior. It is to relieve the authorities of all but the most necessary work.

For my sins, I have had to spend a great deal of time representing a couple of people who are trying to direct the attention of the law enforcement system to various infractions committed by people near and formerly dear to them. Both the police and prosecutors have told my clients repeatedly that they have unlimited official discretion not to arrest or prosecute, regardless of the enormity of the offense in question. Most of this discretion doesn’t even make its way into the statutes or the reporting of court cases, because exercise of this discretion means, by definition, that there will never be a court case. This is, we are told, essential if we are not to expend most of our gross domestic product on law enforcement. Choices have to be made. Designation of special victims and crime circumstances are the way we make those choices.

At the same time (see http://wiredsisters.wordpress.com/2009/09/11/the-flabby-arm-of-the-law/), we keep the simple assault and battery statutes, and all sorts of other statutes we have no intention of enforcing, on the books. Thus we maintain the appearance of being Nice People, while not having to pay undue attention to the ordinary behavior of ordinary people, and at the same time holding a weapon in reserve for when that behavior arouses serious public emotion. Creation of one more class of protected victim is now the standard response to any horrendous crime. Many of the laws embodying this approach memorialize the names of victims, to keep the crimes fresh in our memory, so we will continue to consider them important—Megan’s law, Amber Alerts, and so on. No doubt the most recent addition to the federal hate crimes catalog will become known, at least informally, as Matthew’s law. Which is a worthy memorial to a young man who deserved a lot better of his society. But wouldn’t it be better to take seriously the rights of all of us to be free of assault, battery, and homicide?

Jane Grey

Groups upset man wouldn’t marry interracial couple

“By MARY FOSTER, Associated Press Writer Mary Foster, Associated Press Writer – 6 mins ago

“NEW ORLEANS – At least two civil and constitutional rights groups in Louisiana are calling for a justice of the peace to resign after he refused to issue a marriage license for an interracial couple.

“The head of the American Civil Liberties Union in Louisiana and the Center for Constitutional Rights and Justice said Keith Bardwell should quit immediately.

“Bardwell is a white justice of the peace in Tangipahoa Parish in southeastern Louisiana. He refused earlier this month to issue a license or marry Beth Humphrey, who is white, and Terence McKay, who is black.

“Bardwell said he always asks if a couple is interracial and, if they are, refers them to another justice of the peace.

“He says children of such unions face troubling futures.”

Umm, like the President of the United States? Or Tiger Woods? Oh, never mind.

Red Emma

Back Down the Rabbit Hole

I guess I must have repressed my memories of the Republican opposition to the Clinton administration. It required too much suspension of disbelief even for a long-time Coleridge fan. Reminds me of the time I tried to turn my experiences running a legal aid office in a Puerto Rican neighborhood in Chicago into a series of short stories. The one that finally ended that career detour was the two kids I interviewed about their juvenile court case, who told me they had run away from home because their parents were practicing black magic.* I realized, as I reviewed my notes, that there was no way I was going to be able to make truth as believable as fiction, and I might as well go back to writing briefs and memoranda.

So here we go again, with the MSM trying to make the opposition loonies as believable as the Mad Hatter and the Red Queen. Lewis Carroll, thou shouldst be living at this hour. Remember poor Vince Foster, supposedly murdered by White House operatives because he Knew Too Much? Nobody could ever enunciate just what he knew too much about, but si non é vero, é ben trovato. And the apocryphal Secret Service agent whose job was to recruit lesbian bimbos for Hillary? Lesbian bimbos? Gimme a break. The scandalized reporters who discovered that Hillary, in her brief forays into the investment market, had actually made money? Omigod. Fire and brimstone coming down from the skies! Rivers and seas boiling! Forty years of darkness! Earthquakes, volcanoes…The dead rising from the grave! Human sacrifice, dogs and cats living together… mass hysteria! (sorry, I know I’ve used that before, I just can’t find anything more apt.)

Some saner conservatives are pointing out that the loonies are raising some valid points, such as the proper role and size of government, which deserve a serious debate. Some liberals have pointed out that we just had that debate, which, in this great country of ours, is called an election, and our guy won. Some other liberal commentators suspect that the reason the loonies can’t accept the legitimacy of the Obama presidency is that he’s Black. Obviously, they have the same trouble I did remembering the Clinton administration, which the loonies also never accepted as legitimate, even though Bill is at least as pale as I am, and Hillary is a good deal more so. They just started with the axiom that the Clintons had somehow snuck in under cover of darkness and then changed the locks on the White House. Color was never an issue. The issue is, and has always been, who qualifies as a Real American. A few Blacks and Hispanics (especially Cubans**) actually do. But anybody who believes the government has a valid role providing help for non-rich Americans really doesn’t qualify.

Remember the New Deal?*** FDR made it happen by making a deal with the Devil, or rather, the Dixiecrats, that would guarantee that none of its benefits would extend to Black people. Social Security and Unemployment Compensation specifically didn’t cover agricultural and domestic workers, who made up the majority of employed African-Americans at the time. Black sharecroppers didn’t count as “farmers” for purposes of the New Deal agricultural programs. Aid to Dependent Families was off limits for Black single mothers, because it was too easy to prove them “morally unfit,” unlike White widows, or to show that, unlike White women, they could never qualify because they always had a way to support their children, namely domestic labor. And so on. Well, what the loonies are looking for this time around is a guarantee that Obama’s health care reform won’t just exclude illegal immigrants from coverage, but will guarantee that they can never, ever, get treatment for any medical problem in any medical facility that receives federal funds, or from any doctor or nurse whose education was paid for with federal grants and loans. Anything less than that will forfeit all support from that side of the aisle.

But everybody in this particular controversy, on all sides, seems to have forgotten that, unlike FDR, Obama doesn’t need the support of the loonies to get his program passed. Yes, it would be nice to end the LaRouchie/teabagger/loony-sponsored sniping and become One Nation. But every time Obama extends a hand across the aisle, somebody cuts off one of his fingers. Now, apparently, he has only one left. Let’s hope it’s the one he needs for the appropriate gesture.

Red Emma

* In fact, what the parents were doing was Santeria, which most people at the time didn’t know about, and which the kids didn’t know about because their parents had always told them “We’re Catholic,” until the kids came home from school early one day and found their parents and some friends in the basement doing stuff Sister had never taught them. The solution, as in most juvenile runaway cases, was to encourage better parent-child communication.

** In the spirit of full disclosure, I’m Cuban, but like many second or third generation Cuban- Americans, I do not consider Castro the AntiChrist.

*** See Ira Katznelson’s When Affirmative Action Was White for the best historical treatment of this era.

The Flabby Arm of the Law

Some of our colleagues are disturbed that the US government seems lackluster in its enforcement of immigration law.  If we were paying attention, this would surprise no one.  It is only a special case of a reality so long-established and widespread in this country that it isn’t even a “problem,” it’s just an essential component of our culture. Americans don’t like law enforcement roughly 50% of the time.  Or, as our daughter puts it, every American law includes one invisible clause: “except me.”

Our various ancestors came here in the first place to get away from onerous economic and legal systems in the Old Country.  Sure, the Puritans immediately set up what seemed like an equally onerous system here.  But read Perry Miller and George Demos on how it actually worked out.  The Puritans anti-sex?  Not if you count the number of public rebukes for fornication and adultery, and the number of “premature” births.  In the era before TV and central heating, the Puritans did what they had to to keep warm and entertained.  Anti-violence? Anti-theft?  Read the stats.

More important, consider what our ancestors, like our own legislators today, used the law for.  First, (Wired’s First Law) nobody legislates against what nobody does.  The existence of a law against fornication isn’t evidence of a society’s high regard for chastity.  It is precisely the opposite.  The people whose lawmakers pass such legislation know their constituents screw around (as, a fortiori, do the lawmakers themselves.)  They just want to get on the record, when they have the time to get out of that unsanctified bed, that they know it’s wrong.

Same goes for drunk driving, indoor smoking, drug use, and exceeding the speed limit.  We use these statutes mainly to proclaim that We Are Nice People.  Not that we are people who don’t drive drunk, smoke indoors, use drugs, and speed.

That’s purpose #1 of American laws. Purpose #2 is the control of “undesirables.”  We are also a thrifty lot, who don’t like to let useful stuff go to waste.  Now that we have all those laws lying around on the books, why not use them to keep Those Other People in line?  Prohibition, clearly, was a Protestant movement to keep those wine-bibbing, beer-guzzling Italian and German Catholics from having too much fun.  The War on Drugs began as a war on African-Americans and graduated to a war on hippies.  The only prosecution for fornication in an egregiously well-known Southern state in the 1960s involved two African-American honor students who were active in the Civil Rights movement.  You get the picture.  Once the statute books are full of laws everybody violates, everybody is vulnerable to prosecution.  We can pick and choose among our potential defendants.  Should anyone be surprised if those who do the choosing concentrate on Those Other People?

Every now and then, some court finds this bias too blatant to be acceptable.  That was what happened in San Francisco, roughly a century ago, in Yick Wo vs. Hopkins, the grandmother of all discriminatory prosecution cases, in which Mayor Mark Hopkins decided to close down all wood-frame buildings used as laundries, which—surprise!—included almost all Chinese laundries and almost no non-Chinese laundries.  Even the US Supreme Court of that era, hardly a bastion of equal protection (the same guys who brought us “separate but equal” Plessy vs. Ferguson and “three generations of imbeciles is enough” Buck vs. Bell,) thought that was too much.*  Every now and then the courts still follow that precedent, though mostly they just nibble away at it like ducks at a pizza, and hope for it to disappear entirely some day.

Legislators get lots of good publicity out of designating a Serious Problem and then passing a law against it.  Occasionally, they run into embarrassed staffers who, having been assigned to research The Problem and draft the law, discover there already is such a law.  Legislators do not get good publicity from merely proposing to enforce a law that has been on the books for a century.  That’s just “the nanny state.”  The laws that actually get enforced are a small proportion of those on the books, and the proportion of violations of those laws that actually generate prosecutions is even smaller.

Every now and then, one of Us gets busted for breaking a law clearly aimed at Them, and complains about it.  “The only reason I got stopped for speeding was that it was easier for the cops to catch me because I was only going five miles over the limit when everybody else was going fifteen miles over the limit. It isn’t fair.”  Most of the time, as noted earlier, the courts disregard this argument, unless it seems to have really blatant racial, ethnic, or religious implications.  Being the slowest-moving lawbreaker on the road is a bad idea.  Most people know better. OTOH, prosecutions for Driving While Black are actually attracting lots of negative publicity these days, and many jurisdictions are cracking down on them. (For more information, check this out http://www.jmls.edu/facultypubs/oneill/oneill_column_04b08.shtml)

But most of the time, even local judges are not too bashful to say, of a defendant who is about to catch an unexpected break from the criminal justice system, that s/he “is not a member of the criminal class.”  (I’ve heard it myself, and probably many of you gentle readers have too.)  At heart, we are all Aristotelians.  We believe character determines fate, what you are determines what should happen to you, and what you have done in the past is our best guide to what you are.  So if you are a high school dropout with no visible means of support and a record of minor misdemeanors, we have no trouble concluding you must be more guilty of buying or selling cocaine than the solid, middle-class citizen next to you.  This is common sense, and tends to be accurate more often than not.  As long as we don’t really feel obliged to determine whether the high school dropout etc. actually made the drug sale/purchase in question, we figure he will get what’s coming to him more often than not, and that’s close enough for government work.

In conclusion, the reason “the Sixties” are still a hissing and a byword among hard-line conservatives is not that people actually became less law-abiding, but that they became less willing to accept the American deal—act like a solid citizen most of the time, don’t flaunt your lawbreaking, and we will treat you like a solid citizen unless you are Black or poor or Indian or Mexican or gay.  People who were not any of those things suddenly began breaking laws in public, and worse still, objecting to laws against sex, drugs, and harmless recreation, proclaiming that We Are Not Necessarily Nice People, and shouldn’t have to be.  That way lies Armageddon, Fire and brimstone coming down from the skies! Rivers and seas boiling!Forty years of darkness! Earthquakes, volcanoes… The dead rising from the grave! Human sacrifice, dogs and cats living together… mass hysteria!

So the immigration laws are a relatively minor casualty of something a lot bigger and a lot harder to clean up.  God’s Own Party has, wisely for their purposes, chosen to go about enforcing those laws by turning all illegal immigrants, and most legal immigrants, into Those Other People, unlettered Hispanics sneaking in here to take jobs and welfare benefits from good Amurricans.  It seems to be working.  Maybe it shouldn’t be.

Red Emma

The Lotos Marketers

Is it weird or what, that a huge proportion of our law enforcement resources are dedicated to keeping one group of people from taking one set of drugs, and an equally huge proportion of our mental health resources are dedicated to making another set of people take another batch of drugs?  Sounds to me like a failure in marketing.  And that’s not even taking into account what the pharmaceutical establishment spends on direct advertising, to get yet another group of people to take yet another batch of drugs.

Psychoactive drugs have a lot of problems. For one thing, some of them are dangerous if not carefully monitored.  Most of them can be dangerous in combination with other psychoactive drugs, or other kinds of medication, or even some common kinds of food or drink.  There is no drug that works for everybody with a particular diagnosis, and there are some people for whom no psychoactive drug works.  But what makes it worse is that, even when a drug “works,” that does not necessarily entail making the patient feel any better.  Normally, we 21^st-century Americans expect a drug to be something you take when you’re feeling bad, and then it makes you feel better. But for people with mental illness, especially the manic phase of bipolar, a drug may well be something you take when you’re feeling absolutely terrific, and then it makes you feel awful, or at best, blah.  This makes medication compliance problematic.

Cocaine dealers have no such problem.  They have no marketing budget. They advertise only by word of mouth.  They don’t have to wine and dine physicians to get them to prescribe their product (though, if we are to believe Sudhir Venkatesh in Drug Lord for a Day, they do have to cultivate a structure of lower-level dealers.) They dispense their product to people who are feeling blah, or even worse, and the purchaser ends up feeling terrific for a while, and then really awful until the next dose.  Which pretty much guarantees that there will be a next dose.  Psychiatrists should be so lucky.

Cocaine dealers, of course, might have trouble getting their product past FDA (unless it has been around so long as to be Generally Regarded As Safe, which maybe it has.) Quality control in manufacturing is spotty at best, and the distribution chain may degrade the product even further.  But nobody has to stand over the cokehead to make sure the dose is properly ingested, or remind him/her to be sure to come back for the next one.

At any rate, what the manufacturers of psychoactive drugs obviously need is a pinch of cocaine or a spoonful of sugar or something to make those who take their products feel good, or better still, terrific, at least for the first few hours after taking it. (Yes, I do remember the intoxicant invented by sci-fi writer Robert Heinlein, which made you feel absolutely awful after drinking it in the evening, and the next morning you would wake up feeling utterly blissful. It was called, if I remember correctly, “Scrotch.”  Much though I respect a lot of Heinlein’s imagined futuristic products, most notably the water bed, I think Scrotch is a behavioral loser. Most people, especially those in search of a good high, just aren’t that good at deferring gratification.)

Maybe we just need to condition patients to associate taking their meds with something else really pleasant, like good food, or sex, or music.  Something, at any rate, more fun than having a social worker stand over you to make sure you’re really swallowing.  Or maybe we need to play tricks on  patients to make them see the medication as a reward (the way we condition small children to want candy by giving it to them when they follow the rules.)  “Eat all your spinach or you can’t have your meds tonight,” “Last one in the water doesn’t get meds,” or whatever.

Or maybe we should just sack all the psychiatrists and psychiatric nurses and social workers and replace them with drug dealers who know their job, and who, furthermore, don’t get paid unless the patients actually take the meds. This solves two problems at once, providing lawful and socially useful employment for drug dealers, and keeping psychiatric patients properly medicated. We could put all the disemployed shrinks and their flunkies to work in the newly expanded ObamaCare system caring for all the people who have finally gotten access to health care, thereby solving yet a third problem.  Tune in next week for the latest proposal to combine high-grade cocaine with a contraceptive. You heard it here first.

Red Emma

 

 

Talmudic Copyright

“Whoever tells a thing in the name of the one who said it, brings redemption into the world.”  (Pirkey Avot 6:6, and in Talmud Bavli (the Babylonian Talmud) Megilah 15A, Hulin 104B, and Niddah 19B.)

While the area of intellectual property becomes ever more complex and confining, it deals only with the rights of the owner of the “property” in question, not with the rights of the people who actually created the work in the first place, if they are not the current owners. Cases in point: (1) Milli Vanilli, which got rich lip-synching the performance of another group, whose names (individually and collectively) the public has never been able to ascertain; (2) Paul Anka’s infamous “Having My Baby,” in which the female soloist (who is, presumably, playing the role of the person who is in fact having the baby) is never named; and (3) somewhat less well-known except in Chicago folk music circles, Jan Hobson and her Bad Revue, whose best-known songs (“Throw Your Cat Away” and “The Racoon Song”) she filched from her ex-boyfriend, who used to sing with the group, and whose name, again, the public has never been able to find out.

Legally, I think such arrangements have a serious flaw. Yes, an artist can sell somebody else the rights to perform the work in question and get paid for it, if all the requirements of contract law are fulfilled. But the artist can’t waive the right of the public to know the artist’s name (or at least his/her/their pseudonym) and allow the new owner of the “rights” to fool the public into believing that the owner is also the artist. (Any more than the custodial parent of a child can waive the child’s right to receive child support from the other parent.)

For yet another slant on intellectual property law, take a look at Lawrence Lessig and the Creative Commons (creativecommons.org/) with more regard for creator’s right to credit and the public’s right to know the creator’s identity than conventional intellectual property law.

So anyway, that’s how the writings of the Wired Sisters is protected. Don’t mess with it.

CynThesis

Health Care: the Reform Before the Reform

We’re hearing a bunch of different messages about what “health care reform” involves. Obama is now saying it means “health insurance reform,” which many of us have trouble with.  I have a very good auto insurance policy. It neither drives nor maintains my car.  But we all seem pretty clear that we want to cover everybody (or nearly everybody), and that we want to reduce the cost of both health care and health insurance. Whether these various goals are mutually compatible is a whole other question.

But there are things that we can perfectly well do before getting into the details of who is to be covered for what, and perhaps one of the most important is to solve the medical data problem.  Right now, your medical records are paper full of illegible doctor longhand, plus some transcribed and typed notes, plus X-ray films plus images from scans, EEGs, and EKGs.  Depending on your age and state of health, those records may fill a single folder, or, like Mr.Wired’s, be the thickness of the entire New York City phone directory. Furthermore, those records may be taking up space in the office of several different offices and facilities, because Doctor #3 wants to know what Doctors #1 and 2 found when they checked you out for hallux valgus, how they treated it, and whether the treatment worked, before she takes up where they left off. So she has had you send for all of the records from Doctors #1 and 2, and, when necessary, pay for the copying and shipping.  Copying, meaning the originals stay where they started out.  Most health care facilities have at least one room devoted entirely to record storage, sometimes a lot more.

Sometimes, not unreasonably, patients decide they want to keep a set of their own medical records.  This requires another set of copying fees, and another quantum of storage space.  In addition, it requires the patient to find someplace to store X-ray films (which are, essentially, photographic negatives with all their attendant storage problems, and furthermore are roughly four times the size of most paper documents and places to store them.)

BTW, in many other countries (Chile is the one I know best), the medical records are considered the property of the patient, who keeps his/her own set of copies and takes them from doctor to doctor as needed.  I don’t know whether the doctors in question make and store their own set of copies. Considering that doctors do retire, move away, and die, this approach has a lot to recommend it.  Indeed, these days, doctors move around a lot more than they used to, and tracking down one’s records after a few years can be really difficult.

So anyway, creating, maintaining, storing, and transmitting paper medical records is expensive.  Regardless of what happens with the more global aspects of health care reform this year, we could cut medical costs a lot by digitizing the records.  Many practitioners do that now.  My orthopedist puts my X-rays on his computer monitor, where he can zoom in on areas of particular interest and show me utterly cool and fascinating things about them.  He can also email them to anybody who wants them. But his software may or may not be compatible with that of my physical therapist.  That’s where the Reform Before the Reform comes in.
We not only need to digitize medical records, we need a standard system for doing so, so that this information can be readily transmitted to anybody with a bona fide need to see it.  We could, of course, just wait till Microsoft crams their version (which they are undoubtedly working on in some cellar in Seattle) down everybody’s throat.  And in the meantime, health care providers who have committed their resources to some other system will of course be out of luck.  VCR vs Beta, anybody?

Health care is more important than home movies.  It’s important enough for the government to play a role in deciding on a digitization standard.  Presumably the National Institutes of Health would be the place to start.  But obviously the real world of private medicine has to be involved as well.  AMA?  There may be some professional organization of medical IT specialists with contributions to make as well.  Ideally, the private side should be getting together to formulate its standard, which the NIH boffins can then examine for obvious and not-so-obvious glitches.  Mr. Wired suggests that unless the glitches are deal-breakers from the point of view of NIH, their critique should be kept out of the process, or a very minimal amount of tweaking done to produce a workable product.  That product, with recommendations from the private sector and NIH, should then be forwarded to the Surgeon General for his rubber stamp.  Probably the resulting system should be open code and licenseable to everybody who wants it. After a reasonable period of time (5 years or so), all government agencies that deal with individual medical records can legitimately require that they be digitized in the Standard Format, whatever it may be, and then, probably, everybody else will follow suit.

Within ten years, the system will have eliminated at least half the paper storage space (I’m assuming that the original originals will continue to be kept on paper, as a backup), and most of the costs of transmission and copying.  As an additional benefit, that digitized information can be made available almost instantly on demand for emergency responders.

Obviously, such highly personal records will need to be kept under varying levels of security.  One level for emergency responders, another for primary care providers, maybe another level for insurers, and so on.  Which is a lot easier to do (and where necessary, undo) digitally than on paper.  A person’s entire medical record could be kept on a single memory stick, and the emergency provider portion of it, probably, on a chip the size of the one embedded in my cat’s back to identify her if she goes astray.

No matter what else happens to the health care system over the next decade, this single advance can cut costs and improve care by significant amounts.  I don’t offhand know whether any other country has done this yet.  I know that various providers are doing it locally. The Veterans Administration is working on it.  But universality is more important here than anywhere else.  I welcome comments from the docs here, and anybody else with specialized knowledge to contribute.

CynThesis

The Velvet Floor

or Benefit of Clout

Michael Vick’s rehabilitation pops up in the moral/religious blogs a lot these days.  It raises a lot of issues.  Like, who deserves a second chance? A second chance at what?  Is a professional athlete a role model, and if so, what are his obligations?  What about “morals clauses” in actors’ contracts?  What is forgiveness, and who is entitled to it?

I’m trying to dodge most of those questions right now, and deal with the one that gripes me most—the velvet floor.  That is, when ordinary people like you and me mess up, generally speaking, that’s the end of us.  If we get busted for felonies, we will do our time, and we will next be seen greeting customers at Wal-Mart or waiting tables at Denny’s, if not panhandling on the street or living in seedy Section 8 apartments on our Social Security benefits.

But when somebody rich or important gets busted, for just about anything short of first-degree murder, in the first place s/he is likely to do only minimal time in a reasonably decent institution. And upon getting out—well, junk bond fraudster Michael Milkin served his 22 months, and was then released to a halfway house where he was required to pay $1,300.00 per week for his room and board.  This was in 1993, when nobody I knew personally even earned $1,300.00 per week, much less lived anyplace where that was the cost of room and board.  And then there was Martha Stewart, who did 5 months in, and redecorated, a relatively decent women’s federal joint in West Virginia, and then returned to her $16M estate on Long Island to complete her sentence with house arrest.  Now she has paid her debt to society and is back running her enterprises and living the gracious life.  And now, Michael Vick is back on the street, reinstated in the NFL, and signed to a multi-million dollar contract.

OTOH, O.J. Simpson is in prison. Reportedly the institution is one of the newest and smallest in the state of Nevada, but he is in there for between 9 and 33 years, and, unlike Milkin, he is not in a position where he can talk his sentence down by giving information to the government, which already knows everything it wants to know about the original crime.

But that’s where Benefit of Clout comes in.  It’s analogous to Benefit of Clergy in the Middle Ages.  Remember?  That’s what Henry II and Becket fought over.  Becket won, though at serious cost to himself.  As a result, if you were a cleric (a status which, at that time, could range from archbishop to a merely literate male) and got busted for a first-time offense, your penalty was to lose your clerical status.  Kind of like Simpson lost his Public Image after being busted for the murder of his wife.  After the SECOND offense, you would be treated like any other criminal.  Like Simpson, in fact, after his hare-brained extortion, robbery, and kidnapping scheme.

Closer to home, my former alderman, who got busted a while back for taking a bribe, is now out of prison and making good money in real estate (or as good as anybody in real estate makes these days.)  I liked him; I felt bad when he went to prison.  But if I had done the same thing, I would probably still be behind bars. And when I got out, I would have nothing but my Social Security.

I’m not saying that Michael Vick SHOULDN’T have been reinstated in the NFL and signed by the Eagles.  Presumably he’s still a good football player, capable of doing the job he has been hired for.  His conviction was not for anything that impacts on his athletic performance.  Apparently he kept in shape while behind bars.  I’m just pointing out that the benefits of wealth and influence survive all kinds of public bad behavior, at least the first time around.  And maybe we need to think about whether they should.

Red Emma