The Jury Talks Back


Mercury News article on poll misstates Fiorina’s chances

Filed under: California Politics — aunursa @ 7:48 pm

The San Jose Mercury News reported that Carly Fiorina holds a comfortable lead in the race for the Republican nomination to challenge incumbent Senator Barbara Boxer.  However writers Ken McLaughlin and Mike Zapler erroneously concluded from the Los Angeles Times/USC poll that “in a theoretical matchup, only one of the three GOP primary candidates can beat [Boxer]: former Silicon Valley congressman Tom Campbell.”

How do they draw that conclusion? By determining that moderates swing elections in California.  “Among the moderates, Campbell, a fiscal conservative who supports abortion rights and gay marriage, beats Boxer 46 percent to 33 percent. But Boxer beats Fiorina among moderates 48 percent to 30 percent.”  The photo caption emphasized, “Carly Fiorina will likely win the GOP candidacy for the U.S. Senate but will not unseat Democrat Barbara Boxer.” [emphasis added]

Based on that poll, Fiorina’s chances would indeed be slim if moderates and only moderates voted.  But even McLaughlin and Zapler acknowledged that 31% of registered voters identified as conservative and 24% identified as liberal in addition to the 39% that identified as moderate.

Therefore the relevant question is not which candidate would moderate voters prefer, but which candidate would the be choice among all registered voters.  So who wins in a Boxer-Fiorina matchup among registered voters?  Amazingly, the writers didn’t even mention the poll result in the article.  To get the answer I had to find the actual poll.  Reviewing the data, I discovered that Boxer’s lead over Fiorina is just 44-38 among all registered voters (including leaners).  While that’s more favorable to Boxer than a race against Campbell in which he leads 45-38, a mere 6 point margin with over five months left is much too close to count out Fiorina.  (Among likely voters, Boxer hold a similar 45-39 lead over Fiorina.)

I would be interested to know whether writers took into consideration the enthusiasm gap when considering likely voters.  There’s a good chance that pollsters are underestimating the significance of conservative and center-right voters to sway the election.   At any rate, the Mercury News made a sloppy error in failing to consider — or even report — the full poll result.


Indefinite civil commitment for insane sex criminals

Filed under: Uncategorized — aphrael @ 7:59 am

The Supreme Court today held that the Congress has the power under the Constitution to authorize the indefinite civil commitment of mentally ill prisoners who have committed certain sex crimes (either violent ones or molestation) and are considered likely to do so again in the future.

The argument was that:

  1. The Necessary and Proper Clause grants Congress a broad authority to enact any law which is “convenient or useful”, or “conducive”, to the exercise of some other granted authority.

  2. All that the NPC requires is that the law in question be rationally related to the implementation of an enumerated power.

  3. Congress has a broad authority to enact criminal laws in furtherance of its enumerated powers

  4. Congress has a broad authority to build prisons to hold federal criminals

  5. Congress has a broad authority to regulate the life of federal prisoners, including providing for their health and well-being

  6. As the custodian of its prisoners, the government has the Constitutional power to protect nearby communities from the dangers posed by federal prisoners – and, in fact, has a duty to exercise reasonable care to protect the community from prisoners.

  7. Confining dangerous people beyond the end of their sentence is reasonably related to the power to act as a responsible custodian of prisoners.

One of the arguments against this syllogism is that the link between some enumerated power (and note that the court hasn’t identified the enumerated power at issue here) and civil commitment is too attenuated; the justification is basically a set of inferences which follow each other in such a fashion as to render the result which is almost entirely conjured out of thin air. But apparently there’s precedent for this: in 1955, the Court said that civil commitment of a mentally incompetent defendant who had been accused of robbing a post office was rationally related to the power to “Establish Post Offices and Post Roads”. That case seems to be structurally identical to this one.

This decision seems to place the state’s duty to third parties above its duty to the confined individual, but the decision explicitly wasn’t answering the question of that second duty; it assumed that civil commitment provided “due process of the law” to the confinee and simply addressed the question of the federal government’s authority to authorize such commitment. (It’s apparently already been decided that civil commitment doesn’t interfere with the rights of the confinee, as long as procedural safeguards are met – and the law at issue here (a) places the burden of proof on the state, and (b) provides the confinee with a full hearing, including legal representation and cross examination of the state’s witnesses. I’m not persuaded that civil commitment isn’t in essence criminal punishment for mental illness, but that issue isn’t under discussion, either).

Justices Thomas and Scalia object: the Necessary and Proper Clause only authorizes legislation to carry into execution an enumerated power – and neither the government nor the court have identified a specific enumerated power which justifies civil commitment.

Justice Alito tried to get around this by saying that the commitment is necessary and proper to carry out whichever enumerated power justified the underlying criminal statute – a dodge which assumed that the underlying criminal statute was necessary and proper to carrying out some unnamed enumerated power. As a procedural matter, it seems to me that someone should have provided an underlying enumerated power which justified these specific convictions and commitments, but that didn’t happen. Fundamentally, I think the problem is that the underlying conviction may have been for something entirely unrelated to sex crimes – which is to say, someone arrested for robbing a post office, but who is mentally ill, had previously raped someone, and is judged likely to rape again, can be confined. The court seems to be saying that this confinement is justified because having incarcerated the person for robbing a post office, the federal government has assumed a responsibility to protect people from the person; the dissent is saying that since the grounds used to justify further confinment – propensity to carry out sex crimes – are not legitimate grounds for federal action, the federal government has no power to authorize continued detention.

The dissent also objects to the Court’s characterization of the duty to protect third parties from prisoners: they believe that the duty expires at the end of the legal basis for custody.


I tend to agree with the dissent on this. The argument that the duty to third parties compels the government to not release these individuals could logically be extended to impute a duty to never release any criminal who is considered likely to commit another serious crime, regardless of the sentence imposed after trial. Such a system would make a mockery of the sentencing process. Moreover, I’m convinced by the argument that the duty expires when the legal basis for incarceration expires; at that point, the state is no longer responsible for the individual and cannot possibly have a duty to protect other people from him. (It might be different if the time the prisoner spent incarcerated had independently created a risk to third parties by making the prisoner substantially more likely to commit serious crimes).

That said, I’m generally amused by the decision, because I’m reasonably certain that if the question were does the state have the authority to civilly detain terrorists indefinitely, both the dissent and many of the justices in the majority would be singing a different tune … and yet the issue of the federal power to do so ought to be the same in both cases.


What happens if the elections office misspells a candidate’s name?

Filed under: California Politics — aphrael @ 6:21 pm

A Peace and Freedom party candidate for Governor is upset – and rightly so – that the state misspelled his name in the printed voter’s guide. It is too late to fix the problem without enormous expense, so the state isn’t going to; the window of opportunity for that has passed.

This brings to mind a more serious question, though: what is the effect if the name is misspelled on the ballot?

Section 13103 of the California Election code requires that the ballot contain “the names of all qualified candidates”, and Section 13104 requires the old name to be used when the candidate changes his name within one year of the election, unless the name change was the result of marriage or a court order.

Section 18401 makes it a misdemeanor to prints or circulates such a ballot a misdemeanor, but this isn’t helpful: the state isn’t going to prosecute all of the poll workers in the district for the ‘crime’ of handing out the ballot which the county elections office told them to hand out, and the punishment for a misdemeanor is hardly going to act as a deterrent to the kind of human error which would cause one to confuse ‘Mohammad’ with ‘Mohammed’.

This evidently hasn’t been an issue; I wasn’t able to find a single reported case in California in which a court ruled on the ballot misspelling of a candidate’s name.

Could a candidate who discovered this misspelling before the election sue, looking for an injunction ordering the ballots to be reprinted?

Could a candidate who discovered the misspelling after the election sue to void the election result (assuming he could demonstrate that voters were actually confused by this?)

Ideally you’d want both of these outcomes, but the Elections Code doesn’t seem to call for them; could a court, using equity power, interpose them anyhow?


Proposition 13

Filed under: California Politics — aphrael @ 2:04 pm

This year’s Proposition 13 is a minor technical revision to the California Constitution; it’s so minor, and so technical, that it’s generated virtually no controversy (nobody submitted an argument against), and it wouldn’t even be on the ballot had the authors of a previous proposition not required that any modifications get voter approval.

I will probably be voting for this measure, while grumbling about it being on the ballot at all.


The state constitution contains very specific rules for property taxes, including rules that govern how the taxable value of a property is determined. In general, the taxable value of existing construction does not change until the property is sold, but new construction triggers a revaluation.

That said, certain kinds of new construction are exempt, including two exemptions for earthquake-safety improvements: (1) “reconstruction or improvement to a structure, constructed of unreinforced masonry bearing wall construction” (emphasis added) is constitutionally exempt for fifteen years if it was “necessary to comply with any local ordinance relating to seismic safety”, and (2) the Legislature has the power to exempt “the construction or installation of seismic retroffiting improvements or improvements utilizing earthquake hazard mitigation technologies” entirely … except that such rules may not override the 15-year exclusion for unreinforced masonry.

Proposition 13 replaces both of these with a new constitutional exemption for: “that portion of an existing structure that consists of the construction or reconstruction of seismic retrofitting components, as defined by the Legislature.” This new exemption runs until the property is sold.

My reading of these suggests that it’s a weakening of the exemption: the constitutional exemption for masonry buildings is replaced with an exemption subject to legislative redefinition. That weakens the rule, as the legislature can arbitrarily define away “seismic retrofitting components” or, alternately, define them to be so broad as to encompass everything under the sun. The law has no limitations which I can see on how the legislature defines the term.

The tradeoff is that this allows owners of unreinforced masonry buildings to exclude improvements for a longer period. Aside from the unfairness of treating unreinforced masonry building owners disfavorably, I think the argument is that the potentially shorter-term treatment reduces the economic value of the exclusion and thereby reduces the exclusion’s effectiveness as a bribe: there are some number of unreinforced masonry buildings which are not being retrofitted because the owner has decided that the cost is too high, and a longer-term exclusion would reduce the costs enough to make the safety improvements economically viable.

Both of these strike me as being a stretch. It seems unlikely to me that the legislature would define away this exclusion (because that would be interfering with earthquake safety, an unlikely proposition) or arbitrarily broaden it (because that would reduce state revenue, something the state legislature would be reluctant to approve). I also find it unlikely that there are a substantial number of people who (a) are not fixing safety issues with their unreinforced masonry buildings because they think the expense is unjustified and (b) would be convinced to do it by changing a fifteen-year exclusion into an exclusion-until-sale. There may be some, but I can’t believe it’s a substantial problem.

Either way, this seems like an issue with minor risk and minor reward. It’s somewhat hard to care about, and extremely difficult to get worked up about. That said, there appears to be a benefit (at least one person will likely be motivated to repair their property because of it) and there doesn’t appear to be a harm … and, to the extent that I think this is the sort of thing which we hire representatives to thresh out for us, the fact that our representatives put it on the ballot unanimously (while not being able to agree on anything else) counsels me to vote for it.


The Federal Salary Bubble

Filed under: Uncategorized — Kevin M @ 10:57 pm

There are two Americas. One America is employed by the Federal government. The other America makes half as much, with uncertain security, shoulders the federal budget and guarantees federal benefits that they themselves might never see.

The US Department of Commerce publishes a series of income tables comparing compensation for all public and private employees. If you think that private workers have higher incomes and that government benefits and security are balanced by their lower pay, well, times have changed.

Odds are that the average federal employee (civilian or military) makes twice what you do.

In 2008, the average private sector compensation (wages plus all benefits) was $59,909.  More for some professions, less for others.  State and local government workers got a little bit more:  $67,819 (although they too claim to get less).

But one of the highest income groups in America was “federal government worker”, who made far more than one would ever suspect.

In 2008, the average federal government worker got $111,446 in total compensation.  Military salaries, surprisingly, did not bring the average down — the average military compensation was $113,871.  Only when you get to “government enterprises” (such as the post office) do you drop under $100K.  These low-paid government workers received a mere $85,478 — but that was still 143% of the average private sector compensation.  At the other end, civilian federal workers averaged $119,982 per year, almost exactly double what the poor private sector schmuck got.

Mind you, this is US government data, not something Sean Hannity made up.  Check it for yourself.  Particularly tables 6.2d, 6.3d and 6.5d.  I’ve included summary data from these tables after the break.

This is beyond nuts.  It is unsustainable to have a large government workforce making double what their tax-paying supporters get, with iron-rice-bowl jobs and full pay on retirement at an early age, while the poor slob footing the bill is wondering how on earth he’s ever going to manage on Social Security, should that exist when he’s 65 67 70.

If Greece is the canary, this is the coal mine.



Students sent home for wearing American flag t-shirts

Filed under: Uncategorized — aunursa @ 9:36 pm

Five students at Live Oak High School in Morgan Hill, Calif. were sent home from school on Wednesday because they wore t-shirts with the American flag to school on Cinco de Mayo.

The action was apparently taken because the principal was afraid that the t-shirts might provoke Mexican-American students who were wearing t-shirts with the colors of the Mexican flag to hostilities, and the five students refused to turn their t-shirts inside out.


Textualism and Intentionalism

Filed under: Uncategorized — Leviticus @ 8:55 am

I know I’m completely out of my league when I talk about this stuff – between the two of them, Patterico and Goldstein have parsed the issue inside and out. But the issue is really interesting to me – the implications are apparent, even if the discussion seems a little esoteric at times (usually when I’ve had my brain fried by trying to read and grasp one of their in-depth posts on the subject).

Unfortunately, I essentially missed Patterico’s last post on the subject – entitled “Revisiting the ‘Plain Language vs. Legislative Intent’ Debate in Legal Interpretation” – over at the main blog. It was written as a response (among other things) to a post by Goldstein which asserted that textualism was essentially at odds with intentionalism (though the two often produced similar results).

I left two comments at the very end of that thread – and, as cocky as it sounds, I think they really provided a good reconciliation of textualism and intentionalism, based on the notion of a hierarchy of linguistic signifiers. Since the main thread is more or less dead, however, I wasn’t able to have those comments purified by the fire of public scrutiny. And because I do think the comments really got at the heart of the issue, I’d like to see what people think about them. Again, it feels a little big-headed – sorry.

Here they are:

“106. I’ve joined the party kinda late, but it seems that the reconciling conclusion here is that in legislative instances, the rule of law demands that legislative text be treated as legislative intent until new legislative text revises/clarifies it. Since we are bound by the very nature of our task to choose some signal in ascertaining meaning, might we not as well choose written language over spoken language when the two conflict? Both are signals, intended to communicate meaning – is it not in keeping with intentionalism to have a preference for certain signals over others in certain contexts?

It seems that Goldstein is arguing that the act of choosing, as an interpretive audience, between one signifier of intent and another – that is, choosing to privilege written language over spoken language – somehow hijacks the intent of the speaker/writer, by allowing the audience to select an interpretation which may be more in line with their own preferences. But what choice does an interpretive audience have, but to choose one or the other, and would it be any better to take the opposite path?”


“107. Put another way, is it wrong (from an intentionalist perspective) to have a hierarchy of signifiers? Because that’s what a proper textualist is, to my mind – an intentionalist with written language at the top of his interpretive hierarchy?

I mean, would Goldstein argue that all signifiers are created equal, even when they conflict? Would an intentionalist call it an honest misunderstanding when a rapist tries to justify his actions by appealing to a victim’s body language or dress as indicative of an intent to copulate, in lieu of spoken language to the contrary? If not, does that not privilege one type of signifier over another? Or am I missing something?”

It’s that last part that I’m really curious about – and I don’t know how many hardcore intentionalists we have here – but I’d like to know if I’m missing something in the whole intentionalism debate.

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