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October 29, 2007


As Published On
The Out-Lawyer’s Blog: http://www.jaygaskill.com/blog1

The Bridge to Being Blog: http://www.jaygaskill.com/blog2/  

The Human conspiracy Blog: http://www.jaygaskill.com/blog3
The Policy Think Site: http://www.jaygaskill.com
All contents, unless otherwise indicated are
Copyright © 2005, 2006 and 2007 by Jay B. Gaskill
Permission to publish, distribute or print all or part of this article (except for personal use) is needed. [Permission for use in group discussions is almost always routinely given.]
Please contact Jay B. Gaskill, attorney at law, via e mail at law@jaygaskill.com




My last piece on the Human Conspiracy Blog - http://jaygaskill.com/blog3/ [or try http://jaygaskill.com/blog3/2007/10/needling_public_safety_in_san.html ], elicited some responses.  I had defended the death penalty, lethal injection, and expressed my dismay at San Francisco’s proposed ‘needle’ room for addicts. I’m cross referencing that article and the recent replies on both blogs.


Here are two “needle exchanges”.
Fri, 19 Oct 2007
“Josh” on drug legalization
I disagree [because] you equate drug use to slavery - so if we somehow allow people to use drugs, should they and their posterity be entitled to reparations? Ok, bad joke. It’s certainly a bad behavior, but it’s different than slavery in that people choose it, they have chosen it for the history of mankind, and they will continue to choose it forever.
It's a bad metaphor, because violence against your masters will liberate you from slavery, but only self-determination will liberate you from drug addiction. I am NOT endorsing the safe-injection room. San Francisco is a weird place. I'm just saying that we can't, haven't, and won't truly prevent people from subjecting themselves drug addiction. But we can sure spend a lot of money and kill and imprison a lot of people trying. I have never taken any illegal drugs myself, but it’s not the law that stopped me.
JBG replies:
Point one:
Josh, the initial act or series of acts that lead to addiction may or may not be fully voluntary in the following sense:  Few people actually understand the power and immediacy of the addictions that can result from certain psychotropic drugs.  For example, the class of chemicals to which “crystal meth.” belongs operates very quickly to alter brain chemistry, ultimately co-opting dopamine receptors (essential for experiencing pleasure) and later, in effect, “burning them” out so that two things happen; (1) it takes more and more meth. to achieve the same pleasurable effect and (2) the brain’s capacity to respond with pleasure to any other stimulus is impaired.  No drug dealer gives these kinds of warnings.
Point two:
I was not trying to make the case that the dealer who dupes the user creates a condition of slavery ab intio.  This is like those sailors who were enticed with false promises to get aboard a ship then never allowed off.  We don’t allow or enforce agreements that result in involuntary servitude in this free country of ours.  But certain psychotropic chemicals so profoundly alter the brain’s volitional centers that, once addiction has taken hold, the result is a chemically induced form of involuntary servitude, as it were.  It is a strong and apt metaphor, I think.  The rest of your concerns will be addressed in my responses to Professor H.
Professor H on drug legalization.
This is the (slightly abridged) exchange between my and professor J.H.
I just read your views on the death penalty and S.F’s facilitation of addicting drugs.  The thing that I found most interesting in your piece is that drug addicts commit a disproportionate share of homicides.  Do you have the exact proportions handy?
I wonder how much of drug addicted homicide is due to the chemical action of drugs on the body and how much is due to drugs being illegal?  Has anyone done a study of alcohol related homicides?  I ask because, as we all know, alcohol diminishes inhibitions, so I would imagine that there is a somewhat higher proportion of homicides committed by persons on alcohol than by sober persons.  Nevertheless, we don’t hear a lot about alcohol related homicides nowadays.  During prohibition, on the other hand, we heard a great deal about them.  Similarly, I hear a lot about drug related murders in Washington, D.C., but I don’t hear much about murders by persons under the influence of heroin or cocaine or marijuana.
Whatever your answer to my questions, I think that your analogy of drug addiction to slavery is misleading.  Drug addiction is not a violation of rights; slavery is.  Drug addiction can sometimes be a personal tragedy with some harmful social consequences, but let’s not equate it with the Gulag or the Nazi concentration camps. 
JBG replies:
Thanks, “J”, as always, for your thoughtful comments and questions. 
I came to my present policy perspective about “demon drugs” from a fairly rigorous libertarian perspective, reluctantly surrendered (in part at least) in the face of real world contact.
Alcohol has always come with a “crime connection” but differs as a matter of degree from the psychotropic effects of hard narcotics, cocaine, and meth.  The latter are also broad band hyper-addictive, in that the addiction tendency cuts in strongly across a wide swath of the population, while alcohol does this for a very narrow band of the population.  Unlike cocaine, say, alcohol use can have positive cardiovascular benefits.  Our species enjoys a five thousand year old accumulated data base of experience in dealing with booze, so far relatively safely.
I don’t favor any war on drugs that would misdirect itself to include alcohol or, for that matter, marijuana.
The drug/crime/murder connections were an easy generalization, since - for convenience - I lumped together the very large number of criminal druggies with the much smaller non-criminal ones (i.e., not yet arrested for anything).
There is fairly little reliable data about the “non-criminal” users of illicit addictive drugs. This tends to be a protected subgroup, belonging to a more prosperous cohort; their friends and families are well able to maintain social control on their drugged out members and able, also, to keep their addicted members out of the prying eyes of researchers.  But there are lots of data in the hands of Private rehab providers who will give you a confidential earfull of anecdotal data, all corroborative of the character deterioration effect. 
Re the homicide-drug use connection:
Crudely speaking, there are two sets of killers: (1) those with criminal records. (2) all the rest.  As might be expected, in the urban core where most of my hands-on experience and numbers came from, the first group far exceeds the second. 
It works out that, in Oakland for example, almost 90% of the murders over the last decade, say, were done by males who had some criminal record.  My informal statistics - corroborated by conversations with Bay Area police officially who should know - are most homicides are being committed by males with criminal records, most of whom were “into” drugs - as indicated by the fact that their rap sheets included one or more drug crimes. 
The drug culture has so interpenetrated the crime culture that a correlation like this is no surprise to anyone close to the problem.  That criminal drug use and homicide are more strongly correlated than for the general population was a “no brainer” because I was simply comparing the general population (for whom a criminal conviction is a rare anomaly) with the homicidal population (that overwhelming is already criminal at the time of the first homicide).
I take it your core questions are these: (a) whether and to what extent the addiction to certain drugs (principally cocaine and methamphetamine, in my view) is or is not strongly associated with violent behavior in general and homicide in particular and (b) whether any such association is more related to the illegality of these psychotropic substances as opposed to the brain and character changes brought on by long term, profound addiction. 
I’m personally persuaded that there is a strong correlation between cocaine and methamphetamine abuse and violence, but a much weaker correlation with heroin addiction. There is a higher incidence of violence among heroin users (again as compared with the general population) that probably holds true for the entire opiates subset; but I suspect it is due the to “desperation factor” for the withdrawing addict.
In general, I have formed a definite opinion based on long term observation (not lightly to be dismissed as anecdotal), on conversations with addiction specialists and by reading some of the neurological literature.  Addictive “drugs” - in the sense just described – are “character poison”.
What we tend to call “moral character” is composed of at least three traits, each of which is quickly degraded during addiction to the illegal “uppers” and to certain other addictive, quick acting psychotropic chemicals:  (1) the capacity for empathy and compassion; (2) the capacity to resist impulsivity in favor of longer term thinking; (3) and the (related) capacity for loyalty and promise fidelity. [Note that all three are degraded by heroin as well.]
The slavery metaphor in my reference was based on interviews with the recovered former addicts for whom the powerful impact of addiction on the volitional centers of the brain temporarily left them irrationally committed to a chemically induced “slave state”.  You will constantly hear the refrain from this group, “I was a slave to…”  The neurology of addition – at least in the extreme cases – tends to corroborate my metaphor. These addicts initially resisted rehabilitation then regarded it as liberation.  It is not unlike opening the doors to a slave holder’s workhouse, and finding that not everyone eagerly runs out into freedom.
I have made the point elsewhere and in more detail that liberal democracy would likely disappear if the addicted were (a) allowed to vote (as they are now) and (b) ever achieve a critical mass. This dire scenario is prefigured by the some political operatives who, on behalf of a particular agenda, continue to attempt to recruit other easily manipulated populations. The loss of critical thinking - whether via drug addiction or otherwise - can destroy democracy in its liberty friendy form.  To actually risk that just to pursue a libertarian "free drug" utopia is close to suicidal insanity, in my opinion.
I tend to agree that - from a purely Darwinian perspective - it could be “rational” to let the addicts sink or swim without interference.  But they are so easily manipulated, so loosely wrapped, and so impulsive that - trust me - you don’t want to live in - or even near - their world. And you definitely don’t want their world to become the dominant one. 
Did you ever see Lucas’ early Sci-fi masterpiece, THX 1138?  This was a dystopia in which the ‘authorities” want to keep the population drugged and compliant.  In one scene, the medicine chest talks to the character played by Robert Duval who is trying to get off his drugs and escape. It is a brilliant, still relevant  film
My essay on the drug topic - now somewhat out of date - is still posted at http://jaygaskill.com/narc.htm  .
Josh on death penalty (abridged):
… Assuming that the threat of the death penalty really deters people from getting caught at murder (note: these numbers only consider the statistics in official murder cases) doesn't mean that it is moral or that it’s really effective over the long term. And this study in no way shows that it is the only or the most effective solution.
What you appear to grudgingly conclude is that refusing to threaten the general population with being tied up and executed in a premeditated fashion somehow makes us culpable for the murders committed by sociopathic criminals. …. you have no automatic obligation to do something morally wrong or questionable because an unscientific and inconclusive study suggests it might save someone’s life in the long run. As moral actors, we should seek to know a good thing or the best thing to do to save lives, not just any old thing, especially not a thing that is so clearly abhorrent to humans.
Furthermore, our government does not have a responsibility to commit morally questionable acts to protect us from potential internal threats. In fact, the government should be and generally is prohibited from such acts. There are many possibilities that can be explored in dealing with crime, but this study (and our society in general) doesn’t explore any of them. The criminal justice system we use is based on the traditions of kings, dictators, and cowards, and then watered down by lawyers and liberals for several centuries.
What we have now in America is a system that randomly punishes people for various acts, some of which are harmful and some of which are relatively innocent, imprisons people for outrageously and ineffectively long periods of time, makes little or no attempt to change the fundamental character of its wards in any positive way, and usually leaves the victims of real crimes without recompense. And every once in a while it randomly executes someone chosen from among the more sinister dregs of one of its dungeons. Usually it’s someone appropriately guilty-looking. And according to this one study there was a correlation between no death penalty and a rise in murder cases.
JBG replies to Josh:
I’ve written extensively on this subject.  Here are the links.
Death, Deterrence and Reform http://www.jaygaskill.com/DeathDeterrenceReform.htm
Oakland tribune Piece
My copy of the AEI-Brookings Study in pdf format http://jaygaskill.com/AEIBrookingsDeathPenalty.pdf .
 My comments follow. 
The Brookings AEI study authors made the point to which you object: “What you appear to grudgingly conclude is that refusing to threaten the general population with being tied up and executed in a premeditated fashion somehow makes us culpable for the murders committed by sociopathic criminals. ….”  This is exactly what the authors meant by the problem of “life vs. life choices”. If we assume, as they do, that a lawfully convicted killer has forfeited his right to life, liberty and the pursuit of happiness, the blanket exercise of mercy for all such killers becomes a sort of moral luxury, one in which society can indulge, so long as it does not lead to the loss of additional innocent life. But, for them – and many other morally thoughtful persons, evidence of a deterrence effect changes the moral calculus, at least from a public policy perspective that favors keeping the murder rate as low as possible.
If you assume that the life of the actual murderer is of equal value to that of all of the several victims that one execution might deter, then you have pre-decided the moral question.  When you imply that executions are so “clearly abhorrent to humans” that even saving other lives does not warrant an occasional murder’s execution, then you are adopting a “facts don’t matter” moral position.
Joshua, you are concerned, as anyone should be, with the overall punishment system. Whatever its flaws, it tends to work because people are deterred by the prospect of punishment.
But I would ask anyone who genuinely values innocent life to consider this representative scenario.  A large number of inner city thugs have become so habituated to prison life that they are not very strongly deterred by the threat of a “mere” prison sentence.  A subset of them now face a third strike punishment for their very next felony offense, that of life in prison.  Under these circumstances, a robber who is identified by someone has an incentive to kill that witness in order to escape punishment.  Now, if the only possible punishment is life in prison for the robbery or for the murder, what is there to lose by killing the witness? 
There are a number of violent carjackings committed every month in the inner city.  In many of these cases the victim is thrust into the trunk of her car while the thug drives away from the scene.  The next chilling question arises over and over again.  What to do with that witness in the trunk?  Some are spared. In some of those cases, the would-be killer’s hand was stayed by the possibility of real punishment, a stay on death row under threat of execution, or even execution itself.
No, the death penalty does little to deter “crimes of passion” but it does operate to save lives in many, many calculated murders.  Even in California, where very, very few of the hundreds of killers on death row are actually executed, the mere threat of being put in that situation has saved lives.  How many, you ask?  My short answer, based on the data, is enough. After all, where are you going to find the great preponderance of innocent victims?  On death row or in the murder victim obituary columns?
An excerpt from my paper:
Social Cost Analysis
A social cost calculation is possible, based on the value of a human life in different circumstances.  Here is the formula:
L = [D s] – [E p]
·        L is the measure of the success of the death penalty in net valuable lives.
·        D is the raw number of lives saved by deterrence.
·        s is the value assigned each life saved by deterrence. [s=1 or whatever society chooses.]
·        E  is the raw number of executions in the time frame.
·        p is the value assigned to the life of a murder perpetrator.[p = 1 or whatever society chooses.]
To solve for “L,” we multiply the number of lives saved by deterrence times the value “s.” From that number, we subtract the number of executions times the value “p.” L is a measure of the success of the death penalty in valuable lives.
In other words, whenever “L “is a positive number, net valuable lives are saved. If “p’ (the value of the life of the killer) is set at zero, then the death penalty always saves net lives unless “D s” (value of lives saved by deterrence) is zero. This never happens (unless we perversely place s, the value of a single life saved, at zero), because we can always find examples of criminals who were deterred. 
Some would have us assign the life of  a convicted killer exactly the same value that of a saved life. [I think this is fairly perverse. When “p” and ‘s ‘each = 1, we have a moral equivalence between killer and victim.]  But even in that calculation, the death penalty saves valuable lives because a tiny deterrent effect produces a net savings of human life whenever “E” is a small number. Only a minuscule percentage of all homicide convicts are actually executed.
For example, at a rate of 6 homicides per 100,000, a jurisdiction with a population of 30 million people would suffer 1,800 homicides in a year.  Let’s assume 16 are executed in a given year (which is more than the total number California executed in the last decade).  If only 2% additional homicides are deterred that year because of the possibility of the death penalty, 36 innocent lives will have been saved, a net savings of 20 lives even if we were to perversely assign the same value to the life of each murder victim and murderer. 
Only if the value of  “p” is grossly exaggerated can that calculation outcome be changed.  If effect, the true-believer death penalty opponents are assigning an infinite value to p, the life of the killer.  This may or may not be good theology, but it is terrible public policy.
Let’s pick a more realistic number for p. Assume the value of the life of a convicted death eligible killer is reduced to p=.5, (a generous value considering the value most Californians would assign). If only 9 murders were deterred in the last hypothetical, society would still be ahead. And when the reduced penal consequences to the would-be killers are taken into account (after all a murder deterred is one less killer, too), the societal balance sheet is not even close.
Whenever the value of the convicted killer’s life is reduced from p=1,  a very, very weak deterrence effect, one measured by a handful of individual cases, always demonstrates a net social benefit.




October 18, 2007

Darwin vs. Nanny

As Published On
The Out-Lawyer’s Blog: http://www.jaygaskill.com/blog1

The Bridge to Being Blog: http://www.jaygaskill.com/blog2

The Human conspiracy Blog: http://www.jaygaskill.com/blog3
The Policy Think Site: http://www.jaygaskill.com
All contents, unless otherwise indicated are
Copyright © 2005, 2006 and 2007 by Jay B. Gaskill
Permission to publish, distribute or print all or part of this article (except for personal use) is needed. [Permission for use in group discussions is almost always routinely given.]
Please contact Jay B. Gaskill, attorney at law, via e mail at law@jaygaskill.com


Darwin vs. Nanny


The evidence accumulates.  The “Nanny State” efforts of the advocates and regulators who seek to impose a risk free life on the rest of us have run up against the laws of nature.  For every attempt to legislate or impose a “safer life” nature automatically imposes a hidden but very real set of costs.

Consider the latest, but not the last case of Mom or Dad “forgetting” that quiet infant in the back seat, only to discover a dead child a few hours later. 

A distracted, forgetful, narcissistic, but now horrified, parent is just another “victim” of 21st century life? I’m waiting for the lawsuit. 

“You made me carry my infant in the back seat.  You should have known I’d forget!  What’s a poor parent supposed to do?” 

Only a few of these neglectful parents are prosecuted criminally; this from a society that has temporarily paralyzed law enforcement’s efforts to deter murderers, because we’re squeamish about putting down a convicted serial child killer by employing essentially the same technology we routinely use to retire a beloved pet. 

This is one thoroughly confused culture.

Our small ones are carried in the back seat for sound reasons.  It’s safer there because the safety explosives (air bags) in the front seat were designed to protect the life of an archetypical 5 foot 8 inch, 180 pound male in a high speed collision.  As a recent police bulletin warned us: “Airbags detonate with more than 1200 lbs of force at speeds that can exceed 230 mph.”  And yes, both children and adults have been killed by air bag detonations.

Now don’t get me wrong.  A similar source tells us that “Children are up to 29 percent safer riding in the back seat versus the front seat, whether the vehicle has an air bag or not.”

Of course pickup trucks don’t have a back seat.

Another official source discloses: “[Airbag] injuries are far more prevalent than deaths, but the data is difficult to evaluate because accidents and injuries are voluntarily reported to the National Automotive Sampling System and include information not investigated and verified. But these are the best information available.  Injuries are not recognized as an issue or tracked by NHTSA.”

I am reliably informed that Dr Maria-Segui Gomez, a respected airbag researcher, has found that at speeds lower that 32-28 miles per hour, “the potential for injury from airbags outweighs the benefits”.  Females, the elderly, children and shorter males beware. 

And don’t ever get within 12 to 14 inches of an airbag detonation.  From another very credible report, we learn: “Turning sideways [at detonation] can break the neck or spine. This is even worse when the passenger is not wearing a seatbelt with pre-tensioners because the passengers arrive very close to the dash just as the airbag detonates.” 

Truck manufacturers and several aftermarket vendors now supply a “turn off” switch for airbags.  But the government is “concerned”.  After all, we drivers can’t always be trusted to use these switches “responsibly.”

Not to worry, smart, computer controlled airbags are under development. Just as soon as they are on the market (we are told that is to be 2012, otherwise known as “Nanny Year”), those “off” switches will be illegal.

I’m all for safety.  But I’m also for personal accountability.  If you really care about automobile safety, stay sober, alert and off the cell phone while operating fast moving heavy machinery. 

Want something a lot safer than airbags?  Invest in a five or six point safety harness.  Check in your back seat – Little Jimmie probably already has one.  For that matter, so do your favorite NASCAR drivers.







October 04, 2007

Senator Craig -- The "Good Student"


As Published On

The Out-Lawyer’s Blog: http://www.jaygaskill.com/blog1  

The Bridge to Being Blog: http://www.jaygaskill.com/blog2

The Human Conspiracy Blog: http://www.jaygaskill.com/blog3
The Policy Think Site: http://www.jaygaskill.com
All contents, unless otherwise indicated are
Copyright © 2005, 2006 and 2007 by Jay B. Gaskill
Permission to publish, distribute or print all or part of this article (except for personal use) is needed. [Permission for use in group discussions is almost always routinely given.]
Please contact Jay B. Gaskill, attorney at law, via e mail at law@jaygaskill.com

The Idaho Senator is more or less a laughing stock in his home territory, if my recent visit was any indication.  The outcome in his 'StallGate' case was perfect (for anyone who is guilty but wants to cling to life as it was before the arrest).  The senator "tried" to get justice (very belatedly, of course) but "failed", thus (as he probably sees it) getting the benefit of the doubt.

Actually the senator avoids a circus trial in which (If the Boise Statesman's story about reports from gay males were at all well founded) his "I'm not gay" claim would have been tattered.  

As the AP has just reported:

"I have seen that it is possible for me to work here effectively," Craig said in a written statement certain to disappoint fellow Republicans who have long urged him to step down.
"Craig had earlier announced he would resign his seat by Sept. 30, but had wavered when he went to court in hopes of withdrawing his plea."

Sure. Actually, I am persuaded he hoped for this very outcome. He now thinks he can follow in the footsteps of Senator Barney Frank, a former president and others who have successfully argued that sexual scandals are not "job related". 

Of course not. But what about veracity?  Oh, I forgot.  These are politicians....


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