Category: reason

Illinois lawmakers have kicked off the new year with a massive policing reform bill. It will eliminate the use of cash bail, limit the use of deadly force, improve reporting of deaths in police custody, mandate the use of body cameras, and make it easier to decertify and fire officers who engage in misconduct, among other things.

The bill, H.B. 3653 was passed Wednesday by the state Senate and then early Thursday morning by the state’s House. Democratic Gov. J.B. Pritzker has praised the bill, so it seems likely he’ll sign it into law.

The bill is lengthy—more than 700 pages—and touches many areas of policing:

• It creates a process for the state’s attorney general to take a law enforcement officer to civil court if that officer has violated a person’s civil rights and to seek financial damages, with a cap of $50,000. An earlier version of the bill would have stripped police officers of qualified immunity when they’ve been found to violate a person’s rights, thus allowing individuals to sue officers in civil court, but that was removed from the final version of the bill.
• It mandates body cameras for all police officers in the state, with compliance deadlines staggered across the next four years.
• It establishes that after January 2023, monetary bail will be abolished within the state. Instead, people arrested for crimes will be evaluated with a goal of releasing them with only enough pretrial conditions to ensure they make it to subsequent court appearances and don’t commit crimes while on release. Full detention will be ordered only “when it is determined that the defendant poses a specific, real and present threat to a person and has a high likelihood of willful flight.” The court may use a risk assessment tool to evaluate the defendant, but the score cannot be the only reason why a defendant is denied pretrial release—and the defendant must be provided the information, so that he or she may challenge it. There are many exceptions to the orders for pretrial release, including defendants accused of stalking and domestic violence, many firearm-related crimes, human trafficking crimes, or any forcible felony that comes with a mandatory minimum prison sentence. Even in these cases, however, a court must determine that the defendant is too dangerous to be released.
• It establishes a new class 3 felony of law enforcement misconduct, with a possible sentence of two to five years in jail. This will cover officers who misrepresent facts during an investigation, withhold knowledge of misrepresentation by other officers, or fail to comply with state laws or department policies on body-worn cameras.
• It allows cities with populations greater than 100,000 to require that police live within city limits. Current law only permits this for cities with population greater than 1 million.
• It allows other first responders besides police to direct people they encounter with substance abuse problems toward treatment programs, without requiring an arrest.
• It allows funds for police and first responders to carry naloxone and similar supplies that can reverse opioid overdoses.
• It prohibits law enforcement agencies from requesting or receiving excess military equipment, such as armored vehicles, large-caliber guns, or grenade launchers.
• It prohibits retaliation against whistleblowers, a problem that has come up repeatedly when people try to expose misconduct in the Chicago Police Department.
• It demands that all records connected to complaints against police officers and investigations of police officers be retained permanently.
• It adds crisis intervention and de-escalation training to the curriculum for new police officers and to mandatory training every three years.
• It requires the state police to participate in and provide data to the FBI’s National Use of Force database.
• It amends the police disciplinary process system so that officers under investigation are not provided the names of those filing the complaint, and so that it is no longer a requirement for people to provide their names in order to file a complaint about police misconduct. The Illinois Law Enforcement Training Standards Board is authorized to perform the preliminary review to see if there is evidence that supports the anonymous complaint.
• It halts the practice of suspending driver’s licenses for failure to pay traffic citations or abandoned vehicle fees.
• It amends the definition of resisting or obstructing a police officer to require that, in order to arrest and individual for resisting arrest, there must be an underlying offense for which the person was subject to arrest. No more charging people only with resisting arrest.
• It forbids the use of deadly force against people who are a danger only to themselves, and it forbids the use of deadly force against those suspected of committing only property offenses (except in cases of terrorism). The new rules require that deadly force be used only “when reasonably necessary in defense of human life.” It also explains that “merely a fear of future harm” is not enough to reach this threshold. That’s an important distinction, because many defenses of police shootings of unarmed suspects revolve around the officers claiming that they feared the suspect was armed.
• It forbids chokeholds and neck restraints and forbids the use of force as punishment or retaliation. It forbids the use of non-lethal weapons in a manner that targets the head, pelvis, or back, and it forbids firing non-lethal weapons indiscriminately into crowds. It also forbids using irritants like tear gas against crowds unless police have both ordered the crowd to disperse and given it enough time to do so.
• It establishes a duty to render aid to anybody police encounter who is injured (or anybody they injure) and an affirmative duty to intervene when they witness another police officer using unauthorized force. Retaliation against an officer who intervenes in this fashion is forbidden.
• It calls for the citation and release rather than the arrest of anybody accused of traffic offenses, petty offenses, or low-level misdemeanors, unless they pose an obvious threat to others or themselves.
• It establishes that all police officers must be certified to perform as law enforcement by the state’s Illinois Law Enforcement Training Standards Board. It gives the board the authority to suspend an officer’s certification immediately if the officer has been arrested or indicted on felony charges. A panel will hear the officer’s case and can decide whether to maintain or reverse the officer’s suspension of certification.
• It orders the creation of a searchable database of law enforcement officers, available to the public, showing each officer’s certification status and any sustained complaints of misconduct.

This is a lot of reform to pack into one bill, and it’s going to take some time to see how it all plays out. The bail reforms appear to be following the same steps as New Jersey, which has mostly eliminated the use of cash bail, without making the mistake California did of giving judges too much leeway to deny pretrial release. Judges will still call the shots for the rules of pretrial release in Illinois, but as in New Jersey the law establishes a presumption of release and forces the court to document why somebody is too risky to be released.

Those distinctions matter because the purpose of reforming bail is to make sure that risk, not money, determines whether somebody is detained before trial. America has about half a million people stuck in pretrial detention, many of whom are not dangerous to the public but simply cannot afford the cost of bail. People who are unable to earn pretrial freedom typically end up accepting worse plea deals and get harsher sentences than somebody able to address the charges outside of jail.

But if judges aren’t given the right tools to assess risks, the reforms can backfire and leave more people detained without any option of being released, since cash bail is no longer permitted. In Baltimore, poorly implemented reforms have led to an increase in people being released on their own recognizance, which is good, but also an increase in the number of people detained with no prospect of pretrial release, which is bad.

As for the risks when more people are released before trial: The evidence is preliminary, as many of these reforms are so new, but a reduction of bail demands in Chicago’s Cook County found that increasing the number of people freed from detention did not contribute to crime increases.

It’s unfortunate that reforms to qualified immunity were cut from the bill, but the legislation does call for a task force to explore possible changes in that area. Qualified immunity has been abused to protect police officers (and other government officials) from civil liability when they abuse citizens. Curtailing or eliminating qualified immunity would make cops think twice about beating people up for no good reason.

But even without that reform, police interests are screaming bloody murder, by which I mean they’re saying you’ll be bloody murdered if you restrain the police state. The Illinois Law Enforcement Coalition claims the bill “ties the hands of police officers while pursuing suspects and making arrests, and allows criminals to run free while out on bail. The legislation includes no way to pay for any of these law-abiding citizen-threatening measures, so taxpayers will have to pay extra for the privilege of being crime victims.”

Well, let us know when it approaches the hundreds of millions of tax dollars being spent to pay settlements for police abuses just in Chicago alone.

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Following last week’s attack on the U.S. Capitol by a pro-Trump mob, Twitter permanently banned President Donald Trump from its platform, and Facebook and YouTube suspended his accounts. 

Meanwhile, Parler, which markets itself as a more open alternative to Twitter, was removed from the Apple and Google app stores, and Amazon Web Services booted the company from its cloud computing platform. 

Is the “Great Deplatforming of 2021” a genuine threat to free speech? Or, should we “think of Twitter as a Christian bakery and Trump as a gay wedding cake,” as one user of the platform quipped, meaning that nobody should be able to force a private company to do business with someone it disagrees with?

Enter Mike Masnick, the 46-year-old entrepreneur and analyst behind the influential website Techdirt and the digital think tank, the Copia Institute. While others are constantly talking about how to restrict and regulate the internet and tech giants to conform to one ideological vision or another, Masnick champions protocols and practices that he thinks would lead to a more decentralized internet and culture, including expanding Section 230 immunity, the use of encryption, and tools that give end users, rather than political and commercial commissars, more power to control what we say and see online.

Nick Gillespie spoke to Masnick about what current debates over social media get woefully wrong, how free speech is simultaneously empowered and imperiled by politicians here and abroad, and why a more decentralized internet is not just possible but preferable to what we have now.

Narration and interview by Nick Gillespie. Edited by Regan Taylor and John Osterhoudt. Graphics by Lex Villena.

Photo: Ivy Ceballo/ZUMA Press/Newscom; Gage Skidmore/Flickr/Creative Commons; Dennis Yang/Flickr/Creative Commons; Internet Education Foundation/Flickr/Creative Commons

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Last year is either in a tie for the hottest year in the modern temperature record or a close second place, according to datasets just released by various global temperature monitoring groups.

Earlier this month, the European Copernicus Climate Change Service reported that “2020 was tied with the previous warmest year 2016, making it the sixth in a series of exceptionally warm years starting in 2015, and 2011-2020 the warmest decade recorded.” 2020 was 0.6°C warmer than the standard 1981–2010 reference period—and around 1.25°C above the period from 1850 to 1900.

NASA’s Goddard Space Studies Institute similarly agrees that the “Earth’s global average surface temperature in 2020 tied with 2016 as the warmest year on record.” GISS also found that Earth’s average temperature has risen more than 2°F (1.2°C) since the late 19th century.

Some other climate research groups say that 2020 was a close second to 2016. For example, the University of Alabama in Huntsville‘s satellite data has 2020 just behind 2016 and just ahead of 1998. (“Considering the uncertainty of the measurements,” the researchers note, “these three years could be considered as tied for the warmest year of the 42-year record.”) The National Oceanic and Atmospheric Administration’s National Climatic Data Center also puts 2020 in second place: “just 0.04 of a degree F (0.02 of a degree C) cooler than the 2016 record.” And the independent Berkeley Earth research group has concluded that 2020 was the second warmest on Earth since 1850 if you take both land and ocean data into consideration—but it adds that “2020 was definitively the warmest year on record for land temperatures, nearly 2 degrees Celsius above the pre-industrial average.”

The U.K.’s Met Office also ranks 2020 as the second warmest year, just below the global record set in 2016. The Met Office researchers note that 2016’s temperatures “were elevated by El Niño conditions“—when the surface waters in the central and eastern Pacific Ocean become significantly warmer than usual—”which can increase global temperatures by around +0.2°C.” As it happens, the advent of a La Niña phase in the Pacific Ocean during the last half of the year actually lowered 2020’s global average temperature.

In my November 2019 article “What Climate Science Tells Us About Temperature Trends,” I cited a team of Chinese atmospheric scientists who found that the high average global temperatures in 1998 and 2016 had been boosted by super El Niños in those years. In 1998, the El Niño event added 0.18°C to the long-term warming trend; in 2016, it added just 0.06°C. In other words, it took a lot less heat to boost the global average temperature in 2016 to slightly above the average in 1998. It is, therefore, significant that even a cooling La Niña could could not keep 2020 from basically tying 2016 as the warmest year in the modern temperature record. As the Chinese researchers observed, their analysis “implies that warmer years like 2014–2016 may occur more frequently in the near future.”

“The last seven years have been the warmest seven years on record, typifying the ongoing and dramatic warming trend,” said GISS Director Gavin Schmidt in a press release. “Whether one year is a record or not is not really that important—the important things are long-term trends. With these trends, and as the human impact on the climate increases, we have to expect that records will continue to be broken.”

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[This post is co-authored with Seth Barrett Tillman.]

Yesterday, the House adopted a single article of impeachment, titled Incitement of Insurrection. The House did not actually charge President Trump with personally engaging in insurrection. Rather, the five-page resolution asserted that Trump’s words and tweets since the election “encouraged” the “lawless action at the Capitol” and “gravely endangered the security of the United States.” The House rejected any argument that the President’s speech was protected by the First Amendment. The Judiciary Committee concluded that freedom of speech “applies very differently” to the President “by virtue of his office” than it does to “private citizens.” Moreover, the Committee endorsed the views of constitutional scholars who argued the President has zero free speech rights in this process. 

Regrettably, the House Democrats have forgotten an important lesson from the impeachment trial of President Andrew Johnson. In 1868, the Radical Republicans impeached the Tennessee Democrat for using “intemperate” and “inflammatory” language that was critical of Congress. Ultimately, Johnson was never convicted on this charge, in part, because pivotal Republican Senators insisted that the First Amendment protects the President’s freedom of speech. History may repeat itself again soon. To secure a conviction, House managers, acting as prosecutors, must make their case to the Senate, and to the country, that convicting Trump is consistent with the First Amendment. The President’s right to free speech should not be simply dismissed out of hand.

After Lincoln’s assassination in 1865, Vice President Andrew Johnson became President. Over the next three years, Johnson frequently clashed with Congress. The Radical Republicans wanted to pursue a vigorous and forceful reconstruction of the southern states in the wake of the Civil War. Johnson opposed many of these efforts. This conflict peaked when Johnson fired Edwin Stanton, who was Lincoln’s holdover Secretary of War. 

In 1868, the House of Representatives approved eleven articles of impeachment against Johnson. Most of the articles concerned Stanton’s termination. But Article 10 focused on Johnson’s public criticism of Congress. It asserted that Johnson brought Congress “into disgrace, ridicule, hatred, contempt and reproach.” In one speech in Washington, D.C., Johnson said Congress only “pretend[ed] to be for the Union,” but was for “only part of the States,” and sought to “exercise [the] power” of a “despotism.” In a second speech in St. Louis, Johnson said that “Congress, factions and domineering, had undertaken to poison the minds of the American people.” In a third speech in New Orleans, Johnson said he was betrayed by Radical Republicans who had “diabolical and nefarious” plans.

Ultimately, Johnson was acquitted in the Senate. History records that seven Republicans crossed party lines, and voted against conviction. John F. Kennedy lionized one of the septet, Senator Edmund G. Ross of Ohio, as a Profile in Courage. (In recent years, that account has come into some doubt.) But largely lost in that history is that five of the other breakaway Republicans defended Johnson’s free speech rights. They agreed that the President had the same First Amendment rights as a private citizen. 

Senator John Henderson of Missouri stated plainly that “the President, like other persons, is protected under” the First Amendment. “He too,” Henderson continued, “has the right to make foolish speeches.” Senator James Grimes of Iowa admitted that Johnson’s speeches were “indiscreet, indecorous, improper, [and] vulgar.” But he could not “attempt[] to repress the freedom of speech.” Senator Peter Van Winkle of West Virginia said the First Amendment was “unquestionably of universal application,” even to the President. Senator Joseph Fowler of Tennessee boasted that Johnson did no “more than exercise that liberty of speech guaranteed to him by the Constitution.” Senator William Pitt Fessenden of Maine warned that removing the President for his speech would not only “den[y] him a right secured to every other citizen of the republic . . . but might deprive the people of the benefit of his opinion of public affairs.” The President, Fessenden contended, has the right to communicate with the people. And the people have a right to hear those communications.

To be sure, several Republicans who voted to convict Johnson insisted that the President’s free speech rights were reduced. Senator Timothy Howe of Wisconsin stated that the “people of the United States own the office of the President,” and can “protect it from desecration.” And Senator Jacob Howard of Michigan maintained that “no question of the ‘freedom of speech’ arises here.” 

The House managers, who prosecuted the case, rejected the First Amendment defense. Representative John Bingham of Ohio would “stand against that freedom of speech which would disturb the peace of nations.” In a fiery speech, Representative Charles Sumner of Massachusetts said the “President, at the top of the ladder,” has “greater responsibility” than other government officers, and thus should be held to a higher standard.

Ultimately, the Senate never voted on Article 10, so we do not have a final judgment on the constitutionality of that charge. Yet, this history should give the House managers pause about their rejection of First Amendment rights for the President.

During the upcoming impeachment trial, Senators will not be bound by Supreme Court precedents in the same way that lower courts are. We think the Supreme Court’s First Amendment caselaw establishes a baseline. And Senators ought to explain their departure from those precedents. A senator might comply with his constitutional oath, and act in good faith, if he determines that the full scope of First Amendment rights apply to the President under established Supreme Court caselaw. A senator might also comply with his constitutional oath, and act in good faith, if he were to decide otherwise. Our point is that First Amendment rights established by the courts establish a baseline from which departures ought to be explained.

We do not doubt that different positions with regard to the scope of the President’s First Amendment might be applied by a conscientious member of Congress. And each of these different legal positions may still lead to a conviction. But we do think departures from the judicially-established baseline ought to be explained. The process, and constitutional rationales, matter. In his classic book about presidential impeachments, Grand Inquests, Chief Justice Rehnquist observed that, during times of conflict, “[p]rovisions in the Constitution for judicial independence, or provisions guaranteeing freedom of speech to the President as well as others, suddenly appear as obstacles to the accomplishment of the greater good.” The Chief Justice was right.

By necessity, this process has been hurried. Yet, Congress should not forget the lessons of history in the rush to convict President Trump. We know all too well that history has a way of repeating itself. During Johnson’s impeachment trial, a House manager warned that Johnson’s remarks were not “only talk.” In a speech that could be used for Trump’s senate trial, Representative Benjamin Butler of Massachusetts said that “words may be, and sometimes are, things—living, burning things that set a world on fire.” In 1868, Butler’s speech did not carry the day—the House failed to convince enough Republican Senators that the President’s speech was unprotected by the First Amendment.

Democrats are poised to make a similar mistake today. The House managers seem to think they are more likely to secure a conviction by presenting an impeachment article—a functional indictment—which ignores the President’s free speech rights. We think this approach may be a blunder. As the managers depart further from the traditional understanding of the First Amendment, the proceeding will more likely be seen as unfair. And, Republicans who see the proceeding as unfair may, at the margin, vote to acquit. They could defend their vote by finding that the managers chose the wrong legal standard. These Senators could justify their vote as a prudential choice to avoid making bad law and bad precedent. At that point, the merits of Trump’s case might not matter much. As a pragmatic matter, presenting a case that recognizes established free speech rights may garner more votes for conviction. And ignoring those rights could lead to more votes for acquittal. The managers should not forget the lessons from 1868.

[Seth Barrett Tillman is a Lecturer at Maynooth University Department of Law, Ireland (Roinn Dlí Ollscoil Mhá Nuad).]

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Newly identified COVID-19 cases in the United States, after falling between December 18 and December 29, have risen to record levels since then, a trend that may reflect infections tied to Christmas and New Year’s gatherings. Daily deaths also have climbed to record highs since late December, with no sign of letting up.

According to Worldometer’s tallies, the seven-day average of daily new cases was more than 250,000 yesterday, down slightly from the high recorded on Monday but still seven times the average in mid-September. The seven-day average of daily deaths yesterday was more than 3,400, the highest toll recorded so far. The dip in deaths recorded between December 22 and December 27 probably was mostly a function of holiday-related reporting issues, which would have shifted the recording of some deaths that happened during the Christmas weekend to the following week.

COVID-19 symptoms that might prompt someone to seek testing appear two to 14 days after infection, which makes it plausible that holiday gatherings toward the end of 2020 contributed to the recent surge in daily new cases. The falloff in recent days could be a sign that the impact of those celebrations is abating.

Researchers at Harvard University’s T.H. Chan School of Public Health found that “deaths often occur 2–8 weeks after the onset of COVID-19 symptoms.” That suggests a lag as long as a month between laboratory confirmation and death, which means the daily death toll is apt to continue climbing for the rest of the month, reflecting the increase in newly identified infections since the end of last year.

The U.S. death toll—currently about 395,000, per Worldometer—has more than doubled since the beginning of September. The United States has seen more COVID-19 deaths per capita than all but a handful of countries.

If there is anything hopeful in this dark news, it is the impact that individual decisions have on trends in cases and deaths. The factors that drive new infections—such as gathering indoors for extended periods of time in close proximity with people from other households—are hardly ineluctable. If new cases continue to fall after the post-holiday surge, that will be further evidence that the course of the epidemic is largely determined by how Americans choose to behave in the months until vaccines are widely available.

It seems likely that dramatic increases in case and death numbers encourage people to exercise more care, which in turn helps counter those trends. The danger is that the success of basic COVID-19 precautions, reflected in fewer daily cases and deaths, may lead people to be less careful. If that’s true, we could be caught in a self-perpetuating cycle of ups and downs.

It is one thing to resent arbitrary, scientifically dubious, and sometimes unconstitutional COVID-19 control measures imposed by frequently hypocritical politicians. It is quite another to eschew even sensible precautions, thereby endangering people around you, as if it were some sort of political statement.

At least half a dozen members of Congress tested positive for COVID-19 after they were sequestered in close quarters with Republican legislators who refused to wear face masks during last week’s riot at the Capitol. The fact that such discourtesy and carelessness has become a badge of honor among many Trump supporters is understandable in the sense that they are taking their cues from a president who has repeatedly denigrated the value of face coverings, even after he described wearing them as “patriotic.” But as a matter of basic decency, it is baffling.

San Mateo County, California, Health Officer Scott Morrow, an early advocate of lockdowns last spring, has criticized recent legal restrictions supposedly aimed at curtailing the pandemic, noting that they are often illogical and empirically questionable. But that hardly means he thinks Americans should throw caution to the winds and let the pandemic proceed unimpeded.

“I think people should stay at home, avoid all non-essential activities, wear masks, and not gather with anyone outside their households,” Morrow says in a statement he posted on his department’s website last month. “I’ve been saying this for about 10 months now. If you didn’t listen to my (and many others’) entreaties before, I don’t think you’ll likely change your behavior based on a new order. I appreciate that some of you think I (or the government) have magical abilities to change everyone’s behavior, but I assure you, I (we) do not.”

You may quibble with Morrow’s advice, which on its face does not allow for “non-essential” but low-risk activities such as outdoor dining and recreation. But his basic point is valid: When it comes to reducing virus transmission, individual choices matter more than government policy. “What I believed back in May, and what I believe now,” Morrow says, is that “the power and authority to control this pandemic lies primarily in your hands, not mine.”

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The San Jose Mercury News (Lisa M. Krieger) has the story, and Bloomberg has the detailed data:

Through the icy hollows of West Virginia, members of the Army National Guard are driving precious doses of COVID-19 vaccines to the state’s independent pharmacies. So far six of every 100 residents have received the vaccine, making this poor and rural state the nation’s leader at getting shots in arms.

Halfway across the country, South Dakota has taken a very different yet equally effective approach: Divvying up its 66 vast and windswept counties among its major healthcare plans, it tasked each plan with vaccinating every resident in its assigned counties, using well-established courier services.

In contrast, the tech-savvy, populous and economic powerhouse of California has given only 2 doses per 100 residents, even though it has received roughly the same amount of vaccine, per capita, as those other states. The Golden State, with a larger, more fragmented and decentralized healthcare system, is relying on an ambitious but complex tiered priority system. Residents complain of poor messaging and confusion about who is eligible, saying they don’t know when, how and where to go for vaccination….

Michigan appears not to have been distributing the vaccines on Christmas weekend (Fri.-Sun.) and New Year’s weekend.

 

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