Supreme Court Agrees To Hear Fight Over Boston Bomber’s Death Sentence


DzhokharT_1161x653

The Supreme Court agreed today to consider reinstating the death sentence for Boston Marathon bomber Dzhokhar Tsarnaev, a decision that will test whether President Joe Biden is truly committed to ending federal executions.

Tsarnaev, with his brother Tamerlan, set off two bombs at the Boston Marathon in 2013, killing three people and injuring hundreds of others. Tamerlan died of injuries sustained in police shootout during the manhunt for the two of them. Dzhokhar was arrested, convicted, and sentenced to death in 2015.

Last August, a panel of judges with the U.S. Court of Appeals First Circuit threw out Tsarnaev’s death sentence. They determined that the judge overseeing the trial did a terrible job evaluating the jury for bias during the sentencing phase. Two jurors had posted strong opinions about Tsarnaev on social media but were seated anyway. One of them retweeted an observation that called Tsarnaev a “piece of garbage.” Nevertheless, the judge allowed her on the jury. So the panel called for a new sentencing trial and jury.

To be clear: There is no chance Tsarnaev will be released. This fight is only about whether he should be executed. The Department of Justice appealed the decision to the Supreme Court under former Attorney General William Barr. Today the court announced it would review the case.

Under Barr, the Department of Justice carried out 13 federal executions, all within the final six months of President Donald Trump’s administration. On the campaign trail, Biden declared his opposition to the death penalty and promised to support legislation to end federal executions once and for all.

No federal executions are currently scheduled for 2021. But so far, there’s also been little indication that Biden might commute the sentences for the remaining 55 prisoners on death row to life in prison. The president has been silent on the subject since taking office.

There is a bill in circulation to eliminate the federal death penalty. H.R. 262 would end federal executions and order the resentencing of anybody currently on death row. It has 73 cosponsors in the House, all of them Democrats, and a Senate companion bill, also sponsored by Democrats. Nothing has happened with the bill since it was introduced in January.

Now that SCOTUS has agreed to consider Tsarnaev’s death sentence, both Biden and his Department of Justice will be forced to decide whether opposition to executions will be an actual policy and not just a campaign bulletpoint.

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Marijuana News in 3 States Shows Stark Differences As Prohibition Crumbles


cannabis-leaves-MIS-Photography-14

New Mexico Gov. Michelle Lujan Grisham plans to call the state legislature back into session so it can consider a bill that would legalize marijuana for recreational use. Next door in Texas, where I live, state legislators are considering a bill that would make that state’s draconian marijuana penalties a bit less oppressive. And in Pennsylvania, where I grew up, newly released data indicate that police made more than 20,000 marijuana possession arrests—an average of 55 a day—in the midst of the COVID-19 pandemic last year.

Those three snapshots reveal a country where marijuana prohibition is slowly crumbling, creating stark differences between jurisdictions that continue to treat cannabis consumers as criminals and jurisdictions where they can not only use pot without risking arrest but can buy it from state-licensed businesses. Those suppliers, meanwhile, remain felons under federal law, an untenable situation that President Joe Biden, notwithstanding his new pose as a drug policy reformer, plans to maintain. That contradiction is reflected in the Biden administration’s personnel policies, which treat past cannabis consumption, even in states where marijuana is legal, as a threat to national security.

Since 2019, when New Mexico decriminalized low-level marijuana possession, the maximum penalty for people caught with up to half an ounce has been a $50 fine. The maximum penalties rise to a $100 fine and 15 days in jail for more than half an ounce but less than an ounce, then a $1,000 fine and up to a year in jail for one to eight ounces.

Marijuana has been legal for medical purposes in New Mexico since 2007. H.B. 12, which the state House of Representatives approved last month by a vote of 39 to 31, would extend that tolerance to recreational use, allowing adults 21 or older to grow up to six plants for personal consumption and buy cannabis from state-licensed businesses.

“Legalized adult-use cannabis is one of the best moves we can make in our work to build a bona fide 21st century economy in New Mexico,” Lujan Grisham said in a press release on Saturday. “And New Mexicans are more than ready: Poll after poll has demonstrated that our state wants this opportunity.” She said “we are very close” to legalization, “and we will finish the job.”

The special legislative session, which will allow consideration of amendments and give the state Senate a chance to weigh in, is expected to begin at the end of the month. If the bill is approved, New Mexico will be the 16th state to allow recreational use and the second (along with Vermont) to do so through the legislature rather than through a ballot initiative.

In Texas, marijuana is not legal for medical or recreational use. The number of marijuana arrests in Texas reached a record high of nearly 100,000 in 2018 before dropping substantially the following year.

Possession of two ounces or less is a Class B misdemeanor in Texas, punishable by a $2,000 fine and up to six months in jail. Possession of two to four ounces is a Class A misdemeanor punishable by a maximum fine of $4,000 and up to a year in jail. Texas treats possession of marijuana concentrates even more severely: Possessing less than a gram is a “state jail felony” punishable by a maximum fine of $10,000 and up to two years of incarceration.

The onerous penalties for concentrates were partly responsible for the 10-year mandatory minimum that 19-year-old Jacob Lavoro initially faced in 2014 after police caught him with a pound and a half of marijuana cookies and brownies. Texas treats offenses involving cannabis concentrates, regardless of THC content, much more severely than offenses involving marijuana buds, and it counts “adulterants and dilutants” as part of a drug’s weight. In Lavoro’s case, as Williamson County First District Attorney Mark Brunner explained, that meant treating the baked goods as if they consisted entirely of hash oil, which put Lavoro well over the 400-gram cutoff for a first-degree felony.

“As prosecutors,” Brunner said, “we are bound by what the law is, not what the law should be or could be.” After a loud public outcry, Lavoro reached a plea deal involving seven months of probation.

H.B. 1086, which the House Criminal Jurisprudence Committee is considering today, would double the marijuana flower limit for a Class B misdemeanor and make the weight range for a Class A misdemeanor four ounces to five pounds. The latter category would also include possessing less than a gram of concentrate. But the bill would not affect penalties for larger amounts of concentrates. Possessing one to four grams, for example, would still be a felony punishable by two to 10 years in prison, and possessing more than 400 grams (the original charge against Lavoro) would still trigger a sentence of 10 years to life.

Pennsylvania’s marijuana penalties are mild by Texas standards. Possessing up to 30 grams (about an ounce) is a misdemeanor punishable by a $500 fine and up to 30 days in jail. For larger amounts, the maximum penalties are a $5,000 fine and up to a year in jail. Like Texas, Pennsylvania treats concentrates more severely, but the penalties are not nearly as onerous: up to 30 days for eight grams or less and up to a year for larger amounts. But except for state-approved patients, who have been allowed to use marijuana since 2016, people caught with any amount of cannabis are still subject to arrest.

Pennsylvania’s 20,200 low-level possession arrests last year represent a slight drop from 2019. But the total has exceeded 20,000 every year except one since 2009, even as several cities, including Philadelphia, Pittsburgh, Erie, Allentown, Harrisburg, York, Lancaster, and Norristown, have decriminalized possession. Beginning in 2016, arrests rose for three years in a row.

Data obtained by Chris Goldstein, a regional coordinator with the National Organization for the Reform of Marijuana Laws, show the risk of arrest is not evenly distributed. In 2020, Goldstein found, blacks were 3.5 times as likely to be arrested for marijuana possession in Pennsylvania as whites, although cannabis consumption rates in the two groups are similar. The American Civil Liberties Union has documented similar disparities across the country.

“Cannabis consumers were targeted even during the Covid-19 pandemic,” Goldstein observes. “This shows just how aggressively prohibition is enforced, despite the unprecedented public health risks in our communities. It’s time to stop marijuana arrests, right now.”

Pennsylvania Gov. Tom Wolf favors legalization. A bill backed by state Sens. Shari Street (D–Philadelphia) and Dan Laughlin (R–Erie) would eliminate penalties for personal possession, expunge marijuana convictions, and authorize commercial production and distribution for recreational use.

According to the latest Gallup poll, more than two-thirds of Americans think marijuana should be legal. Recent surveys put support for legalization at 72 percent in New Mexico, 60 percent in Texas, and 62 percent in Pennsylvania.

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Guggenheim Warns Fed’s Powell Is Giving “Conflicting Guidance” To Bond Investors

Guggenheim Warns Fed’s Powell Is Giving “Conflicting Guidance” To Bond Investors

“The [bond market] selloff has largely run its course,” says Guggenheim CIO Scott Minerd, confirming his call from two weeks ago to ‘buy the dip’ in bonds as investors’ “reach for yield” puts downward pressure on 10-year Treasury rates, likely rendering the current yield unsustainable.

In fact, for foreigners, buying USTreasuries on an FX-hedged basis offers the biggest yield advantage over domestic sovereigns since 2014

Source: Bloomberg

But, Guggenheim warns that “conflicting guidance” from Fed Chair Powell is potentially holding back bond investors.

Last week’s FOMC meeting showed that the Federal Reserve (Fed) intends to maintain rates at zero even when the economy overshoots traditional measures of full employment and price stability. But Fed Chair Jay Powell stopped short of pushing back on the bear steepening of the Treasury curve.

Powell is giving conflicting guidance to bond investors. Dovish forward guidance is bullish for the short end while the Fed’s efforts to lift inflation expectations have been bearish for the long end. The belly of the curve is caught in the middle.

The question investors face is whether the selloff has more room to run. Our analysis suggests it has largely run its course. The market is now pricing in a neutral rate of 2.35 percent, nearly in line with the Fed’s optimistic long run dots. The chart below shows that the bond market has had difficulty sustaining rates at or near the Fed’s neutral rate projection, and we see no reason to expect a different result this time. Nor do we expect the Fed to revise up its neutral rate estimate.

While the Fed has succeeded in lifting growth and inflation expectations, it now has a different problem: the market is pricing in premature rate hikes, as the chart below shows. The upshot for bond investors is that the steeper yield curve now offers an attractive carry and rolldown profile.

If the Fed is as patient as we expect it to be, total returns for core fixed income investors have the opportunity to be much better going forward than they have been in the recent past.

Tyler Durden
Mon, 03/22/2021 – 14:20

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Supreme Court Agrees To Hear Fight Over Boston Bomber’s Death Sentence


DzhokharT_1161x653

The Supreme Court agreed today to consider reinstating the death sentence for Boston Marathon bomber Dzhokhar Tsarnaev, a decision that will test whether President Joe Biden is truly committed to ending federal executions.

Tsarnaev, with his brother Tamerlan, set off two bombs at the Boston Marathon in 2013, killing three people and injuring hundreds of others. Tamerlan died of injuries sustained in police shootout during the manhunt for the two of them. Dzhokhar was arrested, convicted, and sentenced to death in 2015.

Last August, a panel of judges with the U.S. Court of Appeals First Circuit threw out Tsarnaev’s death sentence. They determined that the judge overseeing the trial did a terrible job evaluating the jury for bias during the sentencing phase. Two jurors had posted strong opinions about Tsarnaev on social media but were seated anyway. One of them retweeted an observation that called Tsarnaev a “piece of garbage.” Nevertheless, the judge allowed her on the jury. So the panel called for a new sentencing trial and jury.

To be clear: There is no chance Tsarnaev will be released. This fight is only about whether he should be executed. The Department of Justice appealed the decision to the Supreme Court under former Attorney General William Barr. Today the court announced it would review the case.

Under Barr, the Department of Justice carried out 13 federal executions, all within the final six months of President Donald Trump’s administration. On the campaign trail, Biden declared his opposition to the death penalty and promised to support legislation to end federal executions once and for all.

No federal executions are currently scheduled for 2021. But so far, there’s also been little indication that Biden might commute the sentences for the remaining 55 prisoners on death row to life in prison. The president has been silent on the subject since taking office.

There is a bill in circulation to eliminate the federal death penalty. H.R. 262 would end federal executions and order the resentencing of anybody currently on death row. It has 73 cosponsors in the House, all of them Democrats, and a Senate companion bill, also sponsored by Democrats. Nothing has happened with the bill since it was introduced in January.

Now that SCOTUS has agreed to consider Tsarnaev’s death sentence, both Biden and his Department of Justice will be forced to decide whether opposition to executions will be an actual policy and not just a campaign bulletpoint.

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“What Idiot Pre-Announces A Cyberattack?”: Biden Admin Has Spent 2 Weeks Touting Russia Response

“What Idiot Pre-Announces A Cyberattack?”: Biden Admin Has Spent 2 Weeks Touting Russia Response

Earlier this month a report from The New York Times was the first to reveal that the Biden administration is planning a series cyberattacks targeting Russia in the “coming weeks”.

Anonymous senior US officials told the Times that a “series of clandestine actions across Russian networks” will be done in such a way as to be evident to President Vladimir Putin and his intelligence services and military but not to the wider world.” It’s also expected to come alongside new anti-Russia sanctions.

Naturally, the first question people asked was why announce in advance a “surprise” cyberattack against an “enemy”? Or as Mollie Hemingway at The Federalist put it… “What idiot pre-announces a cyberattack?”

The Telegraph followed up in its latest reporting as follows:

The attack, which is expected in the next fortnight, is in retaliation for the SolarWinds hack, the large-scale infiltration of American government agencies and corporations discovered late last year that was traced back to the Kremlin.

The White House confirmed it will take “a mix of actions” – both “seen and unseen” – although it did not provide specifics on when and how it would do so.

But it appears nothing will really be “unseen” given the administration clearly conducted a pre-planned “leak” to the Times starting two weeks ago, meant perhaps as a ‘warning’ and threat to Russia of what’s to come in response to the Office of the Director of National Intelligence (ODNI) findings recently out alleging that Russia ‘interfered’ via various cyber intrusions and attacks in the 2020 elections.

Or ultimately it’s just Biden seeking to appear “tough” for his domestic base which generally went all in when it comes to all things ‘Russiagate’ and the continuing spin-off claims. Biden, after all, has to always being “doing something” against those pesky and nefarious Russians.

Within the past days US National Security Adviser Jake Sullivan confirmed the imminent US cyber-action. “I actually believe that a set of measures that are understood by the Russians, but may not be visible to the broader world, are actually likely to be the most effective measures in terms of clarifying what the United States believes are in bounds and out of bounds, and what we are prepared to do in response,” he said.

No doubt, the Kremlin is currently preparing and on high alert in expectation of such US ‘dirty tricks’ targeting sensitive state networks, which the Biden administration has further indicated will “not target civilian structures or networks”.

Previously the Kremlin slammed the impending US action as “pure international cybercrime”. Tensions rose further last week with Biden and Putin’s latest and unprecedented tit-for-tat statements, with Biden agreeing that the Russian president is “a killer” and Putin firing back that the US leader is engaged in “psychological projection”. Thus Biden is in fact describing himself, according to Putin’s response in a televised address days ago.

Tyler Durden
Mon, 03/22/2021 – 14:03

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Brown University Will Let Students Anonymously Report Title IX Sexual Misconduct


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Brown University has debuted a new system for reporting sexual harassment and misconduct under the auspices of Title IX, the federal law that prohibits sex- and gender-based discrimination in education. Notably, it allows students to make an anonymous accusation against another member of campus.

“Brown University encourages community members to report any acts they believe to be an incident of sexual harassment, sexual violence, or gender-based discrimination,” notes Brown on its website. “The Sexual Violence & Gender-Harassment Incident Reporting Form was developed to capture these reports as a part of the intake process.”

The website stresses that using the anonymous reporting form is not the same thing as filing a formal Title IX complaint, which would automatically trigger an investigation. These investigations attracted significant criticism from civil liberties advocates for abridging the due process rights of accused students, though the process was overhauled by the Trump administration to restore basic fairness.

But an anonymous reporting system is a concern even if it does not always result in an investigation. Many campuses have anonymous tiplines for reporting “bias incidents,” which in practice often amount to instances of people being unreasonably offended. Giving students methods for reporting one another for utterances that are actually protected by the First Amendment is a poor use of university resources, and it encourages hypersensitivity and snitching. On some campuses, the police have even become involved.

Brown’s new reporting system is similar to these bias tiplines, except it’s specifically for sexual misconduct. Despite federal guidance stating that Title IX administrators should focus on serious sexual misconduct, many campus bureaucracies continue to take an expansive view of what counts as a Title IX violation. As with anonymous bias response systems, the anonymous Title IX reporting portal will likely draw complaints about conduct that is not actually illegal.

One student activist described the new system as “liberating,” precisely because it will allow anonymous reporting. “Any steps we can take to reduce barriers to reporting and to center marginalized populations can help us be more comprehensive and effective in dealing with interpersonal violence,” wrote two advocates at Brown’s Sexual Harassment and Assault Resources and Education office.

Universities can and should deal with interpersonal violence. But for accountability’s sake, campus authorities really do need to know the identities of accusers. Otherwise, the system is likely to be abused.

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Physics Professor Calls For The Abandonment Of “Quantum Supremacy” As Anti-Racism Measure

Physics Professor Calls For The Abandonment Of “Quantum Supremacy” As Anti-Racism Measure

Authored by Jonathan Turley,

In a Scientific American article entitled, “Physicists Need To Be More Careful How They Name Things,” two professors and a journalist call for the abandonment of the term “quantum supremacy” in physics because it is “uncomfortably reminiscent of ‘white supremacy.”  Physics Professor Ian Durham (St. Anselm College), freelance journalist Daniel Garisto, and Math Professor Karoline Wiesner (University of Bristol) all agree that the term is not racist but still believe that it must be changed to avoid “adding insult to injury.”

The term was coined in 2012 by John Preskill to describe how quantum computers can perform tasks would take even supercomputers years to complete. The authors called for “quantum supremacy” to be replaced with “quantum primacy.”

The article struggles to make the case that this clearly non-racial term holds a dangerous potential for being viewed as racist, including reference to other terms like “judicial supremacy” which would also presumably have to be abandoned:

The word supremacy—having “more power, authority or status than anyone else”—is closely linked to “white supremacy.” This isn’t supposition; it’s fact. The Corpus of Contemporary American English finds “white supremacy” is 15 times more frequent than the next most commonly used two-word phrase, “judicial supremacy.”

Since “judicial supremacy” is even more common than “quantum supremacy,” it would appear the same argument for abandonment would apply.

It is not clear if the problem is simply “supremacy.” Would Pareto superiority also raise such problems?

We have previously discussing the dropping of terms as offensive despite their clearly non-sexist or non-racist meaning. These efforts are reminiscent of our own debate at George Washington over the use of the Colonials as a moniker. The student organizers asked “When we talk about the Colonial in history, what does it mean? And is that really what we want our school identity to be?” The emphasis however is the history of colonialism in the world, not the Colonial as a term in the United States. Just as we strive to understand the meaning and traditions of other countries, there should be a modicum of effort to recognize our own meanings and traditions. The Colonials fought against foreign rule. They were not advocates of colonialism. For those interested in GW, that is part of understanding our history and our values. It simply does not matter that the Colonials were anti-colonialism. The victory is pretending that they are something that they were not and then changing the term to reject a falsely claimed meaning.

The authors take a jab at Professor Steve Pinker who we previously discussed as the target of an anti-free speech campaign.  Pinker lashed out at such efforts to ban words and regulate speech. The authors reject that premise:

It is true that “supremacy” is not a magic word, that its meaning comes from convention, not conjurers. But the context of “quantum supremacy,” which Pinker neglects, is that of a historically white, male-dominated discipline. Acknowledging this by seeking better language is a basic effort to be polite, not prissy.

They are not the first to make this proposal. A 2019 letter in Nature,  the magazine was called out for using “quantum advantage” and the authors argued:

In our view, ‘supremacy’ has overtones of violence, neocolonialism and racism through its association with ‘white supremacy’. Inherently violent language has crept into other branches of science as well — in human and robotic spaceflight, for example, terms such as ‘conquest’, ‘colonization’ and ‘settlement’ evoke the terra nullius arguments of settler colonialism and must be contextualized against ongoing issues of neocolonialism.

It is difficult to take issue with such articles without running the risk of being called insensitive or insufficiently concerned about racism. That is not true. Many of us fail to see how such campaigns advance real racial justice as opposed to superficial progress through cancelling campaigns. Real progress is measured by getting more minority graduate students and teachers into physics.

Tyler Durden
Mon, 03/22/2021 – 13:40

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US Hits China With Human Rights Sanctions In Major Joint Action With Western Allies

US Hits China With Human Rights Sanctions In Major Joint Action With Western Allies

In coordination with the newly announced European Union sanctions on select Beijing officials for the alleged ongoing major crackdown on Muslim Uighurs, the Biden administration has hit Beijing with its own punitive sanctions, setting tensions further on edge just two days after the conclusion of the fiery Alaska summit. 

The US sanctions target to top Chinese officials for “serious human rights abuses” against Uighur minorities concentrated in northwest Xinjiang province. Along with the EU, the sanctions were coordinated with Canada and the United Kingdom, which rolled out with similarly targeted sanctions that included additional individuals, according to a Treasury Department statement.

“Chinese authorities will continue to face consequences as long as atrocities occur in Xinjiang,” Treasury’s Director of the Office of Foreign Assets Control Andrea M. Gacki said. Meanwhile, it could be the US administration is still smarting over this…

“Treasury is committed to promoting accountability for the Chinese government’s human rights abuses, including arbitrary detention and torture, against Uyghurs and other ethnic minorities,” she added. The statement identified the following individuals that fall under the new US action:

The US designated Wang Junzheng, the Secretary of the Party Committee of the Xinjiang Production and Construction Corps, and Chen Mingguo, Director of the Xinjiang Public Security Bureau.

“These individuals are designated pursuant to Executive Order (E.O.) 13818, which builds upon and implements the Global Magnitsky Human Rights Accountability Act and targets perpetrators of serious human rights abuse and corruption,” the Treasury Department added.

The UK government neanwhile said of the coordinated actions in a statement: “Acting together sends the clearest possible signal that the international community is united in its condemnation of China’s human rights violations in Xinjiang and the need for Beijing to end its discriminatory and oppressive practices in the region.”

    In response to the earlier Monday morning EU sanctions announcement, which was a first in over three decades, China’s Ministry of Foreign Affairs blasted the EU as “disregarding and distorting the facts” as well as “grossly interfering in China’s internal affairs” by bringing sanctions against government officials.

    China has maintained the Uighur crackdown and charges of genocide are “based on nothing but lies and disinformation.”

    Chinese Foreign Minister Wang Yi, via Reuters

    EU-targeted individuals will have their assets frozen and are effectively banned from traveling to EU countries. China swiftly retaliated, according to an official statement on government websites: “China has decided to impose sanctions on 10 persons and 4 entities that have seriously harmed China’s sovereignty and interests and maliciously spread lies and false information on the European side.

    Similar ‘retaliatory’ action is now expected imminently to be leveled against Washington.

    Tyler Durden
    Mon, 03/22/2021 – 13:23

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    Brown University Will Let Students Anonymously Report Title IX Sexual Misconduct


    BrownVWG_color_corrected

    Brown University has debuted a new system for reporting sexual harassment and misconduct under the auspices of Title IX, the federal law that prohibits sex- and gender-based discrimination in education. Notably, it allows students to make an anonymous accusation against another member of campus.

    “Brown University encourages community members to report any acts they believe to be an incident of sexual harassment, sexual violence, or gender-based discrimination,” notes Brown on its website. “The Sexual Violence & Gender-Harassment Incident Reporting Form was developed to capture these reports as a part of the intake process.”

    The website stresses that using the anonymous reporting form is not the same thing as filing a formal Title IX complaint, which would automatically trigger an investigation. These investigations attracted significant criticism from civil liberties advocates for abridging the due process rights of accused students, though the process was overhauled by the Trump administration to restore basic fairness.

    But an anonymous reporting system is a concern even if it does not always result in an investigation. Many campuses have anonymous tiplines for reporting “bias incidents,” which in practice often amount to instances of people being unreasonably offended. Giving students methods for reporting one another for utterances that are actually protected by the First Amendment is a poor use of university resources, and it encourages hypersensitivity and snitching. On some campuses, the police have even become involved.

    Brown’s new reporting system is similar to these bias tiplines, except it’s specifically for sexual misconduct. Despite federal guidance stating that Title IX administrators should focus on serious sexual misconduct, many campus bureaucracies continue to take an expansive view of what counts as a Title IX violation. As with anonymous bias response systems, the anonymous Title IX reporting portal will likely draw complaints about conduct that is not actually illegal.

    One student activist described the new system as “liberating,” precisely because it will allow anonymous reporting. “Any steps we can take to reduce barriers to reporting and to center marginalized populations can help us be more comprehensive and effective in dealing with interpersonal violence,” wrote two advocates at Brown’s Sexual Harassment and Assault Resources and Education office.

    Universities can and should deal with interpersonal violence. But for accountability’s sake, campus authorities really do need to know the identities of accusers. Otherwise, the system is likely to be abused.

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    L.A.’s Plan To Save Old Affordable Units Could Mean No New Ones


    scaledcommies

    Los Angeles politicians’ plan to preserve affordable housing might just end developers’ incentive to ever build more of the stuff in the city.

    Last week, the Los Angeles City Council passed a resolution directing city agencies to explore options for freezing rents at privately owned buildings with expiring affordability covenants. These covenants require building owners to keep their rents at below-market rates for a specified period of time, typically 30 to 55 years, in exchange for various government subsidies—including tax credits, low-interest loans, and relief from zoning restrictions.

    Covenants covering thousands of these units are set to expire within the next few years, allowing landlords to raise rents to market rate. Lower-income tenants benefiting from affordability restrictions could be faced with unaffordable rent increases.

    A 2017 city report found that there were 11,771 affordable units in the city of Los Angeles at risk of being converted to market-rate rents by the end of 2021. A 2020 report from the California Housing Partnership found a smaller 11,241 rent-restricted units in the whole of Los Angeles County were at risk of expiring within the next ten years.

    “Many covenants are now reaching an expiration date, which would effectively remove the affordability requirements, and allow an owner to raise rents,” said Councilmember Gil Cedillo, who authored the motion, reports the Commercial Observer. “We can’t let this happen, especially during the time of a health pandemic, because we can’t create any opportunity for any resident to be unable to afford to stay in their own home.”

    His motion, citing the specter of 300 percent rent increases for some tenants, calls on the city attorney and the Los Angeles Housing and Community Investment Department (HCIDLA) to report on recommendations for implementing a rent freeze at units with expired or soon-to-expire affordability covenants.

    A rent freeze would be a pretty radical move, particularly when compared to other policies people have floated to preserve affordability covenants. That California Housing Partnership report recommended more subsidies and tax credits to preserve affordable units.

    HCIDLA has proposed forgiving building owners’ debt they owe the city in exchange for extending affordability covenants, or, in the case of debt-free buildings, subsidizing owners for forgoing market-rate rents.

    All those ideas involve compensating property owners for voluntarily keeping their rents low. Cedillo’s proposal would require them to eat the entire cost of maintaining below-market-rate rents.

    That would be a huge disincentive for anyone to ever participate in future affordable housing programs, says Dan Yukelson, executive director of the Apartment Association of Greater Los Angeles.

    “We need affordable housing. We need to build more of it,” Yukelson tells Reason. “This would just be a complete discouragement to develop more affordable housing if the city is literally at the end of these contracts pulling the rug out from under these people who agreed to take less rent for all these years.”

    This would be particularly true, says Yukelson, for any rent freeze enacted at the city level. Developers could easily forgo projects in Los Angeles proper and instead build in Santa Monica, Long Beach, or any other community in the L.A. metro area that isn’t as dead set on forbidding the eventual conversion of units to market-rate rents.

    Given that private, for-profit developers build the bulk of affordable housing in America—of the top 50 affordable housing developers identified by Affordable Housing Finance in 2019, 38 were for-profit entities—Los Angeles could well see almost all affordable housing development disappear.

    In addition to the practical implications, there’s also a question of whether Cedillo’s proposed rent freeze would even be legal.

    “On the face of it, it looks like this whole thing would be illegal. The city would unilaterally be changing some contracts they have in place,” says Yukelson. “We’ll see what the city attorney comes back with, but as a non-lawyer I am guessing they are going to find this very difficult to do.”

    California’s rent control law, which limits rent increases to 5 percent plus inflation, doesn’t apply to expiring affordable covenants.

    Cedillo’s motion directs HCIDLA and the city attorney to come up with recommendations for implementing a rent freeze based on “health and safety findings regarding undue tenant displacement during the COVID-19 pandemic.”

    It’s possible that a public health justification could save a rent freeze from the legal challenges that such a policy might normally attract.

    Eviction moratoriums—an extraordinary policy that also interferes with landlords’ normal property rights—have been imposed by governments, and in some cases upheld by courts, on the grounds that they’re needed to protect public health during the pandemic.

    However, the pandemic doesn’t give the city a carte blanche to do whatever it wants.

    Cedillo’s effort to fund the seizure of a 124-unit apartment building with an expired covenant using COVID-19 relief funds was shot down by city staff on the grounds that the councilmember’s efforts to take over the building predated the pandemic. That was in spite of Cedillo arguing that the impact of the pandemic justified the use of relief funds.

    Even if Los Angeles does manage to freeze rents of currently affordable units, it will be a temporary fix for a small number of the city’s tenants. Market-rate rents these renters could be exposed to are so high because of how difficult the city makes building new units that would bring prices down.

    Instead of trying to preserve the existing stock of publicly subsidized affordable housing, policy makers could repeal the reams of red tape that effectively prohibit private developers from building the affordable housing of tomorrow.

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