Tag: hit&run

Cities across the state of Virginia are poised to gain control over the Confederate monuments in their respective jurisdictions, which would allow them to “remove, relocate, contextualize, cover or alter” those memorials as they see fit.

Current law allows those localities to erect monuments but requires that they receive permission from the state to take those same statues down. Virginia’s House and Senate last week passed similar pieces of legislation that would resolve that dissonance. If the final bill is approved by both chambers, cities will be able to decide for themselves whether to keep or remove those statues, if they allot at least 30 days for the monument to be claimed by any “museum, historical society, government, or military battlefield.”

Good.

Confederate statues have long been a touchy subject for those in the South, who often say their attachment to such memorials is deeply rooted in a desire to preserve history. I grew up not far from Monument Avenue in Richmond, Virginia, the capital of the Confederacy and the site of last week’s vote. The boulevard stretches through the heart of the city and is built around a series of equestrian memorials that venerate the Confederacy’s leaders. They were staples, as were rumblings that those blocks of stone should never be tampered with.

Though all eyes have been on Virginia’s statues since Charlottesville’s deadly white nationalist rally in August of 2017, pleas to preserve the past are in no way unique to the legislative halls in Richmond. “In my opinion, rewriting history is a fool’s errand, and those trying to rewrite history unfortunately are likely taking a first step toward repeating it,” wrote North Carolina state Sen. Phil Berger (R–26) in September of 2017, echoing the sentiments I often heard growing up. 

Berger is correct. Rewriting history is a fool’s errand, and that’s precisely why Confederate monuments should come down. 

As Reason‘s Ron Bailey notes, it is “plain historical fact” that the majority of such memorials were put in place decades after the Civil War reached its conclusion, with most of them erected between 1900-1930. The construction and dedication of those memorials coincided with the era of Jim Crow, which established a racial caste system and relegated black people to the bottom of it. In that vein, many such statues had far more to do with asserting white superiority and intimidating African-Americans than honoring erstwhile military leaders.

Take the much-contested monuments in Charlottesville. The deadly Unite the Right gathering, where white supremacists stormed the town with tiki torches and chants of “Jews will not replace us,” was inspired by the City Council’s attempt to remove its monument to Confederate Gen. Robert E. Lee. That statue was erected in 1924, almost 60 years after Civil War soldiers squared off for the last time. Also in Charlottesville is a memorial to Confederate Gen. Stonewall Jackson, which the council has similarly attempted to remove. That monument was erected in 1921. 

The timeline is a common one for Confederate statues, as were the contemporaneous motivations. “For example,” Bailey wrote in 2017, “the monument to Confederate President Jefferson Davis that was just taken down in New Orleans was dedicated in 1911 during a ‘Whites Only’ ceremony featuring a living Stars and Bars formation that sang ‘Dixie.'”

Over in Charlottesville, the Ku Klux Klan commemorated the May 21 unveiling of Lee’s statue with a public cross burning on May 16 and a two-hour parade on May 18 attended by “thousands,” according to archives from The Daily Progress, the Charlottesville newspaper that’s been publishing since 1892. The throngs of people “equaled those usually seen here to witness the parade of the large circuses,” the paper wrote. “The march of the white-robed figures was impressive, and directed attention to the presence of the organization in the community.”

That Confederate monuments were erected as a result of the era’s racial animus is hardly a matter of dispute, although that was spelled out with varying degrees of explicitness. For instance, at the 1913 dedication of “Silent Sam,” the now-toppled Confederate monument that once stood at the University of North Carolina Chapel Hill, industrialist Julian Carr praised Confederates for fighting to preserve white supremacy. “One hundred yards from where we stand,” he noted, “less than 90 days perhaps after my return from Appomattox, I horse-whipped a negro wench, until her skirts hung in shreds.” 

But to focus entirely on race fails to tell the entire story. A narrow view glosses over another historical wrong—one that lawmakers like Berger should be eager to set straight.

The war memorials were a reminder to young people that they must “keep the record of Confederate heroism free from the stain of calumny,” said Rev. Henry W. Battle at Charlottesville’s Lee unveiling, invoking the myth of the Lost Cause. That narrative, which achieved particular popularity in the decades before World War I and again during the Civil Rights movement, attempted to subvert history by reframing the South’s battle cry as a defense of heritage and states’ rights.

Historians have widely rejected the Lost Cause portrayal as a fiction, because it is. While a debate over state independence contributed to the outbreak of the Civil War, the specific issue at stake was more complex: Southerners wanted to be able to travel anywhere with their slaves, even as the North increasingly clamped down on that practice. Masters sojourning to New York, for example, may have wanted to bring a cadre of slaves along with them, and they balked at the idea that their Northern neighbors should prevent them from doing so. 

The Lost Cause revisionist history still exists today and distracts from the actual, indisputable cause of the Civil War: slavery.

Berger and other southern legislators worried about rewriting the past should remember the words of Confederate Vice President Alexander Stephens from an 1861 speech delivered shortly before the Civil War began: “The new constitution has put at rest, forever, all the agitating questions relating to our peculiar institution African slavery as it exists amongst us the proper status of the negro in our form of civilization,” he said. “This was the immediate cause of the late rupture and present revolution.”

from Latest – Reason.com https://ift.tt/2Vb16NN
via IFTTT

America’s current political discourse is far from uplifting these days, with our increasingly tribal politics leading to a series of seemingly endless high-decibel battles. The funniest description I’ve read comes from a Canadian meme, which compared the situation to listening to a neighbor’s car alarm blaring all night long.

The most troubling aspect of America’s polarized society isn’t the constant anger and upset that is so prevalent that it’s making even our friendly northern neighbors a bit nervous. It’s that Americans are so locked into their political sides that many of them seem willing to cast aside—or severely erode—some of the nation’s long-established constitutional protections.

The Constitution is not a guarantor of positive rights (free health care or college tuition), but the ultimate defense of negative rights—the right to be left alone from government intrusion. Many of Facebook’s newfound constitutional scholars seem to miss that basic point and employ the document selectively, mainly as a cudgel to bludgeon foes.

The latest and most disturbing hit has come against due process. The Fifth Amendment forbids the government from prosecuting crimes against individuals unless they have been indicted by a grand jury. No person shall be “deprived of life, liberty, or property, without due process of law,” nor shall their “private property be taken for public use, without just compensation.”

In other words, the government cannot just arrest people and jail them without allowing them a chance to adjudicate their case before an impartial court. The government cannot simply take our private property either, except under limited circumstances and after it pays us for it. The justice system doesn’t always work as promised, of course.

With property takings, for instance, the courts traditionally required that property only be taken for a public use (a government-owned road, etc.). Now, the courts allow eminent domain for “public benefit,” which means almost anything that a government may claim to benefit that nebulous “public good.”

Those erosions—and others like them—largely are driven by politicians who rightly see the Constitution as an impediment to their end goals. In the wake of the MeToo allegations involving sexual assault, for instance, some activists have found due-process to impose too high a burden on their desire to punish alleged miscreants.

In a recent article in the Atlantic, Megan Garber expressed frustration when film producer Harvey Weinstein’s defense attorney complained about the way the system of accusations “strips your right to due process.” I agree with Garber when she argues that the use of due process in a rhetorical way can be inaccurate. Due process says nothing about the court of public opinion, but only about one’s right to trial before a real court.

My problem, though, is when Garber seems to take aim at the notion of due process itself: “Due process suggests the comforts of idealized thinking, summoning notions of equality and fairness and the sanctity of facts. It may be rooted in reason; in practice, though, it can look like what it has during Weinstein’s trial: a perpetuation of harm.”

When it comes to dealing with allegations of sexual harassment, the left has shown a troubling willingness to erode protections for the accused. Progressives were aghast, for instance, when U.S. Secretary of Education Betsy DeVos proposed new rules for colleges and universities that receive federal funds that would require that they provide more fulsome due-process protections for students accused of harassment.

The right has pushed the boundaries, too. In 2018, the president called for stripping illegal immigrants of any right to due process. He famously said after the Parkland, Fla., shooting that the government should, “Take the guns first, go through due process second.” This was more talk than action, but it’s troubling nonetheless.

The debate brings to mind H.L. Mencken’s quotation: “The trouble with fighting for human freedom is that one spends most of one’s time defending scoundrels. For it is against scoundrels that oppressive laws are first aimed, and oppression must be stopped at the beginning if it is to be stopped at all.”

We’re used to the usual assaults on the gun rights, of course. But those tiresome battles center on the meaning of the Constitution’s words—does well-regulated militia mean I can own an AK-47?—but even gun-controllers pay lip service to the Second Amendment.  I’m troubled by the prevalence of people who know say that, you know, due-process shouldn’t even matter.

Some progressives want to rewrite the Constitution. “The Constitution is a political blueprint for a time when white people owned black people, the average life span was 35 years old, and news was spread through people yelling on the street,” wrote one contributor on Huffington Post.

That’s true, but without its protections I’m guessing America—if it were still around and democratic—would have far bigger problems than angry political debates that are keeping our Canadian neighbors awake.

This column was first published in the Orange County Register.

from Latest – Reason.com https://ift.tt/2vP8Jij
via IFTTT

2/21/1868: President Johnson orders Secretary of War Edwin Stanton removed from office. In Myers v. U.S. (1926), the Supreme Court found that Johnson’s actions were lawful.

from Latest – Reason.com https://ift.tt/2umul5c
via IFTTT

Emma. is a movie so deliciously detailed you want to step inside of it and wander around, marveling at its snazzy furnishings—the bonnets and capes and ankle-length greatcoats, the candle-lit banquet tables crowded with roasts and cakes, the vast country manor with its cavernous rooms and sweeping greensward. The picture is a celebration of costume design and set decoration, swooningly orchestrated by first-time director Autumn de Wilde, who at age 49, after a long career in photography and music videos (Raconteurs, Beck), has fully emerged as a feature filmmaker.

In bringing this latest adaptation of Jane Austen’s 1815 novel to the screen (it was also the model for the 1995 Clueless), the American Wilde is greatly assisted by an appropriately English cast. Anya Taylor-Joy (Thoroughbreds), with her pillowy lips and faintly extraterrestrial presence, is bitingly funny as Emma Woodhouse, the 20-year-old heiress with an interest in matchmaking; and Mia Goth (High Life) is a perfect foil as the lovably befuddled Harriet Smith, Emma’s latest romantic project. Orbiting around these two are the smirky vicar Mr. Elton (Josh O’Connor), whom Emma wants to pair up with Harriet; the attractively tousled George Knightley (Johnny Flynn), who would seem just the man for Emma herself, except that he finds her enormously annoying; the chatty spinster Miss Bates (wonderfully played by Miranda Hart); and Emma’s dotty father (Bill Nighy, even better than usual).

Several other characters also turn up, naturally bearing narrative complications. Early on, Harriet, an orphan of unknown provenance, receives a proposal of marriage from a good-hearted farmer, Mr. Martin (Connor Swindells); Emma, however, tells her she must aim higher. Jane Fairfax (Amber Anderson), a young woman of Emma’s age and long an object of her jealous resentment, arrives to demonstrate her superiority as a drawing room pianist. And an excitingly eligible young heir named Frank Churchill (Callum Turner) pops up bearing a most unexpected secret.

Like the romcoms of our own day, Emma (I say we ignore the period at the end of the title) holds few surprises apart from the question of who will end up with whom on the way to a happy ending. But given the Regency setting, social observations naturally arise. Most of the main characters, Emma included, are exceedingly wealthy and essentially indolent, catered to at all times by squads of retainers. We see a man sitting down to enable a servant to save him the trouble of removing his own socks. And we watch as a maidservant stands before Emma, fiddling with her dress, while Emma stands staring past her, barely acknowledging the woman’s presence. Director Wilde doesn’t belabor any of this, but we also sense the smothering reality of a society in which women required a dowry to attract a suitable mate.

Although Emma Woodhouse is not an especially sympathetic character—she’s a brat, basically—Anya Taylor-Joy makes her slyly amusing, delivering juicy line readings without lingering over them. (“I have no thoughts of matrimony at present” is not a sentence that would seem to offer many fruitful possibilities, but Taylor-Joy finds one.) She is also entirely at ease in the movie’s gorgeous period clothing, however eccentric. (She plays one scene burdened by a feathered hat the size of a hurdy-gurdy.) It’s been five years since this actor’s big breakthrough in The Witch, but she’s so fresh and inventive here that it feels like she just arrived.

from Latest – Reason.com https://ift.tt/2wvxU9H
via IFTTT

In the final pages of the original Watchmen, antagonist Adrian “Ozymandias” Veidt asks whether his insane but well-intentioned mass casualty attack on New York City was worth it “in the end.” Dr. Manhattan—a glowing blue demigod and the only true superhero of the 1987 graphic novel—responds, “nothing ever ends.”

More than 30 years later, Dr. Manhattan’s prediction has come true for Watchmen itself with HBO’s new nine-episode television sequel to the original comic, helmed by Damon Lindelof (Lost, The Leftovers). Lindelof’s version is as thematically linked to his own TV history as it is to the source material: Hardcore Lost fans will recall his use of constant flashbacks and time jumps with fondness (and perhaps a touch of PTSD).

The latest to don the mask of a costumed hero in this series is Angela Abar (Regina King), a Tulsa police officer with a secret identity, a secret past, and a secret…well, she has a lot of secrets. A murder brings Abar into the orbit of Laurie Blake (Jean Smart), a cynical FBI agent and former vigilante. Inevitably, Dr. Manhattan and Ozymandias are drawn into the story as well, though the latter has a particularly circuitous journey to the present.

Watchmen was always about the road to hell and the good intentions of the people who paved it. Do superweapons keep people safe or make them targets of even more powerful superweapons? The new series continues these themes brilliantly, substituting racial unrest for the original Cold War tensions but continuing to explore how systems of authority fail those for whom they are ostensibly responsible.

from Latest – Reason.com https://ift.tt/2vOSHoD
via IFTTT

Science fiction that imagines today’s miracles as the predecessors of tomorrow’s nightmares is the norm. Future Tense Fiction is a nuanced collection of speculative fiction stories.

Initially published in serial form as part of Future Tense—an editorial collaboration between Slate, the New America Foundation, and the University of Arizona—the stories in Future Tense Fiction yoke strange technologies to daily life. While policy organizations and media outlets both tend to imagine the worst when they look to the future, Future Tense Fiction imagines the worst, the best, and the so-so.

“Living with technology is profoundly weird,” the editors write in their introduction. What’s new today is so integral to tomorrow that we can’t help but take it for granted. “A good science fiction story can help re-sensitize us” to the peril and promise of the new.

In “When We Were Patched,” for example, author Deji Bryce Olukotun imagines a future in which tennis matches are refereed by both regular humans and “Augmented Assistants,” yet subtle questions of sportsmanship and fairness persist.

Nnedi Okorafor’s “Mother of Invention” depicts a socially ostracized Nigerian woman carrying an unfaithful man’s unborn child. We tend to worry our smart homes are servants of the surveillance state, but in Okorafor’s story, the protagonist’s home is a friend and protector. (The story has a twist, but it doesn’t involve the sentient house suddenly being evil.)

from Latest – Reason.com https://ift.tt/3a3L8cz
via IFTTT

Canada’s Federal Court has overturned a decision by refugee adjudicator who denied a woman’s request to remain in Canada. Sarwanjit Randhawa focused on the woman’s decision to keep a child she said was the result of a rape. “The claimant’s explanation does not make sense as to why she would keep a child who would remind her of being raped, unless that is not the case,” Randhawa wrote in her decision. During the hearing, Randhawa asked the woman why she did not have an abortion. The woman said she is against the abortion, and it isn’t the child’s fault how it was conceived.

from Latest – Reason.com https://ift.tt/32cmHqk
via IFTTT

Cass Sunstein imagines a world in which Donald Trump has almost no control over the Justice Department. In a New York Times Op-Ed, Sunstein offers two statutory proposals to constrain the President’s authority:

In addition, creative legislators ought to be able to thread the constitutional needle — reducing the president’s ability to undermine the legal system without eliminating his power of oversight. For example, Congress might forbid presidential interference with specific categories of cases (such as pending criminal prosecutions). Or it might say that the president may discharge the attorney general only “for cause,” defined to allow the president a fair measure of supervisory control over large policy questions, while also ensuring that the department is legally free from illegitimate interference (as when the president tries to reward his friends and punish his enemies).

I think both proposals would run afoul of the Morrison v. Olson majority opinion. (Without question, both proposals would be inconsistent with Justice Scalia’s dissent.)

Pursuant to the Ethics in Government Act, the Independent Counsel could only be removed for “good cause.” Morrison considered the constitutionality of that law. Chief Justice Rehnquist wrote the majority opinion. He found that such a restriction was constitutional because the President could, through the Attorney General, supervise the independent counsel. That is, the President could take care that the Independent Counsel faithfully executed the law, by virtue of his supervisory authority over the Attorney General.

Here is the key passage from Morrison:

Nor do we think that the “good cause” removal provision at issue here impermissibly burdens the President’s power to control or supervise the independent counsel, as an executive official, in the execution of his or her duties under the Act. This is not a case in which the power to remove an executive official has been completely stripped from the President, thus providing no means for the President to ensure the “faithful execution” of the laws. Rather, because the independent counsel may be terminated for “good cause,” the Executive, through the Attorney General, retains ample authority to assure that the counsel is competently performing his or her statutory responsibilities in a manner that comports with the provisions of the Act.

Sunstein’s second proposal would not “completely strip[]” the President’s power to remove his appointed Attorney General, but it would “impermissibly burden[]” that authority. I do not think a “for cause” removal provision would be consistent with Morrison. And it would not be consistent with Myers v. United States. That case generally stands for the proposition that principal officers, like the Attorney General, must be removable at will.

What about Sunstein’s first proposal: “Congress might forbid presidential interference with specific categories of cases (such as pending criminal prosecutions).” Would this statute be constitutional?

Some people may suggest that such a statute already exists. Several critics of my Washington Post op-ed pointed to 28 U.S.C. § 519. This statute, titled provides:

Except as otherwise authorized by law, the Attorney General shall supervise all litigation to which the United States, an agency, or officer thereof is a party, and shall direct all United States attorneys, assistant United States attorneys, and special attorneys appointed under section 543 of this title in the discharge of their respective duties.

Does this statute remove the President’s supervisory power over the Attorney General with respect to specific criminal prosecutions? I don’t think so. I read Section 519 to merely describe the Attorney General’s authority within the Department of Justice’s hierarchy. The statute is titled “Supervision of Litigation.” The statute makes no reference to the President. In the absence of a clear statement, we should not presume that Congress intended to remove the President’s supervisory power over the Attorney General.  Such a statute, I think, would run afoul of the test Chief Justice Rehnquist advanced in Morrison. This mundane statute says nothing about the separation of powers.

I considered discussing Section 519 in my Op-Ed, but as always with column space, I had to make tough cuts. Analyzing Morrison would have taken me too far afield from the topic of the day. In this sentence, I included the word “some” to allude to this issue:

Article II of the Constitution establishes a single president, and all of the executive powers belong to that elected official. As a practical matter, the president delegates some of those powers to the Justice Department — specifically, prosecutorial discretion for criminal matters.

I think that prosecutorial discretion is not delegated by any statute, but is an executive power inherent in Article II. Justice Scalia’s Morrison dissent stated that “Governmental investigation and prosecution of crimes is a quintessentially executive function.” I don’t think the majority disagreed with that statement.

Sunstein’s proposals would not be valid under the Morrison majority. In any event, I doubt there are five votes to sustain Rehnquist’s decision.

As a policy matter, I am sympathetic to the proposals. I wrote in the Post:

I concede that Trump, given his constitutional authority, can punish his enemies or reward his friends. Critics are right to be worried. If we were redrafting the Constitution from scratch, perhaps we would decide such broad powers should not all be vested in the same person. In my home state of Texas, for example, the position of attorney general is separate from the governor — a model that has some virtue over our federal system.

A constitutional amendment would be needed to effect this change.

from Latest – Reason.com https://ift.tt/37GoG7r
via IFTTT

In a very California story, inter-union drama appears to be marring the introduction of a bill that would require porn stars to get business licenses.

On Tuesday, Assemblymembers Lorena Gonzalez (D–San Diego) and Christina Garcia (D–Bell Gardens) introduced Assembly Bill (A.B.) 2389. The bill would require adult entertainers and video performers, including webcam performers, to obtain a business license and complete a state-mandated training course before being allowed to ply their trade.

Requirements for that training would be developed by the state’s Department of Industrial Relations (DIR), which would, in turn, be advised by a new 10-member, governor-appointed board composed of two adult film actors, three dancers, two medical doctors, a therapist, and a money manager.

This training will be a minimum of two hours and will provide information on reporting workplace injuries, sexual harassment, and sex trafficking. Adult performers would be required to cover the cost of this training. The bill would also require that they be finger-printed.

The bill was, according to a staff member for Garcia’s office, first proposed by the International Entertainment Adult Union (IEAU)—a union representing strippers, adult actors, and adult film crews—much to the chagrin of some its chapters.

That includes the Adult Performers Actors Guild (APAG), which has come out against the legislation put forward by their parent union.

“We are shocked, disgusted and angry that our parent union did this without discussing it with APAG, without discussing it with the industry and without discussing it with stakeholders,” said APAG President Alana Evans to XBiz, an adult entertainment industry publication. “Nobody contacted us about this. Not the IEAU, not Assemblywoman Lorena Gonzalez, who I met Thursday to discuss A.B. 5.”

(Gonzalez is also the author of the controversial A.B. 5 legislation that requires many gig economy workers to be classified as employees and not independent contractors.)

Evans has called for the board of the IEAU to resign. She says APAG will be filing a lawsuit as well.

APAG raised a number of specific concerns about A.B. 2389 on Twitter, including that it would, by only making licensing provisions for those 21 and older, bar sex workers under 21 from the industry. They also expressed concern that the bill could force some performers to submit to licensing inspections at their homes if that’s also their primary place of business.

Gonzalez said on Twitter that she had introduced the bill at the behest of the IEAU, and she would not vote for it as written.

The bill idea was brought to us by International Adult Entertainment Union. We passed but said we would be supportive of a worker bill of rights for the industry. We signed on as a co-author in support but will not stay on if this is the language.

— Lorena (@LorenaSGonzalez) February 20, 2020

A staffer for Garcia’s office told Reason that the bill is in its early stages, and contained several drafting errors that would need to be amended. That includes the issue of whether the bill would ban 18-,19-, and 20-year-olds from the industry.

Currently the bill reads: “The initial training shall be a minimum of two hours and shall be required for all adult performers 21 years of age and older. Initial training for adult entertainers and performers shall be a minimum of two hours and 45 minutes.”

The two hours and 45 minutes training requirement was supposed to be for 18- to 20-year-olds, but that provision was apparently lost in the drafting of the bill.

The other drafting error is that the bill calls for the creation of a 10-member advisory board, but only lays out composition requirements for nine positions. The bill will be amended to make the advisory board a nine-member body.

Whether ironing out those kinks will be enough to satisfy the APAG remains to be seen. The group did not respond to request for comment.

The creation of licensure requirements gives state regulators the authority to police the behavior of participants in what is often a pretty informal industry. Reason recently covered how police in Florida have conducted sting operations on handymen as part of their enforcement of that state’s contractor licensing laws.

As Reason‘s Elizabeth Nolan Brown has covered extensively, sex workers have plenty of reasons to be apprehensive about the expansion of the regulatory state.

It’s true also that regulatory seeds, once planted, tend to grow. It’s conceivable that the bill’s current two-hour training requirement could be expanded to become more onerous over time.

So far, unlicensed performers have done a pretty good job of staffing up the adult entertainment industry. Given the risks that come with licensure, it would probably be best to let the free market continue to do its work here.

from Latest – Reason.com https://ift.tt/2Pb8rsN
via IFTTT

Chicago’s bail reforms may not have had the rosy outcomes indicated by a top county judge’s analysis, which independent researchers say is downplaying the new crimes that have resulted from allowing defendants to await trial outside of jail.

Those are the results of an analysis by a group of Chicago Tribune reporters in a new investigative piece as well as a just-published data analysis paper by University of Utah professors Paul Cassell and Richard Fowles.

In 2017, Cook County Chief Judge Timothy Evans implemented an order reforming how the Chicago area courts handled pretrial detention. The goal was to reduce the demands for cash bail, which tend to keep people trapped behind bars on the basis of poverty rather than risk. Cook County met its goal of detaining fewer defendants before their trials. The number of defendants who secured pretrial release between 2016 and 2018 jumped from 71.6 percent to 80.5 percent. When cash bail was ordered, the amount demanded was much lower than before. Cook County’s jail population dropped from 7,443 to less than 6,000.

Last May, Evans released a report that showed releasing more defendants from jail did not put the community at greater risk of crime. A high proportion of defendants (83 percent) charged with felonies and released under the new system returned to court as ordered and did not commit new crimes while released. In all, Evans’ report painted a positive picture that matched the narrative of those who support bail reform: That court systems in Cook County were accurately sorting defendants based on the risk they posed to public safety and their likelihood of showing up to trial, rather than simply leaving everyone in jail simply because they couldn’t afford to pay what the courts ordered.

But further examination of Evans’ data paints a less rosy picture. Last week, The Chicago Tribune reported that Evans’ report left out hundreds of violent crime charges filed after the bail reforms were implemented. The reporters say he did this by including certain violent crimes (murder, attempted murder, non-negligent manslaughter, forcible rape, robbery, and aggravated battery) and excluding incidents like domestic violence, assault with a deadly weapon, battery, reckless homicide, and others. If Evans’ report had included all these other crimes, the Chicago Tribune calculates the number of violent crimes allegedly committed by released defendants would jump from 147 to 578. The largest chunk of these charges—231 of them—were for domestic battery.

Furthermore, Evans’ report stated that only three defendants who had been released under the new pretrial system had subsequently been charged with homicide. But the Tribune identified 21 defendants accused of murder who had been released during the 15 months of bail reform the report reviewed. Their exclusion from Evans’ report is supposedly a result of incomplete records and some odd reporting decisions like only counting the first new charge a defendant received after being released (two of the defendants were arrested for another charge, then released, and then allegedly killed people); or not counting them because their initial charges weren’t felonies (five murder defendants had been bonded out on misdemeanor charges).

In a separate review, Cassell and Fowles reanalyzed Evans’ data and found other problems.

For one thing, there’s a significant flaw in how Evans measured new crime charges prior to his bail reforms and afterward. When calculating the crime rate, Evans’ report evaluated the “before” defendants for an average of 243 days and the “after” defendants for an average of just 154 days. This is a significant methodological problem because reducing the time frame in the post-reform evaluation gives these defendants less time to commit new crimes. Cassell and Fowles argue that this difference of nearly 100 days may well mean that, in actuality, the post-reform crime rate among those released might be even higher. Cassell and Fowles’ report observes, “the second group will, other things being equal, undoubtedly commit fewer additional crimes simply because they have had less time to commit such crimes.”

The two attempt to estimate what the crime rate might actually be if the report monitored the post-change pool for the same time frame. It’s a challenging calculation, they note, because they couldn’t find any studies showing month-to-month re-arrest rates among those released pretrial. So they used some modifications in stats from the Bureau of Justice Statistics for recidivism rates among those who have been released from prison, combined with some pretrial recidivism rates from Cook County’s data. They conclude that in all likelihood, Cook County’s report undercounted new crimes committed by released defendants by about 1,200. When they correct for the time frame, Cassell and Fowles estimate that there was actually a 45 percent increase in the number of new crimes caused by defendants who had been released.

It’s important to make it clear that this is a mathematical model, and Cassell and Fowles aren’t specifically detailing a bunch of concrete new crimes that have been committed by these defendants. But part of the problem here is that the court has been reluctant to share the data Evans used with Chicago Tribune reporters, which required the newspaper to file a petition with the Illinois Supreme Court. Evans has since agreed to share his data with the newspaper.

Cassell and Fowles write that their goal is not to kill off bail reforms or scare courts away from implementing them. Rather, they are concerned about biases in self-analysis that “always lurks when an entity implementing reform later studies whether that reform is successful. In this case, it appears that many dangers stemming from the court’s expansion of pretrial release were not carefully assessed by the court’s own subsequent study.”

These kinds of independent assessments are extremely valuable in part because these reforms are still relatively new and they make a number of people very, very nervous. Part of that fear results from deliberate scaremongering by those who have a financial or political stake in protecting a harsh status quo, like bail bond companies and jail officials.

But as the Cassell and Fowles report notes, poorly managed pretrial reforms can backfire and cause additional harms. If you agree, for example, with the argument for reform—that it’s a violation of a person’s rights to keep them locked up before they’re convicted only because they cannot pay bail—you must also consider the risk they pose to the rights of other people if they are released before trial. In a city like Chicago, it is mostly poor people whose rights are violated by the bail requirement and mostly poor people whose rights are violated by the defendants who commit additional crimes before their trials.

If, on the other hand, you make a utilitarian argument that keeping people locked up because they’re too poor to pay bail but aren’t dangerous is much more expensive than letting them return home, Cassell and Fowles note that the cost-benefit analysis changes if the person commits new crimes before trial. While there are established financial harms to pretrial detention (lost jobs and housing) and established benefits to letting them out to continue to work and care for families, the economic impact of a homicide wipes out the financial benefits of letting more people out of jail.

At some point, the cost of new crimes committed by a percentage of defendants free before trial financially outweighs the savings of freeing people who aren’t dangerous. Data-driven bail reform is supposed to prevent a few bad defendants from spoiling it for everyone, yet Cassell and Fowles argue that it does not appear to be working as intended in Chicago: “Given equal weight to the benefits the pool of such defendants receive when compared to the costs inflicted on victims seems dubious.”

The report ends not trying to bash reforms but warning that court systems need to really explore the impact of pretrial release data and make sure they’re not perpetuating new harms: “To be sure, such pretrial release reforms can have significant benefits. But only if both benefits and costs are accurately measured can a sound decision be made about which way the scales tip and whether the ‘reform’ was truly an improvement.”

Cassell wrote about the report’s release over at The Volokh Conspiracy, hosted here at Reason.

from Latest – Reason.com https://ift.tt/2T5o0mQ
via IFTTT