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A bipartisan trio of senators has introduced a bill that could potentially keep people charged with federal drug crimes out of unnecessary pretrial detention. Sens. Dick Durbin (D–Ill.), Mike Lee (R–Utah), and Chris Coons (D–Del.) have introduced the Smarter Pretrial Detention for Drug Charges Act of 2020.

Currently, if you’re arrested for federal drug charges, a judge will determine your release conditions on the presumption that you will be let free, unless the judge concludes you’re a danger to the community or a flight risk. This, logically, is how pretrial detention should be handled in accordance with the Fifth Amendment of the Constitution. People who are suspected of crimes, but not yet convicted, shouldn’t be treated as guilty and imprisoned solely on the basis of unproven suspicion.

However, if you face a federal drug charge with a potential sentence of more than 10 years, the judge is required to treat you with the presumption that you will be detained, just as if you’d a serious violent federal offense and even if no violence was involved in your drug case. As a result, Durbin’s office noted, defendants charged with drug crimes end up being stuck in jail in two-thirds of federal cases. The average defendant will spend 255 days in pretrial detention without having been convicted of a crime.

Durbin, Lee, and Coons’ bill will put all drug offenses on the same level. People charged with drug offenses that could potentially result in long prison sentences will no longer be treated with a presumption or pre-trial detention. But this is also not a “Get Out of Jail Free” pass. A judge can still order the confinement of a defendant who is deemed a threat to the community or a flight risk. The difference is that the courts will no longer presume that this threat exists without any evidence.

“The Fifth Amendment protects the life, liberty, and property of all Americans from government interference without due process of law. This legislation seeks to better protect the right of all Americans against unjust imprisonment by changing the presumption for pretrial detention,” said Lee in a prepared statement. “This change to a presumption against pretrial detention will allow judges more discretion to consider each defendant’s individual and unique circumstances when deciding whether pretrial detention is appropriate and necessary.”

The bill has the support of criminal justice reform groups across the political spectrum. The American Civil Liberties Union, the Innocence Project, and the Drug Policy Alliance all support it, as does Americans for Prosperity, Justice Action Network, Americans for Tax Reform (federal pretrial detention costs taxpayers $18,615 per defendant), and FreedomWorks.

“At a time when pretrial detention is at a record high, COVID-19 continues to spread rapidly through our prisons and jails—creating a deadly situation where incarcerated people are twice as likely to die from this deadly pandemic,” Holly Harris, president and executive director of Justice Action Network, said in a statement. “Our criminal justice system was in desperate need of reform well before COVID-19 hit, but it is now in a state of emergency. We urge members of Congress from both sides of the aisle to support this legislation and ensure that we take smart steps to reduce incarceration and save the lives of people in prisons, correctional workers, and our communities at large.” 

So far there have been 13,139 reported COVID-19 infections in federal prisons and 125 deaths. There are currently about 226,000 people in federal detention, either convicted of crimes, awaiting trial, or being held over immigration issues.

How many people will Durbin, Lee, and Coons’ bill actually help? Probably not a huge number when compared to the entire population of people being held in prisons and jails in America. According to data from the Prison Policy Initiative, only about 22,000 people are being held in pre-trial detention in federal jails for drug crimes, but nearly half a million people being held in pretrial detention in state and local jails. The percentage of imprisoned people who may be freed under these new rules is in the single digits.

But the possibility that this law helps only a couple of thousand people per year doesn’t make this bill bad or worthy of dismissal. The FIRST STEP Act proves that criminal justice reforms can have huge, positive impacts on the lives of federal inmates, even if only a small number of the total prison population reaps its benefits.

Rather, the reason it’s worth noting the small number of people this bill will help is to illustrate that comprehensive criminal justice reform does not result from a single bill, or five, or 10. Given that most people are imprisoned by the states, not the federal government, reform will continue to require a wide network of activism and supportive lawmakers across the country, and many, many changes to laws and policies.

The Smarter Pretrial Detention for Drug Charges Act of 2020 is just a small part of these reforms, but it will certainly mean a lot for several thousand people each year if it passes.

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A reader passed this along, and I believe it is authentic; I forward it because our readers seem interested in the controversy (see also this post) and because it may be usefully read together with the USC administration’s recent statements. The Faculty Council is a committee of faculty members within the USC Marshall Business School, and the e-mail was sent on Aug. 30:

Dear Colleagues:

Last week some full-time MBA students complained about an example that Prof. Greg Patton used in several sections of his GSBA 542 Communication for Management course, a core class in the full-time MBA program. In his class on Thursday August 20th, Greg was discussing presentation skills.  He was providing examples from different cultures on verbal disfluency. In this context, he used a frequently used filler word in Chinese language. Some students thought this Chinese word sounded like a vile racial slur in the English language.

After the final section of the class, Greg received feedback from several students that they were uncomfortable with his example.   The students lodged a formal complaint with Marshall. They stated that Greg had malicious intent with this example.

The next day, Greg sent a written apology to all three cores. He also appeared before all students and verbally expressed remorse for the pain he had unintentionally caused.

Marshall administrators worked on creating alternative classes/learning avenues for students who preferred not to continue in Greg’s class.

From Friday August 21st  to Sunday August 23, there were a number of meetings involving Marshall administrators, a small group of full-time MBA students, and full-time MBA staff. After an internal review process by the dean’s office that included an extensive review of Greg’s teaching, the dean informed Greg on August 23 that he would continue to teach the class. Greg taught the class on Monday August 24.  That day, the dean reversed the original decision to keep Greg in the class. He was replaced by a colleague from his department, starting on Tuesday August 25. In the early evening on August 24, the Dean sent a letter to the full-time MBA students announcing this change.

A formal USC OED [Office of Equity and Diversity] investigation is currently in place.

The faculty council has met with Greg as well as Dean Garrett and Vice Dean Yang to learn more. We have also reviewed a recording of Greg using the example in class.

Attached you will find several documents [not included in the message that I received -EV], including the following:

• The students’ complaint message to Marshall administrators
• Dean Garrett’s letter to the students
• Greg’s letter to the Marshall Graduate Student Association board.

Some people have already posted the video on public sites. You can find them with online searches.

In light of this event, we seek your input about (1) how to find constructive solutions for challenging situations facing faculty and administrators, (2) how should we, as faculty members respond in such situations and (3) how should these complaints be handled by Marshall administration. Each of us is available to meet and provide any additional information that we are aware of. Please complete this survey by Wednesday, September 2. Your responses will be anonymous: [link omitted -EV]

Best,

Faculty Council

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The U.S. Nuclear Regulatory Commission last week approved a design application for the first domestic small commercial nuclear reactor. These types of reactors are smaller, simpler, cheaper, and feature more advanced safety systems than traditional reactor designs. It has the potential to generate enough electricity to power more than 50,000 homes. 

The reactor design was submitted by NuScale Power, an Oregon company that plans to build at least a dozen small reactors by 2030 at a site in eastern Idaho. NuScale has received $288 million from the Department of Energy for the development of modular nuclear reactors, but a complex regulatory system for nuclear power means there’s a long way to go before construction can begin.

Utah Associated Municipal Power Systems—a consortium of 46 public utilities in six western states that plans to work with NuScale on the small reactor project— is now required to submit a combined construction and operating license application, and must complete an environmental analysis in compliance with the National Environmental Policy Act. Utah Associated spokesman LaVarr Webb told the Associated Press that he estimates these applications will likely take two years to prepare.

Still, this is an important step forward. The Nuclear Regulatory Commission’s approval means that they believe the reactor will work safely and as intended.

NuScale submitted its 12,000-page application to the U.S Nuclear Regulatory Commission in 2017 and has responded to more than 1,500 formal requests from the commission for more information. There’s a reason that NuScale’s design is the first that the NRC has approved since 2014.

While NuScale is moving forward, NRC regulations seem to be discouraging innovation. Carrie Fosaaen, a licensing specialist at NuScale, told Science Magazine that the NRC regulations, strictly interpreted, would push NuScale towards just building a miniature version of a conventional reactor—rather than being able to incorporate the design improvements that make NuScale’s design safer than conventional reactors.

As more states shift away from generating electricity from fossil fuels, nuclear power should be part of the mix. California’s rolling blackouts show how an increased focus on renewable energy comes with a problematic lack of durability for the power grid. The sun and wind do not care about the demand for electricity. Sometimes the sun doesn’t shine, or there is no wind. Nuclear power, however, produces a consistent amount of electricity that can be dialed up or down to meet demand.

NuScale Power’s design approval is an important first step towards a durable, renewable power grid, but the complex regulatory apparatus is a critical obstacle standing in its way. Future advances in nuclear reactor design are going to have to come hand in hand with the further deregulation of the nuclear sector.

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Economists have long warned that a great deal of regulation that is supposedly in the public interest acts in practice as a transfer of wealth from one private interest to another. Policy makers are usually demure enough to hide this. It is rare that rent-seeking is as explicit and open as the Australian government’s current attempt to expropriate money from Facebook and Google—money that will be directly paid to the traditional news outlets that these tech companies have disrupted.

This is much more than just a regional policy fight; what is happening in Australia tells us a lot about how the changing economics of media are feeding the bipartisan war on the tech industry in the United States and globally. Much of what is dressed up as populist anti-tech policy is in fact an attempt by legacy media companies to weaponize confused regulators against their competitors.

The Australian government wants Facebook and Google to sign onto what they call a “News Media Bargaining Code,” which will require tech companies to pay news organizations when news content is “included” on the digital platforms. The exact price to be paid is meant to be negotiated by media companies and digital platforms. The rationale offered by Australian antitrust regulators is that there is a “bargaining power imbalance” between tech and media companies, hence the need for government action to get negotiations started. 

You may be tempted to read that paragraph again. Don’t bother. The government’s argument is euphemistic and its reasoning is obscure. The most obvious problem is that neither Facebook nor Google “include” news content on their platform. The dispute is not about intellectual property theft; all tech companies are doing is linking to news sites. Facebook allows users to share links. Google offers links through its general search function as well as its Google News search service. The upshot is that the Australian government wants Facebook and Google to pay news organizations for the privilege of linking to their content. 

Unsurprisingly, Facebook has said if it is forced to pay it will simply block Australians from sharing news links. Google might also shut down its Google News service—that’s what happened when a similar policy was introduced in Spain in 2014.

Much like the U.S., the Australian media sector is in economic freefall. And like the U.S., both Australian progressives and conservatives have been regarding tech companies with increasing skepticism. We usually think of anti-tech skepticism as ideological—conservatives are at odds with socially liberal Silicon Valley types while progressives look at Silicon Valley as the new robber barons. But in Australia, it is strikingly obvious how the economic collapse of traditional media causes anti-tech sentiment.

Throughout the 20th century, the newspaper business model was simple: Newspapers sought to match readers with advertisers. Advertising paid for journalism, which attracted readers, which then attracted more advertising, and so on. The more readers the better. So newspapers tried to appeal to the median reader. 

The history of the media in the last two decades is the slowly unfolding consequences of advertising migrating from the print media to the internet. This creative destruction not only undermined business models that paid for mass-market journalism, but reshaped how public debate is conducted. The growth in media partisanship in recent years could be because media outlets no longer try to appeal to the median reader—they try to engage a passionate few who will stump up a subscription fee. That is, media partisanship has economic causes.

The other consequence is political backlash against the big tech companies. 

For generations, the art of politics involved serenading the local press, getting an audience with the regional media mogul, or building a relationship with a sympathetic journalist who could be relied on to get a political message out. 

Now those friendly moguls and journalists are on the backfoot, shocked by the extraordinary growth of the digital platforms that seem to have ripped both the economic high ground from under them. And the political class is starting to respond to the new media normal the best way they know how: with threats of regulation.

It is easy to laugh at the odd populist attempts to tame digital platforms, such as Sen. Josh Hawley’s (R–Mo.) 2019 proposal to ban autoplay videos and infinite scrolling. But the Australian experience shows that the greater threat to digital platforms comes from antitrust regulators, dressed up in bizarre claims about “bargaining power imbalances.”

Antitrust policy in the 21st century is particularly vulnerable to this sort of strange thinking. Antitrust was conceived in a world of monolithic corporate hierarchies—factories that built physical things and distributed those things using physical infrastructure like rails and ports. Digital platforms are hard to understand through the traditional antitrust lens. 

The more users a digital platform has—the more it dominates a market segment—the more valuable that platform is to those users. We want to use the social media network that everyone else is using. And to get more users, platforms often provide access to one side of the market for free. For regulators used to hunting for predatory pricing, this just looks weird. At the same time these digital markets are highly dynamic; firms tend to dominate them, but not for long. This too leaves regulators in a bind. They’ve spent more than a century warning of the dangers of monopolies, but now they’re struggling to identify the actual harm these digital platform “monopolies” are causing.

Australian regulators are confused as to what to do and have proposed everything from regulating Facebook and Google’s algorithms, to enacting new privacy laws, to giving more money to public broadcasters.

It’s clear that U.S. regulators are confused too. In early September, The New York Times reported that while the Department of Justice plans to imminently bring an antitrust case against Google’s parent company, Alphabet, there is much internal disagreement about what the grounds of the government complaint should be. 

As the Australian experience shows, this combination of confused regulators and aggrieved, politically connected industries is a dangerous thing.

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President Donald Trump has released a new list of people he would nominate to the U.S. Supreme Court if given the opportunity. It’s terrifying.

The list includes staunch warmonger Sen. Tom Cotton (R–Ark.), preening huckster Sen. Josh Hawley (R–Mo.), and veteran sycophant Sen. Ted Cruz (R–Texas), among 17 others. Yikes.

Hawley—whose latest round of legislative nonsense is providing a federally funded pay raise for police around the country—has already said thanks but, no thanks to Trump. “I appreciate the President’s confidence in listing me as a potential Supreme Court nominee. But as I told the President, Missourians elected me to fight for them in the Senate, and I have no interest in the high court,” Hawley tweeted Wednesday afternoon.

Given Hawley’s penchant for lying about his record, calling for bogus investigations, and introducing unconstitutional legislation, that’s probably good news. (Although to the extent that Hawley’s rejection signals an intent to run for president himself in 2024…. double yikes.)

No such luck with Cotton and Cruz, however. Both men indicated they may be happy to accept the job of Supreme Court Justice. “I’m honored that President Trump asked me to consider serving on the Supreme Court and I’m grateful for his confidence. I will always heed the call of service to our nation,” Cotton said in a press release.

Cotton followed that up by tweeting: “It’s time for Roe v. Wade to go.”

“It’s humbling and an immense honor to be considered for the Supreme Court,” said Cruz, in a statement that neither rejects the potential nomination nor fully embraces it. “The High Court plays a unique role in defending our Constitution, and there is no greater responsibility in public service than to support and defend the Constitution of the United States,” Cruz’s statement continued. “In the Senate, I have been blessed to lead the fight to preserve our constitutional liberties”—fact check: false—”and I look forward to continuing to do so for many years to come.”

It’s hard not to notice that the three senators on Trump’s SCOTUS shortlist are all folks with confirmed or rumored presidential ambitions. Some have read their inclusion as evidence that, if elected in 2020, Trump will seek a third term in office. A less paranoid spin is that Trump is trying to clear the way in 2024 for one of his kids.

The 20 potential SCOTUS nominees that Trump offered up yesterday “are additions to an original list that has been updated throughout his presidency,” notes CBS News. Aside from Cotton, Cruz, and Hawley, the list includes:

• Bridget Bade (judge on the U.S. Court of Appeals for the 9th Circuit)
• Daniel Cameron (Kentucky Attorney General)
• Paul Clement (served as solicitor general under George W. Bush)
• Stuart Kyle Duncan (judge on the U.S. Court of Appeals for the 5th Circuit)
• Steven Engel (an assistant attorney general with the Department of Justice)
• Noel Francisco (a former solicitor general under Trump)
• James Ho (judge on the U.S. Court of Appeals for the 5th Circuit)
• Greg Katsas (judge on the U.S. Court of Appeals for the District of Columbia Circuit)
• Barbara Lagoa (judge on the U.S. Court of Appeals for the 11th Circuit)
• Christopher Landau (U.S. ambassador to Mexico)
• Carlos Muniz (justice on the Florida Supreme Court)
• Martha Pacold (judge on the U.S. District Court for the Northern District of Illinois)
• Peter Phipps (judge on the U.S. Court of Appeals for the 3rd Circuit)
• Sarah Pitlyk (judge on the U.S. District Court for the Eastern District of Missouri)
• Allison Jones Rushing (judge on the U.S. Court of Appeals for the 4th Circuit)
• Kate Todd (deputy counsel to the White House)
• Lawrence VanDyke (judge on the U.S. Court of Appeals for the 9th Circuit)

QUICK HITS

• Trump told journalist Bob Woodward in mid-March that when it came to COVID-19, he “wanted to always play it down” because he didn’t “want to create a panic.” Trump also admitted to Woodward back in February that the new coronavirus was “more deadly than even your strenuous flu,” although the president would continue to say otherwise in public.

• The case for paying plasma donors.

• Some perspective on Trump’s claims to be an anti-war president who is bringing home troops:

To put things in perspective: From the start of his term to the end, Barack Obama reduced troop levels in Afghanistan by ~25K and Iraq by ~140K. Donald Trump has so far reduced those troop levels by zero, with hopes of reducing troop levels in Afghanistan by ~4K and Iraq by ~2K.

— Justin Amash (@justinamash) September 9, 2020

• Pardoned felon Joe Arpaio—the notoriously racist and authoritarian former elected sheriff of Maricopa County, Arizona—gets a lesson in furries:

No more internet today Peter, it won’t top thishttps://t.co/9lJi1THjxy pic.twitter.com/4nSBdOAKMV

— Peter Bonilla (@pebonilla) September 10, 2020

• Disney’s Mulan is “an extravagant mediocrity,” writes Reason‘s Peter Suderman.

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