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Jack argues that one of the government's legal approaches to terror threats-bring early cases against people who pose remote threats, rather than waiting for them to act, so as to disrupt terror plots even at the risk of failing to secure convictions-is characteristic of the new National Surveillance State that we now live in, an idea that is discussed in this paper by Jack and Sandy Levinson. Orin says no big deal about "National Surveillance": in the modern world, governments use computers in the course of detecting criminal activity, but government use of computers is not the same as living in a "surveillance state." Jack says he was not criticizing the FBI in particular, or the government's use of computer technology for surveillance in general; he was just pointing out that this modern trend calls for careful thought given its possibly disturbing implications for privacy and civil liberties. Orin says that this claim is also no big deal. A few further thoughts:
1. People want both to control information about themselves and to obtain information about others. Various customs, practices, institutions, and laws reflect these general preferences. When technologies change, it can become easier or harder to control information about oneself. The Internet, in particular, seems to make it easier to obtain information about others, and harder to control information about oneself. Is this change good or bad? It is hard to say in the abstract. Certainly, people who are very private are worse off, while people who seek information about others (employers, colleagues, potential mates, potential friends, and so forth) are better off. Law and policy will not try to turn back the clock to 1990; but it will attack problems piecemeal, for example, the risk that computerized medical records will fall into the wrong hands can be addressed (and has been addressed) with regulations directed at hospitals.
2. There is a technological arms race between governments and criminals. Every new technology gives criminals new methods to commit crimes, and governments new methods to detect them. For example, computer technology enables criminals to obtain personal information that can be exploited for illegal ends, while it allows governments to improve tracking of criminal behavior, surveillance, and so forth. There is no rule that a technological advance must benefit one side or the other, or keep the balance of power constant. When technological change favors criminal activity, it will be impossible to maintain the existing crime rate without handing government new powers.
3. In the battle between government and criminals, innocents can be victims. If the government needs to be able to monitor email messages because criminals conspire by email, then the government will have the capacity to monitor email messages of innocent people. Unavoidably, this power will be abused by some agents, and innocent people will be harmed.
4. As Jack seems to be aware, the constitutional implications of these trends are highly ambiguous. If technological change hands the government a highly non-invasive, hard-to-abuse, and effective means for solving crimes and preventing criminal behavior, then we might want to restrict the government's powers along other dimensions where abuse occurs. If technological change favors criminals, we might need to strengthen the government's hand (for example, weaker search warrant rules) so that it can keep up with criminals. I doubt that one can say much beyond this; one must look at problems as they arise, and make the tradeoffs as best one can in light of the specifics of a particular case.
A final point concerns Jack's initial post, which claims or implies that in the national security state, preventive measures will take on additional significance, relative to the traditional law enforcement model of waiting for crimes to occur and then investigating them. Although it is true that technological changes might increase the relative value of preventive measures, it is also true that it can have the reverse effect. DNA matching technology, so far, has been useful for investigation of crime, not preventive measures. Computer technology makes surveillance more effective, but it also helps traditional law enforcement. Recent advances in computer technology can be exploited under both the prevention and the law enforcement model; there is no reason to believe that government will shift resources from one to the other.
The recent preventive detention measures have less to do with technology than with the nature of our current security environment. Preventive measures are more important for large-scale threats than law enforcement is. That is why during wartime, preventive measures are always used. During the early cold war, we lived in a national surveillance state: the government monitored suspected communists, and this practice also led to monitoring of the civil rights and anti-war movements. The government used the technology that was then available; it would make no sense to say that technological changes of that era caused the government to engage in surveillance, or more than it would otherwise have, using older technologies. Surveillance has become more important again in the wake of 9/11, but if the threat posed by international terrorism ever declines, then we can expect surveillance of potential terrorist threats, along with incidental abuse that harms innocents, to decline as well.
But there is a reason to believe that relatively intense level of surveillance is here to stay. That reason is not so much the threat of international terrorism, but technology's recent contributions to instruments of death. As it becomes easier for criminals to manufacture highly destructive explosives and deadly biological and chemical agents, we might all decide that a high degree of government surveillance is a price worth paying for a reasonable level of security. After-the-fact investigation and punishment are wholly inadequate when criminals seek to cause mass destruction and (as criminals frequently are) they are willing to risk their lives in order to achieve their illegal goals.
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Thanks Emily for pointing out the wrongheadedness of McCain’s opposition to the Equal Pay Bill.
This very mild piece of legislation would have undone an incredibly bad Supreme Court decision in Ledbetter which held that the filing period to bring a Title VII action for discriminatory compensation begins running when the employer first discriminates, even if the employer continues to in fact discriminate for years afterward. The Court in Ledbetter wrongly focused on an discriminatory state of mind—which, contrary to Justice Alito’s assertion in that case is not the sine qua non of unlawful discrimination but rather simply evidence of it---rather than the actual discrimination: differential treatment because of sex.
As I wrote in Slate last year, it’s pretty obvious that the actual discrimination is ongoing as long the employee is in fact receiving lower pay because of her sex, even if the subsequent low paychecks are simply the carryover result of the initial discriminatory decision. It doesn’t (or shouldn’t) matter if the person setting later salaries based on the original discriminatory salary isn’t motivated by discriminatory intent—the employer is discriminating as long as it is in fact paying the woman less because of her sex. The point of Title VII isn’t just to punish bad actors with evil intentions—it’s also to prevent discriminatory actions and the injuries that result from them.
And, contra McCain, far from encouraging frivolous litigation, the Equal Pay Act might even discourage it. As Emily points out, in many cases it take a while for the employee to find out that she’s being paid less than other people doing the same work (employees rarely discuss their salaries with each other and of course management has every incentive not to publicize pay disparities)—but Ledbetter says that’s tough—if you don’t find out after until after the quite short filing period ends (either 180 or 300 days), your action is time barred. This actually encourages anyone with a potential claim to hurry up and file—waiting until you’re sure you’ve been discriminated against will, under Ledbetter, often mean your case is time barred.
I have to say it’s hard for me to believe that anyone who is really committed to equal pay would oppose this mild and sensible piece of legislation-- it doesn't open us up to lawsuits for "all kinds of problems"-- only for the problem of discriminatory pay. Opposition suggests that McCain is most concerned with reducing the absolute number of cases filed—whether or not they have merit.
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Thanks to Marty and Phil for highlighting the recent NYT report that the U.S. incarcerates more of its people-and for longer periods-than any other nation, bar none. I was disappointed, though, that the story did not discuss the devastatingly disproportionate rates of imprisonment of racial minorities.
The U.S. Department of Justice's Bureau of Justice Statistics estimates that 32 percent of African American males can expect to be imprisoned during their lifetimes, compared to 5.9 percent of White males. The explanation is complicated, and much relates to how we treat drugs: the crack/cocaine disparity and beyond that, the fact that African Americans face disproportionately higher rates of arrest, prosecution, and conviction and disproportionately longer sentences. And those disparities, of course, translate to amazingly high rates of African Americans who subsequently are prohibited from voting, unable to find jobs, ineligible for student loans . . . the ramifications go on and on and on.
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Last night, Senate Republicans killed the Equal Pay Bill, which would have undone the Supreme Court's bad deed in a case last term called Ledbetter v. Goodyear Tire and Rubber Co. Lily Ledbetter sued Goodyear for sex discrimination because she earned less than men in similar positions--a fact she proved in court. But on appeal, the Supreme Court found that Ledbetter's suit was too late, by setting the clock according to Ledbetter's first unfairly low pay check, rather than the ongoing low salary she continued to receive years later. It didn't matter when she found out she was being shortchanged--only when Goodyear started doing so.
John McCain said Wednesday that he supports "pay equity for women," but opposes the fix for Ledbetter's plight in the Equal Pay Bill because it "opens us up to lawsuits for all kinds of problems." That has a nice anti-litigation ring, but does it make sense? As Rich Ford pointed out in Slate after the Supreme Court's decision, the clear lesson the case holds for employees is "Sue early and often. If you suspect your boss might be discriminating with regard to your pay, you can't afford to wait around until you're sure." The Equal Pay Bill might give rise to more meritorious law suits. But couldn't it also stave off some losers--Rich or anyone else, thoughts? And what does it mean to be for pay equity for women while opposing what's on offer to actually help achieve it?
(Cross posted on Slate's women's blog, XX Factor.)
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A new poll that shows that 16 percent of Pennsylvania white voters who were asked whether “the race of candidate was important” said yes—80 percent saidno. Of those who answered “yes” 54 percent said they’d support Obama in the general election—27 percent said they’d defect to McCain and 16percent said they’d stay home on election day and polish their guns, cuddle up with their bibles and nurse their bitterness.
The New York Times says that this means “Obama’s race could be a problem in the general election.” First reaction: a hearty “no duh”. Butlet’s also unpack those poll results and ask what they really tell us. Of course his race will repel, well, racist voters, of which no one doubts there are some. But before we conclude that 16 percent of Pennsylvania whites are racists, notice that of the 16 percent who said race mattered, 54 would support Obama, which suggests that for some Obama’s race is a plus. But what about those that won’t support him—about 7 percent? All racists? Isn’t it at least possible that some won’t support him despite, rather than because of his race?
I tried this thought experiment: if asked whether the sex of the candidate is important, I would answer “yes” because I think all things being equal it would be great to have a woman President. But sex is not enough to convince me to support Clinton over Obama—I support Obama despite his sex and because of his other virtues. Truth be told, alot of people I know-- including a lot of feminists--are pretty sick of Hillary Clinton, Bill Clinton, even Chelsea, who, unlike her parents really hasn’t done anything to deserve their contempt, and they'd probably have it in for Socks the cat too if he turned up on TV. Now I suppose some of them mightwell answer a poll: yes I think sex is important (I’d love to have a woman President--just not Hillary Clinton)---and no if Hillary is the nominee, by gum I’ll vote for McCain, or Ralph Nader, or stay home on election day and cuddle up with a cold martini and my warm, fuzzy Northern Californian sense of superiority. And the Times would take that answer as evidence of voter sexism. I imagine some Clinton supporters are beginning to feel equally irritated with Obama as this nasty campaign drags on. So maybe a lot this polling data is evidence of the costs of a protracted fight for the nomination, rather than inveterate racism on the part of voters.
Another piece of potentially misleading poll data: Clinton supporters are much more likely to defect to McCain or stay home if Obama is the nominee than Obama supporters are to defect or stay home if Clinton wins. Isn’t is possible that this result is skewed by the fact that Clinton is losing and Obama looks like the inevitable nominee? If my candidate is poised to win, I can afford to be magnanimous: “of course Hillary Clinton is a fine candidate and if she were to win (but of course she won’t) I’d support her energetically.” But if my person is losing, I might start to get a tiny bit, well, bitter. And maybe I’d even say things like “if that old school, politics-as-usual beltway insider steals the nomination in a brokered convention with her insider connections and underhanded politics—well, I’ll be dammed if I vote for her! I’d rather have Attila the Hun (or JohnMcCain) than continue the corrupt Clinton dynasty!” You haven’t heard alot of this because Obama is the presumptive nominee, but post-Pennsylvania you’re already hearing rumblings of defections to the Green party among Obama supporters should Clinton get the nomination.
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Phil says "And, the fact that America still leads the world in violent crime raises fundamental questions about whether we're getting it right." The premise is not correct. According to the United Nations world survey (the latest I could find was 2002, so a little dated, but probably still roughly accurate), the U.S. murder rate is 5.62 per 100,000 inhabitants, well below that of lots of other countries. The data are assembled in an easy-to-read graph here. Clearly, your chance of being murdered in the United States is higher than in Europe, Japan, and Saudi Arabia (!), but you would be worse off in Mexico or Thailand.
What is true is that the United States is more dangerous than any other rich country, and maybe this is what Phil meant. But I'm skeptical that one can draw any inferences about incarceration policy from the differences between these countries and the United States. There are just too many confounding variables; empiricists who do cross-country studies of crime, gun control, and the like, are well aware of this. Because the United States is richer than Mexico, it can build more prisons and incarcerate more people. It does not speak poorly of the United States that we imprison more people per capita than Mexico does. Because the United States is wealthier than Mexico is, it can devote more resources to the crime problem. Within the United States, it seems to be true that when incarceration rises, crime falls. As long as violent crime remains a significant problem in this country, it is logical to have a large prison population, though to be sure there are no doubt many ways that prison policy can be improved at the margin.
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Marty, I agree with your suggestion that yesterday's story by Adam Liptak in the New York Times may be the biggest legal story of the last several years -- notwithstanding all the ink and electrons we've spilled about torture, executive power, and so many other subjects. The fact that America leads the world in incarceration is a huge statement about how we view the rule of law, and the role of criminal justice in our society. And, the fact that America still leads the world in violent crime raises fundamental questions about whether we're getting it right.
However, I was a bit taken aback by Adam's statement regarding the link between jail time and crime:
There is little question that the high incarceration rate here has helped drive down crime, though there is debate about how much. [emphasis added]
Criminologists and legal experts here and abroad point to a tangle of factors to explain America’s extraordinary incarceration rate: higher levels of violent crime, harsher sentencing laws, a legacy of racial turmoil, a special fervor in combating illegal drugs, the American temperament, and the lack of a social safety net. Even democracy plays a role, as judges — many of whom are elected, another American anomaly — yield to populist demands for tough justice.
Whatever the reason, the gap between American justice and that of the rest of the world is enormous and growing.
Little question? Really? I think this assumes facts not in evidence about the relationship between incarceration and crime. Adam alludes to this later in the story, but there are big questions about the ex ante and ex post effects of incarceration (and particularly the length and quality of incarceration) on crime. There is an enormous body of literature discussing these questions in the drug crime context, and there is also literature to suggest that incarceration for minor crimes may increase violent and serious crime by hardening criminals inside the joint and networking them with other criminal actors.
Clearly, incarceration has some effect on crime. As the saying goes, a thug in prison can't rob you. But I think there's a lot more to this than what the story reports. What do you think?