Clinton’s Hawkish Statements On Syria Remind Left That Clinton Does Not Share Our Views On Foreign Policy

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As is far too often the case, I think the mainstream media is getting the story wrong following Hillary Clinton’s interview with Jeffrey Goldberg in The Atlantic  in which she took a different position from Obama. We expect to see Clinton separate herself to some degree from Obama.The real significance is that this has been a wake up call for many on the left who really haven’t thought about Clinton’s hawkish world view. Many liberals who ostracized Joe Lieberman still embrace Hillary Clinton despite holding very similar foreign policy views. I doubt that this will change the outcome of Clinton winning the nomination, assuming she runs, but if by chance she is stopped by a successful challenger, in retrospect we might see this week as the time when things changed for her. David Brooks, while largely agreeing with Clinton from the right, speculates that “I’d bet she is going to get a more serious challenge than people now expect.” These questions are bigger than Politico discussing whether Hillary Clinton is comfortable in her own skin.

Clinton has received criticism for her views on intervening in Syria and for her general disagreement with Obama’s approach:

Great nations need organizing principles, and ‘Don’t do stupid stuff’ is not an organizing principle.”

“Don’t do stupid stuff” sounds like a good idea. It reminds me a lot of the Hippocratic Oath to do no harm. Both good ideas, as opposed to Clinton’s history of making big mistakes and not realizing it until later, after the damage is done.

The Weekly Standard did have an amusing take on this, running a story composed of quotes from the interview under the headline, “Special Guest Editorial: Obama’s Foreign Policy Failures By HILLARY RODHAM CLINTON”

Response to Clinton’s statements on getting involved in the quagmire in Syria were largely negative from the liberal blogosphere. Digby’s response to the interview:

This is a very scary interview. Much more hardcore than I expected…

It’s possible she’s doing this to speed things up so an agreement can be struck before Obama leaves office — kind of a Reaganesque  madman move — but considering her hard line on everything else, I’d guess not.

Yikes.

Booman looked at the substance of Clinton’s argument and concluded, ” Had we made that mistake, too, we’d be in an even deeper hole.”

From Balloon Juice:

…my major concern about HRC is her hawkishness. That’s why I supported Obama instead of HRC back in 2008 — he recognized the Iraq War as “stupid shit” from the beginning; she didn’t.

The remark highlighted above doesn’t tell us much about Clinton’s organizing principles. When Goldberg questioned her directly on it, her response was “peace, progress and prosperity,” which could have come from a Miss World pageant script.

A supporter of Clinton in 2008 at Cannonfire wrote, “It’s Obama vs. Hillary — again — and this time, I’m on HIS side”

Not surprisingly, Andrew Sullivan was quite hard on Clinton:

And the greatest throwback to 2003 in this respect is Hillary Clinton. So far as one can tell from her interview with Jeffrey Goldberg, there is no daylight between her and John McCain or even Benjamin Netanyahu – but a hell of a lot of space between her and Barack Obama. The interview confirms my view that she remains neoconservatism’s best bet to come back with bells on. It appears, for example, that her boomer-era pabulum about foreign policy on the Jon Stewart show – “We need to love America again! – was not an aberration. She actually means it. And once we believe in ourselves again – don’t look at that torture report! – it will be back to the barricades for another American century of American global hegemony. And why not start in Syria and Iraq? I mean: she’s already hepped up about the threat of Jihadism – and what could possibly go wrong this time? If only we believe in America!

You know, when you’re down on yourself, and when you are hunkering down and pulling back, you’re not going to make any better decisions than when you were aggressively, belligerently putting yourself forward. One issue is that we don’t even tell our own story very well these days.

Just forget that this country destroyed its military deterrence and its moral authority by the war that Clinton favored and has never fully expressed remorse for. Forget the trillions wasted and the tens of thousands of lives lost and the brutal torture we authorized and the hapless occupation that helped galvanize Jhadism, let’s just feel good about ourselves! And do it all again!

And so try and find a real difference between John McCain and Hillary Clinton on these topics. It’s certainly the same “fight them over there so we don’t fight them over here” fear-mongering:

One of the reasons why I worry about what’s happening in the Middle East right now is because of the breakout capacity of jihadist groups that can affect Europe, can affect the United States. Jihadist groups are governing territory. They will never stay there, though. They are driven to expand. Their raison d’etre is to be against the West, against the Crusaders, against the fill-in-the-blank—and we all fit into one of these categories. How do we try to contain that? I’m thinking a lot about containment, deterrence, and defeat.

Well, actually, their raison d’etre is not to be against the West. Right now and for the foreseeable future, it is about defeating the apostates of Shia Islam and wimpy Sunni Islam. It’s about forcing other Muslims to submit to their medieval authority – with weapons left behind from the last American interventionist project. The West for these Jihadis is a long, long way away. But not for Clinton or for McCain who see every struggle anywhere as involving the US because … America! And that’s when you realize how fresh Obama was and how vital he has been – and how in foreign policy, a Clinton presidency is such a contrast to his.

MoveOn issued this warning to Clinton:

Secretary Clinton, and any other person thinking about seeking the Democratic nomination in 2016, should think long and hard before embracing the same policies advocated by right-wing war hawks that got America into Iraq in the first place and helped set the stage for Iraq’s troubles today. These hawkish policy stances are also threatening to undermine the peaceful international resolution of Iran’s nuclear program.

Voters elected President Obama in 2008 to bring the war in Iraq to an end. MoveOn members will continue to stand with elected officials who oppose military escalation that could put us back on a path to endless war.

I rarely agree with The American Conservative to the degree I agree with much of this analysis:

Clinton has “brilliantly” identified herself as the hawk that she has always been, which puts her sharply at odds with most people in her own party and most Americans of all political affiliations. That’s not triangulation at all. The old Clintonian triangulation was driven by an obsessive focus on public opinion and on finding mostly minor issues that obtained support from a large majority. The purpose of it was to co-opt popular issues and deprive the opposition of effective lines of attack. The goal was not to poke the majority of Americans in the eye on major issues and tell them that they’re wrong. Clinton’s foreign policy posturing politically tone-deaf and focused entirely on what will please people in Washington and a few other capitals around the world. It is evidence that Clinton thinks she can get away with campaigning on a more activist foreign policy on the assumption that no one is going to vote against her for that reason. She may be right about that, or she may end up being surprised–again–to find that her horrible foreign policy record is still a serious political liability.

Now it’s true that the vast majority doesn’t vote on foreign policy, and most Americans normally pay little or no attention to it, but one thing that does seem to get their attention is when they are being presented with the prospect of new and costly conflicts. If Obama is faulted in Washington for being too cautious, Clinton is making clear that she will err on the side of being too activist and aggressive, and she gives us every reason to expect that she will err quite often on that side. That isn’t going to gain Clinton any votes, and it could easily lose her quite a few. Her twin hopes at this point have to be that she won’t face a significant challenge from the left on these and other issues and that the next Republican nominee will be even more irresponsibly hawkish than she is. That’s not brilliant. It’s called wishful thinking.

Clinton’s current hawkish views today are hardly new, as in 2002 when she backed the Iraq war based upon claims of a tie between Saddam and al Qaeda:

Indeed, in Clinton’s October 10, 2002, speech about her vote she said of Saddam: LINK

“He has also given aid, comfort, and sanctuary to terrorists, including Al Qaeda members, though there is apparently no evidence of his involvement in the terrible events of September 11, 2001.”

As Don van Natta and Jeff Gerth have written in their book about Clinton and the New York Times, Clinton’s linkage of Saddam and al Qaeda was unique among Democrats and “was unsupported by the conclusions of the N.I.E. and other secret intelligence reports that were available to senators before the vote.” LINK

Former Senate Intelligence Committee Chair Sen. Bob Graham, D-Florida, said it was a spurious claim: “I don’t think any agency pretended to make a case that there was a strong linkage between Saddam Hussein and 9/11. It wasn’t in the N.I.E.”

“Nevertheless,” van Natta and Gerth write, “on the sensitive issue of collaboration between Al Qaeda and Iraq, Senator Clinton found herself adopting the same argument that was being aggressively pushed by the administration. Bush, Vice President Dick Cheney and other administration officials had repeated their claim frequently, and by early October 2002, two out of three Americans believed that Saddam Hussein was connected to the Sept. 11 attacks. By contrast, most of the other Senate Democrats, even those who voted for the war authorization, did not make the Qaeda connection in their remarks on the Senate floor.”

Sen. Joe Biden, D-Del., “actively assailed the reports of Al Qaeda in Iraq, calling them ‘much exaggerated.’ Senator Dianne Feinstein of California described any link between Saddam Hussein and Al Qaeda as ‘tenuous.’ The Democratic senator who came closest to echoing Clinton’s remarks about Hussein’s supposed assistance to Al Qaeda was Joseph Lieberman of Connecticut. Yet even Lieberman noted that ‘the relationship between Al Qaeda and Saddam’s regime is a subject of intense debate within the intelligence community.’”

How could Clinton get this key point so wrong?

“My vote was a sincere vote based on the facts and assurances that I had at the time,” she said in February.

But what facts and assurances?

It is not just a single view. The problem is Hillary Clinton’s entire history on foreign policy. I trust Obama far more than Clinton in answering that hypothetical 3 am phone call.

Obamacare Health Insurance Premiums Expected To Increase By Average Of 7.5 Percent; Kaiser Lowering Rates In California

As the data comes in, we are seeing that another of the scare stories about Obamacare isn’t coming true. For example, there was a report in March claiming rates would sky rocket which many lazy journalists repeated despite it originating from a story with no sources, written by someone who had interned at The National Review. The same writer at The Hill now says that premiums will increase an average of 7.5 percent. In the past, double digit increases were common on the individual market.

I previously reported on predictions that premiums in California would increase by an average of 4.2 percent. We now have more detailed data from the major California insurance companies. Last year Kaiser set their rates higher than the competition and suffered by coming in fourth place in exchange enrollment. In response, and in hopes of increasing their market share, they plan a 1.4 percent decrease next year. Anthem Blue Cross, which received the most subscribers in the exchanges, plans an increase of 4.6 percent. The next two largest insurers of exchange plans, Blue Shield of California and Health Net, plan increases of 6 percent and 4.9 percent.

Kaiser is not expected to significantly increase market share due to continuing to have rates higher than the competition. For example, here is a comparison in Los Angeles:

In region 15, for a 40-year-old buying a silver plan this year, Kaiser was the highest-priced coverage at $297 a month. That’s before any federal premium subsidies based on a person’s income.

In 2015, that same silver plan would cost $287 from Kaiser. That’s still the second-highest price in L.A. behind an Anthem exclusive-provider-organization, or EPO, plan.

Next year, Health Net’s HMO remains the cheapest coverage on the silver tier in L.A. at $231 a month for a 40-year-old, up $7 from this year’s premium.

Those low rates made Health Net the market leader in L.A. with 33% market share, beating out Blue Shield and Anthem.

Chuck Todd to Replace David Gregory As Host of Meet the Press

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While I might not always agree with Chuck Todd, I stick with what I wrote back in 2009 that Todd was the best choice to replace Tim Russert as host of Meet the Press. The only surprising thing about today’s news that Todd will be taking over is why it took NBC so long to replace David Gregory. Todd’s enthusiasm for the game of politics, and depth of knowledge of the field, make up for the times in which I have been unhappy with what he has said.

Chuck Todd, a political obsessive and rabid sports fan, is the likely successor to David Gregory as moderator of “Meet the Press,” with the change expected to be announced in coming weeks, according to top political sources. The move is an effort by NBC News President Deborah Turness to restore passion and insider cred to a network treasure that has been adrift since the death in 2008 of the irreplaceable Tim Russert. Although Todd is not a classic television performer guaranteed to wow focus groups, his NBC bosses have been impressed by his love of the game, which brings with it authenticity, sources, and a loyal following among newsmakers and political junkies.

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Media Support For Legalization Of Marijuana and Prostitution

Legalize Pot and Sex

There is a welcome trend towards support of decriminalization of victimless crimes. The New York Times recently came out for legalization of marijuana, outlining the harm done by the unsuccessful prohibition:

America’s four-decade war on drugs is responsible for many casualties, but the criminalization of marijuana has been perhaps the most destructive part of that war. The toll can be measured in dollars — billions of which are thrown away each year in the aggressive enforcement of pointless laws. It can be measured in years — whether wasted behind bars or stolen from a child who grows up fatherless. And it can be measured in lives — those damaged if not destroyed by the shockingly harsh consequences that can follow even the most minor offenses…

The costs of this national obsession, in both money and time, are astonishing. Each year, enforcing laws on possession costs more than $3.6 billion, according to the American Civil Liberties Union. It can take a police officer many hours to arrest and book a suspect. That person will often spend a night or more in the local jail, and be in court multiple times to resolve the case. The public-safety payoff for all this effort is meager at best: According to a 2012 Human Rights Watch report that tracked 30,000 New Yorkers with no prior convictions when they were arrested for marijuana possession, 90 percent had no subsequent felony convictions. Only 3.1 percent committed a violent offense.

The strategy is also largely futile. After three decades, criminalization has not affected general usage; about 30 million Americans use marijuana every year. Meanwhile, police forces across the country are strapped for cash, and the more resources they devote to enforcing marijuana laws, the less they have to go after serious, violent crime. According to F.B.I. data, more than half of all violent crimes nationwide, and four in five property crimes, went unsolved in 2012.

The sheer volume of law enforcement resources devoted to marijuana is bad enough. What makes the situation far worse is racial disparity. Whites and blacks use marijuana at roughly the same rates; on average, however, blacks are 3.7 times more likely than whites to be arrested for possession, according to a comprehensive 2013 report by the A.C.L.U.

Now The Economist has called for legalization of prostitution, partially due to the changes in the profession with prostitution increasingly being arranged on line:

Moralisers will lament the shift online because it will cause the sex trade to grow strongly. Buyers and sellers will find it easier to meet and make deals. New suppliers will enter a trade that is becoming safer and less tawdry. New customers will find their way to prostitutes, since they can more easily find exactly the services they desire and confirm their quality. Pimps and madams should shudder, too. The internet will undermine their market-making power.

But everyone else should cheer. Sex arranged online and sold from an apartment or hotel room is less bothersome for third parties than are brothels or red-light districts. Above all, the web will do more to make prostitution safer than any law has ever done. Pimps are less likely to be abusive if prostitutes have an alternative route to market. Specialist sites will enable buyers and sellers to assess risks more accurately. Apps and sites are springing up that will let them confirm each other’s identities and swap verified results from sexual-health tests. Schemes such as Britain’s Ugly Mugs allow prostitutes to circulate online details of clients to avoid.

Governments should seize the moment to rethink their policies. Prohibition, whether partial or total, has been a predictable dud. It has singularly failed to stamp out the sex trade. Although prostitution is illegal everywhere in America except Nevada, old figures put its value at $14 billion annually nationwide; surely an underestimate. More recent calculations in Britain, where prostitution is legal but pimping and brothels are not, suggest that including it would boost GDP figures by at least £5.3 billion ($8.9 billion). And prohibition has ugly results. Violence against prostitutes goes unpunished because victims who live on society’s margins are unlikely to seek justice, or to get it. The problem of sex tourism plagues countries, like the Netherlands and Germany, where the legal part of the industry is both tightly circumscribed and highly visible…

The prospect of being pressed to mend their ways makes prostitutes less willing to seek care from health or social services. Men who risk arrest will not tell the police about women they fear were coerced into prostitution. When Rhode Island unintentionally decriminalised indoor prostitution between 2003 and 2009 the state saw a steep decline in reported rapes and cases of gonorrhoea.

Prostitution is moving online whether governments like it or not. If they try to get in the way of the shift they will do harm. Indeed, the unrealistic goal of ending the sex trade distracts the authorities from the genuine horrors of modern-day slavery (which many activists conflate with illegal immigration for the aim of selling sex) and child prostitution (better described as money changing hands to facilitate the rape of a child). Governments should focus on deterring and punishing such crimes—and leave consenting adults who wish to buy and sell sex to do so safely and privately online.

More on the effects of the unintentional decriminalization of indoor prostitution in Rhode Island here.

I think  tolerance of marijuana use and prostitution will increase with the millennial generation, which is more socially liberal, and find it a good sign to see long-established portions of the media also moving in this direction. I also fear that, as with same-sex marriage, even the Democrats will lag behind the general population in acceptance of liberal views.

SciFi Weekend: Babylon 5 and Blake’s 7 Reboots; Doctor Who; Captain America; Agent Carter; Agents of SHIELD; Defiance; Big Bang Theory; Google Maps Adds The Moon and Mars

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J. Michael Straczynski has announced plans to reboot Babylon 5 as a movie. One reason for doing it his way is that Warner owns the television rights but Straczsynki retained the feature film rights:

Speaking at San Diego Comic Con last week, Straczsynki announced that he would soon be sitting down to write a Babylon 5 feature film, which is envisioned as a reboot of the iconic sci-fi series. JMS said that he plans to get the script locked down by the end of 2015 and the film would then enter production the following year in 2016.

Next to nothing is known about the plot for this Babylon 5 feature film, beyond the fact that it is a reboot of the concept seen in the series. That said, J. Michael Straczynski has stated that he would like to use cast members from the series, such as Bruce Boxleitner and Mira Furlan, in new roles in the feature film. “I’d love to see Bruce as the President of the Earth Alliance”, he said.

The hope is that Warner Bros, who produced the Babylon 5 television series, would step up and green-light a “big budget” feature film once the script has been completed. But owing to the nature of the deal that Straczysnki inked with the studio to produce Babylon 5 in the early 1990s, he, rather than Warner Bros, owns the feature film rights to the show. Should Warner Bros. choose not to greenlight a B5 movie, Straczynski would still proceed with the feature, which would then be funded and produced through his Studio JMS banner on a budget of $80 – $100 million.

Although Syfy passed on the show, there is still some hope for a remake of Blake’s 7.

The BBC has renewed Doctor Who for an eighth season since the show returned, again staring Peter Capaldi, with the shows to be presented in a continuous run. Steven Moffat said recently that there are no plans for either the return of the Master or for a tenth anniversary show (which would seem strange after doing a 50th).  Moffat has also expressed a willingness to do a Doctor Who/Sherlock cross over, but others involved are not interested. Would it look something like the video above, except with Peter Capaldi instead of Matt Smith?

Above is, perhaps, how Captain America: The Winter Soldier should have ended. Directors Joe and Anthony Russo discussed their upcoming projects, Agent Carter and the third Captain America movie:

Before turning their attention to the next feature, the Russos are directing several episodes of the spin-off TV series Agent Carter, debuting on ABC in January 2015. The miniseries follows the solo adventures of Peggy Carter, the love of Captain America’s life and founder of S.H.I.E.L.D. in the 1940s. From there, the brothers will tackle the third film, which picks up “a couple years” after Winter Soldier left off. Although the heart of the movie will be Steve Rogers’ complicated relationship with his childhood friend Bucky Barnes, the themes of politics and power will still be in play. “The character was invented for an explicitly political purpose. So it’s hard to get away from that nature,” Anthony tells Yahoo. It’s also important to the directors that Captain America doesn’t become another disillusioned antihero. As Joe sees it, “his morality is part of his superpower.”

While they’re not leaking any major details from the 2016 film, the Russo brothers promise that they’re “bringing some new elements to the table that will give us a twist on Winter Soldier.” Does this mean that Steve Rogers will pass the Captain America shield to Bucky Barnes (aka the Winter Soldier) or Sam Wilson (aka the Falcon), both of whom have donned the stars-and-stripes in the comics? With actor Chris Evans shifting his focus to directing, and Sebastian Stan and Anthony Mackie already in place as the Winter Soldier and the Falcon respectively, the next film could allow a new hero to step in.

Elsewhere in the Marvel universe, FBI Special Agent Dale Cooper (Twin Peaks) will be meeting SHIELD. Kyle MacLachlan  has been cast to play Skye’s father on Agents of SHIELD. Chloe Bennet said at Comic-Con that next season will also involve more hair. Skye will have bangs and Brett Dalton will do the evil-Spock thing of the mirror universe and have a beard as the evil Grant Ward.

Defiance Cast

Defiance has done a good job of creating a world with numerous well-developed characters and alien races, but often while watching I wonder if there is any point to it all. It lacks the big story ideas of a Babylon 5 or Battlestar Galactica. The showrunner, Kevin Murphy, did work on BSG and I am glad that he got away from the idea of doing the show as a “science-fiction crime of the week.”

AX: How did DEFIANCE started and how did it change when you came onto the project during its development?

KEVIN MURPHY: The original version was a little more of a closed-ended procedural, it was kind of more of a science-fiction crime of the week, and we were in the process of changing that when CULT got picked up and [original DEFIANCE co-creator/show runner] Rockne O’Bannon left. I then had a choice that I wasn’t sure that the show was going to work in the incarnation that it currently was in, and I didn’t want to have responsibility for something that didn’t work. So I gave Syfy a choice. I said, “I’ll transition you into your next show runner, and I’ll make sure that casting continues and produce the pilot, but I’m not going to stay on for the series unless I believe in the show.” And they were like, “Well, what would you want to do to it?” And it was basically, “Well, it involves getting rid of pretty much all the scripts, and let me give you my pitch.”

So I did the pitch, worked it out with the writing staff, and at this point, it was Rockne’s last day, and he was helping us to kind of reconceive it, and Scott Stewart, the director, was very involved in the process, and so was Michael Taylor, who had worked on BATTLESTAR GALACTICA and was a member of staff under me. And we pitched the whole thing to [then-Syfy Channel president] Mark Stern while he was driving in his car on vacation with his family in Palm Springs. And he had his wife and kid in the vehicle with him, and the pitch lasted about ninety minutes, because we pitched the entire story from beginning to end, every single beat, and by the time he pulled into the hotel in Palm Springs, we had finished our pitch and he was like, “Okay, I love it. Go write it.”

AX: Did you make major changes to the characters?

MURPHY: The PAPER MOON thing I added, the idea that Nolan [the town’s new law officer, played by Grant Bowler] came in from the outside and that he was a con man and a drifter and a huckster and a criminal. That was all stuff that I added. The idea that Amanda has only been mayor for six weeks and she’s the former mayor’s assistant and no one takes her seriously, that was an addition; the idea that Irisa [Nolan’s adopted Irathient daughter, played by Stephanie Leonidas] uses knives and Irisa being sort of the feral badass was an invention of mine. And Michael. When I say “me,” I’m including Michael Taylor, who was definitely my partner in crime. We would not have gotten that script in the shape it needed to be in without Michael at my side.

The Werewolf Transformation

In follow-up of an item from last week, the cast of The Big Bang Theory did settle on a new contract. The top three stars, Jim Parsons, Johnny Galecki and Kaley Cuoco, will each  earn $1 million per episode for the planned upcoming three seasons, and there is talk of potentially adding an eleventh season.

Google Maps has added maps of the moon and Mars. I imagine that going off the earth was inevitable once they added the TARDIS to their maps.

Can John Hinckley Be Tried For The Murder Of James Brady?

Jamess Brady

Having completed countless death certificates over the years I find these to be far less meaningful than the general public--a fact that I bet most physicians are well aware of. The cause of death is often questionable, especially when a patient dies at  home and no autopsy is done. In that case we must assume that the medical examiner is correct when they say that the cause of death is natural, and typically attribute the cause to whatever chronic conditions the patient might have. Realistically we know that there are also many other possibilities which might have caused death such as a sudden myocardial infarction, arrhythmia, or pulmonary embolism. This week we saw an unusual situation in which a death was ruled to be homicide years after a shooting, in the case of James Brady. It is certainly a valid argument that he did die from medical problems which arose as a consequence of the shooting, and knowing the common ambiguities in death certificates I see no problem with attributing the cause of death to the shooting.

This has ramifications beyond the cause of death on the death certificate, ranging from adding to the homicide rate to raising the question of whether the shooter, John Hinckley, could now be tried for murder. A couple of attorney bloggers, Doug Mataconis and Eugene Volokh  have looked at this issue. Volokh’s opinion is that Hinkley cannot be tried for murder for two reasons:

1. The year-and-a-day rule: At common law, a murder charge required that “the death transpired within a year and a day after the [injury]” (see Ball v. United States (1891), and this apparently remains the federal rule (see United States v. Chase (4th Cir. 1994)). Many states have apparently rejected this rule, given the changes in modern medicine that make it much easier to decide whether an old injury helped cause a death; but though the Supreme Court in Rogers v. Tennessee (2001) held that a court could retroactively reject the rule without violating the Ex Post Facto Clause (which applies only to legislative changes to legal rules) and the Due Process Clause, any such retroactive rejection of the year-and-a-day rule seems unlikely in this case (given that for the rule to be reversed the case would likely need to go up to the Supreme Court, and that in any event the rule had been applied relatively recently, in Chase).

UPDATE: But wait! Hans von Spakovsky points out that D.C.’s highest court rejected the year-and-a-day-rule in United States v. Jackson (1987). I at first didn’t check the D.C. precedents, focusing just on precedents from the normal article III federal system, since Hinckley was tried in federal district court. But Hinckley was tried for violating D.C. law as to the shooting of Brady (though the case was in federal district court because of the federal charges as to the shooting of President Reagan and the Secret Service agent), and by hypothesis would be retried for violating D.C. law. It is D.C. law that would apply here.

Yet Jackson was a 1987 case, decided after the Hinckley shooting. It expressly stated that, as of 1987, the year-and-a-day rule was in effect under D.C. law:

The common law of the District of Columbia encompasses all common law in force in Maryland in 1801, unless expressly repealed or modified. [Citations omitted throughout. -EV] In 1776, Maryland adopted the common law of England as it then existed. Therefore, we look to early Maryland law to resolve the question whether the year and a day rule is law in the District of Columbia.

The Court of Appeals of Maryland has held [in 1974 and in 1985] that the year and a day rule is part of the common law of Maryland because it was part of the English common law in 1776. A division of this court (in an opinion subsequently vacated for reasons not pertinent here) has unanimously concluded [in 1979] that the rule retains its viability in the District of Columbia. In re J.N., Jr., 406 A.2d 1275, 1283 (D.C. 1979).

We follow this reasoning in concluding that the common law year and a day rule is today the law in the District of Columbia.

And the D.C. court (in Jackson) expressly held (based on the Ex Post Facto Clause) that its abrogation of the rule would thus apply only prospectively, to prosecutions after that decision.

What should the effect of that be? On one hand, as I noted above, the U.S. Supreme Court in Rogers held that Tennessee courts could change the rule without violating the Ex Post Facto Clause, so that might undermines Jackson‘s prospectivity-only reasoning. This might mean that the prospective-only rule can be retroactively changed to a retroactivity-OK rule.

But on the other hand, Jackson expressly stated — in a discussion of substantive D.C. law, not of the Ex Post Facto Clause — that, as of 1987, the year and a day rule was still the law in D.C. And the U.S. Supreme Court in Rogers stressed that “perhaps [the] most important[]” part of the reasons for its acceptance of the Tennessee court’s retroactive rejection of the rule was that, “at the time of petitioner’s crime the year and a day rule had only the most tenuous foothold as part of the criminal law of the State of Tennessee.” The D.C. Court of Appeals’ analysis in Jackson makes clear that “at the time of [Hinckley's crime] the year and a day rule” had much more than a “tenuous foothold” as part of D.C. criminal law.

So I think that, if Hinckley were tried now for murder under D.C. law (which he couldn’t be, for the independent reasons below, but let’s set those aside for now), he would be tried under D.C. law as it existed in 1981, at the time of the shooting. And, given the D.C. highest court’s analysis of D.C. law in Jackson, that as-of-1981 law would include the year-and-a-day rule, which would make Hinckley substantively not guilty of the crime of murder.

2. Double jeopardy and collateral estoppel: But say the year-and-a-day rule didn’t apply here — hasn’t Hinckley already been tried for the shooting, and doesn’t the Double Jeopardy Clause stop him from being retried? The answer is yes, but in a circuitous way.

a. It’s OK to try someone for murder, even if he’s already been convicted of the attempted murder: If Hinckley had been tried for attempted murder and found guilty when Brady was still alive, he could be tried for murder after Brady died. Indeed, this is pretty much what happened in Diaz v. United States (1912), and this remains the law today, see Garrett v. United States (1985):

In Diaz v. United States, 223 U.S. 442 (1912), the Court had before it an initial prosecution for assault and battery, followed by a prosecution for homicide when the victim eventually died from injuries inflicted in the course of the assault. The Court rejected the defendant’s claim of double jeopardy, holding that the two were not the “same offense” ….

For a recent state case applying this rule, see State v. Hutchinson (N.H. 2011), which also cites other cases from other states.

b. It’s sometimes OK to try someone for murder, even if he’s already been acquitted of the attempted murder: Say someone (not as in the Hinckley case) acted extremely recklessly and injured someone else as a result. If the reckless person were tried for attempted murder, he’d be acquitted, because attempted murder generally requires a conscious purpose to kill, not just reckless endangerment.

But say the injured person then dies. The defendant could then be retried for murder, and convicted, because actual murder (not attempted murder) can happen even if the defendant didn’t have a conscious purpose to kill, so long as he was extremely reckless.

c. But the jury’s conclusion that Hinckley was insane is now binding on the government, and thus precludes a retrial for murder: Under the “collateral estoppel” doctrine (Ashe v. Swenson (1970)), “when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” That’s most commonly applied in civil cases, but it also applies in criminal cases, against the government (so long as it’s the same government involved in both cases).

The jury determined by a valid and final judgment that Hinckley was insane, and thus couldn’t be liable for attempted murder. This judgment is binding on the government, and since the insanity defense applies the same way for murder as for attempted murder, it means that Hinckley would now be conclusively presumed to have been insane for purposes of any murder prosecution as well. He would have an ironclad defense to the murder charge, and thus any case against him couldn’t proceed. For a similar case, see United States v. Oppenheimer (1916), though there the defense was the statute of limitations rather than insanity.

(Note that The federal insanity defense has been considerably narrowed since the Hinckley trial — indeed, as a result of the Hinckley trial. But this legislative narrowing can’t be retroactively applied, given the Ex Post Facto Clause.)

So no retrial for Hinckley, despite the medical examiner’s conclusion, and even if that conclusion could be proved beyond a reasonable doubt.

Mataconis concluded his post by saying that, “Ultimately, the question of whether or not murder charges are brought will be in the hands of the U.S. Attorney in Washington, and the District’s Attorney General. As things stand right now, though, it seems as though such charges would be on legally tenuous grounds.”

Posted in Courts, In The News. No Comments »

Why The Economy Does Better Under Democratic Than Under Republican Presidents

Economy Democrats v Republicans

We’ve known for a long time that if you want to live like a Republican you should vote  Democratic. The economy has consistently been stronger under Democratic presidents than Republican presidents. Even under Obama, despite all the Republican efforts to block recovery, we have seen record increases in corporate profits and the stock market, which should make Republican love him if they ever turn off Fox and look at the real world. While Republicans talk about Democrats supporting big government (despite the biggest increases in the size of government in recent years coming under Republicans), private sector employment also grows more under Democratic presidents.

Jared Bernstein looked at a “new paper by the economists Alan Blinder and Mark Watson that rigorously examines how the economy has performed under presidents since the 1940s.” The answer was clear that the economy grows faster under Democratic presidents than Republicans:

The American economy has grown faster — and scored higher on many other macroeconomic metrics — when the president of the United States is a Democrat rather than a Republican.

The two looked at key macroeconomic variables averaged over 64 years (16 four-year terms), from Harry Truman to Barack Obama. Mr. Blinder and Mr. Watson focus mostly on the 1.8 percent annual difference in real G.D.P. growth. That is, over the full study, real G.D.P. growth averaged 3.33 percent per year. But under Democratic presidents the economy grew 4.35 percent and under Republicans 2.54 percent.

Under Democratic presidents, the economy also spent fewer quarters in recession; added more jobs and more hours worked; and posted larger declines in unemployment and higher corporate profits than under their Republican counterparts. Stock market returns were a lot higher under Democrats as well, but because equity markets are so volatile, that difference is not statistically significant. (By the way, since March 2009, the S.&P. stock index is up 160 percent).

They considered possible reasons.  The difference could not be explained by Democrats inheriting better economies or by deficit spending:

Democrat presidents don’t inherit better economies — to the contrary, they inherit worse ones, at least by the measure of G.D.P. growth. Control of Congress or the Federal Reserve fails to explain the gap. Same for budget and tax policy. That is, it’s not that Democrats juice the economy with deficit spending; the cyclically adjusted budget deficit is actually smaller under the Democrats.

Some of the differences may be due to factors which cannot be explained, possibly even better luck. However Bernstein did point out a couple factors which do contribute to these differences:

The fact that bad fiscal policy — sharp deficit reduction when the economy was still weak — has hurt the current recovery is knowable and important. Though here, too, there’s ambiguity: The recent austerity is mostly the work of Republicans, but the president has also at times bought into it.

Finally it is glaringly obvious that complex, advanced economies need well-functioning federal governments that can accurately diagnose and prescribe; they need governments that can absorb factual information and respond to threats and opportunities. These requirements hold regardless of the president’s party, and the fact that we do not currently have such a federal government is without doubt what’s most important and most scary.

There is another aspect of Republican economic policy which is also harming the economy long term, but the effects don’t vary with the party in office as shorter term indicators do–the increased concentration of wealth by the top one percent. Monica Potts refers to trickle-down economics as The Big, Long, 30-Year Conservative Lie. She has support in this argument from sources which are hardly left wing:

Conservatives have dominated discussions of poverty for a generation with arguments like this one. It’s completely wrong. It’s more than that—it’s just a lie, concocted as cover for policies that overwhelmingly favored the rich. But it took the worst economic crisis since the Great Depression for many economists, liberal or not, to finally say publicly what many had long argued: Inequality is bad for the economy.

The latest to say so is the rating agency Standard and Poor’s, not exactly a bastion of lefty propaganda. An S&P report released August 5 says that rising inequality—gaps in both income and wealth—between the very rich and the rest of us is hurting economic growth. The agency downgraded its forecast for the economy in the coming years because of the record level of inequality and the lack of policy changes to correct for it. The report’s authors argue against the notion that caring about equality necessarily involves a trade-off with “efficiency”—that is, a well-functioning economy.

To be sure, they’re not making a case for a massive government intervention to help low-income Americans. They discuss the benefits of current policy proposals—like raising the federal minimum wage to $10.10 per hour—with the caveats that such changes could have potential negative consequences—like dampening job growth. (Most economists agree that such a small hike wouldn’t have that impact.)

At its core, though, the S&P report does argue that pulling people out of poverty and closing the gap between the 1 percent and the 99 percent will increase economic growth. The authors argue for some redistributive policies, like increased financial aid for post-secondary education. “The challenge now is to find a path toward more sustainable growth, an essential part of which, in our view, is pulling more Americans out of poverty and bolstering the purchasing power of the middle class,” the authors write. “A rising tide lifts all boats…but a lifeboat carrying a few, surrounded by many treading water, risks capsizing.”

Despite their rhetoric, Republicans are no more the party of a strong market economy than they are the party of small government or individual liberty.

This Is Not The Libertarian Moment, But Also Not The Right Moment For Democrats To Follow Hillary Clinton’s Views

Robert Draper asks, Has the ‘Libertarian Moment’ Finally Arrived? in The New York Times Magazine.

Libertarians, who long have relished their role as acerbic sideline critics of American political theater, now find themselves and their movement thrust into the middle of it. For decades their ideas have had serious backing financially (most prominently by the Koch brothers, one of whom, David H., ran as vice president on the 1980 Libertarian Party ticket), intellectually (by way of policy shops like the Cato Institute and C.E.I.) and in the media (through platforms like Reason and, as of last year, “The Independents”). But today, for perhaps the first time, the libertarian movement appears to have genuine political momentum on its side. An estimated 54 percent of Americans now favor extending marriage rights to gay couples. Decriminalizing marijuana has become a mainstream position, while the drive to reduce sentences for minor drug offenders has led to the wondrous spectacle of Rick Perry — the governor of Texas, where more inmates are executed than in any other state — telling a Washington audience: “You want to talk about real conservative governance? Shut prisons down. Save that money.” The appetite for foreign intervention is at low ebb, with calls by Republicans to rein in federal profligacy now increasingly extending to the once-sacrosanct military budget. And deep concern over government surveillance looms as one of the few bipartisan sentiments in Washington, which is somewhat unanticipated given that the surveiller in chief, the former constitutional-law professor Barack Obama, had been described in a 2008 Times Op-Ed by the legal commentator Jeffrey Rosen as potentially “our first president who is a civil libertarian.”

Meanwhile, the age group most responsible for delivering Obama his two terms may well become a political wild card over time, in large part because of its libertarian leanings. Raised on the ad hoc communalism of the Internet, disenchanted by the Iraq War, reflexively tolerant of other lifestyles, appalled by government intrusion into their private affairs and increasingly convinced that the Obama economy is rigged against them, the millennials can no longer be regarded as faithful Democrats — and a recent poll confirmed that fully half of voters between ages 18 and 29 are unwedded to either party. Obama has profoundly disappointed many of these voters by shying away from marijuana decriminalization, by leading from behind on same-sex marriage, by trumping the Bush administration on illegal-immigrant deportations and by expanding Bush’s N.S.A. surveillance program. As one 30-year-old libertarian senior staff member on the Hill told me: “I think we expected this sort of thing from Bush. But Obama seemed to be hip and in touch with my generation, and then he goes and reads our emails.”

To say that the libertarian moment has arrived based upon the views of millennials is to look at only part of the picture. Polling has showed millennials to typically be liberal on social issues, non-interventionist on foreign, policy, but far from conservative or libertarian on issues such as preserving the safety-net and providing universal health care. They are hardly likely to be attracted by either the Republican or Libertarian Party. Unfortunately the Democrats also are risking turning off such voters with the choice of Hillary Clinton:

Early polls show young voters favoring Hillary Rodham Clinton in 2016, but their support could erode as they refamiliarize themselves with her, just as it did in 2008. Clinton has been even slower than Obama to embrace progressive social causes, while in foreign policy, she associates herself more with her former Senate colleague John McCain than with noninterventionists. Nor is Clinton likely to quell millennial fears about government surveillance. Welch says: “Hillary isn’t going to be any good on these issues. She has an authoritative mind-set and has no interest in Edward Snowden, who’s a hero to a lot of these people.”

Comparing Clinton to John McCain, who seems to have never seen a possibility for going to war which didn’t excite him, might be a little extreme, but she has firmly placed herself in the Joe Lieberman camp. She is a rare Democrat who rooted for going to war with Iraq based upon false claims tying Saddam to al Qaeda. She now repudiates her past support for the war however the story of Hillary Clinton’s career has been to get the big issues wrong at the time and possibly later realize that she was wrong. As I’ve also pointed out before, in the remote chance that the Republicans do nominate Rand Paul, or anyone else with similar non-interventionist views, this could really shake up the race, putting Democrats in the position of running from the right on foreign policy. Clinton’s weakness and cowardice on social issues wouldn’t help matters.

So, no, the Libertarian Moment has not arrived. The future looks more friendly towards politicians who are socially liberal, anti-interventionism, but far from libertarian across the board. Most likely the Republicans will run a candidate who is even further to the right of Hillary Clinton on foreign policy and social issues, and as Andrew Sullivan recently argued, Clinton will try to run on vacuous statements (along with inevitability), and avoid taking controversial positions on the issues.  She will continue to try to stick with what she sees as safe answers, such as saying that the Bible is the book which she found most influential. Maybe she will get away with it, but if the Republicans shake things up and question her on more libertarian grounds on social issues and foreign policy, there is the real danger of the Democrats losing the millennials.

Decreased Highway Fatalities In Colorado After Legalization Of Marijuana

Coloardo Fatalities

Conservatives have used scare stories of high drivers as reasons to oppose both legalization of marijuana and even use of medical marijuana. As with a recent study on prostitution reducing the risk of rape and sexually transmitted diseases, eliminating laws against victimless crimes may be beneficial, and at least typically does not do the harm claimed by conservatives. Since marijuana was legalized in Colorado, highway fatalities are at near-historic lows.

It might be the case that other factors are reducing the fatalities, but at very least it does not appear that legalization of marijuana increases the risk. It is even possible that the legalization of marijuana might directly be related to the reduction in highway fatalities:

some researchers have gone so far as to suggest that better access to pot is making the roads safer, at least marginally. The theory is that people are substituting pot for alcohol, and pot causes less driver impairment than booze. I’d need to see more studies before I’d be ready to endorse that theory. For example, there’s also some research contradicting the theory that drinkers are ready to substitute pot for alcohol.

Regardless of whether the reduction in fatalities is a result of marijuana legalization, the data in Colorado does further undermine the conservative argument for the continuation of marijuana prohibition.

Posted in Drug Policy. Tags: . 1 Comment »

Ohio Experiment Shows Way To Save Money With Medicaid Expansion And Avoid Increase In ER Utilization

Opponents of the expanded Medicaid program have often cherry-picked data from Oregon to point out an increase in Emergency Room use and to question the benefits of the program. NPR’s Morning Edition looked at a program in Ohio to expand Medicaid coverage before the expansion in the Affordable Care Act and found positive results. The program was formed due to the problem of unreimbursed high cost care when uninsured people with problems such as diabetes received their care in the emergency rooms:

So, long before Ohio expanded Medicaid, the hospital redirected more than $30 million it receives from county taxpayers each year into a new pot.

It used the money to create its very own Medicaid program for county residents. And then it tracked the patients.

The results from the first nine months are in.

“All of the clinical outcomes are really amazing,” says , a researcher at MetroHealth.

The hospital used extensive electronic medical records to carefully select uninsured patients and send them Medicaid cards before they even applied. Then MetroHealth gave personalized attention to patients. Cebul says they focused on 18,000 of them who came to the hospital a lot.

“The diabetes outcomes were probably the most impressive,” he says. “The sugar control, the blood pressure control, the lipid control — virtually everything was much better and dramatically so.”

Here’s how it works. Each patient is assigned a nurse. That nurse books their appointments, calls them if they miss one and checks to make sure they take their medications.

In nine months, emergency department visits dropped 60 percent and primary care visits went up 50 percent.

The hospital also ended up spending less than it budgeted, saving an average of $150 on each patient every month.

“Better care, better outcomes, better costs,” Cebul says.

This program is probably showing better outcomes earlier than in Oregon due to increased oversight of the people receiving benefits. If people are just given health care coverage, it takes time to get established with primary care physicians as opposed to utilizing the Emergency Rooms. The experiment in Ohio showed that this problem could be avoided by making a greater effort to supervise the newly insured and actually set them up with primary care doctors.

Not surprisingly, the states which are participating in the expanded Medicaid program are seeing the largest drops in uninsured. It will be interesting to see how the individual states handle their new Medicaid patients, as the program in Ohio has demonstrated that there could be greater potential cost savings when the newly insured receive greater oversight, at least for those with expensive medical problems such as diabetes.