A Not So Grand Jury

I just completed* Grand Jury service here in DC – 8 weeks of Wednesday through Friday all day.  I knew it was going to be unpleasant, but I had no idea how much it would affect my opinion of the nature of the legal system in this country.  Sol Wachtler was famously quoted by Tom Wolfe as saying that a good prosecutor could indict a ham sandwich.  He was not, and is not, wrong.

My GJ was the one designated to handle the so-called “RIP” cases – that’s “rapid indictment program”, where relatively straightforward cases are brought forward to get an indictment.  What they mean by “relatively straightforward” is well summed up by the assistant US attorney (AUSA) as “guns, drugs, and cars”.  Probably two thirds of our cases involved some combination of these three elements.  We didn’t have a “bingo” with guns, drugs, AND cars, but we had all of the combinations of the two. Drugs were certainly the plurality if not the majority of the cases.

We did have a smaller number of assaults, robberies, sex crimes, and homicides.  My experience was bad – but then I reminded myself that there was another jury across the hall that focused on the sex crime cases.

The GJ was comprised of 23 people – about half black and half white, six men, 17 women, with a variety of age ranges (skewed a little older than average due to young people not becoming DC residents).  16 people were required to have a quorum, and for all counts, there had to be 12 votes to indict on each count.

A note on how this works: the Fifth Amendment says, among other things, that “no person shall be held to answer for a capital or other infamous crime, except upon presentment to a grand jury…”  In practice, this means that Federal felonies (infamous crimes) require an grand jury to indict, while a Federal misdemeanor does not.  DC, by virtue of not being a state, has to strictly follow that rule (and the city is effectively treated as yet another federal district, while the states have a lot more leeway in defining “infamous” more narrowly.

Our statistics (with the caveat that because I had to leave early on Fridays, I missed a few cases):

We had 119 cases as of the time I left.

We had 139 targets of investigation (people who in an actual trial would be called “defendants.”)  This is because some of the cases involved multiple defendants (like a drug dealer and the “go between” who facilitates the deal).

Of those, 12 targets were women.

Those 139 people were charged with 337 counts, and all of them had at least one felony (which is why they were going before a GJ), along with occasional misdemeanors.

Of the 337 counts people were charged with, 5 counts were removed by the AUSA before we voted on them.  A typical reason was that we were told to vote on a “large capacity ammunition feeding device” charge, but when a cop testified, he said that the capacity of that magazine was 10 (the statutory limit in DC).  In addition, we declined to indict on exactly one count out of those 337.  Thus, lots of ham sandwiches.

I have a couple of random thoughts, and then a few proposals:

  • The criminals arrested for carrying a pistol without a license (CPWL) have never heard of holsters.  The sheer number of people who were identified by police via clutching something while running, etc, is really striking.
  • Criminals are also really stupid.  The big takeaway I’ve gotten here is “never give any information whatsoever to police if you’re in trouble”.  Don’t try to explain yourself (“it’s my girlfriends’ PCP”, “I don’t know how the gun got in my purse” etc), because it absolutely IS held against you.
  • Our laws are extremely poorly written.  Example: Possession of an open container of alcohol (POCA).  You may notice that (a)(2) indicates “in a vehicle”.  As far as the AUSAs are concerned, this includes the trunk.  The implication is that there is in fact no legal way to transport a non-factory-sealed bottle of whiskey from one location to another.  The AUSAs were challenged on that specific law several times, and were “strict constructionists” about it – and argued that we had to just “follow the law”.
  • Another example: there are synthetic cannabinoids which are listed on the controlled schedule (all of them have horrible chemical names) – an example of a controlled substance is “AB-Fubinaca”.  However, drug producers are not idiots, and have made some similar drugs (e.g. “AB-Chminaca”) which is not technically on the schedule list.  The AUSAs will charge “attempted distribution of synthetic cannabinoids” if they bust someone and it turns out to be non-controlled.  The justification of “attempted distribution” is that the street names used are the same (Scooby, Bizarro, etc).
  • The resources used in drug busts are unreal – a few undercover cops (UC) – both buying and watching, an arrest team, jailers, the grand jury, and the court system.  The typical drug bust was a buy which was under $40, and most often under $20.
  • Another example of a screwy law: Possession of a Firearm During a Crime of Violence (PCOV).  This sounds reasonable, right?  If you fight with someone and have a gun, it would make sense for there to be a harsher punishment.  Except the “or dangerous crime” portion – when you go to the definitions there, it is specifically defined as “possession of a controlled substance with intent to distribute (PWID)”.  Every one of the PCOV charges we saw was someone charged with PWID, and the AUSAs take an extreme latitude about chaining interpretations together – hypothetical example: a person is busted with 5 ziplock bags of crack.  At his home, there’s more crack, and an unloaded gun.  He would be charged with PWID and PCOV, even though he wasn’t carrying the gun outside.
  • All of those drug busts were in black areas, and the overwhelming number of people had names which (when correlated with arrest locations) processed as “black”.
  • Many of the cops and AUSAs had a surprising ignorance about firearms terminology and function.  There were a surprising number of “large clip” comments, and several people didn’t know how to determine the capacity of a magazine.

So here’s my thought:

First, we should legalize all drugs.  Yep, all of them.  Quit spending all of the time and resources hounding black men for doing this.  Take all of the money we aren’t spending on this, and put 10% of it into PSAs of “don’t do this it’ll kill you”, and another 10% into low-cost drug treatment programs.  Pocket the other 80%.  We can’t effectively stop people from killing themselves if they’re determined to do so, and what we’re doing just ruins their lives in the meantime.  (Example: a drug felony means that a DC resident can *never* vote or own a gun).  The net effect of these drug laws has been to disenfranchise a tremendous number of black men for their entire lives, without making the streets noticeably safer or reducing the overall drug trade.

Second, we need to make our gun laws make more sense.  It’s extremely hard to get a concealed carry permit in DC, and that should be fixed – there’s currently a subjective element to it, and that’s not how permitting laws should be written.  The charge of unlawful possession of ammunition (UA) is goofy – the AUSAs interpret ammunition as being per firearm – so if you have two loaded, unregistered guns, you’d get two UA charges.  However, the law doesn’t say that – if you have a valid registration, you are allowed to possess ammunition, full stop.

I saw a lot of overcharging targets, and I was a relatively lonely voice in my opinions about this – I look at “probable cause” as being a standard which is higher than “plausible”, and I was not in the majority there.  I’ve been called to jury duty eight times since moving to DC, and have been empaneled on five juries (including one GJ).  The next time I go in for voir dire, when they ask “can you be impartial”, I’m going to have a real problem answering yes.  This system is currently rigged, and needs to be changed before more injustice is done.
* there are two more “recall” days, for us to finish up any leftover work, such as Gaitherizing any outstanding indictments.

Check, Please

I’ve had several doses of talk about “privilege” thrown at me recently.  I’ve spent a little time thinking about this, and I’ve come to the conclusion that the folks who toss this stuff about and treat it with great importance are as clever, and as wrong, as the phlogiston chemists.  Now, what do I mean by that?

“Privilege” as described in the relevant circles, is effectively an unearned advantage due to one’s nature – there can be white privilege, Jewish privilege, etc etc etc, and that intersectionality (sic) is effectively the idea that various portions of one’s identity as they interact with other portions create something wholly different which is qualitatively greater than the sum of the parts.


A lot of words are spent slicing and dicing groups using particular jargon, to no practical effect whatsoever.  Why is this?  Because at the root of the issue is the fact that we are not members of a group first and individuals second – rather, we are individuals first, who have some characteristics we share in groups.  The whole privilege conversation completely falls apart when considering that the variation between individuals who share certain characteristics will necessarily be greater than the differences between the average of the characteristics.

That is, all cats are NOT gray after midnight.  So in our real world, the one with the messiness in it, what does it mean to say “you have privilege” about someone’s membership in a particular group?

Absolutely nothing.

In the original sense of pragmatism, there is no information which is gained as a result of these descriptions, and actions don’t change as a result, and therefore these are at best distinctions without a difference.  Yep, that’s the real problem here – the actual predictive power of this language is right up there with blaming weather on water sprites, and all the jargon serves to do is alienate the person being “othered” in that context.  That is, it changes the person being described from “thou” to “it”.  It serves as a way to immediately discredit the opinion of the person described as “privileged,” and find a discrete place for them in a postmodern hierarchy of victims, where to be oppressed is necessarily equivalent to being virtuous.

I’ve had this sort of language tossed at me by several people, who range from the saintly to the less-so.  I’ll speak to the saint: this language has the opposite effect of your intention, and the line of reasoning is sterile, not fertile.

How about this for a suggestion: treat people as individuals, as all being made in the image of God, and approach groupings as a way to search for what we have in common rather than what divides us.

A Pool for Reflecting

A lot of people have written about privacy, security, trust, and the modern world.

Steven Iveson writes convincingly that we’re doing it wrong.

I think that to an extent what he is describing is a classic tragedy of the commons applied to the value chain, and saying that this is having a corrosive effect on trust as well. Certainly the behaviors of the players involved are not ones which lend themselves toward feelings of goodwill. The interesting thing is that we all seem inclined to sell our privacy birthright for a mess o’pottage in the form of a frequent shopper card at the supermarket – to say nothing of the tracking devices that we all wear 24×7 (or 24×6 for the other sabbath-observant folks out there).

So now where does society go from here? Perhaps countermeasures à la XKCD? Civil disobedience, Little Brother style? or do we just say “I, for one, welcome our new data-gathering overlords”?

I have no idea what the next stage is: it’s both concerning and fascinating to me that we’ve walked here with effectively no discussion and no reflection. Perhaps we should spend a few minutes on this.

Sharing isn’t always Caring – updated

There is a lot of ink being spilled about the reports of the surveillance conducted by the Obama administration of US citizens.

Andrew McCarthy at NRO thinks it’s not that big a deal. The WSJ is unperturbed, and wonders what the fuss is about. I’ve seen some discussion on NANOG suggesting that encryption would be the solution.

I’d like to add a differing perspective. The articles are referring to “metadata”, but the industry term for the type of data being collected is “Customer Proprietary Network Information” (CPNI). Specifically, CPNI includes the call records for a customer. CPNI is regulated by the FCC, and unauthorized use or disclosure of CPNI is a big deal from the point of view from a telco – large fines are involved, and generally there are compliance infrastructures in place to prevent mistakes.

Now, why would this be a big deal? I mean, it’s just a phone bill, right?

Duh: once you know who someone calls, how much, and how often, this can reveal a lot about them. As an example, think of the various affairs which get caught via phone bills. As another example, a person’s call to a suicide prevention or domestic abuse hotline is revealing by its existence without needing to know the content.

The request, from what I’ve read in the papers, appears to have been for all of Verizon’s billing record data correlated with the tower data. Geez. That is a LOT of data.

I’ve heard some of the more anarcho-libertarian folks say that the telcos should have refused to comply with such a request, but honestly, it appears that the request is currently legal. I disagree with Yoo’s analysis of reasonableness for the following reason:

Let me supply an 18th century analogy: in the way that the addressing of an envelope is not private information (because the USPS needs to read it). By Yoo’s logic, it would be okay for the USPS to maintain (and more to the point, require the USPS, along with FedEx, UPS, etc, to collect), and
the government to subpoena all of the senders’ names & addresses, along with the receivers’ names & addresses, along with the mailbox addresses, and the weight (letter or parcel? How heavy?) of all mail & parcels delivered between people in the US.
UPDATE: Apparently real life is surpassing my examples, and the USPS is doing exactly this. Yikes.

That sure would make it easy to root out any left over Tories, now, wouldn’t it? Communists too! Along with them, we could ferret out the abolitionists, suffragettes, gay rights activists, Mormons, or maybe anyone else who happened to be on the bad list today?

So clearly I think this is a problem: we’ve given the government the power of total surveillance, à la Cory Doctorow’s Little Brother. The law needs to be changed, and in a hurry.

My views on this topic are my own, and do not reflect my employer or anyone else.

Are Gender Roles Kosher for Passover?

Derek Thompson writes about the decline of marriage in the Atlantic, and while the general problem as we have it now is one with which I agree, and while I think that the best way to not be poor is to get married (and stay married) before having children, I take issue with something he said. Specifically:

Once upon a time, the typical marriage, as Justin Wolfers has explained, involved special roles for the husband and wife. He would work. She would stay home. It was an efficient arrangement where opposites attracted. Men who wanted to be executives would marry women who wanted to be housewives. And, since almost half of women had no independent earnings 40 years ago, there were a lot of women who just wanted to work at home and raise a family.

So, this. Now, Thompson is correctly and accurately describing a certain period in American history, for the middle and upper middle class households. He’s completely omitting the experience of the lower-class households, where both parents have always worked, because they haven’t had a choice. But my bigger complaint with the paragraph is this: he’s describing the period roughly from 1930ish to 1970ish, and acting like it was the whole of human history.

So, before the industrial revolution, you had agriculture or cottage industry, where parents and children worked together in their fields or houses. Fathers and mothers may do different jobs, but there was no concept of not working- but nobody is getting a salary either.

Once the industrial revolution hits, you have fathers, mothers, and children working together in the factories, basically until the child-labor laws put a stop to that. Around then you do start to see a lot of gender segregation of employment, fathers and sons, mothers and daughters, but everyone is getting paid.

Upper class women start (late 19th) getting pulled back from work, and that’s around when the suffrage movement starts getting some serious steam. Women were absolutely working supporting families in the teens and twenties: my grandmother a”h was a Bell telephone operator, and there were lots more like her.

Only in the 30s, with the mass layoffs of the depression, (with the Rosie the Riveter interlude) followed by the post-war return, did you start to see the idea of the GI housewife really take hold in the way he’s describing, at least en masse.

So for most of human history, the roles are something other than what he’s describing: really, the lesson could better be that (to quote Peart) “changes aren’t permanent, but change is”. Perhaps we need to accept the shifting nature of the roles of husband and wife- accepting that there *are* roles, but that one roles change, and then perhaps we can make peace with the mythical past, to better understand the future (let alone the present)?

Those who forget history are, well, something or other happens to them, I don’t remember what- it’ll come to me eventually, around the same time that it comes to Mr Thompson.

Optimistic Thoughts

Three unusual things that made me smile happened today. First, and best, Sarah told me that for the second time she was listening to Grooveshark and our song “Superhero” came on. W00t! Happily, we didn’t get the awkward Spinal Tap “in the ‘where are they now’ file” DJ line, and that is definitely our most radio-friendly song. I’m still really happy with how that one turned out (including the improv in the middle, and how much Noah improved my initial concept for the song).

We got a perfect basic track of a better arrangement of “Best Day” last week, leaving Patrick’s “March of the Octopus” as the only basic track left; then it’s the twelve million hours of overdubs, corrections, and mixing, baby! Easy-peasy.

Second, Coyote shows that the number of breweries in the US is at a 125-year high. In the words of a great American character, “To alcohol! The cause of… and solution to… all of life’s problems.”

And then there’s this bit of WTF from 1952, which will henceforth be my example of how far society has come with regard to issues of gender equality, patriarchy, and the like. I give to you Mystery in Space!

It’s worth remembering that many current assumptions weren’t always so.

Horseshoes, Hand Grenades, and Government Work

Last year, I described my proposal for improving the WMATA metro system: basically, it’s captured in the picture below – basically, it involved one new Potomac bridge, one new under-Potomac tunnel, and a cross-town tunnel. I didn’t add in the link between Silver Spring and Grosvenor because that’s already in development by Montgomery County as light rail (due to the fetish of light rail in many places – even though it has the drawbacks of rail without the throughput of heavy rail).

unsuck metro

I’m glad to see that society is starting to catch up: yesterday’s Washington Post included discussions about a major capital overhaul to the system designed to improve the carrying capacity, which will do some things but not every thing. (image below)

Washington Post's rendering of proposed metro improvements

Washington Post’s rendering of proposed metro improvements

Half a loaf is better than no loaves, but I’m concerned about one of the fundamental omissions: the plan they’re describing does not add any Potomac crossings, and thus does not actually increase the aggregate throughput of getting people from Virginia to DC or Maryland. Additionally, it preserves the DC-centric plan, where there is no ability to bypass the city for those folks who live in Maryland and work in Virginia (or vice versa) – of whom there are a non-trivial number.

WMATA historically has made extremely short-sighted decisions about capital investment – the decision to build a two-track system rather than four-track means both that express trains are completely out and also that any issue on any one track or train completely screws up the whole line. The decision to build very high stations with vaulted ceilings means that overlapping lines are harder to accomplish. The decision to build the Silver line through Tysons as an overhead line means that it will be vastly more vulnerable to weather disruption, and maintenance will be more expensive (because fixing problems 30′ above ground is trickier than underground or at grade, likewise snow and water removal gets trickier). The decision to eschew multiple points of interconnection between the red line and other lines means that those interconnections are a complete balagon, and the decision to build the system to spec rather than to 400% of spec means that they routinely under project the actual demand for service. This is not to mention whoever had the brilliant idea about exposing escalators to rain.

I’m a fiscal conservative – I only want the government to spend money in limited and appropriate ways. However, it’s better to spend the money to do it right the first time, rather than spending a lot of money to not solve the problem. The new plan will solve problems inside the city, but I don’t see why, in absence of a second under-Potomac tunnel, it would solve problems between Virginia and the city, which are a lot of them. The improvements to Red-line Marylanders will be modest – the ability to ditch at Farragut is a long-overdue improvement (although you see that my recommendation would allow Dupont, Farragut, and Union Station to function that way). Hopefully the new plan is open for suggestions – I know what I want is expensive, but I think it will be cheaper in the long run than not doing it.

This seems like an appropriate thought for Tu b’shevat, the Jewish “new year of the trees,” a day on which environmental concerns are traditionally raised. Personally, I think we should be worried about environmental concerns every day, one day of the year prevent over noodginess.


I’ve been watching the Republican circular firing squad for the last week, as many many folks have written on the topic of immigration and/or courting the “Hispanic vote” (with the unfortunate monolithic implication that it carries), and I think that nobody’s quite got it right.

I wrote about this in dec 2007, in june 2007, and april 2006, but I’m not sure I said it clearly enough then: the problem is not amnesty or enforcement, the problem is the whole broken immigration system.

The right immigration policy for the United States can well be summed up (in my opinion) by the words of Emma Lazarus’s poem The New Colossus engraved on the Statue of Liberty:

…”Give me your tired, your poor,
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore.
Send these, the homeless, tempest-tost to me,
I lift my lamp beside the golden door!”

So then – if we’re getting oodles of people from points South, why not pick a few places and treat them the way Ellis Island was treated in the past? You get in, stand in line, get your provisional ID card (no government benefits for a few [3 perhaps?] years, but other than that, you’re an American now). We want people to come here and be Americans – this is the country which is founded on the idea that life here can be better (by dint of greater economic and religious freedom) than elsewhere: that’s why people keep trying to come here. It’s a good problem to have.

We should not indulge the nativists and those who cloak nativism in technocratic solutions: we don’t need H1-B, guest-worker, or any other funny temporary programs – we have plenty of people who want to come here and stay here, becoming Americans in the process.

Where we have gone off the rails is that we have built a system which is easier to evade than it is to follow. This is somewhere between foolishness and madness. Obviously border security is important: if the Canadians ever decided to invade, you’d better Beliebe that we’d be in for a world of hurt. We do need to be able to have a clear and coherent border security process where the folks allowed in are allowed in and the folks not allowed in are not.

HOWEVER, this foolishness needs to stop. The party of small government, of individual freedom and responsibility, of equal justice, and of civic duty, desperately needs to quit wallowing things that drive away people who want to (a) be left alone, and (b) build a better life for themselves and their families.

It’s time to fix the system. Let’s make a new covenant – “El Paso Island” perhaps – where we can normalize all of the hardworking, decent people who just want a better life. I don’t care if they don’t have any particular skills*: I had plenty of ancestors who came here from Europe without any particular skills*, and so did pretty much everyone else. Come on in, the country is fine, and we’re better for having you here.

* – that is, no particular skills except for the desire to work extremely hard.


So the UMD has decided to bam smoking on the entire campus. My understanding of smoking bans is that the reason is not due to (say) the obnoxiousness of smokers, or cigarette butt litter, but rather due to issues regarding the dangers of secondhand smoke.

I double-checked my memory, and was correct: the vast majority of literature describing ill effects from secondhand smoke is about a repeated or continuous exposure: a non-smoking spouse of a smoker, or nonsmoking workers in a smoky bar. While there are many statements about there being “no safe level of exposure”, the same can be said for gasoline fumes or car exhaust, and yet cars are not being banned from public places, so there is something more at work here.

I wrote before about the damage alcohol on campus does – it’s implicated in the overwhelming majority of sexual assaults, and there are a number of people who directly die from alcohol poisoning each year – as compared with smoking-related deaths, which tend to be delayed and indirect.

There is something to be said for the straightforwardness of a direct ban: this effectively means that smokers can’t live on campus, but the administration can’t be accused of sending mixed messages. It’s definitely irritating and nannyish, but there is at least a fig leaf of public health interest here. The curious thing to me is this: why tobacco and not alcohol? The public health impacts of alcohol on campus vastly outweigh the effects of smoking (and given that smokers were already not allowed near entrances, the effects were surely minimized), and the people harmed by alcohol on campus are very often the minor students for whom the university is acting in loco parentis.

Now, the above is a rhetorical question: I know that college sports apparently require booze, and alumni would not stand for a ban. Apparently sports at UMD require rioting as well, and the halfhearted efforts to ban that have been as effective as half-measures usually are. It’s worth noting, however, that refocusing the puritanical instinct in this case could actually make the environment on campus better for women and for those who feel pressured to conform. As it stands, I doubt that this smoking ban will actually change any outcomes.

I’m glad someone is listening

The DC council begins to push PEPCO around. It’s about time. Now, if Montgomery County will follow suit (perhaps in a stepwise fashion), we could stop having these extremely common, highly problematic outages.