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August 25, 2009

Comments

Seb - don't know if it's just me, but the font on this seems really small.

Compiling this kind of common ground is a great idea -- I don't have anything offhand, but I'll think about it and come back if I come up with anything.

Obvious example is obvious, Sebastian.

"Torture is wrong".

To talk about the moral necessity of opposition to civil asset forfeiture on a day like today gives me philosophical nausea. Your headline made me assume that you were going to be discussing one of the actual issues of conscience currently in the public eye -- the fact that you immediately started talking about property rights made me reel in my seat.

Seb - don't know if it's just me, but the font on this seems really small.

Seconded, Sebastian. I kind of thought you'd have something larger to show us.

From someone deeply suspicious of moral universalism, I hope that this post does not encourage perpretration of the fallacious argument from popularity. The fact that people of good or bad conscience may agree on the moral valence of a particular act does not license the conclusion that the act is properly viewed as having that valence.

(That said, it is of course worth attempting to ascertain what people do in fact think about virtually anything at all. I am simply suggesting that concluding that whatever people do in fact think is accurate is invalid, not to mention dangerous).

The font looks as usual to me.

Hmmmm, how about "Counseling about end-of-life care decisions from a medical professional should be a reimburseable service under Medicare"?

Obvious example is obvious, Sebastian.

It fits all the conditions laid out in the original post, except for one: "things which everyone should agree on that are already illegal". A lot of people - according to my link just two comment threads back, a majority even of Democrats, although not nearly as strong a majority as among Republicans - support torture by the government.

Well, I guess "support" might be phrasing it too strongly, but surely "condone" is indisputable, and I'd bet that there is widespread support as well.

I didn't include torture for a couple of reasons. First, covering it is well represented on this blog. Second, it is another case (like prison rape) where I wish most people thought it was obviously wrong, but I suspect that a majority of Americans don't agree (and if not a majority certainly a very large near-majority).

I would like to focus on cases where the general trajectory of explanation is: that is outrageous and can't be legal;
well if it is legal it must be rare;
what?!? it isn't even rare?!?!

Technicality based recission may be such a case.

Obvious example is obvious, Sebastian.

I think Sebastian's record on the topic of torture is one you could probably find some common ground with.

The fact that people of good or bad conscience may agree on the moral valence of a particular act does not license the conclusion that the act is properly viewed as having that valence.

No, it just means they can talk about it without feeling an urge to yell at each other.

Any veteran of family Thanksgiving dinners can see the value of that.

Here are some more:

"In the United States of America, no citizen or resident alien should be subject to arrest and indefinite confinement without the right to counsel, to challenge the detention in court, to know the charges he/she faces, and to review and challenge the evidence supporting the charges."

"In no event should the President be exempt from Constitutional provisions. The powers of the Presidency do not include the power to ignore, suspend, or unilaterally abrogate any provision of the Constitution."

"Employees of the Office of Legal Counsel should strive to deliver honest legal advice reflecting the a fair assessment of consensus legal views. They should neither ignore precedent, nor invent fanciful legal theories, nor apply tendentious interpretations of existing precedent in order to create a legal pretext for the Executive to undertake its preferred course of action."

Atul Gawande wrote a fascinating piece about the effects of isolation on human beings and the extensive use of isolation in American prisons. Basically, guys like McCain who have been tortured by brutal regimes for years consider isolation to be as bad as or worse than any other torture they endured. It is bizarre that are society is so cavalier about employing a practice for which we have very good evidence will shatter people's minds.

"It is, generally speaking and irrespective of legality, not conducive to healthy democratic debate for individuals who are not law enforcement officers to ostentatiously bring firearms to a political gathering."

"Emergency room personnel should be under no obligation to verify the immigration status of a patient with a serious illness or injury before commencing medical treatment."

"Use of legally proscribed tactics to interfere with lawful union organizing should be punished. The punishments should be severe enough to have a meaningful deterrant effect on such lawbreaking."

This is easy!

More than 80% of the owners are never charged with a crime but nevertheless do not get their assets back.

Could someone explain why this is so? If you are never charged with a crime, why would you not get your seized assets back? Just wondering.

How about the War On Some Drugs? The fact that those most in favor of locking up dark-skinned drug users forever nonetheless find ways to excuse Limbaugh for his crimes indicates at least a certain level of cognitive dissonance.

If you are never charged with a crime, why would you not get your seized assets back? Just wondering.

Because the law is stacked against you. You have the burden of proving that the assets legally and rightfully belong to you (i.e. were not purchased with drug proceeds or used in the furtherance of drug trafficking or whatever). This is a civil proceeding in which you have none of the legal protections (presumption of innocence, protection from self-incrimination) that you would enjoy in a criminal proceeding.

"Could someone explain why this is so? If you are never charged with a crime, why would you not get your seized assets back?"

Because the burden of proof is on the owner, who often won't have the money for an extended series of court fights with the city, state or federal government (especially if his money was in cash, confiscated by the government).

No court appointed counsel is available, because the owner has not been charged with a crime, compounding the problem above.


1. that is outrageous and can't be legal;

2. well if it is legal it must be rare;

3. what?!? it isn't even rare?!?!

Then, (at least in the US), you have:

4. if it's that common it must not be as bad as you make out

5. The Authorities know what they're doing and they say it's not so bad

6. No-one subject to it is really human, anyway

7. We know it works because it works on TV and in the movies

8. Why do you hate America?

What I wish we all shared as common ground, or as a common assumption, is the idea that we owe it to each other to watch out for each other.

You know, the "brother's keeper" thing, except sister's keeper as well.

That still leaves open the question of how, and maybe when. All of which deserves debate.

But I find it really hard to discuss issues of public concern with folks for whom the question of "if" is on the table.

"...don't know if it's just me, but the font on this seems really small."

Most browsers include an option for "Don't use font sizes smaller than...". In Firefox, I don't allow fonts smaller than 13 points, I don't allow pages to choose their own fonts, and I run Addblock-Plus. The comments that I see from time to time leave me feeling that I experience a quite different Web (and a more pleasant one) than many people.

Could someone explain why this is so?

As Mike Schilling notes, it's a War On Drugs thing.

And all of that war on drugs gutting of civil liberties was cited as settled law when War On Terror inspired legislation like USA PATRIOT was debated.

"The fact that people of good or bad conscience may agree on the moral valence of a particular act does not license the conclusion that the act is properly viewed as having that valence."

Of course. But take the civil forfeiture case as an example. It is at least interesting that nearly everyone thinks it is wrong (and not even close-call wrong, more like are-you-kidding-does-that-really-happen wrong) yet nearly every jurisdiction in the US practices it. That makes me think that either it properly has the moral valence that the large majority perceives, or that we should be able to have a very interesting discussion which will lead us to find why it does not.

BTW, I think I fixed the font.

If it still seems ridiculously small, let me know.

"People should not advocate legal punishment for acts they're committing themselves unless they acknowledge their own eligibility for that punishment and submit to it."

Sebastian, do we need to confine the question to bad policies of the government? It seems to me just as important to ask about bad corporate policy, like the technicality-based rescissions you mentioned in comments. Or, for that matter, bad social trends like the number of highway deaths per year or global warming. (Some deny global warming is real or is anthropogenic, but I haven't heard anybody support it).

You framed the question as, how does government abuse power or foster evil. If we are truly looking for policy issues that all good folk can agree upon, we should also seek areas where government could prevent abuse and foster good.

We'll still disagree over means, peverse incentives, unintended consequences, etc. But it would be nice to know whether we all approve the same outcomes.

" In Firefox, I don't allow fonts smaller than 13 points,"

Can you explain how one does this, it isn't immediately obvious to me how.

thank you

Sebastian:

I have heard about civil forfeiture before, but I have not heard how it is generally justified. If I have to make a guess, though, it's that

(a) it's done by Police Authority, which has a strong presumption of always being right for many Americans

(b) the people it's done to are mostly of a dusky hue.

Race, authoritarianism. Authoritarianism, race.

Seb, I agree with you 100% that all of the things you have mentioned are things that everybody ought to agree on, and probably just about everybody does, right now.

But just let one political party decide that it's critical to their success to defend the other side, and it's 100% certain that there will no longer be a consensus on that thing.

You're hoping to lay down some markers about morality. But all you can really do is lay down markers about morality in currently uncontested political space. And those markers will quickly disappear as soon as the space becomes politically contested.

I wish human nature didn't work that way. I really, really do. But humans are social/tribal creatures much more fundamentally than we are rational creatures.

Also, on the font thing: if you hold down the "ctrl" key and scroll your mouse wheel up and down it changes the size of text on screen. I don't know if it works on every computer or every browser, but it's a godsend.

Re: Megan's laws...

In California, Parolees subject to PC 290 (which includes a lot less serious stuff than rape) are often forced to be transient. When on parole, you must reside in the county where you committed the crime. When a PC 290 registrant you must not live within 2000 feet of a school, park, etc. In many counties that leaves nowhere to live, forcing parolees to live out of their cars or, if they have no car, on the streets.

As a society we may even decide that we want to have legal discouragements for same age sexual activity below the age of majority.

Because it's so important that young LGBT people should grow up in shame and self-hatred. Congratulations on your shining beacon of self-hatred, Sebastian.

You're hoping to lay down some markers about morality. But all you can really do is lay down markers about morality in currently uncontested political space. And those markers will quickly disappear as soon as the space becomes politically contested.

What Kent said.

Union organizing was mentioned above; this leads to an example I think fits your criteria: If a manager says, "If you vote for the union, you will be fired," this is a violation of the NLRA. If a manager says, "If you vote for the union, I think you will be fired," this is not.

That points towards a larger "truth" about overly technical legal interpretation which may encompass many such beefs. Would we want a more fluid system? Or would that lead to abuse? (Well, more abuse.)

This might be controversial, but: once the state assumes custody of you, it becomes responsible for your safety. That means that if a prisoner gets beaten or killed or raped, the prison administrator is responsible. Whether "responsible" in this context means "has to pay a huge fine" or "can be charged with manslaughter" I don't know.

Alternatively: prisoners have an affirmative right to a safe environment.

Because it's so important that young LGBT people should grow up in shame and self-hatred. Congratulations on your shining beacon of self-hatred, Sebastian.

WTF? Seriously now, WTF?

"Seb, I agree with you 100% that all of the things you have mentioned are things that everybody ought to agree on, and probably just about everybody does, right now.

But just let one political party decide that it's critical to their success to defend the other side, and it's 100% certain that there will no longer be a consensus on that thing."

Actually one of the interesting things about the issues so far is that among politicians, there seems to be general support for all of these policies, or at the very least a general unwillingness to touch them.

"It is a useful and appropriate use of government appropriations to support research into the efficacy of alternative treatment approaches to common illnesses and conditions."

"When committing the armed forces to the mission of overthrowing another nation's government, our political leaders should be utterly forthright in stating the reasons for ordering that mission."

"When planning to use armed force to overthrow another nation's government, it is morally imperative to make at least minimal provisions for the security and sustenance of the civilian population."

"Political influence over prosecutorial decisions for the purpose of discrediting political opponents in the run-up to an election is abhorent."

"Whilst political patronage is a universal and probably unavoidable feature of political democracy, an elected government is morally obligated to ensure that positions that are likely to be determinative of life or death for large numbers of people are staffed by minimally competent individuals."

Ya' know, I'm really trying to think of one of these to call out my own side, but I'm having trouble. I guess my partisanship has hardened a lot in recent years. At least a little more bipartisan would be this one:

"Public subsidies for agricultural producers, to the extent that they exist at all, should be conceived as a safety net for the vulnerable, and should not further enrich individuals making more than (let's say) five times the median family income."

Because it's so important that young LGBT people should grow up in shame and self-hatred. Congratulations on your shining beacon of self-hatred, Sebastian.

I'm with Turbulence in not understanding what this means. At the very least, Sebastian's comment would seem to me to point toward inculcating shame and self-hatred in all young people, not just LGBT young people. Kind of like the guilt-tripping Catholicism in the tender mercies of which I was raised.

Jes, did you by any remote chance misread "same age" as "same sex"? If not, can you explain why you think Seb's comment applies to LGBT kids and not straight kids?

On the drug front, I'd say something about medicinal marijuana (or marijuana in general) as well as hemp. The barrier to the hemp industry in this country is absurd.

On the sex offender front, the plastering of alleged sex offenders in the media (sometimes with photos) while their accusers' names are withheld is troubling.

I'd also add some basic baseline rights for same sex couples. Not marriage per se given the point of the discussion. Like bans on gays adopting while convicted felons can. No. Some basic rights so that things like visiting partners at the hospital or making medical judgments for them are not major issues. etc.

The promotion of falsity, even if some will say opposing it is "partisan," should not be something the press does, including by inaction. The "Stephen Colbert" model of news gathering should be opposed.

As a society we may even decide that we want to have legal discouragements for same age sexual activity below the age of majority.

Because it's so important that young LGBT people should grow up in shame and self-hatred. Congratulations on your shining beacon of self-hatred, Sebastian.

Reading comprehension!


These Americans support torture, for example. Although, in the spirit of being pedantic, it's unclear that's they've thought their position through. Morrissey and his readers don't seem to realize that the 9/11 hijackers died that day and were never in custody. He also doesn't acknowledge that some people not even suspected of terrorism have been tortured, and many more suspected but not convicted. He even seems to think it's effective for getting useful information.

I don't know if they genuinely believe this stuff, however absurd it all is, or if they're deliberately exagerrating/misstating things to reach preordained conclusions, but either way these are real people, not strawmen. A lot of people, mostly Republicans, support torture.

Hmmmm, how about "Counseling about end-of-life care decisions from a medical professional should be a reimburseable service under Medicare"?

How about: A woman who needs an abortion should be able to get it safely, legally, and affordably, without any non-medical obstructions being put in her way? After all, whether or not a person of good conscience agrees on abortion, anyone of good conscience and common sense would agree that if Medicaid will have to pay hundreds of thousands for a woman to be treated who is dying from complications that ensued after an illegal abortion went wrong, it's actually better just to agree Medicaid will pay to provide free contraception and free abortions on demand, the first in order to prevent as many abortions as possible in advance, the second because paying up promptly for an early, legal, and safe abortion does nothing but save Medicaid having to pay out far more to fix women up after illegal abortions go wrong - and ensure that no woman delays having an abortion till it's later and less safe because first of all she has to save up to pay for it, then she has to save up to travel hundreds of miles to the only clinic in the state, then she has to save up to pay for three days residence near the clinic... when there's a hospital five minutes drive away that won't perform her abortion because they're scared of the pro-life movement.

How about: given there is a normal range of human sexual orientation and a normal range of human beings distributed from one end to the other, laws making people born at one end of the spectrum legally unequal to people born at the other end are just plain wrong?

How about: In a civilised society, no one should be denied the healthcare they need because they have not the means of paying for it?

There is no way to decide what "people of ordinary goodwill" should all agree on, because there is no common definition of goodwill. Or people.

I think anyone who expresses the idea that LGBT children ought to be discriminated against and harassed for their sexual orientation, and discover too young that if they are the victims of a predatory adult, going to an adult authority will result in their being declared criminals - the practical effect of arguing for "legal discouragements for same age sexual activity below the age of majority" - cannot possibly be a "person of goodwill", nor see LGBT people as real people.

I think that anyone who advocates for women being forced to bear children against their will, cannot possibly be a "person of goodwill", nor see women as real people.

And I know perfectly well that most of the people reading this and my preceding comment will argue that I can't be a "person of goodwill" just because I'm being so mean to a well-meaning guy who's only expressing the standard prejudices against LGBT people and sexually-active heterosexual women that many men have.

Because sometimes, we just don't have that much in common.

The case for civil forfeiture is that a drug dealer should not be able to use his illegal bankroll to buy high priced legal support. At least, that is how it started.

Additionally, before the very long term drug sentences came about, the concern was that it could be a good bet: risk a couple years in prison, but potentially reap hundreds of thousands of dollars that would still be there after your possible prison stint.

I think in some cases now, attorneys have been prosecuted for receiving drug money when they are paid to defend dealers (which similarly should be universally repugnant).

And I know perfectly well that most of the people reading this and my preceding comment will argue that I can't be a "person of goodwill" just because I'm being so mean to a well-meaning guy who's only expressing the standard prejudices against LGBT people and sexually-active heterosexual women that many men have.

Jes, once again: you misread Sebastian's post. Not "misread" as in "you took his meaning incorrectly," "misread" as in "you saw "same age" and accidentally thought you saw "same sex" and the two are not, like, the same thing at all."

"to a well-meaning guy who's only expressing the standard prejudices against LGBT people and sexually-active heterosexual women that many men have."

Huh? It might be more productive if you quoted what you believe leads to this conclusion. I don't see where you get anything one way or the other about LGBT people and I have no idea where you think I'm speaking against sexually-active heterosexual women. Do you interpret: "A girl who had sex with her boyfriend while they were both underage does not need to end up on a Megan's Law sexual predator list...." as somehow anti-woman?

"I think anyone who expresses the idea that LGBT children ought to be discriminated against and harassed for their sexual orientation, and discover too young that if they are the victims of a predatory adult, going to an adult authority will result in their being declared criminals - the practical effect of arguing for "legal discouragements for same age sexual activity below the age of majority" - cannot possibly be a "person of goodwill", nor see LGBT people as real people."

Are you talking about me? Again, what did I write that leads to such conclusions?

Just to be clear, I'm against statutory rape laws for same-age children. Did it maybe come across that I was for them???

"and discover too young that if they are the victims of a predatory adult, going to an adult authority will result in their being declared criminals"

I'm not clear what situation you are talking about here. I'm not aware of modern cases in Western countries where this would happen. "...will result in their not being believed" I've seen, but you seem to be talking about something more.

Here's one that's probably on the boundary of "all people of goodwill agree":

"In the realm of public primary and secondary education, there should be no material differences in per-pupil spending between different jurisdictions in the same state, except to the extent that such differences are justified by a higher expense of service delivery for the same standard of service. Equalization of school funding should be accomplished through general taxation."

I would stretch the argument further and remove the qualifier "in the same state", but I can see how a "person of good will" could, in good faith, object on principled federalist grounds.

Um.

Civil asset forfeiture is supported by every police department and judiciary branch in the country, as well as a majority of Americans. Their purpose is to make certain that drug dealers are punished whether or not their lawyer manages to get them off, and that illegal immigrants are stripped of their ill-gotten gains, and most people agree that the occasional innocent victim of asset forfeiture (victims who are far less numerous than you imply, and who almost always are fully reimbursed) is worth the overall benefit to society.

Laws regarding the control of sexual predators? Again, supported by police, judges, and a majority of Americans. The rights of sexual predators are less important than the protection of America's children, and, again, if the occasional person who is no longer a threat goes on the list, so what? He (or she) had to have done something wrong to end up on the sexual predator list, and now he reaps the consequence of his actions.

You're not doing too well on "things on which all men and women of good conscience should agree" if you begin by defining the entire U.S. justice system and the vast majority of the American people as people not "of good conscience". One can be a decent human being without sharing your obsessive fetish for unlimited, libertine individual 'rights'. Intelligent people understand that rights must be constrained for the sake of society, and that overall benefit to society from a policy is more important than any harm that comes to isolated individuals as a result. I refer you to Scalia's learned dissent in the Troy Davis case for an excellent defense of this position - or is he, too, someone "not of good conscience?"

This topic's title gave me pause. On the one hand I applaud efforts to build consensus on truly stupid policies and think that the trust it engenders can be a valuable thing when it comes to matters where we disagree.

On the other hand, the formulation of the list as things on which persons of good conscience "should" agree is problematic to me. How does this list differ from any other list of things desirable to one person and not to another? I think sex offender registries are a travesty, but clearly many people do not. Are they, then, not of good conscience? What does it even mean to say that people "should" agree on these issues,; that is, what is different about this than about any other policy advocacy, situations where, when you disagree, you wouldn't wish to be characterized as not arguing in good conscience?

I don't disagree with you about any of the things you list, but I don't think the formulation is all that useful.

"I think in some cases now, attorneys have been prosecuted for receiving drug money when they are paid to defend dealers (which similarly should be universally repugnant). "

I quite agree. Receiving drug money - and for that matter, defending drug dealers in court - should be universally repugnant...

... oh, was that not what you meant?

I refer you to Scalia's learned dissent in the Troy Davis case for an excellent defense of this position - or is he, too, someone "not of good conscience?"

Yes.

This has been another edition of "simple answers to needlessly complex questions".

"and that illegal immigrants are stripped of their ill-gotten gains"

The what now?

1. Citizens should not come armed to town-hall meetings.

2. Gay marriage should be legalized.

3. "Don't ask, don't tell" should be abolished.

4. Talking on a cell phone while a movie is playing in a theatre should be grounds for getting thrown out.

5. Animal cruelty fines and sentences should be stiffer.

Civil asset forfeiture is supported by every police department and judiciary branch in the country, as well as a majority of Americans. Their purpose is to make certain that drug dealers are punished whether or not their lawyer manages to get them off...

Yep. I can't imagine how anything could go wrong with that.

I think a lot of the topics you mention are smaller issues. We still have much much larger issues like the ones below to deal with as a society. Sure Megan's law is something to discuss, but there are so many other really fundamental values within our culture that are messed up.

"No one has a right to hurt another human for reasons other than self defense." (See domestic violence through murder through torture.)

"You should only have sex with people who actually want to have sex with you." (in other words rape bad)

"People have a right to make decisions about what happens to their own body." (this could actually be an umbrella over the other issues and it also touches on medical care.)

"People should be treated with respect and given the same rights (and salary) regardless of gender, race, sexual orientation, size, hair color, eye color etc."

If we can't agree on major issues like this then it seems unlikely we're going to reach consensus about what happens to lawyers who get paid with drug money.


1930's version of mad the swine: Civil asset forfeiture lynching is supported by every police department and judiciary branch in the country South, as well as a majority of Americans Southerners. Their purpose is to make certain that drug dealers negroes and jews who rape white women are punished whether or not their lawyer manages to get them off...Intelligent people understand that...overall benefit to society from a policy is more important than any harm that comes to isolated individuals as a result..

I think that all men and women of goodwill would agree that this anonymous patient of Doctor George Tiller ought to have been able to get the abortion she needed in her home state, without having to travel like fugitives and have to walk into the clinic through a howling mob of pro-lifers who loathed her for not staying pregnant for months knowing the fetus inside her was crumbling up and dying:

-I was very excited to go to my OB for my 26-week ultrasound(beginning of 3rd trimester and home stretch of the pregnancy)but something was very wrong--the baby was measuring at 18 weeks and my OB sent me to a major hospital where they held a team late to conduct a high resolution ultrasound. The confirmed diagnosis was the most severe form of osteogenisis imperfecta (brittle bone disease) and my poor little one had broken bones throughout his body and was severely underdeveloped. I was told my baby was "incompatible with life" and if I went through labor and delivery, I would most likely kill my baby as he passed through the birth canal. I felt the most loving and humane informed choice I could make for my baby was to end his suffering; every move I made I was worried I was hurting him. My OB arranged for me and my husband to fly to Kansas to Dr. Tiller's clinic. We felt like fugitives having to leave our own state and could only use a certain travel agent, hotel, and cab service because of the pro-lifers stalking Dr. Tiller's patients. We had to pass through protestors on our way into the clinic who were yelling at me that I had a choice. I wanted my baby, and I wanted him to live--that would have been my choice, but that is not the situation I was in. We could not have been treated with more dignity, compassion,love, respect, caring, etc. by Dr. Tiller and his staff. He was by my side the whole week and took personal responsibility for every step through the process. Before we left Kansas at the end of the week, as part of the healing process he showed me my angel boy and why he wouldn't have been able to live on this earth. I held my baby and remember his perfect tiny little feet and his mop of black hair.

Therefore, I think all men and women of goodwill ought to agree that Doctor Tiller shouldn't have had to be a lone hero who was stalked, harassed, and eventually murdered by adherents of the pro-life movement: this domestic terrorist movement ought to be shut down.

Sebastian: I'm not clear what situation you are talking about here.

I'm talking about the situation you were advocating - where a boy who has sex with another boy, discovers that if he reports the adult teacher who is harassing him, the authorities will treat both him and his boyfriend as criminals for engaging in consensual, same-sex, underage sexual activity.

It's a fairly standard situation where underage same-sex sexual activity is criminalised - that the kids know they are criminals themselves for having sex, means they're reluctant to report real predators to any outside authority, and when they do, the results are often that the kids themselves get penalized. Not necessarily by being prosecuted - though it has happened that even an age difference of a few months has led to "the older boy" being stigmatized as a predator - but threatened, bullied, and outed.

Society "benefits" from stigmatizing children in this way only if you feel it's beneficial to society that LGBT kids grow up feeling that their own sexual orientation makes them criminal outsiders who need to conceal what they are in order to survive. You know: the kind of "society" that led to pretty much every closety gay Republican or Christian evangelist I can think of. You may feel that's "beneficial": I differ.

As distasteful a person as he seems to be, mad the swine is right. Sebastian's post seems Pollyannaish. There's a lot of stuff that "all people of good conscience should agree" on, but each of us might give a different list. For example, I think Trilobite at 1:29 points out glaring omissions in Sebastian's list, and as mad illustrates, lots of people support the stuff Sebastian thinks everyone should oppose.

It seems like the original post is really trying to get at stuff which a strong majority of civil, responsible people in modern American society do agree on, but if you actually tried to make a list of those things, all you'd get is stuff like the fourth item in bedtimeforbonzo's 2:34 comment.

But just let one political party decide that it's critical to their success to defend the other side, and it's 100% certain that there will no longer be a consensus on that thing

I'm in the camp that thinks that there's plenty of support for civil forfeiture, sex offender laws, and statutory rape prosecution for consenting underage kids.

IMO it's more about the politics following the popular sentiment rather than the other way around.

I think a lot of folks are attracted to the idea of punishing other folks who they think are doing bad things. Here in the US, anyway.

again, if the occasional person who is no longer a threat goes on the list, so what? He (or she) had to have done something wrong to end up on the sexual predator list, and now he reaps the consequence of his actions

Yes, because teenage necking is definitely something that merits punishment for the rest of your life.

As Sebastian points out, it's not just "occasional," and a lot of those people were never a threat to anything but prudery.

I'm talking about the situation you were advocating - where a boy who has sex with another boy, discovers that if he reports the adult teacher who is harassing him, the authorities will treat both him and his boyfriend as criminals for engaging in consensual, same-sex, underage sexual activity.

Jes, for the third time, Sebastian wasn't advocating that. At all. Like, he wasn't even implying it. You misread a word. Your high horse is somewhere off in the prairie, wondering why you are still straddling a saddle when there is no horse present.

Sebastian,

You are seriously misstating current civil forfeiture law. Since 2000, the onus of proof for federal asset forfeiture is on the DOJ. It is on a balance of probabilities, but you are simply misstating the law. The same is true in all but a handful of states.

Most asset forfeitures involve large sums of cash for which the possessor has no explanation. Often, the possessor is willing to forego the cash rather than be charged.

The logic behind civil asset forfeiture is just that the extraordinary procedural protections of criminal law (proof beyond a reasonable doubt, one-sided discovery, right to exclusion of probative evidence if it was obtained unconstitutionally) make sense when life or liberty are at stake, but don't make sense when what is at stake is money.

Asset forfeiture is actually widely supported across the political spectrum. That doesn't mean it is beyond reasonable argument, but it can hardly count as something all decent people are against.

Shorter version of Sebastian:

All people of good will should agree with me.

I refer you to Scalia's learned dissent in the Troy Davis case for an excellent defense of this position - or is he, too, someone "not of good conscience?"

I personally have no problem whatsoever describing Scalia as being not of good conscience.

YMMV.

Well, it was a nice try, Sebastian, and I appreciate your making the attempt.

"As a society we may even decide that we want to have legal discouragements for same age sexual activity below the age of majority. They do not need to be drawn so broadly as to make sexual exploration between two sixteen year olds statutory rape."

That's what Sebastian said. He is opposed to laws that would make sexual exploration between two sixteen year olds statutory rape, but he sounds open to the possibility that we might want to have "legal discouragements" for such activity.

He didn't single out same sex relationships, but it's not clear (to me) what he meant by "legal discouragements" or if he would favor them. Anyone interested could ask him, I suppose.

Jes appears to be concerned that legal discouragements (whatever those are) would make an underage person less likely to report a sex crime, since that person might be afraid that he or she would also be in trouble and she thinks Sebastian supports "legal discouragements", whatever those are, so she is angry at him.

Okay, carry on.

Since 2000, the onus of proof for federal asset forfeiture is on the DOJ. It is on a balance of probabilities, but you are simply misstating the law. The same is true in all but a handful of states.

Not trying to be a cite troll -- I have no reason to disbelieve you -- but do you have a link to a concise summary of the state of the law in these matters?

Most asset forfeitures involve large sums of cash...
Again, any cite for this? I have the (admittedly unsubstantiated) impression that the vast preponderance of seizures are relatively small amounts--though obviously the total value of seizures would be skewed toward ill-gotten fortunes).

...for which the possessor has no explanation.

Not really. Everyone, guilty or innocent, can come up with an colorable explanation for having a few thousand $ in cash. The problem arises when the innocent have no good way of proving their explanation (the fact that you keep all your money in a matress is often associated with a paucity of auditable financial record-keeping). Hence the difficulty of rebutting the government when the standard is "preponderance of evidence" and the defendant/claimant is socially marginal.

"You are seriously misstating current civil forfeiture law. Since 2000, the onus of proof for federal asset forfeiture is on the DOJ. It is on a balance of probabilities, but you are simply misstating the law. The same is true in all but a handful of states."

Federal law isn't the only forfeiture jurisdiction, and I don't believe that it is even the largest in terms of money seized. I'm going to do a more comprehensive post on the subject, but even in the federal jurisdiction the burden remains low and lack of reciepts is counted as unable to explain where it comes from, which to a layman isn't the same thing at all.

"Asset forfeiture is actually widely supported across the political spectrum."

It is widely supported by politicians of both sides, but I have rarely (actually never, but I'm sure someone will pop up now) come across non-politician, non-law enforcement, who thought that it sounded like a good idea. (See also gerrymandering). Hmm, maybe gerrymandering is another one.

All people of good will should agree with me.

I think sex offender registries are a travesty, but clearly many people do not. Are they, then, not of good conscience? What does it even mean to say that people "should" agree on these issues,; that is, what is different about this than about any other policy advocacy, situations where, when you disagree, you wouldn't wish to be characterized as not arguing in good conscience?

It is widely supported by politicians of both sides, but I have rarely (actually never, but I'm sure someone will pop up now) come across non-politician, non-law enforcement, who thought that it sounded like a good idea.

I think this question of support is worth exploring. It is true that there is widespread support for some of these items, but I think we need to distinguish between thoughtless support and considered support. If your only exposure to an issue is a 30 second sound bite representing one side, you might come to a very different conclusion than if you spent an hour reviewing arguments from both sides. The fact that you come to a different conclusion after more serious evaluation doesn't mean that you're a bad person -- it just means that we should be wary about evaluating people based on conclusions that they make without extensive consideration. I mean, I'm sure I could come up with a description of asset forfeiture that would get 99% approval, but that doesn't mean that public "supports" asset forfeiture, does it?

My point here is that we all make immediate evaluations of issues without really reviewing the evidence, but those evaluations don't tell us much about our fundamental values. In our political discourse, we often conflate these immediate impressions and fundamental values, and in some contexts that can make sense, like when you're trying to understand the political salience of McCain's health care plan and Obama's attacks on it. But for what Seb is talking about, I think we need to keep these issues distinct. This is one place where deliberative polling is needed rather than regular polling.

"The case for civil forfeiture is that a drug dealer should not be able to use his illegal bankroll to buy high priced legal support. At least, that is how it started."

I wonder why this doesn't apply to white collar crime (e.g. Bernie Madoff; Kenneth Lay; Conrad Black?)

"All people of good will should agree with me."

Actually no, and I'll try to show that with my response to Jesurgislac's rather strong objection to "As a society we may even decide that we want to have legal discouragements for same age sexual activity below the age of majority. They do not need to be drawn so broadly as to make sexual exploration between two sixteen year olds statutory rape."

With respect to underage sexual activity (or I guess with respect to what should count as underage), there appear to be a huge number of varying opinions about how it should work. If I were making the rules myself, I would probably design something along the following lines: strict age of consent at around 14, 14-16 maybe 17 it isn't a crime if you are experimenting consensually (this means that it isn't a strict liability crime, still could be molestation or rape of course with otherwise impaired consent) with someone within a 3-4 age range. 16 or 17 and you can do what you want though I'm fine with social stigma attaching to 40 year old skeeze balls chasing after 16 year olds.

I am, however, relatively humble about where I draw those lines. I understand that there are many people who would be more or less permissive than that. It is a highly contestable area, which I fully expect will be highly contested.

What I think should not be nearly so contested, and which I believe most Americans would agree with, is the idea that sexual experimentation between two consenting post-pubescent minors of about the same age ought not be automatically considered rape. The number of people who are willing to defend the line that it should be automatically rape strikes me as pretty small.

Jes seems to be indicating that they uncontested zone ought to be much larger. But I'm trying to do something much more modest: identify the uncontested, or much less contested, zones and try to pry them away from the highly contested zones.

Here is the Civil Asset Forfeiture Reform Act of 2000.

Pithlord, it looks to me like the 2000 legislation, while reining in some of the worst excesses, is still a rather meager protection. For one thing, while the statute creates an affirmative "innocent owner" defense, the burden of proof is still on the owner to establish innocence. And while the statute requires that the government establish by preponderance of evidence that the asset is subject to forfeiture, the subsequent judicial interpretation of the standard appears to be pretty generous to the government. IANAL, though.

pain perdu, just to say how much I have enjoyed your many thoughtful contributions to this thread.

Thanks to everyone who answered my question about property seizures. To point out the obvious, that is seriously fragged up. It also seems to exuberantly violate every tenet conservatives claim to hold dear.

I wonder why this doesn't apply to white collar crime (e.g. Bernie Madoff; Kenneth Lay; Conrad Black?)

It does apply to white collar crimes. And IIRC it was applied (though Ken Lay slipped out of the noose by conveniently dying).

Pithlord, you should note a couple of things about the reform bill:

A) if they take your car (a very common forfeiture item), they don't even have to give you the notice for the civil proceeding for 60 days. So you won't be getting it back for at least 2 months (of course I'm not sure how long the hearing normally is after the notice period, but knowing how courts often work, I would tend to imagine it isn't on the 61st day.

B) [please note that I fear I'm messing up the numbering structure from you cite, so I'll provide numbers and page numbers in the hope of making it findable] 983(b)(1)(page 5) doesn't provide for counsel unless there is a separate criminal proceeding (or if the seized property is the primary residence).

C) 983 (c)(3) states "if the Government’s theory of forfeiture is that the property was used to commit or facilitate the commission of a criminal offense, or was involved in the commission of a criminal offense, the Government shall establish that there was a substantial connection between the property and the offense"

Note what this does NOT do. It does NOT require that the alleged criminal offense actually be charged in criminal court. It does NOT require that the alleged criminal offense be proven beyond a reasonable doubt. Almost all forfeiture cases use this clause, yet simultaneously very few actually involve cases where the alleged criminal conduct is charged in criminal court. So in practical effect, you get criminal punishment, based on allegations of criminal activity, which almost never goes through criminal court.

Aw shucks, Johnny Canuck [**blushes**]

Sebastian,

Your circle of acquaintance may not be an unbiased sample of American popular opinion.

The provision with respect to standard of proof is in section 2:

"In a suit or action brought under any civil forfeiture statute for the civil forfeiture of any property—
(1) the burden of proof is on the Government to establish, by a preponderance of the evidence, that the property is subject to forfeiture;"

According to my ABA handbook on Asset Forfeiture, which was published in 2006, 8 states plus the District of Columiba still accept "probable cause" as a standard of proof for civil asset forfeiture. The other 42 use "preponderance of the evidence", "clear and convincing" or "reasonable doubt" or some equivalent.

Byrningman: "Thanks to everyone who answered my question about property seizures. To point out the obvious, that is seriously fragged up. It also seems to exuberantly violate every tenet conservatives claim to hold dear."

And also many tenets that liberals claim to hold dear. Civil forfeiture is a very bipartisan effort. Which is one of the reasons I find it so interesting. When the process is explained, vast numbers of conservatives and liberals both express shock and often outrage. But it persists.

When you "explain" the process, you should also be accurate about what the law actually says. If people are still outraged, then that may be significant. But if they are outraged by a misdescription, then not so much.

Responding to your 04:44 p.m., the question is whether forfeiture really is *criminal punishment*.

O.J. Simpson was actually acquitted of the murders of Nicole Simpson and Ron Goldman. Yet he was sued civilly and had to pay $33.5 million. Is that really outrageous, or is it sensible to make a distinction between the process and evidence that leads to incarceration as opposed to the process and evidence that leads to loss of property?

Coupla more:

Tasers. Cops have been using them as torture devices. This needs to stop. Simple solution -- make the cops fill out a form when they use one. This would be similar to the form they have to fill out when they discharge a firearm.

Political protests. Cops and politicians have been going bananas over people waving signs and yelling around political conventions, IMF/WTO meetings, and suchlike. What's the problem here? "Petition for redress of grievances", and all that.

If we are going to have capital punishment, we must provide the defendant with experienced, high-quality legal defense, and ample resources for investigation, lab work, expert witnesses, and so on.

No taxation without representation, so either DC gets a real voting representative in the House or DC residents no longer have to pay federal taxes.

O.J. Simpson was actually acquitted of the murders of Nicole Simpson and Ron Goldman. Yet he was sued civilly and had to pay $33.5 million. Is that really outrageous, or is it sensible to make a distinction between the process and evidence that leads to incarceration as opposed to the process and evidence that leads to loss of property?

BIG difference between the OJ case and the Drug War seizures. The families of Nicole Simpson and Ron Goldman made a case that they suffered actual damages (wrongful death) due to O.J.'s tortious acts. They didn't get to use the full force of the state to confiscate OJ's millions and then dare him to try to take them back. If the govt had to adhere to the same civil procedures as the next of kin in the OJ trial, I think a lot of us would find civil asset forfeiture unobjectionable.

I remember a statutory rape case from law school. It was intended by the book's editor to teach us that strict liability really means strict. The case involved a mentally handicapped 19 year old male who was seduced by an underage girl who sometimes helped care for him. She literally sneaked into his bedroom at night to have sex with him. He was charged with statutory rape.

I asked why she wasn't charged with statutory rape. Everyone looked at me like I had said something crazy.

I pointed out that the statute quoted clearly indicated that statutory raped occurred in two circumstances- one, when a non minor has sex with a minor. The other, when any person has sex with an individual incapable of giving legitimate sex, such as in the case of mental handicap.

Everyone looked at me in confusion for a little longer, and then the instructor said that this was only one case, and it was possible that she was charged.

I don't know what that has to do with anything. Its just something that's bugged me for years.

I actually tend to think that it isn't good that you can be sued in a civil trial for money when you have been acquitted of the underlying offense. But in that case, at least there were private parties involved (so the party that lost in the criminal trial wasn't trying again in the civil trial). (Also note that there is no possible tort in most forfeiture cases, so there isn't a harmed non-governmental party to sue). The government wasn't trying him twice. And I also tend to think that failing to ever charge someone with a crime, and exclusively going through a civil forfeiture proceeding is a very different thing.

Did you read USA v. $124,700 which pain perdu linked above? The evidence is thin, and boils down to "had lots of cash", "was scared to tell police that he had lots of cash", and "drug sniff dog got an alert in the back of a rental car". The evidence against forfeiture was that testimony from three witnesses who all said that the cash was pooled to purchase a refrigeration truck for a bussiness they wanted to start. This evidence was uncontested. The trial court found the witness testimony more convincing, and wanted to release the property. The government appealed, and the 8th Circuit reversed! Highlighting yet another difference between criminal and civil proceedings: the government typically doesn't get to appeal its losses in criminal court if the trier of fact weighs the evidence and finds the government's case wanting.

Having large amounts of cash and not trusting the police isn't a crime which warrants seizing it.

JanieM: Jes, did you by any remote chance misread "same age" as "same sex"? If not, can you explain why you think Seb's comment applies to LGBT kids and not straight kids?

I did in fact do just that.

Sorry, Sebastian. That was a really bad misreading on my part, and I apologize.

One reason to be concerned about civil forfeiture: it can also hit the innocent.

http://www.myfoxorlando.com/dpp/news/osceola_news/081809_Man_sues_city_over_wrongful_arrest

I'm not going to defend every single civil forfeiture proceeding everywhere, any more than I'd defend every medical malpractice suit or slip-and-fall. Humans screw up, and not all decisions of the courts are right.

But I disagree that there is no harm created by criminal enterprises. It's sometimes diffuse harm, which means that the only plaintiff can be the state, but you could say the same of the Exxon Valdez spill.

The criminal process takes a highly assymetrical view of error and privacy. Error in favour of the accused in much better than error against the accused, and Anglo-American systems tend to respect an absolute right to silence. The civil process, in contrast, tends to view error as equally bad no matter who it is against and subjects both parties to discovery.

The legitimacy of civil asset forfeiture turns on what justifications for the assymetry in the criminal process you find convincing. I think the best such justification is the special regard we have for physical liberty and especially life. I don't think the same justifications apply when what is at stake is money, and I think we have to weigh the countervailing concern of the effects vast untouchable criminal enterprises can have on a society. (See Mexico.)

I understand that puts me outside the circle of decent people, but I can handle it.

Pithlord - Definitely disagree with you. Quite aside from a question of a special value on physical liberty and life but not applying to other things, as you suppose - ruining someone's life to this or that degree is something that can be done completely mistakenly if and when it is done on a no-need-for-proof, let-him-or-her-prove-we're-wrong basis. Errors do happen, and abuses do happen, not just in theory but in practice and on record.

(And, as in the refrigerator-truck case Sebastian mentioned, if even all evidence being consistent with a legal source need not make proof enough to get your property back... how are innocent people supposed to get out of this when it goes wrong?)

And you don't make that disappear by thinking of social evils and drug lords. Not "I don't care if this happens to good people, and they have no recourse, as long as it happens to the bad people other times." I don't suppose you'd be in favor of police burning the homes of people they're suspicious of without trial. I would find it amazing if you would.

Be sure you do understand why your view might "put you outside the circle of decent people" before you disdain the concern.

So who is this new troll "a mad swine" who believes that accused drug dealers don't have Constitutional rights? He should last a while.

Sebastian, you'll be happy to know that in a few cases, my grand jury panel -- helped by an Ohio Supreme Court decision -- has returned indictments without the asset forfeiture specifications requested by the prosecution. It's our version of jury nullification, I guess, but it's come up in cases where the evidence doesn't show that the money in question is clearly a result of criminal activity.

Alex,

What's the part about "without trial." There is still a right to a trial. In all but a few jurisdictions, the burden of proof is still on the government. The issue is whether property rights require a criminal process or a civil process. So I am not defending "prove we're wrong", I'm defending "we'll prove we're right using the same process and same standard of evidence that applies to a medical malpractice claim or a divorce proceeding."

I don't want to downplay the serious injustice if someone's $100 grand in cash that they legitimately acquired is taken from them. And I don't claim that there is a system in which that possibility can be totally eliminated. But the injustice *is* different than a wrongful felony conviction and multiple years in jail. And so I'd argue a decent person could support a system that tries to minimize that error without putting the thumb on the scales to the same extent as in a criminal prosecution.

Sebastian probably knows that there are many democratic countries without American criminal procedure. In Canada, whcih shares the common law background, the prosecution can appeal an acquittal. In France or Japan, all kinds of things happen in the criminal process that Sebastian or I would find strange. But sentencing is much milder and I'd be hard pressed to claim that these countries are less decent in their criminal process than the United States.

@Alex Russell
As someone who agrees with Pithlord on this, I think you're reading to much into his words.
I for one agree with the principle that we ought to keep it hard to put people in prison to the extend that lots of guilty people go free while the number of innocents who are wrongfully convicted is minimized. At the same time, we ought to have laxer standards for minor forms of harm so as to keep deterence high (and to have a way of getting at the drug kingpins who never touch the drugs themselves).
The way we're currently going about this certainly can be improved e.g. by higher standards of proof, right to counsel and generous compensation if it turns out the police was wrong. But the principle itself is sound and certainly not one which all people of good conscience diagree with.

Even if asset forfeiture was a reasonable practice, surely any forfeiture regime under which the seizing agencies get to keep the stuff they're seizing is suspect? I mean, what possible justification could there be for this legal innovation? It guarantees corruption.

I'm also not disputing that there are sound civil libertarian arguments against current US forfeiture practice. The context of was Sebastian's claim that no decent person could defend civil asset forfeiture at all, a claim he wasn't willing to make with respect to torture.

In Canada, police agencies aren't allowed to keep the proceeds of forfeiture for that reason.

Our local police agencies use forfeited cash as marked money for controlled drug buys in buy-bust operations.

I agree with Crafty Trilobite's point that the list is skewed towards government power. I'd be interested to see what kind of list Sebastian would generate that would list corporate actions as well as the range of acceptable government actions to combat these points.

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