Weekly Hit & Run Archive 2008 March 29-31

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"You Don't Care About People, Hud. You Don't Give a Damn About 'Em."

Matt Welch mentioned it below, and the departure of Housing and Urban Developmen Sec. Alphonso Jackson doesn't seem to be the biggest news of the day. But boy, was it a long time coming. Jackson had used his office to bully people at least as long as two years ago:

In 2006, HUD's inspector general investigated remarks made by Mr. Jackson that some interpreted to mean that contracts were awarded in some cases based on political affiliation. The report didn't find any wrongdoing at the agency.

"Why should I reward someone who doesn't like the president, so they can use funds to try to campaign against the president?" Mr. Jackson was quoted as saying in the Dallas Business Journal. "Logic says they don't get the contract. That's the way I believe."

Four months ago, Edward Pound reported on one of the investigations of Jackson:

Investigators now appear to be focusing on Jackson's ties to William Hairston, a stucco contractor from Hilton Head Island, S.C., where Jackson has a vacation home. Hairston was paid more than $485,000 for working as a construction manager at HANO during an 18-month period that ended in June. In interviews earlier this year, Hairston told National Journal that Jackson had helped him land the work in January 2006.

In the early morning of November 28, a HUD investigator served a search warrant at Hairston's residence in Hilton Head, according to three people familiar with the matter.

More details about the Hairston controversy at HANO have emerged in recent days, and they are not flattering to Jackson. Last year, current and former housing officials said, a senior HUD official who was detailed to HANO to serve as executive administrator was pulled back to headquarters in Washington after he urged that Hairston be let go. The official, William Thorson, refused to sign a $167,858 contract awarded to Hairston in July 2006.

The contract was approved by C. Donald Babers, another senior HUD official assigned to serve as HANO's only board member. According to an account that Babers gave to other housing officials, Jackson called him to complain that HANO was not paying Hairston. One person said that Babers recounted how Jackson had screamed at him over the phone and "read him the riot act."

I'm hearing a little regret and bellyaching about how this departure falls heaviest on the poor, the housing-deprived, etc, but when's the last time we've had a good HUD secretary? Take a look at the last five of them:

- Sam Pierce, 1981-1989: Most famous for being 1)the only black Reagan cabinet member and for being called "Mr. Mayor" in a meeting with the president and city mayors. (Reagan forgot he was a member of the cabinet.) Investigated by the indepedent counsel's office for political favoritism and corruption.

- Jack Kemp, 1989-1993: A huge failure in dealing with Congress, but his big idea—empowerment zones—was christened after he left office. Ran for vice president in 1996.

- Henry Cisneros, 1993-1997: Spent two years running from an independent counsel who indicted him on 18 counts of conspiracy. Was pardoned by President Clinton in 2001, and helped his wife win the Texas primary this year.

- Andrew Cuomo, 1997-2001: Signed up lots of contracts for his home state, New York, to build himself for a gubernatorial bid. Failed at that, but made a comeback after some time in the wilderness and was elected state attorney general in 2006.

- Mel Martinez, 2001-2004: Bolstered his resume for a U.S. Senate run. Succeeded!

You either make no waves in the job and pick up your career from there, or you humiliate yourself enough to retire with a steady income and rolodex of famous friends. It's a racket.

Headline explained here.

Office of Thrift Supervision: Now With More Thrift!

Walking by the large, ugly Office of Thrift Supervision, situated on some prime real estate near the White House on G Street, I always figured it was one of those edifices to irony--like the little notice about the Paperwork Reduction Act that's printed at the bottom of umpteen billion sheets of government paper.

Turns out they're actually in charge of thrifts over there--savings and loans and the like. Still, Treasury Secretary Henry Paulson seems to think it's just as useless as my imagined lumpy government-owned structure dedicated to efficiency.

Among changes, Treasury wants to merge the Securities and Exchange Commission, the U.S. markets watchdog, with the Commodity Futures Trading Commission that is charged with overseeing the activities of the nation's futures market.

It also recommends getting rid of a Depression-era charter for thrifts that was intended to make it easier to obtain mortgage loans, saying it is no longer necessary. That would mean closing the Office of Thrift Supervision and transferring its duties to the Office of the Comptroller of the Currency that oversees national banks.

Thrifty, indeed.

New at Reason: Read our entire April issue!

reason's blockbuster April issue—the first under the benevolent eye of Matt Welch—is now online. Check out Welch's editorial note on Ron Paul's mistake. Read the bite-sized, half-funny-half-depressing Citings. Feast your eyes on an excerpt from a 30-year-old issue of the magazine, and much more.

The Puzzle of Punitive 'Damages'

Last week The New York Times ran a front-page story by Adam Liptak that describes the dismay caused in foreign courts by the American concept of punitive damages. It's not just that such awards are sometimes jaw-droppingly high; it's also that they serve a purpose, punishment/retribution, that is usually said to be a function of the criminal justice system, where defendants enjoy stronger procedural safeguards than they do in civil courts. Punitive damages—which are not really damages at all, since compensation for injuries is not the goal—invite juries to pick numbers out of thin air, with little or no statutory guidance, as an expression of how reprehensible they think the defendant's conduct was. And while the Supreme Court has said the Due Process Clause imposes some limits on the ratio of punitive to compensatory damages, it has not taken the next logical step of saying that when the goal is explicitly punishment rather than compensation, defendants should receive all the protections they would get in a criminal case, including a higher burden of proof for the accuser. To the outside world, Liptak reports, all of this looks pretty bizarre, ad hoc, and unprincipled:

Most of the rest of the world views the idea of punitive damages with alarm. As the Italian court [that refused to enforce a punitive damage award against an Italian company] explained, private lawsuits brought by injured people should have only one goal—compensation for a loss. Allowing separate awards meant to punish the defendant, foreign courts say, is a terrible idea.

Punishments, they say, should be meted out only by the criminal justice system, with its elaborate due process protections and disinterested prosecutors. It is not fair, they add, to give plaintiffs a windfall beyond what they have lost. And the ad hoc opinions of a jury, they say, are a poor substitute for the considered judgments of government safety regulators....

"The U.S. practice of permitting a lay jury to exercise largely discretionary judgment with limited constraints in awarding punitive damages is regarded almost universally outside the U.S. with a high degree of disfavor," said Gary Born, an American lawyer who works in London.

Foreign lawyers and judges are quick to cite particularly large American awards. Julian Lew, a barrister in London, recalled a Mississippi court's $400 million punitive award against a Canadian company in 1995 with scorn. "It did bring America into total and utter contempt around the world," Mr. Lew said.

I express my own high degree of disfavor toward punitive damages here and here, among other places.

Intern at Reason! (Deadline Today)

reason is accepting applications for the 2008 Burton C. Gray Memorial Internship. The intern works 10 weeks during the summer in our Washington, D.C., office and receives housing, a $2,000 stipend, and up to $400 in travel expenses.

The job includes reporting and writing for reason and reason online, helping with research, proofreading, and other tasks. Previous interns have gone on to work at such places as The Wall Street Journal, Forbes, ABC News, and reason itself.

To apply, send your résumé, up to five writing samples (preferably published clips), and a cover letter to:

Gray Internship
reason
1747 Connecticut Avenue, NW
Washington, DC 20009

Electronic applications can be sent to intern@reason.com, with the subject line Gray Internship Application. The deadline for applications is March 31, 2008.

Fed Up, He Joined the IRA

The Daily Mail selects the 10 most unreasonable parking tickets of all time. A sample:

Lorry driver Michael Collins was on his way to collect a skip in London's Belsize Park when the road beneath him collapsed. A burst water main had created a deep hole where the front wheels of his 17-tonne lorry were now stuck.

While he was waiting for roadside assistance, a parking attendant appeared. To the astonishment of nearby residents - and despite Mr Collins' protests, she stood on tiptoe and plastered a parking ticket on his windscreen - while helpfully telling him: "You can appeal".

Former Mississippi Official Calls for Overhaul of Autopsy System

This past weekend in the Jackson Clarion-Ledger, former Mississippi Department of Public Safety Commissioner Louisa Dixon wrote a lengthy piece calling for the full funding of the state's medical examiner position, including a staff and budget significant enough for the office to handle the bulk of the state's autopsies. She also says the state medical examiner should report to an independent oversight board to prevent whoever holds the position and his subordinates from being unduly influenced or coerced by the state's district attorneys.

Dixon's op-ed is spot-on. One thing I would add, though: Mississippi is in the position it's in now not by benign neglect or accident, but by design. Where any sensible person would look at the current system down there and see a disaster, the state's coroners, district attorneys, and to a large extent its plaintiff's attorneys have long seen and utilized a system that efficiently meets their needs. The DAs get autopsy results that help them win convictions. The trial lawyers get results that help them win malpractice and negligence suits. And the coroners get the benefits that come with making both the DAs and trial lawyers happy (use your imagination as to what those benefits might be).

The state legislature has benefited by not having to fund a modern state medical examiner's office and staff. All the money paid for autopsies in Mississippi comes from the individual counties, not the state treasury.

Indeed, the only people who don't benefit are the relatively powerless—the wrongfully accused, particularly those who can't afford to hire their own expert to rebut Dr. Hayne at trial; the families of the deceased whose bodies are sent through Dr. Hayne's assembly-line autopsy practice; the families of those whose deaths may have been caused by criminal acts, but that for whatever reason Dr. Hayne determined died by "natural causes" or suicide; and the families of crime victims for which Dr. Hayne and an overzealous DA fingered the wrong man.

Such is why the last two people to hold the office of state medical examiner—Dr. Emily Ward and Dr. Lloyd White—were run out of town when they tried to implement reform. In fact, everyone who has held that office has encountered resistance, going back even before Dr. Hayne started practicing in Mississippi. The very first state medical examiner in Mississippi was a woman named Faye Spruill, who took office in 1979. Like those who would take office after her, Spruill encountered problems with the coroners and DAs, as well as with the legislature, which wouldn't give her office enough money to keep up with the pace of autopsies that needed to be completed.

Spruill is advanced in years now, and when I spoke with her last year she couldn't remember much at all about her time in office. But Dr. White, who would hold the position several years later, told me he sat in on state legislature hearings in the early 1980s in which Spruill threatened to resign if her office wasn't given a proper budget. White says that after the hearing, a state senator approached him and expressed his outrage that a woman would show up at a hearing and try to demand that lawmakers give her more money. According to White, the senator said, "Well I'll tell you what we did, we just cut her tits off. She won't be coming here trying to tell us what to do anymore." Sure enough, Spruill resigned from the office soon after.

Go back and peruse area newspaper articles from the 1990s during the tenures of White and Ward, and you'll find repeated references to the tumultuous history of the office. Mississippi's coroners and DAs have always wanted a compliant, pliable medical examiner to do autopsies for them, and when the state medical examiner has been an obstacle to that arrangement, they've rebelled, culminating in perhaps the most absurd example, Dr. Michael West and his fellow coroners' childish petition calling for the resignation of the state's last official medical examiner, Dr. Emily Ward. One of their chief complaints was that Dr. Ward would sometimes testify for defendants when her autopsy results differed from what a prosecutor wanted to hear. West also called Ward "incompetent," which given what we now know about Dr. West, is laughable.

Louisa Dixon's recommendations are excellent, and would go a long way toward adding some accountability to the autopsy system there (if the state wanted to be a pioneer, its lawmakers might even look to some of the suggestions reason contributor Roger Koppl has made).

But more fundamentally, the state needs to rein in its coroners and prosecutors, who over the years have accumulated way too much power. Dr. Hayne and Dr. West are mere symptoms. There were other pushover "experts" before them, and unless the state's criminal justice system becomes more transparent and accountable, there will be others after them.

Vaccine Court Decision Imperils Children's Health

Infectious disease researcher Paul Offit decries in a New York Times op/ed the recent award of compensation to the family of Hannah Poling by the Federal Court of Claims under the the National Vaccine Injury Compensation Program. Terry and Jon Poling asserted that Hannah became autistic after receiving nine childhood immunizations. Naturally, anti-vaccination autism campaigners hailed this decision. Offit points out:

In 2000, when Hannah was 19 months old, she received five shots against nine infectious diseases. Over the next several months, she developed symptoms of autism. Subsequent tests showed that Hannah has a mitochondrial disorder — her cells are unable to adequately process nutrients — and this contributed to her autism. An expert who testified in court on the Polings’ behalf claimed that the five vaccines had stressed Hannah’s already weakened cells, worsening her disorder. Without holding a hearing on the matter, the court conceded that the claim was biologically plausible.

On its face, the expert’s opinion makes no sense. Even five vaccines at once would not place an unusually high burden on a child’s immune system. The Institute of Medicine has found that multiple vaccines do not overwhelm or weaken the immune system. And although natural infections can worsen symptoms of chronic neurological illnesses in children, vaccines are not known to.

“There is no evidence that children with mitochondrial enzyme deficiencies are worsened by vaccines,” Salvatore DiMauro, a professor of neurology at Columbia who is the nation’s leading expert on the disorder, told me. Indeed, children like Hannah Poling who are especially susceptible to infections are most likely to benefit from vaccines...

The vaccine court should return to the preponderance-of-evidence standard. But much damage has already been done by the Poling decision. Parents may now worry about vaccinating their children, more autism research money may be steered toward vaccines and away from more promising leads and, if similar awards are made in state courts, pharmaceutical companies may abandon vaccines for American children. In the name of trying to help children with autism, the Poling decision has only hurt them.

A 2007 study found that childhood vaccinations have reduced hospitalization rates by 90 percent or more over the last century. As the New York Times reported:

Death rates for 13 diseases that can be prevented by childhood vaccinations are at all-time lows in the United States, according to a study released yesterday.

The study, by the Centers for Disease Control and Prevention in Atlanta, and published in The Journal of the American Medical Association, is the first time that the agency has searched historical records going back to 1900 to compile estimates of cases, hospitalizations and deaths for all the diseases children are routinely vaccinated against.

In nine of the diseases, rates of death or hospitalization declined more than 90 percent since vaccines against them were approved, and in the cases of smallpox, diphtheria and polio, by 100 percent.

In only four diseases — hepatitis A and B, invasive pneumococcal diseases and varicella (the cause of chickenpox and shingles) — did deaths and hospitalizations fall less than 90 percent. Those vaccines are all relatively new — the one for chickenpox, for example, was adopted nationally only in 1995. Also, some diseases like hepatitis typically strike adults, who are less likely to be immunized.

Whole Offit op/ed here.

Some reason reporting on the autism/vaccine myth here.

Disclosure: I was vaccinated against hepatitis A and B, tetanus and Japanese encephalitis in December.

Because it Worked So Well Last Time

Bloomberg:

Treasury Secretary Henry Paulson proposed the broadest overhaul of U.S. financial regulation since the Great Depression, saying the system for overseeing American capitalism needs to be better prepared for "inevitable market disruptions."

"Our major financial services companies are becoming larger, more complex and more difficult to manage," Paulson said in remarks at the Treasury in Washington. "The real threat to market stability is below ground, at the root level where the health of financial firms is intertwined." [...]

The Treasury recommended that the Fed share authority over banks, securities firms and insurers in monitoring corporate disclosures, writing rules and stepping in to prevent economic crisis.

"To do its job as the market stability regulator, the Fed would have to be able to evaluate the capital, liquidity and margin practices across the financial system and their potential impact on overall financial stability," Paulson said. [...]

"The Fed would have the authority to go wherever in the system it thinks it needs to go for a deeper look to preserve stability," Paulson said.

"The Fed will collect information from commercial banks, investment banks, insurance companies, hedge funds, commodity- pool operators,'' he added. "Rather than focus on the health of the particular organization, it will focus on whether a firm's or industry's practices threaten overall financial stability."

A good idea? I rather doubt it. Aside from the merits (and lack thereof) of this particular case, the American track record of ambulance-chasing bureaucratic and regulatory overhauls is not a very pretty sight. See, for example, Brian Doherty on Sarbanes-Oxely in January 2006, James Bovard on post-9/11 airline security in February 2004, and Julian Sanchez on the PATRIOT Act in July 2005. We will be hearing a lot in the coming months about how "complexity" needs to reined in by sober-minded government managers.

In an unrelated story, Housing and Urban Development Secretary Alphonso Jackson is reportedly stepping down amid criminal allegations that he awarded federal contracts to his pals.

Are Health Insurance Mandates Unconstitutional?

This is the intriguing question asked in a Christian Science Monitor op/ed by Loyola Law School professor Karl Manheim and Consumer Watchdog chairman Jamie Court. To wit:

The federal government does not ordinarily require Americans to purchase particular goods or services from private parties.

The closest we come is when government imposes a condition on the grant of discretionary benefit or permit. For instance, in most states, you must have auto insurance to drive a car, or you are required to install fire sprinklers when building a new house. But in such cases, the "mandate" is discretionary – you don't have to drive a car or build a house. Nor do you have a constitutional right to do so....

A health insurance mandate is essentially a forced contract, in which one party (the insurer) gets to set the terms. You must buy their policies, even if you prefer to self-insure, rely on alternative medicine, or obtain treatment outside the system. In constitutional terms, such mandates may constitute a violation of due process or a "taking of property."

Requiring Person A to give money to Person B is a "taking," whether or not something of value is given in return. Let's say the state required every resident to buy milk, on the rationale that milk consumption benefits public health. That's either a constitutionally forbidden taking (of money) or a violation of due process.

These constitutional rights aren't absolute. Given a compelling enough reason, government can interfere with your person and property. It can require, for instance, that your child be vaccinated before attending public school. But there is usually an opt-out, such as private or home schooling.

We are not aware of any opt-outs for most people in the mandatory health insurance plans being discussed.

Manheim and Court suggest that a tax-financed single payer government health insurance scheme would meet constitutional muster.

Whole op/ed here.

My arguments (admittedly without any constitutional analysis) for mandatory private health insurance here.

I find it a bit ironic that an op/ed on health insurance appears in the Christian Science Monitor.

Lemming of the BDA

More horror stories from the NHS dental service, from the Times of London:

Health service dentists have been forced to go on holiday or spend time on the golf course this month despite millions of patients being denied dental care.

Many have fulfilled their annual work quotas allotted by the National Health Service and have been turning patients away because they are not paid to do extra work. This is despite the fact that more than 7m people in Britain are unable to find an NHS dentist.

Patients have been told they must either pay privately or return in April when the new work year begins. People suffering from toothache have been advised to go to hospital.

Or they could just get the pliers out.  

Full story
.

Wright Speaks, Democrats Yawn

From week to week the Gallup and Rasmussen tracking polls can be lifesavers for that wholesome mass of Americans who don't want Barack Obama to be president. When the Jeremiah Wright videos were god-DAMN-ing their way across TV screens, the polls showed a big Obama dip, leading head Hillary Clinton saboteur (to her campaign, mostly) Mark Penn to gloating:

A look at the polls shows that Sen. Obama’s lead nationally with Democrats has been evaporating. The Gallup daily tracking poll shows Hillary leading Sen. Obama among Democrats by 7 points, and the latest Zogby/Reuters poll has Sen. Obama’s lead down from 14 points last month to just 3 points now. This suggests a strong swing in momentum in the race to Hillary since the Texas and Ohio primaries earlier this month.

That was a week and a half ago. This weekend's polls show Obama driving out front again. Gallup shows Obama leading Clinton 52 to 42 percent. Rasmussen shows Obama up 47 to 42 percent, and his positive-negative numbers (which Rasmussen has always clocked higher than most pollsters, and which had ducked into negative territory), are narrowly positive. Clinton's are heavily negative. Obama's rebound against John McCain isn't happening so quickly, but he's doing better than Clinton once again. Did the Wright story have no effect?

Well, it did—as much as it could have without some cultural underpinnings. Stanley Kurtz stumbled across something profound here.

Conservatives may think the revelations of Obama’s formative radicalism and his relationship with Wright are sure to sink him. While they may ultimately have that effect, the outcome is by no means certain. Contrary to liberal denials, Obama has been damaged by the Wright affair. Yet it’s also true that association with leftist and academic radicalism is no longer disturbing to large segments of the country.

Kurtz allows that "the culture is changing," and he thinks the media is pushing it. I agree, and the scope of that cultural change is what's saving Obama. I've been reading Rick Perlstein's upcoming Nixonland this week, and it makes sense to me why Obama's radical black connection isn't hurting him like the Victor Davis Hansons or Mark Steyns would expect. People just aren't that afraid of black radicalism anymore. Forty years ago white voters were literally, keep-your-gun-next-to-your-bed worried about an armed black revolt. When Stokley Carmichael would rant about what was coming to the white man, their minds would light up with images of Watts, Newark, Harlem. Perlstein quotes one hapless Iowa Democrat, who lost his seat in 1966, talking about a town hall meeting where constituents informed him that vicious blacks were going to attack Des Moines when they arrived from Chicago "on motorcyles."

I'm sure the Wright story damaged Obama with some white ethnic voters. But ripped out of a context where the sermons could have actually threatened whites, as opposed to making them feel uncomfortable, they were never going to sink him if he handled them well. And he did handle them well.

Chesapeake Police Chief Retires

The police chief in Chesapeake, Virginia is retiring. Probably for the better, given this bit from the article:

He helped create six community advisory groups but stopped short of citizen oversight, which would have allowed citizens to investigate policy and complaints.

That did not sit well with the Chesapeake chapter of the National Association for the Advancement of Colored People. March Cromuel Jr., president of the chapter at the time, said he believed oversight would build community trust.

"I would like to see cameras in all police cars and a citizen review board before he leaves," Cromuel said.

Justice opposed it, and still does. "At any time, a complaint can be lodged against us that can bring in the state police, the FBI. The department is open. We don't operate in any clandestine fashion now. We can't have citizen groups running a police department," he said.

Never mind that the police department actually works for the citizens. So no cameras in patrol cars, and no citizen review boards.

I'd beg to differ about Chesapeake PD not operating in a "clandestine fashion." A few weeks ago, based on a tip from some people I spoke with during my visit to Chesapeake, I filed an open records request asking for any internal investigations of "wrong door" raids conducted by Chesapeake PD. I also asked for any complaints filed against the late Det. Jarrod Shivers. My interest is to see if there's a pattern of the department's narcotics officers taking shortcuts, and conducting forced entries raids without doing the appropriate corroborating investigation, as certainly seems to be the case in the raid on Ryan Frederick's home.

I was told that all personnel matters at the department are confidential. All complaints against individual officers are confidential, all internal investigation into officers misconduct are confidential, and any records of internal investigation into mistaken or botched narcotics raids are confidential. It's all confidential. Not only that, but that confidentiality follows an officer to the grave. And it applies even in cases like Ryan Frederick's, where the suspect is facing life in prison or the death penalty, and where the case boils down to weighing the suspect's credibility against that of the police officers who raided his home. All confidential.

It's probably good for Chesapeake that this guy is retiring. And even better that the city manager has ordered a top-down review of police department procedures.

Summary of the Frederick/Shivers case here.