The Volokh Conspiracy

In response to my first blog entry here, some readers asked how the rates of institutionalization in the United States compare to Western Europe. There is no doubt that the graph of institutionalization over the twentieth century immediately raises the question whether Western or industrialized countries with currently low prison populations use their mental health systems as an alternative form of social control.

One reader, for instance, notes: “Our high rate of penal imprisonment is widely-cited, but your study makes me wonder whether that’s a fair picture. How do US rates of total institutionalization compare to the world? I suspect (given how we’ve dismantled mental health infrastructure), that we’re somewhat closer to the rest of the industrialized world.”

I was curious about that too and did a bit of research – and plan on doing a lot more. I discuss it in the conclusion of the study here.

My preliminary findings are interesting and suggest that these suspicions are not entirely off the mark, though not exactly right either.

Among countries in the European Union, the highest rate regarding the number of beds in psychiatric hospitals per 100,000 inhabitants in 2000 was in the Netherlands, which had a rate of 188.5. Other highs were posted in Belgium (161.6), Switzerland (119.9), France (113), and Finland (102.9). The average for the 25 European Union countries in 2000 was 90.1, down from 115.5 in 1993.

These figures are, indeed, higher than the corresponding prison rates for the same countries, which stood in 2006 at 128 per 100,000 persons in the Netherlands, 91 in Belgium, 83 in Switzerland, 85 in France, and 75 in Finland. But they certainly do not come close to the rates of aggregated institutionalization in the United States.

These are preliminary findings, and I obviously need to conduct more research on these comparative figures. There is one country, though, that may offer some competition to the United States – strangely reminiscent of the Cold War era. The Russian Federation has a prison rate of 611 per 100,000, which, when combined with mental health institutionalization, may begin to get close to our institutionalization rates.

On a related issue, there is evidence that in the past some European countries used institutions other than the prison more than they do now to control those deemed deviant—in other words, that the trends identified in the United States may bear some resemblance to trends in Europe.

The Republic of Ireland, for example, had much higher rates of institutionalization in a wide range of facilities, including psychiatric institutions and homes for unmarried mothers, at mid-century—in fact, eight times higher—than at the turn of the twentieth century. Eoin O’Sullivan and Ian O’Donnell have an interesting new paper on that in Punishment & Society. It’s called “Coercive confinement in the Republic of Ireland: The waning of a culture of control,” and it’s in Volume 9(1) at 27-48 (2006).

In Belgium, the number of psychiatric hospital beds per 100,000 inhabitants fell from 275 in 1970 to 162 in 2000; in France, it fell from 242 in 1980 to 111 in 2000; in the UK, from 250 in 1985 to 100 in 1998; and in Switzerland, from 300 in 1970 to 120 in 2000. Again, this requires more research, but there may be a parallel here in terms of the rise and fall of mental health rates.

So overall, important differences, but some parallels. Apart from Russia, though, the numbers should not be much comfort for the United States.

Was the tragic incident at Virginia Tech the result of a failure of Virginia’s mental health system? Slate recently posted Seung-Hui Cho’s commitment papers and they are revealing: the magistrate who heard Cho’s case determined that he was “an imminent danger to himself as a result of mental illness,” but determined that there were “alternatives to involuntary hospitalization.”

After the shooting, Sally Satel at AEI argued that Virginia needs to reexamine its involuntary treatment laws and adopt a lower threshold for commitment, more in line with states like Arkansas and Hawai’i. Others, like Brian Jenkins at RAND, contend that the tragedy probably could not have been prevented and might not have a solution.

It’s impossible to make sense of the debate, though, without understanding the extent to which we’ve dismantled our mental health system in this country. Brick-by-brick, cell-by-cell, we deconstructed what was once a massive mental hospital complex and built in its place a huge prison.

The sheer magnitude of transformation is absolutely remarkable. It is visually shocking — especially given the exponential rise in incarceration in this country in the past thirty years. The following figure gives a snapshot. It shows the aggregate rate of institutionalization in the United States for the period 1934 to 2001, with disaggregated trend lines for mental hospitalization on the one hand and state and federal prisons on the other.

FIGURE: Rates of Institutionalization for Residents in All Mental Institutions and State and Federal Prisons in the United States (per 100,000 adults)

Although our current rates of imprisonment in state and federal prisons are extraordinarily high, the level of total institutionalization (in prisons and asylums) was higher during the 1940s and 50s.

We all know that prison populations skyrocketed nationwide beginning in 1970, rising from under 200,000 persons to more than 1.3 million in 2002. That year, in 2002, our prison rate exceeded for the first time the 600 mark (600 inmates per 100,000 adults) — by far the highest rate and raw number of incarcerated persons in the world.

But what is far less well known is that the United States as a whole institutionalized people at even higher rates in the 1940s and ’50s. If you look at rates of persons in mental hospitals and prisons per 100,000 adults, in the period between 1935 and 1963 the United States consistently institutionalized at rates above 700 per 100,000 adults — with highs of 778 in 1939 and 786 in 1955.

In a recent study, I collected state-level data on mental hospitalization for the twentieth century, and my findings are staggering. For one thing, there was a wide range of institutions. In addition to state and county public mental hospitals, there were public and private institutions for “mental defectives and epileptics” and for “the mentally retarded,” psychiatric wards in general and VA hospitals, “psychopathic hospitals,” city hospitals, and private mental hospitals.

There was also an entire parole system for persons institutionalized in mental hospitals and the parole numbers were non-negligible: on December 31, 1933, for example, 46,071 mental patients were on parole or otherwise absent, representing almost 10 percent of the total institutionalized patient population of 435,571.

One of the most perplexing things I discovered is that there is a strong statistical relationship between aggregated institutionalization (in asylums and prisons) and serious violent crime. Using state-level panel regressions spanning the entire period from 1934 to 2001, including all 50 states, and controlling for economic, demographic, and criminal justice variables, I found a large, robust, and statistically significant relationship between aggregated institutionalization and homicide rates. The findings are not sensitive to weighting by population and hold under a number of permutations, including when I aggregate jail populations as well.

I say “perplexing” because the populations in asylums and prisons were very different: residents in mental hospitals were more white, female, and older than our current prison populations. In 1966, for example, there were 560,548 first-time admissions to mental hospitals, of which 310,810 (55.4%) were male and 249,738 (or 44.6%) were female. In contrast, new admittees to state and federal prison were consistently 95% male throughout the twentieth century. There were also sharp differences in racial and age compositions.

Because of these sharply different populations, it’s not clear yet what to conclude from my study — and it’s far too early to draw public policy implications. But a few things are clear.

The first is that we should not be surprised that there are so many persons with mental illness behind bars today. We deal with perceived deviance differently than we did in the past: instead of getting treatment, persons who are viewed as deviant or dangerous are going to jail rather than mental hospitals.

The second is that we should not be surprised that our mental health systems are in crisis today. The infrastructure is simply not there. This is evident in states across the country where persons with mental illness are being housed in jails rather than treatment facilities.

What is also clear is that Seung-Hui Cho probably would have been institutionalized in the 1940s or 50s and, as a result, the Virginia Tech tragedy may not have happened.
According to the New York Times, the director of the campus counseling services at Virginia Tech said of Cho: “The mental health professionals were there to assess his safety, not particularly the safety of others.” It’s unlikely we would have taken that attitude fifty years ago.

But the problem is, we would also be institutionalizing another huge swath of humanity — and it’s simply not clear how many of those other lives we would be irreparably harming in the process.

The classic texts of social theory from the 1960s — Erving Goffman on Asylums, Gerald Grob on The State and the Mentally Ill, David Rothman on The Discovery of the Asylum, Michel Foucault on Madness and Civilization, Thomas Szasz on The Myth of Mental Illness, Michael Ignatieff on A Just Measure of Pain, and many others — describe in chilling detail how closely mental institutions began to approximate the prison and the “total institution.” These critical writings should remind us of the other price that society pays when we commit and institutionalize each other.

My intimate homicide data does not conclusively explain why the criminal justice system in the late 1800s and early 1900s punished intimate murders committed by men but failed to prevent them from occurring. However, my University of Colorado Law Review article (see 77 Univ. Colo. L. Rev. 101 (2006)) offers several hypotheses: “First, the decline of neighborly and family intervention against intimate violence thrust the problem upon a police force that was too corrupt and brutal to handle it effectively. Second, caught in a cycle of violence and dependence, some victims impeded solutions by refusing to seek or accept help from the police. Third, whereas Victorian social values . . . generally condemned a man’s brutality against his girlfriend, wife, or family, the same countercurrents that produced intimate assaults frustrated efforts to curb them.”

Nineteenth-century police officers were widely criticized in the press for being partisan and unprofessional and for using excessive force against criminal suspects. Some of them beat or even killed their own wives, as well: “In 1891, for example, on-duty patrolman William Smith inflicted a fatal head injury on his wife with his truncheon after she interrupted him at the [New York] saloon where he drank and caroused with another woman. Police officers’ notorious readiness to lie, cheat, and assault may have . . . deterred victims from seeking their assistance.”

The arrest and prosecution of batterers was hampered by the unwillingness of victims to report abuse and by victims’ tendency to recant their allegations before or during the criminal trial. As I note in my article:

Two [other] factors seem to have led to non-reporting and victim recantation. First, as the Borgstrom case [see 70 N.E. 780 (N.Y. 1904)] demonstrates, a visit from the police might cause an abuser to become even more violent. A typical New York City woman was afraid to have her husband arrested for beating her ‘as he would murder her if he ever got out [of prison].’ Second many victims of intimate abuse worried that their family’s livelihood would be destroyed by a criminal case. Battered wives, in particular, might face terrible hardship if the men upon whom they depended financially were imprisoned, fired from their jobs, or shunned by business associates for being wife beaters. The spouse of New York City police officer William Smith, who clubbed her with his truncheon, attempted to keep the cause of her ultimately fatal injuries a secret. As her brother testified, ‘she was shielding [her husband], she was afraid he would be broken off the police if she reported his attack on her.’

Some police officers did respond to reports of intimate violence, but their efforts often “met other forms of resistance, besides victim recantation. Some were shot or faced life-threatening assaults from wife-beaters and their cronies.” In New York City in 1891, for example, Officer Herrlich was assaulted by an allegedly abusive husband’s friends, who pelted the officer “with stones and huge pieces of ice” when he responded to a call for help. As I contend in my article:

Such incidents confirm the resilience of beliefs in the wife-beating prerogative. However, I am less convinced than other feminist scholars that the white male establishment simply transformed its rhetoric to hide a firm commitment to the brutal subjugation of women. Rather, in my view, the ice-throwing incident described above [and the intimate murder cases that I analyze in my article] reveal a deep cultural rift over the issue of intimate violence . . . Punishing murderers may have reinforced the status regime ensuring that the white male establishment did not undermine its claims to legitimacy by shedding too much intimate blood.

Nevertheless, resilient beliefs in the wife-beating prerogative were not synonymous with a conspiracy against women. In my view, it is more plausible that, instead of being controlled by a hegemonic gender ideology, late nineteenth-century and early twentieth-century America was divided over whether violence had a legitimate place in family government. The press and the jury box demonstrated little empathy for males who killed their intimates, and policemen like Officer Herrlich even attempted to quell the battering before it escalated to homicide. In spite of such efforts, some American men continued to believe that ‘a few thumps once in a while can do no harm.’

. . . [T]he same values that promoted protectiveness toward women contained loose threads that often unraveled in actual intimate relationships. Frustrated by their inability to achieve success in the public sphere, husbands, fathers and brothers may have stuck angrily at those who loved and lived with them. Told to be sober, restrained, and industrious, some [Victorian] men rebelled and were none of these things. As ideals of masculine physicality began to supplant Victorianism around the turn of the century, certain aspects of the new ideal seemed to resonate with the violent conquest of women. Even though public figures like [Theodore] Roosevelt denounced child-murder and wife-beating and placed the American mother on a pedestal, other voices — including those of eminent scientists — celebrated men’s primitive sexual instincts as a counterweight to the ‘unnatural’ behavior of the woman suffragists. This competing strand of early twentieth-century culture suggested that, if females failed to be modest, refined, and maternal, all bets were off . . . [w]oman must then bear the brunt of unfettered masculine violence.’ In increasingly anonymous urban environments that were not policed effectively, such tensions and countercurrents killed.

My article ends with cases from the Progressive Era. I am now starting a book project that would extend my research beyond 1920 to discover how and why sympathy for women accused of murdering male intimates waned, so that the efforts of defense attorneys to introduce battered woman’s syndrome evidence in the late twentieth century were initially met with hostility from the bench and the legal academy. My current hypothesis goes something like this: When women gained the vote and began to work side-by-side with men in the public sphere, the paternalism that characterized public responses to the homicide cases of the late 1800s and early 1900s diminished.

In writing this book, I plan to expand the geographical scope of my research to include other American states, such as California, Massachusetts, and Illinois. I also would like to include data from other countries. For example, I am investigating the possibility of using secondary scholarship and archival material from Australia to assess whether another frontier society approached the problem of lethal intimate violence in a comparable way to Colorado. Because my research is ongoing, I would be especially gratified to receive feedback on the material I have posted here.

My data supports the conclusion that late nineteenth- and early twentieth-century intimate homicide cases in New York and Colorado produced remarkably similar results: “In both states, men who killed intimates risked a murder conviction, while female defendants tended to be acquitted or found guilty of lesser crimes by juries sympathetic to their stories of physical or emotional abuse.” However, New York and Colorado did not take the same approach to punishing male prisoners who had been convicted of intimate murder. The cultural and legal reasons for this divergence are worth exploring. To share my thoughts on the subject, I’ve posted another excerpt from my article, “Intimate Homicide: Gender and Crime Control, 1880-1920,” 77 Univ. Colo. L. Rev. 101 (2006):

. . . New York and Colorado differed dramatically in social and cultural terms in the late nineteenth century, and those differences produced divergent sentencing patterns. Whereas New York sentenced a relatively large number of intimate killers to death as a percentage of its total executions, Colorado did not. Instead, men who killed their paramours, spouses, and relatives in this western state most often received life sentences.

[My] article suggests that the disparity in execution rates for intimate murder in the two states owed much to the slow westward spread of norms of civilized masculinity and distaste for capital punishment. At the end of the nineteenth century and the beginning of the twentieth, Colorado’s eagerness to shed its frontier image helped fuel revulsion toward male defendants who killed their wives, lovers, or other family members. Hence, Colorado juries did not hesitate to convict men of intimate murder. But ideals of male civility were newer and less deeply rooted in this western state than in the northeast. Moreover, by the time Colorado experienced a surge of opposition to the death penalty, New Yorkers once again embraced it with fervor. Thus, in contrast to their east-coast counterparts, Coloradoans proved reluctant to use state-sponsored execution — a form of punishment they increasingly questioned — to exact retribution and deterrence in intimate homicide cases.

Plagued by adult crime, juvenile gangs, and inadequate law enforcement, Denver was a rough and dirty city in the late nineteenth century . . . One might expect that, in this setting, the state would have ordered men convicted of killing their wives, girlfriends, or relatives to swing from the gallows. Yet [between 1880 and 1920] not a single Denver prisoner was legally hanged for intimate homicide, although the state executed eleven people convicted of crimes in the city. Indeed, in the entire state of Colorado, only about eleven percent of all legal executions (four of thirty-seven) involved defendants found guilty of intimate killings. All men, save one, who were convicted of first-degree murder in Denver for killing their lovers, wives, or relatives received life sentences, many of which were commuted to shorter prison terms.

By contrast, New York executed at least seventy-six intimate murderers between 1880 and 1920 — about twenty-five percent of its total executions. And capital punishment in New York County during the same period claimed ninety-one prisoners, more than one-third of whom had killed their paramours, spouses, or other family members . . .

What accounts for the disparity between the New York and Colorado execution rates in intimate murder cases? The most legalistic answer simply looks to the statutes: First-degree murder carried a mandatory death sentence in New York, whereas in Colorado, for most of the period encompassed by [my research], it did not. However, going beyond the statutory explanation, it is possible to identify significant cultural differences between the two states.

As a general matter, the west lagged behind the east in the reception of social and cultural change. The separate spheres ideology — which accorded women the duty of keeping house and inculcating the next generation with religious values, while their husbands sallied forth into the business sphere — remained impracticable on the frontier through the mid-nineteenth century. Pioneer women had to perform a wide range of tasks including physical labor, in order for the family to survive. Although participation in breadwinning may have given frontier wives greater strength, the lack of distinct sex roles was paired with the survival of patriarchal norms that tacitly encouraged men’s use of violence to obtain female submission.

. . . The lack of established structures in the west also gave patriarchy lingering power and legitimacy that it lacked in the northeast. While public law enforcement developed later in New York than is often assumed, western legal institutions were even more ad hoc . . . There was no penitentiary in the Colorado territory until 1871, and as late as 1878, Denver had only one police officer for every 4,166 citizens, compared to New York City’s ratio of one patrolman for every 400 citizens . . . In the absence of a sufficiently large and well-trained police force, the authority of the male household head over his family retained political as well as social importance.

Anti-capital punishment agitation also followed a different chronology in Colorado than it did in New York . . . Colorado death-penalty opponents increased in strength and numbers in the 1890s, after New Yorkers had largely abandoned their agitation.

. . . Coloradoans’ opposition to the death penalty in the late 1800s, combined with the relative youth of social values condemning extreme violence toward frontier women, may account for the fact that the public response to men who killed their intimates was not quite as harsh in Colorado as it was on the east cost. In the late nineteenth century, several eastern states [including New York, considered using] the whipping post to deter wife-beating. The campaign for the corporal punishment of wife-beaters embodied many aspects of the [tough, Wild West image that Theodore Roosevelt and other east-coasters sought to convey at the turn of the century as an antidote to Victorianism’s staid respectability]. It represented a new muscular form of masculinity in which men who failed to protect their women were [to be] beaten, not merely jailed or censured.

. . . Although the whipping post campaign had a few adherents in the western United States, the state of Colorado did not participate as a matter of official law or policy . . . Colorado’s reluctance to use either the whip or the gallows to control intimate violence may have stemmed from its insecure position as a patriarchal, frontier society that sought to earn a more polished reputation [by building theatres, museums, libraries, and churches; expressing disapproval of lynching; and hiding state-sponsored capital punishment behind the walls of the penitentiary]. Until 1870, the state struggled with a gender imbalance that left women outnumbered six to one in Denver . . . When more women started to arrive, Denver faced the delicate task of convincing them that they were coming to a religious, female-friendly community where it would be safe and comfortable to reside. With regard to intimate murders, which occurred despite the civilizing ethos urged by the church and the municipal government, legal authorities weighed two options: they could bow to anti-death penalty forces (thus risking the appearance of being soft on intimate murder), or they could hang the culprits (potentially turning the spotlight on the city’s gendered tensions and dangers). They chose the former . . .

The provocation doctrine did not give men carte blanche to kill intimate partners who were unfaithful or who sought to leave the relationship. It did not even offer a successful means of mitigating a murder charge to manslaughter for many male defendants. Today’s post provides an excerpt from, “Intimate Homicide: Gender and Crime Control, 1880-1920,” 77 Univ. Colo. L. Rev. 101 (2006), that captures my argument about the comparatively stern treatment of men charged with murdering female intimates in the late 1800s and early 1900s.

Whereas women charged with murder were treated leniently, men risked not only receiving a guilty verdict, but also being sentenced to substantial prison terms or even executed. The common-law provocation doctrine mitigated the punishment of male defendants whose deadly behavior fell within its narrow parameters, but as both a doctrinal and a cultural matter, it offered a smaller safety net than is often assumed . . .

The condemnation of men’s homicidal attacks on their families or lovers [in the late nineteenth and early twentieth centuries] has no parallel in the current American death-penalty regime. Indeed, whereas the miniscule number of women executed between 1880 and 1920 fits into a broader historical pattern of leniency toward female criminals, the willingness of courts and juries in the late 1800s and early 1900s to convict men of first-degree murder for slaying intimates contrasts starkly with the small fraction of death-sentenced men who committed intimate homicides in the late twentieth century.

Moreover, the pattern of holding men accountable for intimate murder crossed geographical and cultural boundaries. It is evident in the eastern and the western United States from 1880 to 1920. Like their New York City counterparts, Denver prosecutors typically pressed severe charges against men who killed intimates during this time period. Out of my sample of forty-eight cases involving male defendants, the Denver District Attorney’s office charged forty-six men with some kind of murder . . . About sixty percent of [these] male murder defendants in my Denver sample were convicted and punished for committing murder in either the first or the second degree. Voluntary manslaughter verdicts constituted a comparatively rare outcome for men in the Denver cases, whereas first-degree murder convictions were the most common type of case disposition.

. . . Whereas other feminist scholars have criticized the heat-of-passion doctrine for treating intimate killings less severely than a fatal assault by a stranger, my research on the west and the northeast offers little reason to think that juries in those regions tilted the facts in favor of male defendants charged with killing women, or that courts construed provocation categories broadly to overturn men’s convictions. In contrast to some southern states that ‘expanded the notion of provocation to cover a broad range of sexual effrontery’ [quoting Martha Umphrey], Colorado and New York policed male violence by refusing to depart from common-law categories.

. . . Trial judges in Colorado and New York often refused to instruct on provocation because the evidence showed cooling time or other factors precluding the defense as a matter of law. Appellate courts usually affirmed murder convictions in such cases, commenting on the poor fit between the facts and the elements of voluntary manslaughter.

Whereas reformist jurisdictions in the late twentieth century jettisoned provocation categories and cooling-time limitations, courts and juries in the 1800s and early 1900s were willing to execute male defendants who claimed that simmering jealousy, anger, or fear led them to commit homicide. This severity was not gender neutral. Rather, verdicts exonerating women due to their victims’ past violence or romantic inconstancy contrasted with the lack of empathy for similar stories when a man was on trial. Moreover, in distinction to capital sentencing in the post-Furman era, the pain arising from romantic or family strife was generally not considered a mitigating factor that precluded the death penalty in men’s cases.

Unlike modern jurisdictions, including New York, that use the EED [extreme emotional disturbance] doctrine, judges in the late nineteenth and early twentieth centuries refused to recognize an attempt by a wife or girlfriend to leave a man as legally adequate provocation. For example, in People v. Youngs [45 N.E. 460 (N.Y. 1896)], the murder victim separated from her husband and threatened to seek a divorce when she learned that he had given her ‘a private disease.’ He then went to a neighboring house where she and the children were staying and fatally shot her. Affirming the capital conviction, the New York Court of Appeals noted in dicta that the facts showed ‘the absence of all . . . provocation . . . for the commission of the crime.’

. . . Legal doctrine and gender norms [also] negated ‘simmering emotions’ defenses raised by men in a variety of factual scenarios, including infidelity. Mere suspicion of adultery — especially suspicion that grew over a long period of time — was rarely recognized as an adequate basis for a heat-of-passion argument when a man killed his spouse. Thus, in both New York and Colorado, male defendants enraged by suspected infidelity often raised insanity, alibi, or accidental death defenses. Those who did request provocation instructions were frequently thwarted by adverse rulings from the bench.

For example, the Colorado Supreme Court affirmed a refusal to instruct on provocation where the defendant had ‘suspicion, or even knowledge of prior acts of adultery,’ but had not witnessed his estranged wife having sex with another man [quoting Garcia v. People, 171 P. 754, 755 (Colo. 1918)]. New York courts proved almost as rigorous. The case law suggests that a homicide following immediately upon an oral report of infidelity might receive mitigation in New York, but that any lapse of time prevented the defendant from raising a heat-of-passion defense.

As I demonstrate in my University of Colorado Law Review article, “Men who stalked their victims often sought to claim temporary insanity [or alcoholic insanity] to make an end run around the cooling-time doctrine. Yet unlike [women], male defendants could not successfully equate rage with temporary insanity.” Nor were they exculpated when defense attorneys “put on expert witnesses to describe a condition known as delirium tremens, in which the suffer manifests trembling and delusions due to prolonged alcohol abuse.”

In addition to presenting empirical data on case outcomes, my article links the harsh attitude of jurors and other legal actors toward men who perpetrated intimate murders with a wide array of cultural forms, including judicial opinions, family conduct manuals, and the public image-creation of political leaders like Theodore Roosevelt. All of these influences associated manliness with protection of the female sex:

In the mid-nineteenth century, influential social values, especially among the middle class, associated manliness with sobriety, industry, and control over the passions. These ideals of male self-restraint came under attack toward the end of the nineteenth century, when American men increasingly were urged to embrace their animal instincts in sports, sex, and battle. Nevertheless, at least up to 1920, the model white man remained protective of women and displayed reverence for their presumptively greater moral purity. He used his aggressive impulses to conquer beasts, other races, and even white male rivals, but he did not use violence against females.

Men who transgressed these prescriptive ideals did not make sympathetic victims when their violent behavior provoked women into lethal responses, nor did they make sympathetic defendants, when their efforts to exert power and control resulted in the violent death of their female intimates.

This post continues the description of my intimate homicide research, which I recently published in “Intimate Homicide: Gender and Crime Control, 1880-1920,” 77 Univ. Colo. L. Rev. 101 (2006) and “Public Responses to Intimate Violence: A Glance at the Past,” 121 Public Health Reports 460 (2006). Today, I’ll focus on the comparatively lenient treatment that the criminal justice system, and particularly juries, accorded women charged with killing their intimates in the late nineteenth and early twentieth centuries. As I explain in my University of Colorado article, my work “goes beyond a simple explanation of the salient disparities in terms of chivalry or paternalism toward female offenders. Instead, it contends that verdicts in intimate murder cases in the late 1800s and early 1900s not only policed ideals of civilized masculinity [by condemning the male decedent’s brutality toward women], but often tacitly recognized a factor similar to the one emphasized by domestic violence researchers today — past abuse that might lead a woman to kill her loved ones.”

Throughout history, men have committed homicide more often than women have. But women sometimes killed their intimates, and when they did, two outcomes were prevalent: acquittal or conviction for a less serious offense than murder. For example, only one woman in fifteen was convicted of the capital charge of first-degree murder during a fourteen-year period in late nineteenth-century New York City. Eight of the fifteen were acquitted; four pled guilty or were convicted of the lesser offense of manslaughter; one was found guilty of second-degree murder, which did not carry the death penalty; and one died in prison before trial.

My Colorado sources yielded similar data. For instance, in Denver between 1880 and 1920, fourteen out of twenty-seven intimate homicide cases involving female defendants resulted in acquittals; six women were convicted of manslaughter; two cases were nol prossed; and another three resulted either in court-ordered dismissals, the refusal of the grand jury to indict, or the discretionary decision of the prosecutor not to press charges. Only one woman was convicted of second-degree murder, and one was convicted of the first-degree crime. No female defendants were executed in Colorado during the entire forty year period.

As I explain in my public health essay, which provides a succinct summary of the more colorful and detailed Colorado piece:

Juries seem to have based acquittals either on the insanity defense or on a self-defense theory that looked to past abuse, rather than simply focusing on the specific incident during which the homicide occurred. [Thus, in many cases, the assessment of a female defendant’s guilt or innocence depended on an expanded context or time frame around the killing that helped to reveal the causes of her homicidal fear or rage.]

Self-defense theories often succeeded when the homicide victim was an adult man. In New York in 1891, for example, Ella Nelson was exculpated for killing her philandering lover when he threatened her with a pistol. A jury in the same city exonerated Maria Barbieri at her second trial after an appellate court ruled that evidence of her seduction, rape, and abandonment by the deceased were relevant to understanding why she slashed his throat in a saloon. More than a thousand miles away, a Colorado jury acquitted a domestic servant who fatally shot her abusive employer — a man with whom she also had a sexual relationship.

By contrast, the ideal of the nurturing mother made insanity claims the only route to acquittal for women who intentionally killed their children. For instance, in 1890, Wilhelmine Lebkuchner was found not guilty by reason of insanity after she killed her small sons by putting rat poison in their tea. Lebkuchner resumed work as a laundress following her acquittal, rather than being institutionalized.

The degree of moral denunciation directed at the men who allegedly drove these female defendants to kill constitutes the most remarkable aspect of the cases. Even child-murderers often contended that they had been rendered insane by maltreatment at the hands of a husband or male relative. For instance, Lebkuchner alleged that her brother-in-law disowned her after her husband’s death, leaving her destitute and terrified that she would lose custody of her children. At least until 1920, when females gained a constitutional right to vote, the ideal man ‘remained protective of women and displayed reverence for their presumptively greater moral purity.’ A man who beat, raped, or abandoned a woman failed in his duty to protect the so-called weaker sex; his actions thus justified or at least excused the woman’s homicidal response.

Female defendants who defied gender norms by drinking or engaging in illicit sex could expect harsher verdicts than those who played more traditional roles. However, when juries found such deviant women guilty of any criminal homicide, they typically convicted them of milder, non-capital offenses. Female defendants’ testimony about being brutally abused by their alleged victims counterbalanced their violation of Victorian prescriptions for proper feminine behavior. Juries thus spared them from long prison sentences or the death penalty.

The revised narrative presented here suggests the need to rethink some standard assumptions underpinning feminist approaches to the criminal law. However, I do not mean to paint an overly glowing picture of women’s treatment in the past, nor do I seek to minimize the problem of domestic violence or the shortcomings of the state’s response to it. In my University of Colorado Law Review article, I strive to present a nuanced view of a society that treated male defendants rigorously, but often gave abused women more credit for their stories of suffering than juries, police, and other agents of the state have done in more recent times. Yet, I also recognize that such leniency toward women came at a cost, for it was paired with a paternalistic view of their entire sex.
As I conclude in the Colorado piece:

The recognition of long time frames leading to homicide had the positive potential to justify a woman’s choice of violence as a last resort in a relationship that put her life at risk. Nevertheless, the strategy still embodied a subordinating attitude toward women. Exculpating traumas included not only physical blows and death threats, which legitimately might lead to a defensive killing, but also broken engagements and other emotional harms that, in my view, responsible adults must learn to bear. The urge to protect female honor from the dalliances of rakish men may have harmonized with the claims of a husband who killed his adulterous wife; both recognized nineteenth-century concerns with reputation, property, and sexual exclusivity. Yet, the acquittal of women whose anger at romantic rejection reached the boiling point or whose past suffering or even alcoholism allegedly resulted in insanity often went beyond the bounds of traditional exculpating or mitigating doctrines, as they were applied to men.

Tomorrow, I’ll continue my discussion by turning to male defendants’ cases. I welcome questions and comments.

My work on the legal history of public responses to intimate homicide has attracted attention in part, I think, because it taps into present-minded concerns about domestic violence and the gendered politics of the criminal law. Over the next week, I will share with you my research on intimate homicide in the late nineteenth and early twentieth centuries. This research is published in my law review article, “Intimate Homicide: Gender and Crime Control, 1880-1920,” 77 Univ. Colo. L. Rev. 101 (2006), and in my short essay, “Public Responses to Intimate Violence: A Glance at the Past,” 121 Public Health Reports 460 (2006). In the public health essay, I introduce my thesis as follows:

“In 2004, a California jury sentenced Scott Peterson to death for killing his wife and future child. Peterson is an anomaly on death row, which is mostly occupied by men who committed serial murders, killed law enforcement officers, or caused death during other violent crimes, such as armed robbery. Yet, the outcome of his case recalls a nineteenth-century tradition of executing men for murdering their lovers, wives, and other family members. Although no adequate public response to the problem of intimate violence was achieved in the past, the criminal justice system suffered from different flaws and biases in this regard than one might expect.

Lack of attention to non-lethal intimate violence may have been ‘the normal state of affairs’ throughout most of American history. Prior to the 1980s, only the colonial era (especially 1640 to 1680) and the late Victorian era (especially 1870 to 1890) witnessed sustained efforts to curb wife-beating and ‘unnatural severity’ toward children. However, scholars have overstated the level of public apathy toward men’s homicidal aggression against women. Leading criminal law casebooks, numerous law review articles, and books by influential legal scholars and historians repeat the erroneous claim that, in the past, the legal doctrines of self-defense and provocation endorsed men’s brutality, whereas women were severely punished for perpetrating intimate violence.

In fact, the converse was true. Data culled from dusty criminal case files in New York and Colorado demonstrates that, in both the eastern and western United States, men accused of killing their intimates often received stern punishment, while women charged with similar crimes were treated with leniency . . .

[My] research also unearths the pre-history of the ‘battered woman’s syndrome defense.’ In modern criminal trials, battered woman’s syndrome evidence bolsters the credibility of women who killed their batterers [and supports the argument that they honestly and reasonably feared for their lives.] . . . modern approaches suggest that, when assessing the culpability of a battered woman who killed, the jury should be allowed to take her history of abuse into account. No formal battered woman’s syndrome defense existed in the late 1800s and early 1900s. However, juries and courts implicitly recognized one and even extended it to women who killed to avenge infidelity or abandonment. Indeed, the paternalistic understanding of social relations prevalent in the Victorian era tended to equate physical and emotional maltreatment of women . . .

Of course, paternalistic efforts to stop male abuse of women did not go uncontested. Yet, the ineptitude of the state in curbing such abuse was attributable to the deficiency and corruption of early policing, as well as to cultural conflict over the role of violence in family government. It was not the product of a hegemonic gender ideology tolerant of extreme violence against women.”

My intimate homicide research grew out of another project on the nature of the prosecutor’s “public” role in the late nineteenth century. In researching this earlier article, I compiled data that indicated that prosecutors and jurors were relatively keen to send male domestic killers to the gallows, despite some squeamishness about the death penalty in general. This finding surprised me because I had always taught my criminal law students that the provocation and self-defense doctrines tolerated and perhaps actually encouraged male aggression, whereas women who committed murder could expect severe punishments. I began to wonder if this narrative, which resonated with my own feminist beliefs, obscured a more complicated and nuanced reality.

To explore that possibility, I decided to embark on a comprehensive analysis of public responses to lethal intimate violence into two distinct regions — the northeast and the frontier west. This is how I describe my sources in my University of Colorado Law Review publication:

“This article relies in part on case files preserved by New York County prosecutors, whose jurisdiction was coextensive with New York City for most of the nineteenth century. The Denver data comes from the scrapbooks of police detective Sam Howe, who kept a record of Denver homicides prior to 1921 in a special book. Most of Howe’s cases can also be found in the records of the Denver and Arapahoe County District courts . . . Impeccable data on American executions compiled by M. Watt Espy and Michael Radelet facilitates discussion of capital punishment in intimate murder cases.”

Although I combined my archival data with analysis of appellate opinions, my focus on previously unexplored primary sources allowed me to say something new. The origins of the mistaken view that I challenge lie in faulty methodology. A narrow focus on published appellate opinions points to a few unrepresentative cases of women who received long prison terms or the death penalty for killing their husbands. In fact, most female defendants were acquitted of murder charges because juries sympathized with their stories of abuse and abandonment. However, because acquittals and lesser-included offense convictions did not result in appeals, this information remained hidden, prior to my research. A comparison between New York and Colorado and their urban centers reveals their remarkably similar treatment of intimate homicide: “Despite vast differences in population and culture, both [states] resolved these cases in a gender-biased way that benefited female defendants.”

Tomorrow, I plan to talk in detail about the criminal-justice response to the killing of abusive men by their female partners in the late nineteenth and early twentieth centuries. Wednesday, we’ll take a look at the male defendants’ cases, and on Thursday, I’ll offer a cultural and legal comparison of the two regions on which my study is based — New York and Colorado. Finally, on Friday, I’ll post some concluding thoughts, including my tentative hypotheses about why domestic violence prevention failed to occur, despite demonstrated societal revulsion toward men who killed their intimates.

A major aspect of today’s Hamdan v. Rumsfeld opinion was the Court’s conclusion that Common Article 3 of the Geneva Conventions applies to Al Qaeda. (Common Article 3 applies to “armed conflict not of an international character occurring in the territory of one of the High Contracting Parties.”) Some conservative bloggers have expressed outrage about such an interpretation of Common Article 3. See here and here. They seem to be saying that the language of Common Article 3 simply cannot be read to extend to this sort of conflict.

Unless I missed something (always a possibility based on a quick read), the only dissenter who says he disagrees with the majority’s reading of Common Article 3 as applying to Al Qaeda is Justice Thomas. Scalia focuses on jurisdiction, and Alito talks about how Common Article 3 should apply to the specifics of this case. Scalia and Alito join the portion of Thomas’s dissent that talks about whether Common Article 3 applies, so that’s where the discussion is. Thomas focuses most of his discussion on arguments that do not directly consider the language of Common Article 3, but rather focus on legal authorities that might constrain the Court from interpreting the language on the merits. He says that Johnson v. Eisenstrager forecloses the majority’s application of Common Article 3 to Al Qaeda, and that the Court should defer to the executive’s interpretation. He may or may not be right in making these arguments, but they don’t address the key point that bloggers are making — namely, that the language of Common Article 3 doesn’t apply to Al Qaeda, period. On that key question, Justice Thomas says that both the President’s and the majority’s positions are plausible and reasonable. Here is the entirety of the discussion (raised in the context of Thomas saying the Court should defer to the President’s interpretation, rather than interpret the language on its own):

The President’s interpretation of Common Article 3 is reasonable and should be sustained. The conflict with al Qaeda is international in character in the sense that it is occurring in various nations around the globe. Thus, it is also “occurring in the territory of” more than “one of the High Contracting Parties.” The Court does not dispute the President’s judgments respecting the nature of our conflict with al Qaeda, nor does it suggest that the President’s interpretation of Common Article 3 is implausible or foreclosed by the text of the treaty. Indeed, the Court concedes that Common Article 3 is principally concerned with “furnish[ing] minimal protection to rebels involved in. . . a civil war,” ante, at 68, precisely the type of conflict the President’s interpretation envisions to be subject to Common Article 3. Instead, the Court, without acknowledging its duty to defer to the President, adopts its own, admittedly plausible, reading of Common Article 3. But where, as here, an ambiguous treaty provision (“not of an international character”) is susceptible of two plausible, and reasonable, interpretations, our precedents require us to defer to the Executive’s interpretation.

Bloggers (and others) can continue to say that the language of Common Article 3 simply cannot be read to apply to Al Qaeda. But not a single member of the Supreme Court agrees. That doesn’t make the bloggers wrong, of course — just lonely.

There’s a pretty interesting article in the latest U.S. News about David Addington, Cheney’s right-hand man. I’ve heard scary stories about him from a number of friends in the White House and various departments — basically, that he belittles and denigrates those whom he regards as insufficiently hard-line about presidential power, and is ruthless. I find these stories scary because those friends are more supportive of presidential power than most anyone else in the world, and they didn’t go far enough for him.

Anyway, the article treads lightly on those stories, but it highlights the ways that the Administration (often through Addington) was able to get very broad advocacy documents from the Department of Justice’s Office of Legal Counsel. This isn’t new — we’ve known about the extreme OLC opinions for a long time — but the article makes an important point that is often lost in the fray: in most cases the Adminisration didn’t need those broad opinions in order conduct the war on terror as it thought appropriate. A narrower, more reasonable construction would have given them the authority they actually planned to exercise. So not only were the opinions legally shaky (at best), but they were also unnecessary (and, it seems, politically stupid).

(Full disclosure: I was hired at OLC by another figure who was prominently mentioned in the article, Tim Flanigan, and some have put him in the same category as Addington. I am fond of Tim and have no pretensions of objectivity when it comes to him.)

I’m not sure any of this matters to Addington, but as an OLC alum I find it saddening. In my opinion, an OLC that simply goes along with everything the President wants is doing him a disservice; their job is — or should be — to give careful advice that lets the President know the sorts of legal obstacles his policies would face. I believe that the President should feel free to ignore OLC’s advice in most cases (I, too, am a believer in a strong presidency); but I think OLC should give that unwelcome advice in the first place.

Here, OLC (and other potential dampeners on Cheney and Addington’s enthusiasms) served to fuel the fire — at a cost to the rule of law and (obviously less importantly) the integrity of entities like OLC. My sense is that Jack Goldsmith helped to undo both kinds of damage, but rebuilding credibility takes a lot longer than destroying it.

My post on the letters responding to legal arguments on wiretapping, and some of the feedback to it, got me thinking about two signals beyond mere political pigeon-holing, at least one of which is of greater substantive relevance. First, the DOJ memo has a very strange attribute — its lack of attribution. It is not on anyone’s letterhead or signed by anyone. When I was at OLC (in the first Bush administration and in the Clinton administration), everybody recognized the importance of the name(s) of the people at the top of a document — it told you who, exactly, was putting his or her name behind a given DOJ document. I haven’t followed DOJ practice closely, but the lack of any name struck me as odd, and perhaps significant.

Second, and more obviously significant, is the fact that Curt Bradley, along with Jack Goldsmith, has written articles that have (to oversimplify matters greatly) articulated A) a broader vision of executive authority than most other academics would adopt, and B) a particularly broad construction of the September 18, 2001 Authorization for Use of Military Force statute on which the Administration attempts to rely. Jack Goldsmith probably feels constrained from joining the debate (given that he was at OLC for some of the period in question), but Bradley’s joining of the letter criticizing the government’s position seems quite significant. Bradley and Goldsmith considered the AUMF at great length and put forward a quite expansive interpretation of it. If Bradley nonetheless doesn’t think that it provides a legal justification for the Administration’s wiretapping, that tells us something — and a good bit more than the fact that he’s not on the political left

Orin mentions the response by scholars and government officials to the DOJ “White Paper” on the wiretapping program. Two additional points bear mentioning. First, this same group issued a letter on January 9, 2006 that laid out their views; the DOJ white paper responded to that, and their February 2 letter responds to the DOJ memo.

Second, and more importantly, this is an impressive group that includes distinguished people from different political camps. At least three are not on anyone’s definition of the conventional political left — Curt Bradley, Richard Epstein, and Bill Van Alstyne. And, for what it’s worth, Bradley was the Counselor on International Law in the State Department Legal Adviser’s Office for 2004 (it’s a one-year position, chosen by the State Department Legal Adviser).

Perhaps in the best of all worlds this point about the signatories would be irrelevant, and each of us would evaluate the arguments without regard to who made them. But in a time-starved (and politically charged) world, the identities of the signatories often is significant. And here the breadth of the signatories is notable.

While we wait to hear whether Patrick Fitzgerald indicts anyone in the Bush Administration, I think back to a conversation I had shortly before the 2002 elections with a friend who was in the White House Counsel’s office. The friend said that having a Republican majority in the House and Senate mattered a great deal in the White House — yes, it would help with legislation; but more to the point, the friend stated happily, “That means no investigations.” As the friend noted, investigations had tripped up prior Presidents, but with the demise of the independent counsel statute, investigations would be controlled by Republicans — and the White House had every reason to expect that it would be able to control them. (I had a somewhat similar conversation with another White House friend before the 2004 elections, but that is another story.)

But a funny thing happened to this plan: when Plame’s outing as a CIA agent became an issue, Ashcroft recused himself (appropriately, given his close ties to some of the apparent targets), leaving the matter in the hands of his deputy, James Comey. Comey, in turn, appointed Patrick Fitzgerald, a Republican not known as a hard-core loyalist. The White House, angry that in this action as well as some of his hiring decisions Comey “erred too much on the side of neutrality and independence,” made it clear that he would not be appointed Attorney General. (Indeed, a White House official gave an additional quote that Orin higlighted at the time, and that I still find disturbing in describing the leadership of the Department of Justice: “The objective in staffing is never to assemble the best possible team. It is to assemble the best possible team that supports the president.” The whole Legal Times article is worth reading, although you need to subscribe to get access.)

Had Comey appointed someone who looked tough but in fact wouldn’t really harm the White House, life would have been a lot easier in the West Wing. But Comey showed that darned independence, and now they may be in quite a pickle. (Of course, it could be that Fitzgerald issues no indictments and all this blows over. We’ll just have to wait and see.)

I hope that the lesson the Bush Administration draws from all this is not that they made mistake in failing to appoint a more “loyal” Deputy Attorney General, but I wouldn’t count on it.

A final note: the only other prosecutorial cloud on the horizon results from federalism. If the federal government controlled the units below it, there would be no indictment against Tom DeLay. When you control the levers of the federal government, state and local (like Comey’s “neutrality”) represents a wild card. The Bush Administration doesn’t like wild cards (and in practice it often doesn’t like federalism). But control right now seems to be in short supply.

The Duke Law Journal will be holding a symposium on administrative law issues raised by Hurricanes Katrina and Rita, and it occurred to them (and me) that some readers of this blog might be interested in submitting.

From the Call for Papers: “[The hurricanes] have also brought a number of important administrative law issues into sharp relief. For example, important questions remain to be answered about federalism, including the legal limits
on federal involvement and the proper resolution of conflicts between federal and state agencies in crisis scenarios; the intertwined history of domestic crises and the growth of the administrative state; judicial review of administrative decisions made under crisis conditions; governmental liability for pre-crisis administrative failings or post-crisis responses; emergency powers in times of domestic emergency; and the role of race and class in administrative responses to catastrophe.”

The full Call for Papers is available here.

Putting together the points about Miers being close to Bush and the complaints about her lack of a public record on the subjects with which the Supreme Court deals, what is striking here is the gap between what Bush knows about her and what the public knows about her. We are beyond reading tea leaves when we are dissecting how many cookies she baked for her church, and what that tells us about the likelihood that she will find displays of the ten commandments constitutional. Insofar as Souter was a “stealth” candidate, it isn’t as if George H.W. Bush knew him much better than the rest of us could if we read his opinions. White’s views were largely unknown to the public, but he was not particularly intimate with Kennedy. My guess is that the last nominee for whom the gap (between the President’s private knowledge and the public’s available knowledge) was really large was Abe Fortas — although even there the gap may have been smaller, in that he had taken positions on a number of important public matters.

So, unless we learn significantly more about Miers in the coming weeks — a definite possibility, but by no means a certainty — it seems to me that one’s assessment of her jurisprudential views will largely be a function of one’s assessment of:
A) Bush’s success in determining how she will likely vote on issues that are important to him;
B) What issues Bush regards as important; and
C) Whether one agrees with Bush’s position on those issues.

For Bush supporters to support her on these grounds (i.e., her jurisprudential views), it seems to me that one has to have some confidence in all three. That means that you need to have confidence in Bush’s ability to judge how she will vote (maybe she’s told him in so many words, but probably not; still, there might be enough for him to make educated guesses with some confidence). And you need to be confident that he regards as important what you regard as important. As David Bernstein noted, it may be that Bush is choosing her because he really cares about executive power and the war on terror, and he knows where she’ll come out on those issues, but that he isn’t prioritizing issues that are central to his political base. For Bush opponents, by contrast, one needs either to have significant doubts about Bush’s success in predicting her votes or to believe that what he regards as important is a relatively small universe.

This should not necessarily determine one’s support for or opposition to her — perhaps she should be opposed on grounds of cronyism or the unimpressiveness of her background, or perhaps she should be supported on the grounds that the alternatives to her are likely to be worse — but it does seem to be an important calculus in assessing her likely jurisprudential views.

I just noticed a new Cato study entitled “The Grand Old Spending Party: How Republicans Became Big Spenders.”

Here’s the guts of the Executive Summary:

President Bush has presided over the largest overall increase in inflation-adjusted federal spending since Lyndon B. Johnson. Even after excluding spending on defense and homeland security, Bush is still the biggest-spending president in 30 years. His 2006 budget doesn’t cut enough spending to change his place in history, either.

Total government spending grew by 33 percent during Bush’s first term. The federal budget as a share of the economy grew from 18.5 percent of GDP on Clinton’s last day in office to 20.3 percent by the end of Bush’s first term.

The Republican Congress has enthusiastically assisted the budget bloat. Inflation-adjusted spending on the combined budgets of the 101 largest programs they vowed to eliminate in 1995 has grown by 27 percent.

The GOP was once effective at controlling nondefense spending. The final nondefense budgets under Clinton were a combined $57 billion smaller than what he proposed from 1996 to 2001. Under Bush, Congress passed budgets that spent a total of $91 billion more than the president requested for domestic programs. Bush signed every one of those bills during his first term. Even if Congress passes Bush’s new budget exactly as proposed, not a single cabinet-level agency will be smaller than when Bush assumed office.

The study is worth a read — in part for the useful charts (see, e.g., figures 1-6 of the study) graphically displaying some of the many different matrices by which spending (even non-defense and non-homeland security spending) has increased dramatically in the George W. Bush Administration.

The study suggests that united government is at least partly responsible. It notes (p. 13) that “[s]pending growth picked up steam much more quickly once Republicans gained control of the White House as well as Congress.” I am sympathetic to this argument. As I noted last year, Cato President William Niskanen has written a paper demonstrating that divided government yields lower spending (and, perhaps more depressingly, that reductions in taxation produce increases in spending).

But this still leaves me with a nagging question: why aren’t more small-government advocates resisting spending increases? Cato has been sounding the alarm for a while (back in March 2003, Cato published an article about Bush’s spending entitled “Hey, Big Spender“), but many others have been relatively silent. Why?

Spectrum policy is a major research area for me (see here and here, for example), and I’ve been a bit disappointed that few journalists have shown an interest in writing on the subject with any depth. I’ve just run across, though, a very good article in the National Journal by Drew Clark called “Spectrum Wars” that manages to be accessible to laypeople, interesting, and — importantly — not too long. If you want to get up to date on current battles over spectrum, you should read it. And if you’re not sure why you should care, then at least take a quick look to see what’s at stake in these battles.

Shameless self-promotion: I cover some of the same ground at much greater length in the second half of my latest article, Evaluating the FCC’s National Television Ownership Cap: What’s Bad for Broadcasting Is Good for the Country, for which I am about to send out reprints. If anyone wants a reprint, please email me — benjamin [at] law.duke.edu.

I’m going to be teaching Cohen v. California tomorrow (the case reversing a conviction for wearing a jacket that said “Fuck the Draft”), and I decided to see if Cohen was the earliest iteration of “fuck” in a Supreme Court opinion. (It was.) I then looked up “shit” to see if it appeared earlier in the Supreme Court, according to Westlaw. The answer is yes, but only because of a scrivenor’s error. The Westlaw report of Galveston, H. & S.A. Ry. Co. v. Gonzales, 151 U.S. 496 (1894) contains this doozy of a typo:

“The jurisdiction common to all the circuit courts of the United States in respect to the subject-matter of the suit and the character of the parties who might sustain shits in those courts is described in the section …”

I do not know, of course, whether the typist made this error intentionally. It was probably just an accident, but it’s more amusing to imagine a typist with a sense of humor (or just boredom).

By the way, for those who care: the first case that intentionally included the word “shit” was Eaton v. City of Tulsa, 415 U.S. 697 (1974).

Back in 1997, John Lott wrote an article in the Journal of Legal Studies putting forward data that seemed to show that right-to-carry (gun) laws reduced violent crimes. That article, and the subsequent book “More Guns Less Crime” influenced me and many others — including state legislatures that passed right-to-carry laws based in significant part on the assertion that this would reduce crime. I don’t have any particular precommitments regarding guns (and I shot many a gun while hunting as a youth), so I am guided by the empirical evidence. If more guns produces net benefits to society, then let’s have more guns; if it doesn’t, then let’s not.

Anyway, Lott’s thesis has come under attack from a number of quarters. His bizarre behavior — like writing emails as “Mary Rosh,” a student who said “he was the best professor I ever had,” etc. — did not help his credibility, but it did not impugn his data. (He ultimately admitted he was Rosh.) His apparent fabrication of a study on which he relied was more serious, since it was part of his factual underpinnings, but the study was not central to his thesis. (By the way, co-blogger Jim Lindgren did excellent work ferreting out the details about the phantom survey.) The key question was, and is, whether his data are correct that right-to-carry laws reduce crime.

His core thesis, though, was called into doubt by a number of researchers, most prominently in a study (and reply, both complete with data sets) written by Ian Ayres and John Donohue, two top empirical economists. They concluded that the data did not support Lott’s assertions regarding right-to-carry laws and crime. Lott helped to write and then withdrew his name from a response to Ayres and Donohue. He responded in other venues to them, but did not respond to some of their key assertions.

Perhaps he was waiting/hoping for vindication from the closest thing to a gold standard in academic review — a report on the issue from the National Research Council. That report has been years in the making, and features some of the top researchers in the country. Well, the report has been issued, it contains bad news for Lott: It concludes that “There is no credible evidence that ‘right-to-carry’ laws, which allow qualified adults to carry concealed handguns, either decrease or increase violent crime.” They discuss Lott’s research at some length and find it wanting. Note that they do not say that right-to-carry laws increase crime. That may be a silver lining for those opposed to gun control who believe that in the absence of evidence of a benefit states should allow people to carry guns, but it doesn’t help Lott very much: He staked his reputation on his claim that the data showed a decrease. So much for his reputation.

The Economist magazine, which endorsed Bush in 2000, has endorsed Kerry in 2004. This strikes me as more significant than most endorsements, both because they endorsed Bush in 2000 (and endorsed Dole in 1996) and because they are very smart small-government types. And it is particularly striking because they supported the decision to invade Iraq. The Economist’s editor, Bill Emmott, said

“It was a difficult call, given that we endorsed George Bush in 2000 and supported the war in Iraq. But in the end we felt he has been too incompetent to deserve reelection.”

The endorsement adds that

“America needs a president capable of admitting to mistakes and of learning from them. Mr Bush has steadfastly refused to admit to anything.”

The Wall Street Journal notes a remarkable shift in an article today on page A4 (subscription required). In 2000, those with a high-school diploma or less preferred Gore to Bush by 7 percentage points, and those who graduated college preferred Bush to Gore by 5 percentage points. That is in keeping with what had been a longstanding education gap — college graduates have tended to vote for the Republican candidate more (and for the Democratic candidate less), and the reverse has been true for those who didn’t complete college. (Those who went to graduate school have tended to prefer Demcratic candidates, but the Wall Street Journal doesn’t separate out those numbers in its story today.)

But in the polling for 2004, those with a high-school diploma or less prefer Bush 57% to 38%, and those with a college degree prefer Kerry by 14 percentage points. That’s quite a shift (to put it mildly).

The story of the 380 tons of explosives missing from a known base in Iraq is obviously big (and depressing), but that shouldn’t entirely obscure another important story. A few months ago, co-conspirator Jacob Levy noted the lack of response to an NBC Nightly News report asserting that the Pentagon had located Zarqawi’s camp in Iraq before the war began, but that the White House vetoed an attack on the camp because Zarqawi was more convenient as a living terrorist in Iraq who could help justify the war. Jacob followed up on the story here, and noted Robert Novak’s claim that this was an “urban legend” here. That’s the last I’d seen on any aspect of this story, and I assumed that there was nothing to it. But today’s Wall St. Journal has an article on page A3 (subscription required) that returns to the issue. The whole article is worth reading, but I’ll quote a few key paragraphs:

The Pentagon drew up detailed plans in June 2002, giving the administration a series of options for a military strike on the camp Mr. Zarqawi was running then in remote northeastern Iraq, according to generals who were involved directly in planning the attack and several former White House staffers. They said the camp, near the town of Khurmal, was known to contain Mr. Zarqawi and his supporters as well as al Qaeda fighters, all of whom had fled from Afghanistan. Intelligence indicated the camp was training recruits and making poisons for attacks against the West.

Senior Pentagon officials who were involved in planning the attack said that even by spring 2002 Mr. Zarqawi had been identified as a significant terrorist target, based in part on intelligence that the camp he earlier ran in Afghanistan had been attempting to make chemical weapons, and because he was known as the head of a group that was plotting, and training for, attacks against the West. He already was identified as the ringleader in several failed terrorist plots against Israeli and European targets. In addition, by late 2002, while the White House still was deliberating over attacking the camp, Mr. Zarqawi was known to have been behind the October 2002 assassination of a senior American diplomat in Amman, Jordan.

But the raid on Mr. Zarqawi didn’t take place. Months passed with no approval of the plan from the White House, until word came down just weeks before the March 19, 2003, start of the Iraq war that Mr. Bush had rejected any strike on the camp until after an official outbreak of hostilities with Iraq. Ultimately, the camp was hit just after the invasion of Iraq began.

…

Some former officials said the intelligence on Mr. Zarqawi’s whereabouts was sound. In addition, retired Gen. John M. Keane, the U.S. Army’s vice chief of staff when the strike was considered, said that because the camp was isolated in the thinly populated, mountainous borderlands of northeastern Iraq, the risk of collateral damage was minimal. Former military officials said that adding to the target’s allure was intelligence indicating that Mr. Zarqawi himself was in the camp at the time. A strike at the camp, they believed, meant at least a chance of killing or incapacitating him.

Gen. Keane characterized the camp “as one of the best targets we ever had,” and questioned the decision not to attack it. When the U.S. did strike the camp a day after the war started, Mr. Zarqawi, many of his followers and Kurdish extremists belonging to his organization already had fled, people involved with intelligence say.

Note that the story doesn’t discuss the allegation that the President vetoed an attack on the base in order to ensure support for the war in Iraq, but it does indicate that the Pentagon thought it had a good chance of taking out Zarqawi, and that the Administration chose not to do so. That fact alone is pretty distressing. We knew how dangerous he was, we knew where to find him, and apparently knew that the collateral damage would be minimal, and yet we failed to act. Ouch.

One small addendum: When asked about the NBC Nightly News story on June 27, Condoleezza Rice said “Let me just say we never had as far, as we know, we never had a chance to get Zarqawi.” (Jacob has the quote here, under his second update.) So, was she lying, or was she out of the loop on this? If the former, that’s pretty despicable (since it was an attempt to hide the truth simply to benefit her and her boss). If the latter, what kind of National Security Adviser is not getting this sort of information? If she’s not getting it, doesn’t that suggest that the NSC process is in pretty bad shape (and that the government is exhibiting the worst sort of stovepiping)?

I just ran across a poll conducted by the Program on International Policy Attitudes (PIPA) at the University of Maryland (a group that calls itself nonpartisan, that apparently is regarded as nonpartisan, and whose board contains both Republicans and Democrats). I find its results stunning. Rather than summarize them, I’ll just quote from their press release. The full study (which is fascinating) is available here.

Even after the final report of Charles Duelfer to Congress saying that Iraq did not have a significant WMD program, 72% of Bush supporters continue to believe that Iraq had actual WMD (47%) or a major program for developing them (25%). Fifty-six percent assume that most experts believe Iraq had actual WMD and 57% also assume, incorrectly, that Duelfer concluded Iraq had at least a major WMD program. Kerry supporters hold opposite beliefs on all these points.

Similarly, 75% of Bush supporters continue to believe that Iraq was providing substantial support to al Qaeda, and 63% believe that clear evidence of this support has been found. Sixty percent of Bush supporters assume that this is also the conclusion of most experts, and 55% assume, incorrectly, that this was the conclusion of the 9/11 Commission. Here again, large majorities of Kerry supporters have exactly opposite perceptions.

Steven Kull, director of PIPA, comments, “One of the reasons that Bush supporters have these beliefs is that they perceive the Bush administration confirming them. Interestingly, this is one point on which Bush and Kerry supporters agree.” Eighty-two percent of Bush supporters perceive the Bush administration as saying that Iraq had WMD (63%) or that Iraq had a major WMD program (19%). Likewise, 75% say that the Bush administration is saying Iraq was providing substantial support to al Qaeda. Equally large majorities of Kerry supporters hear the Bush administration expressing these views–73% say the Bush administration is saying Iraq had WMD (11% a major program) and 74% that Iraq was substantially supporting al Qaeda.

Steven Kull adds, “Another reason that Bush supporters may hold to these beliefs is that they have not accepted the idea that it does not matter whether Iraq had WMD or supported al Qaeda. Here too they are in agreement with Kerry supporters.” Asked whether the US should have gone to war with Iraq if US intelligence had concluded that Iraq was not making WMD or providing support to al Qaeda, 58% of Bush supporters said the US should not have, and 61% assume that in this case the President would not have. Kull continues, “To support the president and to accept that he took the US to war based on mistaken assumptions likely creates substantial cognitive dissonance, and leads Bush supporters to suppress awareness of unsettling information about prewar Iraq.”

This tendency of Bush supporters to ignore dissonant information extends to other realms as well. Despite an abundance of evidence–including polls conducted by Gallup International in 38 countries, and more recently by a consortium of leading newspapers in 10 major countries–only 31% of Bush supporters recognize that the majority of people in the world oppose the US having gone to war with Iraq. Forty-two percent assume that views are evenly divided, and 26% assume that the majority approves. Among Kerry supporters, 74% assume that the majority of the world is opposed.

Similarly, 57% of Bush supporters assume that the majority of people in the world would favor Bush’s reelection; 33% assumed that views are evenly divided and only 9% assumed that Kerry would be preferred. A recent poll by GlobeScan and PIPA of 35 of the major countries around the world found that in 30, a majority or plurality favored Kerry, while in just 3 Bush was favored. On average, Kerry was preferred more than two to one.

Bush supporters also have numerous misperceptions about Bush’s international policy positions. Majorities incorrectly assume that Bush supports multilateral approaches to various international issues–the Comprehensive Test Ban Treaty (69%), the treaty banning land mines (72%)–and for addressing the problem of global warming: 51% incorrectly assume he favors US participation in the Kyoto treaty. After he denounced the International Criminal Court in the debates, the perception that he favored it dropped from 66%, but still 53% continue to believe that he favors it. An overwhelming 74% incorrectly assumes that he favors including labor and environmental standards in trade agreements. In all these cases, majorities of Bush supporters favor the positions they impute to Bush. Kerry supporters are much more accurate in their perceptions of his positions on these issues.

Hold aside for a moment the implications of this poll for the Bush administration. Isn’t it disappointing for so many supporters of any presidential candidate to have such misperceptions on issues as central as these?

I haven’t posted for a while, because I have become increasingly disenchanted with the current administration and have not wanted to start writing angry or petulant posts about how President Bush has betrayed the principles of limited government, but at the same time the election has been at the forefront of my thoughts and is the most important issue we face these days. Anyway, I’ve decided to post on the issue of the election to highlight a few points that have not (as far as I have seen) received as much attention as they should.

I can understand why social conservatives would support President Bush, but in my view those of us who think of ourselves as libertarians, or economic conservatives and social liberals, or believers in small government, or 19th century liberals, etc. (all of which I’m lumping into the category of “limited-government types”) should vote for John Kerry.

1) First, on the issue of this President’s policies, many commentators have ably pointed out the myriad ways in which this President has been a disaster for those who believe in limited government. (Two that come to mind are Doug Bandow of the Cato Institute and Robert George, formerly on Newt Gingrich’s staff, but there are many more; in fact, Doonesbury ran a series this week of not very funny cartoons containing links to conservatives who are disappointed in Bush.) A few of these commentators have listed Bush’s tax cuts as the one bright spot for libertarians/conservatives/limited-government types, but tax cuts without spending cuts (or, as it turns out, with massive spending increases) aren’t small government – they’re big government combined with borrowing. The government reduces your taxes but takes out a big loan in the name of you and your family. Brad DeLong says we should call this a tax shift rather than a tax cut. He’s right, although I would also call it mandated mortgaging.

What about the “starve the beast” hypothesis (i.e., that reductions in taxes will force reductions in spending)? Two big problems: first, as long as we are running up deficits (i.e., until the beast really is starved), then the government is still taking out loans in our name. Second, “starve the beast” is a nice theory, but in reality it has never happened. In fact, William Niskanen of the Cato Institute has shown that decreases in taxes are associated with increases in spending, and vice-versa.

2) “Fine,” some libertarian friends have said to me, “I admit that Bush has been bad for limited government, but won’t electing Kerry be worse for our interests?” As for the short- and medium-term, the great likelihood is that the answer is no. Unless something truly disastrous happens to the Republican party (e.g., finding out that Osama Bin Laden received money from the RNC), it is going to retain control of the House of Representatives. Indeed, it is very likely that it will gain seats in the House, as it starts from a big presumptive gain resulting from the redistricting in Texas. As for the Senate, it is conceivable that the Democrats could regain control, but just about everything would have to break their way. The bottom line is that Republicans will almost certainly control one chamber, and likely will control both. This means that a President Kerry is going to be dealing with a hostile Congress – and Tom Delay is not going to roll over. In other words, we are likely to get the same sort of gridlock that we had from 1995 to 2000, with no significant new spending and no significant new tax cuts – greater fiscal sanity and a smaller government. Again, this is not just pie in the sky. Niskanen also showed that divided government is associated with lower government spending.

3) But what about the long-term interests of those who want a limited government? Here we come to the most important point that many have overlooked: if limited-government types vote for Bush and he is reelected, then the obvious conclusion for any savvy political strategist is that Republicans can take these voters for granted and thus ignore their interests. The reality of politics is that you are always working at the margins – trying to increase turnout of your base or add swing voters. If I am a political strategist who knows that a group of voters will stick with my candidate no matter what, I’d be foolish to recommend that he respond to their concerns in any way. What’s the point of doing that, as a matter of political strategy? If I were Karl Rove (or whomever) and Bush won in 2004, I would tell any future Republican candidate that he can do anything he wants on the size of government, because Bush proved that limited-government types will still vote Republican.

The only way to send a message to future Republican candidates is for Bush to lose in part because of the defection of limited-government types. And, if we don’t send that message, I fear that we will be in the political wilderness for a long time.

The bottom line, in my view, is that people who believe in the old Republican credo of limited government had better vote for John Kerry.

There is a remarkable op-ed in the Wall Street Journal today. It’s called “Kerry Up, Markets Down.” (You can view it at http://www.aei.org/news/filter.,newsID.21046/news_detail.asp. For some reason, powerblogs is not letting me insert links.) In it, the author notes that there has been an inverse relationship between the S&P 500 and the value of a “Kerry wins” futures contract in the Iowa Electronic Market. In other words, a greater perceived likelihood of Kerry winning has been associated with lower prices on the stock market. On this basis, the author confidently states that “Financial market developments have advanced enough that we can now evaluate what the markets think about a candidates promises. If equity markets had a vote, it seems they would cast it for President Bush.”

At the outset, it bears noting that this could be coincidence. The author acknowledges that possibility and then dismisses it, relying on his contention that “the economic news has been generally upbeat in the first half of 2004.” Holding aside the debatable characterization of the economic news as upbeat, doesn’t market theory emphasize that traders are very good at predicting such developments, so that we should have expected stock prices to incorporate the expected good news months ago?

But the real problem is that if there is a strong correlation here (as seems plausible), an obvious hypothesis is that the author has the causation backwards: when the markets decline, savvy political traders judge that Kerry has a better chance of winning. The markets, after all, both reflect economic activity — and expectations — and directly affect the wealth of millions of voters. Decreases in stock prices make people feel less wealthy and send a signal that the economy may not be doing so well. It seems rather obvious that both the reduction in wealth and the signal would tend to hurt the party in power, and help a challenger.

This hypothesis seems so obvious that I feel silly explicating it at any length. Yet the op-ed ignores it entirely.

The op-ed’s hypothesis is also possible. The same is true of the hypothesis that the markets decline for non-Kerry reasons but recognize that this helps Kerry and so decline more; but the same is also true of the hypothesis that the markets decline for non-Kerry reasons but recognize that this helps Kerry and so decline less (i.e., that the decline would be greater if it did not help Kerry).

I recognize, of course, that one is not obliged to respond to every counter-argument in an op-ed. But the possibility that the market’s decline is causing Kerry to rise, and not the reverse, seems sufficiently obvious that the failure to consider it makes the op-ed a bit silly. Or maybe this a witty parody — the author is actually a Kerry supporter who wrote an op-ed that was such an unpersuasive partisan hack job that it would discredit the intelligence and good faith of Kerry’s opponents. Those Kerry supporters sure are clever — and subtle.

Which famous North Carolina politician said the following to Business North Carolina magazine about President Bush’s tax cut?:

“I would not have voted for the tax cut, based on what I know. I think he was eager for attention, so the fellow down at the pool hall could say, `Boy, that fellow has guts.’ There is no doubt that the people at the top who need a tax break the least will get the most benefit. I think he just wanted to show he had guts to do something. Too often presidents do things that don’t end up helping the people they should be helping, and their staffs won’t tell them their actions stink on ice. You know, not too many people will criticize a tax cut, but it’s going to be costly.”

If you guessed Jesse Helms, go to the head of the class!

(Thanks to Brad DeLong for the pointer.)