On Death And Justice, Or, What If The Death Penalty Could Be Fair?`

Those who support Progressive causes are in an odd position these days: we’re often in the majority on issues that matter; and we’re seriously talking about how to turn what, just a few years ago, was a wish list...into a “reality list”.

Staying in the majority, however, requires the assistance of centrist voters--and that means, from time to time, finding philosophical compromise with voters we’d like to keep “in the fold”.

In years past, the issue of the death penalty has created a considerable chasm between Progressives and centrists; with the one side concerned about the misapplication of capital punishment, and the other convinced that, for the most heinous of crimes, the only way to achieve a truly just outcome is for the guilty party to face the most severe of punishments.

What if we could bridge that gap?

In today’s discussion we propose to do exactly that: to create a death penalty process that only executes those who are truly guilty and excludes those who might not deserve to be put to death...in fact, those who might not be guilty of any crime at all.

Before we proceed further, a bit of “full disclosure”: I am personally inclined to end the death penalty. The reason for this change in personal philosophy is related to the work of The Innocence Project, who would want you to know that as of the date of this writing 240 people convicted of various crimes were later exonerated in the United States through the use of DNA testing (17 of those being inmates who were on various Death Rows at the time).

It occurs to me that the only acceptable level of error in executions is zero, which has also led me to support the option of life without the possibility of parole as an effective death penalty substitute; the thinking here being that a wrongly convicted individual can always be released from life without parole...but until Dr. McCoy returns from his five year mission, the odds that an accidental execution can be reversed are quite low indeed.

“On the other hand, the worst nightmare of a death penalty supporter and of everyone who believes in our criminal justice system is to execute an innocent man.”

--From “A Charge to Keep”, George W. Bush

As you are no doubt aware, in order to obtain a criminal conviction in the United States a prosecutor must prove “guilt beyond a reasonable doubt”.

This standard, however, does not guarantee that only the guilty are convicted.

Improper convictions can be obtained for a variety of reasons, which can include eyewitnesses who make mistakes, situations that involve false confessions, the inappropriate use of informants, or even the occasional governmental misconduct.

To reduce the potential for these sorts of failures, I’m proposing that after conviction, and during the “penalty phase” of a trial involving capital crimes, we determine if the evidence presented can meet a higher “burden of proof” than what is required to merely convict a defendant of the crime for which they are facing trial.

That higher burden of proof:

“Guilt beyond any doubt.”

In other words, if, during the penalty phase, the defense could create any doubt at all as to whether the defendant is guilty, or that the conviction is appropriate, that defendant would no longer be death penalty eligible, and a sentence of life without the possibility of parole would be imposed.

This is a good start to reduce the number of improper capital convictions...but there is another important reason the innocent are convicted that this proposal cannot address: incompetent lawyers.

However, there is a way to get at a resolution for this problem: a requirement that all defendants in capital cases be represented by Federally-accredited “death penalty” attorneys, combined with a requirement that each State maintain a staff of accredited attorneys that would be available to defend those individuals who are facing capital crimes and cannot afford private accredited counsel.

All of this could be imposed by Congress with statute law; and an Act defining “cruel and unusual punishment” in part as a failure, in capital cases, to provide the “guilt beyond any doubt review” and accredited attorneys should do the trick just nicely.

Dimitri: I was talking to Zeus the other day, and he thinks you’re a bad influence on me.
Tasso: That’s interesting, because I think he’s a bad influence on you.
Dimitri: In what way?
Tasso: He makes you think the voices in your head are real.

--From "Plato and a Platypus Walk Into A Bar...", Thomas Cathcart and Daniel Klein

There are two counterarguments that might quickly occur to the reader, and I will attempt to address them both here.

First, it is indeed true that this will not absolutely guarantee that there will be no further improper executions...and it is also true that the only way to make such an absolute guarantee is to end the use of the death penalty altogether.

However, this is a great compromise, in that is reduces the odds of such an execution to near zero while still leaving open the potential for executions in cases where no doubt of any kind can be established by the defense.

Secondly, there will be concerns that this proposal will only allow the death penalty to be imposed under the most extreme and unusual circumstances, to which I would reply: that’s exactly correct.

The idea here is that virtually everyone who is accused of a capital crime would end up sentenced to life without the possibility of parole...except in those most rare of circumstances where there can be no doubt whatever as to the guilt of the accused.

This is also a great compromise—after all, does even the most conservative Christian voter amongst us really want to take the chance that innocent people are executed?

To help this process along, I would further propose that Congress enact legislation that allows anyone facing Federal crimes or capital crimes, in any State, the right to obtain and introduce, post-conviction, evidence that could absolutely prove the innocence of a convicted person...and I would encourage Congress or the State Legislatures to pass legislation that would apply this protection to those convicted of all crimes in all States.

We might consider creating “Review Magistrates” to conduct an initial, less formal, review of such claims, with claims deemed appropriately credible advancing to a more formal Court setting for final disposition.

This will also cause some to object to the added burden imposed on the legal system...but the goal of the Constitution’s due process and equal protection clauses is not to round up a few of the innocent in order to get all the guilty incarcerated...instead, it’s just the opposite: to let a few of the guilty go free in order to ensure that the odds of the innocent being convicted remain as low as possible.

And with all that said, let’s wrap this thing up:

In order to find a way to compromise between the philosophies of those who seek to end capital punishment and those who support its application, I’m proposing that we review the evidence after conviction in capital cases, as part of the “penalty phase” of such trials, and if the defendant can create any doubt at all, of any kind, as to the propriety of that conviction, that defendant shall be sentenced to life without parole.

I’m also proposing that all defendants facing capital crimes be represented by accredited “death penalty” attorneys, and that defendants have the opportunity, post-conviction, to present exculpatory evidence if it should become available.

The use of the death penalty, not unlike the issue of abortion, has pulled people of good conscience to diametrically opposite sides of a national debate that is not easily resolved.

This set of proposals tries to find the compromise between those two sides, and in doing that we hope to convince centrist voters that Progressives are more than just wild-eyed dreamers—that, instead, they’re realists who seek solutions that represent the interests of all Americans, even those with whom they might not always agree.

In a political world where one side seeks fairness and compromise and inclusion and the other side seeks a ever-crazier brand of moral purity...which they can’t quite seem to live up to...it seems to me that the side seeking compromise is hugely advantaged in elections...and that, as far as I’m concerned, sounds pretty good.

Special Note: We have become aware of concerns related to the health of Walter Cronkite, and we hope he is as hale and hearty as he would want to be.

WARNING—Self-Promotion ahead: I am competing for a Netroots Nation Scholarship, and I was not selected in either the first or second rounds. There is one more chance...and while I’m not inclined to use the “hard sell”...I guess I will today.

If you like what you’re seeing here, and you’d like to help me make these stories even better, swing by the Democracy for America site (even if you have before...) and express your support.

All of us here thank you for your kind attention, and we now return you to your regular programming (which, in keeping with the “hard sell”, is rated PG, instead of the usual G).

On Looking Deeper, Or, Things About Iran You Might Not Know

It has been an amazing week in Iran, and you are no doubt seeing images that would have been unimaginable just a few weeks ago.

For most of us, Iran has been a country about which we know very little…which, obviously, makes it tough to put the limited news we’re getting into a proper context.

The goal of today’s conversation is to give you a bit more of an “insider look” at today’s news; and to do that we’ll describe some of the risks Iranian bloggers face as they go about their business, we’ll meet a blogging Iranian cleric, we’ll address the issue of what tools the Iranians use for Internet censorship and the companies that could potentially be helping it along, and then we’ll examine Internet traffic patterns into and out of Iran.

Finally, a few words about, of all things, how certain computer games might be useful as tools of revolution.

The first task for today…let’s talk about blogging:

It turns out that bloggers in Iran risk running afoul of the Press Law of 1986, which, in addition to requiring the licensing of media outlets, reads in part:

Article 6: The print media are permitted to publish news items except in cases when they violate Islamic principles and codes and public rights as outlined in this chapter…

…5. Encouraging and instigating individuals and groups to act against the security, dignity and interests of the Islamic Republic of Iran within or outside the country…
…7. Insulting Islam and its sanctities, or, offending the Leader of the Revolution and recognized religious authorities (senior Islamic jurisprudents);
8. Publishing libel against officials, institutions, organizations and individuals in the country or insulting legal or real persons who are lawfully respected, even by means of pictures or caricatures; and
9. Committing plagiarism or quoting articles from the deviant press, parties and groups which oppose Islam (inside and outside the country) in such a manner as to propagate such ideas (the limits of such offenses shall be defined by the executive by-law)…

… Article 25: If a person, through the press, expressly and overtly instigates and encourages people to commit crimes against the domestic security or foreign policies of the state, as specified in the public penal code, and should his/her action bear adverse consequences, he/she shall be prosecuted and condemned as an accomplice in that crime. However, if no evidence is found on such consequences he/she shall be subject to a decision of the religious judge according to Islamic penal code.

Article 26: Whoever insults Islam and its sanctities through the press and his/her guilt amounts to apostasy, shall be sentenced as an apostate and should his/her offense fall short of apostasy he/she shall be subject to the Islamic penal code.

Article 27: Should a publication insult the Leader or Council of Leadership of the Islamic Republic of Iran or senior religious authorities (top Islamic jurisprudents), the license of the publication shall be revoked and its managing director and the writer of the insulting article shall be referred to competent courts for punishment.

(In Iran, the penalty for apostasy is death.)

Those bloggers who are not licensed can still be prosecuted under the Penal Code, as the OpenNet Initiative reports in an excellent article they’ve just posted on the subject.

In 2008 the Iranian parliament passed a law which provides for the death penalty for bloggers who engage in non-permitted activities, a situation faced today by Yaghub Mehrnahad, who publishes the “Mehrnahad” blog.

(Interestingly, this blog can be reached in Persian, but an attempt to access the same URL with Google Translate returns this message:

“You are not authorized to view this page

The Web server you are attempting to reach has a list of IP addresses that are not allowed to access the Web site, and the IP address of your browsing computer is on this list.”

More about that later.)

There is also the risk of torture: a problem noted by the BBC at least as far back as 2005.

Ironically, Mohammad Ali Abtabi, a cleric and former Vice-President of Iran whom you may have recently seen on “The Daily Show” maintains a blog in which he does criticize Iranian society on a regular basis, including his assessment of the recent election as “a huge swindling”…which has now caused the authorities to place him under arrest.

So how does Iran manage to control Internet access?

What they aren’t doing is employing the simplest method possible: cutting off all access. This is presumably because of the negative impact on the Iranian economy that would be caused by business being unable to do what they need to do online.

There are several methods being employed, including a requirement that all Internet Service Providers in the country connect to the state-owned Data communication Company of Iran (DCI) for international access, that all ISPs put in place “filtering” and monitoring technologies, and that households be blocked from having access to high-speed Internet connections.

As of this writing the fastest Internet connection now available for an Iranian household is 128k, about double the speed of a dial-up connection…and as you might guess, not fast enough to allow Iranians to use such services as YouTube. A 6MB cable Internet connection, not uncommon in the US, would be roughly 50 times faster. Because of this the total capacity of Iran’s international Internet connections are roughly 12GB per second. Normal traffic is about 5GB per second, which, we are told, is about the same as a mid-size American city.

OpenNet reports that after an initial period of reliance upon foreign monitoring software, the government decided to create an “in-house” capability, and as a result there are locally developed software packages designed to allow access to the actual data packets in messages—meaning that authorities can read such things as e-mails and instant messages after they are sent and before they pass through the DCI “gateway”.

There has been a conversation regarding the role of Western equipment suppliers in all of this; and it is alleged that a Nokia/Siemens joint venture (Nokia/Siemens Networks) has sold to the Iranians equipment that is used to monitor the Internet use of Iranian citizens. The company denies this, however.

They also want you to know that the joint venture has been sold to a third party, and that, as their press release tells us: “providing people, wherever they are, with the ability to communicate ultimately benefits societies and brings greater prosperity”.

Another method of blocking access is to deny connections to certain sets of IP addresses, and this is why, presumably, I could not access the translated version of the “Mehrnahad” blog. This method would also allow the Iranians to block access to and from inside the country to sites like the BBC, Google, and Blogspot.

There is a way around “address blocking” which involves setting up “relays” and “bridges” that can be accessed by people in Iran—and this is something you yourself can do that can be of considerable benefit to Iranians trying to reach out to the rest of us.

The Iranian Government is also trying to locate and isolate those with Twitter accounts that are set to the Tehran time zone…and you can help make that process tougher by either setting up a Twitter account and setting the time zone to Tehran, or changing your existing account’s time zone.

The next few minutes are going to get a bit geeky, and for this I apologize in advance.

In order for your computer to use certain services that involve communicating with other computers the operating system utilizes a series of “ports” (this is all in the software, so don’t bother looking at the back of the machine to find them).

Some quick examples: the TCP/IP connection your computer is using to access the Internet is through Port 80 and the FTP service runs on Port 21.

There are two kinds of ports—TCP and UDP—and there is no reason to explain here why or how they differ.

There are thousands of ports, the ports used are usually specific to a particular service, and there are giant lists of assigned ports that everyone can access. A service can (and usually does) use more than one port for two-way communication with a computer, which is why the Federal Emergency Management Agency Information System uses TCP Port 1777 and UDP Port 1777.

The routing data that packets of information display as they travel through the Internet includes the port that the packet is seeking to access…and that data is accessible to all routers…and if you controlled the gateway through which all inbound and outbound Internet traffic was passing through you could block packets that seek to utilize certain ports.

Experts are suggesting that this is exactly what is happening today in Iran, with more than 80% of traffic bound for ports using the Adobe Flash Player being blocked, nearly 75% of the POP Service (e-mail) traffic being blocked, and roughly 70% of traffic bound for ports used by “proxy servers” being intercepted. (Proxy servers, by the way, are the same type of connections we discussed earlier that you can set up at home to help Iranians trying to reach the Internet.)

Voice over IP (VoIP), the Internet “telephone” service, is proving to be a troublesome issue for censors, as it has legitimate business purposes and is difficult to censor without either having someone listening on the other end of the line or installing a monitoring system worthy of the National Security Agency.

Interestingly, with the exception of the few hours immediately following the vote, the amount of Internet blockage, overall, seems to be fairly close to what it was just before the voting. However, the amount of “instability” has been highly variable, suggesting that certain blocks of IP addresses have been temporarily “withdrawn” from the Internet’s address structure, for want of a better term, and then once again made known to that same addressing infrastructure.

It is suggested that this may be because the Iranian Government has been able to institute a sufficient level of monitoring on those address blocks so as to make them comfortable with again allowing the users of those addresses access to the Internet.

In one of the oddest developments I’ve heard so far, there are reports that certain communications protocols used by some games are not being blocked. We will not go into specifics here, but it seems strange indeed that the video game your mother didn’t want you playing all day might actually be a tool for surreptitious communication.

And with all that said, let’s wrap it up for today.

Here’s what we’ve learned: it is indeed hazardous to be a blogger in Iran.

Despite the fact that it can get you tortured or get you the death penalty, there are those who take the risk—including a former Vice-President who now finds himself under arrest.

We can help Iranian citizens by installing software on our own computers that helps them obtain uncensored Internet access, and about 1/3 of that traffic is getting through.

The regime is not attempting to permanently shut down all Internet traffic—and in fact, that would be a cure that might be as bad as the disease.

The Iranian Government, instead, is developing and operating a sophisticated system of Internet blocking, but it is not perfect…and there are odd connections that could be used that most people would never think of as useful for the purpose.

Finally, a Western company is accused of selling equipment to Iran that could be used for Internet monitoring, but the company in question denies that the gear they sold Iran can perform the tasks the accusers say it can.

It is rare indeed to be able to see two revolutions taking place at the same time--but as you’re watching the news from the newest Iranian Revolution…keep an eye on the news of the Internet Revolution as well.

WARNING—Self-promotion ahead: I am competing for a Netroots Nation scholarship, and I was not selected in the first round of voting. There are two more chances to be selected…with an announcement due this week...so even if you’ve done so before, I still have to ask you to stop by the Democracy for America site and click on the “Add your support” link to offer your support for me again. Thanks for your patience, and we now return you to your regular programming.

On The Costs Of Care, Or, You Don’t Want Every Item On This Menu

I don’t know if you’ve been thinking about it, but the costs of long-term care have been on the mind of some friends of mine lately.

For reasons that we won’t go into here, they are in the process of pricing long-term care at care facilities…and yesterday afternoon, we had a chance to have a look at the “menu” of services (the facility's term) that can be purchased at this particular location.

If you are facing this issue in your own family, if you are a taxpayer thinking about how we plan to fund long-term care in the future…or if, one day, you expect to be old yourself…this conversation will surely matter.

To protect the innocent, I won’t be mentioning names today, but here’s what you need to know:

The location in question is an “assisted living facility” located near Seattle, it is somewhat upscale, but by no means ”posh”, and it is a residence of substantial size, with dozens of clients living there. It is not a “mom and pop” business run out of a house, but instead a more corporate operation.

The first thing you are charged for is the “apartment” in which you reside and some basic services to go with it. Those services include “finishing the place” with blinds and appliances, weekly housekeeping and linen, and the power and the water and the cable (“Basic Extended”).

You’re also paying for the 24-hour staff presence, “recreation” services, and scheduled transportation.

Also included: two meals daily, but not breakfast.

Telephone charges are not included.

The cost, for a single person: $1900 per month for a studio, $2300 for a one bedroom, and $2800 for a two-bedroom. There are nicer “views” available, which add about $400 to each price. Adding a second person costs $600 extra every month.

You will note that this price does not include medical and “personal” services…and for that, we will turn to the actual “menu”.

"Old wood to burn! Old wine to drink! Old friends to trust! Old authors to read!"

--Francis Bacon, Apothegms. No. 97.

Start with the basics: a daily wake-up call is $50/month; having a load of personal laundry washed every week or having a staff member make the bed daily adds $70 monthly. Housekeeping is $30/hour…so hopefully the resident can clean their own apartment.

Breakfast is $95 each month.

To determine what additional needs you might have, a nursing assessment is conducted at the time of admission.

If it’s determined that the resident needs bathing assistance, costs work like this:

If the resident can wash themselves, but need to be watched during the shower, that service, once a week, is $165 monthly. If the resident needs a staff member to help them shower, add $60 (If two staff members are required, that’s an extra $140 monthly).

Can the resident dress themselves?

A daily reminder to change clothes costs $100/month. If a staff member needs to spend under 10 minutes a day to help the resident dress, that’s $175/month, if 15 – 20 minutes of assistance is required, that’s $250 monthly.

Can the resident take care of their own personal grooming? If they can’t, that adds $150 to the monthly charges.

There are also “toileting programs”.

Having the staff remind you to go to the bathroom costs $200/month (this also covers the occasional incontinence event), and having a staff member monitor you in the bathroom raises the rate to $275 (this also covers the occasional “bowel accident”).

A “structured toileting program” runs $350…and if you need to be checked for bowel accidents regularly, or need someone to wipe for you, or have regular accidents requiring changes of clothing, that’s $425 a month added to the bill.

Some people have had surgical procedures that require them to use a bag attached to their colon for waste removal. The site where the bag is attached is called a “stoma site”, and the service associated with stoma care is at least $250 monthly at this facility. Supplies (such as colostomy bags) are not included in this price.

Can the resident walk to meals on his or her own?

If yes, but they need a verbal reminder to go to meals, that’s $175/month. If the resident requires assistance to get to the dining room, that’s $225 monthly…and if it takes longer than 5 minutes on average to assist the resident, that adds $275 to the bill each month.

Special diets, prescribed by a physician, add $500 to the monthly bill.

Can the resident take their own medications?

If not, the minimum charge is $230 monthly, which covers up to 5 medications daily, “served” two times a day.

If the client takes more than five meds daily (or takes meds more than twice daily) that cost could potentially increase by another $165/ month.

Oxygen service: add another $150 monthly.

While all that seems expensive…we haven’t come to the big-ticket item yet.

There will be residents who will require “memory support”.

The simplest form of this service provides “redirecting, reassurance, orientation to surroundings, responding to questions/concerns that arise from diminished short term memory” and several checks daily to ensure the resident is on the property. Those who receive this level of service are also physically escorted to meals. The service costs $300 per month.

For $400 the resident is walked back from meals, and a staff member provides verbal cues to get the resident dressed. The resident will also be “convinced” to bathe, if need be.

If the resident requires physical cues to perform the same tasks, the cost jumps to $550 (and at this stage the resident might require two staff members to get them to perform personal hygiene).

The highest level of care also provides someone to check on the resident every two hours, and costs $800 monthly.

This is hardly a complete list: for example, there are charges for making appointments and other “clerical” services, for “concierge” service, and for other incidentals.

However, there’s one other significant charge about which you should be aware, and that’s the cost for nursing services.

Wound care that involves changing a dressing, and takes less than 5 minutes, is $15 for each occurrence. This service must be provided by a licensed nurse…and if you add it up, it works out to $180/hour that the facility is charging you for the services of an LPN/LVN (depends on where you live) who is not likely to be making above $25/hour. (Each dressing change that lasts from 5 – 10 minutes costs $20; meaning at least $120/hour.)

Add it all up, and the chances that you’ll be paying at least $3000 a month are (in the words of Johnny Mathis) awfully good.

"If Mr. Selwyn calls again, shew him up; if I am alive I shall be delighted to see him; and if I am dead he would like to see me."

--Henry Fox, the First Baron Holland

So how is all this relevant to politics, you might ask?

How about this: we are about to enter an age where millions of Americans will require this sort of long-term care…and many of us do not have $3000 per month available to pay for this kind of care.

How many? It is estimated that 70 million Americans will be 65 or over by 2030, and if the numbers from 1999 continue to be valid, roughly 30% of those people will be living in an institutional setting.

20 million people, at $3000 a month, equals $60 billion that will be required to cover the cost of long-term care for this group—each and every month. That’s $720 billion a year.

So how do we deal with the problem when it hits us?

I don’t know…but consider this: it is going to be tough to reduce these costs, if only because these are tasks that are not well suited for automation. These are services, for the most part, that require one-on-one care (or even two-on-one care)…and those who provide the care will want pay raises…which we will want to provide, in order to help keep the quality of care at a high level.

You should also know that there are substantial costs associated with “fixing broken workers”. The fact that workers are often required to assist clients that are physically large or physically awkward puts a lot of these workers out on injury leave…and the unhappy fact is that understaffing is a common way to try to control labor costs in nursing facilities, adding to the injury problem these workers face.

How bad is the healthcare injury problem? Ironically, the Bureau of Labor Statistics tells us health care facilities are the most dangerous work environment in the United States.

“General medical and surgical hospitals (NAICS 6221) reported more injuries and illnesses than any other industry in 2007—more than 253,500 cases.”

To put it another way, there are basically two kinds of healthcare workers: the ones with back injuries…and the ones who don’t yet have back injuries.

As we wrap this thing up, let’s ask that question we ask almost every time: what have we learned today?

If you hadn’t already been thinking about it, it is fantastically expensive to have to receive care at an assisted-living facility, and soon there may be as many as 20 million Americans who will be in that situation…or something even more expensive, such as “skilled nursing facilities” (more commonly referred to as “nursing homes”).

We could be looking at having to find $720 billion (in today’s dollars) to cover the annual cost of that care.

It is going to be very tough to reduce those costs, unless you can develop ways to deliver the same care in a less-expensive environment…or you can find a way to reduce the number of people who will require such care.

Considering the cost of “memory care”, money invested in Alzheimer’s mitigation today might pay huge dividends later.

So that’s the deal: there is a giant bill that’s coming due, we better be thinking about it now…and one way or another, this will become one of the biggest fights in American politics as we move into the middle third of this century—so we can either get ready for it now, or we can all act surprised later.

Of course, if enough of us require “memory care”…then I guess that surprised look on our faces won’t be an act, eh?