Bail's broken -- here's how we fix it

Bail has been on my mind of late, prompted by news California has decided to "reform" its criminal justice system by eliminating its cash bail system. Reform is in quotes because I think that it's going to have unintended consequences, none of which are good. Cf. this piece in Politico for the backstory. Long story short: in the absence of bail authorities would likely choose to incarcerate folks that would have otherwise been released. This could have a disastrous effect on those incarcerated and their families (e.g., lost jobs, inability to attend school, etc.) and would be a miscarriage of justice for the innocent.

The bail system as it stands today is a good idea that is poorly implemented. It's a good idea in that it gets the accused back to their life while they await trial, it provides incentive for them to show up at the trial, and it provides an insurance mechanism to make sure they do if they don't come willingly. It's poorly implemented in that it requires many people to pay a bail bondsman to post a bail bond, even if they are innocent. The eighth amendment to the Constitution reads:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

If a person can't afford the fraction of the bail set to pay a bondsman, it's possible that the bail was excessive in the first place, but that will almost certainly never be the view of any court.

Over at TAC, Lars Trautman proposes "private freedom funds" as a solution. The idea here is that jails contract with the with a bonding organization and profit comes from a share of the savings accrued by not locking people up. While accurately recognizing problems with the current system and potential savings with reform, the proposed solution sounds like a recipe for all kinds of abuse and corruption.

Here's a solution that keeps the system largely intact that preserves a presumption of innocence, aligns incentives for better criminal justice, and is not punitive for the innocent: for people who cannot afford to put up the bail themselves, have the arresting organization or other aspect of the government put up the money for the bond. However, to guard against gaming the system where the government is on the hook for some fixed expense, bail bondsmen would compete for posting the bond at a reverse auction where the winner makes the lowest bid. If the defendant is found guilty, he is assessed a fine equal to amount posted for the bond. If the defendant is innocent, the arresting organization has to eat that cost.

While this is an expense that government doesn't currently have today, it's conceivable and even likely that it would cost cities, counties, and states as a whole less money. Why? The cost of the bond they have to pay out would likely be less than the cost of pretrial detention for the people who otherwise couldn't make bail. Assuming that they're mostly making people who are guilty make bail, the cost will eventually be borne by the accused -- they're just fronting the money. However, it provides incentives for law enforcement to be prudential in arrest decisions by assigning a monetary cost to getting things wrong. Moreover, it provides a measure of accountability that could easily be understood by the public. Naturally, there are all sorts of way set up a system that doesn't involve direct involvement of the arresting organization in the payment of the bonds, but whatever aspect of the government that does the paying will have an accounting.

From a bail bondsman's perspective, not much changes, except now they have to compete with each other at (reverse) auction rather than competing for customers. While this may squeeze the percentage they can expect from a typical bond, they should realize a savings from not having to advertise and see increased business due to those people who otherwise would not have made bail. Bail bondsmen may or may not like the scheme, but for them it's better than wholesale elimination of their profession.

For the guilty, not much changes either. They are still out the amount they would have been, though this will have been deferred until after sentencing. There is, of course, a big change for those who are guilty but wouldn't have otherwise made bail -- they see the imposition of a financial liability they wouldn't have been given had they waited for trial in jail. In this and any case, however, provisions to pay this and any other set of fees and penalties over time can and should be made. In some cases, the governments may need to provide a fund to pay for the hopelessly indigent. Regardless, the bail bondsmen's fees are almost assuredly less than what pretrial detention costs would have been, so the system should be a net saving for government.

For the innocent, much changes for the better. People who otherwise wouldn't have made bail don't stew in pretrial detention and the people who would have gone to bail bondsmen have saved hundreds or even thousands of dollars in their encounter with the criminal justice system. And it better protects the rights of citizens recognized by the eighth amendment.

Latest governmental WTF: Presidential alert

Captain Kirk performs a Public Service Announcement on behalf of the United Federation of Planets.

So, at 1818 Zulu yesterday, a FEMA-sponsored "Presidential alert" showed up on my phone. Presidential alert? WTF? Doesn't Trump already have a Twitter account?

That it happened didn't creep me out so much as it apparently has some folks. I think the creep out factor is related to its being called a "Presidential alert". The President is Donald Trump, and thus anything Presidential is connected to President Trump, and therefore subject to any number of evil and twisted ends in his subversion of laws and norms as he transforms America into a fascist dictatorship. Or whatever. Actually, if Trump knew anything about the test, I think it's likely that he learned about it from Fox news. I don't know, but I wouldn't think that something like this needs Presidential attention once the decision was made to implement the new capability. If he had been in the loop, I think he would have used it to thrash the news cycle, insisting that there be a personal message from him on that the inaugural broadcast. Say what you want about the guy, but he does know how to grab the spotlight and this was an massive opportunity for spotlight grabbing: most of the phones in the US. Opportunity missed bigly. But, I digress… back to the name Presidential alert.

Consider Article 2 Section 1 Clause 1 (A2S1C1) of the Constituion:

The executive Power shall be vested in a President of the United States of America.

The text alert capability is a part of FEMA's more general alert infrastructure -- the one which occasionally produces those god awful screechings on the radio from time to time. Why can't they make up some some nice little service oriented jingle and play that? Or something in praise of fuzzy kitties and you need to go get one or two or half dozen from the local shelter sung by Madeleine Peyroux or, better yet, voiced dramatically to music by William Shatner? But, I digress… FEMA is in the Executive branch and via A2S1C1we may conclude that in some perhaps unusefully vague sense it's not strictly inaccurate to label it Presidential, but they might call it something better. And "President Trump's greatest alert ever issued!" is not something better.

As for the alert itself, the notion of FEMA being able to ask carriers to spam their subscribers with an important message is not in itself troubling. However, it's hard to imagine something that every person with a phone in the US would need to know immediately. Incoming Russian nuclear missiles? Maybe. But a gal canning salmon in Navnek, Alaska probably doesn't need to know that Naranja, Florida is about to get clobbered by a hurricane or overrun by unstoppable mutant pythons from the Everglades who have suddenly developed a taste for people.

So, as for the fact there is a Federal alert system that incorporates cell phone service providers to give the government a push capability to deliver messages to a bunch of phones in the US, that doesn't worry me so much. They could change the name of the alerts, or not. Any emergency so important that everyone in the US needs to know right now is probably going to be coming from the President

Fanatanstic Fables: The Discontented Malefactor -- Slouching toward an Orwellian unlanguage

The Discontented Malefactor

A Judge having sentenced a Malefactor to the penitentiary was proceeding to point out to him the disadvantages of crime and the profit of reformation.

"Your Honour," said the Malefactor, interrupting, "would you be kind enough to alter my punishment to ten years in the penitentiary and nothing else?"

"Why," said the Judge, surprised, "I have given you only three years!"

"Yes, I know," assented the Malefactor--"three years' imprisonment and the preaching. If you please, I should like to commute the preaching."

--

I don't know why I do it, but I cannot look away from the slow-motion trainwreck that is the so-called mainstream media. Where there was once news there is now a continuous shrill torrent of preaching and opinion. Articles in The New Republic and National Review might as well have been written by people from different planets. Seeing friends and colleagues flying apart into their ideological camps has been both amusing and distressing. The amusement I confess is that base reaction that physical comedians tap into when they slip on a banana peel or have a hammer drop on their head. The distress is contemplation of a future where we have lost our collective minds.

I've seen otherwise friendly people literally not able to communicate stalemated by their entrenched certainty in their position and the evil wrongness and deception they believe of the others. I've seen people make decisions based in part on how Trump relates to the situation in the most bizarre and incoherent ways. For instance, someone decided not to go back to Taco Bell ever again because Trump had tweeted a picture of himself eating a Taco Bell taco salad. You're not going to do business with someone who sells Trump a taco salad? Does Trump even buy his own food? And what is the person taking orders at the Taco Bell supposed to do? It's nuts. Yo quiero common sense.

Further distress comes from being (pre)judged and labeled, assigned to one side or the other based on some inclination, or worse, mere observation. Think it's profoundly weird to the point of incredulity that a PhD research psychologist doesn't know how a polygraph works? Well, I must be a sexist and a rape-apologist and a right-wing fascist Trump loving deplorable. Look on a claim of never (ever!) having drank to the point of forgetfulness from someone who apparently started getting together with his buddies for "skis" in his teens with some skepticism? Well, I must be some lefty libtard postmodernist Marxist hater of Western civilization. Clearly.

In hindsight, I wonder what the signal-to-noise ratio is in reportage where the authors feel compelled to assign labels to the people in their stories. It seems these labels are not there to inform, but rather to shape the battlespace. To implant prejudice in the reader. Sadly, hyperbole and misuse have rendered these labels increasingly useless. Just what constitutes a fascist these days? Anyone who didn't vote for Hillary Clinton? A socialist? Anyone who is in favor of any form of a welfare state no matter how small or efficiently administered. While accurate of some people's thinking, it's bunkum. And increasingly dangerous.

Not every "labeler" necessarily thinks much about the labels used because they aren't meant to be accurate or descriptive but rather to signal which side the labler is on. The consequence of this mechanism of virtue signaling is to further erode any precision of meaning for the words. This leaves us slouching toward an Orwellian unlanguage of dystopia. Dead will be ideas leaving only beliefs and dogma.

Fantastic Fables: Father and Son -- Meditations on a soil of remorse

Father and Son

"My boy," said an aged Father to his fiery and disobedient Son, "a hot temper is the soil of remorse. Promise me that when next you are angry you will count one hundred before you move or speak."

No sooner had the Son promised than he received a stinging blow from the paternal walking-stick, and by the time he had counted to seventy-five had the unhappiness to see the old man jump into a waiting cab and whirl away.

--

Ambrose Bierce's mastery of words still astonishes. A hot temper is the soil of remorse. Beautiful. I think that our soil of remorse is a Congress that steadfastly shirks its duty with respect to foreign wars and passes reckless budgets that spends money on wasteful and unproductive goods and services. The depth of their understanding is unknown since they tend to indicate their preferences with the uniform structure of "we need to spend more on X" where X is their preferred program, department, or sector. They indicate their disfavor of program, department, or sector by saying "we should cut spending in Y." A Congressman might his extreme disfavor with something by suggesting it be eliminated entirely. However, the only thing that ever gets cut or eliminated is taxes, and that for only a time. The amount Congress increased the defense spending by in FY 2017 and FY 2018 is $108 billion. That increase is larger than any defense budget in the world, with the exception of China.

One result of prolonged Congressional dysfunction is that we have corporate America out there issuing low interest rate bonds to gorge on cheap dollars. Whereas a stock valuation is an ephemeral construct of the market, payroll, rent, and debt service are things with concrete values that needs to get met at specific times. If too many firms bump into too many of these walls with too few dollars, there could be hell to pay.

In the last recession, the gangsters who caused all the trouble whacked the back of the taxpayer's head with their financial walking-sticks and hopped into the getaway cab while the taxpayer was counting on the government to do the right thing. Which, of course, they didn't.

Apple is not a tech company

Apple is not a tech company. It is a trillion-dollar luxury product (and services) company. This is not meant as an insult, merely an observation and I am not ready to short AAPL any time soon. They cast off metric booty-loads of money -- so much they don't even know what to do with it. Which is why I don't consider them a tech company. My perspective is informed by having help start a software development company and run it until it had become largely a software maintenance company, from tech to products and services.

Yes, Apple traffics in "tech" writ large, but what I'd call a tech company traffics in innovation. Apple was, for a while, a tech optimization company along with its brand. The insight with the iPhone was to mash up the (derivative) iPod with the ubiquitous mobile phone and slap an Apple logo on it. Since then, they've done doodly squat. Except, of course, make loads and loads of cash and addict millions of people to their phones, services, and brand.

What does it mean if they can't think of something to do with that cash? Yes, they pay a dividend and buy back stock, but that's not innovation. That's turning the crank for investors, which is right and proper in its own way. But, if that's all that's left, then, clearly, they've run out of ideas. And if they're out of ideas, they're not a tech company, by my definition.

As I said, I'm not ready to short AAPL, but there are a few things to keep an eye on. First is the competition. Offerings from Google and Samsung are very strong, and the feature-function gap has narrowed to de facto parity. Second, entry level phones are one tenth the price of iPhones and provide access to the same apps and services that connect users to social media, the Internet, and, oh yeah, make calls. Third, phone quality is sufficiently high across the board that people can be reluctant to upgrade. A new release is no longer a compelling event.

Of course, Apple has a lot going for it and it's hard to see it going away. They have a massive installed based who are deeply intertwined with a labyrinth of Apple services that would make it difficult to switch to a cheaper, and perhaps technically superior offering. Moreover, they control access of companies and developers to their installed. They are sitting on a quarter trillion in cash and that's after a buying back a bunch of stock.

No, Apple is not a tech company anymore, and that's fine. But you know who is a tech company? Amazon. And that they are is amazing and a little scary.

What's a sovereign nation?

Greece wants their drachma back.

What is a sovereign nation? That's not a question I have traditionally spent a lot of time pondering, assuming, naively, that all nations are sovereign by definition. But it's more complicated than that. Originally, the States of the United States were supposed to be sovereign -- or at least much more sovereign than they are today, but that went out the window long ago (thanks Commerce Clause abusing Congress!). And I think that there is a similar process underway in Europe. My proposition is this: if your currency is denominated in Euros and your country's name is not Germany, then you are not a sovereign nation or won't be for long. So, rather than look at what a sovereign nation is, I'll look at what a sovereign nation isn't. Consider Greece. They have been relegated to vassal state status with their monetary policy being dictated by the IMF and the holders of Greek bonds including Germany, France, and others.

What got me thinking about all of this is learning a little bit about Modern Monetary Theory or MMT. There is a lot to MMT and I won't go into it all here, but a key element is that a sovereign state issuing its own fiat currency can never be insolvent. Most macroeconomics are predicated on the government being able to nudge things like inflation, employment, and investment by increasing or decreasing the money supply. When a country's currency is pegged to foreign currencies or is not even under the country's control as with Greece and the euro, the country's monetary policy options are severely constrained. The way the EU is organized is much more problematic than the States since the individual countries are kinda-sorta sovereign in that they have armies and considerable independence over their finances, but those using Euros are much more constrained in their monetary policies than those that do not. It is interesting that the Brexiting UK and other problem children Hungary and Poland don't use the euro. If I were a Swede I'd say you can pry my Kronor from my cold, dead hand. Lather, rinse, repeat the other still fairly sovereign countries. I bet Greece would love to have their debt in drachmas rather than euros. There's not much they can do about the debt today, but there is one plan for how they can get their drachmas back.

The EU much different from the US is that the EU nations are much more different one from the other than the States are in the US. The EU nations have distinct languages, customs, values, traditions, etc., whereas much of the diversity of the US is mixed together and spread out to varying degrees and, for the most part, knit together through the common usage of English. My suspicion is that the only countries in the EU with a real tradition of a Roman-style sense of naturalization are the UK and France and maybe the Netherlands. That is, the French are more likely to see a naturalized French citizen as French (as long as she acts French) than say a Hungarian is to see a naturalized Hungarian citizen has Hungarian.

The most important euro-using country wrestling with its lack of sovereignty is Italy. Unlike the UK, much of the Italian government debt is denominated in Euros, thus leaving the EU much more problematic than the already problematic Brexit. Moreover, an Italian exit of the EU would cause seismic disruptions to the EU and the euro with the loss of the EU's third largest economy that Italy represents. Default by Greece would have been painful for investors, default by Italy might cause a global financial crisis.

Countries and banks are getting too big when the failure of one can bring down the global economy. Banks we can do something about. Countries not so much, but a United States of Europe needs to be built with a lot more care than is being used to run it today. The UK voted for sovereignty. I wonder if they will be the only country to do so.

Trump has catalyzed a watershed moment in our nation's history, and one, if we're not vigilant and careful, may never recover. The "Russia" narrative is an out-of-the-park home run for the Military-Industrial-Congressional-Complex (MICC), both political parties outside the MICC, and the MSM. And no, this is not some grand conspiracy, but an unlikely and unholy alignment of interests which are no longer aligned with the greater good of the American people, or any other people of the world as "people" are commonly understood. What the Russia narrative has done is given us the Mueller investigation. Whatever you think of Trump personally, it's a very bad precedent to authorize a special counsel to investigate wtfever [pdf]:

(b) The Special Counsel is authorized to conduct the investigation confirmed by then-FBI Director James B. Corney in testimony before the House Permanent Select Committee on Intelligence on March 20, 2017, including:

(i) any links and/or coordination bet ween the Russian government and
individuals associated with the campaign of President Donald Trump; and
(ii) any matters that arose or may arise directly from the investigation; and
(iii) any other matters within the scope of 28 C.F.R. § 600.4(a).

(c) If the Special Counsel believes it is necessary and appropriate, the Special Counsel is authorized to prosecute federal crimes arising from the investigation of these matters.

Some say that this is no different than Whitewater, but it's not even in the same universe. Whitewater was started when a specific individual (David Hale) was the source of specific criminal allegations (claimed Clinton had pressured him into making an illegal $300k loan to Susan McDougal). The specific criminal allegation that launched a thousand ships against Trump and perhaps all future presidents: Russia! Whitewater, in hindsight, was really bad. This takes that mistake up to 11. The opposition at time of inauguration has a shiny new tool, burnished by precedent. Joseph Campbell's Hero's Journey will be supplanted by the Quest for the Blue Dress in our cultural narratives.

MICC benefits because a super-majority of the sheeple they herd and fleece are now united in fear and loathing of Russia and are baying for action. And if the sheeple trust the MICC to deal with the Russian (bug)bear, well, they extend that trust to believe the MICC will do what's in their best interest. And our war in Yemen is good for jobs. Yeah, that's the ticket.

And Russian fear and loathing sells. It whips up passions and generates the clicks and the retweets and sustains the monologues. Is there any MSM outlet that is at all skeptical of the Russian narrative. Sure, they have different spins this way and that (no collusion with Trump, but totally tried to whack Skirpal, or collusion, hacked the election, and totally tried to whack Skirpal), but there is some way that Russia is at the bottom of something nefarious that's totally transforming America for the worse. And they're right. Whether the Russians are doing something effective actively, I don't know, but the Cult of the Anti-Russia is creating a bunch of dogmatic zealots whose reasoning is impaired where fact and fiction are indistinguishable.