Andrew Sullivan's Blog, page 285

Yglesias Award Nominee

“Whether one is a left-wing looney who becomes unhinged upon simply seeing this woman who loves her family and her country or is a right-wing yahoo who looks on her as some sort of high priestess of traditional values, Sarah Palin’s statement that, if she were in charge, “waterboarding is how we’d baptize terrorists” should shock the conscience … C. S. Lewis warns (I forget where exactly) about one’s glibly getting off, at God’s expense, one-liners that please the crowd but provoke unseen angels to weep. I think Palin’s guardian angel (and yes, she has one, CCC 336) wept at her comparing baptism to waterboarding,” – Edward Peters, of the Sacred Heart Major Seminary in Detroit.

There is also a request for an apology from Palin and the NRA from the National Religious Campaign Against Torture. See their letter to Palin here (pdf).

The Best Of The Dish Today

First up: our monthly update on the independent Dish. We’re now at 28,532 subscribers, edging toward 30,000. In the twelve months since last April 30, we have had revenue of $900K for the first time. So we hit our target four months’ late, if you’re not counting affiliate income. The merch moment is looming fast, so stay tuned for t-shirts and mugs. And we’re moving toward putting some form of video ads on the site for non-subscribers, even as we remain completely committed to an ad-free site for subscribers. So if you want to avoid seeing any ads ever, you know what to do. Subscribe!

Here’s a graph of our revenue for the past three months:

The big hump is the second wave of newly subscribed Dishheads, renewing after one year. The red line is for recurring payments, either monthly or annually, and April’s total intake was a little over $34,000. Over time, the red proportion should grow and grow. As for traffic, well over a million individual people read something on the Dish in April, our third best month in the past year. The two most popular posts in April were “The Hounding Of A Heretic” and “Jo Becker’s Troubling Travesty Of Gay History.“

As you can see, our revenue remains comfortably above last year’s – but not by much. As a consequence, we simply don’t have the budget to commission, edit and nurture long-form journalism by non-staffers just yet. So the full potential of Deep Dish will have to wait a bit. But with our extra revenue, we have been able to hire two interns as staffers, Tracy and Jonah, and use their skills to deepen the regular Dish. You may have noticed that our aggregation has become much more comprehensive of late. Take a post from today on Donald Sterling. It has eleven separate voices adding to the debate, a majority of them after the jump, both from the blogosphere and the in-tray. That follows a post with seven voices; and a personal grilling on the comparison with the Eich case. Our reader threads are also longer and deeper than in the past – again, primarily visible after the jump. Our thread on Truvada and the potential of a pill to prevent HIV-transmission was in many ways more informative than a long essay – with eight separate posts, including my views, Dave Cullen’s input, and many readers. Also, rather than let small reader comments – ones that wouldn’t necessitate a new post – fall by the wayside, we’ve been adding them as updates more and more, in order to feature as much of your input as possible. Even the window contest is getting beefed up. And don’t forget the resuscitated Book Club, which adds another layer of depth to the Dish experience – and the affiliate revenue helps pay for it.

So we’re focusing on making the Dish itself deeper until our budget grows to accommodate more commissioned pieces. But I’m still at work on one long-form essay and planning more. More podcasts are scheduled. Our goal is to do more and more to reward subscribers. But we remain committed to gradual evolution rather than big sudden leaps. It has served us well over the last fourteen years, and we see no reason to change course now.

As far as today, our most trafficked posts were Sarah Palin: Anti-Christian and John Kerry Tells The Truth … Therefore He Must Apologize (the latest here). Other popular posts included a documentary about sounding gay and a roundup of reaction to last night’s botched execution. In better news, millennials seemed to be turning against both sponsored content and male genital mutilation. Your moment of Bowie here.

Updates you might have missed: readers debated the fairness of Sterling getting fined $2.5 million dollars for his bigotry, more readers in the banking industry provided their expert take on the crackdown on porn-star accounts, and yet more readers added to the debate over Jesus’ apocalyptic views.

Thanks again for being the best readership any bloggers could ask for – and sustaining this enterprise unlike any other on the web. Thanks to you, we are truly independent, and our business model is not aiming for a future moment when we will (somehow) break even. We are breaking even. And we’re doing that without ads yet! That’s something we’re proud of. As you should be too.

So see you in the morning.

Is The Death Penalty On Its Way Out?

Here’s hoping. The Economist examines US capital punishment trends:

Even if all the executions scheduled for this year are carried out—which is unlikely—a total of 33 would be the lowest since 1994, and would have fallen by two-thirds from the peak of 98 in 1999 (see chart). In 2013 American juries handed out just 80 death sentences: a slight increase from the previous year, but still close to the lowest level in 40 years. As of October 1st 2013, 3,088 Americans were on death row—down from a peak in 2000 of 3,593.

Update from a reader:

The Economist‘s chart fails to note that many of the states listed as still having the death penalty have actually instituted moratoria. Those states include: California, Colorado, North Carolina, Arkansas, Oregon, Kentucky and Washington.

An accompanying piece from the magazine has more on the subject:

America is unusual among rich countries in that it still executes people. It does so because its politicians are highly responsive to voters, who mostly favour the death penalty. However, that majority is shrinking, from 80% in 1994 to 60% last year. Young Americans are less likely to support it than their elders. Non-whites, who will one day be a majority, are solidly opposed. Six states have abolished it since 2007, bringing the total to 18 out of 50. The number of executions each year has fallen from a peak of 98 in 1999 to 39 last year …

Its advocates insist that it deters murderers, thereby saving lives. If this were true, it would be a powerful argument, but there is scant evidence that it is. The murder rate is far higher in America than in the European Union, which has no death penalty. It is also higher in American states that carry out executions than in states that do not. Granted, some studies have found that, if you control for other factors that also influence crime rates, you can make the case that each execution prevents three murders, or five, or even 18. But such studies are based on thin data and questionable assumptions. There were nearly 15,000 murders in America in 2012. The chance of any individual killer being executed is thus microscopic—and distant, since the appeals process can grind on for decades.

One In 25

That’s how many prisoners on death row are likely innocent, according to a new study. Dara Lind explains:

At least 4 percent of people who receive death sentences in the United States are likely innocent, a new study finds. The paper, in the Proceedings of the National Academy of Sciences, borrows a technique from biomedical research to estimate the number of prisoners sentenced to death who are falsely convicted. The study, by Samuel R. Gross of the University of Michigan and Barbara O’Brien of Michigan State University, finds that at least 4 percent of people who get sentenced to death when they’re convicted would ultimately be exonerated if their cases were closely examined for the next 21 years.

That doesn’t just include current death row inmates: many people who initially get death sentences end up getting their sentences reduced to life in prison. And no prisoner serving a life sentence gets the same level of scrutiny as someone on death row. For this reason, the authors conclude that the rate of false convictions in life-imprisonment cases is probably much higher.

Virginia Hughes elaborates on the study:

Gross and his colleagues collected data on the 7,482 people who were sentenced to death between 1973 – the first year of modern death-penalty laws – and 2004. Of these, 117 were exonerated, or 1.6 percent. But among these, 107 were exonerated while they were still on death row, whereas only 10 were exonerated after their sentence had been reduced to life in prison. This leads to a bizarre situation. If you’re on death row and your sentence is reduced to life in prison, you’re suddenly much less likely to be exonerated than someone who stays on death row.

Steven Hsieh shakes his head:

The study refutes much lower false conviction rates cited by judges and lawyers in the past. Perhaps most notably, Supreme Court Justice Antonin Scalia suggested in 2007 that the wrongful conviction rate is “.027 percent—or, to put it another way, a success rate of 99.973 percent.”

“This would be comforting, if true. In fact, the claim is silly,” Gross writes. “Scalia’s ratio is derived by taking the number of known exonerations at the time, which were limited almost entirely to a small subset of murder and rape cases, using it as a measure of all false convictions (known and unknown), and dividing it by the number of all felony convictions for all crimes, from drug possession and burglary to car theft and income tax evasion.”

Faces Of The Day

Cheerful commuters in London are allowed back onto the Victoria line at Victoria after a temporary closure on the second day of a planned 48-hour underground train strike disrupting thousands of commuters daily routines, on April 30, 2014. By Ollie Millington/Getty Images.

SCOTUS Allows The EPA To Do Its Job

Serwer highlights some good news for environmentalists coming out of the court yesterday:

Environmentalists scored a big win at the Supreme Court Tuesday when the high court upheld an Environmental Protection Agency rule meant to reduce interstate air pollution. Chief Justice John Roberts and Justice Anthony Kennedy sided with the high court’s Democratic appointees. …

States are obligated to meet certain emissions standards under the Clean Air Act, but sometimes pollution from neighboring states affects their ability to meet those standards. Those upwind states are supposed to adopt practices that prevent their pollution from affecting downwind states. That pollution can be nothing short of lethal, a brief filed in the case from the American Thoracic Society noted that “Air pollution measurably and substantially shortens lives.”

Rebecca Leber explains why this matters:

Simply put, the Supreme Court has effectively helped save lives.

The EPA estimated that the rule in question would prevent up to 34,000 premature deaths, 15,000 non-fatal heart attacks, 420,000 respiratory symptom cases, and 400,000 aggravated asthma cases each year, mostly in the states that bear the brunt of the cross-state pollution. With this rule and other EPA air quality regulations still on hold, national air quality has actually grown worse. According to the American Lung Association’s State of the Air report, almost 150 million people breathe unhealthy air in 2014, an increase of 16 million since 2013.

Chait looks to the battles ahead:

The Clean Air Act simply requires the cleanest feasible technology, which would require shuttering all coal-burning plants, imposing huge costs. The EPA wants to tailor its standards to curtail emissions without a blunt-force ban on coal.

Whatever plan emerges will venture onto newer legal ground. Conservatives have adopted the paradoxical strategy of denying the EPA any flexibility to craft regulations, the theory being that forcing it to issue only massively expensive (and therefore politically toxic) regulations will result in them being overridden. Conservative suits to bring about such a result are already heading toward the Supreme Court.

Yesterday’s ruling, which concerns different sections of the Clean Air Act, provides some clues to the Court’s disposition. And for those of us uncomfortable with unleashing runaway temperatures upon future generations, those clues seem encouraging.

Cutting The Tornado Body Count

After the recent spate of tornados, Plumer takes a close look at when twisters kill:

The chart above comes from Harold Brooks of the National Oceanic and Atmospheric Administration (NOAA). Even though more and more Americans are living in areas where twisters roam, the number of tornado deaths per capita has declined in the last century.

One reason? Better early warning systems. Back in the 1980s, forecasters could only give about five minutes warning before a tornado hit, on average. Today, that’s up to around 14 minutes, thanks to new radar systems and better forecasting. That gives people more time to seek shelter.

But improving warning times to a full hour might not lower fatalities:

[I]f people do seek shelter for an hour and the warning turns out to be false, that may make them far more skeptical of future warnings. [Economist Kevin] Simmons’ research has found that areas with more false tornado alarms have higher levels of fatalities when twisters do hit — presumably because people ignore the warnings.

Chris Mooney wonders whether climate change will mean more or bigger tornados:

[I]t would be very premature to say that scientists know precisely what will happen to tornadoes as global warming progresses. However, they have come up with some interesting new results, which point to potentially alarming changes. More generally, the upshot of this research is that tornadoes must change as a result of climate change, because the environments in which they form are changing.

And Allison Kopicki finds that people don’t plan well for tornadoes:

Despite past encounters with extreme weather and expectations for more, nearly 6 in 10 of those in the South and more than 7 in 10 in the Midwest said they had not created a disaster plan that all of their family members knew. More Southerners (44 percent) than Midwesterners (27 percent) said they had created an emergency supply kit.

Money Shot Down

Massoud Hayoun reports that JPMorgan Chase has closed “hundreds” of porn performers’ bank accounts in just over a week:

Numerous porn actors have reported that they received no clear explanation of why their accounts were closed. “Out of left field we got a notice our two personal and two business accounts were being closed,” said Joshua Lehman, the husband and former manager of ex-porn actress Teagan Presley. Lehman said that branch and telephone bankers told him it was “because of our industry,” but staff at corporate headquarters “categorically denied this” and gave no reason for their decision. … Presley agreed with her husband, adding that a customer support representative on the phone said her account posed a risk but wouldn’t specify how. “I think it’s crazy that in 2014 that you wanna give a bank money and they won’t take it. Who doesn’t want money?”

Hayoun notes that Chase of course has no compunction taking cash from porn consumers. One performer is suing the bank for closing her account. But Lux Alptraum points out:

As a private bank, Chase is, of course, within its rights to deny accounts to whomever it chooses as it sees fit.

But there is still something disturbing about a major bank choosing to deny its services to an entire industry. Should other banks decide to follow in Chase’s footsteps, thousands of legitimately employed people and legal businesses could be cut off from one of the bedrock institutions of American society – and, as our nascent legal marijuana industry has shown, a business that cannot get access to banking services is a business that cannot function as a part of legitimate society.

Andrea Garcia-Vargas adds:

Sadly, none of this is particularly surprising as this is not the first time Chase Bank has attempted to deny services to businesses dealing with sex or sexuality. Mark L. Greenberg, founder of a softcore porn studio, even filed a lawsuit against Chase after they refused to allow him to refinance a loan, allegedly because of his job. And more recently, Tiffany Gaines, the CEO of Lovability, ran into trouble with Chase when the bank refused to process her payments – all because she was selling condoms. When reached for comment by Gaines, a Chase representative told her “processing sales for adult-oriented products is a prohibited vertical.”

However, Mary O’Hara suggests the DOJ could be responsible for Chase’ move:

[N]ews is slowly surfacing that shows the US Department of Justice may be strong-arming banks into banning porn stars. It’s called Operation Choke Point, and it has nothing to do with deep-throating. Instead, it’s a targeted effort to shut down as many as 30 separate industries by making it impossible for them to access banking services. In a Wall Street Journal op-ed Thursday, American Bankers Association CEO Frank Keating wrote that the Justice Department is “telling bankers to behave like policemen and judges.”

“Operation Choke Point is asking banks to identify customers who may be breaking the law or simply doing something government officials don’t like,” Keating wrote. “Banks must then ‘choke off’ those customers’ access to financial services, shutting down their accounts.” Keating said the highly secretive operation was launched in early 2013. That’s when porn stars started to complain to the media that their bank accounts were being shut down without explanation. And while the actors are quick to blame banks like Chase and Bank of America for discrimination, those institutions may in fact have no choice.

Update from a reader:

The DOJ operation is without question behind Chase’s decision to cancel accounts belonging to folks in the porn industry. What I find interesting is that these are their personal accounts. I work for a bank and we’re doing this exact same thing – in fact, I spent no less than three hours today working on our crisis communication plan for when we cut off payday lenders, tobacco companies, etc from receiving commercial loans from the bank for which I work. We’re tiny compared to Chase, yet still disentangling ourselves from certain industries.

That said, we are not planning to quit providing personal banking services to owners or employees in these industries.

Another:

I work in the Anti Money Laundering department of a top 10 bank and I’m responsible for closing lots of accounts for unusual and illegal activities. The fastest ways to get an account closed is doing strange things with cash, sending wires to and from countries with lots of criminality, or dealing with Nigeria. In my business the likelihood of a Nigerian doing something illegal with their money is about the same as finding an honest politician. No joke.

This is the first thing I’ve heard about closing porn accounts. Not something my bank is on the lookout for. In fact, FINCEN (the guys who monitor banks for money laundering activity) just put out guidance for banks on how to bank legal pot businesses. I never thought I’d see the day that happened.

The main entities that are weighing on the banks are all from Treasury. I can only think of one time a DOJ employee made my life harder. Perhaps the most important thing to remember about Chase is they just got hit with a $2 billion fine for weak AML procedures. Biggest fine in history for AML issues. They may be overzealous to prove to their regulators that they are with the angels, because their next fine will REALLY hurt.

Yet Another Late-Night Shakeup

On the heels of Letterman’s announcement that he’s retiring next year, to be replaced by Colbert, as well as Leno’s exit, The Late Late Show‘s Craig Ferguson is also giving up his seat:

The Late Late Show formed part of Letterman’s own contract. Because the two shows were produced by the same company, one has to wonder if CBS were only holding onto Ferguson till Letterman left. But on the Monday show’s cold open, Ferguson dispelled rumors he was kicked out: “About two years ago,” he said, “I had decided after eight years … that it was probably time for me to move on and do something else.”

Eric Deggans weighs Ferguson’s contributions to the late-night genre, which he disrupted much as Letterman did:

He never had a backing band – in part, early on, it was likely a money thing. But even after CBS upgraded his studio, Ferguson avoided the bandleader sidekick and live music, instead trading banter with a skeletal robot and with two people in horse’s costume. Really.

As interviews began with guests, Ferguson would symbolically rip up his blue note cards as a way of signifying that what was coming wasn’t really planned. Sometimes, that brought a lot of empty riffing with a celebrity who just couldn’t keep up. But sometimes, you got this (warning: parts of this are a little NSFW). …

Small wonder that more traditional shows hosted by Jimmy Fallon and Seth Meyers beat The Late Late Show in ratings. And it’s also no surprise that Ferguson might get tired of re-inventing the form every night and just move on (he already has his next TV gig lined up: hosting his syndicated game show Celebrity Name Game). Beyond hoping they don’t hire yet another white male, I’m crossing my fingers that CBS succeeds Ferguson with someone just as willing to blow up conventional ideas of what a late night talk show can and should be.

David Sims admires Ferguson’s approach to comedy as well as his serious moments:

His only Emmy nomination for the show came from the 2006 eulogy he delivered for his father, who had died the previous weekend [see the above video; Part 2 here]. Even though Ferguson has always been a candid and open performer, it was still a beautiful moment, one of those rare times on television when a performer seems as personally close as a family member.

Ferguson, a recovering alcoholic, was also resolute in which targets he would pick for mockery in his opening monologue, and shied away from criticizing celebrities who had similar substance abuse problems or were obviously going through profound suffering in public. It’s a tough line for any comedian to walk, and Ferguson would probably be the first to admit he broke his own rules, but his willingness to discuss the issue also set him apart from other late night hosts.

Poniewozik refrains from speculating over who will replace him and instead suggests that CBS put something entirely different in The Late Late Show‘s time slot:

Ferguson’s audience was small but intense, but for many others, late-night only exists as a kind of cultural proxy. There should maybe be a punch-card system, in which you need to show proof of having actually watched 20 full talk-show episodes in a year before venturing a heated opinion as to who hosts one. As a colleague once told me back during the Jay/Conan disaster, “I don’t really watch Conan, but I like to know that he’s there.”

So people will debate, again, who should host CBS’s late-late show, but there’s a good argument that we don’t need the show at all–not, anyway, a show with a monologue, a house band, two interviews and a musical guest. CBS might do much better creating a program to reach some part of the vast, vast audience that does not watch talk shows, period.

Can Cops Search Your Smartphone?

The Supreme Court heard arguments yesterday in two separate cases addressing whether the Fourth Amendment’s protection against unreasonable searches and seizures extends to the contents of your cell phone. Sarah Gray sums them up:

The two cases being heard are on opposite ends of the spectrum. The first is Riley v. California. In 2009, David L. Riley had an expired car registration, and was pulled over in San Diego. Police also found two loaded guns and text messages that associated him with a gang. A further search of the phone linked him to an attempted murder. He was convicted and received 15 years in prison. Both the guns and phone were found without a warrant; a California appeals court ruled that the search was like going through a person’s wallet or address book and did not require one.

The second case is United States v. Wurie. Brima Wurie was arrested in Boston in 2007 on drug and gun charges. Officers searched his flip-phone’s call log without a warrant. A Boston federal appeals court threw out the cellphone records as evidence. Judge Norman H. Stahl wrote, “Today, many Americans store their most personal ‘papers’ and ‘effects’ in electronic format on a cellphone, carried on the person.”

Dahlia explains the court’s dilemma:

The problem for the court today is that they don’t much like the prospect of allowing the cops to search jaywalkers’ cellphones for evidence of anything bad they’ve ever engaged in. Even Justice Scalia conceded that for someone arrested simply for driving without seat belts, “it seems absurd that they should be able to search that person’s iPhone.” But at the same time, the justices also don’t want to hamstring the police who claim that if they can’t search cellphones, they will be in danger, and major crimes will go unsolved.

Serwer was unimpressed with the court’s tech savvy:

“Could you have a rule that the police are entitled to search those apps that, in fact, don’t have an air of privacy about them?” Chief Justice John Roberts asked. “What about something like Facebook or a Twitter account? There’s no real, there’s no – any privacy interest in a Facebook account is at least diminished because the point is you want these things to be public and seen widely.”

Roberts seemed confused by the difference between being able to see a public status update or a tweet and having direct access to a password-protected social media account through a mobile device – perhaps Anthony Weiner could enlighten him.

Noah Feldman hopes the justices insist on warrants for cell phone searches but fears they will settle for something less:

The court’s conservatives seemed very interested in the rule proposed by the office of the solicitor general, which is that the police should be able to search a smartphone without a warrant in order to find evidence relevant to the crime for which a person is being arrested.

On the surface, the proposed rule has some mild appeal. It certainly responds to Justice Scalia’s concern that every arrestee for any crime, no matter how small, could find his or her entire life’s data reviewed and logged into a single government archive. The trick would be figuring out how to limit a data search to information related to the cause of arrest. … As Justice Elena Kagan put it, “It sounds good as a limiting principle, but it ends up you can imagine in every case that the police could really look at everything.”

But that, as Amy Howe explains, wasn’t the only middle-ground rule proposed yesterday:

DuMont and Justice Alito, for example, suggested that a warrant should not be required as long as police are only looking at information – like a photograph – that is analogous to something that police could have searched in the pre-digital era.  But Justice Kagan objected that such a rule would actually exclude very little, noting that almost everything on a cellphone “could be reduced to a piece of paper.”  And Justice Stephen Breyer similarly noted that there is very little data on cellphones that wouldn’t have an analog from the pre-digital era, telling DuMont that the real problem is the quantity of data found on modern cellphones, which far outweighs the quantity of papers and photos that most people would carry around with them. …

And Justice Anthony Kennedy proposed yet another possible middle ground:  whether police can search an arrestee’s cellphone without a warrant would depend on whether the crime for which the individual was arrested was a serious or non-serious offense.   Having made that suggestion, though, Kennedy himself immediately expressed doubt about whether the Court’s cases would support a distinction between serious and non-serious offenses.

Orin Kerr points out that creating such a middle-ground rule is easier said than done:

[T]he Justices still have significant work to do in crafting a new rule, and not a lot of time in which to do it. If you go with a bright-line rule, the opinion pretty much writes itself; the choice of the bright line rule makes the decision easy to craft. But the middle-ground approach involves lots of different possible variables, with hard choices to be made among which variables should matter and how. That makes it tricky to craft, especially in a tight time window. To make things harder, there aren’t many examples of middle-ground answers from the lower courts. The only middle-ground approach that I recall from the lower courts was Judge Posner’s opinion in Flores-Lopez, which wasn’t necessarily a successful effort.

Brianne Gorod expects Scalia to come down, as he has in other recent cases, on the side of strong Fourth Amendment protections:

There should be little doubt about what Scalia will say about these searches. He has become a regular champion of the Fourth Amendments protections against “unreasonable searches and seizures.” In Navarette v. California, Scalia disagreed with the court’s conclusion that the police could lawfully stop a car after a woman anonymously called 911 and reported that the car had driven her off the road. Scalia wrote that such stops were not the constitutional framers’ concept of a “people secure from unreasonable searches and seizures.”

And in Maryland v. King, a case decided last term, Scalia disagreed with the court’s conclusion that the police may lawfully take a cheek swab of someone’s DNA after he or she has been arrested for a serious offense. He expressed “doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection.”

For Sullum, however, this is not a tough call:

The truth is that Court’s rules for arrest-related searches have been needlessly deferential for decades. Preserving evidence and protecting officers from hidden weapons were the two original justifications for making an exception to the warrant requirement. But neither of those goals requires reading detailed information about an arrestee, whether it is stored on a cellphone or in a notebook. Barring far-fetched emergencies, there is no legitimate reason why police, having secured such evidence, cannot go to the trouble of getting a court order authorizing them to examine it. That point is especially clear in the case of cellphones and other portable electronic devices, which routinely contain just the sort of private information the Framers meant to protect when they banned unreasonable searches of people’s “papers” and “effects.”