Expiration of Affirmative Action

Affirmative action got its start with an executive order signed a few weeks into John F. Kennedy's administration. Expanded by further executive orders and court interpretations of the Civil Rights Act of 1964, the programs eventually required organizations receiving federal funds to demonstrate that a percentage of their workforces and subcontracts were reserved for minorities.

The rationale for the programs was that because minorities had been discriminated against in employment for decades, and in the 1960s and 1970s were still being discriminated against, it was the federal government's responsibility to enforce proportional participation for them.

The main argument against the programs was that in forcing an organization to reserve a portion of opportunities for minorities, the government was in effect discriminating against non-minorities - whites, typically - that would have won those opportunities on purely competitive grounds.

Although it is subject to that "reverse" discrimination criticism, affirmative action was the right solution at the right time to address pervasive racial bias in employment. Lyndon Johnson put it best when he said in 1965, "You do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race and then say, "you are free to compete with all the others," and still justly believe that you have been completely fair."

But how long is it necessary to apply these extraordinary measures before the effects of past wrongs are corrected? When can we as a society say that it is time to dismantle affirmative action programs and return to a less "managed" form of competition for opportunities? When can these race-based preferences expire?

Justice Sandra Day O'Connor discussed such an expiration of affirmative action in her majority opinion in Grutter v. Bollinger (2003), in which The University of Michigan Law School's minority preference in admissions was upheld by the Supreme Court: "We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today." She referenced in her opinion a similar case which had arisen about 25 years earlier, Regents of the University of California v. Bakke (1978), in which the Court allowed the continued use of race as a factor in admissions, though within narrow constraints.

Justice O'Connor's mention of 25 year periods coincides with a commonly used definition of a generation. The Bakke case came up in the middle of the first generation of individuals to enter productive society under the influence of affirmative action programs. The Grutter case came to the court in the middle of the second generation. O'Connor's contention is that a similar case in the middle of the third generation would no longer survive constitutional review.

That view is the correct one. There is a high likelihood that if a "third generation" individual is entering the workforce without adequate preparation, it is more due to the failure of that individual's parents and grandparents to take full advantage of the opportunities that society provides than due to latent and persistent bias in hiring and admissions practices. To continue to maintain preferences past the second full generation of affected parties would be to ignore the human faults that exist in members of all races. Many people simply do not focus on preparing their children for competition in the workforce. Contorting the competitive playing field will never solve that type of problem.

So what does two generations mean? It means that 50 years after the enforcement of affirmative action became widespread, or somewhere between 2015 and 2025, should mark the point at which I would support legislation or court action to vacate the provisions of the programs.

This does not mean that the anti-discrimination laws should be removed or ignored at that point. Indeed, they should be enforced more intently from that point. Affirmative action was initiated in the first place due to the failure of companies, universities, and legal agencies to enforce existing law. There is no reason to believe that persistent prejudice among the majority will not leak into the public sphere again.

posted 16:27:05 on 01/09/09 by blucas - Law - comments

What Could Still Be Secret in the NSA Wiretapping Story?

The Bush administration has repeated many times since the New York Times exposed the warrantless wiretapping program run by the National Security Agency (NSA) that any discussion of it, whether by members of Congress or the media, or release of documents related it would weaken the security of the United States by giving the enemy intelligence on what the NSA is doing.

So how might an enemy gain from such a discussion? One would have to expect that a reasonably talented enemy would have taken the administration's own comments and assumed that the program information released thus far is incomplete and does not describe the full breadth of the program. They would have to assume that other unpublicized aspects of the program make communications even less private and secure than they thought.

What do we think we know about it so far? It has been reported that the program targets phone calls, e-mails and other transmissions made between persons in the United States and international counterparties. Further, the administration said that to be subject to warrantless wiretapping, the person or device tracked will have showed up in connection with another person or device already under surveillance for terrorist activities. Also, the number of citizens potentially wiretapped at any one time is purportedly not more than 500.

That these aspects of the program could exist is not much of a stretch of the imagination when one considers that the existence and objective of the NSA has been confirmed for more than 30 years. Any foreigner with a brain and an intent to electronically transmit information damaging to the security of the United States would have had to assume that the NSA would try to detect, transcribe and forward such a transmission to another security agency or department. Additionally, any US citizen could know that the twenty-year-old Foreign Intelligence Surveillance Act (FISA) allowed the government to secretly wiretap them if evidence surfaced and was presented to a secret US court. (Note that the existence of the court was not a secret; merely its proceedings and judges were kept secret. Perhaps this confusion is what irked President Bush so much about public discussion of the program - maybe he thought that the existence of FISA and the court were not public knowledge because the word "secret" was used.)

We also now know that the administrative step of presenting evidence to the FISA court is no longer required to initiate wiretapping without our knowledge. But if we are the enemy, we have gained nothing, because whether or not the FISA court knew of the surveillance, we could not have known. (Does the Bush administration believe that there are traitors on the FISA court?)

If there is a loss of security in publicly discussing the details of the NSA warrantless wiretapping program, it must then come from aspects of the program which have not been made public. So what might this program really entail? What aspects of a wiretapping program, if they were made public, would truly cause enemies to change their behavior and diminish the US's ability to track their activities? The suspicions about the program can be broken out into different categories: Who? What? How? and Where?

WHO is being wiretapped? The administration's position is that only people or devices that have a connection to known or suspected terrorists are subject to wiretapping. This was already public and any enemy would have to have figured this to be the case even before the NSA program was made public. So in order for further public discussion of this aspect of the program to degrade our security, the list of potential targets would have to be larger.

What criteria could the NSA use to develop a larger list of wiretapping targets? How about anyone who ever visited, called or e-mailed a counterparty in the Middle East and south Asia? That should cover most of the terrorists who might attack us. But terrorists are also active in Europe, Africa, Asia and South America. How about targeting anyone who ever communicated with any person or device from another country? (Remember, we are looking for a list which, if it were made public, would give terrorists additional intelligence.) Then again, why limit it to people who have communicated overseas? A reasonable assumption might be that the NSA would like to target all communications by any person in the US who has traveled to another country or has communicated with any person or device from another country.

That will be a huge list, but we also know that the NSA has huge computers. Part of the NSA mission from its inception has been code-breaking. That requires the use of massive computing capacity. They only need a team of programmers to turn some of these computers from code-breakers into communication monitors. So while it is conjecture whom the NSA MIGHT be targeting for surveillance, it is not conjecture that massive surveillance is within their capabilities.

WHAT communications would the NSA seek to intercept from that list of targets? Electronic communication involves many formats: fixed-line phone, cell phone, internet phone, satellite phone, e-mail, internet chat rooms, instant messaging, text messaging, and amateur radio among them. Since there is little way for the NSA to know beforehand which phone calls or e-mails from their list of targets might contain sensitive intelligence, one way to be sure is to intercept all of them. An article in the New York Times on 13 April 2006 ("Documents Show Link Between AT&T and Agency in Eavesdropping Case") strongly suggests that the infrastructure already put in place to monitor targeted traffic could be modified to monitor ALL traffic, purely domestic traffic included, with a "trivial" programming change.

If computing capacity were an issue, another way could be to randomly intercept a significant fraction of all transmissions. Statistical concepts would predict that "hits" attained within the sample could be pursued to find other suspect transmission among the non-sampled population.

Several of the communication formats listed above have the capability of being encrypted. It's a well-known story (if partly urban legend) that when it was publicly revealed that the US had monitored the satellite phone transmissions of Osama bin Laden, those transmissions stopped immediately. It's also well-known that on 12 September 2001 Sen. Orrin Hatch publicly revealed intelligence gathered from monitored communications to suspected al Qaeda operatives marking the 9/11 operation's success. A careful terrorist would be aware of these stories and would assume that the US might be monitoring transmissions, and so would attempt to encrypt sensitive transmissions. For a wiretapping program to be successful against such an enemy, it would have to have the capability of quickly cracking the most widely used encryption schemes. That's all that needs to be said on that subject.

HOW are these communications being wiretapped? The 13 April 2006 New York Times article presents all that is necessary to believe that the monitoring infrastructure is in place and running at major switching points in the US.

The problem is how to handle the massive amount of data such a program would generate. Artificial intelligence algorithms can do a lot to identify suspect transmissions and refine the criteria for finding similar items, but eventually it gets down to humans to process the filtered results and identify high-value targets. Human intelligence (here referring to the mental capacity kind, not the spies-on-the-ground kind) is a precious commodity. One would have to assume that whatever individuals working on this program are overwhelmed. At best they're investigating only a fraction of dangerous communications before the negative results of those communications become reality.

Where the captured data could be effectively used is in after-the-fact prosecution. Simple database technologies could be used to find communications from the vast stores of copied transmissions. Of course, none of the wiretapped domestic communications would be admissible in court unless either a) the FISA court had been presented beforehand with a request for permission to monitor that person or device, b) the law is changed to retroactively legalize all monitoring of communications under the program so far, or c) the administration or NSA "invents" knowledge a pre-existing connection from that person or device to a known or suspected target of the program. Of course, with an ongoing program of detainment of "enemy combatants" at extra-jurisdictional facilities, who needs admissibility?

WHERE are these communications that are monitored? Because other countries passed less restrictive surveillance laws after 9/11, or already had such laws in place beforehand, it's not unreasonable to assume that similar capability exists in other nations. What could REALLY upset the US administration and our allies, however, is if it were revealed that the NSA had the capability and a operating program to monitor communications completely outside the US without the knowledge of the intelligence services in the nations where the communications occurred. Sure, no one would mind or be surprised if those countries included Afghanistan or Yemen, but what if they include France, Germany, Russia and Japan?

One question not discussed so far the WHY. It's glaringly obvious that the righteous reason is to try to prevent loss of life. It's not unreasonable to assume that the administrative constraints of the FISA court actually did impede the intelligence gathering efficiency needed to track terror suspects. This is not to rationalize the administration's response to the constraints, but to recognize that after 9/11 there was likely a weakness observed.

But without the oversight built into the legal FISA approach in response to the Nixon administration's domestic spying, it's hard NOT to assume that purely political spying may be pursued, just as it was in the Nixon administration, by Defense Department, NSA or other intelligence agency appointees with security access to the program and its data. With no independent oversight, who's to stop them?

posted 08:00:00 on 01/05/06 by blucas - Law - comments

Capital Punishment and Reasonable Doubt

On the issue of capital punishment people often position themselves either firmly for or firmly against it. Others look at the nature of each crime, the number of offenses, and the history of the defendant as factors used in determining whether the death penalty should be available. The argument presented here supports the availability of capital punishment as a sentencing option, but expands the breadth of a variable used prior to sentencing in capital crimes. The variable relates not to the crime or to the defendant, but rather to the process of trying and convicting the defendant.

When a jury is considering the evidence in a non-capital case, the personal and societal cost of wrongly convicting the defendant is that we are taking away their freedom for a long period of time. That may amount to the rest of his or her entire life if the mistake is never corrected. The family and friends, however, are still able to visit him or her and offer hope that the verdict will one day be corrected. In a capital murder case, however, the personal cost to the defendant of being wrongly sentenced to death is immeasurable, and the societal cost is great. We will have collectively sanctioned the murder of an innocent person. At the moment the sentence is carried out, we are unable to correct it. In that situation, we would be collectively committing a crime comparable to the one for which the defendant was being tried.

The standard of conviction in criminal cases is "beyond reasonable doubt". But if the defendant is eligible to be put to death for the crime, is "beyond reasonable doubt" strong enough of a standard? Should there be a higher standard?

If there is currently any recognition in our legal system of the variability of certainty of the guilt of defendants, it is not acknowledged in criminal court cases. In other words, when defendants are judged as to their guilt of a particular crime, the potential outcomes are polar opposites: guilty or not guilty (except, of course, those cases in which juries may convict defendants on a lesser crime if evidence was not strong enough for a greater one). This masks the reality behind the verdict - that some or all of the jurors may not have been 100% sure of the suspect's guilt, but were at least convinced beyond reasonable doubt. For each juror, that threshold of "beyond reasonable doubt" was based on their own life experiences and training, and was likely different from the each of the other jurors with whom they deliberated. Still, the sliver of doubt that was judged by each juror to have not reached the level of "reasonable" casts a very slight shadow of uncertainty on guilty verdicts.

The inclusion of 12 people on juries is a systemic counterweight to that uncertainty. If a jury has decided that the defendant's guilt is beyond reasonable doubt, then we know that even the most hard-to-convince juror has rejected any portion of doubt that would reach the level of "reasonable". Just as a chain is no stronger than its weakest link, a verdict is no more certain than its most skeptical member. Since juries are small samples of citizens selected (ostensibly) at random from the population, there is certain to be a high degree of variability in the level of skepticism of the most skeptical member. This variability degrades the overall quality of decisions in criminal cases in general. In capital crime verdicts in particular, that lack of quality is unacceptable.

What is needed is a higher standard of certainty of guilt in order for defendants to be eligible for the death penalty. For this to be attempted, however, our justice system needs to formally recognize the the varying degree of certainty associated with criminal convictions. Accordingly, for capital cases, an new standard of guilt needs to be formalized: "beyond any doubt".

What exactly does "beyond any doubt" mean? It means that in each juror's mind there should be no doubt that the defendant committed the crime and no doubt about the methods, actions, tools, and time frame of the crime. Each state might develop their own versions of a definition, but some models could include a requirement for video evidence of the crime, DNA matching, multiple witness corroborations, or other combinations of physical evidence with one or more of the above. (A commission in Massachusetts recently proposed a revision to capital punishment guidelines there that incorporates stronger requirements of physical evidence.) These are just suggestions. The focus of any enabling legislation or jury instructions, however, should rely less on the details of such suggestions to jurors and more on the idea that they must use those suggestions to decide on their own when the evidence reaches a point of being "beyond any doubt".

It is important to point out that this standard has nothing to do with the heinousness of any individual crime, nor with the unpleasantness or criminal history of a defendant. It has only to do with the quality and sufficiency of evidence presented at trial. Those other variables are certainly relevant in the sentencing phase once it is determined that the defendant's guilt is certain "beyond any doubt", but they have no role in determining guilt.

As with "beyond reasonable doubt", there will be variations among people about when evidence might meet that standard. This is accepted in the current legal arena and no structural changes would be needed to accept it as applied to a new, alternate standard of guilt.

It will require that the guilt and/or sentencing phases be adapted to the newly-recognized, varying level of certainty. It will require juries on capital cases to distinguish between those whose guilt is "beyond reasonable doubt" and those "beyond any doubt". Taken further, this will force us to affirm that we are willing to incarcerate someone who we are not completely sure is guilty ("beyond reasonable doubt" versus "beyond any doubt"), but it also provides us a mechanism by which we can confidently sentence individuals to death when evidence is determined to be irrefutable.

What does this do to the perception of the current standard, "beyond reasonable doubt"? Just bringing the potential weakness in it into the public consciousness as subject matter on its own will cause much hand-wringing. However, numerous highly publicized cases of wrongful imprisonment discovered through DNA testing in recent years has made the public aware that some convictions are erroneous. At the time of those cases, the juries were applying the same standard as today. Anyone who fails to recognize that such wrongful convictions are also occurring today is just being unrealistic.

This recognition and its failure so far to bring any changes to the standard of guilt expose the willingness of our society to err on the side of public safety when it's a close call. In other words, it exposes that we are sometimes willing to take away the freedom of our citizens when we are not completely sure they did anything to deserve that. That's an important point when we consider what reaction the public might have to a new, higher standard of guilt for certain cases.

For example, if the more important standard in capital cases is no longer "beyond reasonable doubt", what does that do to the perception of that standard among potential jurors? Do they then consider it weaker and therefore be more willing to allow a defendant to go free because they determined a higher standard was not met? Or would they be more willing to convict under that "lower" standard because criminal law had recognized that wrongful convictions are an acceptable risk? And what of non-capital cases? Do these same questions apply because jurors have become aware of the differing standards, even though the cases before them involve only the one, pre-existing standard.

There is ultimately no reason, however, that jurors need to alter their thinking on "beyond reasonable doubt". It will remain the threshold of guilt in almost all cases. Even in capital cases, that standard would remain as the applicable one for determining whether the defendant can go free. The additional standard, "beyond any doubt", is the one that would need to be met in order to allow the possibility of the death sentence being applied in any individual case.

In summary, the current trial and sentencing standard for capital cases is flawed and everyone realizes it. The model presented here offers a solution to the worst flaw - sentencing innocent persons to death - without gutting the effectiveness of the rest of the system. It is time to update our thinking on the certainty and quality of criminal sentencing and recognize that we can mitigate risks to ourselves and innocent defendants at the same time. A new standard of "beyond any doubt" should become the required finding of guilt to allow for a sentence of death.


posted 12:00:00 on 01/01/05 by blucas - Law - comments

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