Obama: Discharged Gays Should Re-enlist

By Kenneth Jost
Associate Editor, CQ Researcher

President Obama has signed into law legislation to repeal the “don’t ask, don’t tell” policy on gays in the military, promising that the measure will be quickly implemented and calling on discharged gay service members to re-enlist.

“No longer will tens of thousands of Americans in uniform be asked to live a lie, or look over their shoulder in order to serve the country that they love,” Obama said as he presided over a bill-signing ceremony Wednesday morning [Dec. 22] in a packed auditorium at the Interior Department headquarters in Washington.

The legislation calling for repealing the 17-year-old policy prohibiting gays from serving openly in the military cleared the final congressional hurdle on Saturday [Dec. 18] with a 65-31 Senate vote approving the measure. The House of Representatives had approved the stand-alone measure earlier [Dec. 15] by a vote of 250-175.

In signing the bill, Obama stressed that the current policy remains on the books until he, the secretary of defense and the chairman of the Joint Chiefs of Staff certify that repeal is consistent with military readiness. Both Defense Secretary Robert Gates and Admiral Mike Mullen, the current chairman of the Joint Chiefs, had supported repeal.

Mullen was among the dignitaries on the platform for the ceremony and received a standing ovation from the crowd as Obama thanked him for his support. Two of the individual service chiefs _ Gen. James Amos of the Marines and Gen. George Casey of the Army _ had urged Congress not to repeal the policy with U.S. forces currently engaged in Afghanistan.

Despite their previous opposition, Obama said he had spoken with each of the service chiefs on putting the new policy into effect. “They are all committed to implementing this change swiftly and efficiently,” Obama said.

About 13,000 service members have been discharged under “don’t ask, don’t tell” since it was enacted into law in 1993 as an ostensible compromise to President Bill Clinton’s unsuccessful effort to end restrictions against military service by gay men or lesbians. “I hope those soldiers, sailors, Marines, airmen and Coast Guardsmen who’ve been discharged under this discriminatory policy will seek to re-enlist once the repeal is implemented,” Obama said.

The bill-signing came after a week of legislative successes for Obama, achieved in the face of what he acknowledged as a “shellacking” in the midterm congressional elections in November. On Friday [Dec. 17] Obama had signed into law what the White House called the “middle class tax cut framework” that Vice President Joe Biden had helped negotiate with Senate Republicans. The bill extends for two more years the Bush-era tax cuts that had been set to expire on Jan. 1.

Obama achieved another signal victory on Tuesday [Dec. 21] when the Senate voted 67-28 to limit debate on a new nuclear arms treaty with Russia. The vote sets the stage for the Senate to ratify the treaty, by the constitutionally required two-thirds majority, later this week. Despite opposition by the Senate’s top Republicans, 11 GOP senators joined all Democrats in voting to cut off debate.

On the same day, the House cleared for Obama’s signature a food-safety bill strongly pushed by the administration. The bill, approved by a 215-144 vote, gives the Food and Drug Administration strengthened powers to prevent contamination in whole and processed foods other than meat, poultry and eggs. Those foodstuffs are regulated by the U.S. Department of Agriculture.

Gay rights advocates were out in force for the bill-signing Wednesday, both in the audience and on the platform. Along with congressional leaders, two gay ex-service members stood behind Obama as he signed the measure: Marine Staff Sgt. Eric Alva, who received a medical discharge after a landmine explosion in Iraq cost him one of his legs; and Navy Commander Zoe Dunning, who retired in 2007 after having won a legal battle to stay in the service following her public acknowledgment of her sexual orientation in 1993 while in the Navy Reserve.

For background, see Peter Katel, “Gays in the Military,” CQ Researcher [subscription needed], Sept. 18, 2009; updated, Oct. 15, 2010. See also Peter Katel, “Food Safety,” CQ Researcher [subscription needed], Dec. 17, 2010.

Congress Passes Food-Safety Bill

By Peter Katel

Congress has finally passed the first major overhaul of food safety law since the regulatory system was established in 1906. As this week’s CQ Researcher [subscription required] reports, a last-minute technical hitch and growing political opposition nearly doomed the legislation for this congressional session. The bill’s prospects in the next Congress seemed dim.

President Obama has indicated he will sign the legislation, which applies to the U.S. Food and Drug Administration, overseer of 80 percent of the country’s food supply. Most notably, the FDA will be empowered to order food recalls, which have been voluntary up to now.

The legislation grew out of a strange-bedfellows alliance between consumer advocates and major sectors of the food industry. Members of both were alarmed by a series of major food-poisoning outbreaks that began in the early 1990s. These claimed dozens of lives, and gravely sickened hundreds of people, many left permanently disabled.

The remaining 20 percent of the national food supply – most meat and poultry – is regulated by the U.S. Agriculture Department. That agency wasn’t affected by the new legislation, but some food safety experts are advocating a new law to toughen oversight of meat production.

Suicides by Indian Microfinance Borrowers

By Sarah Glazer

Politicians are blaming as many as 80 suicides in the last few months in the Indian state of Andhra Pradesh on poor borrowers' inability to repay their microfinance loans, according to reports from the Wall Street Journal and the BBC.

This is not the first time that suicides by poor borrowers have been linked to the high-interest microloans pioneered by Nobel Prize winner Muhammad Yunus, as I pointed out in my April 2010 CQ Global Researcher report, "Evaluating Microfinance." [subscription required] It is always hard to know for sure the reason for such suicides, but this time the government of Andhra Pradesh seems to be laying the blame directly at the feet of aggressive lenders. Politicians there have been urging borrowers not to repay their loans, and the state's parliament has passed a law under which lenders can be penalized for arm-twisting collection methods, a crackdown that appears to be spreading to Bangladesh, where Yunus first pioneered microloans.

According to AFP reporting, the new Andhra Pradesh law obliges recovery agents to collect debts at district government offices rather than at home in a bid to stop coercion and also stipulates that debts can be collected only once a month rather than weekly.

"The new system of collecting loans (at designated centres) will make it tougher for borrowers to repay loans as they do not have an organised saving pattern," Santosh Singh, a financial analyst at Execution Noble, was quoted by AFP. The law contains penalties of up to three years in jail for using coercive recovery tactics and insists that all microlenders be registered. It says annual renewal of their registration will depend on their track record.

As I pointed out in my CQ Global Researcher report, some experts have long worried that the multiple loans taken out by poor borrowers with limited ability to repay could trigger a crash similar to the subprime mortgage crisis in the United States. So far, the high repayment rates of up to 98 percent reported by microfinance lenders have assuaged many lenders' and investors' fears. But because the centralized system of credit bureau checks typical of U.S. loans is generally lacking for microloans to villagers in developing countries, some experts worry that lenders are not always aware of the numerous loans borrowers have from other creditors and the precariousness of their ability to repay.

Recent suicides have occurred among borrowers with as many as three loans from separate microfinance lenders, according to the BBC. The crisis in Andrha Pradesh could be a sign of an inherent flaw in the way the industry conducts its business, or it could be a regional blip in an area where too many lenders have urged too many loans on poor people who have too few resources to repay them.

Would new legislation make the food supply safer?

To follow is an excerpt from the CQ Researcher issue "Food Safety" by Peter Katel on December 17, 2010

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Questions about the adequacy of federal food-safety regulation have dominated news coverage of food-borne illness outbreaks over the past 20 years. Doubts grew even more insistent following the two most recent major outbreaks.

In this year's egg contamination case, federal and congressional investigations showed that health issues were nothing new for the DeCosters' Wright County Egg operation. The farm had been declared a “habitual violator” of environmental laws by the state of Iowa as far back as 2001 and paid $219,000 in fines. [Footnote 12]

Since 2008, state inspectors had found 426 positive test results for salmonella, including 73 potential indicators of the precise strain that sickened at least 1,600 people. [Footnote 13]

Rep. Bart Stupak, D-Pa., chairman of the House Energy and Commerce Oversight and Investigations Subcommittee, and Sharfstein, the FDA official, used the September hearing as a forum to urge Congress to finish work on the food-safety legislation. Both the House bill and the similar measure the Senate passed on Nov. 30 would require the FDA to order food recalls if a company refuses to do so. They would also require all producers and processors to maintain food-safety plans covering every step of their operations. Whistleblowers in food facilities would get legal protection for disclosing information about safety violations. And imports would be subjected to the same requirements as domestically produced food. [Footnote 14]

Sharfstein argued that mandatory recall authority, as well as steady funding from fees imposed on food producers, would ensure more extensive oversight. “Here's my bottom line,” he said. “We need this bill. We need this bill to protect the safety of the food supply. We need this bill to help us prevent another egg outbreak just like the one that we've experienced.” [Footnote 15]

Changes in the food system make the legislation essential, says Marler. “If you look at the last several years, the overriding problem has been the fact that the food industry has gotten so complex, with all these inputs from a variety of places — small and larger farms — that industry was only as strong as its weakest link,” he says. “What the bill is trying to accomplish is to deal with all of it, so that industry is not taken down for the bad practices of one part of the puzzle.”

That overall benefit aside, Marler says the single most crucial part of the legislation is often overlooked in the political debate over regulatory authority. The provision (contained in both Senate and House versions) would order FDA to develop methods to rapidly track raw fruits and vegetables, enabling quick identification of the source of a contamination outbreak. [Footnote 16] “Right now, there are some states that do a great job of surveillance, like Minnesota, and others — mostly in the South — that do an incredibly crappy job of surveillance,” Marler says. The project, he says, would lead to “a more unified and efficient system for food-borne illness surveillance.”

Nevertheless, some argue that beefing up the FDA would defeat the purpose of instilling more efficiency in the food-safety process. Even the legislation's proposed requirement of a food-safety methodology known as Hazard Analysis and Critical Control Point, or HACCP — in which each step in a process where contamination can occur is rigorously monitored — would become less effective if the legislation were enacted, argues Gregory Conko, a senior fellow at the Competitive Enterprise Institute, a pro-business research and advocacy organization.

“When you get a regulatory agency involved, in order to make it at all practicable for them, you've got to make it uniform, so that regulators understand what they're looking at and how to go about enforcement and inspection,” Conko says. “Instead of allowing the plan to be highly flexible, it ends up instilling rigidities that eliminate the benefits you might otherwise have gotten.”

And mandatory recall authority likely would make the response to contamination outbreaks less effective, Conko says. “The benefit of the current situation is that when the FDA identifies a potential problem, they've actually got to go explain to the manufacturer, ‘Here's why we think the problem is in your food, and here's why we think you should engage in a recall of these lots,’” he argues. “Recalls, when they happen, are more targeted and precise. If FDA can order recalls with no pushback from industry, then political incentives will force it to order lots of recalls, even where there is limited evidence that a problem exists in a particular lot or product line.”

But advocates of the legislation maintain that the voluntary-recall system has outlived its usefulness. They point to this year's contaminated egg scandal as an example. “Having that many eggs going out to as many states as they were going to, you can't contain an outbreak” without more intensive regulation, says Elizabeth Hitchcock, public health advocate for the U.S. Public Interest Research Group (USPIRG), a consumer advocacy organization. “It's a problem that we can address by requiring more frequent inspections and by giving the FDA authority to order the recall rather than spending time negotiating back and forth, which slows down the process of getting unsafe food off store shelves and out of pantries.”

Outbreaks would still occur if FDA power were expanded, Hitchcock acknowledges. “But we can curb the spread of an outbreak and get food off shelves more quickly,” she says. “When people buy a can of whatever it is — ravioli, say — they ought to have some assurance that the food was grown safely, packed safely, and, if there is a problem, that the problem can be resolved quickly.”

But “the FDA has a tendency to shoot first and ask questions later,” argues Kennedy, of the the Farm-to-Consumer Legal Defense Fund. “For a big firm, recalling product is written off as a cost of doing business, but with small firms, just one recall can put them out of business. Giving the FDA this recall power poses risk to firms who might, in instances where there is no case of illness, still be ordered to recall a product.”

Moreover, despite evidence that the egg producers this year tolerated health hazards, Kennedy asserts that the FDA doesn't need recall authority. “If a firm thinks its products have made people ill, they're going to get them off the market ASAP,” he says. “They're looking at tremendous civil liability damages they could have to pay. The firm has an incentive to act.”


The Issues:
* Would new legislation make the food supply safer?
* Are imports a bigger problem than domestically produced food?
* Are genetic modification, livestock hormones and plastic packaging as dangerous as salmonella?

For more information see the CQ Researcher report on "Food Safety" [subscription required] or purchase the PDF.

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Footnotes

[12] Clark Kauffman, “Supreme Court gives DeCoster partial win,” Des Moines Register, April 26, 2001, p. B6.

[13] Ibid.

[14] Adjoa Adolfo and Melissa Attias, “S 510,” CQ bill Analysis, Nov. 25, 2009; Lyndsey Layton, “Food safety bill,” (sidebar), The Washington Post, Nov. 1, 2010, p. A11.

[15] Ibid.

[16] “S. 510,” U.S. Senate, March 3, 2009, p. 74, http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=111_cong_bills&docid=f:s510is.txt.pdf.

Release of new Census data marks important milestone

By Thomas J. Billitteri

In the past decade, the Census Bureau made an important change in the way it collects and disseminates demographic, housing and economic data. That change has been bearing fruit since the middle of the past decade, but today the bureau is releasing the first full roll out of the new data sets.

As the CQ Researcher noted in its report last spring on the 2010 Census, to help improve response rates to the decennial count, the bureau eliminated the detailed “long form” survey for the 2010 enumeration and replaced it with a short 10-question form. To gather detailed information about the American population, the bureau launched a survey early in the 2000s called the American Community Survey (ACS) designed to produce a steady flow of “rolling” socioeconomic data that will be released in yearly, three-year and five-year estimates. The bureau has been releasing major results from that survey since 2005, producing more detailed tables as the rolling samples accumulated. Today the first ACS five-year data are being published for “small areas,” such as census tracts, or small governmental jurisdictions.

Researchers have been awaiting the information with perhaps a mix of anticipation and a bit of trepidation. Anticipation because the data will provide a richly detailed portrait of the American population. Trepidation because the “rolling” method of collecting the information is new, forcing researchers to grapple with data that are different than the 10-year figures from the traditional long-form questionnaires.

For background on the technical, policy and political dimensions of the 2010 Census, see Thomas J. Billitteri, “Census Controversy,” CQ Researcher [subscription needed], May 14, 2010. And for a new, comprehensive guide to understanding and using the American Community Survey by CQ Press, see acsguide.cqpress.com.

Health Care Law Struck Down

By Kenneth Jost
CQ Press Supreme Court Editor

President Obama has suffered the first legal blow to his health-care reform law with a ruling by a federal judge in Virginia striking down the act’s central provision requiring all Americans to have health insurance.

In a 42-page ruling released Monday (Dec. 13), U.S. District Court Judge Henry Hudson in Alexandria said that the individual health insurance mandate—also called the “minimum essential coverage provision”—went beyond Congress’s power to regulate interstate commerce.

“Neither the Supreme Court nor any federal circuit court of appeals has extended Commerce Clause powers to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market,” Hudson wrote in Virginia ex rel Cuccinelli v. Sebelius. “In doing so, enactment of the Minimum Essential Coverage Provision exceeds the Commerce Clause powers vested in Congress under Article I [of the Constitution].”

Hudson left the other parts of the law intact, but Republican opponents of the ruling hailed the ruling and called on the Obama administration to join in asking for an expedited appeal to the Supreme Court. From the opposite side, supporters of the law said the ruling would undermine other provisions of the act imposing new requirements on health insurers and ultimately raise insurance rates across the board.

In a posting on the White House blog, presidential assistant Stephanie Cutter said the administration “disagrees” with what she called Hudson’s “narrow” ruling. She also predicted that the challenges would ultimately fail. “In the end,” Cutter wrote, the “Affordable Care Act will prevail and the American people will enjoy the benefits of reform.”

The ruling, in a suit by Virginia Attorney General Ken Cuccinelli, represented the Obama administration’s first setback in defending the health care law, formally called the Patient Protection and Affordable Care Act. Federal judges in Detroit and Lynchburg, Va., had earlier rejected similar challenges to the individual insurance mandate; a dozen other suits had been dismissed on technical legal grounds.

Hudson, a former Republican prosecutor appointed to the federal bench in 2002 by President George W. Bush, had clearly signaled his doubts about the individual insurance mandate in August by refusing to dismiss Cuccinelli’s suit. A separate suit brought by Florida and the National Federation of Independent Businesses has also survived a preliminary motion to dismiss. U.S. District Court Judge Roger Vinson, a Republican appointed to the bench by President Ronald Reagan in 1983, is scheduled to hear arguments on Thursday (Dec. 16) in that case, Florida v. U.S. Department of Health and Human Services.

Hudson’s ruling would normally be appealed to the intermediate level Fourth U.S. Circuit Court of Appeals. But Cuccinelli, a Republican elected as Virginia’s top law enforcement officer in November 2009, said he would seek to bypass the Fourth Circuit and move the appeal directly to the Supreme Court.

On Capitol Hill, Rep. Eric Cantor, a Virginia Republican slated to become House Majority Leader after the GOP gains control in January, called on the Obama administration to join in seeking an expedited high court ruling. He also vowed to press Republican efforts to pass what he called “a clean repeal of Obamacare” in the next Congress.

Supporters of the law denounced Hudson’s ruling. In a conference call with reporters, Neera Tanden, chief operating officer of the liberal Center for American Progress, said the decision could force health insurers to raise rates. “Without a minimum-coverage provision, rates will increase because people will wait until they’re sick to get insurance,” Tanden said.

Tim Jost (no relation), a health law expert at Washington and Lee University Law School in Lexington, Va., and a supporter of the law, said it was “very unlikely” that the Supreme Court would agree to the unusual procedure of hearing the appeal directly from a district court. He noted that under the law, the health insurance mandate is not scheduled to take effect until 2014.

Under a normal schedule, the high court would likely get the case sometime during the term that begins in October 2011. A ruling would then be likely in June 2012, in the midst of a presidential election year.

For background, see these CQ Researcher reports (subscription needed): Kenneth Jost, “States and Federalism,” Oct. 15, 2010; Marcia Clemmitt, “Health-Care Reform,” June 11, 2010.

Weekly Roundup 12/13/2010

Class Struggle
Jay Mathews/Valerie Strauss, Washington Post blogs, Dec. 10, 2010

Synopsis: Does funding the KIPP charter schools and the Teach for America program -- which sends recent graduates of elite colleges out for a teaching stint, often of only a few years' duration -- help improve American schools? In this debate between two Post education bloggers -- plus the excellent readers' comment section that follows -- the implications of TFA, and, to a lesser extent, KIPP are pretty thoroughly explored. I'd call this blog ands accompanying comments a must-read if you're interested in the fate of U.S. education.

Takeaway: As Strauss writes: "Can you get a great teacher by plopping anybody -- from Teach for America, or similar programs -- into a classroom after five or so weeks of training? Sure, but outliers don’t make good policy. I won’t mention how insulting it is to professional teachers with traditional training. Look, Jay, there’s no guarantee anybody will be a great teacher. The key is to get rid of the lousy teachers -- and yes, there are way too many -- and help the teachers we do have to improve while attracting people with real commitments to teaching."

Marcia Clemmitt, Staff Writer, CQ Researcher

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What Progressives Don’t Understand About Obama
Ishmael Reed

Synopsis: Novelist Reed’s short, readable and thought-provoking essay offers a surprising explanation for why President Obama is “the coolest man in the room.”

Takeaway: If Obama listened to the progressives and those who say he should “man up” and be tougher, he’d be committing political suicide, Reed says.

Tom Colin, Managing Editor, CQ Researcher

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Dirty Coal, Clean Future
James Fallows, The Atlantic, Dec. 2010

One of the country’s most influential journalists, who has a bent for science- and engineering-related themes, argues in a long, detailed piece that hopes for replacing coal as a major fuel source are futile. Wind power? He cites a calculation that if wind turbines occupied the windiest 10 percent of Britain, their daily output would equal only one-half the power that Britons consume simply by driving their cars. Some environmentalists already are reacting angrily to Fallows’ reasoning. But he writes that if any hope exists for reducing the global-warming effects of coal consumption, it lies in clean-coal technology. The pioneer in this field? China.

Peter Katel, Staff Writer, CQ Researcher

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Bin Laden’s Lonely Crusade
Peter Bergen, Vanity Fair, Jan. 2011

Synopsis: Terrorism expert Peter Bergen, who conducted the first television interview with Osama bin Laden in 1997, says the 9/11 attacks on the United States amounted to “a strategic blunder” for bin Laden and that al Qaeda has actually weakened in the decade since.

Takeaway: “Keeping the threat in perspective,” Bergen says, “is the best way to prevail.”

Kenneth Jost, Associate Editor, CQ Researcher

Should bullying resulting in suicide be a criminal offense?

To follow is an excerpt from the CQ Researcher issue "Preventing Bullying" by Thomas J. Billitteri on December 10, 2010
~~~~~~~~~~~~

The suicides of Phoebe Prince and Tyler Clementi have placed front and center the question of how far prosecutors can and should go in holding alleged bullies accountable for tragic outcomes.

In the Prince case, six teens were charged, five with civil rights violations resulting in bodily injury. Two also were charged with stalking and two with statutory rape. Prosecutors allege that Prince was harassed in school, struck with a can, disparaged online and called “an Irish whore” and “Irish slut.” On the day she died one defendant allegedly used an obscenity to list Prince on a library sign-up sheet. Others were accused of taunting her as she went home in tears. [Footnote 35]

In the Clementi case, the roommate of the Rutgers freshman and another student who allegedly watched the dorm-room encounter were charged under New Jersey privacy law, and prosecutors have been evaluating whether hate-crime law might apply in the case. The students' lawyers say the pair did not record or transmit images of the encounter and that what they saw was tame. [Footnote 36]

These and other suicide cases raise the broad question of whether adolescents who engage in bullying and cyberbullying should be open to criminal charges when the outcome is tragic. Facts and circumstances of the cases matter, of course, but experts say issues of psychology, legal philosophy and science — specifically dealing with adolescent brain development and maturity — also have a role.

“What's the appropriate punishment for these kids?” says the ACLU's Walczak. “I think these issues are going to be percolating in the courts for many years to come.”

In the Rasmussen poll, 69 percent of adult respondents said harassing someone over the Internet should be a punishable crime. [Footnote 37]

Bullying experts point out that when victims harm themselves, their acts often result from a mix of factors, such as problems at home, clinical depression, drug or alcohol abuse and overall feelings of alienation, making it difficult to attribute a suicide solely to harassment inflicted by classmates.

The prevalence of teen suicide also makes the issue of culpability difficult to untangle. Suicide is the third leading cause of death for 15- to 24-year-olds, accounting for 12.2 percent of deaths among adolescents and young adults annually. In 2009, nearly 14 percent of U.S. high school students reported that they had seriously considered attempting suicide during the preceding year, and more than 6 percent said they had made at least one attempt. [Footnote 38]

Still, numerous studies have shown a link between adolescent suicidal thoughts and behavior and peer victimization. [Footnote 39] Hinduja and Patchin, for example, found in a study of 2,000 randomly selected middle school students that a fifth of respondents reported seriously thinking about attempting suicide — a behavior called “ideation” — and nearly a fifth reported attempting suicide.

“Youth who experienced traditional bullying or cyberbullying, as either an offender or a victim, scored higher on our suicidal ideation scale than those who had not experienced those two forms of peer aggression,” they wrote. And victims appeared more inclined toward suicidal thoughts and acts than perpetrators of bullying and cyberbullying. [Footnote 40]

Nonetheless, Patchin says the “hue and cry” to criminalize cyberbullying is “misguided.” Following Clementi's death, Patchin wrote that “the vast majority of cyberbullying incidents can and should be handled informally: with parents, schools and others working together to address the problem before it rises to the level of a violation of criminal law.” [Footnote 41]

If bullying results in a suicide, he says in an interview, “probably somebody should be held to a higher sanction.” But, he adds, “we already have existing statutes that would do. We certainly shouldn't pass a new law saying that if you cyberbully somebody and they commit suicide, you're going to get life without parole. That would be a mistake.”

Limber, the Clemson scholar, cautions, too, that assigning criminal culpability to youthful bullies and cyberbullies is a “tricky question” whose answer must take into account developmental psychology. In the brains of many adolescents, she notes, “the prefrontal cortexes aren't fully developed,” undermining their ability “to plan and to see the consequences of their behaviors.”

Writing in The New York Times about Clementi's death, Paul Butler, a former federal prosecutor and now an associate dean and law professor at George Washington University, argued that suicide is a “rare response” to bullying and that few of the millions of children who are bullied take their own lives.

“Bullies ‘cause’ suicides in the same way that a man ‘causes’ the suicide of a lover he spurns,” Butler wrote. “The criminal law typically does not hold people responsible for outcomes that are idiosyncratic or unpredictable.”

Butler also argued that “when people are punished, it should be for the harm they intend to do. If a bully crosses the line between freedom of speech, and invasion of privacy, or harassment, those are the crimes he should be charged with.” [Footnote 42]

But a number of readers rebuked Butler. One criticized his analogy between a spurned lover and a bullied child, saying: “As a human in this society, you have no obligation to continue loving someone; you do have an obligation not to intentionally inflict harm.” Others blasted Butler's argument that punishment should hinge on intent. “Does this include the drunk driver who didn't intend to kill the people he hit?” a reader wrote.

In a follow-up posting, Butler defended his remarks, saying that “unintentional killers are sometimes prosecuted for negligent homicide, but most such laws require that there be a ‘substantial’ risk that the defendant's conduct would cause the death. Because suicide is a rare response to bullying, it would be difficult for a prosecutor to prove ‘substantial risk’ beyond a reasonable doubt.”

The Issues:
* Are new laws needed to fight bullying?
* Should school officials regulate off-campus electronic bullying?
* Should bullying resulting in suicide be a criminal offense?

For more information see the CQ Researcher report on "Preventing Bullying" [subscription required] or purchase the PDF.

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Footnotes

[35] Stephanie Reitz, “Teen Charged in Mass. bullying case heads to trial,” The Associated Press, Oct. 26, 2010, www.boston.com/news/nation/articles/2010/10/26/teen_charged_in_mass_bullying_case_heads_to_trial/.

[36] The Associated Press, “Rutgers Suicide Case Poses Test For NJ Privacy Law,” NPR, Nov. 4, 2010, www.npr.org/templates/story/story.php?storyId=131075785.
Footnote:

[37] Rasmussen Reports, op. cit.

[38] “Suicide: Facts at a Glance,” Centers for Disease Control and Prevention, summer 2010, www.cdc.gov/violenceprevention/pdf/Suicide_DataSheet-a.pdf.

[39] See for example, Jennifer Wyatt Kaminski and Xiangming Fang, “Victimization by Peers and Adolescent Suicide in Three U.S. Samples,” The Journal of Pediatrics, Vol. 155, Issue 5, November 2009.

[40] Sameer Hinduja and Justin Patchin, “Cyberbullying Research Summary: Cyberbullying and Suicide,” www.cyberbullying.us/cyberbullying_and_suicide_research_fact_sheet.pdf.

[41] Justin Patchin, “Most Cases Aren't Criminal,” “Room for Debate: Cyberbullying and a Student's Suicide,” The New York Times, Sept. 30, 2010, www.nytimes.com/roomfordebate/2010/09/30/cyberbullying-and-a-students-suicide/most-bullying-cases-arent-criminal.

[42] Paul Butler, “Not Every Tragedy Should Lead to Prison,” “Room for Debate: Cyberbullying and a Student's Suicide,” The New York Times, Sept. 30, 2010, www.nytimes.com/roomfordebate/2010/09/30/cyberbullying-and-a-students-suicide/most-bullying-cases-arent-criminal.

Weekly Roundup 12/6/2010

Where’s the American empire when we need it?
Robert D. Kaplan, The Washington Post, Dec. 5, 2010

Synopsis: The longtime national correspondent for The Atlantic and specialist in international relations and foreign policy forecasts a period of global uncertainty in the wake of what he sees as the United States’ diminished ability “to bring a modicum of order to the world.” China, he believes, may help promote order in some regions, but will not fill “the moral void” left by the decline of U.S. power.

Takeaway: Despite the downcast predictions, Kaplan says the U.S. must stay the course. “Lessening our engagement with the world,” he concludes, “would have devastating consequences for humanity.” (For background, see Peter Katel, “Emerging China,” CQ Researcher, Nov. 11, 2005.)

Kenneth Jost, Associate Editor, CQ Researcher

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Deadly Medicine
Donald L. Barlett and James B. Steele, Vanity Fair, January 2011

Synopsis: Many, perhaps most, clinical trials for drugs being developed for potential sale in the United States now take place in developing countries. As a result, trial participants -- often illiterate -- may not understand enough about the process to give proper informed consent, and their diets and lifestyles likely differ so much from that of the average American that it's not clear that they metabolize the drugs the same way Americans would.

Takeaway: As drug trials increasingly move to the developing world, their ethics and even their science are called into question.

Marcia Clemmitt, Staff Writer, CQ Researcher

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Throw the WikiBook at them
Charles Krauthammer, The Washington Post, Dec. 3, 2010

How the WikiLeaks Scandal Actually Helped the United States
Leslie H. Gelb, The Dallas Morning News, Dec. 3, 2010

The Shameful Attacks on Julian Assange
David Samuels, TheAtlantic.com, Dec. 3, 2010

Synopsis: With news organizations and others continuing to plumb the Wikileaks trove of U.S. diplomatic reports for information and tidbits, official reaction and most – but not all -- commentary has been sharply negative about the disclosures. Conservative columnist Charles Krauthammer reflects the dominant view that the leaks have been harmful and that Wikileaks founder Julian Assange ought to be prosecuted for his actions. Leslie H. Gelb, president of the Council on Foreign Relations, is critical of the leak but says the documents show U.S. diplomats are “doing what they are supposed to be doing: ferreting out critical information from foreign leaders, searching for paths to common action and struggling with the right amount of pressure to apply on allies and adversaries.” Against the prevailing opinion, David Samuels, a regular contributor to The Atlantic, writes a full-throated defense of Assange along with a sharp attack on the government’s plan to prosecute him and what he calls the “shameful” reaction of journalists who feel scooped by the Wikileaks disclosures.

For background, see Kenneth Jost, “Government Secrecy,” CQ Researcher, Dec. 2, 2005.

Posted by the Editors, CQ Researcher

Does the death penalty deter capital crimes?

To follow is an excerpt from the CQ Researcher issue "Death Penalty Debates" by Kenneth Jost on November 19, 2010
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Three decades after casting the pivotal vote in the 1976 decision to uphold revised death penalty laws, Justice John Paul Stevens in 2008 urged the Supreme Court and state legislatures to reconsider the issue. Among his reasons, Stevens cited what he called the lack of “reliable statistical evidence” that capital punishment deters potential offenders. Without such evidence, Stevens wrote, “deterrence cannot serve as a sufficient penological justification for this uniquely severe and irrevocable punishment.”

Stevens' opinion — a separate concurrence in a decision that upheld the procedures for lethal injection executions — prompted a tart response from conservative Justice Antonin Scalia. He accused Stevens of ignoring what two scholars had called “the significant body” of evidence pointing to a possible deterrent effect. Regardless of the evidence, Scalia concluded, the Supreme Court has no right “to demand that state legislatures support their criminal sanctions with foolproof empirical studies, rather than commonsense predictions about human behavior.” [Footnote 5]

The question of deterrence has divided supporters and opponents of the death penalty in the United States at least since the early 19th century, according to legal historian Stuart Banner. In those days, the UCLA law professor writes, there was “a virtual absence of any attempt by either side to back up its claims with numbers.”[Footnote 6] Today, by contrast, the debate is densely statistical. Even so, more than three decades of research by economists and law professors published in two dozen or more academic articles have failed to resolve the debate.[Footnote 7]

The modern debate dates from an article published in 1975 in the American Economic Review by Isaac Ehrlich, now chairman of the economics department at the University of Buffalo and also a distinguished professor at the State University of New York. Ehrlich used data from the period 1933–1969 to conclude that each execution served on average to prevent eight murders through deterrence of other killings. As Banner relates, the article drew unaccustomed attention for a statistically technical study — followed by “intense criticism” of Ehrlich's methodology and conclusion.[Footnote 8]

Many more studies followed. By the early 2000s, supporters of capital punishment counted a total of 14 that found evidence of a deterrent effect from the death penalty. In an influential study published in 2003, Emory University economists Hashem Dezhbakhsh and Paul H. Rubin and Emory law professor Joanna Shepherd used data from before and after then-recent death penalty moratoriums to conclude that each execution prevented on average 18 murders.

Their conclusion was challenged in turn in a 2005 article by Yale law professor John Donohoe and economist Justin Wolfers of the University of Pennsylvania's Wharton School. They called the evidence for deterrence “surprisingly fragile,” noting that minor changes in methodology resulted in completely different results. In a condensed version that appeared along with an exchange with the Emory authors, Donohoe and Wolfers wrote: “The view that the death penalty deters is still the product of belief, not evidence.”[Footnote 9]

Today, the economists remain in disagreement while appearing to acknowledge the impossibility of a definitive conclusion. “There are ways to do the analyses to find deterrence and ways to do it to find no deterrence,” says Rubin. For his part, Wolfers says the presence or absence of deterrence “is difficult to tell no matter whatever angle you look at it.”

With the economists in disagreement, pro- and anti-death penalty advocates tend to side with the view that supports their position. “I think the literature as a whole still shows deterrence,” says Scheidegger with the Criminal Justice Legal Foundation. “And I think the evidence will grow stronger over time.” From the other side, Cornell's Blume says flatly, “There's no credible evidence that the death penalty is a deterrent.”

Even while supporting the death penalty, many in the law enforcement community voice doubts that killers actually weigh the potential consequences of their crimes before committing them. “Do people in emotional circumstance contemplate” the potential punishment? asks Scott Burns, executive director of the National District Attorneys Association. “Probably not.”

The search for evidence of deterrence is difficult in part because of the relative infrequency of executions in the United States. “In 99 percent of the murders, there are not going to be executions, not even a death sentence,” says Dieter with the Death Penalty Information Center.

“It's certainly an enormous waste of money in terms of deterrence,” says Streib, the Ohio Northern University professor. “There are so many other things we could do with that money.”

The Issues:
* Does the death penalty deter capital crimes?
* Does capital punishment cost more to administer than it is worth?
* Do capital defendants have adequate legal representation in court and after sentencing?

For more information see the CQ Researcher report on "Death Penalty Debates" [subscription required] or purchase the PDF


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Footnotes
[5] The decision is Baze v. Rees, 553 U.S. 535 (2008), www.supremecourt.gov/opinions/07pdf/07-5439.pdf.

[6] Stuart Banner, The Death Penalty: An American History (2002), p. 114.

[7] For a good journalistic overview of the scholarship, see Adam Liptak, “Does Death Penalty Save Lives? A New Debate,” The New York Times, Nov. 18, 2007, sec. 1, p. 1, www.nytimes.com/2007/11/18/us/18deter.html?pagewanted=2&_r=1&sq=does%20the%20death%20penalty%20save%20lives&st=cse&scp=1. The website version includes hyperlinks to several of the major articles. Some background drawn from article.

[8] Banner, op. cit., pp. 279–281.

[9] John Donohue and Justin J. Wolfers, “The Death Penalty: No Evidence for Deterrence,” in Joseph E. Stiglitz, et al. (eds.), The Economists' Voice: Top Economists Take On Today's Problems (2008), p. 255.