Mark Towner's Spyglass Spots: The Ignored Amendment

The Ignored Amendment
by Ralph R. ReilandSeptember 6, 2007
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"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted," states the Eighth Amendment to the U.S. Constitution.
Jessica Hodges would almost certainly say that we're no longer paying much attention to the prohibition on excessive fines.
Washington Post writer Jonathan Mummolo describes her case: "The labor pains were coming, so Jessica Hodges got going. The 26-year-old bank teller from Burke (Va.) sped toward Inova Fairfax Hospital, but before she got there, the law got her --- 57 mph in a 35 zone. Reckless driving."
Hodges was found guilty and fined $1,050, plus a judge-imposed $100 fine and court costs.
"It's crazy," said an unrepentant Hodges. "Having a baby's more important. Of course I'm going to speed."
Hodges won't have an easy time paying the bill, as Mummolo describes: "She and her husband, Jeff, a massage therapist, barely go out and are living basically week-to-week to support 17-month-old Madison and infant Alessandra, born July 19. If the appeal is denied, her husband will probably have to work overtime."
If Hodges and her husband end up buying a few six packs because of the three jobs and two babies, 44 percent of the cost of their beer in Virginia will be due to hidden and direct taxes.
The newly increased traffic fines, ranging from $750 to $3,000, were passed earlier this year by Virginia's General Assembly as part of a package to pay for a slew of new transportation projects.
"I'm getting out of here," said Hodges, "before I have to pay for any new roads."
More "excessive" in terms of fines, the penalties for sexual harassment in the workplace under the Civil Rights Act of 1991 include punitive damages of up to $300,000 per incident, i.e., per "unwelcome" joke, flirtation, etc. (Sen. Ted Kennedy wanted the price to be $1 million per incident.)
The $300,000 potential tab per incident can be triggered by an alleged victim's perception of having been subjected to unwanted speech, jokes, gestures, romantic pursuits, looks, attitudes, etc., or by a perception of having been subjected to condescension, defamation or exclusion.
"If traffic laws were modeled on harassment policies," writes Reason magazine columnist Cathy Young, referring to the inherently subjective and changing nature of perceptions regarding what is unwelcome and objectionable, "there would be no stop signs --- you could just be fined for failing to stop when someone thought you should have."
With six jokes and two unwanted glances worth a potential $2.4 million, the legal maneuver to get fines to the "excessive" level is to keep a diary and document each incident, rather than reporting the problem for a quicker and less litigious solution.
Under the rules, businesses and other organizations can be held liable even when they aren't aware that a problem exists.
Equally "excessive," the Federal Communications Commission's maximum fine for indecency just went up tenfold, to $325,000 per incident. The new rules authorize the FCC to fine a broadcaster as much as $3 million per day for multiple instances of alleged indecency.
With the section of the Eighth Amendment prohibiting "cruel and unusual punishments," William James Rummel might well say that we've lost our way.
Rummel was sentenced to life imprisonment in Texas (with eligibility for parole in 12 years, but with no guarantee of parole) for three nonviolent and minor offenses -- the fraudulent use of a credit card to obtain $80 worth of goods and services in 1964, passing a forged check in the amount of $28.36 in 1969, and obtaining $120.75 by false pretenses in 1973.
Citing precedent, i.e., itself, the Supreme Court rejected Rummel's argument that his life sentence was a violation of the constitutional ban on "cruel and unusual punishments" by pointing to a 1912 case, Graham v. West Virginia, in which the Supreme Court rejected an Eighth Amendment claim from a horse thief who had been sentenced to life imprisonment after stealing three horses --- one horse at a time, in 1898, 1901 and 1907.
In 1958, Chief Justice Earl Warren stated that the Eighth Amendment "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society."
The evolution is slow. It wasn't until 2002 that the Supreme Court ruled, 6-3, that executions of mentally retarded criminals are "cruel and unusual punishment," a violation of the Eighth Amendment.
***
Ralph R. Reiland is an associate professor of economics at Robert Morris University and a local restaurateur. E-mail him at rrreiland@aol.com.
This column was originally published in the Pittsburgh Tribune-Review. Reprinted with permission.

The Price of Loony Litigation

The Price of Loony Litigation
by Ralph R. ReilandSeptember 10, 2007
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You can't get your oil checked in Sea Isle anymore. Heading back from the Jersey Shore the Sunday before last for the start of another school year, we stopped at Sea Isle's only service station for gas.
With a seven-hour trip ahead of us, I asked the station's attendant (Jersey banned self-service gas pumping in 1949, so every station has an attendant) to check the oil. The station wasn't busy, and he was just standing around, waiting for the gas pump to automatically click off at sixty dollars or so.
"I can't," he said, referring to the oil check.
"Some lady came in here in a junker and broke down on the way home and sued us for $10,000," he explained. "We put two quarts of oil in her car. Her car was worth $1,500 -- tops. Her lawyer said it was our fault she broke down because we were the last ones to look at her car."
He continued the story as I popped my hood and got out of the car to check my oil. "She won. I don't know how much -- if it was the whole $10,000 or not. But the boss says we're not in the business of checking oil anymore."
So now we have a mandated-by-law "full service" station with no service.
It's like what happened to seesaws. "They are rapidly disappearing, going the way of merry-go-rounds, diving boards and other joys of childhood," explained Philip K. Howard in USA Today. "Even the innocent game of tag has been banned in some New Jersey schools because a pupil might end up getting hurt and a parent might bring a lawsuit."
It's like what happened to discipline in schools -- or hugs. "Talk to teachers," says Howard, founder and chairman of Common Good, a nonpartisan legal-reform coalition. "Keeping discipline is hard when students can threaten that any decision might violate their presumed rights. Forget about putting an arm around an upset second-grader -- someone might claim it was an unwanted sexual advance."
Last winter, we stayed at The Breakers in Palm Beach. Henry Flagler, more than a century ago, picked the hotel's location and its name because guests wanted to stay "by the breakers." They wanted rooms where they could hear the sound of the waves at night and feel the breezes coming off the water.
The windows used to open back then. Now they're bolted shut or open only two or three inches. So you're stuck setting the air conditioner at 70 degrees when the fresh air outside is 70 degrees, stuck listening to the hum of a motor instead of the sound of the ocean. They're afraid they'll be blamed if we jump.
It was the same thing in Washington. We were two blocks from the White House, the view was inspiring, the outside air was cool, and the windows were bolted shut.
First thing, before I unpack, I usually call the front desk with a deal: "I just checked in. I'll come down and sign a waiver if you unbolt our windows. It won't be your fault if I jump."
It never works, not in places where there's a "Do not use in shower" sticker on the hair dryers and the hotel-provided shower caps include a bold-type "Fits one head" warning.
Find two electrocuted nuts squeezed into one shower cap, and who can say that a jury can't be persuaded that a deep-pocketed hotel "should have known" about the dangers?
And so we've ended up with baby strollers with "Remove child before folding" warning labels and "Do not drive with sun shield in place" warnings on those cardboard shields that keep the sun off dashboards.
To protect mouths (and protect manufacturers and retailers), cleaning brushes for toilet bowls now say, "Do not use orally," and electric routers for carpenters have stickers that warn, "This product is not intended for use as a dental drill."
For really crazy people, there's now "Do not eat toner" warning labels on cartridges for laser printers and "Not for highway use" stickers on wheelbarrows.
Howard argues that lawsuits are important to prevent abuse but that lawsuits themselves can constitute an abuse. It's about common sense and where to draw the line.
"Lawsuits turn into a weapon for extortion," he says, "if the law doesn't draw the boundaries of who can sue for what."
***
Ralph R. Reiland is an associate professor of economics at Robert Morris University and a local restaurateur. E-mail him at rrreiland@aol.com.
This column was originally published in the Pittsburgh Tribune-Review. Reprinted with permission.

Mark Towner's Spyglass Spots: People Are More Important than Animals

People Are More Important than Animals
by Abel KeoghAugust 23, 2007
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Let’s say your next door neighbor becomes angry at his dog. To punish the animal he puts him in an oven and cooks him for five minutes at 200 degrees. The dog lives but will bear physical scars of the incident for the rest of his life. The next day this same neighbor is arrested for sexually abusing a minor. For what crime should your neighbor receive the most punishment: torturing a dog or sexually abusing a minor?
According to Utah animal rights activists, torturing a dog should receive a harsher sentence. Thankfully, for the time being, the Utah state legislature disagreed.
Yesterday the Utah state legislature balked on voting on a measure that would have made acts of animal torture, now a Class A misdemeanor, a third degree felony and punishable by up to five years in prison and a $5,000 fine.
This all sounds good until you learn, thanks to Republican Sen. Jon Greiner, that under Utah law such crimes as child abuse, sexual abuse of a minor, assault of a police officer, and assault of a school employee are still Class A misdemeanors. “How do we get to a third-degree felony [for animal torture] when we don’t have enough respect for human life, sexually abused children, that we don’t have a higher standard of care for them?” he told the Salt Lake Tribune.
How, indeed.
The fact that the legislature is seriously considering this bill shouldn’t come as a surprise. For years militant animal rights activists and have told us that animals have at least the same rights as people: we shouldn’t eat them, perform scientific experiments on them, or even consider building homes, roads, or bridges where it might disturb them. Their goal has been to get us to treat animals as equals. Now it seems they want us to treat them as our superiors.
Think about the message the proposed Utah law sends to state residents about the value of humans when stacked up against man’s best friend. Stick a dog in the oven and get five years behind bars. Assault a teacher or abuse a child and, at least in the eyes of the law, a lesser sentence is required.
Those who torture animals are cruel, sadistic, and should be punished. However, the punishment should not be greater than harming a person. If Utah state legislators want to make it a third-degree felony to torture animals, they need to up the punishments for abusing and assaulting people as well.
People are more important than animals. This is something our laws should reflect and something the Utah legislators should keep in mind when they reconsider this bill next January.
***
Abel Keogh is the editor of FreeCapitalist.com. You can email him here. His book, Room for Two, is now available. You can order a personalized copy here.

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Free Capitalist Headlines: C Rick Koerber

Protests Mount Over Venezuela TV
From BBC
Staff and supporters of a Venezuelan TV station that is due to be taken off air have unveiled a kilometre-long banner in Caracas in support of press freedom.


Senate Puts Off Action on Immigration
From AP
Senate leaders agreed Monday that they would wait until June to take final action on a bipartisan plan to give millions of unlawful immigrants legal status.
Related: Martinez: Immigration Bill Could Save GOP Principle 2


Aspiring Abortion Doctors Drawn to Embattled Field
From LA Times
Medical students cite defiance and conscience as a reason to choose the career. 'It doesn't matter what you believe if you don't back it up with action,' one says. Principle 5


Family not Told Their Home Was Site of Murder
From Fox News
A family in Central Florida is outraged that they were kept in the dark about their new house's dark secret: A triple murder and suicide happened within the four walls they'd just begun to call home. Principle 3


Supreme Court Dismisses Lawsuit in Mistaken Search
From Baltimore Sun
Mistakes sometimes happen, the Supreme Court said yesterday, and threw out a lawsuit brought by a white couple in Southern California who were rousted from bed and held naked at gunpoint by deputies looking for several black suspects. Principle 4


Religious Leaders Urge Action on Warming
From Yahoo! News
Christian, Jewish and Muslim leaders are urging President George W. Bush and Congress to take action against global warming, declaring that the changing climate is a "moral and spiritual issue."
Related: Market for Carbon Offsets Raises Questions Principle 3


Why the Left Hated Jerry Falwell So Much
From American Thinker
Jerry Falwell's funeral is today, and now that he is being laid to rest, it is appropriate to dissect the vicious treatment he has received at the hands of his enemies since his unexpected demise.
Related: Evangelicals at a Crossroads As Falwell's Generation Fades Principle 4


Kid's Mom Sues Baseball Coach
From New York Post
A Staten Island mom is blaming her son's injury during a Little League game on a bum education in base-running. Principle 4


The End of Free Trade
From The Weekly Standard
So it does indeed end with a whimper rather than a bang. Free trade, I mean. Thanks to a president too weak politically to withstand the protectionist surge of a Democratic Congress, the era of ever-freer trade has come to an end. Principle 8

Why Fred Thomson Should Ignore Michael Moore

Why Fred Thomson Should Ignore Michael Moore
by Abel KeoghMay 17, 2007

It appears Shawn Hannity and Rocky Anderson may have started an unfortunate trend: celebrity vs. politician debates. Earlier this month the radio talk show host and Mayor of Salt Lake City faced off in a debate over the Iraq War. The debate was a culmination of months of highly publicized name calling and posturing by the two men.

If you didn’t watch the showdown in Salt Lake, you didn’t miss much. Though a tad more interesting that the incredibly boring and scripted presidential debates – this debate was really a chance for both Hannity and Anderson to stroke their egos by flaunting the position of the other person.

But the publicity it generated seemed to have gotten into the heads of others who would like nothing more than free publicity. The latest war of words that threatens to boil over into a full fledged debate is between pseudo-documentary film maker Michael Moore and former U.S. Senator Fred Thompson.

Earlier this month the U.S. Treasury Department announced it was investigating Moore to see if he violated the Cuban trade embargo by taking ailing 9/11 rescue workers to Cuba for free medical care. The trip was to film part of Moore’s latest “documentary” Sicko. (No, it’s not a movie about himself. This time Moore’s decided to take on the health care industry.)
Once word of the investigation was made public, Thompson wrote an article in National Review chiding the filmmaker for being part of Fidel Castro’s propaganda machine. Moore shot back and challenged Thompson to a pubic debate about the quality of the U.S healthcare system.
How to handle people like Moore is a sometimes a challenge for people in positions of power and authority. It’s easy to fall prey to the temptation to lash out and squash your opponent. However, if the person who is casting stones is small and insignificant, often the best response is to simply ignore them. Fighting back often gives the adversary more attention and can raise their status to that of a hero. It was President Kennedy’s failed Bay of Pigs invasion that led to the international star status of Castro. The Cuban leader was viewed as the victim of a CIA plot to overthrow him which endeared him to his own people and leftists worldwide.

Moore is a slick propagandist who craves the spotlight. He would like nothing more than free publicity for his latest movie and a chance to take on a potential political giant like Thompson. He has nothing to lose in a debate with the Law & Order star. Even if he lost – which he probably would – the debate would give Moore and his movie validity in addition to potential millions of additional dollars at the box office.

Thompson, however, has indicated he may seek the Republican nomination for president. Presidential candidates need to look and act presidential. He has everything to lose and nothing to gain by strutting around on the same stage as Moore.

So far Thompson seems to be playing his cards right. His brilliant video response to Moore that showed he has nothing but contempt for the “documentary” film maker. In the video Thompson, chewing a Cuban cigar, turns in his chair and looks up from some paperwork like he just noticed Moore. He then tells Moore that he doesn’t have time on his scheduled for Moore and tells him about another documentary filmmaker, Nicolas Guillen, who was sent to a mental institution by Castro and says, “A mental institution, Michael, might be something you ought to think about.” Then Thompson puts the cigar back in his mouth and turns his back to the camera and continues his work.

The message of Thompson’s video was absolutely clear: Michael Moore, you aren’t worth my time. By treating Moore as insignificant, Thompson put himself in the position of superiority – a good move for someone who might become the next president of the United States. He has more pressing challenges to worry about with than a documentary filmmaker and proven liar.
The power contempt is one Hannity learned the hard way. Instead of ignoring the mayor of a mid-sized American city, Hannity let Anderson’s comments and antics goad him into a debate – one that a nationally syndicated talk show was ill suited for. Anderson is a skilled lawyer and politician and more used debate-type format and Hannity’s most ardent supporters admit that Anderson came out on top in the debate. All Hannity managed accomplished by flying to Salt Lake City was to raise Anderson’s profile and credentials and lower his own.
Ignoring weak enemies is a powerful tool. Thompson's ability to recognize Moore as insignificant, indicates he might be well suited for a presidential run after all.
***
Abel Keogh is the editor of FreeCapitalist.com affiliated with Rick Koerber

You can email him here. His book, Room for Two, will be published by Cedar Fort this fall.

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