The California Coastal Commission: Judging Its Own Cases

Tim Kowal 12 Comments

I didn’t realize this about the California Coastal Commission:

Under the Coastal Act, any two members of the commission can appeal a local government’s action to the commission. After creating a controversy where there wasn’t one, those same commissioners are able to vote on how the appeal should be decided.

In effect, the Commission is a body that both investigates and adjudicates its own cases.  Not only is the investigation and adjudication determined by the same people, those people are neither elected by nor accountable to Californians. 

The Supreme Court decision that authorizes this structure, Withrow v. Larkin, 421 U.S. 35 (1975), holds that “the combination of investigative and adjudicative functions” is entitled to under the Constitution to “presumption of honesty and integrity.”  This rule is difficult to square with other Supreme Court authority concerning “the basic constitutional doctrine that individual freedoms will best be preserved through a separation of powers and division of functions among the different branches and levels of Government.”  Arkansas v. Sanders, 442 U.S. 753, 759 (1979).  It is especially difficult to square with Federalist no. 51:

To what expedient then shall we finally resort for maintaining in practice the necessary partition of power among the several departments, as laid down in the constitution? The only answer that can be given is, that as all these exterior provisions are found to be inadequate, the defect must be supplied, by so contriving the interior structure of the government, as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places. . . .

. . . .

But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department, the necessary constitutional means, and personal motives, to resist encroachments of the others. The provision for defence must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to controul the abuses of government. But what is government itself but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controuls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to controul the governed; and in the next place, oblige it to controul itself.

The structural division of governmental power is undermined by a rule that permits centralized power in an unelected body that is subject only to proof of “actual bias or prejudgment.”  Withrow at 47.  It violates the original compact of the people, described in Federalist no. 51, who consented to surrender power to a government on the condition that such power would be “subdivided among distinct and separate departments.” 

Painting Conservatism Out of the Corner: A Review of William Voegeli’s Never Enough: America’s Limitless Welfare State

Tim Kowal 2 Comments

Andrew Sullivan’s recent apologia—or, perhaps, obituary—of conservatism makes at least one very good point:  Modern conservatism has painted itself into a corner.  Concerning the poor and uninsured, for example, Mr. Sullivan rightly observes that “in a society that won’t let people die on the street, these are real and tough problems we cannot just wish away.”  Conservatives who attack the liberal welfare state often reject even the preliminary terms of negotiation.  It is a well worn principle that a state cannot reasonably be expected to make meaningful concessions to an adversary who refuses to recognize its right to exist.

In his 2010 book Never Enough: America’s Limitless Welfare State, William Voegeli implores conservatives to recognize this reality.  Against the shapelessness of liberal thinking that makes it so difficult to refute, Voegeli reluctantly acknowledges that conservatives are too enamored by the superiority of their principles to bother with a more pragmatic approach—specifically, Voegeli offers, stipulating to the existence of the welfare state while insisting it “actually produce the intended effect and do so at a reasonable cost.”  Id. at 256-257.  Until conservatives acknowledge the hopelessness of the fight against the concept of the welfare state, they will forfeit their seat at the table to discuss bringing about a sensible welfare state. Continue Reading →

The social (and economic!) benefit of incarceration

Tim Kowal 1 Comment

I’ve had this tab sitting open on my computer for the past two weeks with the intention of forking over the $5 and reading Steven Levitt’s 1995 paper, The Effect of Prison Population Size on Crime Rates: Evidence From Prison Overcrowding Litigation.  Here’s the a-ha line from the abstract:

For each one-prisoner reduction induced by prison overcrowding litigation, the total number of crimes committed increases by approximately 15 per year. The social benefit from eliminating those 15 crimes is approximately $45,000; the annual per prisoner costs of incarceration are roughly $30,000.

As I pointed out in my recent piece on the California prison guards union, the current annual per prisoner cost in California is about $45,000.  It would be interesting to see a version of Levitt’s study with updated numbers. 

At any rate, this tends to show that though the CCPOA’s motives are bad, some of their goals have some merit.  Even a stopped clock is right twice a day. 

Obama Doesn’t Really Think ATMs Hurt the Economy

Tim Kowal 22 Comments

Lots of people pounced on President Obama for his comment the other day suggesting ATMs kill jobs.  Here’s the President:

“There are some structural issues with our economy where a lot of businesses have learned to become much more efficient with a lot fewer workers. You see it when you go to a bank and you use an ATM, you don’t go to a bank teller, or you go to the airport and you’re using a kiosk instead of checking in at the gate.”

I have a hard time believing the President really thinks ATMs and airport kiosks are hurting the economy.  Innovation is tricky for politicians because its payoff date is generally further out than the politician’s term of office.  Innovation is destructive, in part:  it kills portions of the economy that, while still productive, are no longer efficient.  Politicians love reaping the fruits of the upswing in the innovation cycle, but hate suffering through the painful readjustment periods.

The time-horizons problem particularly haunts liberals (see generally FLG), but politics is politics.  One of the questions asked of the GOP presidential candidates the other night was what you’d do to bring manufacturing jobs back to the U.S.  If you’re really for innovation and undeterred by long time horizons, the answer is simple:  “Build More Robots.”  But of course no one answered “Build More Robots.” We have a surplus of uneducated labor waiting for unskilled or moderately skilled jobs, not for building and tending to ever more sophisticated machines.

It would have been taking the question too literally, anyway.  The question wasn’t asking for an economic answer but a political one.  Reading between the lines, the question is really “how do we get through this painful readjustment period?”  You’ll be hard pressed to find an economist and a politician who will answer that question the same way.

Have the Framers’ been validated in their fears that a bill of rights would undermine enumerated powers?

Tim Kowal 17 Comments

Randy Barnett recounts that the framers of the Constitution “contended that the enumeration of powers in the Constitution was itself a bill of rights that would protect the liberties of the people.”  Since it operates to the opposite effect, a bill of rights would therefore be “highly imprudent,” as James Wilson observed at the Philadelphia ratification convention.  Wilson further observed:

A bill of rights annexed to a constitution is an enumeration of the powers reserved. If we attempt an enumeration, every thing that is not enumerated is presumed to be given. The consequence is, that an imperfect enumeration would throw all implied power into the scale of the government, and the rights of the people would be rendered incomplete.

James Iredell at the North Carolina ratification convention concurred, noting:

It would be the greatest absurdity for any man to pretend that, when a legislature is formed for a particular purpose, it can have any authority but what is so expressly given to it.

Were they not correct?  Can advocacy of an Individual Mandate be anything but the rejection of the premise that Congress was “formed for a particular purpose”?  The left has but one response to Madison, Wilson, Iredell, and the rest: “You were right, I’m afraid—Bill of Rights sunk the Enumerated Powers Doctrine.  No backsies.”

The Role of the Prison Guards Union in California’s Troubled Prison System

Tim Kowal 105 Comments

Jailing is big business.  California spends approximately $9 billion a year on its correctional system, and hosts one in seven of the nation’s prisoners.  It has the largest prison population of any state.  The number of correctional facilities, the amount of compensation for their unionized staffs, and the total cost of incarcerating a prisoner in the state—$44,563 a year—have exploded over the past 30 years.  Over that same period, the quality of the state’s prison system declined precipitously.  From the 1940s to the 1960s, California’s correctional system was the envy of the nation:  Its wardens held advanced degrees in social work and wrote groundbreaking studies on prisoner reform and reducing recidivism.  “California was the model of good correctional management and inmate programming,” says Joan Petersilia in California’s Correctional Paradox of Excess and Deprivation, 37 Crime & Just. 207, 209 (2008), “and its practices profoundly influenced American corrections for over 30 years.” 

By the 1980s, however, California began radically reforming its prison system.  Prison Population - RateAn incarceration rate that had held to 100 to 150 per 100,000 Californians prior to 1980 spiked to over 450 by the year 2000.  The prison population surged from less than 25,000 in 1980 to more than 168,000 in 2009.  The state’s prison budget swelled to meet the needs of the more than six-fold population increase.  Between 1980 and 2000, California built 23 new prisons.  New guards were needed to staff the new facilities, increasing their number from approximately 5,600 to nearly 30,000 over the same period.  Prior to construction, annual spending on the state’s correctional program amounted to about $675 million, or about 3% of California’s general fund.  By 2008, spending topped $10 billion, and consumed almost 11.5% of the state’s general fund. 

Continue Reading →

A question about public sector unions

Tim Kowal 16 Comments

In the comments on the main page about teachers unions, DensityDuck asks “why teachers—who are most surely highly-educated persons with prized skills—need to be in a union at all,” to which Burt Likko responds “[b]ecause, for the most part, they are selling their labor in a monopsony market, which tends to drive the price of the commodity in question (here, the labor of teachers) down dramatically.”  I asked Burt this question in follow-up, but I’m curious if anyone else has a good answer:

Burt,

Here’s something I’ve struggled to understand about that argument. We put the government in charge of building schools. Why? Because it is a matter of public policy entrusted to government. We put the government in charge of designing curricula. Why? Public policy, entrusted to government. We put the government in charge of designing school districts and administering school facilities, etc. Why? Policy, government. All other issues concerning public education are all set by government, all for the same reason: Government just is the body we’ve established to make public policy decisions of this sort.

So why, just when it comes to questions of teachers’ pay and benefits, do we decide government has suddenly become lousy and can’t be trusted to set public policy, and that special interests are the only way to fairly serve the public? The way I see it, if you’re going to make the argument that as to teachers, government is a monopsony and thus can’t be trusted to set good policy for educators, then you’d also have to make the argument with equal force that as to parents and children, government is a monopoly and thus can’t be trusted to set good policy for students.

I’ve made this point before, and the best argument I’ve heard in response is that smaller governments are less likely to be seen as reliably reflecting “public policy,” and are instead in competition with other local governments, thereby driving up the value of getting cheap services and driving down the value of setting good policy.  Even if this were the case, is there any other response to the question in the case of unions that negotiate directly with the state rather than with local governments?  I ask because I plan to reprise the above argument in my forthcoming piece on the California prison guards union. 

Biology and Liberalism

Tim Kowal 13 Comments

Kevin Drum wonders:

to the extent that you really do believe that cognitive abilities are (a) important, and (b) strongly biologically determined, shouldn’t you also believe that the poor are more unlucky than anything else, and haven’t done anything to deserve hunger, lousy housing, poor medical care, or crappy educations? If genetic luck plays a big role in making us who we are, then support for income redistribution from the rich to the poor is almost a logical necessity for anyone with a moral sense more highly developed than a five-year-old’s.

Long story short, belief in biological determinism should make you into a liberal. And yet, here in the real world it mostly does just the opposite. Go figure.

One can appreciate that liberals do not accept the conservative claim, but Mr. Drum fails to acknowledge what the conservative claim is.  Conservatives do not deny that unfairness exists in the world.  In the conservative view, however, the justice that humans can guarantee to themselves is limited to redress of injuries cause by one man against another: “injustices” worked by nature and nature’s God are beyond the limits of what man can properly redress.  This is what separates questions of morality, theology, and science on the one hand, from political theory and state power on the other.  Not all issues arising in the former categories are properly answered by the latter. 

The CCPOA and Prison Overcrowding

Tim Kowal 16 Comments

Blogging has been light as I’ve continued work on a major piece exposing the role of the California Correctional Peace Officers Association—the prison guards’ union—in the state’s eight-fold increase in the number of incarcerations in just three decades, proximately resulting in the U.S. Supreme Court’s injunction requiring the state to release approximately 37,000 convicts back into our communities over the next two years.  The public sector union’s improvident and anti-democratic self-dealing in pushing blindly pro-incarceration and anti-rehabilitative state policies has served only to create further demand for prison guards, driving up membership, salaries, and—most importantly—dues, and resulting in a dangerously powerful special interest that prevents the state from addressing the serious problems outlined in the Brown v. Plata opinion. 

More to come.