Last week, there was a lot of buzz on my Facebook feed about how two African-American men who were arrested in a Philadelphia Starbucks. The men who were arrested were waiting for a business associate to arrive. They had not ordered anything yet, and had asked the Starbucks staff if they could use the facilities. The staff reportedly told the individuals that they could not use the restroom because Starbucks policy is to "not allow nonpaying people from the public to come in and use the restroom." Police officers were on the scene, and the two men were detained after they refused to leave. Needless to say, the video went viral and gained social media outcry because those who were outraged by it saw it as another example of racism at work. Not only has Starbucks issued numerous apologies, but it has even gone as far as closing all of its Starbucks locations on May 29 and requiring anti-bias training for all its employees. Will Starbucks' anti-bias training be feel-good policy or will it actually do some good?
The purpose of diversity training or anti-bias training is to reduce bias or prejudice that is unwanted. Having diversity and reducing prejudice in the workplace also makes for a better workforce. Individuals that are not prejudiced are in a better state of mind to be more productive than those who do, not to mention that they are less likely to want to look for a new job. Having a diverse workplace means having individuals who view the same project from multiple angles. This maximizes creativity within the workforce and subsequently maximizes profitability (Hunt et al., 2018; Ellison and Mullins, 2014; Saxena, 2014). I believe in the importance of having a diverse workforce that has as few prejudices as humanly possible. At the same time, I am not a fan of diversity training.
If the ample evidence out there is an indication of anything, I don't feel optimistic about Starbucks' endeavor. The idea of putting people through a one- or two-hour training and expecting systemic issues to disappear seemed fanciful. Harvard Business Review wrote a scathing article in 2016 on why diversity programs fail. The article points out a meta-analysis of 1,000 studies about prejudice-reduction programs (Paluck and Green, 2009). The meta-study found that the positive effects of diversity training rarely last beyond a day or two, as did another meta-analysis (Bezrukova et al., 2016). And in case two meta-analyses were not enough, here is another: A meta-analysis of 400 studies shows that getting people to acknowledge implicit bias does not change individuals' behavior (Forscher et al., 2017). A number of the studies in both meta-analyses show a backlash towards diversity training.
How could diversity training backfire? After all, you are getting people to reexamine their views and illustrate the importance of working with those who are different. The problem with such examination is that it gets people to think about stereotypes more. The irony here is that it brings bias to the forefront and makes it more likely to activate stereotypes (Duguid and Thomas-Hunt, 2015). The other irony is that eliminating the individuals' ability to assess diversity and prejudice on their own terms can create even more prejudice (Legault et al., 2011; Anand and Winters, 2008). The more compulsory the training, the more animosity from workers and the less diversity there is (Paluck and Green, 2009; Anand and Winters, 2008; Kulik et al., 2007).
What we have here is a mountain of evidence that diversity and anti-bias training is loaded with good intentions but has poor results. Although diversity training is not coming from Congress or another legislative body, diversity training nevertheless comes off as a way to "legislate" a certain way of thinking. Here is the difficult truth: you cannot legislate or compel tolerance, let alone acceptance.
It is not just diversity training that fails to produce a more tolerant workforce. Performance ratings, grievance procedures, or hiring tests don't help with prejudices, either. So what does work? Don't focus on control or compulsion. The programs that work best, according to Harvard, address the following: engaging managers, exposing employees to different types of people, and creating a culture that allows for social accountability. We should find ways to reduce racism and other forms of prejudice, but we should also throw out the methods that have proven to be failures. If Starbucks is truly committed to fighting bias or prejudice, it should change its strategy.
Monday, April 23, 2018
Thursday, April 19, 2018
Reaping the Maximum Benefit of Reducing Mandatory Minimum Sentences
In an increasingly polarized country, finding bipartisan solutions to problems seems as unmanageable as it is elusive. However, it still exists. About a month ago, the Brennan Center for Justice released a report entitled Criminal Justice: An Election Agenda for Candidates, Activists, and Legislators. Reading through the report, one of the policy alternatives that caught my eye is to pass the Sentencing Reform and Corrections Act in response to mandatory minimum sentences (see Federal government 2017 overview here). What exactly are mandatory minimum sentences?
For much of the 19th and 20th centuries, federal trial judges essentially had unlimited discretion in their ability to sentence. Mandatory minimum sentences first started in the United States with the Bogg Act of 1951, but really did not take off until the Sentencing Reform Act of 1984 combined with the Anti-Drug Abuse Act of 1986. There are few purposes of mandatory minimum sentences. One is to expedite the judicial process. Another is to make sure that there were less irregularities than with judicial discretion. Finally, it is to send a message that certain crimes will not be tolerated. Even if mandatory minimum sentences were a response to the good intention of reducing the high crime rates that permeated throughout the United States in the 1970s and 1980s, we have to come to terms with the fact that it had some unintended consequences on our justice system (e.g., Tonry, 2009).
As the Brennan Center points out in its report, the federal prison population increased by an astounding 750 percent in the past 30 years, from 22,000 prisoners to 200,000 prisoners. About half of the federal prison population is non-violent low-level drug offenders (Taxy and Kotonias, 2015). When accounting for the state level, the United States went from imprisoning 100 people per 100,000 residents to 760 people per 100,000 residents. That is a 660 percent increase! Don't think that the increase in the prisoner population didn't come with a huge price tag because it did. In its 2014 report on incarceration, the Brookings Institute calculated that prison costs quadrupled in inflation-adjusted dollars from 1980 to 2010!
Here are a few other fun facts on the topic:
To summarize, mandatory minimum sentencing has increased taxpayer spending, does next to nothing to reduce crime, wastes scarce criminal justice resources, and ruins peoples' lives. It's no wonder that 87 percent of Americans disapprove of mandatory minimum sentences, as did the bipartisan Colson Task Force that Congress created to examine federal corrections reform. I understand that there has to be a balance. If judges have complete discretion, there will be major disparities in the justice system. If there are mandatory minimum sentences, judges do not have the discretion to determine if extenuating circumstances render the sentence to be too harsh. That being said, prison should be for those who commit the most serious of crimes, not for non-violent drug offenders. By reducing mandatory minimum sentences, we can take the first steps to keeping our streets safer, taxpayer costs down, and better ensure that justice is served.
For much of the 19th and 20th centuries, federal trial judges essentially had unlimited discretion in their ability to sentence. Mandatory minimum sentences first started in the United States with the Bogg Act of 1951, but really did not take off until the Sentencing Reform Act of 1984 combined with the Anti-Drug Abuse Act of 1986. There are few purposes of mandatory minimum sentences. One is to expedite the judicial process. Another is to make sure that there were less irregularities than with judicial discretion. Finally, it is to send a message that certain crimes will not be tolerated. Even if mandatory minimum sentences were a response to the good intention of reducing the high crime rates that permeated throughout the United States in the 1970s and 1980s, we have to come to terms with the fact that it had some unintended consequences on our justice system (e.g., Tonry, 2009).
As the Brennan Center points out in its report, the federal prison population increased by an astounding 750 percent in the past 30 years, from 22,000 prisoners to 200,000 prisoners. About half of the federal prison population is non-violent low-level drug offenders (Taxy and Kotonias, 2015). When accounting for the state level, the United States went from imprisoning 100 people per 100,000 residents to 760 people per 100,000 residents. That is a 660 percent increase! Don't think that the increase in the prisoner population didn't come with a huge price tag because it did. In its 2014 report on incarceration, the Brookings Institute calculated that prison costs quadrupled in inflation-adjusted dollars from 1980 to 2010!
Here are a few other fun facts on the topic:
- A report from the Brennan Center of Justice (Roeder et al., 2015) examined what caused the drop in crime since the 1990s, and concluded that anywhere from 0 to 7 percent of the drop was due to mass incarceration. More to the point, a 2014 report from Pew Research suggests that lowering incarceration rates has led to lower crime rates. This should provide adequate evidence that there is a lack of correlation between incarceration rates and crime rates. Additionally, research suggests that it is the certainty of apprehension, and not necessarily the long sentence, that deters would-be offenders.
- Mass incarceration has done little to improve public safety (e.g., McCrary and Sanga, 2012).
- According to a Government Accountability Office (GAO) 2012 report, it also jeopardizes the safety of corrections officers.
- In 2013, the Urban Institute projected that reducing mandatory minimum sentences by half would reduce prison overcrowding by over half within the next decade (Samuels et al., 2013, p. 24).
- A 2014 report commissioned by the Department of Justice shows how lowering minimum sentences in such states as Texas, Georgia, and Pennsylvania has cut costs and held offenders accountable.
- Reducing mandatory sentences reduced recidivism, diversion, and racial disparities in New York City (Parsons et al., 2015).
- The Rand Corporation showed over twenty years ago how investing in treatment is more cost-effective than imprisoning those with drug addiction (Caulkins, 1997).
- A report from Pew Research that came out last month concluded that there is no correlation between prison terms and drug misuse (also see Pollack and Reuter, 2014; Gelb, 2015).
- As the Right-leaning Heritage Foundation argues, mandatory minimum sentences shift discretion from judges to prosecutors. Not only are prosecutors not trained in such matters, they are actually incentivized to not exercise discretion.
- Last month, I covered the topic of "ban the box" laws. After ex-offenders leave prison, they have a difficult time integrating back into society, which increases likelihood of reoffending. The mandatory minimum sentences contribute to a revolving door that makes life difficult for many Americans while costing the taxpayer.
To summarize, mandatory minimum sentencing has increased taxpayer spending, does next to nothing to reduce crime, wastes scarce criminal justice resources, and ruins peoples' lives. It's no wonder that 87 percent of Americans disapprove of mandatory minimum sentences, as did the bipartisan Colson Task Force that Congress created to examine federal corrections reform. I understand that there has to be a balance. If judges have complete discretion, there will be major disparities in the justice system. If there are mandatory minimum sentences, judges do not have the discretion to determine if extenuating circumstances render the sentence to be too harsh. That being said, prison should be for those who commit the most serious of crimes, not for non-violent drug offenders. By reducing mandatory minimum sentences, we can take the first steps to keeping our streets safer, taxpayer costs down, and better ensure that justice is served.
Monday, April 16, 2018
Balanced Budget Amendment: Why I'm Glad to See It Didn't Pass in Congress
The Republican Party has cultivated the image of being the party of fiscal responsibility. Newt Gingrich certainly did so when he released his Contract for America back in 1994. The House Republicans were continuing to cultivate that image when it failed to pass a balanced budget amendment (BBA) last week. You might think to yourself that I would be disappointed that such an amendment failed to pass because I consider myself "a deficit hawk." However, you would be wrong on that assumption. Why wouldn't I be disappointed? After all, the Congressional Budget Office (CBO) released its Budget and Economic Outlook: 2018 to 2028 earlier this week. Look below at the deficits that we're going to rack up in the next decade. It's enough to make my blood boil. Yes, of course we need to worry about high debt-to-GDP ratios. When government takes on massive amount of debt, the high interest payments made to pay of that debt slows down economic growth (e.g., Chudik et al., 2018; Afonso and Aves, 2015; CBO, 2014, p. 3-4; Cecchetti et al., 2013; Reinhart and Rogoff, 2010). Knowing that, I still think a balanced budget amendment is a bad one. Why?
Let's start with the procedural aspect of amending the Constitution before jumping into actual opposition. I looked at the possibility at repealing or modifying the Second Amendment a couple weeks ago. This comes with similar procedural hurdles. Per Article V of the Constitution, an amendment either needs two-thirds of votes both in the House and the Senate or a Constitutional Convention, the latter of which is convened by 38 state legislatures. Although the Republicans have control over both branches of the federal legislature, they are nowhere near getting the required votes to pass an amendment, as is illustrated by yesterday's vote. Aside from political feasibility, what issues does the BBA face?
Federal Version Stricter Than State Versions of BBA: As of 2015, 46 states and the District of Columbia had balanced budget requirements. The fact that BBAs are done on the state level can be used to advocate for a BBA on the federal level. However, it might not be so analogous. As the Center on Budget and Policy Priorities points out, BBA only applies to the operations budget. For state-level capital budget, borrowing is allowed. States also are allowed to save for a "rainy day" fund. This would not be doable on the federal level since a BBA "prohibits spending from exceeding revenue in that year (ibid)." Granted, there could be a "rainy fund" addendum. At the same time, these sorts of details act as another reminder as to why something this complex and subject to frequent change should not be a constitutional amendment.
Deficits Are Good From Time to Time: Proponents of the BBA argue that if families can tighten their budgets, so can the government. The government can and should tighten their spending, especially with current spending and debt trends. Conversely, families are allowed to borrow money to help finance their life. Debt is not inherently bad. I know I couldn't get through graduate school without taking some debt. The ability to successfully finance debt is what has helped so many individuals and businesses succeed. The problem is not debt so much as it is debt servicing and making sure that future generations are not burdened with debt.
Inflexibility: Sometimes, the government has to take on debt, whether in time of war, natural disaster, or a recession. Even if I have criticism about unemployment insurance and food stamps, the truth is that they exist and they have countercyclical demand during recessions (although that contention is contested). The libertarian Cato Institute concludes that procedural rules that are too inflexible to adapt to chaining circumstances prove less durable. I have to agree. I can still condone a more flexible fiscal policy while still call for greater fiscal responsibility.
Enforcement Issues: According to the Constitution, Congress is responsible for the budget. If Congress cannot balance the budget, could the President cut programs or raise taxes unilaterally? Would the courts? Would non-compliance go to the Supreme Court, thereby delaying the budgetary process further? Would the other branches of government be trained to adjudicate?
Questionable Economic Benefit: Proponents advocate for the BBA because the fiscal responsibility will cause better economic growth. I question that notion in the next point below. What I can say is that the restraint caused by a BBA can be problematic for the economy. In a recession, a BBA would either force spending cuts or an increase in taxes when the economy is weak. Economic forecasting firm Microanalytics wrote in 2011 if Congress had ratified a BBA in 2008 and it would have taken effect in 2012, the effects would have been catastrophic.
Dubious Fiscal Responsibility: This final concern is one that Congressman Paul Ryan (R-WI) brought up in 2011. It is mathematically possible to raise spending, raise taxes, and still have a balanced budget. If the goals are to minimize debt and to keep government small, this is not a guaranteed way to go about achieving those goals. Since there are not agreements on spending targets or what the size of government should be, the BBA does not fulfill its primary goal. And to think none of this gets into creating an incentive for politicians to use dubious accounting or budget gimmicks to meet budgetary requirements.
Even if the Republicans had the votes, why would there need to be a constitutional amendment? If the Republicans were the party of fiscal responsibility and maintained control, there is no need for such an amendment. If anything, the Republicans passing a budget in which the spending allows for trillion-dollar-plus deficits for the next decade is anything but fiscally responsible. It is hardly a stretch to argue that the balanced budget amendment was a gimmick by the Republicans to continue to cultivate an erroneous image of fiscal responsibility. This brings me to an even more important question: if we're interested in decreasing the debt-to-GDP ratio, why simply balance the budget? If the Republicans are genuinely interested in fiscal responsibility, there needs to be lowering taxes combined with lower spending in order to lower the debt-to-GDP ratio. As this Cato Institute paper on budgetary rules illustrates, there needs to be a framework and action for budget restraints. Or better yet, how about some entitlement reform to restrain spending? A BBA is not a substitute for working to reduce deficit spending. If the Republicans cannot focus on actual budgetary restraint, a BBA is nothing more than political pandering.
Let's start with the procedural aspect of amending the Constitution before jumping into actual opposition. I looked at the possibility at repealing or modifying the Second Amendment a couple weeks ago. This comes with similar procedural hurdles. Per Article V of the Constitution, an amendment either needs two-thirds of votes both in the House and the Senate or a Constitutional Convention, the latter of which is convened by 38 state legislatures. Although the Republicans have control over both branches of the federal legislature, they are nowhere near getting the required votes to pass an amendment, as is illustrated by yesterday's vote. Aside from political feasibility, what issues does the BBA face?
Federal Version Stricter Than State Versions of BBA: As of 2015, 46 states and the District of Columbia had balanced budget requirements. The fact that BBAs are done on the state level can be used to advocate for a BBA on the federal level. However, it might not be so analogous. As the Center on Budget and Policy Priorities points out, BBA only applies to the operations budget. For state-level capital budget, borrowing is allowed. States also are allowed to save for a "rainy day" fund. This would not be doable on the federal level since a BBA "prohibits spending from exceeding revenue in that year (ibid)." Granted, there could be a "rainy fund" addendum. At the same time, these sorts of details act as another reminder as to why something this complex and subject to frequent change should not be a constitutional amendment.
Deficits Are Good From Time to Time: Proponents of the BBA argue that if families can tighten their budgets, so can the government. The government can and should tighten their spending, especially with current spending and debt trends. Conversely, families are allowed to borrow money to help finance their life. Debt is not inherently bad. I know I couldn't get through graduate school without taking some debt. The ability to successfully finance debt is what has helped so many individuals and businesses succeed. The problem is not debt so much as it is debt servicing and making sure that future generations are not burdened with debt.
Inflexibility: Sometimes, the government has to take on debt, whether in time of war, natural disaster, or a recession. Even if I have criticism about unemployment insurance and food stamps, the truth is that they exist and they have countercyclical demand during recessions (although that contention is contested). The libertarian Cato Institute concludes that procedural rules that are too inflexible to adapt to chaining circumstances prove less durable. I have to agree. I can still condone a more flexible fiscal policy while still call for greater fiscal responsibility.
Enforcement Issues: According to the Constitution, Congress is responsible for the budget. If Congress cannot balance the budget, could the President cut programs or raise taxes unilaterally? Would the courts? Would non-compliance go to the Supreme Court, thereby delaying the budgetary process further? Would the other branches of government be trained to adjudicate?
Questionable Economic Benefit: Proponents advocate for the BBA because the fiscal responsibility will cause better economic growth. I question that notion in the next point below. What I can say is that the restraint caused by a BBA can be problematic for the economy. In a recession, a BBA would either force spending cuts or an increase in taxes when the economy is weak. Economic forecasting firm Microanalytics wrote in 2011 if Congress had ratified a BBA in 2008 and it would have taken effect in 2012, the effects would have been catastrophic.
Dubious Fiscal Responsibility: This final concern is one that Congressman Paul Ryan (R-WI) brought up in 2011. It is mathematically possible to raise spending, raise taxes, and still have a balanced budget. If the goals are to minimize debt and to keep government small, this is not a guaranteed way to go about achieving those goals. Since there are not agreements on spending targets or what the size of government should be, the BBA does not fulfill its primary goal. And to think none of this gets into creating an incentive for politicians to use dubious accounting or budget gimmicks to meet budgetary requirements.
Even if the Republicans had the votes, why would there need to be a constitutional amendment? If the Republicans were the party of fiscal responsibility and maintained control, there is no need for such an amendment. If anything, the Republicans passing a budget in which the spending allows for trillion-dollar-plus deficits for the next decade is anything but fiscally responsible. It is hardly a stretch to argue that the balanced budget amendment was a gimmick by the Republicans to continue to cultivate an erroneous image of fiscal responsibility. This brings me to an even more important question: if we're interested in decreasing the debt-to-GDP ratio, why simply balance the budget? If the Republicans are genuinely interested in fiscal responsibility, there needs to be lowering taxes combined with lower spending in order to lower the debt-to-GDP ratio. As this Cato Institute paper on budgetary rules illustrates, there needs to be a framework and action for budget restraints. Or better yet, how about some entitlement reform to restrain spending? A BBA is not a substitute for working to reduce deficit spending. If the Republicans cannot focus on actual budgetary restraint, a BBA is nothing more than political pandering.
Tuesday, April 10, 2018
Why I Don't Mourn on the Omer and What I Intend to Do Instead
I consider myself a traditionalist Jew who does his best to follow the halacha. I cannot pretend that I understand every practice under Jewish tradition. In his magnum opus, Guide for the Perplexed, Maimonides says that we still look for the meaning behind mitzvahs when their meaning is immediately not apparent (III, xxvi). Each one of G-d's precepts has meaning and were not given for their own sake. That being said, there are some Jewish practices and beliefs that have made their way into the corpus of Jewish tradition that are counter to a more important Jewish practice, tradition, or value. A few that come to mind that have merited my comments and analysis over the years: kitniyot, shlissel challah, not allowing women to say kaddish, and kapparot. Today, I add another Jewish practice to that list: mourning on the Omer.
According to the Talmud (Yevamot 62b), 24,000 of Rabbi Akiva's disciples died between Pesach and Shavuot. Because of these deaths, we take on a state of quasi-mourning: no haircuts, no weddings, no music, and no shaving. This state of mourning takes place from the beginning of Passover to Shavuot (It was later shortened to the thirty-third day of the Omer, known as Lag B'Omer). Traditionalists who continue to advocate for the practice use such phrasing as "from tragedy springs hope," as if it obfuscates the problems with such a mourning practice.
What issues are there with mourning on the Omer? One issue has to do with the act of mourning the loss of individuals, known as aveilut (אבלות). In Jewish mourning, the standard mourning for the loss of individuals is either a week, a month, or 11 months, depending on who is being mourned. However, there are times when we mourn the loss of a mass group of people. The Holocaust is a good example. Even in pre-modern times, there were some bad times that befell the Jewish people that merited a fast day. However, these fast days were only one day and fell into obscurity since the time between the loss of the individuals and now was large enough. And it's not as if the Jewish people don't have a day to celebrate calamity that has affected the Jewish people on the national level. We have Tisha B'Av.
Another fun fact is that the Talmudic passage describing the plague does not come to the conclusion that an annual mourning should be the response. In the first millennium after the fall of the Second Temple, there technically was a mourning practice between Passover and Shavuot, but that was in commemoration of soldiers that died during the Bar Kochba revolt, and even those mourning practices were uncommon. The first mentioning of a practice tied to R. Akiva's students was made in the eight century. Rabbi Yosef Karo included the mourning practice in the Shulchan Aruch, but it was not a binding halacha. It was a meant to be a footnote pointing out a practice, which was even contested by his contemporaries. Not allowing for music has even weaker legal precedence since R. Karo does not mention banning music during this period. A rabbi who I respect greatly, R. Hayim Ovadia, covers the historicity and halacha of the mourning practice in further detail here.
None of this gets into my biggest issue with the mourning practice. The mourning of R. Akiva's disciples detracts us from the mitzvah of the Omer, thereby diminishing a mitzvah d'oraiata. Jewish tradition teaches that the month of Nissan is a month of joy. It's why some Jews (myself included) had and have an issue with Holocaust Remembrance Day falling on the month of Nissan. The purpose of counting on the Omer, or at least what I have found to be the purpose of this counting, is to prepare ourselves spiritually so we can ascend enough to receive the Torah in a way that our ancestors did. The Omer is a great time to work on Mussar and our character traits (מידות). It is difficult to both mourn a distant loss and spiritually ascend.
This detraction ties in directly with the reason as to why G-d sent a plague onto R. Akiva's disciples: they were not respectful of one another. They did not follow the most basic of dicta within Jewish law: "love your neighbor as yourself." It was about spiritual one-upmanship and defaming others in a quest for religious fame. It was not about serving G-d for its own sake, but being the best, even if that meant knocking others down a peg. As remiss as I am to say it, this sort of mentality still permeates within the Jewish people. Orthodox Jews have a problem getting along with non-Orthodox Jews. In the Orthodox world, there is such in-fighting. The Ultra-Orthodox Jews (Haredim) look at the Orthodox Left with disdain. Hasidic sects cannot get along with one another.
If we want to commemorate the loss of R. Akiva's disciples, we should reflect on how such a tragedy took place, but more importantly, we should learn from history. We should look at the current state of the Jewish people. We should ask ourselves how we can show a greater sense of unity (אחדות) amongst the Jewish people, and how we can ultimately extend that to the world at large. If we have this much in-fighting, how can we be a light unto nations? Part of preparing during the Omer should be working on how we can love those who are different from us, how we can better reach across the aisle and connect with others. As Aristotle said, "We become just by performing just actions, temperate by performing temperate actions, brave by performing brave actions." It is in that vein that I figured out what I intend to do with my Omer: ask myself how I can be a better Jew and human being, how I can better connect with Jews and non-Jews alike, and how I can have a greater impact as a result. I don't expect to change the world, but as Lao Tzu puts it, "the journey of a thousand miles begins with one step." I hope that we can all take that step this Omer!
According to the Talmud (Yevamot 62b), 24,000 of Rabbi Akiva's disciples died between Pesach and Shavuot. Because of these deaths, we take on a state of quasi-mourning: no haircuts, no weddings, no music, and no shaving. This state of mourning takes place from the beginning of Passover to Shavuot (It was later shortened to the thirty-third day of the Omer, known as Lag B'Omer). Traditionalists who continue to advocate for the practice use such phrasing as "from tragedy springs hope," as if it obfuscates the problems with such a mourning practice.
What issues are there with mourning on the Omer? One issue has to do with the act of mourning the loss of individuals, known as aveilut (אבלות). In Jewish mourning, the standard mourning for the loss of individuals is either a week, a month, or 11 months, depending on who is being mourned. However, there are times when we mourn the loss of a mass group of people. The Holocaust is a good example. Even in pre-modern times, there were some bad times that befell the Jewish people that merited a fast day. However, these fast days were only one day and fell into obscurity since the time between the loss of the individuals and now was large enough. And it's not as if the Jewish people don't have a day to celebrate calamity that has affected the Jewish people on the national level. We have Tisha B'Av.
Another fun fact is that the Talmudic passage describing the plague does not come to the conclusion that an annual mourning should be the response. In the first millennium after the fall of the Second Temple, there technically was a mourning practice between Passover and Shavuot, but that was in commemoration of soldiers that died during the Bar Kochba revolt, and even those mourning practices were uncommon. The first mentioning of a practice tied to R. Akiva's students was made in the eight century. Rabbi Yosef Karo included the mourning practice in the Shulchan Aruch, but it was not a binding halacha. It was a meant to be a footnote pointing out a practice, which was even contested by his contemporaries. Not allowing for music has even weaker legal precedence since R. Karo does not mention banning music during this period. A rabbi who I respect greatly, R. Hayim Ovadia, covers the historicity and halacha of the mourning practice in further detail here.
None of this gets into my biggest issue with the mourning practice. The mourning of R. Akiva's disciples detracts us from the mitzvah of the Omer, thereby diminishing a mitzvah d'oraiata. Jewish tradition teaches that the month of Nissan is a month of joy. It's why some Jews (myself included) had and have an issue with Holocaust Remembrance Day falling on the month of Nissan. The purpose of counting on the Omer, or at least what I have found to be the purpose of this counting, is to prepare ourselves spiritually so we can ascend enough to receive the Torah in a way that our ancestors did. The Omer is a great time to work on Mussar and our character traits (מידות). It is difficult to both mourn a distant loss and spiritually ascend.
This detraction ties in directly with the reason as to why G-d sent a plague onto R. Akiva's disciples: they were not respectful of one another. They did not follow the most basic of dicta within Jewish law: "love your neighbor as yourself." It was about spiritual one-upmanship and defaming others in a quest for religious fame. It was not about serving G-d for its own sake, but being the best, even if that meant knocking others down a peg. As remiss as I am to say it, this sort of mentality still permeates within the Jewish people. Orthodox Jews have a problem getting along with non-Orthodox Jews. In the Orthodox world, there is such in-fighting. The Ultra-Orthodox Jews (Haredim) look at the Orthodox Left with disdain. Hasidic sects cannot get along with one another.
If we want to commemorate the loss of R. Akiva's disciples, we should reflect on how such a tragedy took place, but more importantly, we should learn from history. We should look at the current state of the Jewish people. We should ask ourselves how we can show a greater sense of unity (אחדות) amongst the Jewish people, and how we can ultimately extend that to the world at large. If we have this much in-fighting, how can we be a light unto nations? Part of preparing during the Omer should be working on how we can love those who are different from us, how we can better reach across the aisle and connect with others. As Aristotle said, "We become just by performing just actions, temperate by performing temperate actions, brave by performing brave actions." It is in that vein that I figured out what I intend to do with my Omer: ask myself how I can be a better Jew and human being, how I can better connect with Jews and non-Jews alike, and how I can have a greater impact as a result. I don't expect to change the world, but as Lao Tzu puts it, "the journey of a thousand miles begins with one step." I hope that we can all take that step this Omer!
Monday, April 2, 2018
Repealing the Second Amendment: Could We and Should We?
Sometimes, retirement does not suit people so well. I think this is particularly the case for those in the political world. They feel the need to come back and try to make the world a better place. Enter former Supreme Court Justice John Paul Stevens. Last week, he released a New York Times op-ed piece opining that we should repeal the Second Amendment. His basic argument is threefold. 1: The need for a national standing army for the sake of national or state-level security is outdated. 2: The Supreme Court's interpretation of District of Columbia v. Heller, which ruled that the Second Amendment provides an individual right to bear arms, was mistaken because at the very least, it has given the National Rifle Association (NRA) more propaganda power. He also believes that the Heller ruling deviated from precedent on past understanding of the Second Amendment. This leads to point number 3: Repealing the Second Amendment would make us safer because the current ruling under Heller makes us less safe. Unsurprisingly, Stevens' op-ed piece gained a lot of publicity. This op-ed has led me to ask two basic questions. One, could we repeal the Second Amendment? Two, should we repeal the Second Amendment, especially in response to the gun violence in the United States?
Could We Repeal the Second Amendment?
Under the United States Constitution, it is theoretically possible to repeal a constitutional amendment. Article V of the Constitution provides two methods of doing so. One is to have two-thirds of members of the House of Representatives and two-thirds of Senators vote for the repeal. The odds of a political party having two-thirds control of both chambers of the federal legislature is historically slim. Even if the Democrats could manage to get control of both chambers of Congress in the 2018 midterm election, the statistical probability of it being two-thirds control of both chambers occurring is quite low. The second option through Article V is convening a constitutional convention. In order to convene such a convention, two-thirds of state legislatures have to convene it. In the past 40 years, neither party has controlled 38 state legislatures to be able to convene one.
Historically, adding amendments to the Constitution is difficult. Since the Bill of Rights was enumerated and enacted, there have been 17 amendments added to the Constitution. Only one of those amendments was a repeal: the 21st Amendment repealed the 18th Amendment of prohibiting alcohol. This is more of a statement on the idiocy of prohibiting alcohol than anything else. This is to say that amending the U.S. Constitution is difficult.
There is another way to erode the Second Amendment. It would not be through repeal per se, but through the Supreme Court ruling in such a way that would severely curtail the right to bear arms. Given the power that the Supreme Court has been granted since Marbury v. Madison, it is certainly a feasible scenario. At the same time, it would overcoming two major hurdles on the judicial branch's end. One is that the current precedent under District of Columbia v. Heller and McDonald v. Chicago is that the Second Amendment refers to an individual right to bear arms. If you look at the history of Supreme Court precedent, it is quite difficult to overturn precedent once it is set. The second hurdle, which is related to the first, is the current composition of the Supreme Court. Justice Kennedy voted in the majority opinion for the Heller case, which means that if a Supreme Court case attempting to limit the Second Amendment were brought to the Justices today, odds are that it would be a 5-4 ruling in favor of the individual's right to bear arms. As long as that is the majoritarian consensus of the Supreme Court, the Second Amendment isn't going anywhere.
I rarely get into politics because I would prefer to keep my analysis about the public policy aspect, but it seems to be pertinent here. As the Washington Post points out, only one in five Americans support repealing the Second Amendment. To be fair, that same survey said that nearly half would not mind modifying the Second Amendment. Although there are a fair amount of Americans who would like to see change in gun laws, there is a good chance that it would not be a high priority during the election. Looking at Gallup polling over the past 15 years, economic issues supersede non-economic issues. As of now, only 2 percent of individuals think that crime and violence are the most important issue facing us (Gallup). Although there was a March for Our Lives to protest gun violence in the United States, I would make an educated guess that gun violence will not make the top list for issues that concern the electorate come November.
If you are looking to convince more to get repeal the Second Amendment, there is another reality gun control proponents need to acknowledge: there is a gun culture in the United States that cannot be wished away so easily. For one, there are 357 million guns in the United States, which means that there are more guns than there are people in the United States. In addition to the federal Constitution protecting the individual right to bear arms vis-à-vis the Second Amendment, 44 states protect the individual right to bear arms through state constitutions. Even if we were able to repeal the Second Amendment, the Ninth and Tenth Amendments would keep the state-level constitutional protections intact. This is another way of saying that Americans take their right to bear arms seriously. On the other hand, there is a record high support for stricter gun control (Quinnipiac Poll). On the other other hand, three-quarters of gun owners view gun ownership as essential to their freedom, and about half of Americans view protecting gun rights as more important than controlling gun ownership (Pew Research). Plus, only 9 percent believe in banning all private firearms (CAC).
Is it possible to repeal the Second Amendment? Theoretically, yes. Is it probable? No, it's not probable. If anything, it is highly improbable, almost to the point of being nigh impossible.
Should We Repeal the Second Amendment?
The Left-leaning political commentator Matthew Yglesias believes that a call to repeal the Second Amendment is a counterproductive distraction. His argument boils down to the fact that per the Heller case, meaningful gun control legislation could be passed without repealing the Second Amendment, and could be done so without technically violating the Second Amendment. The libertarian Cato Institute has a similar line of thought, saying that the Supreme Court has ruled that the Second Amendment guarantees the individual right to bear arms while still allowing for reasonable regulations, particularly on the state level. For those looking to pass stricter gun control, it seems superfluous at best.
This doesn't even touch upon another consideration in this debate. This call to repeal the Second Amendment is undoubtedly in response to the gun violence in the United States. Individuals like Justice Stevens think that repealing the Second Amendment is getting in the way of truly lowering gun deaths in this country. Let's leave the constitutional debate aside, especially since I covered that eight years ago. There are some other things to consider when asking ourselves about the value of the Second Amendment within the context of gun violence in the United States:
There are many aspects of the debate on gun control, gun violence, and gun rights, but what I will say is that it is not as simple as "guns are weapons of destruction, so let's get rid the Second Amendment in hopes of getting rid of guns." I'm not against that sort of knee-jerk reaction only because it's oversimplified. The media sensationalism makes it seem as if gun violence is worse than it's ever been, but data show that is false. Just because it appears in the news more often does not mean it has become "a new norm." It does not mean we are overridden by crime. It certainly is not an excuse to get rid of the Second Amendment or to get rid of the individual right to self-defense, a right that is implicit in that whole "life, liberty, and pursuit of happiness" bit. Repealing the Second Amendment is an impractical form of political suicide that would not adequately address gun violence. I hope that moving forward, there could be a conversation about gun policy that is reasonable instead of one that is downright inane.
Could We Repeal the Second Amendment?
Under the United States Constitution, it is theoretically possible to repeal a constitutional amendment. Article V of the Constitution provides two methods of doing so. One is to have two-thirds of members of the House of Representatives and two-thirds of Senators vote for the repeal. The odds of a political party having two-thirds control of both chambers of the federal legislature is historically slim. Even if the Democrats could manage to get control of both chambers of Congress in the 2018 midterm election, the statistical probability of it being two-thirds control of both chambers occurring is quite low. The second option through Article V is convening a constitutional convention. In order to convene such a convention, two-thirds of state legislatures have to convene it. In the past 40 years, neither party has controlled 38 state legislatures to be able to convene one.
Historically, adding amendments to the Constitution is difficult. Since the Bill of Rights was enumerated and enacted, there have been 17 amendments added to the Constitution. Only one of those amendments was a repeal: the 21st Amendment repealed the 18th Amendment of prohibiting alcohol. This is more of a statement on the idiocy of prohibiting alcohol than anything else. This is to say that amending the U.S. Constitution is difficult.
There is another way to erode the Second Amendment. It would not be through repeal per se, but through the Supreme Court ruling in such a way that would severely curtail the right to bear arms. Given the power that the Supreme Court has been granted since Marbury v. Madison, it is certainly a feasible scenario. At the same time, it would overcoming two major hurdles on the judicial branch's end. One is that the current precedent under District of Columbia v. Heller and McDonald v. Chicago is that the Second Amendment refers to an individual right to bear arms. If you look at the history of Supreme Court precedent, it is quite difficult to overturn precedent once it is set. The second hurdle, which is related to the first, is the current composition of the Supreme Court. Justice Kennedy voted in the majority opinion for the Heller case, which means that if a Supreme Court case attempting to limit the Second Amendment were brought to the Justices today, odds are that it would be a 5-4 ruling in favor of the individual's right to bear arms. As long as that is the majoritarian consensus of the Supreme Court, the Second Amendment isn't going anywhere.
I rarely get into politics because I would prefer to keep my analysis about the public policy aspect, but it seems to be pertinent here. As the Washington Post points out, only one in five Americans support repealing the Second Amendment. To be fair, that same survey said that nearly half would not mind modifying the Second Amendment. Although there are a fair amount of Americans who would like to see change in gun laws, there is a good chance that it would not be a high priority during the election. Looking at Gallup polling over the past 15 years, economic issues supersede non-economic issues. As of now, only 2 percent of individuals think that crime and violence are the most important issue facing us (Gallup). Although there was a March for Our Lives to protest gun violence in the United States, I would make an educated guess that gun violence will not make the top list for issues that concern the electorate come November.
If you are looking to convince more to get repeal the Second Amendment, there is another reality gun control proponents need to acknowledge: there is a gun culture in the United States that cannot be wished away so easily. For one, there are 357 million guns in the United States, which means that there are more guns than there are people in the United States. In addition to the federal Constitution protecting the individual right to bear arms vis-à-vis the Second Amendment, 44 states protect the individual right to bear arms through state constitutions. Even if we were able to repeal the Second Amendment, the Ninth and Tenth Amendments would keep the state-level constitutional protections intact. This is another way of saying that Americans take their right to bear arms seriously. On the other hand, there is a record high support for stricter gun control (Quinnipiac Poll). On the other other hand, three-quarters of gun owners view gun ownership as essential to their freedom, and about half of Americans view protecting gun rights as more important than controlling gun ownership (Pew Research). Plus, only 9 percent believe in banning all private firearms (CAC).
Is it possible to repeal the Second Amendment? Theoretically, yes. Is it probable? No, it's not probable. If anything, it is highly improbable, almost to the point of being nigh impossible.
Should We Repeal the Second Amendment?
The Left-leaning political commentator Matthew Yglesias believes that a call to repeal the Second Amendment is a counterproductive distraction. His argument boils down to the fact that per the Heller case, meaningful gun control legislation could be passed without repealing the Second Amendment, and could be done so without technically violating the Second Amendment. The libertarian Cato Institute has a similar line of thought, saying that the Supreme Court has ruled that the Second Amendment guarantees the individual right to bear arms while still allowing for reasonable regulations, particularly on the state level. For those looking to pass stricter gun control, it seems superfluous at best.
This doesn't even touch upon another consideration in this debate. This call to repeal the Second Amendment is undoubtedly in response to the gun violence in the United States. Individuals like Justice Stevens think that repealing the Second Amendment is getting in the way of truly lowering gun deaths in this country. Let's leave the constitutional debate aside, especially since I covered that eight years ago. There are some other things to consider when asking ourselves about the value of the Second Amendment within the context of gun violence in the United States:
- Lack of correlation between gun ownership and homicides. Looking across states, evidence suggests that there is not a correlation between gun ownership and homicides (also see here). How about on the international front? I conducted a cross-country analysis in 2012, and the conclusion I came to is that there is a negligible correlation between gun ownership and homicides. What about a more longitudinal view that accounts for passage of time? From 1993 to 2013, gun ownership increased 56 percent in the United States while homicides decreased by 49 percent. (In case you need a reason as to why I prefer to correlate gun ownership to overall homicides versus to firearm homicides, here is one).
- Overall drop in violent crime. Between 1993 and 2014, the gun homicide rate dropped by 51 percent (Pew Research). This trend aligns with the trend of overall violent crime decreasing since the 1990s. Steve Levitt and John Donohue, the economists of Freakonomics fame, wrote a paper on the the causes of this drop in violent crime. They identified four factors that caused the drop and six that did not. Two out of the six were gun control laws and concealed weapons laws. This decline in violent crime is important for two reasons. One is that as previously mentioned, gun ownership has increased while firearm homicides and homicides more generally have declined. The second is that a drop in the violent crime rate means that it is less of an issue than it was in the 1970s and 1980s.
- Intentional death rate. I want to take a look at the debate from a slightly different angle: the intentional death rate. What I mean by intentional death rate is the combination total of the homicide rate (UNODC) with the suicide rate (WHO; OECD). The reason I take a look at this rate is not only because it includes all methods of death (e.g., firearm, knife), but also because it includes the most common ways that people die via firearms (i.e., homicide and suicide). When looking at homicide and suicide combined, it paints a slightly different picture. Japan is usually used as an exemplar of gun control because their homicide rate is so low. However, if you add in their suicide rate with their homicide rate, their intentional death rate is 16.9 per 100,000, which is comparable the United States' 17.2 per 100,000 as of 2015. China, South Korea, and Finland also have high suicide rates while having low homicide rates.
- Defensive Gun Usage (DGU). According to Pew Research, the most common reason Americans own a gun is for self-defense. The idea is that owning a firearm will decrease the likelihood of victimization or injury. As the Rand Corporation points out, the evidence is limited, partly because we do not have adequate date, but also because it is difficult to measure whether a crime would have been more likely deterred with or without the firearm. Even so, people have tried to measure DGU. The Violence Prevention Center (VPC), a pro-gun control group, puts the estimate at around 100,000. Estimates have been as high as 2.5 million annually. I am more inclined to believe that DGU is underreported because people are disinclined to divulge if they have a gun, they might not be sure if what they did was legal, they might illegally possess the weapon, or they might be ashamed that they were victimized. It would be nice to have more data, but at the same time, I think that Cato Institute and Reason Magazine cover the topic pretty well.
- Mass shootings are very uncommon. The response for repeal has been largely in response to mass shootings reported in the news. As already stated, firearm homicides have declined considerably since 1993. We also have to remember that mass shootings are a small subset of overall firearm deaths. About two out of three gun deaths in the United States are suicides. Most firearm homicides are committed during a felony or during gang activity. Mass shootings only account for about 0.4 percent of overall firearm homicides. Although there has been an increase of mass shootings since the 1990s, let's remember that overall firearm homicide has decreased.
- School shootings are also uncommon. I wrote on this topic a couple of months ago, but here is the bottom line regarding school shootings: while the United States has more school shootings relative to other countries, the truth is that a school shooting is a statistically rare occurrence. While school shootings are more shocking due to the venue and to the victims being schoolchildren, teachers, or other school staff, it is still uncommon.
There are many aspects of the debate on gun control, gun violence, and gun rights, but what I will say is that it is not as simple as "guns are weapons of destruction, so let's get rid the Second Amendment in hopes of getting rid of guns." I'm not against that sort of knee-jerk reaction only because it's oversimplified. The media sensationalism makes it seem as if gun violence is worse than it's ever been, but data show that is false. Just because it appears in the news more often does not mean it has become "a new norm." It does not mean we are overridden by crime. It certainly is not an excuse to get rid of the Second Amendment or to get rid of the individual right to self-defense, a right that is implicit in that whole "life, liberty, and pursuit of happiness" bit. Repealing the Second Amendment is an impractical form of political suicide that would not adequately address gun violence. I hope that moving forward, there could be a conversation about gun policy that is reasonable instead of one that is downright inane.
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