German Joys

Guns Kill More Efficiently than Anything Else

Two news stories from yesterday: In China, a man using a knife attacked schoolchildren. 22 were injured, and none died. Another man in the USA attacked schoolchildren using Sig Sauer and Glock semi-automatic pistols, precision instruments designed to efficiently kill humans. There were almost no survivors. Apparently, every single child he targeted was killed on the scene. The local hospital turned away nurses who had come in to help, since there was no more help to give.

Even for a determined murderer, killing someone with a knife is difficult. You'll generally need to hit them several times, and if you don't hit a major artery, they are likely to survive, especially with modern medical treatment. Plus, they will defend themselves, if they're conscious. Killing someone with a bomb is also a challenge -- as recent failed bombings both in the US and in Germany (g) show, it's very hard to competently construct a large bomb.

A semi-automatic pistol is a different matter entirely. Standing well away from your victim, you can launch projectiles at 1,150 feet per second at their head and chest, pumping bullet after bullet into them until you're sure they're dead. The whole process takes seconds. There's almost nothing they can do to defend themselves. You can stay a comfortable distance away from your victims. Plus, you can pick them out specifically and target only the ones you want to kill. The gun that gives you this power is light and easily-concealed.

This is why most societies tightly regulate semi-automatic handguns. There's nothing like them for the combination of easy concealment and potent lethality. There will always be the occasional extremely rare incident in which one person decides to attack a large number of others at once, but only if he uses a semi-automatic weapon is the death toll likely to be high.

This latest American massacre will likely spur more debate about gun control in the US, but gun-control opponents there will rightly point out that tighter regulations probably won't achieve much. The genie of portable, effective killing machines is out of the bottle: the US is awash in 310 million non-military privately-held firearms, millions of which are semi-automatic handguns. There's nothing you can do to take them out of circulation -- at least nothing that is remotely politically feasible. The US will be living with this policy disaster for decades, if not centuries.

(Graph source here)

Throwing the Mentally Ill into Prison

The Supreme Court of the United States just handed down a peculiar decision. By a vote of 6-3, it refused to decide an Idaho case in which an extremely mentally ill man was denied any chance to lodge an insanity defense and was sentenced to two life prison terms for murder. This result is possible because, 1982, the state of Idaho decided to break with thousands of years of legal tradition (pdf) and completely abolish the insanity defense. In Idaho, since 1982, mentally ill people cannot introduce evidence of their mental illness and are sentenced to precisely the same prison terms as ordinary criminals: as the law states, '[m]ental condition shall not be a defense to any charge of criminal conduct.' Idaho Code §18–207(1).* The courts of Idaho held that the legislature's decision to abolishing the insanity defense was not inconsistent with Constitutional due process

The United States Supreme Court just allowed that decision to stand. This means the other 46 American states who still permit some sort of insanity defense may, if they choose, now abolish it. They probably won't, though. Three Justices of the U.S. Supreme Court dissented from the majority's decision (pdf). And the mere fact that the Supreme Court didn't take this case does not imply any sort of judgment. They still remain free to decide the issue later -- although this case, Delling v. Idaho, was an excellent test case, since Delling was so disturbed that he had to be medicated for a year just to make him competent to stand trial. Nobody disputed that Delling was mentally ill, and that his illness was responsible for his crimes. But under Idaho law, that was irrelevant.

This is the danger of passing legislation based on a single spectacular case. In Germany, talking heads intervene after a spectacular crime and admonish the public that 'we must remain calm and assess the issue rationally without overreacting to a single incident (Einzelfall).' Examples for the skeptical here (g) and here (g). To some, this phrase may smack of elite condescension, but to others, it's a necessary corrective (these categories are hardly mutually exclusive). To understand this issue, you have to look at the date. Idaho passed this law in 1982 -- that is, just after the trial of John Hinckley, the man who attempted to assassinate President Ronald Reagan on 30 March 1981. Hinckley was found not guilty by reason of insanity after evidence was introduced that he had become obsessed with the actress Jodie Foster.

After Hinckley's acquittal, there was a backlash against the very idea of the insanity defense. Politicians and conservative commentators began thumping the tub, claiming that the insanity defense was being abused everywhere to let guilty criminals off the hook. (In fact, it is only invoked in a tiny percentage of American criminal trials, and is successful only in a minority of those). The message resonated with Americans, who thought that huge numbers of criminals were 'getting off' on insanity pleas (yet another example of the gob-smacking political ignorance of many Americans). In the aftermath of the Hinckley trial, many states and the U.S. government narrowed the insanity defense, and three states -- including Idaho -- abolished it altogether. These laws weren' the product of careful reflection or policy analysis -- they were just spasms of opportunism by politicians eager to exploit a passing public mood.

But Idaho politicians, wary of being accused of being 'soft on crime', never changed the law. Which means paranoid schizophrenic Joseph Delling faces life in prison with mental illness. A Human Rights Watch report describes the future he faces:

Without the necessary care, mentally ill prisoners suffer painful symptoms and their conditions can deteriorate. They are afflicted with delusions and hallucinations, debilitating fears, or extreme mood swings. They huddle silently in their cells, mumble incoherently, or yell incessantly. They refuse to obey orders or lash out without apparent provocation. They beat their heads against cell walls, smear themselves with feces, self-mutilate, and commit suicide.

Doing time in prison is hard for everyone. Prisoners struggle to maintain their self-respect and emotional equilibrium in facilities that are typically tense, overcrowded, fraught with the potential for violence, cut off from families and communities, and devoid of opportunities for meaningful education, work, or other productive activities. But life in prison is particularly difficult for prisoners with mental illnesses that impair their thinking, emotional responses, and ability to cope. They are more likely to be exploited and victimized by other prisoners. They are less likely to be able to adhere to the countless formal and informal rules of a strictly regimented life and often have higher rates of rule-breaking than other prisoners.

And this all came about because some long-forgotten, perhaps even long-dead Idaho lawmaker, 30 years ago, decided to score political points by introducing a bill eliminating what had been a pillar of the Anglo-American legal order for hundreds of years. I doubt that these long-ago Idaho lawmakers envisioned that the law would be used in cases such as Delling's. They thought they were sticking it to those clever, big-money defense lawyers and cynical, malingering defendants. But once the law is on the books, it's there forever. Who knows how many other mentally ill people have been sentenced to prison terms in Idaho the past 30 years because of this law?

Delling's story showcases the danger of 'legislating based on a singe case.' It's especially likely to happen in the U.S. in the area of criminal law, since accused (and especially convicted) criminals are about the safest punching bags a populist politician can find. And there's nothing to stop these politicians except for their consciences....

Marriage is Dead. What Will Replace It?

Recently, yet another marriage in my circle of friends blew up, making the unofficial tally something like 50% of marriages which I've witnessed ending within 15 years or so. And some of the surviving ones are on shaky ground.

All of these people, of course, swore they'd stay together until the end. Presumably, they were sincere. Yet it's become clear that only a minority of people can realistically live up to that promise. Vowing to remain exclusively with one person in a faithful monogamous relationship until death do us part makes about as much sense as vowing to work for the same firm until the end of one's career. How could you seriously promise to be working at the same firm 30 years into the future when the firm, or even the industry, might no longer exist? 15 years after your vow of permanent fealty to the firm, you get an offer at 3 times your present salary, and you're expected to turn it down? And before you reply that marriage as a 'sacred commitment' can hardly be compared to a job, ignore what people say about their preferences and look at how they actually behave. How many people are actually treating their marital vows differently from a job or consumer product? The divorce and infidelity statistics suggest very few indeed.

Marriage as an institution was created when mankind lived in primitive tribal settlements, and the average human went through life encountering the exact same 2-300 people until their death. It was also a way of ensuring financial support for women at a time when they weren't expected to support themselves. And, of course, to stabilize potentially violent unattached young males.

All these circumstances have now changed: people now encounter hundreds, if not thousands of opportunities to cheat, and the social stigma against divorce and single motherhood has never been lighter and is not coming back. Already, 40% of Americans view marriage as obsolete. In the US, only the richest Americans (especially whites and Asians) have any realistic chance of a life-long marriage; the institution has essentially died out among the middle-class and below. Marriage as a universal institution which everyone is expected to enter is like Wile E. Coyote: it ran off the cliff into thin air long ago, and is just waiting to fall.

So what will take its place? Unmarried cohabitation, for one thing (see the last link). But marriage as an institution is so deeply anchored in Western society that people will go on pretending to take it seriously for a few decades more. And there will still be the odd successful life-long marriage -- among a small sub-set of risk-averse, traditionally-minded, highly religious people (all these traits are linked). Already, we see trends in most Western societies in which organized religion is shrinking to a core of about 20-25% of the population who are part-genetically, part-environmentally predisposed to experience strong, sincere, abiding religious faith within an organized hierarchical religion. Since no social pressure is forcing the rest of the population to pretend to take organized religion seriously, they are no longer doing so. Marriage as a genuine life-long proposal will survive only in highly religious communities.

What about the rest of us, though? I still think Gabriele Pauli had a brilliant idea. She's a twice-divorced, rather eccentric female politician for the Christian Social Union (CSU) party in Germany, a Bavaria-centered Catholic traditionalist party. Five years ago, she proposed that marriages should automatically dissolve after seven years unless the couple decides to renew it. Naturally, the other members of her party went berserk and quickly vowed their fealty to the noble institution of traditional marriage -- presumably with the exception of CSU bigwig Horst Seehofer, who was busy having a love child with his much-younger mistress (to be fair, he ended the affair and is back with his wife. For now.)

But the idea is a sound one. First, from an aesthetic point of view, it would reduce the amount of rank hypocrisy and insincerity in society. There's just something unseemly about millions of people making promises in front of their friends and family they have no ability to keep  -- merely because the dead hand of tradition demands it. A seven-year option would allow married couples to simply let their marriage automatically dissolve, instead of having to initiate a complex, potentially bitter divorce proceeding. You would have a series of default legal rules for splitting property and child custody. Of course, those who are happy after seven years could renew their vows, presumably by sending in a simple postcard with both their signatures. Or even online!

The typical objection would be: what about the children? Well, first of all, look at the chart above. Family stability is a thing of the past. In Germany, 1/3 of all children are born out of wedlock (g), and the tendency is only increasing. Soon, in all Western countries, at least half of children will be born out of wedlock anyway. Some of those will be born into stable cohabiting relationships, but most will be born to single mothers. It's hard to see a difference between those contexts and a seven-year marriage. Who knows -- the existence of an easy way out of marriage might even encourage more commitment-shy men and cohabiting couples to get married, thus increasing the overall level of family stability. And let's not forget that some of the damage done to children by divorce springs from the fact that their parents once promised they would stay together forever, then break that vow when they divorce.

I think the seven-year marriage is an idea that deserves to be taken seriously, at least. But I'm not holding my breath...

American Criminal Punishment: Self-Defeating, Discriminatory, Inhumane

A reader emailed me (thanks!) a link to this excellent piece by Liliana Segura for the Nation on US-European criminal-justice contrasts:

The United States is uniquely punitive when it comes to sentencing compared to much of the rest of the world, whether the crime is murder or drug possession. Putting aside the death penalty, which lands us in dubious international company, in countries with life sentences on the books, prisoners are often eligible for release after a few decades. “Mexico will not extradite defendants who face sentences of life without parole,” the New York Times’s Adam Liptak noted in 2005 (Most of Latin America has no such sentence). “And when Mehmet Ali Agca, the Turkish gunman who tried to kill Pope John Paul II in 1981, was pardoned in 2000, an Italian judge remarked, ‘No one stays 20 years in prison.’ ”

The same article quoted Yale law professor James Q. Whitman, author of a book comparing US sentencing with Europe. “Western Europeans regard 10 or 12 years as an extremely long term, even for offenders sentenced in theory to life,” he said. Today, there are more than 41,000 people serving life without parole in the United States compared to fifty-nine in Australia, forty-one in England and thirty-seven in the Netherlands. That’s according to a study released this spring, which found that we are “in the minority of countries using several sentencing practices, such as life without parole, consecutive sentences, juvenile life without parole, juvenile transfer to adult courts, and successive prosecution of the same defendant by the state and federal government.” In the United States, prison sentences have gotten longer and longer—a sea change that Americans have come to accept relatively quickly (largely because the targets have been people of color). Just a few decades ago in high-incarceration states like Louisiana, lifers were eligible for release in ten and a half years. Today in Louisiana, there is no longer parole for lifers, and thus virtually no hope of release, ever. And when it comes to crimes prosecuted under the War on Drugs, three-strikes sentencing and mandatory minimums have not only sent people away for life for minor drug offenses—an anomaly compared to the rest of the world—they have led to a current reality in which the vast majority of people arrested on nonviolent drug charges plead guilty—whether they are or not—in order to avoid such draconian prison sentences, a decision that can have lifelong implications.

...[T]he notion that a retribution-based system hands out sentences that “fit the crime” is wildly and tragically false if the United States is your guide. In the United States, grandmothers are sentenced to life for first-time drug offenses. Mothers who fire a “warning shot” in self-defense at an abusive husband get twenty years in prison. Teenagers who kill their abusive pimp get sentenced to life without parole. Kids who commit crimes at 14 have been condemned to die in prison—getting raped along the way—with no consideration for their age, mental health or abusive upbringing. People land on death row for failing to anticipate that an accomplice in a crime might kill someone—and people are executed for killings committed by others who then go free. The American model—which Supreme Court Justice Antonin Scalia recently summed up by musing, “I thought that modern penology has abandoned that rehabilitation thing”—is a system rife with injustice.

California Voters May Reject Death Penalty in Favor of Life Without Parole

California will shortly vote on Proposition 34, which would end capital punishment in that state, where 725 prisoners currently await execution. This being America, even a bill to abolish capital punishment had to be given a tough-as-nails title: the 'Savings, Accountability and Full Enforcement' (SAFE) act. David Dow, abolitionist law professor, throws a spanner in to the works by pointing out that many death sentences which would be nullified by the act would be converted into true life sentences without any chance of early release (parole):

The justifications given by death penalty opponents who have embraced life without parole reveal the extent to which abolitionists have surrendered the moral basis of their position. It used to be that abolitionists argued that most people who commit bad acts can change and that the cruelest punishment one can inflict is to rob a human being of hope. But this concept—I hesitate to use the word “rehabilitation”—has seeped out of the criminal justice system over the past forty years. Prisons are now designed almost entirely for security in mind and not at all for socialization. Sentences have gotten steadily longer. And while states are turning away from the death penalty, they are replacing it with a different kind of death sentence. Sending a prisoner to die behind bars with no hope of release is a sentence that denies the possibility of redemption every bit as much as strapping a murderer to the gurney and filling him with poison.

Opponents of capital punishment often point out that the United States is the only developed Western country still executing prisoners, a comparison meant to shame us for being aligned with such human rights–violating countries as Iran, China and North Korea. It’s not a bad argument, but exactly the same could be said about life without parole. Our neighbors to the south don’t have it. Almost all of Europe rejects it. Even China and Pakistan, hardly exemplars of progressive criminal justice policy, allow prisoners serving life sentences to come up for parole after twenty-five years. Meanwhile, the United States imprisons wrongdoers for sentences that are five to seven times longer than sentences for comparable offenses in, say, Germany. Yet the recidivism rate in Germany is roughly 25 percent lower than ours.

...

There’s no question that touting life without parole as the moral and cost-effective alternative to the death penalty has been a successful short-term strategy. But then what? Is it really necessary to eliminate any possibility of eventual release for all 725 people on California’s death row? Charles Manson is not serving life without parole, but he has been rejected every single time he has appeared before the parole board and will die behind bars. Are some of California’s death row inmates as monstrous as Manson? I suspect the answer is yes, and the parole board could keep them in prison too. But there are scores, even hundreds, who could be released at no significant risk to society.

I'm of two minds about this, as I'm sure Dow is as well. On the one hand, locking a 19-year old up for true life without parole is inhumane and inefficient. No matter how awful the crime he committed, the chance that he will still pose a threat to society at age 59 or 69 is trivial. Perhaps some inmates do need to be kept behind bars for decades, but the vast majority age out of their criminal tendencies. The decision whether to keep them in prison should be made by qualified experts on a case-by-case basis, not cast in stone at the moment of sentencing. As Dow amplifies in this interview (starting about 22:00), both the death penalty and life without parole convey the corrosive, cynical message that rehabilitation is doomed and that it's appropriate for society to give up on criminals.

On the other hand, American voters are still attached to the idea of the death penalty for the worst murders, so it's probably necessary to propose a reassuringly harsh substitute penalty. If you have to sell abolishing the death penalty to voters, life without parole may well be a necessary substitute.

But notice that 'if'. The problem here is that a major human-rights and public-policy issue is being thrown directly to the voters of California, or at least that share of them that plan to vote. There's something quaintly American about referendum-based direct democracy, but there are some issues -- probably most issues, in fact -- that are too complex and far-reaching to be responsibly decided by plebiscite. A couple of decades ago, for instance, California voters decided to pass a stringent anti-tax provision that, years later, continues to cause massive budget shortfalls and is contributing to the destruction of public higher education.

In my view, the way to a more humane criminal-justice system is not to ask voters to replace one uncivilized punishment with another, but to make a systemic change: to put criminal-justice policy into the hands of a select group of well-informed experts who can then counsel the peoples' elected representatives on the best way to prevent and respond to crime. In other words, to adopt the European policy-making approach. Unfortunately, this is a tough message to sell in the U.S.

The Failings of a Two-Party Duopoly, Part XXVII

The United States's extreme first-past-the post voting system makes it difficult to sustain nationally-viable third parties (unless they're founded by a charismatic and/or wealthy politician, but these always fade). This means that as soon as the two mainstream parties agree to ignore an issue for their own reasons, it pretty much disappears from the radar screen. The American criminal justice system, for instance, is a dangerous mess, but as Radley Balko points out, its obvious failings have been ignored by both parties so far:

Our broken criminal justice system wasn't discussed in the first two 2012 debates, and it's unlikely it will be addressed in the two that remain. In fact, crime hasn't been a factor in any presidential campaign since 1988, when Vice President George H. W. Bush and political strategist Lee Atwater -- along with assists from Al Gore and CNN anchor Bernard Shaw -- hit Michael Dukakis over the head with them. Since then, the only way either major party nominee has talked about crime has been to promise he'll be tougher on it than his opponent.

Even during Supreme Court hearings, the topic only comes up when partisans promise a nominee will crack down on those technicalities crime hawks (mistakenly) believe have turned prison gates into revolving doors. When the Senate was considering Sonia Sotomayor, for example, Sen. Chuck Schumer (D-N.Y.) complemented her judicial history by noting she had "ruled for the government in 83% of immigration cases, in 92% of criminal cases." Former prosecutor Sen. Amy Klobuchar (D-Minn.) then praised Sotomayor for those occasions in which she had excused police officers who had violated the Fourth Amendment. Vice President Joe Biden told a gathering of law enforcement organizations that Sotomayor "has got your back," an incredibly inappropriate thing to say (even for Biden). Imagine the uproar if the vice president had said the same thing to the National Association of Criminal Defense Lawyers, or the American Civil Liberties Union.

...

There's an important debate to be had about privatizing prisons, and whether it's wise to have a government-created industry with a bottom line dependent on keeping as many people locked up for as long as possible. There's the vastly under-reported national scandal of corrupt crime labs and corrupted forensic evidence. The latest incident involves a crime lab technician in Massachusetts who may have faked thousands of drug tests.

We're in a 30-year trend toward police militarization, a phenomenon that has been driven by federal incentives. And we're expanding the use of solitary confinement (even for children).

Politicians are risk-averse creatures of habit. For decades they've been trained to mutter the same soundbites about crime. Polls show America's opinions on many of these issues are shifting, but few people actually vote on them. And the people most affected when the crime policy pendulum swings too far toward government power aren't large enough in number or stature to force a debate.

This also goes for the international war on drugs:

It’s a social policy that, many experts agree, has failed miserably since it was introduced more than forty years ago, tearing apart families and communities across the United States, consuming tens of thousands of lives abroad, and squandering huge sums of money. Yet hardly any national politician is willing to challenge it, and it’s been completely ignored during the 2012 presidential campaign. >I’m speaking of the war on drugs.

Since 1971, when Richard Nixon declared drug abuse “public enemy number one” and stated his intention of waging a “new, all-out offensive” against it, the government has spent an estimated trillion dollars on the war. Much of that money has gone to street-level drug arrests, undercover raids, intelligence taskforces, highway patrols, and—most costly of all—prison beds. Of the 2.3 million people in prison in the United States today, nearly half a million are there for drug offenses, many of them of the low-level, non-violent variety. In 2010, 1.64 million people were arrested for drug violations—80 percent of them for possession.

In Latin America, the war on drugs has sown misery across a vast swath of territory stretching from the coca fields of Peru to Mexico’s border with the United States. Billions have been spent on crop eradication, commando units, military training, unmanned surveillance drones, and helicopters. The result has been endless bloodshed, widespread corruption, and political instability. In Mexico alone, an estimated 50,000 people have been killed in drug-related violence in the nearly six years since Mexican President Felipe Calderón (encouraged by Washington) declared war on his nation’s drug cartels. One result of the crackdown has been to push traffickers into Central America, where they now terrorize Guatemalans and Hondurans. All the while, drugs continue to flow unabated into the United States. In 1981, a pure gram of cocaine cost $669 (adjusted for inflation); today, it goes for $177.

My Take on the Cologne Circumcision Case

Here is my take on the famous German circumcision judgment. Thanks to the friendly folks at verfassungsblog.de for cross-posting this.

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The Cologne Landgericht decision proclaiming religious circumcision to be a form of illegal assault will apparently soon be superseded by legislation permitting the practice under certain conditions. Nevertheless, the mere fact that the decision came about – coupled with its endorsement by many members of the German criminal-law community and the fact that approximately half of Germans want to see religious circumcision punished by law – points at a continuing controversy. Circumcision also presents an interesting cross-cultural case study, since it is not expressly regulated in either the United States or (yet) in Germany. An enlightening 2002 analysis by Geoffrey P. Miller shows that all U.S. published U.S. court cases about male circumcision involve botched operations or problems with obtaining parents’ consent. It appears that no U.S. court has yet addressed a situation in which a doctor has been criminally prosecuted for competently performing a circumcision with the consent of the child’s guardians.

Even were such a case to emerge, it’s difficult to imagine a similar outcome. Following the First Amendment’s explicit ban on ‘established’ churches, the Supreme Court has limited government interference in private religious rituals. A line of Supreme Court cases has called for the government to display a ‘wholesome neutrality’ toward all religions, and to avoid unnecessary ‘entanglement’ of church and state. Accordingly, the Supreme Court has forbade American government entities from pronouncing on internal church administration, drawing government administrative boundaries to accommodate religious sects, or banning controversial religious practices under the pretext of public safety. This basic suspicion of intermingling secular administration and religion is widespread among legal officials. The average District Attorney, presented with a case in which a third party complained about a properly-performed circumcision, would almost certainly use her discretion not to prosecute.

The second (somewhat related) strand of jurisprudence emphasizes family autonomy. In a landmark 1972 case, Wisconsin v. Yoder, the Court upheld the right of Old Order Amish families to withdraw their children from formal education at the age of 16, observing that though there is no explicit guarantee of family autonomy in the Constitution, ‘the values of parental direction of the religious upbringing and education of their children in their early and formative years have a high place in our society.’ The state, for example, may not ban parents from sending their children to private religious schools or even educating them at home, as long as curricular standards are met. The fundamental Constitutional principle of American family law, repeated in case after case, is to presume that “natural bonds of affection lead parents to act in the best interests of their children”. When parental autonomy is bound up with religious practice, the rationale for judicial circumspection becomes even clearer.

And indeed, the decision of the Cologne court demonstrates the problems that occur when courts intrude in this area. Considering its worldwide resonance, the decision itself is astoundingly brief, just a few paragraphs long. At one point, the court accuses the doctor (and, by implication, the boy’s parents) of infringing the boy’s right to choose his own religious affiliation. Yet the mere fact that a child is circumcised doesn’t irrevocably commit him to Islam, as the 55% of American males who are circumcised can attest. Second, the court can hardly have thought through its proposed right for children to freely choose their religion. Both of Germany’s established religions provide for elaborate public rituals in which children are brought into their parents’ or community’s faith long before they are of age to make binding legal commitments under German law. Granted, these induction ceremonies don’t involve circumcision, but the court did not bother to limit its principle only to these cases. Like many legal commentators, the court also confidently proclaimed circumcision to be against the child’s best interests without ever suggesting why the child’s parents, who obviously had different views, should be ignored.

These problems help explain the different reactions to the decision among German and foreign observers. Christian Germans (whether devout or nominal) are rarely circumcised. This is in stark contrast to the United States, where routine circumcision was adopted during the late 19th century on hygiene grounds (including the prevention of masturbation) which would now be considered dubious. Yet the practice remains well-accepted: The American Pediatric Association recently concluded that “scientific evidence demonstrates potential medical benefits of newborn male circumcision” and explicitly noted that it is “legitimate for parents to take into account cultural, religious, and ethnic traditions, in addition to the medical factors, when making this decision.” By contrast, circumcision in Germany has only been customary among two religious minorities, one of which was decimated during the Third Reich, and the other which only arrived in significant numbers in the last 40 years. The generally positive reaction to the decision among Germany’s socially conservative legal culture shows a lasting undercurrent of suspicion against customs and beliefs that have “non-European” roots – and of the parents who wish to pass them on to their children.

Two Models of Freedom and Responsibility

Yet there is another factor driving the circumcision controversy: a stronger emphasis on social cohesion. Again, the comparison with the United States is instructive. America is, in many respects, an an outlier in terms of governmentally-enforced social cohesion. There is no national identity card in the United States, and some 10 per cent of the population has no picture identification of any kind. American rules regarding home schooling and religious education are among the most liberal in the world. Unlike every other government in the world, the American state is constitutionally debarred from banning hate speech and propaganda in the name of social harmony. Aside from wartime, compulsory military or civil service has never existed in the United States. And, of course, the American social safety net is designed only to provide transitional, time-limited aid. The possibility that the devout might create self-perpetuating ‘parallel societies’, a perennial source of anguish in the European media, is largely absent from American public discourse. This is not because such parallel societies do not exist in the USA – quite the contrary is true – but because their existence is not seen as problematic as long as they do not encourage crime or exploitation. (Of course, these libertarian hallmarks coexist with a massive security sector and the highest imprisonment rates in the world – but exploring this paradox is beyond the scope of this post.)

Although the German political order also guarantees its citizens wide-ranging civil freedoms, the approach is subtly different. In an interesting article on the ‘German Idea of Freedom‘ Edward J. Eberle argues that Germany’s conception of individual liberty — while robust and deeply-rooted — differs significantly from that found in the United States. In contrast to the freewheeling American conception of individual rights (accompanied by an equally unfettered free market), the German conception of liberty ‘take[s] place within a moral structure erected on ethical concepts that include human dignity and its multiple radiations, people acting within the bounds of a social community with its ensuing reciprocal obligations, and a Sozialstaat.’ Further, the discussion of rights in Germany is coupled with ‘duties rooted deeply in the culture and community’.

This conception of ‘freedom’ conditioned by social integration (which, of course, prevails in many Continental European cultures) enables the state to make claims on its citizens that would be controversial in Anglo-Saxon countries. German court decisions, for example, permit government officials to reject parents’ chosen names for their children on a number of grounds, including that the name might subject the child to ridicule or does not clearly indicate the child’s gender. Until recently, military service was compulsory in Germany, although many young men opted out under liberal conscientious-objector laws. Germany also has a registration law, which requires Germans to timely inform their government of any change in address. Germany has comprehensive federal laws regulating everything from the permissible size of huts on garden allotments to the content of vacation contracts, and a sizable contingent of ‘order police’ (the Ordnungsamt) to enforce them. The German legal order does not provide for untrammeled free speech – pro-Nazi rhetoric is illegal, and media which publish insulting or privacy-intruding material may be confiscated and their owners fined.

The flip side of this intrusion is an impressive network of social rights and benefits. Despite recent reforms, German social welfare benefits are still much more generous than their American counterparts — but recipients may also required to submit to intrusive surveillance. Germany has universal health insurance provided by subsidized insurance companies which are run on the principle of ‘solidarity’. Germans receive large welfare subsidies for having children, and enjoy some of the most generous family leave policies in the world. Virtually all higher education is provided free of charge (or for nominal tuition) by government-funded universities. All workers are guaranteed several weeks of paid vacation per year. Even welfare recipients can petition for extra money to pay for a child’s wedding or a vacation.

To put it simply, the German social bargain permits the state to intrude more deeply into citizens’ affairs in certain areas, in return for providing them with an array of services designed to foster personal development and socialize common life-risks. Germans face more subtle pressure to conform to majority social norms, but in return enjoy benefits conferred by that majority itself. This ideology of ‘duties rooted deeply in the culture and community’ may have influenced the German court’s reasoning: Instead of simply endorsing parental autonomy tout court, the judges asked whether the parents’ choice would bind their child closer to the majority ‘culture and community’ of Germany. Because it would not, it was that much easier to second-guess. Yet the reaction to the court’s decision seems to mark a subtle shift in consensus-minded Germany toward accommodating beliefs and rituals which will always remain outside the mainstream.

U.S. Law Schools as Indentured Servant Agencies

I've been watching from the sidelines the atmosphere of crisis overtaking American legal education in the past few years. The financial crisis hit U.S. legal employment extremely hard, vaporizing thousands of high-end jobs (many of which probably won't come back) and reducing the amount of money middle-class Americans had to spend on legal services. The U.S. does not have a sophisticated system of consumer legal insurance, so most people have to pay for legal services out of pocket. This has decimated the job prospects of the people graduating from any but the most elite law schools.

At precisely the same time, law schools -- from the elite to the for-profit bottom feeders -- have been drastically increasing their tuition fees in lockstep by something like 10-15% per year, meaning that many have literally doubled their tuition fees in the past 15 years or so. (I was lucky enough to go to law school back when it was a serious chunk of change, but not ludicrously, astronomically, ruinously expensive). Now, the average law student in the US can expect to incur total expenses (not just tuition) of something like $150,000 to $180,000 for a three-year law degree.

Paul Campos, the most readable critic of American legal education, explains what's driving this slow-motion train wreck:

An interesting statistic from his blog, Inside the Law School Scam:

Harvard Law School annual tuition IN 2011 DOLLARS

 1971: $12,500

1981:  $15,600

1991:  $26,000

2001:  $35,200

2011:  $47,600

Campos was also recently interviewed by Megan McArdle:

Megan: Do you have a sense of how that happens? The legend at business school--from which I graduated in 2001 with high five figure debt--was that the universities were using their professional schools as cash cows to subsidize the rest of the university.

But perhaps the faculty is being paid lots and lots? . . . she said, wryly.

Paul: Faculty salaries have doubled in real terms over the past 30 years. Administrative salaries have grown by much more, and the sheer number of administrative positions has exploded. Facilities are much nicer (this is known as the amenities race), and at law schools faculty-to-student ratios are much lower because of the pursuit of rankings. It's just a crazy business model, all of which is enabled by no underwriting standards for student loans.

Megan: Presumably because they're not bankruptable.

Paul: Yes, and because the cost is borne by graduates (who are prone to cognitive errors, ie optimism and confirmation bias) and by taxpayers, who are a diffuse group. The benefits, on the other hand, are reaped by a very discrete group -- law schools in particular and universities in general. It's Poli Sci and Econ 101 respectively really.

Intercultural Blind Spot: Glenn Beck's German Fans

This is a post about an intercultural blind spot. An IBS exists whenever people who are interested in another culture -- but not extremely well-versed in it -- develop a distorted view of the other culture based on the lack of contextual knowledge (and the hubris not to recognize that lack). This can take many forms:

• You take the spokesman from another culture seriously because (1) you are unable to detect the tells that alert a homegrown listener to the fact that this person is stupid or nuts; and/or (2) you are unaware of that person's history which shows them to be nuts even though what you heard sounded fairly reasonable.
• You assume that one of the spokesmen for the other culture whose work is easily accessible because he speaks your language 'represents' the other culture as a whole, rather than just a tiny, unrepresentative fraction of it (example for English-speakers: Peter Schneider).
• You take a spokesman from the other culture too seriously because he or she is saying what you want to hear and/or confirming reassuring stereotypes (example for German speakers: Michael Moore).
• You assume the spokesman from the other culture must be as popular and influential at home as he is in your country.

Doing some unrelated research, I came across the website Politically Incorrect, which subtitles itself as: 'News against the Mainstream - Pro-American - Pro-Israeli - Against the Islamization of Europe - For the Constitution and Human Rights'. It's a curious mixture -- some of the posts are the sort of heavy-handed sarcasm and name-calling you see on the more tiresomely ranty kinds of political websites. Other posts make halfway-defensible points, and yet others take fairly well-aimed potshots at the indubitably politically-correct German state-run media.

Just when I was tempted to think some of it might be worth taking seriously, though, I ran across this entry (my translation):

After the attacks of 11 September 2001, a document called 'The Project' was discovered during a raid in Switzerland. The information, which has been kept secret by the US Administration, reveal the largest terrorism-financing scheme in US history. This documentary film relentlessly uncovers how the Muslim Brotherhood is infiltrating the US Administration in an attempt to destroy the West from inside.

The film will be shown on Glenn Beck's The Blaze...

Whoa, wait a minute -- Glenn Beck? Katy, bar the door! For those of you lucky enough not to know who he is, Glenn Beck is a tear-prone, soddenly über-patriotic, half-educated conspiracy monger (and former cocaine user and radio shock jock) who had a batshit-crazy show on Fox News in the United States, before even Fox News dumped him. After Fox fired him, he dropped off the radar screen, and all sane Americans breathed a sigh of relief -- except for the late-night comedians, who mourned the passing of the most ludicrously sinister and sinisterly ludicrous media figure since Father Coughlin. He now runs his own media empire, spinning out inane tales for the tinfoil-hat brigade.

Host nation, allow me to proclaim: Glenn Beck is a 24-carat, no-holds barred moron. It's hard to think of a German who occupies an analogous space in the cultural landscape, but perhaps Horst Mahler (g) comes closest, even though Horst Mahler is a million times smarter (and more malevolent) than Glenn Beck. Nevertheless, you get the point. If I were to mention to a German friend: 'You know, I was reading an article by Horst Mahler the other day, and he made some really good points!' there would be a spit-take and howls of laughter. That is also what you will get for taking Glenn Beck seriously.

Artificially Chilled Air is Wholesome and Good

It's been a delightfully cool summer here in Germany, but on those rare hot days, I've switched on my air-conditioner and enjoyed a bit of guilt-free refreshment. Yes, guilt-free. Over at Slate, Daniel Engber explains why:

The case against cooling, like certain other pillars of hipster sanctimony, stands on a foundation of half-formed ideas and intuitions. Opponents cite a mishmash of concerns that begin with global warming and extend to worries over personal health, moral laxity, and some ambiguous notion of what it means to live in harmony with the natural world. And running through them all is the strange and puritanical politics of human comfort.

It's true, there is something twisted in the way we warm the planet when we try to cool it. This summer could end up the hottest in 60 years, and all our hiding out indoors will have made the problem worse. Stan Cox, whose 2010 book, Losing Our Cool: Uncomfortable Truths About Our Air-Conditioned World, makes this argument with blistering intensity, points out in the Times that the cooling of buildings and vehicles accounts for the release of 500 million tons of carbon-dioxide equivalent every year. But it's easy to get distracted by the giant numbers. Yes, A/C units have grown in popularity, but they are not more of a threat to the environment than heaters; in fact, they may be the lesser sin. Analyses of home-energy use reveal that we use more energy to heat our homes (41.7 million BTUs per year, on average, at a cost of $631) than to cool them (7.8 million BTUs, at $276). That’s true even though millions of people have moved into the hot and humid metropolises of the Sun Belt since the 1970s. In fact, as Cox himself points out, that southward migration produced a net decline in energy use for climate control, since all the extra demand for electricity—in the frigid shopping centers of Houston, Phoenix, and elsewhere—has been more than offset by a reduced need for oil- and gas-based home heating. As of a few years ago, homeowners in cold states like Minnesota were putting out 20 to 25 percent more carbon dioxide through the use of their heaters than were the A/C-happy folks in Florida. And while it's true that the HFC refrigerants now used in home appliances are themselves a source of global warming, these will soon be phased out by manufacturers. Even now, they amount to just one-fourth of the total greenhouse emissions associated with air conditioning.

"All right," says our member of brrr-geoisie as he sips his icy lemonade. "Heating may contribute as much or more to climate change than cooling, but that's because heating is more important. When it's hot, you just open your window, turn on a fan, or take off your clothes. When it's cold, what can you do?" If you take it as a given that it's fine and dandy to sweat out a summer day in your underwear but absurd to huddle up at home in a fur-lined parka, then you've already decided the question. But what if the reverse were true? Our capacity to endure the heat has an upper limit, and one that isn't very high. Even in a northern city like New York or Chicago (where 739 people died in a weeklong heat wave in 1995), the summer weather can be so extreme that an electric fan loses its benefit. (At some point, it's just blowing hot air around.) After you've stripped naked and dipped your feet in ice water, there aren't many other options. Winter chill, on the other hand, leaves more room for maneuvering: If it's too cold, you can always don another sweater, drape another blanket, or huddle with a friend.