Quantum Meruit

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Month: October, 2012

Prop-a-Day: Who Likes Sex Trafficking?

California allows citizens to legislate by way of an initiative system that bypasses the General Assembly to pass laws. This initiative system allows a simple majority of voters to do really dumb things. Former California Supreme Court Chief Justice Ronald George has said that it is this initiative system that makes California’s government “dysfunctional.” Hopefully these articles will give Californians more information than can be found in apocalyptic television ads.

Who could possibly be against heightened penalties for sex trafficking? Local alt-weekly San Francisco Bay Guardian, for one. But it’s not that SFBG likes forced prostitution; they’re concerned that the law is overbroad. It isn’t, but one provision makes me queasy.

Proposition 35 increases the criminal penalties for forced sex trafficking. It also adds a provision to the Evidence Code prohibiting the use of a victim’s history of being a human trafficking victim to attack the victim’s credibility. There’s already a similar provision in the Evidence Code that prohibits using a victim’s past sexual history in a rape case, but that’s applicable only to rape cases. The proposition would also require a person convicted of human trafficking to register as a sex offender.

SFBG is concerned that potentially anyone could be hauled in for sex trafficking. For example:

The act defines that phrase as “substantial and sustained restriction of another’s liberty accomplished through force, fear, fraud, deceit, coercion, violence, duress, menace, or threat of unlawful injury to the victim or to another person.”

All of the words on that list, of course, have their own legal definitions. Coercion, for example, is defined in part as “the provision and facilitation of any controlled substance to a person with the intent to impair said person’s judgment.”

So if a prostitute shares a joint with fellow worker, she could be guilty of providing a controlled substance, meaning she could be guilty of coercion, meaning she could be guilty of depriving personal liberty. That means triggering the harsh penalties for trafficking. And even if the person isn’t likely to be convicted, the possibility of a draconian sentence could force her to accept a plea bargain.

SFBG ignores, however, the words before “coercion”: “with the intent to effect or maintain a violation of” several Penal Code provisions. Sex trafficking is a specific intent crime, which means that just giving someone a joint isn’t enough to qualify. A person must have given a sex worker a joint with the intent to maintain a violation of” whatever the offense is. SFBG‘s own “parade of horribles” is just as lengthy as the parade that it assigns to supporters of Prop. 35.

Here’s the problem with Prop. 35: wholly unrelated to sex trafficking, Prop. 35 requires that all registered sex offenders who “change[] [their] account[s] with an Internet service provider or add[] or change[] an Internet identifier [. . .] shall send written notice of the addition or change to the law enforcement agency or agencies with which [they are] currently registered within 24 hours.” That’s a little much, don’t you think? Here’s what these words mean:

(a) “Internet service provider” means a business, organization, or other entity providing a computer and communications facility directly to consumers through which a person may obtain access to the Internet. An Internet service provider does not include a business, organization, or other entity that provides only telecommunications services, cable services, or video services, or any system operated or services offered by a library or educational institution.

(b) “Internet identifier” means an electronic mail address, user name, screen name, or similar identifier used for the purpose of Internet forum discussions, Internet chat room discussions, instant messaging, social networking, or similar Internet communication.

Sex offenders already have plenty of restrictions. When you’re convicted of a litany of sex-related offenses (though, curiously, notPenal Code § 261.5, unlawful sexual intercourse with a person under 18), the State makes you register as a sex offender for the rest of your life while residing in California. Additionally, if you reside on any of the Cal State, University of California, or community college campuses, you have to notify the police there within 5 days of arriving. When you move, you have to register with the police in your new city. If you have multiple residences, you have to register in each jurisdiction where the residences are located. Transients must register every 30 days. Sex offenders have to update their file every year within 5 days of their birthday or risk criminal sanctions.

Certainly some sex offenders should be required to register for life. Others, not so much. Especially in light of the disparate treatment given to violators of § 261.5 and everyone else; in a seminal case from the California Supreme Court called People v. Hofsheier, the Court found that requiring a person to register as a sex offender for “voluntary oral copulation,” while not requiring the same for arguably worse conduct, violates the Equal Protection Clause of the U.S. Constitution. Some people are predators. Other people are just dumb. With the bizarre exception of § 261.5, California’s sex offender registration system takes a cudgel to the problem.

Prop. 35, though well-meaning, takes that even further. Now, a sex offender can be put back into jail for failing to update a screenname within 24 hours. You can vote no on Prop. 35. Human trafficking laws are sufficient as they are.


Prop-a-Day: Label Those GMOs

California allows citizens to legislate by way of an initiative system that bypasses the General Assembly to pass laws. This initiative system allows a simple majority of voters to do really dumb things. Former California Supreme Court Chief Justice Ronald George has said that it is this initiative system that makes California’s government “dysfunctional.” Hopefully these articles will give Californians more information than can be found in apocalyptic television ads.

If you believe the TV commercials paid for by Monsanto, et al., Proposition 37 is a job-killer. It will cost consumers more in the grocery store and it will cost businesses more, which means they’ll have to lay off people.

Is there anything that big businesses hate that isn’t also a job-killer these days?

Prop. 37 requires food made from genetically-engineered plants or animals to be labeled in a certain way. While the subject of this article is not the propriety of genetically-modified foods, I will say that I think GMOs are harmless and concerns about cancer and other Scary Things We Don’t Know about GMOs are the product of shoddy or misunderstood science, an anti-corporate political agenda (which, regardless of what I think about corporations, is a separate argument from the safety of GMOs), or a conflation between GMO food safety and other GMO-related issues, like patentability of seeds or the danger of monoculture (again, separate arguments).

Nevertheless, someone people might want to know if their food was made using a GMO technique in the same way that people might want to know that they’re eating food made without pesticides. Prop. 37 defines the GMO techniques that fall within its ambit, excluding “traditional” genetic modification — like splicing cuttings of a plant together or selective breeding — that we’ve been using for thousands of years. (Yes, the history of human agriculture is the history of humans genetically engineering the plants and animals they want. They just haven’t had much precision about it until the last 50 years. Again, having more precision doesn’t worry me, but there’s nothing wrong with labeling it.)

Monsanto claims that Prop. 37 is “full of loopholes” for “special interests.” I generally say the same things about the legislation I disagree with. Go to the No on Prop. 37 website and you’ll find the typical FUD language: Prop. 37 hurts “families” and is a boon for “trial lawyers” (which is a Chamber of Commerce shibboleth). But what about these exemptions?

Prop. 37 does contain some exceptions. If an animal has not itself been genetically engineered, but was fed genetically-engineered food, that animal product doesn’t have to be labeled. If a product hasn’t been knowingly genetically engineered, the rule doesn’t apply. Alcoholic beverages don’t count, and until 2019, neither do products containing between one and ten genetically engineered ingredients, so long as each one those ingredients don’t make up more than 0.5% of the weight of the product. Food served in restaurants isn’t within the scope of this statute, either.

Monsanto’s Scary Flyer claims that cow’s milk comes in as as an animal product that is not itself genetically engineered. That’s true, but Monsanto also claims that soy milk would have to be labeled as genetically engineered “even if [it has] no detectable level of of a GE ingredient.” That’s not actually true; the statute exempts by weight, not by detectability. Conceivably, an ingredient that makes up less than 0.5% of the weight of a product could still be detectable, but it’s probably unlikely that an ingredient that makes up more than 0.5% of the weight would be undetectable.

The other exceptions are puzzling: alcohol? Restaurants? But for a restaurant to ensure that everything it serves is GMO-free (or labeled) could be a burden on a restaurant owner, both in terms of time and exposure to liability for not following the statute. Alcohol gets a lot of nutritional exceptions; for example, beer doesn’t have to list its ingredients. But these exceptions aren’t enough to throw out the statute altogether (especially since, by adding restaurants and alcohol, the statute might never get passed. Monsanto is arguing that special interests resulted in these exemptions. But if the Legislature tried to close these exemptions, these same special interests would prevent the legislation from being passed at all. So Monsanto is claiming that there’s no set of circumstances under which this law should ever be passed!

And the medical studies? Sure, medical studies don’t show that eating GMOs is unsafe, but neither do studies about organic food claim that it’s more nutritious. In as much as this labeling scheme is about perceptions of safety, it’s also about politics: people who vote with their dinner, which is to say a lot of people in San Francisco and Berkeley, might not buy genetically modified products.

Prop. 37? You can vote yes on that one.

Canard Watch, Local Politics Edition

Every now and then, I scan through my spam folder to make sure that legitimate emails aren’t getting sucked in there and also to read some of the interesting scams that get sent to spam (e.g., someone has viewed your LinkedIn profile, here’s a loan offer, would you be interested in a construction contract to help rebuild in Libya).

But I got a campaign ad from Ignacio De La Fuente. De La Fuente really is giving up his District 5 City Council seat in order to run for the City Council’s At-Large seat. To do so, he must oust the infinitely more progressive Rebecca Kaplan, who — along with de la Fuente and Jean Quan — was on the ballot for mayor in 2008. (After the election, De La Fuente had a bad case of sour grapes. Because he won only a plurality of the votes for mayor, Oakland’s brand-new instant runoff voting kicked in, and Jean Quan ended up winning the race, thanks in large part to being the progressive #2 choice after Kaplan.)

So how is De La Fuente going to oust Kaplan? By lying. Here’s what the email ad said:

Oakland Police Officers Association Stands with Me to Demand Increased Public Safety

I am proud to announce the exclusive endorsement of the hard working men and women of the Oakland Police Officers Association (OPOA.)  I am honored to have the support of those who put their lives on the line daily to provide public safety to the residents and businesses of our City.

In a City which consistently tops the charts as one of the most violent in America, it is critical that those of us in elected office do everything we can to support our police officers.

The endorsement of the OPOA is of particular significance because it shows that while we may not always agree; our officers want a leader who is willing to make decisions, no matter how difficult.  Barry Donelan, President of the OPOA stated, “We may not always agree but the OPOA knows, that Ignacio is the only person in this race that is willing to roll up his sleeves and do something about the crime problem in Oakland – he is known as a man of action not rhetoric.”

This City needs leaders that don’t duck votes or abstain from voting on difficult issues – I’m proud to say that in my 20 years as a Councilmember, I’ve never backed down from my responsibility of making decisions, I’ve NEVER abstained on a vote – and that’s what real leaders do.

Having said that, I’ve never overstepped my boundaries and interfered with officers’ ability to do their job. I’ve been on the Council almost 20 years and I’ve never stepped in front of a police officer to keep him or her from doing their job – it took Kaplan only two years on the Council to put that on her list of accomplishments.  For the past six years our City has not only lacked strong leadership – it has done more to tie the hands of our police officers and interfere with their ability to do their job than it has to work on real proposals to help reduce crime.

For the past four years I have watched Rebecca Kaplan talk about all the problems in Oakland, but she has done nothing to make things better.  She has not brought forward one single proposal to deal with the public safety crisis that threatens every business and every resident in the City of Oakland – not one.  I’ve heard her say a million times that she is working to get the guns out of Oakland but she has not done a single concrete thing.

Oakland doesn’t need more orators, Oakland needs leaders that support our police and actually put in the time to support them via legislative proposals to give them additional tools to do their job.

I look forward to continuing my work to demand increased public safety in our City.  Enough with elected officials who talk more than they act.  I will continue bringing forward proposals to deal with this crime epidemic – gang injunctions, youth protection curfews, anti-loitering legislation – these are all things which I’ve proposed and which Kaplan has opposed.  Oakland has had 86 homicides this year; we don’t have the luxury of not trying new solutions.

Ignacio De La Fuente has an image problem with the Oakland Police Department. Though he claims he’s “never overstepped [his] boundaries and interfered with officers’ ability to do their job,” it was de la Fuente — not Kaplan — who voted to lay off 10% of the Oakland Police Department in 2010. Kaplan voted against the layoffs. After the layoffs, the crime rate in Oakland increased. And it’s De La Fuente’s District 5 that contributes 35% of Oakland’s violent crime. Moreover, Oakland Police Chief Howard Jordan endorses Kaplan’s community policing initiative. That doesn’t bode well for Ignacio.

So, naturally, he’d resort to representing that he’s totally on the OPD’s side. Even though he’s not.

Correlation Implies Causation

Daniel Engber at Slate is right: correlation does imply causation. But it doesn’t prove it. Or, as Engber says, “[I]t sure sure as hell provides a hint.”

It all depends on what you think “imply” means.