Freedom Feed Blog

WHY IS HEALTHCARE SO EXPENSIVE? - PART 3: PRESCRIPTION DRUGS

9/2/2017

By Jai Ranchod


​The price of prescription drugs in the United States has long been a flashpoint of our nation’s healthcare debate. Last year 45 million Americans said they did not fill a prescription due to high costs. So why are drug prices so high? The short answer is that the pharmaceutical industry trade group PhRMA has spent almost $2 billion since 2003 to make sure pharmaceutical companies have a government protected monopoly on the market.


The government market barrier has three layers. First is the ban on importing prescription medications. Proponents of this ban say that it protects the health and safety of American consumers, despite the lack of evidence that imported drugs would be harmful. This ban should be overturned, and it should be legal to import prescription medications from certain countries with a comparable equivalent of FDA approval. The benefits of free trade are well known to any student of economics, and this is no exception. In the case of drug imports from Canada alone, Americans could save between 45-75% on common prescriptions for ailments such as Leukemia, Depression, and High Cholesterol.


The second layer provides generous patent protections for brand name drugs to keep generics off the market. Drug prices fall to 55% of their initial brand name cost with only two generic drugs per brand name on the market.


Approval for generic drugs often gets stalled by a citizen petition to the F.D.A. This is a process by which anyone can submit a petition questioning the bioequivalence of a generic drug to its brand name counterpart. By its own rules, the F.D.A. must consider and respond to all petitions which can take months or years. A 2016 study showed that 92% of such petitions were filed on behalf of major pharmaceutical companies. To its credit, the Federal Trade Commission has made moves to curb this practice based on anti-trust law. However, such harmful cronyism requires a fundamental shift in the approval process. Bioequivalence should be determined by independent laboratories with the generic manufacturer liable for any damages that result from inaccurate or misleading bioequivalence determinations. This will incentivize manufacturers to seek out the most trustworthy labs, and will incentivize labs to act in the highest standards of integrity and scientific acumen.


Another way to expedite the arrival of generic drugs to the market it to close a patent law loophole. Currently, pharmaceutical companies can apply for a patent extension based on changes to non-therapeutic drug components. That means they can tinker with the plastic coating on a pill and claim the right to a patent extension. This loophole needs to be closed. Patents should only relate to the clinically relevant components of a medication.


The third barrier imposes roadblocks on the market penetration of generic drugs when they finally do hit the market.


Congress has dictated that Medicaid must reimburse for the cost of all F.D.A. approved drugs, even if a more affordable equivalent is on the market. This eliminates any incentive on the part of the Physician and the Patient to consider cost-effective treatment options. As is done in National Health Systems throughout the world, Medicaid should be allowed to cap reimbursement of prescriptions drugs that have a generic counterpart on the market.


Although I’ve focused on Federal intervention thus far, 26 state governments have cost the healthcare industry tens of millions of dollars with a law that physicians must obtain patient consent before switching a prescription from a brand name to a generic drug. This mandate is a clear example of government intervention driving up costs and should be repealed by the states in question.

Allowing the import of prescription drugs and market access for generics will increase competition on the drug market significantly. Prices will drop. Competition for market share will prompt more intensive research and development. Eliminating protectionism in favor of movement towards a free market will benefit consumers and should be a part of any healthcare reform movement.

WHY IS HEALTHCARE SO EXPENSIVE? — PART 2: MALPRACTICE REFORM

7/16/2017

By Jai Ranchod

Perhaps the most widely understood failure of the 2010 Patient Protection and Affordable Care Act was the complete and total omission of any language addressing medical malpractice reform. While this omission is hardly surprising given the millions of dollars plaintiffs’ firms donated to democratic candidates, reforming the laws governing medical malpractice suits is badly needed because the volume of malpractice suits, whether baseless or meritorious, forces physicians to engage in a practice known as defensive medicine.


To provide pre-emptive legal cover for themselves, physicians must order unnecessary lab tests, screenings, and medications. Forbes estimates that this practice costs the healthcare industry at least $45 billion annually. For physicians, the primary concern is not whether or not they win a malpractice suit, it’s whether or not a suit is brought at all. According to a 2015 study by the GAO, the primary factor increasing the rise in malpractice insurance costs is a rapid rise in claims losses, which includes both settlements and payouts from trial losses. When a suit is filed, the easiest route for all parties is a settlement, which malicious attorneys know.


Dr. Brenda Sirovich, Professor at Dartmouth University’s Geisel School of Medicine and leader of a 2011 study into medical malpractice in the Archives of Internal Medicine, says “...defensive medicine is practiced with the primary aim of minimizing litigation.” She goes on to say the idea that malpractice suits play only a small role in healthcare costs is flawed: “Malpractice is a very feared thing, a completely destructive experience.” She supports this with the finding that 42% of Physicians in family and general internal medicine said patients were receiving too much medical care.


The spectre of malpractice litigation clearly alters the way Physicians practice medicine. When the 2014 Survey of America’s Physicians asked over 20,000 doctors to identify reasons for increased healthcare costs, a full 60% cited defensive medicine practice, making it the most frequently cited response. A 2013 study in Health Affairs found that Doctors with high levels of malpractice concern were more likely to engage in defensive medicine practices for certain patients. In 2014, another study by the Cleveland Clinic in JAMA Internal Medicine found that 42% of orders surveyed were at least partially defensive.


In 2003 Texas attempted to solve this problem by capping the amount of non-economic damages of a malpractice claim at $250,000. While this did dramatically decrease the amount of money paid out, it did little to reduce healthcare costs. Recall that the problem is the existence of a lawsuit, not the resulting damages.


A better approach to minimizing unnecessary malpractice litigation is called “English law” is also commonly referred to as “loser pays law”. As the name suggests, the loser of a civil litigation suit must compensate the winner for their expenses. The Manhattan Institute shows such a system would decrease the number of baseless civil litigation claims. This approach is undeniably effective, but not without flaw. Malicious attorneys could convince plaintiffs that they have a case and then simply collect attorneys’ fees. Patients could lose a suit and then prove unable to pay.


The best complement to English law is a system in which Judges can label suits as frivolous in some official capacity. After a particular attorney has a requisite number of frivolous cases labeled as such in a given year, he or she is barred from bringing civil suits forward for a short period of time.

This dual burden of decision and consequence will stem the tide of threatening litigation that is so often used as a tactic of coercion in this nation. Healthcare costs are rising, doctors are distracted from care outcomes, and the suffering of those afflicted by true instances of malpractice is marginalized. The shameless lack of discipline consistently displayed by malpractice attorneys represents a clear and present danger to the general public and a blatant disrespect for the judiciary. Enlarging the scope of judicial discretion especially will allow the merits of each case to be considered without the risk of yet another bloated bureaucracy or quixotic “one size fits all” solution. This system will reduce the incentive for defensive medicine and save the American healthcare system billions of dollars a year.

INCREMENTALISM VERSUS RADICALISM: THE TALE OF THE LIBERTY WAGON TRAIN

7/5/2017

By Patrick Baird

One of the points of contention between libertarian pragmatists and radicals is whether all elements of a coercive state must be eliminated or whether some degree of mutually beneficial government is always necessary. I think this debate is fine as a rhetorical exercise, but since we are very, very far away from even reducing the growth of government - at all levels - I believe the argument is very close to a waste of time.

If libertarians are going to achieve any meaningful reduction of the state or expansion of freedom, then they can’t afford to divide themselves before they even fight the battle. The pursuit of liberty is not a zero-sum game, it is a linear progression from total state coercion to an ideal anarcho-capitalist state. There is no reason that the two factions (or three or seven, or however many libertarian factions can be identified) can’t work together through the vehicle of the Libertarian Party, to first stop the growth of government, then begin scaling it back.

To help illustrate this principle I’ve come up with the parable of the Liberty Wagon Train.

Imagine a wagon train assembling at the take off point in St. Louis, back in the days of the Old West settlers. The wagon train was initially planned by a small community of anarcho-capitalists in Wisconsin appalled by the prospect of having to live under the tyranny of the fledgling state government, led by Governor Jedidiah Walker. To fund their venture, the anarcho-capitalists sold shares in the wagon train to a group of minarchists in a nearby settlement, who joined them on the trip to St. Louis.

Upon arriving in St. Louis, however, they are informed that they will need at least a dozen more wagons if they are to make it to their destination of the wilderness of Idaho. The plains Indian tribes are on the warpath that summer, but will not usually attack a wagon train over a certain size. Fortunately, there are many Irish immigrants in St. Louis waiting for just such an opportunity. Most of them are drunkards and ner-do-wells, but are likely to hold their own in a fight. A few dozen are signed on and the wagon train sets off.

As the group slowly makes its way across the plains, a few of the Irishmen prove too incorrigible to remain and either leave on their own or are forcibly ejected. Some, however, after listening to nightly sermons on the wisdom of the gold standard and the non-aggression principle, marry the daughters of the libertarians and agree to commit themselves to the cause.

Of course, along the way, debates and even fights break out between the anarcho-capitalists and minarchists, but the privations of the journey and the occasional sightings of Indian war parties keep the train together and progressing westward.

Eventually the wagon train leaves the plains behind and rises into the foothills of the Rockies, reaching the outpost of Denver. With the threat of Indian attack behind them, the group agrees to split, with the anarcho-capitalists continuing to Idaho and the minarchists settling on land in northern Colorado. Both groups lived happily ever after.

The lesson here is that, until we reach a condition of dramatically improved liberty and significantly reduced government, there is no reason for libertarians to fight amongst themselves. We should instead work together to advance the fortunes of the Libertarian Party and the cause of liberty in general. And picking up fellow travelers from the Republican and Democrat parties help us reach our goals, why not get them to join in too? If we are lucky, maybe many of them will absorb our sermons and progress to real libertarians.​

The moral of the story is you can’t build your libertarian utopia in Idaho until you get started, keep going, and survive the battles along the way. For that, you may need a few heathens on your side.

WHY IS HEALTHCARE SO EXPENSIVE? — PART 2: MALPRACTICE REFORM

7/16/2017

By Jai Ranchod

Perhaps the most widely understood failure of the 2010 Patient Protection and Affordable Care Act was the complete and total omission of any language addressing medical malpractice reform. While this omission is hardly surprising given the millions of dollars plaintiffs’ firms donated to democratic candidates, reforming the laws governing medical malpractice suits is badly needed because the volume of malpractice suits, whether baseless or meritorious, forces physicians to engage in a practice known as defensive medicine.

To provide pre-emptive legal cover for themselves, physicians must order unnecessary lab tests, screenings, and medications. Forbes estimates that this practice costs the healthcare industry at least $45 billion annually. For physicians, the primary concern is not whether or not they win a malpractice suit, it’s whether or not a suit is brought at all. According to a 2015 study by the GAO, the primary factor increasing the rise in malpractice insurance costs is a rapid rise in claims losses, which includes both settlements and payouts from trial losses. When a suit is filed, the easiest route for all parties is a settlement, which malicious attorneys know.

Dr. Brenda Sirovich, Professor at Dartmouth University’s Geisel School of Medicine and leader of a 2011 study into medical malpractice in the Archives of Internal Medicine, says “...defensive medicine is practiced with the primary aim of minimizing litigation.” She goes on to say the idea that malpractice suits play only a small role in healthcare costs is flawed: “Malpractice is a very feared thing, a completely destructive experience.” She supports this with the finding that 42% of Physicians in family and general internal medicine said patients were receiving too much medical care.

The spectre of malpractice litigation clearly alters the way Physicians practice medicine. When the 2014 Survey of America’s Physicians asked over 20,000 doctors to identify reasons for increased healthcare costs, a full 60% cited defensive medicine practice, making it the most frequently cited response. A 2013 study in Health Affairs found that Doctors with high levels of malpractice concern were more likely to engage in defensive medicine practices for certain patients. In 2014, another study by the Cleveland Clinic in JAMA Internal Medicine found that 42% of orders surveyed were at least partially defensive.

In 2003 Texas attempted to solve this problem by capping the amount of non-economic damages of a malpractice claim at $250,000. While this did dramatically decrease the amount of money paid out, it did little to reduce healthcare costs. Recall that the problem is the existence of a lawsuit, not the resulting damages.

A better approach to minimizing unnecessary malpractice litigation is called “English law” is also commonly referred to as “loser pays law”. As the name suggests, the loser of a civil litigation suit must compensate the winner for their expenses. The Manhattan Institute shows such a system would decrease the number of baseless civil litigation claims. This approach is undeniably effective, but not without flaw. Malicious attorneys could convince plaintiffs that they have a case and then simply collect attorneys’ fees. Patients could lose a suit and then prove unable to pay.

The best complement to English law is a system in which Judges can label suits as frivolous in some official capacity. After a particular attorney has a requisite number of frivolous cases labeled as such in a given year, he or she is barred from bringing civil suits forward for a short period of time.​

This dual burden of decision and consequence will stem the tide of threatening litigation that is so often used as a tactic of coercion in this nation. Healthcare costs are rising, doctors are distracted from care outcomes, and the suffering of those afflicted by true instances of malpractice is marginalized. The shameless lack of discipline consistently displayed by malpractice attorneys represents a clear and present danger to the general public and a blatant disrespect for the judiciary. Enlarging the scope of judicial discretion especially will allow the merits of each case to be considered without the risk of yet another bloated bureaucracy or quixotic “one size fits all” solution. This system will reduce the incentive for defensive medicine and save the American healthcare system billions of dollars a year.

INCREMENTALISM VERSUS RADICALISM: THE TALE OF THE LIBERTY WAGON TRAIN

7/5/2017

By Patrick Baird

One of the points of contention between libertarian pragmatists and radicals is whether all elements of a coercive state must be eliminated or whether some degree of mutually beneficial government is always necessary. I think this debate is fine as a rhetorical exercise, but since we are very, very far away from even reducing the growth of government - at all levels - I believe the argument is very close to a waste of time.

If libertarians are going to achieve any meaningful reduction of the state or expansion of freedom, then they can’t afford to divide themselves before they even fight the battle. The pursuit of liberty is not a zero-sum game, it is a linear progression from total state coercion to an ideal anarcho-capitalist state. There is no reason that the two factions (or three or seven, or however many libertarian factions can be identified) can’t work together through the vehicle of the Libertarian Party, to first stop the growth of government, then begin scaling it back.

To help illustrate this principle I’ve come up with the parable of the Liberty Wagon Train.

Imagine a wagon train assembling at the take off point in St. Louis, back in the days of the Old West settlers. The wagon train was initially planned by a small community of anarcho-capitalists in Wisconsin appalled by the prospect of having to live under the tyranny of the fledgling state government, led by Governor Jedidiah Walker. To fund their venture, the anarcho-capitalists sold shares in the wagon train to a group of minarchists in a nearby settlement, who joined them on the trip to St. Louis.

Upon arriving in St. Louis, however, they are informed that they will need at least a dozen more wagons if they are to make it to their destination of the wilderness of Idaho. The plains Indian tribes are on the warpath that summer, but will not usually attack a wagon train over a certain size. Fortunately, there are many Irish immigrants in St. Louis waiting for just such an opportunity. Most of them are drunkards and ner-do-wells, but are likely to hold their own in a fight. A few dozen are signed on and the wagon train sets off.

As the group slowly makes its way across the plains, a few of the Irishmen prove too incorrigible to remain and either leave on their own or are forcibly ejected. Some, however, after listening to nightly sermons on the wisdom of the gold standard and the non-aggression principle, marry the daughters of the libertarians and agree to commit themselves to the cause.

Of course, along the way, debates and even fights break out between the anarcho-capitalists and minarchists, but the privations of the journey and the occasional sightings of Indian war parties keep the train together and progressing westward.

Eventually the wagon train leaves the plains behind and rises into the foothills of the Rockies, reaching the outpost of Denver. With the threat of Indian attack behind them, the group agrees to split, with the anarcho-capitalists continuing to Idaho and the minarchists settling on land in northern Colorado. Both groups lived happily ever after.

The lesson here is that, until we reach a condition of dramatically improved liberty and significantly reduced government, there is no reason for libertarians to fight amongst themselves. We should instead work together to advance the fortunes of the Libertarian Party and the cause of liberty in general. And picking up fellow travelers from the Republican and Democrat parties help us reach our goals, why not get them to join in too? If we are lucky, maybe many of them will absorb our sermons and progress to real libertarians.​

The moral of the story is you can’t build your libertarian utopia in Idaho until you get started, keep going, and survive the battles along the way. For that, you may need a few heathens on your side.

A TRUE OBSTRUCTION OF JUSTICE

6/22/2017

By Jon Augelli

​Recently in Mecosta County, Michigan, a man was convicted of attempting to influence a jury - a misdemeanor which carries a one-year jail sentence - for distributing fliers on jury nullification outside of a court house.

In 2015, Keith Wood, father of 8 and a former pastor, was arrested for handing out roughly 50 fliers discussing juror rights, including the right of jury nullification – where the jury believes someone is guilty of breaking the law but does not convict him because the law is unjust or the punishment excessive. According to Wood’s testimony, he did not ask anyone he distributed literature to if they were potential jurors, nor did he obstruct the flow of pedestrian traffic. Only one trial took place that day, regarding an Amish man, Mr. Yoder, who drained a wetland on his property. Yoder took the plea, so the jury was not seated anyway.​

Nevertheless, in Wood’s trial the court argued that the presence of such literature tainted the jury pool. The judge in Yoder testified against Wood saying that he was very concerned when he saw 12-20 jurors holding the pamphlets when they entered the courtroom and that he thought, “this was going to trash my jury trial, basically.” Wood’s defense attorney, David Kallman, tried to argue distribution of the pamphlets outside the courthouse was protected by the First Amendment, but the Judge ruled he was not permitted. "There were a lot of things we were prohibited from arguing to the jury," Kallman said. The trial took less than an hour before the jury (who, sadly, had not been given any of Wood’s pamphlets) found him guilty. Wood and his attorney intend to appeal the decision.

This is a horrifying precedent. How can a jury be effective if they are not educated of the full extent of their role and power? Jury nullification is critical in any free society because it gives the ultimate power, the power of conviction, back to the people. If they possess this, it no longer matters what the legislature passes. It is the last defense of the people against encroachment of their liberties by an overreaching government. Thomas Jefferson considered trial by jury, “as the only anchor, ever yet imagined by man, by which a government can be held to the principles of its constitution.” All jurors must to be aware of the powers they possess in order to effectively dispense justice.

Our founders understood this well. A juror’s duty goes far beyond merely evaluating facts. John Adams explained that, “It is not only [a juror’s] right but his Duty … to find the Verdict according to his own best Understanding, Judgment and Conscience, though in Direct opposition to the Direction of the Court.” Viewed this way, a jury effectively wields more power than the legislature, because it can strike down or nullify laws it deems unjust, or punishments thought too extreme.

Sadly, the jury rarely serves this important role as a check on governmental power anymore. These days the justice system tries to obfuscate the true power of jurors from them. Judges no longer inform juries of their roles and rights, as they once did, and defense attorneys who inform juries without consulting the judge first can be cited for contempt. This is an abomination. If our country is to remain free, juries must be allowed to function as the founders intended. Juries must counter unjust laws like the war on drugs, mandatory minimum sentences, absurd licensing laws, bureaucratic overreach, and other injustices. Legislators and law enforcement do not rule over us, we rule over ourselves. The government is allowed power only by the consent of the governed. They would do well remember this, and we the people, especially as jurors, would do well do remind them from time to time.

A DEFENSE OF AN AMERICAN HERO

6/22/2017

By Peter Augelli

I cannot say whether New Orleans is in the right to remove the Confederate monuments. If they have become symbols of white supremacy as Richard Spencer seemed to think in Virginia, then I cannot fault the City of New Orleans. But let us be sure we are removing them for the right reasons rather than because of misinformation or ignorance. I cannot say much in defense of the other two monuments, but Lee is someone who in life was none of the things his monument has come to represent. So I come to you now just as Dr. Edward C. Smith did two decades ago to defend this honored American icon. Not the monument but the man.

Many people regard Lee as a role model and hero. People like Winston Churchill, Gerald Ford, Jimmy Carter, and JFK. He was a beloved father, husband, and friend; a brilliant general; and a man of devotion to country and neighbor.

It may seem odd to say the general of the confederate army was devoted to his country. But in Antebellum America people did not view the US as a single entity. To them states were their first loyalty not the federal government. Lee makes clear in his letters that his decision, though it did not come easily, was because of his loyalty to loved ones, and the state of Virginia. It was for that reason not slavery, which Lee was against, that he joined the Confederate army.

To the men who served under him, he was an inspiration. It was once said of him, “Everyone and everything - his family, his friends, his horse, and his dog - loves colonel Lee”(A Recollection and Letters of General Robert E. Lee). Even in defeat, he failed with dignity and honor. By both Grant and Porters account he maintained his decorum, and was mostly concerned for the treatment of his men. Even continued after the war, as president of washington university, he was a voice of reconciliation of north and south.

​So let us not dismiss Lee as simply the general of the pro-slave South. Let us evaluate him on his merits, on what he did and why. Was he flawed? Everyman is. But no more (and in many cases much less) than other historical and world leaders we idolize. He has much he can teach us and many traits worth emulating.

​WHY IS HEALTHCARE SO EXPENSIVE? -PART 1

6/18/2017

By Jai Ranchod

Anyone who says they can single-handedly solve the healthcare crisis in America is lying. I won’t pretend I can do it in 250 words. However, there is at least one non-partisan measure that could easily help.

U.S. taxpayers shell out $5 billion annually in agriculture subsidies that overwhelmingly go to large agribusinesses. These subsidies take the form of crop insurance that incentivizes growth of commodity crops, like corn. This leads to an excessive supply of corn, which in turn leads to a surplus of corn syrup. Corn syrup is used as cheap filler to make cheap foods. Not surprisingly the poorest Americans, who have fewer options, consume the cheapest foods. The American Diabetes Association proved the link between lack of wealth and diabetes, and the recent dramatic increase in diabetes (217% from 1990 to 2009 according to the CDC) has had a significant economic impact according to the ADA.

Given the development of agricultural technology over the past half-century, these subsidies are clearly antiquated. They come from an era when farmers were completely at the mercy of the seasons and the U.S. government would pay farmers to NOT grow food in order to control the food market. We now have synthetic seeds, sophisticated irrigation systems, and well orchestrated transportation networks to stabilize the food market. On a practical level there is clearly no longer a need for farm subsidies.

At one point the United States loaned the Soviet Union $700 million so that the Soviet Union could buy 30 million tons of U.S. grain. Unsurprisingly this government interference in the free market sent grain prices spiraling out of control. This is merely one anecdote among many that underlines the need for the removal of the U.S. government from the agriculture industry.

Eliminating farm subsidies would make small farms more competitive and make the food market healthier.

THE END OF CIVIL ASSET FORFEITURE?

5/28/2017

By Jon Augelli

​The Supreme Court ruling in Nelson v. Colorado, on April 19th, could spell the end of Civil Asset Forfeiture in America. The court ruled that the State of Colorado had no right to retain money or assets extracted from defendants once their convictions were reversed. Colorado’s “Compensation of Certain Exonerated Persons Statute” (Exoneration Act) - which required the defendants to prove their innocence to recover their money - violated the presumption of innocence; a key component of due process protected by the 14th Amendment.

The case involved petitioners Nelson and Madden, who were erroneously convicted of a series felonies and misdemeanors at trial in Colorado. The court imposed fines and incarceration on both. Their convictions were later reversed, and their legal innocence restored, upon appeal to the Colorado Supreme Court, which found them both victims of trial error. Nonetheless, Colorado withheld a portion of their fines in accordance with the Exoneration Act. They appealed to the Colorado Court of Appeals which ruled the defendants had a right to refunds, but the Colorado Supreme court disagreed arguing that they were only entitled to a refund if they complied with the Exoneration Act. Finally, the defendants appealed to the Supreme Court of the United States. After reviewing the case, the Supreme Court found that the Exoneration Act violated the 14th Amendment on numerous counts.

For one, the 14th amendment requires that due process shall not be held to a lower standard by the respective states. Constitutionally speaking, if the defendant is declared innocent, the state has no right to restrict their freedom. Colorado argued that they are entitled to a portion of the funds because the defendants were declared guilty at some court. To counter, Justice Ginsberg relied on Burks v. United States stating that if an appellate court overturned the ruling of a trial court, the trial court ruling no longer holds and the party is presumed innocent in all respects and should be refunded in full. In the court’s own words:

“When a criminal conviction is invalidated by a reviewing court and no retrial will occur, is the State obliged to refund fees, court costs, and restitution exacted from the defendant upon, and as a consequence of, the conviction? Our answer is yes.”

Furthermore, requiring proof of innocence to retrieve seized assets violates the presumption of innocence - an essential component of procedural due process. The Institute for Justice , the Pacific Legal Foundation, and the National Association of Criminal Defense Lawyers submitted briefs supporting this argument. Under procedural due process, you are presumed innocent until proven guilty. An integral part of this is the legal concept, Ei incumbit probatio qui dicit, non qui negat - (Latin) “the burden of proof is on the one who declares, not on one who denies”. Colorado's Exoneration Act flipped this on it’s head by requiring the defendants to prove their innocence to recover their assets. The court ruled that this burden of proof shifting blatantly violated the 14th Amendment:

“Absent conviction of a crime, one is presumed innocent. Under the Colorado law before us in these cases, however, the State retains conviction-related assessments unless and until the prevailing defendant institutes a discrete civil proceeding and proves her innocence by clear and convincing evidence. This scheme, we hold, offends the Fourteenth Amendment’s guarantee of due process … Colorado may not presume a person, adjudged guilty of no crime, nonetheless guilty enough for monetary exactions.” ​

The implications of this ruling on Civil Asset Forfeiture are clear. It too violates the presumption of innocence by allowing law enforcement to seize assets without a criminal conviction or even a criminal charge. Thankfully, some States are waking up to this and are taking steps to correct it. Montana, New Mexico, Minnesota, North Carolina, Nebraska, and Vermont now require criminal convictions first. Several of these States also require clear and convincing evidence that the assets were used in conjunction with the crime in addition to the conviction. New Mexico and Nebraska go still further by setting restrictions on equitable sharing - the loophole allowing state law enforcement to seize assets under federal law and keep up to 80% of the proceeds.

Wisconsin has also seen the light. The State Senate Bill SB61 places the burden of proof back on the plaintiff, and requires a criminal conviction prior to seizure. It also requires that the amount seized be proportional to the crime and all revenue generated go directly to a school fund to remove the incentive for abuse.Furthermore, the bill also limits equitable sharing with Federal Agencies for any assets valued less than $50,000. This bill improves the practice, but ultimately we need to abolish it entirely at the Federal level. Civil Asset forfeiture has been a stain on our justice system for too long. It is a direct violation of our country’s founding principles and has no place in the land of the free.


ARE YOU LISTENING? BECAUSE THE CIA IS...

5/20/2017

By Jon Augelli


Many people believe that they don’t need to worry about the recent NSA or CIA surveillance leaks. They think as long as they are not doing anything wrong, they have nothing to fear. The problem is, what is “right” and what is “wrong” depends upon who is listening.


Vault 7 is the most recent batch of classified documents released by Wikileaks. It revealed that the CIA developed numerous hacking tools allowing them to break into computers, smartphones, smart TVs, and modern vehicle control systems. They are able to turn on your device’s camera and microphone without your knowledge of it, and are able to keep them on even after you turn your device off, putting it in a “False Off” mode. The ability to override vehicle control systems was developed with the intention of using it to perform virtually undetectable assassinations. Beyond that, since the CIA does not report these weaknesses to the company, anyone could be exploiting the same code. Worse still, we don’t know if these hacks were leaked to anyone aside from Wikileaks. Using this code, anyone could have the hacking capabilities of the CIA. Who else might have access to this trove of espionage software?


Are you outraged? Are you even paying attention? The erosion of our liberties has reached a tipping point, and most of Americans aren’t even aware of it. Power given ostensibly to increase our national security has only served to increase the security of the entrenched powers and special interests. The endless wars our country has waged have brought violence back from abroad onto our shores, gradually turning our weapons from enemy combatants towards our own citizens. This militarization of the domestic security forces has led to military weapons on our streets, military vehicles (like Bearcats) owned by police departments across America, increased use of SWAT teams, use of drones to police our friends and neighbors, and the turning of our own intelligence agency’s eyes and ears into our homes. And yet, we continue to sit by while the encroachment upon our liberties marches on. We’ve been silent as the TSA has grown ever more invasive while becoming no more effective. Border control checkpoints are now a way of life for many of us. Without realizing it, we have become the enemies the State watches.


The State continues to drift towards authoritarianism. To those worrying that our current president is a fascist who will transform America into a dictatorship: Wake up. Fascism doesn’t happen overnight. It is a gradual accumulation of powers, aided and abetted by a complacent, sometimes celebratory, public. This gradual trend has been happening for decades, and we are all accomplices by virtue of inaction. You say, “It doesn’t matter. I don’t break the law. So what do I care if they can read my emails, or look into my home using my TV?” You need to care. It’s a blatant violation of your right to privacy, a right the government is sworn to protect. Remember the people spying on you are the ones who determine what is “right” and what is “wrong”. Do you feel confident in Trump’s ability to do that? The powers gained under our last president are now in the hands of someone who continues to push the bounds of executive authority. Any power you allow the government to have is a power that could, and likely will, be wielded by your political rival. History shows us political leaders are not always benevolent. Who will gain office next? What will that administration consider right and wrong?


Some people think that the government would never actively abuse power entrusted to it. This is demonstrably untrue. Just a few years ago the IRS gave differential treatment to conservative political organizations, needlessly burdening them with onerous paperwork and questionnaires that were shockingly not required for other organizations. This was a chilling example the government abusing its authority to target innocent groups it disagreed with. The more power you allow them to take, the more power they will have to pick favorites and punish dissenters.


We must reverse this course. We must speak out against this intrusion and subjugation by our government. We’ve forgotten what this country was founded on. We’ve forgotten what it is to be American. Write to your representatives, speak to your friends, and protest these violations of our constitutionally protected rights. Show our legislators that the American spirit is alive within us, and that we demand reform. If they do not give it to us, vote them out of office.

“Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety” -Ben Franklin. We have already taken the bait, but we have not yet swallowed the hook. We are dangerously close to that tipping point. If Vault 7 doesn’t mobilize you to action, it may be too late. If you don’t speak up soon, there may be no one left to speak up for you.

“First, they came for the Socialists, and I did not speak out – Because I was not a Socialist. Then they came for the Trade Unionists, and I did not speak out- Because I was not a Trade Unionist. Then they came for the Jews, and I did not speak out- Because I was not a Jew. Then they came for me- and there was no one left to speak for me.” – Martin Niemoller

THE IMPORTANCE OF POLITICAL ENDURANCE

5/20/2017

By Jai Ranchod ​

Anyone who has ever run competitively knows that the hardest part of the race is directly in the middle. By competitively I mean properly training and racing in oxygen debt, not this rainbow powdered fun run stuff. If that’s your thing, please forgive my attitude.

Take a 5k for example. The first mile is when you’re fresh. You still have the adrenaline that comes with competition. The anticipation that coalesces at the starting line is still firing through your nerves.

The third mile is when you can sense the finish line. You’re world is reduced to the runner in front of you. Some of that adrenaline comes back. You’re inner competitor screams at you to make that one last push to the finish line.

The second mile is where life is hard. You’ve lost all sense of beginning and end. The cheering crowds have dissipated. It’s just you, everyone that’s trying to beat you, and less oxygen than you might like. It's the time where you have to be tough, focused, and never give up on yourself.

It’s remarkable how similar this is to politics in the United States. Far too often, we sprint off the line and loose steam. When the latest scandal or election pops up we erupt in a burst of outrage and then get distracted by the next shiny news story. We let Anderson Cooper, Bill O’Reilly, and Brian Williams tell us how to feel, when to be outraged, and most importantly, what to focus on.

In 2010 then Attorney General Eric Holder lied to the House Judiciary Committee about operation fast and furious, which Holder himself admitted was flawed “in concept and execution”. He was held in contempt by the U.S. House of Representatives in 2010, but remained acting Attorney General until retiring for personal reasons in 2015. The outrage was dead shortly thereafter and Holder’s transgressions were forgotten.

After leaving the Attorney General’s office Holder returned to the law firm that represents several financial institutions that he declined to prosecute as Attorney General.

Donald Trump has mastered the art of “a bed of 1,000 nails”. He makes so many outrageous statements that remembering any one individually is a challenge. He bragged on a radio show about barging into a womens’ changing room. He advocated war crimes on live TV. The outrage was there but got muted by other, more innocuous elements of the campaign. There was no follow up. Identity politics covered over the outrageous nature of violations of liberty and civility on both sides of the campaign.

The anti-war left remained silent when then President Obama assembled a “kill list” of individuals to target for drone strikes that included U.S. citizens. And now President Trump wants to continue to increase our national debt and increase military spending by $54 million. Too many people have become numb to the willingness of both Republicans and Democrats to kill and maim through perpetual warfare, and then neglect the veterans and refugees that we create.

Now here’s the dirty little secret that tears my analogy apart. There is no finish line. I may not like everything former President Reagan did, but he was accurate in saying that freedom is never more than one generation from extinction. If we haven’t gotten there already. This means that endurance of the well informed is critical to a free society. If all it takes for public officials to get away with misconduct is dodging questions for a news cycle then we are functionally giving our government unrestricted power. And remember: the power that your party wields today will be wielded by your opposition tomorrow.

So my advice is this: Run your race at your own tempo. Find what you care about and do something about it. But most importantly, don’t stop. Because while you may no longer care about politics, politics will always care about you.

JUSTICE SHOULD BE ITS OWN REWARD: MISALIGNED INCENTIVES SKEW LADY JUSTICE'S SCALES

5/20/2017

By Jon Augelli - LP Dane Member​

Everyone knows that police departments rely on revenues from fines to balance their budgets. It makes sense on the surface. The money they take from speeders, or other minor finable offenses, should be put to good use by rewarding the police department for their hard work and public service. However, that is precisely the problem: it is a reward. It gives a monetary incentive to police certain crimes at the expense of policing others. This is wrong.

Allowing law enforcement to keep the proceeds from fines means they are driven by economic factors rather than pure justice. As with all economic decision makers they will attempt to maximize their revenues at the least cost. In private business, if you charge too much, people will refuse to buy your product and you will go under, but if you refuse to pay a fine it will only increase and eventually you will either have to pay the fine, plus late fees, or you will go to jail. You can’t not pay. This leads officers to disproportionately enforce crimes easy to target and fine at the expense of crimes that are harder to police, and have low, or even negative, monetary gain. Sitting for an hour catching speeders may lead to several traffic stops with fines over $100 apiece. Contrast that with trying to solve a robbery for an hour which, even if the perpetrator is caught, yields no money for the department. It is more lucrative to catch speeders than to track down thieves. It is easy to guess which one the department prefers to spend resources on. Consider also the ubiquity of red light cameras, even though the evidence shows they do not increase safety. The monetary incentive for tickets overshadows the entire point of the police department, which is to protect public safety.

The same goes even more for the more recent proliferation of Civil Asset Forfeiture. This grotesque violation of our constitutional protection against search and seizure allows law enforcement to seize assets on mere “suspicion” of relation to a criminal or illegal activity, without having to charge the owner with a crime. Once seized, the owner then must prove the assets were not linked to illegal activity. This is a shocking reversal of the American tradition of innocent until proven guilty. In several recent cases, even after the defendant proved their assets were wrongfully seized, they were told that the department liquidated them and they would receive no compensation. Law enforcement departments love this. One officer referred to the practice as, “pennies from heaven” allowing the department to get toys they could not otherwise afford. Another refers to it as, “a gold mine”. At one law enforcement conference, a speaker explained how to seize an entire house if you catch someone selling a few dollars of marijuana out of it in states where marijuana is legal. Clearly, civil asset forfeiture is more about the money than about justice. This practice grossly misaligns the incentives behind what the officers police.

A properly structured system would balance the policing of crimes proportional to their negative effects on society. The current system does not effectively do this. It drains money from non-violent citizens to support inflated and misallocated police departments. The legal system should not incentivize easily monetizable infractions at the expense of policing real crimes. The solution to this issue is simple: Police Departments (or any government agency) should not be allowed keep the money they collect from fines or seizures. This money should be returned to the taxpayers. The easiest way to do this is a tax rebate. When the Police fine someone for a violation what they are doing is making the individual pay the cost (negative externalities) imposed on those around them by their behavior. For example, speeding increase the risk of an accident to those around the driver who are not speeding. Fining the driver should disincentivize him from that behavior in the future. Thus, it is only natural that the money be returned to the people. They are the ones who bear the negative side effects of the behavior.​

Milking the taxpayers to top off department budgets is a perversion of justice. If departments need additional funds they should ask the taxpayers directly via referendum, and of course carefully scrutinize how they use the dollars they do have. At the end of the day, law enforcement should be there to serve us, not the other way around. Our current system would improve immensely if we removed the monetary rewards from policing certain crimes over others and returned the funds the people the law was originally created to protect.