Our fate

From the blog of the Lexington correspondent of the Economist.

THE other striking Supreme Court ruling yesterday concerned sex criminals. The court said the federal government could detain them indefinitely, even after their sentences end, if they are determined to be sexually dangerous.

Much of the debate turned on whether the power to detain such people properly belongs to the federal government, or to the states. Justice Clarence Thomas predictably says that Washington is over-stepping its enumerated powers.

Perhaps so. But I think the most important question is how the system will actually work. The government is claiming the power to imprison people forever, not for crimes they have been convicted of, but for crimes they might commit in the future. That's an extraordinary power. It's similar to the power both the Bush and Obama administrations claim to detain "enemy combatants" indefinitely because, although there is not enough evidence to convict them in a court of law, we know they will re-join al-Qaeda if we let them go.

Neither problem is easy. But with the sex offenders, we could be looking at a much, much larger group of people. The lead petitioner in yesterday's case, Graydon Comstock, was convicted of buying child pornography and sentenced to 37 months in prison. Less than a week before he was due to be released, Alberto Gonzales (then the attorney general) declared him to be sexually dangerous.

That is, the government asserts that he:

(1) has previously "engaged or attempted to engage in sexually violent conduct or child molestation," (2) currently "suffers from a serious mental illness, abnormality, or disorder," and (3) "as a result of" that mental illness, abnormality, or disorder is "sexually dangerous to others," in that "he would have serious difficulty in refraining from sexually violent conduct or child molestation if released."

The thing is, he doesn't have to have been convicted of a sexually violent offence, or of child molestation. The standard of proof for holding Mr Comstock for the rest of his life is "clear and convincing". That is less rigorous than the "beyond a reasonable doubt" standard you'd need to establish to send me to jail for a few months for picking someone's pocket.

Will this kind of preventive detention be applied sparingly? Will there be adequate safeguards to prevent abuse? I have my doubts. There are more than 600,000 people on sex-offender registries in America, probably most of whom are not dangerous. Given the immense political pressure to keep our children safe, I worry that giving someone like Alberto Gonzales the power to hold people forever for crimes they have not yet committed is asking for trouble.

Reactionary

Last night I was watching an old Saturday Night Live (Scarlett Johannson hosts) in which the Weekend Update correspondents were talking about the United States Supreme Court hearing arguments on the gay marriage case (at 28:25 left in the show at the above link). The one host starts discussing a Justice Alito question at the oral arguments, including one question about whether a group of two men and two women should also be able to marry. Coming from a religion that practiced plural marriage and not having the same emotional connections or knee jerk reactions to things that people see as fundamental moral issues (as opposed to just fairness, logical, or logically ethical issues), I was a little surprised by the answer.

"Well, Sam, I’m no legal expert, but they’d probably tell them “no,” because that’s polygamy and that’s illegal and also not at all the same thing. So let’s stick to the case at hand and not try to turn this whole thing into some kind of gay word problem. If the gay marriage train leaves Massachusetts at 3 pm, and the traditional-marriage train leaves Tennessee at 6 pm – it doesn’t matter, because look around you! Everyone’s already on the gay train! (Laughter, whoops, applause)."

The problem with the -- "we don't need to think critically about something if the majority of us already agree argument" -- is that (1) nothing should ever excuse the call to think critically about something, not religion or consensus or popularity or fear or anything else and (2) the herd is a terrible track record for making "right" choices when it abandons critical thought.

In other similar reactionary choices made without apparent critical thought, Apple has banned several American Civil War era military strategy games for their use of the confederate flag. As the producers of one such game put it:

We accept Apple's decision and understand that this is a sensitive issue for the American Nation. We wanted our game to be the most accurate, historical, playable reference of the Battle of Gettysburg. All historical commanders, unit composition and weaponry, key geographical locations to the smallest streams or farms are recreated in our game's battlefield.

We receive a lot of letters of gratitude from American teachers who use our game in history curriculum to let kids experience one of the most important battles in American history from the Commander's perspective.

Spielberg’s "Schindler's List" did not try to amend his movie to look more comfortable. The historical "Gettysburg" movie (1993) is still on iTunes. We believe that all historical art forms: books, movies, or games such as ours, help to learn and understand history, depicting events as they were. True stories are more important to us than money.

Therefore we are not going to amend the game's content and Ultimate General: Gettysburg will no longer be available on AppStore. We really hope that Apple’s decision will achieve the desired results. We can’t change history, but we can change the future.

Criminal sentencing for sociopaths

The role that a diagnosis of psychopathy should play in criminal sentencing is an admittedly thorny issue. The legal standard for an insanity plea is that the perpetrator must not be able to distinguish between right and wrong. Sociopaths actually know the difference between right and wrong most of the time, they just don't care (enough to conform their behavior to societal standards). The debate is whether this faulty wiring makes them more culpable, less culpable, or equally culpable to a similarly offending non-sociopath. A prominent researcher who specializes in scanning the brains of sociopaths in prisons, Kent Kiehl, suggests in an interview with NPR that we should cut them some slack:

Brian Dugan . . . is serving two life sentences for rape and murder in Chicago. Last July, Dugan pleaded guilty to raping and murdering 10-year-old Jeanine Nicarico in 1983, and he was put on trial to determine whether he should be executed. Kiehl was hired by the defense to do a psychiatric evaluation.

In a videotaped interview with Kiehl, Dugan describes how he only meant to rob the Nicaricos' home. But then he saw the little girl inside.

"She came to the door and ... I clicked," Dugan says in a flat, emotionless voice. "I turned into Mr. Hyde from Dr. Jekyll."
***
"And I have empathy, too — but it's like it just stops," he says. "I mean, I start to feel, but something just blocks it. I don't know what it is."

Kiehl says he's heard all this before: All psychopaths claim they feel terrible about their crimes for the benefit of the parole board.

"But then you ask them, 'What do you mean, you feel really bad?' And Brian will look at you and go, 'What do you mean, what does it mean?' They look at you like, 'Can you give me some help? A hint? Can I call a friend?' They have no way of really getting at that at all," Kiehl says.

Kiehl says the reason people like Dugan cannot access their emotions is that their physical brains are different. And he believes he has the brain scans to prove it.
***
Psychopaths' brains behave differently from that of a nonpsychopathic person. When a normal person sees a morally objectionable photo, his limbic system lights up. This is what Kiehl calls the "emotional circuit," involving the orbital cortex above the eyes and the amygdala deep in the brain. But Kiehl says when psychopaths like Dugan see the KKK picture, their emotional circuit does not engage in the same way.
***
Kiehl says the emotional circuit may be what stops a person from breaking into that house or killing that girl. But in psychopaths like Dugan, the brakes don't work. Kiehl says psychopaths are a little like people with very low IQs who are not fully responsible for their actions. The courts treat people with low IQs differently. For example, they can't get the death penalty.

"What if I told you that a psychopath has an emotional IQ that's like a 5-year-old?" Kiehl asks. "Well, if that was the case, we'd make the same argument for individuals with low emotional IQ — that maybe they're not as deserving of punishment, not as deserving of culpability, etc."
***
This argument troubles Steven Erickson, a forensic psychologist and legal scholar at Widener University School of Law. He notes that alcoholics have brain abnormalities. Do we give them a pass if they kill someone while driving drunk?
***
At trial, Jonathan Brodie, a psychiatrist at NYU Medical School who was the prosecution's expert witness, went further. Even if Dugan's brain is abnormal, he testified, the brain does not dictate behavior.

"There may be many, many people who also have psychopathic tendencies and have similar scans, who don't do antisocial behavior, who don't rape and kill," Brodie says.

The jury seemed to zero in on the science, asking to reread all the testimony about the neuroscience during 10 hours of deliberation. But in the end, they sentenced Dugan to death. Dugan is appealing the sentence.

With this and the U.S. Supreme Court case allowing governments to indefinitely detain pedophiles, the halcyon days of believing in rehabilitation for criminals seem to be over. If there was one piece of advice I could give this upcoming generation of sociopaths, it would be to master the ability to authentically mimic the empath's exaggerated remorse and self-hate, a performance that is quickly becoming necessary to keep the lynch mobs at bay.

Covid-19 and Reactionary thinking

I've been tweeting a lot more. Probably because I think the world has gone a little sideways, but mostly not because of the virus. I know in times of uncertainty people have a tendency to be more fearful (I have noticed people struggle with uncertainty). Others will try to profit and superimpose their previously held viewpoints on the situation in a way that is more opportunistic and transparent than I am used to seeing. I thought this was particularly true of this NY Times piece about how as early as 2006, the United States federal government found that it was 700,000 ventilators short in the event of a pandemic. Rather than just buy more ventilators, it tried to contract with medical device companies to produce some very cheaply. Companies submitted buds, but it wasn't until 2010 (a few months after the H1N1 outbreak, so already too late for the next pandemic) that a contract was signed with a company. So it took  4 years of the government dicking around from realizing it needed 700,000 ventilators to signing a contract to procure those ventilators. Remember, design and production are still years away. 

The lowest bid was for 15% the going rate of ventilators by a very small, unproven company. Why 15%? Apparently the government really didn't feel like this emergency surplus warranted paying retail rates. To me, this is a little like (as I tweeted) leaving my car on the side of the road gasless and waiting until gas prices drop below $3 before I gas it up again. Like knowing that you don't have fire extinguishers for your 50 story building, but waiting until they go on sale for 85% off until you buy any. This alone is not the craziest part of the story to me, in terms of shocking government decisions.

$6M government dollars later, the contracted for medical device company got stalled at FDA approval in 2012 (apparently because it didn't work on infants), but the NY Times article tried to make it seem like the failure was because the company was intentionally purchased by a bigger company to stifle innovation (no sources were named to support this proposition). The contract was finally cancelled in 2014.

But now 8 years after it realized it was short 700,000 ventilators and not being able to get a single one (at least according to the NY Times), instead of just buying ventilators on the open market the federal government again chooses to contract with a medical device producer, Philips. I can't really tell from the gaps in the NY Times timeline, but I think that contract happened around 2014. Philips has also failed to produce any usable ventilator in the past 6 years. Why? The FDA: "It wasn’t until last July that the F.D.A. signed off on the new Philips ventilator, the Trilogy Evo. The government ordered 10,000 units in December, setting a delivery date in mid-2020."

The NY Times take on this, with zero facts to support their argument:

The stalled efforts to create a new class of cheap, easy-to-use ventilators highlight the perils of outsourcing projects with critical public-health implications to private companies; their focus on maximizing profits is not always consistent with the government’s goal of preparing for a future crisis.

Whoa kay! Sounds like a defamation lawsuit to me, especially since Medtronics (the parent company of the original contracting party) is not in any way a public figure under the Supreme Court standard from NY Times v. Sullivan and its progeny.

People have a lot more spicy takes nowadays. The arguments I see most from though-leaders are that these circumstances call for extreme measures, and don't worry we can just trust them that what they're saying is necessary and if we don't comply we lack empathy and are team virus and should be fined or imprisoned. At least, that's according to my local subreddit that is saying that surfers who want to still surf during this pandemic are "entitled fucking children" lacking in "empathy".

I've seen other people savagely (gleefully, I think) tear apart Richard Epstein after this New Yorker interview. Not his ideas, mind you, just him, or perhaps in fairness laser focusing on some ideas they disagree with and ignoring his other points.

I guess that's the most common thing I have seen that scares me, much more than the virus -- that people are no longer willing to attack other people's ideas, they seem to be only attacking people. And the people they attack are people who do not share the same "feelings" they do about what is happening.

Because the truth is even the data we have is extremely all over the place (even when you exclude the the Chinese data and try to account for differences in culture, etc.). If you hear anyone say that they know what is happening, you can know for a fact that there is no definite evidence to prove practically anything. We are in the extreme position of flying blind on almost every level.

So why attack each other personally and not the ideas? And here's what I mean using Epstein as an example. I think the main issue that people seemed to take with Epstein is that he said that viruses evolve, and tend to (1) evolve in response to their hosts responses and they (2) evolve to weaker strains, which I don't know anything about but a quick google turned up innumerable sources that support number 1, including this peer reviewed article from two years ago in the journal of Molecular Biology and Evolution. And again without spending too much time on this issue, I found in support of number two this and this. But read the interview, it's crazy how much of a set-up hit piece it is and how cherry-picked their own experts are to contradict Epstein. They knew ahead how they wanted to discredit Epstein, not just his ideas but to discredit him as a person. Why? Because Epstein made the mistake of asking what is the basis for all of this non-democratic action from the executive branches in this country:

Well, I’m saying in effect, by this particular point—this is not the medical side—is after you start declaring emergencies you have time for reflection and adaptation and modification, which you don’t have in a fire case. So the political point is one which essentially says, when you see governors of three major states putting out statements that their experts have said this, that, and the other thing is a result, and you don’t see the studies and you can’t question the assumption, I regard that as a serious breakdown in the political process. So my view on that particular point is I’d like to know which of these studies they’re relying on. If it’s the New York Times studies, then I thought that that study was mistaken for the reasons that I was trying to give you a moment ago, which is that as the virus becomes more apparent, adaptive responses long before government gets involved become clear.

The craziest thing is he doesn't even criticize them for acting with urgency, he just says that now that we have some down time and this is the new normal, maybe they could do us the favor of explaining what models and assumptions they're basing their decisions on.

I want this too. I'm tired of being subject to mob mentality throughout with people who appear to be (at least to me) fear driven and not thinking as well as I am used to seeing from them, but instead being reactionary and making knee-jerk decisions with lasting consequences on the spur of the moment with seemingly little before-thought. But even some of that, that's ok that's predictable, that's fine. Pandemics, I get it. But what about after thought, i.e. thought after we've jumped to decisions and conclusions about what we think is going on or should be going on? What about allowing new ideas in? What about challenging what we think we know? What about attacking ideas instead of people? What about using data instead of feelings? Can we at least agree that those precepts don't go out the window in an emergency?

Hopefully another we can get back some humility to question our own thinking and that of our leaders, lest we turn out like Hungary.

When we choose how to react in a crisis, let’s strive for consistency. The WHO estimates that 4.6M people die each year from causes directly attributable to air pollution. Worldwide more deaths per year are linked to air pollution than to automobile accidents. What do we do? https://t.co/BBSSy75v7U

— M.E. (@sociopathworld) March 18, 2020