Disgraced financier Bernie Madoff was sentenced to 150 years in prison Monday morning for running a massive Ponzi scheme. Why give a 71-year-old man a 150-year term instead of just life or life without parole? In 2005, Daniel Engber explained that judges hand down impossibly long prison sentences for both practical and symbolic purposes. The original article is reprinted below.

On Friday, the “BTK” serial killer, Dennis Rader, began serving the first of 10 consecutive life sentences for 10 murders he committed around Wichita, Kan. Wouldn’t one life sentence have been enough?

Not necessarily. A single life sentence might have given Rader a shot at parole. Kansas is one of only three states (along with Alaska and New Mexico) that always include the chance for parole no matter a crime’s severity. In most jurisdictions besides Kansas, judges can dole out life sentences with or without the possibility of parole; a few states, as well as the federal system, assign only “natural life” sentences, i.e., life without the possibility of parole.

In most cases, the judge delivers a sentence for each crime of which the defendant has been found guilty. (Rader pleaded guilty to 10 separate murders.) The judge then decides whether the sentences will be served concurrently or consecutively. Under Kansas law, the standard life sentence is “15 to life,” meaning the offender gets his first parole hearing after 15 years. No matter if he faced 10 (or even 100) concurrent sentences, that hearing would still come after 15 years.

No such privilege exists with consecutive sentencing. The judge in Rader’s case put 10 life terms end-to-end in order to ensure that Rader would never get parole. In addition, he used his discretion to make the 10^th life sentence—for the slow strangulation of Dolores Davis—especially severe. Because the crime was committed in “an especially heinous, atrocious or cruel manner,” the minimum duration of that life sentence is 40 years. All told, Rader will have to wait 175 years before he’s eligible for parole—nine life sentences with parole after 15 years, and one with parole after 40 years.

One term of 40-to-life still might have kept Rader behind bars for good—he’s already in his 60s. So, why bother with the other nine? In cases where the accumulation of life sentences has no practical effect—for example, in states where life sentences don’t include the possibility for parole—courts assign multiple life terms for a few reasons. First, in a case with multiple victims, each family might find solace in knowing the criminal received a specific punishment for each crime. Second, the prosecutor might want multiple sentences on the books in case some were overturned on appeal. Third, the court could use back-to-back sentences to emphasize the crime’s severity to the governor or the board of pardons.

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Full article: http://www.slate.com/id/2221830/

The health-care systems Democrats want to emulate don’t allow contingency fees or large jury awards.

In his recent speech to the American Medical Association, President Barack Obama held out the tantalizing possibility of reforming medical malpractice law as part of a comprehensive overhaul of the U.S. health-care system. As usual, he hedged his bets by declining to endorse the only medical malpractice reform with real bite — a national cap on damages for pain and suffering, such as the ones enacted in more than 30 states.

These caps are usually set between $250,000 to $500,000, and they can make a substantial difference. Other reforms, such as rules that limit contingency fees, shorten statutes of limitation, or confine each defendant’s tort exposure to his proportionate share of the harm, have small and uncertain effects.

Medical malpractice, of course, is not just an American issue. And now that the U.S. is considering universal health-care systems similar to those found elsewhere, it’s worth a quick peek at their medical malpractice systems — which usually attract far less controversy, and are far less expensive, than our own.

Litigation in the U.S. has at least four distinctive procedural features that drive up malpractice costs. The first is jury trials, which can veer out of control and in any case introduce significant uncertainty. The second is the contingency-fee system, which allows well-heeled lawyers to self-finance litigation. The third is the rule that makes each side bear its own costs. This induces riskier lawsuits than are undertaken in most other countries, such as Canada, England and most of Europe, where the loser pays the legal costs of the winner. The fourth is extensive pretrial discovery outside the direct supervision of judges, which occurs far more readily here than elsewhere.

Even these features aren’t the whole story. American judges frequently let juries decide whether honest mistakes are negligent. Judges in other nations are less likely to do so. American courts commonly think it proper for juries to infer medical negligence from the mere occurrence of a serious injury. European judges usually will not.

American plaintiffs are sometimes spared the heavy burden of identifying particular acts of negligence, or of showing the precise causal connection between a negligent act and an actual injury. Lastly, damage awards for lost income and medical expenses in the U.S. tend to dwarf awards made elsewhere — in part because governments elsewhere provide this medical care from their nationalized systems. In sum, the medical malpractice system provides incentives for plaintiffs that really do matter. Americans, for example, file claims about 3.5 times more often than Canadians.

The overall picture is still more complex, since there are major variations in medical malpractice rules in different American states, and differences within states, such as between juries in big cities and those in small towns. Doctrinal reform cannot stop these abuses. What is needed is the replacement of juries with specialized commissions like those in France, which help reduce litigation expenses and promote uniformity in case outcomes across regions.

What then does this quick survey teach us about the ability of our system to deter medical injuries and compensate its victims? Not much that’s encouraging.

A study led by David Studdert published in the 2006 New England Journal of Medicine concluded that the administrative expenses of the malpractice system were “exorbitant.” And worse, it found errors in jury verdicts in about a quarter of the litigated cases. Juries denied compensation properly due in 16% of the cases, and awarded it about 10% of the time when it was unwarranted. These error rates don’t include damage awards set at improper levels.

More disturbingly, a careful 1992 study by Donald Dewees and Michael Trebilcock in the Osgoode Hall Law Journal concluded that the frequency of medical malpractice in Canada was about the same as in the U.S. — for about 10% the total cost. In other words, our costly system doesn’t seem to do much to deter malpractice. On medical malpractice at least, Canada does better than we do.

The U.S. cannot ignore serious reform. To be sure, medical malpractice premiums constitute well under 1% of the total U.S. health-care bill. But defensive medicine adds perhaps as much as 10%. High malpractice costs can shut down clinics that serve vulnerable populations, leading to more patient harm than the occasional case of malpractice.

The best reform would be to allow physicians, hospitals and patients to contract out of the liability mess by letting the parties reject state-imposed malpractice rules. They could, for example, choose to arbitrate, to waive jury trials, or to limit damage recovery. Stiff competition and the need to maintain reputation should keep medical providers in line in such a system. Market-based solutions that make the private sector more responsive should in turn undermine the case for moving head-first into a government-run health-care system with vast, unintended inefficiencies of its own.

Mr. Epstein is a professor of law at the University of Chicago, a senior fellow at the Hoover Institution, and a visiting professor at NYU Law School

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Full article and photo: http://online.wsj.com/article/SB124631652544770707.html

The ‘little red schoolhouse’ of legend, whatever its flaws, made more sense than the warehouse-schools of today.

Tacked to my wall is a lithograph of the famous Gilbert Stuart portrait of George Washington. For many years, it graced my mother’s one-room schoolhouse in Lime Rock, N.Y. Antiquarian relic or enduringly relevant image? The same question may be asked of the “little red schoolhouse” itself, whose reality and legend are the subject of “Small Wonder.” Jonathan Zimmerman, a professor at New York University, sets out to tell “how — and why — the little red schoolhouse became an American icon.” Mr. Zimmerman proves a thoughtful and entertaining teacher.

First, the chromatic debunking: One-room schools were often white and seldom red. The teachers were usually young unmarried females, pace the most famous one-room schoolteacher in literature, Ichabod Crane. They swept the floor, stoked the stove, rang the hand-bell and taught their mixed-age students by rote and recitation. The schools could be a “cauldron of chaos,” in Mr. Zimmerman’s alliteration, as tyro teachers were tormented by Tom Sawyers dipping pigtails in inkwells and carving doggerel into desks.

Yet these one-room schools, Mr. Zimmerman notes, were “a central venue for community life in rural America.” They hosted plays and dances and box socials and spelling bees and Christmas pageants.

In 1913, Mr. Zimmerman says, “one-half of the nation’s schoolchildren attended one of its 212,000 single-teacher schools.” By 1960, progressive educationists, growing cities and the centralizing pressures of two world wars and a Cold War had reduced the total to just 1%.

The attempt to abolish one-room schoolhouses, whether by the carrot of state aid or the stick of government fiat, set off one of the great unknown political wars of U.S. history, pitting farm people who “invoked classic themes of liberty and self-rule” against the “mostly urban elites” who “would wage zealous battle against the rural one-room school.” Typically, two Delaware schoolconsolidators informed the hicks that “modern education . . . is less romantic and more businesslike, more formal, more exact, more specialized, done according to tested methods and a standard schedule.” Such grim exactitude sounded like prison to parents used to the comparatively anarchic and localized governance of rural schools.

Progressives worshipped “efficiency,” Mr. Zimmerman observes, a word that to country people “conjured up a bloodless, impersonal system that buried small-town traditions and idiosyncrasies in a maze of regulations and policies.” Big was better than small, asserted the consolidators. Riding the bus to a new school over “good roads” — the highway and automobile industries lobbied for consolidation — was superior to walking (how old-fashioned!) to a nearby school. A system in which parents and neighbors had a say in the education of a community’s children was judged incapable of keeping up with the ever-accelerating improvement of the human species.

The propaganda mills worked overtime. New Deal photographers snapped pictures of decrepit one-room shacks and contrasted these premodern blights with the spotless (if sterile) multistory consolidated schools. City journalists who knew nothing of rural life (except that it was retrograde) fanned out over the countryside, filing stories suggesting that the young ‘uns in Dog Patch were larnin’ that the world was flat and toothbrushing was one of Satan’s snares.

The one-room school was “neither as rundown as critics claimed nor as bucolic as defenders imagined,” Mr. Zimmerman writes. But its champions understood its flaws. They were defending the principles of local autonomy and human-scale democracy. Mr. Zimmerman quotes a “rural mother” who lamented: “Individuality will be lost, the pride taken in ‘our’ school and ‘our’ teacher gone. Haven’t the parents who bear the children anything to say?”

Not in the consolidated schools they didn’t, except in PTA debates over which kind of brownies to sell at the bake sale. “Thousands of rural parents did resist consolidation,” Mr. Zimmerman says; they struggled to save the one-room symbols of “their vanishing local communities.” But true to Joni Mitchell’s lyric, the rest of America didn’t know what it had till it was gone.

By World War II, the little red schoolhouse whose razing had been a New Deal project became a symbol of homefront democracy. In the 1960s, some liberals praised the one-room school of yore as “the precursor to group learning” and “open classrooms” — daily Bible reading not included. At the same time some conservatives extolled its alleged (and exaggerated) hickory-stick discipline.

Decades after consolidation had obliterated one-room schools, researchers discovered their advantages. The child in the small school is not just a statistic on a government chart. She receives “individual attention and recognition.” She works at her own pace. She has, most important, a place. As Mr. Zimmerman remarks, recent alternatives to “the large, alienating modern school,” from charter schools to homeschooling, have sought to foster “the snug, communal aspects of the one-room school.” But the one-room-school model entails community control, which liberals and conservatives alike resist if the “community” sings from the wrong hymnal.

The idealization of the little red schoolhouse, Mr. Zimmerman concludes, reflects a rueful awareness that in modernity Americans “gained the whole world of technological conveniences and lost the soul of their communities.”

Even after Mr. Zimmerman’s unsentimental accounting of its defects, the one-room school shines in comparison with the over-large and remotely controlled warehouses in which too many children are educated today. Reading “Small Wonder,” one wonders if Americans will ever tire of chasing after the gods of Progress and Bigness and rediscover the little things, red schoolhouses among them, that once gave us our soul.

Mr. Kauffman’s most recent books are “Ain’t My America” (Holt) and “Forgotten Founder, Drunken Prophet: The Life of Luther Martin” (ISI).

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Full article: http://online.wsj.com/article/SB124631953965570969.html

Photo: http://yalepress.yale.edu/yupbooks/images/full13/9780300123265.jpg

This month, Edward Reilly, 35, finally let go of the television he had owned since his college days.

Although the Mitsubishi set was technologically outdated, it had sat for years in Mr. Reilly’s home in Portland, Me., because he did not know what else to do with it, given the environmental hazards involved in discarding it.

“It’s pretty well known that if it gets into the landfill, it gets into the groundwater,” he said. “Its chemicals pollute.”

But the day after the nationwide conversion to digital television signals took effect on June 12, Mr. Reilly decided to take advantage of a new wave of laws in Maine and elsewhere that require television and computer manufacturers to recycle their products free of charge. He dropped off his television at an electronic waste collection site near his home and, he said, immediately gained “peace of mind.”

Over the course of that day, 700 other Portland residents did the same.

Since 2004, 18 states and New York City have approved laws that make manufacturers responsible for recycling electronics, and similar statutes were introduced in 13 other states this year. The laws are intended to prevent a torrent of toxic and outdated electronic equipment — television sets, computers, monitors, printers, fax machines — from ending up in landfills where they can leach chemicals into groundwater and potentially pose a danger to public health.

The Environmental Protection Agency estimates 99.1 million televisions sit unused in closets and basements across the country. Consumer response to recycling has been enormous in states where the laws have taken effect. Collection points in Washington State, for example, have been swamped by people like Babs Smith, 55, who recently drove to RE-PC, a designated electronics collection and repurposing center on the southern edge of Seattle.

Ms. Smith’s Subaru Outback was stuffed with three aged computer towers that had languished in her basement after being gutted by her teenage sons, who removed choice bits to build their own souped-up computers. “It’s what geeks do,” she said.

Since January, Washington State residents and small businesses have been allowed to drop off their televisions, computers and computer monitors free of charge to one of 200 collection points around the state. They have responded by dumping more than 15 million pounds of electronic waste, according to state collection data. If disposal continues at this rate, it will amount to more than five pounds for every man, woman and child per year.

Use of the drop-off points was so overwhelming at first that the Washington Materials Management and Financing Authority, which oversees the program, urged consumers to consider holding off until spring.

“We were getting 18 semi loads a day when the program first started,” said Craig Lorch, owner of Total Reclaim, a warehouse on the south edge of Seattle that is among the collection points.

Still, states that pioneered the electronic recycling laws report that consumer participation remains strong over time. Maine, which was one of the first to approve such a law, in 2004, says it collected nearly four pounds of waste per person last year.

“If you make it easy, they will recycle their stuff,” said Barbara Kyle, national coordinator of the Electronics TakeBack Coalition, a nonprofit group based in San Francisco. If products are recycled rather then dumped, parts of the machines are refurbished for new use where possible; if not, they are disassembled, their glass and precious metals are recycled, and the plastics, which have no reuse market, are often shipped overseas to developing countries for disposal.

The laws vary significantly from state to state. But in most, manufacturers are responsible for the collection and recycling system, although some will pay states or counties to handle the pickup. The newest laws tend to require recycling of a broader range of items, including printers and fax machines.

Many laws, including those for New Jersey and Connecticut and New York City (none of which are yet in effect) specifically ban residents from dumping electronics into the regular trash.

Least thrilled with the patchwork of laws are electronics manufacturers. “Our hope is there will be a national law before there is a law in every state,” said Parker Brugge, vice president for environmental affairs and industry sustainability for the Electronic Manufacturers Association, an industry advocacy group.

Mr. Brugge said it was difficult for manufacturers to keep up with dozens of laws and rules, many of which they consider impractical. New York City, for example, is pressing manufacturers to agree to pick up at apartment buildings.

Manufacturers say a reasonable rate for collection and processing of waste is 25 to 30 cents a pound. Still it is more than they say they can recoup from reselling the metals they harvest, particularly for televisions.

Peter M. Fannon, the vice president for technology and government policy at Panasonic’s North American subsidiary, said his company would prefer a national law that would put local governments in charge of collection and the industry in charge of recycling.

“We think it is unreasonable that an individual industry be designated as trash collector,” Mr. Fannon said.

State lawmakers counter that they cannot afford to wait for a national bill. With constant upgrades in technological capability, they say, manufacturers build obsolescence into many of their designs, causing outdated electronics to become the bane of the waste system.

The E.P.A. estimates that 2.6 million tons of electronic waste were dropped into landfills in 2007, the most recent year for which data is available. Once buried, the waste leaches poisons like chlorinated solvents and heavy metals into soil and groundwater.

Recycling programs do not address the problem of electronics that are already leaching poison in landfills. Nor do they prevent the frequent shipment of plastic shells covered with chemical flame retardants overseas to poor and developing nations; once there, they are often incinerated, because they cannot be reused, and spew toxic chemicals into the air.

The Office of the Inspector General at the Justice Department has a continuing investigation into accusations that several federal prisons with electronics recycling contracts had used inmates to do the work without taking adequate safety precautions, exposing them to unhealthy levels of airborne particles.

Ultimately, said Ms. Kyle, coordinator of the Electronics TakeBack Coalition, recycling does not eliminate the root problem: the vast amount of electronics generated in the first place and fated for disposal.

Carole A. Cifrino, the environmental specialist who manages Maine’s e-waste program, said she hoped the strict recycling would eventually prompt manufacturers to rethink their designs.

“Maybe since they have some responsibility for the cleanup,” Ms. Cifrino said, “it will motivate them to think about how you design for the environment and the commodity value at the end of the life.”

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Full article: http://www.nytimes.com/2009/06/30/science/earth/30ewaste.html?hp

Homely Creatures Receiving More Help

Are we ready to start saving ugly species?

When it began compiling lists of threatened and endangered animals and plants more than 35 years ago, the U.S. government gave itself the same mandate as Noah’s Ark: Save everything.

But in practice, the effort has often worked more like a velvet-rope nightclub: Glamour rules.

The furry, the feathered, the famous and the edible have dominated government funding for protected species, to the point that one subpopulation of threatened salmon gets more money than 956 other plants and animals combined.

Now, though, scientists say they’re noticing a little more love for the unlovely.

They say plain-Jane plants, birds with fluorescent goiters and beetles that meet their mates at rat corpses are getting new money and respect — finally valued as homely canaries inside treasured ecosystems.

But it still can be a hard sell. That’s obvious here in California’s Central Valley, where farmers are locked in a bitter fight with a glassy-eyed smelt.

“Over a stupid fish,” said Mendota Mayor Robert Silva.

“A worthless little worm,” Rep. George Radanovich (R-Calif.) called the fish, “that needs to go the way of the dinosaur.”

The government lists 1,318 U.S. species as threatened or endangered, everything from the American alligator to the Florida ziziphus, a spiny shrub. By one measure, the federal government has already done something miraculous for them: It has kept them around. Only nine listed U.S. species have been declared extinct since the act was passed in 1973.

But the idea was not just to arrest species at the edge of disappearing: It was to bring them back. And by that measure, most of the success has gone to glamour species.

Only 15 U.S. species have officially been declared “recovered.” They are three plants, two obscure tropical birds — and 10 animals that would look good on a T-shirt. These include gray wolves, bald eagles, brown pelicans and the Yellowstone subpopulation of grizzly bears.

“There has been a very heavy bias toward ‘charismatic megafauna’ — relatively large, well-known birds and mammals,” a pair of Harvard researchers wrote in the 1990s. “All other classes of fauna, and all flora, have gotten extremely short shrift.”

How short? The classic tale involves the California condor, a vulture so homely that its head looks as if it’s on inside-out. In the 1980s, scientists captured the remaining few dozen condors, deloused them and began breeding them in captivity.

That was a great thing for the condors but a catastrophe for an even uglier species: the California condor louse. “It passed out of existence when they washed off the condors,” said Nathan Yaussy, an ecology graduate student at Kent State University.

Today, the folks at the U.S. Fish and Wildlife Service, which cares for most protected species, say that charismatic animals may have had a leg up in the past — but they no longer care about beauty. Instead, funding is supposed to be parceled out to those most at risk, and species at the center of legal fights.

“The program does not approach charismatic species as a top-tier” priority, said Bryan Arroyo, who heads the endangered species program. “We’re not saying, you know, ‘Here’s wolves . . . or polar bears, or whatever, we’re going to give more money to that.’ ”

But budget data show the beautiful and the edible are still coming out on top. The top 50 best-funded species include salmon, trout, sea turtles, eagles, bears — and just one insect and no plants.

The Chinook salmon in the Snake River in the Northwest, whose needs include fish-friendly improvements at dams, was listed as receiving at least $69 million in help. Other fish in the ecosystem benefit, too, but that’s still more money than the total spent on all insects, clams, snails, arachnids, corals, crustaceans and every species of threatened plant — about 72 percent of the whole list.

Environmentalists say this isn’t the way nature works.

“You can’t disregard any of the pieces of the puzzle if you want to save all the pieces of the puzzle,” said Trent Orr, an Oakland, Calif.-based lawyer with the environmental group Earthjustice. “You can’t kind of cherry-pick and say, ‘Oh, yes, let’s have a world where there’s charismatic mammals . . . but let’s ignore the minnows.’ ”

There are small signs that people are listening.

The American burying beetle, which uses carcasses as nurseries for its young, gets three times the funding that it did in 1998. The orangefoot pimpleback, an endangered freshwater mussel, is getting six times what it did.

The Attwater’s prairie chicken, a Gulf Coast species with a neck sac that looks like a radioactive gobstopper, is being bred in captivity at Texas zoos to keep it from disappearing.

And in Arkansas, a mud-brown mussel called a fatmucket has received new attention — enough funding to track down new populations and sign on property owners to plant trees to filter runoff into streams.

“Mussels and the Arkansas fatmucket are definitely viewed in a different light, and they’ve definitely kind of gained a higher importance,” said Joy DeClerk of the Nature Conservancy, who works with the animal. She said the attention seems to stem from a realization that mussels are a sensitive indicator of a river’s overall health. “I’m cautiously hopeful,” she said.

But there are good reasons not to be. Climate change is expected to put an even greater squeeze on endangered creatures. And scientists say many plants and animals have already been so harmed that they will probably never be “walkaway species,” able to live on their own.

That means permanent human hand-holding, which is expensive. Kirtland’s warbler, a colorful songbird that lives in Michigan forests, requires people to cut down trees to re-create its preferred young forest habitat, and to kill the cowbirds that invade its nests. Total cost: about $990,000 per year, at last count.

“Can we do that for the Furbish lousewort? I’m not sure,” said Mike Scott, a scientist at the U.S. Geological Survey, mentioning a Maine plant. “And can we do it for the two-thirds of the species that are plants or invertebrates? I think that’s a tough sell.”

In California, the charisma-less, inedible Delta smelt is testing the notion that ugly is in.

The smelt, a three-inch-long minnow look-alike, lives only in the San Francisco Bay and the brackish river delta that feeds it. That is terrible luck: This delta is at the intake pipe for California’s vast plumbing system, which sucks water from the north and pipes it to cities in the south and farms in the middle.

The fish’s population has dropped to less than 10 percent of its historic high because of urban pollution, hungry invasive species and pumps that whoosh them through to alien habitats, environmentalists say. They sued to leave more of the water — and the smelt — where they were.

“They are one of the best indicators of the overall ecological quality” of the delta ecosystem, which also hosts migrating salmon, said Christina Swanson, executive director of a California environmental group called the Bay Institute. “Whither smelt, so goes the rest of the system.”

They won. In 2007, a federal judge said the smelt needed greater protection. In December, the Fish and Wildlife Service issued a plan that included a rule to cut back water pumping at certain times.

In this arid town in the Central Valley, farmers say that the restrictions, combined with a drought, have contributed to unemployment that may be as high as 40 percent.

“Because there’s no water, there’s no work,” said Juan Carlos Diaz, who can’t even draw customers to his thrift store. And all because of a fish, he said in Spanish: “Because of it, we are losing everything.”

The battle goes on in the courts and in Washington, where Gov. Arnold Schwarzenegger (R) and California congressmen have sought to change the federal orders.

In the meantime, this month a group of California environmentalists held a day-long event in Oakland to make the point that fish in the delta and other nearby rivers have a value all their own.

They called it . . . SalmonAid.

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Full article: http://www.washingtonpost.com/wp-dyn/content/article/2009/06/28/AR2009062802961.html?hpid=topnews