Wednesday, December 10, 2003


A sampling from the, um, underflowing Spitbull mailbox:

  • Regarding my disgust with the Republicans' spend-o-rrhea and my suggestion that a split Republican-Democratic government might serve as the Pepto-Bismol (and that's enough of that metaphor), one reader proposes another solution: term limits. I agree that term limits could have the salutary effect of lessening the pressure on lawmakers to drop a couple of billion dollars into every outstretched hand. The problem is that term limits, like the flat tax, is currently about as dead as a political issue can be. It will probably be resurrected some day, but certainly not before November, so it's not really practical as an immediate remedy. Plus, I think there is much to said for divided government in general: the more they bicker, the less they get done, and the less they get done, the less they screw up.

  • Regarding the same issue, another correspondent expresses some dissatisfation with the spending spree but asks "why would you rather have both a spending spree AND higher taxes? Are you daft? At least the Republicans got ONE thing right." To which I say cutting taxes at the same time that you greatly increase spending is getting NOTHING right. Call me old-fashioned, but I think spending more than you take in is irresponsible. (So does Andrew Sullivan.) With the Republicans acting like Democrats there is no brake on federal spending at all right now. If the Democrats controlled Congress again maybe the Republicans would revert to what I thought were their principles and reintroduce a voice of fiscal sanity in Washington.

    Besides, if recent history is any guide, the only party committed to spending sprees right now is the Republicans. Clinton, for all his faults, at least gave us a balanced budget. And yeah, the economy helped him out, and yeah, the Republican Congress pushed him in that direction, but who among the Republicans now in power is even talking about balanced budgets or spending restraint? They don't seem to give a shit. They just buy off half the voters with tax cuts and the other half with shameless handouts for no apparent reason other than to simply stay in power.

    The only justification I can think of for the binge is that we're all Keynesians now, and that it's government's job to borrow money (it's gotta come from somewhere, and if you cut taxes you're necessarily financing this binge on the credit card) and pump it into the economy, and that we'll somehow magically grow our way out of a deficit that already exceeds $400 billion.

    I've always been extremely skeptical of the efficacy of fiscal policy as a tool for stimulating the economy, but let's assume for the sake of discussion that it can work in general and is working right now (the recent uptick in many economic indicators being undeniable). How does that justify the way in which this spending binge has been conducted? If the government has to spend money to stimulate the economy (a big if, I reiterate), does it really have to spend it on the likes of peanut subsidies and the Department of Education (which the "principled" Republicans once sought to abolish) and choo-choo trains?

    And even if fiscal policy works, where's the guarantee that spending will be cut in the future? That is my biggest objection to fiscal policy: it encourages government to have the party now (cut taxes, increase spending) and to postpone actually paying for everything until some vague future time, which usually means never. Thus the endless ratcheting up of the size of the federal government.

  • Finally, a knowledgeable reader provides insight into the possibility of a federal kidnapping prosecution in the Dru Sjodin case, which I raised in a post last week:
    You're right that 18 U.S.C. § 1201 can be a capital offense. You are also right that a state border has to be crossed, or it's not federal kidnapping. Offhand, I can't think of any other federal offense that might apply to this case.

    Note that the inquiry wouldn't stop there though. After you have a death-eligible offense, you have to figure out whether there are proportionality and aggravating factors. The statutory proportionality and aggravating factors for Title 18 homicide offenses are listed under 18 U.S.C. §§ 3591(a)(2)(A)-(D) and 3592(c). At least one of the statutory proportionality factors listed under Section 3591(a)(2) plus at least one of the statutory aggravating factors listed under Section 3592(c), must be found to exist before the death penalty may be considered for these offenses. See 18 U.S.C. § 3593(d) and (e)(1).

    The issue in the Sjodin case would be the 3592(c) factors, but I bet it would be no problem. Probably (c)(4) is met, for instance. After they find that poor girl, there might be others apparent, such as (c)(6). It's weird, but (c)(1) might not be available. At least last time I checked, there was at least some case law that says you can't use kidnapping both as the underlying offense and also the aggravating factor.

    You are right that Ashcroft is a true believer in the death penalty, and I know that it's true sometimes even in cases where the prosecuting AUSA recommends against. There is a history of deference to state prosecutors for traditional state crimes, but I don't think that would stop him here. (As a procedural matter, there is a capital crimes review committee in the DOJ in DC which would consider the matter, including a pitch from the defense attorneys, then make a recommendation to the AG.)

    Maybe the biggest obstacle would be the practical one. Maybe you could pick a jury that would impose the death penalty in North Dakota, I don't know, but the defense would move (undoubtedly successfully) for a change of venue due to pretrial publicity. They would try to move it to Minneapolis. See the problem?
    Indeed I do. It's also a problem with the Chicken Little reaction that Doug Grow, Nick Coleman, and many others of that ilk had to Pawlenty's comments. In the unlikely event that Minnesota enacts a death penalty, you'd still need to find a Minnesota jury willing to impose it. Maybe Grow, Coleman et al. should trust the people they purport to speak for just a little bit more.


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