Thursday, February 5, 2015

Post Mortem Justice U.S. Style

It hath often been said, that it is not death, but dying which is terrible.
—Henry fielding, Amelia

There’s a big difference between the Russian Court that tried Sergei Magnitsky and the United States Supreme Court that agreed to hear the appeal of Charles Warner. The Russians are content to try a dead man for crimes allegedly committed before death whereas the United States Supreme Court does not want the name of a man it permitted to be executed to appear on an appeal by that man in which he hopes the Court will stop his execution from taking place.

Sergei was a Russian accountant and auditor who worked in the Moscow law firm of Firestone Duncan. While employed there he was investigating a tax fraud that implicated local tax officials and police officers. Before he was able to complete his investigation he was arrested and imprisoned on the grounds that he had engaged in assorted acts of tax fraud. Under Russian law he could be (and was) imprisoned for one year without being tried. During that year he was denied medical treatment, confined to increasingly small cells and, eight days short of the one-year period, he died as a result of untreated pancreatitis,acute heart failure and toxic shock.

The family was outraged. It believed he was arrested in order to derail the investigation he was conducting and attributed his death to a lack of medical care. Russian authorities were understandably upset at these claims since, if true, they reflected badly on the Russian legal system. They were especially upset that in repeated interviews the family said Mr. Magnitsky died because of the failure of the authorities to give him proper medical care and, in addition, insisted he was innocent of the charges. When the family refused to quit giving interviews to the press, the authorities took advantage of a provision in the Russian criminal code that permits a dead person to be tried for crimes committed before death. Although the criminal code says only the family can demand a trial of the dead man, the prosecutor explained at the beginning of the trial “that the case was reopened to decide the issue of Magnitsky’s possible rehabilitation” since the family insisted on giving interviews in which they asserted Mr. Magnitsky’s innocence. That, said authorities, was the same as demanding a trial.

The Magnitsky trial lasted five-months and at its conclusion the judge delivered a 1 ½ hour verdict finding Mr. Magnitsky guilty as charged. Commenting on Mr. Magnitsky’s “physical absence,” however, he said no further investigation into his conduct would take place nor would any jail time be imposed on Mr. Magnitsky. It is by comparing this to the recent actions of Chief Justice John Roberts and his colleagues on the U.S. Supreme Court in the case of Warner v. Gross that one appreciates how civilized that body is.

Warner is one of many cases that have been before the courts in which they have been asked to decide on the most humane way to rid society of its unwanted members. A number of recent executions have caused the subject of the procedure to act in ways that inspire revulsion in the onlookers since instead of seeming to die peacefully, they appear to be enduring excruciating pain. Warner was an appeal to the Court by four inmates on death row in Oklahoma. They were challenging the chemicals Oklahoma uses in executing criminals on the grounds that the chemicals cause extreme suffering and violate the constitutional ban on inflicting cruel and unusual punishment. The four men asked the Court to put their executions on hold while the Court considered their claims. Under the rules of the Court, five Justices have to vote in favor of stopping an execution but only four Justices have to vote in favor of hearing an appeal. In poor Mr. Warner’s case, things got backwards.

On January 15, 2014, four Justices (instead of five) voted to stop Mr. Warner’s execution and as a result he was executed a few hours later. On January 23, 2014, however, four Justices voted to hear Mr. Warner’s appeal and the case of Warner vs. Gross was added to the Court’s docket. Continuing to refer to the appeal by Mr. Warner’s name, however, was something of an embarrassment to the Justices since it gave the impression that the Court was agreeing to consider the appeal of a man who did not want to be executed after the Court had already permitted the execution to proceed. If it did not change the name there would be a disturbing similarity to the Russian court that spent 5 ½ months trying a dead man. Chief Justice Roberts would be the first to recognize the awkwardness of that. Fortunately for the Court, three other convicts, including Richard Glossip, had joined in Mr. Warner’s appeal. To avoid looking foolish, the Court removed Mr. Warner’s name and substituted Richard Glossip’s name. The case is now called Glossip vs. Gross. Whether that sleight change of name kept the Court from looking foolish, others can decide.

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Wednesday, January 21, 2015

Revisiting the IRS

Taxes are what we pay for civilized society.

— Oliver Wendell Holmes, Jr. _Compania de Tobacos v. Collector_

The Republicans deserve credit for persistence, if not creativity. First it was the Affordable Health Care Act that they have voted to repeal no fewer than 54 times since taking control of the House in 2011. Now it is, once again, the Internal Revenue Service they have in their sights.

Attacks on the IRS over the years have been less frequent but far more effective. In 2004 the American Jobs Creation Act of 2004 became the law. One of the purposes of the Act was to transfer to the private sector jobs that had theretofore been done by the public sector i.e. the government. The Republican reasoning behind this move was that whatever the public sector can do, the private sector can do better, if given the chance. Once the act was in place the Republicans has a chance to test it out in real life situations. Accordingly, beginning in 2006 and, following Congressional instructions, the IRS farmed out delinquent tax collecting to three private companies, two of which were especially well qualified to receive the contracts since they had contributed significant amounts to the coffers of the politicians who had a hand in hiring them.

According to a report in the Washington Post, the goal of the program was to collect $1.4 billion from deadbeats who owed the IRS $25,000 or less. If the private debt collectors met the target they would be entitled to keep $330 million. Even though the private sector is better at an assigned task than the public sector, the debt collectors missed their goals. Instead of collecting $1.4 billion, the assigned amount, they collected only $49 million thus missing the goal by $900,551,000. Commenting on the program in a statement on the floor of the Senate, Senator Ben Cardin of Maryland reminded his colleagues that Nina Olson had earlier informed his colleagues that if the IRS had spent the $7.65 million it cost to implement the private debt collection on an automated collection system, it would have generated generate $153 million. His Republican colleague in the House, Jim Ramstead, was not daunted by the failure of the program. He said: “the real choice is whether we use private collection agencies or let these tax debts go uncollected. I hope we don’t take an enormous step backward in our efforts to close the tax gap by eliminating a program that’s working.” How a program that missed its goal by almost $1 billion is considered working is better explained by a Congressional Republican than by me. In 2008 Democrats took control of both Houses of Congress and in 2009 tax collection was returned to the IRS. That was shortly before Congress began cutting the IRS funding.

In fiscal year 2010 the IRS received $12.15 billion in funding, $4.5 million less than the $12.6 billion it had requested. The reduced amount was insisted on by Republicans even though the Treasury Secretary and the IRS commission had pointed out to Congress that increased funding for the IRS pays for itself. According to the Treasury Secretary at the time: “Every dollar invested in IRS yields nearly five dollars in increased revenue from non-compliant taxpayers.” The Republican were unpersuaded then and remain so now. In the 2015 budget agreed to by the House and Senate in December 2014, the IRS will get $10.9 billion, a decrease of 10% since 2010. The 2015 budget for the IRS is about the same as what it was in 1998 when 30 million fewer returns were being filed by taxpayers. Nina E. Olson, leader of the Taxpayer Advocate Service anticipates that in 2015 the IRS will only be able to answer 43 percent of the 110 million calls it expects to receive. Those lucky enough to get through will be on hold for 30 minutes. If the wait is any longer than that the taxpayer will be treated to what is described as a “courtesy disconnect.” The caller is removed from the cue waiting to speak to a representative and disconnected. The caller can, of course, call back in order to be placed back in the cue. In 2013, 61 percent of calls received were answered and the wait time was 18 minutes.

According to the Taxpayer Advocate Service’s 2013 Annual Report to Congress, the IRS has almost 400 walk-in sites. Ten years ago it answered more than 1.4 million tax-law questions at those locations. Because of the most recent cuts some of those sites may close and those remaining open will only answer “basic” questions during tax season and none after April 15th even if a taxpayer has not yet filed. The agency will no longer prepare returns for low income, elderly and disabled taxpayers. Its workforce was reduced from 95,000 full-time employees in FY 2010 to 87,000 in FY 2013 as a result of earlier cuts and it is anticipated that in 2015 another 3000 positions will be eliminated.

The successful attack on the IRS and the prospect of more attacks on other valuable institutions by newly emboldened Republicans lead one to hope that more votes are scheduled on repeal of the Affordable Health Care Act. Those are the sorts of harmless actions that satisfy the need of Republicans to let everyone know how much they dislike the president without inflicting harm on the country.

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Thursday, January 15, 2015

Saudis and Satire?

Those who can make you believe absurdities can make you commit atrocities.
—Voltaire

Meanwhile, back in Saudi Arabia. . . .

For a brief time it seemed that our friends and allies, the Saudis, might be on the verge of getting one thing right. In early November it was reported that King Abdullah’s advisory council had recommended that the government ease its ban on female drivers. Women are banned from driving by religious edicts issued by senior clerics who believe permitting women to drive encourages licentiousness. Under the proposed action, the ban would have been modified.

The council recommended that (a) women over the age of 30, (b) wearing no lipstick or other makeup, (c) conservatively dressed and, (d) with the permission of a male relative, be permitted to drive from 7 AM to 8 PM Saturday through Wednesday and noon to 8 PM Thursday and Friday. When driving in the city a woman would not have to be accompanied by a male relative. Outside the city, however, a male relative would have to be in the car. No sooner was this development reported than it was denied by an official. Events taking place shortly after his denial proved that his denial had more substance than the original report.

On December 1,2014 two Saudi women were arrested after driving into Saudi Arabia from the United Arab Emirates. After a one-week’s detention authorities announced they would be held until December 25th. On December 25th the two women were referred to a court in Riyad created specifically to try terrorism cases. At the time of the arrest there was no suggestion that either of the women was a bad driver so the referral to a court created to try terrorists made little sense. As of this writing they remain confined and have been confined longer than any other Saudi woman for the offense of driving. As things go in that fair kingdom, however, that is a minor issue. How some Saudi citizens are dealt with, apart from the ban on women drivers, came into sharp focus following the mass killing in Paris that was in retaliation for what the murderers believed was a literary assault on Mohammad by those they murdered. Yemen was the country in which the murderers were reportedly trained.

On December 18, 2014 we learned that Saudi Arabia had passed a new law that imposes the death penalty on anyone caught trying to smuggle a Bible into the country. The new Saudi law brings Jeffrey Fowle to mind. Jeffrey was imprisoned in North Korea from mid-May 2014 to October 21,2014 because he left a Bible in a nightclub in North Korea. Owning a Bible in North Korea is a capital offense punishable by death. North Korea is not our ally. Saudi Arabia is.

Raif Badawi is a Saudi citizen who started an Internet forum called “Free Saudi Liberals” that discussed the role of religion in Saudi Arabia. He was arrested by authorities in July 2012 and charged with cyber crime and disobeying his father. According to Human Rights Watch he founded his website in 2008 to “encourage debate on religious and political matters in Saudi Arabia. Articles on his website were critical of senior religious figures. At his first trial he was sentenced to 7 years in jail and 600 lashes. In July 2014 an appellate court ordered a new trial. At the second trial Badawi was sentenced to 5 years in prison and fined one million riyals for creating his website and an additional five years in prison and 1,000 public lashes for “blasphemous phrases on his Face book page and disobedience to his father. He doesn’t get all the lashes at one time. There will be 20 sessions of 50 lashes each. Badawi’s lawyer, Waleed Ab al-Khair, didn’t have a better summer than his client.

As reported by Human Rights Watch, on July 2014 al-Khair received a 5-year prison sentence because he criticized Saudi human rights abuses in media interviews and on social media.

The same days Badawi was sentenced, the same court sentenced the administrator of a website to six years in jail and a 50,000 riyal fine. His crime was “supporting Internet forums hostile to the state. . . which promoted demonstrations.” Another website administrator got a five year sentence for publishing a column written by a Sh’ite Muslim cleric.

Fahdil al-Manasif helped international journalists who were covering protests that occurred as a result of Saudi treatment of Shia Muslims in the eastern province of the country. He will spend 14 years in prison for his efforts. On November 3, 2014 Mikhlif al-Shammari was sentenced to two years in prison and 200 lashes. One of his crimes was visiting a prominent Shia figure in the eastern part of the country as a goodwill gesture. What all of those victims of the Saudi criminal justice system have in common is that their offenses related strictly to intellectual activities and not physical violence. What all of them have in common is that none of them was writing satire. One can only guess how our Saudi allies would react to a satirist making fun of Saudi authorities.

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