Are Collateral Damages Acceptable in the Administration of the Death Penalty?

This November, California voters will face a literal life-or-death decision. Proposition 34, titled “Death Penalty. Initiative Statute,” proposes to repeal the death penalty and replace it with life imprisonment without the possibility of parole.

At first glance, the initiative may appear as a referendum on whether our society should have the right to kill those who commit particularly heinous crimes. Some believe that certain criminals deserve the death penalty. And, few will disagree. A Gallup poll shows that around 60% of Americans support the death penalty for a murder conviction with the predominant justification being “an eye for an eye.”

However, the issue is more nuanced. While the death penalty does satiate our primal desire for retribution, we must decide whether we are willing to accept a degree of collateral damage in this pursuit of justice. Consider the dissent from In re Troy Anthony Davis, 557 U.S. ___ (2009), in which Justice Scalia stated:

This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is “actually” innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged “actual innocence” is constitutionally cognizable.

In just over a month, when we mail in our absentee ballots or vote at our local polling places, we can embrace or reject Justice Scalia’s vision. If a defendant is convicted and sentenced to death after a fair trial, should we still error on the side of caution and surrender capital punishment as a safeguard? We will have the opportunity to decide whether the benefit of punishing the guilty by way of the death penalty outweighs the cost of killing an innocent. For some, the potential chance of killing an innocent person may be a line that cannot be crossed. They may demand that the criminal justice system be perfect.

However, we can also view the death penalty within the context of our every day lives. For the past three decades, traffic accidents have claimed 30,000-40,000 victims each year in the United States. Certainly, a lot more innocent people die in traffic accidents than from wrongful executions, but we don’t halt traffic until we have an accident-free system in place. According to the Center for Justice & Democracy, the number of deaths from medical accidents each year range from 65,000 to 200,000. Again, we do not suspend the entire health care system until the practice of medicine is free of accidental deaths.

A lot of people die in accidents. It is for each of us to determine how we want justice administered in our system. Are the wrongfully convicted just collateral damage? Are mistakes just a fact of life? Are wrongful executions so far and few between that in the grand scheme of life, there are bigger priorities to tackle?

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California Shark Fin Ban

California Fish and Game Code § 2021 set forth the California shark fin ban law. Under the law, “it shall be unlawful for any person to possess, sell, offer for sale, trade or distribute a shark fin.”

2021(e) exempts restaurants from the ban so that they can clear out their shark fin stock. However, this only applies to inventory in hand as of January 1, 2012, and the restaurant has only one year from that date to use down their shark fins.

So, I was a bit surprised to see shark fin on sale last month at a local supermarket.

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18 USC 1751

Today, the FBI filed a criminal complaint with the U.S. District Court for the District of Columbia. The FBI was seeking a warrant to arrest Oscar Ramiro Ortega-Hernandez for violating 18 U.S.C. Section 1751(c). That section pertains to attempts to kill the President of the United States.

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Another iPhone Antenna Lawsuit

On the rumored eve of the iPhone 5 release, I spotted this case–Jethro Magat v. Apple Inc.–in Justia Dockets & Filings.

The original complaint was filed on June 23, 2011 with the clerk of the U.S. District Court in the Central District of California. According to the complaint, the plaintiff purchased an iPhone 4 on January 19, 2011. The iPhone allegedly had a “connection problem caused by the iPhone 4’s antenna configuration that makes it difficult or impossible to maintain a connection.” “Plaintiff is informed and believes and thereon alleges that this is a known defect in the iPhone 4 which was never disclosed to its purchasers.” “Had the true facts been disclosed, Plaintiff and other Class members would not have purchased the iPhone 4 at the price and under the terms and conditions to which they were and are subjected….”

Now, let’s review the timeline.

So, six months after the press conference on the iPhone 4’s connection problems, the Plaintiff purchased the same phone. So, what do you think about his claim that this was never disclosed to him and that he would not have purchased the phone?

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NPR Defunding Bill

H.R. 1076, which prohibits federal funding of National Public Radio and radio content acquisition, passes the house.

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TSA Pat-Down Procedure

From the TSA Blog:

It should be mentioned that you will not be asked to and you should not remove clothing (other than shoes, coats and jackets) at a TSA checkpoint. If you’re asked to remove your clothing, you should ask for a supervisor or manager.

Of course you should not be removing your clothing because there’s an app for that.

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Formula Restaurants

USA Today reports that a group of investors are challenging a Springdale, Utah ordinance that bans “formula restaurants” to preserve the charm of the local community. Justia has the Complaint from Izzy Poco v. Town of Springdale et al..

Springdale Town Code 10-2-2:

FORMULA RESTAURANT OR DELICATESSEN: A business which is required by contractual or other arrangement to provide any of the following: substantially identical named menu items, packaging, food preparation methods, employee uniforms, interior decor, signage, exterior design, or name as any other restaurant or delicatessen in any other location.

Springdale Town Code Section 10-3A-5:

C. Standards for conditional uses in agricultural zone:

1. Restaurants:

d. Formula restaurants are prohibited.

Springdale Town Code Section 10-22-3:

Subject to the provisions of section 10-21-1 of this title, the following uses are recognized to be incompatible with the general plan, because of the limited amount of private land available within the town’s boundaries; the large size or scale required of such uses; excessive noise, odor or light emissions; their excessive use of limited resources and the undue burden they place on public utilities and services, or because they are of a character hereby found to be in conflict with the town’s general plan:

Formula restaurants and formula delicatessens.

I don’t understand the ordinance. In fact, it reminds me of San Francisco’s strange obsession with chain stores. At the end of the day, unless a business is operating on federal, state or local lands, I don’t understand why one restaurant is permitted, but another is not. After all, we’re talking about sandwiches and not adult motion picture theaters.

The food industry is challenging enough. Let the market decide whether the local or visiting population really dislikes formula restaurants. And, in this day and age of Yelp, mom-and-pop restaurants that deliver quality food and service can compete toe-to-toe with the so-called formula restaurants with their national advertising budgets. And, if a mom-and-pop restaurant cannot beat a chain restaurant, maybe a visit from Gordon Ramsay would be in order.

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Main Street Fairness Act

What’s in a name? That which we call a rose
By any other name would smell as sweet.

If truth in advertising laws applied to Congress, the so-called Main Street Fairness Act would be renamed as the Main Street Tax Act because it has absolutely nothing to do with fairness for main street. The unstated premise is that our current tax laws that treat online, out-of-state purchases different from offline purchases at bricks-and-mortar stores is unfair to Main Street businesses. However, the bill is all about collecting more sales tax and offers no help to Main Street businesses.

Congress makes the following findings:

(1) States should be encouraged to simplify their sales and use tax systems.

(2) As a matter of economic policy and basic fairness, similar sales transactions should be treated equally, without regard to the manner in which sales are transacted, whether in person, through the mail, over the telephone, on the Internet, or by other means.

(3) Congress may facilitate such equal taxation consistent with the United States Supreme Court’s decision in Quill Corp. v. North Dakota.

(4) States that voluntarily and adequately simplify their tax systems should be authorized to correct the present inequities in taxation through requiring sellers to collect taxes on sales of goods or services delivered in-state, without regard to the location of the seller.

(5) The States have experience, expertise, and a vital interest in the collection of sales and use taxes, and thus should take the lead in developing and implementing sales and use tax collection systems that are fair, efficient, and non-discriminatory in their application and that will simplify the process for both sellers and buyers.

(6) Online consumer privacy is of paramount importance to the growth of electronic commerce and must be protected.

You have to love Congress. Not sure how increasing taxes is fair to anyone but state governments, but there you go. Looking out for Main Street by hiking taxes.

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Deepwater Horizon

There are a number of ways to research the Deepwater Horizon disaster that continues to unfold in the Gulf of Mexico. You can find Deepwater Horizon news via Google News or watch a Senate webcast about the recent oil spill in the Gulf of Mexico. You can also peruse securities filings, for mentions of the Deepwater Horizon.

The McMoRan Exploration Co. Form 10-Q Reports:

In April 2010, the Deepwater Horizon, an offshore drilling rig located in the deepwater of the Gulf of Mexico, sank following a catastrophic explosion and fire. Hydrocarbons have been discharged continuously into the Gulf of Mexico from the wellhead since the time of this disaster as efforts to close the wellhead and contain the spill continue. Although McMoRan has no operations in the deepwater of the Gulf of Mexico and its operations were not associated with this event, the Minerals Management Service (MMS) advised McMoRan on May 7, 2010 that approval of all new drilling permits in the offshore Gulf of Mexico is deferred until the U.S. Department of Interior and federal government complete an ongoing safety review related to the explosion of the Deepwater Horizon. The Department of Interior expects to deliver its report to President Obama by May 28, 2010.

Delays in obtaining permits from the MMS may impact the timing of drilling new wells scheduled during 2010. McMoRan’s in-process drilling operations, including the wells currently drilling at Davy Jones, Blackbeard East and Blueberry Hill have not been affected. The extent to which these recent events may impact our future results is uncertain.

The Navigators Group, Inc. Form 10-Q reports:

Our insurance subsidiaries provided property reinsurance covering the Deepwater Horizon oil drilling rig that exploded in the Gulf of Mexico on April 20th, 2010 and subsequently sank. We received loss notifications for the first party property damage related to the loss of the Deepwater Horizon. Our net physical damage loss for this claim is currently estimated to be approximately $4.6 million, net of tax, reinsurance and reinstatement premiums.

We also participated in various layers of the marine liability insurance programs purchased by entities with potential liability exposures related to the Deepwater Horizon incident. At this point in time, we are unable to accurately estimate the potential liability arising from the Deepwater Horizon incident, the allocation of that liability amongst the various participants, or what recoveries would be available to the participants from other applicable insurance coverage. If losses were incurred in the various marine liability insurance layers in which we participate on, we believe our exposure would be mitigated by the substantial reinsurance coverage we maintain. Our management expects that the ultimate liability, if any, for the marine liability portion of the Deepwater Horizon loss will not be material to our consolidated financial position, but if a significant portion of the marine liability layers in which we participate were to be exhausted, the loss could potentially have a material adverse effect on our consolidated results of operations or cash flows in a particular fiscal quarter or year.

The Parker Drilling Company Form 10-Q peports:

As part of our normal business operations, we monitor industry developments and their potential impacts to our business. In this regard, we are monitoring the recent incident in the U.S. Gulf of Mexico involving the Deepwater Horizon. At this time, we cannot predict what, if any, actions may be taken by the United States or state governments or our customers or other industry participants in response to the incident or what impact any such actions may have on our operations or the operations of our customers.

The Apache Offshore Investment Partnership Form 10-Q reports:

On April 22, 2010, a deepwater Gulf of Mexico drilling rig, Deepwater Horizon, operating on Mississippi Canyon Block 252 sank after an apparent blowout and fire. Although attempts are being made to seal the well, hydrocarbons have been leaking and the spill area continues to grow. The Partnership does not have any ownership in the field and as of this date, the spill has not affected the Partnership’s current operations. However, the Partnership cannot predict at this time the potential impact of the incident and resulting spill on our future drilling activity or operations or how government agencies may respond with changes in laws and regulations pertaining to the Gulf of Mexico.

The International Shipholding Corporation Form 10-Q reports:

Our vessels which travel in the Gulf of Mexico could be disrupted due to the oil slick presently moving towards shore. On April 20, 2010, the Deepwater Horizon Oil rig, located in the Gulf of Mexico, had an explosion causing an oil spill into the Gulf of Mexico waters. Given the nature and scope of our operations, specifically the Rail-Ferry Service, we are vulnerable to disruption this oil slick may cause to our operations or to any damage it may cause to our vessels.

The American International Group, Inc. Form 10-Q reports:

On April 20, 2010, an explosion on the Deepwater Horizon offshore drilling rig, operating in the Gulf of Mexico off the coast of Louisiana, resulted in a fire that sank the rig and caused a massive-scale oil spill. AIG estimates that its exposure to property loss on this event was approximately $20 million, which has been paid. It will not be possible to estimate the amount of casualty loss associated with this event, if any, until the determination of the cause and responsibility for the explosion and resulting oil spill and the assessment of damages resulting from the oil spill, as well as other factors, have been resolved. Therefore, although AIG cannot currently quantify its ultimate liabilities arising from this event, it is possible that such liabilities could have a material adverse effect on AIG’s consolidated results of operations or consolidated cash flows for an individual reporting period.

Transatlantic Holdings, Inc. Form 10-Q reports:

On April 20, 2010, an explosion occurred on the Deepwater Horizon oil rig in the Gulf of Mexico. Based on preliminary information, TRH expects that total industry losses from this event could reach $1.5 billion and TRH’s pre-tax costs, net of reinsurance and reinstatement premiums, should be less than 1% of such industry losses. TRH will record its estimate of costs related to this event in the second quarter of 2010, based on information then available.

TRH’s present estimate of its costs arising from the Deepwater Horizon explosion is very preliminary due to the recent date of the explosion’s occurrence and the developing nature and potential breadth of related consequences, among other factors. In addition, the estimate involves a significant amount of judgment and is based on information available at the time of estimation.

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Santa Clara County Tackles Child Obesity

The Santa Clara County Board of Supervisors voted to ban restaurants from offering toys or other incentive items in conjunction with foods that contain excessive calories, sodium, fat, saturated fat, trans fat and sugars. Interestingly, this ordinance will not affect all of Santa Clara County. Instead, the ordinance only regulates restaurants “in the unincorporated areas of Santa Clara County.” So, at first glance, this seriously diminishes the number of restaurants that may be affected.

However, the real curious aspect of this law is that it does not prohibit restaurants from serving unhealthy food to children. Restaurants may continue serving high caloric foods with excess sodium, fats and sugars. They just can’t provide toys, games, trading cards, admission tickets or other consumer products along with the meal. Note also that if the restaurant provides such toys, games, trading cards, admission tickets and other products with no purchase necessary, such a transfer will not run afoul of the ordinance since the toy is no longer linked to the purchase of a Single Food item or Meal.

Net effect: much ado about nothing.

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