July 2007 Archives

I have been playing Actraiser on the Wii Virtual Console. Actraiser, for those who don't know, was a Super Nintendo title released by Enix very close to the system's launch. The game was developed by Quintet and was the first of the so-called Quintet Quartet, four games developed that combined action and role-playing gameplay mechanics with plots that had the player playing some sort of deity tasked with fixing a ruined world. The other three games were Soul Blazer, Illusions of Gaia, and Terranigma (the last of which has, maddeningly, never been released in the United States, despite its release, with English translation, in Europe).

The premise of Actraiser is that all human life was wiped out some years ago when an evil demon slew God and destroyed all that was good in the world. The game begins when God, the player, re-awakens and decides to rebuild the world.

Actraiser is an odd dock. Half the game is a fairly standard action platforming game. The other half is a weird Sim City-lite city building simulation. During the simulation portions you control a cherub and use him to guide the growth of the recently-reborn human civilization. This mostly involves telling them which direction to develop in and dispensing miracles as needed to, for instance, clear out bushes or dry up marshlands. The upshot of all this is that the higher the world population the more powerful your character becomes during the action platformer portions, with your character attaining new levels at certain population milestones.

The trouble is maximizing population. Each city you build has only a limited area for growth, so you need it to be as high-density as you can get it. Moreover, people don't really build great housing to start with. Each city begins with mud huts. As you seal off monster layers and tame the savage frontier, they started constructing wooden houses. Once you come within one short platforming stage of banishing evil from the region forever, they begin constructing modern houses. Modern houses hold more people than wood houses, which hold more people than huts. But the people don't upgrade the old housing when they reach new civilization levels; they build future housing at the highest level possible, but the old housing remains the same.

This means that becoming the best deity you can be requires showing your human subjects some tough love. In the early cities, this means going through your town and systematically smiting every mud hut or wooden house with bolts of lightning. Later on you become powerful enough to summon earthquakes, which destroy all buildings except modern, high-density housing, making the urban renewal process quick and easy. If there's one thing God can't stand, it's inefficient land-use policies and backwards, low-density zoning.

Tonight I met a neat woman and managed to ask for and receive her phone number. These are all very rare events for me.

As I was walking back to the subway from the enconter, my first thought was, "This is SO going on my blog!"

From a New York Times article on the book collections of CEOs:

"Ken Lopez, a bookseller in Hadley, Mass., says it is impossible to put together a serious library on almost any subject for less than several hundred thousand dollars."

Discuss.

I was wandering around Chelsea today and came upon an interesting pair of stores. The first was Revolution Books, a big anti-capitalist bookselling collective. The windows were covered in quotations from Marx, Trotsky, Lenin, Mao, and other communist leaders and thinkers. The front door was draped with banners bearing Marxist slogans.

Next door to them was a trendy office furniture store.

Along similar lines, there's a yuppie supermarket near me that stores their vegetarian/vegan fake meat products like tempeh and seitan right next to their foie gras. What's interesting is that they're literally right next to one another an both come in similar tubs, which makes it very easy to imagine an inattentive shopper buying one of them and being quite displeased when they got home.

The same grocery store also keeps their onions and their potatoes next to each other in an alcove. I'm led to understand that this causes both to rot faster, though I wouldn't be surprised if this bit of kitchen wisdom is apocryphal.

For some reason, I haven't been getting any mail this week. None of the usual catalogs I never requested, none of the usual liberal charities that The Nation sold my address to for forty pieces of silver, nothing.

But I got mail today: A New York County Juror Qualification Questionnaire. Apparently this is the prelude to a summons to jury duty; since I am a US citizen, a resident of New York County, at least 18 years old, can understand and communicate in English, have never been convicted of a felony, and have not served as a juror within the last 4 years I meet all the qualifications to be called to pass judgment upon my fellow citizens.

I feel the chances of my actually serving are pretty slim, considering that I'm a law student and lawyers tend to prefer not to have jurors who are too educated in the law. There are good reasons for this. Lawyers want to be able to control the jury. They want the jurors to focus on the relevant facts and apply the law as it is given. What they don't want is a smart-ass know-it-all law student pointing out some silly inconsistency in one side's case and making a big deal out of it, or introducing nuances and alternative interpretations of the law other than the ones given by the judge. They don't want jurors who will play the judge and try the case themselves in the deliberating room. It's not that legally educated jurors are more likely to convict or acquit, it's that legally educatd jurors are less likely to follow instructions and act like a juror.

But there is the possibility I will serve. I've had law professor who served on juries, and if anyone's likely to pervert the course of jury deliberations it's a law professor.

And in related news, Japan is going to be using juries for criminal trials starting next year. This is in marked contrast to much of the rest of the world, which gives regular citizens little, if any, role in the judicial process. It'll be interesting to see how that works out.

While I greatly appreciate your concern for my health and well-being, I do not actually have any pressing need for your nutritional advice. When, for example, we are dining at a steakhouse as part of a (mandatory) firm event, and I surreptitiously ask the waiter if it would be possible to get a meat-free, dairy-free meal, it is not my subtle way of asking you to give me a lecture on the importance of protein in a healthy diet and the inability of the human body to absorb iron not contained in red meat.

Since we are on the subject, while I appreciate your love of red meat, could we, perhaps, have a lunch outing that isn't at a steakhouse? And while prix fixe menus are the height of haute couture, could we perhaps get a prix fixe menu that includes at least a vegetarian option, to say nothing of a vegan option? This is not to complain, mind you. I love that this summer has given me the opportunity to go to New York's fanciest, trendiest, priciest dining hot spots and order the not-on-the-menu plate of grilled vegetables. I have now eaten half a dozen of the finest plates of grilled vegetables that New York City's steakhouses have to offer. But, I don't know, how about some Lebanese? Or Indian? Or, if you're feeling really daring, Ethiopian?

I know we can work out our differences. All I ask is a little understanding and to not have to eat at another fucking steakhouse next week.

Sincerely,
Z. Alexander Slorpe, Esquire.

Last night I dreamed that while tossing in my sleep I ripped a hole in my sheets with my big toe.

This morning I woke up to discover that I had not, in fact, ripped a hole in my sheets.

I submit that my psyche is a milquetoast.

A couple of days ago, President Bush commuted Scooter Libby's 2 1/2 year jail sentence. The commutation came within hours of the DC Circuit's denial of Libby's emergency appeal of the District Court Judge's decision that Libby should remain in prison while he awaited the results of his broader appeal. In short, the president's commutation of Libby's sentence was timed to ensure that Libby would not have to spend a minute in jail.

In commuting Libby's sentence, the president remarked that he had "concluded that the prison sentence given to Mr. Libby [was] excessive. Therefore, [he] commut[ed] the portion of Mr. Libby’s sentence that required him to spend thirty months in prison." What's troubling about this is that the reasoning contradicts the entire philosophy upon which we sentence criminals in federal courts.

In the federal system we sentence criminals in accordance with the Federal Sentencing Guidelines. The Federal Sentencing Guidelines were created to remedy the seeming injustice of wildly divergent sentences in criminal cases. It used to be that judges had nearly complete discretion in crafting sentences. They could take whatver factors they liked into account and sentence criminals however the wished, subject only to whatever statutory minima or maxima may exist.

Imagine two criminals from similar backgrounds who committed the same crime in the same judicial district, but who have their trials assigned to two different judges. Criminal A gets Maximum Bob while Criminal B gets Probation Pete. Maximum Bob was appointed by a tough-on-crime president, and he believes in giving every criminal the maximum sentence allowed by law, so Criminal A gets 10 years. Probation Pete was appointed by a liberal reformist president. He believes everyone deserves a second chance, so he gives 6 months probation to every first-time non-violent offender, which is exactly what Criminal B gets. The only distinction between A and B is the luck of the draw as to which judge their case was assigned to.

On a systemic basis, this makes people squeamish. If we had some ideal judge, some judicial Hercules, and we could clone her and appoint her to every district court bench in the nation, thereby ensuring that luck-of-the-judicial-draw was not a factor in sentencing outcomes, the problem wouldn't exist. But we can't, so it does.

The solution was the sentencing guidelines. The sentencing guidelines are crafted by the United States Sentencing Commission, a permanent commission of the Federal Judiciary. The USSC has 7 members, each one appointed by the president and confirmed by the Senate to six-year terms. No more than 3 may be federal judges and no more than 4 may belong to the same party. Sentencing under the guidelines is largely a mathematical process. The judge first calculates the offense level. She starts from a baseline level for whatever the crime is. She then adds or subtracts points from the offense level based on other relevant factors. The just must then compute the criminal history level by looking at any prior convictions. Once she has an offense level and a criminal history level, she consults a grid which tells her the range of sentences that she can give.

As an example, suppose you have a single mother convicted of posession of narcotics with intent to distribute. She's 25 years old and the sole support for her children. She has a high school diploma and has worked since graduation cleaning bathtubs at a shop that sells bathroom fixtures. Her employer reports that she is generally good at her job, has been known to miss days periodically when childcare emergencies arose, but has overall been a fine employee. She attends church weekly and is a junior member of the church's governing committee. It's her first offense and she played only a minor role: knowing that a bag contained drugs, she agreed to hold it until the dealer returned to pick it up. The bag contained 5 kilograms of marijuana. She hid the bag in a supply closet in the church's meeting room, which she could access by dint of her membership on the committee. After her arrest she insisted on going to trial, arguing that holding the drugs for a friend shouldn't be considered trafficking, and she maintains the injustice of her conviction through the sentencing.

Based on this we consult the guidelines: Section 2D1.1(c)(13) tells us that the base offense level for possession of 5 kilograms of marijuana is 14. She played only a minor role in the crime, which under section 3B1.2(b) entitles her to a reduction of 2 levels to offense level 12. Because she has not accepted responsibility for her crime, she does not receive a 2 level reduction under section 3E1.1(a). Because her crime involved an abuse of a position of private trust (using her access to the meeting room to aid in the commission of the crime) two levels are added to her offense under Section 3B1.3, bringing her back up to 14. Sections 5H1.1, 5H1.2, 5H1.5, 5H1.6, 5H1.10, and 5H1.11 tell us that her age, education, employment record, family ties and responsibilities, religion and socio-economic status, and charitable or public service are not ordinarily relevant in determining her sentence. She has no prior arrests, so her criminal history level is 0.

Consulting the sentencing table at Chapter 5, Part A for an offense level of 14 and criminal history of 0, we learn that the guidelines range for her sentence is 15 to 21 months in prison. The judge has discretion to sentence her anywhere within that range.

My point is this: in commuting Libby's sentence, Bush argued that the sentence was inappropriate given that Libby was a first-time non-violent offender and in light of Libby's "years of exceptional public service.” But Libby was not a sinner in the hands of an angry judge; the judge's discretion as to the sentencing was minimal. Libby was sentenced according to a mathematical formula. That formula takes into account the type of offense. It takes into account the fact that he was a first-time offender. The formula does not take into account his years of exceptional public service, but only because the Sentencing Commission has considered those factors and explicitly declared that they are irrelevant to sentencing. Libby was not screwed by a partisan judge. He was sentenced in accordance with a mathematical formula that we use to sentence hundreds of offenders every day in America, and his case presents no special circumstances that aren't already either taken into account or rejected as irrelevant by the guidelines. Other than, of course, the circumstance of being friends with someone who has the power to commute your sentence.

If the president is serious about his stated reasons for commuting Libby's sentence, then his disagreement is not with the conduct of one judge but rather with the entire scheme under which we sentence prisoners in the federal system. This should lead him to push for a reconsideration of the entire guidelines scheme, either by tweaking the relevant factors used to determine a guidelines range or by throwing out the whole mathematical sentencing system. The president's statements are not a cry in the dark by a powerless professor or an overworked defense attorney; they are pronouncements by arguably the most powerful man in the country. If he is serious about his criticism, he has the power to change what he perceives to be an unjust system for the better. If he is serious.

There's an interesting discussion going on in the comments to a post at the Official Shrub.com Blog that I thought worth commenting upon. And when I say "commenting upon," what I mean is "utterly ruining with a drawn-out legal discussion."

The essential question is this: If a person makes a sexist comment but does not intend the comment to be sexist, is the comment sexist nonetheless?