P.L.A. - A Journal of Politics, Law and Autism

PLA is a fair and balanced Journal published by Dwight Meredith with a Focus on Politics, Law and Autism

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Wednesday, November 27, 2002
Autism -- And The Hits Just Keep On Coming

Kevin Drum of Calpundit once remarked that PLA is only occasionally about autism. Lately, it seems that events drive me to write about autism.

We have written before on the need to find a cure for autism. The only way to find a cure is to provide all available data to the scientists for evaluation and investigation. To all appearances, the Bush administration is doing all that it can to prevent scientists from discovering the cause and cure for autism.

Today Wampum, who we expect to also be writing on this subject, sent us a copy of a news story from Reuters. That story states as follows:

Attorneys for the Bush Administration asked a federal court on Monday to order that documents on hundreds of cases of autism allegedly caused by childhood vaccines be kept from the public.

Department of Justice lawyers asked a special master in the US Court of Federal Claims to seal the documents, arguing that allowing their automatic disclosure would take away the right of federal agencies to decide when and how the material should be released….

Administration lawyers told Special Master George Hastings that they requested the seal in order to preserve the legal right of the Secretary of Health and Human Services to decide when vaccine evidence can be released to the public.

Justice Department attorney Vincent Matanoski argued that to let plaintiffs use the vaccine court evidence in a later civil suit would confer an advantage on plaintiffs who chose to forgo federal compensation.

The Bush administration is more concerned with protecting Eli Lilly and the other drug companies from litigation exposure than in helping to find a cure for autism.

The documents that the administration wants to seal will either strengthen or weaken the link between thimerosal in vaccines and autism. If the documents weaken that link, then scientists will be more inclined to devote scarce resources to other lines of inquiry. In that event, the release of the documents is likely to speed the process of finding a cause and a cure.

If the documents strengthen the link between thimerosal and autism, then scientists may study the mechanism of that link in an effort to find a cure. In either case, release of the documents only furthers the scientific investigation.

The Bush administration, however, is not interested in furthering the investigation into causes and cures for autism. It is concerned that releasing the documents “would confer an advantage on plaintiffs who chose to forgo federal compensation.”

What is the advantage that would be gained? Undoubtedly, the documents contain internal drug company information as well as other information developed in the Vaccine Court. Lilly and the other drug companies already have that information.

The “advantage” that the government seeks to prevent is for parents of autistic kids to have the very same information that the defendants already have. Making the information public will level the playing field not tilt it. Keeping the information secret will only serve to prevent scientists who are looking for a cause and a cure from learning more.

Of course, the administration policy has nothing to do with level playing fields. It has nothing to do with finding a cure for autism. It has everything to do with the fact that the big drug companies are large campaign contributors to Mr. Bush and the Republican Party.

Mr. Bush promised us an administration in which “no child will be left behind.” His administration is leaving autistic children behind.

We think that Mr. Bush, as is his want, simply misspoke when making that promise. What he meant to say was that he would have an administration in which “no major corporate sponsor of the Republican Party will be left behind.” That, at least, is a promise that he has kept.

Tuesday, November 26, 2002
Reshaping Miranda

Jeff Cooper begins a discussion of Martinez vs Chavez here. That case presents the issue of whether the Fifth Amendments protections against self-incrimination can give rise to a civil action for damages. Talk Left has a very good exposition of the facts here.

Those facts are egregious. Police officers from Oxnard, California put five bullets into an innocent man. Mr. Martinez is blinded in one eye, has to use a wheelchair and lives in abject poverty. Oxnard does not think it owes him as much as an apology. Regardless of the technical legal issues involved, Mr. Martinez should recover in from someone.

Daily Kos, Kevin Drum of Calpundit and Atrios have also discussed this issue.

Our interest is in the Miranda issue presented. Mr. Martinez is contending that the police officer’s continued interrogation of him during medical treatment after he invoked his right to remain silent should entitle him to sue the officer for damages.

The right to remain silent is a fundamental constitutional right guaranteed by the Fifth Amendment to the Constitution. It is enforced through what has become known as the Miranda rule. The Miranda rule provides that statements made in violation of the Fifth Amendment may not be used in Court. That is known as the exclusionary rule because it excludes from evidence the tainted statement,

It should be noted at the outset that the exclusionary rule of Miranda is a rule of evidence. It does not govern police conduct directly. The rule applies to what evidence may be admissible in court. The purpose of the rule is to deter police misconduct.

The Miranda rule is unpopular in some circles and is constantly under attack because it is poorly designed to accomplish its purpose of deterring police misconduct all the while doing violence to our sense of justice by allowing some guilty parties to go free.

If a police officer violates a suspect’s constitutional right to remain silent by continuing to question the suspect after invocation of the right, the police officer is not punished for his misconduct. That does not seem just. It is also unjust for a guilty party to avoid punishment as the remedy for police misconduct.

In essence, the search for the truth by the justice system pays the penalty for police officer misconduct and a guilty defendant simply reaps a windfall.

We would far prefer a rule that significantly punishes the wrongdoer while not doing harm to the search for the truth. The Martinez case demonstrates the problem with using the exclusionary rule as a deterrent. In Martinez, the suspect was never charged with a crime. There will be no trial in which to exclude evidence.

The reason that there will be no charges and no trial is that Martinez was innocent of any crime. In the absence of a trial, the exclusionary rule will never be invoked. The Miranda rule provides no deterrent to police misconduct towards an innocent suspect.

The same is true in some cases with guilty suspects. Assume that a police officer extracts a confession from a guilty suspect in violation of Miranda. If the police could not have developed evidence to convict that suspect without the confession, the police officer suffers no harm from the exclusion of the statement as no conviction would be had in any event.

If the police can develop evidence sufficient for conviction without use of the tainted statement (or evidence developed because of the statement), then the exclusion of the statement provides no deterrent to police misconduct, as a conviction will be had in any event.

In sum, the exclusionary rule often misses the target of its purpose, the deterrence of police officers from misconduct.

We believe that a direct financial penalty imposed on a police officer for violating any person’s constitutional rights would do more to deter police misconduct than the exclusionary rule.

We also think that granting a civil right of action to the victim will not work. If the suspect is in fact guilty, it is hard to think that a jury would award any damages at trial of the civil action. “Ladies and Gentlemen, my client is a criminal but he would not have been caught and punished if the cop had not violated his rights, so award him some money” is not a closing argument we would wish to give.

Perhaps a better idea is to impose statutory financial penalties against the police officer for misconduct. Small, technical violations might result in the loss of a month’s pay. More substantial violations could result in a loss of employment and associated pension benefits. We suggest that the suspect receive the penalty as compensation if no charges are brought or if the suspect is not convicted. If convicted, the fine could go to the court system or to charity.

That structure would do more to deter police misconduct than the current exclusionary rule. We believe that police misconduct is serious and common. The fact that it is a common occurrence is testimony that the exclusionary rule does not work well to deter misbehavior.

We should fit the remedy to its purpose. We believe that many police officers would refrain from continuing interrogation after the invocation of the right to remain silent if the wrongdoing resulted in significant financial loss to the officer.

In addition, we believe that a different exclusionary rule is appropriate. We believe that any in custody interrogation should be videotaped in its entirety and than no statement made while in custody should be admissible without the videotape being available for corroboration.

The goal of the Miranda rule is to deter police misconduct. Direct financial penalties against police officers will be a greater deterrent than the exclusion of the statement at trial.

Monday, November 25, 2002
Go Read The Rittenhouse Review Right Now

Jim Capozzola of The Rittenhouse Review has written an extraordinary essay entitled "Al Gore And The Alpha Girls." As usual, Jim's writing is a delight. More importantly, however, his analysis of how and why much of the media treat Al Gore as a red headed stepchild is insightful and accurate. We refuse to quote any of the essay as then you might be tempted to read only an excerpt. You owe it to yourself to read the entire article. Right now.

Autism -- Repeal The Birth Tax

If a politician proposed a $250,000,000,000 tax increase on the American people, the political outrage would be deafening.

The increase in the incidence of autism has resulted in such an increase in costs to state governments alone and no outrage is to be heard outside the autism community.

The rising incidence of autism has been demonstrated by a well-designed and authoritative study from the University of California at Davis. That study may be found here (Adobe Acrobat Reader required). We wrote on the issue of the increase in autism here.

In 1987, the California Department of Developmental Services had 2,778 cases of full spectrum autism. By 1998, that number had risen to 10,360. In the four-year period from 1998 to 2002, the number of cases rose again to 18,460.

How much does that increase in the incidence of autism cost the state of California?

This story in the Sacramento Bee suggests that the cost to the state of California of each case of autism is $2,000,000.

Please note that the $2 million per case includes only direct costs to the state government. It includes none of the emotional costs or other non-economic costs to autistic children or their families. It includes no costs to the federal government in the form of increased federal share of Medicaid costs or disability payments. It includes none of the financial burdens absorbed by families of the autistic children.

If that cost is accurate, then the total financial burden on the taxpayers of California caused by the increase in the number of cases of full spectrum autism from 1988 through 2002 is in excess of $31,000,000,000.

California has approximately 1/8th of the population of the United States. If the increase in the incidence of autism in California is mirrored across the United States, the total increase in costs to the states resulting from the increase in the incidence of autism would be approximately a quarter of a trillion dollars.

Looked at a different way, full spectrum autism now occurs in approximately one in 800 children born in California. The cost to the state of educating and caring for the autistic child must be paid by the other 799 children. Thus, each of the other 799 children is assessed a “birth tax” of approximately $2,500.

The number of cases of full spectrum autism in California rose by an average of less than 700 per year from 1987 through 1998. The increase in the four-year period from 1998 –2002 was over 2,000 cases per year. The number of new cases is rising ever more rapidly. That rise suggests that the amount of the birth tax may increase in the future.

There are only two ways in which the birth tax may be decreased. First, if thimerosal in vaccines caused the increase in the incidence of autism in the 1990s, the costs will drop now that thimerosal is no longer included in childhood vaccines.

If thimerosal was not the culprit, then the rise in the incidence of autism and the related birth tax will only increase in the future. In that event, the only way to reduce the birth tax is to find the cause and a cure for autism.

Repeal the birth tax now. Increase funding for autism research.