Father of slain Iowa student decries using her as ‘pawn’
Monday, September 3
BROOKLYN, Iowa (AP) — The father of slain Iowa college student Mollie Tibbetts in an opinion piece spoke out against using his daughter’s death in support of “views she believed were profoundly racist,” a call that comes after President Donald Trump and others seized on the suspected killer’s immigration status to argue for changes in U.S. immigration laws.
Authorities have said the University of Iowa student was abducted while she was out for an evening run in Brooklyn, Iowa, on July 18. The man charged in her death, 24-year-old Cristhian Bahena Rivera, a Mexican farmworker who is suspected of being in the U.S. illegally. Trump and other politicians quickly noted that element of the case and called for changes to immigration law.
Rob Tibbetts wrote in the opinion piece published online by The Des Moines Register on Saturday that while he supports debate on immigration, some politicians and pundits went too far in using his daughter’s death to promote political agendas. He said his stepdaughter is Latina and argued that the suspected killer “is no more a reflection of the Hispanic community as white supremacists are of all white people.”
“Do not appropriate Mollie’s soul in advancing views she believed were profoundly racist,” he wrote. “The act grievously extends the crime that stole Mollie from our family and is, to quote Donald Trump Jr., ‘heartless’ and ‘despicable.’”
The quote comes from a Friday opinion piece by Trump Jr . that criticized the media and Democrats for not playing up the suspect’s immigration status.
“Despite what some Democrats may wish in the depths of their hearts, Mollie was murdered by an illegal alien and her murder would never have happened if we policed our southern border properly,” the president’s son wrote.
Recorded phone calls citing Mollie Tibbetts’ death in a push for white supremacist views began Tuesday, just days after her funeral. The robocalls cited comments Rob Tibbetts made in defense of Latinos during her funeral .
The calls question whether his daughter would feel the same if she were still alive and describe Rivera as “an invader from Mexico.”
Rob Tibbetts wrote in his opinion piece that his daughter was “nobody’s victim. Nor is she a pawn in others’ debate.”
“She may not be able to speak for herself, but I can and will,” he went on to say. “Please leave us out of your debate. Allow us to grieve in privacy and with dignity. At long last, show some decency. On behalf of my family and Mollie’s memory, I’m imploring you to stop.”
Analysis: Arnold Foundation to Roll Out Pretrial Risk Assessment Tool Nationwide
By Kate Patrick
The Laura and John Arnold Foundation is testing its algorithmic pretrial risk assessment tool — called the Public Safety Assessment (PSA) — in 40 jurisdictions across the country, and despite the fact that those jurisdictions haven’t been using the tool very long and do not have much data on the tool’s efficacy, the foundation told InsideSources it plans to make the tool available nationwide via an undisclosed national technical systems provider this fall.
Criminal justice reform advocates herald pretrial risk assessment tools such as the Arnold Foundation’s as a way to fix injustices wrought by the money bail system.
Because the money bail method often discriminates against poorer individuals, many advocates say evaluating an individual’s criminal history and likelihood to appear in court through an algorithm is a fairer, more efficient way of determining who gets released pretrial.
But many of the jurisdictions using the Arnold Foundation’s tool haven’t been using the PSA for much longer than a couple years and don’t have sufficient data on how efficient, effective or fair the tool is.
The state of New Jersey and Lucas County, Ohio are the only jurisdictions with preliminary data, and while it is positive — showing an increase in pretrial releases and a decrease in pretrial crime — neither jurisdiction has been using the PSA for longer than three years, and in Lucas County’s case, the data were collected only a year after implementation.
New Mexico’s Bernalillo County has been using the PSA for a year and does not have any data available. New Mexico’s governor, Susana Martinez, has said the tool was implemented with “devastating results” as it was “letting dangerous criminals back out on the streets to terrorize communities.”
In San Francisco, an individual who was on felony probation, had been re-arrested, then released pretrial based on a judge’s discernment after evaluating the Arnold tool, later killed a 71-year-old man. More than a third of those released in San Francisco as a result of the assessment were either booked on a new offense or failed to appear, according to a study.
Because there is little data, there is no way to know if other jurisdictions in different cultural and crime climates will see the same success as New Jersey or Lucas County. Furthermore, there is still a fear that the PSA and other similar tools perpetuate racial biases and encourage the pretrial release of dangerous criminals.
Judges ultimately make the final decision in a pretrial hearing, so no matter how heavily the PSA and similar tools influence the decision, the onus of responsibility falls on the judge, not the tool, suggests the Arnold Foundation. In other words, anyone can make a pretrial risk assessment tool and not face legal consequences for the kinds of decisions it fosters.
Many pretrial risk assessment tools are “black boxes” and don’t clarify what kind of factors are taken into account and how the risk assessment is weighted.
The Arnold Foundation has publicly released its criteria and research process for its PSA. The PSA relies on these nine elements:
—Age at current arrest
—Current violent offense
—Pending charge at the time of the offense
—Prior misdemeanor conviction
—Prior felony conviction (misdemeanor or felony)
—Prior violent conviction
—Prior failure to appear in the past two years
—Prior failure to appear older than two years
—Prior sentence to incarceration
The number of prior convictions, of course, are weighted heavier than the other criteria. The problem is, there’s plenty of evidence showing that African-Americans are more often wrongfully convicted of violent crimes than whites — which means that the data going into the tool is inherently skewed.
Jeremy Travis, the foundation’s executive vice president of criminal justice research, told InsideSources that the foundation cares deeply about eliminating racial bias in the criminal justice system.
“We have an abiding concern for racial justice,” he said. “In designing it, we took care to make sure it was race neutral. We do not consider, for example, neighborhood of residence or income or race. But we do look at the data and what the data shows.”
Travis acknowledged that criminal justice data are inherently skewed, but said that if an individual has a wrong conviction on his or her record, he or she should note that in the pretrial hearing.
“If someone’s criminal history is either inaccurate or they want to assert before the judge that a conviction five years ago was a wrongful conviction, they should do that through their lawyer,” Travis said. “There absolutely has been a history of racism in the criminal justice system. The current system against which we have launched this reform effort is inherently discriminatory.”
At the end of the day, though, the PSA does not determine whether an individual is released pretrial: it is ultimately the judge’s decision, and the tool is merely an aid.
“We believe it helps them make better decisions,” Travis said.
Travis also said there’s been a very high demand for the PSA from other jurisdictions despite its newness.
“We have 600 requests for the PSA and we want to work closely with jurisdictions to test it and learn more about the implications and refine it,” he said.
Right now, the foundation partners with jurisdictions to run the PSA on jurisdictions’ existing technical systems. But because of high demand, Travis said, it no longer makes sense to manage the PSA this way, which is why the foundation will employ a tech company.
“We had a competition going, but we’re not yet in a position to name that organization,” Travis said.
The foundation is not alone in its efforts to reform pretrial justice: U.S. senators Rand Paul (R-Kentucky) and Kamala Harris (D-California) introduced a bill last summer to require states to “replace or reform” their money bail systems.
California’s Senate Bill 10 would end money bail in the state and require jurisdictions to use algorithmic pretrial risk assessment tools.
The National Public Pension Coalition (NPPC), which has accused John Arnold of “attacking” public pensions with his public pension reform efforts, says the Arnold Foundation helped write the bill and claims only the foundation’s PSA fits the bill’s requirements.
“According to the text of the legislation, only his foundation’s system would meet the requirements of the bill,” a NPPC blog post states. “SB 10 would essentially award the Laura and John Arnold Foundation a contract worth tens of millions of dollars a year to implement their system in California. How convenient for the Arnold Foundation that their proposed system is the only one that works according to the proposed legislation they helped to write!”
At the same time, PSA’s algorithm is much more transparent than other risk assessment tools, despite some criminal justice reform advocates fearing the PSA perpetuates racial biases.
“Let’s keep our eye on the bigger picture here: in some jurisdictions, some are assigned to a bail schedule, and that is a blatant violation of the constitutional requirement that bail be set to a person’s ability to pay,” Travis said. “What we want to do is introduce into the current money bail system a way that judges can assess the person standing in front of them, the risk of them coming back or not and whether they’ll commit another crime or not.”
ABOUT THE WRITER
Kate Patrick reports technology and finance news for InsideSources.
Opinion: Putting Power in the Bank
By Bill Kahn
Spiking temperatures in the summer and winter are only getting worse. Electrical power grid demands are starting to exceed supply. The solution is to “Bank Power” for those “Spike Days.” There are several options available to do just that. Some use new technology while others are variations on methods already in use.
“Pumped Hydroelectric Energy Storage” is used to store power by 95 percent of the “Bank Power” systems around the world; power is essentially stored in water.
Conventional river-dam systems use water-driven turbines to provide power. Using that basic technology is what “Pumped Hydroelectric Energy” is all about, but with a twist. The concept is to act like a river-dam for “Spiked” needs without requiring a river.
Such systems have some basic requirements: a hilly or mountainous region; a natural or man-made lake situated up the mountain; a small stream to feed the lake to compensate for evaporation and a holding pond located down the mountain.
During periods of “Spiked” power needs, the upper lake is made to act as though it was a river-dam, releasing water through turbines to produce power. The difference, water ends up in the lower pond and is reused. During low power demand, the water is pumped from the lower pond back into the upper lake, where it then becomes a “Power Bank.” The whole process can be repeated as demand warrants.
There are 40 facilities of this type operating in the United States, providing nearly 2 percent of the electric power grid capacity. The one in Bath County, Virginia, is the largest battery of its type in the world, generating 3,000-megawatts and powering 750,000 homes.
“Flywheel Energy Storage” is another method to store power. It works much like a toy Top. When the string is pulled, kinetic energy is imparted to the Top, and it rotates.
Flywheels are like a Top, but are spun-up using the power grid, converting electrical power to kinetic energy. Second-generation systems use carbon-fiber-metal composites enclosed in a vacuum to reduce air friction and suspended in a magnetic field to reduce mechanical friction. Flywheels can weigh up to 12,000 pounds and spin at speeds up to 50,000 rpm.
When power is needed, an electric generator (in your car, it’s called an alternator) is engaged with the spinning disc. The kinetic energy of the disc is converted back to electrical energy reducing the flywheel’s rotational speed. When excess power is available from the grid, the disc is sped up again.
Systems may contain multiple flywheel packages. Presently, an 80 mega-watt-hour (mHh) is under construction by Pacific Gas & Electric utility.
“Flow Battery Storage” uses a somewhat different concept than conventional batteries, which use closed containers and produce power by direct chemical reaction. In a “Flow Battery,” the chemicals never touch. They are pumped past each other, separated by a thin membrane which just lets electrons pass. Think of the concept like a pane of glass, which only lets the energy of heat and light pass through it.
The non-flammable chemicals are contained in large reusable tanks lasting for more than 20 years even when discharged. A big advantage is a charged chemical tank can be switched with a non-charged tank for quick reaction needs.
In Washington State an 8mWh Flow Battery system using Vanadium as its chemicals can keep the lights on in 1,000 homes for eight hours. A Chinese system under construction will be 100 times larger.
“Compressed Air Storage” uses grid electrical power during lower power usage periods to compress air into either a liquid state at minus-320 degrees Fahrenheit stored in low-pressure containers or into high-pressure reservoirs, typically underground caverns. When power is needed, the air is expanded and heated by the stored heat generated during compression or by burning a small amount of natural gas. This heated air is then used to drive conventional gas expansion turbines to generate electrical power. Air becomes the stand-by power battery. A 110-mW plant built in Alabama in 1991 is still in production. Planning and construction are underway for 330-plus mW plants in the United States and Ireland.
“Molten Salt Storage” heats water, generating steam, which propels standard turbine generators. The salt is heated with parabolic mirror sun collectors to 1,050 degrees Fahrenheit and then stored for up to six hours to act as a battery for power “Spikes.” Because this approach uses conventional steam turbines, it integrates seamlessly into the electrical grid. A system in Gila Bend, Arizona, will supply 280 mWh of power for about 70,000 homes and be the largest plant of its type in the world.
“Lithium-ion Storage” is somewhat like the batteries in your cellphone or car. A system in Australia stores 129 mWh with a 1,200 mWh project under construction. A wind farm in Laurel Mountain, West Virginia, stores 32 mWh of power.
“Liquid Metal Storage” is a program under development. It uses two liquid metals, and a liquid salt separator at temperatures up to 1,300 degrees Fahrenheit depending on the metals used. Each of the liquid metals and salts are different densities and don’t mix; they simply rest on top of each other. Think of the dissimilar densities of oil and water in a drinking glass.
The battery acts like a conventional car battery except the electrolyte can dissolve both metals. Furthermore, during the charge-discharge cycle the electrolyte changes in thickness. The heat generated from those cycles are enough to keep the temperature steady, so no external heating source is necessary, just the charging source. The power cost is expected to be comparable to the Pumped Hydroelectric Energy Systems.
With global warming, innovations like these can alleviate those power grid spikes so demand does not exceed supply.
ABOUT THE WRITER
Bill Kahn of Maitland, Fla., has lectured on automation and electronic communications at hundreds of academic and other venues. He wrote this for InsideSources.com.
Opinion: Kavanaugh’s Administrative Law Opinions; Agencies Should Approach Issues With Restraint
By Ashley N. Baker
The confirmation hearing for Supreme Court nominee Brett Kavanaugh provides an excellent opportunity to examine both the role of the judiciary in our constitutional scheme and the problem of an expanding administrative state.
Throughout the more than 300 opinions Judge Kavanaugh wrote during his 12 years on the U.S. Court of Appeals for the D.C. Circuit, he frequently addressed both issues, decrying blind deference to federal bureaucrats as an abdication of judicial duty and a violation of the constitutional separation of powers.
Kavanaugh’s views on the separation of powers problem created by the ever-expanding expanding administrative state were framed explicitly in his opinion in In re Aiken County (2013), ruling against the Nuclear Regulatory Commission:
“This case raises significant questions about the scope of the Executive’s authority to disregard federal statutes. … The underlying policy debate is not our concern. The policy is for Congress and the President to establish as they see fit in enacting statutes, and for the President and subordinate executive agencies (as well as relevant independent agencies such as the Nuclear Regulatory Commission) to implement within statutory boundaries. Our more modest task is to ensure, in justiciable cases, that agencies comply with the law as it has been set by Congress.”
Of course, Congress does not always write clear laws. That’s where the Chevron doctrine comes in, instructing courts to defer to a federal agency’s statutory interpretation and policy judgments where a statute does not clearly address the question at issue. The doctrine, originating in the 1984 Supreme Court ruling Chevron v. Natural Resources Defense Council, has evolved to allow administrative agencies to expand their authority under the cover of statutory ambiguity.
Kavanaugh has expressed concern with the overly broad application of Chevron deference that often occurs when agencies expand their regulatory reach and issue sweeping interpretations of the scope of their own authority. He has consistently stressed that there are constitutional limitations on agency deference.
Most notably, Kavanaugh has invoked the major rules (or major questions) doctrine, which holds that courts should not defer to the interpretation of administrative agencies when their rules implicate major questions of economic or political significance that are not clearly addressed by the underlying statute. One such rule is the FCC’s 2015 Open Internet Order, requiring “net neutrality.” As described by Kavanaugh in his dissent in United States Telecom Association v. FCC (2017):
“The rule transforms the Internet by imposing common-carrier obligations on Internet service providers. … The rule will affect every Internet service provider, every Internet content provider, and every Internet consumer. The economic and political significance of the rule is vast.”
Kavanaugh’s dissent from the denial of a rehearing en banc explained that Congress never instructed the FCC to implement net neutrality regulations through “common carrier” classification and “an ambiguous grant of statutory authority is not enough.” The court’s inquiry should end there:
“Under the major rules doctrine, that is the end of the game for the net neutrality rule: Congress must clearly authorize an agency to issue a major rule. And Congress has not done so here, as even the FCC admits.”
Instead, the FCC purported to find an elephant in a mousehole when determining the scope of its own regulatory reach.
At the confirmation hearing, questions about Kavanaugh’s dissent in this case will undoubtedly delve into the policy arguments for and against net neutrality. That is certainly the prerogative of the senators asking the questions. However, to be clear, Kavanaugh’s dissent is unconcerned with the policy implications of net neutrality or any other regulation. Instead, it is focused on statutory interpretation and to the proper role of an administrative agency.
Similarly, in another dissent from a denial of rehearing en banc, Kavanaugh recognized in Coalition for Responsible Regulation v. EPA (2012) that the underlying policy debate about greenhouse gas regulations for power plants was outside the proper scope of a judge’s analysis. Kavanaugh focused, instead, on the issue of constitutional authority, arguing that the Environmental Protection Agency’s issuance of such rules exceeded its authority under the Clean Air Act.
Specifically, Kavanaugh wrote that courts should “not lightly conclude that Congress intended” to “impose enormous costs on tens of thousands of American businesses, with corresponding effects on American jobs and workers.” The Supreme Court adopted this argument in a separate case two years later.
In a partial dissent in White Stallion Energy Center, LLC v. EPA (2014), Kavanaugh again addressed the EPA’s assumption that the power granted to it under the Clean Air Act includes the authority to ignore the costs imposed by its regulations. Kavanaugh noted that, to the contrary, Congress instructed that the EPA could issue only the relevant regulations if studies found they were “appropriate and necessary,” which necessarily includes consideration of the costs to society.
Kavanaugh explained why the EPA does not have the discretion to ignore a cost-benefit analysis:
“Suppose you were the EPA Administrator. … Your only statutory direction is to decide whether it is ‘appropriate’ to go forward with the regulation. Before making that decision, … you would certainly want to understand the benefits from the regulations. And you would surely ask how much the regulations would cost. You would no doubt take both of those considerations — benefits and costs — into account in making your decision. That’s just common sense.”
Noting that the EPA’s own calculation predicted the costs of the new regulations to be “$9.6 billion a year — that’s a billion with a b,” Kavanaugh concluded that it was “unreasonable for EPA to exclude consideration of costs” when “deciding whether it (was) ‘appropriate’ — the key statutory term — to impose significant new air quality regulations on the Nation’s electric utilities.”
One year later, the Supreme Court vindicated Kavanaugh’s argument in Michigan v. EPA (2015). Writing for the majority, Justice Antony Scalia cited Kavanaugh’s dissent, quoting his explanation that “appropriate” is “the classic broad and all-encompassing term that naturally and traditionally includes consideration of all the relevant factors.”
But let’s be clear: The blame for the ever-expanding and overreaching administrative state does not lie solely with executive agencies. When Congress uses malleable or ambiguous terms like “appropriate,” without further explanation, it empowers federal bureaucrats to exploit the uncertainty as a license to do more, despite the command of the major rules doctrine that doing less is the appropriate response to ambiguity when much is at stake.
James Madison famously articulated this concern in Federalist 62, writing that:
“It will be of little avail to the people, that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; … Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?”
Accordingly, liberty requires that when a statute lacks clear instructions for making rules or a clear grant of authority to promulgate such rules, federal bureaucrats should proceed with caution and restraint rather than rush into a vacuum left by Congress. A tendency toward the latter is the major problem of the administrative state, and it is one Kavanaugh will continue to address when he joins the nation’s highest court this fall.
ABOUT THE WRITER
Ashley Baker is the director of public policy at the Committee for Justice. She wrote this for InsideSources.com.