29 July 2020

The Measure of a New Criminal Law

I've been trying to come up with a model for determining what the effects of a new criminal procedure statute are and think I've come up with a workable model. 

[Elitist] -5 . . . -4 . . . -3 . . . -2 . . . -1 . . . 0 . . . 1 . . . 2 . . . 3 . . . 4 . . . 5 [Democratic]

[Defense] -5 . . . -4 . . . -3 . . . -2 . . . -1 . . . 0 . . . 1 . . . 2 . . . 3 . . . 4 . . . 5 [Prosecution]

[Individual Rights] -5 . . . -4 . . . -3 . . . -2 . . . -1 . . . 0 . . . 1 . . . 2 . . . 3 . . . 4 . . . 5 [Societal Order]

You could picture this as a 3D model, but I'm not competent enough with 3D modeling to give you a graphic much above crayon level. So, you'll get it as coordinates: [Statute] (1, 0, -2).

Elitist-Democratic: There is a disturbing tendency in the American judicial system to move toward autocracy. This seems to happen no matter the political leanings of those passing laws and it's understandable behavior.  Juries are messy and the ultimate indicator of local democratic decision making. The best form of this would be a jury finding innocence-guilt and, if it finds a defendant guilty, setting the sentence. And that perturbs just about anyone in the legal system from lawyers to judges to legislators. Juries are inefficient, inconsistent, and consider factors they shouldn't no matter how often they're told not to. Their primary sin in the eyes of the legal elites is that they are not a controlled, predictable factor and everyone hates that. A 5 here would be a system in which juries are a default that has to be waived by both parties and the judge, juries sentence, and even upon a plea of guilty juries sentence in serious crimes (rape, murder, robbery). A -5 here would be a system in which juries are theoretically allowed at the behest of the defense only, but for all practical purposes are banned by a combination of laws, practices, and procedures. Virginia's current location on this scale is probably somewhere between a -3 to -4 (and I doubt many States are different). Very good in theory. Withering on the vine in reality.

Defense-Prosecution: Pretty self explanatory. As a side note, let me say that in order to avoid any bias, I used a random number generator (1-5=Defense; 6-10=Prosecution) to choose which would be positive and which would be negative numbers. I even went best three out of five (Number Order was 8,7,8,3,5).

Individual Rights - Societal Order: While these two don't necessarily oppose each other, in every society they are going to conflict at some point. Thus, they make a useful semi-dichotomy.


Let's test this out by running Virginia's brand new jury selection law (voir dire) through it. § 19.2-262.01 is a law which generally repeats much of the normal processes already used, but hidden in its core is  this gem:
The court and counsel for either party may inform any such person or juror as to the potential range of punishment to ascertain if the person or juror can sit impartially in the sentencing phase of the case.
This overrules a Virginia Supreme Court decision that rejected this as an obvious call to jury nullification. Those against this law point toward that conclusion. Those in favor tend to avert their eyes, grin, and assert that the second part of that sentence is for real and not a rice paper thin excuse. And then there are the truly dedicated superprosecutors who tell me I'm an idiot, rub their hands together, get malicious grins, and start muttering something about "whitherspooning" - not that I have the vaguest idea what they're talking about (some of you guys are slightly scary - and you, the guy in the back from Pitcairn County, stop cackling - no cackling is allowed on the blog).

Anyway, I rate this part of the statute § 19.2-262.01 (5,-3,-3).  

[5] You can't get much more democratic than to give information to a jury that has nothing to do with actual guilt or innocence and allow them to have it to nullify if they disagree with the punishment assigned the crime. 

[-3] Despite the joke above, does anyone actually believe that a judge will allow extensive whitherspooning in a theft case or a DUI? This will play out most often in the defense's favor in the form of jury nullification.  

[-3] Order would call for the determination of innocence or guilt to be decided without any collateral issues coloring the decision. Telling the potential sentence introduces a factor that will either be neutral or break in favor of the defendant that has nothing to do with whether the defendant committed the crime of which she was accused. It's not exactly a constitutional right, but it is a statutory right awarded to the defendant by the General Assembly.


Next, I'll try to find enough time to do this in future posts for the proposed statutes of the August session of the Virginia General Assembly.

26 July 2020

Purposeful Confrontation in Northern Illinois City

I was looking for information about proposed social programs which are being proposed to replace police departments and this popped up. I think it might have been because of the very last question where the Superintendent says Chicago needs both.

This is last weekend. The attackers came with a shield to the front and overhead and weapons to bombard the clearly unprepared Chicago police officers. It's hard to say how many people are involved in the attack, but it looks like more than the officers on site. The objective appears to have been for the attackers to bombard the officers from behind their shields in order to get the police to do something that could be used as propaganda.

24 July 2020

Does the ADA Override a Governor's Mask Requirement?

If you've talked to anyone about masks (or gone within a mile of social media) since they became the latest thing that is going to save us all, you've heard several arguments for and against their effectiveness. To be clear from the outset, I think they are an effective tool for stopping someone with congestion who is coughing, sneezing, or having nasal discharge from spreading the disease.1 I think when they are used by the asymptomatic they do little to keep anyone from catching a disease and are a long-tail solution with minimal effectiveness.2 However, it doesn't terribly bother me when I wear one in public. If the irrationally fearful are soothed somewhat by an asymptomatic person (me) walking past them wearing a mask at a grocery store that I know probably only changes their chance of getting the disease (were I infected) from something like .00003% to something like .00001% 3 then I'm okay with giving them a little respite from the fear the media has done its level best to drum up and drive home every second of every day.

That said, let's address the argument that's now being used to support their use. (1) You have a right not to wear a mask, but (2) a business also has the right to exclude you for not wearing one. That's true as far as it goes, but leaves out the third element: (3) It's still a governmental action if the government requires the business to do it. That third step changes this from something under trespass law based on personal preferences of the business (no one wearing Steelers gear may enter this store4) to the business acting as government's enforcement arm (sin tax imposed by a State on anyone buying Steelers gear, but collected by the merchant). A day to day customer may not care about the difference; all that's really pertinent to him is that his shopping experience has had burdens placed upon it. However, understanding who is requiring the wearing of masks makes a difference in understanding how far the mandate can go.5 Your mandate comes from your State government and it's probably from your governor speaking per ipsum without the specific approval of your legislature.6 The State government can hide its individual mandates by requiring private businesses to enforce its mandate, but the mandate is still a State government mandate.

And therein lies the rub. People and businesses (1) know the federal government's laws carry more weight than the States' laws7 and they (2) know the Americans with Disabilities Act (ADA) exists. Businesses have a positive requirement under the federal law and regulations to accommodate people with disabilities. They are also not allowed to inquire as to the nature of a disability.8  For public accommodations - such as a store - a disability includes being "regarded" as having an impairment that significantly limits a life activity.  28 CFR 36.105.  The federal government requires "disability" to be given a broad interpretation. 28 CFR 36.101(b).

Faced with a preemptive federal law, many businesses are not stopping anyone who enters their stores without masks. They are assuming that the unmasked person has a disability which the business is not allowed to ask the unmasked about. It's also amazing how quickly I heard people saying that if questioned they would pull out the disability card and refuse to answer what their disability is because the question is illegal to ask.9  A lot of people and businesses are applying the ADA as they understand it with an understanding that it overtops any directive the governor can dictate that businesses require people to mask.

It appears so - assuming the courts operate in a dispassionate manner, interpreting the law strictly without letting themselves be influenced by the ongoing panic or politics. On the other hand, the ADA is supposed to make businesses accommodate disabilities and 30 out of 35 customers at a store not wearing masks isn't accommodating disabilities - it's 30 people taking advantage of a loophole to avoid a dictate from the governor. It ends up being a questionable loophole provided by federal regulations against questionable dictates being mandated by governors without specific backing from their legislatures.

Do I expect to see big lawsuits about this? No. I do not. Let's be honest. On the one side you have governors who are engaging in health theater. They aren't going to start shutting down Wal-Marts and grocery stores. On the other side, the companies with enough money and resources to fight something like this in federal court are supremely uninterested in doing anything other than making money and protecting themselves against lawsuits from people with actual disabilities. Sure, were they to deny entry to a person with COPD or heart issues because they weren't wearing a mask the companies could face a lawsuit of their own, but their argument would be that that person is endangering himself by simply being at the store. And the odds of such a lawsuit getting anywhere before all this fades away are low indeed (federal courts consider snails to be speedsters).

That fact renders this a mostly intellectual exercise for lawyers. For regular persons its just another gubernatorial imposition which quiets the strident and is at best tolerated and at worst ignored by the majority. At least this time it's a relatively minor imposition.10 

1 This is the much lauded person urinating on you scenario we all heard when people were first pushing masks. No pants means the person hits you. You panted means it provides a slight barrier before soaking through. Pants on him stops the fluid from ever reaching you. The scenario is true as far as it goes, but it only makes sense if it assumes incontinence. Otherwise there is no threat of you getting wet. It works the same way for sneezing and coughing.
2  Think your governor is implementing the best available solid, rational, scientific solutions? Then ask yourself why none of them have banned air-conditioning. Viruses die in heat and humidity. COVID-19 has been proven to follow the same pattern. Human beings can survive without air conditioning making our spaces cold and dry. Some of us are old enough to remember the days before AC when we all had to make do with *gasp* fans and iced drinks to survive the Summer. If we banned AC from public accommodations and homes of anyone under 60 it would likely make a bigger dent than masks. You think any governor is going to be brave enough to do this? 
3 Those numbers are WAG's folks. Anybody who tells you that they can give you accurate numbers for an uncontrolled situation such as this is full of bunkum.

4  Clearly, I am only using this as an example because some places ban sportswear because gangs have been known to wear sports clothing to indicate their affiliation, not because the Steelers are evil incarnate perhaps only surpassed in their ghastliness by the St. Louis Cardinals.
5  Please note that I am not addressing the various arguments that the mandate itself is a burden on the constitutional rights of individuals. Of course it is. Almost any action undertaken by government burdens an individual's constitutional rights. The question is whether the burden is so much that it is not allowed and I'm not addressing this question today.

 6 No, will not opine on the legality of this in each State. There are 50 States for goodness sake. I know I don't have much of a life, but even I haven't got the time to look at the constitutions and laws of all fifty States and opine on each.

7   "This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding." US Constitution Article VI.  This is expanded upon by the preemption doctrine which says the if federal law conflicts with State laws the federal law shoves the State law to the side and is the law that applies.

8  See 29 CFR 1630.13(a) (cannot inquire about disability before offering a job), & 29 CFR 36.302(c)(6) (cannot inquire about the disability of a person entering with a service dog). Arguably the latter forbids the question entirely: "A public accommodation shall not ask about the nature or extent of a person's disability." Even if it doesn't it's a clear indicator of where the law stands.

9  I live in the land of former coal miners. Heart problems, lung issues, and long term physical injuries have given a lot of people a working knowledge of disability law.

10 And, judging from what I see, one that has faded fast. I imagine there are places where it may be strongly enforced and followed, but where I spend my time there was a surge in use immediately after our governor's dictate which fell off in days. Go to a gas station, fast food restaurant, or your local grocer and the only people you see wearing masks are the employees and a good number of times they're following the governor's example and wearing them under their chin.

15 July 2020

A moment in Court: I Decline!

Jane Smith is having a hearing to determine whether she is competent to stand trial and she demands to speak to Judge Greene. It wasn't my case so I didn't see the whole thing, but it caught my attention when I walked into the courtroom and Jane started talking about the Judge's ex-wife.

Judge Greene's head bobs back and all the attorneys in the courtroom look over at Jane and then up at the Judge. For her part, Jane doesn't even notice. She just starts describing the atrocities that the Judge's ex has done to her in the jail. After a little of this Judge Greene gets his feet back under him and interrupts Jane.

"Ma'am, I don't have an ex-wife."

This, of course, bounces right off Jane and she keeps going. For the next fifteen or so minutes I'm walking in and out of the courtroom trying to take care of my case, but each time I walk in Jane is trying to convince the Judge that he has an ex-wife, she works at the jail, and she has been doing terrible and strange things to Jane.

Finally, things start to wrap up. To absolutely no one's surprise, the Judge finds Jane incompetent.

"Ma'am, I'm ordering that you be transferred from Pitcairn County Jail to Better Minds Mental Care Hospital for treatment to restore you to competency."

"I decline."

The Judge had started to write some notes so his decision could be reduced to a written order, but at Jane's statement his head comes back up looking bemused.

"Excuse me?"

"I decline to go to Better Minds."

Up to this point, the Judge has been remarkably calm and patient considering the fact he just found out that he has an ex-wife who is apparently tormenting inmates at the local jail. Now he looks like the patience might be slipping a little bit.

"Ma'am, I can't force you to cooperate with treatment, but you're going to Better Minds. If you don't cooperate you'll probably be there longer than you need to be."

"I decline to go to Better Minds and I decline any treatment."

At this point, I have to leave the courtroom to deal with some absolutely vital matter (probably had to sign some discovery order or something). I never saw how the case ended exactly. However, I have to say that the "I decline" defense is a novel and interesting one. All sorts of innovative uses come to mind. 


Judge:  For the crime of bank robbery, I sentence you to 20 years in Black Plague Supermax Penitentiary.

Defendant:  I decline.

Judge:  Ummmm . . .  Okay, how about 10 years at New Hope Medium Security?

Defendant:  I decline.

Judge:  Okay, look, I have to sentence you to something. How about we take advantage of our Canadian prison exchange program? You spend two years in a Canadian penitentiary where they feed you caribou steaks and sauteed truffles while apologizing to you every day because the unenlightened bank tellers couldn't understand the robbery from your point of view and how it wasn't really your choice but a reflection of societal failures? How about that?  I do have to warn you that Canadian prisons are infested with house hippos and you will probably be forced to eat poutine, which is considered cruel and unusual punishment here in the States. Still, most people think that's balanced out by the daily hockey games and availability of maple syrup for every meal.

Defendant:  Yeah, okay. I can take that.


I think any defense attorney who doesn't recommend this exciting, new technique to their client may be committing malpractice.

13 July 2020

2020 New Virginia Criminal Laws

Before you watch, open New_Laws_2020(a).pdf . If that link doesn't work, go to kenlammers.com and under New Laws open the file that says New_Laws_2020. You'll need it to understand what I'm talking about. I start at the beginning of the document and work my way through to the end.

Sorry that the sound is out of sync for the first twenty or so minutes. I've tried to fix this for a couple hours with different programs and eventually gave up. At about the twenty minute point it fixes itself.

03 May 2020

COVID-19 - The Wind Up and the Screw Ups and The Refusal to Lock Down

This is my last entry about Coronavirus/COVID-19/SARS CoV-2. I kept trying to think things through and look for the best sources I could find for actual statistics and studies. This got responses which ranged from "Look at NYC, you idiot! We're all doomed if we sniff the air outside our house!" to "You want to kill everybody's grandma just so you can go to a movie!" and have gotten more and more strident as the original sources and models failed and it became clear that, with the probable exception of NYC (the city, not the entire state), the reactions across the US were overreactions taken without considering the massive damage they could cause.

Mind you, if any politician worth his salt is told by the Imperial College that 2.2 million Americans are going to die if nothing is done and by his own federal government that up to 240,000 will die even if we lock the country down under quarantine, he is going to act. And by and large they did. They did this on blind faith and without considering the how massive the damage their solution could do long term.

I don't blame them for this. Garbage in = Garbage out and they were fed garbage. The impetus came from a source we now view as less trustworthy than expected. A lot of the reaction came from ignorance; we just hadn't studied the disease enough to know what we were dealing with (we still haven't even though the picture is clearer). And finally, they were told that they had to act NOW! The fact that some of them didn't and got better results is more than a little amazing.

The Imperial paper turned out to be mostly fiction. And it's our experts' fault for believing it. They took the paper at face value without considering that the man who produced it is known for making extreme predictions that at least one prior time led to economically devastating consequences.  In 2001 his flawed modeling for a foot and mouth breakout led to the destruction of 6,000,000 animals in Britain destroying the rural economy. That same year, he predicted 136,000 deaths from Mad Cow Disease over a period of decades - there have been 176 deaths in the United Kingdom since 1996.  In 2006 he predicted up to 200,000,000 deaths from the bird flu - the total number of deaths between 2003-2015 was less than 500. This man does not need to be the person upon whom governments depend to set policy. It's not surprising that with a beginning based on imaginary numbers the models crashed and burned - again and again.

Other facts surfaced. Some were predictable. One, the government's report that the virus, SARS CoV-2, dies when exposed to heat and humidity is similar to its predecessor, SARS CoV.  Another, that the disease is primarily dangerous to those with pre-existing medical conditions and the elderly (CDC: 49,701 deaths 55 years or older / VDH: 558 deaths in Virginia 60 years or older) is consistent with what happens with many viruses (CDC: similar to "recent high severity influenza seasons.")

Many other facts were unusual. The fact that it barely affects school age children and has a mortality rate that is, with a few very far out outliers, 0% is not something that was expected (CDC: 12 deaths in US under 14 years  / VDH: 0 deaths in Virginia under 20 years). It also seems that, unlike the flu, children are unlikely to spread the disease (Australia / Switzerland / United Kingdom). Also, the fact that the stay at home orders have not accomplished the results promised has been shown by a growing number of studies once antibody tests became available (Heinsberg: 15% infection / Los Angeles: 4.1% [28-55% higher than reported cases] / NYC: 21.2% / Chelsea [Boston]: 32%).

To be fair, I haven't been the best prognosticator either. I thought the resistance to the various governors' orders would start sooner and that the governors would try to hold out until they were getting weather in the 70's to make viral spread more difficult and help avoid the spike the media is working up everybody's fear over (personally, I thought the disease would hang on in various states until the temperature started hitting 70's every day in that state). While there were plenty of people passively resisting the orders, more active resistance didn't start until recently. As to the end of the semi-quarantine, I think the pending economic collapse of the medical industry, petroleum industry, the various state unemployment funds, etc. scared them into quicker action. None of the big dominoes has fallen yet, but they can see them starting to lean and it scares the living daylights out of people in charge. They sure as heck weren't motivated by the damage they have done to millions of small businesses around the country; there the general point of view seemed to be "Who gives a bleep about the kulaks?"

So, where are we? Well, we've set a course. We will come out of semi-quarantine in the next month or so and wait to see if the pressures against the economic suicide of going back into lockdown are enough to counterbalance the panic which the media will gin up with even the slightest spike. Assuming we don't turtle back up, the next worry of everyone will be that COVID-19 / SARS CoV-2 will hit again in the fall like the flu or the common cold. That's not really consistent with what happened with SARS CoV, but of course we'll never be able to prove it won't happen until we've gone through the time frame.

Of course, assuming things wind down and all the predictions of doom come to naught, next will come the claims of victory and that the lockdowns saved us all. With that in mind, let's look at what actually happened.

Comparing Non-Lockdown to Lockdown and the Worst

 Method: To avoid getting told I was cherry picking or data mining, I looked up a map published by the NYTimes that had States which had never had a lockdown and States with shorter lockdowns (as well as the remainder who were locked down). I put both of those groups into the list I was checking. Then, I added all the States about which I remembered there being big stories about COVID-19 being a big problem. Finally, I added Virginia and all the States bordering her including D.C. Then, I broke them down into the 10 States that suffered the least harm, the 10 States that suffered the most harm, and leftover States. Here are those charts:

States That Fared Best
States That Fared Worst
The Remainder
And here's a map of it:

All Greens=Fared Best / Red=Fared Worst / Lt Grn=No Lockdown / Lt Grn Dots=Shorter Lockdown / Purple or Purple Dots=Remainder States

Looking at it, here's my hypothesis of three factors which I think probably combine to make this disease bad in certain locations:

1. High density population area.
2. Significant use of mass transit.
3. Colder temperatures.

Of course, like all things of this nature, that's a simple answer subject to all sorts of variables depending on each State's particular circumstances. For instance, New York seems to be the only place that required nursing homes to admit COVID-19 patients and purposefully moved COVID-19 patients into nursing homes. However, if you step back and look at the trends, each has a city with a serious mass transit system (except maybe Washington State). All but two of the States are north of that line which starts at the bottom of Virginia and goes across most of the United States. All of them have high density populations concentrated in older cities. The one which most breaks the model is probably Georgia where Atlanta seems to be a more modern suburb dominated city with people driving their own cars and it's clearly Southern (admittedly this is all based upon impression - I have not done in depth research into the city).

Conversely, the States which have fared better haven't done better because they are filled with saints. They are generally States where development has occurred in more modern times and people drive their own cars rather than use mass transit. Their population densities tend to be a lot smaller. And the ones without lower population densities are in the South. Texas, Tennessee, and North Carolina all have major metropolitan areas, but their populations are more spread out and suburban and the vast majority of people drive themselves rather than use mass transit.

It's not a perfect model and like all things in this sort of non-testable area of study it can't be proven or disproven entirely. All you can really do is step back, look at the big picture, and look at trends. These seem to be general trends that match what has happened in the US. Admittedly, they come first from an examination of NYC with its massive overpopulation, overcrowded mass transit (which city officials insisted was safe), and temperatures topping out in the 50's or lower when the disease ramped up. However, the same factors do seem to apply generally across the country.


And, that's it. No more COVID-19 discussions unless something really, really interesting happens and I can't help myself. Which, once we open up and I can start working again, I hopefully won't have time for.

14 April 2020

Lock Down: Let's look at the Results

The most accurate method for measuring outbreak of COVID-19 is the number of deaths. It can still be inaccurate if some are missed or the there are deaths included which are "presumptive" or where a primary cause is ignored to blame the disease. However, it is better than almost any other. Tested positive is probably the worst because it depends on how many tests are available and how they are used (there will never be one test for all 327,000,000 of us).

I live within an hour of five States. Tennessee, got slammed for staying open longer and not coming down as hard on their citizens as other States. Kentucky has been the darling of those who think shutting everything down is the proper model. There was even bit of fluff that spiked in social media and some news sites comparing number of cases in Kentucky and Tennessee to make it look like Kentucky has done better.

Here's a chart of absolute case numbers (current as of 13 April):

Population: Va-8.5m, Tn-6.8m, Ky-4.5m, NC-10.5m, WVa-1.8m

Here's the chart by death rates in each State:

Are lock downs working?

12 April 2020

Latest COVID-19 Number Boosting in Virginia

Changes the Virginia Department of Health has been making in Numbers of Cases from day of first showing symptoms - Click to Enlarge
Fourth time I've checked. Fourth time the Virginia Department of Health has increased the numbers.

The numbers of new cases the Virginia Department of Health has reported as of 12 April 2020. The last two weeks look about the same, so I checked them and it turns out the latest week averages slightly more:
Weekly Average of New Cases: 138 to 185 to 200
The chart was done with a week measured as Saturday thru Friday, because apparently people aren't getting the disease over the weekend. More realistically, they aren't going to get tested or being allowed to test if they go and then they are being tested on the next couple days and causing an artificial jump on Mondays and Tuesday. Therefore, those days should be balanced out with the days of the immediately proceeding weekend.

As I said in my last post about the lock down, it's really difficult to know how much of more recent numbers are from more availability of tests. This makes the third week's jump of 15 extra cases on average per day a questionable figure. We'll have to see how the numbers play out for the next week (the stuff in the gray on the chart above).

VDH is still not offering explanations.

10 April 2020

NEVER Agree to "Universal Diploma Privilege"

I'm tired of seeing people trying to take advantage of the current medical situation. We've all seen it. An example pertinent to the lives of the criminal attorneys has been the attempts of convicts to get out of their already imposed sentences because of SARS CoV-2/COVID-19/Coronavirus. Not because the disease is in whichever jail or prison they are in - just because the disease exists.

And the attempts are happening outside the criminal justice system too. Here's one where a law professor wants to do away with Bar exams in general and is using the disease as an excuse. He wants everyone who graduates from law school to be able to practice (I guess everywhere?). This has been something law professors and schools have floated in recent times and maybe further back, but it only came to my attention over the last couple years. Why do they want to do away with the Bar exams?

Because law schools and law professors are not, as a whole, fans of the Bar exam. Why not? Because it's the only true metric in measuring the kind of student they're graduating. Sure, a top-five law school might be counted on to graduate potential top tier lawyers, but that's a function of their ability to pick and choose exceptional students for whom law school provides little improvement in their chances of passing the Bar exam. Somewhere near 100% of those students could probably take a bar prep course and pass. But what about schools farther back in the pack? The Bar exam and the Bar exam alone is the only way to see how a law school is doing. If the number of graduates from a particular school passing the Bar is too low it loses its accreditation with the ABA (possibly the only worthwhile thing the ABA does) and once that's gone the school is done.

So once you're not looking at Harvard or Yale, Bar passage rate is the important delineator between a good law school and a bad one. Law schools further down the rankings will take a certain amount of students who are marginal when it comes to passing the Bar. How well does that school handle this? Does it concentrate on making sure its students understand basic areas of the law and reinforce that understanding? Or does it push courses concentrating on Literary Critiques of Supreme Court Decisions and the Law According to Far Eastern Religions? The former is very important; the latter would probably be more fun. And you think a law professor who's been teaching Contracts and Property for the last thirteen years wouldn't like to do something more interesting than explaining the doctrine that "and" and "or" can be interchangeable in certain contexts for the 57 thousandth time to students who can't grasp that it's not an all or nothing proposition the first ten times he explains it? If it has to get students past the Bar you are more likely to see the former and graduate students who have a clue when they start practicing instead of students who can discuss exactly and in detail what Shakespeare meant by "First we kill all the lawyers" but couldn't define a larceny to save their lives. Law schools and professors would rather they didn't have to do the boring stuff, or at least not be required to do it well, and the only way they're let off the hook for that is if there is no standard. And the only way there's no standard is if there's no Bar exam.

And, let's face it, law schools are entirely unnecessary. They are a profit center for universities which don't provide much for a student. There were two prior models which worked just as well and didn't economically punish the student nearly as much for wanting to practice law. At one time you could get an undergraduate law degree. I often see this called an LL.B, but I think US colleges may have been looser in their nomenclature. I've only met one person who did this and he was the founding partner at a law firm I interned with during law school. He said his undergraduate degree was called an LL.M, which in modern times would be a fairly useless master's degree offered after graduating law school. Anyway, there's no particular reason a law degree couldn't be gotten as an undergraduate degree with the same rigor applied before (LSAT) and after (Bar exam) except that schools make less money that way.

The second way can still be done in some States (including mine). That's "reading law" which is basically apprenticing with a lawyer for a certain amount of time and then being allowed to sit the Bar exam. I've known several people who've done this and practice law quite competently. We could fall back on this sort of system quite easily, although if I were to set it up as the primary method, I'd probably want an initial entry exam (say, you must get 80% on an LSAT) before you could start reading law so that it doesn't get abused and maybe a limit of an attorney only being able to apprentice a reader one at a time, three times in her life, and only once every five years. There's no reason this can't be done.

And yet, we're stuck with law schools.

And if we're stuck with them, there needs to be a metric to measure them by. The success of the students seems to be a pretty good standard.

Oh, and stop trying to turn a perceived disaster to your advantage.

Checking the Lock Down's Effect

The lock down model is confusing at this point:1

Red= Should have been, Purple=Infected Prior, Green=New Infected
Prior infected should have increased for five days after lock down (avg incubation period) and then dropped off. I didn't make the drop off entirely linear, but had them drop off more steeply closer to the twelfth day when 97% of prior infected should have shown symptoms (days and percentages from here).  The new cases I put in start with 16 and add 16 more to the new cases each day which was an average number I came up with for the increase in new infections from 10 March onward. I could have used the median of 12, and think that might be the correct number to use, but went with 16 out of an abundance of caution. I did make the original line upward for prior infected add 12 more to the last number of newly infected per day because that was the average from 10 March before that date.

YES, before someone tells me that I don't know what I'm doing and should have used "the advanced confusion model of non-understandable mathometrics", I concede that there is no way I could make a perfect model. It's flawed, but close enough to further intelligent discussion.

And, here's the rub: the numbers end up about where I projected they would, but that feels an awful lot like an anomaly. I suspect that if the red and green lines continue to project upon their merged path they won't correspond with future data. However, that's at best an educated guess. I'll have to recheck the numbers in a few days.

Interestingly, the actual numbers didn't follow what they should have. They should have gone higher and then dropped back down. The first 5 days go up until the weekend and after the weekend it's at a higher level. Then it flattens. This could mean the post-weekend numbers are inflated and should really be lower (some cases should shift to Saturday and Sunday) and, if accurately measured Monday and Tuesday would have smaller numbers and reflect a slight growth for the weekdays. No matter whether that is true or not, it seems to indicate that the green line should be flatter, but that would mean the final result would not be consistent with the numbers at the end. Is the green line subject to the nigh unto mythical "exponential infection rate?" If so, numbers should continue to rise steeply into the next week. Again, something that needs further future data to develop.

The biggest flaw in all of this is the fact that increased testing has become available. This results in its own, unmeasurable bump in the numbers. I don't know how much to factor in for that in. For goodness sake, some places have been offering drive through testing and the experience where I'm at is that it's moved from impossible to get tests to available if needed. So, it almost goes without saying that there's a significant bump except I have no way of knowing what it is and factoring it in.


1  This was moved from the back end of the previous post because the two are about different things.

Are the VDH's Numbers Reliable?

ADDENDUM: Looking through news articles, it appears that VDH is adding numbers from senior care residences in the Richmond area (that were hiding them?). At least, that was the explanation for the sudden jump in the number of deaths (which I assume are being diagnosed post-death) and that means the (hidden?) infections occurred at an earlier time. Not sure that explains the entire boost, but it is the best explanation I can come up with. As I've said previously, this is not something fitting a conspiracy theory because there's nothing to conspire toward. The medical situation is already receiving priority over fundamental constitutional rights and an economy being seriously damaged. There's nothing to gain.


I have long had a rule: Before you decide something was done in malice you have to overcome the presumption that it is the result of error, stupidity, or incompetency. It's a good rule and proves true far more often than not. And then there's what the VDH is doing with it's COVID-19 numbers:
Click on picture to get better view
 Mind you, as someone who's more than a little skeptical about all the things that are being done, the newer numbers tend to favor things as I conceive of them (linear growth, no real impact from "social distancing"). But, I'm frustrated by the fact that the numbers keep changing. I'm not including the numbers in the VDH's gray area where they say numbers are subject to change and I'd even understand number changes in the week behind. However, these changes keep happening further back. Today's change went back at least as far as 28 February 20. That's 41 days ago. Any changes in numbers needs an explanation on the page or somebody might think you're past the presumption above.


Model Review moved to its own post.

08 April 2020

Oops, They Did It Again : Virginia Department of Health Boosts the Numbers More

Okay, so I check the numbers again and again they have boosted numbers again. The first chart shows the three dates I checked and the second the difference between the first date I checked and the the last. Click on it to make it larger and more readable.

Before I get "Ken, you're being a conspiracy theorist", I really can't think of a plausible conspiracy to theorize about here. After all, what are they conspiring toward? The medical threat is already riding roughshod over both our constitutional rights and economic interests. They've already run the board.

I know they throw out the typical, boilerplate, don't hold us to what we say excuses under the chart and I'd understand if there was a correction on a single day. I'd even understand if there was a one time correction for a number of days accompanied by an explanation that someone had been hiding reports or misdiagnosing it as flu. Neither of those seem to apply. At least, I can't find an explanation anywhere.

Anybody know what's going on?

04 April 2020

Virginia Department of Health Boosting Numbers?

About once a day I check the Virginia Department of Health site to see what the numbers look like. I've looked at it enough that I had a general idea of what the graphs look like.  Then I looked today and something was very different.

Chart - 02 April 2020
Chart - 04 April 2020
Everything got boosted numerically. Lots of increases in numbers - in numbers that are supposed to have been solid, reliable, we've nailed these down numbers.

The new chart is closer to the model of what should have happened after lock down:

Analysis of 02 April Chart
Analysis of 04 April Chart
There are still anomalies, but the new numbers seem to more closely follow the model (please note that I changed the downward slope of the red line to one I believe would be more accurate in the 04 April chart).

My main question is where the new numbers replacing the old "reliable" ones came from? The Virginia Department of Health doesn't explain other than a vague statement about investigating a facility "including intensive testing." A quick check of the papers reveals that they seem to be showing outbreaks in senior living facilities in the Richmond area, but the number the papers are reporting don't seem to reflect the jumps in numbers above.

Assuming our Department of Health isn't padding its numbers with imaginary cases (unlikely), this just supports the one of the conclusions in my last post. Numbers of cases isn't a reliable metric because it is subject to the amount of tests and how they are used and maybe reporting errors or obfuscation?

I really do want to know where the numbers came from if anybody knows.

03 April 2020

Coronavirus / COVID-19: Is the Lockdown Effective?

Most people show symptoms of COVID-19 at around 5 days and 97% show before the end of 12. Consequently, you would expect the number of new cases showing symptoms to continue to spike after a lock down for 5 days and then to drop off for the next seven. The numbers wouldn't drop to 0 because there would be new cases that didn't pre-exist the lock down which would start to show up two days after the first day and since we are in the upward phase of even the flattened curve would rise even as the lock down proceeds. As of the second day onward there would be more cases than those merely including the previously infected and the difference between the two numbers would grow, but after the 5th day both the number of previously infected newly exhibiting symptoms and the entire number of those newly exhibiting symptoms should drop.

Let's see how that played out in Virginia. Remember, that the 17th of March was when the governor closed down restaurants, theaters, and gyms. More draconian and questionable actions would come later, but the 18th was the date when things really began because the closure of restaurants was the biggest chunk of the social distancing requirements. Let's see how things played out:

Orange is the line which should have been the number of people infected prior to the lock down on the increase for 5 days. As is obvious from above, the number of newly symptomatic infected was on an upward trajectory prior to the governor's lock down. This should have continued through 5 days as more people were revealed to be infected. Then, the numbers of newly symptomatic that had it prior to the lock down drops as is represented by the yellow line until the end of day 12 when almost all of them had developed symptoms.

The green line starting two days in represents those who were not infected when the lock down started, but became so thereafter, and the red is everyone who is displaying new symptoms whether they became infected before the lock down or after.

It's a crude diagram, and I don't claim it to be 100% accurate (I have extrapolation, not actual numbers). Still, it gives you some food for thought because nothing in there is going the way it's supposed to. Almost immediately upon the lock down there was a significant drop in numbers followed by a spike when the time came for a drop. Huh?

I suspect that this may have more to do with testing availability than it does with the actual spread of the disease. Perhaps some places had a lack of tests for a period of time and then when tests became available there was a surge of people taking the test? It's the best explanation I can come up with. Yes, I understand that statistical dispersion or variability (or whatever the correct term is) is out there. I'm not now nor never will be Bill James, but I get that numbers become more accurate with a larger sample size to find medians and averages and a particular day is generally meaningless. However, that's the sample size we have and it does seem to show general trends and they don't follow the path they should.

On the other hand, by eyeball the average from 17 March thru 25 March appears to be about 100. Could the level of spread have plateaued? It's still not what should have happened, but it's an interesting possibility.

In reading various articles over at SSRN, I've run across the assertion that there is no way to measure COVID-19 except by the number of deaths. The rationale goes something along the lines of you can't trust the number testing positive because that is reliant upon the number of tests available and how they are being utilized - whether to chase down infected or placate some guy who shows up at the hospital with the sniffles. You can't rely on the number of hospitalized because different places will have different standards for hospitalization. If you are in a major metropolitan area with 1,000 people hospitalized with the disease the standard for admittance is going to be higher than it is if you are the only person with the disease in a three-hundred mile radius of your town. This leaves us with only one dependable metric: how many have died?

I think there are probably some flaws in that. On the other hand, as distasteful as it is, when I look at the chart above I think they might have a strong argument.

02 April 2020

Coronavirus / COVID-19: Chicken Little, The Disease Itself, and The Cure?

The Skepticism

One of the problems with overstating things and fear mongering is that no one trusts you when the trust is needed. We're all taught at a young age The Boy Who Cried Wolf, which teaches us that people won't believe someone if they constantly state that a threat is upon us when it isn't, and Chicken Little, which teaches that we should be suspicious when someone tells us the sky is falling because they may just have been hit on the head with an acorn. Herein lies the problem surrounding the coronavirus.

(1)  Every couple years or so, the press and elements of the medical establishment yell that [Disease of the Year] is going to kill us all!  I know that every couple years I've seen frantic meetings followed by directives to do X or Y because [Disease of the Year] was on the way. And nothing happened. Typically, the disease had a significant impact on another continent, but didn't get across either ocean to America before it was controlled or died out.

(2)  And the specifics of this year's [Disease of the Year] have been chicken little'd too. The promised death rate of 2%-4.5% turns out to be .66%. They act as though the rate of spread through the community is incredible like the measles (between 12-18 persons per infected) when it's actually more along the lines of 2 people catching it from any given infected.

(3)  And beyond that there's been been the fact that the politically inclined of either stripe among us have been using this as a political tool rather than treating it as a real situation. Early attempts to deal with this were scoffed at by one side while that side was obsessed with something else. Then things flipped and the second side went after the first side for not acting quickly enough to deal with the issue. The latest thing on FB has been a series of pictures showing someone playing golf as the crisis ramped up which were almost immediately countered showing pictures of another someone playing golf as another such threat loomed (but never quite hit). When those involved and interested in national politics are signaling to us that this is nothing more than another tool to gain an advantage over the other side it does not indicate that a situation is serious.

So, if those of you truly convinced this is the end are wondering why the rest of us have been slow to come around, there it is. We've been for years told this time it's for real!, had the current reality exaggerated over and over again, and watched the political among us on all sides signal that it's not enough of a threat to worry about. The people pushing the threat of this disease have squandered large portions of their credibility and the basis for the skepticism is rational.

However, that doesn't mean the disease isn't really here. It just means you are going to have to prove that what you are doing and asking us to do is rational and will not have far worse consequences down the line. For instance, when portions of your State in the East have outbreaks and the West has almost nothing, does it make sense to shut businesses (thereby destroying many unrecoverable small businesses) in the West? Why? You could be right. Please explain with specificity as to expectations in the West and not platitudes, speculations, and fear. Or, some governors are engaging in clear constitutional violations denying the practice of religion in any practical manner in an entire State. Oh, it's necessary? Really? Please explain with specificity why then you are having press conferences with clearly more than ten people in the room when those could be done by a video on YouTube (or if you want to be trendy Zoom). Freedom of the Press? You mean the right that's the the third right in the constitution while religion is the first? And please explain with specificity why going to mosque, church, or synagogue once a week is so much worse then the large crowds that are gathering at Lowes, Wal-Mart, grocery stores, etc. every day, all day long. You are clearly interjecting government very intrusively into religion. Unless you can explain why it's worse than all the things above, why should we trust or believe you? Even then, it might not be constitutional, but at least it would be rational and not based upon an anti-religious bias.

The History

Look folks, I'm not saying you shouldn't act as though this is serious. However, it would be a lot easier if people were just honest and straight forward about this. Yes, it came out of China. Much like other overseas diseases, it looked like fairly minimal restrictions on travel would stop it from spreading to the USA in any significant way. Then it hit Europe (thank you to those countries stupid enough to be part of One Belt One Road) and that meant it was going to get here. Our federal government did not react quickly to a threat it thought was contained and politicians on all sides at one point or another said or did something stupid which we've all seen posted many, many times on Facebook (it's almost painful to open my feed).

The disease started to come to people's attention. Mostly, it was the media banging out whatever story they thought might scare you enough to keep your attention and get views or clicks. Facebook and other social media started to fill with jokes because of the unfortunately named "coronavirus."

Then, the Italians lost control of the virus for reasons no one can understand because it couldn't have anything to do with One Belt One Road. As this was going on, our medical establishment starts to freak out, our press jumps on the bandwagon, and the disease is just about declared to be the Black Death. People, including me, started to express skepticism and ask why we should think this is going to turn out worse than the flu. Generally, skeptics get shouted down rather than anyone making rational arguments and comparing it to the flu gets one shown scorn.

The governors step in at various stages, depending on the State and its actual situation. This is how it should be in a large multi-state emergency because while the federal government might be able to throw a lot of resources at one or two locations it takes too long to react and when the problem becomes too widespread it cannot act everywhere and may consider your State unimportant enough to prioritize it well below others. The governors prove, in general, to be unprepared and flail about issuing general "shelter in place" orders for their entire States that don't seem particularly well thought out or directed toward the solution of anything and will cause millions of dollars in economic damage (instead of quarantining effected areas). But at least they're doing something. Meanwhile, the federal government is concentrating on a macroeconomic save of the economy through legislation and the various bits of pork that legislators can attach to it.

And here we stand.

The Disease Itself

Coronavirus COVID-19 is perhaps closest related in history and genetics to Coronavirus SARS. However, for our purposes an analysis might also want to compare it also with the Spanish Flu. I know it's not influenza (before anyone yells at me) but in some effects it may be closer to Spanish Flu than SARS.

The disease started in China, much like SARS, as a bat virus that transferred to humans probably through an unknown secondary animal. This is an issue in areas of China where various and sundry wild animals are caught and sold in markets for consumption. Due to the normal Chinese reaction of hide, deny, delay, and downplay the disease got out of control. The figures out of China are not reliable, but it's clear they had a massive outbreak that was well spread before serious reaction took place.

Compared to SARS, COVID-19 is less contagious and less deadly. It's capacity to be spread is more like Spanish flu as is its fatality rate (slightly higher in initial estimates for both). The problem is that quite often - in fact most often - people don't realize they have it. That is the major problem. Originally the claim was that for 80% of the population it is at best a minor nuisance if they notice it at all. Another 15% would be bad enough to need oxygen, and 5% would be so bad they would need a respirator. Predicted death percentages were all the way up to 4.5% and settled down to normally seen numbers of 2% - 3%. At this point, it appears that even that is much higher than reality which is now being stated to be at .66%. This doesn't appear to mean that there aren't many people dying, but that there are at lot more people out there who've had it without much in the way of symptoms. The fact that it spreads widely without serious symptoms means that no matter what people tell you, unless we have the national guard patrolling the streets in MOPP4 and shooting anyone who leaves their house, it's going to spread.

It appears that there is a good chance that COVID-19 will die down or out over the warmer months much like SARS and Spanish flu. There are no guarantees of course, but articles I've read over at SSRN seem to indicate it has a harder time spreading when the temperature hits a certain level and the humidity is higher. Trying to pin any numbers down is impossible because they're all writing in medicojibberish and statistiobfuscation (as well as being broad and throwing out tons of sheet anchors), but it seems that somewhere below the North 30th parallel, or in certain "thermal bands" roughly correspondent, the virus did not spread as well during the various outbreaks. This is consistent with flu which has been shown to have a problem persisting the higher the temperature is and in higher humidity period. More importantly, it is consistent with Coronavirus SARS which died out by June of 2003: "high temperature at high relative humidity has a synergistic effect on inactivation of SARS CoV viability while lower temperatures and low humidity support prolonged survival of virus on contaminated surfaces." Page 3 of this paper.

Let's be clear here, we're talking about the viability of the virus outside the human body. A combination of higher warmth and humidity make the period in which a virus is viable outside the body of an infected shorter. If you run up and start snogging your infected girlfriend in 95 degrees F it doesn't matter if the virus would only survive for thirty minutes outside her body because it'll transfer to you in 30 seconds or less. Anyway, the place where Coronavirus SARS was described as surviving longer term in the Summer months? Air conditioned buildings - specifically hospitals.
In countries such as Singapore and Hong Kong where there is a intensive use of air-conditioning, transmission largely occurred in well-air-conditioned environments such as hospitals or hotels
. . . 
It may also explain why Singapore, which is also in tropical area, had most of its SARS outbreaks in hospitals (air-conditioned environment). Interestingly, during the outbreak of SARS in Guangzhou, clinicians kept the windows of patient rooms open and well ventilated and these may well have reduced virus survival and this reduced nosocomial transmission.  Id. [side note: nosocomial means "in hospital"]
Hospitals that aren't taking heat and humidity cautions (adding them) are asking for the spread of these viruses and potentially Coronavirus COVID-19 as well. The rest of us should spend as much time as we can without air conditioning and with our windows open and I specifically mean in 75+ degree F heat. It might not work, but it's probably got a better chance than all this social distancing does.

The Cure?

Best bet? Warmth and humidity. I'd bet this is what a lot of our governors are banking on too. Of course they'll never say it out loud because they'd immediately get jumped all over by the doomsayers and fearmongers. Plus, if warmer weather doesn't prove to be an absolute 100% cure they'd get blamed for that too. 

Still, it's the most logical reason consistent with the actions they've taken. The "flatten the curve" strategy is meant to buy time. There is nothing about it that promises lives will be saved; we could just be delaying the deaths of the same number of people and spreading them over several months. The very first thing we would be buying time for is a break in the disease because of the onset of warmer months. 

If that fails then we're holding on for the medical industry to tool up and absolute medical capability to become more elastic so it can grow to service the need. There's a lot of noise in that direction, but the purpose there isn't so much to save lives. It's to make things easier on the medical industry and medical professionals. As a side effect, some lives should be saved when medical capacity improves, although that may just be wishful thinking on my part because those that die tend to have secondary medical issues and I've not seen anything outside of aspirationally vague statements indicating the level of mortality will be any different. In fact, the major argument I keep seeing thrown out for "flatten the curve" is that if we have as many respirators as the medical industry desires the doctors won't have to triage and deny terminal patients respirators in order to supply them to those with a chance to live.

If you've been paying attention, you've probably noticed the slow push to increase the time of the lock downs. This appears to have come from some report's guess that an eighteen month period would be needed before an inoculation can be developed (if things go perfectly). I don't think our governors want to go there at all. The damage they've already done to their States' economies has been massive and if they keep this up much longer it's going to get far worse. Nobody wants to be the governor who caused generational poverty through the destruction of all locally owned businesses and the subsequent loss of jobs. That's not to mention, how does the government continue to function when the tax base crashes? They don't want it and I'm certain that in their heart of hearts each governor is counting on that warm weather die off.

30 March 2020

How to Make Sure an Emergency is Real

Governors need emergency powers betimes because actual emergencies happen. However, it's also an extreme danger to our rights and liberties. There needs to be a serious consequence to any governor who chooses this path and there aren't really. Anyone who's read my blog and seen some of my FB posts and comments knows I am skeptical of the various governors' accumulating power to themselves and their wielding it as a club rather than a rapier. They have to have these powers during emergencies; we shouldn't trust them with it.

Here's my solution:


Model Code 00001: Limitation on Emergency Powers

When a governor declares an emergency or assumes emergency powers without a declaration, that governor shall be subject to the following limitations:

(1) Should the assumption of powers extend beyond 60 days, or 30 days if it is the second assumption in one year, the governor shall cede his office to the lieutenant governor and not be eligible to hold any elected office in or for this State for a period of five years.

(2) Should a third assumption of powers be made in one year, the governor will immediately cede his office to the lieutenant governor and not be eligible to hold any elected office in or for this State for five years.

(3) In no event shall an emergency extend beyond 90 days without the approval, by majority vote, of the State Senate.

(4) In no event shall an emergency extend beyond 120 days without the approval, by majority vote, of both houses of the State Legislature.

(5)  No time period herein shall be subject to any form of tolling and the date used for each declaration of emergency or assumption of powers shall be counted from the first day the emergency is declared or the powers are assumed, whichever is earlier.

(6)  If any portion of a declared emergency or assumption of power, including its last day, falls within a year of the most recent declared emergency or assumption of power it shall be considered within a year.

(7)  A declaration of an emergency or assumption of emergency powers by any official in the executive branch shall be deemed to have been declared by the governor.

(8) Definitions -
     (a) One Year: A 365 day period, starting backward from first day of the most recent declaration of emergency or assumption of powers.
     (b) A Day: One 24 hour period starting at midnight and including any part thereof as if it were the whole.
     (c) Assumption of Powers: Use of or reliance upon any of the powers listed as available to the governor in a declared state of emergency.


As always, I don't claim it's perfect, but if this or something very similar existed in my Commonwealth I'd be much more receptive to the executive orders my governor keeps popping out every two to three days.

Remember, when the press is in an uproar and the public is in a panic there will be tremendous pressure on any politician to act even if the best call is not to act at all. A statute such as that above provides a powerful disincentive to declare an emergency and would make those such as me much less wary.

28 March 2020

Equating Church with a Hardees Drive Through: Insulting Virginia's Faithful and Violating the Constitution

Up until a few minutes ago, I was writing a blog post finessing the religion question, the Virginia Governor's Emergency Order 53, and its requirement that no more than ten people gather. Basically, I'd written a post talking about how none of the violations of "the right of the people to peaceably assemble" specifically included in the order are either about expressive behavior or class based. Therefore, while the order violates both the 1st Amendment of the US Constitution and Article I section 12 of the Virginia Constitution, the courts would let them get away with it under a rational basis test. The courts allow the government to do just about anything under a rational basis test. I opined that this was done intentionally because if the order included infringements on religion, media, or political activity it would be subject to strict scrutiny and as we all learned in law school, Strict in Theory = Fatal in Fact. Assuming the Governor wasn't that stupid, I was going to opine that the order was not meant to bar religious meetings.

Sure, I knew that someone from the governor's office evinced a stunning lack of constitutional knowledge and told a reporter that churches couldn't have more than ten people in a service. I assumed that was a one off from a person shooting from the hip and didn't reflect actual policy. Because there was no way the Governor would be pinned down espousing a position so far over the constitutional line as to be entirely indefensible. But then someone texted me yet another question about whether they will be prosecuted if they come together to worship God and when I said my opinion was that the Governor did not intend to ban them from their religious duties and obligations - surely not during Lent, surely not in the highest, holiest Christian season, surely not with an emergency order that would ban services during the holiest week of the year and Easter, the celebration of the resurrection itself - the person on the other side told me that the Governor had included it specifically in his FAQ about the order.

And here it is:

What about religious services? Can I still go to my church, synagogue, or mosque? 
 Virginians are strongly encouraged to seek alternative means of attending religious services, such as virtually or via “drive-through” worship. Places of worship that do conduct in-person services must limit gatherings to 10 people, to comply with the statewide 10-person ban.
I'll admit it. I lost my cool more than a bit when I read that. Never mind the serious constitutional line it crosses, the level of insult, ignorance, and arrogance in that FAQ is mindblowing. That answer equates going to church, synagogue, and mosque with going to Hardees. You can get all your business done at Hardess through the drive through window in five minutes that should be all you need to worship God, אדוני ,الله, or whatever the divine appellation is in your delusion.

Oh, and hey guys, maybe you can tell me and the rest of the 240,000 Catholics in Virginia how we're supposed to take Holy Communion virtually? Pretty sure the Orthodox Christians out there have the same issue. And, of course, the 200,000 Muslims will be happy to blow off that requirement that men go to the mosque on Friday. They'll be even happier to blow off Ramadan when it starts next month. No sweat. Of course, the Jewish faith allows worship wherever 10 men can gather, so they should be okay as long as they don't bring their wives and kids, because, eh, who needs them, אדוני only cares about men anyway. And Passover next month? I'm sure being denied their right to worship as a group won't cause any issues with that. Of course, we Christians never make all that big a deal over Easter. After all, it's only the day the Lord Jesus rose from the dead after serving as the sacrifice meant to save us from damnation through sin. No biggie. We can skip it when it comes by next month.1 

Look, obviously you don't believe or you have an academic belief that views religion more as social in nature. That's fine. I'd rather see you on board, but I'm far from a perfect Christian, Catholic, or person so I won't point fingers. Nevertheless, your disdain for the religious and inability to comprehend needs to stop at the end of your nose. Try to at least pretend to understand that the faithful have faith. This isn't just something they do to kill time while waiting for football, baseball, soccer, or cricket to come on the television. It's an expression of love for and loyalty to a compassionate Creator and Sustainer without whom there is no meaning in the universe.

It's a matter of vital importance. It's not a trip to Hardees. 

Constitutional Issues

Both the Federal Constitution and the Virginia Constitution recognize the fundamental right to be free from governmental interference in religion. The very first line of the 1st Amendment in the Bill of Rights guarantees that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof" and in Virginia "No man . . . shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief." In other words, in the USA there can't be a law prohibiting the exercise of religion and in Virginia a person can't be stopped physically from acting in accord with his religion.

Those are nice words, but how do they play out in reality? The courts have two vectors whence they come to analysis in this sort of thing. The first is the fundamental rights analysis. The second is the specific religious rights analysis.

Fundamental Constitutional Right


When a law treads upon a fundamental constitutional right it is subject to a strict scrutiny standard. Strict scrutiny has a test that is sometimes listed as three prongs and sometimes two. Here's a fairly well stated version from Virginia case law:
Laws that affect fundamental constitutional rights, as we have seen, are subjected to strict judicial scrutiny. In order to satisfy such an examination, the law (1) must be a necessary element for achieving a compelling governmental interest. To be viewed as necessary, (2) the classification or infringement must be the least burdensome means available for attaining the governmental objective in question.  Mahan v. Nat'l Conservative Political Action Comm., 227 Va. 330, 336 (1984) (numbers and bolding added).
The second part is broken in two by some to require the law to be  (2a) "narrowly tailored" and to use the  (2b) "least restrictive means." I've got to admit I've always felt those two were redundant.

In any event, it is clear that practice of one's religion is a fundamental constitutional right and infringement would fall under this standard. As stated above, this standard is almost impossible to meet. The buzz phrase used when I was in law school was "Strict in Theory = Fatal in Fact."2

That's almost certainly true here.  The "least burdensome means available" section of the test is going to wreak merry havoc on the Governor's order. Look at this map of Virginia:

In case you can't read the legend, white = 0 infections and light blue = 5 or less. Shutting down religious services across the entire Commonwealth is far from the least burdensome means available to stop the spread of the disease. Perhaps the Governor might want to concentrate his efforts in Northern Virginia and the Peninsula region? Even if closing churches were somehow to be the answer (it's not), then closing all the churches where there are few or no outbreaks is not the least burdensome means. The least burdensome means would be isolating anyone who showed infection and quarantining those with whom she has had significant contact.


Thus, if the Governor wants his shutting down of religion to stand, he's going to have to go looking in the cases specifically applying to religion and find a standard there. As the Blaine Amendments are being pushed off the board as unconstitutional under the Federal Constitution, the standard that seems to be firming up is that if there is a general law applying to all it applies to the religious and religious organizations as well. Thus, murder is illegal so no matter how important you believe human sacrifice is, you can't carve a person's beating heart out of their chest to honor Huitzilopochtli. Nobody else can commit murder therefore you cannot either. More realistically, things like zoning laws apply equally. If an area is zoned for suburban housing no higher than two stories neither a church nor a Wal-Mart gets to buy up a block and build a ten story building. On the other hand, if there are grants available to build school playgrounds the government cannot exclude qualifying religious schools because they are religious. In the eyes of the constitution a religious organization can neither benefit from nor be denied things simply because it is a church. It must be treated just like anyone else.3

 However, this is problematic as well because the Governor has created favored classes. Emergency Order 53, Directive 5 establishes several places where more than ten people can be. Some of these (grocery stores) are obviously needed. Others (lawn and garden stores and pet stores) are marginal, at best. At least one is either just ridiculous or perhaps predatory behavior on the part of the Governor (liquor stores - all of which are owned by the Commonwealth).

The labeling of non-constitutionally protected businesses as "essential" creates people and locations that are favored while leaving the rest as disfavored. It's not terribly constitutionally problematic in relation to the other retailers. It is massively problematic if the government's policy is favoring other members of society while inhibiting churches and the religious.

The Governor's preferential treatment of certain entities over churches might have more oomph to it if the "essential retail businesses" were actually essential. Even putting aside the exception to the ten person rule for liquor stores, perhaps a third of the listed retailers are not essential: pet stores (buy food for Rover at the grocery), lawn and garden stores (it's not vital to trim your hedges), the retail part of gas stations (do you really need to buy that coke and twinkie?), electronic stores (not vital that you buy an iPhone 12), etc. Arguing that any of these deserve and require preferential treatment is a losing proposition. I have every faith that the consummate professionals in the Attorney General's office could find someone in their ranks who could do it with a straight face in a convincing tone of voice. They'd best pray for a pretty dim or biased judge though, because even if they can gloss over the rest of them, there's no way self dealing by declaring liquor stores "essential" passes muster.

But, you say, the courts can just throw out all of Directive 5 and the playing field becomes even again making the order legit. Most of those businesses could survive if they kept the number of people in their stores at less than 11. 

Nope. Look at Directive 9(c).4 "Nothing in the Order shall limit: (c) the operations of the media." And here we have the Governor specifically favoring one part of the 1st Amendment while disfavoring another. There's no condescending suggestions of drive-up journalism or that they could provide their constitutionally protected activity via YouTube (which they would be better set up to do than a church as it would merely be a variant of the job they do now over cable). Nope, you can have fifty people in the room if that's what it takes to do a press conference or the five o'clock news.

To my mind, that's more damning than the incongruity with the favored businesses. This is an example of the Governor deciding which parts of the Constitution are allowed to be exercised in Virginia. If churches, mosques, and synagogues can't have 11 people then there is absolutely no reason the press can. There is no reason for any press conference assuming Governor Northam has an 18 year old intern to tell him how to film and release statements on YouTube (or Facebook if you're desperate). That way the message would be delivered without putting all those people in one room and endangering them all. The same can be done for the nightly newscast. How many people does it take to live stream a YouTube video? Most of the streamers I've seen do it themselves. The really advanced ones have a guy or two to help out. As well, you don't need more than one announcer. They may need more than ten people to produce a show to put out over cable, but they're not guaranteed a particular medium. One announcer, one person running the streaming computer and maybe a person or two for odds and ends. There's no reason to have eleven people in any room for the announcing of the news to the endangerment of them all.

Ridiculous? Maybe. Is it as ridiculous as the First Church of Hardees the Governor shoved at us above? No.

The Governor is favoring the media and disfavoring religion (by specifically "prohibiting the free exercise thereof"). Could this be cured by removing the media's protections from the order? Maybe. Would any governor have the guts to do it? Unlikely.

What's to be Done?

It'll be interesting to see what happens this weekend when thousands of people go to church in defiance of the Governor's ban. I just don't see local sheriff's deputies going in to issue summons to everybody. And if they did, the courts are closed to non-emergency matters until at least 26 April 2020 so nothing would happen. And next week people will be back. When Easter rolls around there are going to be a lot of people who openly defy this infringement on their religion (probably the same for Passover and Ramadan).

Want to fight it in court? Issuing you a summons for violating the Governor's order is not a emergency and won't end you up in court for at least a couple months. On the other hand, a massive violation of the constitutionally guaranteed fundamental right to practice your religion seems like the kind of thing that screams "EMERGENCY" and therefore should be allowed by your circuit court per the order of the Supreme Court of Virginia. Filing a writ of prohibition to stop enforcement against people exercising their fundamental right to practice their religion might be the best way to go. 

If you go this route, hire the biggest bigwig attorney you can - preferably one with some smarts so he can put this argument together better than I have today on the fly. Expect the AG to send someone good at his job who will try to get your case thrown out or delayed until it bankrupts you or does you no good, or, failing both of those objectives, does the best flim-flam job he can while he tries to sell the judge some constitutional bottom land. They're not going to mess around with this because, as best I can tell, it's the most glaringly wrong thing in all the the orders and they don't want things to start unraveling so that they have to start defending all the *ahem* questionable things in them.


Unconstitutional things happen; they get corrected. I can live with the fact that the Governor has acted unconstitutionally. Heck, I had a blog post pretty much written which navigated around the unconstitutionality. Unconstitutional acts happen sometimes because of error, sometimes because of malice, and sometimes because of different understandings of basic principles. That's all a normal part of the process.

Telling believers that their religion is the equivalent of a Hardees drive through is insulting. Telling believers that they should be satisfied with watching on video is ignorant. Both are signs of arrogant behavior toward the religious people whom you believe are below you. This should never be a part of the process.

Somebody needs to fix this.


1  My apologies if I got something wrong about your faith. I've not studied other faiths in depth since I graduated college. My Arabic has deteriorated to pretty bad; my Hebrew is down to almost non-existent (never got much higher than minimally passable in Biblical Hebrew even back in the day - and, yes, I know I used the substitute rather than the name; it felt more respectful). Anyway, this screed relied upon my basic rememberings with quick checks on the web (after I calmed a bit) that seem to confirm them.

2  In fact, the only case I remember being taught in law school that passed strict scrutiny was a case where an African-American officer was denied a job in an undercover position that was to infiltrate a group of white skinheads and he sued.

 3  I've not gotten into the weeds enough to be sure if this is a refinement of or a substitution for the old Lemon test which I recall stated no law could  (a) encourage a religion,  (b) inhibit a religion, or  (c) get too entangled in a religion. I suspect it is a replacement of (a) and (b), per Trinity Lutheran, to a test of whether the religious organization is treated the same as everyone else. I think (c) still remains valid in some form at least inasmuch as the government can't force the religious to violate their core religious principals. Hobby Lobby.

4  As an aside, I find it disturbing to get "Directives" from the government of a Commonwealth with the motto "Sic Semper Tyrannis."