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Click here for Eric Alterman's latest dispatch on Florida.
While partisans debate whether a victorious George W. Bush would nominate Supreme Court Justices who would overturn Roe v.
International solidarity is the key to consolidating the legacy of Seattle.
On Tuesday, November 14, exactly one week after Election Day (and with no President yet in sight), a notable though little-noted disclosure was made to the public. I do not mean the news that the federal judge in Florida had turned down the Republicans' stop-the-hand-count motion, or the news that Bush's lead in Florida was now 388 votes, or the news that a Florida state judge had waffled on Florida Secretary of State Katherine Harris's decree that no county votes would be counted if reported after the 5 pm deadline that afternoon, or, for that matter, anything else that was happening in the murk of the Sunshine State. I mean the news that, according to a poll released by the Washington Post and ABC News, 45 percent of the public wanted George Bush to become President whereas only 44 percent wanted Al Gore to become President (6 percent wanted "neither," 4 percent had no opinion and 1 percent wanted "other"). The claim was all the more striking in view of the hard contemporaneous fact that in the most recent count of the actual vote of November 7, Gore led Bush by a nationwide margin of 222,880 votes.
If anyone ever had doubts that politics in the United States is dominated by polling, this poll should put an end to them. A major poll was, in a manner of speaking, calling the election a full week after the vote--and reversing the known results.
The polls had been mercifully silent since the election. Many had good reason to be. Five of seven major ones had been "wrong" about the outcome of the election. That is, their final counts had failed to reflect the winner on Election Day (though some, it's true, were within the margin of error). The New York Times/CBS "final" poll, which put Bush at 46 percent and Gore at 41 percent, had the margin wrong by more than five points and Gore's final tally off by eight points. The Battleground poll, which gave Bush 50 percent to Gore's 45 percent, likewise got the margin wrong by five points. Others were more modestly in error. CNN gave Bush 48 percent and Gore 46 percent; in the Washington Post it was Bush 48 and Gore 45; and in the Pew Research Center poll (with undecided voters counted), it was Bush 49, Gore 47. Only the Zogby poll, which put Gore ahead in the popular vote by 48 to 46 percent, and a CBS election-morning tracking poll, which gave Gore 45 percent and Bush 44 percent, picked the right winner in the popular vote, and with a margin close to the actual result. All in all, Gore's victory in the popular vote came as a surprise. Of course, it's not literally true that the polls were wrong, since there is a margin of error, and people can change their minds between the day of the poll and the election. On the other hand, election results are the only check on the accuracy of polling that there is--they are to polling what experimentation is to scientific hypothesis--and there is no reason to suppose that a poll whose final measure is 8 percentage points off the election result is not 8 percentage points off year in, year out.
Considering the decisive importance that polling had throughout the race in every aspect of the campaign, including media coverage, fundraising and campaign strategy (in the last few weeks of the election, hearts were lifting and falling on single-point fluctuations in poll numbers), these discrepancies deserved much reflection. The reason they did not get it was that on election night the magicians of public opinion went on to make even more egregious and momentous errors, by prematurely predicting the winner in Florida twice and the winner of the national election once. (The election-night calls made by the television networks, which in turn are based on exit polling done by a single, nearly anonymous firm, the Voter News Service, are not quite the same as opinion polling, since they record a deed--voting--rather than an opinion, but their use of sampling techniques to predict outcomes places them in the same general category as other polls.)
The last of these mistakes, of course, led a credulous Gore to concede the election and then, minutes later, to retract the concession. For a few hours, the networks and the candidates appeared to have assumed the power to decide the election between them. There is every reason to believe, for instance, that George Bush would now be President-elect if, moments before his concession speech, Gore had not got the news that Florida had been declared undecided again. If Gore's concession had gone unretracted, Bush had made his acceptance speech and the country had gone to bed believing it had made its decision, it is scarcely imaginable that the close results in Florida would have been contested. Even now, many observers await a concession by one or another of the candidates as the decisive event. But it is not up to either the networks or the candidates to decide who is to be President; that matter is left under the Constitution to the voters, whose will, no matter how narrowly expressed, must be ascertained.
Then a week later, the polls that had played such an important and misleading role in the election were weighing in again, this time on the Florida battle. The poll that brought the startling, seemingly counterfactual news that Bush led Gore in the public's preference also revealed that six out of ten voters were opposed to legal challenges to the Florida results--possibly bad news for Gore, who had been considering a legal challenge to the infamous butterfly ballot in Palm Beach County. However, observers who did not like that conclusion could find comfort on the same day in a New York Times/CBS poll, which reported that another 6 in 10 were unworried about a delay in finally deciding upon the next President--good news for Gore, who had been relying on time-consuming hand recounts to erase Bush's narrow lead.
If, however, the arts of reading public opinion helped get us into our current mess, perhaps we can take comfort from the hope that they can also help us get out of it. Many observers have suggested that by failing to produce a clear mandate, the ever-changing vote-count of the year 2000--let's call it the Butterfly Election--will cripple the presidency of the winner. They need not worry too much. In our day, it is not only--perhaps not even mainly--elections that create mandates, once every four years. It is polling data that, day in and day out, create our impressions, however incompletely or inaccurately, of what the public wants. Let the new President act in a way that the public approves, as determined by a poll or two, and he will have all the mandate he needs to govern.
A corporate antiviolence program targets students who don't fit in.
Providence put me on a panel debating the Gore/Nader choice with Cornel West at New York University in late October. Most of the audience was for Nader, and the lineup on stage did nothing to improve those odds.
Before the debate began, its organizers took a few moments to speak on behalf of the university's graduate students' struggle for unionization. So did West, who had been handed a flier about it from the floor. And as a man about to lose a debate (and a longtime grad student as well as an occasional NYU adjunct faculty member), I was happy for the interruption. Days later, the National Labor Relations Board set an important precedent by ruling in favor of the students. But here's what I don't understand. How can the student union supporters also be Nader supporters? Nonsensical "Tweedledee/Tweedledum" assertions to the contrary, only one party appoints people to the NLRB who approve of graduate student unions, and only one appoints people to the Supreme Court who approve of such NLRB decisions. No Democrat in the White House, no graduate student union; it's that simple. An honest Nader campaign slogan might have read, "Vote your conscience and lose your union...or your reproductive freedom...your wildlife refuge, etc., etc."
Well, Nader's support collapsed, but not far or fast enough. In the future, it will be difficult to heal the rift that Nader's costly war on even the most progressive Democrats has opened. Speaking to In These Times's David Moberg, Nader promised, "After November, we're going to go after the Congress in a very detailed way, district by district. If [Democratic candidates] are winning 51 to 49 percent, we're going to go in and beat them with Green votes. They've got to lose people, whether they're good or bad." It's hard to imagine what kind of deal can be done with a man whose angriest rhetorical assaults appear reserved for his natural allies. (The vituperative attacks on Nader, leveled by many of my friends and cronies on the prolabor democratic left, were almost as counterproductive, however morally justified.) But a deal will have to be done. Nader may have polled a pathetic 2 to 3 percent nationally, but he still affected the race enough to tip some important balances in favor of Bush and the Republicans. He not only amassed crucial margins in Florida, New Hampshire and Oregon; he forced progressive Democrats like Tom Hayden, Paul Wellstone, Ted Kennedy and the two Jesse Jacksons to focus on rear-guard action during the final days rather than voter turnout. If this pattern repeats itself in future elections, Naderite progressives will become very big fish in a very tiny pond indeed.
Perhaps a serious Feingold or Wellstone run at the nomination with a stronger platform on globalization issues will convince those die-hard Naderites to join in the difficult business of building a more rational, Christian Coalition-like bloc to counter corporate power within the party. For now, we can expect an ugly period of payback in Washington in which Nader's valuable network of organizations will likely be the first to pay. Democrats will no longer return his calls. Funders will tell him to take a hike. Sadly, his life's work will be a victim of the infantile left-wing disorder Nader developed in his quixotic quest to elect a reactionary Republican to the American presidency.
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Giving Nader a run for his money in the election hall of shame are the mainstream media. Media portraits of both candidates were etched in stone, with nary a fact or figure allowed to intrude upon the well-worn script. Bush was dumb and Gore a liar; pretty much nothing else was allowed in the grand narrative. Like Nader, reporters assumed the enormous policy differences between Gore and Bush--on Social Security, prescription drugs, education, affirmative action, abortion rights, the environment--to be of trivial importance, hardly worth the time and effort to explain or investigate. The media's treatment of this election as a popularity contest rather than a political one between two governing ideologies was an implicit endorsement of the Bush campaign strategy, as the issues favored Gore. But even so, Bush was usually treated like some pet media cause. With regard to such consequential questions as his political program, his political experience, his arrest record, his military service, his business ethics, Bush was given a free pass by media that continued to hound Gore about whether he was really the model for Oliver in Love Story--which, by the way, he was. I guess being a Bigfoot journalist means never having to say you're sorry.
* * *
One election development that had to gladden New Republic owner Marty Peretz's heart was how bad it was for the Arabs. I got a call one day from a Republican Party functionary telling me that Hillary Clinton supported a Palestinian state and took money from groups that supported terrorist organizations "like the one that just blew up the USS Cole." I told the sorry sonofabitch that like Israel's Prime Minister, I, too, support a Palestinian state. And, if there was any justice in the world, Hillary's "terrorist" friends would blow up Republican headquarters while we were still on the phone, so I could enjoy hearing the explosion.
This heavy-handed bit of racist manipulation grew out of a story published, surprisingly, not in Rupert Murdoch's New York Post but in the putatively responsible and nominally liberal New York Daily News, owned by Mortimer Zuckerman. It was inspired by the machinations of one Steven Emerson, a discredited "terrorism expert" last heard trying to pin the Oklahoma City bombing on the Arabs by noting that "inflict[ing] as many casualties as possible...is a Middle Eastern trait." Each actor played a dishonorable role in the tawdry drama: The Daily News invented the story. The Lazio campaign brazenly exploited it. Hillary Clinton's campaign capitulated to it. Together with the media coverage of the main event, this mini-drama will go down in history as further evidence of that unhappy nostrum of American politics that this year seems to have escaped everyone from the Nader die-hards to Palestinian militants: Things can always get worse.
As the media obsessed over the seesaw presidential poll, voters across the country quietly made their choices on more than 200 disparate ballot measures and initiatives. For progressives the results are--as usual--mixed.
First the bad news: Three campaign finance reform initiatives went the wrong way. Clean-money measures providing for full public financing were thumped in Missouri and Oregon. Similar measures had been passed in previous years by voters in Maine, Massachusetts and Arizona as well as by the legislature in Vermont--but this time around powerful, well-financed business lobbies weighed in, and dirty money beat clean money. In Oregon opponents ran an effective (and expensive) radio campaign highlighting the out-of-state financial support for the reform, and it raised the specter of extremists running for office if it passed.
In Missouri corporate opponents--including Anheuser-Busch, KC Power & Light, Hallmark Cards and the Missouri Association of Realtors--poured hundreds of thousands into their victorious antireform campaign. Californians, meanwhile, approved Proposition 34, billed as campaign reform but actually cooked up by the establishment to block real reform. The returns on these three measures should compel campaign finance reform activists to rethink their strategies. These are significant and stinging defeats.
The good news is that the failed drug war was a loser in five of seven related measures nationwide. Medical marijuana initiatives passed in Colorado and Nevada (although a full marijuana-legalization bill failed in Alaska). Oregon and Utah voted to reform draconian drug forfeiture laws. And in California, Proposition 36, providing treatment instead of jail for first- and second-time drug offenders, passed easily. But a similar proposition failed in Massachusetts (which also refused to approve a universal healthcare proposal).
Another bright spot was public education. Voucher measures in California and Michigan were beaten by wide margins. Silicon Valley entrepreneur Tim Draper put up millions for the California proposal--to no avail. California voters also approved a measure that makes passage of school bonds easier. But bilingual education, banned in the Golden State two years ago, was also thrown out by Arizona voters. As he did in California, businessman Ron Unz fathered and funded the Arizona measure.
Colorado voters defeated the so-called informed consent measure on abortion, but Arizona and Nebraska approved a ban on same-sex marriages and civil unions. In Maine a measure to protect gays from discrimination was defeated. In Oregon the notorious Measure 9, which outlaws "teaching" homosexuality in schools, failed. Oregonians also rejected two antiunion "paycheck protection" measures, which the state labor federation had vigorously fought.
A land-claim suit is pitting Oneidas against other upstate residents.
DNA testing can convict the guilty; it can also destroy the privacy of millions.
In New Mexico, communists who fail to register their party affiliation with the state commit a felony. Under New Mexico's DNA databanking law, if they are caught they are required to submit a DNA sample to the department of public safety. In Idaho, consensual sodomy with a partner other than your spouse constitutes a sex-crime felony. Those unfortunate enough to be caught in the act are similarly required by law to submit a tissue sample to the state's DNA databank for the purposes of preventing future sex crimes. And if Governor George Pataki is successful in the next legislative session, New York will begin collecting genetic material from any person convicted of a misdemeanor, such as resisting arrest or disorderly conduct as a result of peaceful civil disobedience.
In an age of biotechnology and computers, we are all but a needle-stick away from disclosing hereditary-disease susceptibilities, familial relationships and identifying information. Anyone who values privacy should therefore be concerned that US law-enforcement agencies are amassing ever larger portions of the general population's DNA while neglecting to implement measures that would protect the privacy and presumptive innocence of citizens. And because DNA evidence is currently enjoying an unprecedented degree of bipartisan enthusiasm, these gradual developments have tended to be sheltered from the criticism that might otherwise confront such policies.
Not that DNA evidence's celebrity isn't well deserved. It is many rape victims' best hope for identifying their assailants and law enforcement's most penetrating method of apprehending serial offenders. It can be credited with triggering a re-examination of the nation's capital punishment system by exonerating eight death-row inmates. Like its predecessor, the fingerprint, DNA profiles are a reliable means of identifying individuals (except in the case of identical twins). But glib analogies to fingerprints obscure important differences. DNA samples can reveal far more information than fingerprints, including sensitive medical conditions, traits or a person's biological parentage. In addition, while fingerprints are unique to every individual, genetic profiles are partially shared among blood relatives. Thus, databanks contain identifying information on nonoffending relatives of people explicitly covered by databanking statutes. Finally, because we shed our genetic calling cards in a trail of hair follicles, skin flecks, saliva aerosols and finger smudges, DNA can also provide a trace of our activities.
DNA databanks are premised on statistics indicating that individuals convicted of a serious violent offense often commit other violent offenses that leave behind incriminating DNA. Tissue samples, usually in the form of a blood sample or cheek swab, are thus collected from offenders covered by their state's databank laws and are analyzed using a technique called "profiling," which detects genetic variations among individuals that, at least as currently understood by geneticists, have no biological function. The resulting data are then computerized so that profiles produced from crime-scene samples can be compared with those already in the database, allowing authorities to eliminate certain suspects or target those whose profiles match. In effect, databanks provide a means of genetically frisking anyone who has ever committed a covered offense for any crime in which DNA has been recovered.
As of June 1998 all fifty states had enacted statutes authorizing state and local law-enforcement agencies to operate criminal DNA databases and to pool their DNA profiles into a national FBI-operated database called CODIS (Combined DNA Identification System). Though the earliest laws targeted convicted violent sexual felons, civil libertarians looked to the history of Social Security numbers, fingerprinting and drug-testing to warn of an inevitable migration of the technique from convict to suspect terrain. A decade later, as many states have passed laws to cover new offender categories, the Cassandras appear to have been vindicated. Delaware, for instance, requires submission of genetic samples for all those who have committed offenses against children, which include selling tobacco or tattooing minors without the consent of a guardian. Twenty-three states cover certain categories of misdemeanors, and seven states have enacted legislation that would require DNA submission for any felony, which extends DNA databanking into realms such as perjury, larceny, bribery and fraud. Thus, in addition to New Mexico's statute covering unregistered communists, Alabama's code covers tax evaders and Virginia's targets people who deface brands or marks on timber. Experts like CODIS program director Steve Niezgoda have predicted that all states will eventually amend their statutes to cover all felonies; four states have already done so, and another three have recently considered or will consider such an expansion in their next legislative sessions. Among these three, New York's proposal stands out as by far the nation's most comprehensive, targeting all convicted felons and class-A misdemeanants.
DNA databanking laws are furthermore part of the ferment that is corroding the century-old juvenile justice system that treats minors as a category of offenders separate from adults. More than half of all states authorize inclusion of DNA profiles collected from juveniles in their databanks. In contrast to the convention of sealing or erasing juvenile criminal records after a period of time--a practice grounded on a rehabilitative ideal--none of the statutes require states to remove juvenile DNA profiles from their databanks, and one (Arizona's) expressly prohibits their removal. Several states have revised their original legislation to cover juvenile offenders as well. The spread of DNA databanking to minors is especially troubling when considered against the racial inequities that plague the juvenile justice system. According to Vincent Schiraldi, president of the Center on Juvenile and Criminal Justice, "When you control for poverty, white and black [teens] commit the same amount of violent crime, [but] blacks are arrested at four times the rate of whites and imprisoned at seven times the rate of whites. So don't think for a second this databank will be race-neutral. This policy will grossly overrepresent criminal behavior by blacks and exacerbate disparities in incarceration because [databanks are] going to be used against people."
An indirect consequence of expanding DNA databanks is their partial coverage of a larger proportion of nonoffending relatives as well. Because individuals share portions of their DNA with biological relatives--half in the case of siblings, parents and children--an incomplete match between a databanked person's profile and that of a crime-scene sample might lead investigators to question an individual's immediate family. The effect of such profiling by proxy is that identifying information about nonoffenders is present in criminal databank systems as well; in effect, if you have a relative whose profile has been databanked, you're likely to be partially genetically frisked as well.
A critical unresolved question about current databanking practices concerns what law-enforcement agencies actually do with their frozen vials of human tissue. The human genome contains approximately 100,000 different genes, many of which are associated with specific illnesses. Though DNA profiles have few applications beyond linking individuals to biological specimens, the actual tissue samples submitted by offenders could in principle be analyzed for genetic traits ranging from sickle-cell anemia to schizophrenia. Since evolving typing techniques may one day outmode profiles currently being entered into computers, more than half of US states are authorized or required by law to archive their samples so they can be retested. This sustains the possibility that samples may eventually be used for purposes other than profiling.
Most statutes restrict sample use to "law enforcement"--a term whose broadness in this context can only be described as oceanic. Twenty states allow law-enforcement agencies to use samples for research on improving forensic techniques, which could mean searching banked DNA samples for genetic predictors of recidivism, pedophilia or aggression. One Massachusetts legislator publicly advocated such a use, and Tom Callaghan, program manager of the FBI's Federal Convicted Offender DNA Database, refused to rule out such a possibility when pressed at a National Institute of Justice Symposium in September 1999. Moreover, tissue repositories created by databanks would provide genetics researchers with congenial waters in which to trawl for genes thought to be involved in criminal behavior. Alabama's databanking law brushes perilously close to this by authorizing release of anonymous DNA population data collected by law-enforcement authorities to "assist in other humanitarian endeavors including, but not limited to, educational research or medical research or development."
Experimenting with offender DNA in this way would violate basic tenets of biomedical ethics by using tissues that were not obtained by consent for purposes that arguably run counter to the interests of the research subject. "If [law-enforcement authorities] want to do research," argues Boston University bioethicist George Annas, "they should follow the same rules everyone else has to follow in terms of informed consent and privacy.... Criminals have privacy rights like everyone else." As such, using databanked samples for research without consent also runs counter to recommendations by the American College of Medical Genetics.
Such research authorizations are especially troubling in light of this nation's checkered history of experimentation on prisoners. In 1875 social reformer and prison inspector Richard Dugdale wrote his famous study of the Jukes family after he noticed a disproportionate number of inmates with that last name. The availability of banked criminals' tissues may prove a valuable resource should society's interest in genetic explanations for social ills be renewed.
Legal challenges of DNA database laws have generally failed and are therefore unlikely to stem their widening sweep. Practices in Britain, the first country to enlist DNA in its crime-fighting cavalry, may portend dramatically widened use of databanking in the United States. Britain's Forensic Science Service is authorized to collect DNA samples from anyone questioned about or suspected of any offense for which a person could be detained. As of July 1999, England had collected 547,000 DNA samples; the effort was projected to reach 30 percent of British men eventually. In addition, England has conducted at least eighty "intelligence-based screens"--the official term for what is colloquially called a "genetic sweep"--in which the general population is asked to submit DNA samples to help police investigate a particular crime. Although samples are provided voluntarily, social pressures, heavy media coverage and the concern that failure to submit a sample may itself invoke police suspicion undermine the notion of submissions being truly consensual. Other countries, including Canada and Germany, have conducted similar sweeps, and while some argue that the Fourth Amendment would probably bar such practices in the United States, privacy watchdogs like New York Civil Liberties Union's executive director Norman Siegel caution that "Fourth Amendment challenges [of databanks] have not been successful; these are the only reference points we have [for predicting how courts will rule on genetic sweeps], and they're not promising."
The next battle between civil libertarians and law-enforcement authorities concerning DNA databanking is likely to concern the leap from profiling convicted felons to arrestees. Former NYPD chief Howard Safir has championed arrestee profiling, and US Attorney General Janet Reno has begun to explore the implications of such a policy by querying a National Institute of Justice commission. Arrestee profiling would dramatically broaden the reach of DNA databanking and, if not subject to careful restrictions, would empower law-enforcement authorities to arrest people for minor offenses, collect a tissue sample and search their databases for a match between the arrestee's profile and another crime-scene sample. Despite widespread enthusiasm in law-enforcement circles, profiling on such a scale isn't likely to be implemented anytime soon, given the backlog of tissue samples awaiting profile analysis and the high costs (at least $100 per sample). Nevertheless, one state (Louisiana) profiles arrestees for sexual offenses, and advancing automation technologies are likely to erode these fiscal barriers.
Though this is reason for despair among privacy advocates, there are a few hopeful signs among the various statutes. Twenty-seven states (and the federal government), for example, prohibit disclosure of genetic materials or information to unauthorized third parties. Wisconsin requires that law-enforcement authorities eliminate DNA samples of convicted persons after profiling is complete, and six states (Indiana, New Hampshire, Rhode Island, Texas, Vermont and Wyoming) restrict what authorities can do with collected DNA by prohibiting analysis of genetic mutations that could predict a person's traits. But in an environment where the political leaders most likely to raise objections to such policies are often silenced by a fear of appearing to be soft on crime, the stability of these protections remains to be seen.
Imagining a fair and protective system for using DNA evidence in the criminal justice system isn't all that difficult. People claiming innocence should be given opportunities to volunteer DNA to clear their name. For them--and more broadly for the credibility of the criminal justice system--DNA forensic technology may be the only life vest within reach. Upon overturning a conviction, volunteered DNA samples and profiles should be promptly destroyed, preserving the individual's presumptive innocence. For people convicted of serious violent offenses and beyond the reach of such exculpatory evidence, however, the trade-off between privacy and public interest may tilt toward favoring a DNA databanking system with strong privacy protections, including sample destruction after profiling and prohibitions on uses other than comparing profiles with those collected from crime scenes. And finally, to protect the presumptive innocence of convicted offenders' family members, states should impose stringent requirements for when a match between a crime-scene sample and a databanked profile can trigger an investigation.
Privacy is a zero-sum entity: The extension of law-enforcement authorities' genetic gaze comes directly at the expense of an individual's power to withhold such information. Where most human DNA handling once occurred in medical clinics and research laboratories--institutions that are generally subject to public oversight and cautious (if imperfect) ethical review--DNA has now entered a territory not particularly distinguished for its ethical circumspection. States are not providing many reasons for the public to be confident that they are taking these concerns seriously; perhaps of even greater concern, negligence in protecting the privacy of offenders and criminal suspects may acclimate a public to weak protections of genetic materials. As the predictive powers of genetic technologies are refined, this could have grievous consequences for everyone.
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