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August 29, 2011

Should every intersection be monitored by a red-light camera?

The question in the title of this post is prompted by this local article, headlined "Pa. governor's panel advises more red-light cameras."  Here are excerpts:

Cameras that catch people who run red lights have been spreading across the country, along with controversy. Now a panel appointed by Gov. Tom Corbett has recommended that Pennsylvania cities be allowed to deploy them to reduce crashes at dangerous intersections.

"It's using technology to affect behavior, reduce the cost of enforcement and improve enforcement," said state Transportation Secretary Barry Schoch, who chaired the governor's Transportation Funding Advisory Commission. The 40-member volunteer panel also recommended that the Legislature authorize speed cameras in road construction zones.

Currently, only Philadelphia is allowed to use red light cameras, under a pilot program that began in 2005. They are in place at 19 intersections and generate more than 100,000 citations a year....

Officials of the Philadelphia Parking Authority, which administers the program, say it has been hugely successful. Over a span of months, the cameras typically cause a 50 to 60 percent reduction in red-light running, said Christopher Vogler, the authority's manager of red light photo enforcement. On Roosevelt Boulevard, a "unique and very dangerous roadway" where the first cameras were set up, "there is a definite difference and positive difference in driver behavior," he said.  At the highway's intersection with Grant Avenue, monthly citations have declined from more than 4,000 shortly after deployment to fewer than 300.

More than 500 cities in 25 states use the cameras, and the number is growing, said David Kelly, president and executive director of the National Coalition for Safer Roads, formed to advocate for the systems and a recipient of funding from companies that market them.

The Insurance Industry for Highway Safety says its study showed a 24 percent decline in fatalities from red-light running in cities where the cameras are used, and reductions of 40 to 96 percent in violations.  It has estimated that 150 lives were saved over five years in the 14 biggest cities that use them.  "The greatest determining factor in getting people to change their behavior is the threat of a ticket," Mr. Kelly said.

The cameras have critics who say they don't reduce crashes and are deployed primarily to raise revenue. Some also have questioned the legality of citations issued without a police officer personally observing the violation.  In Los Angeles and Houston, the city councils have voted recently to remove the cameras.  The action in Houston followed a referendum in which voters by a small margin opted to eliminate them. Mr. Kelly said the opponents are a "vocal minority who are very loud and good at getting attention."...

State Rep. Paul Costa, D-Wilkins, who is sponsoring legislation to allow the cameras in Pennsylvania cities other than Philadelphia, said "this is not about money for me. They raise revenue, sure, but that's not what I'm about. This is about saving people's lives."... The cameras would be placed only at intersections with demonstrated safety and crash problems, he said. "We're not just having these things pop up everywhere."

Assuming the data reported here on lives saved is accurate (a big if), I am inclined to be a vocal advocate for greater use of red-light cameras.  Indeed, as long as these cameras do not increase traffic accidents, I still favor a policy that raises revenue through what is essentially a local tax on law-breakers. 

Especially if monies collected from traffic violations properly recorded by red-light camera are used on other public safety fronts, these cameras seem to me to be a win-win for all fans of utilitarian approachs to crime and punishment.  Or, dear readers, am I missing something important in this roadway safety cost/benefit analysis?

August 29, 2011 at 06:15 PM | Permalink


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No, at every intersection anyone suggests a red-light camera for public safety reasons, they should instead install a roundabout. More laws, fines and punishments are not the best way to reduce traffic deaths.

Posted by: Gritsforbreakfast | Aug 29, 2011 6:38:54 PM

It would be nice if we could keep everyone safe by monitoring, but that is not reality. Some studies show that there are no statistical changes in the accident rate at these intersections.

The main beneficiaries of these devices are the companies that make them. These companies lobby legislators for this legislation and in some cases they take the profit and the community is left with small fees, and the endless expense of the litigation that comes with this mechanical intrusion.

Posted by: beth | Aug 29, 2011 7:15:06 PM


You believe in technology to solve human problems. I know how technology can and will be abused.

If you understood the PRACTICE of breathalyzers as opposed to their ideal use, I am sure you would understand.

Money for the companies that make them, maybe money for the communities that use them, but more loss of liberty in challenging the TECHNOLOGY.

Posted by: albeed | Aug 29, 2011 9:09:26 PM

I strongly support any measure that reduces car crashes. These are horrible events where people are butchered while alive, and result in massive health costs, including traumatic brain injuries resulting from low impact crashes. The Roosevelt Boulevard is part of Route 1 running from Maine to the Florida Keys. The federal government has a supremacy and commerce clause interest in straightening out the idiotic management of this main artery by the City of Philadelphia, a lawyer dominated government.


1) The Roosevelt Boulevard design is especially idiotic result of compromises between lawyers long ago. It has three inner express lanes, still not a highway, but with fewer traffic lights, and three outside lanes that are filled with traffic lights and driveways into Dunkin Donuts shops, into shopping areas, private homes, on street parking. The speed limit on both is 45 mph. There are frequent cross streets that get jammed with turning cars that cannot wait for another cycle of traffic lights. Every intersection is highly complex in design because of two sets of three lanes, and cross street cars turning into each of 6 lanes, and others going around the turning cars. Then there are the pedestrians, many from the personal care and nursing homes that are every few blocks, many from the numerous doctors' offices, using walkers, and crossing six lanes. Then there are the Russian immigrants. They consider laws to be suggestions only, and do as they please as drivers or as pedestrians.

The design is defective and the cause of the highest accident rate of any intersections in the US. People wanted a highway, they wanted a commercial local boulevard. They tried to do both, and failed at both.

2) If you drive at 45 mph, obeying the speed limit, you will hit every red light, and I mean every long red light every two blocks, as the cross traffic is being cleared. This is impossible by random chance. They are doing that on purpose, trying to drive traffic away by making the lights 100% frustrating. With zero traffic, at 3 AM, it will take 45 minutes to travel 10 miles. Now, if you drive at 60 mph, the entire length of the Boulevard, you will hit every green light for 5 miles at a time. So guess what. Everyone is doing that. That lawyer caused speeding leaves no room for error when pedestrian encounters car. Even cops sitting inside their cars get wiped out on this boulevard when struck at that speed. Any speed should file cross charges against the traffic light timing company, and the City of Philadelphia.

3) The city doubled fines after many pedestrians were sent flying by speeders. Severity of punishment, we have already discussed, does not reduce law breaking. That lawyer remedy did nothing.

4) The data from cross national studies over 20 years of use. No reduction in car crashes. Specifically, a 50% increase in rear end crashes (pushing the car into cross traffic and compounding the devastation). No reduction in insurance payouts. So this scheme is in bad faith if anyone lies about safety motivation.

5) All parties should be made liable, including strict liability, and aggregate claims. I would like to see Philadelphia get bankrupted because it is a nest of Commie government and controlled by only heinous progressive interest groups. To deter. They arrest peaceful Christian protesters, and allow ultra-violent homosexuals to beat people up, right in the faces of the cowardly police. The murder rate is so high, there is a waiting list to get into its prison. Murderers have to come back later. It is the ultimate expression of left wing lawyer governance. All red light camera companies should be liable, all lazy, do nothing, criminal forbearing police, all filthy Philadelphia judge vermin, all feminist traffic prosecutors.

6) How about this alternative. a) Have the lights at every intersection turn at the same time for 2 miles at a time, so people could travel at 45 mph and make every green light for 2 miles. b) How about building many narrow pedestrian bridges over the Boulevard so people could cross all the time and safely do so. These should be reached by ramps for the handicapped that frequent the area. Put cameras there and intense lighting to make people feel safe using them. c) Prohibit bicycle punks from using the bridges to speed past pedestrians. Use metal spikes to puncture their tires. Put them with the cars so they can get wiped out breaking all the traffic rules. d) Lengthen the time of the yellow lights, a proven life saver, and crash reducer. Yellow lights have unacceptable, short, obsolete durations below the standard of due care for traffic light timing in international standards.

Posted by: Supremacy Claus | Aug 29, 2011 9:28:48 PM

The six lanes mentioned above are in each direction. There is a total of 12 lanes, which people with walkers are crossing to get to a store from their personal care homes. It would be a joke were it not for the traffic jams, the speeding, the fatalities, and the frustration of all users.

Posted by: Supremacy Claus | Aug 29, 2011 11:33:21 PM

I sat through three cycles at a light recently. The other light(s) changed three times, but mine remained red. I determined that my light was defective and, therefore, proceeded through the intersection.

Also, one night, in a desolate area, I waited at an intersection for the light to change. I saw some people approaching and, trusting my "gift of fear", I proceeded through the intersection.

In most cases like these, you do not get ticketed and so there is no need to explain. In camera cases, I doubt there would be much due process or opportunity to explain or be heard.

Posted by: Stanley Feldman | Aug 30, 2011 7:52:26 AM

In general, I am sympathetic to the sentiments voiced by beth, Grits and Mr. Feldman.

Strictly as a matter of Fourth Amendment law, red light cameras all over the place are permissible. What a person knowingly exposes to public view is, well, open to public view.

But, as with TSA, the authorities have taken it too far. We are experiencing the death of privacy in this country. I am tried of being treated like a presumptive criminal anytime I stick my nose out the front door: At the airport, the bank, and now on the street. I can't even go to McDonald's without getting on somebody's camera.

There were low crime rates in the 1950's without any of this stuff, the the phrase "private life" still had some meaning.

Of course, some of this frenetic security has come about because of the dumbing down and coarsening of public behavior; we didn't have a lot of flash mobs and smash-and-grab in times past, so to an extent, we have brought it on ourselves. But even accounting for that, it's just gone overboard.

Posted by: Bill Otis | Aug 30, 2011 8:32:10 AM

Where did I lose you Bill since I concurred with the other commenters? The total tort and strict liability for the low life vermin scum on the bench? If you can, come to Philadelphia. Spend 10 minutes sitting in the back of any Philadelphia court. See if you do not agree with me then.

Posted by: Supremacy Claus | Aug 30, 2011 9:12:15 AM

SC --

Although I respect you as a person with both intellect and a gentleman's manners, not to mention an obviously good education, sometimes your posts are both too long and too, shall we say, favorful for me.

I agree with you about the dangers of Roosevelt Boulevard, however. The road is a total menace. I grew up in Wynnewood, and would use that road to get into Philly to visit my grandmother. It was quite an adventure -- and that's was when I was young and still had reflexes.

Posted by: Bill Otis | Aug 30, 2011 9:29:54 AM

Prof. Berman
I think you are missing one large part of this puzzle. I cannot claim any form of expertise regarding the actual effect of red light cameras, and do not question the problem with traffic deaths and intersection collisions, it appears that this tends to be the extent of the analysis, whether here or in general discussions. By contrast I do know something about the legal issues involved. In almost all cases, the confrontation clause issue can be raised regarding who comes to court regarding the camera's "evidence," which I submit should be not just someone interpreting the film and the time information. This is a Melendez-Diaz/Bullcoming issue regarding the requirement of testimony from the person who calibrated the camera and clock, is entirely ignored by judges who should, and perhaps do, know better. Say what you will about this issue, and its involving something less serious than a real crime, admission of this evidence nonetheless operates as the denial of a basic constitutional right of every driver.

Posted by: Michael Montemarano | Aug 30, 2011 9:30:56 AM

The Sixth Amendment issue you raise, MM, is an important one ONLY if/when the defendant wishes to contest the evidence. I suspect the vast majority of offenders, upon getting a citation in the mail, realize they are guilty, pay the fine, and then are somewhat specifically deterred from committing this low-level crime again.

Meanwhile, Bill, I am puzzled/troubled that you think authorities have taken red-light cameras too far. In my opinion, with as many people in the US dying each and every MONTH from car accidents than have been killed by terrorists over the last have century, you (and all other drivers) should be treated as presumptive dangerous person when you exercise the privilege of operating a dangerous instrumentality like a car. Just don't run red lights or speed or do other dangerous stuff with your car, and the authorities will leave you alone.

Bill, I figured you for a guy who would champion sensible road security concerns over silly "I have a right to driving liberty/privacy" claims. I guess when it is your liberty in play, you run the numbers on the liberty/security calculus somewhat differently. Hmmmmmm.

Posted by: Doug B. | Aug 30, 2011 10:14:19 AM

I have no problem with red light cameras in principle, but it's their use that bothers me.

The safest means of reducing intersection accidents is a long yellow light (about 5 sec). That way the intersection can be completely cleared out of folks in a hurry/on the yellow-red bubble.

However, when a red light camera is installed, authorities frequently reduce the time of the yellow light (imagine that). Here in Cleveland, the red light intersections have noticeably shorter yellow lights than those of other major intersections. Not only is the problem not solved, but the public is then left with the unenviable option of either running a light or jamming on the brakes. On several occasions I have been able to stop at an intersection in time, going the speed limit, only by braking hard--and the light was red before I would have been able to cross the intersection at my legal speed. I would have easily made a yellow light at the same speed, at the same distance away from the intersection, two blocks away.

Posted by: Res ipsa | Aug 30, 2011 11:33:17 AM

Question for those who know about these cameras more than me:

The proper procedure if you're making a left turn across oncoming traffic lanes is to pull into the intersection and wait for clearance.

So, let's say you're waiting in the intersection as you're supposed to, but because of heavy traffic, you're not able to begin your turn until after the light has turned red. Will you get ticketed, or does someone review to check whether you legally entered the intersection on a two-way green but just couldn't move until after the light turned?

Posted by: Res ipsa | Aug 30, 2011 11:37:13 AM

Doug --

You are correct that driving is a privilege, and (as I said) that there is no privacy right in driving on a public road. You are also correct that more red light cameras will (probably) mean safer roads.

Then too, so would lowering the speed limit to 30. Indeed, a national speed limit of 30 would save thousands of lives, since excessive speed is the single most important factor in fatal accidents.

Yet presumably(?) you're against a national speed limit of 30, even though it would almost certainly do more to save lives, and property, than a proliferation of red light cameras.

If you are against the 30 mph limit, one might ask, why?

And the answer would be that it just takes an idea that's good in princilpe (cutting back on excessive speed) too darn far.

Same answer, to my way of thinking, on red light cameras. As I mentioned, privacy is taking a ferocious beating in the modern world. Where in individual instances, infringements on privacy are needed to stop the bad guys from doing their thing, or to bring them to book, I'll support them. But when you can't live a day in the modern world without swiping your ID card four times and winding up on five stores'/businesses'/universities' security cameras, it's gotten out of hand.

And that's before you go to the airport.....

Posted by: Bill Otis | Aug 30, 2011 12:49:58 PM

Student here.

There are a lot of sources out there that contend against the notion that red-light cameras save lives. The National Motorist's Association and the Reason Foundation both have extensive studies that indicate that lengthening yellows saves more lives. Additionally, they note that cities that have red-light cameras tend to shorten yellows, demonstrating (if you are as cynical as I) that they have more interest in making money than saving lives.

Of course, I will say that Professor Berman's assumption that more money in state coffers = a win is a largely unexamined one, and one I would argue against thusly:


Posted by: Steven Druckenmiller | Aug 30, 2011 1:13:44 PM

I find myself 98 percent in agreement with Mr. Otis. The other 2 percent: I think it's a mistake to describe driving as a "privilege."

I realize that governments routinely classify it as one, but there are several distinctions between driving and a true privilege. In every jurisdiction of which I'm aware, you are entitled to a license as long as you are of age, have no disqualifying physical disabilities, and successfully complete the driver's ed and road test requirements. The DMV has no discretion to deny a license on subjective grounds (such as "poor character") to someone who passes all the tests. Moreover, the DMV also doesn't have broad discretion to revoke a license "in the public interest," as it would if driving were a true privilege; instead, licenses can only be suspended or revoked on specific grounds provided by law.

Also, driving, unlike most other so-called "privileges," is absolutely necessary to daily life in much of the country. Take away the driver's license of someone in rural America, and you've just taken away his job, his education and his church membership.

I think it's more accurate, and better practice, to describe driving as a conditional right -- a right you need to pass certain tests to obtain, and one which can be forfeited if you abuse it, but a right nevertheless. A driver's license is easier to obtain and harder to take away than a gun permit, and people have no trouble describing gun ownership in terms of rights.

Why does this matter? Because if driving is a right rather than a privilege, intrusive government measures such as red light cameras need to pass a stricter legal (and certainly moral) test. And I don't think red light cameras pass, because they presume guilt and lead to all kinds of due process dilemmas. For instance, what happens if my wife blows a red light in my car? I'm the one presumed guilty, and I could potentially lose my license for someone else's crime unless both my wife and I take a day off work to fight the ticket. Maybe if driving were a true privilege, that would be an acceptable price for improving public safety (assuming that red light cameras actually do so), but not if it is a conditional right.

Posted by: Jonathan Edelstein | Aug 30, 2011 1:20:35 PM

BTW, Mr. Otis, I seem to remember you listing reasons why people became criminal defense lawyers. You missed one: many of us believe that the accretion of government power in the name of fighting crime is more dangerous than the crime. When it comes to denouncing TSA overreaching, pervasive surveillance, SWAT tactics and other abuses of official power, you'll find no one more vocal than the criminal defense bar. Welcome aboard.

Posted by: Jonathan Edelstein | Aug 30, 2011 1:23:50 PM

"If you are against the 30 mph limit, one might ask, why?

And the answer would be that it just takes an idea that's good in princilpe (cutting back on excessive speed) too darn far."

I think it's because with a nation of panzies that are terrified to exceed 30mph, we'd have bad cop shows on TV.

Posted by: Res ipsa | Aug 30, 2011 2:35:44 PM

Jonathan Edelstein --

I don't know that I'm aboard, but I'm with you on two of the issues you mention, pervasive surveillance and the TSA.

As to the latter, I'm a card carrying member of a tiny group of insurgents called profs-against-tsa-abuse. I'm all for robust law enforcement against terrorists, up to and including the death penalty, but claiming the right to feel up your teenage daughter (or son) knowing in advance that the likelihood of her being a terrorist is 00.0000000001% is outrageous, not to mention preposterous. The idea that we can't be more discriminating than to search everyone is absurd.

On the other hand, using the SWAT team against an individual suspect thought, with a reasonable basis, to be selling meth, is fine by me. Such a person has a non-trivial likelihood of being armed or having an automatic weapon within reach.

The authorities make mistakes, or do things that are worse than mistakes (e.g., the politically-based prosecution of the Duke lacrosse players (read Stuart Taylor's book on it)), and in such instances, the defense bar is essential if not heroic.

My problem is that, in the great majority of instances in federal felony practice (which is the one I had), the accused is guilty as sin, greedy, deceptive, a drag on society and, not infrequently, violent.

It's one thing to have a DUI practice or to defend some college kid who's drunk in public. But that's not the sort of thing I ran across.

P.S. I agree that driving is an odd sort of "privilege." I was using that word without qualifying it only for shorthand puposes in answering Doug's question.

Posted by: Bill Otis | Aug 30, 2011 2:46:11 PM

i for one dont like those cameras...

Posted by: Laihdutuslääkkeet | Aug 30, 2011 4:06:43 PM


I would be fine if Congress were to duly enacta "national speed limit of 30," just as I am fine with Congress picking the number 70 rather than 30. (Conversely, I doubt you'd advocate, either on policy or constitutional grounds, that there must be no speed limit and people should be at liberty to drive at any speed any way they want.) As in all these debates, we are trying to balance our sensible interests in both liberty and safety, and I think red-light cameras are more like a 70-mph rule than a 30-mph rule.

That all said, if valid evidence shows (1) longer yellows, and/or (2) more round-abouts, and/or (3) cars made of the same materials as Crocs, and/or (4) some other invention EMPIRICALLY does as good or better a job than red-light cameras at reducing traffic accident costs (ideally at a cheaper price), I would be all for trying these alternatives. Better yet, I'd like to see good reports (from both public and private researchers) on the cost/benefit realities of all these (and other) road safety options so that voters and their representatives can make informed choices about the liberty/safety trade-off in this context.

That all said, unless there is reason to fear that the PA panel mentioned in the linked article is corrupt or deeply misguided in their cost/benefit judgments, I am inclined to trust the panel's recommendation to have more red-light cameras in order to improve safety at the expense of the liberty to run red-lights without paying a (small) price for the privilege.

Put another way, I think folks who regularly run red lights are bad guys --- though obviously not as bad as the folks you dealt with as a federal prosecutor. Still, a regular red-light runner seems much more dangerous to me and my kids than a person who smokes pot (or downloads pictures of naked 17-year-old) in his basement. And, of course, this red-light runner is only getting a citation/fine, not facing a felony charge and possible imprisonment.

Whatever the merits, I am at least pleased that through this post we have discovered the potential defense attorney in ya', Bill. I suspect drunk college kids and red-light runners will be soon beating a path to your defendant-oriented door... ;-)

Posted by: Doug B. | Aug 30, 2011 5:24:35 PM

This is just a statistic for those who look on the bright side. The number of traffic fatalities has decreased per mile driven since the last century (20th) and they began to keep statistics.

We cannot eliminate all risk without giving up freedoms an creativity. We see so much more crime because we have made so many things criminal.

Posted by: beth | Aug 30, 2011 8:29:52 PM

Prof. Berman: Your ambassador to the lawyer profession from earth, here.

If there is an antonym for "red light cameras," it would the Shared Space Scheme. I will let you explore for yourself, since I have no credibility with the lawyers here.




Problem: No more highway robbery of motorists by local land pirates in black robes. Solution? Reduce the town budget by firing the worthless gotcha police and the local land pirates in black robes.

Posted by: Supremacy Claus | Aug 30, 2011 9:02:45 PM

of course we could solve a lot of the speed problems if considering the max speed in this country is 75mph....just why can you buy a any vheicle that can run 200+


if the local, state govt's lost all that speeding ticket money they would be DONE!

Posted by: rodsmith | Aug 31, 2011 2:42:35 AM

Doug --

"Whatever the merits, I am at least pleased that through this post we have discovered the potential defense attorney in ya', Bill. I suspect drunk college kids and red-light runners will be soon beating a path to your defendant-oriented door... ;-)"

Any college kids who want to beat a path to my door, COME ON DOWN. I need someone to rejuvenate me, I'm turning into such an old coot.

Speaking of which.........today is my first class this semester at Georgetown Law. I asked the students to read the confirmation hearing testimony of Roberts, Sotomayor and Kagan. Part of the course is to teach what judging is/ought to be about, and I figure those three are a good place to start.

I trust none of the kids will be so eager to get to class that they'll be running red lights. It's just that DC is so full of those darn red light cameras...........

Posted by: Bill Otis | Aug 31, 2011 8:01:28 AM

Doug B.

Assuming for this post that most of my clients are "guilty," albeit of more serious crimes often with lengthy mandatory minimum sentences (my practice is 95% federal criminal defense), then your response suggests that they, too, should be content with pleading guilty to what they have done, as opposed to asserting their constitutional right to confront their accuser and require the government to prove their guilt by way of competent evidence. Really? That's not how I read Melendez-Diaz.

I wasn't aware that the existence of actual moral or legal "guilt" impinged in any way on the extent of constitutional rights, the freedom to assert same, or the presumption of innocence regarding ANY offense. The Supreme Court seems to agree with me, since it's not just M-D, but also the recent case extending Miranda protections to students hauled to the principal's office to meet with law enforcement. It is troubling that any attorney would veer in the opposite direction.

Posted by: Michael Montemarano | Aug 31, 2011 9:35:10 AM

I recently had a run in with a red light camera. Your usual case. I approached an intersection and the light went yellow, there is a split second decision to either get through or slam on my brakes. I went through, apparently not making it.

Here were my options:

1) Plead guilty and pay $150 fine (plus court costs), get points on my license, etc.
2) Plead not guilty and spend an evening in a courthouse only to be found guilty anyway (they do have pictures).
3) Take the 4 hour KY DOT driving class, which is coincidentally, $150, but no points.
4) Take the 1 hour driving class given by the city attorney's office, which is coincidentally, $150 and all charges are dropped.

I get the feeling that this is more about money than safety...

Posted by: TarlsQtr | Aug 31, 2011 10:09:52 AM

MM: I am not saying that defendants need be content with pleading guilty. All those accused of criminal wrong-doing (including, as TarlsQtr highlights, even red-light runners) can opt to assert their constitutional rights. But doing so, especially if they are indisputably guilty and have no valid factual or legal defenses, necessarily creates an array of costs. For Tarls, the costs are time/energy; for your clients, it may also be the loss of A/R reductions or safety-valve eligibility (not to mention to costs to paying for an attorney).

Some defendants are willing to bear these costs to assert their rights, and I am not suggesting the system ought to in any way prevent anyone from making this choice. Moreover, if even say 30% of all defendants (red-lighters or federal defendants) were to refuse plea offers and put the government to its burdens, the court systems would be even more overwhelmed with business than they are now. However, as I trust you know, nearly 95% of federal defendants plead guilty because, I suspect, they know they are guilty and they know that their lives will end up somewhat better by admitting this guilt than by putting the government to its burden. That is all I was suggesting, and it reflects the reality of practice, not a statement about a defendant's freedom to assert his rights despite guilty.

Bill: I am not surprised you did not respond on the merits to me, since I suspect you acknowledge both the legitimacy and wisdom of a national speed limit set at 70mph, and perhaps also appreciate that it is not obviously wrong to view red-light cameras as more like a 70mph limit than a 30mph limit.

More fundamentally, Bill, the broader point I was eager to make in light of your initial comments in this thread concerned the (telling) reality that when it is a form of liberty/freedom that you find valuable --- e.g., the liberty/freedom to drive around DC without constantly being on camera, to get on a plane without being groped --- you are significantly more resistant to security-oriented measure (perhaps in part because you here realize that folks acting in the name of security may be not merely as effective or restrained as they ought to be).

I hope you might take this personal insight and have more respect for those who are focused on other forms of liberty/freedom that they find valuable (but likely do not impact you) --- e.g., the liberty/freedom to ease pain or stress by smoking a certain weed, to travel in certain areas without their skin color providing the ready basis for a stop --- who are vocally resistant to certain security-oriented measures (perhaps in part because they realize that folks acting in the name of security may be not merely as effective or restrained as they ought to be).

Posted by: Doug B. | Aug 31, 2011 10:58:25 AM

bill: "We are experiencing the death of privacy in this country."

me: While I generally agree with this statement, it is important to note that much of the loss of privacy in modern times is coming about voluntarily. Just look at Youtube, Facebook, Twitter, "reality television," etc. There are many people who are willing to post all aspects of their personal lives online for the entire world to see - or go on television to air the most inimate details of their lives.

You must look at degrees of privacy invasions - on one side, you have completely voluntary disclosures - no one forces you to go on Facebook and post pictures of you doing a keg stand - and if you do so and lose your job or be found to be in violation of your probation because of it - well, you have nobody to blame but your self.

On the other side, you have completely forced invasions of privacy - an example would be a pervert out taking photographs up the skirts of women - I guess that is something that you do not worry about, Bill - or placing a secret camera inside a bathroom - "peeping Toms" are also an example. You could also say that a burglar is also an example of a forced invasion of privacy. These actions are generally criminal in nature.

In the middle is everything else with varying degrees of voluntariness and force/coersion. Red Light cameras would be in this range, with it being closer to coersion in more rural areas where there is basically no alternative but to drive - but voluntary in an area with good public transportation because you then do not really have to drive. Its also somewhat voluntary in any area because one can avoid the spying aspects of red light cameras by stopping at red or yellow lights which is what the law already requires anyway.

bill: "I am tried of being treated like a presumptive criminal anytime I stick my nose out the front door:"

me: if you think you have it bad as a rich old wite man, just think how bad poor young minorities have it. What you are complaining about is really the cumulation of what George Wallace and Richard Nixon brought about in 1968. George Wallace brought traditional Southern race baiting and fear mongering to the national level and showed that it could work in the North. Richard Nixon adopted the Southern Strategy as a way to remove the threat of Wallace and reach the White House. That strategy was largely based on spreading fear - whether fear of the other or fear of crime. The Republicans expanded upon the Southern Strategy with Reagan and the Bushes who again adopted the formula of fear - maybe there are new boogeymen out there with icky pervs, homosexuals, Latinos, and Moslems joining the fear of crime and Blacks - but the playbook is the same. The entire tough on crime movement which you spent a large portion of your career fighting for brought about this notion. Its nice to see you starting to realize what you have wrought, Bill - but until you see the connection between the tough on crime fear mongering which your side has specialized in since before I was born. If you really miss the time when you could go outside without being seen as a potential criminal, maybe you should start to reexamine the tough on crime position. But I would hope you realize that for non-whites and poor people in general you are having nostalga for an age that never existed.

bill: "At the airport, the bank, and now on the street. I can't even go to McDonald's without getting on somebody's camera."

me: For the airport and street, see point about this is what over 40 years of fear mongering "tough on crime" has wrought. And really, if you don't like what the TSA is doing on flying, don't fly. I recently took a trip on Amtrak - not only did you have no TSA security screening, it was way more comfortable with comfortable seats and the ability to actually walk around during the trip. You could even have a good meal with wine while rolling through the countryside. Try doing that on one of those little metal tubes. And as an added bonus, not only was it was more pleasant, it was much cheaper than flying. Sure, it was slower, but whatever, it was worth it.

For the bank and McDonalds - well, to play Devil's advocate for a moment, those are private businesses and presumably they know what their security requirements are. As long as they are not filming in the bathroom or have cameras embedded in the floor to look up my skirt, that really doesn't bother me because i do not expect privacy in that circumstance - its a public place and presumably, my account fees are lower at the bank if it is not being robbed. Presumably your hamburger or their much better than I expected grilled chicken salads are cheaper at McDonalds if they have security cameras up. I'm willing to momentarily appear on camera for a few minutes to pay cheaper prices there or at the stores which all have security cameras. But Bill, why are you complaining about what private enterprises like the bank and McDonalds are doing - I thought that you were all for the free market.

Personally, I always wave and smile at the security cameras whenever I see one - even when going into a jail to see a client, but I may just be weird ;)

Bill: "Then too, so would lowering the speed limit to 30. Indeed, a national speed limit of 30 would save thousands of lives, since excessive speed is the single most important factor in fatal accidents."

me: You could save even more lives by having more public transportation which is much safer than driving. Would be generally faster as well - especially with dedicated transit only lines. Even high speed bus only lines would be much safer and faster than individual cars.

bill: "It's just that DC is so full of those darn red light cameras."

me: I actually wish there were more where I live - you risk your life here by daring to stop at a yellow light even though that is what the law requires if you can stop before the intersection.

ginny :)

Posted by: virginia | Aug 31, 2011 11:07:07 AM


"And really, if you don't like what the TSA is doing on flying, don't fly."

Nice. Even though you talk like a liberal, you message like a nationalist. TSA: Love it or leave it? Would you say that to a black person at the front of the bus? "If you don't like the back of the bus, don't ride the bus!" I doubt it very much.

"I recently took a trip on Amtrak - not only did you have no TSA security screening"

Um, wrong.

"You could save even more lives by having more public transportation which is much safer than driving. Would be generally faster as well - especially with dedicated transit only lines. Even high speed bus only lines would be much safer and faster than individual cars."

This is a claim without proof and assumes much of the argument. Faster...for whom? For everybody? For some people? Safer...for whom? Everybody? Bus riders? Also, safety does not have to be the primary concern in all cases, unless you want to govern on the Precautionary Principle, which I have no interest in.

Posted by: Steven Druckenmiller | Aug 31, 2011 11:48:28 AM

Prof. Berman: Go all out on criminal procedure. Ask for subpoenas to be issued all around to the police, the camera company, the city attorney.

Photos or videos taken at the scene;

Diagrams or maps of the vicinity

All data and data gathering methods to comply with the The Manual On Uniform Traffic Control Devices (23 CFR part 655, subpart F);

All studies regarding the need for a traffic control device or signal at the location of the incident;

All engineering reports and studies performed in determination of the posted limit, to include, but not limited to, the most recent 85th percentile speed measurement and any collision data used in the determination of the posted limit;

All operations and other manuals;

Method of certification of the measurement instrument

Distance of unit from white lines

The camera tickets issued that day, that week, that month, this year, and throughout the installation, to include the date and time issued, alleged violation, and disposition if determined;

The number of camera tickets that were issued within one half mile of the location of the incident by the police department during the past year;

All maintenance records of the camera unit, including the name and location of the official testing facility in which it was last tested along with the name of the electrical engineer, associate engineer, or duly qualified technician who was present when the accuracy test was conducted

All benefits and revenue amounts, ever, to the township, to the court and to the judge from the fee for computerization of the court assessed on the citation and on all other citations, court fees convictions, fines; all car crashes and other accidents before and after installation;

All internal legal analyses done to assess the legality and judicial ethics propriety of accepting the fee from court convicted defendants;

Dates and content of all contacts by the judge and any member of his family with any member of the prosecution team, social, familial, or coincidental.

Posted by: Supremacy Claus | Aug 31, 2011 10:22:30 PM

Doug --

"I am not surprised you did not respond on the merits to me, since I suspect you acknowledge both the legitimacy and wisdom of a national speed limit set at 70mph, and perhaps also appreciate that it is not obviously wrong to view red-light cameras as more like a 70mph limit than a 30mph limit."

The reason I did not directly respond on the merits was that I didn't believe for a minute, and don't believe now, that you would actually "be fine if Congress were to duly enact a 'national speed limit of 30'." Indeed, I'm quite sure it would drive you nuts if that were the speed limit on every road and highway in the country, as it would drive all of us nuts. It would save lives, as we agree, but it would do so at a maddening cost that the country is not about to pay (which is why it doesn't happen).

I'm all for trying various technological improvements to save motorists' and pedestrians' lives -- just not red light cameras at every freakin' intersection. It takes a sensible idea to a nonsensical extreme.

"I hope you might take this personal insight and have more respect for those who are focused on other forms of liberty/freedom that they find valuable (but likely do not impact you)..."

I don't disrespect those focused on more freedom. I disagree with them (some of the time). Big difference.

"...e.g., the liberty/freedom to ease pain or stress by smoking a certain weed...,"

People smoke dope to get blasted. There are a very few who find THC useful for pain, but THC is legally available by prescription in the drug Marinol.

"...to travel in certain areas without their skin color providing the ready basis for a stop..."

I think you'd need to look for a long time to find the spot where I have supported ANY law enforcement action based on skin color. At the same time, I don't support playing the race card by crooks whose venality had nothing to do with their skin color but a whole bunch to do with the color of money. Such a group once went after my colleagues and me. We gave them their answer, United States v. Olvis, 96 F.3d 739 (4th Cir. 1996), available at: http://openjurist.org/97/f3d/739/united-states-v-l-olvis-d

"--- who are vocally resistant to certain security-oriented measures (perhaps in part because they realize that folks acting in the name of security may be not merely as effective or restrained as they ought to be)."

The reason criminals are vocally resistant to law enforcement isn't that law forcement is not as effective or restrained as it ought to be (although this criticism is sometimes true of LE, as it sometimes true of every human institution). The reason criminals, and those they employ, resist law enforcement is that law enforcement is an impediment to their making a fast buck by violence, dishonesty or (as with Tony Olvis), ruining a decent community by selling dangerous drugs and recruiting its kids into gangs.

Posted by: Bill Otis | Sep 1, 2011 9:17:23 AM

Again, Bill, I am not sure we disagree on much. I just keep wanting to keep pointing out that, at the same time you are eager to dislike/disdain people who are "criminals, and those they employ," you seem NOT to have the same attitude when the criminal is a red-light runner or a drunk driver or a drunk college kid. These folks are not trying to make a fast buck, but the drivers are putting their selfish interests in getting somewhere fast ahead of the interests of others. (Also, as an aside, if we made more drugs legal and regulated --- as we do now with alcohol and tobacco --- it might be corporations rather than criminals that are making the bucks (and paying high sin taxes) while recruiting kids.)

Put differently, it seems NOT that you disdain all "criminals and those they employ," but rather have a soft spot for the group of criminals who commit the kinds of crimes you sort-of "understand" or perhaps find not quite so threatening. That's fine, but then you should realize you are not really different in kind from most defense attorneys --- just others have a much broader set of crimes they sort-of "understand" or find not so threatening.

That's my chief point, Bill, that are difference here and elsewhere seem to be difference of degrees, not difference of kind, and I think debates over these issues and many hard others would be much more civil and productive if more people understood this reality and had more respect for those with opposing views.

Posted by: Doug B. | Sep 1, 2011 10:02:33 AM

Doug --

With one exception, I barely disagree with a word you say.

The exception is that I view people who act with a bad heart as being a different sort from the rest of us. Most people who run red lights are in the TarlsQtr category (TarlsQtr | Aug 31, 2011 10:09:52 AM)(i.e., not a bad heart). For the relative few who do it habitually, to heck with them. But my preference is not to have red light cameras over the whole world because of the small number of people like that.

Most of my career in the USAO was spent with the Tony Olvises of the world and their lawyers. The guy got a stiff prison sentence and earned all of it. I wouldn't need ten cents to become a defense lawyer for a person like TarlsQtr, but there is not enough money in this world to inveigle me to lift a finger to help Mr. Olvis.

With folks like you, Jonathan Edelstein, Marc Shepherd, and a number of others who tend to favor the defense, yes, our differences are a matter of degree. There are others posting here, however, who are just seeing a different world.

Posted by: Bill Otis | Sep 1, 2011 11:11:28 AM

'There are others posting here, however, who are just seeing a different world.'

No, it may be they're just not as 'hardened' by years of dealing with certain elements of society. Some in law enforcement, not all by far, are subject to this burnout also. The 'others' haven't given up on society and become cynics other than when it comes to the operating systems presently in place that deal with with those elements.

Posted by: james | Sep 1, 2011 6:32:14 PM

james --

Far from having given up on society, I remain thrilled by the hope and courage of the many, many decent people who lived in Williamsburg, Virginia who cleaned up their community and helped us send away Mr. Olvis. A plaque they gave me hangs in the room in which I am typing this. And I had the great honor of helping to do the same in communities across the eastern part of Virginia.

For cynicism, look to the defense bar. To be fair, though, one has to wonder what the alternative is when your client lies to you day in and day out.

Posted by: Bill Otis | Sep 1, 2011 9:11:48 PM

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