Friday, March 22, 2024

Legislative inaction and dissatisfaction with one-party control lead to more issues going directly to voters in ballot initiatives, with 60% of them in six states

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A home in rural Bingham, Maine, displays signs protesting a Quebec-to-New England hydropower corridor that voters rejected in a referendum vote. AP Photo/Robert F. Bukaty
Thom Reilly, Arizona State University

Recent polls show Americans are increasingly dissatisfied with their system of representative democracy, in which they choose candidates to represent their interests once in office.

When available, voters have bypassed their elected representatives and enacted laws by using direct democracy tools such as ballot initiatives and veto referendums. Ballot initiatives allow citizens or legislatures to propose policies for voter approval, while veto referendums permit challenges to legislative action.

The number of initiatives and veto referendums proposed nationally has been fairly stable over the past two decades. Over the past five years, however, lawmakers have increasingly adopted measures making it harder to get these initiatives and referendums on the ballot.

Citizen-led ballot measures in recent years have been used in various states to expand Medicaid, preserve abortion rights and raise minimum wages. The most common topic for veto referendums over the years has been taxation.

America’s founders were wary of direct democracy and what they felt was the risk of the tyranny of the majority, a situation wherein the majority places its own interests above the interests of a minority. Scholars have found that these direct democracy tools have disproportionately been used to promote conservative policies over progressive ones. They also note the potential threats direct democracy poses to democratic rights.

There is growing evidence, however, that these direct democracy tools are increasingly being used in a more broadly representative manner. And these measures often address a variety of progressive policies. Arizona, my home state, provides an interesting case study.

Mostly Western states

The citizen initiative and veto referendum process varies by state. In general, citizens collect signatures to have an issue placed directly on the ballot for the voters to decide.

Just half the states allow citizens to directly engage in this kind of policymaking. Twenty-four states allow some form of initiative, and 26 allow for referendums. The majority of these states allow both the initiative and veto referendum.

Most states that equip their citizens with direct democracy tools are in the West. About 60% of all initiative activity occurs in six states: Arizona, California, Colorado, North Dakota, Oregon and Washington. The states with the most veto referendums are North Dakota, Oregon and California.

Initially, Eastern and Southern states left out these direct democracy tools from their state constitutions primarily out of fear that direct democracy would empower Black people and immigrants.

Direct democracy tools found fertile ground in the Midwest and West during the populist and progressive movements of the late 19th century. As these territories became states, they often built these instruments into their state constitutions.

A total of 2,536 citizen initiative measures advanced in the 24 states that allow them from 2000 to 2023, with 1,631, or approximately two-thirds passing.

Defaulting to direct democracy

Two trends are reshaping the use of initiatives and referendums.

The first is the continued partisan polarization in the U.S. and voters’ frustration with the two-party system and the parties themselves.

Most Americans want their elected officials to compromise on important public policy issues, but the two major parties are increasingly embracing an uncompromising mindset that undermines their ability to address important public issues. I explore this in the book I co-authored with colleagues Jacqueline Salit and Omar Ali, “The Independent Voter.”

Second, many states are now controlled by one party. Forty states are currently under trifecta partisan control – where one party dominates the governor’s office, House and Senate. By population, only 17.4% of Americans are living in states with divided state government.

When elected officials are unwilling or unable to compromise, and the majority of U.S. citizens are living in states where there is consolidated control of government by a major party, important problems can go unaddressed.

‘Essential to a truly functioning democracy’

A woman at a protest holding a sign that says '750,000+ signed! Let us vote.'
Pro-choice supporters gather outside the Michigan State Capitol on Sept. 7, 2022, after Michigan’s elections board rejected a voter initiative that would have enshrined abortion rights in the state Constitution. Jeff Kowalsky/AFP via Getty Images

The history of direct democracy tools in Arizona, where I live, provides an interesting example of how these tools have been used in a broadly representative manner.

In preparation for becoming a state, the framers of Arizona’s Constitution in 1910 wanted legislators to be the primary method of making laws, but they were concerned that legislators might not act on key issues. They viewed the initiative and referendum as essential parts of a functioning democracy, in which citizens could get around legislative inaction.

During Arizona’s constitutional convention in 1910, the Los Angeles Express newspaper urged its neighbor to push for direct democracy: “Let not Arizona be deterred from its purposes by menaces of the reactionaries or threats from such errant boys of big business… Let it write the initiative, the referendum, direct primaries, and the recall into the constitution and arm its people forever with the power of complete self-government.”

Ballot initiatives have been used by every kind of group for all kinds of purposes in the state. They have been passed both to increase and to curb public spending. Measures approved by voters have opposed affirmative action and immigrants’ access to state and local funds.

Other ballot measures increased the minimum wage, established a redistricting commission to combat gerrymandering and allowed the use of medical and recreational marijuana.

In 2024, initiatives likely to appear on the ballot include measures to expand abortion access and mandate open primaries.

While many state legislative bodies have been overturning or altering voter initiatives, citizens in Arizona prevented this from taking place.

Arizonans passed a unique voter-initiated constitutional amendment in 1998 known as the Voter Protection Act. It prohibits a governor’s veto or legislative repeal of any voter-passed initiative.

The procedures to put such initiatives and referendums to vote, however, are still largely controlled by the state Legislature. Arizona lawmakers have been successful passing legislation leading to a significant increase in rejected signatures. Because a certain number of signatures are required to get an initiative or referendum on the ballot, such legislation makes it harder to do that.

Direct democracy tools such as the ballot initiative and veto referendum have provided Arizonans with important alternatives to enacting public policy when elected representatives failed to do so. And these measures are being used to address a range of public policy issues, both conservative and liberal. Arizona can serve as a role model for how direct democracy can work for the rest of the states.The Conversation

Thom Reilly, Professor & Co-Director, Center for an Independent and Sustainable Democracy, School of Public Affairs, Arizona State University

This article is republished from The Conversation under a Creative Commons license. 

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Thursday, March 21, 2024

AI vs. elections: 4 essential reads about the threat of high-tech deception in politics

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Like it or not, AI is already playing a role in the 2024 presidential election. kirstypargeter/iStock via Getty Images
Eric Smalley

It’s official. Joe Biden and Donald Trump have secured the necessary delegates to be their parties’ nominees for president in the 2024 election. Barring unforeseen events, the two will be formally nominated at the party conventions this summer and face off at the ballot box on Nov. 5.

It’s a safe bet that, as in recent elections, this one will play out largely online and feature a potent blend of news and disinformation delivered over social media. New this year are powerful generative artificial intelligence tools such as ChatGPT and Sora that make it easier to “flood the zone” with propaganda and disinformation and produce convincing deepfakes: words coming from the mouths of politicians that they did not actually say and events replaying before our eyes that did not actually happen.

The result is an increased likelihood of voters being deceived and, perhaps as worrisome, a growing sense that you can’t trust anything you see online. Trump is already taking advantage of the so-called liar’s dividend, the opportunity to discount your actual words and deeds as deepfakes. Trump implied on his Truth Social platform on March 12, 2024, that real videos of him shown by Democratic House members were produced or altered using artificial intelligence.

The Conversation has been covering the latest developments in artificial intelligence that have the potential to undermine democracy. The following is a roundup of some of those articles from our archive.

1. Fake events

The ability to use AI to make convincing fakes is particularly troublesome for producing false evidence of events that never happened. Rochester Institute of Technology computer security researcher Christopher Schwartz has dubbed these situation deepfakes.

“The basic idea and technology of a situation deepfake are the same as with any other deepfake, but with a bolder ambition: to manipulate a real event or invent one from thin air,” he wrote.

Situation deepfakes could be used to boost or undermine a candidate or suppress voter turnout. If you encounter reports on social media of events that are surprising or extraordinary, try to learn more about them from reliable sources, such as fact-checked news reports, peer-reviewed academic articles or interviews with credentialed experts, Schwartz said. Also, recognize that deepfakes can take advantage of what you are inclined to believe.

How AI puts disinformation on steroids.

2. Russia, China and Iran take aim

From the question of what AI-generated disinformation can do follows the question of who has been wielding it. Today’s AI tools put the capacity to produce disinformation in reach for most people, but of particular concern are nations that are adversaries of the United States and other democracies. In particular, Russia, China and Iran have extensive experience with disinformation campaigns and technology.

“There’s a lot more to running a disinformation campaign than generating content,” wrote security expert and Harvard Kennedy School lecturer Bruce Schneier. “The hard part is distribution. A propagandist needs a series of fake accounts on which to post, and others to boost it into the mainstream where it can go viral.”

Russia and China have a history of testing disinformation campaigns on smaller countries, according to Schneier. “Countering new disinformation campaigns requires being able to recognize them, and recognizing them requires looking for and cataloging them now,” he wrote.

3. Healthy skepticism

But it doesn’t require the resources of shadowy intelligence services in powerful nations to make headlines, as the New Hampshire fake Biden robocall produced and disseminated by two individuals and aimed at dissuading some voters illustrates. That episode prompted the Federal Communications Commission to ban robocalls that use voices generated by artificial intelligence.

AI-powered disinformation campaigns are difficult to counter because they can be delivered over different channels, including robocalls, social media, email, text message and websites, which complicates the digital forensics of tracking down the sources of the disinformation, wrote Joan Donovan, a media and disinformation scholar at Boston University.

“In many ways, AI-enhanced disinformation such as the New Hampshire robocall poses the same problems as every other form of disinformation,” Donovan wrote. “People who use AI to disrupt elections are likely to do what they can to hide their tracks, which is why it’s necessary for the public to remain skeptical about claims that do not come from verified sources, such as local TV news or social media accounts of reputable news organizations.”

How to spot AI-generated images.

4. A new kind of political machine

AI-powered disinformation campaigns are also difficult to counter because they can include bots – automated social media accounts that pose as real people – and can include online interactions tailored to individuals, potentially over the course of an election and potentially with millions of people.

Harvard political scientist Archon Fung and legal scholar Lawrence Lessig described these capabilities and laid out a hypothetical scenario of national political campaigns wielding these powerful tools.

Attempts to block these machines could run afoul of the free speech protections of the First Amendment, according to Fung and Lessig. “One constitutionally safer, if smaller, step, already adopted in part by European internet regulators and in California, is to prohibit bots from passing themselves off as people,” they wrote. “For example, regulation might require that campaign messages come with disclaimers when the content they contain is generated by machines rather than humans.”


This article is part of Disinformation 2024: a series examining the science, technology and politics of deception in elections.


Eric Smalley, Science + Technology Editor, The Conversation

This article is republished from The Conversation under a Creative Commons license. 


Sunday, March 17, 2024

Psychedelic drugs and the law: What’s next?

The push to legalize magic mushrooms, MDMA, LSD and other hallucinogens is likely to heighten tensions between state and federal law, drug law expert Robert Mikos says

When Oregon’s first psilocybin service center opened in June 2023, allowing those over 21 to take mind-altering mushrooms in a state-licensed facility, the psychedelic revival that had been unfolding over the past two decades entered an important new phase.

Psilocybin is still illegal on the federal level. But now, as researchers explore the therapeutic potential of psilocybin and other psychedelics, including LSD and MDMA (also known as Molly or ecstasy), legal reform efforts are spreading across the country — raising tensions between state and federal laws.

As a class, psychedelic drugs were outlawed in the United States by the Controlled Substances Act of 1970. The act designated psychedelics as Schedule I drugs — the most restrictive classification, indicating a high potential for abuse and no accepted medical use. That status limits research to federally approved scientific studies and restricts federal funding to research with “significant medical evidence of a therapeutic advantage.”

Despite these limitations, researchers have demonstrated the potential of psychedelics in the treatment of post-traumatic stress disorder, major depressive disorder, anxiety and addiction. A 2020 systematic review of recent research found that psychedelics can lessen symptoms linked to a variety of mental health conditions. While that review found no serious, long-term adverse physical or psychological effects from ingesting psychedelics, more research is needed on the latter.

Today, decades after research on the effects of hallucinogens on the brain was sidelined by the act, academic and cultural interest in psychedelics is on the rise. More than 60 percent of Americans now support regulated therapeutic use of psychedelics, while nearly half support decriminalization, and nearly 45 percent support spiritual and religious use. An estimated 5.5 million US adults use psychedelics each year.

In opening psilocybin service centers where adults can buy and consume “magic mushrooms” without a doctor’s prescription, Oregon took the biggest step yet toward expanding legal psychedelic access in the United States. In the process, it joined a growing number of states and municipalities that are carving their own paths with drug laws. Colorado legalized the use and possession of hallucinogenic mushrooms and three other psychedelics in 2022 and aims to open licensed use facilities by the end of 2024. And California’s legislature passed a bill in 2023 that would have legalized adult possession of psilocybin, the related psilocin and two other hallucinogens (dimethyltryptamine, or DMT, and mescaline), although Gov. Gavin Newsom vetoed it in October, asking for legislation that focuses on therapeutic uses.

In all, 20 states introduced psychedelic-related legislation in 2023, ranging from plans to establish research councils and working groups to proposals to legalize use and possession of certain drugs. Meanwhile, cities in California, Michigan and Massachusetts have stopped enforcement or otherwise decriminalized possession of some psychedelics, typically ones that are naturally found in plants and fungi. Washington, DC, the seat of the federal government, has also loosened its psychedelic laws.

Some of these reform efforts aim to revive research that might lead to badly needed mental health treatments; others are pushing back against what many deem unfair criminal punishments stemming from the “war on drugs.” The result is a growing patchwork of state and local laws that stand in conflict with the Controlled Substances Act.

What does the future hold? Robert Mikos, an expert on drug law at Vanderbilt University Law School in Tennessee, says the history of marijuana law reform may offer some indicators.

In 1996, California voters approved the medical use of marijuana, and today 38 states have medical marijuana programs, while 24 states and the District of Columbia have legalized recreational use. Seventy percent of Americans support marijuana legalization, up from about 25 percent when California first changed its law. And yet marijuana, which is sometimes itself considered a psychedelic, remains a Schedule I substance.

For marijuana, too, public perception underwent dramatic shifts as research demonstrated its relative safety and effectiveness for the treatment of pain and nausea, among other maladies.

Mikos analyzed the implications of marijuana reform history for the legal future of psychedelics in the 2022 Annual Review of Law and Social Science. In an interview with Knowable Magazine, he explored the path toward rescheduling, why different types of psychedelics need to be considered separately, and the interplay between federal and state drug laws.

This conversation has been edited for length and clarity.

What have you learned from studying the history of marijuana reform in terms of what’s now happening with psychedelics?

The biggest lesson is that you don’t have to put all your eggs in one basket and get the federal government to sign on, which is extremely difficult to do. The states provide an alternate forum for pursuing reforms. We’ve seen some small changes to federal law, but in the last 26 years or so, we’ve seen the states figure out ways around all the obstacles erected by the federal government. There are some compromises and sacrifices that have to be made to work around federal law, but you can pull this off and have meaningful reform without agreement from the federal government — even with some hostility from the federal government.

Do you think the legal journey of marijuana should inform the future for psychedelics?

There are differences here. No one even agrees on what the term psychedelics encompasses. Some people think immediately of plant-based psychedelics like psilocybin. Others would include lab-made drugs like LSD. It’s a much more diverse array of substances than marijuana. If someone wants to legalize psychedelics, they may have to pick one substance and run with it. That is a clearer path to success than saying you’re going to legalize all psychedelics. I don’t think any state would be willing to do that at this point.

Framing its use as medical helps — that was certainly true with marijuana. It’s much easier to sell the public on legalizing something for medical use rather than recreational or spiritual use. Under the Controlled Substances Act, the only lawful use of a controlled substance is medical, so there was a natural inclination to frame marijuana use as medical.

Politically, it would be easier to convince a majority of the public to support a ballot initiative to legalize some psychedelics, like psilocybin, for medical use. It would be a simpler story than saying, “Some people here want to go out and trip.”

In 2023, the US Department of Health and Human Services, which is tasked by the Drug Enforcement Administration with reviewing the medical and scientific evidence for a drug’s scheduling, recommended reclassifying marijuana from Schedule I to Schedule III, indicating federal recognition of its accepted medical use. That move would open the door to federal approval of medical marijuana but keep it criminally controlled. Could that be a path for psychedelic reform?

If the Drug Enforcement Administration does reschedule marijuana, it would show that you could get this done at the federal level — but consider that the Controlled Substances Act was passed more than 50 years ago. Marijuana could still end up moving only one rung, to Schedule II, which is very tightly controlled — cocaine is there right now. My takeaway is: Don’t hold your breath waiting for the federal government to change its laws.

And for psychedelics, it’s more complicated. You’d need to make that same demonstration to the Food and Drug Administration — that the drug has medical uses — for each and every drug you were interested in. (The FDA evaluates a drug’s safety and medical efficacy, as well as potential for abuse, among other factors, in its analysis.)

Still, there’s at least a sign, now, that you can convince the federal government to lower the controls on some of these long-forbidden substances. But given how much time it’s taken and how limited that impact would be, it suggests you need to do something else — probably going through the states again and not the federal government.

To what extent is the Controlled Substances Act dictating the trajectory of psychedelic reform?

The Controlled Substances Act privileges medical use, which is going to frame the debate around these substances. But I think people are going to shoehorn in uses that are not genuinely medical uses of the drug.

People are trying to scientifically test these drugs, but ironically, the Controlled Substances Act makes that very difficult. If a drug is on Schedule I, to move it off you need clinical trials demonstrating that it’s effective at treating some medical condition. But conducting those medical trials is really difficult because it’s Schedule I.

The federal government wants to make sure that something someone says is going to be used in a clinical research trial is not sold on the black market. So it imposes special controls, which it could relax to make it easier for universities, hospitals and scientists to test the medical efficacy of different psychedelics.

Even though psychedelics are often discussed as an entire class of drugs, they differ in their chemistry, how they’re created and how they affect individuals who take them. How will that influence the way advocates approach reform?

At the federal level, even if you conduct mountains of research demonstrating that LSD has some accepted medical use, that won’t have any effect on whether to reschedule psilocybin. Politically, it may be difficult to form alliances in that situation between people who believe strongly in legalizing psilocybin versus those who support legalizing a different psychedelic drug.

At the state level, it could get tricky. Will there be enough people out there who are willing to support an initiative targeted at just one of these psychedelics? We don’t have much public opinion research on psychedelics in general, and certainly not on individual psychedelics, which may be the route that reformers need to take.

MDMA was granted “breakthrough therapy” status in order to be studied as part of treatment for post-traumatic stress disorder, and the completion of a Phase 3 trial in fall 2023 means it could be approved by the FDA for this use as early as 2024. Would that require the drug to be rescheduled? And how would that change the trajectory for psychedelics overall at the federal level?

It would necessitate rescheduling. You can’t keep a drug on Schedule I if it has accepted medical use. Which other schedule it falls on depends on the relative harms and likelihood of abuse. But I’m not sure there are broader ramifications. The Controlled Substances Act calls for the scheduling of individual substances, rather than classes of substances, so the scheduling of MDMA has no implications for the scheduling of psilocybin.

What does the tension between state and federal psychedelics law look like?

It’s a bit like a chess match. The states can liberalize their laws and allow people to use, manufacture and distribute some psychedelics, such as psilocybin in Oregon, without fear of arrest from the state government.

The federal government could try to counter the states by making it very difficult for the states to regulate psychedelics. This was true in the early days of state marijuana law reforms. The states wanted to create a safe and heavily state-regulated supply system, but the federal government was threatening to crack down on suppliers, so states didn’t try to set up regulated supply systems. In California, for example, people set up enormous collectives that served tens of thousands of patients, but those suppliers weren’t regulated to the same degree they are now.

You saw state regulation take off only around 2009 when the Obama administration announced it would stop raiding medical marijuana distributors. But that was more than 12 years into state marijuana reforms. Prior to that, states said, “We’re going to call your bluff.… We’re not going to arrest patients. Instead, we’re going to tell patients to grow it themselves, get it from a friend or the black market.”

That’s less than ideal. The states didn’t want some 70-year-old terminal cancer patient having to grow their own medicine, but they said that’s better than threatening to arrest that patient. You might see a similar tit-for-tat in the psychedelics realm.

Oregon has tried to jump the gun a little bit with psilocybin. What they’re envisioning is a tightly regulated state supply system. You can’t buy it and use it at home at your leisure — you have to use it at a state-licensed psilocybin service center.

The problem with that is that it’s much easier for the federal government to shut down state-regulated suppliers because you’ve got a list of them, so it puts those suppliers in harm’s way. They can be arrested, prosecuted, thrown in prison for long terms and have their assets seized.

But if the federal government cracks down on those psilocybin service centers, Oregon might just lift its prohibition on making and distributing this drug. And then the federal government might come back to the table, as it eventually did with medical marijuana.

It’s a back-and-forth between the states and the federal government to figure out how much the federal government will tolerate.

What lessons have we learned from the early stages of psychedelic law reform?

Oregon passed Measure 109 back in fall 2020. It took three years for the first psilocybin service center to open. It takes time to figure out how to do this, especially for early adopters. Can we actually have a system where the state is looking over your shoulder while you’re taking this drug? Or is that going to backfire and is the federal government going to use that to crack down on these centers?

As long as the sky doesn’t fall and you don’t see some disasters from these early adopters, I think other states will warm to it. But the first few years are going to be slow going.

Are there indications yet about whether psychedelics will be able to gather the same kind of political backing that helped push marijuana reform?

I am deeply skeptical. If you look at marijuana, we’ve had the majority of Americans support legalization for recreational or adult use for 10 years and we’re just now getting some tepid indications that somewhere down the line the Biden administration might change federal law governing marijuana to allow for medical use.

It’s going to take a while before you get that sort of public support for psychedelics reform, if you ever get it, and you’d need that before whoever is in federal office 10 to 20 years from now actually embraces this.

The forecast at the federal level doesn’t sound favorable for reform advocates, but at the state level, do you think psychedelic reform is inevitable at this point?

Not necessarily. Psychedelics aren’t nearly as popular or familiar to the general public as marijuana is, so advocates of reforms will have a bigger job educating the public and convincing them that legalization is a good idea.

I don’t think we’re going to see a sudden rush to embrace psychedelics. You might see it in a few states like Oregon and California. Other states will wait on the sidelines and see how it works: Did they figure this out? Is it safe? Is it effective? Were they able to control it? Once you see that demonstration you might see some momentum pick up, especially if public support for psychedelics grows.

A decade from now, maybe seven or eight states will have legalized one psychedelic, probably psilocybin, ostensibly for therapeutic use but, in reality, for any use, as Oregon has done. And then maybe the federal government will reschedule one of these psychedelics. But this took 25 years for marijuana. It will probably be similar for psychedelics.

Why Fani Willis was allowed to stay on as prosecutor of criminal case against Trump in Georgia – and what happens next

Fulton County District Attorney Fani Willis listens to final arguments in her disqualification hearing on March 1, 2024, in Atlanta, Ga. Alex Slitz/AFP via Getty Images
Ronald S. Sullivan Jr., Harvard University

In an unexpected decision, a Georgia judge ruled that the conspiracy to commit election intereference case against Donald Trump and several associates can continue if Fulton County District Attorney Fani Willis either steps aside from the case or fires her former boyfriend, whom she hired as special prosecutor.

Within hours of the decision, the special prosecutor, Nathan Wade, stepped down.

The ruling by Fulton County Superior Judge Scott McAfee puts an end to a January 2023 motion to have Willis removed from the case for allegedly having a personal financial stake in the case by “benefiting from her romantic relationship” with Wade through the lavish vacations they took together.

Though Willis acknowledged “a personal relationship,” she claimed their relationship started after Wade was hired to prosecute Trump.

In his ruling, McAfee wrote that Willis showed a “tremendous lapse in judgment” regardless of when the relationship began.

In the case against Trump, four out of the 19 people charged have already pleaded guilty. Trump and the rest of the defendants have pleaded not guilty.

The Conversation asked criminal law scholar Ronald Sullivan to make sense of the ruling that allows Willis to continue her prosecution of Trump.

What just happened?

A middle aged white man wearing a black robe listens to testimony.
Fulton County Superior Court Judge Scott McAfee listens during a February 2024 hearing to determine whether two prosecutors should be disqualified from Donald Trump’s election interference case in Georgia. Alyssa Pointer/Pool via Getty Images

Judge McAfee entered a mixed ruling that caught most legal observers by surprise. He found that Trump’s defense team did not put forward sufficient evidence to show that Willis had an actual conflict of interest.

To the contrary, McAfee found that the value of Willis’ alleged benefit was less than $15,000 and did not support charges that Willis, who makes over $200,000 a year and was not experiencing any financial hardships, needed or relied on her relationship with Wade.

Though McAfee found no actual conflict of interest, he did find the appearance of a conflict. That means a reasonable person might believe that Willis’ actions as a prosecutor were compromised by her relationship with Wade.

On this basis, McAfee ruled that the existence of a romantic relationship presents an appearance of a conflict of interest. In order to cure this conflict, either Willis or Wade had to resign.

With Wade’s resignation, Willis will assign a different lawyer to the case.

What would have happened if the judge ruled against Willis?

Trump’s case would have been handed over to a state entity called the Prosecuting Attorneys’ Council of Georgia. The agency would then have appointed another Georgia district attorney’s office to take up the prosecution.

A Black man dressed in a dark suit sits at a table with his hands held together.
Special prosecutor Nathan Wade appears in court during his disqualification hearing on March 1, 2024, in Atlanta, Ga. Alex Slitz/Pool via Getty Images

In normal cases, Georgia lawyers report that this is a long and slow process. Given the magnitude of the Trump case, this process would have taken even longer. Significantly, the new prosecutor would not be bound by any decisions made by Willis’ office and could have even declined to prosecute the case altogether.

What’s the takeaway from the judge’s decision against Willis?

The judge essentially split the baby. By finding there is no actual conflict of interest, Willis is permitted to stay in the case. But Wade was forced to quit because of the appearance of a conflict.

The judge landed a few judicial jabs regarding Willis’ behavior that the Trump team will use to undermine the public’s faith in the district attorney’s office.

In a line that the Trump team surely will repeat, the judge wrote that an “odor of mendacity” exists with respect to Willis and the prosecution’s witnesses.

Where does the ruling leave Willis?

Prosecutors’ offices trade on the trust that juries give to the office. If that trust is eroded, the impact is often felt in “not guilty” trial verdicts when juries don’t trust what prosecutors say. Although Willis dodged a bullet by being able to stay in the case, she will have to manage the harm to her reputation.

What is the status of Trump’s case?

The case will proceed as before. Willis will likely appoint a senior attorney from within her office to lead the case, and that lawyer will pick up where Wade left the case.

This article was updated March 15, 2024, to reflect Nathan Wade’s resignation.The Conversation

Ronald S. Sullivan Jr., Professor of Law, Harvard University

This article is republished from The Conversation under a Creative Commons license. 

Thursday, March 14, 2024

How to overcome political polarization on climate change

Conversations — in real life — can help bridge the partisan divide, but the trick is to have some structure to the discussion, says a human ecologist

Getting the facts straight about climate change is not enough: Even though there’s plenty of evidence on its many effects, people are more divided than ever on how to handle emissions. Truly addressing the climate crisis calls for more than technological know-how or reams of data: It requires understanding human decision-making.

Human ecologist Thomas Dietz of Michigan State University has devoted much of his career to understanding why people do — or don’t — take pro-environmental actions.

Among his specialties is polarization of people’s views around environmental issues, particularly climate change. This polarization happens when differences in opinions spread further and further apart. Eventually, “Everybody holds very strong views and very little is left in the middle,” he says. “When you begin to get nobody in the middle, it becomes harder to come up with compromises.”

In a review published in the Annual Review of Environment and Resources, he and coauthors discuss how polarization occurs, its impact on decision-making and how people may still be able to find common ground. Polarization occurs on multiple levels, which makes finding consensus challenging, but research suggests at least one way to combat it.

When people with opposing political leanings talk to each other in structured discussions about issues they disagree on, Dietz and other researchers have found that they soften their views, making room to cooperate even on divisive issues like climate policy. Not infrequently, he says, people come away from these discussions with the realization that their own views are not as different from others’ as they thought.

Dietz’s latest book, Decisions for Sustainability: Facts and Values, examines challenges to making good decisions and suggests ways we can do better, even in the face of polarization. He spoke to Knowable Magazine about his work and what it means for effective policy. This interview has been edited for clarity and length.

How does polarization happen?

Polarization comes about through the foibles of our processing of information. We’re all inclined to biased assimilation of information. When you hear a new fact, your acceptance of it depends on whether it’s consistent with what you already know.

The other process that leads to polarization is homophily — you like to hang out with people whose views are much like yours. So not only are you not likely to take in new information, you’re also not likely ever to even hear it, because you’re only talking to people who you think are like you.

What’s the state of polarization on climate change in the US?

Arguably, climate change is the most polarized issue in US politics right now. Democrats and Republicans are split more strongly on that issue than they are on any of the other issues they are split on. In polls where people have been asked about multiple issues — like climate change, gun control, reproductive rights, affirmative action, immigration — climate change is the most polarized of them all. Republicans are about 60 percent less concerned on standard questions about climate change than Democrats. A decade ago, that gap might have been maybe 20 percent.

Research finds that polarization on climate is especially bad in the US. Why do you think that is?

Yes, in most studies, polarization of views about climate change is stronger in the US than in any other country. This may be because a two-party system facilitates polarization, because those who profit from fossil fuel use exert strong influence, and because of the overall pattern of polarization in views of any science that is linked to public policy. For the last 50 years, political strategies built on polarization have often been successful, encouraging more polarization. While these dynamics may not be unique to the US, they are strong here.

Because people are only listening to the sources that already agree with them and because there are motivated actors that really want to push their agenda, it takes a long time for scientific information to penetrate polarized political debates. There’s a lot of research out there that shows that the fossil fuel industry has worked very hard to keep climate change off the agenda, to push back against the notion that climate change is real, that it’s caused by humans, that it’s serious.

In your research you’ve identified other types of polarization that are maybe more insidious than just polarization of opinions. Could you talk about those?

There’s a second kind of polarization: perceived polarization. Perceived polarization is how different, if you’re in one of those polarized groups, you think your views are from the other group. Often we find that perceived polarization is bigger than the actual differences in people’s views.

The third piece is called affective polarization. That’s when you go from, “Those people really have the wrong views on climate change” to “They’re really not good citizens, they’re really not good people.” That, of course, is the most problematic. When you begin to think that the other side is not redeemable, it can become very, very hard to have functional democracy and try to work out compromises and move issues forward and learn from each other.

Research from America and Australia suggests that people tend to overestimate the degree of climate denialism in their own populations. Why does this happen?

People tend to overestimate how polarized the country is. They think that there are far more folks that are distant from them and have exactly the opposite views. And they underestimate the number of people that are in the middle. That’s a pretty common phenomenon; our thought processes tend to oversimplify things and pick up on extreme values.

If you assume that other people are very, very far from your view, then it’s winner take all — you’re going to assume the other people will not compromise with you. The process of trying to find a common understanding and ways forward that meet the needs of everybody breaks down.

How do we overcome climate misperceptions and polarization?

I strongly believe that getting people to talk with each other and with scientists as we analyze problems is a really good process. If you get people into structured discussions where facilitators help the process along, those can have important depolarizing effects.

“When you begin to think that the other side is not redeemable, it can become very, very hard to have functional democracy and try to work out compromises and move issues forward and learn from each other.”

You draw a random sample of people, invite them to get together, typically for a day or a day or two, in a neutral space — a local auditorium or a church basement. You assess people’s opinions beforehand and then you assess their views after they’ve had discussions with others.

Discussions are usually facilitated by a trained mediator, so people get to hear each other’s views in a civil way. And I think that works for most people. When people disagree strongly but don’t have strong views about the ethics and motivations of people who disagree with them, these discussion processes can allow people to find common ground and move forward from them.

On many issues, including climate change, those kinds of processes really do have a big impact on the people who participate. The challenge is: How do you then multiply that back out to the whole population? And I don’t think we know that.

What’s an example of how these talks work in practice?

I've often had everybody individually, privately write down the key ideas that they have on the issue. And then everybody goes around one at a time and offers one idea, and you keep going until you run out of ideas. The secret to that is the ownership decreases. By the time you're on the second round, people forget who put that idea up on the board. Then everybody talks about one issue. A whole lot of little steps help keep it from becoming the kind of shouting match that you can get if you just let people go at it.

Why do these structured discussions work to change people’s minds and even depolarize?

In deliberation, people deal with other real, complex, multifaceted people in ordinary conversation. And the rules of the process keep things from escalating. This reduces stereotyping and demonizing the hypothetical “other,” because the other is a person, not an abstraction. But we need more research on this and experimentation on ways to scale up.

Do you think social media, which tends to amplify extreme views, is making polarization worse?

Social media may exacerbate this. The evidence is very mixed so far. It’s not as bad as we might fear, but that doesn’t mean it’s not going to get worse. It is likely that the new potential of AI will make it a lot easier to generate polarizing bits of information to post, and also make it more effective to identify groups to target. People who have motivations to push various points of view have more potential to use their money to buy those kinds of AI and other resources to really push social media.

How do you think about polarization when considering a proposed climate policy and whether or not it will be successful?

This is where you get into problems with political gridlock. For example, economists tell us that putting a tax on carbon emissions is one of the best ways to reduce greenhouse gas emissions. Except that we’ve seen repeatedly in the US, going back to the Clinton Administration and at the state level, there is no way you’re going to get, under current politics, a carbon tax. I wish it weren’t so. But to put a lot of energy into trying to get a carbon tax right now doesn’t seem like a good way to go forward.

But if, say, a carbon tax really could be effective in curbing emissions, should we not try to convince people to change their mind on it?

If politics is blocking important initiatives that would help solve environmental problems, then we need to do two things: figure out what we can do now despite the politics, and what we can do to change the politics. It’s not either/or, it’s both/and.

How can we apply what you’ve learned from the structured discussion research to conversations about climate change in our daily lives?

I used to codirect a climate adaptation center in the Great Lakes. We’re already seeing some severe climate-related problems in rural areas in Michigan. Cherry growers would get unusually warm weather early in the spring, the cherries would all blossom, and then they get a hard freeze. Some years they lost the entire cherry crop.

We would always begin conversations with farmers with “This is the record of the temperatures for 100 years from a weather station you know.” We didn’t talk about climate models. We would just say to these communities, “Something’s going on here and it affects you.” And then we usually can find agreement on reasonable strategies for adapting to those problems.

Once people begin to explore that, they realize that if things keep getting worse, adaptation is going to be very hard and very expensive. We would find, often, over a period of a couple years, people would come around completely. Those cherry farmers got really interested in the climate models. You know, “What’s going to happen over the next 35, 50 years? Because when I plant cherry trees, I have to think on a 25-year time frame.”

Avoid being confrontational in ways that make people defensive. Energy efficiency and renewables are good for the climate, but they are also good for the economy, for national security, for reducing air pollution, for creating new jobs, for energy independence. So even if someone rejects climate change as an issue, there are other ways to discuss efficiency and renewables.

Invoking personal experience helps because it takes the conversation away from abstract, polarized politics to ordinary people and their lives. I often say things like, “Those solar panels were one of the best investments our family ever made,” or “It seems like the lake is freezing over less and less.” The key seems to be finding common ground.

Saturday, March 9, 2024

What is a frozen embryo worth? Alabama’s IVF case reflects bigger questions over grieving and wrongful death laws

An embryologist uses a microscope to view an embryo, visible on a monitor. AP Photo/Richard Drew, File
Katherine Drabiak, University of South Florida

In the weeks since the Alabama Supreme Court held that embryos are “unborn children” under one state law, most attention has been focused on in vitro fertilization – whether the decision imperils parents’ attempts to create a family. On March 6, 2024, Gov. Kay Ivey signed legislation to shield IVF providers from legal liability, though the new law does not address frozen embryos’ legal status.

As a health law professor, I believe it’s also important to understand the laws that shaped the court’s decision: not only Alabama’s laws about “unborn children,” but wrongful death laws. This is a legal claim where family members can bring a civil lawsuit against a person who intentionally or carelessly caused the family member’s death, which is different from any criminal charges.

Over the past 100 years, laws have evolved to reflect a wider sense of what it means to lose a loved one, and how to “compensate” their family. Courts have been asked to interpret how wrongful death laws should apply to situations before a child is born.

What happened in the clinic?

The Alabama case, LePage v. Center for Reproductive Medicine, was brought by three couples who had used IVF at a fertility clinic. They sued the clinic after a patient who wandered into the “cryogenic nursery,” where frozen embryos are stored, picked some up and accidentally dropped them on the floor, destroying them.

In the language of the court, this killed the embryos, since they might have developed into a healthy fetus if implanted in the uterus.

A steel vat, with icy condensation inside, open to reveal white packets inside at the bottom of the container.
Containers holding frozen embryos and sperm are stored in liquid nitrogen at a fertility clinic in Fort Myers, Fla., in 2018. AP Photo/Lynne Sladky, File

The three sets of parents filed a lawsuit based on a claim for wrongful death. Like about 40 other states, Alabama allows parents to bring a claim for wrongful death of an unborn child.

The court said the question in this case centered around whether the term “unborn child” in state laws only refers to an embryo or fetus in utero, or whether there is an “unwritten exception” for embryos that have not yet been transferred to the womb.

The court’s decision

Alabama Supreme Court cases in 2011 and 2012 had already held that the state’s wrongful death law allows expectant parents to bring a claim following a death at any stage of the embryo’s or fetus’s development.

In addition, Alabama amended its state constitution in 2018 to affirm that public policy of the state should protect “the rights of the unborn child.”

Combining the previous cases, the state constitution and even dictionary definitions, the court said nothing in the current wrongful death law would exempt “extrauterine children – that is, unborn children who are located outside of a biological uterus at the time they are killed.”

This ruling does not mean that the parents won a wrongful death lawsuit, but that a court will be able to hear the parents’ claim for wrongful death.

The legal ‘value’ of an embryo

This is significant because in other cases where embryos were destroyed, the law generally has treated embryos as parents’ property, or allege negligence by the clinic. Only a handful of other states – including Illinois, Missouri and Georgia – allow wrongful death lawsuits for embryos.

IVF is a significant investment of time and money, and involves a variety of medical risks. In a case where fertility treatment goes wrong, couples could try to recoup those costs through civil lawsuits that sometimes treat frozen embryos as property.

However, that does not account for each embryo’s biological and emotional uniqueness. Before the Alabama ruling, other cases had tried to classify embryos as living people to signify their irreplaceable value.

Some legal experts assert that embryos only have “subjective and relational value.” In other words, only parents can decide whether or not they are important and have meaning.

Other experts suggest that embryos have inherent value because they are each genetically distinct, unique human life at the earliest stage. They argue that allowing protection for some stages of human development but not others violates human rights principles.

How wrongful death laws work

How the value of an embryo is defined also shapes whether wrongful death laws would apply.

Wrongful death laws were originally designed to compensate family members for the loss of that person’s services and contributions. Damages from a lawsuit could pay medical bills, funeral expenses and lost earnings from that person’s job, for example.

Each state has its own wrongful death law. Since the 1850s, these laws have allowed parents to bring claims to recover damages from a person who causes their child’s death. Initially, these laws were designed as an economic tool because parents expected their children to work.

Now, according to some legal scholars, many states recognize that losing a child means much more: a moral injury, pain and the anguish from losing the child’s company and affection. Some states allow the family to recover damages for suffering and grief – recognizing a person’s inherent value, not only their economic value.

Awarding damages to a grieving family is meant to deter risky actions that could result in loss of life.

By the mid-1900s, courts began to allow wrongful death claims for children that died before birth as a result of another person’s negligence or carelessness. Some states specify that this includes at any stage of gestation.

Some laws, including in Nebraska and Texas, prevent families from suing the pregnant woman, or from suing her medical provider, if she opts to have a medical procedure that results in unintended fetal loss. Others specify that the law does not apply in cases of abortion.

What the case means moving forward

Some policymakers have expressed concern that Alabama’s decision “criminalizes” parents from trying to grow their family, or that they would face prosecution. However, this is not accurate, since this case only relates to civil lawsuits, not criminal law.

A woman in a long white sweater, holding a pink sign that says 'I just want to be a mom,' speaks with another blonde woman in a doctor's coat.
Patients and doctors gathered outside the Alabama Statehouse in Montgomery on Feb. 28, 2024, urging lawmakers to protect IVF services in the state. Kim Chandler/AP

Nor does the decision prohibit using IVF. The Alabama attorney general has stated that he does not intend to use this decision to prosecute either parents or IVF providers. However, several fertility clinics announced that they would pause their IVF services while assessing the law.

Based on the U.S. Constitution, courts can only interpret what the law is, not decide what they think it should be.

In response, state legislators rapidly proposed a variety of bills aimed at preserving IVF. The bill signed into law on March 6, 2024 gives broad immunity to IVF clinics, shielding providers from prosecution and lawsuits “for the damage to or death of an embryo.” However, it provides more protection than is standard, which may create unintended consequences – for example, potentially making it more difficult to sue for negligence or breach of contract.

As Alabama legislators discuss next steps, they need to incorporate the state constitution while considering how to reflect the will of their voters.The Conversation

Katherine Drabiak, Professor of Health Law, Public Health Law and Medical Ethics, University of South Florida

This article is republished from The Conversation under a Creative Commons license. 

What families need to know about how to safely store firearms at home

Guns are the leading cause of death of children in the U.S. Laurent Hamels via Getty Images
Kerri Raissian, University of Connecticut and Jennifer Necci Dineen, University of Connecticut

For the past few years, guns have been identified as the leading cause of death for children in the United States.

There were 2,571 children age 1 to 17 who died in shootings in the U.S. in 2021, 68% more than the 1,531 that occurred in 2000.

To help reduce the number of firearm-related deaths and injuries among children, Secretary of Education Miguel Cardona in January 2024 called upon school and district administrators to talk with parents and guardians about safe firearm storage practices.

As experts on the safe storage of firearms – and as leaders of the University of Connecticut’s ARMS Center for Gun Injury Prevention – we often get questions about the best ways to keep guns out of the hands of children. We offer the following tips:

1: Safely store all of your firearms

Nearly half of the households in the U.S. have at least one firearm, but only about 40% of firearm owners store all of their guns when not in use, according to data in a survey we recently fielded. Unsecured firearms have been linked to suicides, domestic homicides and accidental shootings. They also heighten the risk of unauthorized use, which includes theft.

2. Don’t assume you can hide your guns

Kids generally know the hiding spots for the things their parents or caretakers do not want them to find, such as holiday gifts or Halloween candy. The same is true with firearms.

In 40% of gun-owning households with children, adults said their children did not know where firearms were stored, a 2017 study found. However, many of the children reported knowing and being able to access the firearms.

Researchers estimate that 75% of children who live in homes with guns know where they are stored.

Adults may think they can instruct children to leave firearms alone, but the 2017 study also found that 22% of parents wrongly believed that their children had never handled their gun.

3. Store ammunition separately

Research shows that locking ammunition separately from firearms further reduces the risk of firearm injuries in homes with children and teenagers.

Bullets are scattered about a table top.
Storing ammunition separately from firearms can help reduce the risk of injury. Olena Domanytska via Getty Images

While storing an unreadied weapon locked away may feel counterintuitive to those who own guns for personal protection, research shows that keeping firearms locked or unloaded, or both, can also reduce risk of injury.

4. Learn to talk about firearm safety

While some families may not have firearms in their home, eventually children go to other homes and, as they get older, go unsupervised.

Keeping children safe from gun violence requires normalizing conversations on firearm storage, even for people in households where no gun is present.

Approximately 45% of all unintentional shooting deaths of children under 17 occurred outside of their own homes. When children visit friends, we believe it’s important for their parents to know if guns are present in the home they are visiting and, if present, whether those firearms are being safely stored.

For more information about how to discuss firearm safety, parents can visit websites such as BeSMART, End Family Fire and Secure Storage of Lethal Means.

5. Know the law

Twenty-seven states have some version of secure storage laws.

Based on our calculations using data from the Centers for Disease Control and Prevention, states with child access prevention laws – known as CAP laws – have a gun death rate that is 65% lower than states that do not have CAP laws (12.33 vs. 20.38 per 100,000). Of course, states with and without CAP laws have many differences; therefore, the lower rates cannot be attributed to CAP laws alone. However, the presence of CAP laws is protective and reduces gun death.

In the absence of a federal secure storage law, the legal requirements around firearm storage and preventing unauthorized children from accessing weapons vary by state or municipality.

For example, Connecticut requires firearms be in a locked device when not in use.

Iowa prohibits the storing or leaving a loaded firearm around children 14 and younger if it is not secured by a trigger lock or a securely locked container or some other secure location.

Further, while Michigan only recently added a safe storage law, Jennifer Crumbley, the mother of a boy who committed a mass school shooting with his parents’ unsecured firearm, was recently convicted of involuntary manslaughter in connection with the case. Her husband’s trial in the matter began on March 5, 2024.

6. Invest in a quality safe and/or locking device

There are various levels of locked gun storage, including trigger locks, metal cable locks, locked gun cases and gun safes. While storing a firearm and the ammunition in a locked combination or biometric device is safest, all of these methods can reduce the risk of gun injury and death. These locking devices can be purchased online, through some gun sellers or at sporting goods stores.

A biometric safe for a handgun is about US$65, a gun lock runs $55 to $75 dollars, and combination safes for long guns range widely from a couple of hundred dollars to a few thousand dollars.

Family-school-community partnerships allow America’s children to grow and thrive. By asking schools to share resources for secure firearm storage and communicate evidence-based safety practices, the Department of Education is helping schools address the leading cause of death among American children.

But families have to do their part, too. It begins by normalizing firearm safety conversations and storing firearms properly to keep children safe.The Conversation

Kerri Raissian, Associate Professor of Public Policy, University of Connecticut and Jennifer Necci Dineen, Associate Director of the ARMS Center for Gun Injury Prevention, University of Connecticut

This article is republished from The Conversation under a Creative Commons license.