In Theory…

Knisely’s Second Law states that “In theory, there’s no difference between theory and practice, but in practice there is!” My First Law states “Anything that exists is possible.”

Both laws are relevant to how Americans are treated by our legal system in the wake of the Supreme Court’s decision in the Gideon case, and why I’m ecstatic that Lawrence Tribe is joining Eric Holder’s Justice Department to work on improving legal access for the poor. But that’s just my personal opinion.

The post-Gideon history of legal representation for poor defendants is an excellent example of practice obliterating theory, and of America’s inability to establish – or at minimum observe – feedback loops from reality back to policy making. This is the design-of-government issue.

The Wikipedia entry for Gideon v. Wainwright will tell you more than you need to know about the case, starting with: “…the Supreme Court unanimously ruled that state courts are required under the Sixth Amendment of the Constitution to provide counsel in criminal cases for defendants who are unable to afford their own attorneys.” The ruling, in 1963, was unanimous. That was the law.

(BTW, googling “Gideon” will get you more than you want to know; the case is properly called a “landmark case.” There is even a famous book, Gideon’s Trumpet (1964). Now with a study guide!)

Ralph Temple delivered an address in honor of the 40th anniversary of the Gideon decision, in which he brought into clear focus its importance to a free people:

“Walter Van Tilburg Clark, in his book The Ox-Bow Incident, wrote: ‘True law, the code of justice, the essence of our sensations of right and wrong, is the conscience of society. . . . None of man’s temples, none of his religions, none of his weapons, his tools, his arts, his sciences, nothing else he has grown to, is so great a thing as his justice, his sense of justice. The true law . . . is the spirit of the moral nature of man. . . .’

“When we enter the court, we enter the temple of justice. And that’s why the Gideon case is so important. For the right to counsel is the most important of all rights, because without it none of the other rights can be protected. In this sense, the right to counsel is the key to the temple of justice.”

But of course the right to counsel means that either (a) lawyers must be found to work for free, or (b) someone must pay them, since the defendants cannot. It also must mean some minimal standards for attorney competence, or the right is meaningless (lawyers would say moot).

Georgetown University’s Law Center (my alma mater, class of ’72) held a symposium in 2003 marking the fortieth anniversary of Gideon. The website for the National Association of Criminal Defense Lawyers, one of the sponsors of the symposium, tells the story of Gideon in practice:

• The American Bar Association’s Standing Committee on Legal Aid and Indigent Defendants published a report, “Gideon Undone,” in 1982 (Gideon plus 19 years) clearly stating that criminal defense lawyers for the indigent were underpaid and overworked, whether public defenders, assigned counsel, or contract attorneys.

• A New York Times article in 2003 (Gideon plus 40 years) stated: “The recent spate of exonerations based on DNA tests has demonstrated that inadequate representation can, and does, lead to wrongful convictions. A Montana man, speaking at an Open Society Institute panel this month, told of spending 15 years in prison on a sexual assault charge after a trial in which his court-appointed lawyer did no investigation, hired no experts and failed to file an appeal. After 15 years, he was cleared with DNA evidence.”

(It is helpful that in 2001, the Fifth Circuit Court of Appeals finally decided that you couldn’t be put to death in Texas if your lawyer had slept through much of your trial. New York in 1996 and California in 1984 also came to recognize that sleeping lawyers weren’t much help.)

The larger problem, of course, is money. Few state or local governments have been willing, and fewer now are able, to pay for adequate numbers of public defenders or contract lawyers. And fewer private attorneys are willing to be assigned as counsel. This lack of resources is highlighted in Justice Denied, America’s Continuing Neglect of our Constitutional Right to Counsel:

“Because of insufficient funding, in much of the country, training, salaries, supervision, and staffing of public defender programs are unacceptable for a country that values the rule of law. Every day, the caseloads that defenders are asked to carry force lawyers to violate their oaths as members of the bar and their duties to clients as set forth in rules of professional conduct. In addition, private contract lawyers and attorneys assigned to cases for fees receive compensation that is usually not even sufficient to cover their overhead and that discourages their participation in defense systems. Equally disturbing, in most places across the country there is no oversight at all of the representation that these lawyers provide, and the quality of the work they provide suffers as a result.

“In addition, defendants throughout the country, especially in the lower criminal courts, are still convicted and imprisoned each year without any legal representation at all, or are “represented” by lawyers who have hundreds of other cases (thus violating rules of professional conduct), and lack the requisite expertise and sufficient support staff, including persons who can investigate their clients’ cases. Sometimes people who cannot afford an attorney sit in jail for weeks or months before being assigned an attorney; others do not meet or speak with their lawyers until the day of a court appearance. Too often the representation is perfunctory and so deficient as not to amount to representation at all.” (page x)

We’re not talking a lot of money here – not compared with redesigning the health care system, or even with Wall Street bonuses. There really should be enough money available to let our legal system hold its head high. There are so many countries where the legal system is a sham – it’s a shame that mine is also, in so many cases involving poor people.

And what does it say about our “respect for law,” and for our system of government? The Supreme Court can be quite explicit about what the legal system requires, and yet the other two branches ignore the Court’s direction, or just give it lip service?

I used to offer free advice (I still do…) to people who worked for me, and to my kids and their friends: “Just do what you say you’ll do,” I’d say. “Don’t promise the moon, don’t promise anything by COB yesterday, JUST DO WHAT YOU SAY YOU’LL DO. And you’ll go far.”

I want to hold my country to that same standard. For both theory and practice.

“The mood and temper of the public in regard to the treatment of crime and criminals is one of the most unfailing tests of any country. A calm, dispassionate recognition of the rights of the accused and even of the convicted criminal, …[and] the treatment of crime and the criminal mark and measure the stored-up strength of a nation, and are the sign and proof of the living virtue within it.”

– Winston Churchill

The Din of Inequity

“The Din of Inequity” – a presentation at my Harvard 40th Reunion.

About a week or so before my Harvard 40th Reunion in September, 2002, I got a request from Harvard to participate in a symposium on the first day. The title was to be “The Influence of Money — Personal and Corporate — on Washington Politics,” to be held in Sever 113.

I agreed to do the seminar, but I thought that this was an “old millennium” topic, given the past year’s headlines about Enron, WorldCom, Arthur Andersen, and the like [little did I know!]. I emailed Bob Bennett, the classmate who was to moderate the panel, and he said that the session would be more open-ended and I could bring up whatever I liked. All four panelists met for breakfast before the event, and we each had different favorite subjects.

When it was my turn, I said that corruption in Washington was “so last millennium,” and I wanted to talk about a topic of more concern to Harvard graduates of our generation. I reminded the group that many of us had taken Raphael Demos’ course, Philosophy 1 (A & B), and had of course fancied ourselves philosopher kings, or at least good candidates, ever since.

The two problems worthy of philosopher kings, I said, were global warming and the increasing inequality in American society. These were the two mentioned by a classmate, Peter Barnes, in our 40th Anniversary Report, and I agreed with him. I didn’t want to talk about global warming, so I’d address the growth of inequality. I wanted to make several points (here somewhat expanded):

  1. Inequality has been growing in America for some years. In 2001, for the first time, households in the top quintile (20%) earned more than half the nation’s income before taxes. The top 5%, with incomes above $150,000, earned 22.4% of the national income, up from 22.1 in 2000. (1) This is no longer news. From the New York Times: “For at least the past 15 years it has been hard to deny the evidence for growing inequality in the United States. Census data clearly show a rising share of income going to the top 20 percent of families, and within that top 20 percent to the top 5 percent, with a declining share going to families in the middle…. And other evidence makes it clear not only that inequality is increasing but that the action gets bigger the closer you get to the top. That is, it’s not simply that the top 20 percent of families have had bigger percentage gains than families near the middle: the top 5 percent have done better than the next 15, the top 1 percent better than the next 4, and so on up to Bill Gates.” (2)
  1. History shows that greater  economic inequality is correlated with less political stability. Good examples here are Sweden and Switzerland on the one hand, and Argentina and Zimbabwe at the other. Does the French Revolution ring a bell?

  1. Societies with less economic inequality are healthier. “Health in the Americas” (2002 Edition) from the Pan American Health Organization (3) makes this point. As quoted in the Washington Post (4), “The epidemiologists at PAHO found something that had been noticed elsewhere – namely that wide disparity in income in a population is a hazard to health. High-income, wide-gap Brazil has a lower life expectancy (68 years) and higher infant mortality (38 per 1000) than low-income, narrow-gap Peru (70 years and 37 per 1000).” And according to the New York Times article cited earlier: “Canadians can expect to live about two years longer than Americans. In fact, life expectancy in the U.S. is well below that in Canada, Japan and every major nation in Western Europe. On average, we can expect lives a bit shorter than those of Greeks, a bit longer than those of Portuguese. Male life expectancy is lower in the U.S. than it is in Costa Rica… A few months ago the conservative cyberpundit Glenn Reynolds made a splash when he pointed out that Sweden’s G.D.P. per capita is roughly comparable with that of Mississippi — see, those foolish believers in the welfare state have impoverished themselves! Presumably he assumed that this means that the typical Swede is as poor as the typical resident of Mississippi, and therefore much worse off than the typical American. But life expectancy in Sweden is about three years higher than that of the U.S. Infant mortality is half the U.S. level, and less than a third the rate in Mississippi. Functional illiteracy is much less common than in the U.S.”
  1. Rising inequality in America should be of concern to Liberals and Conservatives alike. Liberals will be concerned that median family income declined 2.2% to $42,228 in one year, and that Black household income is down to $29,500, while the percentage of Americans living below the poverty line rose to 11.7 in 2001. But conservatives should be concerned as well, because a stable American society is good for everyone, and (at least) equally good for the grandchildren and great grandchildren of the conservatives. And we would expect true conservatives to take this longer view.
  1. We know how our economy creates inequality. The workings of America’s economic system are no longer a mystery to us; there is precious little “terra incognita.” I discussed briefly James K. Galbraith’s book “Created Unequal.”  In the book, Galbraith argues (convincingly, to me) that we now know the “levers” on American capitalism that determine our levels of domestic inequality.
  1. What are the “levers” that create inequality? Galbraith argues that governmental decisions are the main forces affecting inequality. He includes the reliance on monetary policy to battle inflation, the redistribution of the tax burden, hostility to trade unions, and an indifference to preserving the real value of the minimum wage (see page 20).
  1. What is our intellectual obligation? If indeed increasing economic inequality challenges America’s political stability and physical health, and if we know what government actions are the “levers” controlling economic inequality, then we have an intellectual obligation to set those levers consciously, as a matter of public policy. And where we should set them should be a matter of public debate.
  1. What is our moral obligation? Clearly, we have a moral obligation to set the “levers” so as to minimize the suffering of our fellow citizens, consistent with other goals. For example, if Galbraith is right in asserting that the 1990’s proved that the NAIRU, (the natural, or non-accelerating inflation rate of unemployment) either doesn’t exist or is several percentage points below the level that results from the Fed’s interest rate manipulations, then a LOT of unemployed workers (and their families) have been suffering needlessly (see (5), pp 172 – 182). I myself would argue that many of us could spare the cash to alleviate a great deal more suffering. That’s part of the public debate, of course.
  1. The Role of the Harvard Class of 1962. In the stable society we all want, a public debate about inequality and any resulting changes in the positions of the “levers,” will only come about because the “haves” decide that their longterm costs outweigh their short term benefits from societal inequality. Individuals in groups such the Harvard Class of 1962, — in other words, the “haves” – who favor long term societal stability as well as fundamental “fairness” for all American citizens, should take the lead in moving the debate — and in moving the levers.

That’s what philosopher kings do.



(1) See also Money Income in the United States: 2001, Census Report P60-218, available at This report was summarized in the Washington Post on September 25, 2002: “U.S. Poverty Rate Rises, Income Drops; Increase in Ranks of Poor is First in 8 Years” (Steven Pearlstein; page A-3).

(2) For the full article, see Paul Krugman’s “For Richer” in the New York Times Magazine, October 20, 2002.

(3) Available at

(4) “Americas’ Life Expectancy Rises, but Health Mixed,” (David Brown) September 23rd, p A-2

November 8th, 2002

Plus ça change…

Every five years, Harvard offers its alumni an opportunity to write “a little something” addressed to the other members of his class and see it published. (And yes, by now alumnae and “her” class are included, but I graduated in 1962.) In 1992 the Thirtieth Anniversary Report from our class included the following two paragraphs from me:

“I was invited to join the [Presidential] transition team in 1988, and went to work for Sam Skinner at DOT, first as Deputy Assistant Secretary for Budget and now as the drug czar. We require 25,000 employers to test five million transportation employees for illegal drugs. Happy to discuss that with anyone who calls. Last year I cobbled together an 800 number, voice mail, fax service, and modem access to a drug regulations data base housed in Oklahoma. To our knowledge, this is now the best high-speed, broadband communications tool linking government with a regulated community. We did the systems work in seven months, a minor miracle in the government ADP circles. Call 1-800-CAL-DRUG and give it a go.

“Last year I also completed work on a new homeless support program, collecting $1.75 million from federal departments, writing a request for applications, and awarding grants to New York City, Baltimore, and San Francisco. This was sort of a ‘hat trick;’ there are advantages to becoming one of the ‘old boys.’ One program goal is exploration of ‘services integration,’ attempting to get the various parts of government to treat the various aspects of the homeless person as one problem set. The absence of ‘services integration’ accounts for much of the wasted effort in social service delivery today.”

During the past eighteen years we’ve seen quite an improvement in “communications tools linking government with regulated communities,” as well as with everyone else!

We have NOT seen as much improvement in what we then called “services integration,” and now travels under many other names. We talk about “stovepipes” on both coasts, and “silos” in the fly-over zone. We’re so stuck in our own stovepipes/silos that we can’t even agree on a single term of art!

And the design community talks of “jumping the fence” rather than “thinking outside the box.” I rather like “jumping the fence,” myself.

But will I become persona au gratin (that is, kinda cheesy) if I don’t keep saying “thinking outside the box?” That’s got me worried…

Cross Postings

As noted under “About,” I have started writing columns for the “Better, Faster, Cheaper” website run by the Ash Institute for Democratic Governance and Innovation at Harvard’s Kennedy School. For a number of years I’ve also been a judge for the Innovations in American Government Awards, run by the Ash Institute for the past twenty years.

Here are the three columns I’ve written this year:

1. Data to the People – A Tour of DC

One local’s experience with DC’s Apps for Democracy, which puts public information into the palm of your hand—literally

2. Not Being There

Report Reviews Use of “Telework” by Federal Agencies

3. Homelessness: Think Strategically, Act Humbly

The problem of homelessness has proven vexing for a long time. There were homeless people before that couple in a stable, and there still are – two thousand years later.

As we lawyers say, the columns are “not unrelated” to the design of government – those issues are just not explicitly addressed.

Happy New Year!

Some quotations related to Design of Government

Here are some of the quotations I’ve used to make more vivid the issues involved in the design (and operation!) of government. I gave them out most recently when teaching at the School of Public Service at St. Albans School, here in Washington, DC.


“I am not an advocate for frequent changes in laws and constitutions. But laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors.”  — Thomas Jefferson


“Deeply embedded somewhere in our thoughts or wishes — no doubt in some corner of the brain that is immune to factual evidence — is the belief that public institutions and programs exist to serve public needs. In this perhaps naive view, the links of the chain of public action begin with the identification of a need of society, by, say, a civic-minded group; next, measures to meet the need are debated and decided upon; and, finally, some institutional arrangement is made, and people set to work. It’s hard to help noticing, though, that in actuality things proceed, as often as not, in quite a different sequence. In this other sequence, the chain begins with the institutional arrangement, and only then is a need sought out — a need that will justify the continuing functioning of the institution. In other words, instead of starting with a problem and looking for an answer one starts with an answer and looks for the problem.” — The New Yorker


“Logic has never been the sole underlying principle of the development of governmental institutions.”– Elliot Richardson, January 23, 1976


“…in a computerized age…there may be a tendency to mistake data for wisdom, just as there has always been a tendency to confuse logic with values, and intelligence with insight. Unobstructed access to facts can produce unlimited good only if it is matched by the desire and ability to find out what they mean and where they would lead.”

“The biggest single need in computer technology is not for improved circuitry, or enlarged capacity, or prolonged memory, or miniaturized containers but for better questions and better use of the answers.” — Norman Cousins, in “The Computer and the Poet” Saturday Review, July 23, 1966


“He who would do good to another must do it in Minute Particulars:

General Good is the plea of the scoundrel, hypocrite & flatterer,

For Art & Science cannot exist but in minutely organized Particulars

And not in generalizing Demonstrations of the Rational Power.”

— William Blake, in Jerusalem, 1820


“There are those who look at things the way they are, and ask why… I dream of things that never were, and ask why not?” — Robert Kennedy

Those who “look at things the way they are, and ask why” are at best managers.

Those who “dream of things that never were, and ask why not” are often leaders.

Be a leader…

Bob Gates is not alone!

In last week’s hagiographic piece on Secretary of Defense Robert Gates, Joe Klein of TIME says “After a quietly impressive career in government that has spanned more than 30 mostly Republican years, Robert Gates is suddenly seeming almost, well, charismatic. He reeks authority. He is, according to several sources, the most respected voice in National Security Council debates. The President is said to love his unadorned manner. Much of which is attributable to the fact that, in the self-proclaimed twilight of his public career, Gates has emerged as that most exotic of Washington species — the bureaucrat unbound, candid and fearless. He tells members of Congress what he really thinks about their pet programs. He upends Pentagon priorities, demotes the military-industrial hardware pipeline and promotes the immediate needs of the troops on the front line.”

Bob Gates is really good at what he does. The Klein piece goes on, “Gates originally had planned to retire after a year or so, but he seems to have settled in, found a level of comfort and influence with the Obama Democrats that he never quite expected. ‘I don’t do maintenance,’ Gates told me. ‘I would never do a job just to sustain the status quo. I like to go into an institution that’s already good and do everything I can to make it better.’”

What Klein, and too much of Washington and America won’t acknowledge, however, is that Bob Gates is the product of a system that promotes the best talent based on merit, and he’s hardly alone.

Let me give you some numbers. The Federal civil service has about two million members. (In 1992 there were 2.169 million. Vice President Gore’s National Performance Review lowered the total to 1.814 by 2000, and in 2008 it was back up a bit to 1.875.) The Senior Executive Service – the equivalent to Generals and Admirals in the military – has about 6,000 career members (I’m not counting the political appointees). That’s a lot of people, even though it’s only three tenths of one percent (0.003%) – and all were chosen because of their accomplishments, not their acquaintances.

There’s another group that’s even more exclusive: the recipients of the Distinguished Rank Awards from within the Senior Executive Service. Only 60 of these awards are given out annually. Each recipient gets a nice check, a framed certificate, a photo-op with the President, and (at least the year I got one) an invitation for two to a lovely formal dinner at the State Department. Note that only 0.00003 percent of Federal government workers get this award each year. That’s the equivalent of only 9,000 Americans nationwide.

You might think that incoming cabinet secretaries and other agency heads would ask for the names of these folks and get to know them, individually or in a group, when they come in and take over. They might have some good advice. After all, we “know the territory.

Never heard of that happening, though. I guess we’re too exotic.

“Alone of human beings the good and wise mother…

“Alone of human beings the good and wise mother stands on a plane of equal honor with the bravest soldier; for she has gladly gone down to the brink of the chasm of darkness to bring back the children in whose hands rests the future of the years. ” — Teddy Roosevelt, The Great Adventure (1918)

I send this around every year at Mothers Day. Robert Knisely

Confucius and the Emperor

Many centuries ago, the Emperor of China was looking for a new Prime Minister. He called in Confucius, knowing his reputation as a wise man. The Emperor asked Confucius, “What would be the first thing you would do as Prime Minister?” Confucius replied, “I would call everything by its right name.” He did not get the job.

Thoughts on the Beaufort Scale

The Beaufort Scale measures wind speed by its visible effects on the ocean. Developed by a British Admiral in 1805, the scale goes from 0 (Calm: Smoke rises vertically) to 12 (Hurricane: Huge waves. Air is filled with driving spray, greatly reducing visibility.) For a large ship – a man of war – the range of 1 – 12 meant wind “just sufficient to give steerage” to “that which no canvas sails could withstand.” (

The Beaufort Scale notes surface water conditions, from 1 (ripples without crests) to 12 (huge waves), but does not attempt to describe what’s happening under the surface. Here there are ripples, waves, breaking waves, undertow, seas, swells, tides, and ocean currents, to name a few. Breaking waves can be further described as spilling or rolling, plunging or dumping, or surging. (

For most of us, ocean currents are both out of sight and out of mind. But they’re very important. An ocean current is continuous, directed movement of ocean water. The currents are generated from the forces acting upon the water like the Earth’s rotation, the wind, the temperature, salinity (hence isopycnal) differences and the gravitation of the moon. The depth contours, the shoreline and other currents influence the current’s direction and strength. The meshing of all of these characteristics is what creates the great flow of the global conveyor belt which plays a dominant part in the climate of many of the Earth’s regions. (

I worry that most people, most of the time, worry only about the surface conditions of the world around us – news from yesterday’s economy, today’s politics — a focus on yesterday and today, but not tomorrow or next week. After all, Sir Francis Beaufort was concerned with sailing ships safely, not with understanding oceanography.

We need deeper understandings of the world we live in – not just the physical world, but as Herbert Simon said in “The Sciences of the Artificial,” the world of human artifacts, whether our economies, our societies, or indeed our civilizations.