By Caleb O. Brown
SNITCH Contributing Writer
Megan Kanka was 7 years old when she vanished during a bike ride in her small suburban New Jersey neighborhood in July 1994. Police, firefighters and volunteers of all kinds shone lights up and down the residential street searching for her. Megan's mother pleaded with reporters to help the community find her daughter.
The community responded. Everyone up and down the block offered their help, including Jesse Timmendequas, a man who had recently moved into the house across the street. In fact, Timmendequas had seen Megan the day she disappeared. He'd been outside working on his car. He offered to carry a picture of the little girl, to put up flyers pleading for her return.
In his heart, Timmendequas knew Megan Kanka was not going to make it home, because he had abducted, raped and murdered her, then dumped her strangled body into the weeds of a county park.
No one knew Timmendequas had already been convicted twice of sexual assault. In 1979, he sexually assaulted a 5-year-old New Jersey girl and received a suspended sentence. He eventually served nine months for not fulfilling the terms of the suspended sentence.
He struck again in 1981, assaulting a 7-year-old girl. Timmendequas pleaded guilty and spent six years in prison. He then moved into Hamilton Township. No one in the town knew of his past.
After their daughter's death, the Kankas launched a crusade so Megan would not have died in vain. New Jersey and the nation took notice.
Megan's Law
Registering sex offenders is not new. California has been doing it since 1944. Kentucky has done it since 1994. In fact, registering those who commit various other offenses isn't new, either.
But Megan's Law added something very new: Convicted sex offenders suddenly had to keep the police aware of their residence and local police had to notify the community of the arrival of a sex offender in their midst.
New Jersey's ambitious attempt set off a flurry of such laws, and in 1996 President Bill Clinton signed a federal mandate telling states to either put Megan's Law on the books or lose federal funds.
Kentucky, like all states, quickly fell in line, turning its Sex Offender Registry into the primary means to notify communities of sex offenders. That included expanding the number of crimes covered by the registry maintained by state government.
Lt. Brad Bates with Kentucky State Police says the crimes included in the initial 1994 list of "registerable" sex offenses are first-, second- and third-degree rape, first-, second- and third-degree sodomy, first-degree sexual abuse, incest and first-degree unlawful transaction with a minor.
"The list expanded quite a bit after the federal law," he said.
Thanks to the federal mandate, offenses requiring registration now include promoting sexual performance of a minor, first-, second- and third-degree promoting prostitution (if the victim is a minor), second- and third-degree sexual abuse (if a minor is a victim), kidnapping, unlawful confinement and any attempt or solicitation for any of those crimes, Bates said.
And the number of registered offenders has grown as well. Bates said 50 to 60 new names are added to the sex-offender registry each month. From 1994 to 2000, around 1,800 offenders were added to the database. Since 2000, 1,250 offenders have been added. Right now, there are around 3,000 registered sex offenders in Kentucky. Indiana has more than 15,000 registered sex offenders.
The online registry maintained by state police is the principal method of making communities aware of sex offenders in various neighborhoods in Kentucky. Registered sex offenders in Indiana must register with local authorities. That information is then forwarded to the Indiana Criminal Justice Institute. Offenders' names, addresses, crimes and photos hit the web on or before the day they're released, according to state authorities.
Before the new sex-offender law went into effect, local sheriffs were charged with handling community notification, sometimes going door to door in neighborhoods to inform the public of a sex offender's presence. Since the federal mandate, that responsibility has shifted from authorities to individuals. If you want to know if a sex offender lives near you, you have to go online or call a hotline (1-866-564-5652) for the information.
Those sex offenders who have committed offenses that will get them listed in the registry must then check in with authorities at regular intervals and notify authorities whenever they move to another address inside or outside Kentucky.
Controversy
So is the registration requirement de facto probation?
Is it a scarlet letter hung over the necks of sex offenders that could possibly prevent them from getting employment or housing?
Opponents of portions of Megan's Law say the mandatory registration imposes an additional penalty on convicts, essentially punishing them twice for the same crime: They go to prison first, and then their names, addresses, photos and sex-crime backgrounds appear in public for all to see. They fear that reformed sex offenders may be the targets of harassment, and Kentucky even has a law protecting sex offenders from harassment.
Kentucky's sex offender registry states that "use of information from this website to harass a sex offender is a criminal offense punishable by up to 90 days in the county jail. More severe criminal penalties apply for more severe crimes committed against a sex offender."
Some supporters of the requirement say the registry and community notification is nothing more than an administrative penalty, like the removal of voting rights for convicted felons. The community, the supporters argue, has a right to know if a sexual predator lives among them. They say there is no constitutional right for offenders to keep that information from other citizens.
Still other supporters of the requirements say that Megan's Law notifications are no penalty at all, criminal or otherwise.
"The Kentucky Supreme Court holds that opinion as well," said Christie Floyd, an assistant commonwealth attorney in Jefferson County.
She cites the Kentucky Supreme Court's 2002 ruling in Hyatt vs. Commonwealth as evidence. The court found that registration statutes are not punitive and that they are reasonably related to the goals of protecting the public and assisting law enforcement.
Floyd, who also serves on Kentucky's Sex Offender Risk Assessment Advisory Board, added that requiring sex offenders to keep the state aware of their address is emphatically not probation.
"When someone's on probation, they're required to check in with a probation officer and do numerous other things," she said. "The registration and notification statutes really just place on the sex offender an obligation to initially provide this information and then to update any changes to that information."
The U.S. Supreme Court may decide otherwise within the next few months. The high court will rule by July of next year whether community notification programs in two states are unconstitutional. The court heard arguments on Nov. 13 on both cases. If it rules a certain way, perhaps hundreds of sex offenders could suddenly vanish from the commonwealth's fast-growing sex-offender registry. State police officials who maintain the registry don't know how many offenders might be affected.
Children vs. convicts
One of the two cases before the court is Smith vs. Doe, an Alaska case in which two offenders argue that they are being punished "ex post facto," or after the fact.
They argue their crimes were committed and they were convicted before the laws went into effect. If the court rules they're being punished after the fact, then dozens or hundreds of Kentucky's sex offenders may fall off the state's registry and out of the purview of interested communities.
In Kentucky's 1998 statute was a requirement that persons who were either convicted after that date or who were released from confinement after that date to register, according to Floyd. Essentially, the legislation was retroactive to include more offenders.
"The people released from confinement, some of their offenses occurred prior to the effective date of the statute," said Floyd.
If the Supreme Court rules against Alaska, Kentucky's registry would shrink to include fewer sex offenders.
Indiana's law differs slightly, and only sex offenders convicted after the effective date of the legislation are subject to registration, not just those released after the date.
The second case in front of the high court has similar implications. Connecticut Department of Public Safety vs. Doe involves two sex offenders who say their constitutional rights were violated because they didn't get a court hearing to determine if they're still dangerous. Twenty-three states have laws that require registration without the consideration of a court. Kentucky may also have to re-evaluate many registered sex offenders to see if their right to a hearing was similarly denied.
"If (the Supreme Court says) it's a penalty, then they might say that we have to give these people a hearing to say that they're not dangerous anymore," said John Powell, a staff attorney for the Kentucky Justice Cabinet.
Floyd added that many cases in Jefferson County have been remanded for hearings. But she said the high court may also effectively alter Kentucky's procedure.
Catherine O'Connor, executive director of Indiana's Criminal Justice Institute, agrees with Kentucky officials that both states' sex offender registries might have to be shut down while officials work with state attorneys general to interpret the court's ruling and adjust the registries.
O'Connor admits that Indiana does not afford convicts the right of a hearing to determine whether they should be put on the registry.
"Our law outlines which offenses require registration," she said. Kentucky, for better or worse, runs its registry the same way. If the court rules that sex offenders deserve a hearing to determine their risk to the community, Kentucky and Indiana may remand many more offenders' cases for such hearings, possibly shrinking sex offender registries even more.
But there is a bright spot parents might consider. Non-compliance with sex-offender registration in Kentucky is a Class D felony, punishable by up to five years in prison. A sex offender who skips town without telling the cops will likely face more aggressive extradition and prosecution than in other states. Few other states treat lack of compliance so harshly.
Delicate balance
Some of the most vocal critics of efforts to expand the scope of Megan's Law are also the most concerned with children's welfare.
Dan Armagh is an attorney for the National Center for Missing and Exploited Children. He advocates a balanced approach to applying the law, so that courts won't end up throwing out the good with the bad. Armagh cited the case of a truck driver who was convicted of soliciting a prostitute, then found himself to be a registered sex offender, even though there was no evidence that the man was a danger to anyone, least of all his grandchildren.
"Should he not be allowed to be unsupervised with his grandchildren?" Armagh said. "That kind of case demonstrates that you have to be somewhat judicious in what sex offenses you include in the registration requirement. The more selective you are, the better it's going to be in terms of withstanding constitutional scrutiny."
He says there's always a concern that if legislators go too far and apply Megan's Law to crimes that weren't anticipated when the original laws were passed, courts could end up throwing out the constitutional basis for the entire law.
That might not turn out to be a big risk in these Supreme Court cases, but Armagh says the cases here will still have a huge effect on how Megan's Law functions for communities all over the United States.
Wednesday, February 05, 2003
Thursday, August 22, 2002
Bad Moon Rising
By Caleb O. Brown
Snitch Contributing Writer
"Must be a full moon."
That’s a common refrain among nurses, police officers and observers of crime or other unusual human behavior. Even among reporters, listening to police scanners and watching the wires can often make one believe that the full moon might be responsible for the violent or otherwise odd things that people do.
For believers in the moon’s ability to affect human behavior, a full moon explains a whole host of voluntary and involuntary actions: expectant mothers going into labor, criminals running rampant, emboldened drunks wandering the streets, increased domestic violence and assault, increased homicide and the resultant increase in emergency room visits and hospital admissions.
We all know that the phase of the moon affects the tides, (fewer people know that it’s the gravitational relationship between the moon and the Earth that makes some of it happen). Sir Isaac Newton explained all of that to us back in the 1600s. Believers in the moon’s effect on human behavior say we’re all regularly affected by the changing phases of the moon, and those same ocean-moving gravitational forces may very well be responsible.
Astrologer and author John Townley has written that murder rates in at least one study wax and wane with the phases of the moon, that another study found levels of postoperative bleeding following a similar pattern and that more babies are conceived as a new moon becomes a full moon than otherwise.
And, at least historically, astrologers aren’t the only people who have sought to explain human behavior through the movements of heavenly bodies. A 19th century economist, William Stanley Jevons, was convinced that economic cycles coincided with sunspot activity and wrote extensively to plead his case. In the last century, economist Henry Moore formed a theory of economic cycles based upon the position of Venus in the sky. Both theories have since been refuted.
But the belief that a full moon yields strange behavior is by no means limited to astrologers — economic or otherwise. Police and health care professionals routinely believe that a full moon in the sky means a busy graveyard shift for everyone on duty.
Everybody knows
“It’s just common knowledge around here,” says Cpl. Dennis Cunningham with the New Albany Police Department. “It’s just a busier time around a full moon. More crazy stuff goes on during a full moon than at other times.”
Kentucky State Police dispatcher Kim Lewis agrees. She has “no earthly idea” why the full moon has such an impact, but she’s sure it does.
Citing an unusual number of strange reports from the field, Lewis says, “Phone-call volume is higher for about three days surrounding a full moon. We get a wider variety of calls, too.”
Some teachers have noted that their students pay less attention and are a bit more rowdy during a full moon. Lynne Huckleberry teaches sixth grade math at Moore Middle School and she says most of her colleagues can spot a full moon just by observing student behavior.
“They’re more rambunctious during a full moon. We (teachers) can walk down the hall and tell that there’s a full moon. I don’t know if there’s a scientific basis for it or not, but we can tell.”
Nurses at Baptist Hospital East agree that there is just something about a night with a full moon, whether it be in terms of the variety of afflictions or the volume of women in labor.
Paula Gelhausen is a nurse manager in Labor and Delivery at the hospital. She says she sees the pattern every time a full moon comes around.
“We’re used to it,” she said.
“You just anticipate and know that during a full moon you’re just going to be busier.”
Most of Gelhausen’s colleagues across the nation hold the same belief, that lunar cycles impact the number of expectant mothers in labor and therefore the pace of the workday. Connie Cuadros, a charge nurse in the same department, agrees.
“When I see the big full moon at night, I’m thinking that I’d better get some rest,” she says. “Pregnant ladies are anticipatory of a full moon because they know that’s the night they might go into labor.”
Cuadros says the department doesn’t keep data on the statistical difference between full-moon nights and other nights. Gelhausen says no staffing decisions are made based on lunar cycles.
Lt. Col. Mike Helm with the New Albany police was an orderly at Floyd Memorial Hospital before becoming a police officer. Combined, he has 25 years of experience observing the changes in human behavior during the full moon.
“It just brings out the worst in people,” Helm says, stressing that violent crimes like rape and assault are more numerous under full moons than at other times of the month.
Helm doesn’t recall specific full moons in the past when crimes may have occurred, but he’s confident that the trend would be easy to document.
“Statistics will probably bear that out,” he said.
In fact, statistical evidence does not support any of the preceding claims.
Where there’s smoke...
Louisville Fire officials took a quick look at data for the previous two full moons and found nothing that made full moons look suspicious.
Lt. Col. Tom Carroll is assistant director of Operations. He says the moon has not been shown to have any impact on the number of runs that firefighters make.
“We found that whether or not there was a full moon had no bearing on the number of runs made by fire crews on those days,” he said, adding that factors like day of the week and storm damage largely determine the range of runs made.
Carroll says he doesn’t buy the full-moon hypothesis.
“I’ve never noticed it,” he said. “One day is just like another, regardless of whether the moon is full.”
But fires are often random. They are not always acts of humans, but acts of nature.
What about hospital visits?
Baptist Hospital East uses a statistical package called LogiCare, which allows the hospital to track patients from minute to minute, from the emergency department to longer-term care. The program allows the hospital to adjust levels of staffing based upon various factors contributing to a need for additional or reduced staff at regular times.
Susan Domagala says the moon plays no role in any staffing decisions, and for good reason.
“We have not identified a statistical correlation between patient volumes or types based on the phases of the moon,” she said.
Domagala examined data on admissions, particular complaints like depression or alcohol abuse, ambulance transfers and many other factors.
She found no correlation between any of those things and phases of the moon.
Nearby Jewish Hospital had similar results for emergency room visits. Jeff Polson is a spokesman for the hospital.
“Our emergency department reviewed four months of emergency room data,” Polson said. “They did not find a trend. There is no notable difference between full moons and any other night in the number of people presenting at the emergency department.”
Pygmalion effect?
Jack Fletcher directs Eastern Kentucky University’s planetarium.
He says the evidence for the theories surrounding the full moon simply doesn’t exist.
“When you look at the statistical evidence, it’s not there. The statistics do not bear out that there’s any more crime or that more babies are born during the full moon,” he said.
Fletcher says some myths that are widely believed are examples of the Pygmalion Effect, or the idea that perceived outcomes are often shaped by our expectations. If we expect to be busier during full moons, we might subconsciously seek out evidence to bolster our belief that full moons cause us to be busy. Presto! The outcome is one we expect based upon the beliefs we hold.
Iain Murray is director of research at the Statistical Assessment Service (www.stats.org).
Said he: “Every time someone has done a proper review of activity in emergency rooms or criminal activity associated with phases of the moon, they found no difference, whether the moon was full or waxing or waning.”
Murray says that when the moon isn’t full, you don’t make the correlation between crime (or childbirth or emergency room visits) and the moon and vice versa.
When the moon isn’t full, he says, “It just won’t stick in your memory. That’s the problem with these things. That’s why when they do scientific studies they can’t find any correlation at all.”
If it’s any consolation, consider this: Although none of the researchers could find a relationship between the moon and human behavior, all of them say that doesn’t conclusively prove there isn’t a relationship.
Some things don’t show up on statistics, they say.
Snitch Contributing Writer
"Must be a full moon."
That’s a common refrain among nurses, police officers and observers of crime or other unusual human behavior. Even among reporters, listening to police scanners and watching the wires can often make one believe that the full moon might be responsible for the violent or otherwise odd things that people do.
For believers in the moon’s ability to affect human behavior, a full moon explains a whole host of voluntary and involuntary actions: expectant mothers going into labor, criminals running rampant, emboldened drunks wandering the streets, increased domestic violence and assault, increased homicide and the resultant increase in emergency room visits and hospital admissions.
We all know that the phase of the moon affects the tides, (fewer people know that it’s the gravitational relationship between the moon and the Earth that makes some of it happen). Sir Isaac Newton explained all of that to us back in the 1600s. Believers in the moon’s effect on human behavior say we’re all regularly affected by the changing phases of the moon, and those same ocean-moving gravitational forces may very well be responsible.
Astrologer and author John Townley has written that murder rates in at least one study wax and wane with the phases of the moon, that another study found levels of postoperative bleeding following a similar pattern and that more babies are conceived as a new moon becomes a full moon than otherwise.
And, at least historically, astrologers aren’t the only people who have sought to explain human behavior through the movements of heavenly bodies. A 19th century economist, William Stanley Jevons, was convinced that economic cycles coincided with sunspot activity and wrote extensively to plead his case. In the last century, economist Henry Moore formed a theory of economic cycles based upon the position of Venus in the sky. Both theories have since been refuted.
But the belief that a full moon yields strange behavior is by no means limited to astrologers — economic or otherwise. Police and health care professionals routinely believe that a full moon in the sky means a busy graveyard shift for everyone on duty.
Everybody knows
“It’s just common knowledge around here,” says Cpl. Dennis Cunningham with the New Albany Police Department. “It’s just a busier time around a full moon. More crazy stuff goes on during a full moon than at other times.”
Kentucky State Police dispatcher Kim Lewis agrees. She has “no earthly idea” why the full moon has such an impact, but she’s sure it does.
Citing an unusual number of strange reports from the field, Lewis says, “Phone-call volume is higher for about three days surrounding a full moon. We get a wider variety of calls, too.”
Some teachers have noted that their students pay less attention and are a bit more rowdy during a full moon. Lynne Huckleberry teaches sixth grade math at Moore Middle School and she says most of her colleagues can spot a full moon just by observing student behavior.
“They’re more rambunctious during a full moon. We (teachers) can walk down the hall and tell that there’s a full moon. I don’t know if there’s a scientific basis for it or not, but we can tell.”
Nurses at Baptist Hospital East agree that there is just something about a night with a full moon, whether it be in terms of the variety of afflictions or the volume of women in labor.
Paula Gelhausen is a nurse manager in Labor and Delivery at the hospital. She says she sees the pattern every time a full moon comes around.
“We’re used to it,” she said.
“You just anticipate and know that during a full moon you’re just going to be busier.”
Most of Gelhausen’s colleagues across the nation hold the same belief, that lunar cycles impact the number of expectant mothers in labor and therefore the pace of the workday. Connie Cuadros, a charge nurse in the same department, agrees.
“When I see the big full moon at night, I’m thinking that I’d better get some rest,” she says. “Pregnant ladies are anticipatory of a full moon because they know that’s the night they might go into labor.”
Cuadros says the department doesn’t keep data on the statistical difference between full-moon nights and other nights. Gelhausen says no staffing decisions are made based on lunar cycles.
Lt. Col. Mike Helm with the New Albany police was an orderly at Floyd Memorial Hospital before becoming a police officer. Combined, he has 25 years of experience observing the changes in human behavior during the full moon.
“It just brings out the worst in people,” Helm says, stressing that violent crimes like rape and assault are more numerous under full moons than at other times of the month.
Helm doesn’t recall specific full moons in the past when crimes may have occurred, but he’s confident that the trend would be easy to document.
“Statistics will probably bear that out,” he said.
In fact, statistical evidence does not support any of the preceding claims.
Where there’s smoke...
Louisville Fire officials took a quick look at data for the previous two full moons and found nothing that made full moons look suspicious.
Lt. Col. Tom Carroll is assistant director of Operations. He says the moon has not been shown to have any impact on the number of runs that firefighters make.
“We found that whether or not there was a full moon had no bearing on the number of runs made by fire crews on those days,” he said, adding that factors like day of the week and storm damage largely determine the range of runs made.
Carroll says he doesn’t buy the full-moon hypothesis.
“I’ve never noticed it,” he said. “One day is just like another, regardless of whether the moon is full.”
But fires are often random. They are not always acts of humans, but acts of nature.
What about hospital visits?
Baptist Hospital East uses a statistical package called LogiCare, which allows the hospital to track patients from minute to minute, from the emergency department to longer-term care. The program allows the hospital to adjust levels of staffing based upon various factors contributing to a need for additional or reduced staff at regular times.
Susan Domagala says the moon plays no role in any staffing decisions, and for good reason.
“We have not identified a statistical correlation between patient volumes or types based on the phases of the moon,” she said.
Domagala examined data on admissions, particular complaints like depression or alcohol abuse, ambulance transfers and many other factors.
She found no correlation between any of those things and phases of the moon.
Nearby Jewish Hospital had similar results for emergency room visits. Jeff Polson is a spokesman for the hospital.
“Our emergency department reviewed four months of emergency room data,” Polson said. “They did not find a trend. There is no notable difference between full moons and any other night in the number of people presenting at the emergency department.”
Pygmalion effect?
Jack Fletcher directs Eastern Kentucky University’s planetarium.
He says the evidence for the theories surrounding the full moon simply doesn’t exist.
“When you look at the statistical evidence, it’s not there. The statistics do not bear out that there’s any more crime or that more babies are born during the full moon,” he said.
Fletcher says some myths that are widely believed are examples of the Pygmalion Effect, or the idea that perceived outcomes are often shaped by our expectations. If we expect to be busier during full moons, we might subconsciously seek out evidence to bolster our belief that full moons cause us to be busy. Presto! The outcome is one we expect based upon the beliefs we hold.
Iain Murray is director of research at the Statistical Assessment Service (www.stats.org).
Said he: “Every time someone has done a proper review of activity in emergency rooms or criminal activity associated with phases of the moon, they found no difference, whether the moon was full or waxing or waning.”
Murray says that when the moon isn’t full, you don’t make the correlation between crime (or childbirth or emergency room visits) and the moon and vice versa.
When the moon isn’t full, he says, “It just won’t stick in your memory. That’s the problem with these things. That’s why when they do scientific studies they can’t find any correlation at all.”
If it’s any consolation, consider this: Although none of the researchers could find a relationship between the moon and human behavior, all of them say that doesn’t conclusively prove there isn’t a relationship.
Some things don’t show up on statistics, they say.
Saturday, June 01, 2002
Your Rights
By Caleb O. Brown
SNITCH Cincinnati Contributing Writer
June 2002
No one likes flashing blue lights, especially on a lonely night through the rearview mirror. Your sweaty palms and racing heart are preparing you for the worst.
But why? You haven’t done anything wrong.
The officer approaches a few minutes later and asks for the license and registration that you’ve been thumbing for the last several minutes. He takes them and asks if you know why he pulled you over.
You swallow and offer a meek, “No, sir,” as another cruiser pulls up behind the first one.
“Your taillight was out,” he says, tapping your license between his fingers. You sigh, loosen your grip on the wheel and relax. The other officer runs a beam of light across the interior of your back and front seats.
The officer then adds, “You mind if we look in the trunk?”
You feel a bit insulted and unjustly suspected, but because you want this situation to end, you oblige and allow the officers to prod several other parts of your car as well. One officer even pats you down. You watch blandly, wanting to ask them to please leave, but you stay silent. After all, they’ve got the badges and guns.
The disappointed officers end the search, thank you for your time and send you on your way. The tightness in your chest and profuse sweating haven’t subsided and you’re furiously trying to think about how you could have, should have, handled that situation without feeling so powerless.
Pop quiz: When did you waive your right to say “no”? Did you consent to the seizure and subsequent search? Did the police violate your rights at all?
If you’re like most people, you don’t know what rights you have during a traffic stop. What’s more, you probably wouldn’t stand up for them if you were a criminal law professor.
Christo Lassiter teaches criminal law at the University of Cincinnati’s School of Law. He’s felt like kicking himself more than once after consenting to various minor invasions during a traffic stop.
He says the power differential between the police and lone citizens is so great that drivers — innocent and guilty — alike consent to things even when they know that they are waiving their rights.
“In the two times I was pulled over, I found myself consenting and hating myself for it,” Lassiter says. “Police are trained to exploit traffic stops for maximum benefit. Lack of knowledge of your rights isn’t the reason people consent.”
Lassiter contends that when an officer asks for your consent, they do so in such a way that draws no distinction between the reason for the stop — such as a broken taillight, rolling through a stop sign — and a “fishing expedition.”
Lassiter says that once an officer has investigated the reason for the stop, “You’re on consent time” with regard to the questions that follow.
“If a law enforcement officer stops you for a busted tail light, and he’s finished investigating that tail light, his authority is over,” Lassiter says.
He says officers are trained to get consent by making a concealed leap from “legal investigation time” to “consent time.”
“It’s a seamless transition,” he says. “Absolutely seamless. I’ve got videotape of the (Ohio vs.) Robinette case, and you simply can’t tell where you switch from the initial reason for the stop — going 55 in a 45 zone — to a narcotics check.”
Ohio vs. Robinette
Sometimes it’s great to live in Ohio. Across the river in Kentucky, that “seamless transition” from the reason for the stop to the “fishing expedition” is a routine matter for police. The subtle transition is one that often gives police the chance to poke through a citizen’s passenger compartment, trunk or unlocked glove box.
In Ohio vs. Robinette, the U.S. Supreme Court held that the Fourth Amendment does not require that police give any kind of “warning” or say, “You don’t have to allow this,” before seeking consent to search your car.
That made Ohio prosecutors happy. Luckily for Ohio motorists, that wasn’t the final word.
Ohio Supreme Court justices found that while police officers need not give warning, the officers must “clearly demonstrate” that a motorist would feel free to go before an officer requests such a search.
In other words, immediately after you decline to allow police to rummage through old Dr. Pepper cans and sticky straws, you can start up your car and go about your business. In that particular circumstance, Ohio is the exception, not the rule.
Shorten the stop
It’s a pretty simple process to avoid a stop, but sometimes the basics are easy to forget. Even if you have your papers in order, you may not be able to avoid the long, and sometimes annoying, arm of the law.
When an officer stops you, he’ll immediately ask for your license and registration. If your registration isn’t with you, the officer may reasonably ask, “Is this your car?”
It’s best to avoid that line of questioning altogether. Thus, it’s probably a good idea to keep those two items handy, along with making sure your car has the proper tags and all your lights and blinkers are in proper working order.
The American Civil Liberties Union produces what it calls a BustCard, a short explanation of your rights and recommendations for making your visit with The Man go a little more quickly.
Among the recommendations, the card suggests that you make it crystal clear to the officer that you do not consent to any kind of search of your vehicle. That way, if something illicit is discovered, it’s inadmissible in court.
It’s easier than you might think to make the police stop short and sweet without — out of a desire to cooperate — giving up your rights.
Lassiter says that when the police ask for license and registration, the motorist should respond, “Here you go officer, but I don’t consent.”
He believes it’s more important that you speak the “no consent” declaration many times, clearly, and at the beginning of the conversation so that there can be no question or confrontation on the matter later. Lassiter goes so far as to recommend that drivers practice so that it will be easier to refuse consent should the occasion arise.
“If you can actually voice those words, you might actually win something in that dynamic, but it’s really hard to get that out,” he said.
The ACLU’s Bustcard states, “If you’re suspected of drunk driving (DWI) and refuse to take a blood, urine or breath test, your driver’s license may be suspended.”
Terry Cosgrove, of the Cincinnati Law Department, advises police on such matters. He says refusing a breathalyzer test will get your driver’s license suspended, but it’s not a criminal penalty.
“In other states, refusing a breathalyzer test is a fourth-degree misdemeanor,” Cosgrove said. “In Ohio, it’s not a separate crime.”
This is routine?
Before you start denying consent left and right, though, it’s important to note what police can make you do during a routine traffic stop. A series of U.S. Supreme Court rulings have boiled down to a series of powers police do have, balancing the interests of public safety against Fourth Amendment protections.
Police can order a driver out of the car during a routine traffic stop. Police may frisk a passenger or order passengers out of the car, but cannot compel passengers to identify themselves. Police do not need to advise you of any of your rights unless you are arrested.
If you are arrested, police can search the available portions of your vehicle, including the available portions of the passenger compartment and — if it’s unlocked — the glove box.
Roadblocks
Police can pull you over for one of three reasons: probable cause, which means they have observed you committing a crime; reasonable suspicion, which means that, more than likely, you have not committed a crime, but you might have. It’s a lower, less definite, standard.
Or, in the case of a roadblock, police can pull you over for no reason at all.
Thankfully, in Ohio, police don’t engage in drunk-driving checkpoints, but it’s a matter of procedure for officers rather than mandate from the law books.
Cosgrove says police don’t use roadblocks because police “didn’t find it was that effective.”
He says the police department found that individual officers, for example, could take more drunk drivers off the road than the same number of officers working one roadblock.
Still, roadblocks go on all the time, but rest assured that during a roadblock, your car will not be targeted, Grateful Dead sticker or not. Officers conducting checkpoints are not allowed to use any discretion in choosing which cars are stopped at the checkpoints. This helps eliminate allegations that officers are profiling motorists.
A procedure could be “every second car, every third car … a procedure where every car is treated the same,” Cosgrove says.
But roadblocks generally seem to be constitutional, at least for drunk drivers.
Police — in the interest of public safety — can require a motorist stopped at a roadblock to step out of the car, provide “lung samples,” and undergo a field sobriety test.
Lassiter stresses that when an officer pulls you over, he or she is not there to give you a lesson in your rights.
Regardless of what the courts have decided, he said, police exist to investigate, stop and prevent crime.
SNITCH Cincinnati Contributing Writer
June 2002
No one likes flashing blue lights, especially on a lonely night through the rearview mirror. Your sweaty palms and racing heart are preparing you for the worst.
But why? You haven’t done anything wrong.
The officer approaches a few minutes later and asks for the license and registration that you’ve been thumbing for the last several minutes. He takes them and asks if you know why he pulled you over.
You swallow and offer a meek, “No, sir,” as another cruiser pulls up behind the first one.
“Your taillight was out,” he says, tapping your license between his fingers. You sigh, loosen your grip on the wheel and relax. The other officer runs a beam of light across the interior of your back and front seats.
The officer then adds, “You mind if we look in the trunk?”
You feel a bit insulted and unjustly suspected, but because you want this situation to end, you oblige and allow the officers to prod several other parts of your car as well. One officer even pats you down. You watch blandly, wanting to ask them to please leave, but you stay silent. After all, they’ve got the badges and guns.
The disappointed officers end the search, thank you for your time and send you on your way. The tightness in your chest and profuse sweating haven’t subsided and you’re furiously trying to think about how you could have, should have, handled that situation without feeling so powerless.
Pop quiz: When did you waive your right to say “no”? Did you consent to the seizure and subsequent search? Did the police violate your rights at all?
If you’re like most people, you don’t know what rights you have during a traffic stop. What’s more, you probably wouldn’t stand up for them if you were a criminal law professor.
Christo Lassiter teaches criminal law at the University of Cincinnati’s School of Law. He’s felt like kicking himself more than once after consenting to various minor invasions during a traffic stop.
He says the power differential between the police and lone citizens is so great that drivers — innocent and guilty — alike consent to things even when they know that they are waiving their rights.
“In the two times I was pulled over, I found myself consenting and hating myself for it,” Lassiter says. “Police are trained to exploit traffic stops for maximum benefit. Lack of knowledge of your rights isn’t the reason people consent.”
Lassiter contends that when an officer asks for your consent, they do so in such a way that draws no distinction between the reason for the stop — such as a broken taillight, rolling through a stop sign — and a “fishing expedition.”
Lassiter says that once an officer has investigated the reason for the stop, “You’re on consent time” with regard to the questions that follow.
“If a law enforcement officer stops you for a busted tail light, and he’s finished investigating that tail light, his authority is over,” Lassiter says.
He says officers are trained to get consent by making a concealed leap from “legal investigation time” to “consent time.”
“It’s a seamless transition,” he says. “Absolutely seamless. I’ve got videotape of the (Ohio vs.) Robinette case, and you simply can’t tell where you switch from the initial reason for the stop — going 55 in a 45 zone — to a narcotics check.”
Ohio vs. Robinette
Sometimes it’s great to live in Ohio. Across the river in Kentucky, that “seamless transition” from the reason for the stop to the “fishing expedition” is a routine matter for police. The subtle transition is one that often gives police the chance to poke through a citizen’s passenger compartment, trunk or unlocked glove box.
In Ohio vs. Robinette, the U.S. Supreme Court held that the Fourth Amendment does not require that police give any kind of “warning” or say, “You don’t have to allow this,” before seeking consent to search your car.
That made Ohio prosecutors happy. Luckily for Ohio motorists, that wasn’t the final word.
Ohio Supreme Court justices found that while police officers need not give warning, the officers must “clearly demonstrate” that a motorist would feel free to go before an officer requests such a search.
In other words, immediately after you decline to allow police to rummage through old Dr. Pepper cans and sticky straws, you can start up your car and go about your business. In that particular circumstance, Ohio is the exception, not the rule.
Shorten the stop
It’s a pretty simple process to avoid a stop, but sometimes the basics are easy to forget. Even if you have your papers in order, you may not be able to avoid the long, and sometimes annoying, arm of the law.
When an officer stops you, he’ll immediately ask for your license and registration. If your registration isn’t with you, the officer may reasonably ask, “Is this your car?”
It’s best to avoid that line of questioning altogether. Thus, it’s probably a good idea to keep those two items handy, along with making sure your car has the proper tags and all your lights and blinkers are in proper working order.
The American Civil Liberties Union produces what it calls a BustCard, a short explanation of your rights and recommendations for making your visit with The Man go a little more quickly.
Among the recommendations, the card suggests that you make it crystal clear to the officer that you do not consent to any kind of search of your vehicle. That way, if something illicit is discovered, it’s inadmissible in court.
It’s easier than you might think to make the police stop short and sweet without — out of a desire to cooperate — giving up your rights.
Lassiter says that when the police ask for license and registration, the motorist should respond, “Here you go officer, but I don’t consent.”
He believes it’s more important that you speak the “no consent” declaration many times, clearly, and at the beginning of the conversation so that there can be no question or confrontation on the matter later. Lassiter goes so far as to recommend that drivers practice so that it will be easier to refuse consent should the occasion arise.
“If you can actually voice those words, you might actually win something in that dynamic, but it’s really hard to get that out,” he said.
The ACLU’s Bustcard states, “If you’re suspected of drunk driving (DWI) and refuse to take a blood, urine or breath test, your driver’s license may be suspended.”
Terry Cosgrove, of the Cincinnati Law Department, advises police on such matters. He says refusing a breathalyzer test will get your driver’s license suspended, but it’s not a criminal penalty.
“In other states, refusing a breathalyzer test is a fourth-degree misdemeanor,” Cosgrove said. “In Ohio, it’s not a separate crime.”
This is routine?
Before you start denying consent left and right, though, it’s important to note what police can make you do during a routine traffic stop. A series of U.S. Supreme Court rulings have boiled down to a series of powers police do have, balancing the interests of public safety against Fourth Amendment protections.
Police can order a driver out of the car during a routine traffic stop. Police may frisk a passenger or order passengers out of the car, but cannot compel passengers to identify themselves. Police do not need to advise you of any of your rights unless you are arrested.
If you are arrested, police can search the available portions of your vehicle, including the available portions of the passenger compartment and — if it’s unlocked — the glove box.
Roadblocks
Police can pull you over for one of three reasons: probable cause, which means they have observed you committing a crime; reasonable suspicion, which means that, more than likely, you have not committed a crime, but you might have. It’s a lower, less definite, standard.
Or, in the case of a roadblock, police can pull you over for no reason at all.
Thankfully, in Ohio, police don’t engage in drunk-driving checkpoints, but it’s a matter of procedure for officers rather than mandate from the law books.
Cosgrove says police don’t use roadblocks because police “didn’t find it was that effective.”
He says the police department found that individual officers, for example, could take more drunk drivers off the road than the same number of officers working one roadblock.
Still, roadblocks go on all the time, but rest assured that during a roadblock, your car will not be targeted, Grateful Dead sticker or not. Officers conducting checkpoints are not allowed to use any discretion in choosing which cars are stopped at the checkpoints. This helps eliminate allegations that officers are profiling motorists.
A procedure could be “every second car, every third car … a procedure where every car is treated the same,” Cosgrove says.
But roadblocks generally seem to be constitutional, at least for drunk drivers.
Police — in the interest of public safety — can require a motorist stopped at a roadblock to step out of the car, provide “lung samples,” and undergo a field sobriety test.
Lassiter stresses that when an officer pulls you over, he or she is not there to give you a lesson in your rights.
Regardless of what the courts have decided, he said, police exist to investigate, stop and prevent crime.
Thursday, May 09, 2002
Wednesday, January 10, 2001
Would FedEx-USPS deal run afoul of antitrust laws?
By Caleb O. Brown
Louisville Eccentric Observer
Disclosure last year that the U.S. Postal Service and Federal Express Corp. were in talks to form what was termed a "strategic alliance" drew early fire from such powerful voices as GOP Congressman Henry Hyde and United Parcel Service Inc., FedEx's strongest competitor.
Following the announcement, Hyde - as chairman of the House Judiciary Committee - drafted a letter to Joel Klein, then head of the antitrust division of the federal Department of Justice, asking him to look into the antitrust implications of such a deal. There was one obvious problem with the request, however: The Postal Service is immune from antitrust laws. And Hyde, whose term as Judiciary Committee chairman concluded at the end of the year, still has not received a response from either Klein, who has since resigned or other DOJ officials.
The Postal Service's Board of Governors was expected to formally review the prospects of a joint venture with FedEx at a meeting scheduled for after LEO's Tuesday press deadline. Prior to the session, neither Postal Service nor FedEx officials had been forthcoming with many details. For its part, FedEx had done little more than reluctantly confirm that there had been talks. "Formally, or informally, we have been meeting," said FedEx media specialist Jim McCluskey. (See related story on Page 12.)
That such negotiations have been underway is indicative of the identity crisis at the Postal Service, which is trapped between its public mission and its government-guaranteed monopolies. The Postal Service, a tax-exempt federal agency with the mandate to provide what its leaders call "universal service," reported continued operating losses in November and badly needs a way to turn things around and generate new revenue.
One possibility is to further delve into e-commerce and its promise of increased package deliveries -- areas dominated now by UPS and FedEx. UPS spurned the overtures, but FedEx is apparently interested in exploring the idea.
There's at least one obvious problem for anyone who would compete with such an alliance: The Postal Service controls the rates all carriers can charge.
Since the idea was announced, critics have wondered about the degree to which FedEx would share the Postal Service's monopoly powers. Would FedEx be allowed to sell its products in the thousands of post offices nationwide? What kind of competitive advantage would FedEx gain by affiliating strategically with a federal agency that not only pays no taxes, but regulates its competitors as well?
Letters R Us
If you didn't know any better, you might actually think the Postal Service was a private company with an official-sounding name. A phone call to the Postmaster General's Washington, D.C. office (202-268-2500) is met with a recorded welcome to "corporate headquarters." Pointing your Web browser to usps.gov sends you to the same page as usps.com. Television spots from the Postal Service have favorably compared the agency's rates with those of UPS and FedEx, with The Steve Miller Band providing the soundtrack. In post offices throughout the country during the recent holiday season, patrons saw posters and merchandise from the Universal Films release "How the Grinch Stole Christmas." Signs wished customers "Happy Wholidays!" while USPS employees sold Grinch merchandise. The Whoville Post Office was portrayed favorably in the film.
The fact that the Postal Service looks private, however, has little to do with its monopoly power.
While the Postal Service does not receive an annual appropriation for its operations (other than reimbursement for delivering mail to the blind and nonprofit organizations at a discounted rate), it has been allowed "special privileges." For example, the agency is exempt from property and income taxes. It receives favorable interest rates when borrowing money. It charges no tax on retail items and does not pay U.S. Customs to process packages, as private carriers are required to do.
As for the Postal Service's recent foray into e-commerce and expanded package delivery, that's where the money is. The most costly portion of operation for the Postal Service is fulfilling its public obligation of universal service -- delivering to every postal address in the United States.
Doing that, however, has become increasingly less profitable. And in an age of e-mail, direct deposit and online bill payments, the Postal Service estimated that operating loses for 2000 would be $200 million and would reach $480 million this year. The 2001 losses would be lessened by the 1-cent rate hike that took effect this week, but ironically, about a third of the shortfall is attributed to the federal government delivering checks and other mail electronically rather than by post.
In other words, the post office needs to find a way to make its public mission profitable and must use its advantages to make door-to-door delivery a venture that doesn't lose money.
Enter Federal Express, second only in size to UPS among private carriers in the United States.
Critics, like UPS spokesman Steve Holmes, say an alliance between FedEx and the Postal Service "goes to the core issue of whether a private company should be able to leverage government assets."
And it appears the private business and the public entity could reap real gains from the alliance.
Louisville Postmaster Bob Lochhead says the proposed alliance would give the Postal Service access to FedEx's cargo space on shipments throughout the country. FedEx, for its part, would gain coveted "last mile" delivery for many of its packages, using mail carriers. That is, the Postal Service would use its door-to-door routes to deliver packages for FedEx in addition to regular postal letters.
There is nothing prohibiting FedEx or UPS from delivering to residences and businesses -- indeed, they now do -- but as Lochhead pointed, out the Postal Service also routinely has access to other drop points, like post office boxes, where other carriers "can't legally go."
While it seems a no-brainer about why the Postal Service would want to attach itself to a profitable private carrier, others see potentially large problems with such an alliance and the impact it would have on the marketplace and on those left out of the alliance, like UPS.
"UPS has some big plans in my district," Hyde said during a telephone interview last month. "I simply question whether this discussion between FedEx and the Postal Service is an open process."
Hyde's letter to Klein, the Justice Department's former antitrust head, said, "If the Postal Service were a private entity, any final alliance would certainly require scrutiny by the Antitrust Division." He added that the alliance shouldn't be confirmed without "a full understanding of its competitive implications."
Soon thereafter, two other Republican congressmen -- Dan Burton, R-Ind., and John McHugh, R-N.Y., -- raised similar concerns in a letter to Attorney General Janet Reno, calling attention to the fact that the Postal Service is, in fact, immune from antitrust laws. There has been no response from Reno, and presumably, the issue would be addressed by the new attorney general if Reno does not answer before the Bush administration takes over the reigns of government on Jan. 21. (Former Sen. John Ashcroft of Missouri has been nominated by President-elect Bush to succeed Reno.)
Regarding the proposed alliance, Rep. Anne Northup, a Republican who represents Louisville's 3rd District, was mum. Northup, who sits on the Treasury-Postal Appropriations subcommittee, said through a spokesman last month: "We will be questioning the Postmaster General about this proposed alliance when he appears before our subcommittee in the spring."
She may be able to do little more than question the postmaster general, however. It's unclear what authority, if any, Congress has over the Postal Service. Of Kentucky's two Republican U.S. Senators, Jim Bunning did not return phone calls, and Mitch McConnell said, though a spokesman, that he has a staffer "working on it."
Though UPS' Holmes said FedEx would be "leveraging government assets" for private benefit, a Postal Service official said in published reports that there would be "no exclusivity" in talks with FedEx. Speaking to Government Executive magazine in October, Postal Service spokesperson Azeezaly Jaffer said, "There is an open seat at the table."
Though the comment seems clearly meant to suggest the Postal Service's openness to new relationships with the private sector, it led some to ask what the Postal Service means by "strategic alliance" -- if not exclusivity.
"Most people wouldn't call that a strategic alliance," said Ed Black, president of the Computer and Communications Industry Association, a public policy group. "It may be a way to put pressure on other firms to step up to the table."
Black considers the Postal Service an inefficient monopoly that can have a pronounced negative impact on private firms, especially since it loses money on so many of its ventures, like online bill paying and even its own merchandising. "Could you imagine Ford regulating the auto industry and then competing with GM?" Black asked. "The Postal Service has regulatory power and poses as a competitor."
Postmaster Lochhead is more optimistic about the efficiency gains for consumers with such an alliance. "The Postal Service has a public mission. That mission is universal service for all deliveries throughout the United States."
Lochhead, unlike Black, considers the Postal Service something that UPS might actually want to have around, even if no strategic alliances were in the picture.
"If you look at who has the monopoly on package delivery, it's UPS," said Lochhead. "They've got it locked up. We can't touch them. But UPS needs us in a way. Without us, they might be deemed a monopoly and brought into antitrust court like Microsoft."
UPS spokesman Holmes called that idea "preposterous.
"It's no monopoly," he said. "The competitive environment for package delivery is more intense and more vibrant than it ever has been. It's the competitive environment that is a level playing field. That's where you've seen real innovation."
Holmes added that the Postal Service has an ace in the hole. "We're required by law to charge double for any products that compete with theirs," he said. "The Postal Rate commission sets their rates, and we have to charge twice that. The Postal Service's TV ads don't say that."
Louisville Eccentric Observer
Disclosure last year that the U.S. Postal Service and Federal Express Corp. were in talks to form what was termed a "strategic alliance" drew early fire from such powerful voices as GOP Congressman Henry Hyde and United Parcel Service Inc., FedEx's strongest competitor.
Following the announcement, Hyde - as chairman of the House Judiciary Committee - drafted a letter to Joel Klein, then head of the antitrust division of the federal Department of Justice, asking him to look into the antitrust implications of such a deal. There was one obvious problem with the request, however: The Postal Service is immune from antitrust laws. And Hyde, whose term as Judiciary Committee chairman concluded at the end of the year, still has not received a response from either Klein, who has since resigned or other DOJ officials.
The Postal Service's Board of Governors was expected to formally review the prospects of a joint venture with FedEx at a meeting scheduled for after LEO's Tuesday press deadline. Prior to the session, neither Postal Service nor FedEx officials had been forthcoming with many details. For its part, FedEx had done little more than reluctantly confirm that there had been talks. "Formally, or informally, we have been meeting," said FedEx media specialist Jim McCluskey. (See related story on Page 12.)
That such negotiations have been underway is indicative of the identity crisis at the Postal Service, which is trapped between its public mission and its government-guaranteed monopolies. The Postal Service, a tax-exempt federal agency with the mandate to provide what its leaders call "universal service," reported continued operating losses in November and badly needs a way to turn things around and generate new revenue.
One possibility is to further delve into e-commerce and its promise of increased package deliveries -- areas dominated now by UPS and FedEx. UPS spurned the overtures, but FedEx is apparently interested in exploring the idea.
There's at least one obvious problem for anyone who would compete with such an alliance: The Postal Service controls the rates all carriers can charge.
Since the idea was announced, critics have wondered about the degree to which FedEx would share the Postal Service's monopoly powers. Would FedEx be allowed to sell its products in the thousands of post offices nationwide? What kind of competitive advantage would FedEx gain by affiliating strategically with a federal agency that not only pays no taxes, but regulates its competitors as well?
Letters R Us
If you didn't know any better, you might actually think the Postal Service was a private company with an official-sounding name. A phone call to the Postmaster General's Washington, D.C. office (202-268-2500) is met with a recorded welcome to "corporate headquarters." Pointing your Web browser to usps.gov sends you to the same page as usps.com. Television spots from the Postal Service have favorably compared the agency's rates with those of UPS and FedEx, with The Steve Miller Band providing the soundtrack. In post offices throughout the country during the recent holiday season, patrons saw posters and merchandise from the Universal Films release "How the Grinch Stole Christmas." Signs wished customers "Happy Wholidays!" while USPS employees sold Grinch merchandise. The Whoville Post Office was portrayed favorably in the film.
The fact that the Postal Service looks private, however, has little to do with its monopoly power.
While the Postal Service does not receive an annual appropriation for its operations (other than reimbursement for delivering mail to the blind and nonprofit organizations at a discounted rate), it has been allowed "special privileges." For example, the agency is exempt from property and income taxes. It receives favorable interest rates when borrowing money. It charges no tax on retail items and does not pay U.S. Customs to process packages, as private carriers are required to do.
As for the Postal Service's recent foray into e-commerce and expanded package delivery, that's where the money is. The most costly portion of operation for the Postal Service is fulfilling its public obligation of universal service -- delivering to every postal address in the United States.
Doing that, however, has become increasingly less profitable. And in an age of e-mail, direct deposit and online bill payments, the Postal Service estimated that operating loses for 2000 would be $200 million and would reach $480 million this year. The 2001 losses would be lessened by the 1-cent rate hike that took effect this week, but ironically, about a third of the shortfall is attributed to the federal government delivering checks and other mail electronically rather than by post.
In other words, the post office needs to find a way to make its public mission profitable and must use its advantages to make door-to-door delivery a venture that doesn't lose money.
Enter Federal Express, second only in size to UPS among private carriers in the United States.
Critics, like UPS spokesman Steve Holmes, say an alliance between FedEx and the Postal Service "goes to the core issue of whether a private company should be able to leverage government assets."
And it appears the private business and the public entity could reap real gains from the alliance.
Louisville Postmaster Bob Lochhead says the proposed alliance would give the Postal Service access to FedEx's cargo space on shipments throughout the country. FedEx, for its part, would gain coveted "last mile" delivery for many of its packages, using mail carriers. That is, the Postal Service would use its door-to-door routes to deliver packages for FedEx in addition to regular postal letters.
There is nothing prohibiting FedEx or UPS from delivering to residences and businesses -- indeed, they now do -- but as Lochhead pointed, out the Postal Service also routinely has access to other drop points, like post office boxes, where other carriers "can't legally go."
While it seems a no-brainer about why the Postal Service would want to attach itself to a profitable private carrier, others see potentially large problems with such an alliance and the impact it would have on the marketplace and on those left out of the alliance, like UPS.
"UPS has some big plans in my district," Hyde said during a telephone interview last month. "I simply question whether this discussion between FedEx and the Postal Service is an open process."
Hyde's letter to Klein, the Justice Department's former antitrust head, said, "If the Postal Service were a private entity, any final alliance would certainly require scrutiny by the Antitrust Division." He added that the alliance shouldn't be confirmed without "a full understanding of its competitive implications."
Soon thereafter, two other Republican congressmen -- Dan Burton, R-Ind., and John McHugh, R-N.Y., -- raised similar concerns in a letter to Attorney General Janet Reno, calling attention to the fact that the Postal Service is, in fact, immune from antitrust laws. There has been no response from Reno, and presumably, the issue would be addressed by the new attorney general if Reno does not answer before the Bush administration takes over the reigns of government on Jan. 21. (Former Sen. John Ashcroft of Missouri has been nominated by President-elect Bush to succeed Reno.)
Regarding the proposed alliance, Rep. Anne Northup, a Republican who represents Louisville's 3rd District, was mum. Northup, who sits on the Treasury-Postal Appropriations subcommittee, said through a spokesman last month: "We will be questioning the Postmaster General about this proposed alliance when he appears before our subcommittee in the spring."
She may be able to do little more than question the postmaster general, however. It's unclear what authority, if any, Congress has over the Postal Service. Of Kentucky's two Republican U.S. Senators, Jim Bunning did not return phone calls, and Mitch McConnell said, though a spokesman, that he has a staffer "working on it."
Though UPS' Holmes said FedEx would be "leveraging government assets" for private benefit, a Postal Service official said in published reports that there would be "no exclusivity" in talks with FedEx. Speaking to Government Executive magazine in October, Postal Service spokesperson Azeezaly Jaffer said, "There is an open seat at the table."
Though the comment seems clearly meant to suggest the Postal Service's openness to new relationships with the private sector, it led some to ask what the Postal Service means by "strategic alliance" -- if not exclusivity.
"Most people wouldn't call that a strategic alliance," said Ed Black, president of the Computer and Communications Industry Association, a public policy group. "It may be a way to put pressure on other firms to step up to the table."
Black considers the Postal Service an inefficient monopoly that can have a pronounced negative impact on private firms, especially since it loses money on so many of its ventures, like online bill paying and even its own merchandising. "Could you imagine Ford regulating the auto industry and then competing with GM?" Black asked. "The Postal Service has regulatory power and poses as a competitor."
Postmaster Lochhead is more optimistic about the efficiency gains for consumers with such an alliance. "The Postal Service has a public mission. That mission is universal service for all deliveries throughout the United States."
Lochhead, unlike Black, considers the Postal Service something that UPS might actually want to have around, even if no strategic alliances were in the picture.
"If you look at who has the monopoly on package delivery, it's UPS," said Lochhead. "They've got it locked up. We can't touch them. But UPS needs us in a way. Without us, they might be deemed a monopoly and brought into antitrust court like Microsoft."
UPS spokesman Holmes called that idea "preposterous.
"It's no monopoly," he said. "The competitive environment for package delivery is more intense and more vibrant than it ever has been. It's the competitive environment that is a level playing field. That's where you've seen real innovation."
Holmes added that the Postal Service has an ace in the hole. "We're required by law to charge double for any products that compete with theirs," he said. "The Postal Rate commission sets their rates, and we have to charge twice that. The Postal Service's TV ads don't say that."
Wednesday, May 12, 1999
Pointing to Portland: Light rail worked in Portland, Right?
By Caleb O. Brown
Contributing Writer (Louisville Eccentric Observer)
Perhaps the most-touted example of rapid transit in the United States is the light rail system in Portland, Ore. What makes Portland worth special study is that it doesn't matter who you ask - detractors and defenders take special care to show what light rail has done for, or to, Portland. And both groups tend to say the credit (or blame) should be directed at attempts in Portland to dovetail land-use planning with light rail development.
Oregon's statewide land-use rules are among the most stringent in the country. David Coyte, a light rail advocate here, argues that land-use regulations in Oregon have facilitated higher density developments and promoted what he calls "transit-oriented development," or mixed commercial-residential developments that are created around transit stops.
Coyte predicts developments built around transit centers here will in turn lead to wider use of transit, and a subsequent reduction in auto dependence, as well as more localized commerce. Barry Barker, executive director of TARC, says about $1.3 billion has been invested in developments along light rail stations in Portland.
But Randal O'Toole, of the Bandon, Ore.-based Thoreau Institute (http://www.ti.org), a public policy think tank specializing in conservation issues, disagrees sharply with the assertion that Portland's mixture of land-use regulations and light rail has been even remotely successful. O'Toole, who has written extensively on the Portland experience with light rail and land-use planning, said that Metro, Portland's metropolitan land-use planning organization, built into its models overall increases in air pollution, although Metro officials don't necessarily like discuss it.
"Currently, about 92 percent of Portland trips are by car and 2.5 percent by transit," said O'Toole. He added that the remainder of the trips in Portland are by foot or bicycle.
"Portland's Metro predicts that, if they can increase population density by 67 percent, build 100 more miles of rail lines, force developers to build transit-oriented developments and pedestrian-friendly design, that these numbers will change to 88 percent by car and five percent by transit. Congestion will also triple, leading to a 10-percent increase in air pollution."
O'Toole said the predictions are not his own, but from the appendices of Metro's own transportation models. "Ironically, a plan to increase air pollution by 10 percent is widely regarded as a model for other cities," said O'Toole.
But Portland is indeed a model for proponents of light rail. Transportation planner Shawn Dikes, who has consulted with TARC on its transportation plans, said he sees the potential for TARC to work with planners to create a transit-friendly land-use plan.
"Portland has kind of been the pioneer of transit-oriented development," said Dikes. "Will we do that to the degree that will make some of our stations in Louisville successful? I think we can, and I think there are some excellent opportunities for TARC to team up with Louisville and Jefferson County. They've just done Cornerstone 2020, which is the region's comprehensive land-use plan. There is a great opportunity to designate the south-central corridor as some sort of rapid transit development district, which would be a gigantic overlay zone, allowing developers at individual station locations to do some innovative things."
However, Dikes said, he sees some things holding TARC back.
"Oregon has statewide planning regulations," he said. "Kentucky does not. Typically, the marketplace drives a lot of the land development activities here. Louisville doesn't strike me as being very proactive in some senses. Only a place like Portland is really that proactive."
TARC's Barker, in an interview last year on WHKW's "Community Roundup" program, said the mixture of land-use planning and transit in Portland, among other cities, has proven transit can attract new development.
The potential exists for the type of developments Barker, Coyte and Dikes would like to see in Louisville, but Portland's experience hasn't proven mass transit alone can attract such development.
"Recently, the city of Portland has had to give developers 10 years of property tax breaks if they will build on the light rail line," said O'Toole. "Other cities in the Portland area are giving direct subsidies to encourage development."
O'Toole called the problem of getting developers to build along rail lines a "chicken and egg" problem. He contends Portland's attempts to spur the developments have failed miserably.
"As it turns out, once built, these developments are not generating much ridership. Eight out of nine people in the apartments built along Portland's light rail drive to work." Further, O'Toole said the proportion of those who live in transit-oriented developments in Portland take transit to work is no greater than anywhere else in the city.
Dikes suggested Louisville can only mimic some of what Portland has done toward mixing land use and transit developments. With no statewide planning regulations, he said, TARC simply cannot exercise much control without chasing development into other counties, he said.
Contributing Writer (Louisville Eccentric Observer)
Perhaps the most-touted example of rapid transit in the United States is the light rail system in Portland, Ore. What makes Portland worth special study is that it doesn't matter who you ask - detractors and defenders take special care to show what light rail has done for, or to, Portland. And both groups tend to say the credit (or blame) should be directed at attempts in Portland to dovetail land-use planning with light rail development.
Oregon's statewide land-use rules are among the most stringent in the country. David Coyte, a light rail advocate here, argues that land-use regulations in Oregon have facilitated higher density developments and promoted what he calls "transit-oriented development," or mixed commercial-residential developments that are created around transit stops.
Coyte predicts developments built around transit centers here will in turn lead to wider use of transit, and a subsequent reduction in auto dependence, as well as more localized commerce. Barry Barker, executive director of TARC, says about $1.3 billion has been invested in developments along light rail stations in Portland.
But Randal O'Toole, of the Bandon, Ore.-based Thoreau Institute (http://www.ti.org), a public policy think tank specializing in conservation issues, disagrees sharply with the assertion that Portland's mixture of land-use regulations and light rail has been even remotely successful. O'Toole, who has written extensively on the Portland experience with light rail and land-use planning, said that Metro, Portland's metropolitan land-use planning organization, built into its models overall increases in air pollution, although Metro officials don't necessarily like discuss it.
"Currently, about 92 percent of Portland trips are by car and 2.5 percent by transit," said O'Toole. He added that the remainder of the trips in Portland are by foot or bicycle.
"Portland's Metro predicts that, if they can increase population density by 67 percent, build 100 more miles of rail lines, force developers to build transit-oriented developments and pedestrian-friendly design, that these numbers will change to 88 percent by car and five percent by transit. Congestion will also triple, leading to a 10-percent increase in air pollution."
O'Toole said the predictions are not his own, but from the appendices of Metro's own transportation models. "Ironically, a plan to increase air pollution by 10 percent is widely regarded as a model for other cities," said O'Toole.
But Portland is indeed a model for proponents of light rail. Transportation planner Shawn Dikes, who has consulted with TARC on its transportation plans, said he sees the potential for TARC to work with planners to create a transit-friendly land-use plan.
"Portland has kind of been the pioneer of transit-oriented development," said Dikes. "Will we do that to the degree that will make some of our stations in Louisville successful? I think we can, and I think there are some excellent opportunities for TARC to team up with Louisville and Jefferson County. They've just done Cornerstone 2020, which is the region's comprehensive land-use plan. There is a great opportunity to designate the south-central corridor as some sort of rapid transit development district, which would be a gigantic overlay zone, allowing developers at individual station locations to do some innovative things."
However, Dikes said, he sees some things holding TARC back.
"Oregon has statewide planning regulations," he said. "Kentucky does not. Typically, the marketplace drives a lot of the land development activities here. Louisville doesn't strike me as being very proactive in some senses. Only a place like Portland is really that proactive."
TARC's Barker, in an interview last year on WHKW's "Community Roundup" program, said the mixture of land-use planning and transit in Portland, among other cities, has proven transit can attract new development.
The potential exists for the type of developments Barker, Coyte and Dikes would like to see in Louisville, but Portland's experience hasn't proven mass transit alone can attract such development.
"Recently, the city of Portland has had to give developers 10 years of property tax breaks if they will build on the light rail line," said O'Toole. "Other cities in the Portland area are giving direct subsidies to encourage development."
O'Toole called the problem of getting developers to build along rail lines a "chicken and egg" problem. He contends Portland's attempts to spur the developments have failed miserably.
"As it turns out, once built, these developments are not generating much ridership. Eight out of nine people in the apartments built along Portland's light rail drive to work." Further, O'Toole said the proportion of those who live in transit-oriented developments in Portland take transit to work is no greater than anywhere else in the city.
Dikes suggested Louisville can only mimic some of what Portland has done toward mixing land use and transit developments. With no statewide planning regulations, he said, TARC simply cannot exercise much control without chasing development into other counties, he said.
The Rail Truth
By Caleb O. Brown
Contributing Writer (Louisville Eccentric Observer)
Louisville will build a rapid transit line in the next 10 years. That's a given. Proponents say it will address the problems of air pollution and workforce development, as well as play a role in re-creating an urban landscape that mixes residences with local businesses and reduces dependence on automobiles.
But evidence from consultants hired by TARC and others who study the matter provides only the mildest indication that rapid transit will help reduce pollution and bolster the workforce. And further evidence from the widely touted light-rail experience in Portland, Ore., also provides little proof that Louisville can achieve the delicate mix of transit and land-use regulation, because, according to many observers, the jury is still out on whether Portland has achieved those goals.
To the people selling rapid transit in Louisville, though, all of those points are easily dismissed. Though TARC officials are vague about what will constitute "success" for rapid transit in Louisville, they are resolute in saying that a true conclusion likely can't be drawn for 10 or 15 years after the system is built. CALEB O. BROWN tries to take a look into the future.
Last July 15, moments before the executive board of TARC voted to institute a "rapid transit" system in Louisville, one board member raised concerns about how the proposed system would be oriented. The proposed system would be a single line running along a north-south corridor. However, the board member asserted, the most popular TARC line runs east-west. But his comments were quickly forgotten in the bevy of camera flashes that captured the eventual decision.
The questions now being debated in the second phase of TARC's $1.5 million Major Investment Study (MIS) are those of engineering and land-use planning - the hows of rapid transit. There will be rapid transit in Louisville: TARC Executive Director Barry Barker said if everything goes right, the system could be operational in 2007.
Questions about the expected benefits, however, remain.
Probably the most important decision facing TARC is whether its rapid transit system will consist of light rail or bus rapid transit (see definitions, opposite page). Phase I of TARC's MIS lays out what is likely to happen with either choice. Aligned with I-65, either would provide a new connection between many of the attractions along the line. TARC officials hope it also will serve as a backbone for future developments. At the southernmost end of the north-south line would be a park-and-ride lot for commuters, who would then take the rail line the rest of the way to their destination. There will be stops at UPS/Fern Valley Road, Louisville International Airport, the Southern Heights neighborhood, Papa John's Cardinal Stadium, the University of Louisville Student Activities Center, and on to downtown, where the line loops. Both would have exclusive right of way, though only light rail will be separate and distinct from automobile traffic.
Although no decision has been reached on the type of rapid transit to be built, there's a sense that light rail will prevail.
And proponents of that option don't seem to mind that it is expected to cost as much as $150 million more than bus rapid transit, or that it is projected to have fewer riders. People who are active in the debate say perception is very important to the issue.
"Perception is a very real thing, and it affects people's behaviors in a very significant way," said David Coyte of New Albany, who belongs to the Committee for the Advancement of Regional Transit (CART), a group that has long promoted light rail in Louisville. Coyte argues the public has a favorable perception of light rail, and he said that's why CART supports light rail over bus rapid transit. Ad-Additionally, Coyte said buses are perceived as being less safe than light rail vehicles, which look and act more like trains.
Aside from being more friendly to commuters, TARC Executive Director Barry Barker said, light rail is simply more romantic than buses. In an interview last year on "Community Roundup" on WHKW radio, Barker said of the community response: "Most of the reactions have been that light rail thrills people's souls, and buses they're not so sure about."
The public seems largely confused about the matter, thanks in part to local media and other high profile people who have discussed it publicly. Tom Owen, who made an unsuccessful bid to become mayor, made light rail a plank in his platform. A Courier-Journal Bluegrass State Poll indicated 76 percent of Jefferson County residents support the light rail option, although bus rapid transit was not mentioned. Even LEO Editor John Yarmuth, shortly after the July decision to build rapid transit, declared Louisville had committed itself to spending millions on light rail. Light rail in Portland, Ore. and St. Louis has provided examples for supporters to ogle. In this case, what many supporters treat as a foregone conclusion is a decision that is still many months away.
Though it's easy to forgive the public for not knowing what's at issue in the debate on transit in Louisville, the pursuit of good public policy might make it wise to insist on more direct evidence of the eventual benefits, especially for a capital project that may demand $450 million, the bulk from public funds. But that may or may not be forthcoming.
TARC officials said rapid transit will primarily address problems that include traffic congestion (particularly on Interstates 264, 65 and 64) and the resulting air quality problems. It also is meant to aid workforce development, and connect an increasingly diffused (low-density) metro population.
RAPID TRANSIT: POLLUTION SOLUTION?
Mary Lou Northern chairs the TARC board of directors. She said bottlenecks on freeways in Louisville reduce traffic speed and have increased air pollution in Louisville. Northern said rapid transit is the answer.
"This community struggles every year with meeting federal guidelines for air pollution control," said Northern. "It hurts our ability to get some business and some federal money. That's going to get worse unless something is done about it."
By federal money, Northern means highway improvements that could play a role in relieving congestion. She said she feels the pinch of traffic congestion every day when she drives into the city from the South End.
"I see the congestion at 264 and 65 every morning and every afternoon. You sit there and you sit there. Five years ago you didn't sit there."
Northern said she's confident the planned rapid transit line will alleviate air pollution, and therefore lighten the burden of controlling it.
"The major contributor to air pollution is the automobile, and the only solution to that is a rapid transit system," she said.
However, many others, even some who conducted research for TARC, have less enthusiasm for characterizing rapid transit as the "solution" to air quality problems. "If you're looking to transit to fix your air quality problems, you're going to be very disappointed," said Shawn Dikes, a transportation planner with Parsons Brinkerhoff in Louisville. Dikes, who was the lead consultant on the first phase of TARC's Major Investment Study, said transit should be part of the mix for improved air quality, but he said fixing air pollution problems can be tricky.
"It's not a silver bullet cure," he said. "There's a whole host of things you have to consider that are part of that big picture. To get people out of their car, there has to be an option. Transit has to be convenient. Travel time has got to be competitive. It's hard to compete with gas prices that are (adjusted for inflation) the lowest in recorded history."
Dikes said developing a rapid transit system is a step in the right direction because it creates an additional option. He argues getting people out of their cars can only begin to occur when there is an alternative, and he said rapid transit is a good one.
However, he said, the only way air pollution can be measurably reduced is to lower the number of "cold starts," or the times a vehicle's catalytic converter must warm up to catch pollutants before they are released. He said Louisvillians are making an ever-increasing number of inter-county trips, and that very few people merely go to work and then back home. And multiple trips cause more cold starts.
"People drop the kids off at daycare, they drop off dry cleaning, they run a lot of errands," Dikes said. "It's tough to develop transit service for those types of trips."
Some critics have said that despite the hefty price tag and touted benefits, rapid transit will do absolutely nothing to curb congestion or measurably impact air quality in the region.
"Violations of EPA air pollution standards are almost perfectly correlated with population density and congestion," said Randal O'Toole, head of Oregon's Thoreau Institute, a public policy research institution specializing in conservation and environmental issues.
O'Toole said cars pollute more in congested traffic, and that congestion increases with population density. The EPA currently rates Louisville as a moderate "ozone nonattainment" area in terms of air pollution, a problem O'Toole said would not be lessened by rapid transit.
"In 1990, only 3.2 percent of Louisville commuters rode transit to work, while 94 percent drove," O'Toole said. "Even doubling transit ridership, which rapid transit would not do, will have an insignificant effect, as more than 90 percent of commuters would still be driving."
And even driving may not pose the environmental problems light rail proponents would like to believe. The study commissioned by TARC, conducted by Parsons Brinckerhoff and other consulting firms, showed, "a steady improvement in air quality in the region during the 1980s and 1990s despite significant increases in travel.
"Improvement in mobile source emissions have been due primarily to cleaner engines," the report said, and "improved emission control systems, cleaner fuels, vehicle fleet turnover, and more rigorous vehicle inspection, testing and maintenance programs."
The study did say air pollution problems persist in Louisville despite the improved air quality, and that as of July 1998, the Louisville region already had one ozone violation for the year. The study noted, however, that occurrences of ozone violations were more frequent and severe in years before 1998.
GET ME TO WORK ON TIME!!
There's a clear relationship between air pollution and workforce development Northern asserted that being labeled an ozone nonattainment area hurts Louisville's job outlook. And, although it seems unclear how rapid transit would specifically address air pollution problems, Northern said industry leaders have focused their attention on how such a system would help them get workers to their jobs. She said about 40 percent of the region's jobs lie within an area serviceable by the proposed rapid transit.
"With the growth of UPS and the growth in the medical center, this community needs more workers," said Northern. "(Businesses are) going out into rural areas to bring those workers in. If you can make it easier for people who are coming into this county to work at their jobs, and they will be able to with this changed system, it's going to be a big boost to workforce development."
TARC's goal in conducting a Major Investment Study, focused on a single corridor of the city, was to connect a large share of the region's jobs. An important question raised by critics, however, is how far those jobs, or the workers, will be from transit stops.
"How many of those jobs or residents are going to be within a quarter-mile of a station?" asked Wendell Cox of the Cox Consultancy, which crunches numbers for every major public transit system in the country.
Cox said most research indicates people are willing to walk only a quarter-mile to reach a transit station, a figure confirmed by Dikes. Beyond that, Cox said, people would rather get in their cars. Based on that notion, Cox said a transit "corridor" cannot feasibly be wider than a half-mile (a quarter-mile strip on each side of the transit stop).
"They aren't corridors, they're nodes," said Cox. "I'm finishing up a report on the Dallas transit system where they're building a light rail system. When they're finished, they'll have about 53 miles of light rail. In fact, there will only be 41 stations. So the land area that will be within walking distance of those 41 stations will be 8 square miles.
"That's out of a 700-square-mile service area. You can't look at wide corridors. It's absolutely meaningless. It's a trick that people trying to sell overly expensive projects use."
Cox admitted his own experience has jaded him somewhat. It was an amendment he attached to a tax measure, two decades ago when he served on the Los Angeles County Transportation Commission, that provided the funds for light rail there. Cox said the Los Angeles light rail system is among the worst in the country, with huge cost overruns and pitiful ridership.
Cox said Louisville's rail system should expect lower-than-projected ridership because transportation planners have created unrealistic transit corridors. He said workers are concerned about saving time in getting to work, and are much less concerned with saving gas or money. Even the most fervent supporters of rapid transit agree that commuters are primarily concerned with time.
Cox said the phrase "rapid transit" is disingenuous.
"My view is rapid transit should be fast," he said. "As far as I'm concerned, anyone that tells you light rail is rapid transit is lying to you. Period." To support that assertion, Cox said the average speed of the fastest light rail system in the country is 18 miles per hour.
"According to the Texas Transportation Institute, which does this work for the Federal Highway Administration each year, the average freeway speed in Louisville during peak hours is 52 miles an hour," said Cox. "The average speed for an arterial street, that is a signalized street, is 28 miles an hour. So, light rail is a little bit more than half as fast as an arterial street."
Northern said that, although commute time is an obvious concern, it shouldn't be the only one, especially given the lengthy timetable of the project. Northern said commutes will become steadily more time-consuming over the next several years, and she contends Louisville cannot pave its way out of growing congestion problems.
"The thing I tell people is that they need to think differently about rapid transit than they think about buses or cars," she said. "You have to think 10 years or 20 years out. You can't think, `If this is built tomorrow, what does it mean to my drive time?' The main thing is that you can't think of traffic and you can't think of accessibility right now. Though some of the data comes from today's figures, you have to really think 10 or 20 years out."
Given the expected increases in commute times, Northern said she sees transit centers as potential mixtures of commercial and residential development. That, Northern said, will get people to go the extra distance to get to a transit stop.
"If I were a nurse at the medical center and I lived at the Bullitt County line, I could drive to the park and ride lot and get downtown," said Northern. "What if I needed some groceries or needed to drop off some dry cleaning, or I needed to stop at a drugstore to get some medicine before I went home? What happens around transit centers is that type of development. As the nurse going home, I could make that stop on foot, buy all the things I need, get on the rapid transit, go out to the park-and-ride lot and go home." Evidence is mixed on whether transit can yield the developments Northern has predicted. As Bill Sexton, director of TARC's Transportation Tomorrow (T2) has said, TARC simply can't control every aspect of this project.
COOPERATION AND THE CORNERSTONE
Very little can be confidently predicted about what TARC's rapid transit will bring to Louisville without considering the work of Cornerstone 2020. Although the controversial project has been dogged by media and government for being too expensive, too slow and poorly centered, it bears repeating that many of the numbers used by TARC to make its projections have come from Cornerstone.
Sexton said it's vital for the transit plan to be coordinated with Cornerstone 2020 if there is to be successful implementation of transit development. Moreover, if development along transit lines can take hold, Cornerstone must zone many areas in the county for mixed-used developments, which would allow residents and commerce to coexist - and hopefully thrive from one another. But Sexton said TARC ridership projections aren't dependent on Cornerstone data, so any eventual development along rapid transit lines would be a bonus if it increased ridership.
TARC officials take pains to point out that any benefits of rapid transit in Louisville will be seen 15 or 20 years from now. That makes some of the transit agency's predictions seem speculative, but Barker said any public investment that is implemented over many years requires that type of speculation. He is confident, however, that Louisville will ultimately be satisfied with the investment.
"I've joked with some friends that the opening of the system will be May 5, 2008, at noon," said Barker. "Following the ribbon-cutting will be a reception, and we're mailing out invitations next week. Of course, that's tongue in cheek, but we'll do the best we can to make it as exact as possible."
Contributing Writer (Louisville Eccentric Observer)
Louisville will build a rapid transit line in the next 10 years. That's a given. Proponents say it will address the problems of air pollution and workforce development, as well as play a role in re-creating an urban landscape that mixes residences with local businesses and reduces dependence on automobiles.
But evidence from consultants hired by TARC and others who study the matter provides only the mildest indication that rapid transit will help reduce pollution and bolster the workforce. And further evidence from the widely touted light-rail experience in Portland, Ore., also provides little proof that Louisville can achieve the delicate mix of transit and land-use regulation, because, according to many observers, the jury is still out on whether Portland has achieved those goals.
To the people selling rapid transit in Louisville, though, all of those points are easily dismissed. Though TARC officials are vague about what will constitute "success" for rapid transit in Louisville, they are resolute in saying that a true conclusion likely can't be drawn for 10 or 15 years after the system is built. CALEB O. BROWN tries to take a look into the future.
Last July 15, moments before the executive board of TARC voted to institute a "rapid transit" system in Louisville, one board member raised concerns about how the proposed system would be oriented. The proposed system would be a single line running along a north-south corridor. However, the board member asserted, the most popular TARC line runs east-west. But his comments were quickly forgotten in the bevy of camera flashes that captured the eventual decision.
The questions now being debated in the second phase of TARC's $1.5 million Major Investment Study (MIS) are those of engineering and land-use planning - the hows of rapid transit. There will be rapid transit in Louisville: TARC Executive Director Barry Barker said if everything goes right, the system could be operational in 2007.
Questions about the expected benefits, however, remain.
Probably the most important decision facing TARC is whether its rapid transit system will consist of light rail or bus rapid transit (see definitions, opposite page). Phase I of TARC's MIS lays out what is likely to happen with either choice. Aligned with I-65, either would provide a new connection between many of the attractions along the line. TARC officials hope it also will serve as a backbone for future developments. At the southernmost end of the north-south line would be a park-and-ride lot for commuters, who would then take the rail line the rest of the way to their destination. There will be stops at UPS/Fern Valley Road, Louisville International Airport, the Southern Heights neighborhood, Papa John's Cardinal Stadium, the University of Louisville Student Activities Center, and on to downtown, where the line loops. Both would have exclusive right of way, though only light rail will be separate and distinct from automobile traffic.
Although no decision has been reached on the type of rapid transit to be built, there's a sense that light rail will prevail.
And proponents of that option don't seem to mind that it is expected to cost as much as $150 million more than bus rapid transit, or that it is projected to have fewer riders. People who are active in the debate say perception is very important to the issue.
"Perception is a very real thing, and it affects people's behaviors in a very significant way," said David Coyte of New Albany, who belongs to the Committee for the Advancement of Regional Transit (CART), a group that has long promoted light rail in Louisville. Coyte argues the public has a favorable perception of light rail, and he said that's why CART supports light rail over bus rapid transit. Ad-Additionally, Coyte said buses are perceived as being less safe than light rail vehicles, which look and act more like trains.
Aside from being more friendly to commuters, TARC Executive Director Barry Barker said, light rail is simply more romantic than buses. In an interview last year on "Community Roundup" on WHKW radio, Barker said of the community response: "Most of the reactions have been that light rail thrills people's souls, and buses they're not so sure about."
The public seems largely confused about the matter, thanks in part to local media and other high profile people who have discussed it publicly. Tom Owen, who made an unsuccessful bid to become mayor, made light rail a plank in his platform. A Courier-Journal Bluegrass State Poll indicated 76 percent of Jefferson County residents support the light rail option, although bus rapid transit was not mentioned. Even LEO Editor John Yarmuth, shortly after the July decision to build rapid transit, declared Louisville had committed itself to spending millions on light rail. Light rail in Portland, Ore. and St. Louis has provided examples for supporters to ogle. In this case, what many supporters treat as a foregone conclusion is a decision that is still many months away.
Though it's easy to forgive the public for not knowing what's at issue in the debate on transit in Louisville, the pursuit of good public policy might make it wise to insist on more direct evidence of the eventual benefits, especially for a capital project that may demand $450 million, the bulk from public funds. But that may or may not be forthcoming.
TARC officials said rapid transit will primarily address problems that include traffic congestion (particularly on Interstates 264, 65 and 64) and the resulting air quality problems. It also is meant to aid workforce development, and connect an increasingly diffused (low-density) metro population.
RAPID TRANSIT: POLLUTION SOLUTION?
Mary Lou Northern chairs the TARC board of directors. She said bottlenecks on freeways in Louisville reduce traffic speed and have increased air pollution in Louisville. Northern said rapid transit is the answer.
"This community struggles every year with meeting federal guidelines for air pollution control," said Northern. "It hurts our ability to get some business and some federal money. That's going to get worse unless something is done about it."
By federal money, Northern means highway improvements that could play a role in relieving congestion. She said she feels the pinch of traffic congestion every day when she drives into the city from the South End.
"I see the congestion at 264 and 65 every morning and every afternoon. You sit there and you sit there. Five years ago you didn't sit there."
Northern said she's confident the planned rapid transit line will alleviate air pollution, and therefore lighten the burden of controlling it.
"The major contributor to air pollution is the automobile, and the only solution to that is a rapid transit system," she said.
However, many others, even some who conducted research for TARC, have less enthusiasm for characterizing rapid transit as the "solution" to air quality problems. "If you're looking to transit to fix your air quality problems, you're going to be very disappointed," said Shawn Dikes, a transportation planner with Parsons Brinkerhoff in Louisville. Dikes, who was the lead consultant on the first phase of TARC's Major Investment Study, said transit should be part of the mix for improved air quality, but he said fixing air pollution problems can be tricky.
"It's not a silver bullet cure," he said. "There's a whole host of things you have to consider that are part of that big picture. To get people out of their car, there has to be an option. Transit has to be convenient. Travel time has got to be competitive. It's hard to compete with gas prices that are (adjusted for inflation) the lowest in recorded history."
Dikes said developing a rapid transit system is a step in the right direction because it creates an additional option. He argues getting people out of their cars can only begin to occur when there is an alternative, and he said rapid transit is a good one.
However, he said, the only way air pollution can be measurably reduced is to lower the number of "cold starts," or the times a vehicle's catalytic converter must warm up to catch pollutants before they are released. He said Louisvillians are making an ever-increasing number of inter-county trips, and that very few people merely go to work and then back home. And multiple trips cause more cold starts.
"People drop the kids off at daycare, they drop off dry cleaning, they run a lot of errands," Dikes said. "It's tough to develop transit service for those types of trips."
Some critics have said that despite the hefty price tag and touted benefits, rapid transit will do absolutely nothing to curb congestion or measurably impact air quality in the region.
"Violations of EPA air pollution standards are almost perfectly correlated with population density and congestion," said Randal O'Toole, head of Oregon's Thoreau Institute, a public policy research institution specializing in conservation and environmental issues.
O'Toole said cars pollute more in congested traffic, and that congestion increases with population density. The EPA currently rates Louisville as a moderate "ozone nonattainment" area in terms of air pollution, a problem O'Toole said would not be lessened by rapid transit.
"In 1990, only 3.2 percent of Louisville commuters rode transit to work, while 94 percent drove," O'Toole said. "Even doubling transit ridership, which rapid transit would not do, will have an insignificant effect, as more than 90 percent of commuters would still be driving."
And even driving may not pose the environmental problems light rail proponents would like to believe. The study commissioned by TARC, conducted by Parsons Brinckerhoff and other consulting firms, showed, "a steady improvement in air quality in the region during the 1980s and 1990s despite significant increases in travel.
"Improvement in mobile source emissions have been due primarily to cleaner engines," the report said, and "improved emission control systems, cleaner fuels, vehicle fleet turnover, and more rigorous vehicle inspection, testing and maintenance programs."
The study did say air pollution problems persist in Louisville despite the improved air quality, and that as of July 1998, the Louisville region already had one ozone violation for the year. The study noted, however, that occurrences of ozone violations were more frequent and severe in years before 1998.
GET ME TO WORK ON TIME!!
There's a clear relationship between air pollution and workforce development Northern asserted that being labeled an ozone nonattainment area hurts Louisville's job outlook. And, although it seems unclear how rapid transit would specifically address air pollution problems, Northern said industry leaders have focused their attention on how such a system would help them get workers to their jobs. She said about 40 percent of the region's jobs lie within an area serviceable by the proposed rapid transit.
"With the growth of UPS and the growth in the medical center, this community needs more workers," said Northern. "(Businesses are) going out into rural areas to bring those workers in. If you can make it easier for people who are coming into this county to work at their jobs, and they will be able to with this changed system, it's going to be a big boost to workforce development."
TARC's goal in conducting a Major Investment Study, focused on a single corridor of the city, was to connect a large share of the region's jobs. An important question raised by critics, however, is how far those jobs, or the workers, will be from transit stops.
"How many of those jobs or residents are going to be within a quarter-mile of a station?" asked Wendell Cox of the Cox Consultancy, which crunches numbers for every major public transit system in the country.
Cox said most research indicates people are willing to walk only a quarter-mile to reach a transit station, a figure confirmed by Dikes. Beyond that, Cox said, people would rather get in their cars. Based on that notion, Cox said a transit "corridor" cannot feasibly be wider than a half-mile (a quarter-mile strip on each side of the transit stop).
"They aren't corridors, they're nodes," said Cox. "I'm finishing up a report on the Dallas transit system where they're building a light rail system. When they're finished, they'll have about 53 miles of light rail. In fact, there will only be 41 stations. So the land area that will be within walking distance of those 41 stations will be 8 square miles.
"That's out of a 700-square-mile service area. You can't look at wide corridors. It's absolutely meaningless. It's a trick that people trying to sell overly expensive projects use."
Cox admitted his own experience has jaded him somewhat. It was an amendment he attached to a tax measure, two decades ago when he served on the Los Angeles County Transportation Commission, that provided the funds for light rail there. Cox said the Los Angeles light rail system is among the worst in the country, with huge cost overruns and pitiful ridership.
Cox said Louisville's rail system should expect lower-than-projected ridership because transportation planners have created unrealistic transit corridors. He said workers are concerned about saving time in getting to work, and are much less concerned with saving gas or money. Even the most fervent supporters of rapid transit agree that commuters are primarily concerned with time.
Cox said the phrase "rapid transit" is disingenuous.
"My view is rapid transit should be fast," he said. "As far as I'm concerned, anyone that tells you light rail is rapid transit is lying to you. Period." To support that assertion, Cox said the average speed of the fastest light rail system in the country is 18 miles per hour.
"According to the Texas Transportation Institute, which does this work for the Federal Highway Administration each year, the average freeway speed in Louisville during peak hours is 52 miles an hour," said Cox. "The average speed for an arterial street, that is a signalized street, is 28 miles an hour. So, light rail is a little bit more than half as fast as an arterial street."
Northern said that, although commute time is an obvious concern, it shouldn't be the only one, especially given the lengthy timetable of the project. Northern said commutes will become steadily more time-consuming over the next several years, and she contends Louisville cannot pave its way out of growing congestion problems.
"The thing I tell people is that they need to think differently about rapid transit than they think about buses or cars," she said. "You have to think 10 years or 20 years out. You can't think, `If this is built tomorrow, what does it mean to my drive time?' The main thing is that you can't think of traffic and you can't think of accessibility right now. Though some of the data comes from today's figures, you have to really think 10 or 20 years out."
Given the expected increases in commute times, Northern said she sees transit centers as potential mixtures of commercial and residential development. That, Northern said, will get people to go the extra distance to get to a transit stop.
"If I were a nurse at the medical center and I lived at the Bullitt County line, I could drive to the park and ride lot and get downtown," said Northern. "What if I needed some groceries or needed to drop off some dry cleaning, or I needed to stop at a drugstore to get some medicine before I went home? What happens around transit centers is that type of development. As the nurse going home, I could make that stop on foot, buy all the things I need, get on the rapid transit, go out to the park-and-ride lot and go home." Evidence is mixed on whether transit can yield the developments Northern has predicted. As Bill Sexton, director of TARC's Transportation Tomorrow (T2) has said, TARC simply can't control every aspect of this project.
COOPERATION AND THE CORNERSTONE
Very little can be confidently predicted about what TARC's rapid transit will bring to Louisville without considering the work of Cornerstone 2020. Although the controversial project has been dogged by media and government for being too expensive, too slow and poorly centered, it bears repeating that many of the numbers used by TARC to make its projections have come from Cornerstone.
Sexton said it's vital for the transit plan to be coordinated with Cornerstone 2020 if there is to be successful implementation of transit development. Moreover, if development along transit lines can take hold, Cornerstone must zone many areas in the county for mixed-used developments, which would allow residents and commerce to coexist - and hopefully thrive from one another. But Sexton said TARC ridership projections aren't dependent on Cornerstone data, so any eventual development along rapid transit lines would be a bonus if it increased ridership.
TARC officials take pains to point out that any benefits of rapid transit in Louisville will be seen 15 or 20 years from now. That makes some of the transit agency's predictions seem speculative, but Barker said any public investment that is implemented over many years requires that type of speculation. He is confident, however, that Louisville will ultimately be satisfied with the investment.
"I've joked with some friends that the opening of the system will be May 5, 2008, at noon," said Barker. "Following the ribbon-cutting will be a reception, and we're mailing out invitations next week. Of course, that's tongue in cheek, but we'll do the best we can to make it as exact as possible."
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