The Statue of Limitations

Mayor Bloomberg and Interior Secretary Gale Norton have announced that the Statue of Liberty will re-open in August. Visitors have been able to go to Liberty Island, but the Statue itself has been closed since the 9/11 attacks, while it was retrofitted with enhanced security and a new emergency staircase.

The cost of the renovation was covered by some $19.6 million in public money and about $7 million in private donations, with Mayor Bloomberg himself ponying up $100,000. The New York Daily News also threw in $100,000, while raising $60,000 more from its readers.

There's a catch: the public will be admitted only to the Statue's 16-story pedastal. For now, and possibly forever, the steps leading up to the Statue's crown will be closed. Secretary Norton claimed that the Statue's designer "never intended visits to the inside of Lady Liberty." Intended or not, the long climb was a rite of passage for visitors to NYC, although the old joke was that natives almost never did it. I myself made the climb twice, both times as a tourist. My son will evidently never have that chance.

It's a cliché to say that "the terrorists have won," but this time that just might be true.

New York Magazine Touts Second Avenue Subway

It has been called the world's most famous un-built subway. If the cover story in this week's New York magazine is right, construction on the Second Avenue Subway could be underway by early next year.

First conceived in 1925, the "SAS" has suffered one delay after another. The MTA actually broke ground in 1972 and completed three short tunnel sections, but the city's near-bankruptcy stalled the project. Now, it seems, the stars are finally in alignment. Peter Kalikow, the MTA's politically well-connected chairman, has lined up support in Albany and in Washington, and most of the funds to build the first segment have already been earmarked, or will be shortly.

The need for the SAS is obvious. Of Manhattan's five major north-south trunk lines, only the Lexington Avenue line is on the East side. That line is ridiculously over-crowded, a problem that will only become worse after the MTA completes East Side Access, a project that will bring Long Island Railroad trains into Grand Central Station. Some bristle at the cost (now estimated at $17 billion), but New York hasn't expanded its subway system in any significant way since 1940. Unless you believe in standing still, the SAS is the next logical step.

I do have my concerns about the design. As now conceived, the SAS is two tracks between 125th St and Hanover Square. I wonder if this decision is short-sighted, as all of the other major north-south trunk lines in Manhattan are four tracks. I am also concerned about the spacing between the stations. The line starts out promising enough, with stations planned at 125th, 116th, 106th, 96th and 86th. But after that, the stations are at 72nd, 57th, and 42nd Streets, gaps of 14, 15, and 15 blocks respectively. Below 42nd Street, the gaps between stations are once again more reasonable, aside from the roughly 14 blocks between 14th St and Houston.

Nothwithstanding my reservations, the SAS is a tremendous step forward for the New York City subway system.

Rebuilding Official Lukewarm on NYCO Downtown Home

This week's issue of Downtown Express offers a comprehensive progress report on post-9/11 rebuilding.

I was especially struck by Madelyn Wils's article, "Finding the right arts mix at the new W.T.C." Wils, who heads Community Board 1 and is on the board of the Lower Manhattan Development Corporation, surely has an insider's view of the rebuilding process.

The article talked about the cultural institutions that the LMDC has shortlisted for the cultural institution to be built at the WTC. Of the New York City Opera, she said:

The New York City Opera has aggressively pursued a Downtown home. They could be a welcome addition on the site, but it is still unclear whether they physically fit. If they do, the question is would it be in lieu of other organizations that might have more direct impact on the community? The opera's programming may be successful Downtown, but how this 2,200-seat theater would be used when the opera is not in season is still unanswered. It would not be in anyone's interest to have a performing arts complex that is dark much of the year.

That doesn't sound like a ringing endorsement.

New Online Restaurant Reservation Site Debuts

A friend pointed me towards Table1.com, which offers yet another way to make your restaurant reservation online.

When you reserve through Table1, you’re guaranteed a discount between 20-50% off your pre-tax bill. In return, you pay Table1 a fee of $1.50 a head. It’s a bargain in theory, given what it costs to eat at even a moderately-priced restaurant these days.

But Table1 has a long way to go. The service has only about 20 restaurants signed up so far. I suspect the guarantee of a discount on every reservation will consign Table1 to offering us only those restaurants that are desperate. Indeed, all of those offered now are in the back water of NYC’s restaurant scene. I’m sure you can have enjoyable meal at many of them, but no restaurant that’s doing well will have the slightest incentive to join Table1. The site promises discounts between 20-50%, but in practice nearly all of them are at the lower end of that range.

In contrast, DinnerBroker.com has a wiser idea. Rather than promising a discount on every reservation, it offers them only if you book at off-peak times. And instead of charging a fee for every reservation, it charges only if you want certain coveted time slots (although, in that case, its $10-15 fee is higher than Table1’s). DinnerBroker also has a lot more restaurants to choose from (about 100), and more importantly, it actually has quite a few well-known ones. Since the discount isn’t mandatory, the restuarant needn’t be desperate to join DinnerBroker’s network.

If choice is what you want, OpenTable.com is your best bet. It has about 300 NYC restaurants signed up, which is still only a fraction of what’s out there, but is far ahead of the other two services. OpenTable is the only one of the three that never charges you to make a reservation, but it also never offers a discount. It’s simply a more convenient way of reserving than calling all over town.

Anyhow, I’ll be keeping my eye on Table1.com, but for now it’s not quite ready for prime time.

Sentencing Mayhem in Dynegy Case

On Thursday, a Federal judge sentenced former Dynegy accountant Jamie Olis to 24 years in prison for mis-classifying a loan as recurring income. Prosecutors said that Olis and his colleagues knew their accounting was improper, and that they concocted the scheme to artificially inflate Dynegy's stock price.

The sentence was one of the harshest ever handed down for a white collar crime. Most observers agree it is far too harsh. Olis had no prior criminal record. Unlike more highly publicized defendants from Enron, WorldCom, Adelphia, or Tyco, he did not commit the fraud to line his own pockets. He also wasn't a CEO, or even a CFO; he was just a mid-level executive in the accounting department.

Now, I don't mean to minimize the seriousness of Olis's fraud. Olis knew that he was violating accounting rules, and he did it to mislead investors about Dynegy's true financial condition. But at 24 years, Olis's sentence was more serious than a rapist or a bank robber would face. And we're not exactly soft on rapes and robberies these days. Twenty-four years is probably, by a factor of ten, more excessive than necessary to meet the public's legitimate penological interest in deterring crime and meting out punishment.

As a point of comparison, Andrew Fastow, who presided over a virtual crime wave at Enron and lined his pockets with tens of millions of dollars, is expected to be sentenced to just ten years. In the 1980s, junk bond king Michael Milken served under two years for a long-running fraud that ran into the multi-billions. I wouldn't say that Milken got off easy. He was also fined something like $500 million and banned from his profession for life.

In contrast, Olis's crime seems almost petty. He caused a single $300 million loan to be wrongly booked as income. Yes, of course it was wrong, but Olis's one-time accounting trick was comparatively small beans. Is this isolated mistake, willful and fraudulent though it was, sufficient justification for locking up Olis, 38, until he is a senior citizen? (Under the Federal system, which has no parole, Olis must serve at least 85%, or 20 1/2 years, of his 24-year sentence.)

Olis ran afoul of several pernicious trends over the last several decades that have turned criminal sentences into a Draconian farce. First, he had the poor judgment to reject a plea bargain. (His two fellow-conspirators pleaded guilty to reduced charges, and are expected to be sentenced to under five years apiece.) Given that the jury took only about two hours to return a verdict against Olis, this was evidently not a close case. Olis's decision to take his chances has cost him dearly. Nowadays, the difference in the consequences between a plea bargain and a jury verdict are so vast that even those who sincerely believe they are innocent are routinely advised by their lawyers to plead guilty. The risk they face is just too great. One must question the competence of Olis's representation, in that his lawyer rested without calling a single witness.

Second, the Federal laws that govern white collar crime allow prosecutors to stack up the counts, so that one crime becomes half-a-dozen. Olis was convicted of conspiracy, securities fraud, mail fraud, and three counts of wire fraud. This is despite the fact that he, in fact, committed only one actual crime. Yet, Federal law allows prosecutors to charge Olis for planning the fraud (conspiracy), committing it (securities fraud), sending a letter (mail fraud), and using a phone, fax, or e-mail (wire fraud).

As the old saying goes about white collar crime, it's impossible to commit just one. Prosecutors routinely play this game, expecting to bully defendants into pleading the case down to just one count. But when they don't reach a deal, the defendant finds himself facing multiple charges for what is actually just one crime. Here again, Olis would have been better off committing a murder, which is a much more serious offense, but one that doesn't offer prosecutors the opportunity to pile on.

Third, Congress about twenty years ago revoked most of trial judges' traditional discretion to match sentences to offenders, transferring it instead to the U. S. Sentencing Commission, a blue-ribbon panel of bureaucrats that developed reams of mathematical sentencing formulas that judges were required to follow more-or-less robotically. Judges were allowed to deviate from the Commission's formulaic guidelines only in limited circumstances. Judicial discretion has become even more limited recently, thanks to further Congressional action that even Chief Justice William Rehnquist, not exactly known as a coddler of criminals, decried as overly harsh. Judges now routinely announce their displeasure with the sentences the Commission's formulas saddle them with, as did the judge in Olis's case.

And fourth, in the wake of the Enron scandal, the Sentencing Commission tweaked its formulas to make the sentences in cases like Olis's dependent on the amount of money investors lost. The guidelines changed after Olis committed his crime, but before he was charged. Under a Constitutional loophole that the Supreme Court has endorsed, this ex post facto change is perfectly legal, because Olis's sentence was still within the range Congress had prescribed, even though no one before Olis ever would have faced it.

Well, it turns out that the California Retirement System says it lost more than $100 million as a result of Olis's fraud, because it bought at the top and sold right after the story broke. This makes Olis a criminal kingpin under the Commission's guidelines, and elevates his sentence from the roughly 1-2 years he would have faced previously, to a range of 24-30 years. The judge sentenced him to the minimum the Commission's guidelines allowed.

There are all kinds of pernicious evils here. Olis should reasonably have been expected to know that his accounting was improper. But he could not have known how many shares a particular investor owned, at what price they had bought, or under what conditions they would sell. He cannot have known how his fraud, if it became known, would affect the stock price. In any event, the plunge in Dynegy stock clearly was influenced by many factors well outside of Olis's control.

A murderer knows that he has killed, and a robber knows that he has stolen. But the Sentencing Commission's guidelines force the judge to punish Olis for market factors that he cannot possibly have been expected to foresee.

A few years back, there was a spate of highly publicized car-jackings. Congress, eager to show that it was alive to the crisis, passed a law making it a Federal offense to commit a car-jacking across state lines. The law was utterly unnecessary. Car-jacking was already a serious crime in all fifty states. No one suggested that car-jacking was going unpunished, or under-punished. It was just a publicity stunt, to demonstrate to constituents that Congress was "doing something" about the problem. It was, as one writer put it, therapeutic legislation, that is, legislation that doesn't solve an actual problem, but makes people feel safer.

The Sentencing Commission's reaction to the Enron-era scandals was similarly therapeutic. It was meant to make the public "feel good" that "something was being done" about securities fraud. But it was utterly unnecessary, and probably an over-reaction in the heat of a highly charged political environment. Even before these revisions, Federal law treated securities fraud as a very serious offense, as it should.

The latest sentencing rules have managed to turn Olis into a very sympathetic and tragic felon. He should, of course, pay a just price for his crime. But this mid-level executive who poses no future threat to anyone will be a senior citizen before he gets out of prison. His infant daughter will not know her father before she is an adult.

If all of this isn't enough, Federal law allows the government to file criminal and civil charges simultaneously against the same defendant, for the same crime. Naturally, they did so against Olis. The civil case is punitive in all but name only, flagrantly violating the Constitution's double jeopardy clause. For some reason, the Supreme Court has fallen for this trick. It allows the government to go after Olis twice for the same offense, but because it's branded a civil case, the burden of proof is much lower.

So while Olis spends a majority of the rest of his life in prison, his legal troubles are far from over. To the extent his fraud produced ill-gotten gains, there's little he can do to enjoy them in the slammer. The brunt of the feds' pursuit will fall disproportionately on his innocent family. It's an outcome that would make you happy if you're the sort who rooted for Inspector Javert in Les Miserables.

West Side Stadium Plan to be Unveiled

The NYT reports that the New York Jets, Governor Pataki, and Mayor Bloomberg will unveil plans tomorrow to build a new stadium for the Jets on the far West Side of Manhattan. The stadium would be sited between 11th & 12th Avenues, and between 30th and 34th Streets, over the MTA rail yards.

There has been no professional football in Manhattan since the New York Titans lost to Buffalo on December 14, 1963, at the Polo Grounds. The Titans (later renamed the Jets) moved to Shea Stadium the following season, and to the Meadowlands home they now share with the Giants in 1984. The Jets' lease expires in 2008, and construction would need to get underway promptly if they're to have any hope of moving by then.

The stadium is also critical to the city's long-shot bid for the 2012 Summer Olympics. The IOC is to choose a host city by next summer, and New York wants to demonstrate that promised infrastructure is already well underway. Recent troubles in Athens, which is struggling to complete construction for the 2004 Summer Games, will probably make the IOC skittish about vaporware subway lines and stadiums that exist only on paper.

Yet, the Bloomberg Administration needs to be careful not to couch these projects as solely an Olympics play, because a majority of New Yorkers don't seem to want the games. The City thinks its West Side projects will more than pay for themselves in increased property tax revenues, even if, as most observers expect, the 2012 Olympics go elsewhere. (The IOC has already awarded the 2010 Winter Games to Vancouver, and generally the IOC voters don't award consecutive Games to the same continent.)

The far West Side (8th to 11th avenues, 27th to 42nd Streets) is the last great urban renewal opportunity in midtown. The Jacob Javits Center was supposed to herald the area's rebirth when it was built in the 1980s, but it never happened. That's partly because the Javits is too small to host many larger conventions (it is only the 18th largest convention center in the U.S.), and partly because the West Side is not easily reachable by mass transit. Today, the Javits stands alone, surrounded by tenement housing, derelict space, and the MTA rail yards.

The gorgeous watercolor rendering on the NYT site shows a West Side reborn. A new 75,00-seat stadium with a retractable roof would be built over a deck covering the MTA rail yards. The Javits would be extended two blocks north, to 40th Street. New hotels, office towers, restaurants, and park space would transform what is now Manhattan's least desirable neighborhood south of Central park.

The Javits extension is a no-brainer; virtually no one opposes it. There are dozens of conventions every year that New York can't even bid for, because the Javits is outgunned by larger convention centers in other cities. For New York to lack a competitive convention center is simply unacceptable.

The Jets stadium, however, is more controversial. America has been on a stadium-building orgy for the last twenty-five years, much of it with public money. Many studies question whether the investment is worth it, particularly for pro football stadiums, which are used for only ten dates a year. Anticipating criticism, the City describes it as a multi-use facility, which could host rock concerts, conventions, and big-ticket sporting events like the Super Bowl and the Final Four. (Of course, the City already has Madison Square Garden, which can host many of these events now, although obviously not a Super Bowl.)

The other problem is traffic. The City believes that most Jets patrons would reach the stadium by mass transit, but not everyone is convinced. Given that most people use their cars to reach the Meadowlands today, the skepticism is amply justified. Expect the environmental impact statement to receive plenty of scrutiny.

To give the Jets credit, they are offering to put in $800 million of their own money. In this respect, the Jets stand apart from the mine run of sports team owners that have threatened to take their teams elsewhere unless lavish stadiums were built for them. Still, the project (including the Javits extension) will require about $2.0 billion in public money, which the state and the city will need to raise from various sources, not all of which have been identified.

As I've mentioned previously, the city intends to fund the project, in part, through a device known as tax increment financing. The basic idea is that the city borrows the money and pays it back through increased property tax revenues later on. Although the technique has worked in other communities, it has never been attempted on anything remotely approaching the scale required here.

I remain intrigued by the West Side development project, but agnostic on whether the numbers add up. I am also concerned about whether office towers on the Far West Side would impair Lower Manhattan's rebirth as a competitive as a business district. Stay tuned.

Virgin Atlantic's New Lounge at JFK

Virgin Atlantic recently moved from Terminal 1 to Terminal 4 at JFK. With the move comes a new lounge for Upper Class passengers. (Upper Class is Virgin's business class; Virgin does not have a first class.)

Virgin's lounges have always exceeded the competition by a wide margin. Just as at Terminal 1, the new lounge has a fully-stocked open bar, abundant comfortable seating, and a restaurant menu that beats eating on the plane.

The new lounge screams "product placement." Advertising for Bombay Sapphire gin adorns the bar, and the featured drink is something called a "Sapphire." In the business center, the Internet PCs are iMacs rather than Windows machines. Virgin must have gotten a sweetheart deal from Apple, since Macs are invariably more expensive at retail. Business travelers, most of whom are likely to be more familiar with the Windows interface, probably won't think that Virgin has done them any favor.

At the moment, I can't fathom what Virgin was thinking. The new lounge is just fine, but so was the old one. Indeed, the old lounge may have been a tad more spacious. What upside did they see?

I rode over to London in Virgin's Upper Class Suite the brand name for Virgin's flat beds, which are the roomiest in any business class. It's the third time I've been in "the Suite," and it continues to amaze. However, on an ominous note, my seat's electronic retractable table was on the fritz, and the aircraft I was on is only four months old. The crew were able to fix it, but the hardware shouldn't be falling apart so soon. The cabin crew hand-delivered a letter from Sir Richard Branson, in which the Virgin Chairman concedes that the service still needs a bit of tweaking. Only a few planes in the fleet are Suite-equipped as yet, so there shouldn't be too much retrofitting required.

Debate Rages on Downtown Rail Link Funding

Articles over the weekend in both The New York Times and Downtown Express (here and here) discussed the prickly subject of how to pay for a rail link between Lower Manhattan and Queens, which could bring a faster transit connection to JFK airport and LIRR riders. Downtown business interests describe the rail link as essential, but residents and workers have given the idea a tepid response.

The Lower Manhattan Development Corporation has slightly less than $1.2bn of its post-9/11 funding left. LMDC officials are cagey on their intentions, but evidently the Act of Congress that appropriated the money would permit the LMDC to shoot the wad on just one project, if that's what the LMDC board decides.

I'm a supporter of the JFK-LIRR-downtown project, which could indeed transform Lower Manhattan, but we need to find some other way to pay for it. Even if LMDC puts all its eggs in this basket, it won't even come close to fully paying for the project. (Well, it would if you believe the low-end estimates of $2.0bn, but I don't think it can be done for under $4.0bn.)

The LMDC has done a good job so far allocating its resources to smaller initiatives: a Chinatown study here, a housing grant there. Throwing all its weight behind one rail link that, even in the best of scenarios, won't see service for another decade, would be the wrong way to go.

Meantime, the MTA is to tell us sometime in April which of four design options for the rail link will be chosen for further development. Expect plenty of controversy, no matter which way the decision goes. I think this project is less than 50-50 to actually get built.

The Valkyrie, Eos Orchestra, 20 March 2004

The Eos Orchestra continued its traversal of the Ring Cycle, compressed and adapted for chamber orchestra, in an arrangement originally developed in the 1980s by Jonathan Dove and Graham Vick for the City of Birmingham Touring Opera. The production was given at NYU's Skirball Center, on the south side of Washington Square Park--a considerable improvement over the cramped Ethical Culture Auditorium, where the same team's Rhinegold was given two years ago.

Director Christopher Alden set the entire opera in a sparsely-furnished kitchen, emphasizing the domestic conflicts that pervade the story. The reduced orchestration brought Wagner into the compass of singers (all of them superb actors) who would otherwise never attempt it. Led by Sanford Sylvan (Wotan) and Linda Pavelka (Fricka), the ensemble cast delivered an interpretation that was at once shocking, yet beneath its surface respectful of the story's emotional core.

The abridgement took the opera down to three hours with a single 20-minute intermission, meaning that about 75 minutes of music was lost. I don't mind cutting Wagner, which even the haughty Met used to do in times past (admittedly not to this degree). Generally, Dove's cuts are seamless. But the the two-act structure compels the loss of the great musical climaxes with which Wagner ended the original Acts I and II, and a new musical climax is "invented" where Wagner never intended one, to take us to the evening's lone intermission.

Dove's arrangement for an orchestra of eighteen players works better than one would think. Most of the time I was lost in the drama, and not really conscious that 80% of the instruments Wagner wrote for were missing. But at times the loss was glaring. The Ride of the Valkyries sounded tinny, as did the Magic Fire music that ends the opera. The fault seemed to be with the upper strings--just two violins and one viola--which didn't always play together, and just couldn't produce enough sound.

(Dove's scalpel didn't fall equally on all instruments. He writes for two horns, which is 1/4th of the eight that Wagner used. The two cellos are 1/6th of Wagner's complement, and the one double bass is 1/8th. But the lone viola is 1/12th of a full Wagner orchestra, and the two violins just 1/16th. I think the sound would be about a hundred times better if the upper strings were doubled.)

Conductor Jonathan Sheffer deserves all the praise he can get for bringing this production to life. There was a significant claque of boo-ers when he appeared for his bow, which I did not understand. Let us hope that Siegfried and Twilight of the Gods won't be far behind!

Salome, Metropolitan Opera, 19 March 2004

Last night was the second performance of the new production of Salome at the Metropolitan Opera. As widely reported, soprano Karita Mattila bares all in the Dance of the Seven Veils, but if you blink you'll miss it: she's au naturel for just a second. Vocally, Mattila doesn't quite have all the chops for this role. Still, it's a courageous total performance, by an artist at the top of her game.

I didn't mind the idea of an updated production, but the set design just didn't work for me. Jochanaan's cistern was crammed into a small space downstage left-center. Although there was plenty of open and little-used space elsewhere on the Met's cavernous stage, too much of the action seemed handcuffed by the bulky, ugly scaffolding that surrounded the cistern.