President Bush has said that those of us 55 years of age and older will not be affected; our Social Security program will remain the same. That is good news.
How about the Social Security program for the workers under age 55? Should we give them "ownership, choice and personal responsibility," by letting them cut their payroll (Social Security) taxes and invest the money in private, personal retirement accounts? Those who opt to put the 4% (4/7ths of their payroll taxes) into a private investment account would presumably take a 4/7ths reduction in their social insurance coverage under Social Security. Sounds all right.
If the boomer becomes disabled, his ["he" means "he" or "she"] Social Security check would be 3/7ths of what it would otherwise be; same with survivor’s benefits for the minor children of the boomer, and for the widow, if the boomer gets killed. When the boomer reaches 62 or 65 and retires, the retirement benefits would be 3/7ths of what they would otherwise be. The Medicare benefits would be 3/7ths of what they otherwise would be. That would be fair to all. If the boomer and his dependents can get by with 3/7ths, all would be okay.
Proponents say there will be no problem. They say the boomer will make up the 4/7ths cut in their social insurance coverage under Social Security, by the retirement account that they will build up through the investment of the taxes not paid as taxes. The employer contribution (another 4/7ths) would be added in for the boomer. The boomers earned it.
A basic question is whether we want the government to force the boomers to buy Social Security insurance. Many of us are worried that some boomers may cut their payroll taxes to Social Security, and make bad investments and end up on the public dole in their interminable old age, or when they are disabled; or that the boomer will make bad investments and die early and leave the widow and minor children on the public dole.
I suppose the government intends to keep control of the private investment accounts, and to require that such money be invested on Wall Street. Could not allow investment in real estate investment trusts, for example, or private corporations, limited liability companies or partnerships or small businesses. This government restriction cuts down on choice and personal responsibility, but there is still ownership. Proponents say that the nest egg can be passed on to heirs in the event that it is not all used up by date of death. True; but we could accomplish that by adding an ordinary life insurance component to the present Social Security.
Solve the worry that the boomer will blow the 4/7ths and come back for a hand out from the taxpayers, and more of us will throw in with you. So all the boomers have to do (or I suppose the government intends to do this for the boomers, whether the boomers like it or not) is to find a policy or plan of social insurance that provides disability insurance; survivor’s insurance for minor children; survivor’s insurance for the widow; an annuity for retirement; Medicare from age 65 until death; and provides a substantial lump sum to be inherited by the heirs upon the death of the boomer. This proposed policy should pay benefits that make up the difference between what Social Security as we know it would pay; and the amount that Social Security minus 4/7ths of the payroll taxes, would pay. And this proposed policy must be sure to pay off; it must be guaranteed 100% sure to be there and in place when needed.
A good starting place is to look for a policy that provides this coverage and is 100% sure. See what it costs. Maybe the personal savings accounts are a good deal for the boomers. We older people are out of the picture now, and we were either overreached by President Roosevelt or not; that cannot be changed. We do have a right, however, to express an opinion and vote as to whether our children and grandchildren should run the risk of having to provide a dole for well meaning boomers who make bad investments or simply blown their 4/7ths.
We should also remember that it is only those who make $80,000 per year or less who are prevented from investing a portion of their Social Security payroll taxes in personal investment accounts. Those who make over $80,000 per year pay no Social Security taxes on the overage. They are free to invest all the overage they can save from the cost of living (and progressive income taxes), and they are not limited to investing it in Wall Street. They can make real estate investments, or invest in closely held private business entities.
If the boomer makes $1 million a year, why is he so concerned about the 4/7ths of the Social Security payroll taxes on his first $80 thousand? If the boomer is in the bracket that makes less than $80,000 per year, he should pause and hesitate to act before dropping an insurance policy which provides all of the coverage that Social Security does, at the premium now required.
Thursday, February 03, 2005
Tuesday, February 01, 2005
SHOULD CRIMINAL PROCEDURE SIX-MONTH RULE BE AMENDED?
The six-month rule states that felony criminal cases in New Mexico must go to trial within six months. If a felony case does not go to trial within six months, the rule requires that the Judge dismiss the case and release the accused, free of such charges, forever. Persons accused of murder have been set free on this technicality. The archives of the Albuquerque Journal report many cases where charges of murder, vehicular homicide, and other felonies were required to be dismissed, and the accused set free, never to be tried again, because of the six-month rule. Search the archives under "six month rule."
An accused has a constitutional right to a speedy trial. We are not talking about that. The constitutional speedy trial rule requires a trial within a reasonable time, and is a necessary safeguard. A case is not dismissed under the constitutional speedy trial rule unless the accused demands a trial, and the accused is prejudiced by the delay in trial.
The six-month rule is a so-called "speedy trial" rule, but it is not required by the State or federal constitution. Under this rule, the accused may be out on bail, may be avoiding trial, may not want a trial, may be delaying the trial in every way he can, and yet he must be set free, never to be tried, if the trial does not occur within six months.
Extensions of the rule may be allowed, but an application must be made by the prosecutor. The most egregious miscarriages of justice have occurred when the prosecutor intends to apply for an extension, but forgets to, and the six-month rule runs out and the accused goes free. A simple solution is for the rule to be changed to provide that if the rule is violated, the Judge may dismiss the case but is not required to; the Judge may impose some other sanction if that is warranted. At present the case must be dismissed "with prejudice," so that it may never be tried and the accused goes free, regardless of the strength of the evidence. How do we explain such a dismissal, without trial, and release of the accused without further charges, to the family of the victims? We are talking here about gross miscarriages of justice; not many, that is true; but too many. Not one should occur.
The federal rule of criminal procedure allows the Judge to dismiss the case without prejudice, allowing the prosecutor to re-file the case. The New Mexico rule can be changed to follow the federal rule. This would take action by the Supreme Court of New Mexico, but would not require any action by the Legislature. The Legislature may want to pass a memorial asking the Supreme Court to amend the six-month rule.
An accused has a constitutional right to a speedy trial. We are not talking about that. The constitutional speedy trial rule requires a trial within a reasonable time, and is a necessary safeguard. A case is not dismissed under the constitutional speedy trial rule unless the accused demands a trial, and the accused is prejudiced by the delay in trial.
The six-month rule is a so-called "speedy trial" rule, but it is not required by the State or federal constitution. Under this rule, the accused may be out on bail, may be avoiding trial, may not want a trial, may be delaying the trial in every way he can, and yet he must be set free, never to be tried, if the trial does not occur within six months.
Extensions of the rule may be allowed, but an application must be made by the prosecutor. The most egregious miscarriages of justice have occurred when the prosecutor intends to apply for an extension, but forgets to, and the six-month rule runs out and the accused goes free. A simple solution is for the rule to be changed to provide that if the rule is violated, the Judge may dismiss the case but is not required to; the Judge may impose some other sanction if that is warranted. At present the case must be dismissed "with prejudice," so that it may never be tried and the accused goes free, regardless of the strength of the evidence. How do we explain such a dismissal, without trial, and release of the accused without further charges, to the family of the victims? We are talking here about gross miscarriages of justice; not many, that is true; but too many. Not one should occur.
The federal rule of criminal procedure allows the Judge to dismiss the case without prejudice, allowing the prosecutor to re-file the case. The New Mexico rule can be changed to follow the federal rule. This would take action by the Supreme Court of New Mexico, but would not require any action by the Legislature. The Legislature may want to pass a memorial asking the Supreme Court to amend the six-month rule.
Saturday, January 29, 2005
GRAND JURY AND RULES OF EVIDENCE
CRIMINAL JUSTICE REFORM. Should the Legislature pass a memorial requesting that the Supreme Court make a change in the Rules of Evidence?
Rule 11-1101 D (2) of the Rules of Evidence (a rule of the Supreme Court of New Mexico) provides that the formal rules of evidence do not apply in certain cases. If the words "preliminary hearings and grand jury proceedings" were added, the formal rules of evidence in criminal cases would not apply in cases heard before the grand jury, and they would not apply in cases heard by preliminary hearing before a magistrate. The law of privilege (for example, priest and penitent, or lawyer and client) would still apply; but hearsay would not be prohibited.
For example, in a car theft case, in which a Cadillac was stolen in Long Beach, California, and recovered in Albuquerque in the possession of the accused, it would not be necessary for the District Attorney to bring the witness (car’s owner) from Long Beach for a grand jury hearing or for a preliminary hearing before a magistrate in Albuquerque. An affidavit from the owner could be used, or the investigating officer could testify under oath as to the report and details from the alleged victim.
Why should the accused be entitled to force the California car owner to come to New Mexico to testify at this stage of the proceedings? The right to confront the witnesses will apply, but at trial. There is no constitutional requirement that the witnesses testify in person at grand jury or preliminary hearing proceedings. If the accused claims that he had permission to take the car, then that is a different matter, and the District Attorney would not have to, but might want to bring the alleged victim to testify in person, and that could be done. But if there is no claim that the car was not stolen, then why should the victim witness be required to come to New Mexico to testify that her car was stolen?
If the case were being prosecuted in federal Court, the formal rules of evidence would not apply to the grand jury proceedings, nor to the preliminary hearing. The federal rules of criminal procedure allow hearsay in grand jury and preliminary hearings. They have for more than 30 years, at least.
This rule change can be made by the Supreme Court of New Mexico, without the necessity of a hearing. Should the Legislature pass a memorial requesting such a rule change?
Rule 11-1101 D (2) of the Rules of Evidence (a rule of the Supreme Court of New Mexico) provides that the formal rules of evidence do not apply in certain cases. If the words "preliminary hearings and grand jury proceedings" were added, the formal rules of evidence in criminal cases would not apply in cases heard before the grand jury, and they would not apply in cases heard by preliminary hearing before a magistrate. The law of privilege (for example, priest and penitent, or lawyer and client) would still apply; but hearsay would not be prohibited.
For example, in a car theft case, in which a Cadillac was stolen in Long Beach, California, and recovered in Albuquerque in the possession of the accused, it would not be necessary for the District Attorney to bring the witness (car’s owner) from Long Beach for a grand jury hearing or for a preliminary hearing before a magistrate in Albuquerque. An affidavit from the owner could be used, or the investigating officer could testify under oath as to the report and details from the alleged victim.
Why should the accused be entitled to force the California car owner to come to New Mexico to testify at this stage of the proceedings? The right to confront the witnesses will apply, but at trial. There is no constitutional requirement that the witnesses testify in person at grand jury or preliminary hearing proceedings. If the accused claims that he had permission to take the car, then that is a different matter, and the District Attorney would not have to, but might want to bring the alleged victim to testify in person, and that could be done. But if there is no claim that the car was not stolen, then why should the victim witness be required to come to New Mexico to testify that her car was stolen?
If the case were being prosecuted in federal Court, the formal rules of evidence would not apply to the grand jury proceedings, nor to the preliminary hearing. The federal rules of criminal procedure allow hearsay in grand jury and preliminary hearings. They have for more than 30 years, at least.
This rule change can be made by the Supreme Court of New Mexico, without the necessity of a hearing. Should the Legislature pass a memorial requesting such a rule change?
Thursday, January 27, 2005
CRIMINAL JUSTICE SCENE
CRIMINAL JUSTICE SCENE
Item. Albuquerque, NM. January 27, 2005. A twenty-eight year old man was convicted of vehicular homicide in the death of 14 year old boy bicyclist. The accused admitted DWI, but argued that negligence of the child was the sole significant cause of the accident and death. Supreme Court approved jury instructions say ". . . if you find that the negligence of a person other than the defendant was the only significant cause of death, then the defendant is not guilty . . . " Uniform Jury Instructions, Criminal, 14-252. The jury undoubtedly found that the negligence of the boy bicyclist was a significant cause of the accident, but under the instructions of District Judge James Blackmer, the jury was allowed to find guilt if the DWI conduct of the accused was also a "significant cause" of the accident.
Item. Los Lunas, NM. July 11, 1993. The headline read, "Ruling in Fatal Crash Case May Force Plea Bargain." Albuquerque Journal. It was the case of Roger Bishop, accused of vehicular homicide in the death of three Albuquerque residents. Three passengers in a van, returning to Albuquerque from the opera in Santa Fe, were killed. The accused claimed that the driver of the van was negligent, and obtained a ruling from District Judge Martin Pearl to the effect that for the accused to be found guilty, the unlawful conduct of the accused must be the sole cause of the accident and deaths. The Judge’s instruction, announced before trial after arguments by the prosecutor and defense lawyer, caused the District Attorney to commence work on a plea agreement. The Judge's proposed instruction stated, "In the event you find the victim or another person contributed to the death or great bodily harm, you must find for the defendant."
Item. Santa Fe, NM, January 2, 1970. The Court of Appeals today ruled that an Albuquerque man was wrongfully convicted of involuntary manslaughter in the death of a 14 year old boy bicyclist in Albuquerque. The Court ruled that the prosecutor had proved that the accused had killed the 14 year old boy bicyclist, but that the prosecutor had failed to prove the name of the child. The Court pointed out that the indictment alleged that the defendant killed a boy named [naming him], but that in the trial the prosecutor failed to ask the police officers and pathologist what the name of the deceased boy was. The Court of Appeals ruled that such a failure of proof, that is, a lack of evidence, required that the conviction not only be reversed, but that the accused be set free and was not to be tried again for the same offense. State v. Vallo, 81 N.M. 148 (1970). [Note, the reported case does not state that the boy was a bicyclist; that is the writer's recollection from news reports at the time.]
You may ask why this 1993 case and this 1970 case are dredged up and reviewed. The writer has never had any interest in any one of these three cases, other than a general interest in criminal justice. These are cases of "criminal justice seen."
Item. Albuquerque, NM. January 27, 2005. A twenty-eight year old man was convicted of vehicular homicide in the death of 14 year old boy bicyclist. The accused admitted DWI, but argued that negligence of the child was the sole significant cause of the accident and death. Supreme Court approved jury instructions say ". . . if you find that the negligence of a person other than the defendant was the only significant cause of death, then the defendant is not guilty . . . " Uniform Jury Instructions, Criminal, 14-252. The jury undoubtedly found that the negligence of the boy bicyclist was a significant cause of the accident, but under the instructions of District Judge James Blackmer, the jury was allowed to find guilt if the DWI conduct of the accused was also a "significant cause" of the accident.
Item. Los Lunas, NM. July 11, 1993. The headline read, "Ruling in Fatal Crash Case May Force Plea Bargain." Albuquerque Journal. It was the case of Roger Bishop, accused of vehicular homicide in the death of three Albuquerque residents. Three passengers in a van, returning to Albuquerque from the opera in Santa Fe, were killed. The accused claimed that the driver of the van was negligent, and obtained a ruling from District Judge Martin Pearl to the effect that for the accused to be found guilty, the unlawful conduct of the accused must be the sole cause of the accident and deaths. The Judge’s instruction, announced before trial after arguments by the prosecutor and defense lawyer, caused the District Attorney to commence work on a plea agreement. The Judge's proposed instruction stated, "In the event you find the victim or another person contributed to the death or great bodily harm, you must find for the defendant."
Item. Santa Fe, NM, January 2, 1970. The Court of Appeals today ruled that an Albuquerque man was wrongfully convicted of involuntary manslaughter in the death of a 14 year old boy bicyclist in Albuquerque. The Court ruled that the prosecutor had proved that the accused had killed the 14 year old boy bicyclist, but that the prosecutor had failed to prove the name of the child. The Court pointed out that the indictment alleged that the defendant killed a boy named [naming him], but that in the trial the prosecutor failed to ask the police officers and pathologist what the name of the deceased boy was. The Court of Appeals ruled that such a failure of proof, that is, a lack of evidence, required that the conviction not only be reversed, but that the accused be set free and was not to be tried again for the same offense. State v. Vallo, 81 N.M. 148 (1970). [Note, the reported case does not state that the boy was a bicyclist; that is the writer's recollection from news reports at the time.]
You may ask why this 1993 case and this 1970 case are dredged up and reviewed. The writer has never had any interest in any one of these three cases, other than a general interest in criminal justice. These are cases of "criminal justice seen."
Sunday, January 23, 2005
WHY NOT RUMSFELD INTERROGATION TECHNIQUES?
This need not be a partisan issue. The President, Secretary of Defense, and Attorney General nominee, have all said that "torture" is illegal and immoral and unAmerican, and that we will not engage in torture. Let us not look back at Guantanamo or Abu Grhaib; nor argue how far up the chain of command the responsibility went or should go. That leads to arguments and further polarization. Let us go forward, with definitions of approved interrogation techniques and specification of the circumstances that will justify the tehniques, and the procedures to protect against abuse of the process.
Let us agree to go forward with a rule of law that we are willing to follow, that most Americans will approve, and that we may, if we choose, recommend to the rest of the civilized world through the United Nations. Let us amend the Geneva accords relating to prisoners of war, if need be, or let us state (or affirm) that they do not apply to terrorists and enact a rule of law for the United States to deal with the problem.
Because we are all against "torture," perhaps we should not try to define torture (impermissible) but define permissible interrogation techniques. We could follow the principle we use in the United States, that is, we restrict the action (interrogation techniques) to use by qualified enforcement officers; we require such officers to have probable cause; we require the probable cause to be presented to a neutral, independent magistrate; and if the warrant is issued, the warrant sets forth what the officer may do. Let any JAG officer make the sworn application, on oath, setting forth the reliable hearsay that warrants the action. Let a general ranking officer, at least, be the magistrate and issue the order, the warrant. Let the warrant set forth exactly what may be done to get this suspect to reveal information he or she is believed to have and to which we are entitled. Let it be done by email to avoid delay in exigent cases.
Frankly, we are not talking about the Miranda rule (June 13, 1966); nor are we talking about the rule that says involuntary confessions (those obtained by mental or physical coercion or threats of such coercion, or promises of leniency) are inadmissible in American courts of criminal law. We are talking about what coercion will be permitted to get these terrorists to talk. Let Congress debate this in open session. Let us consider techniques that Congresspersons may advocate. We may consider authorizing the near-drowning (water-board) technique; the chain-him-in-a-fetal-position-in-waste for 48 hours technique; the forced en masse masturbation technique; the "light stick" or broom stick insertion technique; and the electrical shock to the appendages technique.
We certainly should consider the twenty-plus techniques signed off on by Secretary Rumsfeld,
as a great deal of expertise and thought went into them. Consider also the three techniques withdrawn from the Secretary's list after the digital pictures showed up. The point is that nothing is off limits to consider and reject or accept, and the rule of law which we adopt will give Americans a standard which we may all be willing to accept. If the rest of the civilized world goes along, fine. No global test here, however.
Let us agree to go forward with a rule of law that we are willing to follow, that most Americans will approve, and that we may, if we choose, recommend to the rest of the civilized world through the United Nations. Let us amend the Geneva accords relating to prisoners of war, if need be, or let us state (or affirm) that they do not apply to terrorists and enact a rule of law for the United States to deal with the problem.
Because we are all against "torture," perhaps we should not try to define torture (impermissible) but define permissible interrogation techniques. We could follow the principle we use in the United States, that is, we restrict the action (interrogation techniques) to use by qualified enforcement officers; we require such officers to have probable cause; we require the probable cause to be presented to a neutral, independent magistrate; and if the warrant is issued, the warrant sets forth what the officer may do. Let any JAG officer make the sworn application, on oath, setting forth the reliable hearsay that warrants the action. Let a general ranking officer, at least, be the magistrate and issue the order, the warrant. Let the warrant set forth exactly what may be done to get this suspect to reveal information he or she is believed to have and to which we are entitled. Let it be done by email to avoid delay in exigent cases.
Frankly, we are not talking about the Miranda rule (June 13, 1966); nor are we talking about the rule that says involuntary confessions (those obtained by mental or physical coercion or threats of such coercion, or promises of leniency) are inadmissible in American courts of criminal law. We are talking about what coercion will be permitted to get these terrorists to talk. Let Congress debate this in open session. Let us consider techniques that Congresspersons may advocate. We may consider authorizing the near-drowning (water-board) technique; the chain-him-in-a-fetal-position-in-waste for 48 hours technique; the forced en masse masturbation technique; the "light stick" or broom stick insertion technique; and the electrical shock to the appendages technique.
We certainly should consider the twenty-plus techniques signed off on by Secretary Rumsfeld,
as a great deal of expertise and thought went into them. Consider also the three techniques withdrawn from the Secretary's list after the digital pictures showed up. The point is that nothing is off limits to consider and reject or accept, and the rule of law which we adopt will give Americans a standard which we may all be willing to accept. If the rest of the civilized world goes along, fine. No global test here, however.
Friday, January 21, 2005
"UNIVERSE" CAN PROMOTE PEACE
Perhaps we should promote the idea of "Universe," a new language, a universal second language of 100 words to start. The United States Ambassador to the United Nations could make the proposal. We would have no motive except to promote world peace. The United Nations could assign its best scientists and linguists, and create a 100-word language that is easy to speak and is easy to write (digits?) on the World Wide Web. "Reverse Babel" is the idea. Giving all nations of the Earth a share of a universal language, setting aside nationalism and other divisions, and promoting tolerance and understanding, and ultimately, peace. Only 100 words to start, and for a generation to come, because the language will grow by itself if it is successful, and we want to encourage adults to learn it now. With the 100-word "Universe," travellers could go from country to country, or onto the web, learning and communicating, without being self-conscious.
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