The execution of Stanley (Tookie) Williams last night was flawed in respect to timing. He was sentenced to death for murder 25 years ago, for a killing that occurred in 1979. A final indignity was the difficulty, or failure, to find a blood vessel for the needle for 15 minutes after Williams was strapped in a modified dentist chair.
With due respect to the United States Supreme Court: you are responsible for the quarter of a century delay in justice. How can you justify such criminal justice procedure? Why is this not “cruel and inhuman” in itself?
Executioners, how about stepping up, shooting Williams with a tranquilizer dart, and then start the procedure? Or offer him a tranquilizer pill if he wants to sit up and look at the audience and spend a few more minutes before the needle is injected; or skip the needle if he wants to do it by some cocktail. The idea is to end his life, not torture him.
Governor Tony Anaya is in the news today. We like and respect Governor Anaya, but he was wrong, and deserves no respect, by and for the way he handled the death penalty during his term. When he ran for Governor, he was forthright in saying he opposed the death penalty, but he misled us when he said that there would be no executions on his watch. The misleading was his omission of an intention to commute every death sentence in New Mexico while he had the power.
Governor Anaya commuted the death sentences of all on death row in New Mexico just before he left office (1984?). There were four or five. He said he would commute the death sentence of a child rape murderer, if the death sentence were imposed in December, but the Judge said I am in control of my calendar, and the sentencing hearing will be in January. That murderer was the first one executed since 1960, and the only to date, to die by lethal injection.
Makes us think of the “Red Light Bandit,” Caryl Chessman, who pretended to be a police officer (red light shining on top of car) and raped in California. One of the women he raped became insane. The jury said death. Twelve years later (yes, 12), Chessman went to the gas chamber. Later, the United States Supreme Court ruled that no one can be executed for any crime against a person except murder.
Perhaps we should give up on the death penalty. Nullification has set in. The juries are reluctant, the Courts are reluctant, the United States Supreme Court is woefully incompetent in this field. Congress is paralyzed, but the blame really lies with the Supreme Court, which affords a review (properly so) of the State’s procedures; but which then clouds and obscures and delays and drags its feet and the feet of the numerous federal Judges, until a quarter of a century goes by between the time that Cain slays Abel and Cain pays the price.
Most of the death penalty cases are not worthy death penalty cases, that is part of the problem. The idea that you take a life, you forfeit your life, sounds good in the Bible, but it does not work. People will not enforce that rule. They should not enforce that rule. The death penalty should be reserved for extraordinary cases, those in which the people, if all sat on a jury, would rise up and say, “Outrage! Kill him!”
Socrates had a jury of 500. Majority rules. After conviction, the jury, in a sentencing proceeding, imposed the punishment, choosing between two: the convict suggested one; the prosecutor suggested another (a glass of hemlock). We could at least have a jury of 1200, by use of video and on-line technology. The idea of leaving life or death decisions to a group of twelve persons who are called for jury duty and have no acceptable excuse (or who want to serve), is unreasonable in the 21st Century. How about a 12 person jury in Texas, handing out sentences of 900 years (murder) and 15 years (Candy Barr, stripper, for one pound of marijuana)?
Question: is it time for a complete review and overhaul of our criminal justice system, including the question of where the police power should reside? For example, in California and about a dozen other States, a doctor can prescribe, and a patient, especially the terminally ill, can take, smoked marijuana as medicine. Yet, the federal government has laws on the books that make the doctor and patient federal criminals. Is this not worthy of attention?
Tuesday, December 13, 2005
Tuesday, December 06, 2005
TAXING POWER ABUSED; ARE LIBERALS OR CONSERVATIVES TO BLAME?
The taxing power is being abused, if you accept our analysis. We believe the taxing power should be limited, and used to raise money for government purposes. Taxes should be fairly imposed, and should be separated from government policy.
For example. Some people would like to own (keep and bear) submachine guns. Tommy guns are preferable, or some other authomatic of more recent vintage. Each to his own. For some reason, good or bad, the government wants to prevent the people from keeping and bearing Tommy Guns. Some in Congress want to take away my right (if it is a constitutional right, they cannot do it, but that is not the issue here).
First question. Those in power in the government (Congress) who want to take away my right to keep and bear a Tommy Gun; are they liberal or conservative? If Congress had been given the police power (in the Constitution), that would enable Congress to forthrightly say the people are to be left alone in the right to keep and bear a Tommy Gun, or to say, the people ought not to, and will not be allowed to, keep and bear a Tommy Gun.
Right there, we would look at Congress, see those who are trying to take away the right to keep and bear the Tommy Gun; and see those who are for staying out of the matter and allowing those who want the gun to keep and bear it. Then we could clearly identify the liberal and the conservative, and vote accordingly.
Complication. The Constitution, which is the social contract we signed, grants certain powers, and some necessarily implied powers, to the United States government; but not the police power. That is reserved to the States, or to the people. So how does Congress manage to outlaw the Tommy Gun? If the Congress wants to take that step, they must hang their hat on the power to regulate interstate commerce, or the power to tax; and in either case, that is an abuse of power.
So Congress imposes a confiscatory tax on Tommy Guns, and in effect usurps the police power, and takes away our right to keep and bear the Tommy Gun. Was that a conservative, or a liberal measure by which they took away that right? If Congress had the police power and took away our Tommy Guns, would that be conservative or liberal?
Some may favor the police power being used to take away people's rights to keep and bear the Tommy Gun. Are they liberal or conservative? But when you favor using the taxing power to accomplish that goal, what are you?
A law was recently passed, to forgive millions in taxes each year (is not this a subsidy?) to induce some promoters to open up businesses in New Mexico. Loans to businesses, with taxpayer money, are subsidies, are they not? Are these practices conservative, or liberal?
Let us pass a law, impose a tax, and raise money and give it to Graham Wellington, a promoter, who wants to open a business in New Mexico (a corporation, or LLC, or limited liability partnership, so Wellington does not risk his own assets). All those in favor, say Aye. Are you liberal? Are you conservative? Are you a Democrat, tax and spend? Or are you a Republican, small, limited government person?
For example. Some people would like to own (keep and bear) submachine guns. Tommy guns are preferable, or some other authomatic of more recent vintage. Each to his own. For some reason, good or bad, the government wants to prevent the people from keeping and bearing Tommy Guns. Some in Congress want to take away my right (if it is a constitutional right, they cannot do it, but that is not the issue here).
First question. Those in power in the government (Congress) who want to take away my right to keep and bear a Tommy Gun; are they liberal or conservative? If Congress had been given the police power (in the Constitution), that would enable Congress to forthrightly say the people are to be left alone in the right to keep and bear a Tommy Gun, or to say, the people ought not to, and will not be allowed to, keep and bear a Tommy Gun.
Right there, we would look at Congress, see those who are trying to take away the right to keep and bear the Tommy Gun; and see those who are for staying out of the matter and allowing those who want the gun to keep and bear it. Then we could clearly identify the liberal and the conservative, and vote accordingly.
Complication. The Constitution, which is the social contract we signed, grants certain powers, and some necessarily implied powers, to the United States government; but not the police power. That is reserved to the States, or to the people. So how does Congress manage to outlaw the Tommy Gun? If the Congress wants to take that step, they must hang their hat on the power to regulate interstate commerce, or the power to tax; and in either case, that is an abuse of power.
So Congress imposes a confiscatory tax on Tommy Guns, and in effect usurps the police power, and takes away our right to keep and bear the Tommy Gun. Was that a conservative, or a liberal measure by which they took away that right? If Congress had the police power and took away our Tommy Guns, would that be conservative or liberal?
Some may favor the police power being used to take away people's rights to keep and bear the Tommy Gun. Are they liberal or conservative? But when you favor using the taxing power to accomplish that goal, what are you?
A law was recently passed, to forgive millions in taxes each year (is not this a subsidy?) to induce some promoters to open up businesses in New Mexico. Loans to businesses, with taxpayer money, are subsidies, are they not? Are these practices conservative, or liberal?
Let us pass a law, impose a tax, and raise money and give it to Graham Wellington, a promoter, who wants to open a business in New Mexico (a corporation, or LLC, or limited liability partnership, so Wellington does not risk his own assets). All those in favor, say Aye. Are you liberal? Are you conservative? Are you a Democrat, tax and spend? Or are you a Republican, small, limited government person?
Thursday, December 01, 2005
PRESIDENT BUSH IS RIGHT: ABSTINENCE, ONE PARTNER; OR CONDUM
President George W. Bush, even though his programs are influenced by his religious beliefs [he is wrong to impose his Christian beliefs on others] has a good formula to prevent or help cure AIDS in Africa. It is ABC, abstinence, faithfulness, and condums.
Too bad KKOB radio has two people on who trivialize the problem, on AIDS day. This is a disease. Villaneucci and (I am sorry to say) Richard Eads have trivilized the problem. That is not too bad, because as Jim says, this is a talk show and is for entertainment. But it goes beyond that. He and Richard are saying things that are dangerous to the public.
Jim Villaneucci refers to the two [not the most likely, but the "two"] ways to get AIDS, as [anal sex] and [sex with persons who do drugs with needles]. To our dismay, Richard Eads parrots, "It's preventable!" What did Richard mean? Was he saying, as Jim seemed to be saying, that you can prevent AIDS and keep yourself from getting AIDS, if you do not engage in anal sex or sex with addicts who do drugs with needles?
This is outrageous. KKOB, Villaneucci and Richard Eads should do a series to apologize for their ignorance (best case).
When a caller referred to children in Africa with AIDS, Jim said he felt sorry for the little children, but the money was being wasted! What money? Is he referring to the money used for medicine for the disease? He blithely refers to the 15 billion that USA put up. Wait. It was a pledge of 15 billion over 5 years, which is 3 billion a year. Is that a couple of months of the war in Iraq?
We hereby call on KKOB to apologize for this shallow program, whether entertainment or not, which lets us down in our fight against a terrible disease. When one caller asked about sex with a woman not the wife, Jim started talking about "protection." He also said he was checked for HIV every time he had a physical. What kind of message is he sending? Where is Richard Eads on this? Is it wrong to call this OUTRAGEOUS?
The impression the hosts left from this AIDS program was that one need not worry about AIDS if one did not engage on the receiving end in anal sex, and avoided sex with people who use needles for drug addictions. No emphasis, no reference, to practices to protect oneself otherwise, except the generalization, "protection." And get a blood test every time that you get a physical. Is this comment unfair? Perhaps so.
Too bad KKOB radio has two people on who trivialize the problem, on AIDS day. This is a disease. Villaneucci and (I am sorry to say) Richard Eads have trivilized the problem. That is not too bad, because as Jim says, this is a talk show and is for entertainment. But it goes beyond that. He and Richard are saying things that are dangerous to the public.
Jim Villaneucci refers to the two [not the most likely, but the "two"] ways to get AIDS, as [anal sex] and [sex with persons who do drugs with needles]. To our dismay, Richard Eads parrots, "It's preventable!" What did Richard mean? Was he saying, as Jim seemed to be saying, that you can prevent AIDS and keep yourself from getting AIDS, if you do not engage in anal sex or sex with addicts who do drugs with needles?
This is outrageous. KKOB, Villaneucci and Richard Eads should do a series to apologize for their ignorance (best case).
When a caller referred to children in Africa with AIDS, Jim said he felt sorry for the little children, but the money was being wasted! What money? Is he referring to the money used for medicine for the disease? He blithely refers to the 15 billion that USA put up. Wait. It was a pledge of 15 billion over 5 years, which is 3 billion a year. Is that a couple of months of the war in Iraq?
We hereby call on KKOB to apologize for this shallow program, whether entertainment or not, which lets us down in our fight against a terrible disease. When one caller asked about sex with a woman not the wife, Jim started talking about "protection." He also said he was checked for HIV every time he had a physical. What kind of message is he sending? Where is Richard Eads on this? Is it wrong to call this OUTRAGEOUS?
The impression the hosts left from this AIDS program was that one need not worry about AIDS if one did not engage on the receiving end in anal sex, and avoided sex with people who use needles for drug addictions. No emphasis, no reference, to practices to protect oneself otherwise, except the generalization, "protection." And get a blood test every time that you get a physical. Is this comment unfair? Perhaps so.
MAYOR SHOULD BE COMMENDED FOR VIDEO SURVEILLANCE
In the title to this blog, we use the term “video surveillance,” as that is a forthright description of what we are talking about. You may call it “Big Brother.” Sugar coating video surveillance by calling it “red light cameras,” may make it more acceptable in the short run. But we may want to step up and say that video surveillance by the police, in a public place, is an acceptable practice in law enforcement; and in such case, we should discard the euphemisms.
Mayor Martin Chavez is a leader in this form of law enforcement, and he should be commended. We ought to encourage him and the police to use video surveillance for deterrence of speeders, red light runners, stop sign runners, drivers who change lanes illegally, impaired drivers, tailgaters, and other dangerous drivers. No one has a right to drive dangerously in a motor vehicle on the public roadways.
This is a limited government, a government of delegated powers, so it is not accurate to say that driving of a motor vehicle is a privilege. It is a right. However, it may be regulated, or limited, for the protection of public health and safety. So we are back to the point: no one has a right to drive dangerously in a motor vehicle on the public roadways. We have laws against it, the laws are within the law-making power of the Legislature (and City legislature), and the laws should be enforced. These are generalities with which most citizens would agree. Here, now, is where we part company.
How and when and in what circumstances, do we enforce the law against speeding? Today, if the law is enforced, it is hit and miss. If the speeder causes an accident, the speeding may come to the attention of the police. If a police person is in a vehicle on the highway, the speeder may be detected, with or without radar. If a police person is in a crow’s nest atop a machine used to lift workers into the air for tree trimming, telephone line repair, and the like, the speeder may be detected. Apprehension is another matter. Prosecution is another matter. Apprehension entails danger to the police person who makes the physical stop, and to other people on the roadway. Prosecution requires time and effort, appearance of witnesses, etc. Video makes conviction more certain and deters trial demands in cases where there is no honest defense.
Once the speeder is detected and apprehended, and prosecuted (commencing with summons), the question arises, what is the appropriate punishment? One dollar, ten dollars, or one hundred dollars fine, for each mile over the posted speed limit? People would balk at the idea that one mile over the limit should draw a $300 fine, would they not? But isn’t that someone’s suggestion for a fine for school zone speeding? They say a drunk driver drives drunk 1,200 times for each time she is caught. How many times does a speeder speed for each time she is caught? Is it not obvious that certainty of detection and prosecution will be adequate deterrence, without draconian fines? If you take off for Santa Fe from Albuquerque, unless you are in dire circumstances, you will not speed if you are certain to be detected and prosecuted, even if the fine is relatively modest.
We as the majority have a right to punish speeders; but we have an obligation to catch as many guilty as we reasonably can, so that the ones who are caught and prosecuted do not have to pay for the crimes of the many. For each crime, someone pays a fine; but it is not always the one who commits the crime. In these days of modern technology in law enforcement, it is not right to make A pay for her crime and for the crime of B, if we can easily make each pay for her own offense.
The use of video surveillance of our roadways will enable our police to detect and prosecute traffic offenders. The placement of such cameras in many different locations, on and about the roadways, will make our streets and highways safer for all. We drive from North 14 down South to Interstate 40, and often see two Sheriff’s vehicles sitting beside the highway, watching for traffic offenders. If we had a half dozen video surveillance cameras on Highway 14 North, would not that accomplish the job?
How should we handle the prosecution, after we have detected the dangerous driver, and if we do not immediately apprehend him? Now, in Albuquerque, the matter is handled as a civil infraction, nuisance-type offense, and the citation goes out from Arizona to the address of the registered owner. Some objected to that, because the registered owner is automatically suspected of being the driver when the vehicle runs a red light, for example. That is a hyper-technical defense which ought to be rejected.
If a motor vehicle is operated, on the roadway, it may be presumed in the law, to be operated by its registered owner. The presumption is rebuttable, but in the absence of a sworn denial by the registered owner, the presumption should be adequate for conviction of a crime, including DWI and vehicular homicide. These examples may arise after an accident and when the police arrive there is no driver around, or there are several persons around and none acknowledges driving the offender vehicle.
Finally, it might not be necessary to cite an offending driver, even for a civil infraction. The police could install the cameras, put the results on line, and invite the insurance companies to the database. We could use the Arizona firm, for instance, but not pay by the infraction cited, but by the day or month.
Imagine that your driving habits are going on line, for your insurance company to see or review; for some trial lawyer to see or review in case of an accident even months later, etc. Would this prospect get your attention? All of us would be able to look online and see and review infractions of the law in video. We could eliminate favoritism, ticket fixing, and the like. Big Citizens keeping a watch on the offenders, and on the law enforcement authorities.
Mayor Martin Chavez is a leader in this form of law enforcement, and he should be commended. We ought to encourage him and the police to use video surveillance for deterrence of speeders, red light runners, stop sign runners, drivers who change lanes illegally, impaired drivers, tailgaters, and other dangerous drivers. No one has a right to drive dangerously in a motor vehicle on the public roadways.
This is a limited government, a government of delegated powers, so it is not accurate to say that driving of a motor vehicle is a privilege. It is a right. However, it may be regulated, or limited, for the protection of public health and safety. So we are back to the point: no one has a right to drive dangerously in a motor vehicle on the public roadways. We have laws against it, the laws are within the law-making power of the Legislature (and City legislature), and the laws should be enforced. These are generalities with which most citizens would agree. Here, now, is where we part company.
How and when and in what circumstances, do we enforce the law against speeding? Today, if the law is enforced, it is hit and miss. If the speeder causes an accident, the speeding may come to the attention of the police. If a police person is in a vehicle on the highway, the speeder may be detected, with or without radar. If a police person is in a crow’s nest atop a machine used to lift workers into the air for tree trimming, telephone line repair, and the like, the speeder may be detected. Apprehension is another matter. Prosecution is another matter. Apprehension entails danger to the police person who makes the physical stop, and to other people on the roadway. Prosecution requires time and effort, appearance of witnesses, etc. Video makes conviction more certain and deters trial demands in cases where there is no honest defense.
Once the speeder is detected and apprehended, and prosecuted (commencing with summons), the question arises, what is the appropriate punishment? One dollar, ten dollars, or one hundred dollars fine, for each mile over the posted speed limit? People would balk at the idea that one mile over the limit should draw a $300 fine, would they not? But isn’t that someone’s suggestion for a fine for school zone speeding? They say a drunk driver drives drunk 1,200 times for each time she is caught. How many times does a speeder speed for each time she is caught? Is it not obvious that certainty of detection and prosecution will be adequate deterrence, without draconian fines? If you take off for Santa Fe from Albuquerque, unless you are in dire circumstances, you will not speed if you are certain to be detected and prosecuted, even if the fine is relatively modest.
We as the majority have a right to punish speeders; but we have an obligation to catch as many guilty as we reasonably can, so that the ones who are caught and prosecuted do not have to pay for the crimes of the many. For each crime, someone pays a fine; but it is not always the one who commits the crime. In these days of modern technology in law enforcement, it is not right to make A pay for her crime and for the crime of B, if we can easily make each pay for her own offense.
The use of video surveillance of our roadways will enable our police to detect and prosecute traffic offenders. The placement of such cameras in many different locations, on and about the roadways, will make our streets and highways safer for all. We drive from North 14 down South to Interstate 40, and often see two Sheriff’s vehicles sitting beside the highway, watching for traffic offenders. If we had a half dozen video surveillance cameras on Highway 14 North, would not that accomplish the job?
How should we handle the prosecution, after we have detected the dangerous driver, and if we do not immediately apprehend him? Now, in Albuquerque, the matter is handled as a civil infraction, nuisance-type offense, and the citation goes out from Arizona to the address of the registered owner. Some objected to that, because the registered owner is automatically suspected of being the driver when the vehicle runs a red light, for example. That is a hyper-technical defense which ought to be rejected.
If a motor vehicle is operated, on the roadway, it may be presumed in the law, to be operated by its registered owner. The presumption is rebuttable, but in the absence of a sworn denial by the registered owner, the presumption should be adequate for conviction of a crime, including DWI and vehicular homicide. These examples may arise after an accident and when the police arrive there is no driver around, or there are several persons around and none acknowledges driving the offender vehicle.
Finally, it might not be necessary to cite an offending driver, even for a civil infraction. The police could install the cameras, put the results on line, and invite the insurance companies to the database. We could use the Arizona firm, for instance, but not pay by the infraction cited, but by the day or month.
Imagine that your driving habits are going on line, for your insurance company to see or review; for some trial lawyer to see or review in case of an accident even months later, etc. Would this prospect get your attention? All of us would be able to look online and see and review infractions of the law in video. We could eliminate favoritism, ticket fixing, and the like. Big Citizens keeping a watch on the offenders, and on the law enforcement authorities.
Friday, November 18, 2005
PRESIDENT BUSH AND VP CHENEY GETTING BAD RAP
This torture, no torture debate needs some direction. Too bad the listener cannot ask questions. Right now we have the Senate saying 90-9, “[No] cruel, inhuman or degrading [treatment of prisoners]”. Vice President Cheney is saying, let us exempt agents of the CIA when the acts are done on foreign soil. President Bush is saying, “We do not torture.” Some critics are saying that the President and Vice President are contradicting each other.
What the critics say does not necessarily follow. Even if the President and Vice President were talking about the same conduct, they may be consistent. It may be that we do not torture, as that term is defined by Alberto Gonzales, the Attorney General. Or it may be that some of us have tortured, as Gonzales defines the term, but that we have quit and have been prosecuted. Then the President’s assurances would be accurate.
It may be that Vice President Cheney is talking about “torture” as that term is used by the President (and the Attorney General), in which case Cheney may be asking Congress to exempt the CIA on foreign soil, from prosecution for torture. If such is the case, there is an inconsistency between what the President is saying and what the Vice President is asking. However, if the Vice President is seeking an exemption from prosecution merely for cruel, inhuman or degrading treatment of suspected terrorists, there would be no inconsistency. Merely exempt the CIA from prosecution for treatment of terrorists in a cruel, inhuman or degrading manner on foreign soil. We can still say we do not torture.
One problem, as Defense Secretary Rumsfeld points out, is that other countries in the civilized world may contend that a violation of the convention against cruel, inhuman or degrading treatment, is indeed “torture,” or may constitute “torture,” even though the treatment does not amount to “torture” under the latest revision of the definition by Attorney General Gonzales.
What is more likely than not, is that the President and Vice President and the Attorney General, are all on the same page, and that literally there is no inconsistency between the remarks of Bush and Cheney. President Bush says we do not torture, and that can reasonably be taken to mean that we do not torture as that term has been defined by Alberto Gonzales. Vice President Cheney says in effect, we do use cruel, inhuman or degrading treatment of suspected terrorists; but we do it by the CIA and on foreign soil. Let us continue, as we need to do it for our defense. It would seem that there is no inconsistency, and that the critics are wrong to say so.
It is another matter if the critics want to step up and say that Gonzales was wrong on his definition, that any reasonable person knows that he was wrong, that the President knows that he was wrong, and that the President is not being forthcoming when he says, “We do not torture.” The critics would then be accusing the President of trying to mislead us regarding our policy in the treatment of alleged terrorists. The critics could also say that the watered down torture treatment of “cruel, inhuman or degrading treatment” is something we do not want to tolerate, not even by the CIA on foreign soil. Then we would have the issues defined and could have an intelligent debate, without name calling.
As we understand it, we have treaties (specifically, “Geneva Conventions”) by which we agree, (1) we will not torture prisoners of war; and (2) we will not treat any prisoner in a “cruel, inhuman or degrading” manner. It is important to keep those two prohibitions separate in our minds, as the debate progresses.
Let us not confuse the issue by simply saying, “We do not torture.” Do we use the techniques of sleep deprivation, the near-drowning, the electric prod, the foreign object inserted, the chaining to concrete floor in fetal position in waste? We did do so at Abu Grab [sic], did we not? That is, did not some rogue, out of control United States military people at a low level of command, at that prison, on some isolated night shift, perform some of these techniques? Let us be specific when we say we do not torture. It would seem that the electric prod, for example, or the near-drowning, which would cause discomfort; or the sleep deprivation technique, or the chain to floor in waste technique, which might induce temporary psychosis, would not be torture under the Alberto Gonzales definition. Would they not be “cruel, inhuman or degrading” treatment?
What if the Senate had defeated by 90-9, this new legislative “thou shalt not?” Would we say then that the techniques described are moral under the circumstances? Since the Senate passed this new “thou shalt not,” should we now say that the techniques are immoral under the circumstances? Should we ask for an exception for the CIA on foreign soil (does it matter whether it is by Sgt. England in a military lockup in the mainland USA, or a nameless CIA in a secret prison in foreign territory)?
How about under the “ticking dirty bomb” scenario, would the techniques described be moral under those circumstances? Would torture as defined by Attorney General Gonzales be justified under the “ticking dirty bomb” scenario? Would it require an amendment of some Geneva convention, a treaty which we have signed and ratified?
Would it be best if we came on forthrightly and advocated an amendment, to allow “torture straight up” in certain cases, and let someone (who?) decide the cases? If the application for the warrant were signed by the Secretary of Defense, and approved by the Supreme Court, would a warrant authorizing straight-up torture be justifiable? If our treaties do not allow it, that would be another problem, but assuming that we could get around the treaties, would we want it?
Can we rationally discuss these matters, even debate these policies? We need not identify our political persuasion (though you must see that the writer is a liberal). We could start by identifying the issues. First, all seem to agree that we should not torture (even if they do not agree as to whether we have been torturing). Fine; no torture. Next, let us define our term. What do we mean by torture? We are familiar with some of the interrogation techniques that are criticized. It would help if we would take these techniques, one at a time, and examine and explain them, and then decide whether they are “torture” as we use the term.
Once we define torture (think of it as a small circle), then we can proceed to define the term “cruel, inhuman or degrading,” which is a large circle which includes the torture. We do not suppose that very many Americans object to interrogation by any technique which is not cruel, inhuman or degrading.
To get here, to allow interrogation at all, we have to agree that these detainees are not prisoners of war, otherwise the Geneva conventions would apply. As we understand it, the Geneva prisoner of war convention bars interrogation, period. That is what Alberto Gonzales thought was "quaint" in todays war on terror. (Some misunderstood him, we believe, and thought he was saying that the Geneva conventions were "quaint."
What the critics say does not necessarily follow. Even if the President and Vice President were talking about the same conduct, they may be consistent. It may be that we do not torture, as that term is defined by Alberto Gonzales, the Attorney General. Or it may be that some of us have tortured, as Gonzales defines the term, but that we have quit and have been prosecuted. Then the President’s assurances would be accurate.
It may be that Vice President Cheney is talking about “torture” as that term is used by the President (and the Attorney General), in which case Cheney may be asking Congress to exempt the CIA on foreign soil, from prosecution for torture. If such is the case, there is an inconsistency between what the President is saying and what the Vice President is asking. However, if the Vice President is seeking an exemption from prosecution merely for cruel, inhuman or degrading treatment of suspected terrorists, there would be no inconsistency. Merely exempt the CIA from prosecution for treatment of terrorists in a cruel, inhuman or degrading manner on foreign soil. We can still say we do not torture.
One problem, as Defense Secretary Rumsfeld points out, is that other countries in the civilized world may contend that a violation of the convention against cruel, inhuman or degrading treatment, is indeed “torture,” or may constitute “torture,” even though the treatment does not amount to “torture” under the latest revision of the definition by Attorney General Gonzales.
What is more likely than not, is that the President and Vice President and the Attorney General, are all on the same page, and that literally there is no inconsistency between the remarks of Bush and Cheney. President Bush says we do not torture, and that can reasonably be taken to mean that we do not torture as that term has been defined by Alberto Gonzales. Vice President Cheney says in effect, we do use cruel, inhuman or degrading treatment of suspected terrorists; but we do it by the CIA and on foreign soil. Let us continue, as we need to do it for our defense. It would seem that there is no inconsistency, and that the critics are wrong to say so.
It is another matter if the critics want to step up and say that Gonzales was wrong on his definition, that any reasonable person knows that he was wrong, that the President knows that he was wrong, and that the President is not being forthcoming when he says, “We do not torture.” The critics would then be accusing the President of trying to mislead us regarding our policy in the treatment of alleged terrorists. The critics could also say that the watered down torture treatment of “cruel, inhuman or degrading treatment” is something we do not want to tolerate, not even by the CIA on foreign soil. Then we would have the issues defined and could have an intelligent debate, without name calling.
As we understand it, we have treaties (specifically, “Geneva Conventions”) by which we agree, (1) we will not torture prisoners of war; and (2) we will not treat any prisoner in a “cruel, inhuman or degrading” manner. It is important to keep those two prohibitions separate in our minds, as the debate progresses.
Let us not confuse the issue by simply saying, “We do not torture.” Do we use the techniques of sleep deprivation, the near-drowning, the electric prod, the foreign object inserted, the chaining to concrete floor in fetal position in waste? We did do so at Abu Grab [sic], did we not? That is, did not some rogue, out of control United States military people at a low level of command, at that prison, on some isolated night shift, perform some of these techniques? Let us be specific when we say we do not torture. It would seem that the electric prod, for example, or the near-drowning, which would cause discomfort; or the sleep deprivation technique, or the chain to floor in waste technique, which might induce temporary psychosis, would not be torture under the Alberto Gonzales definition. Would they not be “cruel, inhuman or degrading” treatment?
What if the Senate had defeated by 90-9, this new legislative “thou shalt not?” Would we say then that the techniques described are moral under the circumstances? Since the Senate passed this new “thou shalt not,” should we now say that the techniques are immoral under the circumstances? Should we ask for an exception for the CIA on foreign soil (does it matter whether it is by Sgt. England in a military lockup in the mainland USA, or a nameless CIA in a secret prison in foreign territory)?
How about under the “ticking dirty bomb” scenario, would the techniques described be moral under those circumstances? Would torture as defined by Attorney General Gonzales be justified under the “ticking dirty bomb” scenario? Would it require an amendment of some Geneva convention, a treaty which we have signed and ratified?
Would it be best if we came on forthrightly and advocated an amendment, to allow “torture straight up” in certain cases, and let someone (who?) decide the cases? If the application for the warrant were signed by the Secretary of Defense, and approved by the Supreme Court, would a warrant authorizing straight-up torture be justifiable? If our treaties do not allow it, that would be another problem, but assuming that we could get around the treaties, would we want it?
Can we rationally discuss these matters, even debate these policies? We need not identify our political persuasion (though you must see that the writer is a liberal). We could start by identifying the issues. First, all seem to agree that we should not torture (even if they do not agree as to whether we have been torturing). Fine; no torture. Next, let us define our term. What do we mean by torture? We are familiar with some of the interrogation techniques that are criticized. It would help if we would take these techniques, one at a time, and examine and explain them, and then decide whether they are “torture” as we use the term.
Once we define torture (think of it as a small circle), then we can proceed to define the term “cruel, inhuman or degrading,” which is a large circle which includes the torture. We do not suppose that very many Americans object to interrogation by any technique which is not cruel, inhuman or degrading.
To get here, to allow interrogation at all, we have to agree that these detainees are not prisoners of war, otherwise the Geneva conventions would apply. As we understand it, the Geneva prisoner of war convention bars interrogation, period. That is what Alberto Gonzales thought was "quaint" in todays war on terror. (Some misunderstood him, we believe, and thought he was saying that the Geneva conventions were "quaint."
Tuesday, November 15, 2005
LET’S PASS A LAW, IMPOSE A TAX, AND USE THE MONEY FOR THIS DEAL
Graham Wellington is the CEO of an LLC, and he is giving the New Mexico taxpayers an opportunity to invest in Wellington’s company. The company is a start-up type of company, with an idea that looks very promising. Wellington is the Chief Executive. The LLC is WELLINGTON ENTERPRISES, a limited liability company, formed as such to protect Wellington and his partners from being personally liable for the debts of the company.
The question is whether we New Mexico taxpayers should pass a law to impose a tax to raise the money and allow one of our employees or elected officials to invest with Wellington.
Joe Sixpack, who is a taxpayer, has asked us to explain how this works. He said he read that there are Albuquerque based companies which act as brokers between the State treasury people and enterprises such as that of WELLINGTON. Taxpayer money is involved. Taxpayers are required to pay taxes to raise money for the State to lend or give to enterprises such as that of WELLINGTON and other new, start-up companies. A middleman is also involved, making a living brokering between the State treasury and the promoters, such as Wellington. The idea is that we, the taxpayers, should invest in new companies, to create jobs, etc., and we will all be better off in the long run. We could keep those taxes and make our own investments, but the government of New Mexico believes it is better that the government handle the matter.
Joe Sixpack wanted to know how this got started, and why? He wonders why WELLINGTON ENTERPRISES does not simply borrow the start-up money from investors in general. Sell stock, or bonds and raise the money. When the project becomes profitable, all get paid back. If not all goes well, then the investors lose, but they stood to gain. But what if no one will invest with WELLINGTON? The company will never get off the ground. That is true. However, is it right to force the taxpayers to pay for this venture? Is this trip necessary?
The government cannot guarantee that all the children can get enough to eat, nor get a doctor when needed. The government should prioritize and take care of first things first. Two square meals, a roof over the head, and a doctor when sick. For all Americans. No pseudo entitlement, with a waiting list. If there is a waiting list, there is no entitlement for all.
When the government provides food, shelter and a doctor, that is socialism. No doubt about it. But it is just a small amount of socialism, like an inoculation. Over and above these necessities of life, which the taxpayers should provide under the social compact, there are material goals aplenty to keep us all working and producing. That is the beauty of rugged free enterprise, material reward to the diligent, the producers. Free enterprise brings out the best in us, whether it be movie star talent, ball playing talent, lawyering talent, CEO talent, or any other talent useful in a lawful occupation. That is why the estate tax is wrong; it penalizes production. Excessive taxation does the same.
We can have rugged free enterprise, consistent with cradle to the grave security. For example, body parts are not for sale. A human heart will not be transplanted to the high bidder. Blood donors who donate blood for medical care are not paid. This taste of socialism is familiar to those who have served in the military: socialized medicine; food, shelter, clothing.
Senator Robert Dole had the right idea. In 1996 he said give them a safety net, but not a hammock. Well and good. However, a safety floor is what we need, rather than a net. A safety floor (food, shelter, medical care) is an entitlement of all Americans who stay in this country after coming of age. This is a social compact which started in 1787. “We the People of the United States, in Order to . . . promote the general Welfare, . . . do ordain and establish this Constitution for the United States of America.” As each of us comes of age and remains in this country, we agree to abide by the social compact.
We agree to go to prison for smoking marijuana to relieve ourselves of unbearable pain; we agree to go to prison for crimes and misdemeanors which we commit; we agree to pay taxes, including those imposed on us to lend or give to some start up company which the powers that be decide deserves a hand up from the taxpayers. We agree that some people (those who form corporations) can make millions per year.
We agree to some of these corporations receiving subsidies from us, the taxpayers. We agree that we and our children and grandchildren will serve in the military to fight the wars that our government chooses to fight. We the People do our part. We are entitled – not some of us; not most of us; all of us. An entitlement delayed is an entitlement denied; so no waiting lists.
The question is whether we New Mexico taxpayers should pass a law to impose a tax to raise the money and allow one of our employees or elected officials to invest with Wellington.
Joe Sixpack, who is a taxpayer, has asked us to explain how this works. He said he read that there are Albuquerque based companies which act as brokers between the State treasury people and enterprises such as that of WELLINGTON. Taxpayer money is involved. Taxpayers are required to pay taxes to raise money for the State to lend or give to enterprises such as that of WELLINGTON and other new, start-up companies. A middleman is also involved, making a living brokering between the State treasury and the promoters, such as Wellington. The idea is that we, the taxpayers, should invest in new companies, to create jobs, etc., and we will all be better off in the long run. We could keep those taxes and make our own investments, but the government of New Mexico believes it is better that the government handle the matter.
Joe Sixpack wanted to know how this got started, and why? He wonders why WELLINGTON ENTERPRISES does not simply borrow the start-up money from investors in general. Sell stock, or bonds and raise the money. When the project becomes profitable, all get paid back. If not all goes well, then the investors lose, but they stood to gain. But what if no one will invest with WELLINGTON? The company will never get off the ground. That is true. However, is it right to force the taxpayers to pay for this venture? Is this trip necessary?
The government cannot guarantee that all the children can get enough to eat, nor get a doctor when needed. The government should prioritize and take care of first things first. Two square meals, a roof over the head, and a doctor when sick. For all Americans. No pseudo entitlement, with a waiting list. If there is a waiting list, there is no entitlement for all.
When the government provides food, shelter and a doctor, that is socialism. No doubt about it. But it is just a small amount of socialism, like an inoculation. Over and above these necessities of life, which the taxpayers should provide under the social compact, there are material goals aplenty to keep us all working and producing. That is the beauty of rugged free enterprise, material reward to the diligent, the producers. Free enterprise brings out the best in us, whether it be movie star talent, ball playing talent, lawyering talent, CEO talent, or any other talent useful in a lawful occupation. That is why the estate tax is wrong; it penalizes production. Excessive taxation does the same.
We can have rugged free enterprise, consistent with cradle to the grave security. For example, body parts are not for sale. A human heart will not be transplanted to the high bidder. Blood donors who donate blood for medical care are not paid. This taste of socialism is familiar to those who have served in the military: socialized medicine; food, shelter, clothing.
Senator Robert Dole had the right idea. In 1996 he said give them a safety net, but not a hammock. Well and good. However, a safety floor is what we need, rather than a net. A safety floor (food, shelter, medical care) is an entitlement of all Americans who stay in this country after coming of age. This is a social compact which started in 1787. “We the People of the United States, in Order to . . . promote the general Welfare, . . . do ordain and establish this Constitution for the United States of America.” As each of us comes of age and remains in this country, we agree to abide by the social compact.
We agree to go to prison for smoking marijuana to relieve ourselves of unbearable pain; we agree to go to prison for crimes and misdemeanors which we commit; we agree to pay taxes, including those imposed on us to lend or give to some start up company which the powers that be decide deserves a hand up from the taxpayers. We agree that some people (those who form corporations) can make millions per year.
We agree to some of these corporations receiving subsidies from us, the taxpayers. We agree that we and our children and grandchildren will serve in the military to fight the wars that our government chooses to fight. We the People do our part. We are entitled – not some of us; not most of us; all of us. An entitlement delayed is an entitlement denied; so no waiting lists.
Friday, November 04, 2005
JUSTICE DEPARTMENT MISSES POINT; PROSECUTORS SHOULD BE CAREFUL
Here in New Mexico, in announcing the indictments against Robert Vigil, our elected State Treasurer, United States Attorney David Iglesias, made some reference to the Treasurer using the treasury like an ATM machine. The accused, now resigned, is represented by Sam Bregman, an Albuquerque attorney who also has been trying his case in the media (tit for tat, fair response, etc., do not apply if either lawyer is wrong).
Bregman filed a motion asking for some relief because of the U.S. Attorney’s public statement about the ATM machine; and in the motion pointed out that the prosecutor has left the impression that there was a direct theft of cash from the State treasury. Bregman, the defense lawyer, invited the attention of the federal Judge to the fact that the charges were kickbacks, not placing the hand in the till to take money. In so doing, Bregman was claiming that the public remarks of the U.S. Attorney were argumentative, went beyond the mere recitation of the facts alleged in the indictment, and tended to taint the jury pool. He was also claiming that an allegation of stealing the public money directly, was worse than an allegation of taking kickbacks or bribes or extorting bribes.
In the response reportedly made by the office of the U.S. Attorney, it was argued that the metaphor of the accused’s conduct was accurate. Big deal. The metaphor (or simile) probably was accurate, in a broad sense, because when the accused authorized payment of taxpayer money, knowing he, the accused, would get some of that money back to himself through kickback, bribe, or extortion, that is like using the State treasury like an ATM machine. So is the U.S. Attorney cleared? There remains the matter of using a metaphor at all.
The use of the metaphor is argument, and places the integrity and personal beliefs of the U.S. Attorney into the balance against the accused. This tends to taint the jury pool. This is wrong, even if it does not taint the jury pool. And it is all under the guise of a permissible, simple public announcement of an investigation and the resulting indictment (things the public is entitled to know). The U.S. Attorney has every right to characterize the accused’s conduct as use of the State treasury like a personal ATM. But the place and time were wrong. This should be a part of the argument in the trial, after all the evidence is in.
Special Prosecutor Pat Fitzgerald made a similar mistake when he publicly announced the indictment of Scooter Libby. Fitzgerald used a baseball analogy. First, he referred to a pitcher (unknown) who winds up and throws a fastball and “. . . hit the batter right smack in the head and it really, really hurt them, you’d want to know why the pitcher did that . . . .” And later he stated, “And what we have when someone charges obstruction of justice, the umpire gets sand thrown in his eyes. He’s trying to figure out what happened and somebody blocked their view.”
Fitzgerald spoke of how important the investigation [and case] are to all of us, and that it shows the world thus and so; and the investigation is important because we need the intelligence [that the CIA is able to get with volunteer agents who expect and need protection]. (Washington Post website.)
In a sense, there is probably no harm done. The jury pool may not be tainted by such tactics. The public has heard so many lawyers, including prosecutors, try their cases in the media, that the public may very well take such tactics as mere lawyer talk. Like F. Lee Bailey and Alan Dershowitz saying (as if they knew) that O. J. Simpson was innocent of butchering his ex-wife. Like the car dealers claiming that they have a “sale” going on, where one can “save” thousands of dollars; and that the manufacturers are going to throw in a “rebate,” and you can do it all on credit with “0%” interest. Does the public really fall for those claims? Perhaps the public is smart enough to disregard all of these pretrial histrionics in criminal cases.
Bregman filed a motion asking for some relief because of the U.S. Attorney’s public statement about the ATM machine; and in the motion pointed out that the prosecutor has left the impression that there was a direct theft of cash from the State treasury. Bregman, the defense lawyer, invited the attention of the federal Judge to the fact that the charges were kickbacks, not placing the hand in the till to take money. In so doing, Bregman was claiming that the public remarks of the U.S. Attorney were argumentative, went beyond the mere recitation of the facts alleged in the indictment, and tended to taint the jury pool. He was also claiming that an allegation of stealing the public money directly, was worse than an allegation of taking kickbacks or bribes or extorting bribes.
In the response reportedly made by the office of the U.S. Attorney, it was argued that the metaphor of the accused’s conduct was accurate. Big deal. The metaphor (or simile) probably was accurate, in a broad sense, because when the accused authorized payment of taxpayer money, knowing he, the accused, would get some of that money back to himself through kickback, bribe, or extortion, that is like using the State treasury like an ATM machine. So is the U.S. Attorney cleared? There remains the matter of using a metaphor at all.
The use of the metaphor is argument, and places the integrity and personal beliefs of the U.S. Attorney into the balance against the accused. This tends to taint the jury pool. This is wrong, even if it does not taint the jury pool. And it is all under the guise of a permissible, simple public announcement of an investigation and the resulting indictment (things the public is entitled to know). The U.S. Attorney has every right to characterize the accused’s conduct as use of the State treasury like a personal ATM. But the place and time were wrong. This should be a part of the argument in the trial, after all the evidence is in.
Special Prosecutor Pat Fitzgerald made a similar mistake when he publicly announced the indictment of Scooter Libby. Fitzgerald used a baseball analogy. First, he referred to a pitcher (unknown) who winds up and throws a fastball and “. . . hit the batter right smack in the head and it really, really hurt them, you’d want to know why the pitcher did that . . . .” And later he stated, “And what we have when someone charges obstruction of justice, the umpire gets sand thrown in his eyes. He’s trying to figure out what happened and somebody blocked their view.”
Fitzgerald spoke of how important the investigation [and case] are to all of us, and that it shows the world thus and so; and the investigation is important because we need the intelligence [that the CIA is able to get with volunteer agents who expect and need protection]. (Washington Post website.)
In a sense, there is probably no harm done. The jury pool may not be tainted by such tactics. The public has heard so many lawyers, including prosecutors, try their cases in the media, that the public may very well take such tactics as mere lawyer talk. Like F. Lee Bailey and Alan Dershowitz saying (as if they knew) that O. J. Simpson was innocent of butchering his ex-wife. Like the car dealers claiming that they have a “sale” going on, where one can “save” thousands of dollars; and that the manufacturers are going to throw in a “rebate,” and you can do it all on credit with “0%” interest. Does the public really fall for those claims? Perhaps the public is smart enough to disregard all of these pretrial histrionics in criminal cases.
Sunday, October 30, 2005
HOME ALONE; BUT OUT OF BEER
Here I am, home alone. Watching the game on TV. I am feeling good! Problem is, I am out of beer. Nothing in house. I want to keep drinking, because I am feeling good, watching the game, not hurting anybody, minding my own business. Baloney and cheese and white sliced bread in the ice box, so all is okay, but no beer. If I get in the pickup and try to go to a drive in window, there are no such windows. So I should park and walk in to the gas station, 7-11, or Walgreens, and buy myself a 12 pack. I am not Joe Sixpack.
But I know that if I get in the pickup and start driving down the street, I may hit a child, or crash into a minivan with a mom and children. It is 11:00 a.m., and some are going about their business, not expecting an impaired driver on the streets.
I heard that one blogger said we need home delivery. That is a good idea. I could call and have a case of Coors brought to my door. There are those who oppose that idea, and have got the law fixed so it is illegal for anyone to provide that service (except of course UPS is allowed to deliver wine to the better people). If I could buy my beer like a domino pizza, I would do it. The law says no. No one speaks up for home delivery of booze, except that one blogger.
Perhaps I will just go to sleep and not get in my pickup and endanger those kids on the street. If I go out on the street in my pickup, I hope someone calls DWI RESOURCE CENTER. They can bring an open mind and good judgment to this problem.
But I know that if I get in the pickup and start driving down the street, I may hit a child, or crash into a minivan with a mom and children. It is 11:00 a.m., and some are going about their business, not expecting an impaired driver on the streets.
I heard that one blogger said we need home delivery. That is a good idea. I could call and have a case of Coors brought to my door. There are those who oppose that idea, and have got the law fixed so it is illegal for anyone to provide that service (except of course UPS is allowed to deliver wine to the better people). If I could buy my beer like a domino pizza, I would do it. The law says no. No one speaks up for home delivery of booze, except that one blogger.
Perhaps I will just go to sleep and not get in my pickup and endanger those kids on the street. If I go out on the street in my pickup, I hope someone calls DWI RESOURCE CENTER. They can bring an open mind and good judgment to this problem.
Tuesday, October 25, 2005
HARRIET MIERS KNOWS ALL THE CONSTITUTIONAL LAW NEEDED
From what we see in the papers, Harriet Miers is qualified to be on the Supreme Court. She obviously is not the most qualified person, but since when is that a reason to reject a nominee. Some Democrats plan to oppose her because they fear she would vote to overrule or limit the rule of Roe v. Wade. This is not a case where we are picking a representative to vote on whether the law ought to guarantee that a pregnant woman has an absolute right to end her pregnancy by abortion in the first trimester. We are picking someone to be a judge. If we believe she would be a good judge, we have nothing to fear, because a good judge will not let her own personal views interfere with her obligation to follow the law without fear or favor.
It has been said by many that she is not qualified because she is not well versed in federal constitutional law. That is not a big problem. She has not argued 39 cases in the Supreme Court, as Chief Justice John Roberts had. But how important is that? How much did John Roberts, lawyer, learn after the first or second appearance he made in the United States Supreme Court? What did he learn about? Sure, he learned some of the idiosyncrasies of the individual justices (from listening to them in oral arguments which were held in relative secrecy, no live audio nor video). Perhaps Roberts was there when Chief Justice Rehnquist in open Court reprimanded the lawyer who, while arguing his case, made the mistake of addressing the Chief as “Judge,” instead of “Mr. Chief Justice.”
What do you learn in oral argument before a Court where the justices interrupt the lawyers and talk down to them and otherwise treat them with disrespect? You learn what you are up against, and that is all. It is like talking to an audience; you learn what the audience is like and you try to please without being obsequious. Whatever constitutional law, or other law, you learn, you learn in reading the law and doing the brief. I doubt that the justices often ask questions and make comments to the arguing lawyers, in order to learn. I believe the questions that the justices ask (in the United States Supreme Court oral arguments) are often for the purpose of expounding the preconceived opinions of the one asking the questions.
A good example is that (it is reported) the new Chief Justice, at his first oral argument, interrupted the arguing lawyer during the lawyer’s first sentence, with a question which began with words to the effect,”But doesn’t that do thus and so, etc.?” What does that say about the Chief Justice? Would Harriet Miers have done that?
The Justices do not read all of the petitions for hearings; there are thousands each year. They do not even claim to read the one-paragraph summaries contained in the petitions. They delegate this task to clerks or committees of clerks. They may tell their clerk to keep on the lookout for a case which will allow the Court to take up such and such an issue. We do not learn about this, because of the secrecy of the proceedings of this branch of the government. How would we feel if a general jurisdiction trial judge (say District Court, in New Mexico; or Superior Court, in California; or Supreme Court, in New York) were to tell her clerk, “Be on the lookout for a case that we can get assigned to hear, and that raises the issue of thus and so?” How would we feel if we were a party on one side or the other of a case involving just that issue?
If Harriet Miers is a good lawyer, with decades of experience as a lawyer, and especially if her experience has been varied, then she is qualified to be on the Supreme Court. She no more needs a cram course in constitutional law (read that federal constitutional law) than she needs one in the law of crimes, or the tax code, or the United States Code, or any of the other numerous fields of law that come before the Supreme Court. A good course in statutory construction would be helpful. A good course in American history would help. Latin would be a relative waste of time. A good grounding in law school, and experience, are enough.
It is not necessary that she have been a judge; there is always the first time when a lawyer becomes a judge. If you insist on a judge, at least insist on a trial Court judge.
If Harriet Miers is an honest person and a fair-minded person, and if she has the professional qualifications, then let her have the job. Let President Bush have his choice if we can be satisfied that Ms. Miers is honest and fair-minded, and experienced as a lawyer for decades. How would Chief Justice Roberts have done if given a job as a federal prosecutor, or a State public defender, or second chair in the defense of a medical malpractice case? Probably, very well; but that is because he is bright, not because he argued almost 40 cases before the Supreme Court.
The Supreme Court requires you to file an application to have your case heard; and if you are lucky enough to get a hearing, you will spend many days on the research and several days writing and editing your brief for the Court. You will then get 45 minutes to orally argue; big deal. So Chief Justice Roberts stood in the Supreme Court for 30 hours over the time of his career. I do not minimize that; I respect his abilities and reputation. But the lawyers who make oral argument before the Supreme Court seem to me to be like a specialty team (say kick-off) in football. We want industry, patience, good will, courtesy, integrity; and considerable experience as a lawyer in a wide variety of jobs.
If you personally had a very important case, one that affected your life or the lives of your family, would you want it tried to Judge Roberts, or to Judge Miers (sitting as a solo trial judge)?
It has been said by many that she is not qualified because she is not well versed in federal constitutional law. That is not a big problem. She has not argued 39 cases in the Supreme Court, as Chief Justice John Roberts had. But how important is that? How much did John Roberts, lawyer, learn after the first or second appearance he made in the United States Supreme Court? What did he learn about? Sure, he learned some of the idiosyncrasies of the individual justices (from listening to them in oral arguments which were held in relative secrecy, no live audio nor video). Perhaps Roberts was there when Chief Justice Rehnquist in open Court reprimanded the lawyer who, while arguing his case, made the mistake of addressing the Chief as “Judge,” instead of “Mr. Chief Justice.”
What do you learn in oral argument before a Court where the justices interrupt the lawyers and talk down to them and otherwise treat them with disrespect? You learn what you are up against, and that is all. It is like talking to an audience; you learn what the audience is like and you try to please without being obsequious. Whatever constitutional law, or other law, you learn, you learn in reading the law and doing the brief. I doubt that the justices often ask questions and make comments to the arguing lawyers, in order to learn. I believe the questions that the justices ask (in the United States Supreme Court oral arguments) are often for the purpose of expounding the preconceived opinions of the one asking the questions.
A good example is that (it is reported) the new Chief Justice, at his first oral argument, interrupted the arguing lawyer during the lawyer’s first sentence, with a question which began with words to the effect,”But doesn’t that do thus and so, etc.?” What does that say about the Chief Justice? Would Harriet Miers have done that?
The Justices do not read all of the petitions for hearings; there are thousands each year. They do not even claim to read the one-paragraph summaries contained in the petitions. They delegate this task to clerks or committees of clerks. They may tell their clerk to keep on the lookout for a case which will allow the Court to take up such and such an issue. We do not learn about this, because of the secrecy of the proceedings of this branch of the government. How would we feel if a general jurisdiction trial judge (say District Court, in New Mexico; or Superior Court, in California; or Supreme Court, in New York) were to tell her clerk, “Be on the lookout for a case that we can get assigned to hear, and that raises the issue of thus and so?” How would we feel if we were a party on one side or the other of a case involving just that issue?
If Harriet Miers is a good lawyer, with decades of experience as a lawyer, and especially if her experience has been varied, then she is qualified to be on the Supreme Court. She no more needs a cram course in constitutional law (read that federal constitutional law) than she needs one in the law of crimes, or the tax code, or the United States Code, or any of the other numerous fields of law that come before the Supreme Court. A good course in statutory construction would be helpful. A good course in American history would help. Latin would be a relative waste of time. A good grounding in law school, and experience, are enough.
It is not necessary that she have been a judge; there is always the first time when a lawyer becomes a judge. If you insist on a judge, at least insist on a trial Court judge.
If Harriet Miers is an honest person and a fair-minded person, and if she has the professional qualifications, then let her have the job. Let President Bush have his choice if we can be satisfied that Ms. Miers is honest and fair-minded, and experienced as a lawyer for decades. How would Chief Justice Roberts have done if given a job as a federal prosecutor, or a State public defender, or second chair in the defense of a medical malpractice case? Probably, very well; but that is because he is bright, not because he argued almost 40 cases before the Supreme Court.
The Supreme Court requires you to file an application to have your case heard; and if you are lucky enough to get a hearing, you will spend many days on the research and several days writing and editing your brief for the Court. You will then get 45 minutes to orally argue; big deal. So Chief Justice Roberts stood in the Supreme Court for 30 hours over the time of his career. I do not minimize that; I respect his abilities and reputation. But the lawyers who make oral argument before the Supreme Court seem to me to be like a specialty team (say kick-off) in football. We want industry, patience, good will, courtesy, integrity; and considerable experience as a lawyer in a wide variety of jobs.
If you personally had a very important case, one that affected your life or the lives of your family, would you want it tried to Judge Roberts, or to Judge Miers (sitting as a solo trial judge)?
Saturday, October 22, 2005
ALBUQUERQUE BUSINESSES TO PAY EXTRA FOR POLICE PROTECTION
This week it was reported in the Albuquerque Journal that the City has entered into an agreement with owners of seventeen (17) convenience stores. The City found that there is a considerable amount of crime in and about these stores, and the police are too often called out to those locations to respond to crimes in progress or to take reports of crime. These are only a fraction of the total convenience stores in Albuquerque, and someone is quoted as saying that these stores are in bad neighborhoods. What is a “bad neighborhood,” except one in which there is an inordinate amount of crime?
Apparently the City plans to treat these stores differently from “crack houses” and East Central or South Broadway bars, locations which also generate an unusual number of calls for the police. Those bars will be bulldozed, or the owners bought out and the lots turned to uses that are approved by the City. Trees near apartment houses have been cut down by the City, because drug dealers may hide behind the trees and do drug deals.
We may wonder why the police do not simply put more officers in these areas, if there is more crime there that needs attention. Under the agreement, in order to avoid what they consider to be onerous regulation by the City, the store owners will take action to provide greater security for these premises. They will hire security. That is, in addition to utilizing the police protection that is now afforded, the store owners will hire further security officers at the owners’ expense. Thus business people who are operating legitimate businesses are being penalized because crime occurs in their stores or on their store premises. If crime is there, the police ought to be there. Instead of making sure the police are there, to protect and serve, the City sees an opportunity to sell protection.
The store owners have a choice: hire private security guards, or hire APD police to work for the store owners and provide police protection. These APD officers would be off-duty officers of the APD, but they would work for the store owners (for time and a half). They would look, and presumably act, like police officers on duty. They would drive the same cars, wear the same uniforms, carry the same gun and equipment and badge. A citizen would not be able to tell that these officers were not regular police officers, doing their duty protecting and serving. These are officers on “Chief’s Overtime.”
The store owners have a choice. They can hire these officers, or hire private security people. But they must hire one or the other. Which do you think the store owner is going to choose? Which would you choose? There is at least an appearance of impropriety here. It appears that the City is selling protection; or is allowing its off-duty officers to sell protection and mislead the public as to who is their employer. When I see an AKAL security officer, I believe that the officer is working for AKAL and the store owner who hired that security. When I see an APD officer, in uniform and official car and badge, I do not know who that officer is working for.
In the Thirties, protection was sold in the big cities, and the numbers racket was available. Today, protection is sold (although it is by commissioned officers, with the sanction of the City); and the State, yes, the State of New Mexico, runs the numbers game.
Apparently the City plans to treat these stores differently from “crack houses” and East Central or South Broadway bars, locations which also generate an unusual number of calls for the police. Those bars will be bulldozed, or the owners bought out and the lots turned to uses that are approved by the City. Trees near apartment houses have been cut down by the City, because drug dealers may hide behind the trees and do drug deals.
We may wonder why the police do not simply put more officers in these areas, if there is more crime there that needs attention. Under the agreement, in order to avoid what they consider to be onerous regulation by the City, the store owners will take action to provide greater security for these premises. They will hire security. That is, in addition to utilizing the police protection that is now afforded, the store owners will hire further security officers at the owners’ expense. Thus business people who are operating legitimate businesses are being penalized because crime occurs in their stores or on their store premises. If crime is there, the police ought to be there. Instead of making sure the police are there, to protect and serve, the City sees an opportunity to sell protection.
The store owners have a choice: hire private security guards, or hire APD police to work for the store owners and provide police protection. These APD officers would be off-duty officers of the APD, but they would work for the store owners (for time and a half). They would look, and presumably act, like police officers on duty. They would drive the same cars, wear the same uniforms, carry the same gun and equipment and badge. A citizen would not be able to tell that these officers were not regular police officers, doing their duty protecting and serving. These are officers on “Chief’s Overtime.”
The store owners have a choice. They can hire these officers, or hire private security people. But they must hire one or the other. Which do you think the store owner is going to choose? Which would you choose? There is at least an appearance of impropriety here. It appears that the City is selling protection; or is allowing its off-duty officers to sell protection and mislead the public as to who is their employer. When I see an AKAL security officer, I believe that the officer is working for AKAL and the store owner who hired that security. When I see an APD officer, in uniform and official car and badge, I do not know who that officer is working for.
In the Thirties, protection was sold in the big cities, and the numbers racket was available. Today, protection is sold (although it is by commissioned officers, with the sanction of the City); and the State, yes, the State of New Mexico, runs the numbers game.
Saturday, October 15, 2005
DEMEANING THE FEDERAL COURT
The case of United States v. Vigil is on trial – in the newspapers. It is rare that federal cases in New Mexico are tried in the newspapers. It is unseemly. The United States Attorney struck the first low blow, if the papers are right. He held a press conference and summed up by alleging that the State Treasurer, Mr. Vigil, was using the treasury as a personal ATM machine.
Sam Bregman, defense attorney, responded with the usual denial of guilt, but went one further. Instead of following the Reardon Rules, and restricting his statement to the approved rubric, “My client asserts his innocence.”, Bregman states that he, Bregman, knows that Vigil is innocent. In this, he went way over the line, unless he is an eye witness, in which case he should drop out as lawyer.
Perhaps Mr. Bregman has been influenced by lawyers such as Alan Dershowitz and F. Lee Bailey, who violated the rules of lawyering by expressing their personal opinions as to the guilt or innocence of a client, O. J. Simpson. But what motivates David C. Iglesias, U.S. Attorney, to try his case in the newspapers? Is it politics? He is certainly painting the Democratic party as a bunch of thieves and our elected Democrat watchdog officials as incompetent or corrupt. He has experienced assistants. Is he consulting them, have they become “yes-men,” or is he out there on his own? Does he have political ambitions?
Do you question whether Iglesias is trying his case in the newspapers? Why file (so it becomes public) detailed affidavits and so-called exhibits to “motions?” Do you question whether Bregman is following suit? Then point out another such exhibition. This mess degrades the federal Court criminal justice system.
In part, we blame the federal Courts, from the Supreme Court down. They operate in relative secrecy. No audio; no video. What a pity, because the federal Court in New Mexico would, if televised and put on line, raise all of the judiciary and justice system in the eyes of the citizens.
What a waste, to not have been able to see the hearing yesterday, regarding the conditions of release of the accused, Vigil, on live television, audio, and on-line. Senior U.S. District Court Judge James A. Parker, on-line, would do a great deal to restore, or bolster, the confidence of the people in the justice system.
Sam Bregman, defense attorney, responded with the usual denial of guilt, but went one further. Instead of following the Reardon Rules, and restricting his statement to the approved rubric, “My client asserts his innocence.”, Bregman states that he, Bregman, knows that Vigil is innocent. In this, he went way over the line, unless he is an eye witness, in which case he should drop out as lawyer.
Perhaps Mr. Bregman has been influenced by lawyers such as Alan Dershowitz and F. Lee Bailey, who violated the rules of lawyering by expressing their personal opinions as to the guilt or innocence of a client, O. J. Simpson. But what motivates David C. Iglesias, U.S. Attorney, to try his case in the newspapers? Is it politics? He is certainly painting the Democratic party as a bunch of thieves and our elected Democrat watchdog officials as incompetent or corrupt. He has experienced assistants. Is he consulting them, have they become “yes-men,” or is he out there on his own? Does he have political ambitions?
Do you question whether Iglesias is trying his case in the newspapers? Why file (so it becomes public) detailed affidavits and so-called exhibits to “motions?” Do you question whether Bregman is following suit? Then point out another such exhibition. This mess degrades the federal Court criminal justice system.
In part, we blame the federal Courts, from the Supreme Court down. They operate in relative secrecy. No audio; no video. What a pity, because the federal Court in New Mexico would, if televised and put on line, raise all of the judiciary and justice system in the eyes of the citizens.
What a waste, to not have been able to see the hearing yesterday, regarding the conditions of release of the accused, Vigil, on live television, audio, and on-line. Senior U.S. District Court Judge James A. Parker, on-line, would do a great deal to restore, or bolster, the confidence of the people in the justice system.
Tuesday, October 04, 2005
IT IS TIME FOR OPENNESS IN SUPREME COURT PROCEEDINGS
John Roberts has taken his seat as Chief Justice of the United States, or Chief Justice of the Supreme Court of the United States, as we prefer to say. We are life-long Franklin Roosevelt Democrats. We believe Senator Jeff Bingaman did the right thing by voting for Justice Roberts, and we wish the Chief Justice well. We wish the Court well.
There is something we would like to see, however, and now is the time. We would like to see more openness in the Court. We would like to have live audo and video, going onto the internet, of all arguments, and other "public" proceedings. We are not asking to be in on the conferences, nor the arguments among the Justices themselves, or their clerks, and certainly not their deliberations.
We want the television camera to go unobtrusively into the courtroom during public proceedings. Why not? The camera goes almost everywhere in government (our founding fathers excluded the public from the Senate galleries at the beginning). The Senate, the House, the OJ trial, State funerals, etc.
Why not telecast the arguments, for example, in cases of such great public interest and importance? As this is written (updated)Chief Justice Roberts is presiding at a "public" hearing on an assisted suicide case from Oregon. It is not right for the Court to prohibit live and on-line video of the arguments. It is an outrage that the Court prohibits live audio of the arguments.
Would the camera be a distraction? Why? Would the lawyers ham it up? I doubt it. Is the Chief Justice unable to control counsel in this courtroom? I believe the Justices and the lawyers would be on their best behavior, paying attention. The world would know what a wonderful system of government we have, and how fair-minded our Courts are.
We blame the news media for not insisting years ago that these proceedings be televised. But now, with a change in administration of the Court, now is the time. Justice Roberts seems like a reasonable man. Ask him. Let us take a straw vote. Let Congress speak out. Our Supreme Court conducts its public proceedings in relative secrecy. Let the sunshine in.
There is something we would like to see, however, and now is the time. We would like to see more openness in the Court. We would like to have live audo and video, going onto the internet, of all arguments, and other "public" proceedings. We are not asking to be in on the conferences, nor the arguments among the Justices themselves, or their clerks, and certainly not their deliberations.
We want the television camera to go unobtrusively into the courtroom during public proceedings. Why not? The camera goes almost everywhere in government (our founding fathers excluded the public from the Senate galleries at the beginning). The Senate, the House, the OJ trial, State funerals, etc.
Why not telecast the arguments, for example, in cases of such great public interest and importance? As this is written (updated)Chief Justice Roberts is presiding at a "public" hearing on an assisted suicide case from Oregon. It is not right for the Court to prohibit live and on-line video of the arguments. It is an outrage that the Court prohibits live audio of the arguments.
Would the camera be a distraction? Why? Would the lawyers ham it up? I doubt it. Is the Chief Justice unable to control counsel in this courtroom? I believe the Justices and the lawyers would be on their best behavior, paying attention. The world would know what a wonderful system of government we have, and how fair-minded our Courts are.
We blame the news media for not insisting years ago that these proceedings be televised. But now, with a change in administration of the Court, now is the time. Justice Roberts seems like a reasonable man. Ask him. Let us take a straw vote. Let Congress speak out. Our Supreme Court conducts its public proceedings in relative secrecy. Let the sunshine in.
Wednesday, September 28, 2005
LET THE SUN SHINE IN TO OUR GOVERNMENT
The County Clerk of Bernalillo County maintains records of real estate transactions: deeds, mortgages, liens, etc. She has these on a database in her office downtown. If Joe Sixpack wants to look at these records (they are public records), he can go down to the building at 5th and Marquette and go up to the Sixth floor and ask a clerk to look into the computer. Older records are there (prior to 1995?) on microfilm. Parking? It is to work at.
Why is this? These are our records, public records. Why are they not on line? Why cannot Jane Sixpack access these public records from her own computer in her own home, or at the public library?
Same deal with the contracts that the City, County and State enter into with middlemen of all sorts. Why cannot we see these contracts on line? For example, how much is the attorney going to take for his fee of the $100 million bond issue the County authorized? Is it a reasonable amount? Is it based on work done, hourly rate? Or is it a percentage? If it is a percentage, then why? Will the attorney get $125,000? That is more than we pay the Chief Justice for a whole year’s work. How many hours will be put into this work? What rate per hour?
If that gated community in the Northeast Heights hires some off-duty police officers and pays them time and a half to patrol the neighborhood, in government, marked police cars, in uniform with badge and gun, what is this all about? The answer is in the contract, a writing, which could be put on line but is not. Why not? If the Chief wants to let his officers be hired by private individuals to police for those special ones, and call the plan “Chief’s Overtime,” then let him put the contracts on line. Sunshine could cure a lot of our problems, and make right a lot of our wrongs.
Let technology help us become Big Citizens.
Why is this? These are our records, public records. Why are they not on line? Why cannot Jane Sixpack access these public records from her own computer in her own home, or at the public library?
Same deal with the contracts that the City, County and State enter into with middlemen of all sorts. Why cannot we see these contracts on line? For example, how much is the attorney going to take for his fee of the $100 million bond issue the County authorized? Is it a reasonable amount? Is it based on work done, hourly rate? Or is it a percentage? If it is a percentage, then why? Will the attorney get $125,000? That is more than we pay the Chief Justice for a whole year’s work. How many hours will be put into this work? What rate per hour?
If that gated community in the Northeast Heights hires some off-duty police officers and pays them time and a half to patrol the neighborhood, in government, marked police cars, in uniform with badge and gun, what is this all about? The answer is in the contract, a writing, which could be put on line but is not. Why not? If the Chief wants to let his officers be hired by private individuals to police for those special ones, and call the plan “Chief’s Overtime,” then let him put the contracts on line. Sunshine could cure a lot of our problems, and make right a lot of our wrongs.
Let technology help us become Big Citizens.
Friday, September 23, 2005
CHARITABLE GIVING COMMENDABLE BUT RESULTS IN NEGLECT OF RESPONSIBILITY
During this time of devastation and tragedy in the Gulf Coast, due to Katrina, and now Rita, we are all being asked to contribute to the Red Cross, Salvation Army, Habitat for Humanity, and others. That is admirable, that we will do so. However, this giving results in a neglect of responsibility. The responsibility is that of the government [taxpayers] under the social contract. The more that is given by private parties, the less the government has to pay out. The government is not taking full responsibility.
Which government? Historicallly, it should be the taxpayers of the settlement, the place where each in need, was born. Where when you have to go there, they have to take you in. Now, in the 21st century, it should be the taxpayers of the federal government, due to modern means of travel and free access to each community of the nation.
Professor William Bennett apparently does not object to payments of federal taxpayer funds for these purposes; but he says all federal taxpayer assistance should be "funneled" through charities. If you need a meal, go to a faith based institution and beg. If you need a cancer operation for your baby, put a fruit jar out near the cash register of the neighborhood filling station.
As a part of the social contract (my new-born grandson is subject to the draft as cannon fodder for another Vietnam or Irag), the children, at least, ought to be able to rely on the federal government for an entitlement, yes, entitlement: two square meals, a doctor when sick, preventative medicine and dental care, a roof over the head, and first class education.
The Joy Junction mayordomo says he will not open his books, and that he is exempt from any government regulation imposing such a requirement. That is gall, for sure. I heard him say this on KKOB morning show when Larry Ahrens was still there. What does he do that the federal government should not take over, if worthy? Same with the American Red Cross; why should there be an "American Red Cross?" They do some good, but it is the responsibility of the federal taxpayers.
Is there a qualified needy person out there? Like a homeless, penniless quadriplegic? Yes. Who, if anyone, owes that person a life with dignity and the necessaries? Every taxpayer of the federal government of the United States; or else the social contract set forth in and by the Constition is a dead letter due to the greed of modern citizens.
Which government? Historicallly, it should be the taxpayers of the settlement, the place where each in need, was born. Where when you have to go there, they have to take you in. Now, in the 21st century, it should be the taxpayers of the federal government, due to modern means of travel and free access to each community of the nation.
Professor William Bennett apparently does not object to payments of federal taxpayer funds for these purposes; but he says all federal taxpayer assistance should be "funneled" through charities. If you need a meal, go to a faith based institution and beg. If you need a cancer operation for your baby, put a fruit jar out near the cash register of the neighborhood filling station.
As a part of the social contract (my new-born grandson is subject to the draft as cannon fodder for another Vietnam or Irag), the children, at least, ought to be able to rely on the federal government for an entitlement, yes, entitlement: two square meals, a doctor when sick, preventative medicine and dental care, a roof over the head, and first class education.
The Joy Junction mayordomo says he will not open his books, and that he is exempt from any government regulation imposing such a requirement. That is gall, for sure. I heard him say this on KKOB morning show when Larry Ahrens was still there. What does he do that the federal government should not take over, if worthy? Same with the American Red Cross; why should there be an "American Red Cross?" They do some good, but it is the responsibility of the federal taxpayers.
Is there a qualified needy person out there? Like a homeless, penniless quadriplegic? Yes. Who, if anyone, owes that person a life with dignity and the necessaries? Every taxpayer of the federal government of the United States; or else the social contract set forth in and by the Constition is a dead letter due to the greed of modern citizens.
Wednesday, September 21, 2005
PLEDGE OF ALLEGIANCE
The schools ask the children to stand up and pledge allegiance. Sort of a daily loyalty oath. We are not talking about naturalization, and that oath requirement. Children citizens are asked to stand and pledge.
The Supreme Court as early as 1943 ruled that it was unconstitutional, a violation of the First and Fourteenth Amendments, to require a civic pledge of those public school children whose religion forbad all pledges. Board of Education v. Barnette, 319 U.S. 624 (1943).
Thereafter, until 1952, the school authorities would ask the class to stand and pledge, and some would be allowed to remain sitting.
Then in 1952, Congress added the words, “under God,” to the pledge, somewhat modifying the word, "indivisible". Now the question became, is it enough that the child may decline to take the pledge, does that right to dissent by remaining sitting, or silent, avoid the idea that the government [compulsory school] is establishing a religion.
I was old enough to take the pledge when I was seven. I knew, from the knee of my Southern Baptist mother, that I was required to decide on a very big question. Did I want to say that I accept Jesus as a savior, and my savior, and that I believed that if I did so and walked down the aisle of the church in public ceremony and accepted baptism by immersion [none else would do] then I would have eternal life? Or did I want to fail to believe, accept, and be baptized, and risk that if I died before being saved, I would be sent to Hell, to eternal fire and damnation? The way the Baptist preachers described Hell in those days was graphic. I chose the right way.
I did as my mother wanted, and her desires, regardless of whether they were logical, or efficacious for me, were the desires of my mother and my compliance made her feel good and gave her comfort. So I am glad I was converted as a Baptist. Under that religion, no matter whether I sinned, or erred, afterward, I was converted, saved, and would land in heaven, and that has to be a great comfort to a mother.
How about simply returning to the old pledge, the one used during the Great Depression and during World War II. "One nation, indivisible, with liberty and justice for all." We do not have to say that we are rejecting religion, or taking the Lord out of the schools. We can say that we are returning to the basic civics values that the senior citizens were taught in grade school.
The Supreme Court as early as 1943 ruled that it was unconstitutional, a violation of the First and Fourteenth Amendments, to require a civic pledge of those public school children whose religion forbad all pledges. Board of Education v. Barnette, 319 U.S. 624 (1943).
Thereafter, until 1952, the school authorities would ask the class to stand and pledge, and some would be allowed to remain sitting.
Then in 1952, Congress added the words, “under God,” to the pledge, somewhat modifying the word, "indivisible". Now the question became, is it enough that the child may decline to take the pledge, does that right to dissent by remaining sitting, or silent, avoid the idea that the government [compulsory school] is establishing a religion.
I was old enough to take the pledge when I was seven. I knew, from the knee of my Southern Baptist mother, that I was required to decide on a very big question. Did I want to say that I accept Jesus as a savior, and my savior, and that I believed that if I did so and walked down the aisle of the church in public ceremony and accepted baptism by immersion [none else would do] then I would have eternal life? Or did I want to fail to believe, accept, and be baptized, and risk that if I died before being saved, I would be sent to Hell, to eternal fire and damnation? The way the Baptist preachers described Hell in those days was graphic. I chose the right way.
I did as my mother wanted, and her desires, regardless of whether they were logical, or efficacious for me, were the desires of my mother and my compliance made her feel good and gave her comfort. So I am glad I was converted as a Baptist. Under that religion, no matter whether I sinned, or erred, afterward, I was converted, saved, and would land in heaven, and that has to be a great comfort to a mother.
How about simply returning to the old pledge, the one used during the Great Depression and during World War II. "One nation, indivisible, with liberty and justice for all." We do not have to say that we are rejecting religion, or taking the Lord out of the schools. We can say that we are returning to the basic civics values that the senior citizens were taught in grade school.
Saturday, September 10, 2005
LESSON OF TRAGEDY AT NEW ORLEANS
This post is not about blame in connection with the tragedy at New Orleans. Let us look forward and work to prepare for future catastrophes. There are dams all over the country. There are nuclear plants, chemical plants, and other sites that could be turned into a catastrophe if modern technology were applied by terrorists.
Locally, we have Cochiti Dam. We also have something, which most of us are vaguely aware of, but do not know and understand, here at Sandia Base and Kirtland Air Force Base and in the Manzanos. We have an obviously vulnerable Big I.
Whether these devastations occur by act of God, by negligence of our own people, or by intentional acts of suicidal terrorists, we need to be prepared. The people are ready; they are compassionate, generous, and with some few exceptions are honest and willing to help each other. Do we have plans? Is there a plan for what to do if Cochiti Dam lets go? When we say plan, we must mean plan and arrangements to implement the plan. Group I does this; Group II does this; other groups are ready, in reserve, and able to act; and through an ever widening circle of groups, we contain and help.
The first question is, does government have a role in these matters, preventing catastrophes and helping when there are catastrophes? Most would say, of course, obviously, the question is ridiculous. But then why do we praise all of the individual contributions, from unaffected communities, to the American Red Cross, the Salvation Army, and Habitats for Humanity [is this not a token, feel-good, help organization, using and abusing the name of our best living president, Jimmy Carter]?
The next question is, should the people pitch in and contribute money or foodstuffs, or other supplies? Of course, among themselves, the victims. But why should people in New York and Alaska and New Mexico contribute money for the relief of deserving victims of a catastrophe in Louisiana? Is not this a matter that should be handled by the government? This is a government matter, or it is a matter to be handled by individuals, voluntarily, through private charitable work. We could leave this out of the government sector, but we do not recommend that.
We, the people, want to help at these times. That is good, but our help should be to fill in the nooks and crannies. The government [taxpayers, the parties to the social contract] should carry the burden in general.
Next question. If we agree that the government should take this responsibility, which government? City, state, or federal? Historically, the settlement (local village where you were born) had the responsibility. That is the origin of the rule that when you have to go there, they have to take you in. Later, alms houses were the responsibility of the counties. Then the states; and now, why not the United States? The paupers can travel from state to state, and when the pauper [for example, a quadriplegic who is broke] ends up in Santa Fe, who should pony up? The United States is the right answer.
We believe that it is the government, the federal government, with the resources of the federal taxpayers, that should be prepared to prevent, if possible, and to help, rescue, alleviate and work to minimize the effects of the catastrophe.
Locally, we have Cochiti Dam. We also have something, which most of us are vaguely aware of, but do not know and understand, here at Sandia Base and Kirtland Air Force Base and in the Manzanos. We have an obviously vulnerable Big I.
Whether these devastations occur by act of God, by negligence of our own people, or by intentional acts of suicidal terrorists, we need to be prepared. The people are ready; they are compassionate, generous, and with some few exceptions are honest and willing to help each other. Do we have plans? Is there a plan for what to do if Cochiti Dam lets go? When we say plan, we must mean plan and arrangements to implement the plan. Group I does this; Group II does this; other groups are ready, in reserve, and able to act; and through an ever widening circle of groups, we contain and help.
The first question is, does government have a role in these matters, preventing catastrophes and helping when there are catastrophes? Most would say, of course, obviously, the question is ridiculous. But then why do we praise all of the individual contributions, from unaffected communities, to the American Red Cross, the Salvation Army, and Habitats for Humanity [is this not a token, feel-good, help organization, using and abusing the name of our best living president, Jimmy Carter]?
The next question is, should the people pitch in and contribute money or foodstuffs, or other supplies? Of course, among themselves, the victims. But why should people in New York and Alaska and New Mexico contribute money for the relief of deserving victims of a catastrophe in Louisiana? Is not this a matter that should be handled by the government? This is a government matter, or it is a matter to be handled by individuals, voluntarily, through private charitable work. We could leave this out of the government sector, but we do not recommend that.
We, the people, want to help at these times. That is good, but our help should be to fill in the nooks and crannies. The government [taxpayers, the parties to the social contract] should carry the burden in general.
Next question. If we agree that the government should take this responsibility, which government? City, state, or federal? Historically, the settlement (local village where you were born) had the responsibility. That is the origin of the rule that when you have to go there, they have to take you in. Later, alms houses were the responsibility of the counties. Then the states; and now, why not the United States? The paupers can travel from state to state, and when the pauper [for example, a quadriplegic who is broke] ends up in Santa Fe, who should pony up? The United States is the right answer.
We believe that it is the government, the federal government, with the resources of the federal taxpayers, that should be prepared to prevent, if possible, and to help, rescue, alleviate and work to minimize the effects of the catastrophe.
Saturday, August 27, 2005
GOVERNOR'S BLOWS AT CRIME MAKE US UNEASY
In the last few days, Governor Bill Richardson has struck blows at crime on the Mexico border and here in Albuquerque. Some of these blows make us uneasy.
Take the proposal to raze the small town in Northern Mexico, across the border from Columbus. Our Governor, the governor of a province of the United States, has suggested that President Vicente Fox of Mexico bulldoze the little town, because the town is a gathering place for Mexicans who are planning to cross into New Mexico illegally, or for bandits who use the town to gather before coming across to steal or transport illegal drugs to supply the habits of willing buyers North of the border.
This is reminiscent of the Albuquerque Police Department initiative of cutting down trees near a Northeast heights apartment complex. The police thought drug pushers would stand behind the trees and make illegal drug sales; and that cutting the trees down would help. Razing the Mexican town is also like the Albuquerque initiative of closing the business of poor boy bars on East Central, on the basis that the police get a lot of calls for assistance at such bars. Why not provide the police protection and the property need not be destroyed, the bars and the trees could remain.
This is also reminiscent of the APD practice of taking workable, useable firearms and blowing them up or melting them down. Whose idea is that? Someone worked to produce those weapons. Why destroy them, unless we are to say that all firearms are to be considered contraband, and should be destroyed because there is no lawful manner in which they may be possessed.
The other blow against crime that leaves us uneasy, is the action of the Governor in sending his crime czar, Robert Schwartz, to Judge James Blackmer's court for a hearing on the Judge's sua sponte motion for reduction of a felony sentence the Judge had imposed in a vehicular homicide case. Mr. Schwartz carried a letter from the Governor, and read it to the Judge, according to a report in the Albuquerque Journal.
Is the Governor going to write letters to Judges now, advising the Judges of the Governor's opinions as to the appropriate sentence in criminal cases? The Mayor is reported to have done the same thing. Is he going to make this a practice? In order to be qualified to make a recommendation on a felony sentence, one has to investigate the case. Do the Governor and Mayor have this kind of time?
Are we wrong to feel some unease over these developments in the war on crime? The Governor could put a stop to the illegal immigration to New Mexico (not through, but to). Tell the State Police to investigate employers who are suspected of violating federal law by hiring illegals. The illegals come here to work, to try to improve their lives and the lives of their families below the border.
Dry up those jobs in New Mexico by assisting in the federal prosecution. It seems like grandstanding to declare an emergency at the border, criticize the United States government, and call for the President of another country to bulldoze one of his hamlets.
Yes, some of us are uneasy. What is next?
Take the proposal to raze the small town in Northern Mexico, across the border from Columbus. Our Governor, the governor of a province of the United States, has suggested that President Vicente Fox of Mexico bulldoze the little town, because the town is a gathering place for Mexicans who are planning to cross into New Mexico illegally, or for bandits who use the town to gather before coming across to steal or transport illegal drugs to supply the habits of willing buyers North of the border.
This is reminiscent of the Albuquerque Police Department initiative of cutting down trees near a Northeast heights apartment complex. The police thought drug pushers would stand behind the trees and make illegal drug sales; and that cutting the trees down would help. Razing the Mexican town is also like the Albuquerque initiative of closing the business of poor boy bars on East Central, on the basis that the police get a lot of calls for assistance at such bars. Why not provide the police protection and the property need not be destroyed, the bars and the trees could remain.
This is also reminiscent of the APD practice of taking workable, useable firearms and blowing them up or melting them down. Whose idea is that? Someone worked to produce those weapons. Why destroy them, unless we are to say that all firearms are to be considered contraband, and should be destroyed because there is no lawful manner in which they may be possessed.
The other blow against crime that leaves us uneasy, is the action of the Governor in sending his crime czar, Robert Schwartz, to Judge James Blackmer's court for a hearing on the Judge's sua sponte motion for reduction of a felony sentence the Judge had imposed in a vehicular homicide case. Mr. Schwartz carried a letter from the Governor, and read it to the Judge, according to a report in the Albuquerque Journal.
Is the Governor going to write letters to Judges now, advising the Judges of the Governor's opinions as to the appropriate sentence in criminal cases? The Mayor is reported to have done the same thing. Is he going to make this a practice? In order to be qualified to make a recommendation on a felony sentence, one has to investigate the case. Do the Governor and Mayor have this kind of time?
Are we wrong to feel some unease over these developments in the war on crime? The Governor could put a stop to the illegal immigration to New Mexico (not through, but to). Tell the State Police to investigate employers who are suspected of violating federal law by hiring illegals. The illegals come here to work, to try to improve their lives and the lives of their families below the border.
Dry up those jobs in New Mexico by assisting in the federal prosecution. It seems like grandstanding to declare an emergency at the border, criticize the United States government, and call for the President of another country to bulldoze one of his hamlets.
Yes, some of us are uneasy. What is next?
Wednesday, August 24, 2005
FIFTH AMENDMENT GRAND JURY PROVISION NOT APPLICABLE IN HYDE CASE
In the case of John Hyde, suspected of five unlawful homicides, including the killing of two police officers (formal charges of murder have been filed in the deaths of the officers), the District Attorney has announced that the matter will be presented to a grand jury in the next few days. Under the rules of criminal procedure set by our Supreme Court, one who is formally accused, and has made his initial appearance (referred to erroneously, but for lack of a better term, as an “arraignment”) must be released from custody after ten days, unless he has a preliminary hearing, or is indicted by a grand jury, and is held for trial Court (District Court) proceedings.
The Fifth Amendment provision for grand jury is not applicable here, as the Fifth Amendment, in this regard, applies only to federal prosecutions. The Fifth Amendment states, in part: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, . . . “ Other provisions of the Fifth Amendment, including “. . . nor shall he be compelled in any criminal case to be a witness against himself,. . . “ are applicable in State prosecutions.
The Fourteenth Amendment due process clause lifts some provisions of the Bill of Rights and makes them applicable to the States, as restrictions on State action. This lifting is referred to as “incorporation” of the provision of the Bill of Rights into the Due Process clause of the Fourteenth Amendment, which amendment is applicable to the States (post Civil War). Other provisions of the Bill of Rights, including the right to be free from prosecution for felony except upon action of a grand jury, are not lifted out of the Bill of Rights and applied to State prosecutions. So New Mexico is left on its own, as to how it handles the matter of screening cases for prosecution, to prevent overreaching by the prosecuting attorney.
New Mexico required grand jury action from statehood until 1925. In 1925, borrowing from Oklahoma, New Mexico amended its constitution to permit prosecution for capital and other felonies either by grand jury action (presentment by grand jury, or indictment by grand jury) or after a preliminary examination, or hearing, before a magistrate. The test for prosecution is the same before a grand jury, or before a magistrate: probable cause that an offense was committed, and probable cause that the accused committed the offense.
In Bernalillo County, most felony cases are presented to a grand jury. The prosecutor has stated that she will present the Hyde case to a grand jury. It may be that all of the homicides will be covered by one proposed indictment (charging paper), or there may be separate indictments for separate incidents, for example, a separate indictment for the death of the two officers.
The grand jury will return a “true bill,” or a “no-bill (bill ignoramus)”. If a true bill is returned, the charging paper (indictment) is filed in District Court, and the accused is taken before the District Judge for further proceedings. In the usual case, these will ultimately include an “arraignment,” which is a proceeding in which the accused is called upon to plead guilty or not guilty to the charges before a Judge who has the power to sentence on a guilty plea. All plea bargains are concluded at an arraignment.
In a capital case, the accused may be held without bail. That rule comports with the State and federal constitutions, though they prohibit “excessive bail.” No bail is not excessive bail, in a capital case, in which the “proof is evident or the presumption great.”.
The Fifth Amendment provision for grand jury is not applicable here, as the Fifth Amendment, in this regard, applies only to federal prosecutions. The Fifth Amendment states, in part: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, . . . “ Other provisions of the Fifth Amendment, including “. . . nor shall he be compelled in any criminal case to be a witness against himself,. . . “ are applicable in State prosecutions.
The Fourteenth Amendment due process clause lifts some provisions of the Bill of Rights and makes them applicable to the States, as restrictions on State action. This lifting is referred to as “incorporation” of the provision of the Bill of Rights into the Due Process clause of the Fourteenth Amendment, which amendment is applicable to the States (post Civil War). Other provisions of the Bill of Rights, including the right to be free from prosecution for felony except upon action of a grand jury, are not lifted out of the Bill of Rights and applied to State prosecutions. So New Mexico is left on its own, as to how it handles the matter of screening cases for prosecution, to prevent overreaching by the prosecuting attorney.
New Mexico required grand jury action from statehood until 1925. In 1925, borrowing from Oklahoma, New Mexico amended its constitution to permit prosecution for capital and other felonies either by grand jury action (presentment by grand jury, or indictment by grand jury) or after a preliminary examination, or hearing, before a magistrate. The test for prosecution is the same before a grand jury, or before a magistrate: probable cause that an offense was committed, and probable cause that the accused committed the offense.
In Bernalillo County, most felony cases are presented to a grand jury. The prosecutor has stated that she will present the Hyde case to a grand jury. It may be that all of the homicides will be covered by one proposed indictment (charging paper), or there may be separate indictments for separate incidents, for example, a separate indictment for the death of the two officers.
The grand jury will return a “true bill,” or a “no-bill (bill ignoramus)”. If a true bill is returned, the charging paper (indictment) is filed in District Court, and the accused is taken before the District Judge for further proceedings. In the usual case, these will ultimately include an “arraignment,” which is a proceeding in which the accused is called upon to plead guilty or not guilty to the charges before a Judge who has the power to sentence on a guilty plea. All plea bargains are concluded at an arraignment.
In a capital case, the accused may be held without bail. That rule comports with the State and federal constitutions, though they prohibit “excessive bail.” No bail is not excessive bail, in a capital case, in which the “proof is evident or the presumption great.”.
Saturday, August 20, 2005
DOUBLE JEOPARDY DOES NOT PROTECT OFFENDER FROM FURTHER PROSECUTION IN SOME CASES
The New Mexico Supreme Court has reviewed its position on one aspect of double jeopardy. The Court had previously ruled that double jeopardy did not necessarily bar a prosecution in District Court for a felony, after the accused had pleaded guilty to an included petty misdemeanor in a Court of limited jurisdiction (municipal, metropolitan, magistrate). Our Court looked at the issue again, and split three to two, but upheld the previous rulings. Justice Patricio M. Serna wrote the opinion, and Chief Justice Richard C. Bosson and Justice Petra Jimenez Maes concurred. The Court’s rule is referred to as the “jurisdictional exception.” The case is State v. Rodriguez, 2005-NMSC-019 (June 28, 2005). Two Justices disagreed on this point.
A different rule, according to Justice Serna, would “ . . . allow defendants to abuse the multi-level judicial system which exists in New Mexico and in other jurisdictions.” The Court pointed out that under a different rule, a defendant could plead guilty to all misdemeanor charges arising from a criminal act in magistrate court and never be in jeopardy of a felony prosecution involving similar evidence in the district court.
In Justice Serna’s words, “[R]eason and logic do not support a rule where one guilty of a crime of homicide by vehicle may escape a possible sentence of three years imprisonment by the expedient of pleading guilty to a charge of DWI or reckless driving where the penalty may be as low as a $25.00 fine and five days in jail.” This Rodriguez case did not involve DWI, nor reckless driving, but the words of the Justice apply too often in New Mexico.
Recently a young man pleaded guilty in Northern New Mexico to traffic offenses, including being on the wrong side of the highway. He was fined $125.00, no jail time. His vehicle, across the line, hit a motorcycle and killed one person and severely injured another. Steve Fox wrote an excellent article about it in a column in the Albuquerque Tribune a few days ago. He states that there were witnesses who claimed the offender was racing with another vehicle at the time of the accident.
When two drivers race on the public highway, and one vehicle is involved in an accident which results in death to another person, both of the drivers of the racing vehicles may be guilty of homicide by vehicle. It is not necessary for both racing vehicles to hit the victim vehicle. Here was a possible case of vehicular homicide against two drivers, though they were juveniles, and the case was handled as a minor traffic offense.
Perhaps this recent homicide case could still be prosecuted as a felony vehicular homicide case (in Children’s Court). This Rodriguez case, with Justice Serna’s opinion, would support such a prosecution, on the basis that the plea to the traffic offenses occurred in a Court of limited jurisdiction, a Court which had no jurisdiction to accept a plea of guilty of the greater offense (vehicular homicide).
The State’s argument would be that because the Judge had no jurisdiction to try the felony charge, nor to accept a plea of guilty to the felony charge, the acceptance of a plea of guilty, and the punishment, of the lesser-included offense of [Steve Fox reports that it was reckless driving], would not bar prosecution of the greater offense, felony vehicular homicide.
Admittedly, this is technical, and it may be that Justice Serna’s ruling would not apply, because the involvement of the District Attorney in this plea in this case was such that he was not surprised at the proceedings. The District Attorney did not simply discover that the offending driver had rushed in and pleaded guilty to a lesser offense in a limited-jurisdiction Court, to avoid felony prosecution. The District Attorney allowed that to happen, after making a decision not to prosecute on the felony charges.
Disclaimer. I am not looking for nor accepting such business. I assume that the family of the deceased motorcyclist, and the crippled victim, have counsel for civil law purposes. They may want to seek a further opinion from the Attorney General on the criminal charges, in view of Justice Serna’s June 28, 2005 opinion. It may be that nothing further can be done; and it may be that the District Attorney (the case was transferred to the District Attorney from Clovis) was right in his assessment that the case was a mere careless driving, at the worst, and thus clearly was not vehicular homicide, which requires reckless driving, or racing on the highway.
A different rule, according to Justice Serna, would “ . . . allow defendants to abuse the multi-level judicial system which exists in New Mexico and in other jurisdictions.” The Court pointed out that under a different rule, a defendant could plead guilty to all misdemeanor charges arising from a criminal act in magistrate court and never be in jeopardy of a felony prosecution involving similar evidence in the district court.
In Justice Serna’s words, “[R]eason and logic do not support a rule where one guilty of a crime of homicide by vehicle may escape a possible sentence of three years imprisonment by the expedient of pleading guilty to a charge of DWI or reckless driving where the penalty may be as low as a $25.00 fine and five days in jail.” This Rodriguez case did not involve DWI, nor reckless driving, but the words of the Justice apply too often in New Mexico.
Recently a young man pleaded guilty in Northern New Mexico to traffic offenses, including being on the wrong side of the highway. He was fined $125.00, no jail time. His vehicle, across the line, hit a motorcycle and killed one person and severely injured another. Steve Fox wrote an excellent article about it in a column in the Albuquerque Tribune a few days ago. He states that there were witnesses who claimed the offender was racing with another vehicle at the time of the accident.
When two drivers race on the public highway, and one vehicle is involved in an accident which results in death to another person, both of the drivers of the racing vehicles may be guilty of homicide by vehicle. It is not necessary for both racing vehicles to hit the victim vehicle. Here was a possible case of vehicular homicide against two drivers, though they were juveniles, and the case was handled as a minor traffic offense.
Perhaps this recent homicide case could still be prosecuted as a felony vehicular homicide case (in Children’s Court). This Rodriguez case, with Justice Serna’s opinion, would support such a prosecution, on the basis that the plea to the traffic offenses occurred in a Court of limited jurisdiction, a Court which had no jurisdiction to accept a plea of guilty of the greater offense (vehicular homicide).
The State’s argument would be that because the Judge had no jurisdiction to try the felony charge, nor to accept a plea of guilty to the felony charge, the acceptance of a plea of guilty, and the punishment, of the lesser-included offense of [Steve Fox reports that it was reckless driving], would not bar prosecution of the greater offense, felony vehicular homicide.
Admittedly, this is technical, and it may be that Justice Serna’s ruling would not apply, because the involvement of the District Attorney in this plea in this case was such that he was not surprised at the proceedings. The District Attorney did not simply discover that the offending driver had rushed in and pleaded guilty to a lesser offense in a limited-jurisdiction Court, to avoid felony prosecution. The District Attorney allowed that to happen, after making a decision not to prosecute on the felony charges.
Disclaimer. I am not looking for nor accepting such business. I assume that the family of the deceased motorcyclist, and the crippled victim, have counsel for civil law purposes. They may want to seek a further opinion from the Attorney General on the criminal charges, in view of Justice Serna’s June 28, 2005 opinion. It may be that nothing further can be done; and it may be that the District Attorney (the case was transferred to the District Attorney from Clovis) was right in his assessment that the case was a mere careless driving, at the worst, and thus clearly was not vehicular homicide, which requires reckless driving, or racing on the highway.
Wednesday, August 17, 2005
GOVERNOR PROPOSES ONE STRIKE POLICY IN SOME SEX CASES
Governor Bill Richardson has proposed life without parole as a mandatory first offense penalty in certain sex cases. Brutal cases, cases in which the victim is elderly, and cases in which the victim is a child. Criminal sexual penetration equals one strike, you're out. Mandatory. Many have commended the Governor for getting tough.
This proposal sounds tough, but it will require a lot of work to draft such legislation so that it is workable. We do not want this to be simply a feel good, flash in the pan gesture.
The fatal flaw we see is the mandatory nature of the penalty.
When we make a penalty mandatory, we take the discretion away from the Judge and give that discretion to the District Attorney (and in some instances, the law enforcement officers).
If you say that you will require the District Attorney to charge and prosecute cases as first-strike cases, you are being unrealistic. The District Attorney will exercise discretion in charging and prosecuting, and will use the first-strike law for some cases but not all that literally fall within the definition of a first-strike case.
The District Attorney would be derelict and untrue to his or her oath, if he or she used such a straight-jacket, knee jerk approach to the subject; that is, no discretion. Thus, it is a case of discretion is going to be exercised. Do we want a Judge held responsible, or leave it to the District Attorney?
If you take the definition of the proposed first-strike offense, and it included criminal sexual penetration of a female toddler, and there is no doubt that the accused did it, do we disregard all of the other circumstances? Is every such offense deserving of life without parole? Does it matter whether the offender is 18 or 81? Does it matter whether the offender is a grade school dropout, a high school dropout, a PhD, drunk or sober?
Mandatory sentences are by definition arbitrary. That is not necessarily bad, but in some cases it can lead to a gross miscarriage of justice. Consider how long the mandatory sentences for DWI and use of firearm lasted. If they are not a dead letter, they have been plea bargained away or disregarded in many cases, to avoid miscarriages of justice in the eyes of the prosecutor or Judge.
Professor Hayakawa said "Cow one is not cow two." When you define a crime and make the punishment mandatory, you are saying that cows two, three and four, etc., are the same as cow one. Do we not agree that these first-strike cases will be different in some important respects? Even so, you may say, all such offenders deserve life without parole.
We may be able to agree on this: every person who is found to be a pedophile and unlikely to reform should be in prison for life or at least under close supervision for life. The Judge should have the power and be monitored by the voters.
This proposal sounds tough, but it will require a lot of work to draft such legislation so that it is workable. We do not want this to be simply a feel good, flash in the pan gesture.
The fatal flaw we see is the mandatory nature of the penalty.
When we make a penalty mandatory, we take the discretion away from the Judge and give that discretion to the District Attorney (and in some instances, the law enforcement officers).
If you say that you will require the District Attorney to charge and prosecute cases as first-strike cases, you are being unrealistic. The District Attorney will exercise discretion in charging and prosecuting, and will use the first-strike law for some cases but not all that literally fall within the definition of a first-strike case.
The District Attorney would be derelict and untrue to his or her oath, if he or she used such a straight-jacket, knee jerk approach to the subject; that is, no discretion. Thus, it is a case of discretion is going to be exercised. Do we want a Judge held responsible, or leave it to the District Attorney?
If you take the definition of the proposed first-strike offense, and it included criminal sexual penetration of a female toddler, and there is no doubt that the accused did it, do we disregard all of the other circumstances? Is every such offense deserving of life without parole? Does it matter whether the offender is 18 or 81? Does it matter whether the offender is a grade school dropout, a high school dropout, a PhD, drunk or sober?
Mandatory sentences are by definition arbitrary. That is not necessarily bad, but in some cases it can lead to a gross miscarriage of justice. Consider how long the mandatory sentences for DWI and use of firearm lasted. If they are not a dead letter, they have been plea bargained away or disregarded in many cases, to avoid miscarriages of justice in the eyes of the prosecutor or Judge.
Professor Hayakawa said "Cow one is not cow two." When you define a crime and make the punishment mandatory, you are saying that cows two, three and four, etc., are the same as cow one. Do we not agree that these first-strike cases will be different in some important respects? Even so, you may say, all such offenders deserve life without parole.
We may be able to agree on this: every person who is found to be a pedophile and unlikely to reform should be in prison for life or at least under close supervision for life. The Judge should have the power and be monitored by the voters.
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