We have just reread a post by Joel Jacobson, Esq. on the subject of unpublished appellate court opinions in federal courts. See his weblog, "www.judgingcrimes.com".
His post, as usual, is well-written and informative.
The justification for "unpublished" opinions is that nothing new or novel is involved in the appeal; no need for the Court to write out its reasons for ruling, as the correct ruling is obvious, a slam dunk. There are cases in which the rule is abused, and opinions are declared "not to be published, nor cited as precedent," for no good reason. Some cases (appellate decisions and opinions) are embarrassing and need to be swept under the rug.
It happens in the appellate court in New Mexico, too. Good examples are cases in which the criminal (including murderers) are freed because the District Attorney makes a clerical mistake, fails to apply for an extension of the "six-month rule." Or the Clerk makes a clerical error in the Court records If the public knew how many criminals were freed on technicalities, they would cry, "Outrage!"
(The six-month rule, which is not required by the federal or State Constitutions, is a rule adopted by the Supreme Court of New Mexico, and may be repealed by a majority of that Court).
The Tenth Circuit Court of Appeals has ruled, in an unpublished opinion, that a citizen could not sue a municipality for alleged destruction of audio-taped evidence. Was the case important? Yes. Was it a case of first impression? Yes. Did the Court explain its ruling, so others could be guided by it? No.
The New Mexico Court of Appeals (with tacit approval of the Supreme Court of New Mexico, ruled in an unpublished opinion that an armed robber should go free under the six-month rule. The Clerk of the District Court had made a note that the accused was "arrested" when he was booked into jail. The Court of Appeals ruled that the "arrest" occurred at the hospital 90 days earlier (accused had broken his leg while escaping after the robbery). The defense attorney had asked for a continuance, and specifically assured the trial Court that there was time for the postponement without violation of the six-month rule.
On appeal from the ruling of the trial Court that the six-month rule was never intended to require a release of an accused under such circumstances, the Court of Appeals issued an opinion releasing the accused free of all charges; and the appeals Court specified that the opinion was not to be published nor cited as precedent. The result was that the news media also did not discuss the case; so the Supreme Court was not embarrassed by the six-month rule.
The rule that allows "unpublished" opinions results in unwarranted secrecy. It is ill-advised, and contrary to good government. The rule should be abolished by the Court which adopted it, the Supreme Court of New Mexico. The impetus could be brought by the legislature; but it has no power to adopt any legislation which would be repugnant to the New Mexico Supreme Court's rules. In this respect the New Mexico Supreme Court has more power in such matters than the Supreme Court of the United States(which can be overruled by the Congress in regard to rules).
Thursday, April 13, 2006
Tuesday, April 04, 2006
ASTORGA ARRESTED IN MEXICO; EXPELLED TO USA
The news this week is that Michael Astorga was arrested in Mexico. He is suspected of murder of a Deputy Sheriff officer near Albuquerque. The news reminded us of the case of Jose Franco Padilla. State v. Padilla, 66 New Mexico 289 (1958).
Padilla was wanted for rape murder of a female child nine years old. The abduction and killing happened near Roswell, New Mexico. Padilla fled to Mexico, and was arrested by Mexican authorities 600 miles south of the border. The Mexican authorities transported Padilla by automobile to Juarez and turned him over to the Roswell authorities at the border at El Paso, Texas; from there he was brought to Roswell. He confessed to abduction, child rape and murder of the little girl, and claimed he was influenced by marijuana and alcohol.
During his confession, Padilla said he traveled 600 miles without urinating, even though the Mexican authorities invited him several times to get out of the car and walk out to relieve himself. He said he feared that he would be shot for attempted escape.
This Astorga case, in which the accused is facing capital murder charges of murder of a police officer [the officer stopped a vehicle and was killed by gunshot], brought some strong opinions on the afternoon KKOB radio show (Jim Villaneucci). Many were concerned that Mexico would not agree to th extradition of Astorga, unless the United States guaranteed that the death penalty would not be sought.
Some suggestions the radio listeners put forth: 1) when we apply for extradition, we should lie about our intentions, that is, conceal the possibility that we will seek a death penalty -- several tricky means worthy of mouthpieces were suggested; 2) let us send a hit person to kill him; and 3) let us bring him back on a guarantee of no death penalty, and let the “prison justice” take care of the problem [let him be killed in prison by a verdict of the other prisoners, his peers].
Obvious objections to those three proposals are that the first is a proposal that the State of New Mexico commit a fraud; the second is that the State of New Mexico should stoop to murder in its war on crime; and the third is that while Astorga may be convicted of killing a gang memember in November, he will also be convicted of killing a law enforcement officer. What are the rules of the “prison justice” system? Will Astorga escape punishment for the gang killing because he is a member of another gang? Is his mistake in killing a gang member offset by the fact that he killed a deputy?
Why all this turmoil? Is it because we have seen that there have been only two people executed in the last 45 years, and we are fed up with death row delays, reprieves, appeals, technicalities, and commutations? Governor Toney Anaya said during his race for Governor that he was opposed to the death penalty, and that no convict would die on his watch. What he did not say was that he had no intention to commute the sentences of all five persons on death row. Therefore, a commutation of death penalty sentences did not constitute a breach of a pre-election pledge. As he left office, Governor Anaya commuted to life imprisonment, the death sentences of all five death-row prisoners. At that point many of us mentally threw up our hands.
Here is another question. If the death penalty does not deter, why have a law that provides for the death penalty for the murder of a police officer and not Joe Sixpack?
A final question. If the accused is not tried within six months, will the case be dismissed under the “six month rule” adopted by the Supreme Court of New Mexico [as a legislative matter]? Will a clerical mistake in the office of the District Attorney or the office of the Clerk of the District Court, which does no real harm to anyone, result in release [mandated by the Supreme Court under its legislative powers, without regard to the discretion of the trial Judge) of the accused, free of all charges? Unfortunately, that is our “six month rule.”
The rule is not required by the Constitution of the United States; nor by the Constitution of New Mexico; nor by any rule or law except the rule adopted and continued by the majority of the persons now serving on the Supreme Court. The federal rule requires a trial within 70 days; but leaves it to the Judge as to the sanction for a violation. The New Mexico Supreme Court dictates in advance that a clerical error shall set a murderer free, regardless of the circumstances, and regardless of what the trial Judge may think. Why do we tolerate this?
Padilla was wanted for rape murder of a female child nine years old. The abduction and killing happened near Roswell, New Mexico. Padilla fled to Mexico, and was arrested by Mexican authorities 600 miles south of the border. The Mexican authorities transported Padilla by automobile to Juarez and turned him over to the Roswell authorities at the border at El Paso, Texas; from there he was brought to Roswell. He confessed to abduction, child rape and murder of the little girl, and claimed he was influenced by marijuana and alcohol.
During his confession, Padilla said he traveled 600 miles without urinating, even though the Mexican authorities invited him several times to get out of the car and walk out to relieve himself. He said he feared that he would be shot for attempted escape.
This Astorga case, in which the accused is facing capital murder charges of murder of a police officer [the officer stopped a vehicle and was killed by gunshot], brought some strong opinions on the afternoon KKOB radio show (Jim Villaneucci). Many were concerned that Mexico would not agree to th extradition of Astorga, unless the United States guaranteed that the death penalty would not be sought.
Some suggestions the radio listeners put forth: 1) when we apply for extradition, we should lie about our intentions, that is, conceal the possibility that we will seek a death penalty -- several tricky means worthy of mouthpieces were suggested; 2) let us send a hit person to kill him; and 3) let us bring him back on a guarantee of no death penalty, and let the “prison justice” take care of the problem [let him be killed in prison by a verdict of the other prisoners, his peers].
Obvious objections to those three proposals are that the first is a proposal that the State of New Mexico commit a fraud; the second is that the State of New Mexico should stoop to murder in its war on crime; and the third is that while Astorga may be convicted of killing a gang memember in November, he will also be convicted of killing a law enforcement officer. What are the rules of the “prison justice” system? Will Astorga escape punishment for the gang killing because he is a member of another gang? Is his mistake in killing a gang member offset by the fact that he killed a deputy?
Why all this turmoil? Is it because we have seen that there have been only two people executed in the last 45 years, and we are fed up with death row delays, reprieves, appeals, technicalities, and commutations? Governor Toney Anaya said during his race for Governor that he was opposed to the death penalty, and that no convict would die on his watch. What he did not say was that he had no intention to commute the sentences of all five persons on death row. Therefore, a commutation of death penalty sentences did not constitute a breach of a pre-election pledge. As he left office, Governor Anaya commuted to life imprisonment, the death sentences of all five death-row prisoners. At that point many of us mentally threw up our hands.
Here is another question. If the death penalty does not deter, why have a law that provides for the death penalty for the murder of a police officer and not Joe Sixpack?
A final question. If the accused is not tried within six months, will the case be dismissed under the “six month rule” adopted by the Supreme Court of New Mexico [as a legislative matter]? Will a clerical mistake in the office of the District Attorney or the office of the Clerk of the District Court, which does no real harm to anyone, result in release [mandated by the Supreme Court under its legislative powers, without regard to the discretion of the trial Judge) of the accused, free of all charges? Unfortunately, that is our “six month rule.”
The rule is not required by the Constitution of the United States; nor by the Constitution of New Mexico; nor by any rule or law except the rule adopted and continued by the majority of the persons now serving on the Supreme Court. The federal rule requires a trial within 70 days; but leaves it to the Judge as to the sanction for a violation. The New Mexico Supreme Court dictates in advance that a clerical error shall set a murderer free, regardless of the circumstances, and regardless of what the trial Judge may think. Why do we tolerate this?
Sunday, March 19, 2006
TOO LITTLE GOVERNMENT REGULATION
In a few instances we can prove that the government engages in too little regulation. Take truth in advertising. Why do we even have such a phrase, such a concept? It is because a small minority of business persons, greedy and crooked, like to cheat the ordinary consumer.
Fortunately, the words “free” and “sale” and “savings” are now meaningless. They have been used by crooks so long that people no longer trust them, so they have to a great extent become harmless.
How many clever phrases have been used by the car dealers? Are they inspired, or instigated, by the manufacturers, or are the makers merely complicit in the schemes? Take the “factory invoice” and “factory rebate” and the “manufacturer’s suggested retail price.” What do those terms mean? Is it a case of the factory and local dealer making a pretense of giving a good deal, better than the usual market price? What else? How is this different from marking up the price immediately before a “sale?”
When a merchant has a product to sell, she can sell for cash, or on credit. If she sells on credit, she has a risk, and needs interest on her money. If she says “0%” interest, she is jacking up the price. How can it be otherwise? Is this honesty in business?
On KKOB, on the Rush Limbaugh program, we hear repeatedly an advertisement for wood flooring. Bellowood, or Belleauwood, or a sound-a-like. The pitch is that the company offers a “50 year warranty.” Somewhere else in the pitch (smaller print) we hear that the warranty is for “50 years so long as you live there.” With the fine print, it is a warranty for 50 years or as long as the buyer lives in the room that is floored, whichever is sooner. People move residences every four or five years on average. Go figure.
Where are the regulators? The enforcers? No doubt the honest businesspersons would be happy to be rid of the unfair competition of the crooks.
Think of it this way. You work and pile up credits (US dollars). When the merchant sells you a service or product by use of fraud, she is stealing your work. Instead of "Buyer beware!" the law should speak out, "Crooked business persons beware!"
Fortunately, the words “free” and “sale” and “savings” are now meaningless. They have been used by crooks so long that people no longer trust them, so they have to a great extent become harmless.
How many clever phrases have been used by the car dealers? Are they inspired, or instigated, by the manufacturers, or are the makers merely complicit in the schemes? Take the “factory invoice” and “factory rebate” and the “manufacturer’s suggested retail price.” What do those terms mean? Is it a case of the factory and local dealer making a pretense of giving a good deal, better than the usual market price? What else? How is this different from marking up the price immediately before a “sale?”
When a merchant has a product to sell, she can sell for cash, or on credit. If she sells on credit, she has a risk, and needs interest on her money. If she says “0%” interest, she is jacking up the price. How can it be otherwise? Is this honesty in business?
On KKOB, on the Rush Limbaugh program, we hear repeatedly an advertisement for wood flooring. Bellowood, or Belleauwood, or a sound-a-like. The pitch is that the company offers a “50 year warranty.” Somewhere else in the pitch (smaller print) we hear that the warranty is for “50 years so long as you live there.” With the fine print, it is a warranty for 50 years or as long as the buyer lives in the room that is floored, whichever is sooner. People move residences every four or five years on average. Go figure.
Where are the regulators? The enforcers? No doubt the honest businesspersons would be happy to be rid of the unfair competition of the crooks.
Think of it this way. You work and pile up credits (US dollars). When the merchant sells you a service or product by use of fraud, she is stealing your work. Instead of "Buyer beware!" the law should speak out, "Crooked business persons beware!"
Thursday, March 09, 2006
DENTAL CARE FOR THE KIDS
In the Albuquerque Journal of March 9, 2006, is a sad story by Leann Holt, Staff Writer. It has to do with dental care in New Mexico for children. She writes about decay, just the simple problem of tooth decay. However, she points out that the disease is serious, as it causes missed school days and can lead to mal-nutrition, school failure and low self-esteem.
Statistics from the story: 40% of New Mexico’s children suffer from tooth decay; only 6% of Medicaid-eligible children in New Mexico get dental care (third lowest in the nation); and only one-third of New Mexico’s dentists are willing to take patients based on Medicaid payments. One school nurse is quoted as saying that it is not unusual to see “crater-sized cavities” and children in pain, with no dentist to send them to.
The story features Small Smiles Dentistry, a clinic which is part of a chain, (one on the West Side, and now one at Central and San Pedro). One dentist there said it is not unusual to see children who have cavities in 18 out of 20 teeth.
Medicaid pays only about 66% of what other insurance companies pay. Red tape may be a problem, and undoubtedly is, but there is red tape in dealing with HMO’s and insurance claims people too. So is it money?
Where are out priorities? We pass laws to impose taxes to provide up front money for promoters, tax breaks (subsidies) for billion dollar corporations with highly paid officers and other executives, and for landscaping of highways and maintenance of golf courses, and so on. “First things first!”
Two suggestions to help remedy this problem. First, Medicare (federal taxpayer money) should cover all dental care, including prophylaxis, at least for the children. Such dental care should be provided for all children (no means test to be applied) in the schools.
Second (and here we rely on free enterprise as a solution), we should change the law to encourage more qualified people to offer the services. One change we might try is to allow people into dental school if and when they are ready for dental school; and defer the bachelor degree requirement until after the dental school graduate begins practice. As part of their continuing professional education, these dentists could take the undergraduate courses, so that within a few years they will have the same formal education as those who completed a bachelor’s before getting into dental school.
Give these people an incentive, such as this waiver (deferral) of the undergraduate degree requirement for license; and in return, require these dentists to accept Medicaid child patients for a number of years.
These Medicaid dentists would not be as formally educated as the dentists with undergraduate degrees: no English literature; no foreign languages, nor dead languages; no psychology, philosophy, economics, nor electives. But these dentists will catch up later, on their own time, while they are making a living and also performing a public service.
How can we be proud of our State; our space station; our airplane industry; our Intel, with its $32 billion off the tax roll; our multimillion dollar stadiums [sic]; our lottery which takes from the poor and gives to college students; and so on; when we fail to provide our children with dental care? We do not have to go from the present system to socialism; that is, from monopoly to socialism. How about let us go from monopoly to free enterprise? Educational requirements for a license are necessary to prevent the incompetent from practicing quackery; but unnecessary educational requirements are in restraint of trade, and immoral.
Statistics from the story: 40% of New Mexico’s children suffer from tooth decay; only 6% of Medicaid-eligible children in New Mexico get dental care (third lowest in the nation); and only one-third of New Mexico’s dentists are willing to take patients based on Medicaid payments. One school nurse is quoted as saying that it is not unusual to see “crater-sized cavities” and children in pain, with no dentist to send them to.
The story features Small Smiles Dentistry, a clinic which is part of a chain, (one on the West Side, and now one at Central and San Pedro). One dentist there said it is not unusual to see children who have cavities in 18 out of 20 teeth.
Medicaid pays only about 66% of what other insurance companies pay. Red tape may be a problem, and undoubtedly is, but there is red tape in dealing with HMO’s and insurance claims people too. So is it money?
Where are out priorities? We pass laws to impose taxes to provide up front money for promoters, tax breaks (subsidies) for billion dollar corporations with highly paid officers and other executives, and for landscaping of highways and maintenance of golf courses, and so on. “First things first!”
Two suggestions to help remedy this problem. First, Medicare (federal taxpayer money) should cover all dental care, including prophylaxis, at least for the children. Such dental care should be provided for all children (no means test to be applied) in the schools.
Second (and here we rely on free enterprise as a solution), we should change the law to encourage more qualified people to offer the services. One change we might try is to allow people into dental school if and when they are ready for dental school; and defer the bachelor degree requirement until after the dental school graduate begins practice. As part of their continuing professional education, these dentists could take the undergraduate courses, so that within a few years they will have the same formal education as those who completed a bachelor’s before getting into dental school.
Give these people an incentive, such as this waiver (deferral) of the undergraduate degree requirement for license; and in return, require these dentists to accept Medicaid child patients for a number of years.
These Medicaid dentists would not be as formally educated as the dentists with undergraduate degrees: no English literature; no foreign languages, nor dead languages; no psychology, philosophy, economics, nor electives. But these dentists will catch up later, on their own time, while they are making a living and also performing a public service.
How can we be proud of our State; our space station; our airplane industry; our Intel, with its $32 billion off the tax roll; our multimillion dollar stadiums [sic]; our lottery which takes from the poor and gives to college students; and so on; when we fail to provide our children with dental care? We do not have to go from the present system to socialism; that is, from monopoly to socialism. How about let us go from monopoly to free enterprise? Educational requirements for a license are necessary to prevent the incompetent from practicing quackery; but unnecessary educational requirements are in restraint of trade, and immoral.
Saturday, March 04, 2006
PRESIDENT BUSH CORRECT ON OUTSOURCING
This week President Bush, who has just visited India, expressed the opinion that America should not be afraid of outsourcing tech jobs to India. We agree with him, as outsourcing is simply one aspect of free trade.
Here is one area in which outsourcing would be good. Medical care. Recently we read of an American, stooped with a back injury, and in need of two operations (estimated at $100,000 total). He flew to India and got the two operations for a total of $10,000. He praised the medical care providers and was glad he outsourced. My doctor friend expressed concern about the operations and aftercare. He was right, as the patient is not really qualified to determine whether the operation (“procedure”) was a success, or was a bargain. It was affordable.
One objection to outsourcing medical services, is the problem of screening out the incompetent practitioner and the outright quack. That could be resolved by international licensing, with malpractice insurance or financial security required, and with an international court to handle the claims. This could be an administrative procedure, similar to workers compensation laws, and we could even eliminate the jury trial lawyers in such cases, if that would sugar coat the pill.
We envision a promoter medical care provider putting an MRI, and a CAT scan, and a regular Xray machine, all on-line, and running 24-7. The machines send the pictures to India, where they are read by qualified people under a system in which the patient is guaranteed compensation for malpractice. Recently there was a news article that said that cancer in the brain often goes undiagnosed; and that some could be diagnosed with an MRI. This is only one example of how to improve health care and make it more available. Free trade.
Yes, free trade in the USA would be the logical place to start, but the trade-union, protectionist element of the American Medical Association makes reform in this country a slow, tough process.
Here is one area in which outsourcing would be good. Medical care. Recently we read of an American, stooped with a back injury, and in need of two operations (estimated at $100,000 total). He flew to India and got the two operations for a total of $10,000. He praised the medical care providers and was glad he outsourced. My doctor friend expressed concern about the operations and aftercare. He was right, as the patient is not really qualified to determine whether the operation (“procedure”) was a success, or was a bargain. It was affordable.
One objection to outsourcing medical services, is the problem of screening out the incompetent practitioner and the outright quack. That could be resolved by international licensing, with malpractice insurance or financial security required, and with an international court to handle the claims. This could be an administrative procedure, similar to workers compensation laws, and we could even eliminate the jury trial lawyers in such cases, if that would sugar coat the pill.
We envision a promoter medical care provider putting an MRI, and a CAT scan, and a regular Xray machine, all on-line, and running 24-7. The machines send the pictures to India, where they are read by qualified people under a system in which the patient is guaranteed compensation for malpractice. Recently there was a news article that said that cancer in the brain often goes undiagnosed; and that some could be diagnosed with an MRI. This is only one example of how to improve health care and make it more available. Free trade.
Yes, free trade in the USA would be the logical place to start, but the trade-union, protectionist element of the American Medical Association makes reform in this country a slow, tough process.
Saturday, February 25, 2006
UNITED ARAB EMIRATES ARE HIRED. TO DO WHAT??
If you have read this far, I expect you to say the question (in the title) is frivolous. However, can you really say, from the reports in the news, just what it is that the British company does with respect to six or so of our ports; and which will now be done by the UAE government company ("company")? Proponents and the administration clear up one aspect immediately: security at the ports is in the hands of the United States Coast Guard.
So. What does the comany do? Who do they contract with? What are they obligated to do under the contract? Is it a big contract -- six billion or so? Surely the company does not acquire a real estate interest, by purchase or lease, in the land and water surrounding and making up the port. What do they do?
My interest is heightened by the lineup of people who are publicly debating whether the USA should approve the [assignment of the contract to UAE]: Rush Limbaugh, Jimmy Carter, John McCain, Pete Domenici, are among those FOR; Sean Hannity, Bill Richardson, Heather Wilson, are among those AGAINST (or hold awhile).
The proponents tell us that the company is not there to handle security, only to "operate" the port. They seem to say that we have no right to question a contract such as this [such as what, exactly?] if we are planning to take into consideration the fact that the company is foreign, and is the UAE. If we do take such facts into consideration, we are unreasonably fearful or biased against Arabs.
I am not sorry; I can't accept that.
Here is a place for Senator Pete Domenici (well respected and admired, with a world of experience) to educate us. Tell us what is involved here. Forget about how fearful we are, and give us the benefit of the doubt as to whether we are racial or ethnic profilers in an improper sense.
So. What does the comany do? Who do they contract with? What are they obligated to do under the contract? Is it a big contract -- six billion or so? Surely the company does not acquire a real estate interest, by purchase or lease, in the land and water surrounding and making up the port. What do they do?
My interest is heightened by the lineup of people who are publicly debating whether the USA should approve the [assignment of the contract to UAE]: Rush Limbaugh, Jimmy Carter, John McCain, Pete Domenici, are among those FOR; Sean Hannity, Bill Richardson, Heather Wilson, are among those AGAINST (or hold awhile).
The proponents tell us that the company is not there to handle security, only to "operate" the port. They seem to say that we have no right to question a contract such as this [such as what, exactly?] if we are planning to take into consideration the fact that the company is foreign, and is the UAE. If we do take such facts into consideration, we are unreasonably fearful or biased against Arabs.
I am not sorry; I can't accept that.
Here is a place for Senator Pete Domenici (well respected and admired, with a world of experience) to educate us. Tell us what is involved here. Forget about how fearful we are, and give us the benefit of the doubt as to whether we are racial or ethnic profilers in an improper sense.
Thursday, February 23, 2006
CODY POSEY SENTENCE FOR MURDER DICTATED BY ARBITRARY LAW
In less than an hour, the Judge will sentence Cody Posey for killing Posey’s father, stepmother and stepsister. He was convicted of first degree murder in the killing of the sister, a teenager.
The Judge held a sentencing hearing this week, and yesterday announced that this morning, at nine o’clock, he would impose sentence. The Judge’s discretion is limited by New Mexico law. The Judge must decide whether to sentence Posey as a child (the crime was committed when Posey was 14), or as an adult. The jury in New Mexico does not impose sentence, and is not supposed to even know what the possible sentences are.
If the Judge decides to sentence Posey as a child, the maximum sentence would be incarceration in a juvenile facility until Posey is age twenty-one, that is, five more years. If the Judge decides to sentence Posey as an adult, the Judge must impose a sentence which would mean at least thirty years without parole.
Mandatory sentences, whether mandatory in the sense of a limit on the amount of time, or mandatory as to the amount of time, or mandatory as to the minimum, are all arbitrary. Not necessarily unjust, but arbitrary. It is possible that the sentence set by the legislature will be the right sentence in some cases. However, there is no justification for a law that tells a Judge that he must sentence to a juvenile facility for five years, or to an adult facility for at least thirty years, with no in-between.
Our whole sentencing system should be reexamined. The power we give our District Judges (judges of courts of general jurisdiction) is awesome, too much. Yet we do greater injustice when we try to set the penalties by legislated mandatory sentences.
The Judge held a sentencing hearing this week, and yesterday announced that this morning, at nine o’clock, he would impose sentence. The Judge’s discretion is limited by New Mexico law. The Judge must decide whether to sentence Posey as a child (the crime was committed when Posey was 14), or as an adult. The jury in New Mexico does not impose sentence, and is not supposed to even know what the possible sentences are.
If the Judge decides to sentence Posey as a child, the maximum sentence would be incarceration in a juvenile facility until Posey is age twenty-one, that is, five more years. If the Judge decides to sentence Posey as an adult, the Judge must impose a sentence which would mean at least thirty years without parole.
Mandatory sentences, whether mandatory in the sense of a limit on the amount of time, or mandatory as to the amount of time, or mandatory as to the minimum, are all arbitrary. Not necessarily unjust, but arbitrary. It is possible that the sentence set by the legislature will be the right sentence in some cases. However, there is no justification for a law that tells a Judge that he must sentence to a juvenile facility for five years, or to an adult facility for at least thirty years, with no in-between.
Our whole sentencing system should be reexamined. The power we give our District Judges (judges of courts of general jurisdiction) is awesome, too much. Yet we do greater injustice when we try to set the penalties by legislated mandatory sentences.
Monday, February 20, 2006
JUSTICE DEPARTMENT THREATENS OLD, SICK AND DYING NEW MEXICANS WHO TAKE PRESCRIPTION SMOKED MARIJUANA
I doubt that David C. Iglesias, United States Attorney for the District of New Mexico was eager to write a threatening letter to the Legislature this 30-day session. According to the paper, Iglesias wrote that he would prosecute any effort by New Mexicans to use prescription smoked marijuana to treat nausea and other symptoms of terminal illnesses or illnesses in which the patient suffers intractable pain. In effect Iglesias said he would make a federal case out of it if Grandma, dying of cancer and in unbearable pain, chose to use smoked marijuana (with a doctor’s prescription).
Mr. Iglesias undoubtedly got his instructions from the Department of Justice, as that is the way the federal system works. The U. S. Attorney does not have the discretion that state prosecutors have; the Justice department has a great deal of control. Thus, the Justice department, which as a matter of course fails to prosecute those who possess marijuana in New Mexico (except in large amounts), came alive when it looked like the people of New Mexico might choose to cut some slack in the state prohibition laws.
Yes, it is a federal crime to smoke a joint, even if your doctor prescribes the smoke rather than opiates or other drugs. But if 60 million Americans have tried the smoke, as it has been reported, that is 20% of the population. Two Presidents that we know of did the dastardly act. If New Mexicans are keeping up in the smoking of marijuana, that means about 350,000 New Mexicans have tried the stuff (not me).
Where has the office of the United States Attorney been? Why take their frustration out on the old, sick, dying folks? Why be frustrated at all?
This is federalism at work for us. The federal government has prohibition; and the State has prohibition. They are two sovereigns, so both governments can prosecute for the same offense (no double jeopardy, because two sovereigns). The federals sit on their hands and let the State taxpayers provide the officers to enforce the marijuana prohibition, except in big cases.
The State of New Mexico should repeal its prohibition laws, with respect to smoked marijuana by doctor’s prescription for intractable pain or nausea; and tell the federal government that if the United States Attorney makes good on the threat to prosecute doctors or patients, then New Mexico will tender all of its marijuana cases to the federals in the future.
Meanwhile, a word to the legislators in the House of Representatives who killed or worked against the medical marijuana legislation. Next election, there are going to be posts at this site in an effort to let the public know what part you played. Those posts will not be at some higher ups’ direction; nor will they be paid for in any way. No hard feelings; no offense.
Mr. Iglesias undoubtedly got his instructions from the Department of Justice, as that is the way the federal system works. The U. S. Attorney does not have the discretion that state prosecutors have; the Justice department has a great deal of control. Thus, the Justice department, which as a matter of course fails to prosecute those who possess marijuana in New Mexico (except in large amounts), came alive when it looked like the people of New Mexico might choose to cut some slack in the state prohibition laws.
Yes, it is a federal crime to smoke a joint, even if your doctor prescribes the smoke rather than opiates or other drugs. But if 60 million Americans have tried the smoke, as it has been reported, that is 20% of the population. Two Presidents that we know of did the dastardly act. If New Mexicans are keeping up in the smoking of marijuana, that means about 350,000 New Mexicans have tried the stuff (not me).
Where has the office of the United States Attorney been? Why take their frustration out on the old, sick, dying folks? Why be frustrated at all?
This is federalism at work for us. The federal government has prohibition; and the State has prohibition. They are two sovereigns, so both governments can prosecute for the same offense (no double jeopardy, because two sovereigns). The federals sit on their hands and let the State taxpayers provide the officers to enforce the marijuana prohibition, except in big cases.
The State of New Mexico should repeal its prohibition laws, with respect to smoked marijuana by doctor’s prescription for intractable pain or nausea; and tell the federal government that if the United States Attorney makes good on the threat to prosecute doctors or patients, then New Mexico will tender all of its marijuana cases to the federals in the future.
Meanwhile, a word to the legislators in the House of Representatives who killed or worked against the medical marijuana legislation. Next election, there are going to be posts at this site in an effort to let the public know what part you played. Those posts will not be at some higher ups’ direction; nor will they be paid for in any way. No hard feelings; no offense.
Sunday, February 12, 2006
IS CONGRESS A MERE ADVISOR IN THIS WAR?
Our Attorney General, Alberto Gonzales, thinks that certain provisions of the Geneva Conventions (no interrogation of prisoners of war) are quaint. The implication is that those provisions do not apply to the USA today in the circumstances of the global effort to combat terrorists. Indeed, Gonzales follows up by giving the President an opinion that in this war on terror, we may take into custody our suspected opponents, declare that they are “terrorists,” or “enemy combatants”, and the detainees may be held and treated as the Commander in Chief directs. If any act of Congress purports to limit that power of the executive, the statute may be ignored because it is an unlawful effort to limit the Chief in his conduct of the war.
A detainee is taken into custody by the Armed Forces of the United States. Does the detainee get taken before a neutral, independent magistrate, for a hearing to determine whether there are reasonable grounds to believe that he is a terrorist? No. Does he get the protection of a grand jury or other investigating authority, to review the showing of probable cause? No. No bail (that is okay, because this is a capital offense). No written charges, nor any opportunity to question his wardens as to when, where, why, what. No chance to prove innocence at a trial, because no trial. Forget the burden of proof.
A detainee may be interrogated (that is okay, why not; and if he does not answer we may reasonably infer that he has something to hide). To induce the detainee to give up valuable information about the terrorists and their plans, we may use interrogation techniques which our President and Attorney General and Secretary of Defense approve. Never mind that most Americans would not approve; it is enough that they do not know what the techniques are or have been led to believe that “those” techniques have been discontinued. Never debated in Congress!
A detainee is taken into custody by the Armed Forces of the United States. Does the detainee get taken before a neutral, independent magistrate, for a hearing to determine whether there are reasonable grounds to believe that he is a terrorist? No. Does he get the protection of a grand jury or other investigating authority, to review the showing of probable cause? No. No bail (that is okay, because this is a capital offense). No written charges, nor any opportunity to question his wardens as to when, where, why, what. No chance to prove innocence at a trial, because no trial. Forget the burden of proof.
A detainee may be interrogated (that is okay, why not; and if he does not answer we may reasonably infer that he has something to hide). To induce the detainee to give up valuable information about the terrorists and their plans, we may use interrogation techniques which our President and Attorney General and Secretary of Defense approve. Never mind that most Americans would not approve; it is enough that they do not know what the techniques are or have been led to believe that “those” techniques have been discontinued. Never debated in Congress!
Wednesday, February 01, 2006
WHEN DO WE DEBATE TORTURE?
"No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind." Article 17, 1949 Geneva Convention. Http://www.iacenter.org/geneva.
As I understand it, it is the policy of our administration to follow the Geneva Convention in cases of prisoners of war. We have defined the captives at Guantanamo and some at Abu Ghraib, as other than prisoners of war (and of course, as other than accused criminals, who would be entitled to even more rights than prisoners of war). The name is not important (unlawful combatants; terrorists; insurgents; detainees) ("A soft word turneth away wrath.").
Let us assume that they are international terrorist criminals. The administration says that they will be treated "consistent" with the Geneva Convention. What does that mean? Does it mean that they will be treated as though the Geneva Convention applied to them? Sounds that way, but we know that is not the case.
The bottom line question is this. Are there accused persons who are captives of United States troops whom we are willing to torture? If so, under what circumstances, by whom, and with what safeguards, if any? And are we going to be allowed to vote on this policy?
Another issue is who is to do the technique. If it indeed is torture as defined by the International Red Cross, or some other international body, such as the United Nations, then do we want our military personnel to do the job? I think not. They are hired to be soldiers and we owe it to them to keep them from having to do that kind of job. Secretary Rumsfeld apparently draws a distinction between torture by our people directly, and torture by some underworld country at our request. Is that right?
The time for joking about the "hazing" is over. I admire Al Gore for asking the question, "How dare they?"; but to adopt his view assumes the question. The question is, is our policy one that we want to maintain? What is our policy?
We could begin without the list of our techniques. We could simply take up various interrogation methods and see if we want to use them. Take the matter of water-boarding. The South Vietnamese in 1964 were treating suspected Viet Cong prisoners to a near-drowning technique: hose down throat, funnel in hose, water poured in funnel until captive thinks he is going to drown; revive, question, then repeat. American "advisors" stood by, supposedly not participating. As I understand it, we now take the captives and dunk them, either on a board or by hand, dunk them repeatedly, causing the captive to think he is about to drown. Question; then repeat. Is this "faux drowning" technique permissible, or is a version of it permissible?
You do not have to decide whether it is torture, just decide whether you want to permit it (or in the case of soldiers, order the soldiers to execute the procedure). Then make that decision publicly, allowing us to vote on it in an open society; then the world will know and we will know what kind of people we are, and what we will do collectively in the name of national security.
It is not enough to say that one or more of us privately, to protect our family, would use torture or worse if the circumstances were right. We are speaking of a national policy, one which we would surely recommend for all other nations of the world.
Is not this issue more important and pressing, than the question of terrorist wiretapping? Should the President dragnet our communications system to find evidence of terrorism, and if so should he submit to Court oversight of the process? Those are important questions, quite apart from whether the President has the power under our constitution to do it the way he has chosen. But are such questions as important as whether we want to order, approve, or condone water-boarding (and other interrogation techniques), and if so under what circumstances, by whom, with what oversight and with what accountability, if any?
As I understand it, it is the policy of our administration to follow the Geneva Convention in cases of prisoners of war. We have defined the captives at Guantanamo and some at Abu Ghraib, as other than prisoners of war (and of course, as other than accused criminals, who would be entitled to even more rights than prisoners of war). The name is not important (unlawful combatants; terrorists; insurgents; detainees) ("A soft word turneth away wrath.").
Let us assume that they are international terrorist criminals. The administration says that they will be treated "consistent" with the Geneva Convention. What does that mean? Does it mean that they will be treated as though the Geneva Convention applied to them? Sounds that way, but we know that is not the case.
The bottom line question is this. Are there accused persons who are captives of United States troops whom we are willing to torture? If so, under what circumstances, by whom, and with what safeguards, if any? And are we going to be allowed to vote on this policy?
Another issue is who is to do the technique. If it indeed is torture as defined by the International Red Cross, or some other international body, such as the United Nations, then do we want our military personnel to do the job? I think not. They are hired to be soldiers and we owe it to them to keep them from having to do that kind of job. Secretary Rumsfeld apparently draws a distinction between torture by our people directly, and torture by some underworld country at our request. Is that right?
The time for joking about the "hazing" is over. I admire Al Gore for asking the question, "How dare they?"; but to adopt his view assumes the question. The question is, is our policy one that we want to maintain? What is our policy?
We could begin without the list of our techniques. We could simply take up various interrogation methods and see if we want to use them. Take the matter of water-boarding. The South Vietnamese in 1964 were treating suspected Viet Cong prisoners to a near-drowning technique: hose down throat, funnel in hose, water poured in funnel until captive thinks he is going to drown; revive, question, then repeat. American "advisors" stood by, supposedly not participating. As I understand it, we now take the captives and dunk them, either on a board or by hand, dunk them repeatedly, causing the captive to think he is about to drown. Question; then repeat. Is this "faux drowning" technique permissible, or is a version of it permissible?
You do not have to decide whether it is torture, just decide whether you want to permit it (or in the case of soldiers, order the soldiers to execute the procedure). Then make that decision publicly, allowing us to vote on it in an open society; then the world will know and we will know what kind of people we are, and what we will do collectively in the name of national security.
It is not enough to say that one or more of us privately, to protect our family, would use torture or worse if the circumstances were right. We are speaking of a national policy, one which we would surely recommend for all other nations of the world.
Is not this issue more important and pressing, than the question of terrorist wiretapping? Should the President dragnet our communications system to find evidence of terrorism, and if so should he submit to Court oversight of the process? Those are important questions, quite apart from whether the President has the power under our constitution to do it the way he has chosen. But are such questions as important as whether we want to order, approve, or condone water-boarding (and other interrogation techniques), and if so under what circumstances, by whom, with what oversight and with what accountability, if any?
Saturday, January 28, 2006
GUN COLLECTORS LOSE OUT
Here we are on the mesa outside of Albuquerque. We are going to blow up some guns. Yes, we have a compressor in town and this week we have squeezed hundreds of guns into scrap metal. But with all of the gun confiscations of late, we are behind, and need to blow up a lot of guns. These are guns which we are legally obligated to return to the ones from whom we took them [inmost instances], but those people are too ignorant or frightened to make a claim. We could bring an action to permit the police to sell the guns at auction, one at a time or en masse, as we do wallets, briefcases, tools, etc., that we have seized. Then why are we blowing up these guns or squeezing them into metal paperweights?
Chief Schultz said blow them up. The Chief is answerable to Mayor Martin Chavez, you say. Well, Mayor Chavez is in charge, but it appears that he approves of the blow up.
This action does not make sense. Hundreds of thousands of handguns are imported, and domestic manufacturers make more. If the gun is workable, it is the product of someone's labor. If it is not contrababnd, such as heroin, why crush the firearm into a paperweight? Why blow it up?
This is like that deal where the police used a chain saw to cut down the trees near an apartment complex, because dope pushers might stand behind a tree to make a sale.
Bottom line. Let us say that someone unlawfully carries (say into a bar) in Albuquerque. The offender is arrested, the firearm is taken for evidence, or even if it is forfeited, what then? Do we punish that firearm by crushing it or blowing it up? Does that make sense? What explains this, in a State where any adult, trained or not, experienced or not, has the absolute right to strap a six-gun on exposed, and walk down the street [yes, certain places excepted]?
Bottom line. New police officer, get ready for the real world. You may be ordered to cut down a bunch of trees next to an apartment complex [to keep drug pushers from hiding behind the trees]. You may be ordered to close that bar, because the police have received too many calls about illegal activity. What, do you suggest that the Chief put more resources out there where the crooks are? That is not how we operate.
So you would like to get some overtime? You have heard that some officers, just as you, same badge, same uniform, same car, earn (?) $30,000 to $40,000 overtime each year? Your turn will come. It is called “Chief’s Overtime.” When the public, such as “BigTime Subdivision” gets fed up with all of the crime in the neighborhood, they talk to the powers in the police department and decide to hire off-duty officers, at time and a half, with the same uniform, same badge, same gun, same car, to do what the police are obligated already to do.
Welcome to the Albuquerque Police Department, the thin blue line. This is said sincerely. You can make a difference. It does not have to be the way it has been. The people will be with you when you ask why? The people want to have a “thin blue line,” and the people admire and respect your service. Do not be disheartened. Leadership is needed. Maybe the Mayor should appoint a Police Commissioner, and see if she can bring the police administration (brass) in line.
Chief Schultz said blow them up. The Chief is answerable to Mayor Martin Chavez, you say. Well, Mayor Chavez is in charge, but it appears that he approves of the blow up.
This action does not make sense. Hundreds of thousands of handguns are imported, and domestic manufacturers make more. If the gun is workable, it is the product of someone's labor. If it is not contrababnd, such as heroin, why crush the firearm into a paperweight? Why blow it up?
This is like that deal where the police used a chain saw to cut down the trees near an apartment complex, because dope pushers might stand behind a tree to make a sale.
Bottom line. Let us say that someone unlawfully carries (say into a bar) in Albuquerque. The offender is arrested, the firearm is taken for evidence, or even if it is forfeited, what then? Do we punish that firearm by crushing it or blowing it up? Does that make sense? What explains this, in a State where any adult, trained or not, experienced or not, has the absolute right to strap a six-gun on exposed, and walk down the street [yes, certain places excepted]?
Bottom line. New police officer, get ready for the real world. You may be ordered to cut down a bunch of trees next to an apartment complex [to keep drug pushers from hiding behind the trees]. You may be ordered to close that bar, because the police have received too many calls about illegal activity. What, do you suggest that the Chief put more resources out there where the crooks are? That is not how we operate.
So you would like to get some overtime? You have heard that some officers, just as you, same badge, same uniform, same car, earn (?) $30,000 to $40,000 overtime each year? Your turn will come. It is called “Chief’s Overtime.” When the public, such as “BigTime Subdivision” gets fed up with all of the crime in the neighborhood, they talk to the powers in the police department and decide to hire off-duty officers, at time and a half, with the same uniform, same badge, same gun, same car, to do what the police are obligated already to do.
Welcome to the Albuquerque Police Department, the thin blue line. This is said sincerely. You can make a difference. It does not have to be the way it has been. The people will be with you when you ask why? The people want to have a “thin blue line,” and the people admire and respect your service. Do not be disheartened. Leadership is needed. Maybe the Mayor should appoint a Police Commissioner, and see if she can bring the police administration (brass) in line.
Thursday, January 26, 2006
CLEAN BILL OF HEALTH LAW
Here is a suggestion for the powers that be in New Mexico government. Prioritize. Let us put something ahead of the grandiose schemes to invest the public money [taken by taxes]in this enterprise or that. Why take my money from me in the form of taxes and use it to "invest" in any "enterprise"?
Eclipse may get off the ground, with the taxpayers’ help. Why not issue bonds [not backed by New Mexico taxpayers] and see who will buy Eclipse bonds? Spaceport may get off the earth with taxpayers’help. Why not issue bonds for the spaceport [not backed by NM taxpayers]and the sky is the limit! Why not have Intel issue bonds and raise the money it needs, rather than grant it a tax relief of over $200 million per year for decades [keep in mind that $10 million is the annual operating cost of the train to the taxpayers]. Meanwhile, how about addressing ourselves to a more mundane but more important problem.
According to Sen. Tim Jennings of Roswell, we should have a law that imposes a tax to be used by the New Mexico government under Governor Bill Richardson, to pay for screening for breast cancer for low income women. His wife has been diagnosed with cancer after an MRI and we approach this subject with due respect for the feelings of his family and loved ones.
But now this has been put in the newspaper. So we have a right to comment. Why are not all New Mexicans entitled as a matter of right, to preventative, diagnostic medical tests? What is so magical about an MRI? Is it a good diagnostic tool? Do we want to use it, if it gives us bad news? Jennings as much as says that the mamogram, which his wife took every quarter, was not as useful as the MRI. Incidentally, why take a mammogram every quarter, when the doctors say every year or two or five (are the doctors counting the beans?)
Why not use the MRI machine and test everybody, for everything wrong? Every quarter or every month. If you answer anything except “money,” please say what. Money. The greatest nation on earth, in history, cannot provide [by confiscatory taxes] the money to check its citizens to see if they are invaded by the germ enemy (cancer). In years past the military provided examinations for certain diseases, and who complained that it was socialized medicine?
Part of the problem is cost. We hire a brain surgeon to lance a boil. That is not accurate, we give in to the trade union element of the American Medical Association which controls, and says if you New Mexicans want a boil lanced, you must hire a brain surgeon.
Hey. Let’s talk about a spaceport. A train.
Eclipse may get off the ground, with the taxpayers’ help. Why not issue bonds [not backed by New Mexico taxpayers] and see who will buy Eclipse bonds? Spaceport may get off the earth with taxpayers’help. Why not issue bonds for the spaceport [not backed by NM taxpayers]and the sky is the limit! Why not have Intel issue bonds and raise the money it needs, rather than grant it a tax relief of over $200 million per year for decades [keep in mind that $10 million is the annual operating cost of the train to the taxpayers]. Meanwhile, how about addressing ourselves to a more mundane but more important problem.
According to Sen. Tim Jennings of Roswell, we should have a law that imposes a tax to be used by the New Mexico government under Governor Bill Richardson, to pay for screening for breast cancer for low income women. His wife has been diagnosed with cancer after an MRI and we approach this subject with due respect for the feelings of his family and loved ones.
But now this has been put in the newspaper. So we have a right to comment. Why are not all New Mexicans entitled as a matter of right, to preventative, diagnostic medical tests? What is so magical about an MRI? Is it a good diagnostic tool? Do we want to use it, if it gives us bad news? Jennings as much as says that the mamogram, which his wife took every quarter, was not as useful as the MRI. Incidentally, why take a mammogram every quarter, when the doctors say every year or two or five (are the doctors counting the beans?)
Why not use the MRI machine and test everybody, for everything wrong? Every quarter or every month. If you answer anything except “money,” please say what. Money. The greatest nation on earth, in history, cannot provide [by confiscatory taxes] the money to check its citizens to see if they are invaded by the germ enemy (cancer). In years past the military provided examinations for certain diseases, and who complained that it was socialized medicine?
Part of the problem is cost. We hire a brain surgeon to lance a boil. That is not accurate, we give in to the trade union element of the American Medical Association which controls, and says if you New Mexicans want a boil lanced, you must hire a brain surgeon.
Hey. Let’s talk about a spaceport. A train.
Saturday, January 21, 2006
DNA SAMPLING EXTENDED BY KATIE’S LAW
Jayann Sepich of Carlsbad has written an Op-Ed piece for the January 15, 2006, Albuquerque Journal. She is advocating “Katie’s Law,” a bill to be introduced by Rep. John Heaton, D-Carlsbad. The bill would require law enforcement officials to take DNA samples from persons who are arrested on felony charges, and the samples would be put in a state database. Katie, Ms. Sepich’s daughter, was raped and murdered in Las Cruces in 2003. It was then that Ms. Sepich learned that DNA samples were not taken routinely.
“Only the guilty would have any reason to fear DNA.”, Sepich stated. She claims that DNA technology can save lives, protect the innocent, and solve crime. In general, she is right. No need here to point out that some expert like Dr. Henry Lee of the OJ trial may muddy up the waters by simply saying, “Something is wrong here.” Ms. Sepich is right, but her stopping place is wrong. She would require New Mexicans to give a DNA sample for a law enforcement database. Fair play would extend that requirement to all of us.
Can we justify making a class of those arrested for felony? No conviction of a crime of violence, nor even a charge of a crime of violence. In a sense, this sampling is punishment, and in a sense it is preventive law enforcement. Assuming that the arrest is lawful, a reasonable and prudent police officer believed that the accused had committed a felony. Seems fair enough such a person should give up the DNA sample.
Would it not be fairer, however, to take the sample from us all? Much more effective; much more even handed. Search us all; not some of us; that is the fair thing to do (for example, at the airport).
Let every resident of New Mexico give up a sample. Meanwhile, let us support “Katie’s Law” as a start.
“Only the guilty would have any reason to fear DNA.”, Sepich stated. She claims that DNA technology can save lives, protect the innocent, and solve crime. In general, she is right. No need here to point out that some expert like Dr. Henry Lee of the OJ trial may muddy up the waters by simply saying, “Something is wrong here.” Ms. Sepich is right, but her stopping place is wrong. She would require New Mexicans to give a DNA sample for a law enforcement database. Fair play would extend that requirement to all of us.
Can we justify making a class of those arrested for felony? No conviction of a crime of violence, nor even a charge of a crime of violence. In a sense, this sampling is punishment, and in a sense it is preventive law enforcement. Assuming that the arrest is lawful, a reasonable and prudent police officer believed that the accused had committed a felony. Seems fair enough such a person should give up the DNA sample.
Would it not be fairer, however, to take the sample from us all? Much more effective; much more even handed. Search us all; not some of us; that is the fair thing to do (for example, at the airport).
Let every resident of New Mexico give up a sample. Meanwhile, let us support “Katie’s Law” as a start.
Friday, January 20, 2006
MEDICAL MARIJUANA ON AGENDA; GOVERNOR RICHARDSON DESERVES FULL MARKS
Governor Richardson could easily have passed up the request to put the issue of medical [read that “smoked”] marijuana before the legislature. After all, the federal government, which is slowly but surely taking over the police power from the states, claims the right to prohibit people from smoking marijuana. The feds claim the right to deny smoked marijuana to people with terminal illnesses, people with intractable pain. They do not arrest the patient; they threaten the license of the doctor. Have you heard any of our congress people discuss this?
The Governor came forward and laid the problem on the table. New Mexico may be spinning its wheels, but the principle is there. No longer will we roll over and say to the DEA, tell us how to practice medicine. If our legislature passes the bill, it may amount to no more than a resolution, and that is all right. We will say to the federal powers that this is a State matter, and get out of the sickroom and restrict your governance to matters that are appropriately federal (national and constitutional).
The Governor came forward and laid the problem on the table. New Mexico may be spinning its wheels, but the principle is there. No longer will we roll over and say to the DEA, tell us how to practice medicine. If our legislature passes the bill, it may amount to no more than a resolution, and that is all right. We will say to the federal powers that this is a State matter, and get out of the sickroom and restrict your governance to matters that are appropriately federal (national and constitutional).
Tuesday, January 17, 2006
SHOULD WE RETURN TO “BLUE RIBBON” JURIES?
In the federal criminal justice system, we used to have “Blue Ribbon Juries.” The law was changed by Congress forty years ago. Now we select the jury panel by a random method.
Under the Blue Ribbon system, the Judge would appoint “suggestors” in each county of the State. The suggestors were prominent in their communities, and were trusted by the Judge to do a good job of suggesting people who would make upright, honest jurors. From those suggested, a panel, say 24 or 36, would be chosen to try the criminal cases. The defense lawyers tried to find out the details of how the suggestors were chosen, and what methods the suggestors used to choose those whose names were sent forward. The lawyers were unsuccesful; they and their clients remained in the dark.
In October, 1966, forty years ago, Reis Lopez Tijerina and his followers took over the Echo Amphitheatre in northern New Mexico, and held forest rangers against their will. The rangers were taken before a “judge,” Jerry Noll, who claimed to be King of the Indies and the rightful owner (by grant from a Spanish king) of all land West of the Alleghenies. The upshot of it all was that Tijerina and several others were put on trial and convicted in federal Court.
At the time of the trial, in early 1967, the Blue Ribbon Jury system was in use in the United States District Court, but Congress had just passed a law abolishing the practice. The law was not applicable to the Echo Amphitheatre case, but Howard Bratton, United States District Court Judge, ruled that he would use the new system for the case. That was out of an abundance of caution, as they say. Judge Bratton was an outstanding jurist.
The case was tried in Las Cruces, and a jury was selected from the southwest part of the State. A conviction resulted, and Tijerina did federal time. Before he did time, he was on bond while he appealed his federal conviction. It took the court reporter nine months to prepare the appeal transcript. Meanwhile, in June, 1967, Tijerina was involved in the courthouse raid in Tierra Amarilla, in Rio Arriba County.
Tijerina was convicted of assault with intent to kill Eulogio Salazar, a deputy Sheriff, who was shot through the face while trying to escape the courthouse through an open window in the office of the Sheriff. Tijerina was sentenced to not less than two nor more than ten years by [State]District Judge Garnett Burks [Sr.] but Tijerina was pardoned by Governor Jerry Apodaca before Tijerina served any of his sentence. If he had served time, he would have been entitled to credit for a short time that he was in jail on the raid charges and before he was released on bail.
Now to the question. Why not return to the Blue Ribbon system? Why do we trust such important matters as life or death, or long prison sentences, to the type of juries we get today? As a practical matter, many well qualified persons are excused from jury service, or are excluded by peremptory challenges by lawyers who are looking not simply for a fair jury, but for a biased jury. We have allowed the system to be twisted to the extent that those accused of crime who can afford it are helped by professionals who study the biases of prospective jurors, and advise the lawyers how best to obfuscate and mislead the jury panel and the jury.
This is not to rail against our criminal justice system, but to encourage reform. We may be able to do better, and it is time for discussion of possible ways to do better. We owe it to the victims of crime, and to the persons accused and found guilty. The more likely the criminal is apprehended, promptly tried and punished if found guilty, the less his punishment needs to be.
Under the Blue Ribbon system, the Judge would appoint “suggestors” in each county of the State. The suggestors were prominent in their communities, and were trusted by the Judge to do a good job of suggesting people who would make upright, honest jurors. From those suggested, a panel, say 24 or 36, would be chosen to try the criminal cases. The defense lawyers tried to find out the details of how the suggestors were chosen, and what methods the suggestors used to choose those whose names were sent forward. The lawyers were unsuccesful; they and their clients remained in the dark.
In October, 1966, forty years ago, Reis Lopez Tijerina and his followers took over the Echo Amphitheatre in northern New Mexico, and held forest rangers against their will. The rangers were taken before a “judge,” Jerry Noll, who claimed to be King of the Indies and the rightful owner (by grant from a Spanish king) of all land West of the Alleghenies. The upshot of it all was that Tijerina and several others were put on trial and convicted in federal Court.
At the time of the trial, in early 1967, the Blue Ribbon Jury system was in use in the United States District Court, but Congress had just passed a law abolishing the practice. The law was not applicable to the Echo Amphitheatre case, but Howard Bratton, United States District Court Judge, ruled that he would use the new system for the case. That was out of an abundance of caution, as they say. Judge Bratton was an outstanding jurist.
The case was tried in Las Cruces, and a jury was selected from the southwest part of the State. A conviction resulted, and Tijerina did federal time. Before he did time, he was on bond while he appealed his federal conviction. It took the court reporter nine months to prepare the appeal transcript. Meanwhile, in June, 1967, Tijerina was involved in the courthouse raid in Tierra Amarilla, in Rio Arriba County.
Tijerina was convicted of assault with intent to kill Eulogio Salazar, a deputy Sheriff, who was shot through the face while trying to escape the courthouse through an open window in the office of the Sheriff. Tijerina was sentenced to not less than two nor more than ten years by [State]District Judge Garnett Burks [Sr.] but Tijerina was pardoned by Governor Jerry Apodaca before Tijerina served any of his sentence. If he had served time, he would have been entitled to credit for a short time that he was in jail on the raid charges and before he was released on bail.
Now to the question. Why not return to the Blue Ribbon system? Why do we trust such important matters as life or death, or long prison sentences, to the type of juries we get today? As a practical matter, many well qualified persons are excused from jury service, or are excluded by peremptory challenges by lawyers who are looking not simply for a fair jury, but for a biased jury. We have allowed the system to be twisted to the extent that those accused of crime who can afford it are helped by professionals who study the biases of prospective jurors, and advise the lawyers how best to obfuscate and mislead the jury panel and the jury.
This is not to rail against our criminal justice system, but to encourage reform. We may be able to do better, and it is time for discussion of possible ways to do better. We owe it to the victims of crime, and to the persons accused and found guilty. The more likely the criminal is apprehended, promptly tried and punished if found guilty, the less his punishment needs to be.
POSEY YOUTH ON TRIAL FOR MURDERS
Sixteen year old Cody Posey is on trial for murder, accused of killing his father, stepmother and stepsister with a firearm. Posey was fourteen when the incident occurred, on a southern New Mexico ranch owned by Sam Donaldson.
Last week the Judge ruled that the boy’s confession would be admitted into evidence. Defense attorney Gary Mitchell had argued that use of the confession would violate Posey’s constitutional rights under the case of Miranda v. Arizona (1966). The case requires that the accused be advised of certain “rights,” principally the right to counsel, and that the accused “waive” the right to counsel. The Judge said that happened here; and that because Posey “waived” his right to remain silent, and waived his right to counsel [same thing, as a lawyer would have told him to keep his mouth shut], the confession could be used. Otherwise the confession would have been excluded from the State’s case.
The Miranda case not only encourages fraud, it requires fraud to be committed by our law enforcement officers. Fraud in the sense of omission of critically material information. The police “advise” the accused, such as this boy when the boy was fourteen. “You have a right to an attorney while you are being questioned.” That is grossly misleading. There is no such thing as an attorney during questioning. If the accused indicates in any way that he wants an attorney, all questioning must cease. Questioning may resume if and when an attorney is hired or appointed and the attorney agrees to let her client talk to the police.
Fraud in the sense that the police omit to tell the accused fourteen year old that if he refuses to talk, if he “lawyers up,” that refusal cannot be used against the accused. Fraud in the sense that it is not in the best interests of a guilty accused, ever, to talk to the police without advice from an attorney.
The police take candy from the babies [ignorant, fearful, remorseful, stupid, emotionally disturbed], and the hardened criminal, the mafiosa and drug kingpin lawyer up. Yes, those babies are often cold blooded killers, but do we really want to have rules which favor the intelligent, remorseless, fearless killers?
The Miranda case is ill-advised and results in uneven justice. The Miranda case, and Griffin v. California (1965), give a one-two punch that results in our use of interrogation to punish the little man while we release the hardened killer and rapist.
The Miranda case allows the accused or lawyer to stop all interrogation; and the Griffin case says no inference may be drawn from the silence of the accused. Where is the common sense, the fairness, in such rules? From time immemorial before 1966, confessions were admitted into evidence if they were voluntary [no violence nor coercion nor threats of the like].
The Warren Court in 1966 decided that the police could not be trusted to tell the truth as to whether the confession was voluntary. So the Court laid down an absurd and unworkable waiver rule, but then said we will accept the word of the police as to whether the accused "waived" his rights to remain silent and get a lawyer's advice to keep mouth shut. This is an invitation to perjury, and is meaningless or ridiculous. This is said with all due respect to the Court.
Can you say that you are satisfied that Posey, at age fourteen, made a “knowing and intelligent” waiver of his rights to silence and advice of an attorney to remain silent? The rules laid down in the Miranda case and the Griffin case should be reexamined by the Supreme Court [now that we have two new hard liners]; or the rules should be reexamined by Congress and a constitutional amendment offered to in effect reverse these two cases. Forty years of impaired justice is enough.
Last week the Judge ruled that the boy’s confession would be admitted into evidence. Defense attorney Gary Mitchell had argued that use of the confession would violate Posey’s constitutional rights under the case of Miranda v. Arizona (1966). The case requires that the accused be advised of certain “rights,” principally the right to counsel, and that the accused “waive” the right to counsel. The Judge said that happened here; and that because Posey “waived” his right to remain silent, and waived his right to counsel [same thing, as a lawyer would have told him to keep his mouth shut], the confession could be used. Otherwise the confession would have been excluded from the State’s case.
The Miranda case not only encourages fraud, it requires fraud to be committed by our law enforcement officers. Fraud in the sense of omission of critically material information. The police “advise” the accused, such as this boy when the boy was fourteen. “You have a right to an attorney while you are being questioned.” That is grossly misleading. There is no such thing as an attorney during questioning. If the accused indicates in any way that he wants an attorney, all questioning must cease. Questioning may resume if and when an attorney is hired or appointed and the attorney agrees to let her client talk to the police.
Fraud in the sense that the police omit to tell the accused fourteen year old that if he refuses to talk, if he “lawyers up,” that refusal cannot be used against the accused. Fraud in the sense that it is not in the best interests of a guilty accused, ever, to talk to the police without advice from an attorney.
The police take candy from the babies [ignorant, fearful, remorseful, stupid, emotionally disturbed], and the hardened criminal, the mafiosa and drug kingpin lawyer up. Yes, those babies are often cold blooded killers, but do we really want to have rules which favor the intelligent, remorseless, fearless killers?
The Miranda case is ill-advised and results in uneven justice. The Miranda case, and Griffin v. California (1965), give a one-two punch that results in our use of interrogation to punish the little man while we release the hardened killer and rapist.
The Miranda case allows the accused or lawyer to stop all interrogation; and the Griffin case says no inference may be drawn from the silence of the accused. Where is the common sense, the fairness, in such rules? From time immemorial before 1966, confessions were admitted into evidence if they were voluntary [no violence nor coercion nor threats of the like].
The Warren Court in 1966 decided that the police could not be trusted to tell the truth as to whether the confession was voluntary. So the Court laid down an absurd and unworkable waiver rule, but then said we will accept the word of the police as to whether the accused "waived" his rights to remain silent and get a lawyer's advice to keep mouth shut. This is an invitation to perjury, and is meaningless or ridiculous. This is said with all due respect to the Court.
Can you say that you are satisfied that Posey, at age fourteen, made a “knowing and intelligent” waiver of his rights to silence and advice of an attorney to remain silent? The rules laid down in the Miranda case and the Griffin case should be reexamined by the Supreme Court [now that we have two new hard liners]; or the rules should be reexamined by Congress and a constitutional amendment offered to in effect reverse these two cases. Forty years of impaired justice is enough.
Thursday, December 29, 2005
CONSTABLE BLUNDERS AND MURDERER IS PARDONED
The title to this post is a paraphrase of (Justice Cardozo’s?) statement in opposition to the exclusionary rule. The federal exclusionary rule, a Court rule not required by the Constitution of the United States, was devised in 1914 in Weeks v. United States. The purpose was to give teeth to the Fourth Amendment prohibition of unreasonable searches and seizures. The Court felt that the only way to give meaning to the prohibition of the unconstitutional activities of the law enforcement officers, was to suppress the evidence obtained, that is to exclude the evidence in any trial of criminal charges against the person whose rights were violated.
We lived with the exclusionary rule in the federal criminal justice system and still do. Each state was allowed to decide whether there should be such a rule for state criminal law trials. New Mexico was one which rejected the idea of an exclusionary rule. Thus, from 1914 to 1961, in New Mexico, if the police violated constitutional rights to privacy, by committing a search and seizure in violation of the Fourth Amendment, the evidence would be excluded (suppressed) in any federal criminal trial, but could be used in a New Mexico criminal trial.
In 1961, that was changed. The United States Supreme Court, in Mapp v. Ohio (1961), ruled that evidence obtained in violation of the Fourth Amendment must be suppressed, excluded, from trials in state criminal cases as well as federal criminal cases. The exclusionary rule is not restricted to wilful, intentional violations of the Fourth Amendment. A constable (read that, any law enforcement officer) may through ignorance of law or clerical error violate the warrant requirement of the Fourth Amendment, or misjudge her powers to search or seize without a warrant. The constable blunders and the murderer goes free. If the evidence is essential to a conviction, then it is true that the constable blunders and the murderer is pardoned. No need for the Governor to act on an application for a pardon or commutation. The constable, or part-time deputy in Jal or Aztec, Yeso or Claunch, has that power.
Next post: How the Supreme Court of New Mexico overruled its precedents and extended the exclusionary rule even beyond that required by the United States Supreme Court. The irony of all of this is that we have a government that is willing to order its agents (CIA or soldiers) to engage in cruel, inhuman or degrading interrogation of captives (a violation of international law), with no warrant requirement, that is, no Court intercession; but we are so insistent on observance of constitutional directives in our domestic criminal procedure that we go overboard and release (pardon) the guilty, including murderers, on hyper-technicalities.
We lived with the exclusionary rule in the federal criminal justice system and still do. Each state was allowed to decide whether there should be such a rule for state criminal law trials. New Mexico was one which rejected the idea of an exclusionary rule. Thus, from 1914 to 1961, in New Mexico, if the police violated constitutional rights to privacy, by committing a search and seizure in violation of the Fourth Amendment, the evidence would be excluded (suppressed) in any federal criminal trial, but could be used in a New Mexico criminal trial.
In 1961, that was changed. The United States Supreme Court, in Mapp v. Ohio (1961), ruled that evidence obtained in violation of the Fourth Amendment must be suppressed, excluded, from trials in state criminal cases as well as federal criminal cases. The exclusionary rule is not restricted to wilful, intentional violations of the Fourth Amendment. A constable (read that, any law enforcement officer) may through ignorance of law or clerical error violate the warrant requirement of the Fourth Amendment, or misjudge her powers to search or seize without a warrant. The constable blunders and the murderer goes free. If the evidence is essential to a conviction, then it is true that the constable blunders and the murderer is pardoned. No need for the Governor to act on an application for a pardon or commutation. The constable, or part-time deputy in Jal or Aztec, Yeso or Claunch, has that power.
Next post: How the Supreme Court of New Mexico overruled its precedents and extended the exclusionary rule even beyond that required by the United States Supreme Court. The irony of all of this is that we have a government that is willing to order its agents (CIA or soldiers) to engage in cruel, inhuman or degrading interrogation of captives (a violation of international law), with no warrant requirement, that is, no Court intercession; but we are so insistent on observance of constitutional directives in our domestic criminal procedure that we go overboard and release (pardon) the guilty, including murderers, on hyper-technicalities.
Tuesday, December 13, 2005
EXECUTION OF STANLEY WILLIAMS
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?
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 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.
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