Justice Denied

Let's start with the disclaimer. I don't know what I'm talking about.

It's not that I'm talking through my hat, but I do admit to ignorance of all the facts. And that's fine with me. The system of American justice leaves a lot to be desired. And I assume the same is true elsewhere. Where shall I start?

I'll begin where my thinking about the issue as the subject for an essay began (though the American justice system has always troubled me). A friend of mine is in a correctional facility. He's a gentle and intelligent man, an effective educator, and a faithful member of the community. But he has purchased pornography (specifically involving children) and practiced voyeurism. He never touched a child improperly (as far as I know) but at least one of the involved children, now an adult, voiced dismay when he heard about the man's actions.

My friend is clearly troubled. I don't know the details of his previous interactions with the legal system – nor do I want to – but, according to what I learned at a hearing, he had been instructed by the courts on several occasions in the past to get adequate psychological help to deal with his problem and, apparently, he did not do so. The judge seemed to be fair and, after noting all the factors that seemed pertinent, including sentencing guidelines, imposed a relatively lenient term, considering those guidelines. Nonetheless he will be incarcerated for several years. I don't dispute the equity of the sentence itself, but it doesn't seem to fit in with what I read in the media about other criminals. Justice is supposed to be the same for everyone, but it isn't.

For example, it's not unusual for a politician to be censored for his “indiscretion” or crime, or to receive a relatively mild sentence (usually shorter than that of my friend) and then to write a book about the event and earn a lot of money. His attorneys argue that a short term, or no term at all, is justified because “his life has been ruined” by the publicity and the shame. (I should point out that those accused of other crimes have had their lives ruined by offender registries, employment, restrictions, rejection by friends, and the like. Both groups have brought the unpleasantness on themselves. Even those who are innocent will be stained by the accusations.) And the sentences of other “high profile” defendants are often short irrespective of the charges. Those who employ lobbyists may not be restrained by such considerations if the individual has useful connections. Expensive, and rhetorically polished lawyers can manipulate the severity of verdicts, especially when they portray their clients as the victims. Or they, and public opinion, can induce a “Not guilty” verdict. The O. J. Simpson verdict is one that many associate with this form of “justice.”

Less obvious to consumers of the media are cases in which a jury cannot reach a unanimous decision, but the bleary-eyed judge insists that they do so because of expense to the system and the time of those involved. Is justice served if a juror changes his mind simply so he can be released from service and return to his family?

But for less newsworthy criminals the sentences are often “mandatory” or may have provisions for minimum time, or perhaps there is no possibility of parole. Others, sometimes innocent, bargain away their freedom. A plea resulting in a short but predictable period of incarceration is far preferable, they decide, to the possibility of a far harsher punishment if he chose trial. Innocent people are sometimes convicted. It's not worth the risk.

A group of those for whom punishment is delayed are the ones sentenced to death. They may wait on “death row” for many years, through appeals and other legalities, and then, as has recently been the case in Arkansas, be rushed to execution before the expiration date on one the drugs to be used.

Those are the ones, however, who receive some form of justice. There has been a completion of the procedures against them. Statutes of limitations give some – the ones who evade indictment – the opportunity to avoid andy punishment. They're the people for whom vigilante “justice” is considered by some of the victims.

And there are far too many who languish in correctional facilities without ever having been tried. There may be a long wait before trial and they may be held without bail, or held because of a bail which they cannot afford. They may be awaiting some legal procedure which is delayed by an overcrowded judicial system, or by the manipulation of lawyers seeking either advantage for their clients or personal advantage (like a vacation). And for the most part, these individuals are, or will be, represented by overburdened public defenders who are unable to provide all the help their “customers” require.

The facilities in which those being held are stored are often worse than the ones to which some of them ultimately will be assigned. A glaring example is Rikers [sic – no apostrophe] Island in New York City. (It was supposedly named after Abraham Rycken, a Dutch landowner of the 17^th century.) Conditions there, including drugs, violence, and overcrowding, are so bad that there are discussions of eliminating it and replacing it with a group of facilities around the city. I suspect it will still be horrendous, but not quite as bad as what currently exist. It's a storage rather than a correctional facility.

But there is another problem. (Actually there are many other problems, but I'll only bring up one more.) If an individual is injured by a faulty product or procedure of a large organization, (s)he and the organization have decisions to make – assuming the individual chooses to take action. The company may maintain its innocence and use its swarm of mouthpieces to maintain that there was no fault, and it was the consumer's failing anyway. They'll risk a lawsuit if they think they can win (being right has nothing to do with it) even if involves numerous litigants.

If they don't think they'll win the same legal brigade will work out a settlement with the plaintiff (they'll pay him off) with the proviso that he keep quiet about what they paid, lest others be encouraged to sue. The payoff, of course, comes from stockholders rather than the guilty parties in management. Even if officials were aware of the problem and did nothing about it, officers of the company never seem to be indicted for their acts. They don't pay. Only investors do. There may be a need for a(n expensive, golden parachuted) change in leadership for public relations purposes, or even the sacrifice of a (low-level) scapegoat, but it rarely goes beyond that point. Equal justice isn't the American way.

Imagine what I'd say if I weren't ignorant.

June 6, 2017

Whose Pocket?

If you're not a large corporation with unlimited funds for lawyers (or if you haven't bribed the judge) it may be difficult for to get prompt and proper adjudication of a lawsuit. The problem is one that most affects a plaintiff who is an average citizen suing a large firm. Two of their (the defendant's) techniques (among others) are delays in trial, and extension of the proceedings in order to make the litigation too expensive for the plaintiff to afford.

On the other hand, we hear, on occasion, of a jury that finds for a plaintiff and awards not only compensatory damages, which may not be large, but punitive damages in an amount that staggers us. The payment of many millions – or tens or hundreds of millions – may be decreed. Of course the defendant will appeal and invoke any legalities that may help it (I'm assuming it's a corporation) from paying the damages – at least not as much as has been determined. So the plaintiff, who may have won the case, remains without compensation for the harm done him, and faces more time in court.

Settlements, of course, will sometimes, shorten the process. The problems with them are that the amounts paid are less and, after the lawyer is paid, may not represent adequate compensation for the damages and for the plaintiff's time and aggravation. Often moreover, the parties are not allowed to disclose the details of the settlement, in the hope that others won't be encouraged to sue in the hope of a windfall.

Another consideration is that the punitive damages may actually be excessive in relation to the harm to the individual, although it may not be small when damages to all of those affected are considered. It winds up as a windfall for the plaintiff and his lawyer – one that may not be warranted. It helps them, but not the public at large. It's not fair.

Can a better system be devised? Perhaps. I'm not especially concerned about corporations that have harmed our citizens and, although aware of the faults, would continue to do so because it helps their bottom line and they don't anticipate ever having to pay the piper – or at least not having to pay very much. (I must admit my view that some companies that are following the rules and are unaware of damage they do should be evaluate differently. I leave that concern for another time.) My unease is with those who feel they have been wronged. I realize that individual suits may be a form of extortion but I'm convinced that the greater fault is on the part of those who wronged them, if that is the case.

I also feel that a large payment for silence, or excessive punitive damages awarded to an individual because a jury is feeling its oats, or for whatever other reason, does not serve the public good, however much we may enjoy the fact that a corporation with deep pockets is being humbled. I am also troubled by the long delays which deprive the plaintiff of justice.

My lack of legal credentials, however, does not forestall me from making some proposals for dealing with this situation. I'm nothing if not all-knowing – even in areas in which I lack knowledge. And I also recognize the fact that at certain levels the rules are decided locally, reflecting local views rather than those of the federal government. If they are deemed reasonable and worthy, one or more of my proposals could be incorporated into state law. There are three areas that I want to address.

The first relates to punitive damages. They should go to the government – to all of us (for tax relief, improved government projects, aid for the needy). They are fines that should not go to the individual suing. Too much of it goes to his lawyer in any case. Decisions about punitive damages should be argued following a decision about responsibility and not be part of the initial findings of the jury, although compensatory damages may, as discussed below. Government lawyers should take over if an initial decision of guilt is made. They'll have more time and backing than the plaintiff's lawyer, and are better prepared to withstand the actions of an opposing corporation's staff.

The second area of note for me is that of compensatory damages. From my perspective they should be generous if the jury believes the defendant to be at fault. In addition to repayment for the actual offense, the following areas should be compensated (assuming they are not factors in that offense): time lost related to the offense itself and the legal actions that followed; legal expenses (and perhaps these should be specified so that they don't come from the overall settlement); embarrassment and damage to the plaintiff's reputation; anticipated future losses and costs likely to result from the wrong; and any other area that the jury considers appropriate. The threat of such damages and of government lawyers in the second phase of the action may convince the wrongdoer that, since there would be no consideration of punitive damages, a quick settlement, even if generous, would be less costly than protracted legal actions. (Of course if the jury decides that the suit was frivolous, costs should be paid by the plaintiff.) Class action suits would not be affected by these rules.

Finally there is the consideration of time. “Justice delayed is justice denied.” Trials should be swift. There should be short time limits set for consideration of the facts prior to trial, for appeal of verdicts, preparations for appeals since the one appealing will already know why he is dissatisfied, and any subsequent actions. At some point the awarded damages should be paid, irrespective of the stage of litigation. Whoever considers the decision unjust would have to initiate a new suit at that time, and the rules would be the same.

The purpose of such procedures would be to speed the judicial process and ensure the rapid payment of whatever is due – whether to the plaintiff or defendant. And it is aimed at the payment to the government of sums that will be available for costs that later result from the actions that prompted the suit.

If “deep pockets” are going to cover the costs of damages they've done – both to the individual and to society, and to pay them in a reasonable time, it may be appropriate to change the rules of “the game.”

May 25, 2017

Presumption Of Innocence

I have in my hand a list of 37 State Department employees who are members of the Communist Party or are fellow travelers.

            McCarthyism. Bad.

9 women have accused X of making the workplace uncomfortable.

           Accusations of sexual harassment. Good.

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He is running in the election against our president. He is an enemy of the state. Send him to Siberia.

           Political dissent. Unacceptable.

Burning the flag and your draft card. Fleeing the country.

           Political dissent. Laudable.

- - - - - - - - - - - -

Buying products made in China.

            Supporting a unfriendly government. Risky.

Buying American.

            Prices may be higher but it's for our own benefit.

- - - - - - - - - - - -

Supporting the Founding Fathers (bigots) and the Constitution (bigoted).

            You're a bigot too. (Acceptance of a contrary idea constitutes – requires – a label.)

Letting the president and supreme court decide what's in our best interests. They know better than we what's good for us. Forget Congress. They can't make up their minds anyway. They'll never pass the Taylor Swift act even though American lives are involved.

            You're a patriot.

- - - - - - - - - - - -

“I know you're an atheist but I pray for your eternal soul.”

           Hate speech. Bad.

Rape.

           Clearly a crime of love. Good.

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Stand for the National Anthem.

            Support for our country. Perverse.

Kneel for the same.

            Loyalty to justice. Opposition to fascism. Admirable.

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You may not agree with all these assessments. That's up to you. You have a right to your own opinion. You're free to express your own ideas. But you have no right to impose them on others. Sure, you have no sanction for harming another, but, as the German folk song says, “Die Gedanken Sind Frei.”

The American Constitution, which you may or may not support, includes this position, although there are different interpretations of what the guarantee means – especially when it seems to conflict with another right. Still, it's there. In the First Amendment. It's part of the basis of the American system of justice. As is the presumption of innocence until guilt is proved.

That's not the way it always works, however. The only swift justice we provide is a lynch mob.

I heard on the radio yesterday that Garrison Keillor was fired by PBS because he is alleged to have touched a woman in an uncovered part of her back. What part of her back was uncovered and why, were not disclosed, but Mr. Keillor claims that he was only giving her a hug of comfort at a time she was saddened. In an age where hugging is in fashion it's difficult to fault such an act. In any event, the System decided that no explanation or justification was necessary when they terminated him, and the media decided that the incident was newsworthy.

But that's the current Zeitgeist. Trials no longer are reserved for the courts but are the arena of politicians, the media, police departments, and the public. And the last category includes industry leaders, who fear the public relations and economic implications of association with someone tainted by public and media outcry. There has been a sudden rush to reveal past indiscretions – mostly the responsibility of others – which they feared to mention earlier. Skin contact is harassment, though I must admit that I shook a woman's (ungloved) hand once. It's important, as Mr. Keillor has learned, to find out what skin is off limits and if there are any exceptions. The presence of a duéna (chaperon) at all times would help to solve this problem.

A similar topic is dress codes. Men are justifiably accused of exposing themselves to attract a woman's attention. A woman may achieve the same goal by covering herself in alluring clothing – long splits in long skirts or none (needed) in short skirts, see through clothing, exposed undergarments (especially from Victoria's Secret), and clothing that emphasizes or discloses body parts. Women claim that they like the outfits, but they are designed (usually by men) to attract men's attentions. And if they are successful it is those wearing them who are being harassed.

Notwithstanding the long delays in the disclosures (by the way, as a child I was a liberal, though that is not true any more, since I want to distance myself from the left's predisposition to prejudice – especially antisemitism and Islamophilia), Ill take them at face value and support trial on the evidence (though it is hard to imagine what evidence apart from claimed personal recollections my be available decades after the incidents) if that is the wish of the involved parties, but if not, or there is no conviction, they should be presumed innocent (though it's hard to regain a reputation tainted by conviction in the press which, at times, acts as judge and jury). That's the way it is with most other accusations. And even if we suspect jury tampering or threats, if a court finds a defendant “not guilty” he is not guilty. And it's virtually impossible to get your name off the sexual offenders registry. (And the drunk drivers and bank robbers registries for that matter. Oh, wait. There are none.)

That's enough ranting about the specific. In general, however, my concern is that we get what we contracted for – swift justice and the presumption of innocence unless legally convicted of whatever it is that we are accused of doing. It may not get the press as much attention as current practices, but it's a lot fairer. We cannot correct the wrongs of the past with wrongs of the present. It's clear that society now encourages speaking out so that arguments in the future about not doing so will be less believable. And early trials, in the courts, are needed without overexposure in the press.

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I said just yesterday that the essays to follow would only be fragments, but the situation with Garrison Keillor was more than I could handle in a short note. I'll try to prevent the long- winded ones in the future.

November 30, 2017

The Suspension Of Disbelief By The Public

Women Claim Plumber Fondled Them

Cheerleader Accuses Star Quarterback Of

Making Her Feel Uncomfortable

Drug Clerk Charged With Groping By 23 Women

Suppose those headlines appeared in the weekly editions of mid-west papers. Would the stories be covered by the major media?

Women Claim Senatorial Candidate Fondled Them When They Were Young

Intern Accuses President Of Bedding Her

Numerous Women Reveal Sexual Demands of Billionaire Producer

How about these from major east coast organs?

We're titillated by the fall of the mighty and not interested in the human faults of the poor. The truth of the accusations is irrelevant.

Why are charges like these leveled by so many so long after their occurrence? One possibility is that at the time of the incident they were fearful and intimidated. Their willing participation would not have been well received if others knew what happened. Another is that the facts are not as they claimed or that they were the initiators of the interaction which they describe inaccurately. Or maybe they never happened.

But that doesn't account for the frequency with which they are leveled, and the eagerness of those purported to be victims to talk about them. And there are times when the accusations come at politically sensitive times – like just before an election Is it significant additionally that charges are often labeled against those with deep pockets?

It's likely that much of what they claim is true. That, however, doesn't account for the flurry of accusations coming out now. (It should be noted that there are no convictions, only accusations, but the politicians and the media have already tried and convicted those accused and they have made clear to the public what their judgment should be.) There is no question that wrongdoers should be punished, but in most states (but not all), while there is no statute of limitations for rape and violent sex crimes, there is a limit for bringing charges against someone accused of a lesser offense and, decades past the time of commission of the alleged offense, there is no remaining evidence (if there ever was any) of the crime. It's “He said, she said,” and the accusation can only serve to embarrass the one accused – often during a political campaign – serve as the basis of monetary litigation whether justified or not, demonstrate the claimed victimhood and virtue of the accuser, or simply serve as a cry for attention.

In all likelihood men, and male DNA, have not changed in the past few million years or so. Men have always been the sexual aggressors (though sometimes women have consciously provoked that behavior – I'll deal with the more complete issue of the sexes in a future essay) and the question that arises is why, all of a sudden, there is a rash of complaints. It could be that societal norms and expectations have changed, or it could be a political tactic, but it has now become common, and fashionable, to claim sexual abuse by someone famous. And the pattern is to accept the accusation – with or without confirmatory evidence – and reject any denials.

Our society has become sympathetic to the cries of women. And, perhaps justifiably, sensitive to all their needs.

And the press and politicians are playing it for all it's worth.

November14, 2017

Equal Justice

I heard on the radio about a woman who stabbed a man (her husband?) because he rejected her sexual advances. She was arrested, but released on $10,000 bail.

It intrigued me, and I looked on Google to see if there were any similar cases. Here is some of what was listed:

Cops: Woman, 26, Wielded Hatchet After Her Demands For Sex Were Repeatedly Rebuffed – It's dated June 28, 2016, and contains the following “... Free on $5500 bond, she is scheduled for a July 26 court hearing.”

Woman, 56, is arrested after she 'threatened a 25-year-old with a knife and a wooden cane because he rejected her sexual advances' Her bail was $3,500

Woman Threatens Husband with a Knife to Perform Oral Sex – She was sentenced to 90 days in jail after pleading guilty.

The details of these cases are not of interest to me. And while I have no reason to question the reports, I don't have independent verification of the facts. On the other hand, I suspect that there are other similar circumstances that are not listed in the online files. It seems likely to me that the incidence is under-reported. I doubt that many men would complain to authorities that they were forced by a woman to have sex. And I doesn't seem probable that they would do so with sufficient evidence for the woman to be arrested and charged.

As I mentioned, I'm not especially interested in what happened between the man and the woman. It's none of my business. But the criminal justice system is in the public realm and I pay taxes to support it (even if the offenses were in other jurisdictions), so I am more involved in that aspect of the situations. And I'm interested in the equity of the law and its penalties.

I remember, as well, the Bobbitt case. Although it took place in 1993, the story is hard to forget – a woman amputating her husband's penis because she “snapped.” His provocations were responsible for her state of mind. And because of the temporary insanity, she was found not guilty, requiring only psychiatric evaluation. While her husband's misdeeds may have – indeed, they almost certainly did – caused her to take action, her conduct, and that of the jury that excused it, raise questions. As does the penalty.

If a man, using a knife or a hatchet (or any other “persuader”), attempted to force his wife or any other woman to perform a sexual act, my sense is that he would not have been treated as leniently by the legal system. I am sure that his bail – if any were permitted at all – would have been considerably higher. And any incarceration would have been significantly longer. No mention is made of sexual predator status, but a man would surely have been entered in the sexual offender registry for life. It isn't clear from the articles that the women involved in these incidents suffered the same fate. Not even Lurena Bobbitt, who wasn't responsible for what she did (though if her husband had performed a mastectomy on her the result may have been different).

I have no intention of defending the men who have abused women, however they have done it. With or without weapons other than their fists. Abusive actions call for penalties. Severe penalties. And such actions are usually those of men.

Usually, but not always.

Do we treat women more leniently? It seems that way. Is it society's chivalry? Do we assume women can do no wrong? Sexual abuse of students used to be considered a problem of male teachers, until we learned otherwise. Men and women have differences, but many of them can be characterized by numbers – by quantity rather than quality. Women may be less likely to engage in abusive sexual conduct, and their sexual drives may differ in degree from men's, but we deceive ourselves if we deny their existence; we delude ourselves when we view women as if they were (what we believed were) the innocent damsels of the Middle Ages of whom we read. They were, and they are, people, and just as responsible for their actions as men.

It is fashionable, and has become so in part at the urging of women, to view men as insensitive boors responsible for all the ills we suffer. We have accepted that construct and assume that whatever has transpired, if there is any blame to be assigned, it is to the man. We have trained men to feel guilty all the time. Admittedly there are many who don't buy in, but at present it is “correct” to blame the man and let the woman off the hook. Women are in the majority but we treat them as a minority, and it is society's bias that the minority is being oppressed by the rest of us. So we grant them as many of the benefits of the law as we can, or create new laws to do so, while shielding them from its responsibilities. The scales of justice which, in the past, were weighted against them, now provide them with favor. We talk about equality, but we don't practice it.

We need to grow up. Society needs to mature. The time must come when we not only say that we are all equal, but we act that way. Perhaps some day we'll have, to paraphrase John Adams, a government of [equitable] laws, not of [women and] men. That doesn't seem to be the case currently.





September 22, 2016

Uneven Playing Field

It's sad, but it's routine. There are times when context is omitted and only pretext remains. It may be intentional or it may be based on ignorance, but in either case it may lead to misleading conclusions.

For example there is much in the media on the topic that “Black Lives Matter.” But so do brown and white and any other lives. The latter, however, are not the concern of some groups who emphasize police “racism” – the killing of innocent black men by white police. But American society has been racist for hundreds of years and the police often reflect society's views – even if only in a minority of cases. It shouldn't happen at all. The numbers are small, but one is too many. Mention is rarely made however of the numerous killings of blacks by blacks, or of the killing of whites by blacks. And the assassination of the police doesn't usually last more than one news cycle. But the protests of the killing of blacks by white police is usually extended along with the riots (and associated deaths), even though such tragedies are not common.

Portions of the incidents are often recorded on cellular telephones by witnesses who are presumed to be unbiased, and whose evidence is conclusive. These videos are often circulated on social media and “go viral” before any police report is filed, and the officer convicted in the public's mind before he has a chance to say anything. Indeed, police regulations regarding the release of information related to ongoing investigations may prevent him (or her) from defending himself publicly. And when the eventual trial comes (if the officer isn't indicted the community will protest loudly to the press) the memory of the officer, and his report, are attacked as self-serving and not to be believed. The report came long after the incident and the officer was under stress during the confrontation. They cannot be taken seriously. Only the witnesses are reliable, and only the evidence they present can be trusted.

As a partial solution of the problem the New York City Police Department will, next week, be outfitting its officers with body cameras to record such incidents. (It is also possible that knowledge of the cameras will lessen the number of incidents because those few who aren't following the rules will know that they are being monitored.) This policy, however, has provoked further protests and there are demands that implementation be delayed. For example, the ACLU and others insist that there be no viewing of tape by the officer before a report is written, and memory aided by documentation shouldn't be allowed. The previous regulation was written when officers had only their memories on which to rely. The memories were challenged. And (often incomplete) community videos and testimony were given greater weight than the assertions of the police. Now that memory can be aided there is the possibility that the video and the report will correspond. Memory will be more accurate and lawyers will have less opportunity to question it or to find a discrepancy between the written report and the video. Those using their 'phones have no restrictions of this sort and can select what they choose to film, what they submit to lawyers, and what they put on the internet. And when they do so.

Early recording would be helpful because it may provide documentation of what happened before the home-made videos were turned on to record the “unjustified” police violence. There has never been great concern about the videos submitted by “uninvolved” bystanders – what they included and what they omitted. What they contain is sufficient to convict. What happened prior to their being turned on is obvious. Now that the police may have cameras it is self-evident that they should be turned on at the beginning of the incident so that nothing is missed, and if it isn't, the entire recording is suspect. The argument seems logical, even though there had been no concern by protesters about what may previously have been omitted in the videos of “witnesses.” And there is no concern that stopping to turn on a camera at the very beginning of an incident may result in its intensification or danger to those involved.

What results is a protest against what should help in the proper function of the justice system. Whom does that help? The protesters, and the lawyers seeking either conviction of the police or large monetary settlements. Perhaps they are justified, but limiting the opportunity to obtain unbiased evidence is not the way to accomplish legitimate goals. Both the public and the police are entitled to a fair system and a level playing field.

April 20. 2017

Obeying The Law

If one person kills another, justifiably from his perspective, and perhaps ours, anticipating that he will never be caught, is he in violation of the rules of society?

If a small and honest entrepreneur decides against filing her income tax form one year because her fiscal position is tenuous at that time and it is unlikely that an audit will follow anyhow, should we look the other way?

If someone enters this country because he is unhappy with life where he is, and correctly determines that things will be better here, yet he does so without ever declaring his act to authorities, is he acting illegally?

Is the assault of a drug dealer a crime that justifies punishment? Suppose a close relative died of an overdose. Does that change things?

All four of the people whom I've described are acting illegally. We may be sympathetic with their motives, but they have all violated our laws as surely as those who act with malice and contempt of society's standards – at least with the standards of the United States. In that respect they are no different from those we designate as “common criminals.”

We all are swayed by “extenuating circumstances.” We all wonder what we would do in a difficult circumstance. We all would consider extending the benefit of the doubt in particular cases to the accused as we would want it extended to us were we in the dock. But by doing so we would be doing a disservice to our country and to our neighbors. We would be saying that only those whom we hate or fear, or who threaten us in some other way, should be subject to our laws and the penalties for violating them.

Yet they're all illegal acts, irrespective of the way we react to them. The violation most debated at this time is that of the “illegal immigrant” who may be a hard-working, tax-paying, generous, and helpful individual, but who entered the country contrary to our laws, or who overstays a legal limit. We're especially likely to be forgiving of the person who is law-abiding and a “credit” to the community. And if he or she has children born here we view it as an assault on “American values” to even suggest an impropriety. After all, we're all immigrants or the descendants of immigrants, and the “oppression” of poor immigrants is not “who we are.” In order to legalize their status, however, as is demanded by many, we must either suspend our concept of citizenship or pass legislation making their presence legal from the time they came: the first is an extra-legal ad hoc action while the latter as an attempt at a legal solution to the situation. But both are equally problematic, if not illegal themselves.

How is a protest rally, by well-meaning citizens, designed at forcing the government to look away any different from the decision of a dictator to ignore the corruption of his administration? Both require that we disregard our own laws and their violation by those whose actions we don't wish to punish. And passing legislation that declares that something that was prohibited in the past is now acceptable and a violator has not committed a crime, is an ex post facto law – which is specifically forbidden by the Constitution (Article 1, Section 9). We ordinarily think of such laws as ones that criminalize legal acts retroactively, but, as is noted in the Wikipedia article on the subject, “An ex post facto law (corrupted from Latin: ex postfacto, lit. out of the aftermath') is a law that retroactively changes the legal consequences (or status) of [any] actions that were committed, or relationships that existed, before the enactment of the law.” And the constitutional prohibition is clear, not a matter of interpretation. No Bill of Attainder or ex post facto Law shall be passed. There's no subtlety there. Some may view any change as a matter of amnesty, pardon, reprieve, or interpretation, but such a construction is simply a way to pardon ourselves from any responsibility for ignoring the law in favor of a current passion.

Favoring a “current passion” rather than the law, however, permits other actions, of equal doubtfulness, should passions change. And it cheapens the value of our laws in the eyes of those we want to follow them. We'd like mercy and justice to have identical paths, but that's not always the case.

The problem is not a simple one. Besides the consequences for individuals, there are also implications for society, the economy, education, and security among numerous others. It affects the way the world sees us and our status as we condemn lawlessness elsewhere. And it affects the perceptions of those who have “played by the rules,” even though veering from them would have been adventagious. A solution will have to be found, and it will be found one way or another. There are too many people involved. The soution will please many and offend many. It will please the “law-abiding” but illegal immigrants by legitimizing them, while offending those who are truly law-abiding and have waited patiently as they have gone through the tedious steps required by law; it will please those who have protested the current administration's stance, while offending those who favor the maxim of “a nation of laws, not of men” (John Adams).

The solution will be outside of the course we like to believe we take, but, at the moment, it is unavoidable. In order to move on without causing too much additional internal discord – some is unavoidable – a compromise position will have to be reached. And it should include mechanisms by which this or similar perceived disparities can be addressed in the future; ways they can be dealt with without having to violate our own laws

For it cannot be denied that, whatever the good will, the “illegal” immigrants are, indeed, here illegally.

Not Guilty

“Not guilty.”

That's all it takes. Perhaps, in the timeless words of Yogi Berra, “It ain't over 'til its over,” but now it's over. That verdict ends it all (like a statute of limitations). You may be guilty of murder or of whatever other transgression you were accused, in fact you may brag about your guilt, but you beat the rap. They can never try you for the same crime again, even if there is new and irrefutable evidence of your guilt. It's over.

There are many similar instances when, because of a single occurrence, some hazard has been removed. Paradigmatic of such a situation are the words of Numbers (35:9-12), which describes “Cities of Refuge” to which one who has committed manslaughter may flee, so as to prevent his own killing by a family member of the victim. Until he is within one of those cities he is fair game for retaliation, but after that he is safe from any revenge. He had been in a very dangerous situation, but was now safe.

Generally speaking, there are numerous cases in which an individual moves from an insecure position – perhaps even a dangerous one – to one that removes the doubt and the risk, though the risks are of widely varying degrees of severity. A letter offering a job or acceptance to college, for example, may be a cause for celebration providing security that, until that moment was lacking. In those instances, however, the revocation of that position, though dishonorable, is possible, as contrasted with double jeopardy. In the case of a jury verdict there's no going back. Perhaps other charges will be filed, but you can never be tried for the same crime.

The security of a refugee reaching American land, as opposed to the risks faced a moment before, when the possibility, if apprehended, of immediate return to the land from which he was fleeing, cannot be minimized. And the protection provided by a church or some country's embassy is absolute (more true historically than recently). Perhaps it is a manifestation of the idea of sanctuary. The dangers faced until then were no longer to be feared. Those who entered have reached their own “city of refuge.” Certainly a border between countries provides at least temporary protection from retribution for violation of the laws of the land just left. And the possibility of death by abortion, an immediate and permanent risk, yields to the protection of the law immediately upon birth.

But crossing the Rubicon has its risks as well. Passing the “point of no return” leaves the past behind, but there are times when it would be preferable to be able to return. Ask any investor who missed his chance to “sell high” when he had the chance, but didn't do so before the market went rapidly downhill, or lost his chance to buy when the market was low. The previous conditions may return, but in the meantime he has squandered the possibility for profits this time around.

And in the heat of an argument, who has not said something that he later regretted? Sadly, you can't take it back once it's left your mouth. A relationship that had, until that time, been flourishing, can be damaged forever. Indeed, the same result may follow a “Freudian slip,” even if no conscious malice was intended. When you've given yourself away, there's no way to convince the hearer that you didn't really mean what you said.

We have all experienced missed opportunities. We have all missed a sale or rejected a job. We have all been in the wrong place at the right time or the right place at the wrong. Life is full of lost chances. For the most part, however, a missed chance is only a delay. Chances reoccur. A miss may be as good as a mile, but a mile is finite. You can “go home again.”

That's not always the case though. Wars, for example, leave casualties. So do accidents. And some injuries cannot be repaired. They leave permanent disabilities. We sometimes try to be philosophical about the situation, but our protestations are hollow. The euphemists among us avoid talk of disability, preferring “different ability,” but that doesn't change reality. However much we may wish, we can't make it so. There are times when we can't go back.

But nothing is more permanent than death. And nothing is more to be regretted than an unnecessary death. However saddened we may be when a loved one dies of “natural causes,” it is many times harder to comprehend and accept a death that was avoidable – either from war or violence. Our Constitution tells us that our country was formed with several aims, and among them was to “provide for the common defence [sic].” The promised protection was against foreign powers, with the against home-grown violence left to the States. There are failures in both cases, and we grieve not only for those directly affected but also for the society that cannot accomplish all it has pledged to do.

When the government itself chooses to take a life, however, it is understandable that, for many, grieving isn't adequate. The Supreme Court has forbidden capital punishment under some circumstances, but neither the Court, nor the Constitution, rejects it as an option. Still, there are many who believe that the state has no right to take a life. (Usually the popular proscription is aimed at capital punishment rather than war, but there are also those who are conscientious objectors to any form of violence.) The arguments are both philosophic – killing is wrong, and practical – the state may get it wrong and kill the innocent.

The latter possibility – the execution of someone who is not guilty – is, in many ways, very similar to the first case discussed. Both involve court rulings and in both cases the results are irreversible, though they are opposites. In one case the state provides possibly unwarranted immunity and permanent protection, in the other death – a similarly permanent result, even if exculpatory evidence later surfaces. Not all irreversible status changes are desirable – especially in this instance. An executed innocent soul may never have caused harm and certainly never will, but a freed murderer may kill others.

“Que sera, sera.” But it's not always for the best. And when it's unalterable, the potential for great evil exists along with that for great good.

Bully For You

We are a society that is confused. We have conflicting views both about the value of life and the conditions that justify its ending. (The end justifies the end.)

And the confusion – or better the inconsistency of our views – is manifested in very contrary ways. There are those who cry out loudly at the possibility of abortion, while promoting the death penalty and supporting the gun industry, and others who favor abortion and assisted suicide but consider the death penalty as sanctioned murder. Of course, there are some who are more consistent in their outlooks, but they're not newsworthy.

The rewards for the killers of animals are often higher, and the outrage louder, than for humans. We've come to accept the death of our fellow men as usual. In times of war the body counts may be in the thousands or tens of thousands – and sometimes large multiples of these. Unfortunate, but c'est la guerre. And we, in America, rarely face war ourselves. We even pay “volunteers” to fight and die for us when a conflict arises abroad. We can express our views without any personal risk. Medals aren't that expensive.

War at home, however, is more chancy for the average citizen. According to the New York Times (not the most reliable of sources, but I'll leave that for another time): “Murder Rates Rising Sharply in Many U.S. Cities.” And the murderer is often caught, but that presents us with a new problem – what do you do with him (or her)? What should be the penalty for murder? In 2007 the United Nations (like the Times, quite unreliable despite our hopes) called for a moratorium on the death penalty (Resolution 62/149). According to Wikipedia (itself not the most reliable of sources, but you get the point) there are 102 countries that proscribe it entirely, with an additional seven countries that only permit it for war crimes. Nonetheless, there are still 87 countries around the world that permit it under some circumstances. The majority of our own states still permit it, although many of them have not practiced capital punishment in recent years. (And the Bible permits it for certain offenses.)

But the reality – that of the existence of capital punishment – raises the question of whether it should be practiced at all. Some family members of individuals murdered would forgive the killers, but the majority are less understanding. Whether they seek vengeance, or simply justice, they call for the punishment – often the execution of those who have taken their loved ones. And they fear the possibility that the killer will one day escape or be released, or that he will murder again either in the prison or outside.
However there are many who believe that the government should not be involved in killing people, and that our tax money should not be used to support such a practice. They argue, quite convincingly, that there are inequities in its application, plea bargains by those who can afford good lawyers, and there have been instances when innocent people have been executed. Their primary solution to these problems is imprisonment – often a life sentence without the possibility of parole. That, in their view, is more humane. 

But is it? Or is it cruel and unusual punishment? What would be the perspective of a twenty-year-old who knew that he would die in prison after years of abuse by other prisoners and by sadistic prison guards? Would the prospect of fifty years of bullying affect the thinking of someone who already felt guilty for taking the life of another person? And if he preferred to die, would we let him? We may favor assisted suicide in general, but might prohibit it in this instance, believing that our government should play no part in the taking of a life. (Only the free are entitled to kill themselves.) Not only that, but there are many who would argue that lifetime imprisonment with no hope of anything but solitary confinement or bullying is fitter punishment of a murderer than letting him off the hook immediately. Perhaps this perspective contributes to the frequency, by murderers, of “suicide by cop.”    (Admit it.  You're opposed to the death penalty because you think that life in prison is crueler, and more deserved.)

The pragmatic, discarding emotion, may balance the costs of lifetime imprisonment and execution, remembering that the latter, if not the former, would be accompanied by years of appeals – some mandatory – placing a great burden on the judiciary. It would be cheaper not to seek, try, or punish murderers, and that would also eliminate the possibility of convicting the wrong person. If the family suffered because of the lack of closure it would be a necessary and acceptable forfeiture on their part to favor the economic and ethical needs of the community. As would the losses suffered by the families of additional victims of murderers. And there is plenty of room for debate over whether the possibility of capital punishment has any preventive effect on future crimes.

It is too much to expect anyone to view all killing as wrong, or to caution against any. War will always exist as will the call for defense, rather than turning the other cheek.  For both soldiers and civilians we allow murder, and even encourage it, during war.  (We cannot forget the firebombing of Dresden and other cities, the atom bomb, and the refusal to bomb the tracks to Auschwitz, in addition to the straightforward killing of enemy combatants.)  Whether abortion is acceptable will also remain a subject of debate as will euthanasia and suicide. But remaining blind to the justifications, various implications, and results of particular kinds of killing is not a service to the community. 

 And, when dealing with individuals convicted of murder, "sensitivity" and "understanding" are not always services to them, or to the families of those murdered.

Next episode: “Love And Marriage” – And all the variations thereof.

Silence

It is hard to excuse silence in the face of injustice, but not so hard to understand it.

Silence as a (lack of) response to injustice has three roots: agreement, apathy, and fear. The situation that has brought this to mind at this time originates in the Middle East, but it has spread far beyond that area, and now has world-wide implications. More specifically I am referring to “radical Islam,” and its effects on its moderate coreligionists. We're always left with the questions of whether moderate Muslims actually exist and, if they do, why they don't speak out to condemn the violence their brothers and sisters initiate.

Whenever there is a discussion of terrorism, wherever it may occur, note is made of the fact that the perpetrators are almost invariably Muslims. Very often the victims are as well – especially in Muslim countries – but almost irrespective of the site of the violence, those who support it find a way to attribute the cause to Israel and to the Jews. And they succeed in this strategy because there is widespread belief – by some in virtue of Islamic teachings and by others in any tactics that are focused on the Jews. For thousands of years people have been taught to hate and fear Jews whom they view as representatives of the devil and to whom they attribute all varieties of evil. Killing them is simply fitting, and it's also a method of survival.

For somewhat less time, but still centuries, Muslims have been in agreement with such a philosophy. Their theology included “toleration,” but also taxation and subjugation of “The People of the Book,” a category that included Jews and Christians. However in the last hundred years they have emphasized actions against the Jews, primarily because there were too many Jews in a land they considered part of their demesne. (It is also important to note that the various strains of Islam also harbor ill will against each other because of historical and doctrinal differences – ill will that is often the cause of violent hostility.)

But anti-Semitism has existed away from Muslim lands for a long time and it persists even today. Perhaps it reached a peak during the Holocaust, but the underlying antipathy can be found in many lands, often disguised as “anti-Zionism” so as to make it more acceptable and give it a patina of social acceptability – even virtue. People living in safety have no difficulty in faulting those they hate, especially when that group may be in peril. They can afford to be arrogant, condescending, and “holier than thou” without facing any personal hazard. (BDS is an example of such bias disguised as an act of justice. Proof of prejudice – which, of course, they deny – is the fact that their policy is only applied to one country.)

For the most part, however, people just don't care. As the Charlie Hebdo incident is now demonstrating, with increased numbers of accusations of intolerance against the cartoonists who worked there, it is easier and (a lot) safer to blame the victim than to face the criminal. After all, the violence doesn't affect them and it's none of their business. It was admitted by Reverend Martin Niemöller: “First they [the Nazis] came for the Socialists, and I did not speak out because I was not a Socialist. ...” That was the first line of a “confession” that ended, “Then they came for me, and there was no one left to speak for me.” The apathetic, those who have their own problems and don't want to get involved, may themselves wind up as victims of the injustices they ignore.

But fear is the main reason people don't speak up. When you see unchecked injustice all around you it takes immeasurable courage to draw attention to yourself. Members of the press fear for their lives. If moderate Muslims don't condemn violence, it is because they fear becoming victims of it. I believe that the vast majority of Muslims are “moderates” (though current Muslim teachings may place a greater emphasis on low tolerance for difference than is found in other religions), however they are moderates who, like the victims of their coreligionists, live in fear. In a way they are like the American Jews who, during the Second World War, often hid their religion rather than speaking out for the victims of Hitler. They were afraid. There was much anti-Semitism in the United States and they feared feeding it.  I understand their anxiety, although it had catastrophic consequences.

There is a fourth cause of silence, economics, but that can usually be subsumed under the rubric of fear. It can be exemplified by two cases (though there are doubtless many others): the media's willingness to report stories in a manner favorable to the government of the country in which they work, lest they be exiled from that country, and a government's support for the existing regime in a land providing them with goods and resources that they cannot get elsewhere, or it would be prohibitively expensive to do so.

I have mentioned the Holocaust, Nazis, Hitler, and anti-Semitism. There are many who believe that invoking those images cheapens them. I understand their concerns. But it is remembrance of the Holocaust and its outcome that gives me hope at a time when the Middle East appears to be in a death spiral. The German people were complicit in the Shoah, but most of them today seem interested in going the way of tolerance. During the war the vast majority were silent about the injustice all around them. It took a thorough licking to rid them of their rulers and get them the freedom to cast off their tolerance of intolerance, but their more recent actions suggest that they have done so. The intolerance has long existed in them and others, but the tragedy of the last century may help them, and others, learn to control it. It will never be gone completely because our parents, teachers, friends, and clergy will continue to teach us this evil lesson, but it is more out in the open and subject to discussion and condemnation. The answer to the abuse of free speech is more free speech, and the answer to abuse of justice is justice, aided by free speech.

Perhaps it will take a licking of radical Islamists to restore justice to the region. And it will certainly take a reeducation of those who teach hatred – especially the clergy. But the Holocaust showed us it can be done. It was at great cost, but it was done. And silence is not the answer.

Social Socialism

“Good job, Charlie Brown.”

It used to be “You're a good man, Charlie Brown” but now everyone is complimented for doing a “good job.” It doesn't matter what the job is or how well it's been done, there is nothing more important than building up the self-esteem of whomever you're praising.ⁱ Everyone's a winner. And everyone will receive a certificate to prove it.

We're all equal. The Founding Fathers said we were so we have made it an article of faith.ⁱⁱ Whether or not we recognize it to be true – in terms of physical characteristics, intellect, social status, and the like – we pretend that it's the fact, and we take issue with those who may feel otherwise. Even if their evidence might be convincing.

We are so intent on making everyone equal, and making sure that we do not offend them with the implication that they are anything less, that we have invented a language inoffensive to anyone, and supportive of everyone. We're hoping that we can replace bias with respect by altering what we say to words that will instill within us a positive view of all around us. It's our wish that by eliminating unwanted words we can rid ourselves of unwanted thoughts.ⁱⁱⁱ The Constitution may delegitimize censorship by the government, but society has made us censor ourselves. And if we do not do so, those who hear our words will certainly make our error evident to us.

So to a degree, for example, we assuage our own guilt^iv and cater to the wishes of Blacks by calling them “African Americans,” even if that term is inaccurate.^v,vi And we guarantee minorities and other oppressed groups equality by providing them with perks denied to those not in “protected classes.” We have substituted equality of results for equality of opportunity,^vii and that has become the new American Way, whether or not it corresponds to the intent of the Founding Fathers.

But the decision to legislate protected classes means that those not so defined are unprotected. Me, for example. I'm Jewish, however past prejudice against the Jews which permeated American society for so long, and current (increasing) anti-Semitism, require no apology or preference.^viii So I don't look for them. I'm not in a protected class.

Surely there were problems with our founding documents – and, in terms of our legal system, I'm referring to the Constitution – their correction is supposed to be by amendment, not fiat. Thus slavery and the three-fifths of a person clause were eliminated by such action. But when a favored philosophy is not matched by amendment, it becomes the resolve and the responsibility of Congress or the courts to correct the situation.^ix

A good example of this approach is Affirmative Action. In 1961, President Kennedy, in Executive Order 10925, prohibited the use of federal funds for projects unless there were provisions to “take affirmative action” regarding the hiring and employment practices for the projects with an aim of ensuring that they are free of racial bias. Since that time, by the acts of Congress and the decisions of the courts, the thrust of the idea shifted from one of preventing racial bias, to the positive act of ensuring minimal quotas^x for members of particular protected classes. There has been no Constitutional Amendment dealing with this problem, but that has not stopped our judges, Congressmen, or the President. Not all have favored the conduct as practiced,^xi but the various departments of government have not been shy about weighing in on the matter, even while proclaiming that equality^xii and justice^xiii are American characteristics. An unfortunate (though unintended) result of the practice is that some students assume that any member of a protected class benefited from preference received due to membership in that class and would not have been admitted otherwise.^xiv The most gifted of minority students, therefore, is often viewed as having received a free pass. It's a less than ideal way of ending bias.

And, in a way, it's not in keeping with the Constitution, common law, or American ideals either. We value property and, Robin Hood notwithstanding, we don't endorse taking the property of one person and giving it to another. We call that theft. But that's what taking a college admission or any other award from one more deserving and giving it to one less so – in the interests of diversity, self-esteem or whatever – boils down to. “Theft” is a rather strong word, but this kind of redistribution so as to promote “equality” or some other social goal is the equivalent. It's taking from one and giving to another. It's socialism.

Whether that's good or bad is not the issue. But it is an example of the philosophy that the end justifies the means. It is proof that in front of every silver lining is a cloud. Charlie Brown may have done a good job, however it is not clear that we're following his example. Unless we've reached the point where we place too little value on merit, but too much on feelings.

Next episode:  "Day Of Unrest" -- The evil good does lives after it.

I        It's usually a child who is being praised – whose fragile self-image requires strengthening.

ii        Actually, that's a bad term. We don't want to violate the First Amendment by suggesting that we believe anything. Yet “equality” is difficult to prove, and scientific proof is acceptable while faith, which is, after all, a religious concept, is unconstitutional.

iii       It worked in Oceania.

iv        Over the slavery that ended a century-and-a-half ago, and over the prejudice that has persisted.

v        Someone who has moved from Capetown to Cape May is an African American, irrespective of his race. The definition both devalues the language and misleads. If our intent is to identify those who are descendents of African Blacks, we should say so. One of the reasons for such labeling is discussed below.

vi       In addition to the example used, we have also rendered our language genderless, corrected Columbus's error by correcting the term “Indian” and replacing it with “Native American,” and, in general, condemned the use of “hate speech.” That speech is usually considered anything that someone doesn't want to hear.

vii      It is not enough that everyone can participate in the race; everyone has to be a “winner,” whether last or first. The one who reaches the finish line first is no better than the one who is last, and can take no special pride in his accomplishment – an accomplishment which we have devalued. His self-esteem is less important than that of those who are less talented.

viii     I really should be protected however. If an individual who had one Black grandparent (or less) is considered an African American for the purpose of benefits, it is clear that membership in a protected group relates to the genes inherited from one's predecessors. For some purposes, women are protected and half my ancestors were women. And if that's not enough, I'm a descendent of “Lucy” (No, not Charlie Brown's friend) so (at least) one of my ancestors was African.

ix       At least in their view. The “Women's Rights” amendment may not have passed but we have already found ways to accomplish some of its goals.

x         In the past, quotas were used to exclude. Now the opposite is the case.

xi        See Regents of the University of California v. Allan Bakke, 438 US 265, which took issue with some of the methods used by the U of C in choosing among candidates. Nonetheless it upheld the principle of affirmative action.

xii       In this instance the equality is clearly of results, not opportunity. Bakke was rejected while minority candidates with lesser qualifications were accepted in the interests of “diversity.” The reason given was his age – Bakke was in his early thirties and age discrimination was acceptable at the time. The courts decided that in his particular case admission was warranted, although the concept of affirmative action was not overturned.

xiii      The form of justice that says that everyone should get more (of whatever) and the rich should pay for it. That's fair, isn't it?

xiv      And having been told all their lives that they have been doing a good job, and that they are winners, the idea that they might have less than a 4.0 GPA is unacceptable. It's the professor's fault, not theirs.