The Arrest, Caused The Arrest

It is critical to understand that it doesn't matter that the ultimate cause of death was cardiac arrest... because it was the positional asphyxia and the lack of treatment and the 8 minute delay after falling unconscious before receiving any kind of intervention, that were the proximate cause of, and  resulted in, George Floyds death. Had Floyd not been improperly restrained and negligently mishandled while restrained, he would not have suffered cardiac arrest.

Yes... The ultimate cause of death was cardiac arrest. The proximate cause of the cardiac arrest, was the positional asphyxia and lack of appropriate response to it.

The official autopsy findings did not contradict or counterindicate that. They simply noted that the ultimate cause of death was cardiac arrest, and that there was no indication of TRAUMATIC asphyxia... meaning his hyoid bone wast broken, and he didn't have ocular or facial petechiae or distinctive contusions indicative of violent manual or ligature strangulation for example.

Choke holds and other restraints which may occlude or obstruct the airway may or may not produce these signs, depending on technique, body positioning, and whether the subject violently resisted.

Side chokes and "sleeper holds" for example... effectively a large part of what happened to Floyd (the other part being suppression of respiratory function by compression of and heavy weight remaining on, the chest and back)... occlude the blood vessels to the brain, but do not break the hyoid bone, and generally do not produce distinctive bruising or petechiae.

Oh and Kelly by the way, is the number one instructor for EMS services EMTs and paramedics, in the country. He actually literally wrote the book... in fact, several books... on how EMS should respond to cases like Floyds.

Literally everyone's ultimate cause of death is cardiac arrest... the question is what caused it... and in this case it was the arrest that caused the arrest.

The only thing I will say about the Casey Anthony case

The not guilty verdict was correct based on the case presented. The system, as it is, worked properly.

Oh and by the by, lying to the police should not be a crime (defrauding the police is one thing, but simple lying... 5th amendment issue).

The prosecution failed to even make any serious attempt to conclusively prove that the primary charged crime was even committed (other than lying, obstruction, and evidence tampering of course; but those were not the primary charges).

They failed in this, because they had no real evidence of it. Their only case was to basically say "isn't this awful. It has to be her fault. No-one would do this unless they were a horrible awful person and she should pay for that".

Frankly, the charges never should have even been brought. They knew there was no way they could prove them before they ever filed. They filed based on the political pressure form the aftermath of the "missing child search"; and they were counting on the jury hating the defendant so much they ignored the lack of evidence.

That didn't happen.

Frankly, that is a common prosecution strategy; particularly with black defendants in majority white areas, drug users, accused child molestors, and women they can paint as "sluts" or "bitches". Push the "mommy" and "morality" buttons on the jury and give them enough horrible crap to process that they just want to punish somebody.

But that isn't good for justice. It's a strategy for winning, not for finding the truth, or protecting the innocent. It's a strategy that has put a lot of innocent people in prison.

And it didn't work this time.

Did she kill her child... I don't know. It seems likely, but not certain. There are certainly credible alternative theories; though the most likely is that she did. If she did, did she do it intentionally? I don't know... I can't even say it seems likely. It's possible, but entirely uncertain.

That, by definition, is a not guilty verdict on the charges presented.

The system worked.

This is good and makes sense...

And therefore will never be done.



He missed one major part. In addition to all the organic reasons things broke this bad, in this way; he neglected to mention that a big part of it, was people making the laws for the benefit of themselves and their allies, and people exploiting the laws for their own benefit... mostly lawyers, but also accountants, environmentalists, bureaucrats etc...

They represent a permanent constituency for the broken legal system, and prevent it from ever being fixed; because fixing it would reduce their power, control, and income.

"Correcting" the so called "Corrections" system

As of today, it should be clear to everyone in this country, that our system for dealing with criminals (I won't call it a "criminal justice" system since justice has so little to do with it), is utterly broken, beyond any conventional concept of repair.

At this point, again I say, it should be clear we can't just "fix it", we need to start over again, with a different concept.

I have a radical idea.... how about this time we start with an HONEST concept... because right now we are anything but honest about what the real function of the "criminal justice" system is; and that dishonesty is what has made all our efforts to date fail miserably.

Today, although we will never admit this to ourselves publicly, there are three things keeping the "Corrections" system going:

1. It's a jobs program for law enforcement and "corrections" officers, and administrators
   
2. Non-offending people ARE actually safer when offenders are imprisoned (the problem is, what happens when they get out).
   
3. The punitive principle.

We like lots of cops (or at least the IDEA of lots of cops), we want to be "safe", and we feel that people who do bad should be PUNISHED.

That's really what it comes down to though, is punishment.

Punishment isn't SUPPOSED to "help" them. Punishment isn't supposed to "rehabilitate" them.

The very term "department of corrections" is a hypocritical misnomer.

Americans (and to a large extent most other cultures), put people in prison to punish them, not to "fix" them.

"Correctional system", "penitentiary"... All high minded hypocritical myths.

The reason "Sheriff Joe" "Americas Toughest Sherrif" is so popular (despite being the worst sort of self aggrandizing, corrupt, civil rights abusing scum) is because he reassures people that he is "punishing the bad guys"; and THAT is honestly what people want.

Eastern State Penitentiary, the first "modern" penitentiary style prison, was deliberately fashioned to resemble monks cells (which is where we got the name for inmate housing units), in the belief that isolation, contemplation, prayer, and penitence (thus the name), would reform criminals into decent men. It was held up as the new "humane" model. In reality it drove prisoners mad and they killed themselves, and each other, in droves.

So long as we refuse to acknowledge the true purpose behind "custodial sentencing" and pretend it has anything to do with the offender coming out better on the other side, we are stuck with what we've got (And rapidly getting worse).

We have to stop pretending that punishment does anything but feed our base emotions.

We have to stop pretending that the negative prospect of prison is sufficient to deter criminals from committing crimes. Most criminals by nature have a poor appreciation for consequences, poor impulse control, and an inability to make valid risk/reward calculations.

When you put a criminal away, all you are doing is warehousing him where he can't commit that crime anymore. That does serve a valid purpose, but it costs a huge amount of money, and doesn't fix the problem.

The so called "criminal justice" system can no longer serve as a jobs program for law enforcement, lawyers, administrators, and corrections personnel; nor can it simply be warehousing of offenders until we release them to commit their next offense.


So, here it is, really simple; my pie in the sky ideal for how to deal with crime and punishment.

Step 1:  drug addiction, possession, use, and sale, must be decriminalized 

This has to happen for ANYTHING to have any hope of working. That would eliminate something like 80% of the offenses in higher criminal courts, and drastically reduce prison populations (at least 40%, most likely something more like 80%).

Step 2: We must not only stop, but revert the proliferation of felonies

Right now, you can be convicted of a felony in some states, for as little as selling the wrong kind of fish at the wrong time. We have established a ridiculous number of offenses as "high crimes" (what felonies are intended to be); without any real justification or social purpose, except to inflate those whom the state can claim as convictions, claim higher punitive penalties from, or incarcerate for longer periods of time.

Accordingly, all crimes currently classified as felonies must be reclassified as misdemeanors unless they meet one or more of the following conditions:

1. Physical violence sufficient to cause grievous bodily harm, grievous trauma (such as rape and molestation), or substantial risk of loss of life (or more).
   
   
2. Physical or monetary damages equal to or greater than two years income at minimum wage, presuming a 1940 hour work year.
   
   
3. Crimes against basic human rights, including terrorism, tampering with courts, deprivation of rights etc...
   
   
4. Grave harm to the national security of the united states, including espionage and treason.
   
5. Criminal negligence, gross indifference, coercion, conspiracy, or fraud sufficient to cause the above.
   

Step 3: We must completely overhaul our punishment and societal protection model

We must eliminate custodial sentences for non-violent crimes, including felonies, unless those crimes involve:

1. Gross negligence or indifference leading to violent consequences or the loss of life (anything from drunk driving to greater liability issues)
2. Coercion, force or fraud causing damages in excess of five years of minimum wage (because this is effectively slavery for the victim)
3. Special circumstances which are considered "heinous" (more on that later). 

We must restore the element of criminal intent into how crimes are charged and sentenced. If there is no intent, then there can be no intentional crime; only crimes of negligence or indifference, which are generally considered far less severe.

In this regard, any action taken while intoxicated or impaired should be considered qualifying, HOWEVER only if criminal damage or injury to others results.

I believe that people should be allowed to drink, swallow or smoke whatever they want, but if their choices cause impairment which then causes damage or injury to others, they should be punished SEVERELY; and crimes involving impairment should be considered intentional for purposes of determining severity. 

Also for purposes of determining the severity of an offense, coercion or fraud shall be considered equivalent to force (force being defined as violence, or the threat of violence).

All other criminal offenses should be punished by restitution and compensatory and punitive damages to the victim, compensatory and punitive fines to the state, labor for public benefit, public humiliation, and two years of convict status (which can be reduced by order of a judge only after discharge of all obligations).

Further, on discharge of all other obligations, convicts shall be given a term, of "probation" equal to the length of their existing sentence.

The crimes, sentences, and photographs of all those convicted of criminal offenses should be published in all local newspapers, as well as on local and national web sites; and announced on local television.

All convicts should be required to wear a distinctive article (bracelet, necklace, ankle bracelet etc...) which lists their crime and sentence, and which cannot be covered up while in public.

Convicts must wear this article, until such time as their sentence and obligations have been discharged. At any time, the convict should be legally required to disclose their crime and sentence to anyone who asks; unless doing so would cause danger or disruption.

If a convict is able to earn more than a state mandated minimum wage in their private pursuits, they may continue performing them, and pay restitution and fines directly. If not, then they are directed to work for the state, at a competitive wage for such jobs as they perform, while meeting prevailing employment standards for such a position (i.e. if the only job they qualify for is ditch digger, it's the only job they can get; and they still have to compete for it with non-convicts).

If the convict is unable to meet basic standards of work, or is unwilling to work, then they will be reduced to menial forced labor at minimum wage. If they refuse this, they will be incarcerated, as a regular inmate, for the term of their sentence.

Restitution, damages, and fines should of course be directly garnished from the convicts wages; but should be considered pre-tax income deductions for tax purposes. 

All custodial sentences shall have terms of two, five, ten, twenty five years, or life (or death in states that allow it).

Different charged offenses can be combined consecutively to "stack" sentences; but only if those offenses make up separate criminal acts (if one crime involved 8 different chargeable elements with a 2 year sentence for each, then the convict would recieve 8 two year sentences to run concurrently. If he committed the same crime on 8 different occaisons, he could recieve consecutive sentences, for a total of 16 years incarceration)

There is no parole, however sentences can be reduced (more on that later).

Forcible rape, aggravated sexual assault, sexual molestation, aggravated kidnapping, intentional premeditated or depraved homicide (what would be first degree murder in most jurisdictions), felony murder if the homicide is heinous by itself, any intentional negligent or depraved indifference crime resulting in mass death or mass grievous injury (mass being defined as multiple victims who were not individually targeted, or multiple victims who were unknown to the criminal and whom they had no individual an personal motive to harm), any crime involving tampering with a court or an election, any crime involving the intentional deprivation of an individuals basic human and civil rights (as enumerated in the declaration of independence, and the constitution), torture, espionage, treason; or any attempt to commit those crimes, or conspiracy to commit those crimes; shall all be considered "heinous crimes".

Heinous crimes should all carry the maximum length of incarceration, and should be eligible for the death penalty in jurisdictions that allow it.

It is important however, that all state and federal laws about the definitions of these crimes must be clarified and harmonized to meet the highest standard of criminal act, and criminal intent (for example, a potentially but not explicitly sexual element to a simple assault - such as public nudity or forced nudity -, would not make it sexual assault. The intent and act must be sexual in nature, and involve sexual contact or acts, or attempted sexual contact or acts. Forcible rape must be limited to actual acts of physical violence, or coercion by threat of violence, resulting in a sexual act).

Oh and yes, I really do believe that voter fraud and election fraud should be punishable by life in prison. So should criminally preventing someone from voting who has the lawful franchise. Any criminal deprivation of rights should be considered as serious as rape or murder. 

In addition to their custodial sentence, of course, all penalties that apply to non-custodial sentences would also apply. Restitution, damages, fines and fees, as well as all other conditions of convicts.


Sentences can be reduced, by a judge, on review of the case, and circumstances. A review will be automatically initiated at the time the convict discharges their restitution, damages, and fines, should they do so before the term of their incarceration is completed. Criminals convicted of heinous crimes however, would not be eligible for early release except for humanitarian reasons.

While serving a custodial sentence and incarcerated, unless disabled and unable to do so, the convict will be required to perform productive labor for at least 8 hours a day, five days a week; for which they will be paid at minimum, a base sum equal to the cost of their incarceration (for which they will be charged). They will also accumulate sick leave benefit, and paid vacation days, equivalent to a government employee of the same grade as whatever productive labor they perform.

If the convict is disabled and unable to perform any work, they will be given the same disability status as any disabled individual; and will receive the equivalent of all federal and state disability payments and benefits, to offset the cost of their incarceration.

The convict is to be given the opportunity to voluntarily learn useful job skills, and perform at a useful job at market rates, which can earn them money to pay their fines and restitution.

If the convict has useful skills which can be applied to work that can be performed within the terms of their incarceration without undue risk, this is to be allowed. 

The convict is also to be offered the opportunity to work overtime, and earn more money; to be used to pay the cost of their incarceration, their fines and restitution; the balance of which should be the inmates to control as they see fit.

This should not imply the inmate has a right to any job other than basic labor paid at a rate sufficient to cover the cost of their incarceration. Only that the opportunity to seek and perform other employment must be allowed.

If a convict refuses to work, or does not meet minimum standards of work, they are to be restricted to solitary confinement without public exercise, visitation, or communication privileges (excepting legal and spiritual council), and reduced to subsistence ration. Additionally, any work day the convict refuses to work, the cost of their incarceration for that day will be added to their obligations.

Some of this may seem ridiculous (vacation days for convicts?) but it serves an important purpose. The convict should understand, they are performing a job, for pay. They benefit from their own labor, and they have to pay for their own upkeep. If they work harder or more or at a better job, they get ahead; just like everyone else.

This kind of normalization is really the only way to produce people who won't reoffend when they get out. Get them useful job and life skills they can transfer to the outside world; and get them in the habit of meeting standards of behavior; you'll see a huge difference.

Any convict caught committing any felony while incarcerated will be subject to immediate extension of their sentence to life in the case of non-violent felonies, or death in the case of violent felonies. Self defense (against ANY crime or attempted crime against them, not just murder) is considered a valid defense against such charges however.

On their release from custody, convicts will be liable to the same penalties and strictures as those who have received non-custodial sentences.

Any further felony committed by any felony convict, whether incarcerated or not, prior to the discharge of any and all obligations (fines, restitution, service or labor), or in the convicts "probation" period will result in an automatic custodial sentence of at least five years; even for offenses that would not normally carry a custodial penalty.

Any violent felony committed prior to the discharge of any and all obligations shall result in an automatic custodial sentence of life in prison, or death.

On the discharge of their fines and restitution, and completion of any service or labor requirements, and any probation period; all convicts shall have all their civil rights restored, including the right to vote, and the right to keep and bear arms.

Private employers may discriminate against convicts, even after their obligations have been discharged, should they choose to do so. The federal, state, and local governments however may NOT discriminate against convicts whose sentences have been discharged however, except for those convicted of Heinous crimes (who should, in general, not be released anyway) or in the case of employment in law enforcement, criminal justice, corrections, national security, or the military. 

Any repeat offense of the same felony, or any violent felony by a convicted felon who has discharged their sentence, shall cause a convict to be considered an incorrigible offender, and subject to an automatic sentence of 25 years, life, or death at a judges discretion (25 years for any crime that would normally rate a sentence less than 25 years. Life for any crime that would normally rate 25 years. Death for any heinous crime, or crime that would normally rate life). As always, this is subject to review and reduction by a judge after the convict has discharged their obligations (excepting heinous crimes).

I call this the "one chance, don't blow it" rule. I believe it is fully justified, because the nature and scope of felonies is being dramatically reduced; the standards for offense are much higher, and the ability of someone to reintegrate into society without re-offending should be much better under this regime.

That's it. Not exactly simple, but a lot less complicated than our current system... and if anything can work, it ought to be this.

Yes, the Second Amendment really means what it says... and that means you too Chicago

This past Monday, Samuel Alito, writing for the majority (with separate concurring opinions from Clarence Thomas and Antonin Scalia) in the case McDonald vs. City of Chicago and Village of Morton Grove; handed down what in 30 years will I believe, be held as one of (or perhaps half of a pair of, or the second in a series of) the most significant rulings in the courts history, not just for the right to keep and bear arms, but for the rights of all people in this nation.

I had meant to get this post out yesterday, but I had to take the time to read the entire opinion... all 214 pages of it... and think about it for a bit.

This judgment is notable, both for what it does, and for what it does not do; and I want to go into that in some depth... and I want to go into some of the background and issues surrounding the decision that aren't necessarily about the right to keep and bear arms

However, that is going to get long.... and if you aren't interested in constitutional law and the nature and exercise of the rights and powers of the states, it's going to be boring. There's only so much you can do to make enumeration and separation of powers issues over more than two hundred years, all that interesting.

Note: Also, for those of you who DO closely follow con law, this is going to be a gross simplification in some ways. I don't have time to write a book here, and a book is what it would take to cover this comprehensively (actually several... there are a few out there already, and Heller and its progeny are sure to generate more).

At any rate, I'm going to break it out into another posts, and I'll update this post with a link when I finish the other one.

... I should warn you, I'm already 5,000 words in, and I'm probably less than half done...


McDonald vs. Chicago is the first major gun rights case brought before the supreme court under the clarified Heller doctrine, to wit:

The right to keep and bear arms for all lawful purposes is an individual right, possessed by all citizens and lawful residents of this country (provided this right has not been statutorily stripped from them, with due process of law); and the core of that right, is the fundamental right to defense of self, and others.

Actually, McDonald is a bit more than just "first"... In fact, the case was prepared in advance, and filed immediately on the handing down of the Heller ruling; by the lead counsel on the Heller case, Alan Gura.

The issue at hand in Heller was to affirm and clarify the basic right; something which those on the left in general, and in the gun control lobby in particular, had been trying to deny for something like the last 40 years.

Note: The modern gun control movement as currently constituted really began in the late 60s; roughly coinciding with accelerating decay of civil order and rise in civil unrest, the rise of the drug and counterculture, and dramatically rising crime rates.

More than anything else, it was the assassination of Robert Kennedy, and Martin Luther King that kick-started the gun control movement as it exists today.

The gun control movement in the U.S. as a whole has its roots in racial discrimination against immigrants in the pre-civil war northern cites, and blacks in the post civil war south.

Up until the late 1950s, the left as a whole actually advocated gun ownership, as a bulwark against the state... a position generally ascribed these days to the "far right"; but as the left post 1932 increasingly BECAME the state, their position on civilian non-police gun ownership changed.

The issue at hand in McDonald is substantially identical to Heller, with a crucial difference we'll discuss in a moment; that of incorporation of the second amendment against state and local governments, as other rights enumerated in the bill of rights have been.

In Heller, the substance and nature of the right were affirmed. However, though the assertion of the right is very clear; it's application is potentially limited.

Because the Heller case pertained to a federal enclave (Washington D.C. is not a part of any state. It is a federal enclave. Precedent in DC cases applies federally, but not necessarily to issues in the several states), the ruling only explicitly applied to the federal government.

In principle the right could be asserted against the states, or it could not be... depending on judicial interpretation. Either way a judge decided, it would almost be certain to be appealed... as indeed it was (in at least four cases so far, all of which were delayed pending the McDonald ruling).

Also, Heller left various questions open to interpretation, such as the standard of review for laws pertaining to the right to keep and bear arms, and whether interest balancing tests could be made.. or for that matter just what types of laws would be acceptable short of outright bans on firearms in the home (which were explicitly forbidden).

In Mondays decision on McDonald, it was affirmed (quite strongly), that the rights protected by the second amendment are equal in stature to the rights protected by the first amendment, and all the others.

In both the majority opinion, and the concurrences, the court made it explicit that the protections afforded by the second amendment applied against the state. Further, they made it clear that a strict standard of review was to be applied to any law regarding the right to keep and bear arms (though they do not by any means disallow all regulation. In both Heller and McDonald, it is acknowledged that some regulation of any right can be acceptable, but must be strictly scrutinized).

There is still one set of questions to be resolved, what exact restrictions against keeping and bearing arms will be acceptable under this standard of review. Just as there are many limitations against speech permitted by current jurisprudence, including many which probably should not be allowed under the constitution (such as most of what is called "campaign finance reform"); there will likely still be substantial restrictions allowed by the court. In any case, it will be years... likely decades... before the whole issue is settled law, and in the mean time, there will be a lot of contradiction and chaos.

The fight is certainly not over... in fact it's really just getting started.

This is where we get into the theoretical discussion about the constitution, so I think I'm going to end here and pick it up in the next, much longer, post.

Modern Jurisprudence is PROFOUNDLY Broken

Two contrasting stories out of the Supreme Court today, that bring home the fact that jurisprudence in this country is profoundly... hopefully not irreparably... broken.

First, from the New York Times:

NO MORE LIFE SENTENCES FOR MINORS WHO HAVEN'T MURDERED.... In yet another 5-4 ruling, the Supreme Court said this morning that incarcerated minors can't receive life sentences if they haven't killed anyone.

By a 5-4 vote Monday, the court says the Constitution requires that young people serving life sentences must at least be considered for release.

The court ruled in the case of Terrance Graham, who was implicated in armed robberies when he was 16 and 17. Graham, now 22, is in prison in Florida, which holds more than 70 percent of juvenile defendants locked up for life for crimes other than homicide.

"The state has denied him any chance to later demonstrate that he is fit to rejoin society based solely on a nonhomicide crime that he committed while he was a child in the eyes of the law," Justice Anthony Kennedy wrote in his majority opinion. "This the Eighth Amendment does not permit."

The Eighth Amendment, of course, prohibits cruel and unusual punishments.

Justices Alito, Scalia, and Thomas dissented. Chief Justice John Roberts also sided with the minority, though he agreed with the majority on the specific case of Terrance Graham's fate.

In Justice Kennedy's majority ruling, he made note of the "global consensus" against life-sentences for youths who haven't committed murder. The sentence will likely enrage the far-right, which tends to throw a fit when justices take note of international developments.

In a concurrence, Stevens, joined by Ginsburg and Sotomayor, threw an elbow at one of their colleagues: "While Justice Thomas would apparently not rule out a death sentence for a $50 theft by a 7-year-old ... Court wisely rejects his static approach to the law. Standards of decency have evolved since 1980. They will never stop doing so."

and in a complete reversal of logic, this judgement:

AP: High Court: 'Sexually Dangerous' Can Be Kept in Prison

WASHINGTON (May 17) -- The Supreme Court ruled Monday that federal officials can indefinitely hold inmates considered "sexually dangerous" after their prison terms are complete.

The high court reversed a lower court decision that said Congress overstepped its authority in allowing indefinite detentions of considered "sexually dangerous."

"The statute is a 'necessary and proper' means of exercising the federal authority that permits Congress to create federal criminal laws, to punish their violation, to imprison violators, to provide appropriately for those imprisoned and to maintain the security of those who are not imprisoned by who may be affected by the federal imprisonment of others," said Justice Stephen Breyer, writing the majority opinion.

President George W. Bush in 2006 signed the Adam Walsh Child Protection and Safety Act, which authorized the civil commitment of sexually dangerous federal inmates.

The act, named after the son of "America's Most Wanted" television host John Walsh, was challenged by four men who served prison terms ranging from three to eight years for possession of child pornography or sexual abuse of a minor. Their confinement was supposed to end more than two years ago, but prison officials said there would be a risk of sexually violent conduct or child molestation if they were released.

A fifth man who also was part of the legal challenge was charged with child sex abuse, but declared incompetent to stand trial.

The 4th U.S. Circuit Court of Appeals in Richmond, Va., ruled last year that Congress overstepped its authority when it enacted a law allowing the government to hold indefinitely people who are considered "sexually dangerous."

But "we conclude that the Constitution grants Congress legislative power sufficient to enact" this law, Breyer said.

Justice Clarence Thomas dissented, saying Congress can only pass laws that deal with the federal powers listed in the Constitution.

Nothing in the Constitution "expressly delegates to Congress the power to enact a civil commitment regime for sexually dangerous persons, nor does any other provision in the Constitution vest Congress or the other branches of the federal government with such a power," Thomas said.

Thomas was joined in part on his dissent by Justice Antonin Scalia.

It seems clear to me, that both of these decisions are examples where justices are deciding a case based on what they want to do and finding a way to justify it, rather than a considered opinion of the law and the constitution.

In the first case, the majority came to what I believe is the right decision on constitutional ground, but for what appear to be the wrong reasons. The minority on the other hand are supporting an unconstitutional practice, based on pragmatic considerations.

In the second case, the majority supported a CLEARLY unconstitutional practice for pragmatic reasons; and the minority dissented based on the constitution.

Both cases however, highlight a major problem with our "justice system" today: We can't deal effectively with our criminals, our prisoners, or our prisons.

There are many reasons for this of course, but what it comes down to, is that there are too many crimes, too many criminals, and too little honesty in how we deal with either.

Both of these cases are about recidivism. The plain fact is, more than 40% of people who go to prison, go back. More than 60% who go to prison for violent crimes go back. More than 80% who go to prison for sex crimes go back.

There have been a number of attempts at dealing with these difficult facts; none of them effective, and most of them unconstitutional.

In the case of the criminals under 18 being imprisoned for life because of sentence enhancements... The problem here isn't that it's a 17 year old in prison for life for something other than rape or murder... Its that "sentence enhancements" even exist at all.

Firstly, I think the whole "global consensus" thing is not only irrelevant, but dangerous and unconstitutional (interpretation of American law should ONLY be based on the Constitution, and the constitutions of the several states)

Yes, the law evolves, and yes it is influenced by changing moral standards, which is influenced by world culture.

When we wrote our constitution, it was in large part based on principles inherent in English common law; as was the early constitutional scholarship and interpretation until we built up our own body of case law. The goes further back to the greeks, romans, even the Assyrians. Certain basic principles of law and justice are universal; or have filtered up through from the earliest formalized conceptions of both rights, and laws.

However, it is important that case law be consistent with the written constitution; and that any case law which is not be ignored in interpretation of future cases, and hopefully be reversed.

If the American people want to change their constitutions, they can. There is a mechanism for that. Until they do, there should be no other arbiter for American law than the constitution.

One of the fundamental principles of jurisprudence is that the law should be knowable, and predictable; not arbitrary and capricious. One should not need to follow "evolving moral standards" and case law in other countries, to know whether one is violating the law.

In a system where ignorance of the law is no defense, the law must be written and knowable. The fact that in todays world it is not; is not an indication that we have evolved morally, it is an indication that modern jurisprudence is profoundly broken.

All that said however I agree that the law in question should have been struck down, just for a different reason.

I believe that "sentence enhancement" conditions are themselves a bad thing. They are invalid and unconstitutional as far as I am concerned. A crime is a crime, and one should be punished the same way for the same crime, as everyone else.

Certainly, there can be special circumstances, but they shouldn't increase punishment; a maximum punishment should be set, and that's it. There should be discretion for judges to reduce sentences, but not to increase them. Three strikes laws, hate crime enhancements, all of them need to go.

The problem that three strikes laws are intended to solve (high recidivism rates), is more properly addressed by longer or more harsh initial sentences, combined with better rehabilitation and reintegration efforts, and a better running of our penal system.

In the second case, we again have an issue of inappropriate sentencing.

Genuine sexual predators (rapists, molestors etc..) need to be put away for life without parole, or they need to die (though I have grave reservations about the death penalty). Either way, they need to be permanently removed from society.

For some reason, we treat sex crimes as far less serious than major property crimes, or other violent crimes; as if rape were not every bit as serious as attempted murder (believe me, it is).

Some things require ultimate sanction, and serious sex crimes are among those things.

On the other hand though, we now classify the most piddling things as sex crimes. Right now, we have hundreds of 18 and 19 year old young men in prison around this country, for having consensual sex with their 17 year old girlfriends (somehow, we almost never imprison older young women for sex with teenage boys). We make people register as sex offenders for having consensual sex in the back of their cars in a parking lot...

Which just reinforces the point: We're broken both ways. We are far too harsh on one side, and far too lenient on the other; and just plain broken all the way around, because a sentence doesn't mean what it says it means.

The very idea that a state official can simply decide you are too dangerous to be let out of prison, EVEN THOUGH YOUR JUDICIAL SENTENCE IS OVER... It's disgusting. It's abhorrent to the very nature of our country, and our constitution.

Three strikes laws, sentence enhancements, sex crime laws... All are seriously broke; because they are attempting to deal with practical problems, in an impossible way. You can't achieve the goals they're trying to achieve, with the techniques and tools they are using.

We're broken. We need to fix it. We need to protect society from real criminals, real dangerous people, real evil people; and we need to provide a strong incentive for the "casual criminal" (and we are all "Casual Criminals" now). But we need to do it, without destroying what it means to be American.

In order to do this, we must first reduce our prison population, not by releasing the truly dangerous; but by DRAMATICALLY slashing the amount of people we imprison (both today, and in the future).

The first thing we need to acknowledge, is that the so called "war on drugs" has not only failed, but was wrongly conceived in the first place.

Imprisoning people for drug use simply does not achieve the goals it is intended to achieve. It doesn't reduce drug use at all. It doesn't reduce crime at all, in fact it increases it. It turns people who might otherwise be productive... or at least LESS of a drag on our society; into total dependents. It frequently makes them into "harder" criminals.

It just doesn't work.

Frankly, I think we should entirely decriminalize drug use and possession; even if we choose to maintain prohibition on importation, sales, and distribution.

Then there is the question of the proliferation of felonies... Damn near everything is a felony these days. Two students in Virgina were charged with felonies last year for THROWING SNOW BALLS. Schoolchildren have been charge with felonies for drawing pictures with guns in them...

Felonies are supposed to be reserved for "high crimes". Those things which must be punished by long term removal from society.

Does anyone really believe it is necessary to send someone to prison for two years, for serving hotdogs wrapped with bacon out of a cart (yes, that is a felony in several jurisdictions in this country).

The fact is, we classify far too many things as felonies, which simply should not be. We need to eliminate most of those felonies.

What it comes down to, is that we should reclassify most non-violent felonies as misdemeanors, and eliminate custodial sentences for them; substituting EXTREMELY HIGH fines, and supervised restricted release (ankle bracelets etc...).

Combined, that would reduce our prison population by more than three quarters immediately (the drug changes alone would cover 60%). This would allow us to deal with the remainder of that population more appropriately. More harshly for those who need it, and with a higher focus on rehabilitation for those who are willing to make the effort.

Importantly, it would allow us to eliminate early release for those who have not made serious and genuine rehabilitation efforts; allowing prison officials and judges to exercise discretion appropriately.

Perhaps when we no longer have to be so concerned about overcrowding, and inappropriate early releases, and imprisoning those who should not be; we can restore some sanity to the system as a whole.

But that's all related to the practical issue.. The pragamatic justice as it were..

The bigger issue here, is that under todays conception of jurisprudence, it is impossible to know or understand whether you are breaking the law or not. Whether your crime is a felony or not. Exactly what that crime might be, or what the punishment for it might be.

That isn't law, or justice; and it isn't what our country is supposed to be.

Wisdom that applies to more than just the topic at hand

Watch this:

And this closely related topic:

Politicians, judges, and the rest of us caught in the middle

This past holiday weekend, one of my cousins was pulled over in a drunk driving checkpoint in Florida. Not being an idiot, he was of course sober; and there was no probable cause for pulling him over, questioning him, or performing a field sobriety test.

The courts, in their infinite wisdom, have decided that this is not a violation of ones fundamental rights.

They are wrong; but they have been so wrong, so often, that this is frankly unremarkable.

A discussion about his being stopped started on his wifes facebook page, as she vented her frustration at the unjust stupidity that is represented by checkpoints.

A friend of theirs who is a cop chimed in, and the discussion got interesting (the names have been modified to protect the guilty, spelling and netspeek have been corrected, and irrelevant comments to the core conversation have been snipped):

Cousins Wife: my poor baby got stuck in a dui check point on the way home from a long day at work! =( stupid cops!

Officer Tom: I hate those pigs...always ruining everyone's fun...

Cousins Wife: Well of course not you Officer Tom

Officer Tom: The cops don't set up roadblocks unless politicians tell them to by the way. Its all good, our roadblock didn't go through.

Minarchist Chris: Yep, it's more like "stupid, constitution abusing, nonrights respecting public servants with delusions of being public masters", not "stupid cops".

Officer Tom: You've had a bad experience with a cop or two so all of them must be assholes...brilliant!

Minarchist Chris: Actually no, I generally love cops. I'm Boston Irish, and I've got literally dozens of cops in my family. I'm also a former law enforcement trainer.

I wasn't talking about cops. better than 90% of all cops are genuinely driven by their desire to serve the public, or at worst are just doing their jobs.

I was speaking of the politicians, in uniform and out, who believe that they are a separate, privileged class, and that peoples rights don't count when it comes to their desires, their need for control, or their convenience.

Those, and the small percentage of cops who have a militant "the public is the enemy" mindset (unfortunately, in my experience that mindset is growing, and current training regimes and institutional culture are reinforcing it) who enable them to become oppressive so easily.

Officer Tom: My bad... I meant "right on!

(my aside: Cops are so unused to having non-cops on their side in this sort of argument that they often get reflexively defensive)

Minarchist Chris: It doesn't matter why you become a cop. If two years on nights (or a month of court duty) doesn't cure you of whatever idealism you had, there's something wrong with you.

What matters, is why you stay a cop...

There are three reasons to stay a cop; one good, one bad, and one indifferent:

1. The pay and benefits don't suck if you know how to work the system, and your department is good about overtime.
   
   That's the indifferent. Some days it's all that puts feet on the street though, and that's important.
   
   
2. You get great satisfaction in helping people who need help, and in doing bad things to bad guys.
   
   That's the good. The one that keeps you REALLY showing up, not just retiring in place.
   
   
3. You get off on exercising power over others, and the "perks" of the blue wall.
   
   That's the bad. That's how cops become criminals.

Every cop who stays a cop, has some measure of all three motivations in them. You need it to keep going, doing that hard a job, taking those risks. Otherwise, like I said, you quit, burn out, or you just retire in place and serve out your time until you get your pensions.

The problem is when they get out of balance, and when politicians take advantage of that imbalance to further pit the police and the non-sworn public against each other for their own benefit.

Meanwhile the judges stand by, effectively making and changing law as they see fit... how are cops, or everyone else for that matter supposed to keep up?

The answer of course is, they're not. That's the way "the system" works, or rather doesn't work. That way everyone is guilty, and everyone can be controlled (Ayn Rand had a point there).

The more cops are isolated, separated, and alienated from the non-sworn public; the easier it is for politicians to get them to enforce bad laws, which give the politicians (again, in uniform and out) greater power and control over EVERYONE.

Officer Tom: Damn... I hate cops too, I swear.

I Will Not Obey

As I have said here before, I am a senior technical executive at a large bank.

As it happens, a bank that was forced at gunpoint, by the secretary of the treasury and chairman of the federal reserve, to accept TARP funds (as all the top surviving banks in the U.S were).

Let me be clear. We did not want TARP funds, or need them; but were told in no uncertain terms that we WOULD take them.

As obscene as that is, it is irrelevant to what follows; excepting that we did take TARP funds.

The United States House of Representatives recently passed a blatantly unconstitutional bill, placing confiscatory tax burdens on anyone making more than $250,000 and working for an institution that received more than 5 billion of TARP funds.

The bill was in theory specifically addressed at the false outrage over retention bonuses paid to AIG executives; and is targeted only to their bonuses.

In theory.

Of course, this would be an unconstitutional bill of attainder, which wouldn't pass even the most cursory constitutional challenge; so it was re-written to be broader.

Broader of course means more people would be affected, and congress would be given more power to steal more money.

In fact, if you read into the implications of the bill; it could be used to levy a 90% tax on any income over $250,000, earned by any family making more than $250,000 per year, where either spouse is employed by an institution that received federal "bailout" funds.

It appears that the Senate, and the Obama administration are cold on the bill and that it will not pass, or be signed into law if it did.

I do not earn that much money; nor do my wife and I earn that much together (though in the next few years it is entirely possible that we will).

However, I have something important to say.

If congress should pass any such bill, and the president sign any such law, I WILL NOT OBEY IT.

I will not allow congress to tell me how much I can earn. I will not allow them to take my income because of the actions of others. If they attempt to make me do so by force, I will resist with force.

I will most likely die in the process, which I regret; but at some point a line must be drawn. The constitution must be respected, or it is meaningless.

Congress can make no law that is unconstitutional on it's face. If such a law be passed, it is the duty of the president to repudiate it; and it must not be signed. If such a law is signed, it is the duty of the agents of the government to refuse to enforce it. If the agents of the state attempt to enforce it, then they must be resisted with force, at all costs.

Anything less is submission to tyranny, and the diminution of citizens, to subjects; or worse.

I have made clear in the past that I would resist police abuse of the constitution. I will resist congresses abuses no less. I will resist the presidents abuses no less.

Agents of the state cannot exceed the legitimate authority of the state. When they do so, they are criminals, and they must be resisted as criminals.

Normally I do not advertise where my lines are; but congress is now in the midst of a tantrum of self indulgence, overconfidence, and hubris not seen since reconstruction.

Nancy Pelosi, Harry Reid, and Barack Obama, are pushing our nation headlong into tyranny and ruin; and decrying those who resist as racists, or reactionaries; simply for not wanting to be serfs.

I would suggest that we petition for the impeachment and prosecution (for conspiracy to deprive every resident of the united states of their civil rights) of any congressman who voted for such a bill; but I know it would do no good.

Government must be made to understand, WE WILL NOT TOLERATE SUCH ABUSE.

We will resist.

We will revolt.

We will not be made subjects, serfs, or slaves.

Some VERY good advice

Straight up, NEVER talk to any investigator for any reason, even if you think it will help you. You are wrong.

If you don't speak, most of the time, they can't convict you (guilty or innocent).

If you DO speak, most of the time, they WILL convict you (guilty or innocent).

EVERYONE is guilty of something. EVERYONE. Talk, and they will find it. Don't talk, and they may find something, they may not; but talk and they WILL find SOMETHING... ANYTHING to convict you of.

I'll say this flat out, I believe that every person in this country is guilty of a federal or state level felony. It is almost impossible not to be, because of the way the laws are written.

If a prosecutor wants to convict you, they're going to find SOMETHING.

DON'T SAY A WORD except, "I'm sorry, I will not answer any questions except my name without an attorney".

John Adams

Let all become attentive to the grounds and principles of government, ecclesiastical and civil.

Let us study the law of nature; search into the spirit of the British constitution; read the histories of ancient ages; contemplate the great examples of Greece and Rome; set before us the conduct of our own British ancestors, who have defended for us the inherent rights of mankind against foreign and domestic tyrants and usurpers, against arbitrary kings and cruel priests, in short, against the gates of earth and hell.

Let us read and recollect and impress upon our souls the views and ends of our own more immediate forefathers, in exchanging their native country for a dreary, inhospitable wilderness.

Let us examine into the nature of that power, and the cruelty of that oppression, which drove them from their homes. Recollect their amazing fortitude, their bitter sufferings, — the hunger, the nakedness, the cold, which they patiently endured, — the severe labors of clearing their grounds, building their houses, raising their provisions, amidst dangers from wild beasts and savage men, before they had time or money or materials for commerce. Recollect the civil and religious principles and hopes and expectations which constantly supported and carried them through all hardships with patience and resignation.

Let us recollect it was liberty, the hope of liberty for themselves and us and ours, which conquered all discouragements, dangers, and trials. In such researches as these, let us all in our several departments cheerfully engage, — but especially the proper patrons and supporters of law, learning, and religion!

Let the pulpit resound with the doctrines and sentiments of religious liberty. Let us hear the danger of thralldom to our consciences from ignorance, extreme poverty, and dependence, in short, from civil and political slavery. Let us see delineated before us the true map of man. Let us hear the dignity of his nature, and the noble rank he holds among the works of God, — that consenting to slavery is a sacrilegious breach of trust, as offensive in the sight of God as it is derogatory from our own honor or interest or happiness, — and that God Almighty has promulgated from heaven, liberty, peace, and good-will to man!

Let the bar proclaim, "the laws, the rights, the generous plan of power" delivered down from remote antiquity, — inform the world of the mighty struggles and numberless sacrifices made by our ancestors in defense of freedom.

Let it be known, that British liberties are not the grants of princes or parliaments, but original rights, conditions of original contracts, coequal with prerogative, and coeval with government; that many of our rights are inherent and essential, agreed on as maxims, and established as preliminaries, even before a parliament existed. Let them search for the foundations of British laws and government in the frame of human nature, in the constitution of the intellectual and moral world.

--John Adams,

"A Dissertation on the Canon and Feudal Law", Boston Gazette, 1765

When Police Behave Criminally

I want you to watch something:

http://www.youtube.com/watch?v=m3GstYOIc0I

This is one of the clearest examples of criminal misuse of "less lethal" force that I have ever seen.

I watched the video; the kid shouldn’t have been tasered. No way that was a justifiable use of force. The security officer didnt use any escalation protocol, and it seems to me (and this is me talking, I’m FOR sensible profiling) to be a clear case of profiling; combined with an overreacting undertrained campus cop.

I may be wrong on this, but I believe that the UC system campus cops are in fact sworn law offficers in California; and also that in order to lawfully carry a taser in California you have to be certified in it's use, including escalation of force training.

Actually, I believe the Cal state standard uses "continuum of force" training, which is intended to emphasize the de-escalation of conflict;in addition to minimizing the use and degree of force.

The proper response to a beligerent subject is to follow a force progression/escalation protocol. They vary from organization to organization, but would typically look something like this, in escalating order of threat/response:

1. Verbal
a. Polite command
b. Strong command
c. Close Physical presence and strong command (optional)
d. Moderate physical reinforcement of command (including a hand on a shoulder or something similar, optional)

2. Physical restraint, compliance, or control technique (arm bars, wrist locks etc...)
a. Restraint of a subject by hand
b. Use of a compliance device in a restraint, compliance, or control technique (come alongs, batons used for compliance)

3. Use of direct physical force to provoke complaince through pain, with or without a device (striking with a baton, striking sensitive areas of the anatomy etc...)

4. Use of a less lethal pain complaince device such as pepper spray, stun baton, or taser (
May be used in some protocols before the use of direct physical force such as batons)

5. Use of lethal force

Now, if officer safety is ever in question, it is acceptable to progress to a higher level of response; but it did not appear that either the officer was in any way threatened; nor, other than beligerence was the victim (and yes, that's what he was), non-compliant. He was exiting the building, and reacted beligerntly to the officer putting a hand on his arm; however this is not even close to grounds for the officer to feel threatened, or to escalate their response.

They tased the guy four more times while he was on the ground, and clearly presented no threat. Even if he was beligerent, repeated tasing was inappropriate. They could have very easily subdued him (by that time there were four officers completely surrounding him) and restrained him if they believed there was really a threat.

They repeatedly tased him for refusing to stand up; when in fact many people are unable to stand after being tased, and certainly after being tased repeadetdly.

Not only that; but if you believe someone is a threat, you do not order them to stand up when you have them surrounded and subdued (that would simply give them greater opportunity to injure an officer), you have them lie flat on their stomach with their hands clear, and you restrain them.

The officers then repeatedly told the victim to stand up, and stop fighting them. At no time was the victim physically fighting back, or threatening the officers; he was merely beligerent and non-compliant.

Even if it isn’t profiling; this guy has a serious Barney Pfife problem. He shouldnt be allowed anywhere near any kind of weapon.

Some security officers are taught that Tasering isn’t all that serious; if they’re taught anything at all. They are dead wrong.

http://anarchangel.blogspot.com/2005/12/less-lethal.html

Less lethal force is never really a good option (it's there so you can avoid having to shoot someone, not simply for officer convenience); and because it’s “less lethal” or worse “non lethal”, lots of people think it’s acceptable to use it in situations that have not reached a significant level of force/compliance escalation.

Since the rise of electrical and chemical "less lethal" force response technologies and methodologies has become popularized (mainly in the last 15 years); the escalation of force beyond the verbal/simple restraint phase has skyrocketed. If this were simply because the "less lethal" technologies had given officers another option less serious than the use of a baton or a gun; then one would expect a corrseponding decrease in the use of those levels of force; however not only is there no decrease, there is a huge increase.

We grant the police a conditional monopoly in the use of legitimate force to enforce civil order; in exchange for the guarantee that they will behave lawfully, and enforce the law legitimately.

When the lawful representatives of the state excercise legitmate authority, they are protected under the law and by the full force of the state. When those agents act with no authority, or illegitmate authority, they are no longer granted the protection of the cloak of state.

These officers should be stripped of the protections offered them by the state; and should be prosecuted for assault with a deadly weapon. Quite simply, what they did was criminal; and it should be treated as such.

Yes, I know cops have a hard job. I train cops all the time, and I have quite a few cops in my family. Yes I know that they put their safety, and their wellbeing on the line every day. Yes I know they get huge amounts of stress and aggravation from the worst people in the world, who they deal with every day.

None of that excuses criminal behavior; or treating every person they meet like a criminal, or like the enemy.

The police have a monopoly on legitimate force against civil crimes; but when that force, or the authority they use that force with is illegitmate, they have commited a crime themselves; and they must be punished for it.

Quis custodiet ipso custodes?