I suppose a good place to start is with some background information about why I suggested this thread, and what I envision for it.
As many of you now know, I'm back in school, law school, and am struggling through my first year of classes. I've thoroughly enjoyed the experience, and, as I said to many, find the whole subject both interesting and challenging. While much of the material I'm learning doesn't lend itself to this sort of discussion forum (I think it might be boring to many), the issues I'm grappling with in criminal law seem more applicable to discussion within a general audience.
Now, in advance, I want to state that there are many people out there in Moteland who both understand and know more about the topics I've been dealing with than I do. I'm a novice, and I make no claims to greater understanding than most of this community, but I think the issues are quite fascinating, and, as I said in the Suggestions thread, touch on areas that matter to many people living in a modern, liberal society.
I also, quite unabashedly admit that I want to discuss some of the topics I propose simply because I am working them out in my own mind, and will benefit from debating/discussing them with many of you. I welcome both your ideas for general topics related to law, and to your support in the coming discussions.
MsIt
3. MsIvoryTower - 2/24/2000 9:37:46 AM
Here's an issue to get us started:
What is the appropriate mental state necessary to commit a 'crime'?
In the American legal system, evolved from English laws and traditions, a basic principle behind the state's right to punish is that only men (women) who are blameworthy (in some way) should be punished. This idea is captured in the phrase "guilty minds, guilty acts". That is, one should not be punished for a crime unless one had the intent to commit it. However, while this is the guiding principle, there are exceptions to the rule.
For instance, statutory rape laws require no intent or mental state to be punishable. If one has sex with an under age child, one is punishable, even if one didn't know the person was under age: even if one has been mislead to believe otherwise. Here the act carries a strict liability level of culpability: you do it, you're guilty, no matter what the circumstances.
Another exception is with laws designed to protect the public welfare. If you're a drug manufacturer, and you mistakenly label a shipment of drugs (say over the counter), and distribute them, there is no defense. You break the laws, you are guilty.
What do you think of these two principles? Do you find them contradictory?
If you don't, when do you think exceptions to the guilty mind, guilty acts principle are valid?
4. Dantheman - 2/24/2000 9:46:04 AM
MsIT,
I suspect traffic violations also fit into the types of laws where mental state is irrelevant (e.g., it doesn't matter whether you intended to run through a stop sign, or even if you knew whether the stop sign was there). This discussion will probably show many more such examples.
5. MsIvoryTower - 2/24/2000 9:48:08 AM
[If you're wondering what happened to #2, I plead guilty to ignorance wrt this moderator thing, and ended up double posting without knowing it.]
One final thing, my time is a bit limited, so if I don't respond to comments please be patient, I'll try not to ignor anyone's contributions.
6. MsIvoryTower - 2/24/2000 9:51:13 AM
Danteman,
I think you're correct. Of course, the theory behind strict liability for those transgresssions is that we don't punish by taking away a person's freedom, we fine them, or annoy them into compliance.
The issue of strict liability for acts with serious consequences (imprisonment for lengthy periods) is a bit more controversial, IMO.
7. ChristiPeters - 2/24/2000 10:10:52 AM
Well, I'll take a stab at the statutory rape one.
As I understand it I see the burden is on the adult -
1. To know what the heck they are doing before they have sex. Know your partner well enough to know their age, even if they lie. It's not all that hard to check out and you don't really have to have sex with that hottie you met an hour ago (or a day ago, or a week ago). Your hormones may be screaming at you, but an adult should be able to control themselves anyway.
2. Be the responsible one when faced with a child that is not controlling their screaming hormones. It doesn't matter that the kiddo wants sex - they are not going to get it. Yes, you can say "no" even if you really want it just as much as they do.
Now (1) and (2) have as an underlying assumption that sex is bad for kids when the relationship is uneven in regards to power. This is something that most people can agree on if the kid is 5 or 7 or 10, but gets fuzzier the closer the age gets to majority and the narrower the gap is between the "adult" and the "child".
Is sex with a 30 yr old bad for a 14 year old? How about a 22 year old and a 17 year old? This is a whole 'nother argument. Right now, our society defines child as less than 18 (in most states) and adult as 18 or 21 and older.
In light of the psychological evidence to date, I think it is a good law. Perhaps it can be tweaked a bit - say lower the "age of consent" or put in something to make age gap something to be considered - but I don't think there is an awful lot of injustice going on as a result of this law. Any grey area cases can be taken care of with prosecutorial adn judicial discretion. So I'd leave it alone.
(Of course I have had ZERO law classes, so throw your pound of salt in with my opinion &:oD)
8. bubbaette - 2/24/2000 2:39:44 PM
ignorance of the law is no excuse, or so they say.
Hi MsIt. Long time no see.
9. ChristinO - 2/24/2000 3:36:24 PM
Congratulations MsIT and great to see you!
I'm going strictly from memory here so please anyone with the facts correct me.
I believe the age of consent for sex in most states is 16. When I was in highschool that was mitigated by a five year age gap until the age of 18. IOW two 16-year-olds could have sex or a 16 and a 20-year-old but a 21-year-old would be busted for statuatory rape because of the five year age difference.
This seems pretty reasonable to me since an 18yo is legally an adult but certainly not so much older than a 16yo that undue advantage is an issue.
I don't know if the law has been changed but within the last 20 years it was legal for a 15yo girl in South Carolina to marry as long as she had parental consent. The implications behind this allowance are really kind of icky.
10. ChristiPeters - 2/24/2000 3:53:49 PM
Christin -
I'm sure the ages vary from state to state. I was just tossing out made-up examples. The age thing is different depending on what you're talking about. A state could allow driving at 16, first drink at 18, and age of consent for sex be 14. I'm not saying any states actually have those specific ages for those things, but there's nothing I know of to stop them.
11. ChristinO - 2/24/2000 4:04:20 PM
Christi,
I assumed you were making up ages to make a point I wasn't meaning to correct you or anything. I think I agree with you about the burden of responsibility as well but the gray areas are what intrigue me. It's why I like the five year clause because it allows for peer relationships and developmental flexibility.
12. ChristinO - 2/24/2000 4:08:23 PM
You're also correct on the states jurisdiction over the age limits I believe. Except for voting age the states can decide the age of eligibility for most anything I think. Remember when the Fed was trying to get all the states to comply with a 21yo drinking age and how Florida kept putting off raising the age because they didn't need Federal money for highways? The whole rest of the country was at 21 and Florida was still at 19.
13. MsIvoryTower - 2/24/2000 4:37:56 PM
Hey, Bubbaette
Correct, ignorance of the law is no excuse.....
So, ladies one and all, you would agree with the notion that strict liability is valid when the crime is statutory rape. Say, even if the man is 20 and the girl is 15 1/2. Even if she carried false ID, he asked her about her age and saw her ID, and her friends all said she was over age. In other words, no ambiguity. No worrying about the circumstances.....
What about other situations? What about rape generally?
As a note of interest, Canada no longer allows statutes (laws) to be interpreted as requiring no culpability level when the punishment is imprisonment, even under so called, public welfare statutes.
14. ChristinO - 2/24/2000 4:42:25 PM
MsIt,
No I'm not totally comfortable with it. I think if you've gone so far as to ask for someone's ID then it is obvious that you are attempting to comply with the law. I don't necessarily belive that you ought to be fubared because someone else commits fraud. Sorry if I wasn't clear (can I just use SIIWC from now on since I have to say it so often?)
Regarding rape in general how do you mean?
15. DaveM - 2/24/2000 4:44:05 PM
Wow. As a fellow one-L, I really look forward to contributing to this thread. I have to run right now, but I'll check back in later.
16. CalGal - 2/24/2000 4:51:07 PM
I think that the leeway that judges have in these cases makes a lot of sense. For example, there was that recent case where the 23 year old went to the house of an 11-year-old girl and was found in her room, hiding in the closet. The girl had come on to him in an Internet chat room, told him she was 17 (also looked it, apparently), and helped him sneak into the house through the window. The guy apparently nearly freaked when he found out how old she was.
The judge said that it takes two to tango and gave the guy 18 months--in effect, sentencing him for statutory rape rather than child molestation. I thought the comment was stupid and the sentence was sensible. Assuming he had reasonable grounds to believe she was 17, he got 18 months for being an idiot--23 is too old to be sneaking into a girl's house for sex.
The comment was stupid, however, because the girl's consent doesn't matter--certainly not at the age of 11. What matters is that she lied, and that the guy had a reasonable basis for believing her.
So I think the laws should make knowledge irrelevant in theory, and then the judges should be able to cut people slack in the event that they really had reason not to know.
17. CalGal - 2/24/2000 4:51:27 PM
I'm uncomfortable with the term "statutory rape". It's either sex with a child unable to consent (say, for purposes of discussion, 13 and under) or sex with a minor teen (13-18). The first should be considered pedophilia or child molestation. The second is what is generally (if not legally) referred to as statutory rape, and it's where the age gaps that Christin mentions comes into play. I think there should be a different term for this, but I also think that the current rules make a lot of sense. It is inappropriate for an adult who has more than five years on a teenager to engage in a sexual relationship. The potential power imbalance is too great, and the teens are a weird time.
But I don't think either of these should be called rape, unless there was physical force and the person didn't acquiesce.
There is a difference between "not giving consent" (rape) and "beneath the age of consent" (sex with a consenting minor). I wish the laws would start to recognize this, because there are far too many people who think it should be okay to have sex with an 8 year old because hell, there was no force involved.
18. MsIvoryTower - 2/24/2000 4:56:06 PM
DaveM
Welcome to the crowd of 1L's, 2L's and 3L's populating the Mote landscape. I think it'd be great if you chimed in with any thoughts or issues you find worthy of discussing, too. And I'm hoping that LadyChaos and TabouliJones will eventually find their way to this corner as well. LadyC is a 2L, Tabouli is either 2 or 3L.
Christin
Well, some people advocate rape laws that focus only on two elements (of the crime), that there have been sexual intercourse (duh), and that it occur without consent of the victim. Without consent is the trickster here, what is meant by consent?
Again, some reform proposals suggest consent should be "affirmative and freely-given agreement". Some states have actually adopted this standard, Wisconsin and New Jersey are two that I know of immediately.
The implications for this sort of definition are somewhat staggering, IMO.
Under the common law view of rape (that is, before states began passing statutes defining the crime) the elements were: intercourse, without consent, with physical force or threat of force. Btw, I should also note that it had to be a man acting against a woman. By definition men could not be raped, nor for that matter, could wives.
19. cmboyce - 2/24/2000 4:56:53 PM
In the instance offered by MsIT in #13, the injustice of the no-inculpability rule (how does one refer to this; and is it a rule and not a statute in all cases?) should, imo, render it impermissable. After all, while the purpose of having laws is social order, it is an ancient idea, a presumption perhaps (I, too, have no legal education), that social order ought to encompass justice (if only so those on the short end of injustice don't keep rebelling and thereby upsetting the social order that is desired). Therefore, any rule of law whose consequence is patently unjust should be modified, to eliminate this subversion of the purpose of law's existence.
20. MsIvoryTower - 2/24/2000 5:03:09 PM
Calgal
The interesting thing about statutory law as opposed to common law is that courts have much less leeway to "interpret" the meaning of the language used. Some courts take the specific language of the statute very seriously, some look to the legislative intent, and some will play fast and loose with it and impose their own vision.
In the last case they (courts) are very likely to incur legislative wrath that results in amended statutes aimed at correcting their interpretation. Then there is even less leeway for judges to "consider the circumstances", if their application of the statute is contrary to what the legislature wanted in the first place.
21. CalGal - 2/24/2000 5:06:07 PM
Ms,
Yes, that's true. But since legislators generally find that no matter what law they pass, judges and lawyers find some ways around it, I keep hoping they'll give up.
In any event, I find it quite upsetting that so many people--and quite a few laws--can't distinguish between pedophilia/molestation, an inappropriate sexual relationship with a teenager, and forcible rape.
22. ChristinO - 2/24/2000 5:07:36 PM
MsIt,
I may be jumping to conclusions here but are you worried about the difficulty of defining exactly what coersion is? IOW under the revised laws it appears that a person could claim rape if he or she had felt pressured in any way to have sex. Or maybe you are implying that it's a good thing since it will offer recourse to those who are coerced into giving their consent.
Or am I totally missing the point?
23. MsIvoryTower - 2/24/2000 5:11:49 PM
Christin
Coercion is not the same thing as physical force. Coercion is also a term used in some rape statutes, and its meaning (like that of consent and physical force) will depend on how the particular state or legislature had defined it.
To answer your question, I'm worried about the potential problems that surround rape laws that would exclude any element of force (or coercion, depending on how it's defined), and focus only on what the victim perceived as consent.
Let us just say, I'm uneasy about the consequences.
24. CalGal - 2/24/2000 5:13:00 PM
I've always thought that the only that matters after the age of consent is whether or not the sex was physically forced on the person. That's rape. Anything else is consensual sex.
25. CalGal - 2/24/2000 5:13:49 PM
In #24, I was talking about the Perfect World I'd Rule, not the current legal definition.
26. MsIvoryTower - 2/24/2000 5:14:50 PM
In addition, to get back to the issue of culpability (and strict liability), to what extent should an accused man have the "intention", or "knowledge" that there was no consent (however it is defined)? Or should we simply say, if she proves she didn't consent (actually, an issue of fact to put before the jury), then it doesn't matter what he believed at all?
27. alistairconnor - 2/24/2000 5:15:06 PM
Message # 3
Ms dear, I take issue with your premise, which seems to be that the purpose of a justice system is to punish wrong-doers.
In my view, the purpose of a justice system is to protect and/or indemnify the members of society against wrong-doing. Society has a right to protect its members; but has a duty to avoid injustice in doing so.
Punishment has a part in this, to the extent that the deterrent effect of it, and/or the protection of society by the incarceration of dangerous elements, outweigh the negative effects (in particular, the dehumanising effect of punishment which frequently renders the offender more dangerous to society). However, it certainly shouldn't be the primary focus of the justice system. This easily slides into revenge as the primary rationale for a justice system, which is not a civilised notion, not an appropriate unifying principle for any society.
28. MsIvoryTower - 2/24/2000 5:16:22 PM
Calgal
I've found so far in my studies, that the perfect world is rare in criminal law.
29. alistairconnor - 2/24/2000 5:19:01 PM
As for the mental state question, I don't believe it should be material with respect to finding someone guilty or not guilty (except in cases of mental incapacity). That proceeds from the principle that the justice system is there to protect society. However it is material with respect to sentencing. That proceeds from the principle that the justice system must avoid injustice.
30. TabouliJones - 2/24/2000 5:19:36 PM
MsIt,
I will try to chime in when I can, but this semester is a busy one for me.
Your reference to the Canadian requirement against strict liability offenses is quite interesting. As I recall, the reaasoning behind it is culled from British common law notions of natural justice. Basically, the idea is that the state must have a strong reason to deny a person's liberty and at the very minimum there must be a guilty mind (a mens rea) alongside an actus reus for there to be a criminal act; which is also at the heart of the not guilty by reason of insanity defense.
There is an interesting tension here with ongoing Canadian debates about rape shield laws -- i.e. rules restricting and/or eliminating the defendant's right to enter evidence about the victim's prior sexual history. As a matter of basic criminal law, these types of rules are contrary to the principles of natural justice, and therefore unconstitutional, because they tend to eliminate the defendant's ability to plead the defense of mistake as to consent.
In 1990, the Supreme Court threw out the rape shield laws as written. However, just before Christmas the Court upheld the rewritten version of the rape shield laws pursuant to section 1 of the Canadian Charter which allows reasonable limits on liberty "as can be demonstrably justified in a free and democratic society." But despite a strong majority decision, the Court is again revisiting the issue at this time.
P.S. The differences between the U.S. Bill of Rights and the Canadian Charter would probably be an interesting discussion. As I alluded above, Canada's Charter permits reasonable limits on liberty. Canada also has the controversial "notwithstanding clause" which can be invoked to allow the provincial and Federal governments to pass certain unconstitutional legislation. Obviously, a discussion along these lines would enage fundamental questions of liberalism and political philosophy in general.
31. MsIvoryTower - 2/24/2000 5:20:02 PM
Alistair!
What a perfectly wonderful position! Problem is that in American law, we have a competing hypothesis: people should be punished when they do something really, really bad, regardless of any value or benefit to society. Bad acts = punishment.
Btw, strict liability laws tend toward implementing the retribution aspect of punishment rather than the deterrence aspect.
32. CalGal - 2/24/2000 5:22:08 PM
Or should we simply say, if she proves she didn't consent (actually, an issue of fact to put before the jury), then it doesn't matter what he believed at all?
Why aren't women obligated to either a) fight physically or b) establish that they were unable to fight (a weapon was held to her throat, or she was physically restrained) in order to charge rape? Why would they ever be allowed to get away with a lower standard of proof?
I'm not challenging you, Ms, I'm just bothered by this notion that women aren't supposed to be grownups.
33. ChristinO - 2/24/2000 5:23:52 PM
Quickly:
CG if my landlord says he'll find a way to evict me unless I have sex with him I'd consider that rape. Coersion does not have to be by threat of physical violence.
MsIt,
I can see a host of problems if culpability is to hinge solely on whether or not the victim can prove a lack of consent. How do you prove that you didn't consent? How does the accused prove that you did?
34. MsIvoryTower - 2/24/2000 5:24:15 PM
Hey Tabouli, hello!
I'd be very interested in such a discussion as you propose.
And the opinion I read that set the Canadian position on strict liability was a brilliant piece, written in 1978. The case was Regina v. City of Sault Ste. Marie, and the opinion was by one Justice Dickson.
35. CalGal - 2/24/2000 5:29:16 PM
CG if my landlord says he'll find a way to evict me unless I have sex with him I'd consider that rape. Coersion does not have to be by threat of physical violence.
Legally, I think that all requests for sex in exchange for anything of value ought to be considered solicitation. That's what it is, after all.
If your landlord says he'll evict you if you have sex with him, then report him to the cops and the management. If you have sex with him, you've proffered sex for something of value, and you're a prostitute.
It ain't rape if he didn't use force, IMO. Women are adults; they can start acting like that and quit being helpless. Part of the problem lies in that women offer sex--even under duress--as something of value.
36. MsIvoryTower - 2/24/2000 5:30:16 PM
Calgal
Rape laws have been changing for the last 25 years. The most recent statutes have tended to interpret rape when the victim can show no consent even when there wasn't any overt "physical violence" or threat of violence involved.
And the issue of resistance is a minefield.
Btw, I tend to agree with you, but I'm coming to the conclusion that hard and fast rules in this area of the law are more unworkable than not. Each case is unique and has its own set of circumstances that stretch the hard and fast rules.
37. CalGal - 2/24/2000 5:31:53 PM
Ms,
Yes, I know the recent interpretations are getting very....generous.
I think there can be leeway, but we're a long way from a sensible center point right now.
38. MsIvoryTower - 2/24/2000 5:33:25 PM
Tabouli
Rape shield laws are also problematic here. The US Supremes have determined that where the character or previous actions of the victim are "relevant" to the accusations leveled at the accused, then the defendents 6th Amendment rights may prevail. As a result, many states have now amended their rape shield laws to take this into account.
The trick is to determine when it's relevant, of course.
39. TabouliJones - 2/24/2000 5:40:40 PM
MsIt,
Maybe after exams I could help moderate a discussion on the subject. Until then, though, I will try my humble best to answer any questions people might have about Canada's Charter, which many Americans are likely to find peculiar or even anathema in a liberal society.
Later tonight, I might try to dig up the Canadian Criminal Code provisions wrt the issue of consent in sexual assault cases. Basically, consent is required -- otherwise the law presumes sexual assault if consent cannot be proven by the defendant. There is a defense of honest but mistaken belief as to consent. However, as noted, there are rape shield laws which often make this defense impossible to plead. I recall the Canadian rules being a somewhat convoluted compromise b/w rights of the defendant issues and rights of the victim issues. Sorry, its been over two years since I studied the matter.
40. TabouliJones - 2/24/2000 5:50:12 PM
The Canadian Supreme Court case on rape shield laws is R. v. Mills.
You can read it here: http://www.droit.umontreal.ca/doc/csc-scc/en/rec/html/mills3.en.html (sorry, forgot how to link . . . I'll learn it again, promise).
For many reasons, R. v. Mills is considered a watershed case. Many see it as a harbinger of the approach that will be taken by the Court under new Chief Justice Barbara McLachlin. I will post a relevant newspaper article in a few minutes.
41. ChristinO - 2/24/2000 5:56:02 PM
I don't think physical force should be the only factor taken into consideration particularly when we have things like the date-rape drug and particularly when there are situations where non-physical coersion is as forceful as a gun to the head.
42. ChristinO - 2/24/2000 5:57:49 PM
could I please just say particularly a few more times?
43. MsIvoryTower - 2/24/2000 6:14:58 PM
Christin
Date rape is an issue alright. Many states have incorporated the concept of incapacitating the victim through the use of drugs or alcohol within their rape statutes now. I think, by definition, if the victim has been drugged, her participation is without consent.
I'm not sure how they deal with the force and or resistance element in those cases, however. I think the argument is that when drugs or alcohol are involved, the consent issue outweighs the force/resistance issue.
44. ChristinO - 2/24/2000 6:28:34 PM
MsIt,
That makes good sense to me. I dislike the subjectivity in the law that allows for harsher punishments for people of color but I appreciate it when the issues aren't just black and white about guilt and culpability.
45. CalGal - 2/24/2000 7:00:29 PM
I think if the person was involuntarily put under the influence, consent is impossible--in fact, I think it becomes forcible at that point. If you remove the person's ability to resist or consent, it's the same as if you'd used a gun.
If the drugs were consumed deliberately, then that's a different issue.
46. CalGal - 2/24/2000 7:01:27 PM
But that still falls under rape. Requesting that a person prostitute him or herself is a different issue.
47. TabouliJones - 2/24/2000 7:07:37 PM
With regard to sexual assualt the Canadian Criminal Code defines consent as "the voluntary agreement of the complainant to engage in the sexual activity in question." The Code further states that, no consent is obtained when: "a) the agreement is expressed by the words or the conduct of a person other than the complainant; b) the complainant is incapable of consenting to the activity; c) the accused induces the complainant to engage in the activity by abusing a position of trust, power, or authority; OR d) the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity."
The issue of consent by someone who is intoxicated would be considered under c).
48. CalGal - 2/24/2000 7:11:37 PM
c)? Are you sure? I would have thought b)--incapable of consent.
49. CalGal - 2/24/2000 7:12:30 PM
And c) is the one that I think is silly. Why not just say, "Women are children!" and be done with it?
50. TabouliJones - 2/24/2000 7:18:45 PM
Actually, I meant b) would cover the issue of consent in cases where the complainant was intoxicated.
with, c) there is plenty of wiggle room afforded by the use of the term "abuse". I don't think the provision is there to treat women as children. I don't think it has been judically considered, so I am not sure how a Court would read it. But, I doubt that a Court would take the view that women are incapable of fending for themselves, so to speak, when it comes to fending off advances from men in authority, etc.
51. ChristinO - 2/24/2000 7:31:24 PM
I don't see that it is specific to women. True, women are more often the victims of sexual assault than men but this doesn't mean that men don't suffer as well.
52. CalGal - 2/24/2000 7:33:55 PM
Agreed, but the law was sourced in concern for women, not men.
53. TabouliJones - 2/24/2000 7:36:11 PM
True, it is a non-gendered definition. But, sexual assault is generally a crime committed by men against women, so it is natural to discuss the issue in terms of gender.
In the U.S. is there a distinction between rape and sexaul assault? The Canadian Code no longer speaks of rape to avoid confusion with old common law which made penetration a required element in the crime of rape.
54. CalGal - 2/24/2000 7:40:29 PM
As I said earlier--basically, if someone comes up to you and demands that you prostitute yourself (exchange sex for something of value), then it is solicitation, not rape. If the woman prostitutes herself, then why should she be able to come back later and say it was rape?
If a manager came up to an employee and says, "Have sex with me if you want to get promoted" or if the manager says, "I won't lay you off in the coming round if you have sex with me"--the employee engages in the transaction willingly and takes the benefit from it.
And if we're going to call it rape--which is ludicrous--then why not call the request attempted rape? Then the employee has the ability to run to the cops when such a request is made, report the manager, and not have to have sex in order to cry rape.
55. ChristinO - 2/24/2000 7:43:26 PM
So the law won't apply to men? "You're a man so obviously no one could take advantage of you sexually"
A good friend of mine in highschool did a really dumb thing. He cheated on his girlfriend with a friend of his mother's. He was 18 so he was legal but when he didn't want to continue the relationship the woman threatened to tell both his mother and his girlfriend about it unless he continued to service her.
Granted he had the choice to come clean and suffer the consequences of cheating on his girlfriend, but that does not make this woman any less a sexual predator. She blackmailed him into having sex with her. Why should that just be a case of "tough titty" for this guy?
56. CalGal - 2/24/2000 7:47:17 PM
Why on earth is she a sexual predator? He plays, he pays.
57. CalGal - 2/24/2000 7:47:59 PM
BTW, I agree that sexual assault laws should apply to both men and women equally. But the case you mention isn't rape. Although I'm sure that there are some 18 year old women who could make the case for it.
58. TabouliJones - 2/24/2000 7:48:26 PM
There was a case which arose in Ontario about thirty years ago which might help give context to the reasoning behind c) in the above posts re. the vitiation of consent. The case antedated the current Canadian approach to sexual assault. The woman's gynecologist told a woman that there was something medically interesting about her sexual parts, and asked her if it would be o.k. if one of his colleagues examined her. However, the colleague was not a doctor but simply a friend who wanted to check out the woman's genitals. Under the old law, there would have been no sexual assault because she ostensibly consented to the examination. Part c) would cover that situation today as an "abuse" of trust or authority. Most likely it was included to cover such previously uncovered situations.
59. CalGal - 2/24/2000 7:52:22 PM
It seems to me that'd be a violation of doctor/patient privilege. Who got tagged with sexual assault, both of them? Or just the doctor?
Surely there's another type of crime that falls under, other than sexual assault?
Mind you, I'd sue the motherfucker for every penny. But that's a civil courts issue. I'm just not seeing how that counts as rape or sexual assault.
60. jexster - 2/24/2000 7:57:20 PM
Cal - its the patient's privilege not the doctor's
61. MsIvoryTower - 2/24/2000 7:57:28 PM
In the U.S. is there a distinction between rape and sexaul assault?
Well, we're getting into my zone of "confusion" here, but I believe it depends on the state. Under the Model Penal Code (MPC) there is a distinction between rape and sexual assault. The MPC defines Rape and Related Offenses where the latter is termed 'Gross Sexual Imposition'.
Here's the MPC definition of Gross Sexual Imposition (it's a loaded gun [so to speak] as well):
A male who has sexual intercourse with a female not his wife commits a felony of the third degree if;
(a) he compels her to submit by any threat that would prevent resistance by a woman of ordinary resolution; or
(b) he knows that she suffers from a mental disease or defect which renders her incapable of appraising the nature of her conduct; or
(c) he knows that she is unaware that a sexual act is being committed upon her or that she submits because she mistakenly supposes that he is her husband.
Texas does not appear to distinguish between rape and sexual assault. In fact, its rape statute is not entitled 'Rape' but 'Sexual Assault'.
WRT the MPC definition above, I have a hard time not laughing over some of the language
- what is a woman of ordinary resolution?
- what about wives?
- what would constitute a mental defect? delusions? fantasies?
- and then there's the notion that a man seeks to sneak into a woman's bed pretending to be her husband and she wouldn't know......
62. TabouliJones - 2/24/2000 8:00:14 PM
CalGal,
In Canada, sexual assault now exists as a category of assault. There is no separate crime of rape per se. Assault is any unwanted, or offensive, touching, and it is a crime that admits of various degrees. If I poke someone in the shoulder, technically that is assault. Similarly, if I beat the crap out of someone that is an assault. In each case, it is the same criminal category that applies to impugn the conduct. The same holds for sexual assault. Any unwanted sexual touching is covered by the same set of laws. Of course, the closer the case comes to actual rape, the more serious the consequence.
63. TabouliJones - 2/24/2000 8:04:40 PM
MsIt,
Rape was removed as a category to avoid such confusion. Under the common law (where Canadain and American concepts of rape originated), it was a legal impossibility to rape your wife. the sexual assault category was created in the criminal code to get rid of many of the sexist anachronisms still clinging to the definition of rape.
Incidentally, criminal law falls under exclusive Federal jurisdiction in Canada. There is no variance between provinces.
64. jexster - 2/24/2000 8:04:57 PM
243.4. (a) Any person who touches an intimate part of another person while that person is unlawfully restrained by the accused or an accomplice, and if the touching is against the will of the person
touched and is for the purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of sexual battery. A
violation of this subdivision is punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding
two thousand dollars ($2,000); or by imprisonment in the state prison
for two, three, or four years, and by a fine not exceeding ten
thousand dollars ($10,000).
(b) Any person who touches an intimate part of another person who
is institutionalized for medical treatment and who is seriously
disabled or medically incapacitated, if the touching is against the
will of the person touched, and if the touching is for the purpose of
sexual arousal, sexual gratification, or sexual abuse, is guilty of
sexual battery. A violation of this subdivision is punishable by
imprisonment in a county jail for not more than one year, and by a
fine not exceeding two thousand dollars ($2,000); or by imprisonment
in the state prison for two, three, or four years, and by a fine not
exceeding ten thousand dollars ($10,000).
(c) Any person who, for the purpose of sexual arousal, sexual
gratification, or sexual abuse, causes another, against that person's
will while that person is unlawfully restrained either by the accused or an accomplice, or is institutionalized for medical treatment and is seriously disabled or medically incapacitated, to masturbate or touch an intimate part of either of those persons or a third person, is guilty of sexual battery....
65. MsIvoryTower - 2/24/2000 8:05:09 PM
Tabouli
I'm laughing at your example in #58. I just read a case from the 1970's where a woman received a call from a "Dr. Stevens" who told her that recent tests of hers revealed a fatal disease. That she had two choices for treatment: one a painful, lengthy procedure costing around $10,000, the other, injection of some specially treated semen through intercourse with a donor. The latter procedure would only cost $4500.
The woman told the doctor she couldn't afford $4500, so he said he could arrange it for a $1000 deposit. She agreed. He arranged for her to arrive at one of his temporary offices in a hotel for the next day. She was to bring the money with her and give it to the man who arrived.
She goes, gives the guy the money and has sex with him.
Later, she seemed to have figured out that something fishy was up, and pressed rape charges. The dude was acquitted.
I was laughing really, really hard as I read that case. Sometimes it's difficult to muster the sympathy necessary for the victim.
66. TabouliJones - 2/24/2000 8:06:42 PM
In the doctor case referred to above, there was no crime whatsoever under the old law. The doctor didn't infringe the criminal law as it then stood.
67. jexster - 2/24/2000 8:07:39 PM
CA Penal Code 261. (a) Rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under any of the following circumstances:
(1) Where a person is incapable, because of a mental disorder or
developmental or physical disability, of giving legal consent, and
this is known or reasonably should be known to the person committing
the act. Notwithstanding the existence of a conservatorship pursuant
to the provisions of the Lanterman-Petris-Short Act (Part 1 commencing with Section 5000) of Division 5 of the Welfare and Institutions Code), the prosecuting attorney shall prove, as an element of the crime, that a mental disorder or developmental or physical disability rendered the alleged victim incapable of giving consent.
(2) Where it is accomplished against a person's will by means of
force, violence, duress, menace, or fear of immediate and unlawful
bodily injury on the person or another.
(3) Where a person is prevented from resisting by any intoxicating
or anesthetic substance, or any controlled substance, and this
condition was known, or reasonably should have been known by the
accused.
(4) Where a person is at the time unconscious of the nature of the
act, and this is known to the accused. As used in this paragraph,
"unconscious of the nature of the act" means incapable of resisting
because the victim meets one of the following conditions:
68. MsIvoryTower - 2/24/2000 8:08:15 PM
I suppose I shouldn't be so irreverent.....
69. CalGal - 2/24/2000 8:08:41 PM
At what point are we going to remove the "other than the spouse" clause in rape/sexual assault law?
70. jexster - 2/24/2000 8:09:01 PM
(A) Was unconscious or asleep.
(B) Was not aware, knowing, perceiving, or cognizant that the act
occurred.
(C) Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator's fraud
in fact.
(5) Where a person submits under the belief that the person committing the act is the victim's spouse, and this belief is induced
by any artifice, pretense, or concealment practiced by the accused,
with intent to induce the belief.
(6) Where the act is accomplished against the victim's will by
threatening to retaliate in the future against the victim or any other person, and there is a reasonable possibility that the perpetrator will execute the threat. As used in this paragraph, "threatening to retaliate" means a threat to kidnap or falsely imprison, or to inflict extreme pain, serious bodily injury, or death.
(7) Where the act is accomplished against the victim's will by
threatening to use the authority of a public official to incarcerate,
arrest, or deport the victim or another, and the victim has a
reasonable belief that the perpetrator is a public official. As used
in this paragraph, "public official" means a person employed by a
governmental agency who has the authority, as part of that position,
to incarcerate, arrest, or deport another. The perpetrator does not
actually have to be a public official.
71. MsIvoryTower - 2/24/2000 8:09:24 PM
Tabouli
RE: Incidentally, criminal law falls under exclusive Federal jurisdiction in Canada. There is no variance between provinces.
That would make learning all this so much easier.....
72. CalGal - 2/24/2000 8:09:27 PM
Ms,
Hell, no. I laughed too. The guy shouldn't have been on trial for rape. Fraud, maybe.
I suppose these days, it would be rape.
73. TabouliJones - 2/24/2000 8:11:22 PM
MsIt,
Re. message 65. I read one case in which a music teacher convinced his student fellatio would make her a better singer. She bought it and later charged him under the old rape laws. The teacher was acquitted.
74. jexster - 2/24/2000 8:11:23 PM
CA Penal Code 262. (a) Rape of a person who is the spouse of the perpetrator is an act of sexual intercourse accomplished under any of the following circumstances:
(1) Where it is accomplished against a person's will by means of
force, violence, duress, menace, or fear of immediate and unlawful
bodily injury on the person or another.
(2) Where a person is prevented from resisting by any intoxicating
or anesthetic substance, or any controlled substance, and this
condition was known, or reasonably should have been known, by the
accused.
(3) Where a person is at the time unconscious of the nature of the
act, and this is known to the accused. As used in this paragraph,
"unconscious of the nature of the act" means incapable of resisting
because the victim meets one of the following conditions:
(A) Was unconscious or asleep.
(B) Was not aware, knowing, perceiving, or cognizant that the act
occurred.
(C) Was not aware, knowing, perceiving, or cognizant of the
essential characteristics of the act due to the perpetrator's fraud
in fact.
75. jexster - 2/24/2000 8:12:01 PM
(4) Where the act is accomplished against the victim's will by
threatening to retaliate in the future against the victim or any other person, and there is a reasonable possibility that the perpetrator will execute the threat. As used in this paragraph, "threatening to retaliate" means a threat to kidnap or falsely imprison, or to inflict extreme pain, serious bodily injury, or death.
(5) Where the act is accomplished against the victim's will by
threatening to use the authority of a public official to incarcerate,
arrest, or deport the victim or another, and the victim has a
reasonable belief that the perpetrator is a public official. As used
in this paragraph, "public official" means a person employed by a
governmental agency who has the authority, as part of that position,
to incarcerate, arrest, or deport another. The perpetrator does not
actually have to be a public official.
76. MsIvoryTower - 2/24/2000 8:12:18 PM
Jexter
CA Penal Code goes much farther in liberalizing rape laws than Texas.
I see 6 and 7 above cover the hypo Christin offered earlier, and the possibility of a blackmail element to the scenario.
77. jexster - 2/24/2000 8:13:02 PM
Cal - you just have to keep it in your pants as it were. I can only cut and paste so fast.
78. CalGal - 2/24/2000 8:14:48 PM
Jex,
I wasn't blaming you for a slow cut and paste job. It's just that there is no reason for distinguishing between the two.
79. MsIvoryTower - 2/24/2000 8:17:20 PM
Tabouli,
re #73
Given that it was a student teacher relationship, I'd want to see some sort of sexual assault charge stick, although I'm not sure it'd be rape (as we've traditionally thought about it).
My case with the dumb woman and the fake doctor, however, came out according to how I see this thing. I don't see why the law should allow women an out for their incredible stupidity. As far as I know, stupidity isn't a defense in any other crimes.
80. CalGal - 2/24/2000 8:17:41 PM
And 6 and 7 are nothing more than solicitation. I can see making abuse of authority a crime, if someone is a public official.
If the landlord says I have to have sex with him or I get evicted, can I go to the cops and say that he's attempted to rape me?
If he could be charged with attempted rape and I don't go to the cops, wouldn't that technically be consent?
81. MsIvoryTower - 2/24/2000 8:23:58 PM
Btw, Calgal
The wife exemption is still alive and well in most states, although it's been modified from its old common law form. Used to be a wife could never be raped, by definition, because once she became a wife she gave irrevokable consent to any and all sex between her and her spouse...until death do they part.
Modern laws now have moved away from such an extreme form of the wife exemption, but most states still refuse to acknowledge that a woman can be raped by her husband if she is still co-habitating with him.
82. wonkers2 - 2/24/2000 8:24:41 PM
Two concepts underlying criminal law are free will and "ought implies can" if I remember correctly from my long-ago ethics class. That is, before it makes sense to say someone ought to do something, they must be
able to do it. Logically it makes no sense to say someone should do (or not) do something they are incapable of doing. For example, we generally don't punish or execute demonstrably mentally ill people. (We try unsuccessfully to treat them, release them, and they do it again!) And we don't generally punish mentally incompetent people whose intelligence is significantly below normal and who are incapable of understanding right from wrong or participating in their defense. And we treat children under the law differently from adults, or we used to at least.
83. MsIvoryTower - 2/24/2000 8:28:16 PM
To me this is a very tricky area, and frought with potential for abuse.
In addition, what if the partners have a rather physical (violent) sexual relationship to begin with? One that may even have an element of resistance as sexual foreplay? When would the husband (or wife) ever recognize non-consent, as in, "No, No, No, I really, really really do not want to have sex with you."
84. jexster - 2/24/2000 8:28:16 PM
Cal -
There are 2 code sections because the original statute was appopriately premised on the fact that "I do" means what it says. :)
85. ChristinO - 2/24/2000 8:31:21 PM
MsIt,
Re:83
That's what "safewords" are for.
86. Angel-Five - 2/24/2000 8:33:02 PM
83: For the wife? Well, the guy will be asleep.
87. MsIvoryTower - 2/24/2000 8:34:25 PM
Christin
Can you imagine a jury having to sift through the evidence?
"Did she say the safeword or not?"
"She said she did"
"He said she didn't, and then he proceeded to rough her up..."
I'm sorry, but my active imagination runs away from me sometimes, and I simply end up on the floor with laughter....
88. TabouliJones - 2/24/2000 8:35:07 PM
"In addition, what if the partners have a rather physical (violent) sexual relationship to begin with? One that may even have an element of resistance as sexual foreplay?"
That is the exact scenario that is currently being considered by the Supreme Court of Canada. As it stands now, if the complainant did not at any point say or gesture: "yes I want to have sex" then there is a sexual assault. However, the accused can claim honest but mistaken belief that consent was granted when it had not in fact been granted. The wrinkle, however, is the rape shield law which severely limits the accused's ability to enter evidence with respect to the complainant's sexual history, including her sexual history with the accused.
89. ChristinO - 2/24/2000 8:35:12 PM
Hell, forget this he-said/she-said I want VIDEO!!!
90. ChristinO - 2/24/2000 8:38:20 PM
Tabouli,
This is starting to sound like a U.S. campus where you have to ask before everything you do and recieve a yes answer to proceed.
"May I kiss you on the lips"
"Yes"
"May I place my hand on your chest"
"Yes"
"May I place my hand on your chest inside your shirt"
"You didn't say mother may I. Take five baby steps back, bucko!"
91. MsIvoryTower - 2/24/2000 8:39:44 PM
Tabouli
Despite my momentary lack of respect for the seriousness of the topic, I appreciate you hanging in there with me on this.
I think there is the same defense here, depending on the state, and the level of culpability attached to the consent element. The Supreme Court decision I referenced earlier has overruled any rape shield laws that would bar evidence that bears directly on the issue of the defendants "mistake of fact".
92. TabouliJones - 2/24/2000 8:42:11 PM
ChristinO,
It doesn't reach that level of absurdity. Realistically, consent can be, and usually is, inferred from activity or acquiescence (to use a clumsy word). However, the basic problem is that the complainant will be saying, no co there was no consent. The defendant will say, yes there was consent. Then it becomes a matter of who you believe.
93. Angel-Five - 2/24/2000 8:45:39 PM
Oh, christ, don't start about that place, I've been there. The nightlife sucks.
94. ChristinO - 2/24/2000 8:46:08 PM
Tabouli,
Sorry I was being silly. I do think it's a pretty good law. I can be kind of wishy washy about this topic since I see abuses on both sides. My wish is that people would grow up and take responsibility for their actions/lives and not abuse one another but you know what they say--"Wish in one sh@t in the other..."
95. Angel-Five - 2/24/2000 8:46:44 PM
TJ:
No, no, dude, I've been to Antioch. It can get pretty ridiculous sometimes.
96. ChristinO - 2/24/2000 8:47:23 PM
hahaha didn't realize I'd picked a symbol that actually spells a word in the wrong tense. Obviously time for me to go home.
Evening all!
97. TabouliJones - 2/24/2000 8:50:02 PM
MsIt, ChristinO,
No need to apologize. I didn't take offense to anything said, and I don't think that your levity was inappropriate.
98. MsIvoryTower - 2/24/2000 8:50:37 PM
Christin, A5
You do hit on the heart of the problem with focusing only on consent as "affirmative and freely-given agreement". At some point it completely blurs the line between seduction and rape. If women weren't so ambivalent about wanting to be "talked into" having sex, this wouldn't be such a potential problem for male-female relations.
99. TabouliJones - 2/24/2000 8:51:34 PM
MsIt, ChristinO,
No need to apologize. I didn't take offense to anything said, and I don't think that your levity was inappropriate.
100. TabouliJones - 2/24/2000 8:58:59 PM
"You do hit on the heart of the problem with focusing only on consent as "affirmative and freely-given agreement". At some point it completely blurs the line between seduction and rape."
This is where issues of prosecutorial discretion and basic common sense come into play. Vexatious claims are made all of the time, in most areas of law. That is why comparisons with assault in general may be helpful. Technically, if I deliberately bump someone with my shoulder while passing by them in the street, this is assault. However, a prosecutor would never pursue the case and I judge would make it damn near impossible to enforce the claim -- depsite its technical viability. Hopefully, the same sort of common sense approach will take hold in the area of sexual assault.
101. TabouliJones - 2/24/2000 9:00:13 PM
that is a judge, not I judge.
102. Angel-Five - 2/24/2000 9:00:27 PM
When foreplay consists of signing on the dotted line, well, that's tons worse than having to look for a condom.
Date rape isn't really common around here, although something that some people might call date rape is. I'm speaking of women feeling a bit uncomfortable about having sex but doing it anyway. (And yes, it happens to guys, too, but we usually call that 'generosity').
I have no problem in theory with institutionalizing something that lets women feel more secure about saying 'no' to their horny date, but the only place I've seen it in practice is Antioch and I don't think it works there very well. There's just really no substitute for being able to say 'no' all on your own.
103. Angel-Five - 2/24/2000 9:00:31 PM
When foreplay consists of signing on the dotted line, well, that's tons worse than having to look for a condom.
Date rape isn't really common around here, although something that some people might call date rape is. I'm speaking of women feeling a bit uncomfortable about having sex but doing it anyway. (And yes, it happens to guys, too, but we usually call that 'generosity').
I have no problem in theory with institutionalizing something that lets women feel more secure about saying 'no' to their horny date, but the only place I've seen it in practice is Antioch and I don't think it works there very well. There's just really no substitute for being able to say 'no' all on your own.
104. MsIvoryTower - 2/24/2000 10:40:46 PM
Tabouli
Something I was meaning to ask you earlier; given that Canada has eliminated any strict liability in criminal laws, I don't see how it would be possible to have the equivalent to statutory rape in the US. How does Canadian law deal with the issue of sexual intercourse with an underage child? Consensual or not? What level of culpability is required?
Jexter,
I looked for a level of mens rea (guilty mind) required in the CaPC for rape and didn't see one. Is there one identified, and if so, what is it? Knowledge? Recklessness? Intent?
105. TabouliJones - 2/24/2000 11:39:58 PM
MsIt,
You can still have statutory rape. The elimination of strict liability simply means that the defendant can plead that he or she thought the complainant was of legal age. In order to make this claim, however, the defendant must have taken "all resonable steps to ascertain the age of the complainant." What constitutes reasonable, is a question of fact to be determined at trial. If someone underage consents to sex with an adult, it is still statutory rape, or "sexual exploitation" according to the terminology of the Criminal Code.
106. Jonesy - 2/25/2000 12:13:25 AM
Once again, those ever reasonable Canadians are in the lead. I believe that there should be no strict liability for any crime that carries a penalty of imprisonment. If it isn't important enough for a jury, it isn't important enough for imprisonment. If a crime is serious enough to merit a serious punishment, it merits a full consideration of the mental state of the accused.
107. MsIvoryTower - 2/25/2000 8:24:43 AM
Jonesy
I'm in full agreement with your position except in cases of statutory rape where the age of the child is 12 or under. The MPC has the threshold at 10, but I think that too low. Most states put the threshold at 16 or 18, which I think, in this day and age, is too high.
Sexual offenses with children are the only category of crimes I'm willing to impose strict liability on, otherwise, I, too, think the Canadian position is the most appropriate one.
108. MsIvoryTower - 2/25/2000 8:58:02 AM
Tabouli
The elimination of strict liability simply means that the defendant can plead that he or she thought the complainant was of legal age.
But then this creates a culpability level for the "underage" element of the offense then. I thought strict liability allowed for no culpability level on the material elements. (That is, in the statutory rape situation.)
109. TabouliJones - 2/25/2000 11:57:54 AM
MsIt,
How I understand it, which may very well be wrong or misleading, is that the elimination of strict liability simply means that the accused must be able to plead some sort of defense akin to reasonable diligence. It is o.k. to deem a mens rea upon proof of the actus reus, but the defendant must be able to plead some sort of defense.
110. CalGal - 2/25/2000 12:02:30 PM
I still have a question: If Christin has sex with her landlord to prevent her from being evicted, is that rape?
111. TabouliJones - 2/25/2000 12:03:52 PM
Actually, let me amend that last sentence: It is o.k. (in certain circumstances)to deem a mens rea upon proof of the actus reus, but the defendant must be able to plead some sort of defense.
I wish I had a Canadian criminal law casebook handy, because then I could double check to see if I am on the right track. I don't thin that you can get the whole gist of the Canadian approach to the matter from the Dickson judgment in Regina v. Sault Ste. Marie. That decision has probably been reconsidered, nuance and qulaified to some degree, since 1978.
112. TabouliJones - 2/25/2000 12:07:26 PM
CalGal,
The way you frame the question is misleading in the Canadian context. There wouldn't be a rape per se, but, depending on the facts, it might be possible to pursue a charge of sexual assault. However, I am doubtful that a sexual assault charge would stick.
113. ChristiPeters - 2/25/2000 1:05:11 PM
Interesting discussion. I'm sorry I can't participate as I'd like.
Re CalGal's question about Christin's landlord example. I don't know what the law says, but my moral sense says that is not rape, it is sexual harrassment. That's why I like good, clear sexual harrassment laws on the books - to distinguish this type of situation form rape. I think coercion to have sex of the "I'll fire you/evict you if you don't" type is wrong and the victim should have legal recourse and the perpetrator some punishment.
I, personally, draw distinct lines between sexual assault, statutary rape, and sexual harrassment. I see them as separate, although related issues.
I really really really have a problem with the "it isn't rape if you are married to him" thing. I knew someone whose husband raped her at knifepoint, at gunpoint, and tied to their bed. Yes, of course, she divorced him, but that's not good enough for me. He should be in jail.
114. PsychProf - 2/25/2000 1:58:43 PM
115. ChristinO - 2/25/2000 1:59:36 PM
Christi,
I like your definition better. I was trying to think of a hypothetical where coersion exists but not physical force obviously my example wasn't very good.
MsIt
Re: Message # 98
"If women weren't so ambivalent about wanting to be 'talked into' having sex, this wouldn't be such a potential problem for male-female relations."
I both agree and disagree with this statement. I think it only fair to note that if men didn't feel challenged to talk women into sex we also would have less problems.
I don't intend to open up the whole "gender differences and sexual identity" discussion but it appears to me that we are trying to establish a sane and logical law that doesn't actually fit the reality of our society which has a pretty extreme double standard. The thing that I'm curious about is whether it is generally accepted that law is shaped by society or society is shaped by law.
It seems to me that when we attempt to shape society with law we mostly fail. I'm thinking especially of Prohibition and the current War on Drugs. Obviously people like to drink and do drugs. The law has never been effective in changing this and yet we continue to make laws in the obviously mistaken hope that they will curb drug and alcohol abuse.
To steer back to topic a bit: If we continue to socialize women so that they are victimized by sex and yet write our laws in such a way that we don't recognize it what have we accomplished? Are we going to teach women to "Grow up and deal with it" on a case by case basis? That seems ineffective at best.
116. TabouliJones - 2/25/2000 3:07:58 PM
ChristinO,
I sympathize with your concerns about what sexual assault laws say about society's general attitude towards women. The goal, I suppose, is to carve out sexual assault laws which avoid adopting a paternalistic attitude towards women while also avoiding the situation engendered by traditional rape laws: a situation in which much abhorrent behaviour was left uncensured by the law and it was very difficult to prosecute a man for rape, no matter how egregious his behaviour. IMO, the modern sexual assault laws have sufficient flexibility to achieve this goal -- in time, with sensible judicial application.
117. ChristinO - 2/25/2000 3:12:25 PM
Tabouli,
I tend to agree with you although I am concerned about the exceptions for spouses.
118. TabouliJones - 2/25/2000 3:14:47 PM
The exceptions for spouses are a vestige of the common law approach to rape. When I say modern sexual assault laws, I mean those which do not have a spousal exception.
119. Toenails - 2/25/2000 3:17:10 PM
"If Christin has sex with her landlord to prevent her
from being evicted, is that rape?"
CalGal: I've not been following this entire discussion, but taking your question (above) by itself, it sounds more like prostitution than rape.
120. ChristinO - 2/25/2000 3:20:34 PM
Toenails,
I've said that it was a bad example--- more harassment than rape---- but the sentence above is misleading since it implies that I'm already going to be evicted but I think that sexual favors will defray that. The original example was that the landlord says "if you don't put out then I'll evict you".
121. TabouliJones - 2/25/2000 3:21:26 PM
I think the prostitution analogy is inapt.
122. CalGal - 2/25/2000 3:24:07 PM
Toe, TJ:
I described it as prostitution myself, originally.
123. Angel-Five - 2/25/2000 3:30:15 PM
"If Christin has sex with her landlord to prevent her
from being evicted, is that rape?"
Oh, if only this weren't such a serious conversation.
It's coerced, I think. I don't believe it could be called prostitution under the original terms of the query.
124. ChristinO - 2/25/2000 3:32:21 PM
Angel,
It's okay, I'm laughing my ass off. My landlord is an 85 year old lady I've never spoken to.
125. Dantheman - 2/25/2000 3:32:53 PM
It may depend upon who is making the offer. If Christin makes the offer (as Annette Bening did in The Grifters), it should be prostitution. If the landlord does, it wouldn't be rape (since no force was being used), but probably would be some form of harassment.
126. Angel-Five - 2/25/2000 3:34:04 PM
Oh, good. Then I can say 'It isn't prostitution, it's Friday.'
127. CalGal - 2/25/2000 3:35:19 PM
I thought it was Christin who used the landlord question originally? Didn't mean to cast aspersions on her or her landlord.
The landlord is certainly offering something of value in exchange for sex. If the tenant accepts the value, what else is needed to make it prostitution?
128. CalGal - 2/25/2000 3:36:43 PM
It's harassment if Christin reports it before it happens, yes? But if she has sex with the landlord, I don't see how she can then claim harassment--she's accepted what he had to offer in exchange for sex.
129. Angel-Five - 2/25/2000 3:37:43 PM
The landlord as I understood it was saying 'put out or get out'. They may be offering compensation but so is a punk who pulls in a streetwalker and says 'I'll give you twenty bucks if you blow me, and I'll shoot you if you don't.' No one is going to call that prostitution.
130. Dantheman - 2/25/2000 3:38:41 PM
CalGal,
It's still harassment, even if she agreed to do it. Think of the boss telling you he'll fire you if you don't sleep with him. whether you do or don't, it's still harassment.
131. Angel-Five - 2/25/2000 3:39:21 PM
A woman who is pressured by an employer to have sex as a condition of getting the job she needs to feed her kids can successfully claim harassment after the fact.
132. Angel-Five - 2/25/2000 3:40:25 PM
Kross Post.
133. Angel-Five - 2/25/2000 3:41:42 PM
Now, if Annette Bening goes to the landlord... it's prostitution. I think.
134. Angel-Five - 2/25/2000 3:41:46 PM
Now, if Annette Bening goes to the landlord... it's prostitution. I think.
135. CalGal - 2/25/2000 3:42:06 PM
No, if you threaten to shoot someone it becomes rape--at least according to the laws Jex posted earlier.
But "put out or get out" means that she put out--and took the value. If she reported the landlord before having put out, then the landlord is guilty of harassment. But if she takes the value, it's prostitution.
For one thing--at least in this country--I don't think a landlord could just capriciously kick someone out. (at least, not in California). So presumably, the landlord has reason for eviction, and is willing to overlook it if Christin puts out. But even in the case where it was capricious, I don't see how it can be harassment if Christin doesn't report it before having sex with the landlord. Once she has sex, she's accepted the solicitation--and sex in exchange for something of value is prostitution, I believe. (unless it's marriage, of course)
136. Angel-Five - 2/25/2000 3:44:10 PM
But these conditions are never presumable if an empowered person exerts that power over a dependent person in order to extort sex from them. That's the way these things go.
137. Angel-Five - 2/25/2000 3:45:37 PM
And the before/after thing, as stated, is irrelevant. You can report it after the fact, even if you acquiesced, and still successfully press the charge and win compensation.
138. ChristinO - 2/25/2000 3:46:50 PM
CG,
Yes in California the law is on the side of the renter, but leaving rental laws out of this the point is that under threat of losing the roof over my head I consent to have sex with my landlord. The issue is coersion and abuse of power not actual tenant rights.
139. Angel-Five - 2/25/2000 3:47:03 PM
Christ, this place is usually thick with lawyers. Where's one when you need them? Stumping for McCain is where.
140. CalGal - 2/25/2000 3:47:52 PM
Think of the boss telling you he'll fire you if you don't sleep with him. whether you do or don't, it's still harassment.
I agree that this is what the laws state. However that goes back to what I was saying earlier--it assumes women are children. She can report him. If she chooses not to report him, but takes the value (continued job), then she has prostituted herself.
It's even more problematic if the boss says, "Have sex with me or you won't get a promotion". She has sex, gets the promotion. Well, who is to say that she was entitled to the promotion if she hadn't had sex?
If it's harassment after she has sex, it's harassment before she has sex, so she can report it then. If she doesn't report it, it was her choice to accept the value.
141. CalGal - 2/25/2000 3:51:51 PM
Your boss comes to you and said, you have to commit fraud or I'll fire you. So you commit fraud. Do you go to jail if you get caught?
142. Dantheman - 2/25/2000 3:52:05 PM
CalGal,
Harassment is a crime of power, not sex. It assumes that the harasser (the boss or landlord in our cases) has power over the victim, regardless of which sex each is. Therefore the employee is not being treated as a child because she's a woman, she's being treated as a powerless victim because it's her boss that's making threats.
A-5,
I'm a (real estate) lawyer. I am not flaunting it here because this isn't my area of expertise.
143. Dantheman - 2/25/2000 3:53:45 PM
CalGal 141,
Usually. You generally can go to the authorities to uncover the fraud afterwards, if necessary. Sex is treated differently here.
144. ChristinO - 2/25/2000 3:55:34 PM
Cal,
I think your view may be skewed since you have high demand skills and the idea that you couldn't find work if you wanted it is laughable. For a woman who barely has a highschool education the choices are limited. It is not always or maybe even usually easy to press a harassment suit nor is it assured that you won't suffer by bringing such a suit.
145. Angel-Five - 2/25/2000 3:58:08 PM
God, I hate ICQ. Is it goofy for everyone today or just me?
146. Angel-Five - 2/25/2000 4:00:02 PM
The important bit is that you can still press charges against your boss. If you do something illegal, in most cases, you get charged. Having sex isn't illegal.
147. ChristinO - 2/25/2000 4:00:34 PM
Mine has been sucky for three weeks but that's due to our firewall and some freaking hacker trying to get into the site.
148. Absensia - 2/25/2000 4:02:10 PM
My ICQ has been flaky since I installed W98.
149. ChristinO - 2/25/2000 4:02:22 PM
"Having sex isn't illegal."
That depends on what state you're in.
150. CalGal - 2/25/2000 4:02:29 PM
Dan,
You generally can go to the authorities to uncover the fraud afterwards, if necessary. Sex is treated differently here.
I agree it is treated differently. But my point is, it shouldn't be. It is treated differently because women are given a pass on taking responsibility for their choices. If exchanging sex for value is against the law (and it is) then it shouldn't be treated any differently from fraud. In both cases, the employee should be able to immediately report it to the authorities, and if they don't, they can pay the piper when they get caught. They accepted the benefit (continued employment) and committed a crime.
Christin,
I think your view may be skewed since you have high demand skills and the idea that you couldn't find work if you wanted it is laughable.
If the same employee would go to jail for committing fraud, then the bit about high demand skills has nothing to do with it. Besides, you know full well that sexual harassment claims are made by women in all professions--highly skilled or not. So why do so many women accept the exchange? Because the value of what the boss is offering is greater than the value of not accepting.
151. CalGal - 2/25/2000 4:04:05 PM
Having sex isn't illegal.
Having sex in exchange for something of value is most certainly illegal. In all of these cases, the person is having sex in exchange for something of value (keeping one's job, getting a promotion, and so on).
152. Toenails - 2/25/2000 4:04:35 PM
Just being "a lawyer" doesn't answer the question. The discussion here has been reasonably apt, whether or not the participants are lawyers. As in the case of most legal issues, the ifs/or/buts rule.
Circumstances alter cases (to not exactly coin a phrase).
Essentially, though, it boils down to who proposes the sex as consideration for the non-eviction. If it's the landlord, it's at least harassment; if it's the tenant, it's quid pro quo, and (I'm pretty sure) that's true whatever the legal merits of the threatened eviction action.
153. ChristinO - 2/25/2000 4:13:05 PM
So the adult thing to do is lose your job and thereby your housing and maybe custody of your children to their crack-head dad or social services so that you can claim you made a responsible choice about sex while you wait for litigation to come through which you may not be able to win?
154. ChristinO - 2/25/2000 4:13:59 PM
Sorry, forgot to address the last post. 153 is to CG.
155. Dantheman - 2/25/2000 4:14:40 PM
CalGal 150,
1. As previously noted, harassment is a gender blind crime. Therefore, the issue isn't that women are being given a free pass for having sex. It's that the law recognizes the powerless of a subordinate in this situation.
2. Having sex is something that cannot be undone and often has greater psychological complications on the victim and his/her family than committing fraud would.
3. Committing fraud generally takes time, during which the victim can contact the authorities to prevent it from occurring. Sex in such circumstances usually takes place immediately.
4. Sex has the complicating factor that the harasser may be promising (or the victim may perceive the harasser as promising) something different than just a one-shot deal (i.e., a long term relationship which the victim may be willing to enter into)
5. As previously pointed out, consensual sex isn't illegal; fraud is.
156. Angel-Five - 2/25/2000 4:17:39 PM
Having sex for something of value is illegal? Not in all cases it isn't.
157. ChristinO - 2/25/2000 4:19:20 PM
"Having sex in exchange for something of value is most certainly illegal.
Having sex for money is illegal except in parts of Nevada. I'm not sure what the law says exactly regarding prostitution but I doubt there is anything about shacking up with someone who provides for you otherwise 30% of the "actresses" in LA would be in jail. These are absolutely sex for benefit relationships and to my knowledge they are not considered prostitution.
158. CalGal - 2/25/2000 4:20:17 PM
So the adult thing to do is lose your job and thereby your housing and maybe custody of your children to their crack-head dad or social services so that you can claim you made a responsible choice about sex while you wait for litigation to come through which you may not be able to win?
You are saying your response to the woman would vary based on your perception of the value? Does this mean that women with salaries of $50K a year should quit, but those with fewer options should have sex?
If not, then what difference does it make wheher she loses housing or the same standard of living?
Besides, suppose a woman has no job and decides to go into prostitution. Why? Because she wants to spare herself the loss of housing, custody, etc. Do the police give a damn? No. It's a crime. So why should it matter if you commit a criminal act to keep a job, rather than instead of a job?
And you still haven't told me how the employee who commits fraud to avoid being fired--who will usually go to jail--has any better options than the woman who has sex to avoid being fired. They're both on the street in the doom and gloom scenario you paint. Why should one be exempt and the other not?
159. CalGal - 2/25/2000 4:23:29 PM
Having sex for money is illegal except in parts of Nevada.
If your boss says, "Have sex with me and I'll give you a promotion", you are having sex for money. If your boss says, "Have sex with me or you're fired", you are having sex for money. If your landlord says, "Have sex with me and I won't evict you for back rent due", then you are having sex for money.
In fact, if your boss says, "Commit fraud or I'll fire you", you are committing a crime for gain--the gain being that you can keep your job. But in any event, you're off to jail in most cases.
160. CalGal - 2/25/2000 4:25:50 PM
Dan,
Unless you wish to argue that harassment laws didn't originate as a way to protect women, you're not saying anything I don't know. Yes, the laws protect both genders. The idiocy of the laws is due to the double standard for women.
161. CalGal - 2/25/2000 4:30:14 PM
Dan,
Sex in such circumstances usually takes place immediately.
Not only doesn't the sex take place immediately in most cases, the firing or negative consequences don't result immediately, either.
Sex has the complicating factor that the harasser may be promising (or the victim may perceive the harasser as promising) something different than just a one-shot deal (i.e., a long term relationship which the victim may be willing to enter into)
Oh, I see. So if the "victim" has sex with the boss because the boss promised a promotion and a long-term relationship, it's different than just a one-time fuck for a partnership?
Having sex is something that cannot be undone and often has greater psychological complications on the victim and his/her family than committing fraud would.
Apart from the fact that this is nonsense (consider the terror of fraud, when you'll go to jail if caught or be fired if you don't do it)--the entire point is that the person doesn't have to have sex.
162. ChristinO - 2/25/2000 4:30:18 PM
CG,
Dan explained the difference between sex and fraud rather well I thought.
I have said nothing about sex for a promotion. We've been talking about sex as opposed to loss of employment or housing. I'm questioning your sense of the word "gain". No one is offering a job for sex they are simply saying that if you do not have sex they will take your job away.
If you have five dollars in your pocket when you leave the house and five dollars in your pocket when you return home in the evening should you be grateful to all the muggers who essentially "gave" you that five dollars by not taking it?
163. Angel-Five - 2/25/2000 4:30:52 PM
If your boss says,
"Have sex with me or you're fired", you are having sex for
money. If your landlord says, "Have sex with me and I
won't evict you for back rent due", then you are having sex
for money.
If your landlord says 'have sex with me and I'll let you slide on rent, and I won't kill you' then by that logic you're having sex for money, which is patently ridiculous. But, hey, it's your logic, not mine. If your boss says 'have sex with me or you're fired', and you have sex, you in the legal sense are having sex because you're coerced and not because you're after money. I mean, what's next, 'she shouldn't have worn the dress?'
If your boss offers you a promotion in exchange for a sloppy headshot there is still an implied abuse of power whether or not the threat is ever made explicit.
164. Dantheman - 2/25/2000 4:32:16 PM
CalGal,
Your post 150 said that sexual harassment is treated differently than the fraud example because women are "given a pass on taking responsibility for their choices", even though it shouldn't be. I've given you 5 reasons why it is treated differently, only 1 of which deals with the gender issue. You haven't responded to the remaining issues (except 5) and instead continue to insist it's a double standard for women when it's not. One of us is having trouble with reading comprehension here.
165. Dantheman - 2/25/2000 4:32:35 PM
Cross post.
166. CalGal - 2/25/2000 4:34:02 PM
If your landlord says 'have sex with me and I'll let you slide on rent, and I won't kill you'
At what point will you stop throwing in violence as a part of the deal? That moves it out of harassment/prostitution and into rape.
Leaving out violence, "Have sex with me and I'll let you slide on the rent" is pretty much straight prostitution.
167. ChristiPeters - 2/25/2000 4:34:14 PM
A minor point - not all states are like California. I had occaision to look up the law in NM when I had a dispute with my landlord there. In NM, a landlord can kick you out at any time with 30 days notice, no reason required. I was shocked to find out that this is true even if you have a lease which has not expired. IOW, if you are 2 months into a year lease in the state of NM and you decide you want to move, you are on the hook for the remaining 10 months rent unless you have an out built inot the lease. However, if you are 2 months into a year lease and the landlord wants to kick you out, all he/she has to do is give you 30 days notice and you are out in the street. The only exception was if the landlord wanted to kick you out because you had kids and they were going to a no-kids policy, they had to give you 6 months notice. Totally stinks, but there it is. Don't be surprised if the law varies wildly from state-to-state depending on whther landlords or tenants have the strongest lobby. (btw, this was in 1987, I hope the law has changed since then, but I don't know one way or the other)
168. ChristinO - 2/25/2000 4:37:22 PM
"You are saying your response to the woman would vary based on your perception of the value? Does this mean that women with salaries of $50K a year should quit, but those with fewer options should have sex?"
No. What I'm saying is that it isn't so easy or cut and dried as you wish to believe. yes any woman can pursue a sexual harassment suit, but most women do not have the option of walking immediately off their jobs, hiring a lawyer and then counting on being able to find work again in time not to become destitute. You are asking a woman not only to behave as "an adult" you are holding her to an unreasonable standard. This is equally true for a man in the same situation. If it were easy to fight harassment it wouldn't happen. That's the reason it's harassment because the harasser has the power and the victim has limited options.
169. ChristiPeters - 2/25/2000 4:37:30 PM
I disagree that the harrassment law assumes that women are children. First, it applies to men too. Second, I think it assumes that anyone in a position of power should not be allowed to use that power to harrass those subject to his/her power. It is about preventing abuse of power, not about the victim of the abuse. I don't care if the person being harassed has $1Mil in the bank or is destitute - the harassment is wrong and should be sanctioned.
170. ChristiPeters - 2/25/2000 4:38:20 PM
aaack - "NOT be sanctioned"
171. Dantheman - 2/25/2000 4:41:07 PM
CalGal,
1. What is your basis for believing the sex doesn't occur immediately? I've certainly seen the opposite.
2. Yes, it is very different if the superior says he'll get into a long term relationship with the subordinate.
3. The "terror of fraud"? If one has the chance to report it and prevent it from occurring (or undo the damage that's been done), the victim will almost certainly not face any prosecution. On the other hand, sex with a boss can (and frequently does) lead to a spouse feeling the subordinate was unfaithful and breaks up marriages.
172. Angel-Five - 2/25/2000 4:43:20 PM
At what point will you stop throwing in violence as a part
of the deal? That moves it out of harassment/prostitution
and into rape.
I'll do that as soon as you realize that a negative penalty, and not just an extension of the status quo, is what is entailed as possible outcomes of the landlord/ChristinO harassment. The degree of penalty seems to matter to you in this case, which shouldn't matter at all since you're talking about the principle of the thing. Doing something to avoid a greater penalty doesn't change the principle, it just makes it more understandable.
173. ChristiPeters - 2/25/2000 4:43:52 PM
Most women I have known who have actually experienced sexual harrassment and have not prosecuted the harrasser, made that decision based on the belief that if they went to court on this - win or lose, they would be unemployable in the future. I hope this changes, but my experience has been that they were right.
I happened to be sitting in on a meeting of the "bosses" during a co-op job where they were discussing various job applications. Two of them were rejected because the individuals had filed union complaints on the job. Since there were many many applications for very few jobs, they could get away with this. There would be no way for the rejected applicant to prove that this was the reason he was not hired.
This probably doesn't happen as much in a tight job market, but being treated fairly shouldn't depend on how tight the job market is.
174. Angel-Five - 2/25/2000 4:49:15 PM
You're also, for whatever peculiar reason motivates you, refusing to acknowledge what everyone else sees plainly as day -- there is an implied abuse of power in a landlord's entreaty to put out or get out. We aren't talking about two people who are searching each other out on a street corner, both equally empowered and choosing of their own free will to engage in a mutually beneficial act, and more importantly we can't assume that anything of the case is even remotely in the cards when the landlord comes knocking, because of that implied abuse, right from the start. It's coercion under the law, and whether or not you think that harassment laws are good for women and men is irrelevant to that fact.
175. CalGal - 2/25/2000 4:52:53 PM
Christin,
No one is offering a job for sex they are simply saying that if you do not have sex they will take your job away.
Yes. And anyone who makes that offer is guilty of an abuse of power. But anyone who takes up the offer is entering into the transaction, rather than refusing it--and they are taking the value offered. Besides, you know perfectly well that most sexual harassment law is a hell of a lot murkier than that.
The piece we're missing in this equation is this: why don't more people (particularly women) report harassment? Right away? Immediately, when it happens? Why do they instead submit to the offer?
I don't believe that it's desperation, since women in all income levels have been shown to submit to the offer--either for a promotion, or for a good review, or whatever.
I think it's because women in particular are used to the notion of using sex as a weapon--either defensive or offensive. As we all know, there are plenty of women who will use sex as a means of getting ahead--who will fuck the senior partner if it gets her that high-profile case--and there are also plenty of women who freeze like a deer in the headlights if someone challenges their security in any way--and fuck the lowlife boss if it keeps her job.
But really, what's the difference between the two? They are both using sex to keep ahead. Until we start expecting them to act like grownups--and expose them to the consequences of their behavior if they don't--I fail to see how things will change.
I certainly don't see any justification for laws that have to be explained in femspeak. Laws that can't stand on their own are certainly at least subject to question, and if the only excuse for them is "Well, performing sex as a way to keep one's job is more traumatic than committing fraud to keep one's job"--then I think we have a long way to go.
176. Toenails - 2/25/2000 4:54:09 PM
ChristiPeters (#167)
Landlord-tenant laws vary a great deal around the country, but even in New Mexico, a landlord can no longer evict because he wants to go to an all-adult operation. Discrimination against families with children is illegal now under Federal law. (Some exceptions for very small operations.)
And, in general, even in a landlord-friendly legal atmosphere like the New Mexico situation you describe, the Federal (and, sometimes, state) civil rights laws would often (but not always) serve as a brake on arbitrary evictions.
177. CalGal - 2/25/2000 4:54:21 PM
Christi,
I'm not arguing that harassment is just fine. I think it's wrong, and should be punished.
I am saying that if one accepts the offered exchange, why is that any different from committing any other crime in order to keep one's job?
178. PsychProf - 2/25/2000 4:57:04 PM
I was advised by the college lawyer that touching an undergraduate student(in this case a hug for a student whose mother was very ill) was inapprorpriate and open to harrassment litigation. How could I have proved myself innocent of a charge since clearly I touched the student...many of my male colleagues avoid female students whenever possible, keep their office door open at all times-privacy be damned, and are in fear of such claims whenever a female student challenges a grade. As for our workplace, clearly sexual in nature as all workplaces are, many are scared to act as men and women. I know of numerous cases in the corporate world of those who simply refuse to date within the work enviornment. I don't pretend to know about the law, but I sure as hell can see what goes on around me.
179. TabouliJones - 2/25/2000 5:00:06 PM
"I am saying that if one accepts the offered exchange, why is that any different from committing any other crime in order to keep one's job?"
If one accepts the exchange it is not necessarily prostitution. It is coerced sex. It is not a case of bargaining back and forth for an exchange of sexual services.
180. Angel-Five - 2/25/2000 5:01:13 PM
It isn't a crime. It's that simple. And you've done nothing at all to demonstrate that it's a crime except to reiterate that it is. Sex with the expectation of compensation does not constitute prostitution in and of itself in any lawbook I've ever heard of, and sex under coercion even less so.
181. TabouliJones - 2/25/2000 5:02:29 PM
PP,
"How could I have proved myself innocent of a charge since clearly I touched the student."
No sensible judge would find you culpable of any wrong doing in such a situation. If a woman brought such a charge, she would probably be politely laughed out of court. Your college lawyer was just exercising abundant caution, albeit it to a ridiculous extreme.
182. CalGal - 2/25/2000 5:04:03 PM
You're also, for whatever peculiar reason motivates you, refusing to acknowledge what everyone else sees plainly as day -- there is an implied abuse of power in a landlord's entreaty to put out or get out.
There's no question that the landlord is abusing power. I'm not arguing that he or she gets off scot-free. I'm just saying that the tenant who puts out has done so in order to get value for the sex. In many cases, it is a direct monetary value (not having to pay rent). That's prostitution.
BTW, I've already mentioned (and Toe has also said) that landlords can almost never just say, "Put out or you're out." In that case, the person could literally just pick up the phone and call the Fair Housing Bureau in their area and get the guy in serious trouble--all the while keeping their apartment. If they don't know that, well, since when do we allow ignorance of the law to excuse breaking it?
But if the tenant isn't reporting it because they know that they would be evicted if they report the landlord (e.g., back rent, too many people living in the apartment, whatever) then their actions are on them. In that case, they are submitting to blackmail, at the very least. And they are offering sex both as reason not to pay their rent (value) and as a means of paying for being able to break the terms of their tenancy.
183. TabouliJones - 2/25/2000 5:05:40 PM
Anyone here seen King Pin?
184. PsychProf - 2/25/2000 5:06:16 PM
Tabouli..Maybe...but the fear is there within all academic communities...many are afraid to tell a joke, no less make a pass. You haven't seen/experienced this?
185. Toenails - 2/25/2000 5:06:45 PM
If you're black and a cop asks you for your driver's license, looks like you'd better not reach for your wallet.
Actually, it's a hard case, and I certainly don't know that the verdict was wrong. Still, a complete free-pass walkaway is hard to take.
186. Angel-Five - 2/25/2000 5:07:04 PM
Yeh. I mean, what, you hugged her and her bra popped out her shirt-collar?
She was grieving in the sauna? What?
There's no doubt that harassment laws can be a wet blanket as far as flirting in the office, and even innocent actions as well, but I also think that's got a lot more to do with undue fear of harassment charges than the actual reality of how harassment works.
187. Dantheman - 2/25/2000 5:08:32 PM
CalGal 182,
"In that case, they are submitting to blackmail, at the very least. And they are offering sex..."
I will agree with you that they are submitting to blackmail. That isn't a crime. Moreover, as previously stated in post 125, the person doing the offering is important to determining whether it is prostitution. I'm glad you're coming around on this one.
188. PsychProf - 2/25/2000 5:10:23 PM
A-5...you have to know that such a charge alone will ruin one's career. By the time the judge throws it out it's too late.
189. TabouliJones - 2/25/2000 5:11:23 PM
PP,
I have seen similar instance of paranoia, but part of the problem is that people are mistakenly characterizing the applicable laws in an extreme (in terrorem) way. True, some people have abused the sexual harassment laws, but I am assuming that common sense will eventually prevail. In a few years, I trust that the lines will be more clearly and sensibly drawn --people's current paranoia aside.
190. Toenails - 2/25/2000 5:14:11 PM
Tabouli-Jones (189)
You're right. But transition periods are a bitch!
191. CalGal - 2/25/2000 5:14:12 PM
Dan,
They are also accepting monetary payment--usually in not having to pay the rent. That's the part that would make it prostitution.
192. TabouliJones - 2/25/2000 5:15:15 PM
PP,
Part of the issue also has to deal with the Institution's efforts to cover there ass. By implementing very strict harassment policies or convincing employees that any touching, however innocent, can be grounds for sexual harassment, they are shielding themselves from being found somehow culpable when one of their employees commits actual sexual harassment.
193. PsychProf - 2/25/2000 5:15:51 PM
Jones...the allegation is sufficient for public execution...
194. Angel-Five - 2/25/2000 5:15:52 PM
CalGal:
That's not prostitution, though -- you keep saying that it is, but you can't demonstrate why. It's not soliciting.
Here's your problem in a nutshell -- you are arguing from principle and then comparing the principle to the law. You are (unsuccessfully) trying to equate sex for value as prostitution, in principle, but then also amphibolizing your way into saying it's also prostitution in the legal sense when your definition of prostitution covers a lot of ground that doesn't match the legal definition. This is necessary for your argument 'if it's still fraud, then it's still prostitution' to fly but it's not a jump you can make.
So you retreat back to the principle, and then try and mount the argument again. But it won't work this time, either.
Forgetting for the moment that the coercion laws rule out prostitution in the case you're mentioning, you still have to make some sort of case that having sex for gain constitutes prostitution, legally (or for that matter in principle). And that's being generous, because the 'gain' in this example is merely to break even.
195. Dantheman - 2/25/2000 5:16:04 PM
CalGal,
No, that's the part that makes it submitting to blackmail.
196. TabouliJones - 2/25/2000 5:16:25 PM
"But transition periods are a bitch!"
Agreed. I do feel for those who have been subjected to vexatious claims.
197. TabouliJones - 2/25/2000 5:19:06 PM
The coercion negatives any notion that the woman has voluntarily agreed to have sex. No sex: no prostitution.
198. Angel-Five - 2/25/2000 5:19:38 PM
Prof:
I respectfully disagree that it will ruin one's career, because I know of many people who were convicted of sexual harassment (real harassment, not hugging a student) who had long and involved histories of sexual harassment complaints in prior jobs and communities, and even in current jobs and communities.
I'm not going to tell you that it's all good, or that it comes without a price, because I know that it does damage a career to a certain extent depending upon how believable the charges are and how bad they sound. But I think it's better than an environment where women have little protection against requests that they fuck to get and keep their jobs.
199. Dantheman - 2/25/2000 5:21:49 PM
TJ 197,
Your first sentence is right. The second isn't quite. More like no voluntary sex = no prostitution. No one is denying the sex took place.
200. TabouliJones - 2/25/2000 5:23:17 PM
Dantheman,
I meant to say no voluntary sex = no sex in the eyes of the law = no prostitution.
201. Angel-Five - 2/25/2000 5:23:40 PM
And you know? I can say that, because I have been sexually harassed by female superiors more than once, and I'm not just talking about someone asking me a sexually ambiguous question. I'm just sort of fortunate that my societal role allows me a lot more leeway in those positions than an unwed mother with no college education.
202. Indiana Jones - 2/25/2000 5:27:25 PM
A5: Cool! (High five)
203. ChristinO - 2/25/2000 5:31:00 PM
CG,
Quit changing the example. I'm not getting a break on the rent. I'm not behind on the rent. I haven't done anything wrong. I am a tenant in good standing with a nice pair and my landlord says he gets to touch them or I can find another place to live. The issue isn't rental laws. Let's assume I've got a three days before he puts my stuff in the street and changes the locks.
You're suggesting that if I submit to this and then file suit that not only should I be laughed out of court but I should be prosecuted for prostitution.
204. Angel-Five - 2/25/2000 5:31:16 PM
It really is a different for guys, I think, at least on average. You can still feel a little intimidated and worry a little bit about your job, but guys' experiences and reactions as the victim of sexual harassment usually sound a lot different from womens'.
(And, no, Indiana, it doesn't sound like a zipper opening.)
205. Angel-Five - 2/25/2000 5:33:07 PM
I just now saw, and got, the Kingpin reference.
206. Dantheman - 2/25/2000 5:33:37 PM
ChristinO,
"I'm a tenant in good standing with a nice pair..."
Care to demonstrate?
and since I'm not your landlord, boss or anyone else who has power over you, that's not harassment
207. TabouliJones - 2/25/2000 5:34:45 PM
A-5,
Its hard to keep the conversation in its proper perspective when you have that King Pin image in your head. Poor Woody.
208. Angel-Five - 2/25/2000 5:35:41 PM
Poor Woody, indeed.
209. Dantheman - 2/25/2000 5:38:22 PM
Sorry, but I need to head home. See you all next week.
210. ChristiPeters - 2/25/2000 5:39:13 PM
I think it's because women in particular are used to the notion of using sex as a weapon--either defensive or offensive. ...... and there are also plenty of women who freeze like a deer in the headlights if someone challenges their security in any way--and fuck the lowlife boss if it keeps her job.
While I don't deny such women exist, either I have led a very sheltered life (possible) or they aren't in the majority. Most women in my generation had real experiences that taught them you don't buck the boss. The old boy network would make sure you would never work again and the one most hurt if you refused and reported would be you.
I think (I hope) that this is changing. However, in spite of all the publicity and the paranoia, I don't think it has changed that much yet. It's not a woman/man thing, either. Whistle-blowers of either sex get screwed, no matter how many no-repercussion rules are out on paper.
211. ChristiPeters - 2/25/2000 5:42:17 PM
The old boy network would make sure you would never work again and the one most hurt if you refused and reported would be you.
I left out -Most of them also wouldn't put out. They accepted that if they refused their career/job there was over and hung tough until they could find another position. (Hard to build seniority that way, though)
212. CalGal - 2/25/2000 5:52:35 PM
Christin,
I am a tenant in good standing with a nice pair and my landlord says he gets to touch them or I can find another place to live.
As I said--report him to the FHB. No state I can think of gives a landlord that kind of power.
213. ChristinO - 2/25/2000 5:55:15 PM
Gaaah! KingPin! I nearly hurled during that scene. I saw this film almost back to back with Trainspotting another film with heave-inducing moments.
I have no idea what that actress's name is but I love her although she creeps me out big time. She's the suntanned lady in Something About Mary and the psycho-religious mom in Detroit Rock City.
214. CalGal - 2/25/2000 6:03:12 PM
BTW, since this is probably veering off of the legal aspect, let me try and bring it back into line:
The current situation is problematic because there are so many people who cheerfully provide sex for advancement or other advantages that directly translate to monetary gain. There is no way to know whether or not a person who doesn't report an offer is complicit (engaging in prostitution) or coerced. This makes burden of proof extremely murky, for both sides--especially since there are relatively few cases that are as clearcut as "Fuck me or I'll fire you."
So why not provide a way to distinguish between those who are complicit and those who are coerced?
Example: If Person A has decision making authority over any aspect of Person B's life (employment, education, residence, financial), then any direct offer to use that authority in exchange for sex is a crime/misdemeanor. Likewise, if anyone accepts such an offer without reporting it and also benefits from the transaction, they can be charged with prostitution.
This gives Person B a clear means of defense that doesn't involve having sex with the person: they can report it to the cops, right away. They will have to document the date, time, the words used, and preferably it should be reported within given time limit. Once the report is made, it will become extremely difficult for Person A to abuse his or her decision making authority to Person B's detriment. The report shouldn't be taken at face value, but investigated. If there is insufficient evidence to charge Person A, then it will still make it difficult for Person A to act out, if the report exists. And if Person B is just being malicious, that, too, will probably come out.
215. CalGal - 2/25/2000 6:03:45 PM
If Person B doesn't make a report of the offer, and instead has sex with Person A, then he or she is assumed to have willingly entered the agreement. In this case, if their activity is discovered, both A & B are charged--one with solicitation, the other with prostitution. If it is discovered and Person B has not clearly benefited, then only Person A is charged.
This would obviously create an entirely different set of problems--as would any new law. I'm just using it as an example, to demonstrate a way of handling these situations that does hold the "victim" responsible for their actions. Provide a clear course of action to anyone who receives an unwanted offer of sex from someone who has decision making power over them.
216. ChristinO - 2/25/2000 6:04:07 PM
So I should live in the street until the FHB takes action? I've never known a government agency that works all that fast.
The issue here is that there are means of force and coersion that don't require someone holding a gun to your head. What it seems to me that you are saying is that if you cave for any other reason than immediate and serious bodily harm then you're a sucker and you deserve what you get.
Do you apply this equally to all scenarios or only to women being propositioned for sex?
217. CalGal - 2/25/2000 6:16:11 PM
So I should live in the street until the FHB takes action? I've never known a government agency that works all that fast.
Christin, all you'd have to do is tell the landlord that you'll report him to the FHB, and you're halfway there. That doesn't work, find a lawyer, quick--and there are plenty of places to report abuses like this.
Generally, you can't be evicted in three days without cause (and there are required bulletins posted on this in every rental office I've ever seen). And if there's cause, then that is the problem, not the landlord. Your landlord has just complicated things by giving you an option other than the one you should be subject to--and that is where I submit that it becomes prostitution, or close to it.
Again, it is not that the landlord gets a walk.
What it seems to me that you are saying is that if you cave for any other reason than immediate and serious bodily harm then you're a sucker and you deserve what you get.
In most cases, yes. I don't know that I'd call them a sucker, but I would say that they have confused the matter considerably and have accepted something of value for sex--keeping in mind, again, that immediate terminations or evictions are not generally at issue. There has to be cause in most cases, and that is precisely what makes the matter so murky.
As I just mentioned, I do think that there needs to be a clear course of action for those who feel they are being coerced into sex. For one thing, I think it would cut down a great deal on the offers. For another, it creates a clear line between those who then have sex and accept the benefit and those who don't.
But if you had a lousy performance review, and you put out for your manager in order to keep from getting fired, why should that be substantially different from taking the termination and then accepting $2000 bucks for giving the guy a blowjob?
218. ChristiPeters - 2/25/2000 6:19:21 PM
CG - How would your law deal with Person B neither reports nor complies?
219. CalGal - 2/25/2000 6:33:10 PM
Christi,
I don't think it's against the law to fail to report a crime, is it? For example, I might do that as a consultant if my site manager came on to me. Say no thanks, and leave the contract as soon as my time is up--it's not to my advantage to report it.
But if Person B didn't report it and then later complained, that would be on Person B.
It would be nice, however, if there were a way for Person B to report it, document that it happened--but say, "Look, I've turned it down and I'm hoping nothing will come of it." Then if later, Person B was actually penalized for saying no, they'd have proof.
I don't see how that could be handled from a criminal perspective, though.
But again, it isn't just in the area of sexual relationships that an employer can make undue demands. Employers can demand that their employees engage in criminal activities--and let's face it, most of us would rather not report our managers to the cops then, either. So our lives can always get seriously fucked up if we happen to have a shitty manager--unfair sexual demands is just one way. But in this one area, we tend to give far too much leeway to the victim--they can accept the advantages and then complain later. (this is not to imply that most of them do, but it gets very murky). And it is for precisely this reason that the victim is so often looked at askance--because their silence can reasonably be construed as complicit (regardless of what the law says). This means, of course, that the victims are less likely to report because they don't like being doubted and they might not be believed--completing the cycle.
If you give the victim a reasonable means of identifying the behavior and an understandable consequence if they don't, then you have handed a lot more power to them--as well as a hell of a lot less opportunity for Person A to get away with his behavior.
220. ChristiPeters - 2/25/2000 6:40:00 PM
CG -
I think in some instances it is against the law to fail to report a crime (child abuse comes to mind) but I wasn't thinking in that direction.
Far from thinking there are all kinds of irresponsible women out there giving sexual favors to keep their jobs or get a promotion who then whine about it (not that this doesn't happen), my focus is on the asshole managers, etc who get away with this over and over and over and just keep on advancing and making more money leaving some wrecks behind. (some women go through this and are "I got what I wanted", some women shrug it off, some women are devastated)
I want to fry them.
I want some way to fry them even if the victim doesn't want to report it.
I realize this is unrealistic, but I feel that way anyway.
Well, I'm outta here. It's been interesting. Maybe I'll come back later tonight.
221. ChristinO - 2/25/2000 6:56:53 PM
have accepted something of value for sex
Nothing has been accepted. Nothing has been offered. The threat is to take something. If I am not robbed it doesn't mean what I own is a gift to me.
As I just mentioned, I do think that there needs to be a clear course of action for those who feel they are being coerced into sex. For one thing, I think it would cut down a great deal on the offers. For another, it creates a clear line between those who then have sex and accept the benefit and those who don't.
So then the law applies to you only if you believe it can protect you otherwise you're screwed. "Sorry ma'am but because you're not liberated enough to stand up for your rights we're running you in on prostitution charges. Your landlord only did something wrong if you didn't let him do it to you."
But if you had a lousy performance review, and you put out for your manager in order to keep from getting fired, why should that be substantially different from taking the termination and then accepting $2000 bucks for giving the guy a blowjob?
Why do you insist on discussing two separate issues as if they are the same thing? If you are a lousy employee you deserve to lose your job. If you are a good employee you deserve to keep your job. Sex has no place in the legitimate employer/employee relationship. Offering sex is sleazy but demanding sex is a crime.
I don't think it's against the law to fail to report a crime, is it?
It depends on the crime. If it's murder or involves a crime against a child there certainly are penalties. I have no idea what other crimes require witnesses to come forward but there may be some.
222. ChristinO - 2/25/2000 7:04:24 PM
"So why not provide a way to distinguish between those who are complicit and those who are coerced?"
By saying those who report immediately and do not submit are being coerced and those who submit or do not report immediately are complicit? This would require that every claim of harassment be treated immediately and publicly as a true claim until disproven otherwise what you are doing is penalizing the victims. Unfortunately this provides for penalizing those standing falsely accused. Additionally we need to immediately inform the populace that a person who accuses is not to be penalized for having stood up for him/herself and anyone accused is not to be penalized until proven guilty.
Which all brings me back to my original question: how effective is it to attempt to change the social consciousness by passing a law?
223. arkymalarky - 2/25/2000 8:08:09 PM
Man, this thread has taken off! Great lurking material.
My school is thinking of adopting random drug testing as a requirement for participating in any extracurricular activity. I'm interested in the status of that sort of thing legally.
224. MsIvoryTower - 2/26/2000 1:56:48 PM
Well, this has been an interesting take off on the problem of what constitutes "force or coercion". I think it captures the ambivalence in the law (across various states) nicely.
The problem is precisely how far we want to go (we meaning as a society generally, and as citizens of each state), in defining what a "threat" or "force" might be. The landlord "threatening" to throw the tenent out if sexual favors aren't given is smack dab in the gray area. Is it rape or is it some other form of harrassment?
My understanding is that there is no clear resolution of where the line is drawn. Some states have firmly come down on the side of Calgal's position, if it isn't some form of physical force or coercion, then it isn't rape. Other states have focused on the issue of consent, is it "freely given agreement", and what that actually means.
Then there are states that are completely undecided, and the language of their statutes is deliberately vague and open to interpretation, perhaps hoping to throw the problem of what is or is not rape in these sorts of cases to the courts and juries to decide.
I'm still interested in what level of culpability people think should attach to various crimes, however, and whether there is any justification for strict liability when the crime results in imprisonment.
As I said earlier, outside of statutory rape when the victim is 12 or under, I think there should always be some level of culpability required, even when the public welfare is involved.
225. MsIvoryTower - 2/26/2000 2:03:17 PM
arky
I'm not up to random drug testing yet in criminal law, so I have very little to say. I suspect this is a due process issue, however, and more related to constitutional protections. While I had a semester of constitutional law, I consider it basically useless in answering this sort of question since we didn't deal with any of the Bill of Rights.
Sigh.
226. MsIvoryTower - 2/26/2000 2:20:16 PM
Btw, Arky
My feeling is that schools shouldn't be allowed to impose a random drug testing requirement for participation in any outside activities, that it violates 4th amendment protections, but I'm without any solid legal basis for such a position.
I suspect the school wants to capture some element its not being forthright about, like the football or basketball teams, but would certainly not be able to selectively test only those groups without some due process violation.
Were I a parent in your school, I'd oppose it.
227. MsIvoryTower - 2/26/2000 2:36:35 PM
Jaysus
Those last two posts are a bit ditzy.....
I suppose I could delete them, since in now have
T h e P o w e r
but I've grown used to letting them stand as they are....
228. CalGal - 2/26/2000 2:52:51 PM
Ms,
Could you restate the whole "culpability" debate? I didn't understand it the first time from the conversation between you and TJ. Probably something simple I missed.
229. MsIvoryTower - 2/26/2000 4:40:26 PM
Calgal
I'm not sure we actually went into any depth on the issue of culpability levels. I eluded to the debate in my second post for the thread. However, I think it needs some expanding.
Culpability is simply the level of mental guilt someone has when committing a crime. There are four levels identified: intent, knowledge, recklessness and negligence.
Intent is simply intending to do the harm caused
Knowledge is knowing the result is most likely, even if one doesn't intend it, and disregarding the outcome.
Recklessness is knowing there's a high risk of the outcome but ignoring the risk and going ahead anyway.
Negligence is being too dumb to know, but that you should have known.
(and no, the texts don't actually say dumb, but that's the implication).
With respect to statutory rape, there is no level of culpability attached. You rape a child, you get punished. Thus, you didn't have to have knowledge of her/his age, or suspect it, or even have negligence with regard to their age. You break the law, you get punished. That's strict liability. It goes against the old notion that one should have a guilty mind before one can be held responsible for committing a crime. (guilty mind, guilty acts).
While statutory rape is almost easy to rationalize a strict liability standard, there are many other crimes that carry strict liability as well. Most often they're in the area of public welfare statutes, but some are also in the area of family law as well.
For instance, is a statute that makes it illegal for a man under a protective order to carry a weapon valid if it doesn't require any "intent" to break the law (like if he was never told about the law, and didn't have any chance to reasonably be put on notice about it)?
230. Absensia - 2/26/2000 5:42:42 PM
arkymalarky, re your post 223:
There is a 1995 US Supreme Court case, Vernonia School
District v. ActonSupp, where the court upheld randon drug testing for students involved in interscholastic athletics. From the language of the case, it would seem the court would have no problem extending it to other interscholastic athletics.
If found a quick summary of the case in findlaw.com and quote in the next post it:
231. Absensia - 2/26/2000 5:44:38 PM
"Emphasizing the ''special needs'' of the public school context, reflected in the ''custodial and tutelary'' power that schools exercise over students, and also noting schoolchildren's diminished expectation of privacy, the Court in Vernonia School District v. Acton upheld a school district's policy authorizing random urinalysis
drug testing of students who participate in interscholastic athletics. The Court redefined the term ''compelling'' governmental interest. The phrase does not describe a ''fixed, minimum quantum of governmental concern,'' the Court explained, but rather ''describes an interest which appears important enough to justify the particular search at hand.'' Applying this standard, the Court concluded that ''deterring
drug use by our Nation's schoolchildren is at least as important as enhancing efficient enforcement of the Nation's laws against the importation of drugs . .. or deterring drug use by engineers and trainmen.'' On the other hand, the interference with
privacy interests was not great, the Court decided, since schoolchildren are routinely required to submit to various physical examinations and vaccinations. Moreover, ''[l]egitimate privacy expectations are even less [for] student athletes, since they
normally suit up, shower, and dress in locker rooms that afford no privacy, and since they voluntarily subject themselves to physical exams and other regulations above and beyond those imposed on non-athletes. The Court ''caution[ed] against the assumption that suspicionless drug testing will readily pass muster in other contexts,'' identifying as ''the most significant element'' in Vernonia the fact that the policy was implemented under the government's responsibilities as guardian and tutor of
schoolchildren. "
School drug testing
232. Absensia - 2/26/2000 5:46:03 PM
I don't agree with the decison or the reasoning, but as always, they didn't ask me. I also just realized this may be a waste of space, since I don't know if you are in the U.S. I do think the court's reasoning is worthy of comment..or perhaps I mean lack of reasoning.
233. MsIvoryTower - 2/26/2000 6:01:49 PM
See? I told you I knew next to nothing about this area of the law....not even a due process issue, but a right to privacy issue.
FWIW, I strongly disagree with that decision.
234. Absensia - 2/26/2000 6:12:18 PM
I strongly disagree too! Considering the make up of the court, it's not surprising, though.
235. cigarlaw - 2/26/2000 9:51:20 PM
under the law infabts==yjose umder 18 have a lessened expectation of privacy and when in school the school -- in most instances--operate as a parent. besides, the kid doesn;y have to test--just don't participate in non-mandatory school activities.
236. cigarlaw - 2/26/2000 9:51:22 PM
under the law infabts==yjose umder 18 have a lessened expectation of privacy and when in school the school -- in most instances--operate as a parent. besides, the kid doesn;y have to test--just don't participate in non-mandatory school activities.
237. Absensia - 2/26/2000 10:03:01 PM
Cigarlaw,
Naw.."suiting up in a locker room" isn't the same as drug testing.
Physical exams for athletes are to make sure they are healthy enough for the sport and docs don't do drug tests for them. Shouldn't need to have a physical to participate in debate team, or the newspaper, etc., and why should a student have to choose between random drug testing and school activites when there is no probable cause? Missing
out on those activities is more than a small thing. Many colleges look at whether an applicant has been involved in such activities when deciding who to admit.
Sure more and more companies demand drug testing even to apply for a job. Boeing does...and not just for people who build their planes or are test pilots.
238. joezan - 2/26/2000 11:00:58 PM
What a sensible decision. I know very little of the law, but it has always been my argument that students participating in extra-curricular sports voluntarily submit to such a high degree of privacy invasion that the argument against drug testing on those grounds is specious.
239. Absensia - 2/26/2000 11:04:42 PM
Joezan:
And what about non-athletic actives?
240. Angel-Five - 2/26/2000 11:12:32 PM
The decision is nonsensical. High school athletes have to take physicals because of school liability. However, the schools are not liable for drug use among student athletes. Schools have the right to conduct locker searches based upon suspicion that a student is involved in something illegal -- but they don't have the right to invade privacy based upon nothing at all. In loco parentis has been abridged and weakened by a lot of recent rulings simply because we realize that it's not in everyone's best interest for the schools to have the power over children that parents do. The ability to randomly invade privacy for any reason whatsoever is one of those things which make it plain that in loco parentis is best kept on a very short leash.
241. joezan - 2/26/2000 11:14:42 PM
Abs:
That's a little more dicey, of course. But for non-athletes I don't think it's justifiable. I wouldn't deny the school the right, with just cause, to require testing of non-athletes though.
242. Absensia - 2/26/2000 11:16:21 PM
Joe
I think Angel's right. And, I don't see any compelling reason for drug testing on a random basis.
243. joezan - 2/26/2000 11:16:51 PM
A-5:
Athletes are required to take physicals for their own protection. You may read that as a liability concern, but long before liability was such a priority, athletes were required to have physicals.
244. Absensia - 2/26/2000 11:20:59 PM
But, Joezan, when they get those physicals, the docs don't test for drugs. Ones I talked to make a point not to..most school required exams are pretty cursory, from what I've seen and been told.
245. Angel-Five - 2/26/2000 11:24:36 PM
Many Americans choose not to engage in activities which require them not to be submitted to involuntary invasions of their privacy, not because they have something to hide, but because they value their privacy in principle and don't want to tacitly support policies which violate their right to that privacy. This is a legitimate right of any American based in the Bill of Rights.
The decision to allow schools to randomly test athletes for drug use is one which discriminates against people who choose to exercise that right. Arguing that students can't complain because they voluntarily choose to have sports physicals is specious -- it's precisely like arguing that because a police officer has the right to demand your driver's license and you tacitly support that because you choose to drive an automobile, you can't complain if the police officer demands that you submit to a strip search, or a blood test, without any probable cause to do either.
And why shouldn't they? After all, if the cops strip-searched and blood-tested everyone they pulled over, they'd probably find a lot of illegal firearms and drugs as a result. But we don't let them do that because there's no probable cause and the invasion of innocent citizen's privacy outweighs the additional chances to arrest criminals. The exact same principle is at work when we're looking at randomly drug testing student athletes.
246. joezan - 2/26/2000 11:27:52 PM
Abs:
I don't see your point.
247. arkymalarky - 2/26/2000 11:34:03 PM
Thanks everybody, and thanks Absensia for the great info and link.
I'm really beginning to have a problem with the guilty-until-proven-innocent mentality that is becoming so prevalent. The more widespread it becomes the more chance for misuse and abuse, imo. I agree with Msit about the 4th Amendment, and I'm beginning to wonder whether there should have been a clearer "right to privacy" clause in the Constitution. The other freedoms don't mean a lot without the assumption that your business is not automatically any and everybody else's business.
What bugs me about the random testing for students is that 1) it's generally known who has a problem and who doesn't, and many of them don't participate in e-c activities anyway, and 2) they're the ones who most need school involvement in the first place, and such a policy would only make it less likely for the school to have any positive influence on them, in addition to making those who aren't guilty feel like they're suspects.
It hasn't been adopted yet, and is still in the discussion stages.
248. Angel-Five - 2/26/2000 11:34:07 PM
Joezan: So? That's what it is now. But even if it was, the rationale for having compulsory physicals is to determine whether a student's participation in a sport puts their lives or health at risk. Testing for drug use has nothing to do with that, because any adverse affect it has on the body that can possibly be used as a justification for denying a drug-using student the chance to play sports will turn up in the physical. Cut and dried, that is it.
What you're talking about is invading their privacy for a wholly different reason -- your own interest in controlling their behavior. But that doesn't work.
I mean, why not force student athletes to take a lie detector test to see whether or not they've committed violent felonies as well, or make them be fingerprinted and compare those prints to the ones found at the scene of unsolved crimes ? After all, you know, they've already submitted to an invasion of their privacy for their own good and for the legal protection of the school. Why not make them also submit to an invasion of their privacy that has no similar justification? Just for kicks?
No, it won't wash.
249. joezan - 2/26/2000 11:34:45 PM
A-5:
No -it's not the exact same principle. First off, extra-curricular sports involvement is voluntary. But the biggest difference is, the kid is not criminally liable if he is found to have illegal drugs in his system - he simply forfeits his privilege of participating in e-c sports.
250. Absensia - 2/26/2000 11:35:24 PM
My point is that those physicals aren't particularly invasive, and have at least a small justification to be done...so claiming that some how a student's right of privacy has been lessened because of such a physical exam, doesn't follow..at least not to me.
251. Angel-Five - 2/26/2000 11:36:28 PM
Arky:
re: your next to last paragraph:
Exactly. That is dead on target.
252. IrvingSnodgrass - 2/26/2000 11:39:30 PM
Joe:
he simply forfeits his privilege of participating in e-c sports.
Arky's message made me aware that perhaps participating in sports is the best thing possible for a kid with a problem. Is it better to isolate these kids?
253. Absensia - 2/26/2000 11:39:42 PM
Arky,
I hope that's where it stays..in the discussion area. Yes, you can usually tell who's got the problem, though I speak from involvement in swimming..no other sports.
I think the issue is one of privacy. I don't think a more precise 4th amendment would ever be accepted. And no doubt this supreme court could still find drug testing okay...oh for the days of Earl Warren and Douglas!
254. joezan - 2/26/2000 11:41:35 PM
Abs:
I used to "drop" my probationers all the time. It is nowhere near as intrusive a procedure as a Dr. grabbing the testes and saying cough. As a matter of fact, one need not even see any private parts in order to have a good drop.
255. Absensia - 2/26/2000 11:42:56 PM
And, I don't think it's just sports' participation that the court singles out, even though that was the issue..their justification..locker searches, et al, seems to leave the door open for other school activities..."Bill outsted from Science Club...illegal drug found in his system."
256. Angel-Five - 2/26/2000 11:44:40 PM
No -it's not the exact same principle. First off,
extra-curricular sports involvement is voluntary.
(cough) So is driving a car, Joezan, last I checked.
But the
biggest difference is, the kid is not criminally liable if he
is found to have illegal drugs in his system - he simply
forfeits his privilege of participating in e-c sports.
Oh, yah, it's a privilege. That's why people can successfully sue to be let onto a sports team, like women in men's wrestling. It's not that simple.
And even if that were the case, you're still talking about denying the at-risk student one of the biggest assets we've ever found that they can use to help stay drug free -- sports. Midnight basketball, ever hear of that? Haven't you ever heard the professional athletes who speak out against drug abuse talk about how one of the things that let them stay straight was being in a sport? You are going to take the child on the borderline and cut them off from what may be for them the only readily available support group they have. So what are they going to do then if they get denied the ability to play sports for their school? Love the system that did it and go home and take up the frickin' flute?
No, they're going to have a lot of people around, the people who give them the drugs in the first plave, there to tell them 'see, the school doesn't give a fuck about you, man. They're just trying to fuck with your freedoms'. And at the age where they're most susceptible to peer pressure you are at one stroke going to ensure that most of the peer pressure they feel is going to be negative.
257. joezan - 2/26/2000 11:45:48 PM
Irv:
Sometimes. One thing I know, though - and you may ask just about any HS coach - is that, for the most part, these kids tend to be a disruptive influence on the whole team.
258. Absensia - 2/26/2000 11:46:50 PM
Joezan:
"I used to "drop" my probationers all the time."
Not sure what you mean by "drop." As far as probationers, "you do the crime, you do the conditions of probation." Don't necessarily agree
with that, but it's more understandible.
I prob. don't appreciate that kind of physically..I'm teste-less, and docs don't get that upclose and person for female sports' exams, at least none of mine ever did, thank god.
259. joezan - 2/26/2000 11:51:04 PM
A-5:
Stop your damn twitching, man. Geez, are you capable of having a controlled discussion?
(cough) So is driving a car, Joezan, last I checked.
Nice try. You may not drive (or you at least suffer severe restrictions on your driving) after you have been arrested for DUI, may you?
260. arkymalarky - 2/26/2000 11:52:06 PM
But you can drive after you've been arrested for marijuana.
261. joezan - 2/26/2000 11:53:26 PM
Abs:
"Drop", as in "urine drop", as in peeing in a bottle.
262. joezan - 2/26/2000 11:54:58 PM
Arky:
Not if you're charged with driving under the influence, you can't.
263. Angel-Five - 2/26/2000 11:57:30 PM
Oh, now, don't get worked up, Zan.
I'm totally at a loss to determine how your DUI example bears on anything. Explain.
264. IrvingSnodgrass - 2/26/2000 11:57:48 PM
Joe:
Speaking as someone who has coached youth sports for many years, the problem kids are the coaches' challenge. I've always been pretty good at drawing out the disruptive kids and making them a part of the team. One year, the league gave me all the problem kids since I was so good with them. What a nightmare, but it worked out ok.
I would hate to see a player who has problems lose the opportunity to overcome those problems through a good sports program. Sure, you won't have 100% success, but even 20% success sure beats cutting all the kids off. They need help, not isolation.
265. Absensia - 2/26/2000 11:58:20 PM
Joezan, thanks for the clarification...I do know I don't want to be the one who holds the bottle.
In this state you can continue to drive until you go to court and are found guilty or plead. An arrest doesn't change anything.
266. arkymalarky - 2/26/2000 11:58:46 PM
I didn't say that. I said for smoking marijuana at all. IOW, your right to drive is not taken away simply for smoking, but only if you're under the influence while behind the wheel.
267. arkymalarky - 2/26/2000 11:59:49 PM
Oops. 266 was to Joe.
268. Absensia - 2/27/2000 12:07:51 AM
Sorry to be dense, but what does IOW mean?
269. joezan - 2/27/2000 12:08:52 AM
Irv:
Most of the coaches I've met who've been "very good" with these types of kids were actually very good at enabling them - particularly when they are good athletes. No reflection on you, I'm sure.
It's a purely personal belief of mine that if a kid wants to do any extra-curricular stuff, he'd damn well better have all his ducks in a row. Or at least most of them.
It was a HS coach, in fact, who once brought it home to me in a very real way: He asked me What the fuck do the kids who work their asses off to be the best they can be - who study and practice hard, get along with everyone, obey their parents, don't wise off to their teachers - what do they get to distinguish them as damn fine people? They get shit! It's when a kid is a total screw-up that everyone comes to his rescue and makes a big deal of him.
And that is exactly how most kids see it, Irv.
Let the kid get his act together, and then give him some extras.
270. arkymalarky - 2/27/2000 12:11:32 AM
Not every kid who misuses drugs is a thug or a discipline problem. I've known many over the years who weren't any trouble at all. And don't forget we're not just talking about athletics, but everything from NHS to FHA.
271. arkymalarky - 2/27/2000 12:12:28 AM
IOW means in other words. I could've sworn I typed that into #270.
272. joezan - 2/27/2000 12:13:43 AM
Abs:
It is the pee-er who holds the bottle.
273. arkymalarky - 2/27/2000 12:13:48 AM
I've never known of a coach who wanted to ditch a good player for drugs, and they do exist in hs just like they do in college and pro sports.
274. Absensia - 2/27/2000 12:16:34 AM
Thanks, Ark...now it's sooo obvious..duh.
Joe, but who watches? Wouldn't want the pee-ee and the pee-or to pull a fast one..naw..I don't wanna know who watches...
275. joezan - 2/27/2000 12:16:48 AM
A-5, Arky:
But the cop is not acting in loco parentis. The school is, in effect, like the parent who finds a joint in the kids drawer, and grounds him/her from any activity outside the house except for school. Perfectly reasonable.
276. IrvingSnodgrass - 2/27/2000 12:17:11 AM
Joe:
You and I obviously see things differently. As a coach, I really don't care how a kid performs on the field. I am interested in helping him develop as a person, learning teamwork and sports skills. I have never overlooked a kid's problems, and I can't imagine a good coach doing that, so your comment about "enablers" just doesn't fit.
I understand you prefer to leave kids alone to work out their problems. I personally feel that adult guidance and examples are very important to a developing young person, and that excluding those with problems from the very activities that will help them is dooming these kids to sink deeper into their problems.
I hope my children never have a coach like the one who made the statement you quoted. It's frightening.
277. Angel-Five - 2/27/2000 12:19:14 AM
If most kids could just get their act together there'd be little interest in initiatives like this in the first place, Zanni. You're just proposing to cut them off from one of the best means they have of 'pulling themselves up by their own bootstraps'. If the aim of the program is ostensibly to keep kids off drugs then it's obviously self-defeating. Although it does give some people the vicarious thrill of punishing other people.
So let me get this straight.
The program a) invades the privacy of children without just cause, b) unfairly discriminates against other responsible children who believe in standing up for the Bill of Rights,
c)isolates at-risk children from one of the best means around to support them,
d)doesn't even target the majority of at-risk children, just the ones who might be minded to seek support in the first place,
e)offers no means of determining as a result whether or not it's even successful at keeping kids off drugs
f)rather instead clearly seems to work at cross purposes as far as that goal is concerned.
Gee. Where's the downside?
Why don't we just hand out crack pipes instead?
278. arkymalarky - 2/27/2000 12:19:50 AM
"But the cop is not acting in loco parentis. The school is, in effect, like the parent who finds a joint in the kids drawer, and grounds him/her from any activity outside the house except for school. Perfectly reasonable."
Sure, when they have reasonable cause to investigate a problem.
279. joezan - 2/27/2000 12:20:09 AM
Abs:
Ok, wise guy. Now I gotta explain so's people don't think I'm a pervert.
With his back to you, the pee-er does his deed in the cup. You merely stand there behind him (or, in your case, her) and make sure he/she isn't merely scooping water outta da terlet.
Cappiche?
280. IrvingSnodgrass - 2/27/2000 12:22:35 AM
Joe:
The school is, in effect, like the parent who finds a joint in the kids drawer, and grounds him/her from any activity outside the house except for school. Perfectly reasonable.
That doesn't sound like a reasonable response to me. But it sheds light on where you're coming from. I feel kids need guidance and help, not punishment. If one of my kids had a joint, I certainly wouldn't keep him/her from organized adult-supervised activities.
281. Absensia - 2/27/2000 12:26:10 AM
Oh thanks, Janz..but you gotta watch don't you..the person could be smuggling in someone else's sample..hey..I've read about that..no first hand experience though!!!!
282. Angel-Five - 2/27/2000 12:28:35 AM
But the cop is not acting in loco parentis. The school is,
in effect, like the parent who finds a joint in the kids
drawer, and grounds him/her from any activity outside
the house except for school. Perfectly reasonable.
Joezan, this isn't hard.
The cops do not randomly stop and search automobiles for drugs. What you are proposing is the equivalent of that. Perhaps you'd LIKE the cops to do that, but it's unconstitutional for them to do that.
The proper analogy is this:
cop pulling over a drunk driver and citing them for DUI: student being observed getting high by school authorities and being cut from the team as a result.
I don't have a problem with that. No one's privacy is violated; no one is discriminated against simply because they stand up for their constitutional rights; the punishment is correctly applied. What I do have a problem with is :
cops randomly stopping and testing drivers without probable cause: schools randomly invading the privacy of their students without probable cause.
And I think it's the same problem most other people have as well.
The in loco parentis statement you just used is fallacious, because even the bozos who came up with this notion clearly recognize that the school doesn't have the in loco parentis power to force a drug test. Otherwise, they wouldn't have to look for specious conditions (such as athletes already submitting to physicals) in order to justify it in the first place, they'd just be testing all students at random.
283. Absensia - 2/27/2000 12:28:44 AM
284. joezan - 2/27/2000 12:30:37 AM 285. arkymalarky - 2/27/2000 12:33:04 AM The proper analogy is this: 286. Angel-Five - 2/27/2000 12:33:35 AM Clarification: The reason I wouldn't have a problem with a student getting cut from the team is not necessarily a universal one: but most schools I know of require their student athletes to sign a code of ethics statement which prohibits them from drinking, using tobacco, doing drugs, etc. I'd rather that those students who get caught be allowed to stay in the program, or at least get hooked up with some other support system, but they also ought to take such things seriously if they sign them. 287. arkymalarky - 2/27/2000 12:34:07 AM Hmm. It seems to have something to do with Absensia's post. I wonder what caused that. 288. Angel-Five - 2/27/2000 12:34:32 AM Whoopsie. 289. Absensia - 2/27/2000 12:35:09 AM I don't think it should be allowed at all, based on 4th amendment reasons. But on a practical note, I don't think schools are going to pay for the really high tech drug tests, so wouldn't kids be dropped for taking over the counter cold medicine, eating a poppy seed muffin, etc.? Then they get branded as a druggie..unless their parents have the $$ to pay for a bigger test. And that kind of stuff would no doubt show up if they applied for college and the school sends in the "recommendations." It's scary to me..and makes me mad. 290. Absensia - 2/27/2000 12:37:04 AM oops..I put a comment in between < and > forgot about html. My apologies. 291. Angel-Five - 2/27/2000 12:37:06 AM Looks like he accidentally made a tag that caused the page's code to malfunction. It's happened before and shouldn't be a problem now. 292. joezan - 2/27/2000 12:42:55 AM 293. ee - 2/27/2000 12:45:06 AM A-5; The cops do not randomly stop and search automobiles for drugs. 294. joezan - 2/27/2000 12:46:02 AM 295. Absensia - 2/27/2000 12:52:01 AM Didn't know that, Joezan. But what about the cold meds..etc. and I wonder if school districts pay for the difference. 296. Angel-Five - 2/27/2000 12:54:01 AM This isn't hard. Participation in school sports is not Of course it isn't hard, Zanni. We've both been saying that all along and I don't know why you bring it up now as if to clarify something. One of the things we do seem to be at odds about is that I think it's absolutely unfair to deny someone who wants to participate in sports and who can pass a physical and meet the requisites of the code of ethics the chance to do that, just because they're forced to choose between a) standing up for their right to privacy or b) their desire to play sports. You don't seem to share that opinion. EE: Well, it's pretty damned clear that 'sobriety checkpoints' are a violation of the Bill of Rights. So are 'drug courier profiles' too, and the cops exercise those simply because no one has forced them not to yet. I got searched at an airport once for no reason other than I fit some frickin' profile (hell, I wasn't even going on the plane, I was just there to see someone off.) It pissed me off pretty badly. 297. Angel-Five - 2/27/2000 12:54:10 AM This isn't hard. Participation in school sports is not Of course it isn't hard, Zanni. We've both been saying that all along and I don't know why you bring it up now as if to clarify something. One of the things we do seem to be at odds about is that I think it's absolutely unfair to deny someone who wants to participate in sports and who can pass a physical and meet the requisites of the code of ethics the chance to do that, just because they're forced to choose between a) standing up for their right to privacy or b) their desire to play sports. You don't seem to share that opinion. EE: Well, it's pretty damned clear that 'sobriety checkpoints' are a violation of the Bill of Rights. So are 'drug courier profiles' too, and the cops exercise those simply because no one has forced them not to yet. I got searched at an airport once for no reason other than I fit some frickin' profile (hell, I wasn't even going on the plane, I was just there to see someone off.) It pissed me off pretty badly. 298. IrvingSnodgrass - 2/27/2000 12:55:39 AM Joe: 299. Angel-Five - 2/27/2000 12:55:41 AM Poppy seeds don't cause you to test positive for THC, so I'd say that anyone charging you 3 bucks a pop to distinguish that is ripping you off, Joezan. Poppy seeds cause you to test positive for opium-based narcotics. 300. joezan - 2/27/2000 12:57:39 AM 301. joezan - 2/27/2000 1:01:11 AM Irv: 302. Angel-Five - 2/27/2000 1:02:09 AM 303. ee - 2/27/2000 1:05:11 AM I think an even more insideous thing is the practice of financing the police through seizure and sale of property. 304. joezan - 2/27/2000 1:11:17 AM 305. IrvingSnodgrass - 2/27/2000 1:11:45 AM Joe: 306. joezan - 2/27/2000 1:17:28 AM 307. joezan - 2/27/2000 1:24:50 AM 308. Absensia - 2/27/2000 1:28:51 AM Joezan, 309. Angel-Five - 2/27/2000 1:29:50 AM Joezan: Yes, that's the one. The legal justification for a work contract is entirely and always has been one of liability. As mentioned, that's not applicable here, and that's just one reason. Here's how it works: The institution demanding the tests has to pay for someone to collect, handle, and transport the samples to the analyzing lab. The samples are considered biohazards. That isn't really cheap, to begin with. Next, the labs have to test each sample several times for the presence of different drugs and their metabolites. It's not just one test. If a test comes up positive, they have to redo everything to make sure that the positive test isn't a result of contamination or bad procedure during the testing process. The protocol usually calls for much more exacting tests which are more expensive, in order to limit the liability of the lab to lawsuits resulting from their findings. They charge the institution in all cases for testing, handling, and disposal of the biohazard. If that doublecheck comes up positive, they inform the institution. 310. Angel-Five - 2/27/2000 1:30:08 AM The person who has tested positive then has the right to demand a brand new test on the grounds that their sample may have been tampered with, accidentally switched with another, or just that their test wasn't accurate (and some false positives happen in any tests, even the expensive ones that no one uses for wide-screening tests. I've worked at three places which required drug tests and they all paid out the nose for them. The last place got charged $40 a pop for the basic tests. Now, there's a football team, at least one volleyball team, two basketball teams, two track teams, a cross country team, a golf team, a wrestling team, a baseball team, and a softball team at your average school. Some schools add swimming, tennis, and whatever else I can't think of right now. You do the math. Bearing in mind that the schools with the biggest drug problems are going to usually be the ones who can least afford the new expense, let alone paying for accurate tests. 311. Angel-Five - 2/27/2000 1:35:45 AM Let me make this simple. When any screw-up can get IOW, (that's in other words for Absensia) yes, yes you do support invading the privacy of students without just cause and discriminating against those students who believe in standing up for their constitutional rights, just so that sports can be prestigious again. That last sentence I quoted is a red herring. No, Joezan, it isn't expecting too much to ask that they try and do that. But clearly there are acceptable means for asking and following up on that. If the justification for randomly drug-testing students is simply that it isn't too much to ask that they stay off drugs, then I might just as well advocate sending drug dogs and men with guns to their houses to check their rooms. That's not acceptable, though -- it's excessive. So is invading their privacy and discriminating against the ones who recognize that invasion as unethical and unconstitutional. 312. IrvingSnodgrass - 2/27/2000 1:40:24 AM Joe: 313. joezan - 2/27/2000 1:46:54 AM 314. joezan - 2/27/2000 2:03:23 AM 315. IrvingSnodgrass - 2/27/2000 2:07:48 AM Joe: 316. IrvingSnodgrass - 2/27/2000 2:11:23 AM Joe: 317. Angel-Five - 2/27/2000 2:36:13 AM I'd like to point out that if anecdotal evidence is going to have any weight in this discussion, I know plenty of students who don't subscribe to this 'it isn't fair, the troublemakers get all the help and the good kids get squat' notion. In fact, most of the kids I've worked with that have voiced a concern say that more or less they're upset that problem students don't get enough help and that school-based anti-drug 'get tough' rules are just a part of the problem. 318. joezan - 2/27/2000 2:36:36 AM 319. Angel-Five - 2/27/2000 2:38:10 AM Yeah, Joe -- you never did Windowpane or smoked a joint? Hm? Or are you confessing that you never learned to play by the rules? It's got to be one or the other. 320. Angel-Five - 2/27/2000 2:38:37 AM sorry, crosspost. 321. IrvingSnodgrass - 2/27/2000 2:40:28 AM Joe: 322. Angel-Five - 2/27/2000 2:40:42 AM So if you're an inner-city kid right now, Joe, and you hit the bong every once in a while, and you show up to try out for varsity ball and the coach says 'Joezan, get the hell off my field' -- where are you going to go? 323. joezan - 2/27/2000 3:04:13 AM 324. joezan - 2/27/2000 3:07:42 AM 325. Absensia - 2/27/2000 3:10:16 AM And how do you define "drug user"? Some one who smoked a part of a joint a few days before the random test? Or someone who was just in the same room where kids were smoking? Yeah..like that Canadian athlete..did snow boarding or stunt skiing, I forget. He tested positive only because he was in the same room with smokers..tsk tsk..he shouldn't have inhaled. Must confess, I rolled my eyes at that reason. 326. joezan - 2/27/2000 3:14:47 AM 327. Absensia - 2/27/2000 3:16:32 AM Joez, 328. IrvingSnodgrass - 2/27/2000 4:36:51 AM Joe: 329. Angel-Five - 2/27/2000 5:37:28 AM I don't have much of a problem with people experimenting with grass or whatnot -- I'm pro-legalization and think it's a lot more helpful to try and understand people with abuse problems than to dismiss them as 'dopers'. Having said that, I also know that it's good for schools to dissuade students from developing a drug habit. School kids aren't always equipped with enough learning to make the right decisions about drugs (which is probably why so many people are intent on doing their thinking for them instead of trying to come up with better ways to educate them). I'm not really worried about kids experimenting a little with weed or alcohol. Most of us did, right? Some of us more than others. But the point is that there were checks on our behavior too which helped keep us from starting at a few tokes of weed at a party and ending up with a bad smack habit, and even if soft drugs are legalized I still see value in having those checks around. Most of those checks have to come from, or at least be supported in, the home, which is why I'm always so frickin' suspicious of anti-drug initiatives which don't center on the family. But some of them come from school and sports and so on, and that's why I don't have much of a problem with kids getting kicked off the team for getting high- if they actually get caught getting high. But the check becomes excessive and counterproductive if it gets elevated to the level of random drug-testing. The main effect of a code of ethics which proscribes drugs and alcohol isn't to bust someone who experiments with those substances or even to keep the majority of students from experimenting with them, but to discourage the habitual use of them. It works as a disincentive to the many, and that's precisely what it should try to do, because it can't fairly do more than that. It serves as a bulwark against excess, without being so draconian as to do more damage then they prevent. 330. Angel-Five - 2/27/2000 5:52:49 AM Please. As I said earlier, not only is the kid's drug use a Excuse me, Zanni, but I do believe you're talking out your ass. I know plenty of kids who have the occasional beer or occasionally partake at a party who not only aren't a negative influence on their team members (and schoolmates), they're positive influences. I went to school with some of them. They were good kids who helped others, did their homework, made good grades, loved their families and are now productive citizens. They just drank some and got high a little. If what they did was so bad, so awful, how come they turned out fine? It wasn't like they needed some dramatic intervention, they turned out just fine on their own, like most people who experiment with alcohol and weed or speed or whatnot. But the way you see things, the kid who got high at a party, once, a week before he got drug-tested should be penalized just as heavily as the kid who smokes crack between classes and got drug tested, and that's ridiculous and counterproductive to me. Most people have a problem with drug use because of what can happen if it turns into abuse. You seem to have a problem with drug use just because. That seems silly to me. 331. Angel-Five - 2/27/2000 7:07:25 AM I think Joezan just needs to mellow out a little. 332. Angel-Five - 2/27/2000 7:07:46 AM Let's go burn one, eh? 333. Absensia - 2/27/2000 7:47:46 AM But what if there's a random test later today? 334. Absensia - 2/27/2000 7:50:25 AM Then what??? Huh? 335. Absensia - 2/27/2000 7:52:03 AM hey, what's that in your hand? A bottle? OMG! 336. MsIvoryTower - 2/27/2000 9:23:26 AM Reading this exchange, I'm reminded that the core issue here is a matter of legal rights, and whether we think its fine to treat children the way we would not agree to be treated as adults. 337. MsIvoryTower - 2/27/2000 9:40:23 AM However, I should temper my last comment by noting there are some advantages to being seen as an infant in the eyes of the law..... 338. CalGal - 2/27/2000 10:16:52 AM I agree with JoeZan in principle, actually. I scanned this exchange, but didn't read it in depth--if someone made this point, apologies for the repetition: 339. Toenails - 2/27/2000 11:08:00 AM 340. MsIvoryTower - 2/27/2000 11:25:49 AM Well, I don't see this as contradictory for a conservative agenda, at all. Personal freedom has always been confined to the economic and political realm, not necessarily to the social realm in the conservative platforms I've seen. 341. joezan - 2/27/2000 11:26:44 AM 342. joezan - 2/27/2000 11:28:02 AM 343. MsIvoryTower - 2/27/2000 11:35:20 AM Zan, 344. MsIvoryTower - 2/27/2000 11:47:21 AM we have curfews, we don't let kids drink liquor or drive or vote till a certain age, etc. 345. MsIvoryTower - 2/27/2000 11:50:53 AM I should qualify my last comments: 346. joezan - 2/27/2000 7:14:43 PM 347. arkymalarky - 2/27/2000 8:45:05 PM Forget any of the rest of what should be done when a student is actually found to be using drugs, and I still have a big problem with treating people as guilty without reasonable suspicion. I don't use drugs, but I would highly resent being drug tested. I resented having to have my fingerprints taken and saw no point in it. A good background check shouldn't require it. I don't like elements of government and employer inspection of individuals I'm seeing in the past few years that remind me of a police state, and have the potential to be very much abused. 348. Candide - 2/27/2000 10:00:25 PM MsIvoryTower 349. SnowOwl - 2/27/2000 10:09:14 PM Candide, 350. Candide - 2/27/2000 10:36:21 PM SnowOwl 351. Candide - 2/27/2000 10:41:35 PM Here is an excerpt from a local petition that I received last week. 352. Candide - 2/27/2000 10:42:56 PM I had modified that post but it seems to have slipped back. Sorry. 353. SnowOwl - 2/27/2000 10:49:22 PM Ths is a particularly awful case, Candide, and it's been fairly well reported and discussed here. I may well be wrong, but I understand that all options weren't available in this case - that is, that the diversionary procedure which is available elsewhere in cases like this wasn't available in the area the boy lived. 354. Angel-Five - 2/27/2000 10:53:56 PM Australian rednecks. (chuckle) 355. Candide - 2/27/2000 11:00:37 PM Snowowl 356. Candide - 2/27/2000 11:02:25 PM AngelFive 357. MsIvoryTower - 2/27/2000 11:24:30 PM Candide 358. Candide - 2/27/2000 11:50:26 PM MsIvoryTower 359. SnowOwl - 2/28/2000 1:46:07 AM We believe the Mandatory Sentencing of Juvenile Offenders Bill 1999 is discriminatory, disrespectful, morally abhorrent, racist and 360. Candide - 2/28/2000 1:57:25 AM SnowOwl 361. Angel-Five - 2/28/2000 3:19:02 AM Ostrayan rednecks. Somebody better tell Jeff Foxworthy. 362. IrvingSnodgrass - 2/28/2000 5:24:09 AM Candide: 363. Toenails - 2/28/2000 10:19:37 AM 364. CalGal - 2/28/2000 11:57:43 AM The Three Strikes law did originate in California; its inception and eventual success was due in large part to the double whammy of the Polly Klaas and Kimba Reynolds murders. 365. CalGal - 2/28/2000 12:04:47 PM You know, on thinking more about it, I'm not 100% sure it originated in California--it may be that this is where it got the most attention. It may have actually began in a different western state--Washington or Oregon being the most likely candidates. But of course, until it happens in California, no one pays attention. 366. Absensia - 2/28/2000 12:13:38 PM Calgal... 367. Absensia - 2/28/2000 12:14:49 PM But, Calgal, you are partly right. No one paid much attention to Daryl Gates when he was the chief of police here. He didn't get any attention til he hit California. 368. CalGal - 2/28/2000 12:33:58 PM Okay, I did a bit of reading and I remember a lot of the debate now. Actually, Cigarlaw or Trialshark would be more up on this issue, but I'll give it a shot. 369. CalGal - 2/28/2000 12:36:47 PM Unlike the earlier laws, which were passed by the legislature, the California and Washington laws were passed by ballot initiative--I imagine that's true in the other states that have since adopted it as well. For the furriners out there, the ballot initiative has a much lower barrier to entry, and has been used to mandate any number of new laws, spending requirements, and policies that never would have made it into law through standard legistative means. 370. Candide - 2/28/2000 6:54:39 PM Toenails 371. LadyChaos - 2/29/2000 5:41:51 PM MsIT, 372. MsIvoryTower - 2/29/2000 5:46:10 PM My God, 373. MsIvoryTower - 2/29/2000 5:47:32 PM LadyC! 374. MsIvoryTower - 2/29/2000 5:49:41 PM laughing at....not on.... 375. LadyChaos - 2/29/2000 6:00:17 PM MsIT, 376. wonkers2 - 2/29/2000 7:51:31 PM DRUGS AND BOOZE AND KIDS, BIG AND SMALL. A recent survey in Michigan indicated that about half of high school kids, as I recall from memory, have used marijuana. And a surprisingly high percentage within the past month. The figures were even higher for alcohol and lower for other drugs. But just think of the result if we were able to catch and punish all of the users! The state would have to build a bigger facility for Joezan! All we need is a few more cops, and, of course random drug tests for everyone! Half of our kids would be in jail. Al Gore would have a criminal record for use of marijuana. Bush and McCain would have been jailed numerous times for drunk and disorderly. Gary Bauer would probably be the only candidate left standing. Think of it! The possibilities are limitless! Zero tolerance forever! 377. MsIvoryTower - 2/29/2000 8:59:13 PM Lady C 378. LadyChaos - 3/1/2000 11:50:33 AM MsIT, 379. MsIvoryTower - 3/2/2000 9:15:54 AM LadyC 380. Jonesy - 3/2/2000 9:45:10 AM Many states have "three strikes" type statutes, but they are discretionary as has been pointed out. A great bargaining tool for the prosecutor, and quite useful for the real bad actor. In Nebraska, it is called the habitual felon statute, known affectionately as "The Bitch". "Getting bitched" means that the judge can tack on 10-60 years to the sentence. Used by decent prosecutors, it is a good thing (this admission comes from a defense attorney!). There was an 8th amendment challenge to a similar statute in South Dakota. There some miserable lout got life under their scheme for three minor felonies, all related to bad checks and credit card fraud, where he stole less than $5k. The Supremes said that it was no problem. So much for Burger and "making the punishment fit the crime." 381. MsIvoryTower - 3/2/2000 9:50:23 AM Jonesy 382. bubbaette - 3/2/2000 9:53:39 AM I heard something on the news last night that has me confused. It seems that some states are proposing tougher penalties for crimes connected to gang actions. But the proponents of the penalties are largely the same as those who oppose the notion of tougher for hate crimes. Please resolve what appears to be in idological inconsistancy for me. 383. Jonesy - 3/2/2000 10:03:32 AM Bubba- please note the respective races of the perpetrators- 384. bubbaette - 3/2/2000 11:14:47 AM Well of course! How could I be so blind! 385. LadyChaos - 3/2/2000 12:59:41 PM MsIT, 386. DaveM - 3/2/2000 5:34:42 PM I don't have to take criminal law as a first year course - it sounds like I am lucky (g). I have a class called Democracy and Coercion, which is basically an entire course on the Bill of Rights, but it is, to say the least, uninspiring. Have you guys heard of David Cole, author of No Equal Justice? His teaching style is a bland as his writing style. 387. DaveM - 3/2/2000 6:57:50 PM MsIT: 388. cigarlaw - 3/2/2000 8:31:13 PM excerpt from rem court bar newsletter of feb,2000 389. cigarlaw - 3/2/2000 8:33:08 PM After the DNA testing was done, a writ of habeas corpus, asking for a new trial based upon this new evidence be permitted. The trial judge in the case found that if the jury had been aware of the fact that his DNA did not match the DNA found in the victim, there was probable the jury would not have found the the defendant guilty. He ordered the defendant released and ordered a new trial. The Texas Court of Appeals sustained the finding of the trial court. But, the Texas Supreme Court knew better. They ruled that he did not prove he was innocent, and ordered him back to prison. It went something like this: 390. cigarlaw - 3/2/2000 8:34:36 PM His boss: "I did. I guess they didn't write it down." 391. cigarlaw - 3/2/2000 8:35:31 PM Dissenting Supreme Court Justice: "I can't think of a better case for innocence than this one. This case was a very weak case at best. It was based entirely on the fact that no one saw him for three hours and hearsay statements that were made by his friends. Some friends. If the DNA did not match, after the District Attorney claimed the person who killed her also raped her, what more evidence be you need to establish that this is not the murderer?" 392. cigarlaw - 3/2/2000 8:35:52 PM 393. IrvingSnodgrass - 3/2/2000 8:59:31 PM Cigarlaw: 394. Angel-Five - 3/2/2000 11:09:08 PM Ah, Texas. 395. MsIvoryTower - 3/2/2000 11:11:32 PM From what I understand from my learned Profs, Texas has an almost obsessive love of jury verdicts, and is loath to overturn them. 396. MsIvoryTower - 3/2/2000 11:22:41 PM DaveM 397. Angel-Five - 3/2/2000 11:46:22 PM Texas, Texas, Texas. 398. IrvingSnodgrass - 3/3/2000 10:15:17 AM 399. TabouliJones - 3/3/2000 12:38:09 PM Cigarlaw, 400. cigarlaw - 3/3/2000 1:42:18 PM Second-degree murder arose out of the same judicial mindset that created extortion, and some of the other theft crimes. Back with every felony was punishable by death, judges did like that so the created other, non-death penalty crimes in England. In the 1870s, when the legislatures started to codify the various statutes following the Field' s Code in New York as their model, most of these judicial creations were kept in the codes by the legislatures. 401. cigarlaw - 3/3/2000 1:42:57 PM My client was convicted of manslaughter, but the jury told me that there was no one there who would have voted for guilt for murder because they thought he was defending himself. Of course, that was the defense, but to take a look at the voluntary manslaughter instruction and the self defense instructions, there is almost no difference between the two. When I asked why they didn't vote for not guilty on self defense, they said, "well, he put himself in this situation. He knew this man was gay and he still went out into a field in his car with him, what did he think was going to happen?" 402. cigarlaw - 3/3/2000 1:44:47 PM CALJIC 8.10 403. cigarlaw - 3/3/2000 1:46:58 PM CALJIC 8.11 404. cigarlaw - 3/3/2000 1:48:00 PM 405. cigarlaw - 3/3/2000 1:48:57 PM 406. cigarlaw - 3/3/2000 1:50:15 PM CALJIC 8.30 407. cigarlaw - 3/3/2000 1:50:44 PM 408. cigarlaw - 3/3/2000 1:56:09 PM if you have difficulty understanding this, imagine how a juror feels when the judge spends several hours reading this in a monotone. the average muder case probably has upwards of 100 separate jury instructions. 409. cigarlaw - 3/3/2000 2:15:46 PM Sheck and Neufeld have a new book called "Actual Innocence." I would like to read it, because I understand it is quite good -- at least a criminal defense attorneys think it is. Alas, it is not electronic format, so I can't. 410. MsIvoryTower - 3/3/2000 5:27:54 PM In the crime of murder, a human fetus is defined as an unborn offspring in the postembryonic period, after major structures have been outlined. This period occurs in humans seven or eight weeks after fertilization.] 411. CalGal - 3/3/2000 5:29:39 PM deliberate killing of an unborn fetus 412. MsIvoryTower - 3/3/2000 5:31:16 PM Yes, that's another matter altogether. 413. Raskolnikov - 3/3/2000 5:34:02 PM They couldn't even get the guy for assault and battery on the mother? I can't imagine that he just glared at her to cause the death of the fetus. 414. Ronski - 3/3/2000 5:35:55 PM 415. MsIvoryTower - 3/3/2000 5:36:11 PM Don't know the details other than the murder case, Rask. My impression was that the man got off scott free, from any charges. 416. CalGal - 3/3/2000 5:48:32 PM Ms, 417. MsIvoryTower - 3/3/2000 5:51:54 PM Here's another doozy from California. 418. MsIvoryTower - 3/3/2000 5:53:52 PM Naw Calgal 419. CalGal - 3/3/2000 6:10:47 PM Ms, 420. cigarlaw - 3/4/2000 1:29:08 PM i have not checked for a long time, but abortion my be illegal under state law. i think we made it a crime after reagan was gov, but it has never been inforced. i seem to remember running across the statute in law school, right after my crim law instructor alled me a nazi for supporting roe v wade in an argument. 421. jexster - 3/6/2000 11:57:50 PM IT FYI 422. LadyChaos - 3/8/2000 12:48:55 PM I heard the most appalling news on Monday morning. Apparently, in a 5-4 decision (Scalia writing for the majority), the Court held that, when a defendant testifies on his own behalf, it is okay for a prosecutor to tell the jury on closing argument that it may draw an inference from the fact that the defendant "heard all of the testimony throughout the trial, and therefore had the opportunity to 'conform' his testimony to that of the other witnesses." 423. janjon - 3/8/2000 12:53:00 PM At least two of those birds - Rehnquist and O'Connor - should by usual yardsticks be leaving the Court, one way or another, in the next few years. Scalia (and his honcho, Thomas) alas, not. 424. MsIvoryTower - 3/8/2000 3:14:53 PM I get rabid when a Scalia opinion is discussed in class. All my classmates know of my position, and it shocks their innocent little souls that someone would dane to criticize a Supreme..... 425. Jonesatlaw - 3/9/2000 6:30:13 PM Cigarlaw- I agree with you wholeheartedly on your assessment of the Innocence Project and criminal jury instructions as well. The criminal part of the name doesn't really describe the subject of the instructions as well as it does their drafting. They are written by committees of well meaning lawyers who are buddies of the Governor or Chief Justice and law professors. It's not a formula for clarity. 426. AceofSpades - 3/9/2000 6:51:42 PM 427. AceofSpades - 3/9/2000 6:57:51 PM 428. LadyChaos - 3/9/2000 8:49:14 PM If a defendant is required by law to be present at his trial, it's patently absurd for a prosecutor to be allowed to tell the jury that they should draw any inference from the defendant's presence. 429. LadyChaos - 3/9/2000 8:52:06 PM I mean, why don't we just dispense with the presumption of innocence and impose an automatic sentence on the basis of the State's Information? 430. AceofSpades - 3/9/2000 10:03:48 PM 431. AceofSpades - 3/9/2000 10:05:11 PM 432. AceofSpades - 3/9/2000 10:18:52 PM 433. AceofSpades - 3/9/2000 10:28:53 PM 434. AceofSpades - 3/9/2000 10:40:34 PM 435. LadyChaos - 3/10/2000 10:01:24 AM Ace, 436. LadyChaos - 3/10/2000 10:34:10 AM MsIT, 437. Dantheman - 3/10/2000 10:41:06 AM LC, 438. LadyChaos - 3/10/2000 11:06:50 AM Dan, 439. Dantheman - 3/10/2000 11:33:01 AM LC, 440. jexster - 3/10/2000 11:04:22 PM I'm glad I'm out of litigation, and hope never to see the inside of a courtroom again. 441. MsIvoryTower - 3/11/2000 8:45:04 PM LadyC 442. jexster - 3/11/2000 9:28:41 PM Geez IT. I always knew you were strange 443. MsIvoryTower - 3/11/2000 10:45:35 PM Hahahaha, 444. jexster - 3/12/2000 12:56:57 AM No because you like law school. And yes dearie, you are too sensitive - too sensitive to be a lawyer! 445. MsIvoryTower - 3/12/2000 9:24:15 AM Well, definitely too sensitive to be a criminal lawyer. I could do personal injury (torts) but I'd have to stop laughing at some of the claims long enough to get a client..... 446. wonkers2 - 3/12/2000 9:49:42 AM Anybody have any thoughts on the trend toward criminal prosecution of athletes for assault for actions on the rink or court. A high school senior basketball player was just sentenced to five years for sending an opponent to the hospital with a forearm or elbow to the head. 447. IrvingSnodgrass - 3/12/2000 10:19:25 AM wonkers: 448. arkymalarky - 3/12/2000 10:21:48 AM That actually happened to a friend of ours. Our friend's sister took pictures of her son and his all soapy in the tub when they were boys and had been playing, and the photo lab refused to develop them, though they didn't report anything. She was mortified. 449. joezan - 3/12/2000 10:27:20 AM 450. wonkers2 - 3/12/2000 10:32:03 AM I agree completely on the porn. The appropriate role of law enforcement in sports is complicated. You can see what would be assaults anywhere else in every hockey game. The owners use violence to sell tickets. What about a clipping penalty in football or piling on or unnecessary roughness or other personal fouls that can and do result in injuries? And what about the mayhem in tough man contests which I am seeing with quite a bit of frequency on TV? The basketball case was certainly egregious. But I guess I'm leery of letting law enforcement and the courts into the education process or into sports, in anything but the most absolutely worst cases. They tend to go overboard on punishment, apparently feeling they have to send a message. Maybe the recent hockey and the basketball cases warranted application of the criminal law, but, as you said, five years was quite severe in the high school basketball case. Maybe the schools and parents need to do a better job of controlling coaches who encourage dirty play. But then who is going to control the parents? 451. joezan - 3/12/2000 10:40:52 AM 452. MsIvoryTower - 3/12/2000 11:00:19 AM Oh Goodie, battery! 453. MsIvoryTower - 3/12/2000 11:06:30 AM I should qualify that last point: the mental culpability required in child pornography was that one intended to, or knowingly took the pictures, not that one knowingly (intended) to engage in pornography. 454. wonkers2 - 3/12/2000 3:31:52 PM Msit, I doubt that it was even contemplated, let alone the will of the people, that idiot prosecutors and judges would prosecute parents for taking nude pictures of their pre-teen children or that it's okay to have sex with a seventeen-year-old but it's not okay to take a nude picture of him or her, for your personal, private, non-commercial purpose. I think I'm gradually turning into a libertarian. The Justice Department is clearly over-staffed if they have nothing better to do than chase down every tip from our neighborhood drugstore photo processor. 455. wonkers2 - 3/12/2000 3:41:05 PM joezan, I was aware of the prior conviction for burglary, but I still think five years, or even one year is too long in the case. But I sure don't condone what he did or question that some serious punishment is called for, beyond kicking him off the basketball team. And I'm more of a fan of the Gretzky style of hockey than that of Gordy Howe. And I'm not sure where the line will be drawn for when law enforcement will intervene in prosecuting sports fouls. The school boards and principals and parents need to tell the coaches to make the kids knock it off and coach them to play hard but clean. 456. MsIvoryTower - 3/12/2000 4:11:13 PM Wonkers, 457. PelleNilsson - 3/12/2000 4:16:34 PM I'm absolutely unfamiliar with the American legal code. I have often seen reference to "statutory rape". What, exactly, does that mean? Are there other kinds of rape (legally, I mean)? 458. LadyChaos - 3/12/2000 4:53:53 PM wonkers, 459. joezan - 3/12/2000 5:09:54 PM 460. LadyChaos - 3/12/2000 5:17:58 PM joe, 461. joezan - 3/12/2000 5:34:36 PM 462. wonkers2 - 3/12/2000 11:02:13 PM msit, my point went to the intent of the voters, or the Congress, in passing anti-child pornography laws not covering cases like the ones we've been discussing. Most people agree that child pornography should be punished. But most people also agree that the interpretation that sent the 23 year old to jail for photgraphing his 17 year old fiance for their own reasons and prosecuting the mother for taking pictures of her small children in the bath should not be prosecuted. So, there's either something wrong with the law or with its administration or both. Prosecutors and judges abuse their discretion. Just because some photoprocessor brings something to their attention it doesn't mean they have to investigate, let alone prosecute, let alone try to put somebody in jail. Just because there is a silly law on the books does not mean they have to enforce it. There are plenty of laws on the books that aren't enforced, or are rarely enforced. Saying they have no choice but to prosecute is bullshit, in my opinion. 463. joezan - 3/12/2000 11:28:05 PM 464. wonkers2 - 3/12/2000 11:40:01 PM Joe, I didn't see that. Sometimes there's a reasonable explanation for what seems unreasonable on the surface. The articles on the "kiddie porn" cases didn't describe the pictures. Maybe the four-year-old had a dildo in the tub instead of a rubber ducky. 465. joezan - 3/12/2000 11:49:24 PM 466. MsIvoryTower - 3/13/2000 12:04:19 AM Wonkers 467. MsIvoryTower - 3/13/2000 12:07:12 AM Btw, child pornography falls under federal statutes, as I said before. There may be many state laws that are ignored, but not many federal ones are. And anything having to do with children is going to have a high priority. 468. MsIvoryTower - 3/13/2000 12:08:32 AM Too many btw's.... 469. joezan - 3/13/2000 12:26:33 AM 470. Jonesy - 3/13/2000 12:42:03 AM An odd historical note on the issue of statutory rape. In many cases such statutes were directed not at the protection of youth in general, but of female virgins. Most old statutes only applied to females, and only if the "victim" was a virgin. Nebraska's statute began with language something like- "the crowning jewel of her maidenhood" and created an affirmative defense if the young woman was not a virgin. Thus adults could sexually contact the wanton to their hearts content, so long as actual consent were given. Only other minors could deflower virgins outside of wedlock with no fear of the law. Young boys were fair game if the other party were female. (Although debauching a minor charges would have been possible, if the youngster would have reported the activity.) 471. wonkers2 - 3/13/2000 7:51:24 AM MSIT, You sound like a great candidate for the INS. That's their line too. They have no discretion. 472. MsIvoryTower - 3/13/2000 8:42:22 AM Funny Jonesy. 473. MsIvoryTower - 3/13/2000 8:48:13 AM Taking Joezan's comment further, 474. LadyChaos - 3/13/2000 10:52:11 AM Zan, 475. wonkers2 - 3/13/2000 5:14:10 PM Msit, Without seeing the pictures it's hard to tell, but from the news reports, the pictures the Ohio mom took of her kids for her own use were not pornographic at all unless the law says that all nude photos of children are by definition pornographic. (I haven't read the law.) Therefore, the U.S. attorney had to make a judgment call whether the pictures were pornographic and whether the conduct conflicted with the purpose of the law, i.e., protecting children from being exploited in commercial pornography in interstate commerce. I'm not a lawyer, but I was talking to a good one who said prosecutors have a lot of latitude to use their common sense whether or not to investigate and prosecute UNLESS the law specifically proscribes prosecutorial discretion. The same for judges in sentencing. Ergo, we don't have to investigate and prosecute and incarcerate at public expense in marginal cases where commonsense dictates forebearance. In addition, my impression is that pornography has been defined by the law in various ways at various times in various communities. So, there is some discretion inherent in such cases. 476. LadyChaos - 3/13/2000 8:53:34 PM wonkers, 477. Jonesatlaw - 3/14/2000 12:48:47 AM Lady C- good luck! I understand that Cuban nationals from the Mariel boatlift are in a legal limbo if convicted of any of the numerous crimes that Congress in its infinite tinkering have cobbled together to fight the drug war. From a political perspective, maybe we should send them back with Elean. 478. joezan - 3/14/2000 6:44:09 AM 479. MsIvoryTower - 3/14/2000 8:49:48 AM LadyC 480. LadyChaos - 3/14/2000 9:23:07 AM Jesus H. Christ, whoever said anything about the Mariel? This guy was living here before the Mariel, and no, he was not a drug dealer. He did his time in federal pen based on a plea bargain, and the same Justice Department that now keeps him locked up pending a deportation that will never occur recommended him for early release based on his being a model prisoner. The principle is simple: If somebody does his time, that should be it. To continue punishing him violates the 8th Amendment. 481. LadyChaos - 3/14/2000 9:30:58 AM Jones, 482. LadyChaos - 3/14/2000 9:33:47 AM But you're right in that, for Cubans, the law amounts to a life sentence, because Cuba will not take them back under any circumstances. This is not just limited to the Marielitos, nor to criminals. There are, in fact, a large number of upstanding citizens who Cuba would not take back because they might cause political trouble. 483. JonesAtLaw - 3/14/2000 8:03:54 PM It is a travesty that there has been no success in relocating Cuban offenders in a third country, or in pardoning them if appropriate, or returning them to Cuba. The situtation is Kafkesque. I have little sympathy for them if justly convicted, and serving their time. I would have little problem with some sort of limited time period for detention while their status was litigated, but to cast them into a lifetime limbo is neither just nor wise. 484. JonesAtLaw - 3/14/2000 8:08:19 PM LadyC- is there still a possibility of asylum on political grounds once there is a "serious offese" conviction? If so, your guy needs to write some letters to the editor in Miami and Havana. Maybe he should join Pat Robertson's church or something. I wished you luck in a rather gallows humor way before, but I do wish you the best fortune in all seriousness. The issue is really an important one. 485. LadyChaos - 3/14/2000 11:42:11 PM I don't see what the fairness would be to those third countries by sending them the criminals that Cuba doesn't want. 486. DaveM - 3/15/2000 10:05:31 AM MsIT: 487. MsIvoryTower - 3/15/2000 9:39:50 PM Hahaha, DaveM 488. MsIvoryTower - 3/15/2000 9:49:33 PM Oh my, major mistake. Just checked again, and Torres is in property, but environmental and agricultural property law. No wonder I'd not seen him in the list of classes I'm interested in taking. 489. DaveM - 3/16/2000 8:17:47 AM MsIT - 490. wonkers2 - 3/16/2000 9:47:45 AM PRISONS FOR PROFIT--Horror stories from a prison for teenagers prompt judicial action. 491. wonkers2 - 3/16/2000 10:14:11 AM WAckenhut: 492. Jonesy - 3/16/2000 11:59:37 PM Re Wakenhut- Gee, it seems that the private sector can't do everything better and cheaper than the public sector. This is especially true if denial of services is the source of the profit margin. 493. LadyChaos - 3/17/2000 12:10:22 AM The prison industry loves the Drug War, you can bet on that. Meanwhile, local governments continue to treat prisons as employment boondoggles. I'll never forget reading a feel-good news story about how some former auto workers in one town had been successfully retrained as prison guards. Does anybody out there have a sense of irony? 494. Stumbo - 3/17/2000 3:26:59 AM LC: 495. Jonesy - 3/17/2000 3:35:21 AM Stumbo- I think that anyone qualified to be a NBA star and a teacher would pick NBA star, but teachers salaries are lower. I don't think that your example always follows. 496. Stumbo - 3/17/2000 4:08:12 AM Jones: 497. joezan - 3/17/2000 7:09:48 AM 498. joezan - 3/17/2000 7:40:16 AM 499. wonkers2 - 3/17/2000 8:11:05 AM Stumbo, Just seems to me, of the top of my head, it would be better to have more in college than prison. Doesn't take a rocket scientist or any "theoretical reasons" at all. Just having a heart beating in your breast. 500. wonkers2 - 3/17/2000 8:13:24 AM It's called California (and Texas and Florida) style GOP affirmative action. The only kind the GOP supports. 501. LadyChaos - 3/17/2000 10:52:22 AM Stumbo, 502. jexster - 3/17/2000 4:28:25 PM Here's one for you legal beagles, budding or otherwise blossomed and wilted. 503. jexster - 3/17/2000 4:30:39 PM WRT the on going discussion of criminal justice, 504. Dantheman - 3/17/2000 4:31:51 PM jexster, 505. Dantheman - 3/17/2000 4:32:18 PM 504 was to 502. 506. jexster - 3/17/2000 4:35:07 PM So I told a meeting of the Alice B Toklas LGBT Demo Club the other night only to meet the insolent rebuff of a dyke anthropologist of all people - "Remember Dred Scott" 507. Jonesatlaw - 3/17/2000 5:41:56 PM I think that full faith and credit will require that there be some recognition of the existence of the civil union- however that legal creature is construed. Through the dark mists of my memory of first year con law- I think that the southern states were forced to recognize miscegenatious marriages performed outside their jurisdictions. Haven't researched it yet, though. 508. LadyChaos - 3/17/2000 6:10:04 PM The middle sentence in #501 is an incomprehensible mess. In the interest of clarity: 509. Jonesy - 3/17/2000 11:50:32 PM Jex- or is it labrys? In any event discretion is the better part of valor. 510. Stumbo - 3/18/2000 12:32:57 AM LC, Wonkers: 511. LadyChaos - 3/18/2000 11:12:20 AM Stumbo, 512. LadyChaos - 3/18/2000 3:31:59 PM Here is a chart showing that illicit drug use is the least among all statistically enumerable causes of preventable death - less than a fourth of the percentage caused by alcohol, about one-fourteenth the rate of diet/exercise (which suggests that perhaps we need to prohibit McDonald's and SUVs), and about one-twentieth the rate of tobacco. 513. LadyChaos - 3/18/2000 9:35:19 PM The prison boom is not only a goldmine for private prison companies, but also provides a source for cheap prison labor which manufacturers seem anxious to exploit. 514. Stumbo - 3/19/2000 3:11:06 AM LC: 515. LadyChaos - 3/19/2000 12:08:49 PM Stumbo, 516. LadyChaos - 3/19/2000 12:09:57 PM P.S. The cite is 186 F.3d 469 (1999). 517. wonkers2 - 3/19/2000 5:50:15 PM Prison Labor--in the late 1960s when unemployment was low and car sales were booming Pontiac Division of GM tried a model of prison labor that may be worth a try again. The company and the union worked out with the Michigan prisons authority an arrangement under which a hundred or so soon to be paroled prisoners were moved to a minimun security facility in Pontiac. They were hired by Pontiac at the regular automobile industry rate. Their wages went into the bank or to a dependent, and dependents received regular auto industry health care and other benefits. The prisoners became dues paying members of the UAW and began to accumulate seniority at the plant. The company agreed to hire them as regular employees when they were paroled. This arrangement worked great. The prisoners were bussed every day to and the plant. Absenteeism was close to zero. And there was hope of a permanent job upon release from prison. But not long after that recessions and layoffs and world competition came which meant the end of such an arrangement. It was great while it lasted. 518. Jonesy - 3/20/2000 3:59:03 AM Lady C- Your wish is my command- Ferguson v. City of Charleston 519. DaveM - 3/20/2000 3:04:54 PM Lady - 520. LadyChaos - 3/20/2000 4:37:46 PM DaveM, 521. Stumbo - 3/20/2000 7:35:13 PM LC: 522. TabouliJones - 3/20/2000 9:14:54 PM 523. wonkers2 - 3/20/2000 9:44:12 PM It's a pleasure to see a keenly analytical mind at work! 524. Stumbo - 3/21/2000 12:44:07 AM TJ: 525. LadyChaos - 3/21/2000 9:23:23 AM Stumbo, 526. LadyChaos - 3/21/2000 9:28:04 AM These factors, viewed on an individual basis, may not have much meaning to the average person. But viewed on a larger scale, they pose certain consequences. One of the most difficult social issues facing every city in this country continues to be the entrenched, black, urban underclass. Now, even assuming a conservative point of view that neither the government nor the state has an obligation to cure such social maladies, one should at least consider the first principle of medicine, which is to "do no harm." Imprisoning vast numbers of African American males does great harm, and poses a great cost to society. It exacerbates the very problems that we're supposedly trying to cure, or at least it makes things worse where the conservatives among us are hoping that people will be able to better themselves. 527. LadyChaos - 3/21/2000 9:29:01 AM Fifty-four percent (54%) of blacks convicted of drug offenses get sentenced to prison versus 34% of whites convicted of the same offenses. Forty-four percent (44%) of blacks get prison sentences for possession versus 29% of whites; 60% of blacks are sentenced to prison for trafficking while 37% of whites are sentenced to prison for the same crime. 528. LadyChaos - 3/21/2000 9:29:17 AM 1.46 million black men out of a total voting population of 10.4 million have lost their right to vote due to felony convictions. 529. LadyChaos - 3/21/2000 9:32:17 AM 530. Jonesatlaw - 3/21/2000 2:28:18 PM Lady C- your statistics point out some interesting things. One, given the increase in black offender incarceration after the federal guidelines it would seem that racism is not behind the sentencing behavior of judges. I conclude this based on the assumption that there has been no significant shift in the nature of offenses in the times indicated, and assume that the minority group would recieve harsher punishment under discretion of judges, while guidelines reducing the discretion would draw the averages closer. 531. LadyChaos - 3/21/2000 2:47:56 PM Jones, 532. Jenerator - 3/21/2000 2:51:19 PM LadyChaos, 533. Jonesatlaw - 3/21/2000 3:00:31 PM LadyC- I agree that the guidelines have been harshly criticized by the federal bench, and rightly so. The guidelines have some decent intentions, but are a thicket of complications. The end result is that the sentences are almost uniformly harsher for drug cases, and other "traditonal" crime. The white collar stuff is still lax, but the forfeiture side bites hard. 534. LadyChaos - 3/21/2000 5:54:16 PM Jenerator, 535. Stumbo - 3/21/2000 6:51:07 PM LC: 536. DaveM - 3/21/2000 6:51:20 PM Ladychaos - 537. LadyChaos - 3/21/2000 6:57:20 PM DaveM, 538. Jonesatlaw - 3/21/2000 11:27:29 PM DaveM- the guidelines do increase the power of the local USA. Your observation is a good one, but I can't really tell you if racism in the DoJ is the cause or not. 539. Jonesatlaw - 3/21/2000 11:33:17 PM CalGal- Your reasoning that guns are useful against government tyrany is interesting, but begs the question. Are there limits to the type of arms protected by the second amendment? For example, Claymore mines would be a rather useful thing in a standoff with overreaching government agents. Koresh and his followers would have made Waco a rather different thing if there were mines available to them. Fully automatice weapons are registered, taxed and highly regulated by the Feds- is this covered by the second amendment? 540. Jonesy - 3/22/2000 12:15:38 AM All- my apologies for misplacing post 539. Lady C- could you delete it, as I intended to post in current events? Thank you. 541. MsIvoryTower - 3/23/2000 9:14:07 AM Here's a tangent question LadyC, I note that in Message # 525 you mention a figure of $30K/prisoner for annual upkeep. In my crim law class the other day, someone mentioned that the cost of putting prisoners to death (who are sentenced for a capitol offense), is more than the cost of lifetime incarceration. 542. Dantheman - 3/23/2000 9:16:49 AM MsIT, 543. MsIvoryTower - 3/23/2000 10:03:05 AM Dan 544. Dantheman - 3/23/2000 10:08:43 AM MsIT, 545. MsIvoryTower - 3/23/2000 10:10:56 AM Yes, I know all that Dan. However, the appellate courts do not spend all their time reviewing capitol offense cases, they would exist regardless of them. 546. Dantheman - 3/23/2000 10:20:14 AM MsIT, 547. LadyChaos - 3/23/2000 12:42:03 PM MsIT, 548. Jonesatlaw - 3/23/2000 12:48:33 PM MsIT- There are many more expenses associated with death penalty cases than just those involved in the courts themselves. Usually there is a considerable amount of cost associated with the government's case. In Nebraska, when I was a clerk at the Attorney General's office, there was a senior Assistant AG who was devoted full time to death penalty cases. He had an assigned secretary and was assisted by several assistant AG's on an ad hoc basis. This was in a state where there were about a dozen men on death row. This was also under an administration that had not made death penalty cases their priority for political gain. Every death penalty case is guaranteed to go through at least direct appeal, and the vast majority go through the state system on post conviction relief, and on to the federal system. At the federal level, the application for habeas corpus is likely to go through the district court, the court of appeals and an application for cert to the Supreme Court. Applications somtimes are remanded for evidentiary hearings in state court, and back up again. 549. Absensia - 3/23/2000 1:02:43 PM Here's a site discussing costs. Interesting. 550. Thoughtful - 3/23/2000 1:04:03 PM For Absensia, that's the link. 551. Absensia - 3/23/2000 1:05:57 PM Thanks Thoughtful, 552. MsIvoryTower - 3/23/2000 4:32:50 PM I don't know enough about the data cited in the study linked by Absensia, but here's a typical paragraph from the beginning: 553. CalGal - 3/23/2000 4:41:34 PM It seems to me that we'd only abolish the costs that are currently associated with capital punishment (assuming these numbers are accurate) if we assume that all prisoners that are now executed are stuck in jail without any further review--or substantially less review than their cases get because of the finality of the death penalty. 554. Jonesatlaw - 3/23/2000 5:01:09 PM CalGal- the competant do gooders come into play only after woefully underpaid and often inexperienced or incompetant attorneys have mucked the case up. If the states were wise, they would cut off some the expense of these appeals by creating fewer errors at trial. Also, there are more procedural safeguards required for death penalty cases. Much of the heartache of victims families is incurred by the long time it takes to exhaust the appeals process in death penalty cases. The process is shorter in non capital cases, and "closure" comes more quickly. However, that doesn't get you face time on the 6:00 news, so politicians play the death penalty for all its worth. 555. CalGal - 3/23/2000 5:04:14 PM Jones, 556. Dantheman - 3/23/2000 5:21:15 PM CalGal, 557. Absensia - 3/23/2000 5:32:44 PM MsIT..there are a lot of links at that site..in fact, the one I first tried to post is the one from the federal government report, 558. MsIvoryTower - 3/23/2000 6:17:04 PM Absensia 559. MsIvoryTower - 3/23/2000 6:20:18 PM I might add that Calgal's Message # 555 raises an interesting twist on this issue as well. Would elimination of the death penalty actually improve the quality of legal services available to the poor? If not, would elimination actually leave many with lower quality representation? 560. LadyChaos - 3/23/2000 7:08:41 PM 561. JonesAtLaw - 3/23/2000 9:46:32 PM The justification for the poor pay and resources provided to indigent defendants is that there are insufficient funds available, not that we really don't care about indigent defendants. (However true it may be- Know of any prosecutors or cops that have gone without pay for a year? It happens to criminal defense attorneys. Know of any police or prosecutors who haven't had a raise in over five years- Criminal Justice Act attorneys just got a five dollar an hour raise in my district. The first one for *ten* years.) We could split the costs in half, and still drastically increase the resources available to indigent defendants, while passing on a savings to the taxpayer. We'd have the added benefit of increased confidence in our justice system and the satisfaction of living up to our hallowed pledge of liberty and justice for all. 562. MsIvoryTower - 3/23/2000 11:12:52 PM Jones 563. MsIvoryTower - 3/23/2000 11:14:28 PM Jones 564. MsIvoryTower - 3/23/2000 11:17:02 PM Dang, I don't know how that happened. 565. Candide - 3/24/2000 1:25:05 AM From "The Sydney Morning Herald" March 24, 2000 566. Candide - 3/24/2000 1:26:13 AM Fraser says no legislative changes are 567. Candide - 3/24/2000 1:26:34 AM Fraser says some Australian hate groups are 568. Jonesatlaw - 3/24/2000 12:40:59 PM MsIT- I was attempting (poorly) to say that better lawyering leads to better testing of the government's evidence at trial, and greater confidence in the justice of the verdict. 569. LadyChaos - 3/24/2000 1:23:15 PM Did anyone see John Stossel's report last night on ABC, entitled "Whatever Happened to Free Speech?" I found it to be an eye-popping expose on how much free speech has been eroded by political correctness, inter alia, on college campuses. It definitely made me give my views on hate crimes and hate speech laws a second thought. 570. pseudoerasmus - 3/24/2000 1:27:11 PM Americans bleat endlessly about how much freedom they have, when in fact they have rather little compared with dozens of other countries. 571. LadyChaos - 3/24/2000 1:34:55 PM More evidence that the Drug War is starting to look more like a real war. I wonder how many more people will have to die, and how many constitutional freedoms we will have to lose, before we wake up and realize that we're paying far too high a price to try to protect a small minority of addicts from their own worst instincts. 572. Jonesatlaw - 3/24/2000 1:43:23 PM Pseudoerasmus- in regard to free speech, I would strongly disagree with you. Regarding other safeguards against government intrusion, I think your point is stronger. Most of the developed world has safeguards against excessive governmental restrictions and interventions in the private lives of their citizens at least as robust as the US. In regard to economic rights, Europe, the US and Japan probably take a backseat to other more lassiez faire oriented countries in southeast asia etc. 573. pseudoerasmus - 3/24/2000 1:50:36 PM Jonesatlaw strongly disagrees with me. I'm terribly moved, as though Jonesatlaw knows something about life outside the USA. 574. Jonesatlaw - 3/24/2000 1:53:14 PM Pseudoerasmus- Prior restraint is allowed in Canada, the UK and Australia. In the US it is not. With respect to freedom of speech, that is a world of difference, whether one is as traveled as you are or not. 575. pseudoerasmus - 3/24/2000 1:53:54 PM The USA certainly has more economic freedom than Western Europe, though. 576. pseudoerasmus - 3/24/2000 1:55:59 PM Jonesatlaw, prior restraint has much less impact on ordinary life than you must be supposing. Canada, Australia and the UK are also not the extent of the world outside your USA. 577. arkymalarky - 3/24/2000 2:00:22 PM I'm a teacher in a conservative state so my perception is skewed, and I don't have much experience in other countries, but I tend to agree with PE. And it certainly varies from place to place within the US. 578. Jonesatlaw - 3/24/2000 2:01:30 PM Pseudo- I mentioned those nations only because of my familiarity with issues relating to the right to a fair trial and the right of the public to access to court proceedings. Sharing a common law heritage with those nations, US courts are more inclined to look to them as persuasive authority on these sorts of questions. Prior restraint or wholesale bans on certain types of speech exist in other otherwise free nations. Germany's ban on Nazi literature etc is one example. 579. pseudoerasmus - 3/24/2000 2:02:32 PM Well, my perception may be skewed because I'm at a university where the likes of DaveM seem to run amock and where things can be positively oppressive, at least compared with the outside world and compared with when I was an undergraduate in the second half of the 1980s. 580. TabouliJones - 3/24/2000 2:05:01 PM Canada is not oppressed by political correctness. Certainly we hear plenty of aggressive PC blather, but it all tends to circulate on certain university campuses -- the same place it thrives in the U.S. Of course, our government and our constitution flirt to some degree with PC notions, but we are certainly not oppressed by politcal correctness. And we most certainly do not have any touchy feely politicos running around getting as much attention as Hilary Clinton. The notion that Canada is some sort of PC wasteland is somewhat stereotypical. Of course, one could easily be subjected to more odious sterotype, so we can't really complain. 581. Jonesatlaw - 3/24/2000 2:05:11 PM Political correctness is a problem in the US but it is not yet a legal restraint. I won't venture a guess as to what kinds of social oprobation one faces in other countries concerning unfavored opinions because, as Pseduo so kindly points out, my experience doesn't allow me to. 582. LadyChaos - 3/24/2000 2:06:40 PM The Stossel piece last night featured a group of college students bragging about how they could run anybody that they disagreed with off-campus. 583. pseudoerasmus - 3/24/2000 2:09:14 PM #581 584. Jonesatlaw - 3/24/2000 2:09:41 PM Rampant political correctness relies on a certain unreasonableness and stidency that I do not associate with the Canadian character. 585. CalGal - 3/24/2000 2:09:45 PM I think a significant restriction to freedom in the US is that our lack of social safety net makes employment very important. 586. Jonesatlaw - 3/24/2000 2:11:08 PM Pseudo- what sort of freedom are we speaking of? Do you mean that one can express one's views without any consequence either social or legal? I cannot think of any place such as that. 587. pseudoerasmus - 3/24/2000 2:11:10 PM Tabouli, most urban types in all the Anglophone countries, and I'm talking about people outside campuses, are disgustingly PC. 588. CalGal - 3/24/2000 2:11:31 PM Oh, I understand the PC bit now. I don't see that as a problem. It's actually more of a problem legally than in day to day life. It's also only a problem when people choose to make it such--which, as has been mentioned, seems to happen more on college campuses than anywhere else. 589. TabouliJones - 3/24/2000 2:11:59 PM Jones, 590. CalGal - 3/24/2000 2:12:05 PM Yes, but "disgustingly PC" has nothing to do with freedom. That's a personality trait. 591. Jonesatlaw - 3/24/2000 2:14:24 PM Tabouli- yes I am aware of section 1 of the Charter, and it is the enshrinement of "reasonableness" as a fundamental standard of government and rights that has struck me as the quitesence of the Canadian character. 592. Jonesatlaw - 3/24/2000 2:15:51 PM make that "quintesentially Canadian" 593. TabouliJones - 3/24/2000 2:17:59 PM 594. CalGal - 3/24/2000 2:19:57 PM But again, what is this association of PC expectations with freedom? 595. Raskolnikov - 3/24/2000 2:21:46 PM Pseudo: what "corporate prerogatives" are you talking about? 596. TabouliJones - 3/24/2000 2:23:23 PM 597. LadyChaos - 3/24/2000 2:25:35 PM CalGal, 598. Jonesatlaw - 3/24/2000 2:26:27 PM every time a statute uses the word reasonable, lawyers everywhere make bundles of dough. 599. TabouliJones - 3/24/2000 2:27:12 PM 600. pseudoerasmus - 3/24/2000 2:28:16 PM #586 601. pseudoerasmus - 3/24/2000 2:29:25 PM # 593 602. pseudoerasmus - 3/24/2000 2:30:27 PM # 590 603. Jonesatlaw - 3/24/2000 2:31:08 PM LadyC- speech in the workplace has always been subject to censorship. Do you think that telling a customer that there is a better sale on some goods your employer offers at a competitors store wouldn't get you fired? Expressing your observation that all of the guys and gals in management are fools or that the folks in marketing are lazy etc. has always put ones employment at risk. How is title VII different? 604. CalGal - 3/24/2000 2:34:15 PM Pseudo, 605. LadyChaos - 3/24/2000 2:34:31 PM Why anyone who has the option of working somewhere other than the USA, continues to work in the USA, I have never understood. 606. Jonesatlaw - 3/24/2000 2:37:49 PM Pseudo- I understand now. You find the American lifestyle stultifying and boring. Fair enough. However, it is the result of free choices of Americans. They seem to like their choices, whether you would make the same ones or not. You paint a picture of only a part of America, though. A substantial number of us live in situations wholly unlike what you picture. 607. LadyChaos - 3/24/2000 2:38:42 PM CalGal, 608. Raskolnikov - 3/24/2000 2:38:47 PM "you can't even see "unedited" films on regular television in your great fucking country of the USA." 609. CalGal - 3/24/2000 2:40:56 PM Why anyone who has the option of working somewhere other than the USA, continues to work in the USA, I have never understood. 610. arkymalarky - 3/24/2000 2:41:33 PM PE's description of suburban America in #600 would be a nightmare to me. 611. pseudoerasmus - 3/24/2000 2:42:54 PM # 604 612. CalGal - 3/24/2000 2:43:55 PM Lady, 613. Raskolnikov - 3/24/2000 2:47:59 PM "PE's description of suburban America in #600 would be a nightmare to me." 614. CalGal - 3/24/2000 2:48:02 PM PE, 615. pseudoerasmus - 3/24/2000 2:51:54 PM #606 616. Raskolnikov - 3/24/2000 3:00:10 PM No, I think that a lot of democratically or socially imposed restrictions are still restrictions. Editing movies for television annoys the shit out of me, which is why I pay a modest sum for satellite. But there is a difference between such restrictions and a mere dislike of dominant aesthetic tastes. 617. Dantheman - 3/24/2000 3:01:55 PM pe 615, 618. pseudoerasmus - 3/24/2000 3:02:41 PM #609 619. pseudoerasmus - 3/24/2000 3:03:55 PM #617 620. LadyChaos - 3/24/2000 3:05:31 PM The government subsidizes this choice in many ways, through the home-owner's exemption and road construction mostly, but the decision to expand the suburbs indefinitely has been that of the homeowner. 621. Raskolnikov - 3/24/2000 3:07:21 PM "It is not a totally free choice. Urban planning in the USA, it seems, is for concentrating the maximum number of people around strip malls and other commercial developments. In fact in many cases it's commercial developers, not normal human beings, which determine how and where millions of Americans live. Just because Americans are not literally compelled to move to such places, doesn't mean that the menu of possiblities hadn't been rigged and restricted by someone else earlier." 622. pseudoerasmus - 3/24/2000 3:07:32 PM I repeat: 623. Dantheman - 3/24/2000 3:08:42 PM pe #619, 624. CalGal - 3/24/2000 3:09:31 PM Hence, the principle. Study in the USA. Work in the USA. Make lots of money. Then run. 625. Raskolnikov - 3/24/2000 3:11:17 PM I do see Pseudo's point about suburban development. A lot of this development is subsidized by non-suburbanites, distorting the extent to which the costs are truly a reflection of the choices. But my argument would still be that since land ownership is so much cheaper in this country, it provides choices and freedoms that are not available in most of crowded Europe and East Asia. 626. CalGal - 3/24/2000 3:12:21 PM Also, whether you have cable or not, the one government funded station (PBS) does not edit movies. 627. Dantheman - 3/24/2000 3:13:36 PM LadyChaos 620, 628. Raskolnikov - 3/24/2000 3:14:21 PM Pseudo: 629. pseudoerasmus - 3/24/2000 3:14:49 PM Well, now that I have raised some nationalist hackles, I will now leave you until after the weekend. 630. CalGal - 3/24/2000 3:15:50 PM Hey, don't forget to send in your Oscar ballot. It doesn't matter if you haven't seen the movies. 631. Raskolnikov - 3/24/2000 3:17:00 PM rabble-rouser. 632. LadyChaos - 3/24/2000 3:17:02 PM pseudo, 633. pseudoerasmus - 3/24/2000 3:17:13 PM # 628 634. pseudoerasmus - 3/24/2000 3:19:31 PM # 631 635. pseudoerasmus - 3/24/2000 3:22:06 PM Also, I'm comparing with and among developed countries. People in developing countries don't value political freedoms as much. 636. TabouliJones - 3/24/2000 3:26:42 PM Actually, does anyone out there sense a trend away from mall-oriented suburban development. In the last few years, Montreal and especially Toronto (my two stomping grounds) have seen a rash of new building, much of which is attempting to accomodate the influx of people fleeing the suburbs. As well: as many of the more established suburbs get larger and larger (approaching small scale city size)their municipal governments tend to try and develop a downtown core capable of mimicing some of the qualities of a regular urban setting. 637. Raskolnikov - 3/24/2000 3:29:19 PM I do live in the burbs. I don't live in a "levitown-like" development, and had no problem finding a house that wasn't in such a development. I live in a quiet neighborhood with little traffic, making it safer to raise a kid. My yard has a dozen large and gorgeous trees which would be inconceivable in most European housing units I have seen. I could have easily have chosen to live in a tony part of Minneapolis, where everything is within walking distance, few chain restaurants exist, and public transit is easy to use, and I could have done this for half the price that I paid for a London flat 10 years ago. But I preferred the trees, less noise, and cheaper housing expenses. This neighborhood is only 20 minutes away if I want to eat at one of the restaurants or attend the art theaters, which I do often. Similarly, I am a 20 minute drive from 6 non-multiplexes, and my half hour commute via car is shorter than the underground commute I had in London. Comparing living in Minneapolis and London, I do see that London had a lot more variety, but didn't even offer choices that would be a high priority for me (nice yard, large room for home theater, etc.)in homeowning, on anywhere close to a middle-class salary. Maybe London isn't very typioal. 638. CalGal - 3/24/2000 3:30:21 PM San Francisco is increasing its development of upscale apartments, I've noticed. 639. Raskolnikov - 3/24/2000 3:34:41 PM "Actually, does anyone out there sense a trend away from mall-oriented suburban development. In the last few years, Montreal and especially Toronto (my two stomping grounds) have seen a rash of new building, much of which is attempting to accomodate the influx of people fleeing the suburbs." 640. TabouliJones - 3/24/2000 3:35:16 PM 641. Dantheman - 3/24/2000 3:35:24 PM TJ, 642. TabouliJones - 3/24/2000 3:36:21 PM 643. CalGal - 3/24/2000 3:39:34 PM Dan, 644. Dantheman - 3/24/2000 3:43:15 PM Rask 639, 645. pseudoerasmus - 3/24/2000 3:44:22 PM #623 646. pseudoerasmus - 3/24/2000 3:47:48 PM Dantheman, but suburbs in Philadelphia are rather nice, certainly not as blighted as certain parts of New Jersey, Maryland and Virginia. 647. CalGal - 3/24/2000 3:49:27 PM The quality of a suburb depends on when it was built. The Bay Area suburbs that were built in the 60s and 70s are quite nice and very Californian. The newer ones are indistinguishable from those in the suburbs of Raleigh or Phoenix. 648. Dantheman - 3/24/2000 3:49:34 PM CalGal 643, 649. TabouliJones - 3/24/2000 3:50:25 PM 650. CalGal - 3/24/2000 3:50:56 PM Dan, 651. Raskolnikov - 3/24/2000 3:52:23 PM "You previously mentioned the alternative of living in Minneapolis's tony part. How long has it been tony? " 652. Dantheman - 3/24/2000 3:56:28 PM pe 646, 653. Dantheman - 3/24/2000 4:39:17 PM TJ 649, 654. Planet 9 - 3/24/2000 6:17:01 PM San Francisco is difficult to compare to other cities for a variety of reasons. In most metro areas the median cost for housing is lower in the central city than in the burbs but that is not the case in SF where housing costs are amoung the highest in the world. 655. Planet 9 - 3/24/2000 6:22:26 PM The situation is different for many older cities, particularly in the northeast and upper midwest. Some of these cities (Detriot is a good example) are fast becoming the center of a donut. All the population and job growth is in the outer suburbs (yes the big new urban issue is the flight of people from "inner ring" or (the latest catch phrase) "first" suburbs. One big challenge in these metro areas, which are frequently poorly served by transit) is how to get low skill workers in the central city and inner burbs out to the new jobs in the edge burbs. 656. LadyChaos - 3/24/2000 8:31:29 PM Thread drift.... 657. CalGal - 3/24/2000 8:44:34 PM SF isn't any more expensive than other parts of the Bay Area, unfortunately. At this point, there really isn't any place in the area that has "affordable" housing. It's not significantly cheaper to live in San Ramon than it is in Redwood City. 658. MsIvoryTower - 3/24/2000 9:24:09 PM LadyC 659. MsIvoryTower - 3/24/2000 9:25:30 PM As an aside, I think Pseudoerasmus has made some assertions that merit some support, at least beyond the cryptic bombshells he's dropped so far. 660. MsIvoryTower - 3/24/2000 9:28:33 PM As another aside, 661. pseudoerasmus - 3/24/2000 9:32:54 PM Pseudoerasmus has made some assertions that merit some support 662. MsIvoryTower - 3/24/2000 9:35:13 PM If I were writing english I would have said you were full of shit, I suppose I wasn't, however. 663. MsIvoryTower - 3/24/2000 9:36:33 PM That would be, if I were writing in plain english, that is... 664. pseudoerasmus - 3/24/2000 9:44:51 PM Most of the assertions I've made are uncontroversial things of common knowledge. Or do you dispute that the legal minimum drinking age is higher in the USA than in other developed countries? Or that there is (privately provided) censorship on USA television? Or that the average vacation time in the USA is much shorter than in Western Europe? 665. CalGal - 3/24/2000 9:50:03 PM Don't you think that many freedoms come along with "the ability to set up and run businesses"? 666. CalGal - 3/24/2000 9:50:49 PM BTW, Ms, I had a response to your post on the death penalty, but this conversation took wing before I got around to it. 667. MsIvoryTower - 3/24/2000 10:19:39 PM reMessage # 664: so your assertions regarding freedoms are relegated to the drinking, vacationing and being able to watch pornography on home television areas. 668. MsIvoryTower - 3/24/2000 10:26:03 PM Here, btw, is your original position: 669. MsIvoryTower - 3/24/2000 10:27:34 PM The comments I do tend to agree with you about are the references to the rather tedious PCishness that exists on university campuses in the US. 670. pseudoerasmus - 3/24/2000 10:47:51 PM so your assertions regarding freedoms are relegated to the drinking, vacationing and being able to watch pornography on home television areas. 671. LadyChaos - 3/24/2000 11:20:07 PM MsIT, 672. LadyChaos - 3/24/2000 11:22:05 PM I am, of course, assuming that there exists at least a smattering of a middle class in that part of the world. 673. MsIvoryTower - 3/24/2000 11:30:37 PM LadyC 674. LadyChaos - 3/24/2000 11:36:01 PM MsIT, 675. MsIvoryTower - 3/24/2000 11:41:05 PM That's because of your poor language skills. 676. MsIvoryTower - 3/24/2000 11:42:40 PM LadyC 677. pseudoerasmus - 3/25/2000 7:01:42 AM Chaos: Having spent almost all but my university years in Europe, I'm well aware of what you've said. As for South Asia, I'm pretty sure only the elites have the sort of arrangement you're speaking of. 678. Jonesatlaw - 3/25/2000 11:12:55 AM Pseudoerasmus- your notion of "freedom" is juvenile considering the nature of this thread. I assumed that you were going to argue that there were restrictions on individual liberty in the US that were something other than self imposed. Unedited movies, youth drinking, the suburbs, and political correctness are the best you can come up with to support your assertion? Political correctness is a tempest in the academic teapot. The chilling of "free speech" in the workplace is equally nonsensical. The workplace has always been a forum for the employer only. We hear the parade of horrors concerning a hostile work enviroment, but precious little actually results from court action. Mostly the actual restrictions come from over-anxious human resources departments, happy to find another way to insure their value to the company by blowing up the issue into a boogeyman to scare execs and obnoxious employees. 679. pseudoerasmus - 3/25/2000 11:47:22 AM #678 680. pseudoerasmus - 3/25/2000 11:47:47 AM Unedited movies, youth drinking, the suburbs, and political correctness are the best you can come up with to support your assertion? 681. pseudoerasmus - 3/25/2000 11:53:38 AM Actually, there are plenty of Eastern European and Asian countries which lack such stupid restrictions. 682. Jonesatlaw - 3/25/2000 12:18:42 PM high minimum drinking age -granted 683. Jonesatlaw - 3/25/2000 12:20:11 PM to pseudo continued 684. AceofSpades - 3/25/2000 12:27:17 PM 685. pseudoerasmus - 3/25/2000 1:00:33 PM I forgot one more thing. Americans are more compelled to drive cars than other peoples and they are sometimes compelled to drive hours everyday to and from work. Now, this is again not a strictly voluntary decision, because alternatives to driving in the USA are so limited and poor, and because driving cars is a byproduct of restrict residential options. 686. pseudoerasmus - 3/25/2000 1:03:08 PM a restricted menu of residential options I would argue that they are less restricted than Europe, even though the majority preference for suburbs doesn't suit your taste. 687. pseudoerasmus - 3/25/2000 1:03:22 PM Foreign employers don't monitor their employees? 688. pseudoerasmus - 3/25/2000 1:06:53 PM Ace, tits on Italian TV? Well, I'm sure you have some reason to reduce that list to merely tits on Italian TV. 689. pseudoerasmus - 3/25/2000 1:07:21 PM errata 690. CalGal - 3/25/2000 1:07:46 PM I don't think anyone assumes you are anti-American; it's just that we can believe you're seriously arguing that we have fewer freedoms just because some folks have to live in modern suburbs and can't tell tit jokes at work. 691. CalGal - 3/25/2000 1:09:30 PM Has Predator been banned here? 692. pseudoerasmus - 3/25/2000 1:12:02 PM You mean when they're not showing films from 1930? 693. AceofSpades - 3/25/2000 1:17:47 PM 694. CalGal - 3/25/2000 1:18:03 PM PBS might be aggressively "middlebrow", as you call it, but the fact is that it is not bound by the same rules as the networks. There are no restrictions at all, that I can think of. Nudity, graphic sex, language, death (the real thing)--you can see it all on PBS, as the conservatives bitch. 695. pseudoerasmus - 3/25/2000 1:23:35 PM If Predator is banned in Germany, why does it have a German certification, a German distribution company, and a German review? 696. AceofSpades - 3/25/2000 1:29:35 PM 697. AceofSpades - 3/25/2000 1:42:11 PM 698. pseudoerasmus - 3/25/2000 1:46:40 PM Well, something is clearly wrong with that list, because I've seen Grand Illusion in a Munich revival theatre, and at least one of those famous slasher movies on German TV. 699. AceofSpades - 3/25/2000 1:50:14 PM 700. pseudoerasmus - 3/25/2000 1:50:52 PM And go look up some of the individual movies themselves. All Quiet on the Western Front was banned until 1945, it says. Many other films on your list have ending years like that. Some have simply question marks for ending years. 701. pseudoerasmus - 3/25/2000 1:52:53 PM #699 702. pseudoerasmus - 3/25/2000 1:54:38 PM Well, I looked up one terribly violent movie: there seems to have been a cut version and an uncut version. 703. AceofSpades - 3/25/2000 1:54:45 PM 704. Jonesatlaw - 3/25/2000 1:54:56 PM Pseudo- I have daily contact with law enforcement and sexual deviancy does result in criminal punishment in some instances. However, the idea of the neighbors "snitching" on one another over their sexual activity is nonsense. The only prosecutions I know of relate to public sexual activity, prostitution, child abuse or the abuse of animals. What one does with one's partner(s) in private is not a matter for public censure, unless one is a politician known for clubbing others with one's high sexual morality. Surely you will acknowledge that there are social consequences for sexual behavior in other countries. I suppose that if one lived as you supposed Americans to wrt to sex in Europe, it may result in some social consequence. Being regarded as prigish, inhibited and no fun at partys might lead the list. 705. AceofSpades - 3/25/2000 1:55:56 PM 706. pseudoerasmus - 3/25/2000 1:56:30 PM #702 707. AceofSpades - 3/25/2000 1:58:16 PM 708. pseudoerasmus - 3/25/2000 2:01:24 PM #705 709. pseudoerasmus - 3/25/2000 2:02:42 PM #703 710. JayAckroyd - 3/25/2000 2:14:21 PM Please, I am talking about walking and generally moving about without armed escorts. 711. pseudoerasmus - 3/25/2000 2:21:28 PM Have you walked in the streets of South Bronx or East New York at, say, 9PM alone? 712. Jonesatlaw - 3/25/2000 2:59:34 PM Limited number of cities? Yes. But I can assure you that any German or Japanese can walk in any part of any German or Japanese city without problems. 713. Raskolnikov - 3/25/2000 3:00:35 PM To an extent, I think Pseudo is just playing devil's advocate to puncture common American sanctimoniousness about the US being a "free country". I think there is some value there, but most of the restrictions he names are piddling, inconsequential things like sodomy laws, which have a symbolic value but hardly restrict anyone from "doing what they want to do". I also think he overestimates American taste when he says that we don't want to live in McBurbs. This is a country where there are more McDonald's than any other restaurant. I will reiterate that Americans are generally able to live in any sort of housing and architectural style they choose, in almost any type of residential area, for less than what choosing such residences would cost in a European metropolitan area. It is just that it isn't worth the trade-offs to most Americans. 714. Raskolnikov - 3/25/2000 3:01:45 PM While Pseudo has mentioned that the US has greater economic freedom, I think it is worth emphasizing exactly how important that is. Our high wages and economic standard of living gives us the freedom to do a lot of things and buy a lot of things that just can't be done as cheaply in Europe. 715. pseudoerasmus - 3/25/2000 3:07:22 PM #712 716. Raskolnikov - 3/25/2000 3:07:50 PM I lived in West Philly for a summer. After getting mugged, I was scared shitless walking home alone late at night. And my wife *never* walks alone at night, even in our very safe suburb - it is too ingrained from her years living near the University of Minnesota, and Minneapolis has an extremely low crime rate compared to other US cities. I completely concede Pseudo's point in this regard. 717. Seguine - 3/25/2000 3:08:29 PM CalGal: "But again, what is this association of PC expectations with freedom?" 718. Seguine - 3/25/2000 3:09:45 PM Jones: "You find the American lifestyle stultifying and boring. Fair enough. However, it is the result of free choices of Americans." 719. Seguine - 3/25/2000 3:10:53 PM PE: "For example, people in the USA are prone to suspecting others of sexual deviancy." 720. Seguine - 3/25/2000 3:11:10 PM Dan: “Taxes can play a role [in middle-class flight] (and has in Philly), too.” 721. Jonesatlaw - 3/25/2000 3:18:51 PM Seguine- The last time I saw a mother spank her child in public was about two days ago in a store. Next? 722. pseudoerasmus - 3/25/2000 3:19:38 PM #713 723. pseudoerasmus - 3/25/2000 3:20:30 PM Raskolnikov: 724. Raskolnikov - 3/25/2000 3:20:33 PM Seguine: "But it makes perfect sense. Other Americans’ choices constrain mine." 725. pseudoerasmus - 3/25/2000 3:20:52 PM In the USA, bars close at 2AM! 726. pseudoerasmus - 3/25/2000 3:23:15 PM #714 727. DaveM - 3/25/2000 3:24:42 PM I have enjoyed reading this discussion. 728. Jonesatlaw - 3/25/2000 3:25:14 PM Pseudo- Not in New York, -at least it used to be 4AM. 729. pseudoerasmus - 3/25/2000 3:25:17 PM #719 730. pseudoerasmus - 3/25/2000 3:28:05 PM Meyer, you appear to be some of lower-20-something whose experience outside the USA (and the less PC environs) appears to be brief girlie-chasing excursions in Costa Rica or other havens for Northamerican leftie granola gits. 731. Raskolnikov - 3/25/2000 3:31:25 PM Pseudo: 732. DaveM - 3/25/2000 3:33:07 PM Pseudo, you've pegged me exactly. Actually, my mommy and daddy sent me to Europe once too. 733. JayAckroyd - 3/25/2000 3:33:34 PM 711 734. pseudoerasmus - 3/25/2000 3:36:39 PM Jay, there are some parts of Paris and London, such as the banlieus outside Paris, which can be unsafe. But that's about it. You certainly can't compare inner city USA with the vast majority of European cities. 735. DaveM - 3/25/2000 3:36:56 PM Pseudo - 736. pseudoerasmus - 3/25/2000 3:38:22 PM Raskolnikov: The gap between European and American car ownership rates can't be that great, if it's there at all. What you say about housing is true on average. 737. DaveM - 3/25/2000 3:39:02 PM "Freedom" in this discussion really does appear to be nothing more than congruence with one's personal desires. 738. pseudoerasmus - 3/25/2000 3:39:17 PM #727 739. TabouliJones - 3/25/2000 3:39:52 PM 740. Raskolnikov - 3/25/2000 3:39:54 PM "I never said car ownership restricts freedom. I'm saying that the lack of transport options restricts freedom of choice to driving and driving and more driving. " 741. pseudoerasmus - 3/25/2000 3:41:03 PM # 737 742. pseudoerasmus - 3/25/2000 3:43:28 PM Raskolnikov: Yes, London pubs close early, but the nightclubs don't. Anyway, London and the UK are not the extent of Western Europe. 743. pseudoerasmus - 3/25/2000 3:45:38 PM # 735 744. pseudoerasmus - 3/25/2000 3:46:08 PM Excuse me. I've been to Kansas City, whose outskirts contained some of the most oppressive suburban sprawl I've ever seen. 745. pseudoerasmus - 3/25/2000 3:48:11 PM But basically, I am making a "revealed preference" argument. While I agree that these preferences are somewhat distorted by factors you mention, I would argue that apparant European preferences are even more distorted by the comparative lack of new land to develop, and the higher cost of land. 746. Raskolnikov - 3/25/2000 3:48:18 PM "Most of Western Europe has a lower per capita income than the USA, but not terribly lower. And the distribution of income is better, so that workers in manufacturing, for example, get something like twice the wages of comparable American workers." 747. pseudoerasmus - 3/25/2000 3:50:17 PM If I'm responding with less detail and less elaboration than before, it's because it's difficult to do so when you have 20 people to respond to. 748. Raskolnikov - 3/25/2000 3:52:06 PM "What are we talking about? Housing or cars? The remarks to which you responded were about cars." 749. Raskolnikov - 3/25/2000 3:53:20 PM I'll make it easier and bow out for now. I initially logged on to download some stuff I need for my Oscar party tomorrow, and hadn't intended to get caught up in this argument again. 750. Jonesatlaw - 3/25/2000 4:05:16 PM Is this the case that you were blithering about Pseudo? The prosecution of parents for nude photos of their child? 751. Jonesatlaw - 3/25/2000 4:07:44 PM The last 13 photographs are of the child alone, in the nude, 752. Jonesatlaw - 3/25/2000 4:08:40 PM toys 753. pseudoerasmus - 3/25/2000 4:08:54 PM No, that's not the case. The case I had in mind was very recent, involving an amateur photographer woman and her daughter. I'm trying to recall the name and find the citation. 754. pseudoerasmus - 3/25/2000 4:13:27 PM Yes, I'm sure it would be appealed, but the very fact that it must be appealed at all is awful. 755. Jonesatlaw - 3/25/2000 4:30:49 PM Pseudo- are you refering to the woman who photographed her daughter in the shower? The child was 8 years old and "rinsing" off her gentials in the photo. 756. pseudoerasmus - 3/25/2000 4:36:19 PM That may be the one. What's her name? 757. CalGal - 3/25/2000 4:56:27 PM Seguine, 758. Seguine - 3/25/2000 6:13:31 PM PE: "The case I had in mind was very recent, involving an amateur photographer woman and her daughter. I'm trying to recall the name and find the citation." 759. TabouliJones - 3/25/2000 6:13:39 PM I agree with Rask, that perhaps PE's argument is a reaction against the more bombastic form of American patriotism, which tends to regard the U.S. as the absolute paragon of free thinking societies and tends to devolve into an Amurrica love it or leave it mentality. Certainly such knee-jerk patriotism is a rather odious mind set that warrants whatever vitriole gets thrown its way. I will, however, leave it up to the Americans here to let me know how pervasive that mentality actually is in the U.S.; although, personally, I doubt it is all that rampant. 760. Seguine - 3/25/2000 6:13:43 PM (Of course, they publicly beat their kids up side of the head in West Philly, but that's only because Social Services there can't be counted on to do anything effective in far worse situations...) 761. Seguine - 3/25/2000 6:15:40 PM 760 was addressed to Jonesatlaw 762. MsIvoryTower - 3/25/2000 6:29:15 PM Jones Message # 750: 763. Seguine - 3/25/2000 6:31:03 PM Seguine: "But it makes perfect sense. Other Americans’ choices constrain mine." 764. MsIvoryTower - 3/25/2000 6:31:54 PM Btw, I'm having a hard time connecting this endless conversation about pseudo-american freedoms with the gist of this thread. 765. MsIvoryTower - 3/25/2000 6:32:34 PM aesthetics, that is.... 766. Seguine - 3/25/2000 6:39:17 PM MsIT: "I'm always suspicious when I read about these parents who 'innocently' are caught by some nasty ole' pornography statutes." 767. Seguine - 3/25/2000 6:40:31 PM (sorry, cross-post) 768. MsIvoryTower - 3/25/2000 6:42:01 PM Seguine 769. MsIvoryTower - 3/25/2000 6:50:38 PM Btw Seguine 770. pseudoerasmus - 3/25/2000 7:07:19 PM Who the hell is talking about child pornography? 771. MsIvoryTower - 3/25/2000 7:20:09 PM I think I'm going to declare a moratorium on hysterical anecdotes in this thread. 772. pseudoerasmus - 3/25/2000 7:34:20 PM I'm always suspicious when I read about these parents who 'innocently' are caught by some nasty ole' pornography statutes. 773. CalGal - 3/25/2000 7:39:01 PM Yes, it's becoming almost dangerous these days to say that you disapprove of pedophiles in certain circles. It's quite the trend in more educated and urban populations to dismiss such concerns as McCarthyism. 774. Raskolnikov - 3/25/2000 7:49:28 PM "Hollywood movies. Why does Hollywood come to my town to film? Because this place represents an ideal. Most people simply have no access to it." 775. profemeritus - 3/25/2000 7:53:06 PM MsIT 776. MsIvoryTower - 3/25/2000 9:03:10 PM ProfE 777. Seguine - 3/25/2000 9:27:31 PM MsIT: "It's quite the trend in more educated and urban populations to dismiss such concerns as McCarthyism." 778. Seguine - 3/25/2000 9:41:00 PM Rask: "How does this provide one scrap of evidence that the US has this problem more than other countries?" 779. MsIvoryTower - 3/25/2000 10:01:19 PM Message # 777 780. LadyChaos - 3/25/2000 11:29:14 PM MsIT, 781. Seguine - 3/25/2000 11:31:31 PM "Don't know if you deliberately switched our two comments" 782. Seguine - 3/25/2000 11:31:49 PM There are people in this country--some in positions of authority--who are so exercised by the threat of child abuse that they would question all manner of closeness, affection--even things like casual nudity in the home or parents sleeping in the same bed with young children--just to be sure nothing illicit might take place, or might be thought about, by anyone. 783. LadyChaos - 3/25/2000 11:31:49 PM I think they become national attention grabbers, and the stuff of rabble rousing, precisely because they happen rarely. 784. Stumbo - 3/26/2000 2:29:39 AM "I'm tempted to use the I word, but since you're Raskolnikov, I won't." 785. MsIvoryTower - 3/26/2000 9:28:41 AM LadyC and Seguine 786. MsIvoryTower - 3/26/2000 9:37:22 AM Mind you: anyone who messed with my children would not survive the period between my locating him and the date of his arraignment. 787. Seguine - 3/26/2000 10:57:46 AM MsedIT, 788. Seguine - 3/26/2000 11:05:54 AM On a different question of freedom brought up earlier: workplace sexual harassment laws. Frankly, I've found it much easier to function in the world since harassment became punishable. To the extent that men's freedom is curtailed by my desire not to be grabbed, yelled at, ogled, unfairly excluded, blackmailed, etc. on the job, I guess I have to say, from a purely partisan standpoint, tough shit. 789. MsIvoryTower - 3/26/2000 11:32:33 AM Seguine 790. MsIvoryTower - 3/26/2000 11:33:26 AM ...and exhibiting McCarthyism, that is.... 791. MsIvoryTower - 3/26/2000 11:36:14 AM Finally, Seguine, 792. AceofSpades - 3/26/2000 12:15:01 PM 793. TabouliJones - 3/26/2000 12:19:30 PM Barring any last minute deals, it looks like Judge Jackson will be giving his decision in the Microsoft case on Tuesday or Wednesday. It looks like he will be coming down hard on Microsoft; and he is probably leaning towards breaking up the company -- although he will probably hear arguments first about remedies before he makes that final decision. 794. TabouliJones - 3/26/2000 12:19:51 PM Not that MS is an angel, but its behaviour has not been as egregiously anti-competitive as the DOJ wants everyone to believe. Certainly, MS's current settlement offer is quite reasonable -- i.e. agreeing to stop certain restrictive licensing practices and agreeing not to tie IE to any of their future operating systems. 795. AceofSpades - 3/26/2000 12:27:39 PM 796. AceofSpades - 3/26/2000 12:31:34 PM 797. TabouliJones - 3/26/2000 12:34:13 PM 798. pseudoerasmus - 3/26/2000 12:38:44 PM Cosmopolitan cool? Yes, that surely describes Americans who affect knowledge of abroad without having it. 799. AceofSpades - 3/26/2000 12:39:06 PM 800. AceofSpades - 3/26/2000 12:40:41 PM 801. TabouliJones - 3/26/2000 12:47:47 PM 802. AceofSpades - 3/26/2000 12:56:13 PM 803. TabouliJones - 3/26/2000 1:03:52 PM 804. AceofSpades - 3/26/2000 1:06:29 PM 805. TabouliJones - 3/26/2000 1:12:55 PM Well, you are talking about the Chicago School which tends to oversate its arguments, yes. (Interestingly, Rober Bork, a famous member of that school, has taken Netscapes' side in this case.) However, Economides and Krugman are experts on the economic theory being used by the DOJ to buttress their case against MS, and both of them agree that the DOJ is over playing its hand. The theory underlying the DOJ's case implies the existence of market externalities which will perpetuate MS's dominance at the expense of consumers. I and others happen to think that theory is inapplicable to the MS case. 806. CalGal - 3/26/2000 1:16:51 PM Ms, 807. TabouliJones - 3/26/2000 1:19:55 PM 808. AceofSpades - 3/26/2000 1:21:12 PM 809. AceofSpades - 3/26/2000 1:25:36 PM 810. TabouliJones - 3/26/2000 1:36:15 PM Ace 811. AceofSpades - 3/26/2000 1:39:20 PM 812. MsIvoryTower - 3/26/2000 1:39:22 PM I thought it was being used to describe something else. 813. MsIvoryTower - 3/26/2000 1:42:38 PM And Calgal, I already have the language attack dog on my heals, did you have to post the damn error (who's versus whose) again? 814. MsIvoryTower - 3/26/2000 1:46:28 PM jaysus 815. TabouliJones - 3/26/2000 1:46:34 PM 816. TabouliJones - 3/26/2000 1:52:36 PM 817. PincherMartin - 3/26/2000 4:17:32 PM Great discussion. 818. PincherMartin - 3/26/2000 4:58:19 PM Tabouli Jones -- 819. TabouliJones - 3/26/2000 5:02:35 PM 820. Seguine - 3/26/2000 10:02:30 PM IT: "Your last post clearly demonstrates your selective concerns about who's freedoms are being curtailed, and why." 821. ButterfieldSwire - 3/27/2000 5:31:15 AM Raskolnikov asked -- 822. Raskolnikov - 3/27/2000 11:09:20 AM Butter: Thanks - that is about where my hunch was. 823. CalGal - 3/27/2000 11:39:07 AM How is income calculated, by tax returns? There are a lot more part-time workers in the US, aren't there? 824. Jonesatlaw - 3/27/2000 12:24:05 PM Seguine- are you focusing on children who are molested or abused by family members or non family members? Experience shows that children are more likely to be molested by family members than strangers. The very nature of the crime makes it difficult to dectect and to prove in court. Do I think that children are safer now that there is greater awareness of child abuse in general? Yes. 825. Absensia - 3/27/2000 12:36:32 PM Jonesatlaw, 826. Raskolnikov - 3/27/2000 12:37:37 PM Non-cash income (Food stamps, housing, etc.) could also tilt the comparison differently. I have no clue about whether Europe uses voucher-style welfare programs more than the US does. 827. Jonesatlaw - 3/27/2000 12:42:12 PM Absensia- I agree with you regarding custody cases and false accusations. Most of the folk who end up trying to sort this stuff out are woefully unprepared for the task. 828. ButterfieldSwire - 3/27/2000 9:51:16 PM Trying to generate a correct and complete distribution of income levels are of course going to be subject to a lot of caveats. But the state of knowledge, such as it is, can probaly be found in Gottschalk and Smeeding. Read it your self if your interested. 829. CalGal - 3/27/2000 10:09:31 PM That link hung my browser--and I asked about it in The Slow Thread, which is probably better suited for this one topic. 830. PincherMartin - 3/27/2000 10:17:07 PM Butter -- 831. wonkers2 - 3/27/2000 10:46:47 PM Here's a second to Pincher's recommendation of Ferguson's High Stakes. It's the best book I've read on the computer industry. The New New Thing by Michael Stewart is also good--more entertaining but less informative. 832. LadyChaos - 3/29/2000 5:07:23 PM I was pleased to see that one of our local Public Defenders, Harvey Sepler (who teaches occasionally as an adjunct here at UM Law), just won his case before the Supreme Court. In a 9-0 decision, the Court ruled that there can be no "firearms exception" to the probable cause requirement of the 4th Amendment. 833. PincherMartin - 3/29/2000 7:34:11 PM A question for you Lawyers: what consequence do U.K. libel laws have on Americans? In particular, why would an American academic be compelled to attend a U.K. proceedings for remarks she made on a British academic? 835. LadyChaos - 3/30/2000 11:12:46 PM When, oh when, are those morons in the Senate going to stop trying to amend the Bill of Rights to outlaw flag desecration? 836. Dantheman - 3/31/2000 8:54:53 AM 837. Dusty - 3/31/2000 10:29:08 AM LadyChaos 838. PelleNilsson - 3/31/2000 3:13:22 PM Great to see you around again, Dusty! 839. Dusty - 3/31/2000 3:22:16 PM Thanks, Pelle, I hope I can stay. 840. LadyChaos - 3/31/2000 6:07:12 PM Dusty, 841. Candide - 3/31/2000 6:18:19 PM PincherMartin 834 842. LadyChaos - 3/31/2000 6:39:10 PM Pinchermartin, 843. wonkers2 - 4/1/2000 9:58:36 AM British Internet Provider to Pay Physicist Who Says E-Bulletin Board Libeled Him by Sarah Lyall NYT 4-4 844. wonkers2 - 4/1/2000 10:08:35 AM It is unclear what implications the settlement will have for companies based in the U.S., where Internet providers are held to be no more liable for the messages posted on them than the post office is for the contents of letters it delivers, or a telephone company for conversations it carries. First Amendment lawyers said that American companies would probabley be at risk only if they had physical assets like office buildings in Britain. 845. wonkers2 - 4/1/2000 10:20:34 AM It was on Jan 12, 1997, that the first message at issue in the case appeared, as part of the discussion in a news group carried by Demon's news servers. News groups are freewheeling discussion groups on every imaginable subject, whose subscribers can post messages as they would on a bulletin board, to be read and commented on by others. They are one of the original services provided by the Internet and are precious forums for those who regard the Internet as thefinal frontier of free speech. Discussions can be extremely heated, and not infrequently descend into personal attacks, [except on the most civilized forums such as The MOTE.] 846. wonkers2 - 4/1/2000 10:33:44 AM That made Mr. Godfrey, a familiar figure in various news groups, decidedly unpopular with the Internet's free speech champions, who then began posting further provicative messages about him, calling him a pedophile and a necrophile, among other things. Godfrey responded with further lawsuits against the people posting the messages. More than half a dozen of them settled, for amounts in the $15,000 range. 847. MsIvoryTower - 4/1/2000 1:04:12 PM PM 848. MsIvoryTower - 4/1/2000 1:05:43 PM Lady C 849. MsIvoryTower - 4/1/2000 1:09:44 PM With respect to the case Wonkers referenced, 850. PincherMartin - 4/1/2000 5:01:58 PM MsIT, Wonkers, and Lady Chaos -- 851. dusty - 4/1/2000 5:56:33 PM Lady Chaos 852. MsIvoryTower - 4/1/2000 10:34:39 PM On another note... 853. TabouliJones - 4/1/2000 10:38:45 PM 854. MsIvoryTower - 4/1/2000 10:59:41 PM Tabouli 855. SpenceMirrlees - 4/2/2000 12:19:47 AM I'm traveling right now. I will comment when I get back on Sunday. 856. dusty - 4/2/2000 12:04:46 PM I just finished sending in my census form. 857. wonkers2 - 4/2/2000 12:05:50 PM THE LEGAL MIND? 858. wonkers2 - 4/2/2000 12:13:20 PM "Notwithstanding the above, buttocks shall not include the leg, the hamstring muscle below the gluteal fold, the tensor fasciae latae muscle or any of the above-described portion of the human body that is between either the left inside perpendicular line and the left outside perpendicular line or the right inside perpendicular line and the right outside perpendicular line. For the purpose of the previous sentence the left inside perpendicular line shall be an imaginary line on the left side of the anus that is perpendiuclar to the ground and to the horizontal lines described above and that is one-third the distance from the anus to the left outside line, and the right inside perpendicular line shall be an imaginary line on the right side of the anus that is perpenddicular to the ground and to the horizontal lines described above and that is one-third of the distance from the anus to the right outside line. (The above description can generally be described as covering one-third of the buttocks centered over the cleavage for the length of the cleavage.)" 859. MsIvoryTower - 4/2/2000 12:54:29 PM Dusty, 860. MsIvoryTower - 4/2/2000 12:58:51 PM Dusty 861. MsIvoryTower - 4/2/2000 1:03:37 PM Actually, as I think on it, a signature of truthfulness would raise your culpability from negligence to knowing, and for any criminal offense, that could mean a significant difference in sentence. In civil law (torts), I think it would negate any affirmative defense against potential fines, regardless how large. 862. MsIvoryTower - 4/2/2000 1:04:03 PM Or damages, for that matter. 863. dusty - 4/2/2000 1:11:40 PM MSit 864. Absensia - 4/2/2000 1:16:26 PM Wonkers, 865. MsIvoryTower - 4/2/2000 1:21:39 PM Absensia 866. wonkers2 - 4/2/2000 5:33:05 PM Msit, Nudity is indecent in the eye of the beholder! 867. LadyChaos - 4/2/2000 8:03:53 PM MsIT, 868. MsIvoryTower - 4/2/2000 8:34:28 PM LadyC 869. Dantheman - 4/3/2000 9:07:23 AM LadyChaos, 870. LadyChaos - 4/3/2000 9:16:07 AM Thanks to all for helping me exercise my debate skills in this forum. 871. 109109 - 4/3/2000 11:58:06 AM To Cart, on the Echols case (from Movies) 872. 109109 - 4/3/2000 11:58:29 AM The substantial evidence of Echols's guilt is as follows. Anthony and Narlene Hollingsworth were well acquainted with Echols and testified that they saw Echols and his girlfriend, Domini Teer, walking after 9:30 on the night of the murders near the Blue Beacon Truck Stop, which is near Robin Hood woods where the bodies were found. The witnesses testified that Echols had on a dark-colored shirt and that his clothes were dirty. This evidence placed Echols in dirty clothes near the scene at a time close to the murders. 873. 109109 - 4/3/2000 11:58:50 AM Lisa Sakevicius, a criminalist from the State Crime Laboratory, testified that she compared fibers found on the victim's clothes with clothing found in Echols's home, and the fibers were microscopically similar. 874. 109109 - 4/3/2000 11:59:33 AM The State's theory of motive was that the killings were done in a 875. 109109 - 4/3/2000 11:59:55 AM Dr. Griffis testified that there was significance in injuries to the left side of the victims as distinguished from the right side: People who practice occultism will use the midline theory, drawing straight down through the body. The right side is related to those thingssynonymous with Christianity while the left side is that of the practitioners of the satanic occult. He testified that the clear place on the bank could be consistent with a ceremony. In sum, Dr. Griffis testified there was significant evidence of satanic ritual killings. 876. 109109 - 4/3/2000 12:00:16 PM Echols took the witness stand, and his testimony contained additional 877. 109109 - 4/3/2000 12:00:37 PM Echols, in another argument relating to sufficiency of the evidence, 878. 109109 - 4/3/2000 12:00:46 PM I would eat him alive." He admitted he tried "to claw the eyes out" of a student. Perhaps the most compelling testimony on this point came from the cross-examination of Dr. James Moneypenny, a psychologist who testified for Echols. Dr. Moneypenny admitted that Echols had "an all powerful God-like image of himself" and that 879. 109109 - 4/3/2000 12:03:03 PM Cart 880. jexster - 4/3/2000 6:34:43 PM ORDER 881. jexster - 4/3/2000 6:34:57 PM 882. jexster - 4/3/2000 6:36:47 PM Chuckles for the day: 883. wonkers2 - 4/3/2000 7:41:13 PM Jex, Thanks for posting the judge's decision against Microsoft. That makes it perfectly clear! 884. MsIvoryTower - 4/3/2000 7:49:06 PM 109 885. Ubiquitous - 4/3/2000 8:02:56 PM This just in......(my mailbox). 886. MsIvoryTower - 4/3/2000 8:25:27 PM Ubiquitous 887. arkymalarky - 4/3/2000 11:34:29 PM 109, 888. SpenceMirrlees - 4/4/2000 12:33:53 AM Ms Message # 852 and Message # 854 889. SpenceMirrlees - 4/4/2000 12:35:01 AM Coase's "theorem," when examined carefully, has two parts: one on the final distribution of property rights, and one on the final distribution of welfare. The welfare part says that, regardless of the initial distribution of property rights, under the requisite assumptions (namely the ones above), the final welfare of all parties involved is the same. This obviously depends on quasilinearity of utilities, because since side payments are the lubrication of the Coase bargain, all people have to value an additional dollar the same no matter how many other dollars, or how many other widgets, they have. This has been known for a long time. 890. SpenceMirrlees - 4/4/2000 12:35:25 AM Another thing about the world of the Coase theorem is that information is complete. The 2nd floor resident knows exactly the harm endured thanks to her dancing by the ground-floor dwellers; the smoker knows precisefly the benefit to the nonsmoker of clean air. Since complete information is at best always an idealization, I view this is a major problem for the application of the Coase theorem. Without complete information, the result fails. Indeed the Myerson-Satterthwaite theorem can be interpreted as a special counter-claim under incomplete information: when utility functions are privately known there is no bilateral trading mechanism that is fully efficient. Evidence from experiments with financial incentives strongly supports the theoretical conjecture: with complete information, bargains are efficient. With incomplete information, they depart markedly from efficiency. 891. SpenceMirrlees - 4/4/2000 12:35:34 AM MsIT, your specific comments: 892. SpenceMirrlees - 4/4/2000 12:52:11 AM a Pigouvian tax: 893. jonesatlaw - 4/4/2000 1:15:31 AM Ms IvoryTower- wrt Texas elected judges- the criminal decisons I read from Texas are to quote Leonard Plinth Garnell "exquisitely bad." I would attribute this to the political "responsivness" of your courts. Sleeping Defense counsel in capital cases, lawyers without experience and with major health problems appointed to capital cases, and rampant cronyism in appointment of counsel are shockingly frequent in Texas. I often get frustrated with Federal judges appointed for life, but the only way to make them worse would be to make politicians out of them. I cannot believe that Texas retains this system. 894. SpenceMirrlees - 4/4/2000 4:31:03 AM addendum 895. Absensia - 4/4/2000 2:32:05 PM Jonesatlaw and MsIt, 896. MsIvoryTower - 4/4/2000 5:31:11 PM Spence 897. MsIvoryTower - 4/4/2000 5:31:34 PM ME: If you can't price the cost, how can you negotiate even when transaction costs are zero? 898. MsIvoryTower - 4/4/2000 5:35:52 PM Jones 899. MsIvoryTower - 4/4/2000 5:37:13 PM Spence 900. SpenceMirrlees - 4/4/2000 6:32:38 PM if there were no transaction costs, that the final distribution of property rights would be efficient regardless of who began with private ownership. 901. SpenceMirrlees - 4/4/2000 6:32:49 PM future costs that are unknown, or unknowable at the point of negotiations, even when parties meet his assumptions. 902. MsIvoryTower - 4/4/2000 6:51:21 PM Spence 903. MsIvoryTower - 4/4/2000 7:55:02 PM Spence 904. MsIvoryTower - 4/4/2000 7:59:14 PM I simply don't believe we can incorporate preferences for future generations in private negotiations between parties who do not bear the full costs in the present. 905. MsIvoryTower - 4/4/2000 7:59:38 PM 906. SpenceMirrlees - 4/5/2000 12:05:46 AM it's the issue of perfect information that is most problematic for me wrt Coase's theorem 907. jonesatlaw - 4/5/2000 2:13:31 AM MsIT- How about a reasonable compromise- appointment from a panel of attorneys approved by a nominating commission, followed by retention elections? It is not a perfect system, but is the best compromise I know of so far. 908. 109109 - 4/5/2000 10:58:01 AM FROM MOVIES 909. 109109 - 4/5/2000 10:58:42 AM 910. 109109 - 4/5/2000 10:59:29 AM As for the hapless Mr. Misskelley, let's go to the video tape. From the appellate decision affirming his conviction: 911. 109109 - 4/5/2000 11:01:00 AM While these events were taking place, Michael Moore tried to escape and began running. The appellant chased him down and returned him to Baldwin and Echols. The appellant also stated that Baldwin had used a knife to cut the boys in the facial area and that the Byers boy was cut on his penis. Echols used a large stick to hit one of the boys. All three boys had their clothes taken off and were tied up. 912. 109109 - 4/5/2000 11:02:21 AM The first tape recorded statement concluded at 3:18 p.m. At approximately 5:00 p.m., another statement was recorded. This time, the appellant said he, Echols and Baldwin had come to the Robin Hood area between 5:00 and 6:00 p.m. Upon prompting by the officer, he changed that to 7:00 or 8:00 p.m. He finally settled on saying that his group arrived at 6:00 p.m. while the victims arrived near dark. He went into further detail about the sexual molestation of the victims. At least one of the boys had been held by the head and ears while being accosted. Both the Byers boy and the Branch boy had been raped. All the boys, he said, were tied up with brown rope. 913. 109109 - 4/5/2000 11:02:49 AM The appellant's statements are a confusing amalgam of times and events. Numerous inconsistencies appear, the most obvious being the various times of day the murders took place. Additionally, the boys were not tied with rope, but with black and white shoe laces. It was also revealed that the victims had not skipped school on May 5. However, there were portions of the statements which were consistent with the evidence and were corroborated by the state's testimony and exhibits. The victims had been seen riding their bicycles. The medical examiner testified that the boys had been severely beaten. Two of them had injuries consistent with being hit by a large object. One of the boys had facial lacerations. The Byers boy had indeed been severely mutilated in the genital area. All the boys had injuries which were consistent with rape and forced oral sex. There was evidence that drowning contributed to the deaths of the Moore and Branch boys, but not the Byers boy. This is consistent with the 914. 109109 - 4/5/2000 11:03:17 AM Voluntariness of Confession 915. 109109 - 4/5/2000 11:03:41 AM The two arrived at the station at approximately 10:00 a.m. Detective Allen and Detective Bryn Ridge questioned the appellant for about an hour when they became concerned that he wasn't telling the truth. In particular, he denied participation in the cult activity, a statement which was at odds with what other witnesses had said. At this point, the detectives decided to advise the appellant of his rights. Detective Allen read him a form entitled "YOUR RIGHTS," and verbally advised him of the Miranda rights contained in the form. The appellant responded verbally that he understood his rights and 916. 109109 - 4/5/2000 11:04:03 AM Upon returning to the station, Detective Bill Durham, who would administer the polygraph, once again explained the appellant's rights to him. The appellant verbally indicated he understood, and initialled and signed a second rights and waiver form which was identical to the first. 917. 109109 - 4/5/2000 11:04:26 AM The officers decided to tape record a statement and received the confessions which are set out above. At the beginning of the first statement, on tape, the appellant was advised of his rights for the third time. The rights were fully explained to him, and the waiver of rights read to him verbatim. 918. 109109 - 4/5/2000 11:04:45 AM The appellant offers several reasons why we should invalidate his confession. First, he argues that the confession was the product of a promise of reward or leniency. He points to the use of the circle diagram, which he describes as an implied offer of leniency, and to the existence of a $30,000.00 reward which was in effect at the time the appellant was questioned. A confession obtained through a false promise of reward or leniency is invalid. Hamm v. State, 296 Ark. 385, 757 S.W.2d 932 (1988). However, there is no evidence that the appellant's confession was obtained in such a manner. The circle diagram, while used to encourage the appellant to respond to 919. 109109 - 4/5/2000 11:05:12 AM At the time the appellant was interrogated he was seventeen years old, and just thirty-seven days away from his eighteenth birthday. Persons younger than he have been held capable of giving voluntary confessions. Oliver v. State, 322 Ark. 8, 907 S.W.2d 706 (1995) (fifteen-year old); Douglas v. State, supra (fifteen-year old); Smith v. State, 286 Ark. 247, 691 S.W.2d 154 (1985) (sixteen-year old); Hunes v. State, 274 Ark. 268, 623 S.W.2d 835 (1981), cert. denied, 115 S. Ct. 134 (1994) (sixteen-year old). The appellant also points to evidence that his IQ was 72 and that he read at a third-grade level. A low score on an intelligence quotient test does not mean that a suspect is incapable of voluntarily making a confession or waiving his rights. Oliver v. State, supra; Hart v. State, 312 Ark. 600, 852 S.W.2d 312 (1993); Hill v. State, 303 Ark. 462, 798 S.W.2d 65 (1990). Oliver is particularly on point. There, we held 920. 109109 - 4/5/2000 11:05:30 AM There was evidence that, between 1988 and 1992, he had been advised of his rights in juvenile proceedings on three occasions. He was no stranger to the criminal justice system, a factor which we have considered in the past. Lowe v. State, 309 Ark. 463, 830 S.W.2d 864 (1992). Between the first time the appellant was advised of his rights and the time he gave his first statement, a period of just over four hours elapsed, which is not undue. The officers' questioning was persistent, but that is permissible. Noble v. 921. 109109 - 4/5/2000 11:05:44 AM 922. wonkers2 - 4/5/2000 9:50:58 PM Anybody know which is the correct plural of Attorney General, Attorney Generals or Attorneys General? In the Microsoft press conference Joel Klein said Attorneys General but one of the Attorneys General said Attorney Generals. 923. Absensia - 4/5/2000 10:36:31 PM I have always heard it as Attorney Generals. As in, "five Assistant Attorney Generals," or, "the room was filled with eager Attorney Generals from 23 states. Scary when there's a flock of them anywhere, though. 924. MsIvoryTower - 4/5/2000 10:42:31 PM Wonkers 925. Absensia - 4/5/2000 10:44:15 PM No doubt, MsIt, but the AGs I've litigated against all these years don't seem to read style manuals! 926. Indiana Jones - 4/5/2000 10:44:25 PM Per Webster's it's either, though attorneys general is listed first, which usually indicates preferred usage. 927. Absensia - 4/5/2000 10:46:21 PM Isn't general one too? I never can quite get used to someone referring to Janet Reno as General Reno! 928. MsIvoryTower - 4/5/2000 10:49:50 PM Absensia 929. Absensia - 4/5/2000 10:51:47 PM Oh..sorry..I did think it was correct..feel free to delete mine then. 930. Indiana Jones - 4/5/2000 10:59:08 PM Well, I'm not a lawyer, but it seems to me that "general" in the phrase is an adjective, meaning the "general attorney." Someone just got fancy and inverted the order. Like lawyers do. 931. Absensia - 4/5/2000 11:03:04 PM If you're not an attorney, then you are probably right! Hmm, I'm not 932. MsIvoryTower - 4/5/2000 11:03:28 PM Absensia 933. Absensia - 4/5/2000 11:07:10 PM MsIT, 934. Absensia - 4/5/2000 11:13:21 PM MsIT, 935. MsIvoryTower - 4/5/2000 11:18:45 PM I often end up on some frolic and detour reading more about an area with which I am not very familiar. 936. Absensia - 4/5/2000 11:20:38 PM Torts? Double deja vu..hmmm! 937. MsIvoryTower - 4/5/2000 11:20:43 PM I should say, 938. MsIvoryTower - 4/5/2000 11:21:56 PM Ha! 939. Absensia - 4/5/2000 11:22:03 PM I understand. That is why I can't remember html from one moment to the next. Or at least that's what I claim. It might just be old age. 940. EricCartman - 4/6/2000 5:42:54 AM Niner Message # 908 et seq.: 941. EricCartman - 4/6/2000 5:45:23 AM [Relevant excerpt of questioning by prosecutor Davis]: 942. EricCartman - 4/6/2000 5:47:07 AM [excerpt from direct examination by Dan Stidham, Misskelley's attorney, as to Ofshe's methodology]: 943. EricCartman - 4/6/2000 5:48:28 AM [out of the presence of the jury]: 944. EricCartman - 4/6/2000 5:49:14 AM Q. Okay. 945. EricCartman - 4/6/2000 5:52:38 AM Q. What effect did the diagram -- the circle diagram, the photographs of the body and the playing of the tapes have in your analysis? 946. EricCartman - 4/6/2000 5:54:54 AM Over the course of the interrogation as the interrogation became accusatory and the offer for safe harbor was made using the circle technique as what then happened after the circle technique was used and based on my analysis of the sequence of the interrogation, based on the notes -- the contemporaneous notes of the interrogation by Detective Ridge together with the testimony of the police officers -- it's my opinion that that circle technique probably occurred early in the interrogation. It was then followed by an hour and a half of intense pressure brought to bear on Mr. Misskelley in which he was told repeatedly when he said -- first he would often say that he wanted to go home and he was told he could not go home, that's what Mr. Misskelley reports, which for my purposes contributed to the sense of helplessness that there was no way to escape these pressures. 947. EricCartman - 4/6/2000 5:55:26 AM This was repeated on several subjects and Mr. Misskelley was continually pressured in this way. Mr. Misskelley describes that what he learned to do was to feed back to the interrogators what they were telling him happened and he sought to avoid making mistakes because when he made mistakes they would make him go back through the entire story and they would not believe him when he repeatedly told them that he was working with Rickey Deese that day and he knew nothing about the crime. 948. EricCartman - 4/6/2000 5:56:38 AM Subsequent to that, Mr. Misskelley stated that -- in effect he stated -- and the very words are quoted by Detective Gitchell and similar words are used by Detective Ridge -- "I want out." I have the exact quote and what I just quoted is not exact either, but the statement that was made, was the statement 'I want out." A reference to the offer contained in the circle that, I'll do what you want in order to escape this continuing relentless pressure of the interrogation. 949. EricCartman - 4/6/2000 5:57:26 AM And then we can look at the second statement and show how precisely that happened and how again Jessie Misskelley is conforming to the demand placed on him and is changing his statement from direct response to suggestions and direct instructions by Detective Gitchell. There are illustrations of interrogation tactics in the second part of the statement that illustrate what I'm talking about and also illustrates Mr. Misskelley's strategies of simply parroting back to the police what they told him in order not to displease them and not to be subject to additional questions. 950. EricCartman - 4/6/2000 5:58:06 AM Q. [STIDHAM] I understand that you also have some experience and training with regard to cult--- 951. EricCartman - 4/6/2000 6:00:17 AM On the other hand, there are in my experience what I would call youth culture groups that get interested in the occult and these are the groups that are responsible for graffiti, responsible for the undisputed animal mutilations that sometimes occur. 952. EricCartman - 4/6/2000 6:01:51 AM Apparently there is one individual who claims to have attended a cult meeting. Apparently her testimony also -- or her report is equally unconfirmed. As far as I can tell there is an absence of hard information suggesting that such a satanic cult exists in this area and in addition, I know of nothing about the crime scene that suggests that this is an occult ritual killing. 953. EricCartman - 4/6/2000 6:04:26 AM As for the wacko step-father, that's Arkansas for you. 954. EricCartman - 4/6/2000 6:06:12 AM I'll be fair -- none of this convicts Byers outright. But it's at least as much evidence as what they had against Echols et al. Byers was a drug informant for the WMPD, which may explain why he was not very thoroughly investigated, plus the fact that Echols was a suspect from the get-go (not officially, but he’d been questioned already less than a week after the murders), and couldn't disprove the small-town rumors, "sightings", and "confessions" that swirled around him. It was a small town in one of the notches of the Bible Belt, and Echols was the town weirdo -- a creepy kid who collected animal skulls and copied Metallica lyrics in his journal. Dump some sensationalized diary passages into the media’s lap before the trial, and you got yourself a conviction. 955. EricCartman - 4/6/2000 6:11:58 AM But that doesn’t mean I think all polygraph tests are completely worthless. FWIW, here is an analysis of Misskelley’s polygraph. The end is particularly interesting, as the analyst describes the sort of personality who could be led into a false confession – low IQ, highly susceptible personality, low self-esteem. Misskelley has an estimated IQ of 72, has the mental capacity of a 5- or 6-year-old, and is borderline retarded. It is very possible that the cops lied, and told him that he failed his polygraph test, to break his will and elicit a story from him, a story chock full of holes. Despite what the appellate court ruled, citing Oliver, I think that’s bullshit. You gonna sit there and tell me that a kid with a 74 IQ and a second-grade reading/comprehension level knows what the fuck a Miranda warning means? That’s horrible. 956. EricCartman - 4/6/2000 6:14:57 AM Finally, Gitchell played a portion of a tape recorded statement which had been given by a young boy named Aaron. The boy was the son of a friend of the appellant's and had known the victims. 957. EricCartman - 4/6/2000 6:15:37 AM Point-by-point refutations of many pieces of "evidence" can be found here, including this segment on how the suspects "knew details only the killer would know": 958. EricCartman - 4/6/2000 6:15:54 AM Dr. Peretti testified in both trials, in fact, that any conclusive evidence of sexual assault was absent. The anal dilation police had initially assumed meant the boys had been raped was explainable due to normal postmortem relaxation plus the fact that the bodies had been submerged in water for several hours. (10) It is a measure of the WMPD’s inexperience that no one on hand at the dump site realized this . The best the state could get Peretti to testify to was that it was marginally possible that the boys may have been sexually assaulted without there being left behind any of the expected anal/rectal tissue damage extremely common in such cases. 959. 109109 - 4/6/2000 11:49:34 AM Eric 960. 109109 - 4/6/2000 11:50:13 AM "And we're not exactly talking about phrenology here. This is a branch of social psychology that is also used to establish cases of physical/psychological torture in your average banana republic. But the court bent over backwards to render the guy's opinion highly suspect and completely unusable." 961. 109109 - 4/6/2000 11:50:45 AM As to the voluntariness of the confession, here is what happened: 962. 109109 - 4/6/2000 11:51:13 AM "From the Arkansas State Supreme Court decision in Misskelley's appeal: The statements [in Jessie Misskelley’s confession] were the strongest evidence offered against the appellant at trial. In fact, they were virtually the only evidence, all other testimony and exhibits serving primarily as corroboration. So you see, you can't throw out Misskelley's confession. It's really the only thing propping this sucker up." 963. 109109 - 4/6/2000 11:51:44 AM As to your charges, look at them. 964. 109109 - 4/6/2000 11:52:17 AM On the stepfather Byers: 965. 109109 - 4/6/2000 11:52:38 AM "I'll be fair -- none of this convicts Byers outright. But it's at least as much evidence as what they had against Echols et al." 966. 109109 - 4/6/2000 11:52:59 AM On Byers passing the polygraph - 967. 109109 - 4/6/2000 11:53:08 AM "Yeah. That judge was Burnett, and that evidence was re-examined at Echols' latest appeal. Basically it turned into a battle of the expert witnesses, and Burnett sided with the State's boy. Quel surprise, as Cellar might say." 968. janjon - 4/6/2000 12:15:32 PM I am becoming convinced that someone somewhere pays 109109 by the word for his postings here. 969. AceofSpades - 4/6/2000 12:33:55 PM 970. PincherMartin - 4/6/2000 3:12:51 PM I saw both "Paradise Lost" documentaries. On the basis of these two shows, I'm inclined to believe the boys are innocent, but I have several problems with the way the documentaries present the evidence and the far too easy way they look to the stepfather as a scapegoat. Here is my list of what troubles me about the shows: 971. PincherMartin - 4/6/2000 3:13:05 PM 972. PincherMartin - 4/6/2000 3:13:21 PM test 973. 109109 - 4/6/2000 3:25:16 PM Pincher 974. PincherMartin - 4/6/2000 3:29:56 PM Niner -- 975. 109109 - 4/6/2000 3:52:46 PM PM 976. AceofSpades - 4/6/2000 3:54:27 PM 977. PincherMartin - 4/6/2000 4:03:18 PM Niner, I think you have demonstrated that Misskelley's so-called confession was legally obtained, but you haven't demonstrated it was indeed an actual confession as opposed to a kid telling people what they wanted to hear. The parts of testimony I saw and heard read in the court strongly suggest that several important parts of the testimony was incorrect and that the police --perhaps unknowingly -- led him to say it. The inconsistencies include: 978. PincherMartin - 4/6/2000 4:07:51 PM Ace, Niner -- 979. 109109 - 4/6/2000 4:14:41 PM PM 980. 109109 - 4/6/2000 4:15:08 PM Pm 981. 109109 - 4/6/2000 4:16:19 PM To Cart's credit, the one thing he as yet not accused the interrogating police of is threatening Jessie Misskelley with anal rape if only he would admit that he was involved in a ritualistic triple slaying. 982. PincherMartin - 4/6/2000 4:18:37 PM In short, I have nothing against using a confession from a retard, but the confession still has to be plausible to count as evidence, and this one is filled with errors. In the end, Echols and Baldwin were convicted on a confession that claimed they raped the boys when there is no evidence of rape. This so-called confession was buttressed with numerous crap about Echols and Baldwin including their reading habits on Wicca and the clothes they wore. While I don't trust HBO to acquit these boys in lieu of a jury, and I'm sure we're missing some important parts of the puzzle that the jurors had access to, some of the reasons you give here to show the three boys did it aren't convincing. 983. 109109 - 4/6/2000 4:24:10 PM PM 984. PincherMartin - 4/6/2000 4:31:46 PM Niner -- 985. AceofSpades - 4/6/2000 4:32:25 PM 986. PincherMartin - 4/6/2000 4:33:42 PM Niner -- 987. PincherMartin - 4/6/2000 4:34:29 PM Shoelaces are minor. Saying the boys were raped is not. 988. AceofSpades - 4/6/2000 4:36:52 PM 989. PincherMartin - 4/6/2000 4:42:38 PM The time of day was significant since Misskelley originally claimed they met up with the three boys around noon, and the boys could not have been killed earlier than 6:00 p.m. (they were last seen around six by one of the mothers). Even a retard can tell the difference between noon and evening without a watch. It was only after the police told him he couldn't have met with the boys that early (they were in school) that he changed it (he actually changed it twice before he settled on something that both he and the police could agree was accurate). 990. AceofSpades - 4/6/2000 4:44:57 PM 991. 109109 - 4/6/2000 4:47:10 PM PM 992. AceofSpades - 4/6/2000 4:48:44 PM 993. 109109 - 4/6/2000 4:49:56 PM PM 994. AceofSpades - 4/6/2000 4:51:27 PM 995. EricCartman - 4/7/2000 2:09:40 AM Niner Message # 959 et seq.: 996. EricCartman - 4/7/2000 2:14:44 AM Remember also that the cops had been turned on to Misskelley in the first place by none other than Vicky Hutcheson, she of the "esbat" (supposed satanic ritual Echols took her to in his car that didn't exist). Nothing Vicky Hutcheson told police ever checked out, and she later admitted she could have imagined the esbat in a drunken stupor. But at the time, it jibed with the "confession" Echols had supposedly made to William Jones, who recanted said statement hours before he was to testify. 997. EricCartman - 4/7/2000 2:18:11 AM Jessie says Jason castrated Christopher Byers with a single swing of a knife. 997. EricCartman - 4/7/2000 2:19:09 AM Jessie says Jason castrated Christopher Byers with a single swing of a knife. 998. EricCartman - 4/7/2000 2:19:46 AM Also, as an experiment, Stidham (Misskelley's lawyer) and a doctor got Misskelley to confess to a crime that never happened. That at least should suggest what sort of mentality the cops had on their hands that afternoon. Stupid, scared, and alone, he was pressured into saying quite a few things that never even happened on May 5. That much is an indisputable fact. 999. EricCartman - 4/7/2000 2:24:23 AM OK, let's look at your evidence comparisons: 1000. CalGal - 4/7/2000 2:26:04 AM snag? 1001. EricCartman - 4/7/2000 2:26:33 AM BYERS And since I've done my level best to link and explain the holes in the evidence for you, please flesh out one for me -- how come there was no blood at the scene? Why no semen, if there was rape? No DNA, no blood, no fluids. Just two hairs -- one identified as "caucasian", one as "negroid". Nothing else, despite the mutilation, despite the beatings. This is odd. This suggests that the crimes were committed elsewhere, and the bodies were dumped, or at least finished off. 1003. EricCartman - 4/7/2000 2:28:11 AM The police released information before the trial ever began, the whole thing was a circus (Baldwin was pegged in the head with a rock by a spectator entering the courthouse; nothing was done about it). These kids were not "innocent until proven guilty". They were clearly considered guilty by the entire community just as soon as their names hit the streets. 1004. EricCartman - 4/7/2000 2:40:54 AM Ace Message # 969: 1005. EricCartman - 4/7/2000 2:41:11 AM Message # 985: 1006. EricCartman - 4/7/2000 2:45:15 AM Cal: 1007. EricCartman - 4/7/2000 2:56:32 AM One more odd story about John Byers that is mentioned in PL2: he also apparently sicced a teenaged boy on another teenage boy, made them fight. When the assault victim looked to try to make a run for it, he said that Byers (who, recall, is 6'8" and almost 300 pounds) glared menacingly at him and motioned toward the gun he kept in his vehicle. 1008. AceofSpades - 4/7/2000 3:57:58 PM 1009. EricCartman - 4/7/2000 5:21:28 PM Ace: 1010. EricCartman - 4/7/2000 5:22:11 PM And you seem to be looking at this the wrong way, Ace. While I do think Echols et al are actually innocent, I am not attempting to convince you of that, nor do I suggest that all these points I talk about absolve them in and of themselves. But I think when looked at in context, they raise a great deal of doubt. That's all I'm getting at. 1011. EricCartman - 4/7/2000 5:22:28 PM Recall that when you & I argued over the Mumia case, in spite of the fact that I had questions over the fairness of his trial, I do think he killed Faulkner. Which, to my CP mind, obviates any notion of retrial or release. I'm not a lawyer (but I play one on TV), so I don't really care about questions of procedure. If the guy's guilty, fry him. 1012. MsIvoryTower - 4/11/2000 10:27:49 PM Well, 1013. JonesAtLaw - 4/11/2000 11:52:13 PM For Lady C- 1014. LadyChaos - 4/12/2000 5:02:40 PM Speaking of the INS, the 9th Circuit has finally allowed some hope for immigrants held in indefinite detention in the case of Ma v. Reno. 1015. jonesatlaw - 4/12/2000 5:13:51 PM LadyC- I was trying to link that very case. I was sure that you would have seen it, but thought it worth discussion. I wish that it was on broader grounds, but it's a start. 1016. LadyChaos - 4/13/2000 2:08:36 PM Jones, 1017. Dusty - 4/13/2000 2:30:20 PM An interesting subject. Aren't there people who have been held longer than their sentence, with no hope of ever being released? 1018. cigarlaw - 4/13/2000 3:45:38 PM Regarding false confessions: 1019. cigarlaw - 4/13/2000 3:47:37 PM After my kid got home he told his father that he lied to the police. His father called the police and had his son tell them the truth. (Big mistake) The police then arrested his son, and charged him with 11 counts of attempted murder. Fortunately, the judge threw out his confession as coerced. Unfortunately, he also threw out the confession of the actual ring leader, who, since he knew what actually happened and my client did not, could give some information that could be used against the other three participants. So they gave him immunity and, because my client had rolled over on him -- he thought --he said my client was involved. Fortunately, the lead investigator died of an heart attack midway through the case. I then is something I never did before. I called the new lead investigator and laid out my defense to him and told him he had the wrong person. I asked him to review the same reports I had reviewed, and keep an open mind and let him tell me whether he thought my client was involved. As a consequence he asked my client to take a polygraph which we did and he passed. Nonetheless, the DA still wanted to prosecute the kid because he confessed. The investigator went to bat for him and convinced the DA that if he did prosecute he would be a defense witness. They did not dismiss until the day the trial was to begin. 1020. cigarlaw - 4/13/2000 3:48:52 PM As I said, the police generally decide who did it and then seek to prove it. Through all means necessary. Coupled with the training they receive (which always involves being a false confession first) is a dangerous combination. 1021. cigarlaw - 4/13/2000 3:50:22 PM the willingness to violate Miranda, coupled with psychological techniques designed at first at first to always get a false confession initially, so the bad cop can get to "the truth" by pointing out the discrepancies between the initial false confession and what actually appears in the evidence, makes all confessions in my book questionable. 1022. cigarlaw - 4/13/2000 3:51:11 PM 1023. PelleNilsson - 4/13/2000 4:11:34 PM CigarLaw 1024. LadyChaos - 4/13/2000 8:52:02 PM Dusty, 1025. LadyChaos - 4/13/2000 8:54:06 PM Btw, MsIT, 1026. Dusty - 4/14/2000 8:24:14 AM 1027. PelleNilsson - 4/14/2000 8:26:15 AM Trained by the Mote. 1028. theDiva - 4/14/2000 8:52:53 AM Lady, how marvelous! Congratulations! 1029. MsIvoryTower - 4/14/2000 8:57:04 AM LadyC! 1030. LadyChaos - 4/14/2000 9:24:27 AM Thanks, all. Pelle is right - trained by the Mote. I took many of the written debate skills that I've honed on the Mote (and esp. the old Fray) into writing this paper. I can't imagine that it would have been anywhere near as decent a work had my skills not been exercised by many of you on this forum. 1031. PelleNilsson - 4/14/2000 9:42:42 AM LadyChaos 1032. bubbaette - 4/14/2000 10:11:54 AM Congrats, L.C.! 1033. jonesatlaw - 4/14/2000 12:45:51 PM Ciggie- great story, good work. I know that it is routine in my jurisidation to tape record confessions only they have been through at least one or two "dry runs." They've usually worked out the kinks and discrepancies in the defendant's story to conform to their evidence before they roll tape. Then you really have to hope that there is something in the evidence the cops haven't accounted for, and screw them on that. The problem of course, is once they have settled on their theory of the case, they stop looking for evidence, and/or otherwise screw up what other evidence is there. A portion of this is a human reaction of over-focusing or fixating on your pre-concieved notions of what's happened. But some is from their lack of faith in the systems they are supposed to be part of. 1034. LadyChaos - 4/16/2000 11:13:09 AM A bit of humbling reality - My mock trial went terrible, yesterday. Our "jurors" slept through at least half of it, didn't pay attention to any of our evidence, then with only the most perfunctory and empty-headed of deliberations, convicted our guy of manslaughter. 1035. cigarlaw - 4/16/2000 12:14:57 PM i used to tel my clients its a crap shoot, but its the only game in town and ifyou want in, you have to put some money on the table 1036. Absensia - 4/16/2000 1:10:53 PM Lady Chaos, 1037. LadyChaos - 4/17/2000 9:09:42 AM Here's more evidence that most Americans don't deserve to live in a free country. 1038. jonesatlaw - 4/19/2000 11:55:11 AM Is Miranda dead? What will replace it if the Supremes back away from Miranda? If they are not careful, they could open up a new set of problems for themselves. I suppose we would default back to the voluntariness standard by common law, and that would present some interesting opportunities for expert testimony. The law and order types don't realize what chances they are taking. Miranda has been used to allow confessions to be presumptively voluntary as well as to exclude them. 1039. MsIvoryTower - 4/20/2000 7:54:08 AM Fellow Legal Eagles 1040. LadyChaos - 4/20/2000 9:50:03 AM jones, 1041. LadyChaos - 4/20/2000 9:51:03 AM Cont'd-- 1042. MizPhys - 4/25/2000 4:22:44 PM I was impaneled today on a grand jury and chosen by the judge to be the foreperson. It's a four week, four days a week gig here in western New York. It should be quite an educational experience. 1043. bubbaette - 4/26/2000 9:36:45 AM Throw the book at em, Phys! Indict every ham sandwich that comes before ya and let god sort em out. 1044. bubbaette - 4/26/2000 9:38:09 AM I mean "madame foreperson". 1045. jonesatlaw - 4/26/2000 3:22:07 PM I for one will sleep more soundly knowing that at least one grand jury is headed by a Motie. Pay attention to what they DON'T tell you, its as important as what they tell you. Ask yourself why they don't tell you something you would expect them to know. Better yet, ask the DA. 1046. MizPhys - 5/1/2000 10:39:35 AM I know now why the term is 4 weeks. The learning curve is very steep. There IS a lot they don't tell you. They present only the bare bones of the evidence that they think will get an indictment. They don't present every witness so that defense has less grand jury testimony to look for discrepencies in. It is kind of frustrating to not know all of the facts, and I had to keep reminding the jury that we need only to determine if there is enough evidence presented to us to reasonably connect the defendent to the crime. Some of them were asking irrelevent questions just out of curiosity. I got pretty disgusted with a couple of the jurors for asking nosy questions of obviously distraught victims. I then reminded the jury that they should only ask for more information if they need to clarify something or they have a relevant question. I also asked the DA to tell us again what types of questions we should and should not be asking. After that, things were better. 1047. rubberducky7 - 5/1/2000 2:54:29 PM This is somewhat related to legal issues. The quiz surprised me a bit as to what could be asked and what couldn't. 1048. bubbaette - 5/1/2000 3:12:03 PM interesting. I got a 15. 1049. Adrianne - 5/2/2000 8:55:18 AM 1050. cigarlaw - 5/2/2000 11:50:23 AM 30 1051. jonesatlaw - 5/4/2000 12:10:56 AM 30, but I missed half the legal questions. 1052. jonesatlaw - 5/5/2000 3:19:21 PM What no one wants to jump on my embarassing admission? An outbreak of kindness on the mote, OH the humanity! 1053. wonkers2 - 5/6/2000 10:34:04 PM Some of the answers listed as correct are debatable, in my opinion, such as whether discrimination is legal. The question implies one definition but the answer uses a broader definition. I would have gotten 30 but for that trick question. Other "correct" answers are a matter of questionable opinion such as listing volunteer work as employment and the "correct" answer that the quality most employers value most highly is flexibility and then leadership ability. This might be true of some non-technical jobs. But in my opinion, experience and honesty and reliability rate higher than either of the so-called correct answers. Other answers might be how much the applicant has in common with the person doing the hiring and whether the hirer gets the feeling the applicant is smarter than he or she and is therefore likely to present a challenge. The quiz was a pretty Mickey Mouse effort in my opinion. 1054. cigarlaw - 5/7/2000 12:08:51 PM i hired lots of people ver a 30 year4 p4e4od/ my rule was if she could do the job and shoow up every day and was good looking, she got the job. 1055. PelleNilsson - 5/7/2000 1:23:22 PM CigarLaw 1056. wonkers2 - 5/7/2000 10:09:45 PM Speaking of Miranda and the great American judicial system, a cartoon in this week's New Yorker shows a smiling man with a briefcase striding into an empty prison cell with the following caption: "Hi! I've been appointed by the court to represent you---whoa!...Don't tell me you've already been executed!" 1057. Vanja - 5/10/2000 1:29:07 PM I scored a +5 on rubberducky7's quiz also. 1058. DaveM - 5/12/2000 12:53:46 PM I just had an absolutely brutal exam in my Administrative Law class. Three questions, three hours, closed book. Question two was basically: 1059. bubbaette - 5/12/2000 1:00:15 PM What's your answer? 1060. bubbaette - 5/12/2000 1:02:57 PM BTW, I wish that law schools wouldn't concentrate so much on environmental issues in administative law. In our state, it seems that common conflicts in the environmental arena are driving the bus for all other state agencies because the legislature wants to rewrite the APA while forgetting that it applies to most other state agencies and programs as well. 1061. jonesatlaw - 5/12/2000 1:11:06 PM Is this desirable? 1062. jonesatlaw - 5/12/2000 1:16:35 PM In accord with the season, how about "final questions from hell?" 1063. DaveM - 5/12/2000 1:45:48 PM Jones - 1064. DaveM - 5/12/2000 1:46:37 PM The language wasn't as clearly derived from Law and Economics as in my rehashing of it above, but I am pretty certain that that is where she wanted us to start. I argued that the willingness to pay standard was not apolitical in environmental decisions, that CBA was hopelessly indeterminate when dealing with latent, disperse maladies, and that this approach suffered from the same non-delegation problem as the pre-American Trucking regime. 1065. DaveM - 5/12/2000 1:53:08 PM OK, so I have ti chim in on Jones' challenge: 1066. DaveM - 5/12/2000 1:53:34 PM "to chime in" 1067. Dantheman - 5/12/2000 1:57:07 PM DaveM, 1068. bubbaette - 5/12/2000 2:05:44 PM Dave 1069. LadyChaos - 5/12/2000 8:37:35 PM DaveM, 1070. LadyChaos - 5/12/2000 9:42:53 PM 1071. uzmakk - 5/16/2000 10:46:19 AM I have come up with a design for a unique Christmas ornament. How do I protect my intellectual property? 1072. jonesatlaw - 5/16/2000 5:05:00 PM Uzmak- ask an intellectual property attorney? Seriously, I think works of art are subject to copyright, which is relatively easy these days, while if there is something mechanically unique about your ornament, it would fall under patent law. Neither of which I know much about. Help, is there a more qualified counsel in the Mote? 1073. TabouliJones - 5/16/2000 6:29:51 PM Uzmaak, 1074. TabouliJones - 5/16/2000 6:31:19 PM 1075. TabouliJones - 5/16/2000 6:34:37 PM 1076. uzmakk - 5/17/2000 8:32:36 AM To: Jones & Jones 1077. uzmakk - 5/19/2000 6:13:41 AM re: SLAP suits 1078. uzmakk - 5/19/2000 6:46:40 AM I actually did a bit of web research myself and found that it is "governments with taxpayer money and corporations with deep pockets." 1079. uzmakk - 5/21/2000 11:52:07 AM What do you think of this as the basis for my advertising campaign?? 1080. LadyChaos - 5/21/2000 1:52:08 PM uzmakk, 1081. LadyChaos - 5/21/2000 1:53:12 PM 1082. DaveM - 5/22/2000 3:56:24 PM An interesting look at Justice Thomas' free speech jurisprudence. 1083. jonesatlaw - 5/25/2000 10:46:15 AM My goodness, I agree with Clarence Thomas on something. Time to think carefully about my position. 1084. jonesatlaw - 5/30/2000 2:26:22 PM Creighton University Law School has announced that Justice Clarence Thomas will be teaching a constitutional law seminar at Creighton. Creighton has fallen in the rankings of law schools in the past decade or so, and is now a "fourth tier" institution according to US News and World Report. Will this cement them in the basement, or does a glimmer of hope go along with Justice Thomas? 1085. LadyChaos - 6/5/2000 1:43:06 PM 1086. cigarlaw - 6/11/2000 12:53:05 PM Miranda ignored -- will it be erased? 1087. cigarlaw - 6/11/2000 12:55:25 PM And police who violate Miranda and coerce confessions may be held personally liable under a January decision by the Ninth Circuit U.S. Court of Appeals. Ruling in a civil suit filed by a UC-Berkeley professor, the court condemned questioning outside Miranda, saying, "a reasonable police officer should have known this conduct was improper." 1088. cigarlaw - 6/11/2000 12:56:27 PM And police who violate Miranda and coerce confessions may be held personally liable under a January decision by the Ninth Circuit U.S. Court of Appeals. Ruling in a civil suit filed by a UC-Berkeley professor, the court condemned questioning outside Miranda, saying, "a reasonable police officer should have known this conduct was improper." 1089. cigarlaw - 6/11/2000 12:57:38 PM San Francisco District Attorney Terence Hallinan also opposes questioning outside Miranda. 1090. cigarlaw - 6/11/2000 12:58:37 PM The court based its decision partly on its review of police training manuals. One manual said the "principal psychological factor contributing to a successful interrogation is ..... being alone with the suspect under interrogation." 1091. cigarlaw - 6/11/2000 1:01:18 PM The Miranda ruling deterred coercion in the interrogation room, but it inspired other methods based on deception. 1092. cigarlaw - 6/11/2000 1:02:36 PM The modern equivalent to the rubber hose is the indirect threat ....." they said. "Psychological coercion," they added, "is more difficult to detect because it leaves no marks on the body." 1093. cigarlaw - 6/11/2000 1:03:40 PM Yet police around California did just that. 1094. cigarlaw - 6/11/2000 1:04:39 PM "Utter bad faith' 1095. cigarlaw - 6/11/2000 1:05:39 PM Nathan Barankin, a spokesman for the department, said the book did not tell police what to do. "We just try to give them an accurate description of what the law permits," he said. 1096. cigarlaw - 6/11/2000 1:07:16 PM "I do it quite often' 1098. cigarlaw - 6/11/2000 1:08:33 PM State Attorney General Bill Lockyer's office appealed the decision to the U.S. Supreme Court, which on Feb. 28 declined to review it. 1099. cigarlaw - 6/11/2000 1:10:10 PM State Attorney General Bill Lockyer's office appealed the decision to the U.S. Supreme Court, which on Feb. 28 declined to review it. 1100. cigarlaw - 6/11/2000 1:14:15 PM McNally: "Right ..... ." 1101. cigarlaw - 6/11/2000 1:16:53 PM The suit claims the police departments had an unlawful policy of "deliberately disregarding and evading the requirements of Miranda whenever they choose." 1102. cigarlaw - 6/11/2000 1:17:38 PM And a law firm that counsels the California Peace Officers' Association and other state police groups has warned officers of potential civil liability. "Our best advice to California law enforcement agencies is that ..... interrogations "outside' of Miranda are to cease immediately upon invocation by the suspect," said Mayer & Coble of Long Beach. 1103. jexster - 6/12/2000 7:09:32 PM Most lawyers I know, myself included, have at one time or other wished they were judges, a temptation especially strong, I suspect, when your judge makes some stupid ass ruling against you (the stupid ass rulings in your favor don't seem to have the same effect) 1104. cigarlaw - 6/16/2000 9:00:38 PM CARRY CONCEALED KNITTING NEEDLES, PENS, PENCILS, OR KITCHEN KNIFE, AND GO TO JAIL. SORRY WE CANNOT HELP YOU SAY CALIFORNIA SUPREMES. 1105. cigarlaw - 6/16/2000 9:01:43 PM So, you now know that a pen, pencil, needle, or kitchen knife can be used to stab someone. So next time you go go outside with a pen or pencil concealed, when you buy knitting needles or kitchen knives and take them out in a bag turn yourself into the nearest policeman. You are guilty. But have no fear, you will have the last laugh when you agree to turn state's evidence on your grandmother who carries her knitting needles concealed in her knitting bag for a deal. 1106. cigarlaw - 6/18/2000 1:02:05 PM 'picked' = 'bad' 1107. Cellar Door - 6/23/2000 8:19:48 PM Pinocchio Bore: Guilty as hell 1108. DaveM - 6/25/2000 8:49:29 PM A takings clause analysis of free trade? An interesting paragraph by in Robert Hale's Freedom through Law (1952): 1109. TabouliJones - 6/25/2000 8:59:38 PM I am presently doing some reading on zoning bylaws and the role of municipal governments in Canada. In Canada, municipalities have no sovereign power of their own; whatever authority, or legal power, they might have is necessarily a matter of express delegation from the provincial governments. I had assumed that a similar situation existed in the United States. However, I have recently come across a couple of vague newspaper references suggesting that municipalities in the United States are not entirely subordinate to state governments --specifically, that they are endowed with a degree of sovereignty that enables them to legislate with regard to certain issues without having to first have the power to do so delegated to them by the state government. Can anyone enlighten me on the source of municipal authority in the United States? Also, does anyone have any book recommendations on the topics of municipal authority and/or zoning regulations? 1110. DaveM - 6/25/2000 9:18:37 PM TJ - 1111. TabouliJones - 6/25/2000 9:24:44 PM 1112. jonesatlaw - 6/25/2000 9:25:48 PM Cereal Cousin- Some cities in the US have "home rule" charters which grant them a degree of independence and a blanket power to do that which is not specifically authorized by statute. Long ago and far away in another legal galaxy, the West's nutshell on zonning was a pretty good intro to the field. 1113. TabouliJones - 6/25/2000 9:26:00 PM 1114. TabouliJones - 6/25/2000 9:30:37 PM 1115. DaveM - 6/25/2000 9:40:59 PM TJ - 1116. DaveM - 6/25/2000 9:46:03 PM The bolding was off in that quote. It should have started one line sooner. 1117. TabouliJones - 6/25/2000 9:48:45 PM 1118. LadyChaos - 6/26/2000 12:05:20 PM 1119. jexster - 7/11/2000 6:05:26 PM We all get tired sometimes! 1120. jexster - 7/11/2000 6:05:36 PM 1121. AytchMan - 7/11/2000 8:04:49 PM jexster-- 1122. DaveM - 7/11/2000 8:08:48 PM The last one is great. 1123. Karl Northman - 7/11/2000 11:11:30 PM A friend of mine, a professor at Hamline Law, is a criminal defense specialist, and does pro bono stuff just so he's not merely an academic. A few years ago he had a case that he said made ten years of pro bono worth it - the cops went to arrest a Cuban (Marielito) who was known to be a drug dealer. The cops go upstairs, arrest the guy and other people and find lots of drugs. Some cop takes the cuban (call him CA) downstairs and sticks him in the back of a squad car. Problem is, CA has a brother, twin, CB, who is straight, and is walking home from his job. As he goes up the stairs, a cop who got there late sees him, says "who are you" and is told that he is CA. So the cop arrests him, and puts him in, by chance, the same squad car, not knowing that they've already arrested CA. CB and CA are already dressed the same (their mother insists, because they're twins, and, at least according to one story, CB is using CA's driver's license because CB's is revoked and he's the one that needs to drive to a job. Once in the car, they switch sides and anything else they can. 1124. CalGal - 7/11/2000 11:24:50 PM Ha. Lucky. 1125. ChuckSezdotcom - 7/12/2000 5:25:36 PM 1126. CalGal - 7/23/2000 9:22:12 AM Ruling Threatens Sentencing. 1127. Uzmakk - 7/28/2000 10:12:53 AM Was it under Judge Sirica's court that the decision was made to classify garbage as a commodity subject to the rules of interstate commerce? 1128. LadyChaos - 7/29/2000 12:30:29 PM The emerging facts in the Air France Concorde investigation seem to point to a negligent design with respect to the location of the tires. 1129. Uzmakk - 7/31/2000 6:58:36 AM Where are all those lawyers who supposedly inhabit the Mote? 1130. Jenerator - 8/1/2000 11:19:57 AM Take the Internet Addiction Quiz in the Internet Thread!! 1131. marshame - 8/1/2000 11:54:29 AM 1132. DaveM - 8/3/2000 6:53:13 AM A legal realist history of Intellectual Property law: 1133. DaveM - 8/3/2000 7:32:39 AM Another interesting site, The Stanley Fish Resource Center, a collection of the enigmatic Mr. Fish's on-line work. 1134. rubberducky - 8/11/2000 3:22:02 PM 1135. MsIvoryTower - 8/14/2000 1:02:09 PM Hello fellow legal scouts.... 1136. PsychProf - 8/14/2000 1:03:40 PM I miss you. 1137. bubbaette - 8/16/2000 8:57:06 AM Have you taken Admin law yet, MsIT. 1138. MsIvoryTower - 8/16/2000 9:04:41 AM No, Bubbaette, 1139. bubbaette - 8/16/2000 10:11:03 AM Too bad. It's a very lucrative area of practice and an area in which government exercises a tremendous amount of power that's largely unseen. In Richmond, it's an area that's understaffed as well. 1140. MsIvoryTower - 8/17/2000 11:28:12 AM I saw some comments over in current events regarding Rodney King and his fight with his ex-attorneys over their share of his award. Contingency fees seem to be a very sore spot with many in this country, and yet, they really couldn't afford to pay for the standard fees required to prep for one of these risky and costly civil rights or personal injury trials. 1141. MsIvoryTower - 8/17/2000 11:37:03 AM Bubbaette 1142. Cellar Door - 8/24/2000 12:31:47 AM GAYS RULE! 1143. MsIvoryTower - 9/6/2000 10:18:38 PM I've really got to do something with this thread. 1144. TabouliJones - 9/7/2000 8:50:23 AM 1145. PelleNilsson - 9/7/2000 12:00:31 PM Both these affairs have been debated exhaustively in Current Events. 1146. CalGal - 9/7/2000 12:19:51 PM Well, we really haven't gone into MP3 since The Decision. 1147. PelleNilsson - 9/7/2000 12:32:38 PM Right. On the other hand it seems to me (who knows but little of the legal aspects) to be less interesting than the other two. 1148. DaveM - 9/7/2000 12:52:43 PM My first week of classes is over. 1149. Jonesatlaw - 9/7/2000 2:09:17 PM Dave- a useful Federalist style tome on your topic is Takings by Richard Epstein. My property professor was thrilled with it. I thought it was a steaming pile of horseshit, personally, but the conservative types love it. 1150. MsIvoryTower - 9/7/2000 6:02:23 PM Tabouli 1151. MsIvoryTower - 9/7/2000 6:31:59 PM If people are interested in the MP3 decision here's an article about the court decision in BusinessWeek that's hot off the press. 1152. CalGal - 9/7/2000 6:54:11 PM Ms, 1153. MsIvoryTower - 9/7/2000 10:43:18 PM Here are a couple of articles on Napster from Business Week during the past few months. 1154. MsIvoryTower - 9/7/2000 10:44:07 PM Hmm, not software, music. They store no music files on their site.... 1155. MsIvoryTower - 9/7/2000 10:52:07 PM Calgal 1156. TabouliJones - 9/8/2000 11:00:29 AM A while back, I read some stuff by the economist Yoram Barzal, who argues that the concept of theft is alien to the economic conception of property rights. That is, he believes that the economist should regard theft as a value neutral concept that is not *necessarily* a bad thing from an economic point of view. The real issue wrt theft is that of productive use. Specifically, he argues that an owner who fails to put their property to its most productive use, should relinquish that property to the public domain, where it is more likely to be made productive. I am sketchy on the details, but his work is interesting,and could be used to open up the MP3 debate. (Note: his perspective is that of an economist, and not that of a left-leaning crank. I will reread Barzal and do some reading on the MP3/Napster cases in order to write something coherent for Monday. Right now I am nursing an ugly case of the flu, so I won't have anything productive to write until Monday. 1157. rubberducky - 9/10/2000 3:25:52 PM some good news in Slate's Papers: 1158. Raskolnikov - 9/14/2000 4:33:50 PM TJ: interesting post. A few months ago, I got to wondering whether a mugging was really just a form of transfer payment, with no winners and losers. However, I quickly realized (having been a mugging victim) that there is a huge cost in terms of psychological damage from the mugging (I would have been willing to pay 100x what the mugger received in order to have avoided the experience of having a gun pointed at me), and the runaway effects of people trying to protect themselves from theft in a world which recognizes no property rights. 1159. Toenails - 9/16/2000 8:16:29 AM "The number of people who think that they have the right to steal people's work just annoys and astounds me." 1160. labwabbit - 9/20/2000 3:22:14 PM Oh ya...almost forgot the daily ressurection. 1161. labwabbit - 9/20/2000 3:23:10 PM Well THAT was a pretty dusty resurrection. 1162. DaveM - 9/25/2000 9:59:43 AM I hate to see this thread lagging at the bottom. 1163. MsIvoryTower - 9/25/2000 5:43:14 PM Dave 1164. DaveM - 9/25/2000 5:49:38 PM Hey MsIT - 1165. MsIvoryTower - 9/25/2000 5:55:09 PM Hey Dave 1166. DaveM - 9/25/2000 6:04:52 PM MsIT - 1167. MsIvoryTower - 9/25/2000 6:08:10 PM Dave 1168. DaveM - 9/25/2000 6:11:04 PM What do you mean by "development issues?" Are you just looking at caselaw? 1169. MsIvoryTower - 9/25/2000 6:15:05 PM Yes. Case law. Do you suggest that reading advocacy papers are much better? Really, one has to understand the underlying caselaw before one can critically read advocacy. 1170. MsIvoryTower - 9/25/2000 6:23:08 PM Hahaha, 1171. DaveM - 9/25/2000 6:25:18 PM I think that it is important to look at both. We haven't gotten to the First Amendment yet in my Con Law II class, but I know a bit about it. 1172. DaveM - 9/25/2000 6:28:32 PM MsIT - 1173. MsIvoryTower - 9/25/2000 6:30:30 PM Dave 1174. DaveM - 9/25/2000 6:40:40 PM My section has 120 people in it. My class has 590. It is tough to actually work things out - hash through the philosophical minutiae in such large classes. That is why I enjoy my seminars so much. 1175. MsIvoryTower - 9/25/2000 6:55:41 PM Dave, 1176. DaveM - 9/25/2000 7:15:45 PM I think of advocacy as outside mainstream thinking, and as such, a minority voice at best. Were it mainstream, it'd be in the case law. 1177. DaveM - 9/25/2000 7:15:59 PM What is interesting is that the liberal perspective on government intrusion into first amendment rights, particularly free speech rights, has been largely incorporated into modern doctrine. Yet liberals are strong proponents of speech restrictions if it is motivated by "hate". 1178. MsIvoryTower - 9/25/2000 7:26:03 PM I think that speech is not impenetrable to government regulation (property rights are probably the most severe form of govt. regulation), but I think the belief that only the state can pose a risk to the enjoyment of rights is an unpersuasive ideological position that usually reflects the privilege of the speaker. 1179. MsIvoryTower - 9/25/2000 7:31:32 PM This strikes me as a bad way to think about things. Our current understanding of much of the law would be vastly out of the mainstream at different points in US history. 1180. DaveM - 9/25/2000 7:50:49 PM Owen Fiss's The Irony of Free Speech is a good place to start on the property rights restrict speech concept. Are you familiar with Robert Hale's critique of contract from the realist era? He wrote an article called "Coercion and Duress in a supposedly non-coervice agreement" or something like that. The idea is that state delegation of property rights is equivalent to the creation of a system of "private governments." It is a fascinating piece, which I would like to talk about at some point, though I don't have time right now. 1181. DaveM - 9/25/2000 7:51:01 PM Or if you argue it is, how do you determine what side government should come down on? 1182. DaveM - 9/25/2000 8:02:55 PM Most particularly, what is a minority opinion at one point, slowly becomes the majority viewpoint as time goes on. Are these minority viewpoints initially influenced by advocacy? Of course, but they remain outside the mainstream until a large enough consensus develops to move the law forward in one direction or another. 1183. DaveM - 9/25/2000 8:03:45 PM MsIT - it's been a pleasure chatting. I have to get some work done, though. I'll check back tomorrow. 1184. MsIvoryTower - 9/25/2000 10:36:24 PM Dave, 1185. MsIvoryTower - 9/25/2000 10:50:17 PM What if you just want to change whose "rights" are being trampled on? 1186. MsIvoryTower - 9/25/2000 10:52:50 PM I don't mean anything by "advocacy." I think that it is pretty clear that everything is advocacy. 1187. MsIvoryTower - 9/25/2000 10:57:14 PM Well, I should qualify that last comment. One could argue that all views are advocacy, and simply reflect the ideological self-interests of a given member of a given group or class. This then begs the question of grounded principles because everything is relative at that point. There is no absolute principles, at all. 1188. MsIvoryTower - 9/25/2000 10:58:43 PM There are no absolute principles, at all. 1189. MsIvoryTower - 9/25/2000 11:16:48 PM There is no such thing as a bandwagon hopper in the law - either you play a part in an emerging consensus, or you oppose it. Ignoring minority advocates is pretty much opposing them. 1190. MsIvoryTower - 9/25/2000 11:30:58 PM Dave 1191. MsIvoryTower - 9/26/2000 8:14:25 PM Dave 1192. DaveM - 9/26/2000 8:42:05 PM MsIt - 1193. DaveM - 9/26/2000 8:43:46 PM Alternatively, it would be easy to identify a series of values identifying "hate speech," and declare that they are uniquely harmful (much like the government's efforts to regulate speech are more harmful than the efforts of private boycotters). Regulation would then entail the logical application of rules generated from those values to everyday speech. It might not be good, but it is certainly no less "logical" than the current regime. That, actually, gets to my greater point - examination of the ideology underlying things like the First Amendment is really valuable. 1194. DaveM - 9/26/2000 8:44:09 PM The law seems full of arguments trying one theory or another on for size depending on the side of the controversy. 1195. DaveM - 9/26/2000 8:46:59 PM I haven't had much time to develop my Free Trade as Taking position. The judge that is teaching the class has been REALLY unreceptive since he heard it, though, insisting that there is no property interest in labor. My response: "of course not - people like you haven't recognized one yet" probably put me on his bad side. 1196. DaveM - 9/26/2000 8:47:18 PM I would appreciate hearing your thoughts on the matter, though. 1197. MsIvoryTower - 9/26/2000 10:02:27 PM We have laws which only operate to restrict the government's ability to act, why can't the first amendment operate only to protect speech criticizing the government? 1198. MsIvoryTower - 9/26/2000 10:03:05 PM 1199. msgreer - 9/27/2000 7:17:14 AM MsIvory I have a legal question for you. Here is the scene. It takes place in Florida. A woman is held up in her parked car by a man who puts a gun in her face. He demands money. She obliges immediately to the tune of $650. and feels lucky to be alive. She calls the police, ends up going down to the Police Station and is able to pick the SOB from pictures. She does a potato head computer drawing of the young man. The police find the bastard. He went to jail immmediately not only for this but he when the police found him he was breaking probation on another issue. Drugs. The guy is a crack head. Now in the State of Florida it is 10-20-life. The woman cooperates with the I thank you in advance for any input you can give me. 1200. msgreer - 9/27/2000 7:21:32 AM cont. If you need anyother facts let me know. Many thanks. BTW, when this nice guy was arraigned the judge set NO bail. The judge said "You have crossed the line, Mr. ******". The guy has been in jail since late May. BTW, the DA told the woman not to fear for her life. She said not to worry, this guy doesn't have any friends. The DA is trying to reassure the woman her life is not at risk. 1201. msgreer - 9/27/2000 7:25:36 AM HE PLEADED NOT GUILTY. Obviously a Freudian slip. 1202. msgreer - 9/27/2000 11:44:28 AM Is there another attorney around who could answer my questions to MsIvory? MsIvory, the beauty, must be hitting the books. 1203. MsIvoryTower - 9/27/2000 11:31:23 PM MsGreer 1204. MsIvoryTower - 9/27/2000 11:41:22 PM MsGreer 1205. msgreer - 9/28/2000 4:03:33 PM MsIvory Yes you answered my questions. I still wonder if jugdes should have SOME say when it comes to sentencing. It won't happen in Florida that's for sure. BTW, the women I spoke of is me. It happen two days before I was to go to Boston to celebrate my daughter's birthday. When I last met with the DA she told me we were talking life here. I froze. JJ ought to be happy to know my first thoughts went to my liberal thinking. That lasted 5 seconds and I asked the DA can you get him? Can you put this person away so he can never do this to another person ever again. She put her arm around me and said yes. While I have been away the date got set. I will check in with her next week. My god, what happen to my ideals of let's get this person some help. He is a crackhead. Can't we try to help him? Then I thought of my daughter. What would happen to her if this crazed man killed me? That suddenly ended my usual liberal approach to things. Does this make sense to you? 1206. ranheim - 9/28/2000 4:55:20 PM Msgreer 1207. JJBiener - 9/28/2000 5:00:00 PM MsGreer - I am not happy about anything regarding your situation. I am not happy that you were in danger. I am not happy that this person may have to spend the rest of his life in prison. I am not happy that we as a society have to figure out some way to deal with this situation. I am not happy that this has taken your interest in this subject from the abstract to the concrete. 1208. ranheim - 9/28/2000 5:00:49 PM #1206 cont. 1209. msgreer - 9/28/2000 5:13:46 PM JJ I am not happy this young man may have to spend the rest of his life in jail. I believe substance abuse counselors know alot about addiction. What is so disturbing is our society does not want to I am not dancing around with this, JJ. I am torn with what I want to see happen. I am allowed to give the judge a written statement on issues like how did this affect me, any long term effects, and what do I believe the court should do when it comes to sentencing. I have alot of thinking to do before I turn this into the court. I appreciate what you posted. 1210. msgreer - 9/28/2000 5:16:38 PM ranheim You seem to understand how I am feeling. Thank you for your comments. 1211. JJBiener - 9/28/2000 5:38:23 PM MsGreer - I know that addiction is a disease and the tendency toward addiction is probably genetic. However, this doesn't absolve a person of responsibility for their actions. 1212. msgreer - 9/28/2000 7:11:37 PM JJ I find myself feeling sorry for this man too. This is truly a rough one for me. Part of me wants to write the court about addiction. What I do is I did not think about my dying. I thought of my daughter. I thought of only her. Of course I was so scared I couldn't say a darn thing and I almost lost control of my bladder. I wasn't going to confirm the story was about me but I know when I get home tomorrow it will time for me to fill out those papers. What to do, JJ? 1213. arkymalarky - 9/28/2000 9:10:19 PM I posted a long while back about Bob's nephew being stabbed in the throat by a man, a perfect stranger, who'd asked for a ride as he was at a drive-thru window of a hamburger place. The nephew is lucky to be alive today and the man who stabbed him with an old steak knife was released before the trial because the judge said things were going too slowly and it wasn't fair to let the guy sit in jail a few months. I don't remember anything specific about the trial process but that he was convicted and served little to no time, Bob's nephew was sued by the company whose fence he purposely ran into to try to wreck his truck and save his life (they lost, but still...), and the idiot who did the act tried to blame it on the nephew, unsuccessfully of course. 1214. CalGal - 9/28/2000 9:20:03 PM Spooky, isn't it? I'm glad Bob's nephew is okay, though. 1215. arkymalarky - 9/28/2000 9:36:34 PM Thanks. He's living elsewhere now (not that where he lived was bad, it was just a fluke of "luck") and doing well. 1216. CalGal - 9/28/2000 9:57:01 PM I know what you mean. It is as if intent counts for nothing in some areas, only results. Granted we "grade" intent in murder and probably in assault, but we don't cross boundaries--if you try to murder someone but fail, it's only a form of assault or attempted murder. But I see no reason why attempted murder should be let off more lightly than murder. 1217. jonesatlaw - 9/28/2000 10:28:35 PM Oh my- Msgreer, I'm not licensed in Florida, your mileage may vary, etc etc. But I'll do a quick search of Florida law to see if I can find a more definite answer to your question. 1218. jonesatlaw - 9/28/2000 10:57:58 PM MsGreer- It seems that Florida is a sentencing guidelines state. In such schemes there is a limit to the discretion that the court has in sentencing. It also appears that the DA must ask the court to enhance the sentence for "violent career criminal" "habitual violent felony offenders" and "habitual felony offenders." 1219. MsIvoryTower - 9/28/2000 11:37:07 PM Jones! 1220. msgreer - 9/29/2000 8:08:50 AM jonesatlaw Thank you thank you. I will be talking to the DA next week BEFORE I fill my papers out. You gave me alot to think about. You don't have to worry about me complaining. I do that as a medical advocate everyday. It seems to me she called his a habitual felong something. At his arraignment the judge said "You have crossed the line this time Mr.******" meaning he used a firearm. Florida does not look the other way when a gun is used in a crime. I would like to see this guy get jail time (he has been in jail since early June because the judge denied bail) I do have something to say about sentencing and rehabilitation. Thanks to all who helped talk me through this. The DA seems excited about the thought of winning her case and seeing this guy going away for life. An interesting side; Today is my New Year. In 2 weeks our highest Holy Days begin. This is time for all Jews to think about who we are and how are we conducting our lives. This incident has come at a time of great reflection for me. I will post again when I get more information. Again, thank you all. Thank you very much. 1221. msgreer - 9/29/2000 8:10:44 AM felong=felony 1222. msgreer - 9/29/2000 8:24:26 AM MsIvory How could you know it was me? I refuse to call you "Densa". 1223. jonesatlaw - 9/29/2000 12:44:20 PM Msgreer- Happy New Year! I hope that the new year is healthy, happy and prosperous for you and all you love. 1224. msgreer - 9/29/2000 2:05:13 PM jonesatlaw I don't remember anyone saying such nice things to me. Thank you very much. Yes, I do see this man as a person, an individual who has made big mistakes in his life. I could count alot of folks who would like to take back things they said or did. I don't think I need a defense attorney...atleast not from this town. They all stick together..a private club of sorts. However I hope you will continue to let me post here. Yes I made it through the incident. Kudos to you, jonesatlaw. If I needed an attorney I would come looking for you. 1225. msgreer - 9/29/2000 4:30:39 PM JJ I want to thank you too. I always felt this guy was a lost soul. More importantly I feel he is a human being as you pointed out so well in your posts. We are sitting in Miami waiting for our next flight. The time here has given me alot of time to think about the true issues and my values. BTW, expect a call over the weekend. I have been up to my eyeballs with my daughter and her needs. 1226. JJBiener - 9/29/2000 4:59:48 PM MsGreer - I will be around over the weekend. I'll remember to keep my cell phone with me. Talk to you soon. 1227. PelleNilsson - 10/2/2000 12:32:23 PM Is a traditional alliance dead? Economist article, 1228. msgreer - 10/3/2000 11:27:09 AM My case goes to court the week of December 4th or December 11th. I guess it is time for me to collect my thoughts and fill out the victim's papers to the court 1229. msgreer - 10/3/2000 11:27:50 AM Gezzz. a jury of 12. 1230. DaveM - 10/4/2000 3:40:25 AM Sounds like you have quite a situation on your hands, Msgreer. Best of luck to you. 1231. DaveM - 10/4/2000 3:52:05 AM I had to read Barry Cushman's Rethinking the New Deal Court last week. Cushman argues that Justice Roberts' "switch in time" was not caused by the court packing plan, but was in fact the natural progression of Court doctrine. It is interesting because of its story of constitutional revolution is almost diametrically opposite of Ackerman's in Transformation, mentioned above. 1232. DaveM - 10/4/2000 4:03:54 AM re: Message # 1191 1233. msgreer - 10/4/2000 2:22:08 PM 800-973-2211 Curious? Go to Health Thread. 1234. MsIvoryTower - 10/4/2000 8:41:08 PM DaveM 1235. MsIvoryTower - 10/4/2000 8:48:30 PM Why should I care about this when I'm trying to decide how the court is likely to view any hate speech legislation? 1236. MsIvoryTower - 10/4/2000 9:01:34 PM Finally, 1237. LohrM - 10/6/2000 9:21:55 AM I'm bothered by the statement that one should interpret case law without commentary. I was trained in a civil law tradition, and the statement just grates... I see case law as really raw material to be shaped by statute and commentary by doctrinal scholars. 1238. Uzmakk - 10/6/2000 4:09:32 PM I am not in on a property dispute between my neigbors.....yet. They have been to court in front of a magistrate and I was in the courtroom. Heard the whole deal. I won't bore you with the incredibly petty details, but I do want to ask you if it is proper to communicate directly with the magistrate by letter concerning goings on here on this little spot of God's green earth. I imagine one is supposed to leave the judge alone no matter what one has seen. Of the two warring parties, one has a lawyer through whom all future communication is to take place and one does not. I sympathize with the party without the lawyer. The party"s are supposed to do all of their communication through the one lawyer. The evil lawyer is representing two insane old dotterers who are one beer short of a six pack. I don't see that the evil lawyer side has a case. They immediately withdrew the "harrassment" charges at the last hearing because they never would have held up. They have been pissing on eachother for a while now and I am beginning to get splattered. 1239. Uzmakk - 10/6/2000 4:15:05 PM party"s=parties 1240. MsIvoryTower - 10/6/2000 5:34:43 PM Uzzmak 1241. Uzmakk - 10/10/2000 6:03:30 PM Thanks for the consideration, MsIT. Just going to play this thing for the fun of it by writing a letter to the lawyer representing the evil trolls. I have gained 10 running feet of prime property that I did not think was mine. 1242. Uzmakk - 10/10/2000 6:05:46 PM just read those two sentences--complete non sequitorians-- anyhow, thanks. 1243. PelleNilsson - 10/15/2000 1:14:39 PM This thread has been put on RIP status at the request of its host. Electrial Slide, the former RosettaStone, has offered to take over, see Message # 7031 in thread 25. Opinions welcome in Suggestions. The Mote | Mote Archive
Irv:
There is a huge, huge difference between punishment and discipline. Positive reinforcement for positive behavior - negative consequences for negative behavior. That, and clear boundaries, is what teaches a kid discipline.
cop pulling over a drunk driver and citing them for DUI: student being observed getting high by school authorities and being cut from the team as a result.
I don't have a problem with that. No one's privacy is violated; no one is discriminated against simply because they stand up for their constitutional rights; the punishment is correctly applied. What I do have a problem with is :
cops randomly stopping and testing drivers without probable cause: schools randomly invading the privacy of their students without probable cause.
And I think it's the same problem most other people have as well.
Now it's my turn to say Exactly.
PS--in my window it's showing that the sidebar contents is in my post, but I'm posting anyway. We'll see what happens.
283. Absensia - 2/27/00 5:28:44 AM
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Computers never lie, Arky.
A-5:
This isn't hard. Participation in school sports is not required. We're not going to "solve" this here, since you and I have very different ideas about what is and is not within a school's rights to require of their athletes. That is for the courts to decide. And at least one agrees with moi, huh?
School sports have always been a refuge for wayward kids with a little talent and some drive - I'd never argue that. When I was a PO, that was always on the agenda. It is my belief, however, that school sports hold nowhere near the prestige they once did precisely because, just as in pro and college sports, all that seemingly matters is on-field performance. I happen to feel that, while any sacrifice of privacy makes me uncomfortable, in this instance it's worth it.
In Ca. the police do randomly stop cars and check people for drugs and alcohol. There called sobriety checkpoints. I used to be terrified of them.
Abs:
A $3 pee test distinguishes between "Poppy seeds" and actual THC.
ee, they've been upheld here too, in WA
required.
required.
There is a huge, huge difference between punishment and discipline. Positive reinforcement for positive behavior - negative consequences for negative behavior. That, and clear boundaries, is what teaches a kid discipline.
I have no problem with that. In fact, I agree. Where we differ is what constitutes appropriate punishment. I do not believe that cutting kids off from adult-supervised activities is appropriate punishment, as these activities are the ones most likely to help them find themselves.
Whatever. My point was that it doesn't take a real expensive drug test to accurately test for drugs.
Most assuredly. However, contrary to what you seem to want to imply, kids do not for the most part join sports for the positive adult influence and interaction. They join because they enjoy it, and to get chicks.
Hope this isn't a double, I just got some weird error message about a timeout.
I missed this part.
Joezan, are you saying that the reason you support randomly drug-testing grade school athletes is because it will cause sports programs to be more prestigious again? It's 'worth it' to violate students' privacy and turn at-risk students away from one of the best support systems around because of that?
Dude, are you serious?
A-5:
Error number: -2147217871 - [Microsoft][ODBC SQL Server Driver]Timeout
expired
That one?
You are asserting your definition of what constitutes the right to privacy as the correct one. I am saying that it is not so cut and dry. As was mentioned earlier, there are all kinds of jobs one may hold where mandatory drug testing is part of the contract. Does that mean anything to you? You enter into this contract, even though you are uncomfortable having to pee in a cup every month....why?
Because the benefit exceeds the level of discomfort. Absolutely no difference. No one is forcing you to work there, and there is no one forcing a kid to play school sports.
Why kids join sports programs is irrelevant. I am concerned with the benefits kids can derive from the programs, which can help straighten out their lives. Sure, it won't work for all kids. But if the sports programs help any kids, it would be worth it, wouldn't it?
A-5:
Joezan, are you saying that the reason you support randomly drug-testing grade school athletes is because it will cause sports
programs to be more prestigious again? It's 'worth it' to violate students' privacy and turn at-risk students away from one of the best support systems around because of that?
Let me make this simple. When any screw-up can get onto the team, and stay there while he "works out his problems", the rest of the team suffers. Maybe I'm a socialist, A-5, but I believe in the greater good. Student athletes are role models. It is not expectiong too much of any one of them that they don't do drugs, make halfway decent grades, and stay out of trouble.
Irv:
I have never had to ground my daughter (she's only just turned 8). However, I suspect that someday I will have to, assuming she turns out to be a normal teen. When the time comes, she will not spend whatever time she's grounded locked in her room with no human contact. But neither will she be going out and enjoying her social life.
Let me ask you this: Do you believe that schools should even have rules against their athletes using illegal drugs?
If so, what should be the consequence for breaking that rule?
Many schools have such rules..it's in the "code of conduct" and includes drinking, cheating, etc..but they don't do random searches to look for it.
You're now arguing that a work contract is a good analogy for high school sports?
The computer ate a long post of mine on drug tests. I'll recap:
Drug tests aren't cheap at all, even the ones that are highly suspect in their accuracy.
onto the team, and stay there while he "works out his
problems", the rest of the team suffers. Maybe I'm a
socialist, A-5, but I believe in the greater good. Student
athletes are role models. It is not expectiong too much of
any one of them that they don't do drugs, make halfway
decent grades, and stay out of trouble.
I simply can't agree with your apparent position that sports are only for the good kids. I see sports as an excellent opportunity to bring the kids with troubles into the mainstream. I guess we have different views of what school sports are for. And I just don't believe in giving up on the kids with problems.
I've never had to ground my kids either (they're 10 and 14), but if I did, I would allow them to continue adult-supervised sports activities.
I believe schools should have rules about drug use in the schools, but that there shouldn't be separate rules for athletes. I believe the schools should provide guidance and help for kids in trouble, and not just cut them off.
If a kid is smoking a joint at football practice, yes, I think he should be kicked off the team, and enrolled in a drug-help program. Obviously, his problem is much greater than one the school can help with. The same goes for any non-athletes in the school in the same situation.
But if a kid has a drug test which shows he smoked a joint at a party last Friday night, no, I don't think he should be kicked off the team.
The law which started this discussion (after Arky's initial question) related to all school-sponsored activities. I don't think the kids in the science club, the school newspaper, the Bible study club, etc. should be subjected to random drug tests, and I don't think it's right to subject student athletes to them either.
Irv:
Now, this may be getting a little off track, but I mentioned earlier that the problem my coach friend had with giving a kid another chance (I didn't mention that that was what he was responding to - my plea to give a kid who'd been caught smoking pot another chance) was exactly how the other kids on the team saw the situation - the squeaky wheel getting the oil. You may think my views on discipline are harsh, but they are in fact grounded in some very sound research. Have you ever heard of the Positive Peer Culture? This is a treatment modality wherein the onus is placed on every kid to act positively, to be a positive role model in his group of 8 - 12 kids, and to positively correct (or, in PPC parlance, "Check") the negative behaviors of his group members. In this program, a kid can have absolutely sterling behavior and not advance in his privileges unless he proves himself to be a positive leader. We expect and receive this from kids who have multiple felonies. It is amazing how quickly a kid can change from being a negative leader to being a positive leader, and how quickly that one kid's decision to be a positive leader can change the attitudes of the other kids in his group. we underestimate no kid, and consider attitudes such as yours heresy.
I would be boring you to death if I explained the theory behind why this method works so well, but suffice to say that my facility (the only detention facility in this state to use the PPC), within 5 years of adopting this treatment method, has become the model for this state, and is now becoming the model for the country.
Now, a school, of course, is not a detention center. But the point is that if a kid wants something bad enough, he can make some astounding changes. But you have to have standards, and you have to stick to them. In order for one of our kids to achieve Upper Level status, he's got top demonstrate Upper Level behavior and attitude for a full week - no exceptions, no negotiations. He is then given, along with his extra privileges, a certificate to hang on his door and a letter to send to his parents. He is the BMOC.
And that is the way it needs to be. They're kids, for Pete's sake. If they don't learn to play by the rules now, they will not do so as adults.
I've been involved in education for more than 20 years, and I'm very familiar with various theories of discipline. My own practices are also grounded in solid research.
Your PPC sounds great, but I have one main reservation. The kids we're talking about are not multiple felony offenders, but simply those who need a lift to get past a rough spot in their lives. Kicking them off a sports team because they aren't perfect will not help, but will reinforce whatever is causing their problems. We're talking about regular kids here, not the sort who end up in detention centers, at which point they need something more radical.
My point, which you haven't really addressed, is the beneficial effects of team sports and proper adult coaching on an individual, particularly as opposed to depriving those kids who need it most of that opportunity.
Is your position then that we should kick these kids off the school team, let their problems get really bad, and then send them to a detention center where they can learn PPC?
If they don't learn to play by the rules now, they will not do so as adults.
Did you play by all the rules as a kid? Never smoked a joint? Never got drunk? Never cut a class? Never did anything bad? If so, you are a rare example. I don't expect my own kids to be perfect. Hell, I sure wasn't.
Irv:
Hell no, I didn't. But I was corrected - never coddled -when I was caught breaking the rules. And, FWIW, I was, myself - a phenomenal outfielder and batter as a kid - thrown off the team in 10th grade for just such behavior. I mean, after a .400 year in JV I reported for varsity tryouts. The assistant coach took one look at me and said, Joezan, get the hell off my field. Simple as that. I didn't question him - I knew I'd f---ed up big time. I had to find my glory in the senior Little League and Babe Ruth League.
There's a big difference between "coddling" kids, and helping them develop their own discipline, which is a part of growing up. I'm all for instilling good qualities in kids, but it is a process, and kids don't suddenly show up as fully-formed individuals. They need guidance and support from adults.
Irv:
Is your position then that we should kick these kids off the school team, let their problems get really bad, and then send them to a detention center where they can learn PPC?
Please. As I said earlier, not only is the kid's drug use a negative influence on his team members, but the time and attention he takes from his team members, who may have problems not of their own making, is a serious distraction. Please don't get all sappy with this "football was the only positive thing in his life" crap. There are many, many options for a kid, in school and out, if he really wants to deal with his problems.
That said, all school sports programs I know of have a requirement that the athlete maintain decent grades. Standards - you gotta have them. Suppose you have two kids on your HS football team, one a drug user and the other a kid who's had to struggle all through school to make passing grades because he just is not too bright. He slacks off a little and pulls three D's one semester - boom! he's off the team. Meantime, his teammate the user drops positive, and he's given counseling and allowed to stay on the team. Where the hell is the justice there?
A-5:
IRV>Did you play by all the rules as a kid?
JOEZAN>Hell no, I didn't.
You figure it out, wise guy.
But someone who smokes a little weed..and only rarely..seems a lot different than someone shooting up between classes, but either would be ousted, right?
Abs:
Every time I've seen that snowboarder explain that incident, he does so with tongue firmly planted in cheek, and a big, wide smile. He is known far and wide as a doper.
And I really have to get going to bed -it's been, uh...fun. But it's 3am here. Talk to you guys later...
I know that..that's the best part.
It's only midnight here..but I need to go as well. G'night.
Please don't get all sappy with this "football was the only positive thing in his life" crap. There are many, many options for a kid, in school and out, if he really wants to deal with his problems.
Nobody is getting sappy. And I'm not talking about a kid looking for help. I simply think sports is a positive influence, and I'd hate to take it away from the kids who need it most.
I don't see the relevance to this discussion of a minimum academic standards requirement. If a kid isn't making it in school, perhaps he should repeat the grade. But that has no relevance to a kid who is getting passing grades, and for whom sports may be the best way to learn some self-deiscipline.
I too wonder about "drug user." Either a kid is experimenting a bit, in which case I wouldn't want to see him made an outcast, but rather given guidance, or else he's a real drug user, in which case he's better off in a drug treatment program than in school.
negative influence on his team members, but the time
and attention he takes from his team members, who may
have problems not of their own making, is a serious
distraction.
You know it will be fun.
Might I remind Zan that school is a compulsory experience for children. Not only is it compulsory, but children don't get to shop around much to find the school with the policies and approaches that most suits their personal standards.
Even though extra-curricular activities are not mandatory, kids have very few opportunities to develop alternative possibilities (unless their parents are financially well-off) because their day is constricted at the same place, mandatorily.
Private sports/event clubs in Texas are very expensive, running into the thousands of dollars yearly for participation. School clubs are available for all children, regardless of their SES, and in this regard, are really the only option for most.
Therefore the comparison to work environments is a specious one; there are many work alternatives open to people, even with fewer skills. If they object to a drug testing policy, they don't have to work for that employer. It is, somewhat of a free market, with substitutes available.
As I said before, I am opposed to allowing random drug testing for extra-curricular activities in schools. There are prefectly acceptable means already available to schools to address drug use by students, and this is simply one more way schools arbitrarily trample on the rights of children to their privacy, and to their protection of person.
My objection is to the random nature of the testing. Kids should test clean to get in, and then know that they'll be tested weekly (preferably right after the weekend). School programs are voluntary, and the kids can know up front what the rules are. I see no real difference between this and booting a kid off the team in the event that the drugs are found in their locker.
As Joe mentioned, extracurricular activities are subject to an entire host of restrictions that kids know about--grades being a primary case in point. Yet a "troubled" child who is using drugs is just as likely to be ineligible for grades as they are for drug use--so why is it any worse for them to be denied sports for drug use (which is criminal) than school work (penalized for bad grades)?
If a community needs a means of handling its troubled kids, then they can make that a separate program--in fact, they can make participation in the program mandatory for kids who get caught using drugs.
Mind you, I do see problems with the way we handle children's constitutional rights in this country. I have problems with the fact that the kid's locker can be searched nearly on a whim and then turned over to the cops. And it goes without saying that I don't think the results of the tests should be turned over to the police.
What gripes me is the political side of the issue. The so-called "conservatives" who purport to be so committed to personal freedom and an absence of governmental interference and "regulation" are, in general, supporting this gross invasion of privacy without a semblance of probable cause.
MsIT:
Therefore the comparison to work environments is a specious one; there are many work alternatives open to people, even with fewer
skills.
No, the comparison is dead on, Ms. It's about choice. If you don't like the policy, you don't have to work there. Likewise, you don't have to be on the school sports team (no one is advocating throwing the kid out of school).
It is, somewhat of a free market, with substitutes available.
Exactly. There is nothing preventing a kid from joining a non-school sports team, or organizing games with his friends, or, for Pete's sake, joining the midnight basketball league.
Reading this exchange, I'm reminded that the core issue here is a matter of legal rights, and whether we think its fine to treat children the way we would not agree to be treated as adults.
Of course it is - we have curfews, we don't let kids drink liquor or drive or vote till a certain age, etc. But you're right. It depends on one's personal view of how much freedom kids ought to be allowed, and, in the larger view, what the community's view is.
...back later. I'm off to church.
The comparison is not dead on. It is specious. There is no comparison between a voluntary association in a work environment and a closed-system like that forced on children in schools.
The rationale behind curtailing such freedoms is that we don't treat children as fully responsible in the eyes of the law, and thus, have little recourse but to constrain activities that could harm the community at large. However, I think curfews are thinly supported, even by this rationale.
Random drug testing in schools, to participate in after-school activities is not associated with the protection of any community-wide interests.
community interests=public benefit/welfare.
And the last sentence is my opinion only (I think this should be a given, but in case anyone thinks I speak for the world, I clarify for them).
I've just read over this debate again and realized I sounded a bit harsh in places. If I offended anyone you have my apologies - I respect everyone's view who's posted on this issue, and didn't mean to belittle any of those views.
One thing I did want to mention - because it wasn't made clear in my posts about the Positive Peer Culture (PPC) - is that this is not a program which is intended solely for use in a correctional or reformatory milieu. There are, in fact, many HSs and JrHSs which have had great success using it. The program's great drawback, though, happens to be its drastically decreased effectiveness in groups of more than 12 kids. It is therefore used, in schools, almost exclusively in special ed classes.
Note to Irv:
One of the bases of the PPC is that in today's youth culture kids are much more concerned with and affected by their peer group, and more thoroughly dismissive of adult advice or attempts to influence them, than they were even as - cough - recently as when you or I were teens. I did not intend to dismiss the influence you or any concerned coach may have on the choices a kid makes, but it's been my experience that one's chances of accomplishing this are much greater, nowadays, when you realize that in most cases you've got to use the kid's peers to effect any real change.
I posted this in the Cafe and then Irving suggested that I post it here so voila
" I would like a discussion about mandatory sentencing but have not
initiated it for two reasons. I have no legal knowledge and there is
a running discussion in the legal thread that I don't want to
interrupt.
In Australia (Western Australia and the Northern territory) it is mainly Aboriginal kids who are the victims of mandatory sentencing. It is outrageous. Our ghastly little slime of a prime minister, John Howard, refuses to act although legal experts assert that there are ways in which he could act.
A fifteen year old given a year for stealing some art materials, hanged himself. Aboriginal kids are already on the cliff's edge. Their lack of self-esteem makes them particularly vulnerable.
As I read your discussion above I remembered the total misery of my days in boarding school. The feeling of violation and loss of identity. I was a middle class kid. Imagine what an Aboriginal kid from an outlying island feels like in an institution. Previous felonies by this enemy of society included stealing some biscuits on Christmas day when he was hungry.
The prime minister and the Northern territory Attorney General deny the link between his suicide and the prison sentence!
You're not talking about simple mandatory sentencing here are you? That is, you do x you get y. You're talking about mandatory punishment when more than one offence has been committed, I think. Can you clarify please.
Here I must be careful not to overstate my knowledge. Three convictions and the sentence is mandatory. No matter what the wish of the magistrate or judge, a stipulated sentence MUST be administered. (This is only in two states - or rather one state and a self-governing territory). Judges and magistrates from those zones have already protested saying that they felt brutalised and downgraded.
The reason that Howard is scared to alter the state/territory governments' laws is that he fears the red-neck rural-vote backlash at the next election. Labor has said that it will get rid of the laws if it gains power at the next federal election but none of us are holding our breath for that result.
"REPEAL THE MANDATORY SENTENCING BILL 1999
We, the undersigned Australians, request that the Northern Territory
Government repeal the Mandatory Sentencing of Juvenile Offenders
Bill 1999 immediately.
We believe the recent death of a fifteen year old Aboriginal boy
who was being detained in Darwin under the Territory's mandatory
sentencing laws was avoidable.
We believe the Mandatory Sentencing of Juvenile Offenders Bill 1999
is discriminatory, disrespectful, morally abhorrent, racist and
unjust. The Mandatory Sentencing Bill takes the responsibility for law
and order away from the local custodians of the law in each Aboriginal
community in the Territory.
Despite the Royal Commission's Inquiry into Aboriginal Deaths in
Custody and 339 recommendations later, Aboriginal people are still 14
times more likely to be imprisoned than non-Aboriginal Australians. In
the Northern Territory, 72.8 per cent of the prison population is
Aboriginal.
This compares with 33.1% in Western Australia and 21.6% in Queensland.
Does the Northern Territory Government genuinely believe that
mandatory sentencing laws are making a real difference?
There is a better way. We believe the boy's local community and family
could have undertaken a more appropriate action under customary law and
the young boy would probably still be alive today. We urge you to consider enabling and supporting Aboriginal people in the Northern Territory to implement their own laws as responsible, respectful and valid, ways of dealing with offensive law breaking behaviour.
I always thought of 'redneck' as describing American hicks in particular, It is, for some reason that probably won't stand inquiry, quite amusing for me to think of Australian rednecks.
Not to the judge in the Northern territory, but they were to the federal government. That is what I have been given to understand by legal commentators. I will try to find out more thoroughly.There is great sensitivity about the federal government interfering in any State's laws. The federal government overturned the Northern Territory's euthanasia bill with no problems.
According to reports the Northern Territory Attorney General was once an opponent of Mandatory Sentencing until he spotted its electoral advantages.
The Western Australian Government is particularly awful. Premier Court has come out with statements worthy of Haider. Western Australia has a long history of bad racial attitudes.
It's one of the cultural bonds between our two great nations.
Mandatory sentencing has a presence in the US as well, however, I don't know any state that applies it to juveniles. California was the leader in passing the "three strikes and you're out" principle to serving sentences. I'm not sure if its equivalent to the mandatory sentencing in effect in Australia, but it requires that a convicted felon(?) be sentenced to a minimum amount of years in jail upon his third conviction.
I know several states have been considering the same policy, as is Texas (if they haven't already adopted it). The main stumbling block is that it substantially raises the prison population when put in effect, requiring an expansion of infrastructure to support the policy.
I'm a bit horrified that the policy would be applied to children in Australia, as I said, I don't believe even California has gone that far.
Australia is so huge and the urban populations are so distant from much of this sort of thing. The Northern Territory contains a large number of people who are there to get rich as quickly as possible and to whom material property is the only value. The Aboriginal people in that area have been historically displaced and exploited.
A Western Australian book to read is "My Place" by Sally Morgan, in which the grandmother has her humiliating life story dragged out of her by the grand daughter who is the author.
I have to go out now. I hope that I accumulate a little more concrete information.
No country can be at peace with itself while these sorts of things are unresolved. Howard's thick-witted failure to appreciate the psychological benefit of the word "sorry" to a people who have been so degraded shows how far many Australians have to travel.
unjust.
This is quite interesting. I'm not referring to the particular case of the Aboriginal boy or to this particular Bill, but it has been argued that variable sentencing may be unjust in that it allows for discrimination and racism in sentencing. That is, you are more likely to get off with a light sentence for the same crime if you are middle class and white than if you're working class and black. I'm speaking from memory now but I think Stephen Jay Gould may have made this argument in The Mismeasure of Man.
I have read that too. In Australia it's the magistrates and judges who hate it most of all. They feel that they are being degraded into executioners and that all their expertise and experience has been trashed.
My only jury experience involved a Lebanese youth and drugs. Apart from a couple of Chinese people who interestingly were for a guilty verdict, the rest of us, plus a wonderful old character of a judge moved heaven and earth to find some loophole to let him off. Partly because of manipulated police evidence that stank no matter what the youth had done, but also because he was 23 and good looking and would have been sexually assaulted in prison, and because the stereotyping of Lebanese youths is so powerful in Sydney that we all felt obliged to lean a bit the other way. This wasn't said, but it was a sub-text to everything else.
Our ghastly little slime of a prime minister, John Howard
A brilliant and accurate characterization.
A5:
Aussie rednecks are virtually indistinguishable from the American variety, except the Aussies wear floppy leather hats while the Americans wear baseball caps advertising tractor companies, and the Aussies guzzle better beer. Otherwise, they look, think, and act the same, and both speak an indecipherable variety of the language. If either group could afford a planefare to meet the other (or if there were a road between the two countries on which they could drive their pickups) they would recognize each other as the blood brothers they are.
Msit:
I had mentioned to Candide recently in another thread the possibility that the Australians borrowed the three-strike rule from California. Would you happen to know if it originated there?
I know a number of Aussies, and to a man (and woman) they hate John Howard.
...So how the hell did he get elected?
The fathers of both girls, Mark Klaas and Mike Reynolds, either founded or were early advocates of the Three Strikes initiative (can't remember which right now). Klaas disassociated himself from the effort when he realized how many non-violent offenders would be affected by it. Reynolds stayed with it and wrote one of those nasty self-congratulatory books on it.
I'll see if I can dig something up.
Hey...not true, I once heard about something that happened in Washington state. But then, I live there.
We do have the three strikes law...it came about through an initiative voted in by the same good people who voted in the uniform cost
for car licenses tax and other tax "reforms" last Novemember.
Several year prior to that, the legislature enacted the "vending machine" sentencing act...you do x, and your prior history contains w
and r events then, according to the chart, you do yy amount of time. Has taken away most discretion trial judges have in sentencing.
Most states had some form of "habitual offender" law on their books well prior to the Three Strikes initiative. In fact, the first I heard of it was in the movie, Brubaker, when David Keith explained to Robert Redford why he was in jail for life, back in the early 80s. These laws were used mainly as bargaining tools--an offender would plead to a lesser charge to avoid the mandatory sentencing. From what I can tell, these laws are still on the books in most places, but they weren't mandated.
It was indeed Washington that started the ball rolling. They tried a three strikes initiative in 1992, but it failed--they were more successful in 1993, and became the first state to implement the law. California followed soon after in 1994. I imagine that the reason California's passage got more publicity (apart from the obvious reasons) was because of the Klaas and Reynolds murders, but that's just a guess. I believe the difference in the Three Strikes laws and the earlier laws on the books has to do with the mandate--Three Strikes is not a bargaining tool.
I believe that most of the data on Three Strikes has proven it to be ineffective at reducing crime.
Regarding juvenile offenders: yes, some percentage of juvenile crimes are covered under Three Strikes--murder, arson, rape, armed assault, armed theft, torture. I'm sure there's a list somewhere.
In California, the ballot initiative has been used to: restrict services for illegal aliens, vote out affirmative action, mandate imprisonment for three strikes, and set a limit on property taxes (the grandaddy of all initiatives, Prop 13).
In fact, that's an interesting question in and of itself--the current tendency of the public to vote in laws by majority rule. The courts ensure that the laws are at least constitutional, but they aren't able to toss them out on the grounds that they just don't make sense.
John Howard became leader of the Liberal party through pious chicanery, betrayal od colleagues "being there" and the fact that Alexander Downer who had been elected leader so lacked charisma that he was being cartooned as Winnie the Pooh singing 'tiddely pom'.
The Liberal/National coalition got elected because the media had done such a good job on Labor's prime minister Paul Keating that he was hated and envied and cut down like the tall poppy he was. Gough Whitlam supported and admired Keating. Keating was a stylish, self-educated urchin who was what some would describe as "Too clever by half".
I hope things are going well for you in law school. I have an oral argument round for advanced moot court in less than an hour, so I'll just say "Hi" for now.
I look forward to seeing your name as Editor in Chief at UT Law Review.
This week we've begun discussing Homicide in class; how it's classified into the various categories. Murder is the intentional killing of another human being with 'malice aforethought' under the common law. Modern statutory laws build on this and typically eliminate the 'malice aforethought' aspect (so very ambiguous) and insert instead,
'the killing of a human being with premeditated, willful, deliberateness'.
Like this isn't any less ambiguous.....
Anyway, the case law is chock full of child murder/abuse cases as examples of when there is murder in the first degree or 2nd degree.
Jaysus.
Good to see you! Come back and discuss some issues with us when you have some time. And good luck with Moot Court!
I'm laughing on the Law Review crack, like I don't have enough on my plate....
One quick thought. The best way to think of premeditation is that it is the absence of a heat of passion.
Got it?
See ya...
Well, the absence of passion could also apply to 'deliberate' - therein lies the potential ambiguity. If they both imply a similar, if not the same thing, then why would they be included as seperate terms in many statutes?
On the other hand, if legislatures did not intend for them to mean essentially the same thing, what is their definitional difference?
Catch my drift???
"Wilfull" and "deliberate" go more to the intent to kill. This is important because 1st degree murder is a "specific intent" crime. Likewise, killing someone in the heat of passion is still done with intent to kill, but without premeditation.
By contrast, so-called "depraved heart" murder (usually 2d degree murder) occurs from a malicious act which, while evidencing a reckless disregard for human life, may not constitute an intent to kill.
Agree that's how some jurisdictions interpret that language, but consider Pennsylvania, which has 1st degree murder as requiring "willful, deliberate and premeditated", but interprets any "intent to kill" as meaning those.
I thought "depraved heart" was in the 1st degree category...
I'm having a hard time with criminal law. The sentencing for various crimes seems completely illogical to me, and highly inconsistent.
Your example of a guy getting life for kiting checks is completely irrational in light of some of these cases on child murderers I've been reading.
You're a defense attorney? You'd need to toughen yourself for that, I'd think.
Thank you.
I don't know about the Pennsylvania statutes. Perhaps the difficulty is over the word "deliberate." It could go either to intent or to the absence of a heat of passion. It would depend on how court interpret the statute. Often, legislatures will "double-up" synonyms in statutes in order to assure that the statutes are correctly interpreted.
Most 2d degree murder statutes, as I understand it, are descendants of "depraved heart" murder. You may come across a case in your casebook from the late 1800s about a drunk husband who threw a lit kerosene lamp at his wife. The lamp burst, lighting her nightgown on fire, and she later died from severe burns. While the court found no specific intent to kill, his act evinced a "depraved and malignant heart," demonstrating a reckless disregard for the value of human life.
Thus, as I understand, it would typically break down:
1st degree murder = specific intent + premeditation (absence of heat of passion).
2d degree murder = "depraved heart" + extremely reckless act (no specific intent).
1st deg. manslaughter = intent + heat of passion.
2d deg. manslaughter = knowingly reckless or grossly negligent act, no specific intent.
With regard to sentencing, you're right; sentencing guidelines make little sense. A grandmother on a first time cocaine conspiracy charge can easily get 20 years in federal pen, whereas a rapist or aggravated batterer might only get five or less in state prison.
I can't really contribute too much at the moment, except a couple brief comments on strict liability in criminal law. First, the oldest example of a strict liability criminal offense is felony murder - whenever a death results during the course of a felony, it is considered felony murder without regard to culpability. This is the primary exception to the general rule that "strict liability is wholly foreign to the common law."
Second, the relationship between consent and strict liability is not quite as clear cut as it has been traditionally or commonly construed. Mark Kelman wrote an article called "Construction of the Substantive Criminal Law," or something close to that, where he argued that the common interpretation of strict liability is a case of "narrow time framing." By looking at an actor's voluntary undertaking of an entire event as opposed to each element, culpability can be constructed.
I saw Gerald Torres speak last weak. He had interesting stuff to say, but seemed lethargic. He rambled. He seems like a realy nice guy, though, and was highly recommended by a few of my professors.
TEXAS SUPREME COURT DOESN'T KNOW HOW TO PROVE SOMEONE INNOCENT.
I do not know if any of you watch "Frontline" on PBS. If you do not, the last couple weeks have been very interesting. On Tuesday, they had a show about the high-cost of enforcing the marijuana laws in the United States. It discussed how draconian the sentencing has become for all drug cases, and how the government convinces women (generally) to testify against their husbands. The one woman they interviewed who did not testify against her husband was in prison garb spending twelve years away from her 4 young children. (In fairness to the government, they have allowed her to see her children once a year for the past four years.)
At any rate, a couple of weeks ago they had a show called "The Case for Innocence." Barry Sheck and Peter Neufeld were prominently heard on the program which dealt with the science of DNA and how it is being used to free many people from death row and other prisons and the resistance the government has to this. One case they talked about was particularly egregious. A man had been sentenced to 99 years for murder and rape. After serving 13 years (?) DNA testing was done and it was found that his DNA excluded him as the rapist. Apparently, the case against him was extremely weak and based upon circumstantial evidence. The day the girl was found in the woods he was working in the woods as a Lumberjack. There were three hours he could not account for, and he made statements to his friends that either the day before, that day, or the next day, he picked up girl in his truck and had intercourse with her.
His boss: "Well there was was that three-hour time period they were talking about. All I know is this: it was a one lane road to where he was working that day. It was a hour and a half in and an hour and a half out. I was driving up the road when he was supposed to be driving down to kill that girl. If he had been driving on that road coming down, I would have run into him. I didn't."
Reporter: "Why didn't you tell this to the police?"
Reporter: "Why didn't you testify to this at trial?"
His boss: "No one asked. When you go to court and sit on that stand under oath, they tell you only to answer questions that are asked. If they asked me I would have answered. No one did."
District Attorney: "Just because his DNA doesn't match that found in the girl doesn't mean he didn't kill her. Maybe he held her down, while someone else raped her. Maybe he wore a condom and raped her. Maybe she had sex with some guy the night before."
Barry Sheck: "You know, when they find out the DNA doesn't match they always come up with the "immaculate ejaculator." That is the person who provided the sperm that we found in the body that doesn't match. It doesn't matter whether or not there is any evidence of a second person being there. They always know they got the right man, and if his DNA doesn't match, there must be this mysterious immaculate ejaculator who came along and made a deposit. And if that doesn't work they begin attacking the victim's reputation."
District Attorney: "She wasn't the most moral of women from what we understand."
Defense attorney: "That's nonsense. We checked all that out. We know that she had not had intercourse with anyone for at least 96 hours prior to the incident. That is absurd for the District Attorney be saying that, they know a that this was a "good girl" and it is just insane for them to be attacking her morality."
Supreme Court Justice who wrote the opinion: (looking down her nose at the reporter) He did not did not prove he was innocent. All he proved is that it was not his DNA found in the body. Maybe he wore a condom, maybe he helped somebody else raped her, maybe she had intercourse was somebody else, you know she was not very moral woman."
Reporter: "But if this does not demonstrate innocence, what could? How could anyone prove their innocence?"
Justice: "I don't know."
District Attorney: "I'm not going to argue with you over this. The jury found him guilty. The prisons are full of men who claim they were innocent."
Reporter: "But he really is innocent. All he wants is a new trial. What is the harm in that? If you can prove he is guilty through another theory, why don't you do that?"
District Attorney: "I am not going to argue this point with you. The jury found him guilty. We do not want to give new trials to every person who claims he is innocent, even if he can prove it."
Reporter: "So, he stays in prison."
District Attorney (with shit-eating grin): "And he will be there for a very long time."
Prisoner: "They have me here, and they're going too keep me here. But I know the truth. And now they do too."
Next time you wonder why you're doing this, remember this guy in a Texas prison for the next 99 years.
Or the guy in Virginia they executed, claiming he was innocent. The government wants to destroy the DNA evidence before Barry Scheck can have it retested, because the case is closed
Thanks for the report. The most frightening statement is this:
"We do not want to give new trials to every person who claims he is innocent, even if he can prove it."" [italics mine]
That impression has not been contradicted in the Texas cases I've read so far.
Haven't heard of either Cole or Torres.
Democracy and Coercion? Seems like a slightly skewed title to a course, as if the cards were already stacked in one direction.
One thing I'm very grateful for is that the school I'm attending tends to downplay ideological ranting and focuses on law principles, theory, and the study of case law.
LadyC
From what I understand, the modern trend is to abandon the "willful, premeditated, deliberate" standard and to focus on trying to differentiate the different degrees based on culpability levels: intent or knowingly, reckless, and negligence.
This seems to be a better scheme, on the face of it, but I'm still learning the issues here.
(smirk)
I'm a couple of days late in fulfilling a request from Candide, but here is a nicely-done opinion on Australian PM John Howard from the "Sydney Morning Herald," which mentions the mandatory sentencing debate referred to earlier in this thread:
A Study in Cynicism
About a month ago The New Yorker ran an article on The Innocence Project. It was quite interesting. However, the reporter seemed to hold back on giving Sheck and Neufeld their proper due for the excellent work that they have done with their project. The article gave considerable space to one case in which someone exonerated by Sheck and Neufeld was subsequently found guilty of raping the original victim (or something like that). I'm a little hazy on the details (school will do that to you), but the article seemed rather injudicious in its assessment of the project's work. At any rate, it is quite interesting. If I run across it in my rat-trap of an apartment, I will give you the title and date of publication.
Frankly, second-degree murder and voluntary manslaughter, in my humble opinion, are kept around as sops to the jury, to make them feel better about convicting people and thus make it easier easier to get convictions for the District Attorney. In fact, I've never had a client for whom I was the trial lawyer, convicted of first-degree murder, although I've represented several people were charged. It is very difficult to defend a murder case in the Central Valley California. First of all, there is a dead body and the jury wants someone to pay for it. Secondly, your client is sitting there and the police say he did it, and the jury takes that very seriously.
In fact, in California a person no longer has a right to an all or nothing verdict. I did one of the last trials were you could still do this, and the judge said no way. What happened was my client stabbed a man who was trying to rape him fourteen times in the head during the struggle. Only the last two wounds were fatal and the others would cause bleeding, but would simply enrage the person more according to the pathologist. My client wanted an all or nothing verdict (i.e. it was first-degree murder or nothing.). The judge, on his own threw in the second-degree murder and manslaughter instructions.
.
Fortunately the case was overturned on other grounds (the judge excluded the fact that three years earlier he had raped a 16-year-old boy under the same circumstances -- my client was 19 at the time of the incident. ).
Suffice it to say it is my opinion that in many cases voluntary manslaughter is killing in self-defense, or, the jury just doesn't like your client but they don't think he got to go to prison for life because the victim was worse.
Below are some of the California jury instructions on murder. You tell me the practical difference between first-degree and second-degree murder, and voluntary manslaughter and self-defense.
The circumstance that Ladychaos discussed, where a man threw a lighted lamp at his wife probably was considered second-degree murder in the 19th century, because the 19th century, juries were all men and it was their right to beat their wife if they wanted to. They probably figured, why should we kill this guy for doing something we all want to do anyway
MURDER--DEFINED
(Pen. Code, § 187)
8.10
[Defendant is accused [in Count[s] _______] of having committed the crime of murder, a violation of Penal Code section 187.]
Every person who unlawfully kills a [human being] [or] [fetus] [with malice aforethought] [or] [during the commission or attempted commission of ___________ (statutory felony)] [a felony inherently dangerous to human life] is guilty of the crime of murder in violation of section 187 of the Penal Code.
[In the crime of murder, a human fetus is defined as an unborn offspring in the postembryonic period, after major structures have been outlined. This period occurs in humans seven or eight weeks after fertilization.]
[A killing is unlawful, if it [is] [was] [neither] [not] [justifiable] [nor] [excusable]].
In order to prove this crime, each of the following elements must be proved:
1. A human being was killed;
[1.a. A human fetus was killed;]
2. The killing was unlawful; and
3. The killing [was done with malice aforethought] [or] [occurred during the commission or attempted commission of __________ (statutory felony)] [a felony inherently dangerous to human life. ______________ is a felony inherently dangerous to human life.]
"MALICE AFORETHOUGHT"--DEFINED
8.11
"Malice" may be either express or implied.
[Malice is express when there is manifested an intention unlawfully to kill a human being.]
[Malice is implied when:
1. The killing resulted from an intentional act,
2. The natural consequences of the act are dangerous to human life, and
3. The act was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life.]
[When it is shown that a killing resulted from the intentional doing of an act with express or implied malice, no other mental state need be shown to establish the mental state of malice aforethought.]
The mental state constituting malice aforethought does not necessarily require any ill will or hatred of the person killed.
The word "aforethought" does not imply deliberation or the lapse of considerable time. It only means that the required mental state must precede rather than follow the act.
CALJIC 8.20
DELIBERATE AND PREMEDITATED MURDER
8.20
All murder which is perpetrated by any kind of willful, deliberate and premeditated killing with express malice aforethought is murder of the first degree.
The word "willful," as used in this instruction, means intentional.
The word "deliberate" means formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action. The word "premeditated" means considered beforehand.
If you find that the killing was preceded and accompanied by a clear, deliberate intent on the part of the defendant to kill, which was the result of deliberation and premeditation, so that it must have been formed upon pre-existing reflection and not under a sudden heat of passion or other condition precluding the idea of deliberation, it is murder of the first degree.
The law does not undertake to measure in units of time the length of the period during which the thought must be pondered before it can ripen into an intent to kill which is truly deliberate and premeditated. The time will vary with different individuals and under varying circumstances.
The true test is not the duration of time, but rather the extent of the reflection. A cold, calculated judgment and decision may be arrived at in a short period of time, but a mere unconsidered and rash impulse, even though it includes an intent to kill, is not deliberation and premeditation as will fix an unlawful killing as murder of the first degree.
To constitute a deliberate and premeditated killing, the slayer must weigh and consider the question of killing and the reasons for and against such a choice and, having in mind the consequences, [he] [she] decides to and does kill.
CALJIC 8.21
FIRST DEGREE FELONY-MURDER
(Pen. Code, § 189)
8.21
The unlawful killing of a human being, whether intentional, unintentional or accidental, which occurs [during the commission or attempted commission of the crime] [as a direct causal result] of ______ (felony) is murder of the first degree when the perpetrator had the specific intent to commit that crime.
The specific intent to commit ______________ and the commission or attempted commission of such crime must be proved beyond a reasonable doubt.
UNPREMEDITATED MURDER OF
THE SECOND DEGREE
8.30
Murder of the second degree is [also] the unlawful killing of a human being with malice aforethought when the perpetrator intended unlawfully to kill a human being but the evidence is insufficient to prove deliberation and premeditation.
CALJIC 8.40
VOLUNTARY MANSLAUGHTER--DEFINED
(Pen. Code, § 192, subd. (a))
8.40
[Defendant is accused [in Count[s] _______] of having committed the crime of voluntary manslaughter, a violation of section 192(a) of Penal Code.]
Every person who unlawfully kills another human being without malice aforethought but with an intent to kill, is guilty of voluntary manslaughter in violation of Penal Code section 192(a).
There is no malice aforethought if the killing occurred [upon a sudden quarrel or heat of passion] [or] [in the actual but unreasonable belief in the necessity to defend oneself against imminent peril to life or great bodily injury].
In order to prove this crime, each of the following elements must be proved:
1. A human being was killed;
2. The killing was unlawful; and
3. The killing was done with the intent to kill.
[A killing is unlawful, if it was [neither] [not] [justifiable] [nor] [excusable].]
CALJIC 8.45
INVOLUNTARY MANSLAUGHTER--DEFINED
(Pen. Code, § 192, subd. (b))
8.45
[Defendant is accused [in Count[s] _______] of having committed the crime of involuntary manslaughter in violation of section 192, subdivision (b) of the Penal Code.]
Every person who unlawfully kills a human being, without malice aforethought and without an intent to kill, is guilty of the crime of involuntary manslaughter in violation of Penal Code section 192, subdivision (b).
A killing is unlawful within the meaning of this instruction if it occurred:
1. During the commission of an unlawful act [not amounting to a felony] which is dangerous to human life under the circumstances of its commission; or
2. In the commission of an act, ordinarily lawful, which involves a high degree of risk of death or great bodily harm, without due caution and circumspection.
[An "unlawful act" [not amounting to a felony] consists of a violation of _______ Code section[s] _______.]
[The commission of an unlawful act, without due caution and circumspection, would necessarily be an act that was dangerous to human life in its commission.]
In order to prove this crime, each of the following elements must be proved:
1. A human being was killed; and
2. The killing was unlawful.
To drop a name, I met Mr. Sheck at the last death penalty seminar I intended. I almost had lunch with him, my expert witness in confessions invited him, but he was preparing for the afternoon lecture. He is much shorter than he appears on television. That is about my only impression of him from meeting him, except to say that he is very intense and no one will go to death on his watch if DNA has anything to say about it. In our community, he is a god.
I can never remember her name, but she is one of the attorneys who defended the Menendez brothers. She is literally one of the most intense people I've ever met. She is also very short (I think my wife is taller, and on a good day she is only 5 ft.). Frankly, in person she looks like a little old Jewish grandmother. She is much better looking on television.
FYI: this element of murder was added to the California penal code after Keeler v. Superior Ct (1970). A man, separated from his wife, pursues her and kills her unborn child (fathered by another). She brings charges of murder, and the CA courts held that there was no such thing, since neither the statute in effect at the time or common law defined a fetus as a human being.
The man got off scott free.
The CA legislature promptly passed an amendment to their murder statute including the deliberate killing of an unborn fetus.
This area of the law is simply chock full of lovely little stories like this one.
Unless it's an abortion, of course.
However, I think you miss the distinction if you're going to open that can of worms.
Skier Liability Case in Colorado Court
Or, I'll try not to kill anyone out there next week.
No, I get the distinction--but the fact is that in creating the definition, they opened the can all by themselves.
Woman had three children, and was living with her boyfriend for the last 8 months. The 10 year old daughter stays home from school one day, woman goes to work, leaves boyfriend alone with her. They get home at the end of the day, and find the girl naked, under a pile of clothes in her closet, stabbed several times, dead, of course.
The guy was convicted of 1st degree murder at trial. It was reduced to 2nd degree murder on appeal because the court found, under CA laws that the Defendant hadn't met the requisite "deliberate and premeditated" standard as they saw it. Case was State v. Anderson (I think).
You have to read the statute in its entirety to place the particular section I highlighted.
State sanctioned abortion would simply be seen as an exception outside the statute.
Oh, I agree that that's what it would be called. It's still a tad unsettling. I wasn't speaking from any legal perspective.
Not that you don't have enough in the way of resources but you might want to bookmark this for quick reference.
Find Law
This is absolutely outrageous, especially considering the fact that a defendant is legally required to be present for his trial.
This is one more Dred-Scott in the recent history of due process decisions by this bunch of f_ckers. Rehnquist, O'Connor, and Scalia should be taken out and shot for what they've done to our Constitution.
At any rate, what better reason to vote for Gore does one need.
Cracks me up. Sometimes its downright fun being almost two decades older than most of my peers.
Btw, one of my Prof's, who's not unknown in the academic world of tort law, had me on the floor with one of his stories regarding a reaction he had to Scalia when he was trying a case before the SC. Said that Scalia is known for tearing lawyers apart, particularly keen on showing up his intellectual superiority. One session he was watching this poor lawyer virtually white knuckled trying to deal with one of Scalias 'traps', and said he'd wished he'd had a button on his chair that he could just push and send the bas***d out the ceiling of the court.
I thought at that moment that perhaps he didn't care for Scalia either......hmmmm
", it is okay for a prosecutor to tell the jury on closing argument that it may draw an inference from the fact that the defendant "heard all of the testimony throughout the trial, and therefore had the opportunity to 'conform' his testimony to that of the other witnesses." "
Errrr... okay. You've ranted. Now explain your problem.
Prosecutors ask the jury to draw inferences of guilt in final summation. And they're not allowed to ask the jury to draw inferences that the defendent lied on the stand based on the factual circumstance that yes, the defendant WAS present, hearing all testimony?
Perhaps the Prosecution should just go home on the first day, ay?
For christ's sake.
The other silliness, of course, is the fact that the case is only being heard NOW suggests it's been done this way for 200 years. Surely this can't be the FIRST time in history a prosecutor has made such an argument to the jury.
And yet Chaos rants. A precious right has been lost.
Well, you know, not really. Psssst-- there never was such a right, apparently.
Of course, Ace, all of this is impractical nonsense because we all know that anyone who's on trial must be guilty, right?
"It's patently absurd for a prosecutor to be allowed to tell the jury that they should draw any inference from the defendant's presence."
1) They don't "tell" the jury. They "argue" to the jury. They ASK the jury to make an inference.
2) The inference is patently reasonable. It would OCCUR to any juror who wasn't a retard. There's no reason to gag the prosecutor from suggesting a perfectly reasonable inference. Must the jurors conclude that, if the defendant watched the whole trial, he had time to prepare his testimony to conform to theirs? No. Can they? OF COURSE THEY CAN.
Here's ChaoticMind's theory:
1) The prosecutor can say, "The defendant is a LIAR. You can infer this from the evidence."
2) But the prosecutor CANNOT say, "You may infer, based on the defendant's presence during testimony, that he had time to concoct a lie which jibed with the other testimony."
Absurd.
Who gives a shit if he's "required" to be at the trial?
"Of course, Ace, all of this is impractical nonsense because we all know that anyone who's on trial must be guilty, right?"
"I mean, why don't we just dispense with the presumption of innocence and impose an automatic sentence on the basis of the State's Information?"
Wow. Great arguments, Chaos. I especially appreciate their finely nuanced hysterical screechiness.
Let's think this through.
Defendant is on trial for murder. He claims that he had no motive to kill the victim.
In fact, he testifies, me and the Victim went to a baseball game on April 28 together. Great buddies were me.
But the afternoon of April 28, Defendant was on Trial for ANOTHER crime-- in the courtroom.
Would it be unconstitutional, I wonder, for a prosecutor to ask the Jury to infer that Defendant is lying about the April 28 baseball game meeting, since he was in court on trial on that date?
Would that inference be "unconstitutional" to ask the jury to make? After all, the defendant was REQUIRED to be the courtroom on April 28. Isn't it a constitutional violation to draw any adverse inference from his presence in the courtroom?
Or: Defendant claims the murder weapon doesn't belong to him. He testifies he can explain how his prints got on the weapon, but he never does satisfactorily.
Can the prosecutor ask the jury to draw the inference that, since the Defendant SAW the murder weapon at trial, and yet was unable to explain the presence of his prints on it, he ergo must have no innocent explanation?
Once again-- an inference based on the defendant's "required" presence at trial that you're so frenzied about. And yet a perfectly reasonable inference. Perfectly fair for the prosecutor to ask the jury to make.
Once again: Does the jury HAVE TO make the inference? No. May they? Of course.
Or: Witness points to Defendant when asked to identify the murderer.
Defendant was "required" to be in court. Jury is being asked to draw several inferences: 1) that the witness is credible, 2) that her powers of perception are trustworthy enough to point out the murderer. And ultimately, of course, the inference that the defendant IS, in fact, the murder.
An inference about defendant's guilt flowing straight from his "required" presence in the courtroom. Toss out courtroom identifications, too, Chaos? Is that the next thing you'll get frenzied about?
Your arguments are intellectually dishonest, and you know it. You are deliberately conflating the issue, inter alia, of alibi with the subject under discussion.
Of course, juries draw their own inferences from the defendant's presence in the courtroom; they are allowed to do so. As you know, juries often infer from the fact that a defendant doesn't take the stand that the defendant has something to hide. But you also know that prosecutors are not allowed to ask juries to draw any such inference because a defendant's decision to exercise his Fifth Amendment right cannot be used against him. So, if State Attorney Ace stood before the jury and asked the jury to infer from the defendant's silence at trial that he had something to hide, the court would be required to declare a mistrial.
The lesson here, of course, is that a prosecutor does not have free reign to ask a jury to draw inferences from everything a defendant does or does not do while in the courtroom. Because a defendant does not sit in the courtroom voluntarily, it seems improper to argue that he was there for the purpose of tailoring his testimony to the State's case. Apparently, four Justices of the Supreme Court agree, so I don't see how you can dismiss the argument out of hand.
You are going to love being a lawyer. While working this morning on an opposition to a motion to dismiss in a federal diversity case, it occurred to me that, in many respects, this profession is a lot like debating on the Mote. The difference is that you get paid to do it.
Not all lawyers are litigators. Those of us who aren't can go through our professional lives seeking to reach agreement, rather than trying to win everything.
Moreover, the way litigation has been practiced over the last two decades, there are substantial advantages to beating up on your opponent, and not merely winning by the strength of your arguments (then again, that is like the Mote...).
Whoever said anything about "beating up" on one's opponent? I am always perfectly civil when drafting my motions, briefs, etc. I will sometimes say things like, "Defendant makes a game argument with respect to ...." or, "Defendant's reliance on ... is misguided," etc., but I never impugn my opponent's intelligence or professional ability. I believe that getting nasty will only reflect bad on you professionally, because if you don't have a perfectly rational argument for why the opposing side is wrong, then you have no business being in court in the first place.
There's more to beating up on one's opponent than using nasty language, although when I wrote briefs (usually in the bankruptcy contaxt) I was always told to "punch them up" because I'm too civil.
To me, beating up on one's opponents include no end of uncivil litigation tactics designed to make reaching the end result more difficult for your opponent, without promoting the truth-determining aspects of litigation.
I'm glad I'm out of litigation, and hope never to see the inside of a courtroom again.
Me TOO!!!
So will LC.
I already love learning about the law, I hope it carries over into the work.
WRT litigation: I hadn't planned on doing litigation, but I imagine some courtroom experience is good.
Before I began studying law, I thought I'd be mainly interested in corporate and property law, and I was right. I had no interest in litigation, and my foray into criminal law only verifies my initial feelings about the whole area.
My hat is off to all those criminal lawyers out there, this is a horrendous area, and I think I'd be in a blue funk constantly were I to work in criminal justice.
And just why do you say that? Because I'm too sensitive to work in criminal law?
I swear to god, reading these child murder cases has just about done me in.....
I'm dreaming the impossible dream, however, to someday create the perfect contract!
Also, there seem to be a growing number of child pornography cases like the one in Grand Rapids where a 23-year-old man was turned in to the feds by the film processor for photographing his 17-year-old girlfriend in the nude. The judge said she was old enough to have sex with him but not for nude photographs even though she testified in his behalf that she willingly participated in the photo session. He got 5 months in jail despite the fact that he had not published the pictures on the Internet nor mailed them across state lines. (The photo print paper had come from out of state which was enough to get the feds into the act.)
An article in today's paper describes the case of an Ohio woman being prosecuted for taking pictures of her two young 5 and 3? daughters in the bathtub. She was also turned in by the drugstore photo processor. She is being represented by ACLU and has refused an offer of a settlement.
In the basketball case, a player smashed another player's face with his elbow, intentionally and away from the ball. It was an act of pure maliciousness, and was not a by-product of the game. If it had occurred anywhere but on a basketball court, nobody would question the assault charge (the victim required reconstructive surgery). The guy was certainly guilty... but 5 years? It sure seems excessive, but the fact that it occurred on a basketball court is basically irrelevant.
The porn issues sound, from what you report, to be pure silliness.
The reason the guy got 5 years was that he was already on probation for a felony. He (the defendant) did not take that into consideration when bargaining, and now he's griping about it. Still, he will most likely serve no more than a year.
wonk:
but, as you said, five years was quite severe in the high school basketball case.
Please see Message # 449.
Battery in sports has been determined by the customs and traditions of the game, and by official stances by the guiding sports associations. In basketball, punching an opponents face in would not be considered part of the customary body contact of the sport, so I can see where the youth was prosecuted for that one.
In addition, the official stance of many sports associations is that they do not condone excessive violence and force. This provides the courts with the necessary rationale they need to convict when confronted with outrageous injuries.
WRT the child pornography issue: it too has strict liability attached to the crime in both federal and state statutes. It's the will of the people. That some get caught inadvertently in the net is one of the consequences of having no mental culpability attached to the crime.
You doubt wrongly. Child pornography is regulated by the feds under the commerce clause, by statute. States also regulate pornography, but these laws (statutory) are secondary to the federal statutes.
Sex with minors, on the other hand, falls within state statutory regulations on rape (statutory), and sexual assaults. The legal age for sex with the young differs from state to state, and is not within federal control.
All, however, are statutory laws that the courts are bound to follow, unless very vague or ambiguous, in which case they can either wiggle or declare them unconstitutional (according to the state constitutions, if possible). Contrary to your belief, the courts do not "make" these laws up, they reflect the attitudes of the state legislatures (or the federal) with respect to both subjects: pornography and sex with minors.
As MsIT points out, the issue of battery in sports goes to whether the contact was a result of the traditions of the game, and thus whether the victim willingly submitted to the risk of such contact.
My problem with the teen porn case is that the guy obviously lacked intent to distribute the pictures. As a general policy matter, I find it silly that new laws are being passed to allow the prosecution of 14 year olds as adults, yet the same "group" of right-wingers pushes for laws making it mandatory for 16 year old girls to get parental consent to have an abortion, and they presume that a 17 year old girl cannot voluntarily submit to having her picture taken in the buff. Just silly.
Pelle,
"Statutory rape" refers to a doctrine which holds that a person below the legal age of adulthood is incapable of legally consenting to having sex with an adult. Thus, the adult who has sex with a minor, no matter how experienced or sophisticated that minor may be, can be charged and convicted of statutory rape.
Chaos:
I find it silly that new laws are being passed to allow the prosecution of 14 year olds as adults, yet the same "group" of right-wingers pushes for laws making it mandatory for 16 year old girls to get parental consent to have an abortion, and they presume that a 17 year old girl cannot voluntarily submit to having her picture taken in the buff. Just silly.
Is this what they're teaching you in law school these days? You'd better go and look some things up. I think you'll find that, in most states, the age of consent rises and falls with the public mood, and are just as liable to be changed either way by administrations of either party.
You may have noticed that I made my point "as a policy matter," so I don't know why you bring up law school. My point was that the "public mood" is contradictory and hypocritical. If a 16 year old girl doesn't have the capacity to make an informed decision to have an abortion, then it's difficult to argue that a 14 year old boy can form the requisite intent to commit a serious crime. The former assumes that a teen doesn't have the capacity for reason, yet the latter does.
So...
...you're comparing the decision to have an abortion to the intent to commit a crime?
I like you better already, Chaos.
Moreover, there are too many law enforcement people in the system with too little to do. The more hired the more silly investigations, trials and the more people in prison. If everybody who ever violated a law went to jail, the nation would have trouble feeding and clothing itself.
wonk:
Regarding the basketball player - I read about the case the other day, and am a bit foggy on the exact details. But I'm almost positive that the guy was offered a very reasonable plea bargaining agreement, wherein he would receive at the most a year and quite possibly only a couple of months. Instead, he chose to go to trial on the chance that his current probation status would not be taken into consideration in sentencing. Where he got this dumb idea I don't know, but he was wrong, wrong, wrong.
wonkers:
Well, I agree with you about the other two cases (absent any untoward floating objects, of course).
BTW, another thing mentioned in the article I read (Grand Rapids Press - don't bother, they don't have an archive of even a few days - I just checked) was that the guy now - just now - is claiming that his coach told him to punch that other kid, and is also angling for some racial bias thing - all the other kids in school punch kids in the nose during games, but he's being singled out because he's Hispanic, or something like that. The coach thing has been checked out, and his teammates and everyone else in the school say he's basically full o' shit.
I understood what you were trying to say. What you seem to miss is that if something is reported, and there is a statute requiring that the state prosecute, then they will.
At the very least, they must investigate. And, again, because these are strict liability laws, the particular facts of the cases doesn't matter. Strict liability requires prosecution for breaking the law regardless of the circumstances of these cases, or the silliness of these people being caught in the net.
That's what strict liability laws are all about. No excuses. You don't like it, then lobby to have the laws rewritten to require the state prove some level of mental culpability. As it stands, this is one of the consequences of such a standard.
Btw, almost all legal academics uniformly dislike strict liability laws, and the Model Penal Code has come out strongly against them except in cases of statutory rape of 10 and under. However, such laws remain on the books.
I think what people tend to forget is that the thrust of laws such as the ones discussed here are made not so that the police can go around arresting people and prosecutors will have something to do. They're there to protect people. Sure - this 17 y.o. girl obviously had no problem with having her picture taken. But in a lot of similar cases there is a level of coersion or even outright threats, and unfortunately the law cannot make acceptions at every turn.
That said, doesn't it seem a bit odd that, 1) The boyfriend didn't bother looking into whether it was in fact legal, and, 2) Even if he had considered that, and decided it must be legal, it never occurred to him that the people developing the film might think, Hey - this girl doesn't look old enough to be posing nude!...?
...to say nothing of the colossal lack of respect it must take to leave nude pics of your girlfriend at the local Fotomat for the pimply faced teenage clerk to gawk at.
Wonkers
I don't get your drift. Are you suggesting the courts and police use discretion (according to their own sense of morality) to ignore statutes when their application yields foolish results? Not that they don't already do this, to the great dismay of the public when they discover it.
Generally, when courts have done this in the past, by refusing to impute a meaning into a law that the legislature wanted, the legislature comes back and amends to eliminate the courts position. This is not an infrequent occurrence.
I don't know what's worse, a legal system with wide discretion to selectively apply the laws or a legislature with a mindset that creates innumerable strict liability laws.
Just how would you suggest the courts determine when it's okay for a minor to have participated in pornography and when not? By consent?
Consent doesn't get you anywhere under statutory rape laws. By age? Age is arbitrarily drawn in these statutes, but there's no way around that.
By the circumstances? Oh, it's okay for the 17 year old to have had her boyfriend take the pictures. But what if it had been her dad? Or uncle? She consents so it's okay?
You seem full of wisdom. How about some guidance on a more reasonable method that still strongly protects children from sexual exploitation by adults.
you're comparing the decision to have an abortion to the intent to commit a crime?
Bingo. Gosh, I don't know how you get through the day without throngs tossing laurels at your feet in honor of your genius.
Both situations entail whether or not the individual has sufficiently developed an adult capacity for reasoning. Our society imputes such capacity to minors in those circumstances where it is "convenient" for the adult voters to do so. Thus, it is politically expedient to impute adult capacity to 14 year old criminals while deciding that a 16 year old girl lacks such capacity. The result, however, is contradictory and hypocritical.
For the past few years the INS has maintained that the law requires them to commit very callous and inhumane actions. But recently they have been told to develop guidelines to allow for enough discretion to avoid the horror cases that have been occurring with regularity since the law was changed. Now even the some of the law's right-wing authors are complaining that the law didn't contemplate some of the injustices that are occurring. Soon, either the INS will change its stubborn, mindless policies or the law will be amended again. This'll happen because Americans don't approve of the ridiculous results we have been getting lately. Moreover, when the law produces a result that defies commonsense at a low level there is often a good chance of getting a reversal on appeal. Apparently that's what the ACLU thinks in the Ohio case.
I'm about to start working on a habeas corpus petition involving a Cuban national who is being held pending deportation. Of course, Cuba won't take him so his predicament amounts to a life sentence.
In a way, I can understand the INS's reasoning in enforcing the law so strictly. Even if the INS develops guidelines allowing for greater discretion, the law will still make certain people subject to deportation at any time. Thus, potential deportees would have to live the rest of their lives depending on the good graces of whoever happens to be calling the shots at the local INS office. Better to create political pressure to change the law.
Yea. I mean, if you can't come to this country and use and sell drugs, what the hell's the use of coming?
These people should've realized they'd have been much better off staying in Cuba, where they don't cobble together drug laws.
I don't suppose it's occurred to you that most of the Mariel boat people were locked up in Cuban prisons and sanitariums before Castro set them loose on us?
Are you working out of one of the Public Law clinics at your campus? Or do you have a real live job while in school?
Fwiw, it has already been established that most of the Marielitos were not criminals. I recently helped represent a dear old man who came over on the Mariel, one who at age 76 has more energy than I do, and who never missed a day at work until the mining company he was at laid him off due to his age.
MsIT,
I'm working at a firm in Coral Gables. A couple of the partners are in the leadership of the Cuban American National Foundation, which occasionally leads to some interesting situations. One of my bosses was seen on national television during Elian's visit with grandmothers, ranting about Cuban agents, cellular phones, and kidnapping conspiracies.
To be clear, the part of the 1996 Immigration Act which makes immigrants who commit enumerated "serious crimes" subject to deportation was not aimed at any one particular group, and I'm not even sure that the Drug War was the overarching factor behind it.
Having said that, the best way to end drug gangsterism would be to end the Drug War. I think that you know the rest.
This particular client lived in hiding for fifteen years before the FBI picked him up. In the interim, he lived an exemplary life, running a successful business in Palm Beach County, contributing to charity, etc. He even became a member of the Cuban American National Foundation, which kinda' makes you wonder where the feds were looking all that time. His co-defendants, who stood trial in the late 70's, were actually acquitted of the original charges. He only did time because the government threatened to charge his wife with harboring a fugitive, so he copped a plea. The Justice Dept. recommended him for early release after he had done eight years of a 12 year sentence. That same DoJ picked him up the day he got out and put him in a county jail.
First, wrt Message # 441, I really agree. I have thoroughly enjoyed law school to this point. You are crazy for liking corporate and property law, though, unless you are simply trying to "know thy enemy." (g)
Second, a long time ago (actually, a full spring break ago) I mentioned a professor, Gerald Torres (Message # 387); you said that you were unfamiliar with him. H is a property professor at UT Austin and a prominent critical race theorist.
Third, you commented on the title of my course "Democracy and Coercion," saying that it seemed ideologically skewed. It actually is, but in the opposite of what yuou would expect: it is pro-Liberal (the professor is a firm believer in a determinate Bill of rights).
The course discusses the inherently coercive nature of majoritarian government and attempts to define the spheres that have been historically off limits to majoritarian control. Basically, it starts with Lochner and works its way chronologically from there.
Fourth, I think that you are not granting enough credit to strict liability as a concept. It is not entirely intellectually discredited - a lot of critical legal studies writing has been about strict liability (and other de jure constructions) in contracts/torts. The best article on its application to criminal law is an article by Mark Kelman entitled something close to Construction in the Substantive Criminal Law. If you want a full cite, I can get it.
By downplaying "ideological ranting and focus[ing] on law principles, theory, and the study of case law," your school might be doing you an injustice.
I don't think so. I've had enough ideological schooling to last me this lifetime. I enjoyed it at the time, but want something less inflamatory these days.
Yes, I found out who Torres was after you mentioned him, but I don't think he's in property. Critical theorist, yes, however, as I said, I'm done with critical theory these days. And if he teaches property, I think I'll avoid that class, again, though, I don't recall seeing him on the roster of property faculty.
Regarding corporate/property law: perhaps if I tell you my background is in economics it might make more sense.
Regarding your class: that's what I thought the bias was, so I don't know how it would be in the reverse. However, it sounds vaguely pro-libertarian as well. Do tell us how you're enjoying the thing, too.
Btw, I dislike strict liability in criminal law intensely, if you haven't picked that up yet. As for strict liability in contracts and torts, that's another beast entirely. There's more room for a good case to be made for SL in civil law than in criminal law, IMO.
It is difficult to peg the ideological bias of my curriculum. This semester I have a critical race theorist, a law and economics professor (admin law), a law and society professor, and a classical liberal (Democracy & Coercion). Though they all are generally leftist, the curriculum's only consistent ideological argument is that current law is not non-ideological. The most enjoyable aspect of law school for me has been discussing and learning about the various ideological foundations of current law.
Actually, though I don't agree with much of it, Law and Economics is currently my favorite genre of legal theory. I enjoy trying to play the game by the rules it sets up.
Later today (after 6) I'll post a couple of defenses of strict liability in criminal law and see how they fly.
A state judge in New Orleans has removed six teenage boys from a juvenile prison after finding they had been brutalized by guards, kept in solitary confinement for months for no reason and deprived of shoes, blankets, education and medical care.
The descriptions of conditions at the prison in Jena, in central Lousiana, are stark. But the criticism is particularly troubling, federal officials and lawyers for the prisoners say, because THE PRISON IS RUN BY THE WACKENHUT CORRECTIONS CORPORATION, THE WORLD'S LARGEST FOR-PROFIT PRISON OPERATOR. The judge said the company, which generally has a good reputation in the industry, HAD TREATED THE YOUTHS NO BETTER THAN ANIMALS.
The situation raises a fundamental question about privately run prisons: Can corporations operate them more efficiently than state governments without skimpoing on essential services and proper training?.....
Justice Dept officials and others said the problems at Jena were at least partly caused by Wacdkenhut's efforts to cut costs. Consultants for the dept and a federal judge found the company had stinted on food, clothing, education and medical treatment for 276 inmates, and on training for guards.....
Wackenhut, based in Palm Beach Gardens, FL, operates 39,308 beds in 56 instutuions in 13 states and seven foreign countries....
John Whitely, a former warden of the LA state penitentiary, who examined the Jena prison for Judge Polozola, said that the pervasive lack of shoes, underwear, blankets and mattresswes for inmates was "just cheap."
From an article by Fox Butterfield NYTimes 3-16-00
As is often the case in LA, Jena is enmeshed in a political corruption scandal. A friend of former Gov. Edwards, Cecil Brown, was indicted in N.O. on federal charges of funneling $845,000 in cash from Fred Hofheinz, a former mayor of Houston, to Mr. Edwards for the contract to build the prison.
Though Mr Hofheinz won the Jena contract, he couldn't raise the money to build the $12 million prison and sold the rights to WACKENHUT...
Before opening 14 months ago Wackenhut and state officials had maintained it was being built to provide treatment for juvenile addicts... But the Justice Department found virtually no drug treatment programs at Jena.
Instead they found "a dangerous place to be," with 1/4 of the inmates "traumatically injured" in a 2-month period, many by untrained guards. Guards routinely threw the inmates against walls, twisted their arms or shoved them to the ground because they had not been taught other ways to control the boys.
Dr Nancy Ray, an author of the report, said many boys had no shoes or jackets in the winter; some were forced to spend the day "huddled under a shared sheet or blanket" to keep warm. Inmates often went days without clean underwear, she said, and sometimes fought over newly washed clothes.
Low pay and poor management have led to high turnonver: five wardens since Jena has been open, and 600 persons have filled its 180 staff jobs.
Ray said Wackenhut had skipped basic procedures like background checks on prospective employees for criminal records; some guards were hired despite having records for assault....A quarter of the inmates have IQs of less than 70 but no special education is provided. Also, the guards, mostly white, frequently used racial epithets in talking to black inmates ....Jena's files contained two dozen reports that guards had used force against the teenagers resulting in broken fingers and a broken wrist...etc, ad nauseam.
It seems that warehousing, and poor warehousing at that, is the conservative answer to rehabiltitation. But that's what three strikes laws are all about- these kids will get out eventually. Since they don't get addiction treatment, they'll probably offend again, get sent back for more of the same, and finally we can pay Wackenhut to warehouse them for life. It's job security for private prisons. They have an interest in doing nothing to curb demand for their services, and in keeping costs as low as possible. They win, the lobbyists win, the pols they bribe - er "contribute" to win, and everyone else loses.
There are now more African American males in California prisons than there are in California universities, and a California prison guard is paid about $10k per year more than a starting tenure track college professor in that state's university system.
The silliness of the drug war aside, both comparisons you make in the second paragraph of #493 are meaningless.
1) Who ordained that more people (of any ethnic group) oughta be in universities than in prisons? Do you believe that it's always good to have more people in universities, and/or that it's always good to have fewer people in prison? If not, why would you even consider making such a bald-faced comparison? Both the exact amount of incarceration that maximizes overall well-being, and the exact amount of higher education that maximizes same, are empirical quantities -- and I see no theoretical reason why either one should be higher than the other.
2) I doubt there's much head-to-head competition between those two professions; but I'm fairly sure that just about anyone qualified to be either a prison guard or a tenure-track college professor would strongly opt for the latter, the salaries being equal. Hence, why would you be surprised that the salary for the latter is lower?
I didn't claim that it always did; I was asking why anyone would be surprised if it did, in any particular instance.
wonkers:
I agree. Any Wackenhut facility is a potential nightmare.
The Wackenhut method:
Build a prison in a high unemployment area (they're always fully staffed before they even open), and pay $6 - $8,000 less on the low end and $15 - $20,000 less on the high end for help that is proportionately less qualified than that in "real" correctional facilities. When you get what you pay for, they blame it on the low number of qualified people in the local population, "But we're working on it....".
Ditto wonkers' #499. It doesn't take a lot of brainpower to determine that more people in college is better than more people in prison. The fact that certain criminal justice policies overwhelmingly affect a particular ethnic minority will translate into a social time-bomb, as well, so the justification for such policies must be overwhelming. Wrt the Drug War, such justifications are seriously wanting.
CA recently amended the Family Code to define marriage as a union between a man and a woman. VVermont Will Soon Enact A Same Sex Unions Statute
Would the California initiative statute, if applied to ban recognition of a Vermont union between a man and a man, violate the Full Faith & Credit Clause of the US Constitution?
San Francisco's PC Prison
I've wondered about that myself. I'm no Constitutional scholar, but it seems likely that Prop 22 would be unconstitutional on those grounds.
Well, I didn't want an argument and could think of no sound one in opposition so I let the matter drop....
Discretion is the better part of valor when debating legal matters with Dyke Anthropologists.
Jex- was she swinging a labaris?
The fact is that certain criminal justice policies overwhelmingly affect particular ethnic minorities, and that this translates into a ticking social time-bomb. Thus, there needs to be some overwhelming justification for such policies if we are to continue running the risk of an explosion.
Neither of you really answered my questions. But I guess your open espousal of an I-think-with-my-heart-not-with-my-brain approach makes my point for me.
I made myself pretty clear. If a public policy has such an overwhelming disparate impact on one particular group, the burden should be on the government to provide substantial justifications for that policy.
Your presumption that the amount of incarceration needed to enhance overall well-being can be found as an objective, empirical quantity is flawed. The purpose of incarceration is punishment, and thus involves the taking of a right from the incarcerated. In order to justify the taking of a right, there must be an objective wrong by which the offender deprived another of his or her rights in some way. Punishment serves to balance out this wrong by depriving the offender of what we adjudge to be a just amount of his rights.
The problem with drug war is that the "wrong" is difficult, if not impossible, to quantify. The conventional wisdom, of course, is that drugs harm people therefore selling drugs ought to be severely punished. This of course ignores the fact that alcohol and tobacco cause overwhelmingly greater harm to our society, yet few are suggesting that we lock up the presidents of Anheuser-Busch and B.A.T. The problem with the drug war, and its affects on minority incarceration rates, is that it is no more than an expression of outrage at unpopular behavior, but with the authority of the State and the governmnet behind it.
Your second question goes to the heart of how a society decides to allocate resources; it has nothing to do with whether those two groups will compete for the same jobs. An irrational allocation of resources reflects irrational policies, and eventually will lead to an irrational distribution of labor. Take Moscow as an extreme example, where some of the world's best-trained doctors work as cab drivers and bankers because it allows them to make more money.
I loved this paragraph:
In addition, supporters say, prisoners offer the ultimate in a flexible and dependable work force. "If I lay them off for a week," said Pierre Sleiman, the owner of the T-shirt company at Donovan, referring to his workers, "I don't have to worry about someone else coming and saying, 'Come work for me.'"
Hmmm. This obviously has greater potential than we thought. I'm sure that Chinese companies feel the same way.
And from our fat pig of a former Attorney General:
"It's a problem for corrections officers to have prisoners without anything constructive to do," said Edwin Meese III, the former United States attorney general, who lobbies for expanded inmate labor as chairman of the Enterprise Prison Institute, a Bethesda, Md., research group financed by state grants, research centers and private companies.
Here's an idea, Ed: What do you say we end the Drug War and stop locking up so many fucking people for acts that don't harm anybody?
You're missing my point. As the first sentence of my original post clearly (or so I thought) indicated, my beef is not with your position that the drug war is bad -- which I share -- but with your rhetoric. One can criticize specific criminalization and incarceration policies on their moral and/or pragmatic merits, without resorting to much-more-sweeping appeals to emotion (as you did, in the post I was replying to).
I don't know how I could be more clear. That more black males are in California prisons than in universities is a fact, cold and clear. You call an appeal to "emotion." I call it an appeal to common sense. It is a carbunkle on the face of public policy that should call attention to a deeper underlying issue, which you agree is the folly of drug prohibition. If people are not allowed to point out troubling statistics when debating public policy, then I can't imagine how the interest of rationality in such matters is to be promoted.
MsIT,
The Supreme Court has granted certiori in the case of Ferguson v. City of Charleston, South Carolina. I have just read the 4th Circuit opinion, and think that it's a fascinating case that is likely to lead to a closely divided opinion, one way or the other. I would like to be able to link the opinion to this thread for discussion, but don't have the means to do so. Is there any way that we can do this?
I know that we have sort of had a discussion on the Drug War before, but I am still curious about your views on the topic. Do you support decriminalization or legalization?
I favor complete legalization.
Your "cold, clear fact" is akin to "there are more seeds in this apple than pips in that orange." It may be true; but what of it?
I'll ask again: why is this statistic troubling, in and of itself? I can see how it might be, emotionally; but in order for it to be rationally troubling, you must first believe something like:
a) at least x% of the population (or subgroup) ought to be in university
b) at most y% of the population (or subgroup) ought to be in prison
where
c) x >= y.
What are your x and y, approximately?
That's right Butch . . . er, I mean stumbo: you keep think'n, that's what you're good at.
I don't get the reference, sorry.
Wonkers:
Thank you, thank you. I'll be opening for Steven Landsburg at the U. of Chicago Yuk Yuk's, all of next week.
... Would either of you care to reveal your x and y? Or otherwise elaborate on your reasoning, if any?
It's terribly simple, so I'll try to use small words. Putting someone in prison has consequences quite apart from whether or not prison is a just punishment for what that person has done. It often leaves a child without a parent, for one thing, which has been shown to enhance the chances that the child will have trouble with the law, too. It also assures that the convict's opportunities for the future will be limited. Unless he's doing life, the convict will eventually be released into the community with no money and few prospects for building a gainful future. He is also likely to have been hardened by life on the inside, where the rules for survival are different than they are on the outside. If he's been in for a long time, he will have a hard time adjusting. The felony conviction that preceded his incarceration will bar him from numerous professions, so even under the best of circumstances, his future will be limited.
There is also the economic aspect. It costs about $30,000 per year to keep a person in prison, give or take a few thousand, depending on the state you're in. Add to that the social cost of an absent father or mother, the costs of law enforcement, courts, etc. Obviously, a person in college does not pose such a burden.
Some statistics:
Between 1990 and 1996 the real number of black men and women in federal prison for violent and property crimes decreased by 726. Despite these reductions in violent and property crime sentences, 12,852 black men and women were added to federal prisons for drug law violations over the same period.
Only 11% of the nation's drug users are black, however blacks constitute almost 37% of those arrested for drug violations, over 42% of those in federal prisons for drug violations, and almost 60% of those in state prisons for drug felonies.
All major Western European nations' incarceration rates are about or below 100 per 100,000. In the United States, in 1995, the incarceration rate for African-American women was 456 per 100,000, and for African-American men 6,926 per 100,000.
The United States incarcerates African-American men at a rate that is approximately four times the rate of incarceration of Black men in South Africa.
At the start of the 1990s, the U.S. had more Black men (between the ages of 20 and 29) under the control of the nation's criminal justice system than the total number in college. This and other factors have lead some scholars to conclude that, "crime control policies are a major contributor to the disruption of the family, the prevalence of single parent families, and children raised without a father in the ghetto, and the `inability of people to get the jobs still available.'"
The rate of imprisonment for black women is more than eight times the rate of imprisonment of white women; the rate of imprisonment of Hispanic women is nearly four times the rate of imprisonment of white women.
Given current rates of incarceration, three in ten of the next generation of Black men will be disenfranchised at some point in their lifetime. In states with the most restrictive voting laws, 40 percent of African American men are like to be permanently disenfranchised.
One in three black men between the ages of 20 and 29 years old is under correctional supervision or control.
At current levels of incarceration, newborn Black males in this country have a greater than 1 in 4 chance of going to prison during their lifetimes, while Latin-American males have a 1 in 6 chance, and white males have a 1 in 23 chance of serving time.
In 1986, before mandatory minimums for crack offenses became effective, the average federal drug offense sentence for blacks was 11% higher than for whites. Four years later following the implementation of harsher drug sentencing laws, the average federal drug offense sentence was 49% higher for blacks.
Regardless of similar or equal levels of illicit drug use during pregnancy, black women are 10 times more likely than white women to be reported to child welfare agencies for prenatal drug use.
In 1995, the incarceration rate for white and Latin-American women combined was 68 per 100,000. For black women it was 456 per 100,000.
Due to harsh new sentencing guidelines, such as `three-strikes, you're out,' "a disproportionate number of young Black and Hispanic men are likely to be imprisoned for life under scenarios in which they are guilty of little more than a history of untreated addiction and several prior drug-related offenses... States will absorb the staggering cost of not only constructing additional prisons to accommodate increasing numbers of prisoners who will never be released but also warehousing them into old age."
The results increased the sentences for blacks. I believe that the 100-1 cocaine base to cocaine powder ratio in the Federal Sentencing Guidelines is a work here, along with the mandatory minimums.
Lastly, I am afraid that the methods of enforcement also skew the statistics. With racial profiling, and the concentration of enforcement efforts at drug "markets" which tend to be located in minority neighborhoods, the chances of apprehension are greater for minority users than for whites.
As the crackdown on methamphetamine continues, especially here in the heartland, the disparity should shrink again. This is not something to cheer, it just means that whites will be swept into the draconian measures previously applied with relish to minorities.
A number of federal judges have been harshly critical of the sentencing guidelines.
What's the alternative to prison? Should crime be marginalized in order to keep black men and women in their homes?
One of our most distinguished judges on the local bench granted a reduction on a crack cocaine case based on the 100-1 base to powder ratio as racially based. Unfortunately he was overturned on appeal.
The "alternative" is to not criminalize consensual behavior. Our prisons have a grossly disproportionate number of non-violent drug offenders. This drug war destroys families and is a waste of public resources.
You still didn't answer my question. Never mind, I guess.
I support decriminalization rather than legalization, simply because I think some level of prohibition serves a deterrent effect and can be (though isn't) used to garner support for rehabilitation.
Almost all of the problems you identify in the Drug War are also applicable to those who suffer from drug addiction, though certainly to a lesser extent: poor or non-existent parenting, property crime (I obviously realize that w/o the black market crime would be reduced; given the extremity of certain addictions, though, it would probably still exist), disenfranchisement (though it would be "voluntary") and general social disruption. And, though you have written this argument off when I have made it in the past, I think that ending prohibition allows white suburbanites to ignore and villify urban minorities who would remain the most visible users of drugs.
I think that we need to revert to a rehabilitative approach to prohibition; abandoning it altogether might not improve much.
By the way, I have heard that, though the sentencing guidelines substantially reduce judicial discretion, they substantially increase prosecutorial discretion. It could be that bias among prosecutors accounts for the longer sentences for minorities.
Anything short of complete legalization will still leave black markets, and their resulting pathologies, in place. Minors would also still be able to buy directly from the street market, and drug use would be unnecessarily dangerous because of lack of regulatory and market controls.
I don't know what you mean when you say that you "think that ending prohibition allows white suburbanites to ignore and villify urban minorities who would remain the most visible users of drugs."
Lastly, if we required that all arms be registered but did not restrict their ownership for non minor, non-felon, and sane citizens, would this offend the second amendment. Finally, what is your view of Gov. Pataki's effort to require ballistic ID's for firearms?
What do you know about this? Where would one find such figures?
Given your cost estimate, I'd say the student's claim regarding the higher costs of the death penalty seem suspicious. Perhaps the costs of the equipment is not spread over its life properly, or perhaps the cost of the equipment is very high?
I've seen that claim made, as well. They are usually referring to the extra judicial resources expended in a capital case, including the numerous appeals.
How is this unique to capitol offenses? Anyone is free to appeal any case, and frequently do. That the appeal and review process is costly all along the pipeline is one of the consequences of our anglo judicial system.
I'd like to get ahold of some real numbers now. This sounds completely bogus to me.
It is unique to capital cases because there are so many more appeals, both federal and state, often brought by non-profit groups, whether the defendant wants it or not. In many states, any death penalty verdict is automatically reviewed by the intermediate court, whereas a non-capital rarely is appealed at all, especially ones resolved by a plea bargain or guilty plea, which are the majority.
Only if other cases are being shut out would one say that the costs associated with the appellate system are predominately associated with the death penalty.
There still are costs associated with the use of appellate courts for these cases. Many states, such as Florida and California, have regional intermediate courts, and could probably have a smaller number of regions without death penalty cases. Similarly, Pennsylvania has 2 intermediate courts with a Byzantine system to determine which types of cases goes to which. It is possible that there would be only 1 without such cases. Also, many states have many intermediate judges, only 3 or 5 of whom sit on any panel. Without such cases, there could be fewer judges on such courts. All of these are the sorts of costs used in making those claims, I think.
I feel it's kind of spurious, as well, but I am just explaining the logic.
That's my understanding, as well, that it costs more to execute someone because of the costs of appeals, etc. Florida has a full-time public defender's office that is exclusively dedicated to handling capital offense appeals.
I don't have a cite, right now. Very busy. I would suggest doing a law journal search on Westlaw or Lexis to find some kind of information on that.
I have to run.
http://www.essential.org/dpic/costs2.html
Sorry, have to work on my html skills.
I tried to do it following the html guidelines but messed something up and the spacing wouldn't behave.
"For the states which employ the death penalty, this luxury comes at a high price. In Texas, a death penalty case costs taxpayers an average of $2.3 million, about three times the cost of imprisoning someone in a single cell at the highest security level for 40 years. [3] In Florida, each execution is costing the state $3.2 million. [4] In financially strapped California, one report estimated that the state could save $90 million each year by abolishing capital punishment. [5] The New York Department of Correctional Services estimated that implementing the death penalty would cost the state about $118 million annually. [6]"
Of the six citations referenced 5 (cites 1-5) are from newspaper articles. Not to disparage journalists, but I think more concrete methods of determining costs is warranted when making such claims.
Call me picky.
So either all the non-profit groups and other legal advisers working pro-bono just up and disappear, wiping their hands of the potential injustices done to prisoners wrongly sentenced to life imprisonment--or the costs will still be there.
If the costs are still there, I suppose we'll have folks arguing that it is less expensive to put someone in prison with the parole option than without, or some such.
If the costs aren't there, it means that the non-profit groups have gone onto some other, more glamous cause, now that the states aren't killing anyone. If that's the case, then it seems that poor people are actually better off with a death penalty that attracts interest of competent do-gooders.
I know that. But my point is that either the costs are still there even without the death penalty, or the only way that the poor have a chance at someone caring about them is with the death penalty.
The only way costs would go down, given the equation the rhetoric relies on, is to offer less review, once the death penalty goes away.
Which suggests that much of the poor population now on Death Row would get less justice, not more.
I am not sure. There would be less money to spend on defending all persons, but if enough of the massive amount of resources channelled to the few death penalty cases were distributed around the system, then the average defendant may get somewhat more resources devoted to his case (I don't know if my assumption would hold true, as it is very likely that the states would not use any of these resources for criminal defense, nor that there would be much charitable contributions to defense in that case).
it is here: http://www.uscourts.gov/dpenalty/1COVER.htm
I believe you. I haven't had time to investigate the site, but their main study is the one I quoted from. There are some legislative studies cited in that one, but nothing which helps us understand how costs are computed.
As a first pass, I'd say any study that assumes all costs associated with the death penalty would be a savings, underestimates the costs associated with the system generally. In addition, costs associated with keeping these high security prisoners incarcerated must be included. There are several issues related: if we eliminate the death penalty, what do we do with prisoners sentenced to life who kill guards or other prisoners? Do we build special, self-contained cells?
Are there increased costs associated with increased security needs? Are there increased security needs to begin with?
In addition, there are costs supposedly associated with increased time to try capitol murders seeking the death penalty. What would happen to these staffs? Would they be eliminated? I've yet to see government services (like a state judicial system) actually close shop if one of their tasks is eliminated, rather they simply shift activities to other areas. Is this a cost saving then, or simply a reallocation of resources? And what would these resources be directed toward?
I don't know enough about this area, but am suspicious of any claim that costs would actually decline when government activities are involved.
A sad story from the nation of incarceration.
I don't doubt that the resources could be used elsewhere, my main issue is with whether the cost savings are really there to begin with.
And I seriously doubt there'd ever be a return to the taxpayer of any freed resources, regardless of how small, or large.
I don't doubt that the resources could be used elsewhere, my main issue is with whether the cost savings are really there to begin with.
And I seriously doubt there'd ever be a return to the taxpayer of any freed resources, regardless of how small, or large.
Anyway, I'm also not sure whose confidence would be renewed by removal of the death penalty. Do you mean by providing better legal services to the poor? Or do you mean that by elimination of the death penalty, people would have greater confidence in the justice metted out?
If the latter, I would think there'd be as many people losing confidence as gaining it by omitting death sentences.
Making cyber hate a crime
Local extremists have good reason to
move their Web pages offshore, writes
Joseph Kerr.
PUBLISHERS of Australian Web sites who
incite racial hatred or encourage
cyber-stalking may be liable for criminal
prosecution.
David Fraser, a senior lecturer in law at the
University of Sydney, says the anti-vilification
provisions in the NSW Anti-Discrimination
Act allow for criminal prosecution for inciting
racial hatred on the Web.
"If a Web site exists in Australia, there's no
reason why traditional anti-vilification laws
can't be applied," he says.
Section 20C of the act makes it "unlawful for
a person, by a public act, to incite hatred
towards, serious contempt for, or severe
ridicule of, a person or group of persons on
the ground of the race of the person or
members of the group".
continued:
required to extend the anti-vilification
provisions to material published on the
Internet. However, he believes the
effectiveness of the legislation is in question:
"The legislation is not generally punitive ...
it's more based on education and arbitration.
And only when these things are exhausted is
there any [criminal sanction]."
Anyone convicted of racial vilification under
Section 20D of the act faces up to six months
in prison - but the Attorney-General must
agree to any prosecution under that section.
continued:
publishing on Web sites in the United States,
where they can shelter behind constitutional
guarantees of free speech which are much
stronger than in Australia.
Cyber-stalkers may also be liable for
prosecution under the NSW Crimes Act,
according to Fraser, who says section 562AB
of that act -designed for domestic violence
cases - may be extended to allow prosecution
for cyber-stalking. He says there is a
possibility that if someone was being
harassed in a personal campaign on a Web
site, action could be taken under the stalking
provisions.
But he believes it would be difficult to mount
such a prosecution if the offending Web site
was based outside NSW. Fraser also sees the
possibility of prosecutions of Internet service
providers whose servers carry race-hate sites.
"The idea is to make the provider responsible
for the hate speech that appears on their
service and force them to shut down their
relationship with the customer," he says.
pseudoerasmus,
I agree.
It's not just freedom from state interference in private lives. It's everything. American lives are more regulated not just by state actions, but also by political correctness and corporate prerogatives. Americans are simply not as free as popular legend would have them.
The USA is not less laissez-faire than countries in SE Asia. Where did you get that idea?
Canada, Australia and the UK are also oppressed by political correctness.
No, PC is not yet a legal restraint. But that's the problem with you people. You apparently think that if there is no formal, legal and institutional restraint, then there must be freedom.
But in places where the employee has equal power with the corporation (for example, in my area), a good economy makes things about as free as it gets anywhere in the world.
I don't understand the bit about PC demands affecting freedom.
You may be curious to know (if you don't know already) that Canada's Charter of Rights is a rather peculiar instrument. All of the rights and freedoms protected in it are subject to section 1 of the Charter, which allows these freedoms to be subject to "such reasonable limitations as can be demonstrably justified in a free and democratic society." Moreover, the Charter contains a notwithstanding clause, which can be invoked by the federal and provincial governments to override the Charter. Hence, Quebec's language laws, which require that French be predominant on every commercial sign in the province -- including Montreal's Chinatown, for example.
Pseudo,
I agree that strident polical correctness tends to thrive in most Anglo urban settings. Still, I tend to associate it with university students and funky downtown enclaves. In Toronto, for example, political correctness is far less tolerated the closer you get to the suburbs, more upscale neighborhoods, or downtrodden locales.
Jones,
The problem with section 1 is that it tends to lead to some rather subjective decision making, very often divides the Court, and fosters unduly lengthy judicial opinions. Courts not only have to articulate the subject matter of rights but also go through the exercise of deciding what amounts to a reasonable limitation on those rights. You know the old joke: every time a statute uses the word reasonable, lawyers everywhere make bundles of dough. Hopefully, Charter adjudication will become somewhat clearer in the ensuing years. (The Charter only dates to the eighties).
It's pretty clear that the law on harassment under Title VII has had a gross effect of censoring speech in the workplace. As Stossel pointed out, "the most sensitive among us get to determine what speech is acceptable." I have to agree that it's problematic.
Seems reasonable to me...
ka-ching $$$$
Well, Jonesatlaw, for one, you can't even see "unedited" films on regular television in your great fucking country of the USA. (Yes, I know it's not because of state restrictions.) You can't tell certain kinds of jokes. How about the miserly two-week vacations? Yes, one has more freedom if one is not indentured to work. (Why anyone who has the option of working somewhere other than the USA, continues to work in the USA, I have never understood.) Except in this economic boom time, people are afraid to change jobs because of healthcare. Amazingly high drinking age. How easily one's property is seized if you are caught with a relatively small amoung of drugs. How more and more Americans are compelled to live in cul-de-sacs containing three dozen identical houses, found off 50-lane "roads" with no crossing lights and no sidewalks, but with plenty of 30-screen cineplexes, hangar-sized penny stores, a choice of 18 chain restaurants; from these isolated cul-de-sacs with no cultural life these Americans commute to work located 20 miles down the "road" at "industrial parks" in order to remove themselves still further from human contact.
As often as not, the rich and the poor meet in attitude...
Of coures it does. You're just conditioned to behave under such as restraints that you don't recognise the unfreedom.
But in that case, any social norms are a restriction on freedom. I see no reason to think that certain class expectations of PC behavior (which you also overstate), is any worse than the restraints of social norms in other countries.
Lady,
Oh, sure. But that's hardly a dreadful restriction--and it will come around again. As it is, we mock these restrictions constantly.
You start to miss things like the functional telephone system, reasonable credit, and cheap gas.
As a freelancer, I suppose that you can afford the luxury of mocking harassment law. For most schmucks, it's something they have to be increasingly careful of.
Jones,
Gimme' a break. The sort of speech that Title VII restricts is quite distinct from calling the boss a "bozo," or impugning your company's reputation. Title VII has come to regulate what used to be casual discourse between individuals in the workplace.
Yeah, but most of us who want them have cable.
"You can't tell certain kinds of jokes."
True.
"How about the miserly two-week vacations?"
I agree.
"Except in this economic boom time, people are afraid to change jobs because of healthcare."
I had thought workplace mobility had been increasing even before the boom.
"Amazingly high drinking age."
Damned straight.
"How easily one's property is seized if you are caught with a relatively small amoung of drugs."
Annoyingly true.
"How more and more Americans are compelled to live in cul-de-sacs containing three dozen identical houses, found off 50-lane "roads" with no crossing lights and no sidewalks, but with plenty of 30-screen cineplexes, hangar-sized penny stores, a choice of 18 chain restaurants; from these isolated cul-de-sacs with no cultural life these Americans commute to work located 20 miles down the "road" at "industrial parks" in order to remove themselves still further from human contact."
This is silly. No one is "compelled" to live like this. Almost every major metropolitan area has an artier area with more architectural variety where it is possible to live usually cheaper than in similar areas in Europe. It is just that living in the burbs is *cheap*, gives you one hell of a lot of space (I had a visitor from Korea in my house this summer, who said that my very modest suburban ranch dwelling with a comparatively small yard would sell for over a million dollars in Korea), and it is safe place to raise kids. Americans by and large *like* shopping malls, multiplexes, chain restaurants, and the like. You are free to chalk this up to bad taste if you like, but to describe it as a "lack of freedom" doesn't make sense.
You're joking? Money, for starters. If you're in demand, you'll have a much better life here than anywhere else--the French and the English might treat their masses better, but they apparently do that at the expense of the highly skilled. Who say "fuck you" and come here, in large numbers.
Flexibility--jobs aren't that hard to come by. If you don't like your job, you can find another.
Then there are the intangibles. The knowledge that you can fire at least 50% of the useless shits that work for you if they don't perform. The knowledge that your abilities and ambition have at least a fighting chance of being rewarded.
Lord, I can't see why anyone with talent would work anywhere but here.
Message # 601 Maybe because the rich and the poor have much more freedom than the middle class.
But the USA has the usual norms, and then some more. For example, people in the USA are prone to suspecting others of sexual deviancy. What ever happened to that case of a mother who decided to photo-document basically her whole life, including scenes of her young daughter nude and bathing? The photo-developing shop called the police on her and she got arrested.
# 605
I'm not talking Zaire. Many countries have those things (except cheap gas) and one is still freer.
As a freelancer, I suppose that you can afford the luxury of mocking harassment law.
No, I understand the limitations. But it is mocked regularly in all of our major entertainment genres. It's just a temporary thing--at some point, the pendulum will swing back.
Just know that it is a distortion. All of those components certainly do exist in various suburban settings, but it is quite easy to choose other types of surroundings.
But the USA has the usual norms, and then some more.
No, we have other norms that are far less repressive.
Rask raises another point I was going to make--you might bitch about our movie editing, our drinking ages, our drug laws--but they are imposed by us, not the government. If enough people wanted to see Eyes Wide Shut on NBC, it would happen. If the drinking age were sufficiently onerous, we'd drop it. If we didn't like the suburbs, we'd all build cities.
So the majority of Americans want the restrictions that you scoff at, which is why we have them. What makes us freer than average, I think, is our ability to dump the restrictions we don't like without worrying that our government leaders will disapprove. This fluidity is not the norm in other countries, I think.
You find the American lifestyle stultifying and boring. Fair enough.
No, that's not what I said. I said that Americans are less free to do a variety of good and desirable things.
However, it is the result of free choices of Americans.
It is not a totally free choice. Urban planning in the USA, it seems, is for concentrating the maximum number of people around strip malls and other commercial developments. In fact in many cases it's commercial developers, not normal human beings, which determine how and where millions of Americans live. Just because Americans are not literally compelled to move to such places, doesn't mean that the menu of possiblities hadn't been rigged and restricted by someone else earlier.
Raskolnikov, your objection on the same basis is answered above as well.
#608
But as far as I know, in the 100-channel wasteland that is cable, only the premium channels showing the newest releases are "unedited". Nonetheless it is definitely less freedom to have to pay between $30 to $80 a month just to see Uma Thurman's mammary amplitude in Dangerous Liaisons.
Actually, the choice of developing a new location is first made not by the commercial developers, but rather by the homeowners (and to a lesser extent the homebuilders). The commercial uses are never the first thing into a new area, but rather require a population base to support them. The American people strongly desire (and have ever since WWII) to own a single family house on a large lot, preferably one that has never been lived in before. The government subsidizes this choice in many ways, through the home-owner's exemption and road construction mostly, but the decision to expand the suburbs indefinitely has been that of the homeowner.
You're joking? Money, for starters. If you're in demand, you'll have a much better life here than anywhere else....
Hence, the principle. Study in the USA. Work in the USA. Make lots of money. Then run.
As for better life, one is likely to make more money in the USA, but you'd have a better time spending it elsewhere. But that doesn't have anything to do with freedom.
the French and the English might treat their masses better, but they apparently do that at the expense of the highly skilled.
My dear Calgal, the English don't belong in your sentence.
Flexibility--jobs aren't that hard to come by. If you don't like your job, you can find another.
Spoken like someone with no knowledge of business cycles....
#614
No, we have other norms that are far less repressive.
Than Iran, I agree.
Rask raises another point I was going to make--you might bitch about our movie editing, our drinking ages, our drug laws--but they are imposed by us, not the government. If enough people wanted to see Eyes Wide Shut on NBC, it would happen. If the drinking age were sufficiently onerous, we'd drop it. If we didn't like the suburbs, we'd all build cities.
I've already pointed out that most of the restictions I've been talking about are not state restrictions. See #583.
So the majority of Americans want the restrictions that you scoff at, which is why we have them.
Yours is of course the same principle by which one could say that if enough people didn't like the freedom of speech, there might be enough support to repeal the first amendment. The point is, it's the minority that's always affected by the absence of certain freedoms.
But I don't agree that all restrictions exist because the majority approve of them. The abortion of the new suburban planning is just an example.
I will provide evidence to the contrary of your first two sentences, after this weekend.
I have often wondered if such a system of externalized costs really engenders freedom of choice, or whether, as PE suggests, it merely predetermines the choices on a very narrowly defined menu.
Well, this is a more valid point. But I would still argue that other types of development are widely available for prices that are the cheaper than those in Europe. The mere fact that land is so cheap in the US gives us a lot of freedom that Europeans don't have.
"But as far as I know, in the 100-channel wasteland that is cable, only the premium channels showing the newest releases are "unedited". Nonetheless it is definitely less freedom to have to pay between $30 to $80 a month just to see Uma Thurman's mammary amplitude in Dangerous Liaisons."
Several non-premium channels don't have commercial interruption, and a smaller number (Sundance and IFC) are not edited. But I'll make another argument, and say that US network TV, in all of its edited and censored glory, offers a much better and broader selection than the foreign network TV I have seen. The British Networks, for instance, may not edit American movies, but they show damned few of them, and have much worse programming. I thought US networks were bad until I lived in England...
When I talk about restrictions on freedom, I do not mean only state restrictions on freedom.
I'm not talking about Zaire or Bolivia or Papua New Guinea.
#616
I have not ONCE criticised the "dominant aesthetic tastes", though I do criticise these often enough, in other contexts.
Be my guest. I work in the field, and can give you plenty of examples of far-flung housing developments that are built without any stores, shopping centers or other commercial development, which is only added later. Further, I know from personally sitting in on numerous such meetings that the first item any business looks at to decide where to locate is the number of people in the surrounding area, followed shortly by their income levels. People do not move to be near shopping; stores locate to be near people.
But this is exactly the opposite of what you originally said: "Why anyone who has the option of working somewhere other than the USA, continues to work in the USA, I have never understood. "
As for better life, one is likely to make more money in the USA, but you'd have a better time spending it elsewhere.
That's a value statement--and one I disagree with. But then, I am a heathen and a materialist.
Spoken like someone with no knowledge of business cycles....
No, I do have a very minimal knowledge of business cycles. But given that you were (whether you knew it or not) speaking only of highly skilled workers (people who have a choice), I think it is fair to say that skilled workers in the US have always had more options than skilled workers in any other country, taken as a group. When we have downturns, it is tougher, obviously. But no matter how bad things are, the skilled worker generally doesn't suffer too badly and has more flexibility in job and working choices than in any other country I can think of.
The point is, it's the minority that's always affected by the absence of certain freedoms.
Yes, but I'd say in America, everyone is in a minority at one time or another. Whereas other countries, the minority tends to be somewhat rigidly defined.
The home-owner's exemption is neutral as to what types of development occurs, though it favors ownership over renting. You are entitled to it, whether you buy an existing house in a city or a brand new "McMansion".
The road building certainly does subsidize new suburbs, although some have argued that its role is reactive (i.e., little is done before the suburbs already exist to some extent).
"I have not ONCE criticised the 'dominant aesthetic tastes'"
What would you call this?
" from these isolated cul-de-sacs with no cultural life these Americans commute to work located 20 miles down the "road" at "industrial parks" in order to remove themselves still further from human contact."
This certainly implies that part of your criticism is based on the quality of choices that people make.
And my hackles aren't raised.
I do think you made several good points, and I don't think most of us are equipped to compare US freedoms with those in other countries, but I do think you seriously underestimate some offsetting freedoms that Americans have in greater abundance.
I generally agree with your points. However, I have noticed that some of the most ardent defenders of the "American way" are themselves immigrants.
Well, that description is certainly pejorative, but again, the point of the description was to show that people's residential choices are becoming more restricted.
No, I didn't underestimate the offsetting freedoms. I mentioned that the USA has more economic freedom than Western Europe, probably more than all other developed countries. And that's a good thing. But still....
Dantheman might be best equipped to answer the question, since he is in the field. There seems to be some sort of (imo welcome) Jane Jacobism taking hold in some suburbs.
I am not seeing this in Minneapolis. We are still sprawling. There is a trend toward *upscale* strip malls, with a fountain, an Italian deli, a breadmaker, and a coffee shop, but malls are still pretty big. Of course, we are the home of the shopping mall, and it gets too damned cold to shop outside several months of the year.
In the seventies and eighties there was a rush of people out of the cities and people who grew up in suburbs would rarely consider transplanting themselves to the city. Much of this was a reaction against the danger and decay that seemed to bring down many cities at the time. Now, though, as cities become more adept at controlling their problems (reinvigorated downtown cores, crime reduction, etc.) city life is becoming more palatable; and the stereotypical suburban life is becoming less appealing.
It's a rather mixed bag. Some cities, including my Philadelphia, have been trying, with some success, to recapture the upper income people by creating areas which will be attractive to them, including special services and extra policing. On the other hand, the flow of middle income people from the cities has not stopped. Also, a lot of the upper income people tend to leave the cities once they have kids, as they want the yard space and better schools.
Another factor is the jobs location. Many office jobs have left the cities for suburbs, to reduce taxes and cost of renting office space. Also, as new office space is built, clean suburban land is preferred rather than reusing old urban industrial sites, with the added cost of cleaning them. Their employees tend to follow the jobs into the suburbs.
Of course, cities are becoming more suburban and mall-oriented themelves, so my above observations may be moot.
Many office jobs have left the cities for suburbs, to reduce taxes and cost of renting office space.
This, too, is changing in SF. It is certainly why they are upping the number of upscale apartments in the City. These are generally singles and dinks who will then move back out to the suburbs when they have kids. But for now, they think it's cool to be able to live and work in the City.
I don't know how representative SF is, though. Office and apartment rentals are both expensive--it's just that everyone is currently very well off.
You previously mentioned the alternative of living in Minneapolis's tony part. How long has it been tony? Philly has had several areas become tony in the last few years, especially Manayunk, which was a wasteland 10 years ago, and the area near the Art Museum north of Spring Garden Street, which was working class rowhouses 10 years ago. Yes, the suburbs are still expanding, but new tony areas are being built in the cities, too.
I should have said evidence to contradict your first sentence in #617, not also the second sentence.
I didn't say everybody lives in these strip-mall-environments. I said more and more are doing so.
I also didn't say there were no unblighted residential developments.
But the general trend is otherwise.
I know from personally sitting in on numerous such meetings that the first item any business looks at to decide where to locate is the number of people in the surrounding area
Of course businesses must take into consideration the population of the larger area. No one said you can build a mall in the Sahara and the folks will follow.
Whether businesses follow or lead householders (and I'd say both cases exist amply), the outcome is often the same. Zoning and suburban planning are such that even suburbs originally without strip-mall blight is converted by development into strip-mall blights. When more and more suburbs are thus blighted, the menu of residential options becomes more restricted, even if businesses have come to where the people are.
I suspect SF is representative enough, as the same thing is going on to some extent in most big cities I know to some extent (say, Philly, NY, Boston, Chicago, DC -- Baltimore's still an exception). Many of the upper income city dwellers also work there and want to avoid the commute.
Most of the big cities haven't lost downtown office jobs (Philly is an exception), but most of the recent job growth is in the suburbs. I suspect (but don't know) that if you compare the amount of top-quality office space in SF to its suburbs over time, the city has grown slowly, but the suburbs have grown by leaps and bounds over the last 20 years.
Dantheman,
Well, I gather many people are forced out of the city because of the expense involved in buying or renting a house or apartment when space is at a premium. I personally find it strange when a suburb reaches a size of 200,000 people or more and lacks a distinctive downtown core and the eclectic charms of a city. And I think that many people share my feelings in this regard. Hence attempts to create a faux downtown, or, recreate other aspects of city life.
Incidentally, I grew up in a suburb of a suburb which was, in turn, incorporated as a city/municpality of its own; and was named after a real estate development company to boot.
Oh, it's growing still in the suburbs, of course. What is interesting is that there is any growth at all in the City. For years, there was almost none. But recently they have started to add both office space and lovely new apartment complexes. That's what is new.
At least for the past couple of decades. There are some parts of town that the city has focused on revitalizing (mostly downtown), but Uptown has been hip for quite a while. Almost every part of town which borders a lake is one of the trendier parts of town.
Unfortunately, I suspect you haven't seen recent building trends in the Philly area. Places like Collegeville, Yardley, Newtown (Bucks County), Blue Bell, Marlton NJ? Yes, there were small existing communities there, but they are being drowned out by the McMansions. There are nice older suburbs like Bryn Mawr, Elkins Park, and Drexel Hill, but that's not where the new development is going on.
645, I don't disagree with much other than the issue of which came first.
I suspect very few people leave cities because the expense of buying or renting a house goes up, although some booming cities (Phoenix? Las Vegas? San Antonio?) may conceivably fit that mold, simply because staying put usually costs less than moving. New housing is usually way more expensive than used (a rule of thumb I've heard is that the value of a new house drops 10-15% when the first resident moves in).
People usually leave the city due to reasons other than housing costs, frequently crime or schools, sometimes to reduce commuting to a job. Taxes can play a role (and has in Philly), too.
During the late s70s and the 80s there was considerable office development in the SF burbs. The driving forces for such growth were similar to those elsewhere (cheaper land, growth encouraging development regulations etc) but in SF you need to factor in City development policies that limited the amount and height of new office buildings. These limits forced office developments, that would have preferred an SF location, to locate in the burbs.
Job growth in SF is considerable but the shortage and cost of housing is pushing residential development further out. People are moving so far out that a 90 to 120 muinute commute in their single occupancy car is not all that unusual.
Did anyone read Ferguson v. City of Charleston?
The one thing about the City, though, is that it is really the only place that has a decent amount of upper-income apartment complexes. In the entire South Bay, for example, there are only three apartment complexes with rentals over $1500/month. And there's only two that I can think of from Mountain View up through San Mateo. Occupancy is at something approaching 99%, too.
So I think SF sees a growth opportunity, and one in keeping with its basic demographic.
And the increase in SF startups is quite new, actually. For years, startups were the domain of South Bay, mid-peninsula--and occasionally up in the North Bay (San Rafael).
It's an interesting development, but I certainly wouldn't think that SF is all that typical.
re Message # 656: I read the majority opinion but only skimmed the dissent.
I thought the reasoning interesting. Of course, the right to privacy claim was bound to fail, IMO.
Austin is another market where the price of housing in the central city is equivalent to, or higher than that in the surrounding suburbs. In part, this might be associated with the fact that it is the capitol of the state, with a large number of temporary residers that fluctuate with government sessions, and the fact that it houses a major research university that draws thousands of students to the area, all seeking housing that is centrally located.
I take it, if you were using proper English, you would have written "Pseudoerasmus needs to support some of his assertions with evidence". As is your sentence sounds like my assertions deserve applause and backing from people.
Which assertions are these?
As for assertions that need some support (evidence), I believe you've yet to support one of them with any hard information. I would settle for some clarity on what you meant by freedoms, what you suggest others have that the US doesn't, and what comparisons you have in mind (some of those dozens of countries you aluded to).
freedom = the ability to do what you like
there is less of it in the USA than in Western Europe, except in the ability to set up and run businesses
As for freedom = the ability to do what you like, tell us more about what so many others can do that cannot be done by the average, dumbstruck American. I await your more cosmopolitan wisdom.
You also suggested you were talking about countries outside of Western Europe.
Btw, the legal drinking age of various countries is something I personally have never been interested in discovering, and would dispute has much to do with "freedom" in any significant sense of the word. But then, perhaps it is one of your key indicators.
570. pseudoerasmus - 3/24/00 12:27:11 PM
Americans bleat endlessly about how much freedom they have, when in fact they have rather little compared with dozens of other countries
Here I was expecting something much more earth shattering than the ability to drink at 16 and the ability to watch "unedited" television (whatever that might entail).
I admit the generous vacation policies standard for companies in many Western European countries is to be envied, however.
Those are certainly some of them. I've named others.
You also suggested you were talking about countries outside of Western Europe.
That's because of your poor language skills.
I recommend a more thorough reading of the Ferguson dissent, which lays solid groundwork for a reversal, imo. Apparently, the factual circumstances were not as clear as the majority suggested.
pseudoerasmus,
One of the points I wanted to make wrt the standard of living in European cities: In Prague, we have a spacious apartment in the city, as well as a log cabin on three acres of rugged forest about twenty-five minutes west of the city. This is a fairly typical standard for middle-class Czechs (although few have as large a plot for their weekend cottages - ours is unusual because almost none of it is good for gardening). This European notion of having a workaday abode in the city with a small weekend cottage in the country has never caught on, here, except among the elite of big cities like New York, where people have places in the Hamptons, or Los Angeles, where a number of people have cabins in the San Bernardino Mountains. But even in L.A., the workaday norm is a place in the burbs, which have pretty much devoured the countryside.
I wondered if you had any thoughts on this. Does the middle class of the Asian subcontinent follow a more European trend, or do they prefer something closer to American suburbia?
I skanned the dissent and saw the challenge to the factual record used by the majority. I'll examine it more closely latter this weekend.
Btw, I've made it to the final round of the advanced moot court competition. Zero hour is Tuesday evening.
It also seems that my law review comment has a prayer of getting published. I'll know more about that in a couple of weeks.
Keep your fingers crossed for me!
Thanks.
But that still doesn't make your comments any weighter.
Congratulations! On both.
I would say that the "suburb" is primarily an American notion.
your notion of "freedom" is juvenile considering the nature of this thread.
That's because you're an idiot. I'm talking about the freedom to do things as one sees fit. There are restrictions on those everywhere, but there are more of those in the USA than in most Western European countries, except in the sphere of economic freedom.
I assumed that you were going to argue that there were restrictions on individual liberty in the US that were something other than self imposed.
None I have talked about are self-imposed, if by "self" you mean individuals.
Political correctness is a tempest in the academic teapot. The chilling of "free speech" in the workplace is equally nonsensical.
You lack perspective. American society, at least urban society, is pervasively PC.
The workplace has always been a forum for the employer only. We hear the parade of horrors concerning a hostile work enviroment, but precious little actually results from court action. Mostly the actual restrictions come from over-anxious human resources departments, happy to find another way to insure their value to the company by blowing up the issue into a boogeyman to scare execs and obnoxious employees.
And insofar as that is true, that's less freedom.
I have mentioned a lot more upthread. Here is a running tally at the moment, but they're enough.
all manner of "voluntary" censorship on radio, television and cinema-none of which is effective to restrict adult access to whatever one wants.
short vacations-granted
inability to move about unmolested in certain quarters of most large cities-overstated. If one is restricted to walking or public transportation, the case is stronger. Even so we are talking about a rather limited number of cities, and certainly not the majority of the population.
higher liklihood of being accused of sexual deviancy, for example, if one takes a photo of one's child in the nude. The likelyhood of this is small. What evidence is there of this other than several aberrant anecdotes? Sexual deviancy is almost an oxymoron in some areas of America. Witness the Sisters of Perpetual Indulgence, Mardi Gras, Las Vegas etc. We do not have the attitude of Europeans towards "sex workers" etc. We are more puritanical than most developed nations with regard to sex, but its hardly the middle east here.
political correctness, which restricts personal freedoms in multiple ways- Which you have claimed is endemic to the Anglophone world. I would argue that it is concentrated in social strata and institutions you are most immersed in. There are a wealth of non-PC institutions and businesses doing quite well all over America, thank you. Hooters lives and thrives, as does Easy Rider magazine, Low Rider, and the Sturgis motorcycle rally.
a restricted menu of residential options I would argue that they are less restricted than Europe, even though the majority preference for suburbs doesn't suit your taste.
many Americans fear changing jobs lest they lose healthcare insurance less of a worry than you might think. McDonalds offers health care to permanant employees in my city.
higher likelihood of having one's property seized for possession of relatively small quantities of drugs Civil forfeiture is a problem area. However, you overstate the reach of forfeiture. Only property used in the transport or manufacture of drugs, or purchased with its sale is subject to seizure. If the amount is small, the chances of seizure of one's home or vehicle is extremely small.
being monitored at work For what? Foreign employers don't monitor their employees? Be more specific
higher likelihood of being sued for a variety of alleged offences Meaningless generalization. It also means greater access to the courts to sue others for wrongs done to you. Certain suits are far easier in other countries. Witness Britain's recent history regarding libel.
overzealous work-place harassment rules & laws another meaningless generalization. Some specific evidence please.
anti-sodomy laws in some states granted that they exist. Since both partners are assumed to consent, enforcement is academic.
Pseudo:
You're really being quite goofy with most of your sniticisms.
So you can see tits on Italian TV. Whoo-hoo. And the Arnold Schwartzenegger film Predator is banned in Germany.
For god's sakes, be serious.
all manner of "voluntary" censorship on radio, television and cinema-none of which is effective to restrict adult access to whatever one wants.
But it's certainly annoying. And it's still restrictions on freedom.
By the way, you can get pornography in Iran also, if you know where to find it.
inability to move about unmolested in certain quarters of most large cities-overstated. If one is restricted to walking or public transportation, the case is stronger. Even so we are talking about a rather limited number of cities, and certainly not the majority of the population.
Please, I am talking about walking and generally moving about without armed escorts.
Limited number of cities? Yes. But I can assure you that any German or Japanese can walk in any part of any German or Japanese city without problems. Can't say the same about Americans.
higher liklihood of being accused of sexual deviancy, for example, if one takes a photo of one's child in the nude. The likelyhood of this is small. What evidence is there of this other than several aberrant anecdotes?
The number of incidents is small, but the fact that they happen at all, and the effect they have on behaviour, reduce freedom.
Americans also have to be cautious about their neighbours snitching.
We are more puritanical than most developed nations with regard to sex, but its hardly the middle east here.
I will certainly concede the USA is freer than....Iran.
I have nothing against suburbs if you're talking about Rye, NY or Chestnut Hill in Philadelphia, or even Bethesda, MD -- which actually has small streets, sidewalks, shops not the size of airports, and a walkable environment.
It's the strip-mall-suburbs I've been talking about, like Rockville MD or places in northern Virginia.
Most of you have assumed that I'm being anti-American and mocking American tastes. But I'm not. I actually think better of American tastes than you give me credit for. For I dispute that the majority preference in the USA is for these strip-mall-sidewalk-less-surburbs where one lives in McHouses; commutes by car to work in McOffices located in "industrial parks" barely distinguishable from strip-malls; and shops in small city-states filled exclusively with hangar-sized chain stores. More and more Americans have no choice but to live in these places, partly because more human alternatives like Bethesda or Rye are for the rich, partly because they lack influence over the urban planning & zoning decisions of their communities.
As for residential options in Europe, they are really only restricted in terms of size (in some countries only). Most European cities have fairly leafy outskirts available, if more greenery is what one wishes.
A few cities in Europe have become unaffordable for ordinary people to live in, such as Paris, but that's an exception.
many Americans fear changing jobs lest they lose healthcare insurance less of a worry than you might think. McDonalds offers health care to permanant employees in my city.
There's an economic boom going on right now, and an increase in benefits to attract people.
The innovation of reading employees' email or monitoring their Web-serving has not yet come to pass.
Meaningless generalization. It also means greater access to the courts to sue others for wrongs done to you.
True, but I'm talking about what is often called "frivolous" lawsuits, as well as ludicrous punitive damanges. These problems are simply not part of the discourse of European politics, even though the right to sue exists.
Witness Britain's recent history regarding libel.
Yes, the UK certainly restricts freedoms, especially of press and of speech, more than the USA.
overzealous work-place harassment rules & laws another meaningless generalization. Some specific evidence please.
Ask Ladychaos, he seems to know a lot about these things.
anti-sodomy laws in some states granted that they exist. Since both partners are assumed to consent, enforcement is academic.
But cases of enforcement do exist, especially when prejudicially applied to gays in the south.
Germany does ban certain things, such as the open denial of the Holocaust, but I'm sure Predator has not been banned in Germany.
web-serving = web-surfing
And remember, you can see all the sex you want on public television, which is funded in part by our government.
Pseudo:
Predator is banned in Germany. Look it up on imdb.
Pseudo:
It appears you're right. I am trying to find the right film.
I believe Germany must have revised its standards in the last year. I posted a list of film banned in Germany about a year ago -- I was surprised to see movies like predator and 48 hrs on the list -- but now they're not on the list.
Here's an abridged current list from IMDB:
Titles with certificate: Germany:(Banned)
All Quiet on the Western Front (1930) 8.3/10 (1394 votes)
Double Exposure (1982)
Grande illusion, La (1937) 8.5/10 (909 votes)
...aka Grand Illusion (1938) (USA)
Guardian, The (1990) 4.0/10 (120 votes)
Halloween II (1981) 5.2/10 (1210 votes)
...aka Halloween II: The Nightmare Isn't Over! (1981) (USA: video box title)
Hellbound: Hellraiser II (1988) 5.7/10 (637 votes)
...aka Hellraiser II (1988)
Ilsa, She Wolf of the SS (1974) 3.9/10 (104 votes)
Motel Hell (1980) 5.1/10 (172 votes)
Night of the Living Dead (1990) 6.3/10 (387 votes)
Phantasm (1979) 6.6/10 (453 votes)
...aka Never Dead, The (1979)
Prison (1988) 4.9/10 (61 votes)
Tales from the Darkside: The Movie (1990) 5.5/10 (204 votes)
Texas Chain Saw Massacre, The (1974) 6.5/10 (1539 votes)
...aka Texas Chainsaw Massacre, The (1974)
Texas Chainsaw Massacre 2, The (1986) 4.5/10 (326 votes)
...aka TCM 2 (1986) (USA: abbreviated title)
...aka Texas Chainsaw Massacre Part 2, The (1986) (USA: video box title)
If you check the IMDB, many violent R-Rated pictures get a 18 Certification in germany, but only when cut heavily. A bunch of movies I've checked had the notation: "Germany-18 (heavily cut)."
Sorry, but these certification numbers in Europe aren't billed as in the USA. No one has any idea what "certification" a particular movie generally gets.
The point is, Pseudo, some films avoided the total ban by cutting out objectionable parts.
I find this whole line of argument rather silly. But the more "free" countries of Germany and England *ban* some movies. In America, no movies are banned. At most they receive X-ratings.
...of Robocop.
Pseudo:
I suspected it was RoboCop. I found RoboCop too, and noted the 16/18 rating.
But that's not the film I was talking about.
I don't think I've actively included the UK. I've said repeatedly, for example, that there are restrictions on freedom of the press and the speech in the UK, plus as much PC nonsense as the USA.
I still see no reliable evidence that Germany has banned anything, except as related to Nazis and the Holocaust.
#704
I'm not talking about sexual activity which borders on criminality. I'm talking about perfectly innocent activity, such as photographing your child in the nude just as a matter of routine photographing, which has been prosecuted in the USA.
As for neighbours snitching, I know people who let their child walk naked on the beach, and the police were called by some neighbours of theirs. I've several stories like that.
The reason I looked up Robocop is that I saw that in Germany first. The version I saw is identical to the one available in the USA.
Limited number of cities? Yes. But I can assure you that any German or Japanese can walk in any part of any German or Japanese city without problems. Can't say the same about Americans.
I've come to believe that this is a shibboleth. I routinely go to what are called dangerous neighborhoods in NYC--the South Bronx, East New York--via subway and bus without a bit of difficulty. ANow it may not be fair to use a city as safe as New York as an example, but this canard is most frequently peddled wrt NYC.
The Japanese just have to stay out of the subways, and the Germans away from soccer stadia and Turkish neighborhoods.
The emphasis on cars misses an important factor. Americans are more dependent on cars partly because our population isn't packed together like sardines. Mass Transit is less viable when population densities are lower. This is a tradeoff that I daresay most Americans are more than willing to make. And the flip side is that cars are so affordable that it gives Americans more flexibility (or freedom) to do things like drive across town to eat, stay out late (most European mass transit severely scales back services as the night wears on), or drive away for the weekend (partly compensating for those shorter vacations - we can drive to a lot of vacation spots over the weekend). I think it is disingenuous to state that car ownership shows
a restriction of freedom, when in fact car ownership expands freedom.
The most significant restriction Psuedo mentions is related to crime. The freedom to walk alone at night through almost any part of the city is a great one, and one I think too many of us have grown used to not having.
Japanese subways and Turkish neighbourhoods in Germany are completely safe. As for soccer/football stadiums, just stay away from those where Brit yobs congregate....
Have you never noticed that freedom of thought is infringed on by fear of censure?
PE: "How about the miserly two-week vacations? Yes, one has more freedom if one is not indentured to work."
Fuck, yes.
"(Why anyone who has the option of working somewhere other than the USA, continues to work in the USA, I have never understood.)"
Some professions can only be pursued to their fullest extent here, which is why people in those professions are drawn here.
PE: "Study in the USA. Work in the USA. Make lots of money. Then run."
Not in the sciences, which regularly import top-level people from Germany, England, India, China, and Africa. (And I don't mean just postdocs.)The US is the place to be, not least because, relative to Europe, the US does not regulate the shit out of every single thing scientists use or produce.
Rask: "This is silly. No one is "compelled" to live [in a faceless suburbia]. Almost every major metropolitan area has an artier area with more architectural variety where it is possible to live usually cheaper than in similar areas in Europe. It is just that living in the burbs is *cheap*, gives you one hell of a lot of space (I had a visitor from Korea in my house this summer, who said that my very modest suburban ranch dwelling with a comparatively small yard would sell for over a million dollars in Korea), and it is safe place to raise kids. Americans by and large *like* shopping malls, multiplexes, chain restaurants, and the like. You are free to chalk this up to bad taste if you like, but to describe it as a "lack of freedom" doesn't make sense."
But it makes perfect sense. Other Americans’ choices constrain mine. From a practical standpoint, the majority determines how the minority must live. For instance, when my husband was hired by a company in NJ, we had to find a place to live that met my (minority opinion) requirements: trees, good architecture, individually-owned stores, foreign restaurants, foreign people, blacks, Jews, easy access to a train, not too many yahoos. It had to be within a half-hour commute or so to my mate's job. The schools had to be decent and the streets had to be safer than where we were living before (Philly). We had to be able to afford it. In the end, we found exactly one town that met those qualifications.
Chaos: “As a freelancer, I suppose that you can afford the luxury of mocking harassment law. For most schmucks, it's something they have to be increasingly careful of.
As a freelancer, harassment law is pretty much all she is protected by.
Scary and repulsive. And don't forget all those daycare molestations and satanic ritual abuses in the '80s, for which people who were convicted of crimes they or their victims temporarily “forgot” are presently in jail.
CG: "you might bitch about our movie editing, our drinking ages, our drug laws--but they are imposed by us, not the government."
They are imposed by you, and punished by a government representing you. Not me. But don’t worry, someday you’ll discover a minority you belong to and everything will become clear.
Often said, but I don’t believe it. Property taxes in Philly are low—very low, for a major city. The problem is schools, crime, and to a lesser extent, income tax. Anyone who can earn a reasonable living leaves and pays much HIGHER property taxes in the suburbs, where they won’t have to send their kids to private school ($7-10K/yr), their auto insurance will be lower, and they won’t get mugged on the way to work. Philly charges something like 5.83% on income, unless you’re self-employed, in which case it’s more (because of the way the tax is figured). Even so, I bet people would stay if they felt that that bite paid for schools and adequate policing. And maybe filth mediation and some of the exorbitant cost of public transportation.
Jones: "However, the idea of the neighbors "snitching" on one another over their sexual activity is nonsense. The only prosecutions I know of relate to public sexual activity, prostitution, child abuse or the abuse of animals."
Oh, is that all. When was the last time you saw a mother spank her child in public?
PE: "there are restrictions on freedom of the press and the speech in the UK, plus as much PC nonsense as the USA."
Judging from what their journalists write, the British seem to have made a religion out of worshiping Freud and demonizing Israel.
The repressed memory crap and santanic abuse were localized outbreaks of hysteria. Going from them to the general state of affairs concerning the relationship of the state to parenting is akin to evaluating relgious life here on the siege of Mount Carmel or the Nation of Islam.
but most of the restrictions he names are piddling, inconsequential things like sodomy laws, which have a symbolic value but hardly restrict anyone from "doing what they want to do".
Well, I don't think I've said all the restrictions on freedom are oppressive or intolerable. Some are clearly only nuisances, but others are pretty major, such as the residential stuff I've talked about, or the vacations.
I will reiterate that Americans are generally able to live in any sort of housing and architectural style they choose, in almost any type of residential area, for less than what choosing such residences would cost in a European metropolitan area.
I disagree. The primary restriction on European residential options is the size of the abode, not affordability or type of area.
The emphasis on cars misses an important factor. Americans are more dependent on cars partly because our population isn't packed together like sardines. Mass Transit is less viable when population densities are lower.
Believe it or not, I'm well aware that there is a relationship between mass transit and population density.
However, I wonder if the population density on the two coasts of the USA isn't about the same as in Europe; or whether poverty of transporation options in the major population centres of the USA can be explained fully or mostly by population density differences.
I wager not.
This is a tradeoff that I daresay most Americans are more than willing to make. And the flip side is that cars are so affordable that it gives Americans more flexibility (or freedom) to do things like drive across town to eat, stay out late (most European mass transit severely scales back services as the night wears on), or drive away for the weekend (partly compensating for those shorter vacations - we can drive to a lot of vacation spots over the weekend). I think it is disingenuous to state that car ownership shows a restriction of freedom, when in fact car ownership expands freedom.
I'm tempted to use the I word, but since you're Raskolnikov, I won't.
I never said car ownership restricts freedom. I'm saying that the lack of transport options restricts freedom of choice to driving and driving and more driving.
So you think people don't own cars in Europe, drive across town to eat, stay our late, or drive away for the weekend?
But this is true no matter where you live. If you want a cheap pre-fab house with lots of greenery next door to a strip mall near Paris, you are shit out of luck. If you just hate Gothic architecture and want to live in Oxford, you are also probably in for some disappointment.
I guess it is possible that there is a larger subset of people in the US who dislike dominant aesthetic tastes, but that is an argument I would have to see some evidence for.
Good luck finding that house you described in a European city.
Our high wages and economic standard of living gives us the freedom to do a lot of things and buy a lot of things that just can't be done as cheaply in Europe.
Most of Western Europe has a lower per capita income than the USA, but not terribly lower. And the distribution of income is better, so that workers in manufacturing, for example, get something like twice the wages of comparable American workers.
A couple of comments: first, the unanimous derogation of political correctness is laughable. PC is such a small part of American society that most people have only even heard of it because of Rush Limbaugh. The only "freedom" restricted by political correctness is that of those who choose to participate in the small communities where it is the predominant norm yet still desire to make non-PC comments. Given the disparity in size between the two communities - PC v non-PC - I would even speculate that the lack of PC is more "freedom" denying, since a lot of people who would prefer to live in a PC community can't.
Second, the definition of freedom that Pseudo promulgates is contradictory: "the ability to do what one wants" is only a coherent definition when it is superimposed against a particular "freedom" eliminating force. For example, the ability to do what one wants vis-a-vis the state is coherent, as is the ability to do what one wants vis-a-vis violent communities. Pseudo's definition of freedom assumes the same statecentric worldview that he has been criticizing throughout the discussion. In a world of scarcity, anytime someone "does what they want" it is going to require an unwanted imposition on someone else.
Third, an interesting aspect of this discussion which has been overlooked is the existence of any empirical trends concerning who is more likely to have "freedom" related expenses imposed on them.
How about that archbishop in Chicago, also the victim of child molestation McCarthyism?!
I certainly concede that you know more about what it is like to live in a variety of European countries. My experience comes from living in London for four months, with several side excursions. If this reference base is inadequate, I am sure you will correct, but here are my perceptions...
1) a larger percentage of European families than US families do not own cars.
2) The houses and apartment buildings are generally older. While they are certainly more diverse in architectural style, they have their own inadequacies in size of house, lot size, access to greenery, and general absence of newer architectural styles (a lot of US urban sprawl is driven by the desire of many Americans to own a brand new house). This perception may certainly be due to a small number of reference points.
Sure, I've been there in the evenings. Now it is true that when I was going home from the customer in East New York at 2 am, I called a car service. I seldom ride the subway late at night anyway, because the service is lousy, and the traffic is light. In this case, though, I didn't want to ride through Bed-Stuy in an empty subway car. Would I feel differently in a working class neighborhood near Paris? I don't think so.
Otherwise, I agree with much of what PE has said--this society is in a weird puritanical stage right now, and the subsidization of the suburbs has not, to my mind, been good public policy. But, hey, I like cities, like public transport, and don't like cars.
Have you ever lived in a non-college town in the United States? Anywhere in, say, the Midwest?
DaveM, you're still the ninny I've found you to be, full of orotund gibberish.
Second, the definition of freedom that Pseudo promulgates is contradictory: "the ability to do what one wants" is only a coherent definition when it is superimposed against a particular "freedom" eliminating force. For example, the ability to do what one wants vis-a-vis the state is coherent, as is the ability to do what one wants vis-a-vis violent communities. Pseudo's definition of freedom assumes the same statecentric worldview that he has been criticizing throughout the discussion.
I've no idea what this means.
In a world of scarcity, anytime someone "does what they want" it is going to require an unwanted imposition on someone else.
This is a more interesting statement, but I don't know you mean.
I would say most definitely that a poor person is less free than a richer person.
I feel some Kris Kristofferson coming on.
I misremembered what you wrote. Serves me right for not relying on direct quotes after reading several dozen other posts. But basically, I am making a "revealed preference" argument. While I agree that these preferences are somewhat distorted by factors you mention, I would argue that apparant European preferences are even more distorted by the comparative lack of new land to develop, and the higher cost of land.
"In the USA, bars close at 2AM!"
I am not sure what your point is here. In London, they closed at 11pm. In Paris, I am pretty sure that the Metro drastically scaled back service much earlier than 2 AM, although I rarely stayed out late when I was there.
Exactly.
I've defined "freedom" simply -- the ability to do whatever one wants -- but not simplistically. Every society places restrictions, legal and social, on such a thing. But the definition makes comparison more coherent, I think.
The UK the UK the UK! I've already said, from the beginning, without much prompting, that in some areas there are more restrictions in the UK than in the USA.
I've never set foot in the Midwest, but the US population is concentrated on the coasts.
What are we talking about? Housing or cars? The remarks to which you responded were about cars.
I know this is true. But what would the comparative percentages be? based on PPP comparisons of income, what percentage of European workers would have more economic freedom than American workers? The bottom quintiles? (I have no idea where to find PPP-adjusted EU data broken down into income percentiles).
Both.
The factual stipulation stated that the defendant
photographed his wife and daughter in the nude with the child's
genitals exposed...The photographs were taken by the defendant to Osco drugstore for developing.. Peter Bartholomew of Osco drugstore...brought the film to the...police department.
Photographs Nos. 1 through 5 are of the defendant's wife sitting
next to the fireplace wearing a low-cut black negligee with her
legs exposed up to the hips... In photographs Nos. 6 through 13, the wife and child are posed nude on the living room floor. The sixth photograph depicts the wife in a prone position on top of the child with her face buried in the child's breast. The child's legs are spread apart enveloping her mother's body. Photograph No. 7 is much the same pose.. In the eighth photograph, the child is lying
on her stomach and the wife is kneeling behind her. Photograph No. 9 shows the child standing with her buttocks to the camera..The wife, partly in view, is kneeling in front of the child but here is no physical contact between them. The 10th picture depicts the child facingthe camera kneeling in front of the wife....In the 11th picture,
the child is bent over with her buttocks to the camera and her legs spread apart,providing a view of her genitals. The 12th photograph shows the wife in a crouched position at the bottom of a stairway with only the top of the child's head visible. The last photograph of the wife andchild together depicts both of them sitting on the living room floor.
except for one blurred photograph in which no one is visible. Photograph 14 depicts the child lying on her side with her head propped up by her right hand. The child's left leg is elevated to her shoulder and herlegs are spread apart to their fullest extent, emphasizing the pubic area. The 15th picture shows the child sitting on the floor propped up by her elbows with her left leg bent and raised to the height of her head. The child's genitals are fully exposed, and she is gazing down at her pubic area.
The next photograph, No. 16, features the child with her legs
spread wide in a v-shape. She is lying on the floor with her
buttocks lifted off of the floor, affording a clear view of the
genitals. In the 17th photograph, she is sitting on the floor
leaning back on her elbows with her legs spread wide. Photograph
18 shows a similar pose, but one leg is raised in the air and she
is looking down at her genitals. Again, the genital area is in
full view. The 19th picture shows the child bent over with her
head on the floor. The photograph affords a posterior view of her
genitals. In picture No. 20, the child is lying back on her
shoulders with her hands on her hips raising her buttocks and
legs in the air. Her legs are spread apart, but the view of the
child's genitals is unclear because the photo is blurred.
The remaining six photographs show the little girl either
sitting naked in a chair next to a table or lying on the floor...
This is the only prosecution for child pornography for photos of children by their parents that does not involve some other sexual contact or surepticious photography I found in a search of all state appellate opinions. I would be surprised that a case as you describe would not be appealled.
The lesson: Don't capture your child taking his first step on film if he or she happens to be naked -- or if you do, learn some photo developing skills!
American samizdat is born!
There is also a case of an Albanian immigrant family whose child was taken away from them also for some trumped up sexual moletation charge. I'm trying to find that case too.
Why do you put quotes around the word rinse? Are you saying the mother was instructing her 8-year old daughter to masturbate int he shower?
. But don’t worry, someday you’ll discover a minority you belong to and everything will become clear.
Actually, I belong to several minorities, as you define it. It is also as I defined it to PE a while back in this discussion. Everyone is in the minority at some point or another in America. That, oddly enough, is a good thing. Even if it means that we can't watch Predator unedited on network television, get a drink in a bar at 3 am, or live in a 5 acre lot in downtown New York.
In other countries, the movement between majority and minority doesn't seem to be nearly as fluid.
Re your point to LadyChaos on freelancers--I'm more at risk for punishment by harassment laws than I'll ever be able to use their protection. You are correct that I don't get much protection from any labor or workplace laws.
BTW, all: what is this upset with two week vacations? Back when I was employed, it only started at two weeks and went up from there. And it's certainly not mandatory to live with two weeks, if you don't want to.
Mandatory five or six week vacations is one of the things that makes employment such an expensive proposition in other countries.
JonesatLaw, I'm aware of the case he mentions. Every reference I've heard to it sounds outrageous. Then there's the case, about 7-8 years ago, of the photographer Jock Sturges, whose studio in SF was raided by the FBI on child pornography charges (bogus). There was another such case more recently (not FBI), I think, also involving a well-known artist photographer whose name I can't remember.
As for child abuse/satanic abuse, you are wrong. It was not an isolated trend but occurred all over the US from New Jersey to Oregon for the better part of a decade. There were numerous cases, starting with the McMartin Preschool thing; I believe almost every high-profile conviction has since been overturned. Articles were written about this stuff, Frontline did a documentary that focused on several cases. Moreover, the charge of child sexual abuse got lobbed about with much more frequency, I believe, by people looking to gain custody of children in divorce proceedings. Shit, a whole spurious therapy industry sprung up around the recovered memory bullshit, as did wronged-parents groups in response to it.
I don't know where you live--under a corporal punishment lettuce leaf, perhaps--but if anyone there feels free to spank their kids in public without risking at least the accusation of child abuse, he is freer than most people I know. I do not know anyone--NO ONE--who would risk it. Not here. Not in California. Not in Texas.
Many of the examples given by P.E. seem to be cultural quirks that get under his skin, and I do not know how relevant they are to the question of how much freedom Americans truly enjoy relative to other cultures. However, I will concede that the U.S. and Canada both tend to give far too much weight (politically, culturally, and socially) to certain antiseptic middle-class preferences: strip malls over diverse downtown cores, car congested streets over pedestrian strolls, multiplexes over decent arthouse theatres catering to my penchant for artsy-fartsy fil-ums, etc. And I do think that this tendency tends to diminish the quality of public discourse and the range of choices that people have when it comes to carving out an interesting life for themselves. I also think that, despite its obvious pluses, there is a downside to the North American form of unbridled laissez-faire capitalism that tends to get either ignored or obscured at the public policy level. So to the extent that P.E. is arguing along these latter lines, I am inclined to agree with him --although he has overstated his case.
Finally, I think that the ad hominem attack against DaveM's comments was totally unfair. Although Dave, please do try to limit the vis-a-vis(es)to one per sentence. After three years of law school I have developed an almost pathological aversion to the phrase.
It is true, you're right, that there are class issues involved in some of this stuff. If you decide to live in the margins, the rules that apply to middle- and upper-income people apply less to you. You won't lose your job at JiffyLube if someone finds out you're dating a 16-year-old. But you won't keep your job as a public school teacher. And god help you if you get popped for holding joint, or turn up positive for weed on a random drug test conducted by your employer--even if your employer is Home Depot.
Not quite the innocent capture of baby's first steps, is it?
I'm always suspicious when I read about these parents who 'innocently' are caught by some nasty ole' pornography statutes.
Btw, LadyC
I just finished doing my first oral arguments before the court (mock, of course), and can say that although I was nervous as a cat, I came through the experience a wiser law candidate. Now, I suppose my only first left to go through would be arguing before a real court, which I hope to postpone for a while.
In any case, they want me to consider going for the moot competitions....
Rask: "But this is true no matter where you live. If you want a cheap pre-fab house with lots of greenery next door to a strip mall near Paris, you are shit out of luck. If you just hate Gothic architecture and want to live in Oxford, you are also probably in for some disappointment."
I take your point, but I think you've stretched it thin. Given a choice--that is, proximity to employment and financial means--I think people would prefer the faux small town bult by Disney (Celebration is it? In Florida?) over the monotonous suburbs the US presently has too much of. The alternatives need not be true old Philadelphia-style suburbs (which are not now suburbs, BTW, but used to be, before the city annexed them) or urban centers with deluxe architecture. Freeway-ringed identical cracker boxes (per Silicon Valley exclusive of Palo Alto) and McMansions (everywhere) should not be the dominant alternatives in a country where freedom of "choice" is supposed to matter.
"I guess it is possible that there is a larger subset of people in the US who dislike dominant aesthetic tastes, but that is an argument I would have to see some evidence for."
Hollywood movies. Why does Hollywood come to my town to film? Because this place represents an ideal. Most people simply have no access to it.
Perhaps the discussion would be better moved to International, since it's really about "who's lived where and can say what" about the asthetics of life in other countries.
And your suspiciousness contributes to an atmosphere some of us consider alarmist and puritanical (as does CalGal's, for instance, wrt underage screwing). There was a piece in Salon, "Molested", which illustrated well, IMO, the awfulness of legal intrusions into families when a charge of perversion of some sort is levelled. I'm sure several of you here read it and were entirely unsympathetic to the author.
I'm suspicious that the parents are as innocent as depicted in the media. Often the facts of the situation are very different than the hysterical media convey upon first learning of the incident.
In actuality, it seems damn hard to get someone on pornography charges in this country, we have so many first Amendment constraints on the process.
I'm sorry my attitudes offend you, but frankly, your somewhat more casual attitude toward possible exploitation of children by adults equally ruffles my feathers.
I don't care what adults do with other adults, have no interest in seeing the state intrude into the privacy of adult interactions, as I suspect a good many Americans would agree. However, when it comes to children, I am less forgiving of adult sexual fantasies and idiosyncrasies.
A mother casually takes a photograph of her child, who happens to be nude, just to capture a moment.
Next thing you know, jack-booted American police arrest her.
Because you are probably part of the perverted culture of child-molestation/pornography McCarthyism.
One might almost say you were being PC, PE.
How does this provide one scrap of evidence that the US has this problem more than other countries?
As if Hollywood is particularly good arbiter of what the public finds "ideal" anyway...
Why is this rambling, but interesting, discussion tolerated here? It belongs some place like The Inferno, certainly not in The International Thread
I'm generally lazy when it comes to this sort of thing. However, I have asked that it be moved.
Very funny, Calgal.
I call it the relentless quest to be cosmopolitan cool. A different kind of PCism.
CG: "I call it the relentless quest to be cosmopolitan cool. A different kind of PCism."
Well, what can one say to this? It's a coolness quest, an urbane insensitivity to the plight of molested children, to fear anything done in the name of protecting children from sex? Please.
I'm not arguing about whether other countries are worse off with respect to choice in housing and kinds of communities; I haven't had the opportunity to travel much outside the US and so I have no firsthand experience of the matter. But I have traveled in the US. I am aware of the kinds of communities that can exist, and of the narrowness of options generally. Americans do, in my experience, believe they have more freedom of choice than other people. But they don't really even have enough freedom of choice to choose what Hollywood sells them.
"As if Hollywood is particularly good arbiter of what the public finds "ideal" anyway..."
Manufacturer. But of course, also an excellent arbiter of the ideal.
Don't know if you deliberately switched our two comments, or you were trying to suggest something else. In any case, I'm not of the group that tends minimize the possibility of exploitation of children for adult convenience and pleasures. Too many horror stories from past decades for me to assume our recent concern about protecting children from their own family's exploitation (and I don't mean just sexually)is overkill.
I think you have to look hard and long to find many of these incidents of parents wrongly thrown into jail for innocently documenting their children. In fact, I think they become national attention grabbers, and the stuff of rabble rousing, precisely because they happen rarely.
Personally, I think there's more danger in people being caught by statutory rape laws than being mistakenly snared in a pornography statute. However, we seem to be at odds about the threat to personal freedom child protection laws represent to American adults.
I spent half my day to day judging 1L moot court rounds.
CalGal,
Yes, it's becoming almost dangerous these days to say that you disapprove of pedophiles in certain circles.
That's the same sort of demagoguery that reactionaries use when one advocates ending the drug war. They say, "Oh, I guess you support drug dealers," or, "You are advocating drug use."
The problem is not to deny that pedophiles exist, but to recognize that we have a legal tradition in this country which presumes a man's innocence when accused of a crime. The state has no right to label someone a criminal until the state has subjected that person to the due process of a fair trial and has proven that person's guilt beyond a reasonable doubt.
The hysteria over child molestation, however, has reached such a fever pitch in this country that anyone accused is tried and convicted in the media before getting a chance for a fair trial. What's more, some of the ninnies advocating "found memories" have raised some troubling issues of proof in molestation cases.
It has become so fashionable among college-age women in America to have been a victim of sexual deviancy that one tends to doubt the veracity of their accusations, especially the latent ones. This does a disservice to real victims of sexual predation.
Inadvertent.
Look, MsIT, what can I say? I can dig up news reports, mention circumstances I've heard about personally. It won't matter what I cite. You will claim the number of injustices is too small to matter relative to the overall good gained from child abuse hysteria because, after all, child abuse is horrible. But this, as you have already implied, will be your bias speaking, just as it is the bias of white conservatives that figures a few police brutalities in NY is a reasonable price to pay for safer streets.
The fallacy is the assumption that overreactions are necessary or unavoidable, and the shame is that neither you nor my hypothetical conservative NYer considers it important that people who are not criminals feel as though they must watch their backs lest their motives and actions be confused with criminality by the watchful guardians of civic decency.
You know, orthodox Jews have a saying: "build a fence to the Torah." By this reasoning, every law commanded by God must not only be obeyed, it must not come close to being disobeyed: you are to stay away, fenced off as it were, from even the edge of illegality. Thus the origin of separate dishwashers for cleaning of dishes used to consume meat and milk products; separate refrigerators; separate cutlery; separate kitchens in kosher establishments; and even waiting a certain number of hours between consuming one item and the other. (Chicken, even, counts as meat.) All this from the prohibition, "thou shalt not seethe a kid in its mother's milk." It gets expensive, all this carefulness. It's intrusive on life.
Mind you: anyone who messed with my children would not survive the period between my locating him and the date of his arraignment. But if, god forbid, something were to happen to one of my kids, the last thing I would want would be for the courts and the shrinks and the puritanical do-gooders to descend, to instill notions of shame and responsibility and woundedness my kids are not being raised to harbor. I'm sure at least half the danger of child abuse is a sex-fearing society's reaction to it, and the burden that puts on the victims of it. More horror of child abuse, underage sex, etc., does not necessarily help children.
I'm sorry, but this smacks of the sort of "Lock them all up and let God sort them out" attitude which I find rather chilling in our society.
Heh heh. Best line of this exchange, so far, by far.
I fundamentally disagree with your premise that false accusations of child abuse and exploitation run rampent in this country. Rather I see this as a consequence of the new consciousness parents now have that abuse is one of the dangers they must protect their children from (assuming the danger comes from without). So it's become increasingly important as a responsibility of the state to more dilligently pursue such complaints. In addition, the media is more attentive to it precisely because it's become a major part of this society's consciousness.
Just because it was patently ignored for most of our history doesn't make this country more hysterical about it, the problem is simply given more visibility now. To me, it indicates we've finally accepted that children are harmed by adults in significant ways -sexually, emotionally, physically - and that we all pay the price for this.
If you want to argue adults are less free because we've recognized new rights in children, then that would be the cause whenever we define a new right in society. There is always a balance of competing interests and rights that must be found in law and society. Recognizing someone who was previously disenfranchised from our legal consciousness automatically infringes on someone else's right to have their interests soley represented.
I'm sorry, but I see this as a natural evolution in childrens rights, that they would begin to erode into the realm of freedoms previously granted exclusively to adults. In fact, I think we have a long way to go before this process is over, simply because we still recognize damn few independent childrens rights in this country.
And you would be arrested, tried for 2nd degree murder, most probably convicted, with the possibility of it being reduced to manslaughter.
Sentence: 2-20 years for a manslaughter conviction, 5-99 years for murder 2.
So, your freedom would be curtailed in any case, and arguably in a more significant manner.
I, along with everyone concious, am quite aware of the standard line of argument you've put forth.
There are so many unquestioned presumptions in your last two posts (the second has me resting my forehead on the heel of my hand), and so much apparent reluctance to consider carefully my remarks against those presumptions (or LadyChaos' remarks, or PE's remarks), that I don't see the point of continuing this exchange.
Neither of us will gain anything useful from it.
Yes, it's standard I suppose. However, you underestimate my consideration of your concerns. I simply think they are overstated. You also brazenly label anyone who disagrees with you as puritanical and McCarthyism. I vehemently disagree with both you and PE on this. Perhaps if you both saw the unworthiness of these particular charges you'd be more open to serious dialogue on this issue.
You are correct, this converstation should not be continued.
Your last post clearly demonstrates your selective concerns about who's freedoms are being curtailed, and why. Sexual harrassment laws result in exactly the same sorts of overinclusion and rampant fear among men as you suggest occurs in the area of child protection laws.
On a purely factual level, of course, the photos Jonesey described at length earlier are obviously pornographic, and intended to be.
There's no way one just "accidentally" or "serediptidously" catches one's three-year-old daughter in the "natural moment" of bending over and spreading out her ass & pooter.
Shit, not even Playboy and Penthose will touch that particular pose. That's a Hustler pose, a Swank pose. Even Bob Guccione won't do the old "touch your toes & spread 'em" shot.
I don't want to come across as an apologist for Bill Gates, but MS is clearly going to get screwed on this one. If you look at the case carefully, it becomes apparent that the case against MS is not nearly as strong as the DOJ and Judge Jackson would have the public believe. Two key points are of note: First, the case against MS has been argued in terms of network externalities with all of the implied notions of lock-in and market failure that is present in certain strains of that literature. Yet, it is by no means certain that the presence of network effects inexorably leads to market failure. The court is too readily conceding an economic theory that is far from cut and dry in its ramifications for antitrust law. Second, antitrust law is meant to protect the consumer, not frustrated competitors -- and especially not frustrated competitors the size of IBM,Apple, Sun, Netscape, etc. Yet, most of the supposedly anti-competitive harms adduced by the court are harms inflicted against these big corporations; which have all displayed a singular lack of resolve and business acumen in their efforts to compete with MS. The only actual consumer harms demonstrated in the case are astonishingly trivial: minor inconveniences when it comes to launching Netscape, and a tiny amount of wasted hard drive space. In the end, the governments case devolves into a rather crude BIG (i.e. MS) is BAD argument.
"Second, antitrust law is meant to protect the consumer, not frustrated competitors"
Not quite true. Antitrust law seeks ULTIMATELY to protect the consumer, but it does so (& always has done so) by protecting COMPETITION.
"I call it the relentless quest to be cosmopolitan cool. A different kind of PCism."
I had my own term for it, which I now forget, but both Cal's and MsIT's are better.
Well I should qualify. Antitrust law is not meant to punish aggressive competition. It is meant to hinder anti-competitive behaviour. But how do you identify anti-competitive behaviour? Well you look for activity that does not involve competition on the merits, but rather involves an effort to leverage market power in a manner that harms consumers -- which usually involves some sort of predatory behaviour against weaker competitors. The ultimate gauge is the capacity to exercise the powers of a monopolist, which is measured in terms of consumer harm.
Tabouli:
Yes, and Microsoft is guilty of the lot of it. Leveraging, tying. It's textbook anti-competitive behavior. Further, they ARE a monopoly.
Microsoft deserves whatever it gets. If they get broken up--hallelujah. I'm not particularly impressed with Windows, and I'd *love* a real choice in my IBM-clone's OS.
Cosmopolitan cool? Yes, that surely describes Americans who affect knowledge of abroad without having it.
I thought it was being used to describe something else. But if it makes you happy to define it this way, enjoy.
Certainly MS's behaviour has been anti-competitive, but it is not so anti-competitive as to warrant the most heavy-handed of remedies.
Tying is not textbook anti-competitive behaviour any more. Since the seventies there has been much debate as to whether or not tying is per se anti-competitive. Although I do grant that in this case MS's behaviour towards Netscape was classically predatory and deserving of an appropriate remedy; just not breaking up the company or releasing Windows source code.
As for the general argument that the dominance of Windows has eliminated consumer choice, I don't think that all of the blame falls on Microsoft. Apple has made serious strategic blunders, IBM has not shown much interest in developing an OS comparable to Windows (because they are making so much money elsewhere), and options like LINUX and the like have not captured consumer allegiance for reasons unrelated to the dominance of Windows.
"but it is not so anti-competitive as to warrant the most heavy-handed of remedies."
Cite? This seems to be just "your opinion." I have no evidence handy to contradict it, but I will say that a "less heavy handed" rememedy -- a huge fine -- harms the shareholders and does not address the real problem: That Gates has a monopoly and is not shy about engaging in anti-competitive behivior.
Releasing the source code seems a justified rememedy. Bell used to own all the phone lines; cable companies used to own all the cable lines. But when a company engages in anti-competitive behavior, the courts have responded by forcing the monopolists to turn over the instruments of their monopoly.
Note that Bell still gets license fees for its phone lines. But they are required to license their use to whomever wishes to compete.
Similar to forcing MS to release its source code. Most likely, MS will receive a fair license fee from whomever uses the source code; but they will be required to license its use.
'Cite? This seems to be just "your opinion."'
Economists Nicholas Economides and Paul Krugman side with my interpretation. And I bet Judge Posner also sides with my view. I've actually read the case material and much of the commentary, so I'm not just workking on vague intuitions here -- although I'm not communicating my opinions all that well.
You say the courts should respond by forcing the monopolist to turn over the instruments of its monopoly, and I would agree. However, I contend that much of MS's current monopoly power has been the result of lacklustre competition from the likes of IBM and Apple. There is I suppose an element of public-choice theory in my argument here.
Tabouli:
Well, as I'm sure you know, there are economists who disagree with the anti-trust laws ALTOGETHER, and argue there is no such thing as a true monopoly (substitution is ALWAYS a choice).
There are economists who argue that monopolists should be allowed to engage in the very worst kinds of predatory behavior-- such predatory monopolists, these economists theorize, will destroy their own monopoly and force competitors to the fore.
Your last post clearly demonstrates your selective concerns about who's freedoms are being curtailed, and why. Sexual harrassment laws result in exactly the same sorts of overinclusion and rampant fear among men as you suggest occurs in the area of child protection laws.
I was sputtering indignantly over that very thing. My lord, there wasn't even a decent pause in the conversation when the morph occurred.
Essentially, the DOJ is saying that the market is structured in such a way that no new competitors could possibly enter the industry in a manner that could countervail MS's dominance. Such entry is possible. It just has not occurred yet, for various reasons. One reason is that MS simply learned how to effectively compete before other companies, and these companies are only now catching up with MS in terms of business acuity. Another reason is that the software industry is so profitable that many companies are going for the easy money, and foregoing competition with the established players in any given category. In time, when the market settles down, companies will likely attempt to appropriate some of MS's monopoly profits for themselves.
I suppose her selective outrage flows mainly from the fact that her "freedoms" cannot be curtailed under sexual harassment laws, but could potentially be curtailed under pedophilia laws.
"Tough shit" is what we say when we take away "freedoms" from somebody else. "Bloody Nazi McCarthyite fascists!" is what we cry when the same laws are applied to we ourselves.
"Another reason is that the software industry is so profitable that many companies are going for the easy money, and foregoing competition with the established players in any given category."
Which means there's a monopoly, and will be for some time.
No software company is going to bother writing applications for anything BUT Windows and Mac. You're simply not going to find any but the most top-selling applications written for anything but Windows and Mac. Ergo, no one will buy an OS except for Windows and Mac.
OS/2 Warp? Yeah. Right. Remember all the spreadsheet programs and games and word processing programs written for OS/2 Warp? Nope. Neither do I.
Nor do I notice many applications written for Linux.
"In time, when the market settles down, companies will likely attempt to appropriate some of MS's monopoly profits for themselves."
In time, ALL monopolies will vanish, dude. "It time" is not good enough.
The point is that competitive entry is possible, so a structural remedy should not be the immediate choice.
LINUX is unable to compete with Microsoft because the open-source movement is a peculiar means of developing a viable product. LINUX still hasn't settled on a standard GUI, so developers aren't going to jump on that bandwagon any time soon -- for reasons unrelated to MS's dominance.
IBM is loaded. If they wanted to convince developers to create a demand generating array of products for this platform they could. However, IBM makes so much money elsewhere that they are not fully committed to their product. Is this lack of enthusiasm a result of anti-competitive actions by Microsoft, no. Is it a result of structural problems endemic to the industry no. So, why go for a structural remedy, when other less drastic measures are available.
"The point is that competitive entry is possible..."
No, it's not. Or rather, competive entry is ALWAYS possible. But the monopoly imposes such a huge entry cost that no one bothers trying.
Oh, it was, but then, what the hell, who can argue with the great international standard bearer PE?
You could have done a [sic] and corrected for me, but no.....
that's heels, of course.
I give up. I'm off to play in the sun.
"But the monopoly imposes such a huge entry cost that no one bothers trying."
IBM spent "tens of millions of dollars" (in Judge Jackson's words) in developing OS/2. Within a year they achieved a 10% market share (again according to Judge Jackson). This doesn't sound to me like the sort of "onerous front end investment that might deter competition from all but the hardiest and most financially secure investors" normally contemplated by the antitrust laws. (See Syufy Enterprises).
Companies don't bother trying, because there is presently easir money to be had elsewhere.
Also note that software development is a peculiar industry. Marginal costs are negligible and network effects create econoimies of scale on the demand side. Thus a company can profitaly enter at a relatively small scale. This is different from the classic antitrust scenario, where the "minimum efficient scale" is extremely high,and economies of scale only arise on the supply side so that an entrant must first spend all sorts of money just to be in a position to introduce their product at all.
Also, I applaud MsIT's decision to allow a free-wheeling exchange of what has only marginal relevance to the thread topic. Threads (and Hosts) are not created to hamper debate, but to facilitate them; they are not created so everyone can practice posting strictly relevant posts, but to channel certain posts into areas where they might have a chance to be seen, and, thus, inspire response. Who cares where a good debate begins so long as we continue to have them? Too many hosts seem as if they are afraid a good discussion might start within their area of responsibility so quick are they to quash anything that might be construed as not entirely relevant to it. One of the best examples of a good discussion taking place within an area not relevant to it was the debate on the U.S. decision to drop the atomic bombs on Japan, which took place in the thread called News of the Day.
For a great piece on Microsoft's power and what to do about it, read Charles Ferguson's High Stakes, No Prisoners: A Winner's Tale of Greed and Glory in the Internet Wars
Ferguson founded Vermeer Technologies, which created Frontpage, a software product for creating and managing websites. He sold this product to Microsoft after flirting with a possible sale to Netscape for a short time.
The entire book is great reading and I highly recommend it, but the section of relevance to your discussion with Ace is a chapter called "The Microsoft Question". Ferguson is particularly good on this question for two reasons that other commentators can't match: first, he has the practical and theoretical arguments of this debate down pat (I'll explain this later); second, he is fair-minded, giving Microsoft more than its due for what it has done in the Software industry and vividly making clear that any legislation shouldn't damage those contributions.
Ferguson holds a B.A. in mathematics from Berkeley and a Ph.D. in political science from MIT. At MIT, he researched American competitiveness vis-a-vis (sorry!) Japan. He also has experience with the DOJ (as a consultant, I believe) and has researched the history of anti-trust legislation (for why, I can't remember, for his erudition on the subject is concisely demonstrated but obvious).
But Ferguson's largest strength is the experience and knowledge he has of the software industry and the reasonble manner he lays forth, not only the problem of Microsoft, but a policy proposal to solve it as well. The entire book was an education for me and I highly recommend it, but if you don't have the time, just read the chapter called "The Microsoft Question" when you have a free hour to spend in a bookstore.
Vis-a-Vis Pincher,
Thanks for the recommendation. I will read the piece and look for the book. I'll also look for your thoughts on the case.
Don't be absurd. The issue is not the curtailment of child molesters' freedom.
You think I shouldn't be concerned that innocent people's freedom from unwarranted accusations of child sexual molestation is curtailed in the name of protecting children, who nevertheless are not more protected by a more alarmist society? Please show me one iota of unbiased evidence that increased attention--legal, societal, press attention--to child abuse has decreased the amount of child abuse children suffer.
The same thing cannot be said about laws concerning sexual harassment in the workplace. The threat of lawsuits makes companies circumspect about the issue--excessively so (as I've argued myself, in the distant past). But the upshot is that women really are afforded a measure of protection as a result of the deterrent effect of sex harassment legislation. By comparison, people who molest their kids tend to do it away from corporate (and therefore controlled) settings. They are not deterred by the illegality of their behavior. And the legal remedy for it can surely, from the child's perspective, be as bad as the crime itself, perhaps worse if the crime merely involves something along the lines of taking suggestive photos.
But please, line up with Ace of Annelids now and advance an ad hominem about how I could not possibly hold such outrageous views were I not hoping to make the world safe for perversions I must be guilty of.
I know this is true. But what would the comparative percentages be?
based on PPP comparisons of income, what percentage of European
workers would have more economic freedom than American
workers? The bottom quintiles? (I have no idea where to find
PPP-adjusted EU data broken down into income percentiles).
There is an article by Gottschalk and Schmeeding in the Handbook of Income Distribution with data on PPP adjusted post-tax cash income of households in many Western European countries and the United States for 1991 or thereabouts. I think this is available at the Luxemborg Study of Income Distribution site (look it up on Yahoo). The basic upshot was that median US incomes were about 20% higher than Europe but that at the bottom quartile or below, European incomes were higher. Except in France which was below the US at all income levels.
Everyone gets in a lather when some creep snatches a child and sexually or physically assaults a child. Its the stuff of sensational headlines and live news updates. However, children are far more likely to be killed, assaulted, or sexually assaulted by family members than some stranger pouncing on them out of the shadows. However, the issues involved in the majority of cases are far too uncomfortable for us to deal with. Do false reports sometimes spin out of control?-sure. Whatever lip service we pay to the idea that "children are our future and most valuable resource"
the cops that investigate child abuse, the caseworkers for HHS, the therapists and the prosecutors assigned to these cases are not the first line folk. We save them for property and drug crimes. We don't have the resources, the funds, the expertise or the desire to do our best in cases regarding kids. So, I am not surprised that we bring cases that we shouldn't nor am I surprised that we don't bring cases when we should.
I agree with you...it can often be a real mess. And to make it even worse, there's divorce...bad enough when the parents are just fighting over money, but when it's custody, too often one will accuse the of having sexually abused one of the kids. And, it may or may not be true. Too often the family court worker sides with whichever parent he/she likes.
Damn interesting link.
Idiots. The day those pigs are successful in desecrating our Constitution is the day that the flag will no longer stand for anything worth defending.
I agree with you re the flag issue.
On a differnet topic, my father informed me that the SC was about to hear a case deciding whether the Portsmouth Naval Shipyard was in NH or Maine. I just looked at the SC Docket for April, and didn't see the case. Do you know how I can find the case?
What made you leave in the first place?
I don't have an answer to your question regarding the Portsmouth Naval Shipyard. I didn't find any decision in the lower courts, so it could be an issue over which the Supreme Court exercises original jurisdiction.
MsIT,
My partner and I won the advanced Moot Court competition. I won the Best Oralist award.
I'll know on Sunday whether my law review paper will be published.
A related worry is copyright. We of the Mote blithely paste in whole screeds of published material. I know that in Australia publishers are very alert for such breaches. Do have any information about this risk?
In particular, why would an American academic be compelled to attend a U.K. proceedings for remarks she made on a British academic?
The operative issue here would be jurisdiction over the defendant. I'm not sure how British law differs from ours on that question; however, it seems likely that they share certain principles with us. As I understand American libel law, if the libellous remarks caused a foreseeable injury to the plaintiff in the jurisdiction where the defendant knows the plaintiff resides, then the plaintiff could get jurisdiction over the defendant in a "home court," so to speak.
The plaintiff's case for jurisdiction over the defendant would be strengthened if the publication that dispersed the remark was knowingly circulated in the forum where the plaintiff resides. If it was an Internet publication, the question would obviously be more tricky.
London--A British Internet service provider has agreed to pay a substantial sum to a physicist who says he was libeled in messages posted on electronic bulletin boards carried by the company, in a move that lawyers fear will severely curtaqil people's ability to speak freely in cyberspace.
The company Demon Internet said on Thur that it would pay about $25,000 in damages to the physicist, Laurence Godfrey, as well as Mr. Godfrey's court costs, which are likely to come to several hundred thousand dollars. The case stems from a message posted in jan 1997 that was "squalid obscene and defamatory," Mr. Godfrey said, and another message a year later that Mr. Godfrey also described as defamatory.
Demon's decision to settle the case, in the face of moounting evidence that it would not have won in court, is significant, lawyers said, because it establishes that British Internet service providers--companies that provide access to the Internet--are liable for the messages posted on the forums they carry, regardless of where the messages originate. And slthough it does not require Internet service providers here to screen messages in advance, it does mean that they will be obligated to respond quickly to complaints about messages, and remove those that might be libelous.
"This is going to have a chilling effect on free speech," said Adam Taylor, head of the e-commerce and technology group at Withers, a law firm in London. "As a result of this settlement, Internet service providers are going to be very nervous. When anybody makes the slightest complaint, they're going to be pulling material down. If they don't, they leave themselves liable to the kind of defamatory actions taken in this case."
more
"The short answer is that this will have not effect because the law in the U.S. is very different in that the Internet providers have as close to absolute immunity as you can get," said Steven Lieberman, a partner specializing in First Amendement law at the D.C. firm of rothwell Figg.. "But it gets more complicated when you realize that messages posted by U.S. based Internet service providers can be read outside of the U.S., that a reader in the U.K. can have access to something you post in the U.S."
But Mark Stephens, a media lawyer at the London firm of Finers Stephens Innocent, said that in a medium with no national borders, the settlement had important golobal implicaTIONS.
"This brings the real prospect of Internet service providers, wherever they're located in the world, and whether or not they're protected by the free speech guarantees of the Bill Of Rights in America, being dealt with harshly, robustly and expensively in the British courts," Mr. Stephens said.
Mr Stephens said the the service providers would be particularly vulnerable to threats from the rich and litigious.
"It's open season," he said. " This exposes Internet companies to the ability on the part of the rich and powerful to censor them. If your're rich and powerful, you could sue the Internet comapny to take something off the Internet edition of an American newspaper, because you know they're going to censor the newspaper even if the newspaper doesn't censor itself."
more
Posted in the US on the soc.culter.thai news group, which is devoted to discussions about Thailand, the message was said to have made rude and offensive allusions to Mr. Godfrey's personal life and purported to have come from Mr. Godfrey himself, although it was actually a forgery.
Mr. Godfrey was extremely upset about the message and in series of faxes asked Demon to remove ti from the news group. When the company failed to do so, he sued. He sued again the following July, when another posting, on the uk.legal news group, made further rude remarks about him. He did not sue the people who posted the messages.
Mr. Godfrey's solicitor, Nick Braithwaite, did not return calls and the exact substance of the remarks made against Mr. Godfrey remained unclear. He is no stranger to libel actions. In 1994 a fellow physicist, Philip Hallam-Baker agreed to pay Mr. Godfrey an unspecified amount in damages after Mr. Godfrey sued for libel in connection with a number of Internet postings raising doubts about his professional competence.
more
British libel law is much more weighted toward plaintiffs than in America, and Demon had almost no choice but to settle this case. In an interim ruling last year, a judge in Britain's High Court ruled that the company could not rely on a defense claiming it was merely an innocent disseminator of the defamatory messages, as it had sought to do. That defense, the judge said, "is in law hopeless," and Demon should be treated as the publisher of the material.
Demon decided not to appeal and ultimately decided it had little chance of prevailing in court.
Mr. Godfrey said he was pleased with the outcome. "I'm quit sure there is no right to libel other people on the Internet, to concoct fabricated allegations and try to destroy people's reputations." he said outside court yesterday.
A spokeswoman for Demon, which is now owned by Thus, a telecom and internet company in Glasgow, said it was striving to comply with the law requiring it to respond to complaints by removing offending messages. But she said it was impossible for the company to monitor all the postings it carries, which total more than a million a day, enought to fill all the books in a bookshelf a mile long.
"Thus remains convinced that the law hasn't kept pace with the development of the Internet," the spokeswoman said. While the company now routinely removes material that is "unsuitable or defamatory," she said, "it is contrary to common sense to make Internet service providers responsible for the millinos of items carried on the Internet."
I read the exchange you referenced in TT. My initial feeling is that the person who was so upset and referenced the Irving v Lipstadt case is completely off base. First, the US libel laws are very different than British. Second, that the comments took place over the internet provides additional protection, not only for the poster, but also for the ISP.
The US has granted internet providers immunity for third party slander or libel, thus, they are not responsible for any comments made by posters. In addition, anonymity of posters makes tracing who said the comments almost impossible, so if the person thinks they can sue any American who didn't post under their real name then they are dreaming. Won't be possible. Nor is the ISP required to provide someone sueing an individual the real name of the party in question, under the privacy act.
The relevant communications statute regulating the internet in the US is discussed in ZERAN v. AMERICA ONLINE, INCORPORATED., 129 F.3d 327, where the US Court of Appeals for the 4th district said the following:
Communications Decency Act (CDA) immunized commercial interactive computer service provider from liability for defamatory information posted by third parties. Telecommunications Act of 1996, § 509(c)(1), 47 U.S.C.A. § 230(c)(1).
The Irving slander case is based on a book publication, an area that has a more traditional body of law behind it. I would suspect, however, that even in that situation, the US would be a very different environment than the British courts, where the bias is clearly for the plaintiffs. US libel laws, particularly when it comes to public figures (published authors come under this rubric, I think), are harder to bring to bear, since the standards applied to people in the public eye are very different than to private citizens.
So, I'd tell this guy he's blowing hot air, IMHO.
Congratulations!
Again, the US has very limited liability for internet providers. As for the impact on internet communications, I'd think it's much more likely that ISP's stop signalling to Britain rather than that British libel laws would have any real impact on global internet communications.
Possibly American ISPs would, instead, give posters an option of eliminating access to British poster boards, and would only allow British posters reader rights, no posting, in an effort to get around any liability in British courts. In other words, I see this only as harmful to the expansion of the British internet, and its citizens's access to global communications, not the reverse.
Impressive series of informative posts on my question, especially these last couple by MsIT. Thank you. 
Congrats on the Moot Court results!
What the hell is Ronald Coase talking about? Why does this man's idiotic 'Theorem' haunt my every move in law school?
Spence, where are you? I want to talk about Coases world of zero transaction costs and the supposed lack of need for any laws under those circumstances.
Its funny, ask any lawyer about Coase and they will say: yeah, he's right, there is no such thing as transaction costs. Then, well, you get your lawyer's bill, replete with transaction costs calculated down to the minute. Curious ain't it.
If any lawyer says to you "there are no transaction costs", that's an immediate signal they don't know what the hell they're talking about. They don't even know Coase's Theorem, which only assumes a world of zero transaction costs in order to make his main point about efficient solutions that emerge from private interactions.
Personally, my main beef with his idea has more to do with the fact that I think it's nonsense even if we assume his conditions. I think it contradicts some of the stuff Spence deals with in game theory, for one. For another, he never tells us what would happen in the face of stubborn owners (or controllers of the resource).
Yet another problem I can't get around is the issue of externalities. If you can't price the cost, how can you negotiate even when transaction costs are zero? Then there is the significant problem of multiple agents involved. The more people who have to participate in the negotiations, the greater the likelihood of free riders. I still don't understand his logic in getting around that one.
I think Spence should comment.
I was surprised that there was no place for a signature. Most government forms have a signature line, with words to the effect that a signature means that the information is truthful.
Does this mean one is not required to answer the census truthfully? That seems unlikely.
I would have assumed that a law could compel truthful answers without requiring a signature line. If so, what is the purpose of the signature line? Is it psychological, because people may be less willing to lie if they sign their name, or is it merely to establish who filled out the form?
To put it a different way, I assume that people are charged with fraudulently filling out forms on occasion. Is the signature merely used to prove who filled it out, while the requirement that the form be truthful is in the written law? If the prosecutor asks the defendant to read the line requiring that the information be accurate, does this carry any legal weight in court, separate from any law?
When the Supreme Court upheld an ordinance last week banning nude dancing in Erie PA, the American public was treated to the spectacle of hearing Justice Sandra Day O'Connor somberly discuss the protective qualities of pasites and G-strings, which the law requires the dancers to wear.
The court has tackled such matters before. In 1991 the justices upheld an Indiana public indecency law that also banned nude dancing. And four years ago, in a case invvolving a similar statute in St. John's county, FL, the court refused to overturn lower court decisions that refected the argument that the ban violated erotic dancers' freedom of artistic expression.
That case also provided an unusual insight into the legal mind at work. It turns out the St. John's law, which requires that about one-third of a dancer's buttocks be covered, went to great lengths--328 words, to be exace--to determine that unlikely battleground for First Amendment rights:
"The area at the rear of the human body (sometimes referred to as the glutaeus maximus) which lies between two imaginary lines running parallel to the ground when a person is standing, the first or top of such line being one-half inch below the top of the vertical cleavage of the nates (i.e., the prominence formed by the muscles running from the back of the hip to the back of the leg)and the second or bottom line being one-half inch above the lowest point of the curvature of the fleshy protuberance (sometimes referred to the gluteal fold), and between two imaginary lines, one on each side of the body (the 'outside lines'), which outside lines are perpendicular to the ground and to the horizontal lines described above and which perpendicular outside lines pass through the outermost point(s) at which each nate meets the outer side of each leg.
More!
Sunday NYT
Anyone from St. John's Florida perchance?
It is against the law to lie on your census forms. However, I don't know if the offense carries a criminal or civil penalty (ie, jail time or fine, or both). I do know that the Dept of the Census waits to display their muscle until they send out their census workers, who track down households that have not responded to the initial mailing.
As for the signature, well, the Gov't must assume that they have your social security number, your tax money, your life in their files, so if they want to question the truthfulness of your responses, they can do it on a random basis (which is probably more effective anyway).
Wonkers
The Supremes have upheld any number of state and local ordinances that enforce public decency standards of the particular communities, this is nothing new. I think their validation of sexual preference laws, sexual standards, contraceptive laws, and other "bedroom" behaviors, at the local or state level is more disturbing than upholding laws regulating public nudity. At least the latter have the dubious honor of preserving public decency standards.
I forgot to say that when people actually sign a form as to its truthfulness, that does carry added weight in the law. It means that you can't use the "I didn't know" excuse as a defense. However, lack of knowledge of a law is not a defense in courts anyway.
The signature adds extra umpf to your culpability, though.
Thanks for the answer. I've wondered about the redundancy given the "ignorance is no excuse" principle, but I suppose there is some leeway granted whne people cake a case that they didn't know; this helps prevent the need to cut people slack for that possibility.
Does the law distinguish between a lie and an omission? For example, the difference between answering a question incorrectly, and leaving it blank?
Obviously the 2nd amendment's right to bare arms, etc., doesn't "cover" everything... : )
Funny.
Dusty
Omissions only matter when you're under an affirmative duty to answer.
They would also matter if the statement you read before signing included any omissions. ie, "I hearby swear that the foregoing are accurate and truthful to the best of my knowledge and do not contain any omissions that would otherwise call into question their truthfulness." Or words to that effect....
My Law Review Comment has been selected for publication!
The "stick-it-to-da-man" express is rolling out of the station. Hallelujah!
You're a frickin' freight train!
Congrats on both the Moot court and the publication of your Law Review Note. Soon you'll be qualified to work for the highest-paying sweatshops in the world.
Thanks, Dan... I think.
From the Arkansas Supreme Court decision: "On May 10, four days after the bodies were found, the police had not solved the cases. When Detective Bryn Ridge questioned Echols, he asked him how he thought the three victims died. Ridge's description of Echols's answer is abstracted as follows: He stated that the boys probably died of mutilation, some guy had cut the bodies up, heard that they were in the water, they may have drowned. He said at least one was cut up more than the others. Purpose of the killing may have been to scare someone. He believed that it was only one person for fear of squealing by another involved. At the time Echols made the statement, there was no public knowledge that one of the children
had been mutilated more severely than the others. On June 3, or almost one month after the murders, Detective Mike Allen asked Jessie Lloyd Misskelley, Jr., about the murders. Misskelley was not a suspect at the time, but Echols was, and it was thought that Misskelley might give some valuable information about Echols. Detective Allen had been told all three engaged incult-like
activities. Misskelley made two statements to the detective that implicated Echols and Baldwin, as well as himself. The statements can be found in Misskelley v. State, 323 Ark. 449, 459-61, 915 S.W.2d 702, 707-08 (1996)."
"Moreover, two witnesses testified that they overheard Echols state that he killed the three boys, and this was direct evidence.
Although not material to this point, other evidence established that Domini Teer might be confused with Baldwin as both had long hair and were of slight build.
Twelve-year-old Christy VanVickle testified that she heard Echols say he "killed the three boys." Fifteen-year-old Jackie Medford testified that she heard Echols say, "I killed the three little boys and before I turn myself in, I'm going to kill two more, and I already have one of them picked out."
The testimony of these two independent witnesses was direct evidence of the statement by Echols. These witnesses were cross-examined by Echols's counsel, and it was the jury's province to weigh their credibility.
Dr. Frank Peretti, a State Medical Examiner, testified that there were serrated wound patterns on the three victims. On November 17, 1993, a diver found a knife in a lake behind Baldwin's parents' residence. The large knife had a serrated edge and had the words "Special Forces Survival Roman Numeral Two" on the blade. Dr. Peretti testified that many of the wounds on the victims were consistent with, and could have been caused by, that knife.
Deanna Holcomb testified that she had seen Echols carrying a similar
knife, except that the one she saw had a compass on the end. James Parker, owner of Parker's Knife Collector Service in Chattanooga, Tennessee, testified that a company distributed this type of knife from 1985-87. A 1987 catalog from the company was shown to the jury, and it had a picture of a knife like the knife found behind Baldwin's residence. The knife in the catalogue had a compass on the end, and it had the words "Special Forces Survival Roman Numeral Two" on the blade. The jury could have made a determination whether the compass had been unscrewed, and, in assessing the probativeness of the location of the knife introduced at trial, heard ample evidence that Echols and Baldwin spent much time together. Therefore, it could have reasonably concluded that Echols or Baldwin disposed of the knife
in the lake.
satanic ritual. On cross-examination, Echols admitted that he has delved deeply into the occult and was familiar with its practices. Various items were found in his room, including a funeral register upon which he had drawn a pentagram and upside-down crosses and had copied spells. A journal was introduced, and it contained morbid images and references to dead children. Echols testified that he wore a long black trench coat even when it was warm. One witness had seen Echols, Baldwin, and Misskelley together six months before the murders, wearing long black coats and carrying long staffs. Dr.
Peretti testified that some of the head wounds to the boys were consistent with the size of the two sticks that were recovered by the police.
Dr. Dale Griffis, an expert in occult killings, testified in the State's case-in-chief that the killings had the "trappings of occultism." He testified that the date of the killings, near a pagan holiday, was significant, as well as the fact that there was a full moon. He stated that young children are often sought for sacrifice because "the younger, the more innocent, the better the life force." He testified that there were three victims, and the number three had significance in occultism. Also, the victims were all eight years old, and eight is a witches' number. He testified that sacrifices are often done near water for a baptism-type rite or just to wash the blood away. The fact that the victims were tied ankle to wrist was significant because this was done to display the genitalia, and the
removal of Byers's testicles was significant because testicles are removed for the semen. He stated that the absence of blood at the scene could be significant because cult members store blood for future services in which they would drink the blood or bathe in it. He testified that the "overkill" or multiple cuts could reflect occult overtones.
Lisa Sakevicius, the criminalist who testified about the fibers, stated that Byers's white polka-dot shirt had blue wax on it and that the wax was consistent with candle wax.
Detective Bryn Ridge testified that Echols said he understood the victims had been mutilated, with one being cut up more than the others, and that they had drowned. Ridge testified that when Echols made the statement, the fact that Christopher Byers had been mutilated more than the other two victims was not known by the public. The jury could have reasonably concluded that Echols
would not have known this fact unless he were involved in some manner.
evidence of guilt. When asked about his statement that one victim was
mutilated more than the others, he said he learned the fact from newspaper accounts. His attorney showed him the newspaper articles about the murders. On cross-examination, Echols admitted that the articles did not mention one victim being mutilated more than the others, and he admitted that he did not read such a fact in a newspaper.
The foregoing, together, constitutes substantial evidence of the guilt of Damien Echols.
Jason Baldwin does not contend that there was insufficientevidence of his guilt. This is, perhaps, in part, because of the testimony of Michael Carson, who testified that he talked to Baldwin about the murders. Carson's testimony, in pertinent part, was abstracted as follows: "I said, just between me and you, did you do it. I won't say a word. He said yes and he went into detail about it. It was just me and Jason [Baldwin]. He told me he dismembered the kids, or I don't know exactly how many kids. He just said he dismembered them. He sucked the blood from the penis and scrotum and put the balls in his mouth."
contends that the verdict in the penalty phase was erroneous because the jury refused to find, as a mitigating circumstance, that he had no prior history of criminal activity. The jury was given AMI Crim. 1509, which included the mitigating circumstance of no significant prior history of criminal activity. It is important to note
that this mitigating factor is set out as "no significant prior history of criminal activity," and not "no significant prior history of prior convictions." Ark. Code Ann. § 5-4-605(6) (Repl. 1993). The jury found that Baldwin had no significant history of criminal activity, but refused to make the same finding for Echols. This indicates that the jury carefully weighed the evidence and determined that Echols should not be credited with this mitigating factor. Even so, Echols contends the jury committed error in refusing to find that he had no significant prior history of criminal activity . . . .
Echols admitted on cross-examination in the penalty phase of the trial that he had an altercation with his father in which a knife was involved and the police were called. He admitted he was hospitalized that same day, and when his father came to the hospital, "I told him
his parents were concerned with his satanism or devil worship. Dr. Moneypenny admitted that Echols's medical records contained the following notations of statements by Echols:
I want to go where the monsters go. Pretty much hate the human race.
Relates that he feels people are in two classes, sheep and wolves. Wolves eat sheep. Echols explains that he obtains his powers by drinking blood of others. He typically drinks the blood of a sexual partner or a ruling partner. This is achieved by biting or cutting. It makes me feel like a god. Echols describes drinking blood as giving him more power and strength ... He has also agreed to continue to discuss his issues with power and control as related to his practice of rituals. I just put it all inside. Describes this as more than just anger like rage. Sometimes he does `blow up.' Relates that when this happens, the only solution is to hurt someone. Echols reports being told in the hospital that he would be another Charles Manson or Ted Bundy. When questioned on his feelings he states, "I know I'm going to influence the world. People will remember me."
The jury, having heard the foregoing, did not arbitrarily refuse to find that Echols had no significant history of criminal activity.
FROM MOVIES
"It's a rather passing interest, to be honest, but as the second movie just aired a few weeks ago, I cruised around the Web to see if I could find any record of evidence implicating these kids. Couldn't find a single one. I really think we're looking at a massive injustice in this case. The stepdad is a raving psychopath, barely able to keep it together in front of the cameras, while the teens are calm and rational, and cognizant of the evidentiary facts of the case."
The stepfather seems a lunatic. If I recall, he had some weird moments in the first documentary, including a "I'll never go hungry again!" speech about pissing on Damien Echols' grave. That said, barely literate folks who have lost loved ones are often ravers, while mullett-headed killers with websites celebrating their status as the West Memphis Three who also receive support from Jello Biafra [as the site lets us know] can be quite reasonable. Even endearing.
But don't you just want to hug all those reasonable folks on death row after they've been scrubbed clean for Larry King?
Justice is often messy, and the Echols case is a prime example. But the evidence was certainly sufficient to justify conviction.
In accordance with the Conclusions of Law filed herein this date, it is, this 5 day of April, 2000,
ORDERED, ADJUDGED, and DECLARED, that Microsoft has violated §§ 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1, 2, as well as the following state law
provisions: Cal Bus. & Prof. Code §§ 16720, 16726, 17200; Conn. Gen. Stat. §§ 35-26, 35-27, 35-29; D.C. Code §§ 28-4502, 28-4503; Fla. Stat. chs.501.204(1), 542.18, 542.19; 740 Ill. Comp. Stat. ch. 10/3; Iowa Code §§ 553.4, 553.5; Kan. Stat. §§ 50-101 et seq.; Ky. Rev. Stat. §§ 367.170, 367.175; La.Rev. Stat. §§ 51:122, 51:123, 51:1405; Md. Com. Law II Code Ann. § 11-204; Mass. Gen. Laws ch. 93A, § 2; Mich. Comp. Laws §§ 445.772, 445.773; Minn.Stat. § 325D.52; N.M. Stat. §§ 57-1-1, 57-1-2; N.Y. Gen. Bus. Law § 340; N.C. Gen. Stat. §§ 75-1.1, 75-2.1; Ohio Rev. Code §§ 1331.01, 1331.02; Utah
Code § 76-10-914; W.Va. Code §§ 47-18-3, 47-18-4; Wis. Stat. § 133.03(1)-(2); and it is
FURTHER ORDERED, that judgment is entered for the United States on its second, third, and fourth claims for relief in Civil Action No. 98-1232; and it is
FURTHER ORDERED, that the first claim for relief in Civil Action No. 98-1232 is dismissed with prejudice; and it is
FURTHER ORDERED, that judgment is entered for the plaintiff states on their first, second, fourth, sixth, seventh, eighth, ninth, tenth, eleventh, twelfth, thirteenth,
fourteenth, fifteenth, sixteenth, seventeenth, eighteenth, nineteenth, twentieth, twenty-first, twenty-second, twenty-fourth, twenty-fifth, and twenty-sixth claims for
relief in Civil Action No. 98-1233; and it is
FURTHER ORDERED, that the fifth claim for relief in Civil Action No. 98-1233 is dismissed with prejudice; and it is
FURTHER ORDERED, that Microsoft's first and second claims for relief in Civil Action No. 98-1233 are dismissed with prejudice; and it is
FURTHER ORDERED, that the Court shall, in accordance with the Conclusions of Law filed herein, enter an Order with respect to appropriate relief, including an
award of costs and fees, following proceedings to be established by further Order of the Court.
Thomas Penfield Jackson
U.S. District Judge
- Bill Gates lost $11.5 billion today
-Covington & Burling was johnny on the spot for their clients appearing on CNN on the courthouse steps with an instant analysis that assured its nervous prospective defendant clients that MS would kick butt on appeal
I agree. A jury could convict on that evidence.
I also agree that the demeanor of the step-parent and the kids themselves tell nothing of the true guilt, innocence, or psychological health of one or the other.
April 3, 2000
Public Citizen Challenges Constitutionality of Campaign Finance System for Judicial Elections in Texas
On the whole, having elected judges in Texas makes for an interesting legal culture. For one thing, appellate courts are very hesitant to overturn jury verdicts, and judges, generally have a preference for allowing cases to go to jury rather than cutting them off through the summary judgment process or by directed verdicts.
I've heard my Profs say that having judges elected makes them more sensitive to the political and social positions of the general citizenry. Of course, the financing system allows for some to have great influence on who gets elected, as well. Given their reliance on elections to stay in their seats, however, this isn't as bad as it might be otherwise. An opponent is always free to dig dirt on one's record, and so the money that flows into these elections is not as influential as one might think at first glance.
In fact, judges come and go with relative ease, at least in Austin, and seem to be at the mercy of a demanding and fickle public.
Some of that I remember after reading your post and much of it I know I never read (and wasn't anxious to read now). I really don't know. I think Eric has a point, though the evidence (all circumstantial, unless I missed something physical that was definitively linked to the teens?) is compelling. I just don't know if it would meet my definition (as an imaginary juror) of beyond reasonable doubt.
I'm not sure Coase's point was that there are no transaction costs. And yes, anyone who claims that is a few pebbles short of a pile. Like many results in economics, this one focuses on a boundary case to lay bare the intuition.
Of course "The Problem of Social Cost" contains no propositions or math. It doesn't even say "assume transaction costs are zero." It deals with a version of the same world of the Pigouvian tax (the one that shifts demand or supply curves so that market outcomes are efficient and marginal social benefit equals marginal social cost even in the presence of externalities). In that world, one need not assume away transaction costs because there were none to begin with. Coase simply argues by example that in this world, the Pigovian tax is unnecessary if one desires to obtain Pareto efficiency.
The much-discussed transaction costs assumption is an obvious limitation of the Pigouvian world. Another feature of the Pigouvian world is that in it, partial equilibrium analysis is valid. When is that the case? There are no income effects. But indeed the Coase theorem requires something more (hence "a version of the Pigouvian world") -- namely that preferences are quasilinear (and therefore not only are income effects absent but people are risk neutral). Coase also never mentions this.
quasilinear utility function: U(x) = V(x) + m, x is quantity of a good and m is money income; V is a function independent of m.
non-quasilinear utility functions:
U(x,y) = xay1-a (cobb-douglas), a is some positive constant
U(x,y) = a-1ln(xa + ya) (constant elasticity of substitution)
U(x,y) = -e-ax(constant absolute risk aversion)
Quasilinearity is a quite restrictive assumption.
The other part, the property rights part, says that under the requisite assumptions, the final distribution of property rights is independent of the initial distribution of property rights, and furthermore, this final distribution is efficient (in the Pareto sense). It is not as well known that this cannot be guaranteed without quasilinear utilities.
(However, when there are a large number of people on one side of the bargain and their private information is correlated in a certain way, the theorem can once again be partially restored. If their private information is statistically independent, the result still fails.)
he never tells us what would happen in the face of stubborn owners (or controllers of the resource).
If stubbornness is reflected in utility functions (as marginal rate of substitution), as I think it ought to be formally, he doesn't have to. If you mean the behavioral issue of things like the much vaunted endowment effect, you're right. Formally it acts as a transaction cost.
Yet another problem I can't get around is the issue of externalities. If you can't price the cost, how can you negotiate even when transaction costs are zero?
Not sure what you're getting at here. The whole point of the theorem is dealing with externalities. The classic example of the rancher and the farmer is a case of externalities. What do you mean "can't price the cost"?
Then there is the significant problem of multiple agents involved. The more people who have to participate in the negotiations, the greater the likelihood of free riders.
But the individuals can choose unilaterally to alienate their property rights (at commonly known costs) and can make binding agreements. Perhaps you mean that one nonsmoker may leave it to another to buy all the property rights from the smokers, and enjoy clean air without paying for it. But that's just a "second-order" externality problem really, requiring another (costless) Coase bargain. Their marginal benefits from cleaner air are commonly known again, and the efficient solution is easy to attain with binding agreements.
PMC is private marginal cost. PMC + t is private marginal cost plus a Pigouvian tax. SMC = PMC + d is the social marginal cost of production; d represents damages. D is an ordinary demand or marginal benefit curve. 
from Message # 889: The welfare part says that, regardless of the initial distribution of property rights, under the requisite assumptions (namely the ones above), the final welfare of all parties involved is the same.
That is, no party's final welfare is affected by the initial rights distribution. I do not mean that all parties have equal final utility for all, or any particular, initial distributions. Parties A and B may have different final welfare, it just isn't affected by the initial rights distribution.
Another restriction of the theorem is that it starts out with some party to the bargain owning the property rights. If that isn't true, and say instead they are distributed by the political process, wasteful rent seeking activities to influence that political process may well eliminate the efficiency gains from redistribution of rights (or resources) via a Coase bargain.
Of course, this is only an issue in the absence of quasilinear preferences, when the welfare part of the theorem doesn't hold. Only then do individuals possibly care who starts out with the rights, and presumably that is the only reason to influence the political process. But when preferences are not quasilinear, the other part of the theorem can't be guaranteed either. This is just an additional source of failure in that part of the claim.
Washington state judges are elected as well. Often a judge retires early and then the governor appoints a person who then has to run in the next election. Amazingly enough, it's not really much of a political issue. The judicial races are governed by Judicial Conductr rules that are enforced; several county bar associations conduct judicial evaluations that actually turn out to reflect the strengths and weakness of judges.
Most judical races are "non-events" with most incumbents not having any opposition. Most voters have no idea who they vote for, if they do vote for judges. I've seen superior court judges decline to take on a controversial case right before election and the court administrator assign it to a judge not up for re-election. (Terms of office are six six years.
This state also has a strong judicial commission that takes complaints against judges, holds hearings and can administer discipline, including removing someone from office.
The system isn't perfect but I'm not sure if a process of appointment would be any better. Rehnquist has been around for a long, long time.
I'm not sure Coase's point was that there are no transaction costs.
No, it wasn't. His point, as I understand it, was that if there were no transaction costs, that the final distribution of property rights would be efficient regardless of who began with private ownership.
However, this is such a critical assumption precisely because it assumes complete information (I didn't mention this because I thought it was self evident).
Since complete information is at best always an idealization, I view this is a major problem for the application of the Coase theorem. Without complete information, the result fails.
Yes, this is exactly what I mean.
Wrt the assumption of a quasilinear function, I'm less up to speed on that but, intuitively, I think this must be a major flaw because people are not risk neutral when it comes to property rights, nor would they "value an additional dollar the same no matter how many other dollars, or how many other widgets, they have."
when utility functions are privately known there is no bilateral trading mechanism that is fully efficient.
This is exactly the objection I've had to property discussions suggesting that negotiation in the case of public nuisances could lead to efficient solutions, particularly since we cannot assume there is complete information about future harms.
con't
Spence:Not sure what you're getting at here.
What I was trying to get at is this problem with future costs that are unknown, or unknowable at the point of negotiations, even when parties meet his assumptions.
I can't get around this temporal issue when I deal with models that purport to deal with the problem of externalities, since so much of it is discovered decades ahead of when the production, or use of the property takes place. This, of course, could be a failing in my understanding of how these future costs could ever be incorporated into such models.
Perhaps you mean that one nonsmoker may leave it to another to buy all the property rights from the smokers, and enjoy clean air without paying for it.
Actually I had in mind the problem of the property owner whose land poses a risk to others, with no liability to himself, and that risk is not easily divisible across any of the other owners who would bear the costs of that danger. It seems to me in this situation that at least one at-risk property owner would be willing to let others bear the costs of negotiating for the right to fix the risk without having to pay any share of it, either because he has less risk aversion than others, or because he has less attachment (preference) for his property to begin with. Or he may simply understand his position better than the others, and play off their motivation to protect their property. The classic free-rider problem.
To me it's a balancing issue. Do we want judges appointed who hold their positions well into senility, thereby resisting any efforts to modernize the legal system? Do we want judges who are insulated from the consequences of their decisions?
Personally, I think the Supremes are enough for me. I kind of like this system in Texas, even with all its apparent flaws.
PS: Thanks for the eloquent response. It was illuminating, and helpful in marshalling my arguments for in-class debates on his Theorem.
well, again, that's part of it -- the "property rights" part. There is also the "welfare distribution" part.
The importance of complete (as opposed to perfect) information has actually not always been well understood. People, especially some Chicagoans, have argued that incomplete information shouldn't matter.
well, they really don't have to be known. Information can be imperfect, just not incomplete. There is a difference. The future need not be known for sure, but all preferences must be. If information is imperfect (the exact realization of some future variables is unknown), then it's the expected values that matter.
Now, it may be that some contingencies are unforeseen or probability distributions over future contingencies cannot be specified, and the Coase theorem would certainly run afoul of that. But so do most other results and models in economics, because as yet there is no satisfactory way to handle unforeseen contingencies in subjective expected utility models. So it's not too fair to fault the Coase theorem in particular for that.
risk is not easily divisible across any of the other owners who would bear the costs of that danger.
This is fundamentally a transaction cost issue. It's certainly a valid criticism, but it doesn't convey any additional force beyond noting that transaction costs are not zero.
either because he has less risk aversion than others, or because he has less attachment (preference) for his property to begin with. Or he may simply understand his position better than the others
Lower marginal rate of substitution of property for money would be taken care of by side payments. By assumption all involved parties have the same risk aversion, none. They also have the same understanding of the problem, perfect. Now if you depart from these assumptions, of course that's a problem for the result, but again, these objections convey the same information as the other ones dealing directly with these issues.
Normally, I'd agree that information need not be perfect, just complete, but it seems to me that under Coase's Theorem, the lack of perfect information undermines the value of his model in a more fundamental way.
For one, his model has been used in legal circles to argue that laws don't necessarily have to ensure liability rests with the party engaged in the most socially undesirable behavior. As long as property rights are well defined, people can get around the problem of who bears the liability through private negotiations. Let the free market reign, so to speak.
I find this fraught with problems in the real world, and I have a knee jerk reaction to the ease with which the underlying assumptions are ignored.
Perhaps I'm getting agitated over nothing.
Some additional comments:
1. Regarding the property rights aspect of Coase's theorem; that's the one I pay attention to since only this part is applied in legal reasoning (as far as I've seen, so far).
2. I was chewing over your comment regarding perfect versus complete information. It seems loaded with more implications than I had initially considered. In fact, I often use the two terms interchangeably, perhaps because I rarely think of the perfect information assumption as quite as encompassing as you suggest above (regarding future costs).
I would expect complete information to encompass some subset of perfect information under this definitional difference.
3. As I said above, it's the issue of perfect information that is most problematic for me wrt Coase's theorem as applied in the legal context, since we're talking about the ability to arrive at efficient solutions regardless of which way the legal system comes down on the liability question. Nor do I believe we can have complete information even about preferences when the negotiations are between individuals in the present yet the consequences are borne by those in the future.
I simply don't believe we can incorporate preferences for future generations in private negotiations between parties who do not bear the full costs in the present. Does this make sense at all?
I'd change believe to 'see how' in this instance.
Also, eliminate the additional 'so far' in (1), and, of course, make such grammatical corrections where necessary otherwise.
fixing...
With risk neutral agents and commonly known preferences, why would it matter if information is imperfect? Replace all uncertain quantities by their expected values and voila. No trouble. Imperfect information just means that the realization of some future random quantity is unknown at the time decisions are made. A resource may be worth either $X or $Y with equal probability to party A. How much must party A be paid to give up this resource if she is risk neutral? (X + Y)/2. It's when information is incomplete, or there is asymmetric information about the realization of random quantities, that we have problems. A resource is worth either $X or $Y to party A, and furthermore party A already knows which it is, but party B only knows these contingencies are equally likely.
The issue of future beneficiaries is a real problem. But it's not one of information. The preferences they will have may be known with certainty. The problem is that someone affected by the bargain cannot participate in it (presumably because they do not yet exist). Formally this is really just like a transaction cost. It reveals just how deep that assumption of zero transaction costs really runs. Current beneficiaries cannot agree to act on behalf of future ones in expectation of future remuneration from them, because they cannot be made to sign any contract saying they'll live up to that agreement. Then there is a hold-up problem; once current beneficiaries act on their behalf they have no incentive to compensate them for the effort. They get the benefit either way. Now, perhaps in an infinite horizon setting there may be some overlapping generations rationale to fall back on. But in general it's a problem.
Cart
"1) The process is automatic, and Echols is represented by the same breed of inept PD that he had in the first place;"
This is incorrect. Nichols was represented by the exact inept two trial attorneys as on appeal. They were not PDs. I believe they were called up on a rotation basis from practicing attorneys.
"2) There has to be compelling evidence to overturn the original verdict. I'm seriously amazed that the circumstances surrounding Misskelley's coerced "confession" are in any way allowable. That it is sheds a lot light on how seriously the State of Arkansas takes its adversarial role."
You have to agree with Misskelley's version of his confession as coerced. Regardless, throw out the Misskelley confession. What about the Echols' confessions, heretofore unaddressed?
"3) Echols got the same judge in appeals, as originally presided over the case. Is that normal? If it is, it shouldn't be."
No, he did not. The trial judge was David Burnett, who denied Echols' motion for a new trial based upon ineffective assistance of counsel. This is normal, for the trial judge is in the best vantage point to see if in fact there was ineffective assistance of counsel. And I cannot imagine it being a problem, unless a defendant believes the judge is biased. Echols has made no such allegation. The appellate panel did not include Judge Burnett, and the opinion affirming the conviction was written by Robert H. Dudley.
"If you want to check out the sequel, and then debate the facts of the case, that would be OK by me. I've watched both movies within the past couple weeks, and am pretty well up on a lot of the case facts. I think it's an interesting case study in how sensationlism and hysteria can radically alter the judicial process, especially in a CP case. (And keep in mind, I am still a die-hard CP proponent. But the system needs better failsafes established, to make sure they get the right people.) Am I 110% convinced that those kids didn't really kill the boys? No. Maybe 85-90%. But the fact is, there is at least as much evidence pointing toward John Byers (the loony stepdad) as to the teens. But that angle was never even investigated . . . . Quite frankly, the prosecution's case is a shoestring held together with chewing gum and packing tape."
Obviously, you were moved by both documentaries to get to 85-90% assurance of innocence. As Lt. Mike Allen, who found the bodies, stated, ""I feel sorry for those 24 jurors in Craighead and Clay [counties] who gave up six weeks of their lives, only to have someone watch a two-hour HBO movie and second-guess them." As they say, that's show biz. But read the appellate court decision, which includes the fact that the jury heard evidence of confessions by Echols (not in the imposing confines of a police interrogation room, but in the form of after-the-fact bragging to others) and I will view part II. Powell also confessed to a third-party.
As for the wacko step-father, that's Arkansas for you.
But if I recall, he passed a lie detector test?
Has Damien Echols even taken a lie detector test?
As for the belt buckle or bite mark, the judge heard expert testimony and was unconvinced.
"On June 3, 1993, the crime having remained unsolved, Detective Sergeant Mike Allen sought the appellant out for questioning. The appellant was not considered a suspect, but it was thought he might have knowledge about Damien Echols, who was a suspect. Detective Allen located the appellant and brought him back to the station, arriving at approximately 10:00 a.m. Later in this opinion, we will
address in detail the circumstances surrounding the appellant's interrogation. For now, it is sufficient to say that the appellant was questioned off and on over a period from 10:00 a.m. until 2:30 p.m. At 2:44 p.m. and again at approximately 5:00 p.m., he gave statements to police in which he confessed his involvement in the murders. Both statements were tape recorded.
The statements were the strongest evidence offered against the appellant at trial. In fact, they were virtually the only evidence, all other testimony and exhibits serving primarily as corroboration.
The statements were obtained in a question and answer format rather than in a narrative form. However, we will set out the substance of the statements in such a way as to reveal with clarity the appellant's description of the crime:
In the early morning hours of May 5, 1993, the appellant received a phone call from Jason Baldwin. Baldwin asked the appellant to accompany him and Damien Echols to the Robin Hood area. The appellant agreed to go. They went to the area, which has a creek, and were in the creek when the victims rode up on their bicycles. Baldwin and Echols called to the boys, who came to the creek. The boys were severely beaten by Baldwin and Echols. At least two of the boys
were raped and forced to perform oral sex on Baldwin and Echols. According to appellant, he was merely an observer.
According to the appellant, he ran away from the scene at some point after the boys were tied up. He did observe that the Byers boy was dead when he left.
Sometime after the appellant arrived home, Baldwin called saying, 'we
done it' and 'what are we going to do if somebody saw us.' Echols could be heard in the background. The appellant was asked about his involvement in a cult. He said he had been involved for about three months. The participants would typically meet in the woods. They engaged in orgies and, as an initiation rite, killing and eating dogs. He noted that at one cult meeting, he saw a picture that Echols had taken of the three boys. He stated that Echols had been watching
the boys.
The appellant was also asked to describe what Baldwin and Echols were wearing the day of the murders. Baldwin was wearing blue jeans, black lace-up boots and a T-shirt with a rendering of a skull and the name of the group Metallica on it. Echols was wearing black pants, boots and a black T-shirt. The appellant initially stated that the events took place about 9:00 a.m. on May 5. Later in the statement, he changed that time to 12:00 noon. He admitted that his time periods might not be exactly right. He explained the presence of the
young boys by saying they had skipped school that day
One of the interrogating officers later testified that his notes revealed the appellant told him he received a phone call from Baldwin on the night before the murders. Baldwin stated that they planned to go out and get some boys and hurt them.
appellant's statement that the Byers boy was already dead when he left
the scene. The boys were in fact tied up, albeit with shoe laces rather than rope. Damien Echols was observed near the crime scene at 9:30 p.m. on May 5. He was wearing black pants and a black shirt and his clothes were muddy. A witness testified that she had attended a satanic cult meeting with Echols and the appellant. Steven Byers' mother testified that, approximately two months before the murders, her son told her that a man dressed all in black had taken his picture. There was evidence that Baldwin owned a shirt and boots of the type described by the appellant. Finally, a witness from
the State Crime Lab testified that she found fibers on the victims' clothing which were microscopically similar to items in the Baldwin and Echols residences.
Prior to trial, the appellant moved to suppress his confessions on the grounds that they were not voluntarily given, that his waiver of Miranda rights was not made voluntarily, knowingly and intelligently, and that his waiver of rights was invalid because it was obtained without his parent's signature (the appellant was seventeen at the time he was interrogated).
The testimony at the suppression hearing revealed the following sequence of events leading up to the appellant's confessions. Approximately one month into the investigation, the police considered Damien Echols a suspect in the murders, but no arrests had been made. The appellant's name had been given to officers as one who participated in cult activities with Echols. Detective Sergeant Mike Allen questioned the appellant on the morning of June 3, 1993. The
appellant was not considered a suspect at that time.
Detective Allen attempted to locate the appellant at home, but was
unsuccessful. He found the appellant's father at his work place and told him he wanted to talk to the appellant. Mr. Misskelley, Sr. said he would find the appellant and bring him to the work place. When the appellant arrived, Detective Allen asked him if he could come with him to the police department to talk about the case. The appellant readily accompanied Allen. He was not handcuffed and
rode in the front seat of the car.
also initialled each component of the rights form. There was no evidence of any promises, threats or coercion.
The form also contained a section entitled "WAIVER OF RIGHTS," which read as follows:
I have read this statement of my RIGHTS and I understand what my RIGHTS are. I am willing to make a statement and answer questions. I do not want a lawyer at this time. I understand and know what I am doing, no promises or threats have been made to me and no pressure or force has been used against me.
The waiver was signed by the appellant.
After he was advised of his rights and had waived them, the appellant was asked if he would take a polygraph examination. He agreed that he
would. Detective Allen took the appellant to look for his father so that his father could grant permission for the appellant to take the polygraph. They observed Mr. Misskelley driving on the same road they were on, stopped him, and received the authorization. There was no evidence of promises, threats or coercion.
Detective Durham explained to the appellant how the polygraph would work and administered the test over the course of one hour. In Detective Durham's opinion, the appellant was being deceptive in his answers and he was advised that he had failed the test. At that point, the appellant became nonresponsive.
Detective Bryn Ridge and Inspector Gary Gitchell began another interrogation of the appellant at about 12:40 p.m. They employed a number of techniques designed to elicit a response from the appellant. A circle diagram was drawn and the appellant was told that the persons who committed the murders were inside the circle and that those trying to solve the crime were on the outside. He was asked whether he was going to be inside the circle or outside. He apparently
had no response. He was then shown a picture of one of the victims and had a strong reaction to it. According to Gitchell, the appellant sank back into his chair, grasped the picture and would not take his eyes off it. Yet, he still did not speak. Finally, Gitchell played a portion of a tape recorded statement which had been given by a young boy named Aaron. The boy was the son of a friend of the appellant's and had known the victims. The portion of the statement which the officers played was the boy's voice saying, "nobody knows what happened but me." Upon hearing this, the appellant stated that he wanted out and wanted to tell everything.
The evidence presented by the appellant at the suppression hearing consisted primarily of the testimony of polygraph expert Warren Holmes. Mr. Holmes testified that, in his opinion, the appellant had not been deceptive in his answers to the polygraph questions. He raised the possibility that the appellant had been wrongly informed that he had failed.
Seven days after the suppression hearing, the trial court entered
an order denying the motion to suppress. The appellant argues that the court's ruling was erroneous.
When the voluntariness of a confession is in issue, we make an independent determination of voluntariness based upon the totality of the circumstances surrounding the confession. We do not reverse a trial court's finding of voluntariness unless it is clearly against the preponderance of the evidence. Douglas v. State, 286 Ark. 296, 692 S.W.2d 217 (1985). Among the factors to be considered in determining the validity of a confession are the age, education and intelligence of the accused, the advice or lack of advice on constitutional rights, the length of detention, the repeated or
prolonged nature of questioning, or the use of mental or physical punishment. Id. A custodial confession is presumed involuntary and the burden is on the state to show that the confession was voluntarily made. Noble v. State, 319 Ark. 407, 892 S.W.2d 477 (1995).
questions, cannot be considered as a false promise of leniency. There was no implication that if the appellant talked the officers would recommend leniency or try to help him in any way. Likewise, the existence of a monetary reward does not invalidate the confession. Although their testimony was disputed, the officers testified at the suppression hearing that they did not communicate the reward offer to the appellant at any time. The trial judge was entitled to believe this evidence. Everett v. State, 316 Ark. 213, 871 S.W.2d 568
(1994).
Next, the appellant argues that his age and mental capacity rendered
his confession involuntary. While age and mental capacity are
factors we consider, those factors standing alone are not sufficient to suppress a confession. Mitchell v. State, 295 Ark. 341, 750 S.W.2d 936 (1988); Douglas v. State, supra.
that a fifteen-year old with an IQ of 74 and a second grade reading level was capable of comprehending his Miranda rights and of waiving those rights. The appellant's situation is similar. In fact, he was two years older than Oliver and had a slightly higher reading level.
As we have pointed out, the appellant was nearly eighteen-years old when his confession was made. He was advised of his rights, both verbally and in writing, on three separate and distinct occasions over the course of four hours.
State, 319 Ark. 407, 892 S.W.2d 477 (1995). There was no evidence of mental or physical punishment.
The appellant argues that his statements should be suppressed because of the techniques used by the police in questioning him. He is referring in particular to the use of the circle diagram, the polygraph, the picture of the victim, and the tape recording of the boy's voice. We have said that police may use some psychological tactics in eliciting a custodial statement so long as the
accused's free will is not completely overborne. Noble v. State, supra. In Noble, we held that showing the accused a picture of the victim and telling him he would not pass a polygraph didn't invalidate a confession. The circle diagram is a rather innocuous means of getting an accused to talk. It does not have any features which strike us as overbearing. The tape of the boy's voice gives us pause. This is the type of tactic that comes perilously close to psychological overbearing, and we cannot condone its use. However, in
this instance, since numerous other factors point to the voluntariness of the confession, we will not invalidate the confession.
After an independent review of the foregoing factors, we conclude that the trial judge's determination of voluntariness was correct. We are likewise convinced, based upon the same facts, that the appellant's waiver of his rights was voluntary, knowing and intelligent. When we analyze the validity of a rights waiver, we look to many of the same factors used in determining the voluntariness of a confession. See Bryant v. State, 314 Ark. 130,
862 S.W.2d 215 (1993); Hart v. State, supra.
END EXCERPT
According to the Texas Law Review Manual on Usage & Style, 8th edition, the proper title is Attorneys General.
The rule is: To form a compound of a plural term, pluralize the noun or other significant term that increases the number (e.g., courts-martial, mothers-in-law, findings of fact, assistant attorneys general, major generals, goings-on).
It makes more sense to me that it's attorneys general, as attorneys is the noun.
I think we crossed posts on that one.
Are you a lawyer, too?
And wonkers did ask what the correct term was, not the most used. My experience is that the correct terms are rarely the ones in most frequent use.
Yes, I'm a lawyer. I was admitted to the bar in 1968. You?
Courts martial seems exactly equivalent.
sure of the history of the term and I wouldn't go for the second usuage...that's like going with forte, pronounced as "fortay," instead of pronounced "fort." Ugh.
Me? Delete a post? Whatever for?
I think it's very good timing that we crossed posts and each gave a different answer. As I think about the law, this is perfectly ironic.
As for my status, I am a lowly law student, 1L, but heading to the end of the initiation period. I'm proud to say I'll be 2L next year, well, if I pass my finals that is.....
PS: I asked if you were a lawyer because I keep learning more and more who post at this site are, and I was only aware of a few when I suggested this thread.
Good for you. The first year of ls, as I recall is a killer. Then it's all down hill! This thread was just being suggested when I first came here. I'm glad to see it's thriving, and find the comments here very interesting. I often end up on some frolic and detour reading more about an area with which I am not very familiar.
Re my comment about removing my post. I've been reading the various threads and the comments of today, and I was being facetious!
I believe I'm having a deja vu experience. My torts prof spent the day discussing vicarious liability resulting from the employer/employee relationship where the distinguishing line for determining if the employee's actions were within the scope of his employment was traditionally determined by the old "frolic and detour" rule.
Very amusing.
Wrt deletions of posts: I'm afraid there will be few, if any, in this thread. First, I'm too lazy, and second, I'm barely able to remember how I'm supposed to do those things. I've a frightful memory.....
I've a frightfully bad memory for things I consider insignificant (which is a lot).
You must be a tort lawyer.
[Echols' attorneys] were not PDs. I believe they were called up on a rotation basis from practicing attorneys.
So are PDs, in many areas. Same difference, in any case. A $20/hour lawyer is not as motivated as a $150-300/hour one, especially when the client has already been tried and convicted in the media.
You have to agree with Misskelley's version of his confession as coerced.
Right. And Misskelley's lawyer, upon attempting to use an expert witness to establish just that, was thwarted out right by Burnett. Burnett decided that, since he'd already ruled that Misskelley's confession was not coerced, the expert witness would not be allowed to give any opinion on the specific confession in front of the jury. He was allowed to explain his methodology, and that was about it.
And we're not exactly talking about phrenology here. This is a branch of social psychology that is also used to establish cases of physical/psychological torture in your average banana republic. But the court bent over backwards to render the guy's opinion highly suspect and completely unusable. Here is the transcript of Dr. Richard Ofshe's testimony.
Q. [DAVIS] As far as -- what is it that you studied in relationship to this case?
A. [OFSHE] In this case in particular I have studied the following materials: The police reports and notes of Detectives Gitchell, Ridge, and Durham, the transcript of the first tape recorded interrogation of Jessie Misskelley, the transcript of the second tape recorded interrogation of Jessie Misskelley. I've listened to the tape recordings of both interrogations. I studied the transcript and the video recording of an interview of Buddy Lucas. I've studied the treatment records of Jessie Misskelley at East Arkansas Mental Health
Center. The transcript of a hearing in which Detective Ridge sought his search warrants from Judge Rainey. I attended a hearing in this case on January the thirteenth, nineteen ninety-four at which I heard and saw the testimony of Detectives Allen, Durham Ridge, and Gitchell with respect to what occurred during the interrogation. And I subsequently reviewed the transcripts of that hearing and then I interviewed Jessie Misskelley on December the fifteenth, nineteen ninety-three, and have subsequently carefully reviewed,
and studied, and analyzed the transcript of that interview.
Q. How long was that interview?
A. Three hours, more or less....It worked out to an eighty-seven page transcript.
Q. You talked with Jessie Misskelley for three hours. Is that right? A. No. I talked with Jessie Misskelley for the length of time it took to produce this transcript here.
Q. And you reviewed testimony of the police officers?
A. I reviewed their reports. I reviewed the actual transcript of the one part of the interrogation that -- or the two parts of the interrogation that were tape recorded, I studied and analyzed their notes, studied and analyzed their testimony.
....
Q. [STIDHAM] Can you tell the jury what it is that you do when you analyze a `confession?
A. [OFSHE] Ah, that -- that starts with determining whether or not the interrogation has been tape recorded, if the interrogation has been tape recorded in its entirety, then the analysis of the influence process during the interrogation is time consuming and -- is time consuming, but is fairly straightforward. When police agencies have not tape recorded the interrogation, the problem becomes much more complicated because it becomes necessary to try to reconstruct the events of the interrogation from the available information. So that in a case such as this case in which part of the interrogation was recorded and most of it was not, it becomes necessary to first try to identify what actually happened in the interrogation and the order in which things happened to then relate that to the statements that are undisputed. That is to say that parts of the interrogation which are recorded so that one can hook up the analysis or hook up the history of the interrogation as it occurred in the unrecorded part but as reported on by the police officers involved as well as the suspect, in order to try to rebuild and get a picture of how the interrogation progressed from start to step-by-step-by-step, and the changes that occurred over the course of the interrogation.
Now, in this particular case this culminates in the two recorded statements which give us a great deal of information about what happened during the interrogation and illustrate certain things about the tactics that were used and the suggestibility of the suspect in terms of how he responded to particular tactics that are -- that are simply captured in the recorded part of the interrogation.
....
Q. [STIDHAM] Doctor, have you formed any opinions with regard to this case?
A. [OFSHE] Yes, I have.
Q. Could you tell the Court your opinion?
A. That the statement made by Jessie Misskelley was a product of the influence tactics brought to bear on him, and that it overbore his initial stated intention to maintain that he had nothing to do with this crime and was not there, and that it was a process of influence brought to bear represented by the interrogation tactics that progressively changed his statements about that subject.
Q. Okay. Were there any other tactics in particular that -- that you thought were important?
A. The interrogation forms a process in which one step builds on the preceding step. And so, for example, the interrogation changes dramatically prior to and then after the polygraph -- I assume it's all right at this point for me to discuss the polygraph.
THE COURT: Yes, since we're outside the presence of the Jury.
BY THE WITNESS:
A. The poly -- the polygraph as used in this interrogation---
Q. First of all, Doctor, are you familiar with Mr. Holmes' report on the polygraph?
A. Yes, I am.
A. The polygraph as used in this interrogation has two effects. One based on the opinion formed by the polygrapher -- which as I'm aware Mr. Holmes says was an inappropriate opinion -- that Mr. Misskelley was "lying his ass off." That that created the circumstances under which the interrogators could shift to a -- an accusatory interrogation, one in which maximum pressure is brought to bear on the suspect and they then did precisely that.
The second effect of the polygraph is that Mr. Misskelley was told that there existed this machine -- scientific machine that was recording that he had done something that he knew he had not done. While Mr. Misskelley reported to me that he did not believe the polygraph the fact that -- the fact that he was told that contributed to his sense of helplessness that he had which developed over the course of the interrogation.
In conjunction with the other tactics and the other procedures of the interrogation the polygraph played an important role in swaying the influence process that was the entire interrogation and culminated with the two recorded statements.
A. Those particular techniques as testified to by the police officers and as I would understand them to fit in police interrogations so far as I -- I understand police interrogations and have studied them -- the technique of using the circle is an important technique because in this particular interrogation and consistent with what the officers say, that the technique was not being used to try to suggest that Jessie Misskelley that he was a suspect who was believed to be culpable but rather than he possessed information that was vital to the case and that the offer that was communicated through that was an offer to join the police.
Mr. Misskelley in my interview with him when I asked him about the impact of the circle technique, did not fully comprehend what would follow if you could not get out of circle. He simply did not understand what the consequences would be. The extent to which he could understand that was characterized by him in the interview I did. He knew that it was bad. He knew that it was a place where he did not want to be. And he knew that if he simply conformed -- and that is to say to agree with the police -- that they would take him out from the center of the circle and they could join him.
Over the course of this hour and a half we have Detective Ridge's notes which. indicate that Mr. Misskelley was now beginning to talk about the existence of a satanic cult, was giving the detective the kinds of statements that would implicate Damien and Jason which it is my opinion that the purpose of the entire interrogation and particularly the use of the circle technique. The contemporaneously notes illustrate the statement that Mr. Misskelley was successively giving that were statements that were damning to Damien and Jason. This according to Mr. Misskelley was coupled with repeatedly being asked questions about the facts of the crime and every time he would guess something and it would be an incorrect guess even what was known about the facts of the crime, Detective Ridge would be sitting there shaking his head no indicating that this was the wrong answer.
Those repeated refusals to believe his statements about where he was contributed again to his sense of helplessness. Then the picture technique and the tape recording was used. According to the testimony of Detective Gitchell and Detective Ridge the purpose of using -- at least Detective Gitchell on this point -- the purpose of using the picture was to get a response from Mr. Misskelley. The object in the course of an interrogation would have been -- and this is still at this point -- for someone whose principal interest to the
interrogators to obtain statements against another, the -- the technique is showing a group of photographs of a murdered boy was designed to put additional pressure on Mr. Misskelley and it succeeded and there are descriptions in the testimony of Detective Gitchell and Detective Ridge and the description that I obtained from Mr. Misskelley about his reactions to the use of the picture. All of those descriptions include Mr. Misskelley's becoming transfixed, terribly upset by the picture, staring at it, not responding to
other questions, Mr. Misskelley adds that it was a horrible picture and he began to cry. He became increasingly upset in immediate response to the use of the picture. That was followed by the audio tape of a little boy's voice saying the words that the little boy said.
Subsequent to that and immediately following that according to Detective Gitchell he got the tape recorder and would get the first recorded statement. The person -- it's possible now to analyze the influence process contained in the first recorded statement. We now have the first undisputed record in the case and in that part of the interrogation it's possible to demonstrate how relentless, the leading, suggestions, and an unwillingness to accept anything other than what the police knew the facts of the crime to be. This was
continually suggested to Mr. Misskelley and we can chart his moving step-by-step-by-step from an inaccurate statement to a statement that was put in his mouth by the police and the tape recorded part of it illustrates that. And I'm prepared to go through that step-by-step to illustrate how that happened.
Even then there were still gross inaccuracies in the statement. The next thing that happened is that Mr. Misskelley is left alone and Detective Gitchell meets with Prosecutor Fogleman and some of the specific gross inaccuracies in the -- the recorded statement are now discussed and according to Detective Gitchell's statement, Prosecutor Fogleman sends him back in to work on these particular statements.
That's the outline of my testimony and analysis of the process of influence in this interrogation.
Q. And you are prepared to go through step-by-step and cite page numbers of the statement to demonstrate this?
A. Page numbers of every statement, on every point, statements made by the police officers, statements made by Mr. Misskelley. These are the facts that I deal with.
Q. Have you also formed an opinion as to the classification of his confession?
A. I would classify this confession as a coerced compliant confession and for a number of other reasons having to do with other specific statements in the confession statement and gross inaccuracies in the scenario that Mr. Misskelley produces, I would reach the opinion that this interrogation was far more -- these statements are far more likely product of influence than they are based on any memory that Mr. Misskelley has of the crime.
....
A. [OFSHE] Yes, I do.
Q. ---and you won a Pulitzer Prize with regard to working in cults?
A. Yes, I did. I shared one, yes.
Q. And is it true that you have worked internationally with regards to satanic cult homicides or -- or let me rephrase that – to allegations of satanic ritualistic abuse or homicides?
A. I've consulted internationally, if Canada counts, ah, specifically on an occult inspired murder which was a real occult inspired murder.
I've consulted on other cases in which there had been allegations of the existence of a baby murdering satanic cult of the sort that is based on all the available evidence, based on the studies done by the F. B. I., appear to be totally without foundation insofar as there have now been over three hundred separate investigations of allegations of child murdering, child sexual abusing, secret satanic cults. None of these allegations have resulted in any evidence that suggests that these groups exist. This is a conclusion by Kenneth Lanning of the F. B. I.
The dividing line is between the murderous baby killing satanic cults and the youth culture groups and the occasional occult inspired criminal groups that in fact do exist. So there's both a reality to it and then there's a mythical level to it.
Q. Have you -- do you have an opinion of whether or not the homicides in question Mr. Misskelley is charged with or have anything to do with satanic rituals or anything of the occult?
A. As far as I am able to tell from what I know of the evidence, there is no evidence that suggests that there is an occult element to this and as far as the satanic panic tips that are given to the police, my understanding is that none of them have panned out. None of them has produced corroboration and that they have been investigated and this is what one would expect if this is an example of a satanic hysteria that it's picked up by the police. This sort of thing happens, when it happens, when there is a particularly heinous crime for which there is no obvious explanation. This is when these sorts of allegations are likely to surface.
Q. What are you basing your opinion on in this case -- that opinion with regards to this not being a cult killing?
A. What I know about the follow-up, the lead that suggested that there existed some cult, that Jessie Misskelley or anyone else was a member of. For example, during his interrogation, Mr. Misskelley provided a list of people who were supposedly members of the cult, and according to the testimony of Detective Ridge who followed that up was knowledgeable at the time of the deaths, none of those people confirmed the existence of a cult.
[end trial excerpt]
Regardless, throw out the Misskelley confession.
From the Arkansas State Supreme Court decision in Misskelley's appeal:
The statements [in Jessie Misskelley’s confession] were the strongest evidence offered against the appellant at trial. In fact, they were virtually the only evidence, all other testimony and exhibits serving primarily as corroboration.
So you see, you can't throw out Misskelley's confession. It's really the only thing propping this sucker up.
What about the Echols' confessions, heretofore unaddressed?
One kid (Kenneth Watkins) who made that claim later told a PI that the cops had "browbeat" him into that one, too. The other later recanted his story. Baldwin also supposedly "confessed" to another inmate while in county lockup. Jesus Christ, Niner, this is the kind of shit that comes out of a bad episode of Matlock. Who the fuck confesses to some shithead about something like this? No, in each "confession" instance, the person was extremely disreputable, the sort of people that come out of the woodwork to either get in on a big event or get some leniency from the authorities.
Cute. But that's a glib dodge of the guy who likely did this. Consider: Byers is a former drug addict, admits to having hallucinations, was abused as a kid, has a ferocious temper and massive mood swings just in the context of the films, and takes about a half-dozen kinds of medication. Chris Byers showed patterns of abuse both in his behavior and the occasional mark, shortly before his murder.
Since the murders, John Byers' wife, Melissa, has died under mysterious circumstances. The coroner has thus far refused to make a ruling, seeming uncertain between homicide and suicide.
According to Brent Turvey's [forensic specialist hired by Misskelley's lawyer] analysis of the ME's report, she had multiple contusions to her scalp, arms, and left shoulder. There was a quantity of drugs in her system, as well as possible needle marks on her feet. There was red/brown fluid in her mouth and airway, consistent with an edema fluid produced by loss of oxygen, suggesting that she'd been suffocated.
We're not just talking about the guy that butt-fucked Ned Beatty in Deliverance, Niner. This is an extremely large (6'8", 260+ pounds), extremely erratic individual, who has been in trouble with the law most of his life, who admits to having an abusive and drug-filled past, whose wife has since died under very odd and unexplained circumstances.
Remember also that Byers gave a knife to the producers of the first film, and that knife had blood on it. The blood was only tested for type, and Byers and his stepson coincidentally both had that type. So it was inconclusive, but shit -- do you need a diagram?
Satanic Panic, dear boy. Two words -- Raymond Buckey.
But if I recall, [John Byers] passed a lie detector test?
Yes he did. I honestly think OJ would have as well. But Byers never could get his story straight as to when or why he had his teeth pulled (and his dentures look like they've been run over by a roto-tiller -- they seem too crooked to be fake).
Has Damien Echols even taken a lie detector test?
I don't know. I don't think so. Personally, I don't place too much stock in them. I took one once, for a job I had years ago. I was stressed out, and failed, despite being 100% honest. It didn't hurt my standing at the job, but I was pretty shocked at those results, even a bit insulted. At any rate, there's a reason they're inadmissible.
As for the belt buckle or bite mark, the judge heard expert testimony and was unconvinced.
Yeah. That judge was Burnett, and that evidence was re-examined at Echols' latest appeal. Basically it turned into a battle of the expert witnesses, and Burnett sided with the State's boy. Quel surprise, as Cellar might say.
Aaron Hutcheson was considered an imaginative and unreliable witness. Despite the fact that Misskelley had baby-sat Aaron before, Aaron couldn't identify him until after Misskelley had already confessed. And he never could ID Baldwin or Echols. Aaron's mother, Vicki, is a real piece of work. She's the one who swore she attended a satanic ritual with Echols in his “red Ford Fiesta”. Trouble is, Echols never owned any car, nor did any of his family or friends own such a car. Vicki later admits to friends that she may have hallucinated the whole thing one night when passed out on her parents’ lawn, after a booze and pill binge. Aside from her substance abuse, Vicki also is a known liar and thief. You can read more about this stump of a family tree on this page.
There is compelling evidence to believe that many....details about what condition the bodies were in when found were widely known by the time Jessie gave his statement June 3rd, 1993. By this time, most of what the police knew about the deaths had been released to the press, and rumors were circling about what little was left out. The rumors were very easy to come by. A great many local volunteers had aided in the search for the boys, and were still on hand when they were found and carried onto the stream bank. The condition of the boys’ bodies could easily be expected, through this circumstance, to become a topic of gossip. The information released to the press that the boys were found in water could naturally lead to some speculation the boys had drowned.
The Saturday after the bodies were found, The Commercial Appeal reported on its front page that on Thursday, May 6th, Arkansas State Police radio had broadcast a report that the WMPD was “investigating the abduction and mutilation of three boys.” (8)
There exists in a police report dated May 27th documentation that a 16 year old high school student named Bob Loomis heard a rumor the very day the bodies were found that "at least" one boy had been castrated. (9). The next stage of a rumor progression logically would be to expect to see the “at least” dropped, transforming it into simply, one boy had been castrated.
Even John Byers jumped onto this wagon in the pre-trial publicity, insisting that his son's testicles had been found pickled in a jar under Echols' bed. Obviously, this is entirely preposterous, as there is no physical evidence whatsoever.
There's more on the same page, addressing the inconclusiveness of the oral sex angle, but it's lengthy and ugly, and I've done enough cutting and pasting for one night.
"So are PDs, in many areas. Same difference, in any case. A $20/hour lawyer is not as motivated as a $150-300/hour one, especially when the client has already been tried and convicted in the media."
Actually, the kids would be better off with full-time PDs, who would probably have more murder trial experience. And yes, attorneys who make $150-$300 an hour would be better for any defendant. This point, however, is irrelevant to whether the defendants receieved effective assistance of counsel, unless you are suggesting that effective assistance of counsel requires top-flite counsel.
"Right. And Misskelley's lawyer, upon attempting to use an expert witness to establish just that, was thwarted out right by Burnett. Burnett decided that, since he'd already ruled that Misskelley's confession was not coerced, the expert witness would not be allowed to give any opinion on the specific confession in front of the jury. He was allowed to explain his methodology, and that was about it."
This is SOP. You don't allow expert testimony when the judge has determined an issue as a matter of law. Otherwise, all criminal trials would go as long as O.J. Burnett heard the evidence, and if you read the precedent of Arkansas law on the point [the cases cited in the Misskelley appellate decision on the voluntarienss ofthe confession] you'll see that he was right.
Thanks for the hearing testimony. As a retained expert for the defense, Ofhse did a fine job. But he was swimming against precedent (see my cites from the Misskelley appeal brief), and his client confessed to many facts consistent with the murder, such as:
a) The victims had been seen riding their bicycles.
b) The boys had been severely beaten.
c) Two of them had injuries consistent with being hit by a large object.
d) One of the boys had facial lacerations.
e) The Byers boy had indeed been severely mutilated in the genital area.
f) All the boys had injuries which were consistent with rape and forced oral sex.
g) There was evidence that drowning contributed to the deaths of the Moore and Branch boys, but not the Byers boy.
h) The boys were in fact tied up.
Now, if your argument is that the police just fucked over Misskelley and doctored their notes and the tape recordings to produce this information, as given by Misskelley, then this discussion, while interesting, is moot. You imagine a conspiracy of epic proportions, with no evidence to support it.
a) Misskelley entered interrogation voluntarily;
b) He was advised of his rights;
c) he was read his rights from a form entitled "YOUR RIGHTS," and verbally advised of the Miranda rights contained in the form. Misskelley responded verbally that he understood his rights and
also initialled each component of the rights form;
d) The form also contained a section entitled "WAIVER OF RIGHTS," which Misskelley signed;
e) Misskelley agreed to take a polygraph;
f) The officers left the station and received authorization from Misskelley's father for the son to take the polygraph;
g) Upon returning to the station, Detective Bill Durham, who would administer the polygraph, once again explained Misskelley's rights to him. Misskelley verbally indicated he understood, and initialled and signed a second rights and waiver form which was identical to the first;
h) The officers decided to tape record a statement and received the confessions which are set out above. At the beginning of the first statement, on tape, the appellant was advised of his rights for the third time. The rights were fully explained to him, and the waiver of rights read to him verbatim.
So, what you are really arguing is that no one of Misskelley's age and/or IQ can give a voluntary confession, no matter how many verbal assents and written waivers he pens. Fair enough. call it "The Retard Rule" and have it passed in your state. Such a rule, however, is simply discordant with the law in the state of Arkansas, and it requires a result of gathering a witness, making a determination that he is a dumb beast, and thereafter, terminating that aspect of the investigation because no information gleaned for the dumb beast can be deemed reliable.
I meant throw it out in determining Echols' conviction. Misskelley confessed to the police. That is enough. It is difficult to overcome one's confession to murder, even with the aid of expert testimony. He admitted to the crime. Now, I understand that Ofshe impresssed you. But given the recitation of what Misskelley did in his confession, you contend that it was clear error for a jury to discount those actions and instead, accept the theory that Misskelley made it all up at the urgings of the police? Again, very generous, but for purposes of modern criminal trials, absurd.
On Echols Confession
"One kid (Kenneth Watkins) who made that claim later told a PI that the cops had "browbeat" him into that one, too. The other later recanted his story. Baldwin also supposedly "confessed" to another inmate while in county lockup. Jesus Christ, Niner, this is the kind of shit that comes out of a bad episode of Matlock. Who the fuck confesses to some shithead about something like this? No, in each "confession" instance, the person was extremely disreputable, the sort of people that come out of the woodwork to either get in on a big event or get some leniency from the authorities."
Are you serious? Two confessions by Echols, one confession by Baldwin, and one confession by Misskelley, created by police pressure, all tainted, and thus, you get to 90% assuredness of innocence. Criminals confess all the time, more so in real life than on Matlock.
a) Echols' two confessions. You say that Kenneth Watkins had been browbeat into his story. His testimony, however, was not heard at trial, and as such, it was not relied upon by either the jury or the appellate court. Now, you suggest that an unnamed person had recanted testimony as to one of the Echols confessions. At trial, however, Christy VanVickle testified that she heard Echols say he "killed the three boys." Jackie Medford testified that she heard Echols say, "I killed the three little boys and before I turn myself in, I'm going to kill two more, and I already have one of them picked out." I have no knowledge that either witness has recanted. Please let me know if I am mistaken.
Can the statements be sloughed off as mere bragging or the wild fantasies of two girls? Sure. Bad luck for Echols, I suppose. Coupled with all the other evidence, the jury decided otherwise.
b) Michael Carson overheard Jason Baldwin's confession. On appeal, Baldwin did not even challenge the sufficiency of the evidence based on the damning nature of this confession.
Can the statement by Carson, then in detention with Baldwin, be the statement of a shifty, jailhouse type looking to curry favor with the system? Sure. Bad luck for Baldwin, I suppose. Coupled with all the other evidence, the jury decided otherwise.
c) The police were witness to Jessie Misskelley's confession.
Could the police have taken advantage of this dimwit, overriding his ability to speak truth and fiction? Sure. Bad luck for Misskelley, I suppose.
"Byers is a former drug addict, admits to having hallucinations, was abused as a kid, has a ferocious temper and massive mood swings just in the context of the films, and takes about a half-dozen kinds of medication. Chris Byers showed patterns of abuse both in his behavior and the occasional mark, shortly before his murder."
This paragraph is ludicrous. Read what you have written in toto. Confessions ignored or explained away. The evidence of guilt recited by the Echols appellate court, including proximity, fiber analysis, possible discovery of a murder weapon, contradictory and damaging trial testimony, alle evaluated by a jury and an appellate court -all not enough. Yet, a man on medication who passed a polygraph - GUILTY!!!!
Facts on Byers. The documentary was his 15 minutes. A petty drug punk, he and his wife were arrested for stealing $ 20,000 in antiques. Byers himself was convicted of writing bad checks. A restraining order was placed on him for striking another neighbor's son with a fly swatter. His wifde, a fellow drug fiend, died, and they don't know how. A murderer this doth not make. A hinky dude this doth make.
"Remember also that Byers gave a knife to the producers of the first film, and that knife had blood on it. The blood was only tested for type, and Byers and his stepson coincidentally both had that type. So it was inconclusive, but shit -- do you need a diagram?"
There can be no doubt that I need more than you.
I really don't know what to say to you. This statement is preposterous.
ECHOLS/MISSKELLEY/BALDWIN
Confessions
Serrated knife found in lake behind Baldwin's home
Evidence that Echols owned a similar knife
Proximity
Damaging admissions
Knowledge of non-public aspects
Fiber evidence
They were pretty hinky dudes
BYERS
A knife
Past drug use
The "mysterious" death of his own wife
Removal of his teeth
He's a pretty hinky dude
"Byers was a drug informant for the WMPD, which may explain why he was not very thoroughly investigated, plus the fact that Echols was a suspect from the get-go (not officially, but he’d been questioned already less than a week after the murders), and couldn't disprove the small-town rumors, "sightings", and "confessions" that swirled around him. It was a small town in one of the notches of the Bible Belt, and Echols was the town weirdo -- a creepy kid who collected animal skulls and copied Metallica lyrics in his journal. Dump some sensationalized diary passages into the media’s lap before the trial, and you got yourself a conviction."
This is fantasy land. This is what you want to believe. Hyperbole completely ignoring what you need to ignore to reach your conclusion of 90% assuredness of innocence (mind you, reached after you had seen a TV show, so don't go "Matlocking" me again)(g).
"Yes he did . I honestly think OJ would have as well. But Byers never could get his story straight as to when or why he had his teeth pulled (and his dentures look like they've been run over by a roto-tiller -- they seem too crooked to be fake)."
He passed a lie detector test, Eric. That you think OJ could have, and you rest on this point, is all well and good, but it is somewhat indicative of your desire to exonerate those convicted.
"But that doesn’t mean I think all polygraph tests are completely worthless. FWIW, here is an analysis of Misskelley’s polygraph. The end is particularly interesting, as the analyst describes the sort of personality who could be led into a false confession – low IQ, highly susceptible personality, low self-esteem. Misskelley has an estimated IQ of 72, has the mental capacity of a 5- or 6-year-old, and is borderline retarded. It is very possible that the cops lied, and told him that he failed his polygraph test, to break his will and elicit a story from him, a story chock full of holes. Despite what the appellate court ruled, citing Oliver, I think that’s bullshit. You gonna sit there and tell me that a kid with a 74 IQ and a second-grade reading/comprehension level knows what the fuck a Miranda warning means? That’s horrible."
Ah. Polygraphs taken by Byers (and passed) -conclusive of nothing. Polygraphs taken by Misskelley (with mixed results) -conclusive of something.
As for what is horrible, you argue for a blanket protection of the stupid, a potentially crippling new standard in our criminal justice system ("Oh, we can't take his confession. He's too stupid. he can only waive his rights if he spells it out on an Etch a Sketch").
Well, you've imagined the police apparatus as borderline criminal, you toss confessions out as if they were so much confetti, yet you place the spotlight of blame on a man who passed a polygraph because he was unstable and his wife died under mysterious circumstances. I suppose a charge that judge is biased seems a natural progression.
"Remember also that Byers gave a knife to the producers of the first film, and that knife had blood on it. The blood was only tested for type, and Byers and his stepson coincidentally both had that type"
Oh? Why not test the blood for DNA? The police will have samples available.
If the producers didn't take a fleck of dried blood, then WHY didn't they? Why did they only test for blood type? Couldn't afford $500 for a DNA test?
continued...
I agree that Byers is a pathetic wacko, as well as with your observation that he is a lonely old fool. I disagree as to the conclusion of innocence, though I can see how you (and Cart) might derive same from Paradise Lost (I and/or II), for the reasons I've stated (exhuastively) this week.
I read your posts, and on the points of law, I'm sure you're correct. The confessions still seem weak to me.
Did you see the films?
I saw the first one and I'm waiting for HBO to air the second one again, instead of a scintillating Dean Cain/Shannon Tweed/Bruce Boxleitner potboiler.
On the weakness of the confessions, Misskelley's confession is only weak if you accept a) police criminality and b) that he is just so fucking stupid that you could make him eat Leggos.
The other confessions are gravy if you accept Misskelley's, as he places Echols and Baldwin at the scene, doing the deeds (hence, he gets 40 years, because he dragged a kid back, but did not kill him).
Hmmmm. I'm going to admit to complicity in a murder just because the cops want me to. But rather than actually admit to murder, I'll just tell them I helped move a body or two.
See-- I don't want to get myself into REAL trouble. I just want to make the nice officers smile.
The boys weren't tied up with rope, but shoelaces.
The time the crime took place, which in the confession bizarrely jumps all over.
There was no evidence of anal rape.
That Misskelley knew they had been riding bikes and that one of the boys had been mutilated would have been details that survived numerous retellings in a small town before they got to his ears.
The other confessions you rely on are jokes. One girl in PL (probably this Christy girl you mention) in the trial gets up and says she heard Damien say he killed those three boys, but she doesn't know when she heard it, what else he said, or indeed anything else about the context it took place in. Just one day this girl (not a friend of his, by the way) passes by and hears Damien say he killed the three boys -- just like that.
I can imagine numerous examples of anyone (let alone kids) telling people things they didn't actually do.
For example, a new prisoner telling other prisoners he killed someone he didn't just to keep his ass from being raped. This is the tack I certainly take.
Ace -- By the way, the DNA test was done on the knife Byers gave HBO, but the investigators botched the job and contaminated the evidence.
Two girls overheard Echols confess. The jury, obviously, was not laughing. One adult heard Baldwin. His testimony was so damaging that on appeal, Baldwin did not challenge the sufficiency of the evidence.
On the confession, Misskelley may have fucked up on the particulars, but he got the meat out there after waiving his rights three times.
When you cut a worm, it is just pieces. Indistinguishable from mush. That is what advocacy law cum journalism excels at. But when you sit in a jury box, and you have a kid try and run from his confession of murder after -
a) Misskelley entered interrogation voluntarily;
b) He was advised of his rights;
c) he was read his rights from a form entitled "YOUR RIGHTS," and verbally advised of the Miranda rights contained in the form. Misskelley responded verbally that he understood his rights and
also initialled each component of the rights form;
d) The form also contained a section entitled "WAIVER OF RIGHTS," which Misskelley signed;
e) Misskelley agreed to take a polygraph;
f) The officers left the station and received authorization from Misskelley's father for the son to take the polygraph;
g) Upon returning to the station, Detective Bill Durham, who would administer the polygraph, once again explained Misskelley's rights to him. Misskelley verbally indicated he understood, and initialled and signed a second rights and waiver form which was identical to the first;
h) The officers decided to tape record a statement and received the confessions which are set out above. At the beginning of the first statement, on tape, the appellant was advised of his rights for the third time. The rights were fully explained to him, and the waiver of rights read to him verbatim.
The coating to this pitch is the smarter-than-hicks attitude, as if some juror sitting there will be neatly placed in an educated man's box of "Hell, those kids like Ozzy Osborne . . . fry 'em."
Not that the charge has been foreclosed, mind you.
Misskelley's confession led the police to Echols and Baldwin. As I said to Cart, throw out the retard's confession in assessing their guilt. There is still plenty of evidence (including their own confessions) to convict both of murder. Moreover, the only reasons I give are the ones given to the jury, which evaluated longer than your average HBO show watcher, and the appellate court, charged with reviewing the sufficiency of all the evidence and allegations of reversible error.
Give me a camera crew, a budget, HBO time, Jello Biafra, kick-ass publicity hungry defense counsel, and a legion of devotees working one a web site that, and I kid you not, has a place where you get a T-shirt or contribute to the Echols/Baldwin college fund (poor, dumb Jessie got the shaft on that one), and I'll chop apart any crime that isn't on videotape.
Hell, give me Delorean and I'll beat a videotape.
Two girls overheard Echols confess. The jury, obviously, was not laughing.
Both of those girls' testimony was filmed (it must have been PL2 -- they had several flashbacks to the original trial in the second film -- since I'm sure you would have remembered it and not attempted to use it as strong evidence against those boys). They were both a joke, Niner.
One adult heard Baldwin. His testimony was so damaging that on appeal, Baldwin did not challenge the sufficiency of the evidence.
Again, I have no idea about the law in this matter. Could it have been, however, that the reason it wasn't challenged was because it would have been damaging to the case had it survived the challenge? It's basically, what, one guard's word against Baldwin's? How could it be challenged?
On the confession, Misskelley may have fucked up on the particulars, but he got the meat out there after waiving his rights three times.
At no point, have I attempted to challenge the legality of the confession, but the legality of the confession is not the same thing as a believable confession so this laundry list you provide here may be useful to counter Cartman's claim, but not mine.
"In short, I have nothing against using a confession from a retard, but the confession still has to be plausible to count as evidence, and this one is filled with errors."
Anybody see the irony here?
I refuse to credit this retard's confession as genuine, because this retard made lots of errors in recounting his story, and mistook shoelaces as "rope."
Interesting.
Cartman: The confession must be tossed out because he's a retard
Pincher: The confession must be discounted because the retard got some details wrong
PS: Anybody know the percentage of retards who wear watches, or who are particularly concerned with what hour it is at any time during the day?
The coating to this pitch is the smarter-than-hicks attitude, as if some juror sitting there will be neatly placed in an educated man's box of "Hell, those kids like Ozzy Osborne . . . fry 'em."
And my rejoinder to this is "Remember OJ's jury?"
Oh, well, sure. That part he made up to please the cops.
This is silly. The cops are "feeding" the retard his story, but the cops deliberately, or negligently, "feed" him the wrong story filled with lots of errors.
Ummmmm... if you're feeding someone a story, why not get the story RIGHT? Why lard it up with errors? Just so Eric Cartman will have something to get all heated about?
You could make a better case were you even remotely acquainted with the facts. I have already stated that I don't trust HBO's particular twist on this case and presented some facts that show why.
"You could make a better case were you even remotely acquainted with the facts."
That's true. But that would require effort.
As I said, the joke was clear to you. Not to the jury, not to the appellate court. Most folks just don't understand made up confessions by teenage girls as a prank, or boasting of murder when, in fact, you did not commit same. As I said before, bad luck for damien Echols that a) two girls would just make up his confession out of whole cloth or 2) he cracked funny at the wrong time. I'll check the trial testimony, but I'm guessing on cross-examination, Echols denied even making the statement (he would have been advised to say, "Hey, I was goofing!")
As to the Baldwin confession, it was to a fellow con in juvenile detention, not a guard, and the defense ripped up the con as best it could. Again, just bad luck for Baldwin that soem con out of nowehere decided he'd make up a story out of whole cloth.
I understand your point re: believability versus legality of the confession. But it is certainly more believable that Misskelley was telling the truth and screwing up details than making up a big fib implicating not only himself but his friends in a triple murder.
The cops probably bribed him with donuts.
Retards love donuts.
But then, who doesn't?
On OJ's jury, I would argue that any jury kept on one case for over a year should be mandated by law not to convict.
How can a prosecutor say, "Well, you've been hear long enough to get a bunion and to watch your oldest daughter go from high school to college, but there is no reasonable doubt as to defendant's guilt."
Than what the fuck have I been doing for over a year, Darden?
"Even a retard can tell the difference between noon and evening without a watch."
Ah, but can they *remember* the time?
Ask me about when a particular event occurred three days ago and I will only answer correctly half the time, and I will not be able to pin the time down better than plus/minus one or two hours.
You don't allow expert testimony when the judge has determined an issue as a matter of law.
Perhaps that should have been something for the jury to decide. But as you can see from the testimony, the prosecutors were going apeshit over that notion. Why is that? Certainly Ofshe's science, again, is empirically proven and entirely relevant. Should the jury not have had some insight into the interrogation techniques the police used on a retarded kid? I mean, isn't that the point of a jury trial -- the jury hears both sides of the story, and attempts to find the third side, the truth. This was an important point, and it got completely glossed over by Burnett.
As a retained expert for the defense, Ofshe did a fine job. But he was swimming against precedent (see my cites from the Misskelley appeal brief), and his client confessed to many facts consistent with the murder....
Yes, yes, I'm aware that as a point of law, there's a problem here. As for the facts consistent with the murder, I have already pointed out several instances where crime facts either wound up in the paper, or were well-known rumors. Remember, Misskelley wasn't questioned until June 3, almost a month after the murders. Rumors go around a small town, even when you have a 72 IQ. Even if you don't find it suspicious that the cops turned the tape recorder off for a while during Misskelley's interrogation, and when they turn it back on, he miraculously has a couple of details closer to what really happened.
And therein lies the problem, Niner. Going off of all this suspect information, the police built their case up around the premise of satanic ritual murder. Well, there's a problem with that -- only Echols had any known interest in the occult at all, and there is no real evidence indicating that the murders were in fact ritually motivated. Ergo, no real motive.
Inaccuracies in Misskelley's confession (from this page):
Jessie says boys skipped school May 5, 1993.
FACT: Boys were in school all day, so was Jason Baldwin.
Jessie says boys were killed at noon on May 5, 1993.
FACT: Boys were in school until 3:00 p.m., and were last seen alive at about 6:30 p.m. ME says time of death was 1:00 TO 5:00 a.m. on May 6th, 1993. Jessie worked with Ricky Deese until about 12:30 p.m.
Jessie says boys were raped (sodomized).
FACT: Medical examiner says no trauma to boys anuses, something that would have been there if they were raped.
FACT: Medical examiner says that the penis of Byers was methodically skinned by someone with extensive knowledge of anatomy and the process would have taken some time to complete even under laboratory conditions. (Note: Since this inconsistency, Misskelley's hired forensic specialist, Brent Turvey, has indicated that it would not have required ëxtensive knowledge", but clearly took more than a single swing. Plus, obviously very bloody. Problem: no blood at crime scene.)
Jessie says that the boys were tied up with a brown rope.
FACT: The boys were bound with their own shoestrings.
Jessie says the boys were beaten with a big ol' stick and cut with a knife.
FACT: No blood was found at the scene, and ME says those injuries could not be inflicted with out a great deal of blood loss. (This leads on to believe that the boys were killed elsewhere and their bodies dumped in the creek. This seems to be corroborated by the fact that search teams were combing the woods that night walked all over the spot where the bodies were recovered.)
Jessie says Damien choked one of the boys with a big ol' stick.
FACT: Medical Examiner says none of the boys had choking or strangulation injuries.
That's what happens when you hang an entire case like this on the word of a simple-minded kid. I mean, I'm surprised the cops didn't just hold out a Raggedy Ann doll, and tell Misskelley to do to the doll what Baldwin and Echols supposedly did to the boys, à la McMartin.
Also, as an experiment, Stidham (Misskelley's lawyer) and a doctor got Misskelley to confess to a crime that never happened. That at least should suggest what sort of mentality the cops had on their hands that afternoon. Stupid, scared, and alone, he was pressured into saying quite a few things that never even happened on May 5. That much is an indisputable fact.
FACT: Medical examiner says that the penis of Byers was methodically skinned by someone with extensive knowledge of anatomy and the process would have taken some time to complete even under laboratory conditions. (Note: Since this inconsistency, Misskelley's hired forensic specialist, Brent Turvey, has indicated that it would not have required ëxtensive knowledge", but clearly took more than a single swing. Plus, obviously very bloody. Problem: no blood at crime scene.)
Jessie says that the boys were tied up with a brown rope.
FACT: The boys were bound with their own shoestrings.
Jessie says the boys were beaten with a big ol' stick and cut with a knife.
FACT: No blood was found at the scene, and ME says those injuries could not be inflicted with out a great deal of blood loss. (This leads on to believe that the boys were killed elsewhere and their bodies dumped in the creek. This seems to be corroborated by the fact that search teams were combing the woods that night walked all over the spot where the bodies were recovered.)
Jessie says Damien choked one of the boys with a big ol' stick.
FACT: Medical Examiner says none of the boys had choking or strangulation injuries.
That's what happens when you hang an entire case like this on the word of a simple-minded kid. I mean, I'm surprised the cops didn't just hold out a Raggedy Ann doll, and tell Misskelley to do to the doll what Baldwin and Echols supposedly did to the boys, à la McMartin.
Now, if your argument is that the police just fucked over Misskelley and doctored their notes and the tape recordings to produce this information, as given by Misskelley, then this discussion, while interesting, is moot. You imagine a conspiracy of epic proportions, with no evidence to support it.
Well, just the fact that the police saw fit not to record the entire interview, and in fact broke up the recordings of the proceedings, is pretty hinky. Also the fact that his parents never signed off on the Miranda warning for his questioning is relevant. I'm not touting a sinister JFK conspiracy, but it looks like the WMPD, in their absolute certitude, may have cut a few corners. Sometimes those corners turn out to be important. That's not a conspiracy, that's just shit happening. Or "bad luck", as you put it. As I said before, lazy cops can fuck your life up. And again, I have experienced this first-hand, with cops lying right to my face to get me to confess to a crime that never even occurred. More to the point, one might consider just how over a dozen men in Illinois have been released from death row just in the past couple years. You can't deny that this shit goes on, Niner. I'm not saying that the cops knew Echols etc. were innocent and collared them anyway. But they seem awful zealous over shaky confessions and disreputable "overearings".
ECHOLS/MISSKELLEY/BALDWIN
Confessions -- Sorry, but every one of those confessions is tainted. They're either coerced, or passed through questionable sources, or recanted outright. None of them sound particularly reliable.
Serrated knife found in lake behind Baldwin's home -- Seven months after the murders, along with lots of other trash. The creek was a popular dumping ground. At any rate, the knife was never established as the murder weapon.
Evidence that Echols owned a similar knife --Which was never found.
Proximity -- Small town. Everybody was proximate.
Damaging admissions -- William Jones recanted before he was to testify. Twelve-year-old Christy VanVickle and 15-year-old Jackie Medford claim to have heard Echols bragging about the murders at a couple of softball games. One of these games occurred after Echols had been arrested. Real credible.
Knowledge of non-public aspects -- I already covered this. Almost everything had been public. A kid named Bob Loomis had reported hearing that one of the kids had been castrated on May 27, a week before Misskelley's arrest. Echols' supposed inside knowledge came forth when the police, during questioning, asked Echols to speculate on details of how ritual murder might take place. Echols says he offered his best guess. Maybe he did, maybe he didn't. He doesn't seem to have known anything particularly inside, though.
Fiber evidence -- Inconclusive. Fiber evidence is not fingerprints, and none of the fibers were admitted.
They were pretty hinky dudes --Agreed. But as you say, hinky doesn't mean killer.
A knife -- With blood on it, matching the type of both Byers and his stepson. Byers changed his story as to how the blood got there several times, before finally deciding he somehow cut himself.
Past drug use -- Between illegal and psychoactive prescription drugs, more like constant drug use. Byers seems to have been on one form of drug or another for his entire adult life. He is clearly addled, and admits to having hallucinations and flashbacks on his own abusive childhood.
The "mysterious" death of his own wife -- Well, yeah. How many other people have died mysteriously around Echols and friends? Aside from the dog skull found in Echols' room (which he could have found), they don't even have any history of violence against animals. But Melissa Byers not only was a drug fiend, the autopsy report indicated contusions on her head, and the backs of her arms and shoulders. Chris Byers was something of a behavioral problem, and it had been speculated that he'd been abused. Are we seeing a possible pattern, or do you want to hypothesize that Melissa Byers beat herself across the back in a drug-induced frenzy?
Removal of his teeth -- This one's a bit flimsy, and is only relevant because of the nature of the wound across Stevie Branch's forehead, which looks a lot more like a bite mark than a belt buckle mark. At any rate, it's amusing to watch Byers in PL2 mumbling, stumbling, and fumbling as to what year he got them pulled. Watch, you'll see. The guy could not keep his fuckin' story straight to save his life.
He's a pretty hinky dude -- Again, agreed. And again, that does not in itself make him a murderer. But what I'm saying is, his erratic behavior, past history, possibly abusive circumstances surrounding his wife and stepson, all make him a likelier candidate to do something like this. Doesn't mean he did it, but it does raise some serious concrete doubts.
So how would three carless teenagers transport their victims from point A to point B without detection? Everybody and their brother proclaimed seeing Echols and his girlfriend taking the footmobile soon as his name surfaced, surely someone would have seen three slight teenagers lugging dead bodies out to a grove.
And aside from the bizarre rumors of Echols wearing dog entrails as a tie or some such nonsense, none of them had any sort of violent history (except one confrontation between Echols and his father, after which they subsequently reconciled). It is very strange for non-violent people to suddenly hit the ground running, as it were. Normally they start by getting in lots of fights, or torturing animals. None of this sort of behavior was established. Not definitive, but harder to believe than someone whose wife and son show patterns of physical abuse.
Sorry, but the whole thing reeks to high heaven of Sam Sheppard and the McMartin fiasco.
Why not test the blood for DNA? The police will have samples available....If the producers didn't take a fleck of dried blood, then WHY didn't they? Why did they only test for blood type? Couldn't afford $500 for a DNA test?
My, aren't we just smug. First of all, the producers immediately turned the knife over to the authorities. They tested it. Second, apparently the test for blood type essentially destroys that sample, and there wasn't enough left over to test for DNA. It's not damning in and of itself, but if you watch the first movie, you see the circumlocutions Byers goes through to try to explain just how the blood got there. Eventually he finds a story worth settling on.
Message # 976:
I'm going to admit to complicity in a murder just because the cops want me to. But rather than actually admit to murder, I'll just tell them I helped move a body or two.
Perhaps you would if you were a scared retard. At any rate, you might want to go back and check out my exhaustive cut-and-paste job of Dr. Ofshe's testimony, in which Ofshe explains the empirically sound methodology explaining how confessions can be coerced.
Or you could continue being a smug asshole, barking about something you clearly know nothing about.
Misskelley got more than just the time wrong (which he changed many times, not just once or twice). You talk about how he got details right. Well, he got lots of details wrong, too, and confessed to shit that could not have happened.
Message # 988:
Ummmmm... if you're feeding someone a story, why not get the story RIGHT? Why lard it up with errors? Just so Eric Cartman will have something to get all heated about?
Not at all. Just pointing out the errors. But it is funny seeing you talk about anybody getting heated. Nigga please.
Ha! Nice timing.
The reasons behind this episode are sketchy, but it's yet another brick in the wall of hinky shit about John Byers.
Anyway, don't take my word for it. Watch the movies (all the way through this time, Ace). Check out the links I provided. Read the evidence for yourself. You may not come away convinced that they're innocent, and Byers guilty, but I honestly don't see how it doesn't at least raise a reasonable doubt.
And keep in mind, much of this stuff was never presented to the jury, so this is not, contrary to Niner's phrase, a "smarter-than-hicks" thing. They weren't allowed to hear the other side of the story. They only got to weigh a certain amount of evidence.
Also, as an experiment, Stidham (Misskelley's lawyer) and a doctor got Misskelley to confess to a crime that never happened.
Ah. His paid advocate and paid doctor say so. Certainly they didn't hint to Misskelley that perhaps he SHOULD confess, now did they?
Of course not. And expert witnesses will certainly NOT say whatever you pay them to say. Nope. Never happens.
And expert witnesses will certainly NOT say whatever you pay them to say. Nope. Never happens.
Don't be ridiculous. Of course they're paid advocates. I addressed this issue way back there. That's what expert witnesses are for, and both sides use them.
Go back to where I cut-and-pasted the relevant excerpts on how Dr. Ofshe's methodology works, and precisely why he feels that Misskelley's confession is suspect. Understand that this is not palm reading or phrenology, this is an empirically sound branch of social psychology, and Ofshe shared a Pulitzer Prize for his work on cults. So he knows his shit.
Unless you want to come right out and say you think he's flat-out lying. But I suggest you actually read what the guy had to say at first.
And remember, the judge forced most of this explanation to be done out of the presence of the jury. So they never even had the opportunity to hear the guy. So much for hearing all sides of the story, and weighing all the relevant evidence.
An awful lot of weight was thrown behind a shaky cult theory, backed with a questionable confession from a retard, corroborated with fanciful stories which were either recanted, changed, impossible, or came from hopeful rats in lockup with the suspects. And a man who logically was at least as likely a suspect was basically ignored. This is odd, is all I'm saying. This is not very convincing evidence, especially when you consider the fact that the hearsay and confessions I described is all the evidence. Period. No blood at the crime scene. No DNA. Inconclusive fiber evidence. No weapon.
It's all "he said, she said", dude. And when you consider that every one of the people pointing the fingers is either stupid, drug-addled, or fundamentally dishonest to begin with, it barely qualifies for that definition. Is that all it takes to fry a guy these days -- a holey confession from a moron and some "corroboration" from alcoholics and inmates?
And that's the trouble with the Paradise Lost case. There's just too many holes in this thing; it doesn't hold water. It's not just a question of the process, it's that none of the principals can keep a straight story. It's fraught with errors and hearsay from start to finish. And that makes me think a leaky-ass case was patched up just so it could float through.
Think McMartin, Ace. Remember what a circus that was? Remember all the "eyewitness" testimony, all the "recollections", all the "evidence", all the rumors of satanic rituals and tunnels under the day-care center? That's what happens when a case is tried in the media, as this one was. People who should know better suddenly stop worrying about seeking the truth, and start thinking about slam-dunking that famous case so their names will be fresh in the public eye come next time they go to elect a judge.
At least go back and check out the refutations of the evidence I linked to, as well as precisely why Misskelley's confession is hinky.
We seem to have reached a lull in the conversation.
What shall we talk about next?
Parental rights as enforced by the US Attorney General?
I have a case right now on that very topic. Unfortunately, I've been told that the 11th Circuit has held that the Federal courts don't have jurisdiction to grant habeas corpus relief under the 1996 Immigration Responsibility Act.
Why are these people falling between the cracks?
I realize these people do not automatically generate sympathy, but I'm surprised there has been so little outrage.
I have had several confessions thrown out by the courts in this area as coerced, so I have some experience and some knowledge in the area.
First of all, the problem is the training of the police and their attitudes. Police officers investigate a case and once they decide who did it, they set about to prove the person did it, even to the exclusion of other evidence. In my most notorious case, my 16-year-old client sat in jail 364 days for something he knew nothing about. The police officer who was investigating the case and another officer locked him in a small room in school and questioned him for three hours, turned the air conditioner on and off according to how he was answering questions, and kept telling him what they wanted to hear, and telling him also that he told him what they wanted to hear he would just be a witness and would be permitted to go home, but if he told them that he was not there, and had nothing to do with it, he would go to prison for the rest of his life. The kid was not stupid, so he told him what they wanted to hear.
The reason they chose this kid was because his father owned a gray Nissan Maxima. It seems, one of the other kids that were involved with an earlier burglary that the shooting and attempted murders were supposed to be in revenge for, said that the ring leader drove a gray Nissan Maxima. The only problem is no witnesses saw a gray Nissan Maxima that night. However, at least three witnesses said they saw a blue Honda involved.
After two other participants pleaded guilty, they agreed to talk to me, because they thought my client was getting a raw deal. They would not testify because if they did, they would have to name another participant and a did not want to get a reputations as snitches. Plus, they wanted to see if they could get the person who led the shooting and who had immunity in trouble for snitching them out. But they were adamant my client was not there.
The latest type of training they receive not only teaches them to ignore invocations of the right to remain silent -- because they have little to lose by doing so. That happened in this case as well, with another of the defendants --I have it on tape and it went like this:
investigator: (Reeds Miranda rights) -- "now, bearing these rights in mind do you wish to talk to us?"
Suspect: "no."
Investigator: "well, that means that we are not supposed to ask you any more questions. But we are going to keep questioning you anyway."
Suspect: "you are? I think I need a lawyer."
Investigator: "too bad. (Asks first question)
suspect: silence.
Investigator: "does the tape recorder make you nervous?"
Suspect: "yeah."
Investigator: "then we will turn it off.”
(Tape ends)
I saw an interesting tape at a death penalty conference. It was of a black man who, initially confessed to strangling a girl because she wanted rough sex. It seems, the first cop was with him several hours and was not tape recorded. He kept telling the black guy things like this: "you know, it she really wanted rough sex, and it was an accident, hell, at worst, that is an involuntary manslaughter, at the absolute worst. If you say that she wanted have rough sex and was an accident, I mean, she asked you to strangle her, right? I know, some women love that -- they get bigger orgasms or something -- and that's what happened it was an accident. You didn't mean to kill her. It was an accident. Just tell me that, and you'll probably be out of jail this afternoon ."
The tape starts with this guy in the room by himself. In walks 2 detectives. The good cop, says, "this is detective (gives name). (First name of defendant), he has just a few more questions before we finish up with you."
Defendant: "okay."
Bad cop: "you say that she asked for rough sex and you accidentally strangled her with your hands. I have little problem with that. If it was an accident, why was her head almost severed by the cord you used?
Defendant: "what?"
Bad cop: (shows defendant picture of body) "look at it yourself. If this was an accident, why is there a 2 inch gap there? See what I'm talking about? The cord you used has cut two inches into her throat. How could that happen if it was just accident?"
Defendant: "what the hell are you guys doing? I mean, I never saw this woman before. I said it was an accident because the other detective said if I did I could get out of here. This is bullshit. I didn't do anything to that woman."
Bad cop: "then why did you confess to officer (named officer)."
It went on like this for several minutes. Notwithstanding the fact that the DNA tests showed that he was excluded as the person that had sex with her, the state of Florida was still prosecuting for capital murder based upon his confession.
In my opinion, every so-called confession and every interrogation should be tape recorded.
If I did not have the tape recordings of all the witnesses statements and the interrogations and the investigator did not die halfway through the case, my 16-year-old Asian defendant could be serving something like 52 years to life in prison for something he did not do.
Maybe not only tape-recorded but video-recorded?
The problem is a complex one. These people suffer from the double whammy of being convicted criminals and immigrants - not exactly a powerful voting constituency. The 9th Circuit decision indicates that help may be on the way, if only the Supreme Court should agree. Unfortunately, some of the circuits have held that the federal courts have no habeas corpus jurisdiction under the statute, which seems pretty bizarre as a first impression. We'll have to wait and see.
I just got back from a Law Review reception, where I received the Soia Mentschikoff Award for Excellence in Scholarly Writing. This is better than anything I could have hoped for!
Congratulations LadyChaos!!!
That is wonderful news! Congratulations! You seem to be a natural at this lawyering business....
I'm glad you saw my point as being serious rather than a joke. I, too, have benefitted a lot from the ruthlessness by which ill thought-out arguments are demolished here and, formerly, in the Fray.
Oh, boy, what an eye-opener. I think I'm leaning toward sticking with appellate work.
On the other hand, I feel like I learned a helluva lot about what to expect from a jury trial. What did I learn? That it's a crap shoot.
Point of interest - Our judge was an old defense lawyer who hails from the Bronx, named Al Krieger, who I've been told defended John Gotti. That man had Presence with a capital "P". He was terrific, especially in upholding my objections - heh-heh...
Congratulations!
Sorry about moot court but that's how some juries are.
Cigarlaw,
It's great to read your posts. I enjoy them and always look forward to them. I had a confession case like that once. All the way through the tape you could hear the defendant say: "I want a lawyer, I want a lawyer." The tape had to be amplified to hear it. The cops claimed they couldn't hear him ask because of traffic noises outside (the interrogation was held on the 10th floor) and because of the laundry noises from the jail (two floors up and on the other side of the building.) They were sitting within 2 feet of him.
I'm sorry for letting this thread languish for the last few weeks, but my schedule has gotten very heavy. I expect to continue to be scarce for the next few weeks as I gear up for my end of year finals.
I hope to be back soon with some ideas for more stimulating discussions. Till then, anyone can email me if I'm needed for some crisis (I somehow doubt this) at Msivorytower@hotmail.com.
Regards
MsIt
The following excerpt from oral argument is really an excellent distillation of how the Court's decision ought to be guided in this Miranda case:
"JUSTICE SCALIA: The court has the power to fashion procedural rules, but that doesn't mean that once it fashions them Congress cannot say, well, you know, we think this goes too far.
MR. WAXMAN Justice Scalia, I could not agree with you more, with an important caveat, and that is, in Miranda itself the court deliberately, repeatedly, and self-consciously said, this isn't the only rule. Congress or the State legislatures may impose another rule, provided it has adequate safeguards. . . .
When the court is applying a rule pursuant to its authority to interpret and apply the Constitution, Congress can come up with alternative ways to do it, but it is this court, under Marbury v. Madison and City of Boerne, that will ultimately decide whether the Constitution is satisfied. . . .
And if the Congress of the United States were to take up the court's suggestion, or any State were to take up the court's suggestion in Miranda that it has repeated since and come up with alternatives, and we've suggested some of them at page 20 of our reply brief, I would be standing before this court asking the court to consider whether or not the alternative safeguards sufficiently protected the Fifth Amendment privilege in this distinctive context. "
-- cont'd
"JUSTICE O'CONNOR So in your view this case boils down to whether section 3501 is sufficient ----
MR. WAXMAN Yes. . . . Section 3501 in our view cannot be reconciled with Miranda and therefore could be upheld by this court only if the court were to be prepared to overrule Miranda.
Now, why do I say that in our view, because it it may be very unusual, but it would not be improper for the Solicitor General of the United States to ask this court to reconsider and overrule one of its precedents, although in this case we're talking about 34 years and, as the Chief Justice has mentioned, 50 precedents, but let me just list the four reasons why, in our view, the case has not been made to overrule Miranda v. Arizona.
First, we think that stability in the law is important, and it is nowhere more important than in this case, given the court's extremely unhappy experience with the law of confessions under the totality-of-the-circumstances, and the certainty that this court has repeatedly recognized that Miranda provides.
Second, in our view, Miranda, as it has been developed and tailored and refined by this court, has proven workable, and its benefits to the administration of justice have been repeatedly emphasized by this court and documented by the court.
Third, in all of its post-Miranda cases, this court has reaffirmed Miranda's underlying premise, that is that custodial interrogation creates inherently compelling pressures that require some safeguards.
And finally, any re-evaluation of Miranda must take account of the profoundly unhappy experience of this court that impelled its adoption. Applying the totality-of-the-circumstances test in 36 cases over 30 years before 1966, the court was simply unable to articulate manageable rules for the lower courts to apply. . . ."
PS i got a 5.
I got a 25. No wonder I keep getting hired in positions for which I am largely unqualified.
What with your "Digression on Cigars"? Your last sentence in part 2: "I promise, next chapter I will get back down to talking about cigars."
George W. Bush is elected president. He wants the EPA to utilize cost-benefit analysis when establishing National Ambient Air Quality standards under section 108 and 109 of the Clean Air Act. Is this legal? Is this desirable?
Your prof just got a "1" in our old grade system for the second half of your exam.(0-9 with 9 highest) "Desirable" from what perspective? Desireable meaning "in accord with legislative intent" or "as a matter of public policy" or "have you read my law review article and tell me how clever I am and how you agree with my position" or "give me something to use to write my comment on the latest law review article everyone expects me to respond to?"
I have some nominees. The first is from first year contracts. We discussed accord and satisfaction for 10 minutes on one day in November. The second of three mandatory essay questions was on that issue. The second half of the test was 50 true/false questions. Question 1- Essay question number 2 was an accord and satisfaction question. True or False" Ever hear "shit" muttered under the breaths of 140 people at once?
I am pretty sure everyone had a vague idea of what to write (start with efficiency, work your way down the list...); I am also pretty sure that no one had anywhere near the time to answer that in one hour. Any of the three questions could have taken up the full time on its own.
Bubba -
As best as I can recall, the question was:
George W. Bush is elected president. He directs the EPA to revise its NAAQS in light of the non-delegation problems presented by American Trucking. It decides to replace the current standard promulgation regime with a system based on transparent cost benefit analysis.
Its first decision under the new regime deals with the SO2 standard: It has substantial evidence that 50,000 people will experience asthmatic attacks as a result of current SO2 levels, with the cost of each attack averaging $40,000. It decides not to lower the standard, though, because there is substantial evidence that people are not willing to pay anywhere near $40,000 to avoid a single asthma attack - people generally will only pay around $2-300 to purchase preventive medication. The EPA decides that, on balance, it would be more efficient to allow people to bear the burden of the additional atmospheric SO2 so that they would have an incentive to cheaply avoid the cost of the malady.
Considering all the caselaw we have discussed, is the decision to utilize CBA legal? Considering all of the theoretical arguments we have discussed, is it desirable?
The question was more developed than that, but basically I started with the framework of Chevron v. NRDC, talked about the legislative intent as discussed in Lead Industries v. EPA and American Lung v. EPA, and argued that it would not be "legal."
The question was really only hard because I only had an hour to mess with it. There is a lot of stuff to say there.
My professor, Lisa Heinzerling, clerked for Richard Posner and Justice Brennan - she is really pretty eclectic - a liberal L&E buff. She is also pretty environmentally conscious.
I have been up for days (literally). I am going to go take a nap.
For my property class last semester my professor distributed a 50 page fact pattern tracking the property issues of an island off the coast of South Carolina over three hundred years. Every imaginable property issue was involved, and you had to know generally how property concepts changed over time (the course is actually named "Property in Time"). The last paragraph of the fact pattern reads: "Professor Chused reserves the right to change the fact pattern as he needs on the day of the exam."
I get the exam; the first question reads: "Assume a volcano erupted near the southern end of the island in 1834..." It was all downhill from there.
I thought Accord and Satisfaction was carnal knowledge in an imported car...
My worst law school exam was from my labor law class, which was a requirement at Penn (to show off their 2 textbook authors). Unfortunately, one was on sabaticcal and the other had the other section, so we got a mid-30ish woman who wore short leather skirts and thought labor law should be taught as a branch of Hegelian philosophy. Unfortunately, the exam tested the material in the cases, not the lectures.
So were the owners able to build a beach house on their volcanic south carolina island, or did the government have to compensate them as an unconstitutional taking?
Thanks for convincing me to avoid Admin Law like the plague.
Btw, here's a link to the transcript of oral argument before the 11th Circuit in the Elian case.
If there is anything remotely unique about your design it is probably subject to copyright protection immediately upon its creation. Generally, copyright inheres in any created work immediately upon creation of that work; provided that the work is vested with some modicum of originality. Registration is not required in order to benefit from the protection of copyright laws. However, it is advised to register the design with the appropriate authority, as that will make it easier to prove that you are the creator of the design -- should there be a problem of infringement at some future date. Also, since you are talking about an ornament that you presumably wish to manufacture, once you produce it in certain quantitities it becomes subject to a different regime of intellectual property, namely: industrial protection, which is similar to copyright but subject to different registration rules and a lower degree of protection.
I am referencing Canadian law here. But, the American situation will be similar, as will the situation in Scandinavia (I think). The basics of intellectual property protection are relatively consistent throughout industrialized countries.
P.S. I am only a lowly student, so caveat emptor applies when it comes to my advice.
DaveM,
I sympathize with your exam frsutrations. I have written some truly absurd exams throughout my law school tenure. Convoluted fact patterns, surprise subject matter, illogically formed questions, unrealistic time parameters, etc. . . . And, oh yeah, shitty preparation never helps, either.
Gentlemen:
Thank you very much for your advice. I am encouraged. Everything sounds very easy.
Yours truly,
Uzmakk of the Steppe
As I understand it this is a technique used to stop citizens from speaking out in public forums. Can anyone say a few more words?
Who generally files these suits? Government? Government allied interests? Anybody with the money to do it?
Tired of Christmas ornaments manufactured in China for godless, soulless, bloodless, heartless, capitalists and their consumers?
I suggest something a little more environmentally-focused:
"These ornaments were laid by organically fed, free-range ornament-laying hens."
Oops. That was my idea for a line of Easter ornaments.
Where's MsIT?
Inquiring minds want to know whether we can expect to see her name on the editorial board of UT Law Review, next year.
By Seth Rosenfeld
OF THE EXAMINER STAFF June 11, 2000
--------------------------------------------------------------------------------
As fans of TV cop shows know, police are supposed to recite the Miranda warning before interrogating suspects. And they're supposed to stop questioning when suspects invoke their rights.
But detectives across California have deliberately violated the Miranda rule, grilling people who asserted their rights to have legal help and to remain silent.
The state Department of Justice approves of the tactic, and thousands of officers have been trained in what cops call "questioning outside Miranda." But state and federal judges call it "very troubling," "police misconduct" and "slippery and illegal." In cases around the state, Miranda violations -- along with other allegedly unlawful or coercive interrogation tactics -- have backfired.
Improper interrogations have caused costly court hearings, hindered criminal investigations, helped accused criminals go free, or produced allegedly false confessions that threatened innocent people with jail, The Examiner found.
Unlawful interrogation methods have derailed five murder cases in Oakland, Fairfield and Sacramento, and harmed a sixth in Santa Monica, according to court records. They also pose a disproportionate threat to suspects who are poor or uneducated or don't speak English well, said San Francisco defense lawyer John T. Philipsborn, who works with California Attorneys for Criminal Justice.
There could be more claims of coerced confessions if the U.S. Supreme Court reverses the Miranda ruling in a decision due this month.
The conservative Washington Legal Foundation wants to overturn the Miranda rule in a case called U.S. v. Dickerson, contending the warnings are not constitutionally required and let criminals evade punishment.
The U.S. Justice Department objects, saying the Miranda decision gives police a clear guideline for getting confessions while respecting constitutional rights. "If Miranda warnings are not required," U.S. Attorney General Janet Reno said in a brief, "the result will be uncertainty for the police and an additional volume of litigation."
There could be more claims of coerced confessions if the U.S. Supreme Court reverses the Miranda ruling in a decision due this month.
The conservative Washington Legal Foundation wants to overturn the Miranda rule in a case called U.S. v. Dickerson, contending the warnings are not constitutionally required and let criminals evade punishment.
The U.S. Justice Department objects, saying the Miranda decision gives police a clear guideline for getting confessions while respecting constitutional rights. "If Miranda warnings are not required," U.S. Attorney General Janet Reno said in a brief, "the result will be uncertainty for the police and an additional volume of litigation."
The controversy over whether police may violate the U.S. Supreme Court's most famous ruling on criminal procedure is one of the latest episodes in the history of modern police interrogation.
A longtime debate
What goes on inside the interrogation room has long been one of the most intensely debated areas of the criminal justice system.
After all, every interrogation casts a citizen against the cops; an individual against the state; the Constitution against the crime. Every interrogation potentially pits a person against his or her own damning words.
Over the decades, police -- prodded by the courts -- have shifted their interrogation methods from brute force to blatant threats to psychological subterfuge.
In a 1936 case in which police tied three black men to a tree and whipped them, the U.S. Supreme Court outlawed physical methods of coaxing confessions.
In the 1940s and 1950s, the high court barred confessions extracted through intimidation, physical threats and promises of leniency, saying they "shocked the conscience of the community" and produced unreliable evidence.
Then in 1966, the court handed down Miranda v. Arizona.
Events leading to the decision unfolded in Phoenix late on March 2, 1963, when a man with a knife abducted 18-year-old Mary Adams as she walked home and raped her.
Ten days later, police arrested and interrogated Ernesto Miranda, who confessed and was convicted.
The high court took Miranda's appeal, and in a 5-4 decision reversed his conviction.
Chief Justice Warren, a former California governor, wrote the opinion examining the "inherently compelling" nature of custodial interrogation
Another manual said that the detective must create "an oppressive atmosphere of dogged persistence. He must interrogate steadily and without relent. ..... He must dominate the subject and overwhelm him with his inexorable will to obtain the truth ..... ."
The court concluded: "It is obvious that such an interrogation environment is created for no purpose other than to subjugate the individual to the will of his examiner. "To be sure, this is not physical intimidation, but it is equally destructive of human dignity. "The current practice of incommunicado interrogation is at odds with one of our nation's must cherished principles -- that the individual may not be compelled to incriminate himself."
"An absolute prerequisite'
To balance pressures inside the interrogation room and protect the Fifth Amendment right against self-incrimination, the court required police to give the equivalent of what has become known as the Miranda warning. "Such a warning is an absolute prerequisite in overcoming the inherent pressures of the interrogation atmosphere," the court said. "Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease."
A leading police textbook, "Criminal Interrogation and Confessions," states bluntly that interrogation involves psychological tactics and trickery that normally would be considered unethical.
Or as UC-Irvine criminologist Richard Leo puts it, modern police interrogation is essentially a "confidence game based on the manipulation and betrayal of trust." "The essence of the con that is police interrogation lies in convincing the suspect that he and the interrogator share a common interest ....." Leo wrote in 1996 in Law & Society Review.
Detectives, he said, often try to persuade suspects that they share their feelings or want to help them.
And police may legally lie, noted Leo, who observed 182 interrogations by police in Oakland, Vallejo and Hayward.
They may fabricate witnesses, like the Solano County detective who told a suspect, "your friends ..... they done sold you out," said a 1997 article in the Denver University Law Review by Leo and UC-Berkeley sociology Professor Richard Ofshe.
Or concoct evidence, like the Richmond officer who told a suspect he had a "neutron proton negligence intelligence test," a piece of plastic into which the suspect inserted his trigger finger. "And the molecules on your fingers react to the neutrons and the protons and all of the other good stuff," the cop said. "It's the latest thing. It's high-tech." The indirect threat
Detectives may portray themselves as mere messengers. Though legally barred from making threats or promises to induce confessions, police often suggest that others -- the prosecutor, judge or jurors -- are harsher on the unrepentant, said Leo and Ofshe.
Modern interrogation techniques are so persuasive they have produced false confessions.
One study found that since the Miranda ruling, 60 people had been convicted in U.S. courts after false confessions.
Another survey based on DNA evidence found 14 people had been convicted after confessing falsely since the 1970s.
To help protect people from being compelled to incriminate themselves, the Miranda court required police to warn them about -- and honor -- their rights.
And to enforce the requirement, the court said that when police violated the rule, "no evidence obtained as a result of the confession can be used."
But beginning in 1971, led by new Chief Justice Warren E. Burger, the high court narrowed that exclusionary measure.
The court still punished police violations of Miranda by barring prosecutors from using the subsequent confession to prove the suspect's guilt at trial.
But it said police could use the confession -- if voluntary -- to find other evidence. And prosecutors could use the confession to challenge the credibility of suspects who contradicted their own statements. The purpose was to prevent suspects from lying on the stand.
The nation's highest judges said in a 1975 opinion that it was only "a speculative possibility" that police would deliberately violate the Miranda ruling.
Yet police around California
By 1998 the issue of questioning outside Miranda reached the state Supreme Court in a case arising from the robbery of a Kentucky Fried Chicken shop.
The court concluded that a San Bernardino County sheriff's detective had deliberately ignored Airreque Peevy's request for a lawyer.
But following federal law, the court said that since Peevy had spoken voluntarily -- even after asserting his right to remain silent -- the confession was properly admitted to challenge his credibility when he testified at his trial. The court affirmed Peevy's conviction.
Still, the opinion by Chief Justice Ronald George rejected the state Justice Department's contention that police need not comply with the Miranda ruling. "It is indeed police misconduct to interrogate a suspect in custody who has invoked the right to counsel," George wrote. "Such evidence is excluded because the evidence was obtained illegally."
Associate Justice Stanley Mosk, a former state attorney general, added that a policy of intentionally violating the Miranda decision would be "utter bad faith."
Rutledge, in a July 1998 videotape on questioning outside Miranda distributed by POST, said, "The California Supreme Court ..... made it very clear they don't approve of it ..... that it was illegal."
But Rutledge dismissed the court's finding as "dicta," a non-essential part of the decision. "It means this is not binding on anybody, this is not a statement of the law, this is just us expressing our personal opinions about something," he said in the video, which was obtained by The Examiner.
Nor did the state Justice Department think much of the Peevy decision.
In the September 1999 edition of the "California Peace Officers Legal Sourcebook," a manual used by most of the state's police agencies, the department continued to promote the practice. "The courts have no authority to declare that non-compliance (with Miranda) is "unlawful,'è" the manual said, "nor to direct the manner in which police investigate crimes."
In October 1999, a federal appeals court also criticized the police practice of intentionally ignoring a suspect's request for legal help, and reversed Bobby Gene Henry's murder conviction.
Henry had turned himself into the Sacramento County Sheriff's Department on Sept. 6, 1988, for shooting to death prominent real estate broker Bill Withrow, who Henry claimed had defrauded him.
The detectives arrested Henry, a 42-year-old electronics equipment specialist at McClellan Air Force Base and Vietnam veteran who had no prior arrests.
They put him in an interrogation room and advised him of his Miranda rights. He requested a lawyer three times, the interrogation transcript shows, but the detectives pressed on. "You do want an attorney?" White asked. "Yes, please," Henry said. "Why did you shoot him, anyway?" detective Robert White asked. "Am I supposed to keep talking without an attorney?" Henry replied. "Listen, what you tell us we can't use against you right now," White assured him. "We'd just would like to know." "OK," said Henry, plunging into a rambling, incoherent and tearful confession.
At a pretrial hearing, White and Detective Harry Machen admitted deliberately violating Henry's Miranda rights.
They said they knew Henry's confession couldn't be used to prove his guilt at trial, but believed they could use it in their field investigation and to challenge his credibility if he testified at trial. "I do it quite often," Machen said.
The trial judge decried the tactic. "I regret that law enforcement officers ..... conduct themselves in that manner," he said, and "intentionally went beyond the law per Miranda."
But the judge concluded that the confession had been voluntary -- meaning the detectives had not broken Henry's will -- and allowed the prosecutor to challenge Henry when he testified that he had fired in self-defense.
Henry was convicted and appealed. Connie Alvarez, an assistant federal public defender in Sacramento, argued that the cops who'd questioned Henry had been trained to illegally question suspects after they asserted their Miranda rights.
The state attorney general's office did not dispute the assertion, but argued that the police had not coerced Henry to making the statement.
A three-judge panel of the 9th Circuit U.S. Court of Appeals reversed the conviction, saying Detective White's deliberate failure to honor Henry's request for a lawyer -- along with the officers' false promise that his statement would not be used against him -- had produced an involuntary statement. "At a point where the law required him to back off, he did not scrupulously honor Henry's right to cut off questioning; instead, he ignored it," said the court. "We conclude that the slippery and illegal tactics of the detectives overcame Henry's will and that he continued his confession only as a result of their deception."
.
Henry, in prison since 1990, faces a retrial. Sgt. Glenn Powell, a Sheriff's Department spokesman, declined comment on the case, but said the detectives had followed state-certified training.
In January, another 9th Circuit panel also condemned the police practice of deliberately violating the Miranda rule. The decision stemmed from interrogations in two separate murder cases. Detectives press on
Santa Monica detectives flew to Flagstaff, Ariz., on March 1, 1993, and questioned suspect James McNally about the killing of a hospital employee.
At first, McNally freely said he'd stabbed the victim in self-defense. But eventually he invoked his right to remain silent and to legal assistance.
That didn't stop the detectives, a transcript shows:
Detective Shane Talbot: "You don't wanna tell us what happened?"
McNally: "No ..... not at this time ..... I'd rather talk to a lawyer..... ." Detective Talbot: "..... I don't trust anything that anybody tells me after they've talked to an attorney, and the D.A. that will be working with us on this case doesn't either ..... ."
Detective Ray Cooper: "It's like blackmail with attorneys, man. We know that ..... ."
Henry, in prison since 1990, faces a retrial. Sgt. Glenn Powell, a Sheriff's Department spokesman, declined comment on the case, but said the detectives had followed state-certified training.
In January, another 9th Circuit panel also condemned the police practice of deliberately violating the Miranda rule. The decision stemmed from interrogations in two separate murder cases. Detectives press on
Santa Monica detectives flew to Flagstaff, Ariz., on March 1, 1993, and questioned suspect James McNally about the killing of a hospital employee.
At first, McNally freely said he'd stabbed the victim in self-defense. But eventually he invoked his right to remain silent and to legal assistance.
That didn't stop the detectives, a transcript shows:
Detective Shane Talbot: "You don't wanna tell us what happened?"
McNally: "No ..... not at this time ..... I'd rather talk to a lawyer..... ." Detective Talbot: "..... I don't trust anything that anybody tells me after they've talked to an attorney, and the D.A. that will be working with us on this case doesn't either ..... ."
Detective Ray Cooper: "It's like blackmail with attorneys, man. We know that ..... ."
Detective Talbot: "OK, and f--- your attorney ..... I don't care about him anymore."
McNally: "Yeah."
Detective Talbot: "As far as I'm concerned, you know, they really mess up the system. I wanna know what you're going to tell me later. It can't be used against you ..... ."
McNally then gave a far more incriminating story.
The district attorney's office prosecuted McNally for murder, but the jury convicted him of manslaughter. The Santa Monica city attorney's office later attributed the lesser conviction to the trial judge's decision to suppress the confession.
In the second case, Los Angeles police arrested James Bey on March 8, 1991, for the murder of a 23-year-old woman whose body was found in a dumpster.
The cops questioned Bey after he'd been handcuffed to a station house bench for four hours. But when they told him his Miranda rights, he refused to talk, saying at one point, "If I'm being charged with murder, then I won't have another word to say until I have an attorney," a transcript shows.
The detectives told Bey they wanted to question him "outside Miranda," and that his statements wouldn't be used in court.
Bey then admitted the victim had been in his apartment the night she was killed.
Bey was convicted of murder. A state appeals court upheld his conviction and life sentence, but ruled Bey's confession had been involuntary.
The court called it a "very troubling case, presenting a deliberate police violation of Miranda coupled with a misrepresentation ..... about the legal consequences of that violation."
Bey and McNally then sued the cities of Los Angeles and Santa Monica -- and the detectives who questioned them -- for violating their rights under Miranda and the Fifth Amendment
Law students join with ACLU
The suit was filed by the American Civil Liberties Union and by Charles D. Weisselberg and his students, who were then at the Post-Conviction Justice Project of the USC Law School.
The cities admitted officers had been trained that they could question suspects who had invoked their right to remain silent, saying the process was legal as long as it was not coercive.
Even if such questioning was improper, the cities argued, the detectives should be immune from the suit because their training was based on instruction certified by POST and the state Justice Department.
But the federal appeals panel denied the officers immunity. "The fact that Los Angeles and Santa Monica may have trained their police to violate the rights of individuals does not provide any defense for these officers," the panel said. "Officers who intentionally violate the rights protected by Miranda must expect to have to defend themselves in civil actions."
On May 2, the cities filed a pending request that the U.S. Supreme Court reverse the decision.
Rutledge, representing the National Association of Police Organizations, and Lockyer, filed briefs supporting the cities.
While their appeal is pending, the Los Angeles and Santa Monica police departments have told their officers not to question suspects outside of Miranda, said attorneys for the cities. The officers named in the suit declined comment.
The Sacramento Sheriff's Department has banned the practice. "If the suspect invokes his or her Miranda rights, we scrupulously honor that," said Powell.
But the state Justice Department's Peace Officers Legal Sourcebook still tells police the law lets them pick when to comply with Miranda. "It is understandable," the manual adds, "that many departments in this state have instructed their officers to strictly comply with Miranda's procedures, at least pending further developments, not the least of which will be the high court's upcoming decision in the Dickerson case."
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Check this out - picked up from CNN re: internet judge judy types
I-Courthouse.com
I swear, you have to read this to believe it. The Supreme Court of California, just ruled that Penal Code section 12020 is overbroad, because it criminalizes so many lawful activities in an effort to get gang bangers. I mean, they admit knitting needles being concealed, or a pair of scissors, or anything else they could readily be used as a stabbing weapon falls within the statue(a pen or pencil could be used to a use stab someone and it is always readily available) . At one point the court ponders a question of monumental proportions: why would anyone carry concealed knitting needles in public?
The statute is a general intent crime. But, what the heck, prosecutors, police, judges, and jurors know what a "picked" use of a knitting needle is, so that's all protection you need to prevent frivolous prosecutions. (You think I'm making this up? Just read the case and you will see why Al Menaster calls this the outrage of the year.) And, you also have another defense. If you don't know that something is capable of being used as a dirk or dagger you can't possibly have been necessary mens rea to commit a crime.
I can't wait to hear the defendant crying as he testifies in his 3 strike case, "Hell, if I had known that I could stab someone with the pencil, I wouldn't have picked it up." I bet that will go long way with a Stanislaus County jury.
The court, after saying the law is overbroad, rather than do anything about it, says, in essence, we can't help you -- it is a legislative problem. Go talk to your legislator -- I'm certain he will respond your letter from state prison promptly.
Pinocchio Bore: Guilty as hell
Pinocchio Bore: Guilty as hell
Pinocchio Bore: Guilty as hell
Pinocchio Bore: Guilty as hell
Pinocchio Bore: Guilty as hell
Pinocchio Bore: Guilty as hell
Pinocchio Bore: Guilty as hell
Pinocchio Bore: Guilty as hell
Pinocchio Bore: Guilty as hell
Pinocchio Bore: Guilty as hell
Pinocchio Bore: Guilty as hell
Pinocchio Bore: Guilty as hell
Pinocchio Bore: Guilty as hell
Pinocchio Bore: Guilty as hell
Pinocchio Bore: Guilty as hell
Pinocchio Bore: Guilty as hell
Pinocchio Bore: Guilty as hell
Pinocchio Bore: Guilty as hell
Pinocchio Bore: Guilty as hell
Pinocchio Bore: Guilty as hell
Pinocchio Bore: Guilty as hell
Pinocchio Bore: Guilty as hell
Pinocchio Bore: Guilty as hell
Pinocchio Bore: Guilty as hell
Pinocchio Bore: Guilty as hell
Pinocchio Bore: Guilty as hell
Pinocchio Bore: Guilty as hell
Pinocchio Bore: Guilty as hell
Pinocchio Bore: Guilty as hell
Pinocchio Bore: Guilty as hell
Pinocchio Bore: Guilty as hell
Pinocchio Bore: Guilty as hell
Pinocchio Bore: Guilty as hell
Pinocchio Bore: Guilty as hell
Pinocchio Bore: Guilty as hell
Pinocchio Bore: Guilty as hell
Pinocchio Bore: Guilty as hell
Pinocchio Bore: Guilty as hell
Pinocchio Bore: Guilty as hell
On the other hand, a plentiful output of goods is of no benefit to one who is denied access to them. To acquire liberty of access, we again rely on transactions. The more money a man has, given a certain aggregate output of goods, the greater will be his freedom to consume. But the amount of money he can obtain in transactions for the sale of his goods or services will be greater if the supply of similar goods or services is scarce. The introduction of the mechanical cotton picker may increase the general welfare by facilitating access to cheap clothing; at the same time, the human cotton picker in the South may pay a disproportionate price for this improvement in the general welfare by losing his earning power. And the dislocations involved my have such serious repercussions as to nullify the benefit to the general public. Reduction of the tariff to permit the increased importation of cheap foreign goods would promote the general interest of Americans by resulting in greater abundance, were it not for dislocations caused by the impairment of those special interests which thrive on relative scarcity. When we build a highway for the general welfare which involves the use of privately owned land, we compensate the owner so that he does not bear a disproportionate part of the cost of the general improvement. We have as yet devised no practicable system for compensating those whose special interests in scarcity will be sacrificed to the general interest in abundance. Unless and until we can do so, we shall probably have strong political obstacles to an economy of abundance.
I don't exactly recall, but almost all states passed "zoning enabling acts" after the 1926 Euclid v. Ambler case. It was my understanding that those acts were the modern basis for municipal zoning authority. Prior to that, land use disputes were resolved through common law nuisance claims (1916 NY was the first comprehensive zoning scheme, I think).
DaveM,
Thanks, I will look up that case. However, I was thinking more along the lines of constitutional separation of powers issues. I suppose I can dig up a basic primer on the separation of powers under the U.S. constitutuion, but I figured I would ask here first.
Incidentally, the architect Rem Koolhaas wrote a fun and imaginative book on the effect that New York's original zoning laws had on the development of architecture in the City.
Koolhaas' book is called "Delerious New York."
Jones,
Thanks. It must be those "home rule" charters that the articles were talking about. I am assuming that these "home rule" charters are the product of state legislation. Is this correct the case?
Massachusetts apparently has a home rule statute. Board of Appeals of Hanover v. Housing Appeals Committee in the Department of Community Affairs 363 Mass. 339 (1973):
Section 6 of art. 89 establishes a broad general grant [*358] of home rule powers to cities and towns. "Any city or town may, by the adoption, amendment, or repeal of local ordinances or by-laws, exercise any power or function which the general court has power to confer upon it, which is not inconsistent with the constitution or laws enacted by the general court in conformity with powers reserved to the general court by section eight, and which is not denied, either expressly or by clear implication, to the city or town by its charter." Section 7 of art. 89 then specifies certain exceptions to § 6's broad grant of home rule powers. Taken together, these two sections repudiate the conception that all powers lie in the State except those expressly delegated to cities and towns. The Home Rule Amendment grants cities and towns independent municipal powers which they did not previously inherently possess. Municipalities are now free to exercise any power or function, excepting those denied to them by their own charters or reserved to the State by § 7, which the Legislature has the power to confer on them, as long as the exercise of these powers is not inconsistent with the Constitution or laws enacted by the Legislature in accordance with § 8. See § 6 of art. 89 and § 13 of the Home Rule Procedures Act.
DaveM,
Thanks. Post 1115 contained exactly the sort of information I was after.
Miranda upheld by a 7-2 decision in the Supreme Court. Opinion by Justice Rehnquist.
>Reported in the Massachusetts Bar Association Lawyers Journal, the
following are questions actually asked of witnesses by attorneys during trials and, in certain cases, the responses given by insightful witnesses:
>
>1. "Now doctor, isn't it true that when a person dies in his sleep, he
doesn't know about it until the next morning?"
>
>2. "The youngest son, the twenty-year old, how old is he?"
>
>3. "Were you present when your picture was taken?"
>
>4. "Were you alone or by yourself?"
>
>5. "Was it you or your younger brother who was killed in the war?"
>
>6. "Did he kill you?"
>
>7. "How far apart were the vehicles at the time of the collision?"
>
>8. "You were there until the time you left, is that true?"
>
>9. "How many times have you committed suicide?"
>
>10. Q: "So the date of conception (of the baby) was August 8th?"
> A: "Yes."
> Q: "And what were you doing at that time?"
>
>11. Q: "She had three children, right?"
> A: "Yes."
> Q: "How many were boys?"
> A: "None."
> Q: "Were there any girls?"
>
>12. Q: "You say the stairs went down to the basement?"
> A: "Yes."
> Q: "And these stairs, did they go up also?"
>
>13. Q: "Mr. Slatery, you went on a rather elaborate honeymoon, didn't you?
> A: "I went to Europe, sir."
> Q: "And you took your new wife?"
>
>14. Q: "How was your first marriage terminated?"
> A: "By death."
> Q: "And by whose death was it terminated?"
>
>15. Q: "Can you describe the individual?"
> A: "He was about medium height and had a beard."
> Q: "Was this a male or female?"
>
>16. Q: "Is your appearance here this morning pursuant to a deposition
notice which I sent to your attorney?"
> A: "No, this is how I dress when I go to work."
>
>17. Q: "Doctor, how many autopsies have you performed on dead people?"
> A: "All my autopsies are performed on dead people."
>
>18. Q: "All your responses must be oral, OK? What school did you go to?"
> A: "Oral."
>
>19. Q: "Do you recall the time that you examined the body?"
> A: "The autopsy started around 8:30 p.m."
> Q: "And Mr. Dennington was dead at the time?"
> A: "No, he was sitting on the table wondering why I was doing an
autopsy."
>
>20. Q: "You were not shot in the fracas?"
> A: "No, I was shot midway between the fracas and the naval."
>
>21. Q: "Are you qualified to give a urine sample?"
> A: "I have been since early childhood."
>
>22. Q: "Doctor, before you performed the autopsy, did you check for a
pulse?"
> A: "No."
> Q: "Did you check for blood pressure?"
> A: "No."
> Q: "Did you check for breathing?"
> A: "No."
> Q: "So, then it is possible that the patient was alive when you
began the autopsy?"
> A: "No."
> Q: "How can you be so sure, doctor?"
> A: "Because his brain was sitting on my desk in a jar."
> Q: "But could the patient have still been alive nevertheless?"
> A: "It is possible that he could have been alive and practicing law
somewhere."
>
As goofy as some of those questions are, I can imagine an occasional felon (who was lying) falling into the inadvertent trap and admitting he was elsewhere when he "couldn't" have been.
Too funny.
Well, by the time Dick gets it, they've got two guys in jail, and they know perfectly well that they've got one midrange dope dealer and one straight-up guy, and no one has any idea who's who.
Dick gets them both out on bail, and the prosecution went to trial, having made a guess as to was the bad guy. Dick was beside himself with glee, only to go further when they went to trial (he wasn't pleading this one), and then had the other brother in the audience, and started playing games with the witnesses as to who they had seen. After the point where the jury had collapsed in laughter, he asked for and got a dismissal.
Apparently, judges aren't allowed to use facts not entered in evidence to determine sentencing.
If this were an American airline or manufacturer, the liability implications would be huge. But I suspect that, under European law, Air France and Aerospatiale (the state-owned conglomerate that manufactured the Concorde) may be subject to a degree of sovereign immunity or at least a degree of statutory limited liability.
Does anybody have any knowledge of this particular subject?
The Growth of Intellectual Property: A History of the Ownership of Ideas in the United States by William W. Fisher III*
Critical approaches to speech theory:
Some Thoughts on Free Speech, Language, and the Rule of Law by Thomas Streeter
Some Realism about Pluralism: Legal Realist Approaches to the First Amendment by J.M. Balkin*
I finished reading The Trouble with Principle in May sometime, and it is a really enjoyable work, though repetitive at times (as collections of essays tend to be).
Here is the home page of a more obscure, but even more quixotic author, Pierre Schlag. I have recently finished reading his Laying down the Law: Mysticism, Fetishism, and the American Legal Mind, and it is both entertaining and eye opening. He frequently demonstrates a rhetorical mastery of "postmodern frivolity" which I enjoy:
My claim is that these legal arguments bear an uncanny and disturbing similarity to various proofs of God. Specifically, they resemble the cosmological proof, the argument from design, and the ontological proof. Thus, despite its secular pretensions, legal thought is in part a kind of theological activity. [note 3] A more controversial and perhaps more surprising point is that, for those who believe in law, there is no alternative but to participate in this covertly theological discourse. For those legal academics who find this prospect unappealing, the alternative is clear: stop trying to "do law," or more accurately, stop pretending to "do law." 
Yes, yes, I've done a bad, bad thing. I abandoned y'all to the wind over the summer....
Well, I'm back, ready to start my second year of law school! I'm feeling pretty spiffy after my luxurious summer vacation (6 weeks in the mountains, no reading, no writing, no thinking allowed), and am back in top form, ready to tackle the 2nd year challenge.
I've not kept up with the thread over the summer, so sorry. Is there something in the previous comments that absolutely requires my reading? If not, I'll assume everyone played nice, and we'll go on from here.
Good to see some familiar monikers still around......
Ciao
(and this time I promise I'll be back soon)
MsIt
...and I'm not sure I will. I have a ton of classes I'm dying to take, and Admin Law isn't at the top. This coming semester I'm taking an in-depth business law class, federal income tax, intellectual property, and either environmental law or another civil procedure class. I'm hoping to take wills and estates next spring, secured credit (oh joy), and another IP class. I am required to take another constitutional class in my second year and am hoping to get one on the first amendment.
That's the plan. No Admin law on the horizon.....
I've try to cheerlead all my interns into the ad. law area with some limited success. One has gone to work with our State Corporation Commission, one to the Worker's Compensation Commission, and one to get a doctorate in Public Administration.
Lots of people argue against the use of contingency fees in this country and propose something like the British system as a solution to not only the former, but as a means of reducing the amount of litigation that occurs here.
The British system requires that the person suing pay all court costs up front before bringing a case to trial. No contingency fee arrangements allowed. The result is a significantly lower number of personal injury (and other types) of cases tried.
What do people think about proposals for a similar type of system for the US?
One thing to keep in mind is the effect it will have on the ability of the poor to have access to the courts.
I don't want to rain on your parade, but Administrative Law is terribly depressing. If it isn't idiots putting the finishing touches on legislative mandates, it's idiots trying to outsmart and outrun the laws in place. Either way, I've had my fill of such stuff. Dealing with educational policy for more than 10 years is more than enough, thank you.
You need new, young, idealistic things, who really believe there's room to buck special interest politics; I'm way too cynical and jaded to do much good in the public sector anymore.
Any ideas for potential topics?
MsIt,
Two suggestions that would be high on my list: the whole Napster/MP3 controversy and Microsoft's antitrust troubles.
I have Criminal Law, Evidence, a seminar on Constitutional Theory (taught by Mark Tushnet), a seminar on Constitutional Property Law/Takings, Con Law II and Professional Responsibility/Legal ethics. I will drop a class tomorrow, though I haven't decided which one - I had to get on a waitlist to get into criminal law, so I overloaded my schedule.
The Constitutional Theory seminar is a lot of work, but should be really engaging. We have to read a book each week - this week's reading is Frank Michelman's Brennan and Democracy. The first chapter is the best part of the book, as it does an excellent job of discussing the "paradox of constitutional democracy." Mark Tushnet is a much nicer guy than I expected.
Criminal Law is taught by Angela Harris, a major mover in race theory circles, though her most important work has been critical of its exclusion of feminist perspectives. She is also among the most vocal critics of MacKinnon's myopic focus on gender, as I'm sure ya'll are glad to hear.
My Takings class is taught by two judges currently sitting on the Federal Court of Claims, Bruggink and Firestone. Neither of them are going to be receptive to my theoretical crap (not to mention that the seven other members of the class are all Fed. Soc. members - one is even a Hillsdale College grad), but it should be fun to play with. The entire first week was about one case, Pennsylvania Coal v. Mahon, and I am really excited about the depth we will be able to go into discussing a single topic. As an aside, Bruggink is obviously a conservative and actually cringed when Firestone mentioned "balancing." He claimed that takings clause cases can be decided "correctly" based on "principles."
I will continue in my position as RA for Mari Matsuda over the fall semester, working 15 hours a week. I am looking forward to the semester.
You must be in my head on the MP3/Napster discussion. I almost suggested it but was worried it was too narrowly focused on intellectual property issues.
Personally, I'm very interested in that one.
Dave
Why are you taking criminal law in your second year? Or is this a second level course?
And constitutional theory? gak - we seem to be interested in totally different things. The takings course sounds promising, however, I try to shy away from ideologues.
The thing that interests me about this decision is that the company just encouraged the people's natural tendency to steal--so they were successful in proportion to the number of people willing to do so. The number of people who think that they have the right to steal people's work just annoys and astounds me.
Napster is particularly problematic from a legal standpoint because they really aren't giving the software to anyone, all they provide is a platform that links one user to another, who are then free to do what they please. So are they violating a property right?
The issue of freedom of use of the creative works, ideas and efforts of others is a contentious one. The internet is a prime example of this, and many users are dedicated to keeping the net both free and as a tool to free up other products that are sold in the non-cyber world. My guess is that this issue will only get larger before finally being resolved legally, however, the legal systems of most countries, including the US, seem to be about three steps behind the technology that's generating the problem.
"Legislators in Washington face growing pressure to write legislation that would make it impossible for companies to seal records in liability settlements if the public would benefit from information about a product's faults. Generally, companies in such settlements claim they want documents sealed to keep trade secrets safe, the LAT reports. Plaintiffs agree, to avoid costly legal battles. Bridgestone/Firestone's recent troubles started after the contents of one such settlement leaked during a 1998 liability suit against the company."
seems like a good idea to me. i'd be surprised, however, if it actually gets written into law.
--CalGal, #1152.
I think this is what is known as assuming the conclusion. If the questions were this easy, even the judicial system would be moving more quickly.
Adieu.
For my con-theory class I had to read Bruce Ackerman's We the People: Transformations (1998) over the weekend. Extremely long and extremely uninspiring. He argues that Article five amendment procedures aren't the exclusive consitutional way to amend the constitution - basically, that the constitution contemplates "extra-textual" modifications mirroring the procedures by which the constitution evolved from the articles of Confederation.
He very meticulously examines three major historical periods to prove his point: the founding, Reconstruction, and the New Deal. These are the only three periods where legitimate extra-systemic reform took place in his opinion - the only eras in which there was a genuine "popular mandate." I think he is just practicing the time-honored tradition of tautological theorizing - his criteria for what constitutes a genuine "popular mandate" probably reflects his prior opinion that only the three eras above were legitimate. So much of constitutional theory seems to suffer from this problem.
That said, I am really enjoying that class.
My ConLaw prof mentioned a similar sort of argument last year. Seems Ackerman's hypothesis is either well accepted, or, already common among constitutional historians.
My ConLawII class has been more interesting than I initially expected. We've been examining the First Amendment obstacles to hate speech and hate crimes legislation. It seems to be a very strong bar to any such legislation from what I can tell. Modern First A principles are such that it can be defined either as expressive conduct, or political speech. Both make hate speech legislation dead in the water.
On the hate crimes issue, I simply don't see the added value of targeted legislation. I mean, the criminal codes already handle the prosecution end of such acts, the only thing the legislation would do is add additional mandatory punishments, and there, I think the Eight A might act as an effective bar.
Have you read anything by Charles Lawrence or Mari Matsuda?
No. Are they constitutional scholars? I've been pretty confined to the standard casebook treatments on constitutional law. I have read one 'hornbook' on the topic, by Chemerinsky, which is excellent (in my limited view).
They are big critics of the standard interpretation of the First Amendment. Which advocate of hate speech legislation have you been reading?
We're not reading advocacy arguments, we're reading development issues in First A analysis that effect the likelihood of judical approval of any sort of legislation that gets on the books. That is, the constitutionality of it according to modern First A doctrine.
I rather like that approach.
That sounded awfully snooty....
And I didn't mean to.
What I meant is that I personally don't get much out of reading advocacy unless I also understand the underlying data.
Besides which, one can argue current First A doctrine is wrong, but the truth is that courts are least persuaded by intellectual banter by academics or "law scholars". In fact, I understand the hierarchy of "authority" is as follows:
US Constitution
Legislative statutes (federal for fed courts, state for state courts)
US Supremes case law
Case law within the jurisdiction
Case law outside the jurisdiction
journals and treatise's
other scholarly writings
I like this sort of pedagogical approach - you read Schenck, Abrams, Gitlow, etc., then take a look at the theories of free speech that were popular at the time - Mill, Dewey, Locke, etc. Mill's defence of "the marketplace of ideas" in On Liberty is probably the most influential piece of theoretical work from the era.
Critiques of those ideological positions then help me come up with competing legal argument - the standard critique of Mill is that he assumes the possibility fo inter-personal utility comparison; this is directly analogous to his belief in the value of the First Amendment's liberal value as related truth seeking. I enjoy trying to figure out why the Justices choose to express their particular ideological positions. Holmes is amazingly complex in this regard.
In terms of authority, sure, you are probably right. But judges don't interpret the constitution in a vacuum - its meaning is determined by substantive political debates that occur many places, including law schools. I saw Paul Cassell moot his silly Dickerson arguments three times in front of different law professors. The professors gave him feedback, and each time he presented, his argument reflected subtle shifts based on the professor's recommendations - unfortunately for liberals like me, showing that Cassell is a good advocate.
Yes, we go through a similar analysis, however, we aren't reading the first works of those individuals, just interpretations of them as they are discussed in the case book. Of course, I've read much of that body of work elsewhere in my long years as a student, so I don't have much problem linking the works together.
I don't know how my fellow students feel about the lack of other readings in the class. If they're like me, they are relieved at the lighter reading load, given the reading commitments in other classes.
We do spend a fair amount of time trying to work those questions out ourselves, or as a class, rather than reading how others have analyzed them. I find that task particularly interesting.
Why don't you call the ideological expositions in your casebook "advocacy?"
This class has about 25 people in it, so it's well suited to discussion, although it isn't technically listed as a seminar.
Two out of my four classes might have up to 120 students, but the other two are much smaller (as noted above). I don't think I'd enjoy a class of 590.
With respect to the casebook touting an 'ideology'. It certainly can fall within the meaning of that concept, however, it tends to be well refined and with a consensus. I think of advocacy as outside mainstream thinking, and as such, a minority voice at best. Were it mainstream, it'd be in the case law.
On the issue of whether modern First A doctrine is wrong, I'd most likely disagree with proponents of that position. Current First A thinking puts those rights as almost impenetrable to government regulation. The long history of supression of certain kinds of speech has been rejected by the modern Supreme Court, and suits my liberal tails just fine.
What is interesting is that the liberal perspective on government intrusion into first amendment rights, particularly free speech rights, has been largely incorporated into modern doctrine. Yet liberals are strong proponents of speech restrictions if it is motivated by "hate". There's something inherently illogical about the liberal position on this issue, IMO. One can't have it both ways.
This strikes me as a bad way to think about things. Our current understanding of much of the law would be vastly out of the mainstream at different points in US history. All of our case law has been a minority ideology at some point or another - the revolutionary nature of Holmes' shift from formalism is minimized by the prevailing legal consciousness (How could it have been any other way????). That is actually almost precisely what Ackerman's book is about.
On the issue of whether modern First A doctrine is wrong, I'd most likely disagree with proponents of that position. Current First A thinking puts those rights as almost impenetrable to government regulation. The long history of supression of certain kinds of speech has been rejected by the modern Supreme Court, and suits my liberal tails just fine.
My reaction to this is dependent on your understanding of "wrong." If you mean inaccurate, then I think the question is kind of silly - how can an ideology be inaccurate? If you mean immoral, or some semblance of that word, then I kind of disagree with you. Not only do I think that speech is not impenetrable to government regulation (property rights are probably the most severe form of govt. regulation), but I think the belief that only the state can pose a risk to the enjoyment of rights is an unpersuasive ideological position that usually reflects the privilege of the speaker.
I find myself dividing liberals into three groups nowadays - Classical, traditional, and regular. I, of course, am a regular liberal - just a run of the mill leftist. People like my con law professor last semester, David Cole, are traditional liberals - they rely on traditional philosophical positions, like natural rights theory or milquetoast utilitarianism to arrive at some "right" position. Classical liberals are libertarians - people who think all evil is derived from a coercive state.
Neither traditional nor classical liberals accept critiques of the first amendment.
You'll have to explain how property rights intrude into speech rights, other than as a platform unavailable to anyone at anytime.
Second, I don't remember saying that only government poses a risk to the enjoyment of rights by individuals. However, for government to regulate in a way that constrains a minority's rights so that the majority can obtain more of them is precisely the thing the constitution is supposed to prevent.
Yes, there's plenty of trampling going on between individuals, but it isn't the role of government to regulate in this area, I don't believe. Or if you argue it is, how do you determine what side government should come down on?
I'm quite nervous that what is good for liberal sentiments today, will be bad for liberty tomorrow. And being a leftist liberal doesn't mean you can't be trampling on the rights of those you profoundly disagree with. Ask any "religious zealot" just how free they feel to practice their beliefs in the public arena. All do to the "traditional", liberal view of first A rights (call it what you want, this is leftist, IMO).
This seems obvious to me. I fail to see your point here.
One interesting thing about reading mostly caselaw is that you see how the thinking of courts changes over time. Most particularly, what is a minority opinion at one point, slowly becomes the majority viewpoint as time goes on. Are these minority viewpoints initially influenced by advocacy? Of course, but they remain outside the mainstream until a large enough consensus develops to move the law forward in one direction or another.
So, I fail to see the significance of your distinction here. Perhaps it would be helpful if you define what you mean by advocacy, since we may be operating at different definitional levels.
Second, I don't remember saying that only government poses a risk to the enjoyment of rights by individuals.
I wasn't actually implying that you believed (or said) that - sorry to be unclear. I think that the mainstream position, though, is based on a distinction in kind between state exercises of coercion and private exercises. The mainstream position draws a very clear line between state regulation of content and private regulation, through boycotts, etc. (i.e., Dr. Laura). I think that the difference is usually in degree, if it exists at all.
However, for government to regulate in a way that constrains a minority's rights so that the majority can obtain more of them is precisely the thing the constitution is supposed to prevent.
I disagree both with the way you framed the question and with the way that you answered it. Regulation of hate speech is frequently a restriction on a minority, or even a majority, for the benefit of another minority. Second, your answer seems tautological - how can you say that a critique of our current conception of the constitution is inaccurate because the constitution means the opposite - aren't you assuming the answer to the very question?
Yes, there's plenty of trampling going on between individuals, but it isn't the role of government to regulate in this area, I don't believe.
I think that government already comes down on one side. The government already regulates in every area. I got into a venomous fight with a conservative friend of mine a couple of weeks ago because I want to expand on my takings clause analysis of free trade, using a regulatory takings analysis to critique deregulation. Everytime the government (especially the judiciary) makes a choice, there is a winner and a loser - it can't "choose not to act." The belief that government can refrain from regulating reflects an ideological position which assumes the naturalness of the "private sphere," a position which makes me extremely uncomfortable. I, conveniently enough, think that the government should come down on the "other" side a lot more than it currently does.
I'm quite nervous that what is good for liberal sentiments today, will be bad for liberty tomorrow. And being a leftist liberal doesn't mean you can't be trampling on the rights of those you profoundly disagree with.
What if you just want to change whose "rights" are being trampled on?
Ask any "religious zealot" just how free they feel to practice their beliefs in the public arena.
One of the biggest problems with political liberalism, in the Rawlsian sense, is that it assumes people can agree on impartial procedures. It is my experience that people tend to perceive any procedures which don't produce substantive victory for their faction as partial.
All do to the "traditional", liberal view of first A rights (call it what you want, this is leftist, IMO).
Why do you insist on calling that position leftist?
There is no such thing as a bandwagon hopper in the law -either you play a part in an emerging consensus, or you oppose it. Ignoring minority advocates is pretty much opposing them. Perhaps we should make this more concrete - you have a client that was busted for possession of crack cocaine. No plea is on the table, he has no information to squeal. Do you consider arguments like jury nullification?
So, I fail to see the significance of your distinction here. Perhaps it would be helpful if you define what you mean by advocacy, since we may be operating at different definitional levels.
I don't mean anything by "advocacy." I think that it is pretty clear that everything is advocacy. You introduced the term - what distinguishes Matsuda's critique of the first amendment's protection of hate speech from Hentoff's (or Scalia's) belief that the law has to be "content neutral?"
Are you suggesting I go out and read Owen Fiss before you can sketch the basic premises? If so, I can't right now, but will say that I take as a given that no right is absolute, including free speech. Rights take place within a given structure, usually provided by a governing system. That property rights are one of the foundations of our legal system I also take as a given.
If the hypothesis is that we can have a different kind of free speech without the legal presence of property rights then I find that uninteresting, since something like this could be argued about each and every right identified in the constitution. Hence, whether free speech in the absence of property rights would be greater, or less, than that protected under our current constitution is not relevant to understanding the scope of speech rights we would protect.
The idea is that state delegation of property rights is equivalent to the creation of a system of "private governments."
This really makes no sense to me. The state doesn't delegate property rights, it creates them. What is "a system of private governments"? You mean each owner domicile has their own laws? Police powers? Soverignty?
Does a person have soverign rights in his property? Property law suggests only as long as the general public, and the government, allowed them. The government reserves the right to revoke property rights, in trust for the public domain. In some cases, there must be payment, but in lots of others, it can happen by redefining away an 'assumed' (perhaps constructive applies) property right.
The mainstream position draws a very clear line between state regulation of content and private regulation, through boycotts, etc.
Yes. It does. I agree with that distinction for matters of statutory regulation of speech.
Dave,
My tolerance for radical bullshit is low. So forgive me if I bite too hard.
The problem is that liberals have been screaming for decades that it's their rights that were being trampled on when they had to hear a prayer in school, or couldn't burn a flag as part of their right to express their dissatisfaction with the country at a point in time, or couldn't hand out leaflets urging men to resist the draft in time of war...etc.
So, we now have a first amendment doctrine that allows all those things. However, in getting to this place, we've had to allow an awful lot of "bad" speech into the public forum as well. Now we are at a place where the right of an individual to yell invictive at another is protected under the expanded First A umbrella; all within the rubric of that 'marketplace of ideas'.
As I said before, it is inherently illogical to argue that so-called subversive speech is protected when it's leftist ideology, but not when it's hate speech.
One of the biggest problems with political liberalism, in the Rawlsian sense, is that it assumes people can agree on impartial procedures.
What precisely does this have to do with my highlighted comment? Are you suggesting religious zealots feel trampled on because they couldn't agree on 'impartial procedures'? In my book this is a case of how we interpret whose first amendment rights were violated, the persons seeking to express their religious faith publicly, or the persons seeking to be free from having it imposed on them?
Well, you obviously do mean something by it. You disagreed with my take on advocacy without replacing it with a definition of your own. As to everything being advocacy, this is simply tautological. No way to deal with it other than to say,
I disagree.
However, this is so damn uninteresting to me that I can't even debate it anymore.
Mea culpa....
I couldn't disagree more.
The law seems full of arguments trying one theory or another on for size depending on the side of the controversy. I see lawyers as constantly climbing on bandwagons to promote their client interests.
In addition, I don't see minority advocates ignored so much as dismissed on the weakness of their arguments under the current system of principles guiding courts. There is a definite structure to what courts will tolerate in arguments. Often minority views are disected under this structure, and found wanting.
Personally, I see this process as a good thing because, at the very least, it forces minority advocates to sharpen their arguments. It also provides stability in the law. Were the law to change at the slightest desires of every new advocate, I think there would be some unintended consequences that would be unpleasant for all. For one thing it would promote classic "uncertainty" behavior among the population, that is, people would simply begin to ignore laws in greater numbers than they already do.
I just caught some of your comments on labor unions and 'takings' over in The Slow Thread. That's an interesting discussion, and one I'd like to carry over into here if, and when you have the time.
I wanted to qualify some comments I made last night, in particular, I wanted to revise my post on advocacy.
While I still stand by my original comment that advocacy, to me, generally represents non-mainstream arguments and ideas, I think it can also mean just a strong assertion of the advantages of one position over another. In this sense, I think my discussion was too restrictive, and, thus, inaccurate.
When you asked what advocates I'd been reading, I automatically assumed we were talking about proponents of one side of the debate or the other. To the extent that advocates will distort facts and information to fit their particular views, I find that uninformative unless I know the basic facts from a less partisan perspective first.
Now, you can counter that there is never a "less partisan perspective", which would be in keeping with the view you seemed to present last night. But I would argue that it is possible to read caselaw as it stands, without additional commentary to influence the way one interprets it. In this regard, primary source materials are generally more 'objective' than secondary.
I will only respond to a couple of your points to save time.
Are you suggesting I go out and read Owen Fiss before you can sketch the basic premises? If so, I can't right now, but will say that I take as a given that no right is absolute, including free speech.
No. If you are interested in the topic, I think Morris Cohen's Property and Sovereignty, 13 Cornell L.Q. 8 (1927), Felix Cohen's Dialogue on Private Property, 9 Rutgers L. Rev. 357 (1954) and Robert Hale's, Coercion and Distribution in a Supposedly Non-Coercive State, 38 Political Science Quarterly (1923), are all really good examples of the topic from mainstream legal realist literature. The Felix Cohen piece, for example (he is the son of Morris Cohen, by the way), was published posthumously in an edition of Rutgers L. J. dedicated to him. Justice Frankfurter wrote the introduction.
That property rights are one of the foundations of our legal system I also take as a given.
The content of "property rights" is the question.
My tolerance for radical bullshit is low. So forgive me if I bite too hard.
Merely a nibble. Sounds like you are accusing me of the sins of my forefathers.
As I said before, it is inherently illogical to argue that so-called subversive speech is protected when it's leftist ideology, but not when it's hate speech.
This is not true. We have laws which only operate to restrict the government's ability to act, why can't the first amendment operate only to protect speech criticizing the government? Some republican values of free speech from around the founding were predicated on just this assumption -the only meaning of the 1st amendment was to ensure that criticism of the govt. would not be squelched.
What precisely does this have to do with my highlighted comment?
It means that I don't agree with Rawlsian liberals. There is no such thing as a non-ideological value or right. The treatment of religious zealots illustrates one of the biases of liberalism.
Well, you obviously do mean something by it. You disagreed with my take on advocacy without replacing it with a definition of your own. As to everything being advocacy, this is simply tautological. No way to deal with it other than to say, I disagree.
You said:
We've been examining the First Amendment obstacles to hate speech and hate crimes legislation. It seems to be a very strong bar to any such legislation from what I can tell.
I asked which advocate of hate speech legislation have you been reading, assuming you were investigating both sides of the argument. Whenever there is an argument, there has to be an advocate for both sides. Matsuda, MacKinnon and Sunstein all present very different arguments. The civic republican perspective championed by Sunstein, for example, is based on an originalist take on the 1st amendment. I guess, if you want to define "advocate," I would say "presenter of a position." I was actually sort of taken aback when you drew a distinction between "advocacy papers" and "development issues."
If a person is willing to try an argument, they must think it has some merit. Even if it is just its track record, receptivity and acknowledgement that the argument has some utiltity means something. This is probably just a semantic quibble.
I have been trying to catalog the various interests that the court has recognized as property in a takings clause analysis for the last week.
Do you really want restrictions on what you can say to individuals? And government sanctions behind those restrictions? I would argue most Americans think of their free speech rights primarily as the right to criticize other private individuals, and not just government. Besides which, the line between political speech and non-political speech seems hard to find for me. Is standing outside an abortion clinic yelling at the women who enter political or what?
Are those two twits over in the inferno going to want to give up their 'free speech' rights? I seriously doubt it, particularly if its the government telling them what is, or is not, political speech. In their world, every precious word they utter is political.
You see the problem with your position? It would be untenable to the majority of Americans.
I asked which advocate of hate speech legislation have you been reading, assuming you were investigating both sides of the argument. Whenever there is an argument, there has to be an advocate for both sides.
Therein lies the problem. I responded by stating how the class was examining the issues of hate speech and hate crimes: through looking at the caselaw development of modern First A doctrine. Unfortunately, I think I was less than clear, given the assumptions you made, then I made in our dialogue last night.
Let me clarify.
We are not reading about the issues, we are examining the issues from the perspective of how the court has defined the power of the state (and feds) to regulate speech. And, as I said before, I'm enjoying this approach.
As a further comment, this class is not about constitutional philosophy or theory, but is a standard second level conlaw class. Perhaps that might explain the difference in approach this prof is taking from those you might expect at your institution.
Or, it could simply be that my institution is a standard, mainstream, conservative, law school.
DA and depostions are set up. The guy was arraigned and like all defendants he pleaded guilty and asked for a trial by jury. This would be a 12 woman/man jury. This guy has a rap sheet, a very long rap sheet. As the date gets closer to pick a jury the woman learns the guy is up for life. This offense puts him past the 10-20. (A lovely Florida legal saying). The woman is living in fear his friends will come and kill her before she can testify. Also, when she learns she can put him away for life her body starts to shake. My question is does the judge HAVE to give him life? If the man is found guilty does the judge have any discretion to give him 20 years or does he/she have to give him life? Remember this happen in Florida.
Many states have instituted mandatory sentencing; the legislatures attempts to do an end-run around the tendency of judges to be reluctant to impose maximum sentences when circumstances suggest otherwise.
What that means is that if Florida has established a hierarchy of mandatory sentences that kick in when, say, a person is up for their third felony, or has had a prior felony conviction for one of a number of things (like drug dealing), then there is little the judge can do if the jury finds the defendant guilty.
You can blame this one on the public's demand for less leniency and stricter sentencing of "the bad guys". Once statutory rules are passed for sentencing, and linked to specific criminal acts or convictions, there's not a whole lot the judiciary can do about it. Of course, if there is still a range of years associated with the sentence mandated then judges can retain a small amount of flexibility in what they determine the punishment to be, but not much.
I don't know if this helps, or answers your question, if not, please add more details and I'll try again.
I should add that I don't know if Florida has instituted mandatory sentencing, but if so, then that would explain what is happening.
It's also possible that the Florida Penal Code has thrown in some mandatory sentencing requirements that act in a similar way to a more comprehensive statute.
In either case, these mandatory sentences basically usurp judicial control over punishment decisions.
She also said it was nice to see me angry. The trial will be December 4th or early Feb.
My 31 year old daughter has worn her heart on her sleeve
My first concern is that you and your daughter are safe and that others don't have to suffer a similar fate. If we knew more about mental health and how to treat these people, perhaps we could be confident that this person could be treated and he would no longer be a threat. Unfortunately, we can't do that yet.
The question then becomes whose rights take precedence, the criminal with a rap sheet detailing his violations of others' rights or the innocent members of society who are his potential victims. Sometimes society has to take these drastic steps to protect its members from an individual like this.
BTW, My cell phone number hasn't changed. Try again.
Sorry, I hit a wrong key.
her entire life. Right now she is being dunned by the LA Dept of Revenue for back taxes that she is sure she has paid. There is a program in LA that is mainly computer driven. How the computer picks names out of its hat I don't know. But, Susan is becoming more and more frustrated trying to fight with this computer. She can't seem to get to a human being.
In some of her statements about government -especially the State of LA - she is beginning to sound like me.
When it gets personal, like you and my Susan, you tend to lose a portion of your liberal philosophy.
hear addiction is a disease...a disease of the brain.
I know I have a genetic tendency toward addiction. I know that if I allowed myself, I could become an addict very easily. I don't allow myself. I channel my adictive tendencies into more positive areas.
Whether this criminal is an addict or not, he is still responsible for his actions. He is responsible for the step he took which led him to addiction. I know I am probably sounding like a hardass, but I do feel sorry for the guy. I just don't feel sorry enough to set him loose and allow him to victimize someone else. Society has to able at some point to say, "Enough! We've given you your chances, and now they're gone."
I want to research and turn all the information over to the court. I may say something to the court in the papers I have to fill out. I don't know, JJ.
Obviously it is on my mind now.
Bob's nephew will always have an ugly scar on his neck, and what's really amazing to me is that the same action with a fraction of an inch difference would have meant the end of his life, but also a completely different treatment of the scum who stabbed him. Instead of being charged with capital murder and facing the death penalty he's free as a lark to do the same thing again.
What's so unreal to me is that with all other factors and actions of both parties being exactly the same except for a slight variation in where the knife went in, the outcome could have very well been the death penalty rather than a few months or a couple of years behind bars--and he certainly wouldn't have been let out with no bail while awaiting his trial.
It is too complicated for me to give you too much more information based on what you have told us, and what I know of Florida law from my brief skimming of it. Complain like a good taxpayer and star witness and have the DA lay out for you the options. If you don't want to see the guy get life, let the DA know that you will be okay with a plea bargain that won't require him to do life. In some states they have to at least tell you what the terms of a plea agreement are before they present it to the court and give you an opportunity to make a statement to the court. In most places they want to have the victim have some input just to cover their asses.
I am glad that you are well, and hope that you can recover your sense of peace and safety. I know it is difficult sometimes.
If you don't get satisfactory answers from the DA, let me know and I'll look up some National Association of Criminal Defense Attorneys members in your area to see if they'd advise you pro bono. You might be surprised at how willing these guys are to help.
What good advice! Since I'm not even a member of any bar yet, I hesitated to do even what you did. Unlicensed practitioner, and all...
MsGreer
I'm sorry I didn't even suspect you were talking about yourself. Call me Densa.
In any case, whether it is hard on the accused or not, as JJ said, he did have some choices over what he did.
Arky,
Your story is amazing. I must have missed it the first time around. Of course, your comments regarding the judge are precisely why many states have moved to institute mandatory sentencing, or enhanced sentencing as Jones mentioned exists in Florida. Too many cases like yours grab the attention of the media, and the public reaction is that the judiciary needs to be reined in.
I too, am glad your nephew has been able to get on with his life.
the PD here is a very very friend of mine. I talk to him about the case whenever he has the time. He has walked me through what to expect. He is disturbed this guy put a gun in my face. Of course the DA does not know about my friendship with the PD. BTW, HIS wife is a judge here. Just a tidbit I thought you might like hearing.
You gave me alot of good input.
I am glad that you survived the incident, and that your understandable fear and anger has not clouded your ability to see the offender as a human being. It truly reaffirms my faith in the better angels of our nature that you can distinguish between a completely reprehensible act and the actor.
As for fearing the offenders friends, you should remember that if has a long history of addiction, he's probably alienated all of his friends and family such that they won't be motivated to do anything.
I think a traditional wish is that you be written in the Book of Life, and that is my wish for you this year.
I will be fine.
MsIT -
Your comments aren't particularly responsive to my argument. For example, your Message # 1197 totally misinterprets my comments - I don't think that the alternative interpretations of the First Amendment which have been ascendant at various times in our nation's history are better than the one that currently exists. I was responding to your claim in Message # 1185 that alternative interpretations of the First Amendment were "inherently illogical" -there is nothing logically required about the current scheme, only pragmatically.
You can say that it isn't "neutral," but that gets you into a whole differnt debate. Courts and lgal theorists have been trying to arrive at "neutral" principles since the realist revolution at least, and have yet to have any success in the matter.
"But I would argue that it is possible to read caselaw as it stands, without additional commentary to influence the way one interprets it. In this regard, primary source materials are generally more 'objective' than secondary."
I am surprised that you would think that cases, as texts, are more neutral than other types of texts. They are more ensconced in legal reasoning, but they are simply different types of advocacy texts, not more "objective." I have no idea how you can think of decisions as "objective."
Message # 1197
We are not reading about the issues, we are examining the issues from the perspective of how the court has defined the power of the state (and feds) to regulate speech. And, as I said before, I'm enjoying this approach.
This approach is not neutral. Leaving aside the court's ideological bias, the notion that "law" is "however the courts will decide" (in Holme's famous formulation) was at one point a revolutionary concept. It still receives substantial criticism from people like JJBiener or quasi-Scalias, who think that law has been divinely given and is only to be revealed by us error-prone humans.
Message # 1198
Or, it could simply be that my institution is a standard, mainstream, conservative, law school.
Apparently you don't know a lot about Georgetown (not that you shoul, of course). We are one of the most mainstream, conservative law schools in the country. We produce more corporate/firm attorneys every year than any other law school in the country. 88% of my classmates will end up in firms. Most of us are political liberals, but the law school is really quite traditional.
You need to re-read my comments. First, I didn't say that the law is neutral, or that opinions themselves are not ideological, indeed I'd agree with you that they are overflowing with ideology. My point was that I'd rather interpret the case law without the additional commentary of legal advocates. Granted there is always a degree of advocacy even in the way a supposedly "non-ideological" legal textbook is compiled, with further ideology in the commentary between the cases, but I'd rather read these than sources that have a clear position the author wants to argue.
Second, you're Message # 1231 completely misses the point I was making. I argued that under the modern (mainstream) view of a near absolute right to speech, of any kind, in almost any context - an interpretation that liberals fought long and hard to see incorporated into the legal mainstream - the position they have taken on hate speech is contrary and inherently illogical.
Now, perhaps I didn't make that clear before. Perhaps it still isn't clear. But I don't think I was speaking comparatively about the value of modern First A doctrine with respect to previous historical interpretations.
And if I didn't respond to your arguments it may be because I'm not interested in the issues from a purely ideological standpoint. I take as a given that ideology exists in the law, I also take as a given that were we influenced by a different ideology, the first amendment would be interpreted differently, and rights would be significantly different. But so what?
I can speak ideological lingo with the best of you, I just fail to be moved by it anymore. Nor do I think speaking in those terms makes an impact on the average citizen, who, after all, has more vested in the rights granted under the first amendment than all the other Bill of Rights. And before you blow a gasket, I would posit that the average law abiding American, which I'd argue is the majority of Americans, generally thinks of the rights protected by the first amendment as the ones that touch their lives most intimately. The remainder of the Bill of Rights have more to do with protections that kick in once one is in the criminal system, and frankly, most Americans never come in contact with them.
This approach is not neutral. Leaving aside the court's ideological bias, the notion that "law" is "however the courts will decide" (in Holme's famous formulation) was at one point a revolutionary concept. It still receives substantial criticism from people like JJBiener or quasi-Scalias, who think that law has been divinely given and is only to be revealed by us error-prone humans.
I think we're talking at cross purposes.
I don't think I understand enought about the situation to be able to answer. Are the parties before a magistrate for mediation or arbitration? Is the unrepresented party without legal counsel by choice? Is the DA's office involved? If so, then they'd be the ones to contact.
Otherwise, I can't comment. (And I just wanted you to know I wasn't ignoring the question, but don't know enough to say much.)
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