Worth the paper it's printed on

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A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed. -- 2nd Amendment

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. -- 4th Amendment

For the most ardent gun rights advocates out there, the language of the 2nd Amendment is sacrosanct. Of course the qualifying clause before the comma is often brushed off as if it didn't exist.

We look back now at the Constitution and Bill of Rights as the great blueprints of our nation. At the time the Constitution was adopted, however, there were a multitude of voices arguing that the plan laid out in that document would only serve to enslave farmers and other agrarian interests. That's why we have two house of Congress - one represented the voice of the people and other represented the voice of the states. It's the reason the Electoral College was created - to ensure that the voters of just a few of the larger states could dictate who served as president. (The irony, of course, is that we have just the opposite situation today where the voters of a few states hold the rest of the nation hostage on Election Day.)

The agrarian interests were not in favor of a strong centralized government. They believed that only favored the monied interests in the larger states. One thing they really feared was the creation of a federal army. The 2nd Amendment was designed to sway those critics by leaving the defense of the republic to the state militias.

And, in order to have state militias capable of defending the republic against an expected attack from the English, folks needed to have guns.

Now that we have a professional army, the original rationale for the 2nd Amendment no longer exists.

If one wants to argue that the words of the 2nd Amendment are absolute, I can only show you the words in the 4th Amendment as proof that nothing in the Bill of Rights is absolute.

The 4th Amendment, despite its clear prohibition against unreasonable search and seizure and the warrant requirement has been honored far more in the breach than in the observance over the history of the republic. Most of the "reinterpretation" of the 4th Amendment has been the result of judges seeing cases in which someone either did something bad or had something bad and, but for a warrantless search, would have gotten away. Supreme Court justices, instead of reading the 4th Amendment and applying its words, adopted a results-oriented approach and looked for ways to get around the warrant requirement.

Over the years the Court has redefined "persons, houses, papers and effects" and created a mythical "reasonable expectation of privacy" test out of whole cloth. Courts have redefined "searches" and "seizures" in such a way that a person can be handcuffed in the back of a police car and not be considered seized and a pat down for weapons isn't considered a search. The word "unreasonable" has apparently been deleted from the English language and probable cause has become so watered down that stops are justified because an officer thinks someone may have violated the law.

Once upon a time we had a right to be left alone by the state, today you can get tased if you don't stop to answer questions. 

Maybe it helps that gun holders and makers have a very powerful lobby behind them with lots of money to throw around while victims of warrantless searches tend to be convicted criminals without a lot of cash.

Thinking twice before uttering that big number

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So just how much sense does it make to lock someone up in prison until they are in their 80's or 90's? Sure, maybe the sentencing guidelines tell you it's got to be done. Or maybe it's that election coming up in a few months.
But does anyone stop to think about the social costs of keeping elderly prisoners behind bars?
US District Judge Richard Posner has thought about. And the notion troubled him enough that it was the subject of a concurring opinion in U.S. v. Craig, No. 12-1262 (7th Cir. 2012).
Mr. Craig plead guilty to four counts of producing child pornography. He photographed his sexual assaults of a preteen girl and then threatened to kill her if she didn't provide him more pictures of herself. Based on the sentencing guidelines (and I thought those were but advisory these days), he could have been sentenced to life on each count. But, because he had no prior convictions, the most he could be sentenced to was 30 years per count. The trial court decided to sentence him to 30 years on one count and concurrent sentences of 20 years each on the other three counts. He then stacked the sentences and Mr. Craig headed off to prison for 50 years.
At the time of his sentencing Mr. Craig was 46 years old. Judge Posner pointed out that if he served out his sentence, Mr. Craig would be a guest of the state until he was 96 years old. As you may or may not be aware of, elderly folks tend to have more serious medical conditions than younger people. These conditions require more treatment, more medication and more expense in general. And if Mr. Craig remains in prison, someone has to foot the bill for his medical care.
Judge Posner suggested that it would be more economical for Mr. Craig to be released at some point so that he could seek employment and make contributions to the Medicare system. Should that happen, he would be  paying for at least a portion of the care he receives - like anyone else covered by Medicare. But, if we're going to continue to lock people up beyond the point that they are a threat to anyone, then we are all going to pay the cost of those draconian sentences.

The social costs of imprisonment should in principle be compared  with the benefits of imprisonment  to the society, consisting mainly of deterrence and incapacitation. A sentencing judge  should therefore consider the incremental deterrent and incapacitative effects of  a very long sentence compared to a somewhat shorter one. An impressive body of economic research (summarized and extended in David S. Abrams,  “The Imprisoner’s Dilemma: A Cost Benefit Approach to Incarceration,” forthcoming in  Iowa Law Review) finds for example that forgoing imprisonment as punishment of criminals whose crimes  inflict little harm may  save more in costs of imprisonment  than  the  cost  in  increased crime that it creates. Ours is not a “little crime” case, and not even the defendant suggests that probation  would  be an  appropriate punishment. But it is  a lifetime imprisonment case, and the implications for cost, incapacitation, and deterrence create grounds for questioning that length of sentence. 

Yes, there are some people out there that should be locked up until they breathe their final breath, but those folks are few and far between. We are living longer now than ever before and there is no reason not to expect that trend to continue into the future. So long as the cost of health care continues to increase for elderly people, we are going to find new funding mechanisms for Medicare (as well as revamping Social Security when we reach the point that there aren't enough workers paying FICA taxes to support those receiving Social Security benefits).
With our longer lifespans we see more incidences of cancer as well as heart disease. These are costly conditions to treat and if we insist on locking people up until they are carted out in a pine box then we are the ones who are going to have to pay for it.
I doubt most judges give the matter a second thought for they will be long off the bench before the bill comes and, besides, no one will remember who put that inmate behind bars until his dying days. At least Judge Posner has given us something to think about.
Not to mention that they're aren't too many 70, 80 and 90 year olds out there committing crimes anyway.
H/T Doug Berman (Sentencing Law and Policy)

Here's another bad idea

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As I was heading to traffic court on Friday afternoon I was listening to BBC World Have Your Say on the radio. The show led off with a discussion of the gang rape on a bus in India the other day. The guests spoke about how we needed to stop blaming the victim and that women should be able to walk the streets free from fear of sexual assault.

But one of the guests, a counselor in Toronto, stated that in order to protect women the justice system needed to support survivors of sexual assault. While there was much discussed that I agreed with, I could only glare at the radio when she uttered those words.

Our criminal laws are designed to protect the victims of crime. Our criminal (in)justice system is supposed to protect the rights of the accused. The due process provisions of the Bill of Rights were included because the Founders of the Republic thought the greatest injustice was sending an innocent man to prison. Therefore, they set out to make it hard for the state to obtain a conviction. Yes, it means that folks who did bad things sometimes walk away free, but it's better for that to happen than to imprison an innocent man (which we seem to do plenty of).

If the justice system is going to do more to protect the alleged victims of sexual assault then it must come at the expense of the rights of the accused. This is simply unacceptable. Once you take away a defendant's rights because of the crime of which he's accused, it's easier to expand that forfeiture to other crimes.

The state always seeks to limit the rights of the accused because it makes it easier to obtain a conviction. That is precisely why we must constantly fight to preserve those rights we have, because even though we call them the rights of the accused, they protect all of us. We all have the right to be left alone by the state and we all have the right to keep our mouths shut. We all have the right to hold the state to its burden of proof. So if we're going to take that right away from one person - we are taking it away from all of us.

The way our courts treat motorists accused of driving while intoxicated is shameful - but it happened because no one wanted to appear to be in favor of drunk driving. The result is judges now volunteer to sign warrants for officers to jab needles in people's arms for committing a misdemeanor.

So what would our counselor have us to do to modify our criminal (in)justice system? Take away the accused's right to keep his mouth shut? Take away his right to cross examine the witnesses for the state? Take away his ability to defend himself?  She never did say  because no one pressed her on the stupidity of her statement.

I get it. No one wants to be accused of being in favor of sexual assault. But depriving a defendant accused of rape of his due process rights isn't the way to go.

For one you walk down that path you weaken the piece of paper that is our last line of defense against tyranny in this country.

Fiscal cliff? What fiscal cliff?

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If I remember my Constitution correctly, all bills dealing with taxing and spending must originate in the House.   So, it would appear to me that John Boehner has a little work to do - a little work that he seems incapable of doing.

Now first a word on this over-hyped so-called fiscal cliff that we're supposed to be plunging over on New Year's Day. It's all an illusion. There is no such thing. The illusion was created so that no one would question the need to implement austerity measures during a fragile economic recovery. Just go ask the Greeks or the Spanish how well those austerity measures are working in their countries.

So what if there's no deal in place by Tuesday. Wouldn't it make more sense for the incoming Congress to debate the issue rather than the lame ducks still in session? The tax cuts can be extended, or re-introduced, at any time. The broad spending cuts won't take effect until the next fiscal year.

President Obama is once again showing his appalling lack of poker skills in groveling with Congressional leaders to come up with a grand bargain. Mr. Obama doesn't have to do anything. Mr. Boehner couldn't even command enough of his own party members to stage a vote for his bill that would coddle the wealthy and defense contractors while fleecing seniors and the unemployed. Apparently members of his own party didn't think his proposal did enough coddling or fleecing.

The President's only role in the process is either signing or vetoing the bill that comes across his desk. The President doesn't need to propose anything. The President doesn't need to fold his hand if the leader of the other party barks at him. He can just sit back and wait to see what happens.

So, Mr. Obama, why not just sit back and enjoy the show? Put the onus on Mr. Boehner and his colleagues to pass legislation to avoid this mythical cliff. Let the American people see who the House GOP really represents. Let then pass a bill that doesn't raise tax rates on the wealthiest 2% of Americans but imposes benefit cuts for seniors who rely on their monthly social security check for survival. Let's see how that goes over.

Right now Mr. Boehner is laughing because he's not being forced to exercise any leadership or responsibility. President Obama's latest moronic idea of pressing the Speaker to put the Senate bill up for a vote in the House boggles the mind.

Come on, Mr. President, you were man enough to break up thousands of families by deporting parents of American citizens. You were man enough to authorize the murder of thousands of civilians in the Middle East. You were man enough to brag that you were the one who decided who was to be killed by unmanned drones. But you're not man enough to stand your ground and force John Boehner to do his job?

Mr. Obama, and the rest of the cabal in Washington, were only too happy to shower cash down on the very folks who drove the economy into the ground while ignoring the plight of ordinary Americans who lost their jobs, their homes and their families. Now they're only too happy to do it all over again under the fiction of the fiscal cliff.

(In)justice of the peace

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We would like to think our judges have a least a little knowledge of the law. We would assume a judge would also be an attorney. It would make sense, wouldn't it?
But, in Texas you can be a judge even if you aren't a lawyer. Justices of the Peace preside over a docket consisting of traffic code violations and other Class C misdemeanors as well as small claims cases and other civil cases if the amount in dispute is under $10,000. They also perform weddings and, in some counties, act as coroner (without the need for any formal medical training).
Michael McCleary is a justice of the peace in Brazos County. Mr. McCleary is not a judge. And, should you ever set foot in his court, that fact will be readily apparent.
I recently represented a truck driver who got a speeding ticket in Brazos County a few years ago. Prior to trial I faxed a subpoena to the court for service on the state trooper who wrote the ticket. I received a response back that the county attorney said I needed to serve the subpoena myself or issue a public information request.
Now this concerned me for two reasons. First, why were the judge and the county attorney discussing what to do with the subpoena request I had filed with the court? Does the phrase ex parte communication mean nothing in Brazos County? Second, my client was charged with a criminal offense and has a right to compulsory service.
So I sent a letter to Mr. McCleary informing him that the court's refusal to serve my subpoena violated my client's due process rights. The response I received made it clear that no one in that court had any clue what the words due process meant either.
When I pressed the matter I was informed that the court would serve my subpoena - but only if I paid a $75 fee for each item requested (for a total of $450). Once again I fired off a response that the court doesn't get to charge a defendant in a criminal case to serve a subpoena. And, once again, the response I got back indicated that a lack of intelligence won't hold anyone back in Brazos County.
And so, as a Christmas present, after my client was convicted in a trial that was rigged from the get-go, I handed Mr. McCleary a copy of the complaint I had filed the previous day with the State Commission on Judicial Conduct.
I would like to think that something might happen as a result - but I know too much to expect anything to come of it.
But the problems go much deeper than one judge who wouldn't recognize the Bill of Rights, or Code of Criminal Procedure, if it landed in his lap. The problem is allowing non-lawyers to preside over criminal cases in which a citizen's livelihood could be at stake. No, a traffic citation is nowhere near as serious as a murder case, but the consequences of a conviction can be severe, nonetheless. When a conviction for speeding can cause a driver to lose his job, I don't think it's too much to ask that a qualified judge be sitting on the bench.
And when a justice of the peace is either ignorant of the law or just chooses to ignore it, the citizen accused of speeding isn't being afforded his constitutional rights. Sure, it's not a "court of record" so any adverse verdict can be appealed to the county court for a new trial - but then we're talking about even more money being shelled out to get something that approaches "justice." That remedy is no excuse for continuing the dog-and-pony show you can see any day in any rural county across this state.
If you want a non-lawyer serving as justice of the peace to perform weddings and to agree with the police that someone is actually dead - that's fine. But, please, don't allow him to preside over a criminal trial.

It's time to shuffle up and deal, Mr. President

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Someone please let President Obama know I'm trying to get a poker night together sometime in the next couple of weeks. I'd really love to have Mr. Obama sit at the table and play with us. I think I can clean out his wallet.

You see, I don't think Mr. Obama is much of a poker player. He was just re-elected despite the high unemployment rate because folks thought he'd do a better job managing the economy than his opponent. His party has a bigger majority in the Senate and picked up a few seats in the House. He's not in a weak position facing the so-called fiscal cliff.

President Obama started off calling for a renewal of the Bush-era tax cuts for somewhere around 98% of the taxpaying public. His plan to avoid the cliff was to raise taxes on the wealthiest Americans and to trim some dollars from the budget.

His antagonist, House Speaker John Boehner, said he wouldn't stand for raising taxes on the wealthy and that he wanted to see more cuts to Social Security and Medicare and no cuts in defense spending.

If the parties couldn't agree by December 31, the tax cuts would expire and automatic spending cuts would go into place for next year's budget. President Obama held the high ground. If the House Republicans refused to go along with his plan, everyone's taxes would go up in the new year and their precious defense budget would be cut. The president had the best hand. All he had to do was shove his chips into the center of the table and the pot was his. There was no way Mr. Boehner would call that bet.



So what did Mr. Obama do?

True to fashion he checked the hand and offered more concessions to the GOP. How about we only raise taxes on those folks making more than $400,000 a year, John? And how about we cut more money from Social Security than we do from the Pentagon budget? Would that work for you?

As an aside, in all of this talk about Social Security, the one thing no one likes to mention is that Social Security isn't part of the federal budget. It's a "trust fund." While the government borrows from the surplus in the trust fund in exchange for treasury bonds, Social Security spending is completely unrelated to the federal budget. Now at some point in the future when FICA receipts don't cover the benefits paid out it might be a different story.

But if President Obama thinks that making more (unnecessary) concessions is going to engender bipartisanship in the House of Representatives, he's crazy. By caving in like he did he is only strengthening the GOP's hand. Now what's he going to do when Mr. Boehner shoves a stack of chips in the middle of table?

So come on down to Houston, Mr. President. I've got a chair for you. Checking with a strong hand is dangerous. If you make the bet, you're forcing your opponent to make a tough choice; but when you check your hand and your opponent makes a big bet now the onus is on you. When you've got a big hand, it's much better to lead.

On ritual, superstition and subjugation

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While most of us are preparing to participate in the pagan celebration of the winter solstice, I had a couple of questions for the superstitious among us.

If we are to believe, as the superstitious around us do, that there is a loving, all-powerful god behind the curtain pulling the strings in this universe of ours, how do you explain what happened in Newtown?

If you believe that this loving, all-powerful god of yours knew every one of us before we were ever born, how do you explain why this god would have snuffed out the lives of 20 children in a hail of gunfire?

And don't tell me that it's to test the faith of the parents. If that's your argument then we are all just pawns in someone else's game. What message does that send to our children - that this god they are told loves them has no compunction about ending their lives in an instant?

If your god does exist as some kind of a prime mover then your god is an arbitrary and capricious god. Your god is a cruel and sadistic deity.

And the massacre also points to another loose end. If your loving, all-powerful god really does sit in a throne in an alternative universe called heaven, most (if not all) of those 20 children will never enter the gates.

For those steeped in liturgical superstition, when that little baby is baptized it's only a ritual that means next to nothing until the bureaucrats in charge have determined that the child has been confirmed. And that only happens after the child is thoroughly indoctrinated in the particular flavor of superstition you practice.

For the rest of the superstitious among you, a person is only "saved" from their miserable existence in this universe if they buy into the sect's superstitions. But, until that time, you don't pass Go and you don't collect your $200.

But that's the dirty little secret that no one wants to talk about and that no one dare admit. Just how many folks do you think would buy into the great opiate of the masses if that was explained to them?

Religion has always been a tool to subjugate the masses and to quell dissent. It is used today as a tool of the ruling elite to justify the suffering that they have wrought on the rest of the world. It is used as a tool to justify the mass killings of innocent men, women and children around the world. It is used as a tool to inflame prejudice. It is used as a tool to convince the downtrodden that it was ordained by god that they be exploited and left to rot like garbage.

Just something to think about.