Today is such a day.

The Fresno Bee this morning starts us off with the unsensational headline,

Tattoo ‘hurts…it hurts a lot,’ boy says (Pablo Lopez, “Tattoo ‘hurts…it hurts a lot,’ boy says” (May 26, 2010) The Fresno Bee, A1.)

The story is of a boy who allegedly was forcibly held down and tattooed with a gang tattoo by his father, who is said to be a Bulldog gang member.  Most people to whom I’ve spoken agree — and the story indicates the defense attorneys are also arguing this — that the charge, which is aggravated mayhem, was intended to be used for defendants accused of permanently disfiguring someone, such as by cutting off an arm, ear, or by setting them on fire.

If convicted, the father and his “accomplice” in this crime are looking at life in prison.

That’s right.  Life.  For tattooing his son.

Under California law, tattooing a minor is a crime punishable as a misdemeanor, with a maximum of six months in jail, or a fine, or both.  (CA Pen. Code §653; CA Pen. Code §19.)

But that’s not good enough.  These guys are gang members.  GANG MEMBERS, I TELL YOU!

Sorry.  I was getting into the spirit of things.  When gang members are involved, after all, no punishment is serious enough.  Especially if, on top of being gang members, they happen to commit a crime.  Even a misdemeanor.

If it weren’t for the huge amount of human suffering involved, I’d be delighted to see the District Attorney’s office — and some segments of the public — screaming for yet another relatively trivial crime resulting in life in prison.  I’ve already written elsewhere about the impact this has on our budgets.

The Fresno Bee provides some insight into that problem, too, on page 3:

Pot clinic owner in jail tug-of-war (Paula Lloyd, “Pot clinic owner in jail tug-of-war” (May 26, 2010) A3.

Robert Morse, the owner of a Tower District medical-marijuana clinic, has been sent back to jail yet again by Judge Franson, who appears to be primarily angered over the lack of respect shown his court by Morse.  Morse has repeatedly ignored the judge’s orders.  Now it’s the Sheriff’s turn.

Sheriff Mims, claiming to be acting under a federal mandate, keeps releasing Morse due to jail overcrowding.  The judge keeps sending him back and telling the Sheriff to keep him there until a 15-day sentence handed down by the judge has been served.

Morse can’t be kept because we’re busy locking up “violent” gang members for misdemeanors.  Our prison system is also in a near-meltdown state because of the increasing numbers of people being sent there for what are really societally-disapproved behaviors which, frankly, should not be crimes.

There’s no word yet on whether Judge Franson will add Sheriff Mims to the list of prisoners he wants held for dissing him.

Tattoos are great for at least semi-permanently marking individuals for easy classification.  California hasn’t quite reached the point yet of demanding tattoos for criminals — frankly, they don’t have to, since criminals have been more than happy to tattoo themselves — but for that class of criminals attempting to keep a low profile, the State will have none of it.

The same Fresno Bee that brought me the above stories tells me about a California Assembly bill which will require certain sex offenders to wear Hawthorne’s Scarlet “A” — well, okay, maybe it’s not an “A”; it’s some “distinctive stripe or color,” possibly not even scarlet — on their driver’s licenses.  The stated goal is to make it easier for law enforcement to be “on alert when they stop and question people.”

It will also allow, of course, for anyone else — bartenders, waitresses, sales people checking ID against a credit card, etc. — to know that a sex offender is in their midst.  This will make them safer — the viewer, that is; not the sex offender, who can probably be expected to be subjected to further harassment.  But, hey, it’s a sex offender, right?  It’s not like we’re talking about a person we’d like to entice into acting like the human we don’t think he is!

The bill is backed by that most un-impassioned of California critters, the ones who increasingly structure how our criminal “justice” system works: the father of a 14-year-old girl who was raped and murdered.  Oh, and, that more despicable class of compassionate California critter, who only wants what’s best for California: our politicians.  It’s bipartisan, though (who doesn’t hate sex offenders?): sponsor Pedro Nava is a Democrat, while sponsor Paul Cook is Republican.

The bill is a missed opportunity, though, for solving all the problems discussed in this blog post in one feel swoop.  I’m almost afraid to say this:  So far, nobody has looked at the possibility of balancing the budget by releasing gang members from jails and prisons and providing them with small business loans to allow them to open tattoo parlors under the condition that they provide free forehead tattoos to California’s burgeoning sex offender population.

The sad thing is, the way things are going, some brain-dead “damn the rule of law, gotta support those victims!” politician is bound to latch onto something similar soon.

A War, in fact, which we cannot win.  Because to win, you see, we’d have to be something other than what we are…

…humans.

The Fresno Bee, publishing an Associated Press story, began my day with this:

After 40 years, the United States’ war on drugs has cost $1 trillion and hundreds of thousands of lives, and for what?  Drug use is rampant and violence even more brutal and widespread.  (Martha Mendoza, “A Failed Plan? Fight against drugs costs more than ever with no end in sight” (March 18, 2010) B1, col. 2.)

I guess it’s been long enough since Prohibition that everyone forgot we lost that War, too.  Call it “Drug War I.”  We’ve been stuck for quite some time in “Drug War II.”

Like the World Wars after which I modeled those names, the United States, while a key player, is just one piece in the war.  Unlike those Wars, there are no heroes: we’re not riding to anyone’s rescue.  (The War does let us occasionally do something, though, that the United States has been good at since before it was born: there’s been a lot of “collateral damage” to indigenous peoples.)  Like its older siblings, the World Wars, this one has seen our troops distributed around the globe.

Not everyone agrees that this War has been as much a waste of resources and has brought on as much human misery as the original Prohibition.

“To say that all the things that have been done in the war on drugs haven’t made any difference is ridiculous,” [former U.S. drug czar] Walters said.  “It destroys everything we’ve done.  It’s saying all the people involved in law enforcement, treatment and prevention have been wasting their time.  It’s saying all these people’s work is misguided.”  (Mendoza, supra.)

In other words, as with the original Prohibition, that would require us to admit a colossal mistake.

If only we could destroy everything they’ve done!  But, alas, the legacy of this failed War will likely outlast the United States.  It has already outlasted the Constitution.

In fact, a fairly strong argument can be made that Drug War II necessitated — and thus it is no surprise that it brought about — the death of that Constitution.

First, it necessitated the death because, as the previously-linked page delineates, the War on Drugs is almost certainly unconstitutional.  In earlier times, virtually all Americans would have recognized this.  That’s why our original Prohibition required a constitutional amendment.  So far as I know, that amendment is the first-ever constitutional stripping away of rights.  Finally realizing the stupidity of that act, the 21st amendment repealed the 18th — repealed Prohibition — and restored the rights which had been stripped away by that one-of-a-kind amendment.

That, to my knowledge, is the only time rights have been constitutionally stripped away from us.  It would not, however, be the last time we were stripped of our rights.  After the gyrations the government had to go through first to implement Prohibition and then to repeal it — as any supporter of the Equal Rights Amendment can tell you, getting constitutional amendments passed is hell! — they just decided it would be easier to ignore the Constitution whenever it got in the way, rather than to amend it.  A primary argument of this post is that the War on Drugs has actually been a War on Rights, stripping away nearly everything, as the United States Constitution has been quite literally flipped on its head.  It’s as if the Constitution, invented long before photography, were a negative.

Oh, crap.  I forget that most of my readers probably grew up with digital cameras.

Short aside: In the old days, a “negative” was a piece of glass, or (in more recent times) a piece of chemical-coated plastic.  We called the plastic versions, at least, “film.”  You’ve heard the term.  You probably just didn’t know what it meant.  Anyway, when the shutter opened on a camera, it exposed the “film” to light.  The bright parts of the original subject — the thing you were taking a picture of — became represented on a negative as dark parts; the dark parts ended up on the negative as light parts.  It was the exact opposite of the scene you were photographing.

Like our Constitution.  And your rights.  And the power of the government.

The Constitution was meant to place limitations on what governments could do.  The rights — actually we called them “powers” — of government were limited.  The rights — we actually called them rights! — of human beings were not.  Except to the extent that it was necessary to give some up in order to give those rights — now called “powers” — to government.

The idea was to give up just enough of our rights to allow a government to do the most basic of tasks: keep us safe from people — like Kings, or maybe dictators, foreign countries, or maybe despots within our own country — who would try to reduce the rest of our rights.  The ones we kept.

Well, around about the time we started to develop glass plates — those were the predecessors to film, but I didn’t want to really do a full-on photography history lesson here — government, primarily driven by then-President Abraham Lincoln, got the idea that the Constitution, paper though it was, was a kind of negative as well.  Where we previously thought the Constitution limited the rights (remember, we called them “powers”) of the government, our government began to promulgate the theory that the limitation was actually on our rights (remember, we called them “rights”; actually, sometimes we referred to them as “freedoms”).

So it came to be that today people mistakenly believe that the Constitution limits the rights of individuals.  And if a right claimed by a person is not “in the Constitution,” then it doesn’t exist.

Oh how I wish someone would have told Hamilton “show me where the Constitution grants people a right to privacy!”

This confusion about what the Constitution does and does not do happened for two reasons.

The first is that people don’t read anymore.  After all, you can’t actually read the Constitution — in English, Spanish, or even Swahili (I don’t know if it’s actually printed in Swahili) — and not realize that it is the government which is being limited.  You can’t read the Constitution and actually not see that there is a Ninth and a Tenth Amendment in The First Ten Amendments, a.k.a., the Bill of Rights.  (Hamilton was 100% spot-on about the dangers of that damn thing.)

The second reason is that over the years since America’s first dictator — Abraham Lincoln — saved us from ourselves, our government has increasingly desensitized us to the idea that it was, in fact, limited; that we were, in fact, not intended to be, except to the smallest extent necessary, as mentioned above.

Besides, most of the other nations left us alone after the first few decades following the Revolution.  With no one else to fight, we’ve had to start or invent various wars — the Mexican-American War (oh, darn, I wasn’t going to mention that after yesterday’s debacle), Civil War, Drug War I (Prohibition) and, most recently, Drug War II — just so our government would have something to do.

Besides, our leaders can’t survive without war.  Or, at least, they can’t survive in the style to which they’ve become accustomed.

But the fact of the matter is that, for the rest of us, for the average American, the War on Drugs has been an abject failure.

[President] Nixon’s first drug-fighting budget was $100 million.  It’s now risen to $15.1 billion, 31 times Nixon’s amount even when adjusted for inflation.

Regardless of the additional funds, high school students report the same rates of illegal drug use as they did in 1970, and the Centers for Disease Control and Prevention says drug overdoses have “risen steadily” since the early 1970s to more than 20,000 last year.  (Mendoza, supra.)

Nixon, by the way, started Drug War II after being forced to end the Vietnam War.  As I said, our leaders need wars.

The Justice Department estimates the consequences of drug abuse — “an overburdened justice system, a strained health-care system, lost productivity and environmental destruction” — cost the United States $215 billion a year.

Harvard University economist Jeffrey Miron says the only sure thing taxpayers get for more spending on police and soldiers is more homicides.  (Mendoza, supra, emphasis added.)

Now we know how this happens.

Much of the meaninglessness of the Fourth Amendment to the Constitution — that which controls searches and seizures by the government — can be directly traced to Drug War I and Drug War II.  During Prohibition, the case law allowing searches of automobiles developed to combat bootleggers. Likewise, the initial development of case law regarding wiretaps grew out of the Prohibition. In a very real sense, then, the Wars on Drugs — what I’ve called Drug War I and Drug War II — brought an end to the Lochner Era, and to the United States Supreme Court’s interpretation of the Constitution as somehow limiting the government.

In spite of this, we have gained little.  Never did Benjamin Franklin’s words ring truer; we have given up nearly all our liberty, for less safety.

From the beginning, lawmakers debated fiercely whether law enforcement — no matter how well funded and well trained — could ever defeat the drug problem.  (Mendoza, supra.)

It can’t.  What it has done, however, is to bring our once-great nation to its knees. As former Alaska Senator Mike Gravel put it:

Look what happened.  It’s an ongoing tragedy that has cost us a trillion dollars.  It has loaded our jails and it has destabilized countries like Mexico and Columbia.  (Mendoza, supra.)

First, the Drug Wars broke our Constitution.  Then Drug War II broke the backs of our weaker southern neighbors.  Now the War on Drugs stands to break all our budgets.  Our governments can no longer support our anti-drug habit.

The problem with War, though, is that — at least for human beings — it’s the strongest of addictions.

“[M]odern police forces are staffed with professionals,” Scalia said.

If Fresno police chief Jerry Dyer gets his way, well, if this ever was true — and I seriously doubt it ever was — it certainly will not be going forward.

Dyer says that the city is running out of money.  No surprise there.  His solution for dealing with it, however, is interesting: volunteers to take the place of trained police officers.

You’ve got to love the way the story starts:

Attention, Columbo-wannabes. Fresno Police Chief Jerry Dyer wants to hear from you — if you’ll work for free. (George Hostetter, “Cash-strapped Fresno police enlist volunteers” (May 1, 2010) The Fresno Bee.)

According to the story, Dyer proposes to use volunteers to “do some investigative police work,” including handling the investigation of vehicle thefts, vehicle burglary cases, possibly responding to commercial burglaries, and definitely would include gathering crime scene evidence.

Yoo-hoo!  Why watch CSI on television when you can play CSI in your own home town?

The story goes on to point out that this idea is so wonderful that

Using volunteers to handle jobs formerly handled by employees could catch on at Fresno City Hall and other local governments as officials struggle with declining revenues. (Hostetter, supra.)

Forget the fact that even police officers who have allegedly been properly trained make mistakes in collecting and maintaining the integrity of evidence all the time (not to mention evaluating it), what I want to know is how come if I want people to work for me for free, that will land me in hot water with the labor boards, but the city openly discusses firing paid employees, replacing them with unpaid volunteers and that’s not only okay, it’s lauded.

“There’s a lot to consider,” [Fresno Mayor Ashley Swearengin] said. “We’ve got to have a good system in place where we are recruiting and screening and training and monitoring those volunteers. But, potentially, it is a way to continue the service levels that our public is accustomed to while keeping the cost low.”  (Hostetter, supra.)

Yeah?  Well, let us cash-strapped business owners bring in a few unpaid “volunteers” and we’ll not only continue service levels our customers are accustomed to, we’ll dramatically increase them.  To heck with minimum wage laws.

Oh, and Justice Scalia’s professional police force?  If we thought it was bad before, imagine how bad things can get with a bunch of amateur Columbos and CSI-wannabes running around.

A couple of days ago, the Visalia Times-Delta, which is apparently a newspaper intended as a local daily equivalent to the National Enquirer, or some other piece-of-crap rag, trumpeted the complaint that a new “[l]aw frees some violent inmates.” Of course, you can’t completely blame the Times-Delta for the sensationalism on this story: it’s a slight modification of the headline accompanying the online version of the yellow journalism of the AP story.  Like the Bee story, by the way, the online AP story is dated one day earlier than the print version.

Both stories demonstrate the effects of budgetary meltdown; both hint, at least inchoately, at the cause: too many crimes (thus too many criminals) and all our money is being spent on prisons instead of providing education so people will be less likely to commit these crimes.  This is a non-sustainable path to anyone’s idea of a better society.  We simply cannot keep building and staffing prisons, no matter how badly we want to create new jobs.

The big problem is that the Slashbucklers, who aim to deal with the problem by increasing spending on law enforcement, crime labs and prisons (but not lawyers for the indigent or more judges) instead of schools and other “social” programs, are only going to make it worse.  Inevitably — and this is why I’m calling them Slashbucklers — they will bring all our systems crashing down.

Ironically, the Slashbucklers who will destroy us and our justice system are readily identifiable primarily because of their alleged “Law & Order” stance.  And, no, I’m not talking about the television show, although, perhaps not coincidentally, studies have shown frequent watchers of forensic and crime dramas “are more likely to overestimate the frequency of serious crimes” and “misperceive important facts about crime.”  (Amy Patterson Neubert, “Researchers rest their case: TV consumption predicts opinions about criminal justice system” (October 28, 2009) Purdue University News.)

“This kind of television viewing can lead to ‘mean world syndrome,’ where people start to think about the world as a scary place,” Sparks says. “Some people develop a fear of victimization, and this belief can affect their feelings of comfort and security.”  (Neubert, supra.)

The people I’m talking about are those who think the problem is that we need more funding for law enforcement, more funding for crime labs and then, just to make sure the cycle remains unbroken, more funding for prisons.  Like swashbucklers, slashbucklers see themselves as saviors, “rescuing society from the clutches of a dastardly villain,” the criminally-minded and “wasters” of government resources.

Forgive me, but I have to let myself be sidetracked here.  I can’t get over the irony of referring to forensic laboratories as “crime labs.”  If the Fresno Bee story is to be believed — and for a change it appears that perhaps it could be –

The stress and strain of trying to meet the demands of court has resulted in sacrificing quality for quanity…. This is evident throughout … and possibly provided the opportunity for evidence tampering and abuse of the evidence control system.

In other words, it really is a crime lab.  Just as pharmaceutical labs create more new drugs for the market, the crime lab creates more new crimes and criminals.

Meanwhile, at any rate, a little education would ameliorate all these problems.  But our society seems less and less willing to provide that.

I suppose there’s no surprise there: the less education people have, the less use they have for education.  And while I do not subscribe to the belief that all poor people are stupid, being stupid does predispose one to difficulties making a living wage.  It also makes one a crappy citizen, less able to participate — intelligently — in the democratic process.  (Unfortunately, it won’t stop them from voting.)

The less money people have, the less willing they are to see it taxed, even to improve educational systems.  Besides, locking people up creates more jobs (police officers, correctional officers, lawyers, judges, clerks, builders of prisons, planners, paper-makers, etc.), while simultaneously removing large numbers — almost two-and-one-half million in the United States — from the job market in which other stupid people compete.

So the circle is simultaneously completed and sustained.

One of these days, though — I’ll cling fervently to this hope until the day I die — we’re going to realize, as a society, that funding education is more productive than funding prisons and courts.  We’re going to stop the criminalization of normal primate behaviors that, left alone, would harm fewer people than they do when we criminalize them.  We’re going to find that this will reduce the need for crime labs, correctional officers, judges, lawyers and other wasted resources.

I want to see the day when teachers are paid more than police officers.  Where kids are taught to value learning and provided with the tools to learn.  Where we recognize that “Law & Order” are the natural consequence of producing people who can actually believe that they have something to lose by not committing crimes instead of creating situations in our communities, our prisons and in our ‘crime labs” that encourage their commission.

I’m looking forward to the day Slashbucklers are seen for what they are: poseurs who, rather than “rescuing society from the clutches of a dastardly villain,” are more often the villains from whom society needs rescuing.

These three concepts are at the core of the problem with our modern system of jurisprudence.  They aren’t alone in constituting that core — but, then, that actually just reinforces the point of one of them: Complexity.

Still, if we could get a grip on the proper balance of these three concepts, we’d go a long way towards improving our system.  We might even begin, again, to understand the meaning of Freedom.  Maybe even Justice.

That’s a pretty bold claim.  I’m going to disappoint not a few people because I’m not going to back it up to everyone’s satisfaction.  This is, after all, a blog; I’m doubtful you came here to read the tome I would have to write to dig very deeply into these issues.  For those who already think like I do, the concepts and even their interaction will not be controversial.  Maybe even those who do not share my thinking won’t find them so; they will merely disagree with my thesis that they are core to the undermining of Freedom and Justice and will think the only problem right now is that we still have a ways to go in the quest for perfection.

My central point is that our rules, our laws, our cases, by their very nature aim for some kind of simplicity.  What is wanted is a set of laws simple enough to understand and simple enough to apply, or use.  If the rules are not simple to understand, they will not serve to deter proscribed behavior because people won’t readily know what is proscribed.  Not being simple to apply, they will also create difficulties with prosecution, being subject both to the same difficulty — that people, including jurors, won’t readily know what is proscribed — and to abuse, from prosecutors who try to stretch them to cover all manner of circumstances for which they were not originally intended.

One example of this type of abuse is the 2008 case of Lori Drew, who was accused of creating a fake Facebook page which, according to the allegations, ultimately resulted in the suicide of 13-year-old Megan Meier.  As Harvard Law professor John Palfrey noted,

I think the danger of applying a statute in this way is that it could have unintended consequences.  [...] An application of a general statute like this might result in chilling a great deal of online speech and other freedom.

The statute Lori Drew was accused of violating, the crime she was accused of committing, was not really appropriately applied to her actual behavior.  Trying to make it apply, if it was ultimately successful, would put people on notice that they, too, risked conviction under this law for things they might say online, even though they intended no crime.

Another example, closer to where I practice criminal defense in Fresno, California, is the arrest and filing of charges against a woman who, in a fit of anger with her soon-to-be-ex-husband, scratched the car he drove.  The woman, a Fresno city fire inspector, had no idea that scratching a car for which she was one of the listed owners was a crime.  Sure, it would upset her husband (which is what she intended), but a person is not normally charged with a crime for damaging property she owns (which is probably why she didn’t think twice about doing it).  Her husband, a police officer, thought differently, as did his friends in the District Attorney’s Office: she was charged with a felony.  Police Chief Jerry Dyer stated,

Our investigation has revealed the charge of felony vandalism was the appropriate charge and is consistent with state law.  This charge was changed to the charge of misdemeanor vandalism at the preliminary hearing.

The charges were ultimately dismissed, but that doesn’t change the fact that Fresno’s police chief thought the charges were appropriate.  It was “consistent” with state law; meaning it was arguably possible to say that the elements of the crime one would have to prove to get a conviction could have been proven.  Granted, it’s idiocy to charge a woman — particularly with a felony — for damaging property for which she is listed as part-owner, but you could theoretically make the charge stick.

Such misapplication of the laws is increasingly common in a world where people in power have little regard for the principles of law, particularly when it gets in the way of what they want to do.  Combine this with the growing tendency of those in authority to arrest people simply for thinking they were citizens or visitors of a free country, and you’ve got a nightmare.

One of the things that makes it easier for these types of abuses to happen is this:  The world is a complex place, but our laws strive for simplicity and perfection.  We don’t want laws that are complicated by a large number of exceptions, even if those exceptions originate in common sense.  We want laws that say, “no weapons on school grounds,” and mistakenly believe that by taking away discretion we will stave off abuse.  After all, we think, if we allow some lower-, mid-, or even high-level individual to make exceptions, they might abuse this discretion and apply the law only to people they don’t like.  So “no weapons on school grounds” results in 6-year-old proud Cub Scouts being ordered to 45-days of reform school. And the only way to fix that is an emergency session of the school board.

We don’t want judges to judge, so Three Strikes laws ensure that a person stealing a few videotapes will get life in prison.  And, so far, nothing will fix that.

Three Strikes, of course, wasn’t born only out of a desire for simplicity.  The other prong, arguably more important, is perfection.  As Richard A. Gardner, M.D., discussing this problem in the context of accusations of child sex abuse, states,

A central cornerstone of our constitutional system is the principle that a man is innocent until proven guilty.  This is often stated as the dictum, “Rather 10 (or 100 or 1,000) guilty men go free than one innocent man be falsely convicted of a crime he did not commit.”  [...] These traditional constitutional safeguards are now being ignored.  Rather, judges now subscribe to the philosophy, “I’d rather be on the safe side,” and find defendants guilty with minimal evidence, even “evidence” provided by a three-year-old child who has been unrelentlessly programmed by her vengeful divorced mother to allege that she was sexually abused by her father.  One judge said to me, “If there is a scintilla of evidence that this man sexually abused this child, I will send him to jail for as many years as the law will allow.”  (Richard A. Gardner, M.D., True and False Accusations of Child Sex Abuse (1992) p. xxxii.)

The law should not allow — theoretically, it does not allow — anyone to be sent to jail on a scintilla of evidence.  The accusations of children with no other evidence at all should not result in a man dying in prison.  Yes, some accusations — and I’m not meaning to focus on child sex abuse here; it just happens I found the quote above while reading about it — are true; some are not.  Separating the friends of Doctorow from the Desperados is no easy task.  One size does not fit all.  Real judging and fact-finding involve complexity and with complexity comes the possibility of making mistakes.

But we seek perfection in our laws and perfection for us has come to mean “perfect protection,” not perfection in the sense of our laws being perfectly balanced to get the maximal protection for society balanced against maximal protection against the conviction of innocent people.  Instead, we don’t want to risk even one guilty person escaping, so we’ve abandoned the principle of guilt beyond a reasonable doubt; a scintilla of evidence will do.

So what can we do about this?  How do we fix things?  The most disappointing aspect of this article is that I have to end by telling you that I don’t really know.  I know what I did about it: I gave up the idea of becoming a technology law attorney and became a criminal defense attorney.  We need people, I thought, to stand up against the insanity.  We need people to point out what I’m trying to point out in this article.  We need people who will work to turn things back, to remind us of the foundational principles that have been proven — over centuries of experimentation — to be necessary for anything remotely resembling real justice.

I know I’m not the only person trying to do this, although there are times when it feels that way.  But when I realized just how far wrong things had gone and how many people it would take to fix things, I knew this much: One of those people had to be me.

I’ve finally calmed down enough, I hope, to write a sensible post about it.

A small part of my practice involves an agreement I made to accept “conflict appointments” from the juvenile court.  Not that it matters — except that I want to stress it is supposed to be a small part of my practice and has ended up, because of the horrific way juvenile “justice” is administered and the way I try to deal with it, consuming much more time than I could ever have expected — but I negotiated a “limited” contract: I accept no more than 5 cases per month.

Most of these cases resolve fairly quickly as they involve kids who have done something fairly clearly wrong and they have confessed about it.  I am consistently, however, amazed at the number of times juveniles are charged with what on their faces would appear to be fairly serious felonies, but for the fact that when I was in school, myself and my peers did the same things on a monthly basis with usually nothing more serious than what I believe today is referred to as a “time-out,” or, for the really serious things such as where someone was beaten up, an expulsion.

But that was then; this is now.  A former prosecutor to whom I spoke today indicated that if, when he was a child, the things they did were charged as crimes like they are today, he would have had problems being admitted to the State Bar.  The same is true of me and most older attorneys I know.

So my goal in most cases is not to help a child escape punishment, but to keep the punishment reasonable.  That, by itself, appears to be exactly the opposite of the job of the prosecutor, probation and, sadly, many of the judges.

I have no doubt — not a single solitary one — that the judges believe they are also about the business of finding reasonable punishments.  But if today proves anything, it proves that they are not, for the only reasonable punishment today would have been to dismiss the case and have whoever filed it brought before the court and flogged.

When I arrived at the court for a new arraignment this morning, it occurred to me that I could make up for having missed my morning work-out by simply picking my client up in one hand and doing 50 or a hundred quick “curls.”  I’m pretty sure my client was small enough for that.

The charges against my client were about as trivial as I could possibly imagine.  So trivial, in fact, that I could not restrain my disgust and anger at the fact they had even been filed.

“I heard someone spit on the grass after this incident,” I stated.  “Why are there no felony vandalism charges?”

The prosecutor, unsurprisingly, went off like a not-so-small firecracker.  The judge mildly reprimanded me, pointing out, perhaps rightly, that my comments would not help in achieving a resolution of the case.  Though my blood was boiling and I was thoroughly disgusted with what can only be called a spectacle of “justice,” I attempted to rein myself in.  To my own disgrace, I offered an apology.

I should have done no such thing.  The prosecutor and the court should be apologizing.  For the triviality of the charge is undeniable.  When I was a child of that age, if — and I have to stress if — I had received any significant punishment beyond a scolding, I might have been paddled.  (When I said this in court, I was informed that “this is a different world.”  Indeed.)

Of course, we no longer paddle children.  That’s barbaric.

Instead, we saddle them.  With criminal charges.  Because taking pre-teens and telling them that they are criminals for doing something that innumerable pre-teens have done since time immemorial is so much less barbaric.

Without a doubt, my client and about a half-dozen other kids similarly charged for this “crime” were technically guilty of it.  Furthermore, from what I understand, all were instantly remorseful and apologetic and submitted to punishment from the school at which the “crime” was committed.

To this minute, I cannot for the life of me imagine why they were charged.  Although I have no independent evidence for this, it lends a great deal of credence to what I was told subsequently — the “victim” of the “crime” is the child of a former law enforcement officer.  That was information I received from another attorney, who implied this explained the charges.

And, frankly, that perfectly fits with what happens in this county.  The one group you mess with on fear of losing your liberty, and sometimes even your life, is law enforcement.  This is true even if your “crime” is damaging property held jointly in your name, plus that of a law enforcement officer.  This is true if you are a white woman working for the local Fire Department; it is much more true a bunch of little brown kids in an outlying school district.  God forbid you should end up in a tiff with someone related to a law enforcement officer.  But all hell will break loose if you also happen to be brown.

But the worst part of this disgustingly shameful episode is the failure of the court to recognize that a resolution that includes running these kids through the juvenile justice system is not in the best interests of anyone, particularly these children.  What does that teach them?  That — at the ripe old age of 10 or 11 years of age — they are already to be seen as criminals?  That the mildest misbehavior can result in some fairly harsh punishment?

Doubtful.

I think what it teaches these kids, if it teaches them anything, is that the so-called “justice” system is really just a tool for the powerful to use against the less powerful.  It teaches them that “crime” is really just something that someone else doesn’t like.  After all, when every small problem is elevated to the level of misdemeanor charges, the result is that the idea of misdemeanor charges is trivialized.

In fact, I now tell my clients who come to me with misdemeanor charges, who are devastated by the fact of being charged, that it no longer carries the stigma it once did.  Misdemeanor, schmisdemeanor.  It no longer really means anything.

In a world where the law is so out of whack with common sense that the average citizen commits three felonies a day without even trying — and without intending to do so — who cares about misdemeanors?  To the juvenile court, they’ve become a right of passage.  If the courts and prosecutors have their ways, no one will make it to adulthood without a record.

So, really, I guess I should not get so fired up about this after all.  In a society of criminals, my kid today will stand out as one of the sweet ex-cons.

This post is something I began thinking about writing on the day two law enforcement officers were killed in Minkler and another was wounded by a deranged individual who planned their deaths, as well as his own.  This post is about my worship of law enforcement.

People who know me — and particularly the  many law enforcement officers who, I’m told, “don’t like” me and call me “the shackle guy” because of my motions to get shackles off children in juvenile court — will be surprised to hear that I’m writing about my worship of law enforcement.  They will, perhaps, be expecting a trick.  A play on words.

They will expect this because I frequently rail against law enforcement agencies and officers in my postings on this and my more generalized criminal defense blog, Probable Cause: The Legal Blog with the Really Low Standard of Review.

While there is no trick per se in what I’m writing here, those expecting a play on words are neither entirely wrong, nor entirely right, as you will soon see.

Scott Greenfield, as usual, provides an assist in my thinking on this issue.  Although I began thinking about this post, as I said, after hearing about the Minkler shooting, I have had a hard time trying to figure out how to put my thoughts into words.  I’ve ruminated on it a great deal — it seems to me almost constantly — from then until now.  How can I write what I think in a way that gets the message across, without upsetting those who have suffered a great loss, those who sympathize with those who have suffered a great loss, and without causing those whom I at least partly exist to serve to think that I do not, in fact, at least partly exist to serve them?

I worry about this because no small part of what I have said and have to say is, indeed, a complaint about law enforcement agencies and officers.  In fact, it extends beyond them to all others who claim to aim to uphold the law.

For as Scott notes,

There are two sides in our system, the prosecution and defense.  While those of us who practice criminal defense, and those Americans who appreciate that such a thing as the defense exists, extol the virtues of our side of the equation, this op-ed [the op-ed to which Scott referred is here] and the reactions to it serve as a painful reminder that the more “official” voices of the system barely tolerate our existence.  We are, at best, a necessary evil.

And it is hard to know how to reach out in sympathy — as I have wanted to do over the Minkler shootings — to those who consider you to be the embodiment of, at best, a necessary evil.  For I am necessary, but I am not evil.  To quote Scott again,

We do honest work.  We are as much a part of the system as any prosecutor.  Our contribution is vital, for without us there can be no system.  Contrary to the attacks of the ignorant and angry, we do not support crime or terror.

To those who worship law enforcement, we are as necessary as law enforcement agencies and officers. prosecutors and judges.  It is not a huge exaggeration to say that we are Guardians of the Justice System.  The job of the police — and by that I mean city police, county sheriffs, state police, or any of the others we typically think of as “law enforcement” — is to arrest those they believe have broken the law.  The job of prosecutors is to make some evaluation of this, hopefully with an eye towards seeking justice and dismissing those cases where there is signfiicant doubt, but to go on to seek the punishment of those who they believe have broken the law.  My job is to make sure the justice system works.

I stand up and say, “Okay, Officer.  Okay, Prosecutor.  You think this person has committed a crime.  Prove it.  Beyond any reasonable doubt, prove it.  Because the last thing we want to do is to take away someone’s life, liberty and pursuit of happiness erroneously.”

Contrary to the words of Police Chief Jerry Dyer in today’s Fresno Bee, defense attorneys do not “attack police and cloud the issue.”  There is no “smoke” that jurors must “see through.”  Law enforcement officers sometimes do things they should not do.  They sometimes lie.  They sometimes steal.  They sometimes make up stories.  They sometimes arrest the wrong people.  Defense attorneys do not “attack police and cloud the issue.”

Just like the police believe — at least many of them believe — that our clients are actually guilty and have been justly arrested and prosecuted, so, too, do we sometimes believe the police have made mistakes.

We might not always believe they have mistakenly arrested the wrong person; we might be challenging them for having trampled the Constitution and the Law in the process of investigating or arresting.  As I said above, though, we partly exist to serve our clients.  We also exist to protect our system of justice, to ensure the Constitution and the Law are not casualties even in the pursuit of the guilty.

This is the system that centuries — centuries! — of thought, experimentation, experience and more thought have gone into building.  It is the legacy our Founders left us.  It is the bedrock of the greatness of the United States.  We essentially invented the system we now have.  Nations that have grown up after us have modeled themselves on us and our system of justice.  Older nations have incorporated some of our inventions to build a better justice system than that they already had.  And the insertion of criminal defense attorneys into the mix was not a necessary evil; it was simply necessary.

Jurors are not tasked with seeing through the “smoke” of defense attorneys who “attack police and cloud the issue.”  They are tasked with making a determination about the facts.  Did the State prove beyond a reasonable doubt that our clients did that which they are accused of doing.  Defense attorneys raise doubts.  When we do our jobs well, when we have raised every doubt for consideration, and those doubts have been carefully considered, then — and only then — can we be sure we are not convicting innocent people.

This job and ours — the job of the jurors and of defense attorneys — is complicated, however, by the worship of law enforcement officers which frequently supplants the worship of law enforcement.  The officers are on the front lines.  As the Minkler incident reminds us, they risk their lives to do their part to uphold most of our laws.  To some extent — to some very minor extent — I risk my life doing my part, too (after all, some of the people I represent are murderers, rapists, or otherwise nasty people).  But it pales in comparison to the risks they are exposed to daily.  And, more than that, some of what they do is an attempt to protect my sorry ass from even the minor risks I face while doing my job.  So it’s perhaps understandable that we honor them so much.  They deserve to be honored!

But honoring officers should not be confused with worshiping them.  They are not gods.  They are human beings.  Human beings who are often under a great deal of stress.  And human beings under a great deal of stress sometimes do things they should not do.  Sometimes they lose track of their goals, their jobs, their raison d’être. When they do, they should be as accountable — if not more so — as those they are tasked with investigating and arresting.  But we do not rein in those we worship.  How can a god sin?  This is why we must avoid worshiping them even while we properly honor them.

This is where some of my friends — and even my own wife — have been confused.  They mistakenly believe that I rail against police officers when, in fact, I rail only against the sins of police officers.  In fact, much of the time, I’m not even doing that: I’m simply doing my job of challenging them, making them prove that what they believe is true is actually true, and trying to make them prove it beyond a reasonable doubt, trying to break through the worship of these heroes — and they are heroes, just not gods! — to make sure their beliefs about my clients are proven beyond a reasonable doubt.

I do this because it is necessary.  I am necessary.  The police are necessary.  The prosecutors are necessary.  We all are necessary; almost none of us are evil.

I worship law enforcement, but while I value law enforcement officers who do their jobs and do them nobly, I do not worship law enforcement officers.  Law enforcement requires not just the investigation and arrest of people who commit crimes.  Law enforcement requires the enforcement of our laws regarding how people are investigated, how they are arrested, how they are “brought to Justice.”

As I have thought about how to write this post for more than a week now, I have mourned the loss of these officers who were killed doing their jobs.  I have thought about their families.  I have pondered how to express my thoughts so as to ensure that people who do not like what I do would not doubt the sincerity of my expression of sympathy.

Ultimately, I came to realize that the problem with what I want to say, what I want to do with my words here, is the same as the problem I confront in doing my job every time I defend people accused of crimes:  I worship law enforcement, which includes the enforcement of the laws that require someone like me to challenge law enforcement officers.

But that does not mean that I cannot also honor those officers.

I worship law enforcement.

Public safety is an investment, not a cost.  (Jerry Dyer, “Invest in our public safety” (December 8, 2009) The Fresno Bee, p.B5, below the fold.)

If nothing else, the article shows that Jerry Dyer has mastered The Art of Orwellian Logic.

To be fair to Orwell, we really shouldn’t call this “Orwellian Logic.”  If anything, Orwell railed against this sort of “doublethink.”  His work aimed to point out the “form of trained, willful intellectual blindness to contradictions in a belief system.” (“Doublethink” (November 17, 2009) Wikipedia (last visited December 8, 2009).)

Not that I’m accusing Dyer of having a shred of the necessary intelligence necessary to be intellectual.

Orwell explains that the Party could not protect its iron power without degrading its people with constant propaganda. Yet, knowledge of this brutal deception, even within the Inner Party itself, could lead to disgusted collapse of the State from within. For this reason, the government uses a complex system of reality control. Though Nineteen Eighty-Four is most famous for the Party’s pervasive surveillance of everyday life, reality control means that the population of Oceania — all of it, including the ruling élite — could be controlled and manipulated merely through the alteration of everyday thought and language.  (“Doublethink” (November 17, 2009) Wikipedia (last visited December 8, 2009).)

Thus, Dyer no doubt he actually believes what he says.  Otherwise, the burdens of hypocrisy would crush him.

Of late, the use of fear by the ruling élite to stop the rest of us from shaking off the complex system of reality control to see what really needs to be done and to re-direct our energies towards doing it has become commonplace.

Dyer is, at least in my opinion, less artful at that.  I hope.

Dyer’s article starts off with a discussion of Maurice Clemmons “ongoing criminal behavior and propensity for violence,” noting that it “should have been sufficient grounds for his continued incarceration.”  Maurice Clemmons, for those who don’t already know, is the guy suspected of gunning down four police officers in the State of Washington.

Two states, Washington and Arkansas, are busy pointing fingers at one another over why Clemmons was out of custody in spite of a history of violence.

(Clemmons, of course, is now dead.  What?  You think you can shoot that many cops and get away with mere apprehension and a trial?)

Dyer uses Clemmons to fan the flames of fear.

California prisons are filled with Clemmons types.  Many are suffering from mental illness and drug addiction and refuse to be rehabilitated.

Therefore, Dyer says,

The safety of our communities must be our highest priority and the foundation for government.  Police officers, prosecutors, jails and prisons cannot be seen as a burden or cost to government.  They are investments.

That’s right.  Investments.

You probably thought that funding hospitals for mentally ill people and drug rehabilitations programs for drug-addicted individuals was an investment.  You might even have thought that making sure to provide solid funding for education — to raise the educational and employability levels of people so they might not have as many problems leading them to commit crimes — was an investment.

Stupid citizen.

Our future is police officers, prosecutors, jails and prisons.  Therefore, providing funding for police officers, prosecutors, jails and prisons is an investment.  Everything else is a distraction.

Dyer’s argument, though, is the real distraction.  Dyer himself segues from fearmongering over “Clemmons types” to an argument that the release of “nonviolent-nonserious” criminals California is working towards will result in more murders.  Keeping everyone in prison is the only way to “invest” in our future!

But we aren’t “investing” when we fund ways to lock up more people.  We’re certainly not “investing” when the degree to which we fund ways to lock up more people depletes our pocketbooks so we can no longer afford to educate our children.  And make no mistake about that: right now, California is shutting down education in favor of continuing to fund police, jails and prisons.

And why is that?  Because the alternative is to release some people from the jails and prisons and not have a police officer around to tail their asses until we can lock them up again.  Nevermind that California is doing everything possible to ensure that “Clemmons types” do not get released.

Moreover, the majority of people in our prisons are not “Clemmons types.”  They’re people who could be helped by medical treatment, education and the other services our government is now busily de-funding so we can maintain our police, jails and prisons.

Locking up more and more people leads only to the need for more police, more jails and more prisons.  It does not lead to “public safety.”  It more readily leads to public depletion.

This is true because as long as we continue to be mislead by “Dyer types” and fail to fund education and health care, among other things, there will always be more and more “Clemmons types” to lock up.

Public safety is an investment.  But the increasing cost of more police, more prisons and more jails is keeping us from investing in it.

This entry is different.

In a recent case, I showed up in court only to learn that nobody seemed to have my case on calendar.  My notes — and the clerk at the front window of the courthouse — indicated that my case was on calendar, but none of the courtrooms had it on their calendars.  The end result was that, while this was being sorted out and I waited for the case to be called, I had the opportunity to sit and wait and watch.

I will not name the judge I was watching.  I don’t want him to be harassed for his fairness and his determination to ensure that everyone in the courtroom understood the legal reasoning behind the result he was handing down.

The result, by the way, was not what the accused, the accused’s attorney, or the accused’s family wished.  But after hearing the judge explain things, there did not seem to be any question that it was fair.

“Well, if that’s all true,” you ask, “why should you be considered that the judge would be harassed?”

The answer is simple: to do what that judge did takes time and time is something very few judges have in surfeit.

First, the judge was careful to hear all the parties; to give them an unquestionable opportunity to express themselves.  In this particular case, that included allowing the attorney and at least one family member speak.  Second, in explaining the ruling he was about to hand down, he was careful to do two other things: he made sure the accused person understood what he was saying and he explained the reasons for his disposition of the case.

Those two things are not the same thing, just differently worded.  As I’ve stated elsewhere (parenthetically, and leaving the issue for further explication in an as-yet-unwritten blog article), attorneys and judges too often use words that we understand clearly, because we have the education that teaches the meaning of those terms.  We forget, however, that a law school education — or any kind of advanced education at all — is not the norm.  In Fresno, for example, fewer than one out of every five people holds a college degree; yep, fewer than 20% of us graduate from a four-year college. That’s for a “lower-level” degree, not a post-graduate degree.  And some of those degrees are in criminology, which doesn’t set the highest standards for reading or deep thinking — as the spelling, grammar and “reasoning” in probation and police reports prove daily.

Now, I do not agree that Fresno is the dumbest city in America (as the linked article above suggests) or that Fresnans, in general, are stupid.  What I’m saying is that certain common “simple” legal terms such as the word “waive” in “waive your rights” are neither common nor simple to most people coming before a court.  Yet the court entertains — among numerous other “legal fictions” — that when it asks “do you waive your right to this-or-that?,” the accused person who answers “yes” gets it.  This is true even when the court can clearly see the accused and often scared person, realizing the court wants some kind of answer, turning to his attorney, who either nods or says out loud or mouths “yes,” which the client then parrots, completely (perhaps stupidly) trusting the attorney, but parroting nonetheless.

In adult cases, the disconnect between what an accused person believes has happened and what has actually happened is A Bad Thing™.  In juvenile cases, or any context where the aim is rehabilitation, it is A Horrific and Counterproductive Thing™.   If a kid does not understand what is happening in the courtroom, he probably does not really understand the connection between what is happening in the courtroom and his behavior prior to arriving in the courtroom.  Sure, he might get that he did something wrong and that what is happening is connected to that.  He might.  But surprisingly often, he does not.

So, for me, it is an amazing and wonderful thing that I got to watch a judge actually take the time to listen to the individual before him (and a family member) and explain not only what was going to happen, but to actually stop and explain the meaning of certain words.  In addition, the judge clearly explained why he was giving the particular orders that he was giving, instead of some other orders; i.e., the orders the defense attorney and family hoped for.  He explained the connection between the disposition and the behavior of the person to whom he was speaking.  Not only was it clear that the judge had carefully considered everything, but he had specific reasons for what he did.

In short, I was impressed that the judge took the time for judgment.

How should a school react when a high school student sends a text message like this:  “im gonna come to school with one of phillips guns and kill half the school ill load everyone with bullets and then shoot myself in the head right in front of u.”  (“Flawed law forces court to OK text threats” (November 3, 2009) The Fresno Bee A5.)

The headline gives the impression that the Bee laments the fact a California court failed to approve a prison sentence for a stupid heartbroken kid’s empty threats.

The court — at least according to The Fresno Bee — reversed the conviction because the law requires a specific threat against a specific person.   Apparently, at the time the statute was written, there was still a shred of common sense floating around somewhere and the legislature recognized that people sometimes say stupid things in anger that are tantamount to the anguished cries of a wounded animal.

People, of course, aren’t animals.  Animal parents usually provide more care for their young than modern humans, at least among those species which aren’t entirely instinctively programmed to know everything they need to survive.  Having once given birth, they don’t commit every adult in the family unit to work outside the home.  There’s a focus on teaching survival skills: how, when and what to hunt, including how to protect themselves, and they’re also taught how to get along with others of their kind.  Humans leave their children to be raised by one another, or by what is euphemistically referred to as “the juvenile ‘justice’ system.”

The Bee pays grudging homage to the fact that

criminal prosecution should not be a first resort in dealing with teenagers.  Immature students, no doubt, will continue to make threats, and most will never carry them out.  We ought to be wary of criminalizing emotional turmoil in minors.

However, the Bee complains that

the [court's] ruling sends the perverse message to adults that it is OK to make threats, so long as you don’t threaten the person to whom you are sending an electronic communication.

And the Bee goes on to claim that “[t]he law itself is flawed and needs fixing” — presumably to ensure we criminalize the emotional turmoil of immature adults.

The fact of the matter is that when we fail to teach our children how to manage hurt, rejection and anger, they will grow up to be adults who do not know how to manage hurt, rejection and anger.  And just as “most” children will never carry out their threats, which are really little more than howls of pain, so too will “most” adults never carry out their threats.

Criminalizing emotional turmoil, without there being something more, is wrong regardless of the age of the “criminal.”