Monday, August 30, 2010
Occasionally I hope to be able to pass on some words of fundamental wisdom. Verse One of The Serenity Prayer: God grant me the serenity to accept the things I cannot change; courage to change the things I can; and wisdom to know the difference. --Reinhold Niebuhr SOURCE: Wikipedia at http://www.cptryon.org/prayer/special/serenity.html
Friday, August 27, 2010
Wednesday, August 25, 2010
Now that the Supreme Court has ruled that the Second Amendment applies against the states (McDonald v. Chicago, 2010), we can expect a number of challenges to state laws. This is an exaMple one that is, thus far, unsuccessful. LINK This ruling is not surprising as the Supreme Court has hinted in D.C. v. Heller (2008) that this type of gun ban would be constitutional.
Tuesday, August 24, 2010
Extradition with the U.S. was pretty much taken for granted for significant offenses. That may no longer be the case. I hate to see state and local officials begging for federal money. Apparently, federalism is a principle which can be sacrificed if the price is right. However, there is no such thing as a free lunch. LINK
The current controversy over the Islamic Center in New York near 9-11 ground zero is a controversial topic. It highlights the tension between principles and results. I hope this brief discussion will help focus the issues. The U.S. Constitution is full of principles, federalism, freedom of religion, due process, equal protection etc. Because the Constitution is the supreme law of the land, these principles are paramount for public officials who take an oath to “support and defend the Constitution.” While the exact scope of these principles is subject to debate, there are some things about which there is little debate. For instance, under the First Amendment, government cannot discriminate for or against any particular religion as long as their pursuits are lawful. There is also a federal statute, a religious land-use act, which prevents religious discrimination by government with regard to the use of land. Individuals also have principles. These are often religious or philosophical principles. If you are not a public official, you are not bound by the Constitution, except for a few provisions (e.g. 13th Amendment ban on slavery). However, once you become a public official, the Constitution binds you in your official acts. In your purely individual capacity, you do not have to comply with anything in the Bill of Rights. However, many people conclude that constitutional values are also good personal values. For instance, many libertarians support freedom of speech and religion as personal values. The problem for both public officials and individuals occurs when the results of applying a relatively clear principle they publicly support leads to results that they do not like. We are not talking about catastrophic results, huge costs or anything like that. We are talking about results that one thinks are wrong, disrespectful or unpleasant, distasteful, in bad taste, etc. This tension between principles and results creates a dilemma. Some conceptualize this as an ethical dilemma. There are three usual reactions to the dilemma. (1) Bite the bullet, accept the primacy of the principle in spite of the results, and suffer the consequences (e.g. getting voted out of office, social isolations, etc.) (2) Ignore the principle and (a) publicly abandon the principle permanently or (b) ignore it in this case but continue to give it verbal support. (2) (B) could be considered hypocrisy. The third option is to devise a phony rationale for avoiding the principle in this particular case. This may protect against charges of hypocrisy. This is a favorite tactic of Supreme Court Justices. Everyone wants their favorite rights for themselves and those they support. Other rights and other people are devalued. For example, the Second Amendment is a right devalued by many on the left. Islam is a religion devalued by many people who want First Amendment protection for their faith and similar ones but not for unpopular religions. However, the main purposes of First Amendment freedoms of religion, speech and press are to protect unpopular views and religions. The fundamental question is what is more important to you? (1) Principles or (2) results Again, we are not talking about catastrophic or financially costly results. First Amendment caselaw is full of cases where classless, tasteless, offensive, racist and sexist speech was deemed protected. For instance, assume some person is handing out pamphlets on a public street lawfully and peacefully urging people to vote for the Communist party. Most everyone ignores him and looks at him like he is some kind of wacko. Some people may be distasteful and offensive, but it is protected by the First Amendment. As a police officer or public official you have to let the person continue until there is a threat of some kind. As a private citizen you can urge him to quit, but you cannot threaten him with physical harm. That would be a crime. If you care about intellectual issues, think about this. What are your principles? How strongly and sincerely do you believe in those principles? One of my all-time favorite quotes, attributed to German pastor Martin Niemoller is as follows LINK: "THEY CAME FIRST for the Communists, and I didn't speak up because I wasn't a Communist. THEN THEY CAME for the trade unionists, and I didn't speak up because I wasn't a trade unionist. THEN THEY CAME for the Jews, and I didn't speak up because I wasn't a Jew. THEN THEY CAME for me and by that time no one was left to speak up."
One of the generally taboo topics in the social sciences, including criminology and criminal justice is the impact of ideology on the field, research, textbooks, etc. The journal "Quarterly Journal of Ideology" LINK is a hidden gem that touches on topics that the main journals will, for a variety of reasons, will not touch. This linked article, IMHO, hits the nail on the head. It is titled "Ideology: Criminology's Achilles Heel." The Introduction is dynamite, although the research study suffers from a small non-random sample. LINK
Friday, August 20, 2010
Thursday, August 19, 2010
Many Republican candidates and current officials and some Democrats are speaking out against a proposed Islamic Center near the 9-11 site. This is sheer, unacceptable demagoguery. Only a tiny fraction of a fraction of Muslims are terrorists. There is no need to tar an entire religion. This is unacceptable in a society that supposedly values religious freedom. I guess, religious freedom is only for some religions. What hypocrisy! A sad commentary on how important First Amendment values are to many of our politicians. LINK
Monday, August 16, 2010
For the first time ever, the primary manufacturer of the Taser has settled a lawsuit filed by a Plaintiff who was Tased by police. The company has never lost a lawsuit, but this settlement suggests the tide may be turning. Could this be the beginning of the end for the current generation of Tasers? LINK
Thursday, August 12, 2010
Should weak cases like this one be settled for less-than-litigation costs or fought? If the officer did no wrong, why should it be settled? Doesn't this practice encourage frivolous lawsuits? LINK Be sure to scroll down to update.
It might be a lot cheaper for police agencies to properly train, supervise and discipline officers with Tasers than continue to pay out huge damage awards. LINK
Ever wonder why we are so polarized and so many folks are so close-minded? This informative newspaper piece provides an explanation. After reading this, it's easy to become pessimistic about the electorate and democracy. LINK I think what we need is a long period of widespread prosperity with no wars and everyone just chilling out a little.
Wednesday, August 11, 2010
One of the most bizarre episodes in West Texas legal history came to an end. The prosecution of this nurse was a travesty and embarrassment. Where do these locals find these public officials? For a small and relatively poor county like Winkler, that money could have been put to better use. LINK
Tuesday, August 10, 2010
The 4 officers directly involved in the Danziger Bridge killing of two allegedly unarmed civilians face possible death sentences if convicted. The Dept of Justice has still not officially decided yet if they will seek the death penalty in these cases. Good video. LINK
Saturday, August 07, 2010
This item is not about C, L, or J, but as a professional educator, I am always interested in what is going on in higher ed. in the U.S. If you are a parent, student, taxpayer or employer, you might find the linked report disturbing. Is this more evidence that education in the U.S. is being dumbed down? LINK Thanks to Paul Wright of SRSU for calling this report to my attention.
Friday, August 06, 2010
U.S. v. Pack (2010) is an important 5th Circuit (La., Miss. & Tex) decision on length of traffic stops. It is consistent with Supreme Court precedent, but seems to make the points more clearly. LINK The latest edition of FLETC’s “The Informer” summarizes the main points as follows: “U.S. v. Pack, 2010 U.S. App. LEXIS 14562, July 15, 2010 A detention during a valid traffic stop does not violate the Fourth Amendment where it exceeds the amount of time needed to investigate the traffic infraction that initially caused the stop as long as: 1. The facts that emerge during the officer’s investigation of the original offense create reasonable suspicion that additional criminal activity warranting additional present investigation is afoot, 2. The length of the entire detention is reasonable in light of the suspicious facts, and 3. The scope of the additional investigation is reasonable in light of the suspicious facts. In this case, following a valid traffic stop for speeding, reasonable suspicion arose after the driver and passenger gave conflicting stories as to their travel history, the passenger appeared to be extremely nervous, and the pair was travelling on a drug trafficking corridor. The court held that the officer’s suspicion was entitled to significant weight because he had been a law enforcement officer for seventeen years, the length of the entire detention was reasonable in light of the suspicious acts observed, and the scope of the investigation conducted during the detention was reasonable. (The officer requested a canine unit, which responded, and the dog alerted to the trunk of the vehicle. A search of the trunk revealed 17.91 pounds of marijuana and a pistol).” Source: Federal Law Enforcement Training Center (Legal Division) "The Informer" August 2010 See the post below on how to subscribe to "The Informer."
As everyone knows and expected, Elena Kagan was confirmed by the Senate to be a Justice on the Supreme Court. Also as expected, the vote was pretty much along party lines. Because she replaces another liberal (Stevens) she is not expected to alter the Court’s prior ideological balance of 4 liberals, 4 conservatives and a swing voter (Kennedy). LINK The polarization of American society will continue to be fueled by and reflected on the Court. For the first time in history, the Court will have 3 women—all liberals. She is the first nominee in almost forty years to come to the nation’s highest bench without judicial experience. While there have been outstanding justices who had no judicial experience (e.g. C.J. Earl Warren), her lack of judicial experience is a concern. (1) There was no judicial opinion paper trail to follow to determine the nominee’s judicial philosophy. Confirmation hearings have become a joke as nominees dodge all the important questions. (2) A Justice with prior judicial experience is, one would think, more likely to approach issues from a judicial stance rather than a policy-making, ideological or academic stance. (I am assuming that most of us want Justices to take a judicial approach). The sad fact of the matter is that Presidents of both parties have been more interested in trying to nominate their ideological clones than finding wise judges. Roberts and Alito have certainly generally satisfied Bush, and there is little doubt that Sotomayor and Kagan will, in general, become Obama clones. One might even expect that because of the similarities in their backgrounds, Kagan, at least initially will become a Sotomayor clone. Quite frankly, IMHO, both of them are minor intellectual legal lights as compared to Ginsburg, who had a long history of involvement in constitutional litigation and a number of appearances as counsel before the Supreme Court.
Thursday, August 05, 2010
It never ceases to amaze me how ignorant academic administrators can be about First Amendment academic freedom. LINK
Many thought the rebuke for her actions in a capital punishment case was a slap on the wrist. Apparently the Presiding Judge of the Texas Court of Criminal Appeals thought it was too much punishment. LINK
Anyone who thinks Mexico is even close to winning the Drug War is probably seriously mistaken. LINK The recent killing of a cartel leader is a good sign but of little real importance. His position will undoubtedly be filled, perhaps after more massive bloodletting. IMHO, Mexico is a basket case.
A U.S. District Court in CA struck down CA's ban on gay marriages on both equal protection and due process grounds. An appeal seems likely. LINK However, it is not hard to see where all this will eventually end up. Justice O'Connor, concurring in Lawrence v. Texas provided the basic outline and arguments. I predict, before 2020, the U.S. Supreme Court will rule that equal protection requires that marriage be made equally available to both gays and straights. This result follows from two prior Court opinions, Romer v. Evans and Lawrence v. Texas. It only takes 4 Justices to grant an appeal (certiorari) and there are 4 liberals on the Court (Sotomayor, Ginsburg, Breyer and soon-to-be confirmed Kagan). Kennedy, who authored both Lawrence v. Texas and Romer v. Evans will vote to require that marriage be made equally available to both gays and straights.