Category Archives: America

About American politics, our spirit, and our soul

We need a criminal justice 2.0 (the 1.0 is broken)

Summary: Here’s another post about our broken criminal justice system by someone who .understands its weaknesses –Hon. Alex Kozinski, a judge on the Ninth Circuit. His description has little resemblance to what we see on TV in CSI and NCIS, or to what our peers experience in Europe or Japan.  {1st of 2 posts today.}

Injustice

 

Excerpt from “Criminal Law 2.0

by Hon. Alex Kozinski (Ninth Circuit judge)
Georgetown Law Journal, 2015

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Preface to the 44th Annual Review of Criminal Procedure
Section I (footnotes omited)

… In fact, much of the so-called wisdom that has been handed down to us about the workings of the legal system, and the criminal process in particular, has been undermined by experience, legal scholarship and common sense. Here are just a few examples:

(1)  Eyewitnesses are highly reliable.

This belief is so much part of our culture that one often hears talk of a “mere” circumstantial case as contrasted to a solid case based on eyewitness testimony. In fact, research shows that eyewitness identifications are highly unreliable, especially where the witness and the perpetrator are of different races. Eyewitness reliability is further compromised when the identification occurs under the stress of a violent crime, an accident or catastrophic event — which pretty much covers all situations where identity is in dispute at trial.

In fact, mistaken eyewitness testimony was a factor in more than a third of wrongful conviction cases. Yet, courts have been slow in allowing defendants to present expert evidence on the fallibility of eyewitnesses; many courts still don’t allow it. Few, if any, courts instruct juries on the pitfalls of eyewitness identification or caution them to be skeptical of eyewitness testimony.

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Independence Day Inspiration: make it meaningful!

Summary; Today we celebrate the Declaration of Independence, a a milestone on the march to American independence. But we should also remember that journey’s now almost lost beginning — events equally heroic but more relevant and inspirational to us today.  {1st of 2 posts today.}

“We have spent the prime of our lives in procuring {for our children} the precious blessing of liberty. Let them spend theirs in shewing that it is the great parent of science and of virtue; and that a nation will be great in both, always in proportion as it is free. ”

Thomas Jefferson to Joseph Willard, 24 March 1789.

Fireworks

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We’re free, but how did we become so? Every successful round of political reform begins with people deciding to act and then organizing like minded people. Why not celebrate Independence Day by joining this company of people who have profoundly shaped our civilization?

In 1772 Samuel Adams and others decided to start the Committees of Correspondence, the first step on the road to independence. In 1785 Benjamin Franklin and others organized the Pennsylvania Abolitionist Society. In 1887 William Wilberforce and others began a crusade to end the slave trade in British ships.

Don’t expect fast results. These programs took years, decades, or generations of struggle to win. We forget this by focusing on the moments of triumph and forgetting the years of struggle that produced them. Perhaps on Independence Day we should read the speeches that led to the Declaration. Like this by Thomas Paine, from the first of the 16 “The Crisis” pamphlets (23 December 1776).

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The 1% are changing America. It’s our move.

Summary: The moment approaches when every American sees that the 1% are taking it away. Then we each make a choice to go with the flow or resist. Here are a few events that show this time is close. I’ve predicted the events leading to this point, but have no idea how we’ll react. Much depends on our choice.

“An experience of profound contempt is necessary in order to grasp our situation, and our capacity for contempt is vanishing.”
— From Allan Bloom’s Closing of the American Mind, chapter on “Values” (1987).

Don't Tread on Me

We’re in the pursuit phase of our battle with the 1%, the quiet coup. Decades of quiet organizing and slow progress (see here & here) — then Reagan began their advance that continues to this day, inexorably accelerating. After breaking down the old order (e.g., unions, campaign finance limits, New Deal era limits on banks) we see them building a New America: dismantling the public-financed colleges (see here and here), shifting the tax burden from the rich to the middle class, and many other changes to core features of America.

The obvious moment of truth will come when events force us to see the systematic nation of these changes. Will we rise to the challenge, or look in the mirror and see cowards? That time approaches. Soon we’ll learn the answer.

(1)  Former NSA & CIA Director Hayden mocks us

This is almost too good to be true. Former CIA and NSA Director Michael Hayden spoke to America’s inner party at the Wall Street Journal’s CFO Conference.

If somebody would come up to me and say “Look, Hayden, here’s the thing: This Snowden thing is going to be a nightmare for you guys for about two years. And when we get all done with it, what you’re going to be required to do is that little 215 program about American telephony metadata — and by the way, you can still have access to it, but you got to go to the court and get access to it from the companies, rather than keep it to yourself” — I go: “And this is it after two years? Cool!”

He was speaking the truth. We deserve to be mocked The USA Freedom Act was mostly cosmetic reform (the NYT agrees). Two years ago I predicted our pitiful response to Snowden’s revelations.

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Myths and truth about police violence, & why change is coming

Summary: The surge of stories about our out-of-control police deserves attention for what it reveals more us. Everybody has problems. Success results from our ability rapidly and effectively see and respond to them. America used to do both well (as Hitler and Tojo learned). Modern America does neither well.  But change is coming, unexpectedly forced by minds cool and unsympathetic.  {2nd of 2 stories today.}

Police then and now

Contents

  1. The Police crushed; crime soars!
  2. Real news: more police shootings.
  3. Real news: police are almost always acquitted.
  4. The voices that will force change.
  5. For More Information.

(1)  The Police crushed; crime soars!

From the formerly great paper become a Rupert Murdoch rag, The Wall Street Journal: “The New Nationwide Crime Wave” by Heather Mac Donald — Excerpt…

This incessant drumbeat against the police has resulted in what St. Louis police chief Sam Dotson last November called the “Ferguson effect.” Cops are disengaging from discretionary enforcement activity and the “criminal element is feeling empowered,” Mr. Dotson reported. Arrests in St. Louis city and county by that point had dropped a third since the shooting of Michael Brown in August. Not surprisingly, homicides in the city surged 47% by early November and robberies in the county were up 82%.

Similar “Ferguson effects” are happening across the country as officers scale back on proactive policing under the onslaught of anti-cop rhetoric. Arrests in Baltimore were down 56% in May compared with 2014.

“Any cop who uses his gun now has to worry about being indicted and losing his job and family,” a New York City officer tells me. “Everything has the potential to be recorded. A lot of cops feel that the climate for the next couple of years is going to be nonstop protests.”

Police officers now second-guess themselves about the use of force. “Officers are trying to invent techniques on the spot for taking down resistant suspects that don’t look as bad as the techniques taught in the academy,” says Jim Dudley, who recently retired as deputy police chief in San Francisco. Officers complain that civilians don’t understand how hard it is to control someone resisting arrest.

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Be Proud America! as we watch our babies die

Summary: We’ll hear much about American exceptionalism from candidates for President during the next 17 months. Here’s a tangible example — the greater fraction of infants that die in America than in our peers. We know how to fix it; we have the money. We lack only the will. Be proud, America!  {1st of 2 posts today.}

Some insights into the factors affecting infant mortality, showing how badly we’re doing.

NBER: infant mortality, Jan 2015

From the January NBER Bulletin on Aging and Health story about this study:

The U.S. infant mortality rate (IMR) compares unfavorably to that of other developed countries, ranking 51st in the world in 2013. In the U.S., there are nearly 7 infant deaths during the first year of life per 1000 live births, roughly twice the rate in Scandinavian countries. The U.S. IMR is similar to that of Croatia, despite a three-fold difference in GDP per capita.

What explains the U.S.’s relatively high IMR? This is the subject of a new NBER working paper … To quantify the importance of these potential sources of the U.S. IMR disadvantage, the authors combine natality micro-data from the U.S. with similar data from Finland and Austria. These countries provide a useful comparison because Finland has one of the lowest IMRs in the world and Austria has an IMR similar to much of continental Europe.

…  In short, worse conditions at birth and a higher post-neonatal mortality rate are both important contributors to the U.S.’s higher IMR.

Finally, the authors explore how the U.S. IMR disadvantage varies by racial and education group. They find that the U.S.’s higher post-neonatal mortality rate is driven almost entirely by excess mortality among individuals of lower socioeconomic status. As the authors note, “infants born to white, college-educated, married women in the U.S. have mortality rates that are essentially indistinguishable from a similar advantaged demographic in Austria and Finland.”
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On Memorial Day let’s admit what we’ve done to America & begin its reform

Summary: It’s not too soon to begin preparations for your Memorial Day celebrations. I suggest starting with a public reading of the documents (suitably redacted) which create a New America on the ruins of the Republic. Let’s remember the Republic that our fallen fought for — and how we we threw it away. I can imagine no better way to honor their sacrifices than by taking the first steps to rebuild America.  {1st of 2 posts today.}

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury … nor be deprived of life, liberty, or property, without due process of law

Fifth Amendment to the Constitution of the United State (1788 — ????),

Memorial Day

On  16 July 2010 the DoJ’s Office of Legal Counsel (OLC) provided Attorney General Eric Holder with the “Memorandum for the Attorney General Re: Applicability of Federal Criminal Laws and the Constitution to Contemplated Lethal Operations Against Shaykh Anwar al-Aulaqi” (see the document’s history on page 40, and the document itself starting on page 67; dating it 12 days earlier would have been quite apt).

Originally classified secret, last year a Federal Judge ordered release of this heavily redacted version in response to litigation over a Freedom of Information Act request by the ACLU and the New York Times. It’s a historic document, declaring that the Constitution requires “due process” that can be provided by action of the Executive branch alone, without judicial review or action — for actions up to and including execution of citizens

It, along with the OLC’s 2002 memorandum declaring that torture is legal, are among the great documents creating a the New America on the ruins of the Second Republic (built on the Constitution). It’s fitting that the Second Republic was created in daylight — public debate followed with votes by elected representatives — while government attorneys issue in secret the documents creating its replacement. It’s fitting that both parties drive this process, the first issued under Bush Jr and the second under Obama. Bipartisanship!

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No need for police reform, since only criminals have trouble with police!

Summary:  This post continues from yesterday’s review of the most common reasons given why we need not reform policing in America. Whatever you think of them, they speak for the great forces in America — the interests of the 1% and the apathy of middle America. Unless people speak loudly demanding reform, we’ll get only minor changes on the road to an even more militarized police.  {1st of 2 posts today.}

Police: To Protect and to Serve

How will Americans react to the revelations this year about the behavior of police in America? The police are the second most trusted American institution (behind the military), with confidence ratings in the mid-50%s since the survey began in 1993. But this varies strongly by race, with 59% of whites having strong confidence vs. 37% of blacks (average of 2011-2014 polls).

The police will not reform without a strong public pressure, which might not appear. The revelations about NSA surveillance produce carpet-chewing by the chattering class, but no disturbance in the apathetic majority — and so far few reforms. We might see the same with the police (with one exception: crackdowns on serial police offenders, whose legal settlements add up to real money).

We already see the first responses by the police and their defenders. We discussed and refuted the first wave yesterday: that this is nothing new, that nothing has changed, it’s just business as usual in America. This post looks at the second line of defense: only criminals have trouble with police!

Police tackle & cuff dying boy's sister

Tell it to Tamir Rice

“Only criminals fear the police” is among the oddest delusions given as rebuttals to warnings about the dark evolution of law enforcement in America, given by those who refusal to see the increasing number of videos showing police abusing people committing no crime. Tamir Rice was executed in a playground. The video shows an officer jumping out of his car and immediately shooting him. His sister rushed to him, to be tackled and handcuffed. These videos show only the small fraction of such incidents that happen to get recorded and distributed.

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