Archive for the ‘Legislation’ Category

Restricting Freedom of Speech

April 4th, 2011 2 comments

If you haven’t visited The Virginian, take a trip on by for this tidbit: The Virginian: U.S. flag burning: OK…Koran burning: Restricted. I’ll be attempting fuller and richer posts of my own soon, but I had to get back in the swing of this blogging business the easy way… with someone else’s work 🙂  Be seein’ ya!

Crime and Punishment: Our Legal System

October 29th, 2010 No comments

Equal Treatment?

This post is a result of a post by my blogger buddy, Tom, over at Responsibility – Freedom Demands It. There were a series of topics he listed – all relating to things we should look for in our representatives – to choose from to help Tom finish off a list he started near the beginning of the year. I chose numbers five and fifteen… then figured I’d better combine the two. I’m not certain I’m the “expert” he suggests, but I’m sure happy to at least address a portion of our legal system and crime and punishment. So then, here goes:

I learned early that it is sometimes imprudent to “volunteer” oneself for anything. In fact, when I joined the Navy (thinking “navy” was actually a word describing an armed fleet) I discovered that the word navy is actually an acronym! Never Again Volunteer Yourself. Though that was often said tongue-in-cheek, the underlying thought that bad things happen when you volunteer never strayed far from our minds – especially in troubled waters.

That’s where I find myself here, trying to write something on crime and punishment and our legal system… troubled waters. First, it’s a huge subject with a wealth of material when it comes to deciding where to place one’s vote. Second, our country has strayed so far from the “Common Law” of our country’s birth that discussing any portion of contract, tort or criminal law is often fraught with built in misunderstandings because of several differences: education, ethnicity, and birthright to name a prominent few. Third, and last, the consequence of the criminal law in our country is almost a taboo subject… Prisons.

To try and pull these disparate parts together, and to focus our attention on “what we’re looking for in a representative,” I’m going to jump in to the middle of things and hope for the best… in other words, “let the chips fall where they may.” Up front full disclosure – I am a correctional officer working for the Oregon Department of Corrections (ODOC) and the views expressed here are mine alone. Additionally, much of the material I’ll draw from is found in the links at the end of this article. So then, here is the first jump into the middle of things:

Let’s try a definition or three.

Rule of Law: “The rule of law does not have a precise definition, and its meaning can vary between different nations and legal traditions. Generally, however, it can be understood as a legal-political regime under which the law restrains the government by promoting certain liberties and creating order and predictability regarding how a country functions.  In the most basic sense, the rule of law is a system that attempts to protect the rights of citizens from arbitrary and abusive use of government power.” [6&7]

Now this next definition may draw the ire of some fellow conservatives – so be it. A common wailing in the conservative ranks is that the legislature, not the judiciary, creates law. Our legal heritage derives from the English common law, and for circumstances not covered by statute, judges did indeed create law in what was known as a “court of equity.” So let’s be careful with our hand wringing when it comes to judicial decisions, and be reasonably certain that a situation is either covered by statute or is unconstitutional.

Common Law: That which derives its force and authority from the universal consent and immemorial practice of the people. The system of jurisprudence that originated in England and which was later adopted in the U.S. that is based on precedent instead of statutory laws. [8]

Common Law, also known as case law, or precedent, is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action. A “common law system” is a legal system that gives great precedential weight to common law, on the principle that it is unfair to treat similar facts differently on different occasions. [9] (emphasis mine)

And third, the notion of fairness (I greatly admire Thomas Sowell, and the notion of fairness is covered in links 1-4 below) as it commonly gets thrown around is NOT how I will be using the word myself.

Fairness: equity, conformity with rules or standards, or the ability to make judgments free from discrimination and dishonesty [10]. According to the Oxford English Dictionary (OED), definition #4, being fair connotes behaving “equitably, honestly, impartially, justly: according to rule.”

In other words, according to philosopher John Rawls, I believe in merely “formal fairness.” That’s right. In his book, A Theory of Justice, John Rawls popularized the notion of “social justice.” Now some may quibble here, but Rawls’ notion of “distributive justice” focused on outcomes… and he ruined the word fairness for an entire generation and beyond. What do I mean?

Professor Rawls advocated “a conception of justice that nullifies the accidents of natural endowment and the contingencies of social circumstances.” He called for a society which “arranges” end results, rather than simply treating everyone the same and letting the chips fall where they may [3].

When we speak of “leveling the playing field,” let’s make sure our representatives mean that when the ball field gets leveled, it is so anyone playing is running on the same grade! We do not mean handicapping a superior athlete so he’ll be “equal,” or run only as fast as the slowest member of the team. With these thoughts in mind, watch the following video, please! I think you’ll appreciate just how important Bill Whittle’s reiteration of Richard Maybury’s “Two Laws” is: it occurs at about 6:10!

The foundation of our model is the two laws that make civilization possible: do all you have agreed to do and, do not encroach on other persons or their property. The first is the basis of contract law, the second, the basis of tort law and some criminal law.  ~Richard Maybury

That should boil the big mess of our legal system down to a few elements worth looking at when reviewing candidates for office. Now let me take the time to quote Tom on his very concise thoughts on questions for Topic #5 – Law/Legal System:

We have too many laws. We would do well to have candidates who campaign on the basis of laws they will repeal more than on those they will write. If we do not fund the enforcement of a law, what is the point of passing the law? That only breeds more scofflaws. I think we should look at our court system and consider courts as a tool of last resort, after mediation and arbitration. I would welcome incentives towards mediation and against going to court.

Yup. Equal Treatment Under the Law.

What a word! Scofflaws. The OED reports that there was a contest “…for a word to characterize the lawless drinker of illegally made or illegally obtained liquor.” Ahhhh, a law that wasn’t obeyed for reasons best left to the reader (yeah, I’m talking about prohibition). The OED then provides this: “One who treats the law with contempt, esp. a person who avoids various kinds of not easily enforceable laws.” Both Tom and Bill state the obvious problems with too many laws… so, let’s not defund laws. Let’s get them off the books if they’re not worth the considerable amount of paper they’re printed on!

Phew!! Crime and punishment anyone?! Considering what we’ve just covered, I am only going to mention a few things. The Duke Rape Case. Beer Summit. Panthergate. In all of these, some element of the rule of law, the common law, or fairness was obviously violated. Worse, they were violated for the very reasons our political masters campaigned to fix… oops, I meant political servants of the people of course. How much really needs to be said here? Crime and punishment? Seriously? The cartoon and the Washington Post quote say more than enough and provide a starting point for anyone interested in the lack of justice in the Obama Department of Justice.

The WaPo quote??

Three Justice Department lawyers, speaking on the condition of anonymity because they feared retaliation from their supervisors, described the same tensions, among career lawyers as well as political appointees. Employees who worked on the Brown case were harassed by colleagues, they said, and some department lawyers anonymously went on legal blogs “absolutely tearing apart anybody who was involved in that case,” said one lawyer.

“There are career people who feel strongly that it is not the voting section’s job to protect white voters,” the lawyer said. “The environment is that you better toe the line of traditional civil rights ideas or you better keep quiet about it, because you will not advance, you will not receive awards and you will be ostracized.”

Cheers all!


The Links:

  1. The Fallacy of Fairness: Part I
  2. ‘Fairness’ in Education (The Fallacy of Fairness: Part II)
  3. Rawls and Fairness (The Fallacy of Fairness: Part III)
  4. Innate Superiority: An Inferior Idea (The Fallacy of Fairness: Part IV)
  5. Washington Post confirms politics comes before justice at Obama DOJ
  6. Wiki: The Rule of Law
  7. University of Iowa: What is the Rule of Law?
  8. LectLaw: Common Law
  9. Wiki: Common Law
  10. Princeton Wordnet: Fairness

What if the Congress of 2008 had Rewritten the Constitution?

June 20th, 2010 1 comment

A solicited guest column by Jeff Begley:

The Outdated, Outmoded, Old... Oh, never mind!

Revised Constitutional Preamble

We the people of the cities and academic centers of the United States, in order to form a more perfect labor union, establish social justice, insure non-traditional domestic situations, provide for the common defense fund for the legally challenged, promote the welfare system, and secure the blessings of liberalism to ourselves (we’ll let our posterity pay for it), do ordain and establish this Constitution for the United States of America.

The Bill of Wrongs

Amendment 1 – Freedom of Religion, Press, Expression.

Congress shall make laws disrespecting established religions, and prohibiting the free exercise thereof in public areas; and abridging the freedom of speech by calling certain speech “hate speech”, and of the press through the hilariously named “fairness doctrine”; but not the right of the people peaceably to assemble for these assemblies will simply be handled through media outlets and labeled violent, racist extremists in order to dismiss them rather than address them.

Amendment 2 – Right to Bear Arms.

A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall be infringed.  We will also hedge on the definition of the word militia, ignore the original intent of the founders, and make certain that once liberal hegemony is established it will be impossible to disrupt through force of arms.

Amendment 3 – Quartering of Soldiers.

Soldiers shall, in time of peace-keeping, be figuratively drawn and quartered for any mistakes made in front of a journalist.  We shall also attempt to quarter soldier pay, benefits, and at least put a dent in any honor once felt in serving the nation by claiming people only join as a last resort.

Amendment 4 – Search and Seizure.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable or even reasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause as defined by the current administration, supported by oath or affirmation of a federal judge appointed by a Democratic president, and particularly describing the place to be searched, and the persons or things to be seized.  Under no circumstances shall the possibility of the person being an illegal, er, undocumented… um – insufficiently-naturalized citizen be broached.

Amendment 5 – Trial and Punishment, Compensation for Takings.

Amendment 5 shall be phased out to make room for the implementation of an adult day-school for the reeducation of those with a diminished capacity to follow laws.  These poor souls simply need dignity and love.  Kumbaya.

Amendment 6 – Right to Speedy Trial, Confrontation of Witnesses.

In all criminal prosecutions, if we must, the accused shall enjoy the right to a supportive and closed trial  so as not to impinge upon their sense of dignity, by an racially diverse jury with as few privileged, bigoted white people on it as possible, of the State and district wherein the crime shall have been committed unless we want to move it for political posturing.  It should be noted that, as in the case of the 5th Amendment, trials are to be avoided as much as possible due to self-esteem issues they appear to cause in the accused.

Amendment 7 – Trial by Media in Civil Cases.

In cases where political opponents disagree, no civil discourse shall be initiated.  Instead, agreeable media outlets shall be engaged in order to impugn the character of said opponents in order to dismiss them as some sort of crackpot, whichever is considered the lowliest type at that particular time.  If the term “racist” can be used without fear of reprisal, it shall.

Amendment 8 – Cruel and Unusual Punishment.

Being that punishment is considered mean by those being punished and the term unusual is vague, we shall pretend to rehabilitate those poor, misguided souls who asserted their wills over the wills of others.  Only if a crime personally affects us shall we even consider punishment as an option because, hey, it’s us and not you that are suffering at that point.

Amendment 9 – Construction of Constitution.

The enumeration in the Constitution, of certain rights, shall be construed as the absolute limits of rights retained by the people.  If the people need more rights, we will determine what they are and grant them.  Maybe.  Ok, not really.

Amendment 10 – Powers of the States and People.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people… LOL!  Okay, we were really just yanking your chain here.  Gotcha!  Seriously, the central government shall retain all the power.  States are for hillbillies clinging to their bibles and guns.

Friends… on Crime (Part 3)

January 15th, 2010 3 comments

Once, there was only one...

Yikes! Ok, soup for you! I had initially planned to respond to comments on Friends… (Part 2) with return comments, and in fact started that process with Jeff’s comment, but *sigh* it worked itself into something a little more extensive. Part of the reason is the sheer number of journal articles everybody’s comments called to mind. I can’t say how pleasant I found it that everybody was courteous enough to be concerned about offending someone – on the other hand, I was also a little down on the fact that the concern was necessary at all in a rational discussion. If you haven’t read the above post’s comments, they are all worth the read! …and of course, reading these comments is at least in part necessary to make sense of this post.

A small caveat before we get going here – if I can find a link to the journal articles I’ll provide it, otherwise I’ll just provide the journal citation. Now then, part of what caused this excursion is a journal article entitled Boredom, Crime, and Criminology (Ferrell, 2004) and the way its contents triggered a quote Jeff gave me quite some time ago:

We’re the middle children of history, man. No purpose or place. We have no Great War. No Great Depression. Our Great War’s a spiritual war… our Great Depression is our lives.

~Chuck Palahniuk, Fight Club

Why? It’s part and parcel of some of the ideas expressed in the journal article. Part of the point is that when a society/government impoverishes human experience then a response of some sort isn’t a real stretch to expect:

So, for example, when Reclaim the Streets illegally shut down London’s M41 motorway in 1996, the subsequent ‘festival of resistance’ featured booming music, street dancers, carnival figures and a big banner warning of enforced boredom’s apocalyptic consequences: ‘The Society that Abolishes Every Adventure Makes Its Own Abolition the Only Possible Adventure’ (Ferrell, 2004).

Combine these feelings with those of “oppression,” and a certain sense of “entitlement” we might have at least a little explanatory power with crime. The reason I put entitlement in quotes is because it represents a bit more specialized use of the word. When a person or group perceives that they have been deprived of something that another person or group possesses, this is referred to as relative deprivation in a theory by the same name. Although it is commonly associated with poverty, it need not be – it can be a comparison of relative possessions in economic, political, or social deprivations. More to the point, it “sensitize[s] us to the process and emotion of crime” (Webber, 2007). Like I said, I tend toward the eclectic view of crime explanation because specific theories rarely have the explanatory power to encompass all crime. Boredom (and risk taking), oppression (and risk taking), and entitlement (and risk taking) all have some utility in explaining crime, and pretty much all have some foundation in criminological studies.

Given these elements so far, I’ve got to start this the way Jeff did in a follow up post to Tom in the comments section of Friends… (Part 2): “For someone who claims to ‘know nothing, repeat, nothing about crime theory,’ you have some very interesting ideas.” That was an excellent post, Tom. I really enjoyed your take on a synthesis of your own observations and those of your professor’s. I wonder if your professor was a professor of sociology or political science (perhaps even a history professor). The theory placing more emphasis on why there is “more” crime in America rather than what “causes” crime is interesting in itself, and it has as its presupposition about causal factors specific cultural traits or patterns (including cognitive patterns). While this does run contrary to a lot of popular crime theory, it doesn’t run contrary to many well established but less popular theories. Like Jeff’s post, I imagine your thoughts on this might offend some people, but I think many people, both in and out of the field, would find your take on it worth a good look.

There are a number of excellent studies out there concerning voluntary risk taking behavior in terms of crime, as well as an emerging (re-emerging) group of studies choosing to call itself cultural criminology. While cultural criminology pays attention to historical narrative (Tom’s list of reasons for coming to America), it also emphasizes current cultural influences; for example, media representations of what one should believe. I am fairly certain that elements of these theories would be found “objectionable” or “offensive” to some people. Despite that, elements of these reflect Tom’s thinking about risk taking and our own histories.

The antecedents of cultural criminology lie within the longstanding recognition of the importance of cultural ethnographies and artifacts in understanding human social behaviour. This ongoing tradition acknowledges that what is important is the analysis of the way in which humankind makes sense of and, at times resists, existing and developing social structures. Such privileging of ‘culture’ enables cultural theorists to view behavior as dynamic rather than determined and opens up the possibility of other ways of ‘seeing’ transgressive and therefore criminal behavior (Presdee, 2004).

Finally, both Tom and Mr. Grim point out something that is worth quoting to introduce the last “theory” associated with their comments. First, Tom wrote:

I also believe that the breakdown of society is a big factor in crime. Most societies are constructed to maintain a certain order. Much of this is done through peer pressure. But, peer pressure will affect crime in two ways, in my opinion. One, when there is sufficient peer pressure as in small towns where everyone knows one another; it is more difficult to break the societal norms (laws). Also, in big cities, there is more anonymity and fewer peers to apply the pressure to adhere to societal norms. Two, is the situation when there is peer pressure to break down societal norms (break laws) as occurs in gangs. As Jeff, above, comments, this can be a very big cause in antisocial behavior, law breaking.

And second, Mr. Grim put it this way:

I would like to back things away from those who actually broke rules of sufficient stature to deserve punishment through our criminal justice system for a minute. Instead, I would like to point my pudgy finger at what I term “the rule-breakers”.

“Who are the rule-breakers,” you may ask?

Why, it is all of us. You, me, Hell just about anyone you may know qualifies as a “rule-breaker”.

Little things, like parking in a fire zone while you jump out to use the ATM. You know you’re not supposed to, but you do it anyway. Or driving 70 MPH on a 65 MPH zone. Bah, it’s a stupid rule anyway. Or throwing that candy wrapper in a nearby bush instead of shoving it in your pocket until you can find a garbage can. Meh, it’s paper, sort of, it’ll biodegrade.

Each of these can be seen as expression of James Q. Wilson and George C. Kelling’s ideas that came to be known as the “Broken Windows Theory.” I’ll focus less on risk taking and more on “societal breakdown” for reasons of space, but both elements are expressed in current criminology theory.

First, the broken windows concept focuses on neighborhoods and communities rather than “cities at large.” In other words, it focuses on logical patrol areas. More important, it focuses on precisely what Mr. Grim called “rule breakers.” The idea with the community policing concept was to establish the “informal rules” as well as formal rules for the neighborhood and enforce them as a community. While the reason for breaking the rules (stupid rule, lemmings, or being inconsiderate) is less important than the fact that they are being broken, the primary idea is that the community as individuals must have the moral courage to support their rules. Littering, jumping subway turnstiles, harassing passersby, etc. are all examples. It’s worth a portion of the article here:

The people on the street were primarily black; the officer who walked the street was white. The people were made up of “regulars” and “strangers.” Regulars included both “decent folk” and some drunks and derelicts who were always there but who “knew their place.” Strangers were, well, strangers, and viewed suspiciously, sometimes apprehensively. The officer – call him Kelly – knew who the regulars were, and they knew him. As he saw his job, he was to keep an eye on strangers, and make certain that the disreputable regulars observed some informal but widely understood rules. Drunks and addicts could sit on the stoops, but could not lie down. People could drink on side streets, but not at the main intersection. Bottles had to be in paper bags. Talking to, bothering, or begging from people waiting at the bus stop was strictly forbidden. If a dispute erupted between a businessman and a customer, the businessman was assumed to be right, especially if the customer was a stranger. If a stranger loitered, Kelly would ask him if he had any means of support and what his business was; if he gave unsatisfactory answers, he was sent on his way. Persons who broke the informal rules, especially those who bothered people waiting at bus stops, were arrested for vagrancy. Noisy teenagers were told to keep quiet.

These rules were defined and enforced in collaboration with the “regulars” on the street. Another neighborhood might have different rules, but these, everybody understood, were the rules for this neighborhood. If someone violated them the regulars not only turned to Kelly for help but also ridiculed the violator. Sometimes what Kelly did could be described as “enforcing the law,” but just as often it involved taking informal or extralegal steps to help protect what the neighborhood had decided was the appropriate level of public order. Some of the things he did probably would not withstand a legal challenge (Wilson & Kelling, 1982).

Second, it is worth an extended quotation to explain where the broken windows idea originates because it describes Tom’s notions of societal breakdown in terms of Mr. Grim’s rules:

…at the community level, disorder and crime are usually inextricably linked, in a kind of developmental sequence. Social psychologists and police officers tend to agree that if a window in a building is broken and is left unrepaired, all the rest of the windows will soon be broken. This is as true in nice neighborhoods as in run-down ones. Window-breaking does not necessarily occur on a large scale because some areas are inhabited by determined window-breakers whereas others are populated by window-lovers; rather, one unrepaired broken window is a signal that no one cares, and so breaking more windows costs nothing. (It has always been fun.)

Philip Zimbardo, a Stanford psychologist, reported in 1969 on some experiments testing the broken-window theory. He arranged to have an automobile without license plates parked with its hood up on a street in the Bronx and a comparable automobile on a street in Palo Alto, California. The car in the Bronx was attacked by “vandals” within ten minutes of its “abandonment.” The first to arrive were a family – father, mother, and young son – who removed the radiator and battery. Within twenty-four hours, virtually everything of value had been removed. Then random destruction began — windows were smashed, parts torn off, upholstery ripped. Children began to use the car as a playground. Most of the adult “vandals” were well dressed, apparently clean-cut whites. The car in Palo Alto sat untouched for more than a week. Then Zimbardo smashed part of it with a sledgehammer. Soon, passersby were joining in. Within a few hours, the car had been turned upside down and utterly destroyed. Again, the ‘vandals” appeared to be primarily respectable whites.

Untended property becomes fair game for people out for fun or plunder, and even for people who ordinarily would not dream of doing such things and who probably consider themselves law-abiding. Because of the nature of community life in the Bronx — its anonymity, the frequency with which cars are abandoned and things are stolen or broken, the past experience of “no one caring” — vandalism begins much more quickly than it does in staid Palo Alto, where people have come to believe that private possessions are cared for, and that mischievous behavior is costly. But vandalism can occur anywhere once communal barriers — the sense of mutual regard and the obligations of civility — are lowered by actions that seem to signal that “no one cares.”

We suggest that “untended” behavior also leads to the breakdown of community controls. A stable neighborhood of families who care for their homes, mind each other’s children, and confidently frown on unwanted intruders can change, in a few years or even a few months, to an inhospitable and frightening jungle. A piece of property is abandoned, weeds grow up, a window is smashed. Adults stop scolding rowdy children; the children, emboldened, become more rowdy. Families move out, unattached adults move in. Teenagers gather in front of the corner store. The merchant asks them to move; they refuse. Fights occur. Litter accumulates. People start drinking in front of the grocery; in time, an inebriate slumps to the sidewalk and is allowed to sleep it off. Pedestrians are approached by panhandlers… (Wilson & Kelling, 1982).

Now those are the two elements associated with Tom and Mr. Grim’s ideas in their posts. An important element of Tom’s, and the last major idea in this post, is Tom’s statement:

He made the assumption that a very large part of our Society was made up of those who lacked a respect for ruling authority and law. Hence we had more people willing to risk going against that law and the society that supported the law. I tend to believe he is onto something.

I agree. So do Wilson and Kelling. The corollary of course is that people don’t simply pay lip service to the support of law and order. It needs to be tangible. Respect for the ruling authority and law is important. Why? In keeping with Mr. Grim’s rubric, well, a certain friend of mine once said something to the effect, “I hate cops. I have absolutely no respect for them, and if they don’t like that they should find another line of work.” Same caveat goes: “please note that the quotes are to indicate dialogue and are not meant to indicate the statement is verbatim.” Whether it’s laws, rules, police, judges, etc., that we think are stupid or useless, should we not, make use of our democratic processes to change the nature of the laws, rules, police, judges, etc?

For the most part I would say yes. Of course, like any other problem solving exercise, it’s important to start isolating those elements most in need of change and those that really won’t make a difference for each community. Also, for the most part, I would suggest that Tom and Mr. Grim have the best take on what to fix first – the broken windows in our part of the neighborhood. That was my primary reason for writing this – to note that people thinking about crime and its causes tend to bring up elements or pieces of existing theory – knowing part of the problem gets us on the way to answering: “What do we do to fix it?”

“Crime seems to me to be as complex as any other human emotion, action, or desire. That is why it deserves study.” And that “…we want our neighbors to act as we do and want to understand how to keep them from acting out against societal norms.” Mostly, it seems like many people agree, and yet we tend not to want to talk, debate, and argue over these elements that would help us produce change.

Huge thanks to you guys for an excellent discussion of the causes and correlates of crime. I really appreciate the discussion and I hope it provides some inspiration for some of the many ways we can each do our part. So a little anecdote/story about a mutual person of interest between Mr. Grim and me.

I was returning to work from lunch one day, and parked near the back of a full parking lot. As I turned toward the street I heard and saw two things that occurred in swift succession. First I saw a pop can leave the hands of a male on a BMX bike. Second, about the time I heard the full pop can strike the street, I heard my boss bellow, “HEY! Pick that up!” The teenager (I think), obviously embarrassed, stopped his bike and picked up the pop can.

Cheers All!

Ferrell, J., “Boredom, crime, and criminology,” Theoretical Criminology, Vol. 8, No. 3, 287-302 (2004)

Webber, C., “Revaluating relative deprivation theory,” Theoretical Criminology, Vol. 11, No. 1, 97-120 (2007)

Presdee, M., “Cultural Criminology: The long and winding road,” Theoretical Criminology, Vol. 8, No. 3, 275-285 (2004)

Wilson, J.Q. and Kelling, G.L., “Broken Windows,” The Atlantic, March (1982); there is also a PDF version of this article at the Manhattan Institute.

Friends… And the Cause of Crime? (Part 2)

January 11th, 2010 6 comments

Does poverty cause crime?

Heather Mac Donald is a contributing editor at the Manhattan Institute’s City Journal, and she recently wrote an article for the Wall Street Journal that garnered quite a range of responses. Tom, over at Responsibility, was kind enough to send me a link. I think Mac Donald’s title pretty much covers the premise of her article: A Crime Theory Demolished: If poverty is the root cause of lawlessness, why did crime rates fall when joblessness increased? (WSJ, 20100104). This actually raises the specter of crime theories – there are a number of them. They are worth mentioning simply because the “root causes” notion of poverty is so well embedded in popular belief (even amongst law enforcement practitioners) that other theories are simply not a part of the conversation.

Perhaps the only theory (apart from “I’m poor, that’s why I…”) that is also a part of the vernacular is the so-called Classical Theory. I say “so-called” because criminal justice text-book authors have chosen that label. Essentially, this theory boils down to free-will, a choice. Though much is made of the “age” of this theory, there are plenty of modern day advocates (e.g. Stafford & Warr, Patternoster, Cornish & Clarke, and a few others) who have provided a new label: Rational Choice or Deterrence Theories. This newer version emphasizes the notion of a “costs v. benefits” analysis, but it still is heavy on the free-will concept. Those are just two theories that are a part of popular dialogue; however, there are a host of others that are not a part of our community conversation:

  1. Positivist – crime is caused or determined by biological, psychological, sociological factors. Claims to use science to determine the factors associated with crime.
  2. Trait Theory – this theory believes that criminals differ from non-criminals on a number of biological and psychological traits, and in conjunction with the environment… well, cause crime.
  3. Anomie / Social Disorganization Theory – as communities break down, informal social controls fail to control crime and criminal cultures emerge.
  4. Differential Association, General Strain, Strain, Control, Control/Balance, Feminist, Postmodernist, Chaos Theory…. You get the idea – lots. Most have some basis for deserving a portion of the “market share” he he he.

I’m a fan of eclecticism, because sometimes, one explanation just isn’t enough. Of course, people from both the right and the left say moderates are simply unable to get the fence post… So, let me remove the fence post from my posterior and say I think Mac Donald is right. As theories of crime go, I believe the notion that “the root cause of crime lies in the income inequality and social injustice” (WSJ, 20100104) has been thoroughly discredited. This is especially true if we remember the difference between causation and correlation. As comments and emails have made plain in response to the last post on this subject, while many readers doubt poverty is the “cause” of crime, they do believe it plays a part in the scheme of things criminal.

Thanks largely to Johnson’s “Great Society” brain trust, this particular brand of “root cause” theory was widely accepted and turned into public policy. These ideas did enough damage that some strange conclusions were drawn, as Mac Donald points out:

If crime was a rational response to income inequality, the thinking went, government can best fight it through social services and wealth redistribution, not through arrests and incarceration. Even law enforcement officials came to embrace the root causes theory, which let them off the hook for rising lawlessness. Through the late 1980s, the FBI’s annual national crime report included the disclaimer that “criminal homicide is largely a societal problem which is beyond the control of the police.” Policing, it was understood, can only respond to crime after the fact; preventing it is the domain of government welfare programs (WSJ, 20100104). (Added emphasis is emphatically mine.)

Despite what many on the left continue to claim, data-driven policing continues to be effective in combating crime. Mac Donald’s article is worth the read for that alone, because she amply demonstrates the effectiveness of the “Compstat” mentality and makes it plain that:

mentality is the opposite of root causes excuse-making; it holds that policing can and must control crime for the sake of urban economic viability. More and more police chiefs have adopted the Compstat philosophy of crime-fighting and the information-based policing techniques that it spawned. Their success in lowering crime shows that the government can control antisocial behavior and provide public safety through enforcing the rule of law. Moreover, the state has the moral right and obligation to do so, regardless of economic conditions or income inequality (WSJ, 20100104).

She follows this up with a warning, and it is prudent – crime rates could still be affected by public safety funding cuts driven by the recession.

With all that being said, I think it’s worth noting that Mac Donald still runs a little loose with her observations. Even if national crime statistics are better than ever, it is also true that there is a substantial positive correlation between poverty stricken areas and crime rates. The bottom line here is that crime tends to be heavier in low income areas than in more upscale neighborhoods. Using a national statistic to “demolish” a local phenomenon isn’t quite true to the use of those statistics – and Mac Donald should know better than to be that misleading.

I suppose the final critique here is that unemployment, the basis for Mac Donald’s tag line in the title, is NOT poverty. Consider the number of households with more than one income, the number of unemployment claims being filed, and the few who are sustaining themselves on odd jobs and savings – with those considerations in mind, equating unemployment with poverty at this point approaches being disingenuous.

Just in case you weren’t sure, I do believe crime is a choice. Having grown up in what passes for poverty here in the United States, I don’t believe it causes crime… though it does limit one’s choices. On the other hand, perhaps my grandmother was right (being a voracious reader, I’m sure she was quoting someone): “We’re not poor, we’re broke. Huge difference. Being broke we can change, being poor is a state of mind.”

P.S.     Tune in next time when we show how engineering students living in Europe, waiting on their next check from home, were somehow living in squalor and utter wretchedness, and decide to fly a few planes into some buildings because they were… poor?

Cheers all!

Friends, Christians, and Communists (Part 1)

January 7th, 2010 7 comments

This was originally posted in 2007, and an email from a fellow blogger (Tom at Responsibility) called it to mind. Tom sent an email with a reference to a Wall Street Journal article that he thought I might be interested in – and I was so interested I decided I’d post something in response. Big hat tip to Tom 😉 While this isn’t a response to the WSJ article, it is a bit of background and foundation for an answer, which I hope to post before Monday. So, the original post from August 6, 2007:

I’ve heard that nasty word “social justice” once again, and I’m always interested enough to ask my erstwhile conversation partner what he means by this interesting compound idea. Erstwhile? Former conversation partners because I’m generally opposed to the common or popular notion of what “social justice” constitutes, and my opposition seems to color me as Satan himself to some of the liberal nutroots I’ve engaged in conversation (despite their intense opposition to religion, it is ok to label opponents as the minions of Beelzebub). Taking the adjective social away from the concept at least leaves the actual noun being modified in some fashion. Make no mistake, English works precisely this way.

“No, no, no, you don’t understand. It wasn’t simply a man; it was a little green man!”

Granted, that’s poking a little fun, but whether used rationally or irrationally, that’s the way we use our language. Clearly, progressives are trying to make it plain that they are NOT talking about the classical meaning of justice, and hence, the adjective “social.” I had always thought justice by nature and definition must be social. Something else is meant in this case – so, for comparison, let’s take a look at the origin of the word “justice.” I’ll use the Online Etymology Dictionary:

1140, “the exercise of authority in vindication of right by assigning reward or punishment,” from O.Fr. justise, from L. justitia “righteousness, equity,” from justus “upright, just.” The O.Fr. word had widespread senses, including “uprightness, equity, vindication of right, court of justice, judge.” The word began to be used in Eng. c.1200 as a title for a judicial officer. Meaning “the administration of law” is from 1303. Justice of the peace first attested 1320. In the Mercian hymns, L. justitia is glossed by O.E. rehtwisnisse.

Generally, “the administration of law” was once a common understanding of the term “justice.” On the other hand, the term “social justice” uses the adjective “social” to incorporate the notions often associated with socialism/communism. The always popular “take from those who are more prosperous and give to those who are less prosperous” – whether on a national or global scale depends largely on who is promoting the idea. For example, Anthony Brunt at the University of Iowa puts it this way:

The first component of social justice is a minimum standard of living in the realms of employment, health, housing, and education. This is the portion of social justice that is best dispensed through government agencies. According to the 1999 U.N. Human Development Report, for forty billion dollars the most disadvantaged portions of the world can achieve basic healthcare, education, sanitation facilities, potable water, and an adequate food supply for all. To contrast this amount in relative terms, last year Microsoft chairperson Bill Gates had an estimated net worth of fifty-two billion dollars. I do not believe that allocating an additional forty billion dollars will strain those living in a state of luxury.

Only somewhat tongue in cheek, Kfir Alfia and Alan Lipton in A Field Guide to Left-Wing Wackos, says that communists are “Anyone who likes the things you have, wants them for his own, and doesn’t mind if a totalitarian state is what it takes to make that happen.” This idea of using a government to accomplish their ends is highlighted by Brunt in the next paragraph of his paper, albeit for logistical concerns.

Why even mention this topic? Because I find it at least a little ironic and humorous that this unusual group of liberals shares so much in common with the very people they are so opposed to having any influence on our society. Truly, the only real difference between the liberal nutroots and the Christians in this case is the means by which they ameliorate poverty. I really cannot say it better than C.S. Lewis on this topic, and he makes the point so forcefully, I’ll close with a small portion of The Problem of Pain:

Those who would most scornfully repudiate Christianity as a mere “opiate of the people” have a contempt for the rich, that is , for all mankind except the poor. They regard the poor as the only people worth preserving from “liquidation,” and place in them the only hope of the human race. But this is not compatible with a belief that the effects of poverty on those who suffer it are wholly evil; it even implies that they are good. The Marxist thus finds himself in agreement with the Christians in those two beliefs which Christianity paradoxically demands – that poverty is blessed and yet ought to be removed. (C.S. Lewis, 1940, pp. 108-109)

P.S. The question to ask is: “Is poverty a/the ‘root cause’ of crime?”


Finally! Felony Disenfranchisement

December 10th, 2009 8 comments

jail1A tremendous body of advocacy writing concerning felony disenfranchisement spends its time comparing us to European countries and waxing long on our failure to be like them… Screw that, let’s be like us, and if we want to change the way we do business let’s keep it internally consistent! Let’s do it because it’s the right thing to do, not because somebody else is doing it. Sheesh!!

That’s the second to last paragraph of last week’s post. Just a reminder of where I’d prefer decisions about our political and legal life to be, rooted in our country’s history – socially, politically, and especially legally. I don’t really think I trust any lawyers when it comes to arguments; they strike me as waaaay too much like the sophists. It really isn’t about finding the truth of the matter; it’s all about winning the argument… even if the winning argument ignores evidence that might be deemed “exculpatory.” If the opposition fails to find the exculpatory evidence, then really, “it simply isn’t my concern.” Don’t get me wrong here; I’m certain there are honest lawyers out there somewhere – just like there are honest politicians. Simon Cameron said it best, “An honest politician is one who, when he is bought, will stay bought.”

Unfortunately, most of the advocacy writing on this subject (felony disenfranchisement), and the associated “research,” is done by lawyers or think tanks aimed at a specific agenda. Apart from many lawyers associations, especially the American Trial Lawyers Association (an exclusive group of “the best” 100 lawyers from each state that caters only to the defense side of a trial) and the ACLU, there are also other groups like The Sentencing Project that one might think are more balanced. Again, unfortunately, the aim of The Sentencing Project is focused sharply on defense attorneys. Moreover, the lion’s share of the material tries to invoke international law, U.N. Treaties, or the practices of other nations. When it is not trying to do that, the authors use descriptive statistical information precisely as one might expect of a lawyer rather than a statistician or scientist. In other words, one finds lawyers repeatedly trying to use descriptive statistics to prove discriminatory practices. This tool describes a population, it doesn’t prove or explain anything – other than the description.

Before I actually give my position, I’d like to lay out just one more example of the kinds of arguments and commentary coming from this rather one sided group of defense attorneys – primarily because it’s just a little funny. It’s worth a direct quote from the Alabama Law Review, Vol. 58:

Though felony disenfranchisement has been present in this country since its inception, the outrage over this process has gained serious momentum in recent years. The reason for this new found interest in felony disenfranchisement laws can be traced to the 2000 presidential election.1 This presidential election was the closest in the history of the United States2 and resulted in President George W. Bush winning the election while losing the popular vote.3 In fact, the election was so close that the result hinged on one state: Florida.4 The Republican nominee, George W. Bush, won the state of Florida by accumulating fewer than 1,000 more votes than the Democratic nominee Al Gore.5 In such a closely contested election, some commentators believe that if felons were allowed to vote, Al Gore would have become the forty-third President of the United States.6 (emphasis mine)

Come on, seriously, if criminals could register to vote, then they’d certainly register as democrats… That’s directly from the opening paragraph. What happened to the proof reader? You might expect me to make mistakes like that; I don’t have an editorial staff to make sure I don’t walk away with my foot in my mouth. But you don’t really expect that from an established journal. Regardless, the article is one of the few I really enjoyed because it focused on American Law, why it probably would not be practical to challenge disenfranchisement laws through the courts, and finally, why concerned citizens must move their legislators to change the laws.

I happen to agree that these laws need to be changed, but not for the reasons typically offered by lawyers concerning things outside the internal consistency of our own laws and intentions. Leave it to a Canadian, specifically members of their Supreme Court, to avoid an argument based on international law and to focus on the internal consistency of the thing itself! From a paper by The Sentencing Project on page 29:

The court concluded that the policy [of disenfranchisement] did not communicate a clear lesson to the nation’s citizens about respect for the rule of law. The court stated: “Denying a citizen the right to vote denies the basis of democratic legitimacy. It says that delegates elected by the citizens can then bar those very citizens, or a portion of them, from participating in future elections. But if we accept that governmental power in a democracy flows from the citizens, it is difficult to see how that power can legitimately be used to disenfranchise the very citizens from whom the government’s power flows.”

That’s an argument that should resonate with many Americans familiar with the American State Papers, i.e., our Constitution, Declaration, Bill of Rights, and the Federalist Papers. Here in Oregon, felons are disenfranchised during their incarceration and are automatically enfranchised upon release. If there is to be any disenfranchisement at all, then surely after the debt is paid the most important right of a citizen should be restored – especially if we are serious about wanting this member of our society to exercise the duties and responsibilities of a citizen.

countyjailI’m not so bold as to say all felons are democrats… because I know a few Independents that are ex-cons. Ha, you thought I was going to say republicans – all republicans are felons. Hahahaha. Seriously though, what do you think? Considering we have over 5,000,000 people unable to vote, doesn’t that have a pretty large impact on our notions of democracy – let alone the functioning of our democracy? What do you think?

Cheers all! And as me Da says: “Polite? Yes. Politically correct? Don’t hold your breath.”

Freedom of Speech, A Quaint Civil Liberty

July 21st, 2009 2 comments

Ever hear of Theo van Gogh? Ayaan Hirsi Ali? Based on conversations with random people at coffee, sandwich, and ice cream shops it seems many Americans don’t really remember or know these names. Understandable, but if I asked if they remembered a Dutch movie director murdered because of a movie he made – then there was a fuzzy recollection. Theo van Gogh directed the movie Submission which was written by Hirsi Ali, who was essentially exiled though he was a member of parliament. This happened in the Netherlands in 2004 I believe, and is by now considered “ancient history.”

The Netherlands was once considered one of the most tolerant countries in Europe. Enter the EU and its notions of free speech, notions that our left is increasingly advocating for consumption here in the United States. Both the American Spectator’s (AS) Roger Scruton and The Weekly Standard’s (TWS) Christopher Caldwell had articles on the February refusal of the UK, “on the advice of Jacqui Smith, the Home Secretary,” (AS) to grant Geert Wilders, a member of the Dutch Parliament, entry to the UK to show his film Fitna. Why comment on free speech? I write about free speech because “we the people” seem to be increasingly constrained in our speech by our government in direct violation of our first amendment rights. Take a look through the new hate crimes legislation that was attached to a defense bill by House Democrats, it’s just a little bit like limiting thought and speech.

Those two articles are worth the read, but if you don’t, here are a couple of entries that reflect the content of the articles:

But free speech is not about permitting only those voices of which you approve. It is about understanding your own beliefs and the beliefs of those who disagree with you. It is about creating the public space in which truth and falsehood can openly contend for their following. Free speech is critical to all the other freedoms that we enjoy, and the impulse to defend it—and in particular to defend the free speech of those with whom you disagree, of whom you disapprove, or who have been targeted by some mob or faction determined to silence them—is proof of the democratic spirit. (AS)

…the British government has grown less interested in freedom. After the July 2005 transport bombings, and even more after the foiled airplane plot of the following summer, the government said so explicitly. “Traditional civil liberty arguments,” said Tony Blair, “are not so much wrong as just made for another age.” Since then, 270 people have been refused admission to Britain on grounds of sowing hate. Only four of these have been Europeans. This kind of disparate impact must leave Jacqui Smith feeling she has little to apologize for in banning Wilders.

The new European conception of freedom of speech, based on anti-racism, protects a lot less speech than did the old British and Dutch conceptions of freedom of speech, based on sovereignty. Maybe membership in the family of man relieves one of a certain amount of worry about the liberties of one’s fellow citizens. (TWS)

Do we, as American citizens, really believe that traditional civil liberty arguments are anachronistic? I certainly hope not. It saddens me when the ACLU is more apt to defend free speech than post-secondary academia:

Many universities, under pressure to respond to the concerns of those who are the objects of hate, have adopted codes or policies prohibiting speech that offends any group based on race, gender, ethnicity, religion or sexual orientation.

That’s the wrong response, well-meaning or not. The First Amendment to the United States Constitution protects speech no matter how offensive its content. Speech codes adopted by government-financed state colleges and universities amount to government censorship, in violation of the Constitution. And the ACLU believes that all campuses should adhere to First Amendment principles because academic freedom is a bedrock of education in a free society.

Jeff, a commenter on the post Hate Crime Legislation is sooo Useful, made several keen observations about hate crime legislation – but he summed it up nicely:

Hate crime legislation is simply an attempt to control ideas and limit speech. It was passed by guilty consciences to raise up a stereotyped cartoon of downtrodden masses. It’s race law.

Seems like a bummer that our representatives in congress would actively seek to violate our civil rights in this underhanded way. My father has a tag line at the end of his emails I like: Polite, yes.  Politically Correct – don’t hold your breath. Though I would like to quote J.S. Mill from On Liberty, I’ll save that for some other rant because I’d rather end on a humorous note. I’m lousy at written humor – I just don’t have the chops. However, for a great ending to this post, P.J. O’Rourke emailed a little bit to the Scrapbook, a section of The Weekly Standard that addresses just this issue. Since I couldn’t seem to find it on line, it’s the APRIL 13 / APRIL 20, 2009 issue, and as it’s a relatively short little screed here’s all of it (with my sincere hopes this is perfectly ok):

The U.N. Human Rights Council —with the championing of human rights led by delegates from Belarus, Venezuela and Pakistan—has passed a resolution urging countries around the world to make “defamation of religion” illegal. Given the Obama administration’s desire for closer cooperation with the U.N., those laws may be on the books in America by the time you read this. But we will defy Attorney General Eric Holder and the fearsome weapons of the U.N.’s black helicopters enforcing his writ. Herewith a last stand for the defamatory rights of free speech:

How many Episcopalians attend church on Sunday? Fore.

What do you get when you cross a Jehovah’s Witness with a Unitarian? Someone who goes door-to-door for no reason.

Hey, Presbyterians, if everything is predestined by God, how come the tornado blew your double-wide to God-knows-where?

What caused the Catholic priest to have a sex change? Altar girls.

Then there was the Baptist congregation that put up a sign, “CH_RCH What’s Missing?” And they spent all week trying to figure it out.

Why was the Dalai Lama reincarnated as a compulsive gambler? So he’d get Tibet.

Did you hear about the dyslexic Hindu who had 47,000 dogs?

What do you get if you call a Sikh a reckless, insane maniac? A taxi.

And what’s the difference between Jews and Muslims? A profit.

Cheers all.

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