Archive for October, 2009

Hate Crimes, Special Victims, and the Rest of Us

October 28, 2009

The new Defense Appropriations Bill either has been or is about to be signed into law, with an amendment that places people under federal protection from those who object to their sexual orientation. I’m certainly in favor of whatever it takes to prevent atrocities like the murder of Matthew Shephard. But I’m getting uncomfortable with statutes that protect only certain groups from crimes that we should all be protected from. I just did a quick run-through of the criminal section of the Illinois Compiled Statutes, and found something like 34 categories of people who are specifically protected from homicide, battery, assault, or hate crimes.

Specifically, that’s:
peace officers
correctional officers
emergency medical technicians
persons over 60
disabled persons
teachers and school employees
unborn children
family or household members of the perpetrator
prison or jail inmates
park employees
bus or cab drivers
state or city employees on duty
sports officials and coaches
emergency management workers
utility workers
pregnant women
merchants detaining shoplifting suspects
child athletes, and
people being victimized because of their
actual or
sexual orientation
physical or mental disability, or
national origin.

Of course, I’m not including any of the specifications about: who the perpetrator is, or where or when the crime is committed. I just want to know whose life is worth more than that of the average person on the street. (And never mind, for now, that assaulting or battering anybody on the street is, by reason of that fact, aggravated.)

Most jurisdictions have similar catalogs, so far as I can tell. Certainly federal law does. I spent some years as a federal law enforcement official protected by a statute that, I think, imposed a possible death sentence on anybody who murdered me. At the time, I was handling a case in a small local jurisdiction where the mayor had recently hired the killing of the City Attorney with whom my predecessor had been negotiating, so I kind of liked having that protection. But my point, obviously, is that every such jurisdiction (except the feds, who have no generalized murder, assault, and battery statutes) supposedly bans assault and battery against anybody. So why should we need these extra protections?

As to homicide, we really don’t. Homicide statutes get enforced fairly uniformly, except for informal special considerations for Important, or at least Nice, People, as opposed to street people, prostitutes, and prison inmates, and perhaps illegal immigrants—people whom many of us believe we would all be better off without.

But as to assault and battery, we really don’t bother. Illinois apparently doesn’t have any anti-bullying statute yet, but some other jurisdictions do. Bullying mostly involves juvenile-on-juvenile conduct that also clearly constitutes assault and battery. But most of us object to “criminalizing normal youthful hijinks,” even if they would already be criminal if the victim were an adult. Adult-on-adult “simple” assault or battery, unless the victim is within one of these protected classes, or the locus of the crime is a protected place, also gets ignored.

So we have to invent 34+ protected classes of victims and roughly the same number of protected locations to notify our police and prosecutors that “we really mean it” as to those persons and localities. Then we get objections from conservatives and more sinister forces that we are granting “special rights” to some groups at the expense of others. And, unfortunately, they’re right. Some people have special rights to be protected from assault, battery, and other unpleasantries, and the rest of us don’t.

That’s not (conservatives to the contrary notwithstanding) because we value some people more than others. It’s because we cannot be bothered to recognize a general human right to be safe from assault, battery, and other usually petty crimes. We put it into our statute books, but we almost never enforce it.

And that, in turn, is because our law enforcement system doesn’t want to be hauled into every petty dispute between ordinary people. Our police and judges have been all too well trained by their mothers: “I don’t care which of you hit the other one first.
Both of you shut up and sit still, or you don’t get any TV tonight.” “Nobody likes a tattletale.” In school bullying situations, all parties are likely to get the same punishment. This discourages reporting, which is just fine with the teachers. With children, or with unimportant people in general, the point of a disciplinary system is not to do justice, or even to inculcate good habits of behavior. It is to relieve the authorities of all but the most necessary work.

For my sins, I have had to spend a great deal of time representing a couple of people who are trying to direct the attention of the law enforcement system to various infractions committed by people near and formerly dear to them. Both the police and prosecutors have told my clients repeatedly that they have unlimited official discretion not to arrest or prosecute, regardless of the enormity of the offense in question. Most of this discretion doesn’t even make its way into the statutes or the reporting of court cases, because exercise of this discretion means, by definition, that there will never be a court case. This is, we are told, essential if we are not to expend most of our gross domestic product on law enforcement. Choices have to be made. Designation of special victims and crime circumstances are the way we make those choices.

At the same time (see, we keep the simple assault and battery statutes, and all sorts of other statutes we have no intention of enforcing, on the books. Thus we maintain the appearance of being Nice People, while not having to pay undue attention to the ordinary behavior of ordinary people, and at the same time holding a weapon in reserve for when that behavior arouses serious public emotion. Creation of one more class of protected victim is now the standard response to any horrendous crime. Many of the laws embodying this approach memorialize the names of victims, to keep the crimes fresh in our memory, so we will continue to consider them important—Megan’s law, Amber Alerts, and so on. No doubt the most recent addition to the federal hate crimes catalog will become known, at least informally, as Matthew’s law. Which is a worthy memorial to a young man who deserved a lot better of his society. But wouldn’t it be better to take seriously the rights of all of us to be free of assault, battery, and homicide?

Jane Grey

Groups upset man wouldn’t marry interracial couple

October 16, 2009

“By MARY FOSTER, Associated Press Writer Mary Foster, Associated Press Writer – 6 mins ago

“NEW ORLEANS – At least two civil and constitutional rights groups in Louisiana are calling for a justice of the peace to resign after he refused to issue a marriage license for an interracial couple.

“The head of the American Civil Liberties Union in Louisiana and the Center for Constitutional Rights and Justice said Keith Bardwell should quit immediately.

“Bardwell is a white justice of the peace in Tangipahoa Parish in southeastern Louisiana. He refused earlier this month to issue a license or marry Beth Humphrey, who is white, and Terence McKay, who is black.

“Bardwell said he always asks if a couple is interracial and, if they are, refers them to another justice of the peace.

“He says children of such unions face troubling futures.”

Umm, like the President of the United States? Or Tiger Woods? Oh, never mind.

Red Emma

Why Are There Poor People?

October 16, 2009

Beck’s comment on my last post inspires this query. “[T]he existence of our poor,” says Beck, “emerges from a massively systemic problem with the way our political and economic systems are structured.” It also triggers my recall of an old album of comedian Bill Cosby about the joys of a college education, titled “Why Is There Air?” Cosby chats about the various kinds of people he met in college, from the philosophy majors who went around asking “why is there air?” to the athletes who knew perfectly well why there is air—it’s for blowing up basketballs.

Cosby, however, not having been a philosophy major himself, didn’t stop off and look at Aristotle’s multiple analysis of causality. There’s:

• The material cause: “that out of which”, e.g., the bronze of a statue.
• The formal cause: “the form”, “the account of what-it-is-to-be”, e.g., the shape of a statue.
• The efficient cause: “the primary source of the change or rest”, e.g., the artisan, the art of bronze-casting the statue, the man who gives advice, the father of the child.
• The final cause: “the end, that for the sake of which a thing is done”, e.g., health is the end of walking, losing weight, purging, drugs, and surgical tools.

So okay, the material cause of poverty is lack of resources. That’s easy. F. Scott Fitzgerald and Ernest Hemingway between them made it plain. The poor are different from us because they have less money, or none at all.

The efficient cause requires an economodicy (it’s a monstrous word, but I can’t think of a better one for justifying the ways of The Invisible Hand to man.) Maybe the Invisible Hand is the efficient cause.

The final cause: the perceived self-interest of everybody, I suppose.

The formal cause is the really difficult one, here. We tend to regard poor people as useless. In fact, they are anything but useless.

Let’s stipulate to two classes of poor people: the working poor and the begging poor. The begging poor are necessary as a spectre to frighten the working poor into continuing to work. If there were no homeless people or panhandlers, Wall Street would have to hire out-of-work actors to impersonate them. (In my conspiracy theorist moments, I suspect they did, at least in the early ‘80s.) Poverty gives people an incentive to work harder to make money for other people as well as for themselves. Without poverty, we would all be lounging in some Polynesian Eden, picking breadfruit off the trees and getting semi-dressed for the next luau.

And the working poor are necessary to do the things for which machines are still too expensive. In Saudi Arabia, where oil reserves have pretty much abolished poverty among native Saudis, they actually have to import an entire population of poor people to do their manual labor, mostly from Asia.

This explanation of the formal cause of poverty, of course, requires some entity to do the formulating. In economics, that’s a whole field of study in itself. The Invisible Hand? The Ruling Classes? I tend to the latter explanation, if only because I can’t get my mind around the notion of what an Invisible Hand can be planning. Yes, there are people in positions of power in our economy who consciously and deliberately see the existence of poverty as one among many implements creating The Workable Economy. That was, essentially, the thinking behind the developments that brought one generation after another of new workers into newly-created poor people’s jobs. First it was married women, to do the clerical work. Then it was teenagers, to flip burgers. Then it was former welfare recipients, now “reformed” into the private sector, to become temporary or part-time workers with no job security, even from week to week, and no benefits. Somewhere along the line, undocumented immigrants got into the act, to do anything American poor people wouldn’t or couldn’t do for the wages available.

Of course, most employers who pay poverty wages don’t actually like employing poor people. Poor people are fat, and ugly. They have lousy teeth and sometimes questionable personal hygiene. And they keep missing work, or being late, usually because they’re sick or their cars have broken down or somebody in the family has some dumb problem and can’t take care of it without help. Whenever possible, employers prefer hiring people who are middle-class by virtue of the earnings and assets of other family members, and who therefore won’t start living and looking like poor people simply by virtue of not having enough money. That is, the employer is looking for a subsidy from the worker’s family, in return for the inestimable gift of a job. If I show up at a Mercedes dealership with a bus token and assume that the dealer will stake me to the rest of the cost of the car, I’m pretty nervy. But an employer who pays poverty wages and expects the families of his workers to stake him to workers with the look and behavior and work habits of middle-class people is just being rationally self-interested.

Anyway, that’s why there are poor people. Beck calls this a problem with our economic structure. That depends, obviously, on what the economic structure is for. A case can be made that poverty is a solution, from some points of view.

Red Emma

Mean(s) Testing and Compassionate Conservatism

October 15, 2009

Most self-proclaimed conservatives who believe government has any legitimate role in alleviating poverty, believe that role must begin with means testing, that is, checking to make sure that any would-be recipient of government aid to the poor really is poor. They underline their case with horrifying references to “welfare queens” using food stamps to buy steak and lobster, and travelling to and from the welfare office in Cadillacs. The goal these compassionate conservatives claim to be aiming at is a reasonable one–let’s give scarce public resources only to the people who really need them. Even when public resources are more plentiful, they are still most effective when targeted to those most in need.

But the c.c.’s–who normally presume that all the consequences of any governmental program not aimed at killing the enemies of the people at home (police) or abroad (army) are unintended–seem to have lost their grip on this fundamental law as it applies to means testing. Means testing really does have unintended consequences. At least, one hopes they are unintended. (Oliver Stone probably thinks they are intended.)

First, the eligibility line for any means-tested program is always set at least a couple of notches below the income which would enable a person to purchase all of the goods and services supplied by such programs in the private sector. There is always a group of people in the middle, too poor for private health insurance but too rich for Medicaid, too poor to be able to afford a balanced diet on their own funds but too rich for food stamps, too poor to be able to afford the rent on a decent private-sector apartment large enough for the whole family but too rich for public housing, too poor to be able to afford a lawyer but too rich for Legal Aid. Naturally that group in the middle will direct their envy and anger, not upward at the legislative and regulatory bodies that set the eligibility standards, nor at the agencies that administer them, but at the people below them who do qualify. This too, we must presume, is unintended.

Second, the procedure for qualifying for such programs requires the applicant to supply humiliating and exhausting detail about his or her personal life, beginning of course with the public (or at least on-the-record) acknowledgment of being poor. Most of us would rather confess to having sex with an underage dead chicken than to poverty, these days. But the mere admission of poverty is never enough. Verification must be supplied: paycheck stubs, rent receipts, utility bills and so on. The official purpose of the ritual is to weed out ineligible applicants. But the effect is to weed out any of the eligible applicants who still retain any pride or still value their personal privacy. This mostly gets rid of applicants without dependents, since most of us will endure a lot more humiliation and intrusion to provide for our children and disabled or elderly relatives than for ourselves. Anyway, we know for a fact, and repeated studies have verified it, that nearly half of those eligible for governmental assistance to the poor either never apply for it, or drop out of the process in the very early stages. We have known it for well over 50 years. I’m with Oliver Stone on this one–we want it this way.

Third, once we have designated a program as being for “the poor” and no one else, no one else but the poor will have any interest in maintaining it, or administering it properly and effectively. Once a program has been labeled “for poor people only”, its days are numbered. Why should “we” pay for a program that benefits only “them”?

Most of us have lived with this situation so long that we respond almost reflexively, “But of course the people who need the programs can’t afford to pay for them–otherwise, why would they need them? And of course the people who pay for the programs don’t need them. The best we can do is appeal to their sense of generosity and charity. ” (We do that, of course, only after a concerted campaign to discredit those virtues.) But we literally cannot imagine any other way to distribute public benefits, except by putting the people who pay on one side of the Great Divide and the people who receive on the other, and making sure than never the twain shall meet.

Well, no, it’s not quite accurate to say we cannot imagine any other way. We have in our midst a program open to most citizens and residents of this great country regardless of their current resources, and paid for by almost all of us. It is the most popular government program in the history of this country. And it is currently under constant assault in a relentless effort to discredit, privatize, and ultimately destroy it precisely because, to most of us, until very recently, it was proof positive that government could do something useful in alleviating poverty without humiliating the beneficiaries of the program.

I am referring, of course, to Social Security. Until a decade ago, the closest thing to a means test for Social Security (or its younger brother, Medicare) was an earnings limit. Now, even that is long gone. And the compassionate conservatives–including even some “centrist” liberals–cannot stop fulminating at the thought that Bill Gates will someday be able to collect his $1,100.00 per month from the public treasury. Under current law, most of that $1,100.00 would actually be taxed away (although the value of Gates’ Medicare would not.) Most American senior citizens can live with that arrangement, because it spares them the necessity of confessing poverty and pleading for charity. But conservatives and “centrists” simply cannot swallow the idea of giving a public benefit to anyone without collecting the recipient’s dignity in return. Indeed, now that we have finally given up on the idea of privatizing Social Security, our main suggestion for “saving” it is to means-test it.

Most honest conservatives will come out and say that, regardless of where it comes from or what we call it, any aid to the poor from the non-poor is charity, and the poor should acknowledge that fact. Means-testing is one of the more effective ways of rubbing it in. Which might be acceptable, if we were willing to allow dignity to the recipients of our charity. If “poor” were not a four-letter word. If we did not, at heart, believe that all of us get what we deserve and deserve what we get. Or don’t get.

I prefer the Jewish tradition in its view of charity. To the extent that we have any resources, they come ultimately from the Holy One, Who makes all of us conduits for those resources. I like the approach of Maimonides, Writing in the 1200s in highly-urbanized Spain and Northern Africa, he is realistic, and perfectly willing to admit that there are phony beggars out there, people who claim needs they do not in fact have. The Holy One has allowed these fakers to exist, he tells us, to create a benefit of the doubt for people who refuse to give to beggars (Maimonides was realistic about those people, too.) If all the beggars out there were really destitute, he says, anyone who failed to give to one of them when s/he could afford to would be committing a grave sin. Since some of them are fakes, those who refuse to give are guilty only in proportion to the ratio of real beggars to phonies. Ultimately, he says, means-testing is the job of the Holy One.


“And Such Small Portions…”

October 3, 2009

Obama wants to lengthen the school year and the school day. Probably the school week is the next target. Like the educational experts who have been suggesting all this extra time for the last twenty years, he has several different rationales. First, of course, the original school year was set up for an agrarian society in which the kids had to be home during the summer to tend to the crops. That’s quite true, and makes the classic June-through-August vacation an anachronism. Moreover, the data are pretty clear that such a long time out between school terms really does cause most kids to lose some of the learning they had accomplished the previous spring by the time they come back in the fall. So the longer school year has some solid facts behind it.

But, as the AP article points out (, a longer school year doesn’t have to mean a longer school day: “Kids in the U.S. spend more hours in school (1,146 instructional hours per year) than do kids in the Asian countries that persistently outscore the U.S. on math and science tests — Singapore (903), Taiwan (1,050), Japan (1,005) and Hong Kong (1,013). That is despite the fact that Taiwan, Japan and Hong Kong have longer school years (190 to 201 days) than does the U.S. (180 days).” And AP isn’t even looking at European nations that start kids in school later (in Denmark and Sweden, as late as age 7), or with shorter school days than ours (in France, 8:30 AM to 2:30 PM with a 2-hour lunch break until age 11), that still have better literacy and graduation rates than we do. Whatever it is that American schools are doing in the classroom, it is not at all clear that more of it would be helpful to the students. It sounds too much like the irate restaurant patron who complains that the food is terrible and the portions are too small.

In fact, anyone who has worked with adult literacy programs can verify that it shouldn’t and usually doesn’t take anywhere near 12 years—even with current summer vacation and school day schedules–to teach what most high school graduates come out knowing. Note also that summer vacation has already suffered considerable abbreviation in many school districts. The whole idea of Labor Day as the last long weekend of summer (meaning, presumably, children’s summer vacation) now makes no sense at all. Almost all public schools start up around the middle of August these days, and many don’t shut down for the summer until nearly the end of June. (Which is a good argument for moving Memorial Day into late June and Labor Day into early August, but I digress.)
Compressing the school year even more than we are already doing may make sense, but lengthening the school day really doesn’t.

In fact, the justifications for a longer school day are entirely different, and a lot less plausible, than those for a longer school year. Obama (and most of the other people one hears declaiming on the subject) are mostly concerned, not about education, but about safety. “Those hours from 3 o’clock to 7 o’clock are times of high anxiety for parents,” [Secretary of Education Arne] Duncan sa[ys]. “They want their children safe. Families are working one and two and three jobs now to make ends meet and to keep food on the table.”

Yes, those safety concerns are valid. But what do they have to do with school? Why should professionally-educated adults who should be home grading today’s papers and preparing tomorrow’s lessons have to function as baby-sitters to keep Johnny from getting shot? That’s the job of recreation directors and supervisors, or at worst, of cops. And even more to the point, why should kids have to be on task and programmed for 8 hours a day, just because their parents are? At that point, the arguments against child labor start to fade into insignificance. When do the kids get to just “chill with their friends”? Or have we already accepted the premise that an unsupervised, unprogrammed child is a child at risk of crime, sex, drugs, or obesity, and that the only way to save our children from these dread fates is to subject them to the same scheduling that has already shredded the emotional and physical health of their parents and destroyed the family life that used to keep the children safe?

But, now that we have decided that all more or less able-bodied adults must spend at least 40 hours a week being paid to work for somebody else, we have also decided that anybody who looks after children has to be paid. For more recent data, see: and

And, no, none of this has anything to do with feminism. It is mainly connected to stagnant wages and rising fixed living costs such as housing, health care, transportation, and education. Most stay-at-home mothers don’t view themselves as having chosen to stay home. See:,0,3742466.story for why most stay-at-home mothers are younger, less educated, and have more children than the rest of the female population, so that their prospective earnings are lower and their child care costs would be higher.

I mention these stories because they have all hit the Web in the last 24 hours. But they do a lot to prove my point that the main reason we really want our kids to spend more time in school is that it’s the cheapest way to free parents to put in 40+ hours a week earning money. Once cryogenics has been perfected, we can keep our kids in a deep freeze until a couple of years before they are old enough to work. We can spend the intervening time teaching them what today’s high school graduates know, and go on from there. O brave new world, that hath such people in it!