It is a well-recognized truism that even the most carefully drafted and detailed text can never convey a fully determinate meaning for all possible purposes.¹

This is as true of what I’ve been writing lately on Proposition 19 as it is of Proposition 19 itself.

Before I go on, I want to note that a number of individuals have been in contact with me more-or-less “privately,” in addition to in the comments to my last two articles on Proposition 19.  Many of these people are anti-Proposition-19 and have found some validation in the articles I’ve been writing.

In part, then, I wanted to write another article to provide a little balance.  I’m worried that perhaps my comments about potential weaknesses in Proposition 19 are being “over-interpreted.”  So there’s no doubt, I do have concerns on Proposition 19.  And I have not yet decided how I will vote on Proposition 19.

In this article, I want to re-visit some of what I’ve been saying and try, once again, to explain my concerns about Proposition 19.

Perhaps, as some are saying, Proposition 19 could be passed and the problems could be fixed later.  There’s certainly an argument for this, especially since the primary danger looks to be for medical marijuana cooperatives, collectives and dispensaries.

As I said in “Blowing Smoke: Proposition 19 & Medical Marijuana,” I think Proposition 215 being passed has caused more people to develop a favorable attitude towards legalization generally.  So it could happen that even if Proposition 19 is flawed, passing it would eventually — perhaps even within one election cycle — get us to where we might “really” want to be.

I also want to re-focus readers on the “even if” of that last sentence.  I wrote in my second article on the topic, “Toke It Easy, Man: More on Proposition 19,” that

[I]t may constitute a step backwards for those people who actually need marijuana, as opposed to those who “merely” wish to exercise their rights to recreational use.²

I don’t think I’ve ever said that it definitely is a step backwards.  However, I have noticed that in trying to defend my position, I’ve started to slip over the line to thinking that it is a step backwards.

To the extent that I may have slipped over that line, I want to back up again.  I do not know that Proposition 19 is, in fact, going to erase the gains made in California as concerns medical marijuana law.  There are good reasons for believing, at the state level, Proposition 19 would not erase the gains made.  It’s the right-wing conservative provincial wannabe hick parts of the state — basically where I practice criminal defense — that I’m worried about.

So what am I saying here?

I believe I’m saying the same thing I stated in my other articles: I have concerns about the potential ways in which Proposition 19 could be abused by those who do not agree with the majority.

The majority which passed Proposition 215 may have agreed on their intent.  And the majority of proponents of Proposition 19 may also agree on their intent.  At least, the drafters of 19 and their followers may agree on their intent.

But I doubt it, partly because I agree with the William Nelson Cromwell Professor of Law and Associate Dean for Curriculum at Stanford Law School, Jane S. Schacter.  In a 1995 law review article titled “The Pursuit of ‘Popular Intent’: Interpretive Dilemmas in Direct Democracy,” she stated:

It is fallacious to ascribe meaningful intentionality to a multimember body.³

Some supporters of Proposition 19, not happy with how Proposition 215 has allowed for the development of collective farms, cooperatives and dispensaries in their locale, may wish to see Proposition 19 passed so that they can try to carve out a little “pot-free” city.  Maybe their thinking is,

Let’s allow the rest of California to go to pot.  But if we vote for this Proposition, it says local governments can decide for themselves.  We could prevent the evil weed from being available in our city!

Using arguments I raised in my previous articles, maybe they could do this.

And the “intent” argument those who disagree with me promote doesn’t necessarily prevent this.  Part of the reason it doesn’t is that we don’t even really know what the courts will think the “intent” of the voters, as opposed to the promoters, was on this issue.

There is plenty of language — for a court that wishes to accept the point — that the drafters of Proposition 19 intend a loosening of laws relating to marijuana.  The drafters do not appear to wish to see Proposition 19 reverse the gains of Proposition 215, either deliberately or accidentally.

For example, under proposed subsection “B. Purposes,” both items number 7 and 8 suggest that the permissive aspects of Health & Safety Code sections 11362.5 and 11362.7 through 11362.9 would not be affected.  The specific language is not the infamous “notwithstanding any other law” phrase that Richard Lee tried to point me towards.  In both places, after suggesting what would be illegal, or what limitations a city could place, the respective Purposes state:

…except as permitted under Sections 11362.5 and 11362.7 through 11362.9 of the Health and Safety Code.

But Proposition 19 is a long and complex piece of legislation.  And as I previously noted, it contains laws applicable to private individuals (proposed H&S section 11300) and laws applicable to commercial activities (proposed H&S section 11301).  For reasons given previously, I continue to be unconcerned about the impact of 11300 upon medical marijuana patients’ rights; it is 11301 which concerns me.

Even under current law, cooperatives and dispensaries are technically commercial in nature.  As also previously discussed, the fact that current law arguably allows them — at least cooperatives — to exist hasn’t stopped local governments from trying to shut them down via local zoning ordinances or public nuisance laws.  Now comes section 11301 which (I’ve said this all before) supersedes the laws implemented by the CUA and MMPA because it is an initiative of the people (thus not susceptible to being struck down as a portion of the MMPA was in People v. Kelly) and because it is later in time.

Section 11301 — I think — allows local governments to do what they could not really do before: stop people from operating commercial enterprises within their locale, including cooperatives and dispensaries.

Maybe a court — maybe all courts — will strike down such ordinances based on an “intent” argument which says Proposition 19 only intended, and the voters who voted for it only intended, that restrictions on marijuana be loosened and not tightened.

I still maintain this is not clear.  Much of this “intent” argument — that the law is intended to loosen and not restrict — is being made in unofficial ways.  The drafters and proponents of Proposition 19 are trying to convince the public of it.  They are using a variety of media, including rallies — one was just held in Anaheim yesterday — as well as advertising.  But as Schacter’s study noted:

[C]ourts widely ignore media and advertising as sources of popular intent even though…social science research about voter behavior in ballot campaigns suggests that voters most regularly consult and seek guidance from these sources.⁴

Instead,

[C]ourts widely subject citizen-lawmakers to the same standards as legislators and generally confine their search to sources commonly used in construing legislative law.⁵

The one exception, Schacter notes, is “official ballot materials prepared in connection with proposed initiatives.”⁶  Even there, however, precedence is given to the statutory language contained within the initiative.⁷  Ironically, this is the part of the ballot materials most often ignored by voters.⁸  Furthermore, California courts only rely on ballot materials to decipher “intent” 53% of the time.⁹

No matter how you slice it, the sources for judicial interpretation of Proposition 19′s “intent” — should the need arise — are primarily going to be the normal, formal, texts, such as the law itself and other laws or treatises the courts deem relevant.  And here, the “intent” is ambiguous.  For while Proposition 19 states that it “intends” to loosen restrictions on marijuana cultivation, possession and use, and states that its purpose is to benefit everyone by regulating cannabis like we do alcohol (e.g., by legalizing it, with restrictions and conditions), Proposition 19 also allows local governments to “opt out.”  When they don’t “opt out,” it allows them to “control” and “regulate.”

Both those latter intentions or purposes or whatever you want to call them — for they come in the actual text of the proposed laws themselves — put a set of brakes on the intent to loosen and the purpose to legalize with restrictions and conditions.  Both recognize and make allowances for the possibility that a local government may be hostile to the basic stated intent and purpose of Proposition 19.

Okay.  So where does that leave us?

I think it leaves us with potentially most of the rights conferred upon medical marijuana patients intact.  At least when it comes to what they, themselves, do.  Arguably, it allows local governments to legislate cooperatives and dispensaries out of existence, which is something that under current law might not be possible.

What we need, I think, is a voter-sponsored initiative that spells out what local governments can and cannot do with respect to this issue.  The Legislature might not be able to fix it, for the same reason they could not place limitations on quantities via the MMPA: Proposition 19 is an initiative.  (On the plus side, Proposition 19 allows what I call “one-way amendments”: they can loosen any limits Proposition 19 specified, but they cannot be more restrictive.  Thus, if the Legislature had the political will and stamina, they could possibly stop local governments from passing restrictive ordinances.  But then we get into a whole new ball of wax regarding what requirements the Legislature can place on cities, which generally have some say over how they govern themselves.  This article is long enough already.)

The bottom line, though, is that none of my articles should be taken as stating — as one commenter asked — that Proposition 19 is terminally flawed.  As I noted in my own response to her, I don’t think that I’d go that far.  I do worry that there are potential issues we should be looking at more closely.

Lastly, I intend perhaps a couple or so more articles on Proposition 19.  So if you’ve found what I have to say interesting, stay tuned.  Now that I have a copy of what will be going out in the Official Voter Information Guide, I’m going through it all more carefully.

If you ask me, both the Proponents and the Opponents are trying to mislead voters.

1. Neil MacCormick, Rhetoric and The Rule of Law: A Theory of Legal Reasoning (Law, State, and Practical Reason) (2005) 122.
2. Emphasis in the original.
3. Jane S. Schacter, “The Pursuit of ‘Popular Intent’: Interpretive Dilemmas in Direct Democracy” (1995) 105 Yale Law Journal 107, 124.  She went on to point out that the courts don’t get this; the rhetoric of judicial interpretation still endorses the idea of some monolithic “voter intent” when it comes to initiatives and is even stronger concerning the multimember legislative bodies.
4. Schacter, supra, at 111.
5. Id. at 120.
6. Ibid.
7. Id. at 130.
8. Ibid.  As Schacter also here notes, even ballot materials are usually ignored by voters!
9. Id. at 122.

Mike Cernovich, over at Crime & Federalism, has been doing a bit of writing recently about — well, about social problems which are not necessarily — at least not straightforwardly — related to the law.  At first, I was disinclined to read, because the “law dog” in me was hungry.  I wanted to read something specifically discussing something interesting, but related more directly to the law.  But Mike is such an interesting writer that I kept on reading article after article.  (I periodically play “catch up” with the blogs, like his, that I like to read, but just can’t get to every day.)

Mike’s articles like “American Rage” and “Is Omar S. Thornton a Black Joe Stacks?” are thought-provoking looks at racial and economic disparity within the United States.  By the time I reached “Links: The United States is a Farce Edition” and “Illegal Immigration: Self-Interest Disguised as Morality,” I knew I was going to write this article.

The light went off because I’ve been thinking for some weeks about something specific a judge did in one of my cases.  Something with which I’ve been struggling to come to grips.  Something that demonstrated a clear-cut bias.  You know, like having an ex parte discussion with the victim, who just happened to be a law enforcement officer, and then trying to call me to task for what the officer told him.

And then there was an article about gay marriage and the utter destruction that Vaughn R. Walker has allegedly brought down on the heads of all who value marriage and rational societies by “de-legitimizing” marriage.

Now there is the new debate over illegal immigration and the desire to “fix” the problem by fucking up our Constitution.

My brain sometimes latches onto what I call “an inchoate idea” — something I realize I’m thinking about, but cannot quite put into words — and then it just “stews.”  While it’s stewing, anything else I read seems to be read on multiple levels.  One is the level of simply understanding what was written.  Another is me trying to think what I think about it.  But when something significant is “stewing” inside me, as it has been, then everything I read is somehow savored in a slightly different way than it might be otherwise.

It’s kind of like adding a “new” spice to a sauce while cooking.

And just like that, I don’t always know what’s going to come out of it.

What I think I’m getting right now is the flavor of recognition.  I know now why all the above articles — and what I thought previously was inordinate dwelling over a judge’s mistake — seem like they go together for me.

It’s the subtle interplay of a lack of understanding on the part of the judiciary and a lack of education on the part of “the People.”

Both are part of a recipe for disaster.

In McIlheran, aside from the obvious ignorance and bigotry, I see a complete lack of basic knowledge regarding the underpinnings of these United States.  McIlheran would, no doubt, think I have this wrong.  From what I can tell, again aside from the obvious ignorance and bigotry, he mistakenly thinks that marriage “always and everywhere” has necessarily been “between complementary sexes: not identical ones.”

Ask any classically-trained anthropologist how true that is.  Or ask a historian. Same-sex marriages have a long history. Even in “Western Civilization.” I’m not going to veer into a detailed disquisition on that.  Suffice it to say if you seek, you shall find. Same-sex unions are not new; neither are same-sex marriages.

And, in all frankness, it would not matter if McIlheran were right as concerns whether marriages have always involved one man and one woman in the past.  He’s not right.  But it doesn’t matter.  Because our United States leaves open the possibility for free people to decide to change that by marrying whomever they wish to marry, even if that person happens to be of the same gender.

What I want to focus attention on, though, is not the issue of same-sex marriage.  I want to talk about what kind of country we have here.  How does the United States work?  Or, rather, more specifically, how does law and the legal system work in the United States?  How come, for example, “the will of the voters” can be “thwarted” by one judge?  One! And why is an allegedly gay judge allowed to make such a critical ruling on whether or not gays and lesbians can legally marry people of the same gender as them?

The first thing any intelligent person should be able to put to rest is the question of whether or not Judge Vaughn Walker’s being gay matters. “He should have recused himself from this case since he is a practicing homosexual,” some have said.  If this actually is true, then why is the obverse not true?  “He should have recused himself from this case since he is a practicing heterosexual,” makes as much sense.

I mean, if someone’s sexuality is going to prejudice him favorably toward this issue, why would it matter whether he was gay or straight?  Is there not as much danger of a heterosexual judge refusing to correctly analyze and adhere to precedent as there is for a homosexual judge?  Do heterosexuals automagically do the honorable thing vis-á-vis homosexuals just because they’re heterosexual?  Or do we have to have a pre-trial, wherein the judge is analyzed by psychotherapists and determined not to harbor any ill feelings towards homosexuals before being allowed to judge them?  Should African-Americans only be judged by non-African-American judges?  Is it good enough for a white judge to sit in judgment of a white person accused of a crime, so long as one of them is Irish and the other is Polish, German, or Scandinavian?

This idea is ludicrous.  But I understand how it is that some people give it credence.  The fault lies with our judges.  Today, increasingly, it really does matter “who the judge is.”  The judge whose behavior has bothered me for so long is proof of that, if you ask me, as are numerous others.

Hell, judges actually promote this idea.  “I am a Law and Order Judge!,” they proclaim when they run for office.  By this they mean that they are pro-prosecution.  In fact, the posters with which they litter our towns will often proclaim “Former Prosecutor,” or just “Prosecutor,” in words nearly as large as their own names.  They’ll also trumpet that law enforcement supports them.  You absolutely will never hear a candidate for judgeship brag about having been a Vigorous Defender of the Accused.  You won’t hear that law enforcement hates them for forcing them to obey the Fourth, Fifth, and Sixth Amendments.  Not going to happen.

Nor do they actually state that they will follow the law without regard to either their own personal predilections, or the nature of the accused individual.  After all, particularly as pertains to the latter point, this could make it appear that they’re willing to coddle criminals.

If judges actually followed the law, regardless of their own personal bent, what they said while campaigning would not matter.  They don’t, though.  And their campaign statements are intended to communicate that point to us.

Thus, judges having taught and promoted to us this truth about how the system works have earned our distrust, our enmity, regarding the way they rule.

It is unfortunate that even the exceptions — the judges who do not allow their own preferences to control — get swept up in this sentiment, because there are so many judges who indulge their preferences rather than follow the law.  But you can’t have the majority of judges brag to the people at election time that they’re the type of person who will slant the rules towards the prosecution and then act all surprised when the people get upset that not all judges will slant the rules the way the people want.

I’m not saying that a judge’s personal preferences should never matter.  To some extent, it is unrealistic to assume that a judge’s personal preferences will not have an impact on how he judges.  Human beings are not capable of completely divorcing their own values from the judgments they ultimately make.  Judges, however, should try harder.  And the pro-prosecution bent of contemporary judges is proof that they do not.

Wha–?  Huh?  Why do you say that a pro-prosecution bent proves judges do not try to divorce their own values from their judgments?  The answer is simple: the laws of our land were originally slanted in favor of accused people.  On purpose.  Our Founders knew that the power and resources of an individual accused person are no match for the power and resources of the government.  This is true even in this time of budgetary constraints.

That old saw about everyone being entitled to a fair trial?  That’s everyone accused of a crime. There’s no constitutional guarantee for the government to get a fair trial.  You want to talk about rights that aren’t found in the Constitution?  There’s a right that’s not found in the Constitution!

Nor should there be.

The reason for this is that being accused of a crime and being prosecuted by the government comes with some serious risks for innocent citizens.  The mere fact that someone has been arrested works against them.  Do you really think the legal fiction of “presumed innocent” applies in our courtrooms?  You haven’t been called for jury duty, then.  You haven’t sat in a courtroom as a lawyer and tried to figure out how to deal with potential jurors who sometimes honestly state, “Well, he was arrested.  He must’ve done something.  He might not have done exactly what he’s accused of, but he did something or he wouldn’t be here.”

Or dishonestly refuse to state it, though they think it.

At any rate, that’s a presumption of guilt.  At least as to “something.”  It is not a presumption of innocence.

Over hundreds of years — with respect to some issues, longer than that — legal experts have learned that the best way to ensure that innocent people aren’t convicted is to tip the scales in their favor.  It’s supposed to be hard to convict someone.

But it’s not.  With all due respect to the prosecutors I know who are good attorneys, you do not have to be a good attorney to win cases if you are a prosecutor.  And there are a number of prosecutors who are most decidedly not good attorneys who prove this every day.  In some cases, you merely need to make the accusation.  (Sex crimes involving children are the most obvious place this is true, but it’s true in many other cases as well.)  Good defense attorneys can win cases.  But a prosecutor has to really screw up for a bad defense attorney to win.

That’s why our Founders, who knew they were establishing a government of laws, and not of men, tried so hard to hamstring the government, to make sure that trials were unfair — to the government.

Governments are typically more powerful than people.  No matter how hard you try to limit them, this is just how it is.  This makes governments potentially dangerous to ordinary people.  Life, liberty, and the pursuit of happiness is not something we can expect to enjoy in the face of an unrestrained government.

This is where the other part of the misunderstanding I wish to talk about comes from.

I have noted that our system was deliberately slanted in favor of accused persons.  This is because, as I mentioned above, it was slanted against the government.  Restrictions were placed on what government could do.

But this is true not just in the arena of criminal defense; it is true with respect to all activities of the government.  Our government was deliberately limited so as to prevent it from trampling over us, whether it was in a criminal trial, or any other area of our lives.

Now, in the United States of America, it has long been believed that the government is a government “of the people, by the people, for the people.”  This is partly true.  This is how it was intended.  We are the government, in theory.  We are in control.

In California — as well as some other states — this form of government has found extreme expression in the Initiative Process.  One or more of “we, the People,” can propose a new law.  If we get enough other people to think it’s a good law, or at least sounds good enough, then “the government” will put it up for a vote by the rest of us People.  And if it passes, it becomes the law that theoretically applies to everyone else, even those who didn’t vote for it.  Even if almost half of us did not vote for it.  It will still apply to all of us.

In fact, it could be a law that only applies to certain ones of us, like gays and lesbians.  Every single gay and lesbian person in our state could vote for, or against, that law, but still lose.  So a law could be passed that only affected every single gay and lesbian.  Every single gay and lesbian could vote against that law.  But it could still pass.

What a great way to oppress people we don’t like.

But the people who founded this United States of America knew that this could happen.  And they didn’t think that was fair.  So when they created the United States of America, they deliberately gave it only certain powers.  The United States of America — the government — we, the People — could only do certain things.  Our collective ability to pass laws only goes so far, because our power only goes so far.  There are limitations.  This is what is meant by “a limited form of government.”

The United States Constitution, which constituted, or created, our nation, is all about limiting government.  Certain powers are given to the government to allow it to do what it necessary to protect our freedoms — to ensure for each of us life, liberty, and the pursuit of happiness as we see fit with minimal necessary interference — and no more.

Fears that limiting the power of government — man, were those guys prescient! — would not be enough caused certain of the Founders to insist upon a Bill of Rights.  This was done not because we needed to know what rights we had.  It was already believed that all of us were created equal and that all of us equally held unalienable rights — rights that no one, not even other voters — could trample.  These rights included, among others, the (again) unalienable rights to Life, Liberty, and the Pursuit of Happiness.

Which, I guess, would include marriage which, for awhile, for many people, brings happiness.  Or so they say.  (In my own life, this appears to be true, but, hey, who am I to speak for everyone else?)

And that brings us back to judges.

In our United States of America, it is judges who interpret the Constitution.  They, as Chief Justice Evan Hughes once put it, are “the safeguard of our liberty and of our property under the Constitution.”  Benjamin Franklin and Thomas Jefferson would have gone farther, downplaying the protection of property; replacing that idea with happiness.

It is imperative, judges, that you remember that our United States were founded on the principle that governmental power is to be mistrusted; it is not to be favored; it is to be limited, by you, judges, both inside and outside the courtroom.  Our Constitution was meant to ensure that.  And you are meant to uphold our Constitution.

“For you will be treated as you treat others.  The standard you use in judging is the standard by which you will be judged.” (Matthew 7:2.)

Some comments indicate an incomplete grasp of what my original post was intended to point out: there is a possibility for Proposition 19, as worded, to undo the protections of the existing rights of medical marijuana patients.

This post, therefore, is another attempt to focus attention on that point and explain why, regardless of the intentions of Proposition 19 proponents, Proposition 19 may contain within it the seeds to undoing, at least in part, what was accomplished with Proposition 215, the Compassionate Use Act, which legalized marijuana in California for medical patients who needed it.

I am left with the impression that, like the original writers of Proposition 19, many commenters believe that governments will willingly acquiesce to both the stated intentions of Proposition 19 and what they believe are the wishes of the voters.  This does not always happen.  This is why, in the old days, laws were written by lawyers with particular experience writing laws.  Writing laws is a science which aims at ensuring that the laws themselves are not susceptible to misinterpretation or misapplication.  It is not simply a matter of knowing something about marijuana — e.g., how it is used, grown, transported, sold, or otherwise operates in the real world — and knowing the goals that you are after.  It’s also about knowing how laws work, or don’t.

There actually are people in the world who want their particular point of view to control what happens, regardless of what you, me, or anyone else may wish.

Please understand, my questioning of Proposition 19 is not aimed at trying to prevent the legalization of marijuana; i.e., I am not trying to shoot down Proposition 19 in order to prevent what its proponents wish will happen.  Quite the contrary, I firmly believe that marijuana should be legalized.  I personally have never benefited from marijuana (except as an attorney who gets paid to defend people who try to utilize it in accordance with medical marijuana objectives and laws).  I don’t use it.  But I know numerous people who do, including some about whom I care very much.

Even if there were not people about whom I care very much who use it, I would want it legalized.  At heart, I am libertarian.  I believe government should be as small as possible and regulate our lives as little as possible.  I would be quite happy in a world with very, very few laws and only think those directly related to discouraging and punishing harmful activities should exist.

Nor do I have ulterior motives because I sometimes make money defending medical marijuana patients.  Frankly, even the proponents of Proposition 19 at the recent conference I attended referred to the Proposition, jokingly, as “the Marijuana Lawyer’s Full Employment Act.”  If Proposition 19 passes, attorneys like me will probably get even more clients, not less.  So I’ve no business reason for wanting to see Proposition 19 fail, either.

My current tendency to think Proposition 19 is not a good proposition is based upon my fear that it may constitute a step backwards for those people who actually need marijuana, as opposed to those who “merely” wish to exercise their rights to recreational use.  I think people should be able to do both, but I think medical marijuana use is much more important.

Because, as I said, there are people who do not share my views, who want their views to be controlling, regardless of any law that might try to prevent them from doing so, I have concerns.

Some commenters to my previous post make a lot of noise about “the intent” of Proposition 19.  Their statements about the intent of Proposition 19 appear to be accurate.  I don’t know that I’ve ever denied that, or that anyone has heard me object that people making arguments about “what the intent is” are wrong.

I am pointing out that intent is not enough.

I practice law in Fresno, California. My practice covers Fresno, Tulare, Kings and sometimes (ugh) Madera counties.  These are some of the most conservative counties in California.  In the “red state/blue state” drawing of maps, if all California were like the counties in which I live, California would be red, not blue.  The deepest, darkest red.

Law enforcement, government officials, and ordinary citizens in our area who do not “appreciate” marijuana, who do not like marijuana, do not care what the intent of Proposition 215, (possibly) the MMPA, and the now-proposed Proposition 19 may be.  They do not want marijuana in their backyard; they do not want marijuana in your backyard; they do not want marijuana in anyone’s backyard.

Growing it indoors doesn’t change the equation much.

It is important that any proposition intending to legalize marijuana keep this in mind.  Laws that intend to do things that those with power do not want done are not automatically successful.  Look at the civil rights war if you want a lesson on that issue.  Forget intent: laws requiring the integration of schools in the South during the 1960s were seldom effective in and of themselves.

I know.  I lived there.

So when one of my commenters, Dag, valiantly and with voluminous quotation of Proposition 19 and other texts attempts to argue for the intent of the Proposition, he misses my point.

I know, I know.  People hate to hear that they’ve missed the point.  The response is, “No! I did not miss the point! I tried to show you that the point is wrong!”

Okay.  You missed the point.  You cannot use the language, which I have already acknowledged, stating what the intent of the law is, to counter my argument that the intent of the law is not enough to protect against those who do not like what the law intends.  While the intent of the law is important to those of us who wish to see that intent followed, it is irrelevant to those who do not.

More importantly, while the intent of the law assists in helping to interpret the law, the intent of the law is not the law.  This is the primary weakness of Proposition 19.  A lot of time and “ink” (so to speak) may have been spent on laying out the intent of the law.  If the plain language of the law itself allows something contrary to the intent, there is a problem.

One point proponents of Proposition 19′s “intent” miss is this: the laws to be implemented by the Proposition do not only “limit the application and enforcement of state and local laws relating to possession, transportation, cultivation, consumption and sale of cannabis”; they also introduce their own limitations relating to possession, transportation, cultivation, consumption and sale of cannabis.

Furthermore, one glaring statement of Proposition 19 should serve to demonstrate that — as far as its intent — it hopes to do that which cannot be done.  The Proposition states that, among other things, it intends to limit “application and enforcement of state and local laws” which might be passed in the future.  This is something that simply cannot be done.

Think about that.  A law is passed today.  That law states that any other laws that the legislature, voters, or anyone else may wish to pass regarding its subject matter in the future are intended to be limited by the law which is passed today.  Thus, for now and forever, anyone trying to pass any law that hasn’t even been thought of as being necessary today cannot get it passed in the future when it is decided that it is necessary?  Or that this today law intends to limit that future, as yet unthought-of, law?  No matter what it might be?  Good or bad?  And we believe someone is going to be bound by that?

Not even the United States Constitution does that. While the Constitution does limit what governments can do — and, despite the stupidity of anti-gay-marriage assholes, it also limits what voters can do — it does not limit the ability to pass laws in the future which will be contrary to the Constitution.  It simply requires that before that can be done, we would have to amend the Constitution to allow such laws.

Even that isn’t always required, as far as our government is concerned.  Consider that our elected officials properly believed a constitutional amendment was required to make alcohol illegal, but decided no such amendment was needed to make marijuana (and other drugs) illegal.  Consider the fact that the Constitution is ignored by our government, particularly when it comes to the so-called War on Drugs, on a daily basis.  The War on Drugs is the number one reason for the desecration, the shredding, the loss of the protections of our Constitution and its Bill of Rights.

And we think this drug law will be different because it contains a lengthy statement of intent?  If anything, history should teach us that a law that intends to remove a drug from the list of targets in this long-running, empire-building, military-industrial-complex-driven war would need to be as careful and specific as possible in stating what the law itself will be.

But I digress.

Dag states, among other things, that “since there is no specific language exempting 215 from the intent to limit clause 215 is unaffected.”  This is patently false.

The Proposition specifically allows local governments “notwithstanding any other provision of state or local law,” to “control, license, regulate, permit or otherwise authorize, with conditions,” various activities necessary to obtain, grow, or consume marijuana.

“Notwithstanding any other provision of state or local law” means that no other state or local law — including the laws implemented by Proposition 215 — prevent local governments from passing new local ordinances that control, license, regulate, permit or otherwise authorize, with conditions, the various activities designated in the proposed Health & Safety Code section 11301.

Anyone who thinks this does not mean that local governments won’t try to place limitations on marijuana users — including medical marijuana users — needs only to stop for a moment and remember what happened with the Medical Marijuana Program Act passed by the legislature after Proposition 215 became law.

Among other things, the Medical Marijuana Program Act, or MMPA, caused all medical marijuana users who wished to take advantage of the Compassionate Use Act and theoretically avoid arrest to register with the government.  Now, I know, some people don’t care about their privacy.  They don’t care if the government puts cameras everywhere, quietly asks for information on their Internet use, or keeps track of who smokes dope.  After all, as long as you aren’t doing anything illegal, you shouldn’t even care if the government posts a tape recorder and video camera inside your car and home just to be sure, right?

The second thing the MMPA tried to do was place limits on medical marijuana users which the Compassionate Use Act had not done.  The Compassionate Use Act said medical marijuana users could possess or grow amounts reasonably necessary for treating their medical issues.  The legislature thought that was “too vague,” so limitations were added by the MMPA.  That some patients needed more than the limits allowed was irrelevant.  Fortunately, the California Supreme Court overturned that limit in People v. Kelly (2010) 47 Cal.4th 1008 [222 P.3d 186].

Do not think this means that Dag and the others are right.  Do not think this means “intent wins.”  That is not what the Kelly Court said when it removed the limitations the MMPA had created.  The Kelly Court looked at the actual wording of the law itself.  The Kelly Court noted that the Compassionate Use Act could not be modified by the legislature without the approval of voters. That’s how initiatives work in California.  Unless the initiative itself allows the legislature to change what the initiative allows, the legislature cannot do so.  Since the Compassionate Use Act did not give permission for modification, the legislature could not modify it.

As it turned out, the Compassionate Use Act actually specified a limit to how much marijuana could be grown and possessed.  The limit was the amount reasonably needed by the patient.  So when the MMPA tried to limit that to a specific amount, that was an illegal modification of the Compassionate Use Act.

Proposition 19 specifically undoes that.  Proposition 19 is an initiative.  It therefore may legally modify the Compassionate Use Act.  It does this by permitting local governments, “notwithstanding any other provision of state or local law,” to pass their own laws regulating and controlling marijuana.  You can read it this way: “No matter what any other provision of state law, such as the Compassionate Use Act, might say, local governments can do what section 11301 allows them to do.”  That is, local governments can “control, license, regulate, permit or otherwise authorize, with conditions,” the activities necessary to obtain, grow, or consume marijuana.

Remember, Kelly did not stop the legislative attempt to limit quantities of marijuana that medical marijuana users could grow, possess, or transport because the limitations were contrary to the intent of the Compassionate Use Act.  Kelly stopped the legislature because of the wording of the law itself, which had already provided a limit on quantity.

The concern I am raising about Proposition 19 is not that it has bad intentions.  It doesn’t.  It has good intentions.  But the proposed law was apparently written by someone who fails to completely grasp the ways in which those who do not approve of marijuana might try to legally thwart that intent.

By allowing local governments to control and regulate cultivation, transportation, sale, and consumption of marijuana “notwithstanding any other provision of state or local law,” including the provisions of the state laws known as the Compassionate Use Act, Proposition 19 potentially allows anti-marijuana local governments to place limitations on everyone who uses marijuana, including medical marijuana users.

And the mere fact that my argument — even if you don’t like it — makes sense shows that this is a danger.  When — not if — some local government tries to pass an ordinance that effectively makes it difficult, or impossible, to grow or obtain medical marijuana, some court could very well look at this the same way I just did.

I hope they don’t, but there’s nothing in Proposition 19 that prevents it.

The meeting was somewhat informative, but when it came to addressing questions of significant concern to my medical marijuana clients, I guess I’d have to say there was a lot of smoke being blown — and it didn’t come from any high-quality buds.

The meeting was, in many senses, quite informative.  Speakers included Assemblymember Tom Ammiano from the 13th District of California, a number of attorneys working for various organizations that deal with drug policies, and even the Sheriff of Mendocino County, Thomas D. Allman.

One question that did not receive a full answer, though, had to do with the intersection of Proposition 19 and California’s current medical marijuana laws.  I attempted to ask the question, but I stood up too late.  I was waiting, under the erroneous assumption that someone would address this important issue without provocation.  However, once I realized that the mantra of the people presenting was that Proposition 19 was either not going to impact medical marijuana users, or that it would improve things for them, and that apparently they subscribed to the theory that if you repeat something often enough, that alone makes it true, I decided to ask my question.

As I said, though, I was too late; I didn’t get the chance to pose my question publicly.

Fortunately — or so I thought –  Richard Lee, the so-called “grandfather of the medical marijuana movement,” was present.  Surely, he can answer my question.

I stopped Mr. Lee as we were leaving the meeting.  I introduced myself.  He shook my hand and I asked my question.  “How will Proposition 19′s proposed limitations on amounts people can own or cultivate impact current medical marijuana laws?”  Perhaps — and based on the responses of Mr. Lee and the two people accompanying him, I suspect this is the case — he’s grown tired of hearing this question.  Perhaps he was in a hurry.  Maybe he just always comes across as irritated and angry.

Perhaps he just needed to chill and toke before being able to fully appreciate my question.  I don’t know.  I’m just trying to be charitable.

Suffice it to say that Mr. Lee immediately began trying to move on, as he barked out that the language of the initiative, wherein it states, “Notwithstanding any other provision of law…,” meant that Proposition 19 would not negatively impact existing laws.

A woman accompanying him, who I believe may have been Christine Wagner, smilingly shoved some cards at me and referred me to “the FAQ on our website” for more information.

The card indicates Christine Wagner is a lawyer, which gave me hope, because surely an attorney would not point me to an answer that wasn’t an answer, would she?  Well, maybe!

Not.  The most comprehensive answer I can find on the website is nothing more than a slightly-more-clear restatement of the same bald assertions barked at me by the retreating and muttering Mr. Lee.

I’m sure you can tell I not only felt I did not get an answer to my question, but I was almost as irritated by the encounter as Mr. Lee.

The problem here, though, is not — or at least not so much — that I felt I was given a rather rude brush-off.  The problem, as I said, is that the FAQ provides no more information than was shouted over their shoulders as Mr. Lee’s group hustled down the street.  Mr. Lee appeared to be angrily muttering about “these questions.”  He’s obviously grown tired of them.

“These questions,” however, are important.  The way Proposition 19 reads, “these questions” are not addressed.  In fact, Proposition 19 appears to be capable of undoing all the work those promoting medical marijuana have done to enable patients to receive their medication without suffering consequences under California’s criminal laws.

I think it’s quite likely that Proposition 19 will trump California’s medical marijuana laws and allow local municipalities to apply restrictions that, thus far, they have been blocked from implementing by the combination of the Compassionate Use Act and the California Supreme Court.

Here’s why:

Mr. Lee and his compatriots tried to say — in the few words they threw my way — that Proposition 19 is worded to ensure that it does not impact existing law.  (I have to take it that they meant “existing medical marijuana law,” because obviously it impacts existing law.  That’s the whole point.  If it didn’t impact existing law, it wouldn’t “legalize marijuana.”)

In fact, Proposition 19 is replete with language that says, “Notwithstanding any other provision of law….”  Mr. Lee & Co. apparently believe, based on what they told me, that “notwithstanding any other provision of law” means that if there are other laws, those other laws are not overruled, altered, erased, modified — choose your poison: they say it’s not poisonous.

Anyone who doesn’t already know the meaning of “notwithstanding” can see that this is wrong merely by grabbing the nearest dictionary.  According to Webster’s Third International Dictionary, Unabridged (2002), for example, the word means “without prevention or obstruction from or by : in spite of.”

With respect to some parts of Proposition 19, this is not necessarily a problem.  In particular — and I think this is what Mr. Lee & Co. focus upon (too much) — the proposed addition of section 11300 to Article 5 of Chapter 5 of Division 10 of the Health & Safety Code probably does not encroach upon the rights of medical marijuana users.  The reason for this depends not upon the “notwithstanding” language to which Mr. Lee & Co. tried to point me, but because the words following say, “it is lawful and shall not be a public offense under California law….”

In other words, section 11300 essentially says, “Here are some things that will be legal.”  The “notwithstanding” language has the effect of adding, “regardless of what any other law might state.”  So, take Health & Safety Code § 11357 which says,

Except as authorized by law, every person who possesses not more than 28.5 grams of marijuana, other than concentrated cannabis, is guilty of a misdemeanor and shall be punished by a fine of not more than one hundred dollars ($100).

If Proposition 19 passes, this would no longer be true, because Proposition 19 says,

Notwithstanding any other provision of law, it is lawful and shall not be a public offense…to possess, process, share or transport not more than one ounce of cannabis solely for that individual’s personal consumption, and not for sale.

Assuming it passes, Proposition 19, being the newer law, trumps 11357 on this issue.  That’s a good thing, because that’s what we want it to do.  Additionally, Proposition 19′s proposed section 11300 addition does not trump the medical marijuana laws because while 11300 basically says “regardless of what any other law says, these things are legal,” it does not say, “only these things are legal.”  In other words, 11300 provides a list of some things that are legal, regardless of whether some other law says they are not.  But it’s not necessarily the only way that things can be legal.  Lots of other things, including things allowed by the medical marijuana laws, can be legal, too.

Thus, the problem isn’t with Proposition 19′s proposed addition of section 11300 to the Health & Safety Code.

There is potentially a significant problem, however, with Proposition 19′s proposed addition of section 11301.  Ironically, the reason is that same “notwithstanding any other provision of state or local law” phrase in the proposed language.  The entire relevant portion says:

Notwithstanding any other provision of state or local law, a local government may adopt ordinances, regulations, or other acts having the force of law to control, license, regulate, permit or otherwise authorize, with conditions, the following….

Remembering the meaning of “notwithstanding any other provision of state…law,” this means “in spite of what the medical marijuana laws say, a local government may” potentially adopt restrictive rules as pertains to certain activities.  The listed activities are all the activities one needs to carry out in order to obtain, or grow, or consume medical marijuana.

Right now — at least the way I read the law — local governments cannot effectively eliminate the protections of the medical marijuana laws by passing local ordinances that “control” or “regulate” them.  If they did, I think many such ordinances would arguably constitute impermissible amendments to the Compassionate Use Act passed by the People via the initiative process — something no California government can do.²  Thus, rules that some counties are passing in an attempted end-run around medical marijuana laws are probably unenforceable because they are contrary to the Compassionate Use Act, the Medical Marijuana Program Act, or both.³

Tulare County, for example, has passed such limiting ordinances.  Some of these ordinances have not yet been tested in court, but other portions of the Tulare County ordinances are already illegal and thus unenforceable.  For example, the ordinances include limitations on quantities of marijuana which may be possessed or cultivated.  But the California Supreme Court has already determined that this constitutes an impermissible amendment to the Compassionate Use Act.⁴

Proposition 19, however, will allow local governments to do what the Compassionate Use Act currently forbids them from doing.  Why?  Because the Compassionate Use Act was enacted into the law by initiative: Proposition 215.  Initiatives can only be changed by the government if the initiative itself either expressly permits that, or if the Constitution is changed in some way as to alter the initiative process.  Thus, any California government is, by law,

powerless to act on its own to amend an initiative statute. Any change in this authority must come in the form of a constitutional revision or amendment to article II, section 10, subdivision (c).⁵

However, amendments to statutes implemented via an initiative can also be amended, or even overruled, by initiatives.⁶  Well, guess what?  Proposition 19 is an initiative, also!  So Proposition 19 can amend, or even abolish, part, or all, of the medical marijuana laws, including the Compassionate Use Act voted into place by Proposition 215.

Let me be clear about something.  I’m not trying to play “hide the ball bud” here.  There is an argument against what I just said.  One could argue that 11301 says “control, license, regulate, permit or otherwise authorize, with conditions,” and that it does not say, “forbid, prohibit, or prevent.”  One can also argue that allowing local governments to place restrictions on medical marijuana would violate the intent of the laws, because “clearly” Proposition 19 is intended to loosen up, or liberate, marijuana from the strictures of State prohibitions.  “Clearly,” with this as the intent, it would not make sense to read Proposition 19 as allowing local governments to “control” or “regulate” or place unreasonable “conditions” on medical marijuana patients, or their caregivers.

Myself, I’m not comfortable sitting around hoping that local governments “clearly” understand this.  I happen to think a well-written Proposition to legalize marijuana should explicitly state that it cannot be read in a way that restricts current medical marijuana laws.  But that’s me.  And I don’t smoke pot, so maybe what I think doesn’t count.

I guess another way to see how this plays out is to vote “yes” on Proposition 19.  And then just wait until the smoke clears.

1. At the time of this blog post, the VCL main page advertised the conference, so I linked it.  As time passes, I suspect they will change the content of that website, but it still may be useful to people to know where it was.
2. People v. Kelly (2010) 47 Cal.4th 1008, 1012 [222 P.3d 186].
3. Additionally, even where the local governments do not press a criminal penalty, but merely confiscate or destroy marijuana grown “out of compliance” with local ordinances, there may be recourse under the law.  (See City of Garden Grove v. Superior Court (2007) 157 Cal.App.4th 355 [68 Cal.Rptr.3d 656].)
4. People v. Kelly, supra, 47 Cal.4th at 1043.
5. People v. Kelly, supra, 47 Cal.4th at 1045-1046.
6. Proposition 103 Enforcement Project v. Charles Quackenbush (1998) 64 Cal.App.4th 1473, 1484 [76 Cal.Rptr.2d 342].

Instead, I’ve spent some time thinking about how to move forward.

The ennui that I’ve been feeling over blogging here is not completely independent from what I’ve been experiencing in my practice generally.  But it’s particularly impacted me when it comes to writing because a significant aspect of what’s troubling me revolves around trying to make myself understood.

If I can’t make myself understood here, on the blog, in writing, where I have time to think things out, edit, rewrite, start over, and tweak until I think I’ve gotten it right…well, then something is wrong.  In spite of having been successful in pretty much everything I’ve ever tried, I’ve a tendency — trust me, a life-long tendency — to think this is my fault; that I’m not good enough.  Even when large numbers of others tell me I’m doing great, I’m prone to thinking it’s not enough.  If only I were better, worked harder, did something different, everything would come out okay.  But, here, now, I really don’t see it that way.

And that’s turning me into a different kind of lawyer, I think.  I feel myself becoming “harder”: less concerned with what others think.

In my world, that’s “Bizarro thinking.”  At least, I believe it should be Bizarro thinking.  After all, my number one job, my duty, usually involves changing people’s thinking.  Either I’m working to change the mind of a prosecutor, the mind of a judge, the mind of a juror, or I’m working to change the mind of my client.  Convincing people of things is part and parcel of what I do.  So being less concerned with what others think creates some cognitive dissonance, among other things.

While I was writing the above, for example, one of the comments that came in provided a perfect example of what distresses me most often.

Before I get into the details of that, though, let me say this:  this comment which distressed me is also one which encouraged me the most.  The author — whose blog I sometimes read, but whose name I don’t actually know — is a prosecutor.

Unsurprisingly, then, while he’s encouraging me — and please let us start off on this note, D.A. Confidential: while I was glad for all the comments left to “A Broken Fence,” I am most grateful for yours — he also notes:

I believe you need to keep writing.
That, even though when I read your posts I wonder why I bother writing myself because I feel like I’ve wandered into a section of people who mistrust me and doubt my motivations.
The legal community needs your input, your opinions, your insight.

I believe you need to keep writing.
That, even though my blood boils at some of your statements that I perceive to be unfair to good cops, decent prosecutors, honest judges.

Let me work backwards on this.

I’ve written quite a bit about bad cops.  Particularly here. The bad cops, bad prosecutors and bad judges of the world deserve every bit of vitriol I spew in their direction.  Probably more.  I’ve recently gone on record as saying that I believe the best response to most of the actions of bad cops, in particular, is for citizens to help clean up our streets by eliminating these cops.  In my opinion, if this were the late 1700s, Americans would not be the least bit confused about how to do that.

There is a danger in my talking this way — aside from the danger that some stupid cop might someday try to hurt me for it — because too often people just hear “cop” when I say “bad cop.”  When I talk about bad prosecutors, prosecutors who hide discovery, prosecutors who care more for convictions than justice, prosecutors who resist the use of DNA to get at the truth if the truth hurts their case, too often people just hear “prosecutors.”  And when I discuss judges who don’t follow the law, judges who function as prosecutors in black robes, judges who abdicate their gatekeeper role regarding questionable evidence from gang cops, judges who wouldn’t know impartiality if it was shoved up their — well, too often people just hear “judges.”

This misunderstanding is not my fault; I refuse to accept responsibility for it.  There are, as D.A. Confidential’s author notes later in that same comment, “good people on both sides.”  I have never doubted this.

That brings me to the next point, working backwards, as I said.  There is some truth to what the author of D.A. Confidential says about wandering into an area where people mistrust him and doubt his motivations.

That, too, is not something for which I can take responsibility, even though I am one of those who may mistrust and doubt prosecutors.

This morning, while waiting outside a courtroom, I was talking to another defense attorney — one who has decades of experience on me.  We were discussing the broken fence (the concept; not my article).  He pointed out that “things have changed.”  Too many people today — and he deliberately included defense attorneys in his list alongside prosecutors and cops and judges — treat the Law as a game.  “Attorneys today,” he noted, “seem more concerned with the win and are willing to twist and abuse the system to get it.”

Frankly, I don’t know how a defense attorney twists or abuses the system to obtain a win.  But that most likely gets us into a long discussion concerning the different responsibilities of defense attorneys vis-à-vis the handling of criminal cases.  That conversation will have to await another day.  For now, suffice it to say that ours is an adversarial system in which the job of the defense attorney is to try to force the State to prove its case.  We try to thwart the prosecution of a crime with the idea being that if, in spite of this, the case is proven beyond a reasonable doubt, then probably the right guy (or gal) was convicted.

But there has been a major sea change in the last few decades of American jurisprudence.  When the system our Founders created is properly functioning, it is quite difficult for the State to convict a person accused of a crime.  This is how it is supposed to be! Otherwise, we get what we have today: too many innocent people in prisons.  Too many men whose lives are stolen on the flimsiest of evidence.  Freeing innocent people 20 and 30 years after the fact — if at all — does not make up for that.  But over the last few decades, “victim’s rights” and other political considerations have resulted in a system that makes putting innocents away far too easy.

No small part of this has been trying to mitigate any part of the system which tips the scales of justice in favor of the accused.  Anything that somehow makes it easier to defend must be undone; conversely anything that makes it easier to prosecute must be supported.  Prosecutors who have lost touch with the point of their existence, those who think it’s all about the win and justice be damned, take advantage of this.  They refuse to provide discovery; they tell witnesses not to talk to the defense; they overcharge in order to encourage the accused not to risk trial: they simply cannot afford to accept any system that gives an accused a fighting chance; they cannot risk a loss.

So far have things gone and so often do defense attorneys see this that the author of D.A. Confidential has a point: we tend not to trust prosecutors.  Aside from that, the prosecutor represents the State.  It is our job to stand in the path of the State, to make their job difficult, to make them prove their case beyond a reasonable doubt.  And when we find a prosecutor who appears trustworthy, who appears willing to argue a case simply on its merits — no hiding the ball, no threats in the form of overcharging for those who insist on their innocence — the changes of the last few decades have taught us to be wary.

Not all prosecutors are deserving of this treatment, but no self-respecting defense attorney in today’s world can afford to assume the prosecutor isn’t just out for the win.  Most of the time, if a prosecutor loses, not much changes in the world; if a defense attorney loses, a human being suffers.

That this happens and that the world has changed in such a way as to make it too easy to happen does not mean that all prosecutors are bad.  Nor does initially mistrusting the prosecutor, or doubting his motivations, contradict that.  This is no longer a world where the United States Constitution holds sway.  Even where there are good prosecutors, the system has been corrupted in a way that can make things difficult for them to act as good prosecutors.

I can point to at least one deputy district attorney I know whom I consider to be braver, more principled and worthy of much greater respect than pretty much any other person I know.  I hope that person knows of whom I speak — I don’t know if that person is even a reader of this blog — because I will not name that person.  Part of what makes that person worthy of respect is exactly what the author of D.A. Confidential noted:  despite being on the opposite side of A Broken Fence from where I stand, that person, too, is “hoping, wanting, willing to mend it.”  That person’s bosses, however, won’t allow for that.  Deputy District Attorneys like that individual are instead punished for being like that.  I wonder, with a great deal of sadness, how much longer that person will be able to continue in the D.A.’s office.

And, in fact, there are more such good prosecutors, along with more than a few good cops and good judges.

There’s another reason I have trouble dealing with this.  I’m not usually writing about good cops, good prosecutors and good judges.  Those individuals have tough enough jobs without having to withstand the wrath that may befall them for receiving praise from a criminal defense attorney! I’m usually writing about the bad ones, or the flaws in our system — the Broken Fence — which makes my job difficult even where good cops, good prosecutors and good judges are involved.  And I get tired of having to point this out.  I get tired of having to say, time and again, that just because I rail a lot, write a lot, fight a lot over bad cops, bad prosecutors and bad judges, I am not saying that all cops, all prosecutors, or all judges are bad.

There’s not a lot of reason for me to be writing about the good guys, except when I need to contrast them with the bad guys.  But even I know — even when I’m railing, writing, fighting — that not all those involved are bad.  Conversely, that there are good cops, good prosecutors and even good judges is not reason to think all is right with the world.  The fence — the United States Constitution with its implied Rule of Law — is broken.

Today’s “justice” system is, indeed, populated by the Good as well as the Bad.  That doesn’t stop today’s warped system from being downright Ugly.

Our system is irrevocably broken.  Nothing short of a new Revolution would fix it.  And I’m not at all sure the Americans of today can fix it even then.  We can only, at best, tear down the present Tyranny. 

And why is that? 

Brian Tracy, in his book No Excuses!: The Power of Self-Discipline, writes:

In the United States, we have a Constitution and Bill of Rights.  These documents lay out the rules by which Americans agree to live.  They create the structure of our government and guarantee our rights.  But they assume that our elected representatives will be men and women of honor, committed to protecting and defending those rights.  They attempt to ensure that only men and women of character can thrive and prosper over the long term in our economic, political, and social system.  They aim to assure that, in most cases, only men and women of character can rise to high positions in society.

Frankly, I don’t know that I agree with Brian Tracy concerning the aim of the rules laid out by the Constitution and the Bill of Rights, at least in terms of the aim being to assure that only certain kinds of people thrive, prosper, and rise to high positions in our society.  It makes some sense that this might be the end result of a system based on our Constitution and Bill of Rights, but I think the aim is much simpler than that: the aim is simply to guarantee life, liberty and the pursuit of happiness is available to each human being.   In particular, it gives the government certain limited powers necessary to structure a society where that is possible, while simultaneously trying to ensure that government doesn’t exceed those powers in a way that negatively impacts individual choices regarding life, liberty and the pursuit of happiness.

He’s dead right, however, about the rest of it.  The Constitution and the Bill of Rights are completely useless unless our elected representatives are men and women of honor, committed to protecting and defending those rights. 

And, increasingly, they are not. 

Day after day, I go out to “do battle” in an adversarial system the goal of which is sometimes described as “to seek justice,” or, at the least, “to preserve the social order.”  But “preserve the social order” can mean a lot of things.  If it means something like “preserve the world in such a way that the haves continue to have and the have-nots continue to have not,” then there is no relationship to justice.  If it means “to provide a means whereby those who have been wronged can have some chance of being made whole again” and “to provide a means whereby those who have proven they are not able to live in a civilized society can be handled in such a way as to assist them in becoming less harmful to others, or in a way that protects us when they will not ‘reform,’” then there is the potential that it connects to the concept of Justice. 

Increasingly, our “Justice” system has become disconnected from the concept of Justice — whether you like to spell justice with a capital “J” or not.

This, I’ve found, is a difficult world for me to live in.  It’s the kind of world in which I find myself increasingly on the side of troublemakers — I do not mean “criminals,” although certainly if I were to take the obvious path of armed resistance, that would make me into a criminal in the eyes of most people. 

And I have no desire to be a criminal.  I simply desire to interfere with the criminals who, increasingly, are running our system; nominally, our “justice” system.  And make no mistake, criminals are what they are: those who would destroy the values on which this once-great nation — this Great Experiment, as it was called — was founded, while making a pretense of upholding those values are worse even than the criminals who kill, rape, or rob from people.  They — the judges, the prosecutors, the law enforcement officers who consider the Constitution an impediment to the achievement of their goals — destroy an entire society.  They bring to an end our Great Experiment. 

Constantly having to fight them all frequently feels, at least for me, like an overwhelming task.  How do you handle working in a system where, for example, ex parte communications between judges and victims, judges and probation officers, or judges and prosecutors are so routine that judges don’t even try to hide it because they don’t actually recognize it as wrong?  How do you handle working in a system where the antagonism to accused people, or (and these are connected) the support of “victims” has become so strong that unfairness is built into the system?  How do you justify being part of a system in which the authorities aggressively pursue DNA testing to prove a dead man killed his wife, but vigorously resist efforts to allow DNA testing to prove a man’s innocence?  What do you do when judges consistently side with the prosecutors on such issues?

Our system has become skewed because we have forgotten what we once knew.  The Founders established a system that should have lasted for the ages.  As Brian Tannebaum has pointed out,

Four of the first ten amendments, otherwise known as the Bill of Rights, were written for the criminal justice system.

And he went on to say,

To sum it up, the criminal defense lawyer mirrored the philosophy behind the creation of America – a mistrust of government, a method of redress, and liberty. The criminal defense lawyer was given important powers to question government and assure that any attempt to take away liberty was done with strict scrutiny.

“Strict scrutiny.” 

Any scrutiny these days generally has one result: arrest. 

Despite all the above, as Scott Greenfield notes, Americans, although distrustful of the “justice” system, continue to believe in, to support the police.  How we became transformed from a nation that distrusted authority into one that blindly supports it is beyond me.  But it is increasingly clear that most Americans bear an uncanny resemblance to sheep, while too many others resemble Norm Pattis’ sheep-fixated dog, Odysseus. 

Norm has learned the futility of trying to fight “Ody’s” inbred over-herding of sheep.  The best Norm can do is keep Ody away from them. 

Our Constitution and its attendant Bill of Rights were intended to do that — to keep the Odysseuses in our nation away from the sheep (and all the rest of us), to allow us the security of life, liberty and the pursuit of happiness unencumbered by those in whom the tendency to herd everyone else was overbred. 

But the fence is broken.  Where the courts haven’t actually torn it down, it is simply ignored. 

The Fourth Amendment?  The Odys merely testi-lie that they had permission.  The courts believe them because everyone illegally possessing marijuana is okay with showing it to the po-po.  The Fifth Amendment?  The stupid sheep didn’t realize they had to bleat exactly the right words to invoke their right, so their bleating of the wrong words is completely admissible in court.  The Sixth Amendment?  Who can afford that? 

And let’s not even discuss the long-absent Eighth Amendment, the loss of which means criminal penalties can increase without limitation in such a way that jails and prisons now load up on innocents who plead out, rather than risk the long-term consequences devolving from our current “justice” system.  This is done, again, with the full support of our courts. 

When the other branches of government don’t give the Odys enough power, the Odys will simply appropriate it anyway.  That’s what Odys the world over do. 

And me?  I’m getting tired of trying to chase the Odys away from the sheep.  Especially when the sheep don’t really appreciate it anyway.  It’s bad enough to have to fight the Odys, without having the fight the sheep, too. 

I sure do miss that fence.

There is no one walking — or crawling — the planet who does not make mistakes.  Even robots make mistakes.

One of the hard things for me in navigating this planet is that, as a criminal defense attorney, I’m pretty much expected by my clients to have all the answers.  I can’t blame them; mistakes on my part can cost them their freedom.

This expectation on the part of my clients is counter-balanced by interactions with many prosecutors and judges — and please, dear readers, please take note that I said “many” and not “most”; certainly not “all” — who think criminal defense attorneys pretty much have none of the answers.

The truth is absolutely located somewhere between these two poles.

Many — I guess the second lesson I ever learned was that absolutes almost always suck — people who know me might be surprised to know how much I agonize over most of what I do before I actually do it.  (I’m not always as good about stopping to think before I speak, but that’s a completely unrelated issue.)  The few who know me well inform me that I agonize a little too much.

Not everyone I defend is innocent.  (The astute will recognize that the corollary of this is that not everyone I defend is guilty.)

If you’re not sure where I’m going with all this, let me help you feel a little better:  As I write this sentence, I’m not sure, either.  I have a thought in my mind which I’m finding it difficult to explain.  I started writing this to try to figure it out.  I forget who said it (some famous writer, no doubt), but one reason for writing is to figure out what we think.  The act of writing something out is a terrific way to gain understanding, to learn.  (The best part of my life was a several-years-long period during which I spent anywhere from 4-6 hours, trusty fountain pen in hand, journaling; writing to make sense of a morass of loose ideas caterwauling around inside my mind.)

So you’ll bear with me, I hope, while I try to puzzle this one out.

Something happened yesterday — I’m not going to detail it at all, so let me apologize in advance to those who hate unsolved mysteries — and I’m still trying to make sense of it.  Suffice it to say that I said something which, in retrospect, I would not say again.  It was intended as a joke; it was not taken as a joke.  My “I’m sorry” statements were as effective as trying to drown a duck by pouring a glass of water on its back.

Like water off a duck’s back. That’s how my statement should have been taken, if it had been the insult it was misinterpreted as being.

As I said, in retrospect, that is, knowing now what I did not know then, I would not say again what I said then.  I intended a joke; not an insult.  I thought the person I was talking to was the kind of person — and that I had the kind of relationship with that person — that he would find it funny; that we would share a laugh.

I make mistakes sometimes.  Not always.  Thankfully, not terribly often.  But I make mistakes sometimes.

The thing, however, that drags me into a deeply pensive state over this is the fall-out thus far.

My mistake caused at least two other individuals to make an even bigger mistake.  One that both hurts and helps me in thinking about my job as a lawyer.  On the one hand, I realize how deeply-institutionalized is the unfairness of our justice system.  For I’ve no doubt — none at all — that the individuals in question fail to realize not only how serious was their mistake, but even that it was a mistake.  Yet it is the kind of mistake that should never be made by people in their positions.

It is also the kind of mistake that demonstrates a fundamental unfairness, an irredeemable bias.  At least here, in this part of the system in which it occurred.

That makes me indescribably sad.

On the other hand, because of that, it reminds me why I do what I do.  And after my episode with A Drowning Man, I have to admit that I’ve questioned my commitment to this line of work.  I forgot, for the moment, that everyone makes mistakes.  Part of my job is defending people when that happens.

Part of my job is reminding those making decisions that they, too, could be mistaken — and trying to convince them that, because of that, we all need to agonize over what we do.

Vincent Hallinan (1896-1992) once said:

Lawyers make a good living off the misery of others….

The truth is, though, it’s not just lawyers.  Judges, law enforcement officers, probation officers, correctional officers, social workers…the list goes on.  We all make our livings — without a doubt better livings than those we are supposed to serve — off the misery of others.

It is imperative that we do our jobs with open minds, oriented towards justice, fairness and humility.

Why, then, do I “defend criminals”?

First off — this is that ugly idealism again raising its head — I don’t buy into the idea that I defend criminals.  Wh-? Huh?

“But you’re a criminal defense attorney!,” you shout.  (You do know I can’t actually hear you, by the way, don’t you?)

At any rate, yes, I’m a “criminal defense attorney.”  I didn’t pick the moniker.  It’s what we who defend people who have been accused of committing crimes are called.  So I don’t defend criminals; I defend people accused of committing crimes.

“Words.  Words.  Mere words,” you say.  I really can’t hear you.  I hope you know that.  I’m just assuming, based on conversations with actual people, that this is what you’re saying.

Increasingly, though, these are not “mere words.”  If they ever were.  Mere words would be things like “innocent unless proven guilty,” or “the burden of proof is on the prosecution.”  Reality is that, increasingly, innocent people actually do get arrested, charged with crimes, sometimes have trials, and too often go to jail.  Or prison. Or worse.

Estimates of the number of innocent people in prison vary. Justice Scalia — against all reason — estimates it to be “less than three-hundredths of a percent — 0.027 percent, to be exact.”

Me — but, remember, I’m an idealist — I think even 0.027 percent is an outrageous shame.  I’m not the world’s greatest mathematician (that’s one reason I became a lawyer), but with 7.3 million citizens in the U.S. prisons system in 2007,¹ I estimate that’s getting close to a couple-thousand innocent people whose lives have been stolen.  (For you, “Justice” Scalia, that’s 1,971.)

You want to be one of those people and tell me that’s not bad; mistakes happen; you can’t make an omelet without breaking a few eggs?

Besides, I think that number is clearly wrong. The number assumes that Scalia and the people upon whom he relied are correct about the percentage of innocents in prison.

The authors of Convicted But Innocent: Wrongful Conviction and Public Policy (1996) think a conservative estimate is closer to 0.5%, which based on calculations using 1990′s numbers yields around 10,000 innocent people wrongfully convicted.  And they believe the number is actually quite a bit higher.  And in 1990, there were half as many people in prison as there are today, so the actual number using their calculations today would be 20,000 innocents in America’s prisons.

The estimate discussed in Convicted But Innocent is based on asking judges and prosecutors what they think the number is.  Not exactly the most scientific method for making such determinations.  After all, judges and prosecutors tend to be biased in favor of believing that those convicted accused of a crime were guilty.  The authors themselves say that if more public defenders were asked, the number would be higher.

Also,

Samuel Gross, a University of Michigan law professor, has calculated that 2.3 percent of all prisoners sentenced to death between 1973 and 1989 have been exonerated and freed. His research suggests that the vast majority in fact did not commit the crimes and an unknown number of innocents have not yet been exonerated.²

Another study, based on death row inmates, shows that since 1977 five-hundred-and-fifty-three have been executed, while eighty were released from death row after being found innocent.

For every seven executed, one innocent person is freed — an “error rate” of more than twelve (12) percent. In the State of Illinois, 12 people have been executed since 1977 while 13 have been released after proving their innocence — an error rate of 52 percent.³

The Truth & Justice Foundation notes that estimates for wrongful convictions range all the way from a low of 3 to a high of 15%.

Whatever the number, it’s growing.

The length of sentences is growing, too.  In 2004,

One out of every 11 persons in the federal and state prison systems in the US [was] serving a life sentence, four times the number of “lifers” in 1984.⁴

Watson’s article is an eye-opening read.  Among other things, it notes that 60 percent of California’s “three strikes” cases involve non-violent offenses — property offenses, such as the theft of $153 of videotapes — resulting in sentences of 25 years to life.  Then there are the victims of domestic abuse, those who finally snap and kill the men who repeatedly beat them: they get beaten a lot less now that as many as 2,000 of them are serving life sentences.

Let’s not even consider that our “tough on crime” stance has us shutting down mental health facilities, then incarcerating most mentally-ill individuals such that — again going off Watson’s 2004 numbers — one in every five lifers and one in every six “general population” prisoners are mentally ill.

Meanwhile, the conservative Cato Institute reports:

The amount of money that American taxpayers spend on prisons has never been greater, and the fraction of the American population held in prison has tripled during the last 15 years, as has national prison capacity. Yet the expected punishment of violent criminals has declined, and violent crime flourishes at intolerably high levels. The seeming paradox of more prisons and less punishment for violent criminals, which means less public safety, is explained by the war on drugs. That war has gravely undermined the ability of America’s penal institutions to protect the public. As prisons are filled beyond capacity with nonviolent “drug criminals” (many of them first offenders), violent repeat offenders are pushed out the prison doors early, or never imprisoned in the first place.⁵

Alright.  Alright.  Let me stop beating the dead horse.  We have large numbers of innocent people in our prisons.  I blame our society’s increasing tendency to favor “victim’s rights” over the necessary goal of our justice system — the determination of whether an accused person is guilty, or not guilty.  But I’ll set that observation aside for another day.

We have innocent people in prison.  What shall we do if and when we find them?

Well, it depends.

According to the 9th Circuit Court of Appeals, if we find them in time — that is, before the artificial boundary created by Congress in 1996, which undid a couple hundred years (at least) of precedent — maybe they can go free.

But if they missed the boundary?  If — although they are actually innocent of the crime for which they were convicted – they are unable to prove their innocence until after the time limit for an appeal or writ has passed?

Well, fuck ‘em. Let ‘em rot in prison.

At least, that’s what the 9th Circuit Court of Appeal — allegedly the most liberal of circuits in the United States — has to say.

And that, my friend, is nothing short of criminal.

1. The prisons system includes people in prison, jail, probation and parole.
2. Sheldon Archer, “There are Thousands of Innocent People in American Prisons” (29 June 2010) ArticleBlast, available at http://www.articleblast.com/Laws_and_Legal/Criminal_Law/There_are_Thousands_of_Innocent_People_in_American_Prisons/.
3. Roger Roots, “How Often Does The Criminal Justice System Get It Wrong?” (February 5, 2001) available at http://www.caught.net/innoc.htm.
4. Debra Watson, “Huge rise in prisoners serving life sentence in the US” (26 May 2004) International Committee of the Fourth International.
5. David B. Kopel, “Prison Blues: How America’s Foolish Sentencing Policies Endanger Public Safety” (May 17, 1994) Cato Institute.

There may be lots of situations in which a life needs to be saved, but the Boy Scout Lifesaving merit badge focuses on saving drowning people.  One of the things you learn is “[h]ow rescue techniques vary depending on the setting and the condition of the person needing assistance.”  Along the way to earning the badge, you have to “[e]xplain the importance of avoiding contact with an active victim and describe lead-and-wait tactics.”

As a criminal defense attorney, I’m having to re-learn these things.

When I was a Boy Scout, earning my Lifesaving merit badge, I learned about the ways people got themselves into trouble in the water (“[c]ommon drowning situations and how to prevent them”).  Accidents happen, but sometimes the deliberate acts of people got them in over their heads.  They wanted something and they thought they knew a way to get it, only to find themselves in deep water.

The job of being a criminal defense attorney is the job of saving drowning people.  In the great pool of life, accidents happen; but often it is the deliberate acts of people who want something and go about getting it in the wrong way which gets them in over their heads.

As when I was a Boy Scout, working on that badge, there are things to be aware of when saving drowning people.  They’re often scared.  They think they know what to do to save themselves.

If you are not careful, they will kill themselves — and you — as they attempt to do those things.

If you get too close, a drowning person will latch onto you with all the fierceness of, well, a drowning person.  They will fight to pull themselves up by pulling you down.  They will grab you and they will not let go.  They will not be thinking that they do not know how to swim and you do.  They will not relax.  They will not let go.  They will not allow you to do what needs to be done.

Your job is to try to save them, without being drowned yourself.  You must learn how to approach.

One of the tricks is to move rapidly towards them, ducking underwater (and thence out of their reach) just as you approach.  Grab the drowning person’s legs and try to turn them so that they are facing away from you.  You can’t let them get too close when you are face-to-face, because they will try to grab you and both of you will go under.

Then it will be a fight to see who, if anyone, is coming out on top.

As a criminal defense attorney, I’m still learning that last trick.  One of the most common complaints of clients and their families is that they don’t get enough face-time with their attorneys.  I’ve seen this as a failure on the part of those attorneys.  The families and clients cry out for help.  “Save me!”  “Save him!”  “Save her!”  “Save them!”  There is a great temptation to give them as much face-time as possible, letting them see that you are there.

This week, I did not dive under quickly enough.  I let myself get too close.  For one thing, I became intoxicated over the fact that I managed to muscle my way past the sharks circling my target.  I got into a closed police station and stopped an interrogation before it started.  This does not happen very often.  Too often defense attorneys get there too late.  Our clients have already sunk themselves with too many words.  The police do not want to let us near our clients; they will block us off.  (In this case, they had gone so far as to tell the family that their loved one was not even there, though we all knew he was.)  But this week, I was there on time; I got in; I stopped the interrogation.  I felt good.

But I forgot that getting through to my drowning client was just part of the job.  I made it past the sharks, but I still had to get him to shore.  I forgot to turn him, so that he could not grab onto me and drag me down with him.  His family screamed from the beach.  I let them distract me.

Here is where the analogy breaks down a little bit, but not completely.  The drowning person believes he knows how to save himself.  His family believes he knows how to save himself (and that they, too, have some good ideas about it).

I got my investigative team started, but I myself was face-to-face with everyone for too long.  They were not happy that I did not see things their way.  I “needed” to look at this, and this, and this.  How could he be in danger of drowning, when such-and-such — a relatively minor fact that did not really assist his case at all — was true?

When I told them the things they were focusing on would not save him, they thought I did not believe in his innocence.  This was important to him, even though I explained that it did not matter to me.  I even tried to explain that it was my job to deliberately develop doubts about the case — the same sorts of doubts that a jury might develop — so that I could recognize the problems that needed to be targeted, where more investigation was needed.  Part of my job is to question things as if I were a prosecutor, so that I can be prepared for those things which a prosecutor will ask a jury to question.

They decided to look for another lifeguard.  “One with more experience.”  One who would recognize that he could not have done what he was accused of doing because they said he didn’t.  One who believed in him.

I’ll survive.  I got away.  I — and my team — will not escape completely unscathed, though.  There is the pain of seeing a drowning person who will not let you help.  There is the knowledge that time matters; the investigation was in full swing; the sharks still circle.  We got to some of the witnesses, including the young alleged victim, before the police told them not to talk to us.  But now, while they await another lifeguard, the defense investigation has stopped.

There is also the knowledge that, this time, there will be no pay-off.  Not only will they likely not keep their word — no small part of our disagreements this week came out of my attempts to convince them that lying to your attorney is not a good thing, because it sends him off in the wrong direction and potentially costs him credibility with courts, opponents and jurors — to pay what is due of my fee, or even the investigative costs that accrued this past week, but there will be no thanks.  There will be no good feeling that comes from saving a drowning person.  This one is lost (at least to me and my team).

I earn no badge today.

Unlike today’s politicians, Roosevelt was all about quelling irrational fear. Whatever you might think about the specifics of his politics and plans, Roosevelt seriously wanted to improve society and thus tried to ameliorate fear by making us believe “the only thing we have to fear is fear itself.”

Those in power today want to keep us in a constant state of fear. They’ve turned scaring us into a highly-successful, hugely-profitable (for them) art form.

Americans in Roosevelt’s time knew something of fear. They had survived World War I. Roosevelt would lead America through World War II. The so-called Great Depression had been putting people out of work and starving families for at least three years before his first election. The Social Security Act did not yet exist. The United States did not have welfare: Roosevelt instituted “emergency relief measures” to help the unemployed and starving masses. Even then, Roosevelt’s “New Deal” focused on public spending and providing work, not individualized cash payments or anything resembling today’s welfare programs. And in some places — Toledo, Ohio, for example — the unemployment rate hit 80%. That’s not a typo: eighty percent!

In a sense, then, Roosevelt’s claim that the only thing we had to fear was fear itself was somewhat disingenuous. Losing everything you owned was a very real fear. Starvation was a very real fear. Families in trouble had about as much chance of survival as a BP-sponsored turtle.

Today those fears are somewhat mollified by the existence of the structures put into place by Roosevelt’s “New Deal.”

Fear, however, can be a great motivator, as many in power have learned. If I want to build myself a nice little fiefdom, fear can be useful in helping me to get elected to head up, say, the local or regional police force and then scare the crap out of you to increase my funding. I used to think Margaret Mims was a complete idiot for how she handled her budget. I underestimated her ability to instill fear in the populace by unnecessarily releasing prisoners from the local jail “to rob and kill” us while she blamed “the problem” on our County Council for not providing her with enough money to keep them all locked up. In retrospect, it turns out she’s a far better con artist than any who came before her.

And its all because of fear.

I’m not picking on Mims, she just happens to be local to me and very good at making people think she is releasing prisoners reluctantly when I think it’s more likely a coldly-calculated act on her part to force the County’s bean counters — and elected Supervisors — into submission. The thing is that most politicians today seem to have learned quite well from Roosevelt’s words. A nameless terror is paralytic. So let’s slap some names on things and see if we can’t stir up a little wallet action — break you out of that paralysis and get you screaming for more funding to the po-po.

To do this, our leaders spin out all kinds of fantastic scenarios, actually transforming our society into something uglier than it is in the process. The most common approach is to take advantage of some dead kid and his (understandably) emotionally-overwrought family.

“Pedophiles watch our children from the shadows,” warned U.S. Attorney General Alberto Gonzales. “They lie in wait, studying, planning to ensnare and violate the innocent.” (Daniel Gardner, The Science of Fear: How the Culture of Fear Manipulates Your Brain (2008) p. 182.)

What no one ever talks about is that, as horrific as these cases can be, “the likelihood of a child being snatched by a stranger is almost indescribably tiny.” (Gardner, supra, at p. 186.) According to NISMART (National Incidence Studies of Missing, Abducted, Runaway, and Thrownaway Children), an agency set up by Congress to do research and produce reports on the number of missing kids, an estimated 115 “stereotypical kidnappings” of children occur in the United States each year. (Gardner, supra, at p. 185.)

With just 115 cases of kids under eighteen being stolen by strangers, the risk to any one American minor is about 0.00016 percent, or 1 in 608,696. For kids fourteen and under, the numbers are only slightly different. There are roughly 59 million Americans aged fourteen and under, so the risk is 0.00015 percent. That’s 1 in 655,555. (Gardner, supra, at p. 186.)

The news media, driven by power- and money-hungry politicians and law enforcement groups and individuals, plus the aforementioned emotionally-overwrought families eager to ensure that their children did not die in vain, have us so scared that we readily pass legislation to prevent the possibility of such crimes occurring. The result is longer prison sentences for people who might be a threat to our children, perhaps boosting the likelihood of a kidnapping from 0.00015 or 0.00016 to 0.000165.

We’ve become so frightened about the prospect of being crime victims that we’ve dropped any attempt to reform people, preferring instead that longer and longer prison sentences more-or-less permanently remove them from our midst. And then we wonder why we’re running out of money.

In my article, “If Worms Carried Shotguns,” I wrote about our collective inability to reduce our prison population — and thus perhaps avert the systemic bankruptcy that threatens state and local governments throughout the U.S. — because of these irrational fears.

This pervasive fear with which we are inculcated, though, has other deleterious effects on our society. Children today are themselves imprisoned by our distorted belief that “it’s not safe out there.” It’s not safe for them to play outside, unattended. It’s not safe to allow them to walk to school alone. It’s not safe to fail to treat our schools like miniature prisons, complete with prison-like fencing, metal detectors, cops and even probation officers.

In reality, these kids are probably more endangered by these “safeguards” than by anything that would happen if the “safeguards” did not exist.

Recently, in Bakersfield, California, two young girls proved that they have well-learned the lessons on just how dangerous the world is, when they called police to report a kidnapping. By a group of people in a van. If the statistics on “stereotypical kidnappings” are so out of whack with our perceptions, imagine the statistics on groups of people in vans snatching children off the street.

The police did their part, as well, dutifully setting up roadblocks, involving numerous police agencies in the search in both Bakersfield and Los Angeles (the girls got the plate number) and ultimately the expensive dragnet revealed what anyone in their right mind, not fueled by fear, would have probably realized from the start: ’twas no band of kidnappers merrily trolling for children.

The officers made contact with the van and it was determined to be a group of telephone book delivery people, one of whom was an extremely small adult woman who was apparently mistaken for a child, police said. (“Telephone Book Delivery Crew Confused For Kidnappers” (June 3, 2010) KERO-23 ABC.)

In addition to the above,

Officers made contact at Independence Elementary school and were provided with a list of names and addresses for children whom [sic] were dropped off by the school bus in the neighborhood where the possible abduction was reported. Officers responded to all of these children’s respective residences… (“Telephone Book Delivery Crew Confused for Kidnappers,” supra, emphasis added.)

Nothing like a little door-to-door fear boosting. I wonder how many of those kids were allowed to play outside that day.

A proper fear — one that is based upon actual dangers with at least a fair likelihood of striking if we don’t take steps to make ourselves safe — is a good thing. Irrational, unreasoning fear, ultimately does more damage to society than the things society fears.

We are safer and healthier than ever and yet we are more worried about injury, disease, and death than ever. Why? In part, it’s because there are few opportunities to make money from convincing people they are, in fact, safer and healthier than ever — but there are huge profits to be made by promoting fear. “Unreasoning fear,” as Roosevelt called it, may be bad for those who experience it and for society at large, but it’s wonderful for shareholders. The opportunities for growth are limitless. All that’s required is that fears keep rising, and those who reap the profits know which buttons to push in our Stone Age minds to ensure that happens. (Gardner, supra, at p. 138.)

Nameless, unreasoning, unjustified terror is paralytic. Slap a name on it — pedophile, gang member, criminal, kidnapper of small phone books — and it becomes a great motivator. The problem is, it motivates us in the wrong way, to the wrong end.

Closer to the truth, the things we’re taught by politicians, law enforcement and overwrought emotionally-driven victims of crime are not the things we should actually fear. If Roosevelt were alive today, he might express his firm belief that the only thing we have to fear are fearmongerers themselves with their numerous, unreasoning, unjustified terrors scaring us away from dealing with society’s real problems, breaking both our banks and our bonds to one another.