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"We're Just Being Americans"

Some of you will wonder why this article is going to start off, in a minute here, by talking about and quoting from comments made at so-called “town hall meetings” regarding Obama’s health care plan. Is this blog “going political” or something?

There are actually two answers to that, the most simplistic of which is “no.” Although, in a way, this blog is unavoidably political: the legal system is, at bottom, the reification of the politics of a given jurisdiction — or to be more honest about it, it is the reification of the politics of those who have the power over the legal system, such that they can reify their political views in a concrete system of law. But I really want to save that discussion for another post. At any rate, it must be admitted that, on the one hand, this blog has always been political.

On the other hand, this blog does focus on the legal system; it is my “professional” blog and I am an attorney. We don’t typically think of discussions of the law as being political discussions, per se. This post will maintain a focus on the legal system; not health care. In that sense, then, this post is not a sign that the blog is “going political.”

The most I will say about Obama’s health care plan is that I’m not a socialist. But, again, that particular issue is for discussion for another post and, with respect to Obama and/or political footballs like health care plans, for another blog.

I have, nonetheless, with some interest been following the circus atmosphere surrounding these so-called “town hall meetings,” reported with apparent glee by the few mainstream press sources I still occasionally read.

On the day I started writing this article, an attendee at one such circus summed up why I find the stories interesting. In defending the rowdy, boorish and — let’s call it what it is — anti-democratic behavior of a few people in the crowd, he stated:

I don’t think we have bad attitudes. We’re just being Americans. (CNNPolitics.com, “Specter faces hostile audience at health care forum” (August 11, 2009).)

He’s right. Which is no small part of why America is in the middle of breakdowns at so many levels. And that brings us back to the non-political, or (if you prefer) the reified political realm.

America has become a binary nation. Maybe it’s the fact that we were one of the first and arguably most technologically-advanced nations moving into the Information Age. We might not have been the first nation to have stored-program universal computers, but we certainly were one of the first. And probably no other country has seen as pervasive a spread of computer technology throughout the general population as the United States.

Whether the computer has had anything to do with it or not — and I hate to sound like a broken record, but that is a discussion for another blog article on a different kind of blog — the point remains that in the last several decades, Americans have proven themselves less and less capable of anything other than binary thinking.

The “binary” in “binary thinking,” of course, means we think in terms of “yes/no,” “on/off,” “either/or.” We no longer see a rich tapestry of choices; our problems are no longer complex (or so we mistakenly believe); and if you are not for me, or in total agreement with me, then you are obviously my enemy. My sworn enemy. My opinions are water: necessary for life. Your opinions are oil: perhaps providing a lot of energy as I burn through the reasons why you’re wrong, but ultimately good for nothing but polluting the earth.

As everyone knows, oil and water don’t mix. And binary thinking, while great for computers, isn’t so hot when it comes to dealing with complex societal problems.

There are two problems with binary thinking. The first is simple reality: far more of the universe is made up of things that are continuous in nature, with no neat distinctions and many intermediate values between any two points, than is made up things with discrete, binary characteristics. Magnetic and electrical fields may be inherently bipolar, but both types of field have an infinite range of magnitudes. The portion of the electromagnetic spectrum we can see (visible light) is a great example of how this works: the classic cartoon rainbow has only seven colors (red, orange, yellow, green, blue, indigo, and violet, with neat binary divisions between any two adjacent colors), but a closer look reveals an infinite range of intermediate shades. Truth itself is very similar, with most of life’s “truths” coming in a bewildering shades of grey rather than simple black and white. The second and more serious problem is that, as the debates over sentience and taxonomy demonstrate, binary thinking divides the universe into us and them, opposing camps who can only agree on the need to fight until one camp declares victory. Lost amidst the melee is the potential gain that comes from understanding the value of both sides in the debate and using each side’s tools whenever they’re most effective. (Geoff Hart, “Editorial: Binary thinking”(September 2005) The Exchange, Issue 12(3). [The Exchange is a newsletter of the Society for Technical Communication.])

“Okay, Rick,” you say. “But what the hell does this have to do with the law?!” (The exclamation point is for you, Brian!) “And why do you refer to this as contributing to ‘breakdowns at so many levels’?”

For starters, binary thinking has had a serious effect on criminal procedure and punishment within our legal system. If an individual is a “criminal,” prosecutors and the general public bemoan any attempts by defense attorneys (and the rare judge) who acts as if the individual has certain constitutional rights. (The right not to be convicted without a trial, for example.) The goal is the opposite of what the Constitution intended; the goal is easy conviction of those accused of committing crimes by lowering the evidentiary and other requirements and by making it more difficult for them to defend themselves.

Beyond that, binary thinking fuels a “tough on crime” stance with disastrous results to not only our legal system, but to the financial health of our State. The penalties for even the mildest of crimes have been climbing. This has a significant impact on things like prison population. A 2006 report, for example, noted that the prison population had increased by 73 percent in just 15 years.

California State Senator George Runner (R-Antelope Valley) begs to differ. According to him,

The fundamental reason that critics of tough criminal penalties cannot come to grips with the facts is their unshakeable belief that longer sentences inevitably increase prison population. Experience tells us otherwise. (“Who Is In Our State Prisons?” (2015 update: link disappeared.)

I’m not sure what State this California Senator actually lives in, but our experience does not tell us otherwise. When you look at the problems facing California prison operations, one of the components is “the graying of the nation’s prisons.”

While crime remains overwhelmingly a young man’s game, between 1992 and 2001, the number of state and federal inmates aged 50 or older rose from 41,586 to 113,358, a staggering jump of 173 percent, a 2004 National Institute of Corrections report found. (“One in 100: Behind Bars in America 2008” (February 2008) The Pew Center on the States, from the Pew Charitable Trusts, available here.)

Despite this, new prisoners continue to come in behind these old-timers faster than the old-timers die or are discharged from the prisons. It doesn’t take a brain surgeon to figure this out: simple logic indicates that if people stay in prison longer and more people continue to come in behind them, this will naturally result in more people in prison at the same time.

There’s an old phrase about “lies, damned lies, and statistics.” And “Who Is In Our State Prisons?” makes good use of the ability of statistics to mislead readers. If you throw enough numbers out there, you can bamboozle just about anyone. For example, “Who Is In Our State Prisons?” trumpets the idea that “California’s total inmate population has grown an average of less than 1% per year” and argues that this is because so “few criminal offenders are sent to state prison for a first, second, or even third felony unless they have committed murder, rape, or robbery with a firearm.”

Moreoever, for every 100 serious felonies reported in California there are approximately 40 adult arrests but only five offenders sentenced to state prison. (“Who Is In Our Prisons?,” supra.)

This sounds great! Less than 1% growth per year! And — dammit! — we’re hardly locking up anyone compared to the number of serious felonies being committed. We should actually be locking up more!

But let’s scratch the surface of this a moment. For example, what is a “serious felony”? Well, if my morning calendar today is any indication, it includes things like throwing a stick at someone. It includes a kid being angry at a deputy in the jail because he thinks the deputy is laughing at him, so the kid says, “If I see you on the outs[ide], it’s your ass.” Like the kid had any potential for actually following through. It was what most people would think of as “an empty threat.” The kid was posturing. However, these two incidents resulted in multiple charges against each kid which would be classified as “serious felonies.”

And that one percent number? That may be true. (Disclaimer: I do not know that it is.) But consider this:

In California, the state prison inmate population grew from 24,569 in 1980 to 135,646 in 1995, which is an increase of about 452 percent. (United States General Accounting Office Letter Report, “Federal and State Prisons: Inmate Populations, Costs, and Projection Models (Letter Report, 11/25/96, GAO/GGD-97-15)” available here.)

And,

During this period, the incarceration rate in California increased 312 percent, growing from 104 inmates for every 100,000 residents in 1980 to 428 inmates for every 100,000 residents in 1995. (United States General Accounting Office Letter Report, supra.)

Then there’s Governor Schwarzeneggar’s statement reported August 19, 2009, that prison spending has doubled — so that’s a 100% growth rate in spending on prisons — in the last five years. It seems more and more clear that

[C]urrent prison growth is not driven primarily by a parallel increase in crime, or a corresponding surge in the population at large. Rather, it flows principally from a wave of policy choices that are sending more lawbreakers to prison and, through popular “three-strikes” measures and other sentencing enhancements, keeping them there longer. (“One in 100: Behind Bars in America 2008,” supra, emphasis added.)

This “get tough” policy on crime has, ironically, created a feedback loop. Due to the large sums of money spent on locking people up, we don’t have any money left for rehabilitation. So people we lock up eventually get out. Since they haven’t been rehabilitated, they commit new crimes. This not only requires us to lock them up again, but causes more of us to believe that letting people out of prison after they’ve committed crimes only leads to more crime. So we need to get tougher on crime. Put them away longer. Don’t let them out. Lock ’em up and throw away the key!

But the combat Marine in Vietnam, attorney, senior defense department official, Emmy-award winning journalist, film-maker, and the author of nine books, senior Senator-from-Virginia Jim Webb, who has maintained a life-long commitment toward protecting America’s national security interests while also keeping his eyes on social justice stated it quite well:

“There are only two possibilities here,” Mr. Webb said in introducing [a congressional bill to create a national comission to investigate criminal justice issues], [and] noting that America imprisons so many more people than other countries. “Either we have the most evil people on earth living in the United States, or we are doing something dramatically wrong in terms of how we approach the issue of criminal justice.” (Nicholas D. Kristof, “Priority Test: Health Care or Prisons?”(August 19, 2009) New York Times.)

I’d bet on the latter. Our high rate of recidivistic crime, for example, is due primarily to a combination of two factors. First, there seems to be a generally-held belief that “once a criminal always a criminal.” So there really is no solution: once someone has been identified as a criminal, you just have to lock ’em up and throw away the key. And we teach this belief to people who commit crimes, so it becomes a kind of self-fulfilling prophecy. The second (related) problem is that we don’t fund rehabilitation anymore. So people who commit crimes seldom can be integrated back into society as law-abiding citizens.

Instead of seeing individuals as they really are — complex, capable of change and sometimes making criminal “mistakes” — and thus existing as people capable of multiple degrees of “criminality” and amenable to rehabilitation, we can only see two options. You’re either a criminal, or you’re not. It’s binary thinking at it’s best (or worst).

In short, we’re just being Americans, incapable of complex mental operations and thus incapable of dealing with complex problems.

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