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The Problem of Memory and Criminal Justice

An important TED lecture from Psychologist Elizabeth Loftus who has been studying false memories since the 1970’s. She links what she discovered with one of the failings of our Criminal Justice System, with the false memories reported in court. This is an 18 minute lecture but it is well worth your time and bears directly on the topics we discuss . I must note that in it she is critical of certain psychotherapy techniques and I am a psychotherapist. Despite my training and profession I believe her critiques are on point and illustrate one of the problems inherent in some psychotherapies. For those that are interested in our legal system and who care about its problems, viewing this should represent time well spent.

 

Bail: Another American Criminal Justice Fail

The system of paying money to be released from incarceration on “bail” pending trial, is yet another example what I see as America’s use of criminal justice as a means of continued dis-empowerment of those of little wealth and of its’ people of color.   The mythology of our country’s judicial system being exemplary in its fairness is a fantasy belied by the ugly reality of unfairness and cruelty of  America’s broken criminal justice system as I’ve documented in the many posts found at the previous link. It seems in the waning days of the Obama Administration our President has finally begun efforts to deal with the various injustices of criminal law in America, but it might be too little too late.  One of these efforts is now being put forth by the Department of Justice (DOJ) as shown in this article: Obama’s Justice Department Joins the Fight Against America’s Bail Industry.

“The Obama administration has joined the fight against the American bail industry, telling a federal appeals court that bail practices that keep poor defendants locked up because they cannot afford to purchase their freedom are unconstitutional.

“Bail practices that do not account for indigence result in the unnecessary incarceration of numerous individuals who are presumed innocent,” the Justice Department wrote in an amicus brief filed Friday.

The brief marks the first time DOJ has weighed in on the constitutional requirements of bail systems in a federal appeals court.

Bail practices in the United States often leave poor people languishing in jail simply because they cannot afford a certain amount of money to purchase their freedom. Many of the more than 800 jail deaths logged by The Huffington Post between July 2015 and July 2016 involved individuals who were incarcerated after being arrested for minor offenses and who were unable to afford their bail.”

The two links in the paragraph above require some discussion because they pinpoint just what is wrong about the American system of “bail” and why in and of itself it represents a system of cruel and unusual punishment that marks our criminal justice system as barbaric, rather than enlightened. Continue reading “Bail: Another American Criminal Justice Fail”

America’s Broken Criminal Justice System

While I’m not a lawyer, I’ve done a lot of writing on legal issues. This is because at an early age I became interested in the nature of the broad spectrum of civil rights issues faced by this country. My interest became an obsession at the age of ten. My parents, who were quite liberal, allowed me to stay up way past my bedtime to watch Edward R. Murrow bravely attack  Senator Joseph McCarthy for his Communist Witch Hunt, by documenting the anti-constitutional excesses he used to destroy people’s lives and careers. Months later they kept me home from school to watch the Army-McCarthy Hearings which directly led to McCarthy’s downfall. On our twelve inch, black and white TV, I watched this famous scene:

“On June 9, 1954, the 30th day of the Army–McCarthy hearings, McCarthy accused Fred Fisher, one of the junior attorneys at Welch’s law firm, of associating while in law school with the National Lawyers Guild (NLG), a group which J. Edgar Hoover sought to have the U.S. Attorney General designate as a Communist front organization. Welch had privately discussed the matter with Fisher and the two agreed Fisher should withdraw from the hearings. Welch dismissed Fisher’s association with the NLG as a youthful indiscretion and attacked McCarthy for naming the young man before a nationwide television audience without prior warning or previous agreement to do so:

“Until this moment, Senator, I think I have never really gauged your cruelty or your recklessness. Fred Fisher is a young man who went to the Harvard Law School and came into my firm and is starting what looks to be a brilliant career with us. Little did I dream you could be so reckless and so cruel as to do an injury to that lad. It is true he is still with Hale and Dorr. It is true that he will continue to be with Hale and Dorr. It is, I regret to say, equally true that I fear he shall always bear a scar needlessly inflicted by you. If it were in my power to forgive you for your reckless cruelty I would do so. I like to think I am a gentle man but your forgiveness will have to come from someone other than me.”

When McCarthy tried to renew his attack, Welch interrupted him:

“Senator, may we not drop this? We know he belonged to the Lawyers Guild. Let us not assassinate this lad further, Senator. You’ve done enough. Have you no sense of decency, sir? At long last, have you left no sense of decency?”

McCarthy tried to ask Welch another question about Fisher, and Welch cut him off:

“Mr. McCarthy, I will not discuss this further with you. You have sat within six feet of me and could have asked me about Fred Fisher. You have seen fit to bring it out. And if there is a God in Heaven it will do neither you nor your cause any good. I will not discuss it further.”

The gallery erupted in applause.”

The drama of this distinguished lawyer chastising one of the most powerful men in the United States at the time and silencing his cruelty, was one of the defining moments of my life. It spurred a lifelong interest in the Constitution, the Law and the rights of the American People. Today, among other ills, I believe that our American Criminal Justice System is broken. Let me explain why I believe that. Continue reading “America’s Broken Criminal Justice System”

Compensating Those Wrongly Convicted: Another Failure of Our Criminal Injustice System

This morning a blog I follow: Lawyers on Strike,  reblogged what I think is an important essay.  It is relatively short and I’m going to reblog it here because I believe it raises important issues about the inadequacy of compensation given to those who have been wrongly convicted of felonies and spent significant time in prison.  When I first started writing as a guest blogger at Jonathan Turley’s blog, more than seven years ago, it was because the issues of the unfairness of America’s Justice System and its’ impact upon civil liberties was very important to me. In my seven years writing pieces at various sites, Criminal Justice has remained a particularly painful issue for me to deal with.  Perhaps this is so because I discovered after his death, that my father was a felon,  who spent time in Federal Prison.  Learning this brought together certain threads of his life and made me comprehend why life had been so difficult for him.  As best as I can tell my father was probably guilty as accused and his prison time was “only” 18 months, in a Federal Prison Farm.  Yet for the 20 years  that he lived after his release, the fact that he had been a convicted felon negatively affected whatever he success might have had in his life.  My father’s crime was a “White Collar” crime  involving harm to no one,  but in our society time in prison was not enough punishment and the stigma stays with a person until death.

When it comes to those unjustly convicted of felonies, who’ve spent many years in much harsher prison conditions, what compensation should they be due for time spent horrifically and the shattering of their lives?  We have seen in recent years literally hundreds of stories of people wrongly convicted, set free after many years, who return to a world changed radically.  We in America incarcerate more people per capita than any other nation in the world. We jail more people of color percentage wise than Whites found guilty of the same criminal activity. We pursue an insane “War on Drugs,” that thrives on low level convictions and yet stands helpless when it comes to the leaders of drug cartels. The final touch though, is that our criminal justice system itself is corrupt, as I’ve written about it in

https://elephanttail.wordpress.com/2015/12/04/the-law-is-a-whore/

and in

https://elephanttail.wordpress.com/2016/02/20/the-law-is-a-whore-redux/

.  Actually,  if you click  Criminal Justice , you will find that I’ve written thirty one pieces altogether that touch on the unfairness of the American Criminal Justice System.

With all that I’ve written, very little deals with actual accounts by those wrongly convicted. What follows,  in its entirety, is a piece written by a formerly wrongly convicted felon, who after his release became a lawyer whose main interest is in freeing other wrongly convicted people.  At the Marshall Project,  he writes poignantly about another wrongly convicted felon and his friend, who recently killed himself because his readjustment to society, after 20 lost years, was just too damn hard. This piece raises the issue of what is just compensation paid to people after decades are stolen from their lives through wrongful convictions. I must emphasize that from my perspective, almost all wrongful convictions are the result of prosecutorial and police collaboration to clear their cases, without regard to the guilt or innocence of the accused.  Please read the following, it’s a short, but cogent essay and then please comment on what you think a just system of compensation would be: Continue reading “Compensating Those Wrongly Convicted: Another Failure of Our Criminal Injustice System”

Interpreting the 2nd Amendment By a Former Supreme Court Justice

One of the Bloggers that I follow because I enjoy his unique perspective on our world is LaMonte M. Fowler. He has a very pertinent post in light of the shooting of the Republican Congressmen, which is worth sharing and keeping handy when the issue of gun control arises. LaMonte  reprises an article written by a Republican Conservative Warren E. Burger, Chief Justice of the United States Supreme Court (1969-86):via Interpreting the 2nd Amendment — LaMonte M. Fowler

This essay was originally published in Parade Magazine on January 14, 1990 on page 4. I believe it to be the clearest, most cogent, and historically accurate interpretation of the 2nd Amendment from an originalist point of view. And the author had the added benefit of being a person of substantial authority on matters of Constitutional Interpretation.

“The Right To Bear Arms

A distinguished citizen takes a stand on one of the most controversial issues in the nation

By Warren E. Burger, Chief Justice of the United States (1969-86)

Our metropolitan centers, and some suburban communities of America, are setting new records for homicides by handguns. Many of our large centers have up to 10 times the murder rate of all of Western Europe. In 1988, there were 9000 handgun murders in America. Last year, Washington, D.C., alone had more than 400 homicides — setting a new record for our capital.

The Constitution of the United States, in its Second Amendment, guarantees a “right of the people to keep and bear arms.” However, the meaning of this clause cannot be understood except by looking to the purpose, the setting and the objectives of the draftsmen. The first 10 amendments — the Bill of Rights — were not drafted at Philadelphia in 1787; that document came two years later than the Constitution. Most of the states already had bills of rights, but the Constitution might not have been ratified in 1788 if the states had not had assurances that a national Bill of Rights would soon be added.

People of that day were apprehensive about the new “monster” national government presented to them, and this helps explain the language and purpose of the Second Amendment. A few lines after the First Amendment’s guarantees — against “establishment of religion,” “free exercise” of religion, free speech and free press — came a guarantee that grew out of the deep-seated fear of a “national” or “standing” army. The same First Congress that approved the right to keep and bear arms also limited the national army to 840 men; Congress in the Second Amendment then provided:

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
In the 1789 debate in Congress on James Madison’s proposed Bill of Rights, Elbridge Gerry argued that a state militia was necessary:
“to prevent the establishment of a standing army, the bane of liberty … Whenever governments mean to invade the rights and liberties of the people, they always attempt to destroy the militia in order to raise and army upon their ruins.”
We see that the need for a state militia was the predicate of the “right” guaranteed; in short, it was declared “necessary” in order to have a state military force to protect the security of the state. That Second Amendment clause must be read as though the word “because” was the opening word of the guarantee. Today, of course, the “state militia” serves a very different purpose. A huge national defense establishment has taken over the role of the militia of 200 years ago.

Some have exploited these ancient concerns, blurring sporting guns — rifles, shotguns and even machine pistols — with all firearms, including what are now called “Saturday night specials.” There is, of course, a great difference between sporting guns and handguns. Some regulation of handguns has long been accepted as imperative; laws relating to “concealed weapons” are common. That we may be “over-regulated” in some areas of life has never held us back from more regulation of automobiles, airplanes, motorboats and “concealed weapons.”

Let’s look at the history.

First, many of the 3.5 million people living in the 13 original Colonies depended on wild game for food, and a good many of them required firearms for their defense from marauding Indians — and later from the French and English. Underlying all these needs was an important concept that each able-bodied man in each of the 133 independent states had to help or defend his state.

The early opposition to the idea of national or standing armies was maintained under the Articles of Confederation; that confederation had no standing army and wanted none. The state militia — essentially a part-time citizen army, as in Switzerland today — was the only kind of “army” they wanted. From the time of the Declaration of Independence through the victory at Yorktown in 1781, George Washington, as the commander-in-chief of these volunteer-militia armies, had to depend upon the states to send those volunteers.

When a company of New Jersey militia volunteers reported for duty to Washington at Valley Forge, the men initially declined to take an oath to “the United States,” maintaining, “Our country is New Jersey.” Massachusetts Bay men, Virginians and others felt the same way. To the American of the 18th century, his state was his country, and his freedom was defended by his militia.

The victory at Yorktown — and the ratification of the Bill of Rights a decade later — did not change people’s attitudes about a national army. They had lived for years under the notion that each state would maintain its own military establishment, and the seaboard states had their own navies as well. These people, and their fathers and grandfathers before them, remembered how monarchs had used standing armies to oppress their ancestors in Europe. Americans wanted no part of this. A state militia, like a rifle and powder horn, was as much a part of life as the automobile is today; pistols were largely for officers, aristocrats — and dueling.

Against this background, it was not surprising that the provision concerning firearms emerged in very simple terms with the significant predicate — basing the right on the necessity for a “well regulated militia,” a state army.

In the two centuries since then — with two world wars and some lesser ones — it has become clear, sadly, that we have no choice but to maintain a standing national army while still maintaining a “militia” by way of the National Guard, which can be swiftly integrated into the national defense forces.

Americans also have a right to defend their homes, and we need not challenge that. Nor does anyone seriously question that the Constitution protects the right of hunters to own and keep sporting guns for hunting game any more than anyone would challenge the right to own and keep fishing rods and other equipment for fishing — or to own automobiles. To “keep and bear arms” for hunting today is essentially a recreational activity and not an imperative of survival, as it was 200 years ago; “Saturday night specials” and machine guns are not recreational weapons and surely are as much in need of regulation as motor vehicles.

Americans should ask themselves a few questions. The Constitution does not mention automobiles or motorboats, but the right to keep and own an automobile is beyond question; equally beyond question is the power of the state to regulate the purchase or the transfer of such a vehicle and the right to license the vehicle and the driver with reasonable standards. In some places, even a bicycle must be registered, as must some household dogs.

If we are to stop this mindless homicidal carnage, is it unreasonable:

  • to provide that, to acquire a firearm, an application be made reciting age, residence, employment and any prior criminal convictions?

  • to required that this application lie on the table for 10 days (absent a showing for urgent need) before the license would be issued?

  • that the transfer of a firearm be made essentially [similar] as with that of a motor vehicle?

  • to have a “ballistic fingerprint” of the firearm made by the manufacturer and filed with the license record so that, if a bullet is found in a victim’s body, law enforcement might be helped in finding the culprit?

These are the kind of questions the American people must answer if we are to preserve the “domestic tranquillity” promised in the Constitution.”

It was necessary for me to share this post because this essay by Chief Justice Burger gives lie to the claim by National Rifle Association dependent “Conservatives“ that they represent the true “originalist“ view on regulating firearms.  Warren E. Burger served as the Supreme Court Chief Justice for 17 years after being appointed by Richard Nixon. “The U.S. Supreme Court delivered numerous conservative decisions under him, it also delivered some liberal decisions on abortion, capital punishment, religious establishment, and school desegregation“. Burger exemplified someone true to his own conservatism, rather than the majority of professional conservatives today who are really people who deform the basis of their political beliefs with personal prejudice and/or personal greed.

 

Citigroup Isn’t Just a Bank, Perhaps It’s a Criminal Enterprise?

“The Citi Never Sleeps” Citibank Slogan

      

            “All Animals are Equal”

“Some Animals are More Equal than Others”

                       George Orwell: “Animal Farm”

 

One of the ongoing political questions that has been asked in this country since the Bank bailout in 2008,  which began with Bill Clinton’s and George Bush’s laissez faire corporate policies and entangled Barack Obama’s administration before he took the oath of office,  was how come some banks are “too big to fail?”  Perhaps the real question should be: Are some banks simply too criminal to support?  What I’m writing here is not speculation on my part,  but my question naturally arises from many recent instances where Citigroup’s Citibank has admitted to criminal activities and paid fines as a consequence.  Were this one particular instance then in fairness the criminality of Citibank’s operations could be chalked up to merely an inadvertent mistake.  However, if it seems that illegal activities which are emanating from one huge entity are ongoing, proven by their own admissions,  then it seems perfectly fair to question if that entity is indeed a criminal enterprise.  Let’s look at the record:

Citigroup’s Corporate Rap Sheet:

“The financial octopus known as Citigroup is the result of the marriage of one of the country’s oldest and most powerful commercial banks (Citibank) and a conglomerate (Travelers Group) created by Sanford Weill to promote and exploit the weakening of federal rules governing the financial sector. During the 2008 credit crisis, a struggling Citigroup had to be bailed out by the federal government, which ignored calls for its breakup and aside from some multi-million-dollar regulatory settlements did little to curb its aggressive practices. In 2015 it pleaded guilty to a criminal charge of currency market manipulation but was allowed to continue business as usual.”  (This goes on to detail specific illegalities for which Citigroup has been cited and admitted to)

Citi Ordered to Pay $770 Million Over Credit Card Practices:

“Citigroup Inc’s consumer bank has been ordered to pay $700 million in relief to borrowers for illegal credit card practices, the U.S. Consumer Financial Protection Bureau said.

Citi will also pay civil penalties of $35 million each to the consumer finance watchdog and the Office of the Comptroller of the Currency.

“Citi is fully reserved to pay costs associated with the agreements,” the bank said in a statement.

As of May 21, Citi had paid out over $17 billion in fines and settlements since the financial crisis.

The CFPB said that about 7 million customer accounts were affected by Citibank’s “deceptive marketing” practices, which included misrepresenting costs and fees and charging customers for services they did not receive.

A Citibank unit also “deceptively” charged nearly 1.8 million consumer accounts often unnecessary same-day payment fees while collecting payments, the CFPB said.

Citi said it had been issuing refunds and had stopped selling products that were part of its agreements with the regulators, including credit monitoring and debt protection products.

Citi shares were up 0.5 percent at $59.13 in late afternoon trading on the New York Stock Exchange.”

 

Forgotten in the rather civil tones of financial news discourse the above charges and fines were criminal in nature.  Yet,  despite rampant criminality of a fraudulent nature nobody was personally charged with a crime and nobody went to jail.  Contrast that with relatively petty criminals who receive draconian prison sentences for fraud and theft. How is it that in America today large scale enterprises engaging in criminal activities are able to commit them, pay their fines and watch their stock prices rise? Continue reading “Citigroup Isn’t Just a Bank, Perhaps It’s a Criminal Enterprise?”

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