If You Love Freedom, Thank a Librarian.

I got a ticket from Harlingen in the mail today for $75.00 for running a stop light on March 26, 2008. Of course, I promptly paid it, as I always do during those occasional periods when I have enough cash to pay them. Otherwise I become self-righteous, innocent and decide to demand my Texas Constitition-guaranteed jury trial.

The technology was really pretty cool. It had a picture of my no-longer-new Hyundai with a nice view of dents on in the rear. (It did not, however, catch the dents on the two sides). A tattered red bumper sticker quoting a former pope was stuck to the rear window. The license plate was mine. And you could almost make out the silhouette of the driver.

I say almost, because you see, I was not in Harlingen March 26th. In fact, I struggle not to go north of 802. I've never known anything good to happen that far north. I know Freddy Fender was from San Benito and that pretty well redeems the city, but Harlingen--I just can't think of anything.

I will go to the airport in Harlingen if I am facing really bad news that will make me actually fly somewhere, but I would rather drive a range of about ten hours than get on an airplane, so I do not exactly rack up the frequent flyer miles. In fact, I don't think I've gotten a free airplane ticket in ten years. I'll also go up to Raymondville for jail visits, but I hardly ever leave the main thoroughfares.

Mere work will not force me to go further than Raymondville. We are talking about death, marriage or birth (not mine for any of the three) and not much else.

So you can imagine my surprise to find I had been ticketed in Harlingen. And this on a perfectly good day when I most likely would not have left the house or driven, much less to some frightening northern city.

As you might guess, it wasn't me. Though I have not yet conducted the cross-examination, that week was Spring Break, Kathy was not teaching, her car was in the shop and believe I have some evidence she went to Harlingen to a stained glass shop in my car. She must have also busted a stop light, but since I was not there, it will be hard to argue against this allegation.

OK. Maybe a small thing. My car commits an offense, maybe, when I'm not there and I am responsible for paying the fine. (Anyone who thinks there is a chance that I might suggest Kathy pay the fine has clearly not been married as long as I have).

But where is my culpable mental state? I mean if I commit a criminal act don't all the various theories of law require I know I've committed a crime?

Unfortunately, committing a crime without knowing it is increasingly common. I represented a high school student who got in his Dad's car and drove it to school. The Dad had been repairing the upholstery in the back seat and left an unopened beer on the floor board. Sniffer dogs, parking lot patrols or other devices somehow turned it up while the student was in school. Zero Tolerance!! So the student, though not a great student, but nevertheless college bound, finds himself sentenced to 30 days in an alternative school penitentiary. We sued and then compromised.

Another case involved the dogs alerting to a girl's trunk at school. It turned out she had a sack of dog food in the trunk.

In theory, a Mexican National could be kidnapped and carried in a trunk into the United States and he might be guilt of illegal entry, because the crime may not require a culpable mental state.

I had a client accused of exporting legal cars, but not following the (brand new) regulations governing the paperwork. Knowledge of the law is not required for the crime and some laws are so obscure, no one knows them.

Maybe it's just that I am a relic of past days that make me think we should have some intent to commit a crime before we become criminals. Thirty five years ago, knowing you were committing a crime before you were prosecuted was a clearly defined right. But that's not the way it is now.

When we let rights slip away, they don't come back without a fight. And we just seem to get used to it. I had a friend once who argued that hell was really impossible because the idea of eternal suffering didn't make sense: after a while, you would get used to it.

I remember being shocked when I first got searched before I got on an airplane. Then I was shocked when I first got searched going into a courthouse. These things don't shock me anymore. But then, going on an airplane or in a courthouse was more or less voluntary for me.

What about all those jurors who are required to go by law, but can only go if they are searched? How are they "secure in their persons?"

We now expect to have our phone records given to the government, videotaping anytime we are outside of home, fingerprint taken to cash a check and blood taken if we drive. I know there is a good argument for each of these, doesn't anybody else feel just a little bit violated? Almost anyone in uniform can walk up and demand to see your ID. School lockers and car trunks at school and your car as far north as Sarita can be searched. And that's for the citizens.

Employers demand polygraphs to get or keep your job. Getting a loan, health insurance, a government job can be even worse. "Mr. Jones, ever committed adultery?" "Ms. Smith, ever had an STD?"

I was at a seminar a couple of weeks back and one of the speakers made this point: who can we think of in the last thirty years who has stood firm rather than give up civil liberties? Only the librarians. God bless them.

Saint Peter Don't You Call Me, 'Cause I Can't Go....I Owe My Soul to the Company Store

Big Bill Haywood, in his Autobiography, rejects labor contracts. He tells the United Mine Workers in Cripple Creek, "why enter into an agreement with the mining companies at all--that is a time agreement? Why not be in a position to strike at any time?"

I labored through six hours of contract law in law school and never really thought about the underlying premise of the morality of entering into contracts. In essence, most types of contracts involve a promise to do something in the future. Even putting aside for the moment the problems with adhesion contracts, what about the mere idea of making a promise that binds future actions. Isn't there a problem with this?

Jesus said to to the young man, "If you want to be perfect, sell what you own. Give the money to the poor, and you will have treasure in heaven. Then follow me!"

If he is bound by contracts, the young man must say, "Sorry, Jesus, I can't go. I've got a mortgage to pay, credit card bills to meet, and a six month employment contract to fulfill."

And this may have been what happened because when the young man heard this, he went away sad because he owned a lot of property.

If we enter a contract or promise to behave in a certain way in the future, does this break Jesus' rules of life laid out in the Sermon on the Mount? Jesus says (in one translation), "But I tell you don't swear an oath at all. " Other translations talk about "forswearing" oneself.

What is the difference between an oath that forswears a promise for the future and a contract? Maybe the first has some greater implied seriousness, because it is witnessed by God, but the concept of, in the present, committing your future self to a certain type of action, seems to be the same.

Isn't Jesus giving added support to this position when He says, "So don't ever worry about tomorrow. After all, tomorrow will worry about itself. Each day has enough trouble of its own?"

Contracts always require a worry about tomorrow. That is the whole idea.

And of course, beyond a calling from Jesus, in a more secular context, there may also be a call to the conscience.

For instance we might say,

"I woke up this morning with a clear belief that the rest of my life should be committed to designing and building low cost housing. Anything else would be a waste of my full potential and doing so would be my best chance to reduce human suffering."

Or,

"The muse has moved me and see in my minds eye the Great American Novel that will bring joy to millions and guidance to a nation lost in the wilderness."

Or,

"My young daughter has informed me she is growing up without me and I must stop all I am doing and spend time with her."

But then we remember all of the contracts we have signed and must say,

"No wait. I've forgotten. I need to pay off my Sears charge card first. And the consumer contract on the house siding. And the five year loan on the car. Oh, well. I will stuff away for now this call to conscience thing and this foolishness about living life to my highest potential. Maybe another inspiration will be along in another ten years."

Kathy: "Keep it short. You just like to hear yourself talk. I seriously think you are your biggest fan."

I had an idea for a story once. I thought of it again yesterday when I pulled down Volume VII of the Collected Works of Ambrose Bierce to quote the Devil's Dictionary on the meaning of "politics." I ordered this set more than 30 years ago and it is one of the few things I have been able to hang onto as the book shelf space has shrunk with serial downsizing of houses.

I intended to read it beginning to the end, Volumes I through XII.

(Then the Regional Commander for the Holy Spirit Association for the Unification of World Christianity (the Moonies, followers of Sun Myung Moon) got beat up by the Chief of Police while begging for alms in the City of Aubrey, Texas. As is often the case when someone is beaten by a policeman, the Regional Commander was charged with assault on a police officer.

At the time I was considering whether to leave my nearly still-born career as a lawyer to spend the rest of my life shooting free-throws in the back yard. I had sued the sheriff over the jail conditions in Denton County. (This being during my second Babylonian Captivity). He started locking me in the jail for several hours when I tried to visit clients. Also, the sheriff controlled the bonds. This was a county that did not allow bondsmen, but only lawyer-bonds, and the sheriff wouldn't let me make any more bonds. My law practice, already at risk of being declared a hobby by the IRS, went from sparse to nothing.

The Regional Commander found me in the back yard and hired me. The District Attorney dismissed the case against him, we sued Aubrey for violating the Free Exercise Clause of the 1st Amendment, got a consent judgment declaring the Solicitation Ordinance in Aubrey unconstitutional, and the Regional Commander brought me two hundred files of other cities in Texas and Oklahoma he wanted to sue. I bought the first word processor in the county and was suddenly fully employed again.

So my free-throw shooting career came to an end and my plans for this book were put on hold. ) Yes, Uncle Toby, a digression.

Back to Bierce:

Ambrose Bierce disappeared into the Mexican Revolution. He is known to have been with Pancho Villa's army during his last discovered letter. There was some speculation he had committed suicide. He was in his 70's. He had written a letter to his niece Lori including this:

"Good-bye — if you hear of my being stood up against a Mexican stone wall and shot to rags please know that I think that a pretty good way to depart this life. It beats old age, disease, or falling down the cellar stairs. To be a Gringo in Mexico — ah, that is euthanasia!"

Then there was B. Traven, who wrote Treasure of the Sierra Madres. Traven would have been in Mexico about the time Bierce was there, if Bierce had survived long enough. Bierce was in Mexico in late 1913. Traven was there probably by 1924.

Traven is a puzzle. No one has figured out who he was. He would go by the nickname, El Gringo, and changed his name often. He had some American and some German connections. One anecdote I have heard is that when Treasure of the Sierra Madres was being made into a movie he surfaced for a while to give technical suggestions and then disappeared.

So we have two great personalities and writers. One disappeared in Mexico without a trace and one appeared in Mexico without a history.

My story was that they were the same person. Pretty cool, right?

I planned to read everything either writer published so I could steep myself in both their personalities. I then planned to write the great American novel and in the process explain in fiction both Bierce's disappearance and Traven's appearance.

There were a few problems with this theory. First, Bierce should have been born about 50 years before Traven. If the guy who died in 1969 was really Bierce (or Traven for that matter), Bierce would have died at age 155.

Second, Traven's work may have been originally written in German and translated.

Third, Traven most likely was in Germany or Chicago when Bierce was in San Francisco.

Fourth, writing styles are not very similar. It has been so long since I've read either, I hate to characterize them, but I think it is fair to say they are not similar.

Bierce was known as "Bitter Bierce" and besides his caustic humor he wrote eery short stories: One for instance about an officer directing artillary at his own family's house out of a sense of duty. Another, about a man being hanged from a bridge and the thoughts that went through his mind just before the rope snapped his neck.

Traven was spare in his style and wrote in defense of Mexican Indian rights and Wobbly politics.

All right, I admit, there were a few problems with the idea.

Then Carlos Fuentes wrote El Gringo Viejo and gave his version of Bierce's disappearance. Thus ended my project; I had little enough confidence that I could produce anything worthwhile even without having to be compared with the likes of Carlos Fuentes. The big upside, though, was that I had an excuse to spend a lot of time reading Bierce and Traven.

More Blake; the Abomination of the Law

Kathy says my posts are too long and boring. I will only say I take my model from GOAB; he went on and on and on, but when I read him, I always stay with him. But then, I'm not GOAB (no one since, readers true, has been GOAB) and I in the reading of an essay, I have been called "Relentless." (Not just in reading an essay, but I fear it is something of a character defect, something like that of our fat English Bulldog, Daisy, who will sit and bark at a dead bug for hours). So this could well have been part of yesterday's post, because I was not yet ready to turn loose of William Blake, but out of a sense of mercy, I have divided it in two or three...or four.

All Penal Laws court Transgression & therefore are cruelty & Murder.

The laws...were what Christ pronounced them, The Abomination that maketh desolate, i.e. State Religion, which is the source of all Cruelty.

Who among us can read those words without thinking of the United States Sentencing Commission Guidelines Manual (affectionately called the Federal Sentencing Guidelines by those of us the trade). Or Kafka's little story, In the Penal Colony. Somehow, to think of it, those two pieces of modern literature seem to whirl and blend together. Do you remember the image in 1984 in which the fingers being held out swirled between two and three (or was it three and four), but the pain caused Winston's mind to blur the image to get the result the interrogator desired? This whirling and blending and swirling from pain comes to me with the Federal Sentencing Guidelines, and if me, how much more my clients who are on the bloody end of the stick.

To be fair, the Federal Sentencing Guidelines are not all bad, if we must regulate society using executions, prison camps, fear, chains, threats and violence as motivators.

For instance, by contrast, sentencing by the State of Texas, allows little predictability that can be offered to a client preparing for trial. The accused may be looking at anywhere between five years probation to life imprisonment, depending on the makeup of the jury. My friend Phillip argues the uncertainty in the state system that he would be more willing to brave the harsh sentences of the guidelines than subject a client to the whim of a jury or judge in state court.

In the State of Texas, there is little certainty to come from a trial. The accused may be looking at anywhere between five years probation to life imprisonment, depending on the makeup of the jury. My friend Phillip Cowen argues the uncertainty there is so great that the predictability that comes with a guideline are worth the generally higher sentences.

Maybe, but the Texas Sentencing is a topic for another day.

Today, I want to entertain and amaze you by simply describing the Federal Sentencing Guidelines with its breathtakingly weird values.

At some point I will brave the subject of how cruel these guidelines can been. For today, I can only face the issue of how odd they are. Also, for those of you who are breathlessly awaiting the day, I want at some point to describe how all of this strangeness was adopted.

(Here's a hint: It was cosponsored by Ted Kennedy and Strom Thurmond. It is as if Dr. Moreau and Dr. Mengele got together to recreate Dr. Frankinstein's manufactured human being. Kennedy wanted the newly created invention to do social work and Thurmond wanted him to be a jailer. Instead, the monster had a mind of his own and has decided to plant colonies all over the country, but particularly in Willacy County.)

Anyway, the good doctors forgot to give the monster a frontal lobe, so the poor creature cannot feel emotions. This, then, is how he responds to your suggestions on how to punish the newly convicted felon.


"This kid is 18 years old, so maybe we should give him a break."

Sorry. The guideline says age (including youth) "is not ordinarily relevant in determining whether a departure is warranted."

"Well, OK, but now I have a Nobel Prize winning cancer researcher with a Phd. Wouldn't it be a shame to see all of that education go to waste?"

Sorry, again. Education is "not ordinarily relevant in determining whether a departure is warranted."

Beginning to see a pattern?

"OK,then, this young woman is suffering severe post-partum depression and psychotic episodes, that should be considered shouldn't it?"

Are you not paying attention? "Mental and emotional conditions are not ordinarily relevant in determining whether a departure is warranted."

"This guy is dying of AIDS and will only be on this earth a few more months."

Well, no, physical condition is "not ordinarily relevant in determining whether a departure is warranted."

"This one has held a steady job for thirty years and is near getting his pension."

No, employment record is "not ordinarily relevant in determining whether a departure is warranted."

"No one raised him, he grew up in the streets all alone after both parents were murdered."

Sorry.

"She is taking care of her five kids and five more from her sisters who have gone into hiding."

No, family ties and responsibilities, are "not ordinarily relevant in determining whether a departure is warranted."

"She's a war hero just back from Iraq."

Nope.

"She is set up a foundation for crippled children."

Naw.

"She has worked full-time as a candy striper since she retired ten years ago."

Sorry, again.

In other words, most everything people (and yes, this includes judges and prosecutors) think is important is ruled out by this being cobbled together by Ted Kennedy and Strom Thurmond.

I understand, readers true, you are not facing federal charges, so who cares. Permit me a couple of hints of the magnitude of this problem. How about this quote:

The number of people behind bars in the "land of the free" is grown as large as the combined populations of Atlanta, Miami, Minneapolis, Cincinnati, Kansas City and Pittsburgh.

That's the shocking fact in a Pew Center on the States report showing that one in 100 adults in the U.S. are in prison or jail--more than 2.3 million people. -- For a link to this quote, click on the title.

Blake brings us back to the first issue we should look at. Do we have a right to be punishing people at all?

Jesus was sitting in Moses' Chair;
They Brought the trembling Woman There
Moses commands she be stoned to death;
What was the sound of Jesus' breath?

"Good & Evil are no more!
Sinai's trumpets cease to roar!
Cease, finger of God, to write!
The Heavens are not clean in thy Sight!

Thou art Good & thou Alone,
Nor may the sinner cast one stone."

Easter Musings

Was Jesus Born of a Virgin Pure
With narrow Soul & Looks demure?
If he intended to take on Sin
The Mother should an Harlot been...

Let us now praise Levellers, Diggers, Quakers, Ranters, and the Muggletonians. William Blake, poet and engraver, lived 69 long years around the turn of the 19th Century. He was thought insane by many then and by others now.

I like him for many reasons, but among them, because he rejects the Law--yes, again, this word "antinomian." One scholar calls him "The Last Antinomian and the First Prophet of the Modern World."

Now let's move from Blake to that great 21st Century philosopher, Dwight Yoakum:

You don't know me but you don't like me
You say you care less how I feel
But how many of you that sit and judge me
Have ever walked the streets of Bakersfield?

Thank you, Dwight, we will get back to you.

So why would Blake think it more appropriate for Mary, Mother of Jesus, to be a harlot than a virgin?

If He were well-born, He would have no basis for knowing the suffering of the sinner.

Robert Graves, for instance, wrote a fictionalized biography of Jesus. Graves posits (as I recall, because I won't read the book again to make sure) that Jesus was secretly the son of some type of royalty. That way we don't have to admit that low-born people might be equal or better than the high born (such as Graves).

John Dominic Crossman in Jesus, a Revolutionary Biography, has, for me, a more satisfying portrait. Jesus was illiterate and illegitimate. He was never buried, but the dogs ate His body off the cross, because that is what happened to people of His status and power who challenged the Empire. The other stories were invented later to comfort the well-born.

How could Graves' royal Jesus with a secret, worldly and human Santa Clause-like father to care for him be the savior of the unwashed masses. Crossman's Jesus could be the Savior, because He had walked the streets of Bakersfield.

Many of our brothers and sisters do have mothers who were, in fact, whores. Prostitutes are guaranteed in this Man's America (and Mexico, etc., etc.) When women can't get educations or jobs and men can't make enough to support families, there will be prostitutes and children of prostitutes. We are not talking about the Happy Hooker. We are talking about grinding poverty and hungry children and a mother who is trying to get by.

My friend Jeff used to be a syphilis hunter for a living. He would wander first Chicago and then Houston talking to the hookers to find out who had syphilis so he could refer them to treatment.

I have represented many prostitutes, usually when they were charged with drugs, or assault or theft or coming into the country illegally, or in one case a 14-year old child who was being held as a material witness in a pornography case.

Jeff and I have discussed this and concur we both have high regard for the women in this world. (I mention Jeff, because he is obviously an expert in the subject and supports my more limited impression). And many were mothers and good. Madonnas, even.

Many of my clients have mothers who were prostitutes and do not know their Dads. This is not something I usually ask in the initial interview, but the pieces fall together. Many children of prostitutes, boys and girls, become prostitutes themselves.

So, Blake asks, with a world full of children of prostitutes, how can you take on sin if you are not one of them? Blake was historically square in the middle of the "Enclosures" that drove subsistence farmers off their land to make room for cash crops to make room for capital to make room for the industrial revolution. Hence the uprising of Levellers, Diggers, Quakers, Ranters, and the Muggletonians. Hence the antinomians. Hence the prostitutes and the children of prostitutes.

Happy Easter, Mr. Blake. Happy Easter, Mr. Yoakum. Happy Easter, Jeff. Happy Easter to the prostitutes, past and present. Happy Easter to the children of prostitutes. And happy Easter to you, as well.

Three Things No District Attorney Should Do, But That All District Attorneys Will Always Do, For All The Wrong Reasons

Before we begin, and in hopes of establishing some meager credentials, let's drag one of my skeletons out of the closet for all of the paraclete to see.

(Paraclete here is used in the obsolete form, second definition in the OED2, meaning advocate or intercessor. It is not meant so broadly as to mean all lawyers, oh no, readers true, most lawyers are not paraclete, but satans; Satans, not meaning the Devil, but in the etymological sense of 'adversary' with allusion to Matt. xvi 23. Nor is it so narrow as to include only criminal defense lawyers, but would include other "advocates" and "comforters" such as Tolstoy, Gandhi and Jimmy Odabashian, and Gail Hanson, that is those who advocate and comfort without setting foot in the courtroom. It is not capitalized so as not to mistake it with the Holy Spirit on this Good Friday. Nor is the form changed for the plural, because I cannot find a single usage in which it has been changed for the plural. I find reference to "paracletes" as the plural, but I am unwilling to be the first to actually use that ugly form.

Roughly stated, "paraclete," here means defense attorneys and preachers for accused criminals and '"satan," here means prosecutors. This is not intended as an insult, but just an etymological inevitability. Please do not be offended dear, dear friends in the various offices of prosecution; I am not responsible for penning the Gospels.

While I am digressing may I say, on this Good Friday, that Dorothy Day who is, or should be a saint, uses the word "precarity." In 1952 writing for the Catholic Worker Movement:

"True poverty is rare," a saintly priest writes to us from Martinique. "Nowadays communities are good, I am sure, but they are mistaken about poverty. They accept, admit on principle, poverty, but everything must be good and strong, buildings must be fireproof, Precarity is rejected everywhere, and precarity is an essential element of poverty. That has been forgotten. Here we want precarity in everything except the church. (...) Precarity enables us to help very much the poor. When a community is always building, and enlarging, and embellishing, which is good in itself, there is nothing left over for the poor. We have no right to do this as long as there are slums and breadlines somewhere.

No one else seems to use it and OED2 does not describe the word, so much more elegant than the awkward "precariousness."

In summary, "paraclete" should mean , when we do our jobs, defense lawyers, "satans" means prosecutors, and "precarity" is my Good Friday prayer.

I add "precarity" because all good things come in groups of three.

Please pardon me, Uncle Toby.)

Now for the skeleton: I ran for District Attorney in Denton County in 1976. The shame of it. Fortunately, I lost.

Nonetheless, about the things I am about to say, I know of what I speak.

No District Attorney should do the following:

1. Prosecute food stamp fraud.
2. Prosecute hot checks.
3. Prosecute dope cases.

1. Food Stamp Fraud. Food stamp fraud is the worst. It always jails a welfare mom who is struggling to hold things together. It puts her in jail. The kids go hungry. She loses her job at Whataburger. If she happened to have a house at a nickel down and umpteen dollars a month on a contract for deed, she loses that. When she gets out, her life is a shambles, her children are at risk and she can't dig out. Instead of just taking the overpayment out of her future stamps. The Texas Department of Human Racehorses (or whatever euphemism they use these days) sends it over to the DA for prosecution.

Instead of telling TDHR to go back to the hell from whence they came, DA's offices love these cases. Why? a. They are easy to prove because TDHR extorts a confession on the false promise of future food stamps. b. The accused is always too broke to hire a lawyer. c. TDHR gives a kickback of $500 for each case.

2. Hot checks. This is a poverty crime. Merchants should verify the checks before they accept them. Hot check courtrooms are filled with the poor and not criminals. DA offices and the majesty of the law should not be a collection agency for sloppy merchants. Most people who write hot checks are not really guilty of theft, as they are charged, but with not balancing their check books, but they cannot afford the defense and the public defenders don't have the time to defend them.

But DA's love these cases. Why? Merchants like them and they are more likely to contribute to a campaign than poor people are. Also, DA's get to print up those nifty signs so all the merchants can stick them in their windows that say, "We prosecute hot checks!" with the campaign logo on the bottom.

Another skeleton: I printed one of those signs when I ran for DA in 1976. I hope by now they are all clogging up solid waste deposits so no one will ever see one again. The shame of it.

3. Dope cases. They corrupt the police forces (and sheriff's office as we saw a few years back). The feds have more resources and can do it better. If the case is too small for the feds, it's not worth handling. They clog up the courts. Many of the people accused are not criminals or even particularly anti-social.

Why do DAs handle them? Forfeiture money and property is a lot of fun. Anyone want a Escalade with tinted windows? The photo opportunities to claim that a zillion dollars have been taken off the street with pictures, yes, just like Tony Montana, with a mountain of dope, money and guns, is just too exciting.

What should a DA prosecute? Murder. Rape. Robbery. Assault. Burglary. The rest are civil matters.

Think how the backlog of cases, overcrowded jails, beleaguered jailers, overworked prosecutors, harried judges, exhausted probation officers, nervous bailiffs, nearsighted clerks and frazzled public defenders would be helped by this change. Also think about how many poor and harmless people you would let out of jail.

Children in Shackles

Kathy usually hates going to court. She is impatient and critical, so I don't like for her to come.

A couple of weeks ago, she went with me to the Darrell Hester Juvenile Justice Center in San Benito. A lawyer friend of mine who would be out of town needed someone to cover a hearing to get a kid out of jail.

This little boy, fifth grader, 10 or 11 years old, was "being detained" because at school he had been kicking and slapping fifth grade girls and even chased one into the girl's restroom. Kathy has taught 5th grade and believes this is pretty normal behavior.

This boy had been incarcerated for a week. I have never seen the inside of a juvenile detention facility and this place may be just like grandma's house, but any separation from mom and dad for this long --well, we can only imagine.

When the child stood up to hear the order of his release, it became apparent he was shackled. He cried, mom and dad and aunt and uncle cried. I didn't look over at Kathy.

But later she was angry at me, "Why was he wearing handcuffs?"

I will admit I was well inured to the sight and only when I began to think about it later could I think, "why indeed?"

The boy was a short, fat, round-faced child. Physically he could have been dominated by a small, untrained woman. There was little likelihood of assault or escape.

Of course, part of the answer is that not all juveniles are like that. Some are large and dangerous and there is no ready, fair way to classify the kids based on dangerousness.

Some more of the answer lies in the habits of correctional institutions. Unless there is a jury, and after all, judges and jurors have been attacked and murdered in the courtroom, inmates are shackled in the courtroom . Although this boy was a very small and young inmate, he still wears the title of "inmate" rather than the more obvious title of "child." But still, isn't there a better way?

During my most recent Babylonian Captivity, five years in Denton County, when I drove to the courthouse, I would pass the children in boot camp. I would get that sick feeling deep in the stomach you get when you see films of the clubbing of baby seals. "Tough love" as I watched it showed no love at all.

There are some pitiful adult sights as well.

The shackles in federal court are an intricate affair. A chain connects the legs above the ankles and runs up to connect to the handcuffs. Walking is a shuffle. Backs are bent and sometimes the prisoner will try to move his leg around to get the steel off of the bone. Crippled people, people too obese to stand, sick people are all shackled in this way. Some have fallen being brought to the courtroom. In some courtrooms the prisoner is expected to stand for an hour in chains during multiple pleas while most every else in the courtroom gets to sit down. Why these things either?

Little reforms might address some of the more painful of these sights. Just as inmates are screened pretrial to see who will get bond and screened post-conviction to see who gets probation, who gets a camp and who gets a maximum security unit, people being brought to trial could be screened to determine dangerousness or a need for shackling. But that would be an extra expense and money is always short in this world.

The truth is that of the thousands of people I have seen in jails and prisons over the years there have only been a handful that I would not have liked to have seen released immediately. The few who were dangerous were suffering from severe mental illness.

George Bernard Shaw in his tract the Crime of Imprisonment argues for abolition:

Imprisonment today is a worse crime than any of those committed by its victims; for no single criminal can be as powerful for evil, or as unrestrained in its exercise, as an organized nation. Therefore if any person is addressing himself to the perusal of this dreadful subject in the spirit of a philanthropist bent on reforming a necessary and beneficent public institution, I beg him to put it down and go about some other business. It is just such reformer who have in the past made the neglect, oppression, corruption and physical torture of the old common gaol the pretext for transforming it into that diabolical den of torment, mischief, and damnation, the modern model prison.

"I'm Your Worst Nightmare, an MBA with a Badge"

"Did I remember to buy personal hygiene products for the women prisoners?

Does the commissary have Cheetos?

I think there should be a state constitutional amendment to allow individual counties to switch to a more administrative sheriffs department in which is a sheriff that meets a set of qualifications is hired not elected.

Patricia A.

I have been mulling this suggestion since I first read it. Sheriffs do seem poor fits for their jobs. Would appointing them improve the quality of justice and law enforcement?

It is hard for me to get my mind around an appointed sheriff. The sheriff has traditionally been the most politically powerful and usually the most popular figure in the county. The first sheriff I met was Wiley Barnes in Denton County jail. I was a seventeen year old high school student who had been picked up for fist fighting at the truck stop after the Senior Prom. I say "picked up" rather than "arrested," because Sheriff Wiley decided if someone was arrested or not when they got to the jail. We were "just some boys blowing off steam," and we should hold on to it because "we would both be getting all the fighting we wanted to do soon enough in Vietnam." So he let us go.

The sheriff was wrong about us both fighting in Vietnam; my adversary had wrapped his truck around a telephone pole and I escaped to a student deferment before the year was up. But the sheriff was usually right.

Sheriff Wiley was a slight man and dapper. He was one of the few Texas sheriffs I have known who did not wear a cowboy hat. He looked more like someone you would meet at a wine-tasting party. He was known, though, by his gloves. He carried around a pair of cream-colored lambskin gloves. The room would get quiet if he put on the gloves. No rowdy, no matter how big, could ever beat him in a fair fight and he personally controlled crime one on one.

The sheriff finally left office after the feds caught him warning a local doctor that the doctor's son would be arrested on a federal drug charge.

Before his fall, who would the county commissioners have appointed? Sheriff Wiley. Who would the legislature have chosen? Sheriff Wiley. Who would the governor have appointed? Sheriff Wiley.

But those were simpler times. There was one party and no one's opinion mattered but the good old boys'.

Who might be hired or appointed for sheriff today in Denton County? The governor would likely pick some blow-dried sissy Aggie who impressed him when he was working for the Senate as one of the sergeants at arms. The legislature would select a smart young lobbyist with a strong anti-abortion record. The county commissioners would pick a real estate developer who had previously served as Republican County Chairman.

Who would the likely Cameron County appointments be? Sophie and Jared are recent appointments, so they may be fairly characteristic of the choice on a county level. Carlos Cascos has the governor's ear, so Carlos would likely have a say if the governor got to pick. The former county treasurer, maybe? I'm not sure these would not be better sheriffs than we will elect, but it would certainly be different.

What qualifications does a sheriff need? In the rural areas, the sheriff performs the functions of the police. As more and more of a county is incorporated, the less important this function becomes. Nonetheless, for that role we would want an experienced cop. Maybe a degree or a masters in law enforcement? Social work? Anthropology? Forensic medicine? In Cameron County the sheriff must deal with a lot of bodies being dropped around. A sniffer canine trainer or a pathologist might be the ticket.

Cameron County Sheriff's office has some very clever cops who have knack for DNA and other scientific evidence. I can see them as good sheriffs but not good politicians. Maybe one could get an appointment in the unlikely event that a commissioners court wanted to pick the most qualified candidate.

Sheriffs also serve process. This takes more of an administrator hiring the right people. Maybe experience in management? Business degree?

And then there is the jail. This has become a long-term residence for thousands and the sheriff must fill all the roles of running a small company town that no one can leave. My local choice for this position would be Mike Leinart, the current chief jail administrator. If he had the final say and the right resources, I think it would be a different jail. He might be able to get an appointment, but I don't see him running for office; the qualities that would make him good at the job--honesty, in particular-- would make it hard for him to get elected.

One measure of what appointed sheriffs might look like would be to look at U.S. Marshals. In some ways this is comparing apples and oranges because the resources of the feds are so great and those of the county so small. But Marshals don't run jails, at least not here. These are all contracted out to public and private facilities and the results are bad.

The federal prisons I have seen are not bad (if ever a prison can be good). So I think the feds could run a decent jail if anyone wanted to do so.

What, though, are the qualities of a U.S. Marshal? They are virtually invisible. As much time as I spend with federal prisoners, I couldn't tell you who the U.S. Marshal is in the Southern District. Can anyone name a U.S. Marshal besides Matt Dillon and Wyatt Earp?

Even if we were to decide a constitutional amendment to hire sheriffs is a good idea, it would be a pie in the sky hope--much like waiting for the year of jubilee. Trying to take away the power of elected sheriffs would meet a juggernaut of opposition that would crush any silly reformer in its path. It would be even more difficult than trying to politically challenge J.P.'s or chiropractors.

Freedom of Speech and Freedom From Quartered Troops, Illegal Searches, Hopes for Penumbras and Emanations and other Mournfully Expectant Desires

Granddaddy of all Bloggers

WWMD

"I speak truth, not so much as I would, but as much as I dare; and I dare a little the more, as I grow older; for, methinks, custom allows to age more liberty of prating, and more indiscretion of talking of a man's self." The granddaddy of all bloggers (hereinafter GOAB) tells us.

What greater security in freedom of speech GOAB offers from "custom;" far more constant, than that whippersnapper, the First Amendment.

This brings me to further discussion of the Bill of Rights, in particular the 1st, 3rd, 4th, 9th and 10th.

First, to my Primo (that is, both directly descended from the McGroarty family of County Donegal, by way of Wilkes-Barre, Penn.--everyone is Irish on St. Patrick's day) and his concern for the 1st Amendment. Also, to offer to him the sincerest form of flattery.

The First Amendment is gone. Justice Holmes burned it in the burning theater. Adams and Woodrow Wilson jailed it during time of war. And then most deadly of all, the corporations bought it: Time Warner, Disney, Murdoch's News Corporation, Bertelsmann of Germany, and Viacom (formerly CBS) -- now control most of the media industry in the U.S. General Electric's NBC is a close sixth.

You and I, Primo, can say most anything we want because we have no power. No one cares because no one listens. But imagine if either one of us owned one of the big five. Only then would we find out if First Amendment provides any protection. My hunch is that just as free speech disappears in time of war, a clear and present danger would exist if either of us were in a position of power.

Now back to the antinomianism. Neither your hero Voltaire, nor my hero GOAB had the benefit of the Bill of Rights. The salvation of society, in the unlikely event it occurs, will not be by law, but by grace. The Bill of Rights, however graceful, is still law.

Now the 3rd Amendment, alone, seems still to be around and strong. I search the house each day and find no troops quartered.

The 4th Amendment appears to have been repealed with the war on drugs. I did not read about the repeal in the advance sheets, but try to keep someone out of the slam on the flimsy grounds that he has not been secure in his person, house, papers, and effects, against unreasonable searches and seizures.

Fellow blogger, BobbyWC describes his hope for the 9th Amendment. The 9th and 10th Amendments describe the rights and powers being retained by the people. These amendments had a brief flowering with the Right of Privacy being found in the "penumbras and emanations" of the Amendments. Outside of this pleasing phrase, not much satisfaction has come from 9 and 10.

Charles L. Black in his slim book, A New Birth of Freedom, argues the Declaration of Independence, in particular the "right to the pursuit of happiness" be carried down into and through the Ninth and Fourteenth Amendments. He argues the result "will be a thoroughgoing and never-ending working-over of the regime of law..." leaving folks alone to pursue happiness, which he thinks is not a bad thing.

God Bless the Second Amendment

Happiness is a Warm Gun www.ebsqart.com/Art/45/26709/HappinessisaWarm).

Shoot Shoot. Bang Bang.

Guns. Of course I love them. A while back my daughter Halley and I went and saw Brownsville's gunman Chuck Fredieu. He took us through his course and reminded me how to shoot without knocking off the top of my thumb. It was a father-daughter kind of thing. I helped Halley buy a shiny new pistol just in time for the new laws allowing us to carry a pistol in the car. It gives you a warm and fuzzy feeling doesn't it?

Now, yes I love guns, but I am not a good shot and rarely have fantasies of murder or self protection or suicide or even shooting critters or winning a target shooting competition (this one, yes, sometimes). I think I love guns like I love cameras and bicycles, even though I am not much of a photographer and I am not likely to actually ride a bicycle. They are pretty and the heft feels good.

It's not a man thing either. Halley loves her guns as much as I do. I have caught her pointing and clicking and reading Pistol Shooting Basics when she thought no one was watching. I love that girl.

Now the shrinks, over the years, have discussed "cognitive dissonance" with me and I think some of it creeps in here. The Ahimsa Shooters Club. Pistol Packin' Pacifists. Gun lovers against the war.

On the one hand those fond childhood memories of my grandfather leading a squirrel, my grandmother with the brass knucks and the blackjack in her purse, my dad blowing out a car window with a shotgun blast. On the other hand, all of that Gandhi, Tolstoy, Zinn and Chomsky.

I like the story about the single pistol in the Warsaw Ghetto keeping out the Nazis. I like all of those news reports about the little old lady who blows away the robber.

But.... I do believe the advocates of nonviolence win the argument. In particular, may I recommend:

Bailie, Gil (1995). Violence Unveiled: Humanity at the Crossroads. Introduction by René Girard. New York: Crossroad. ISBN 0824516451

and three volumes by Walter Wink, The Powers Trilogy:

* Naming the Powers: The Language of Power in the New Testament, Philadelphia: Fortress Press, 1984. ISBN 0-8006-1786-X
* Unmasking the Powers: The Invisible Forces That Determine Human Existence, Philadelphia: Fortress Press, 1986. ISBN 0-8006-1902-1
* Engaging the Powers: Discernment and Resistance in a World of Domination, Minneapolis: Fortress Press, 1992. ISBN 0-8006-2646-X

Damaged Priests, Preachers, Shaman, Imam, Shrinks and other Gurus.

Lust

Thank Goodness for Aging

"Eighty-year old Gonzalez, was finally forced out of the priesthood in 1985, but only after serving 28 years and being bumped from parish to parish after problems arose."

Ms. Zamora, of Bloggin', comments on Friday last of a damaged human being, a priest, Anthony Gonzalez who hurt many children, young girls, by raping and impregnating them.

What a problem, this, of people in trust and power who abuse that position. In my youth I was willing to join in heaping on the abuse. However, I must say that it has been years now since when I read such a story I feel a flood of sadness for the priest or preacher or politician who has finally been caught and exposed.

Not that he (and usually it is a he) should not have been caught and exposed. If he had been caught and exposed years earlier the bleeding of the victims could have been stopped. But the suffering could have been shortened for the predator as well. Might we even consider healing and redemption?

I knew a priest who was in trouble. His sexual addiction would be easy to ridicule: he was attracted to obese, hairy men. This made me uncomfortable, because I was the fattest, hairiest man around. He assured me I was not nearly fat nor hairy enough for his tastes. There is (or was?) a pornographic magazine that catered to this desire. It had a cutesy name such as "Chubs" or something, that would help distract from the awkwardness and social stigma this particular unusual compulsion would create.

Father (Joe?, Bill?, even his name fades with time) was in criminal trouble because he was caught peaking under the sheets at a comatose, fat, hairy man he was visiting in the hospital.

He was grief stricken and remorseful and ashamed. He wanted to commit suicide, but was afraid of the sin. He was melancholy to the extent that he could hardly get out of bed. But he could not stop the images of fat, hairy nude males from dancing around in his brain.

He was also wise and kind and well-read. Go figure.

Graham Greene tackled the whiskey priest. Nabokov helped us understand Humbert Humbert, rapist and abuser of girl children. Father Anthony Gonzalez needs his novelist, not to justify, but to heal him and us.

More Jail Musings

"When is my death row job available?"

Archer Daniel Midland could do executions cheaper

All rise!

Finally some real judicial economy.

Cameron County does not have the worst jail in the world. In fact it is not even the worst jail in the Valley. On a scale of bad, worse, horrible, the standings would be Cameron County, Willacy Detention Center, with La Villa coming in last. These are all places where federal prisoners are kept, but the last two are privately owned facilities.

My impression has been that La Villa is by far the worst of the three and lately there seem to be fewer Brownsville prisoners housed there. Maybe the U.S. Marshal's office finally gave up on them. I had one client in La Villa who tells me he screamed for twelve hours trying to get attention during an appendicitis attack. The other guys in the jail were screaming with him. He didn't die and after his surgery, he cleaned up pretty well, but it could have been bad. He was in jail on a charge of entering the country illegally.

There are certain things that privatization may make cheaper, but depending on the goals involved, it sure doesn't make things better. Private jails may make a profit, but they don't do much for the quality of justice.

Why not sell the courthouses to Walmart and allow them to use Walmart greeters as judges? This would be cheap. The same for executions. Executions could be contracted out to Archer-Daniels-Midland. They could use the same employees used in the slaughterhouses. This would be cheap.

Cameron County Jail Needs Gail Hanson

(None of us are perfect. --- Sometimes you need a little help from a friend)

First may I confess to the Seven Deadly Sins: Pride, Covetousness, Lust, Anger, Envy, Gluttony, Sloth. Especially Gluttony and Sloth, because aging has stolen the energy I once had for the others.

That having been said, the Cameron County Jail, and for that matter, the Cameron County Criminal Justice System, and for that matter, jails, prisons and criminal justice systems in the United States could use some improvement.

Sheriffs (including this Sheriff) become defensive when "their" jail is discussed. The recent election cycle showed the weird spectacle of a jail preacher talking about how nice the jail is and the good doctor discussing how good the care is, in defense of the sheriff who, no doubt, is practically perfect in every way.

So before we move to specifics, let me pontificate in general that the tensions between sheriffs, county commissioners, police agencies, and Texas State Government guarantee that all the jails in the State are substandard. Not that all would fail a gumming test by the toothless Texas Commission on Jail Standards, but none do what they are intended to do: that is, hold people who are presumed innocent in a humane manner until they can be tried and convicted or acquitted.

The best sheriff would probably not be a policeman at all, but have some management experience in running a hotel or a restaurant or a hospital or a school or a monastery. Unfortunately, for reasons mired in other social defects, the only candidates who present themselves for the august position tend to be cops. More on this after some reflection during the wee hours of the morning: "Why don't other folks, besides police officers, want to be sheriff?"

In the meantime, sheriffs cannot run a good jail, because commissioners won't give them the money to do so. Commissioners won't give them the money to do so, because they would rather hire someone for the road crew so they can get the patronage rather than giving it to the sheriff. Also, Commissioners won't give the money because felons and illegal immigrants who fill the jails can't vote. Also, Commissioners won't give the money because they are afraid some genius will start talking about criminals not needing to be in country clubs and sheriffs need to be tough guys to go with the police image rather than the motel manager image I think is more appropriate for the job.

Most folks don't worries too much about jail conditions unless they have a kid in jail. Did I ever tell you about my Republican Christian lawyer friend who ridiculed me for a couple of decades for talking about jail conditions until his son grew up, went bonkers, and spent months in and out of jail on minor offenses? All of a sudden he became interested in the 8th Amendment and prohibitions against cruel and unusual punishment. I felt I was being strong and kind by resisting saying,"I told you so," in the midst of his pain.

Does anyone remember when Cameron County Jailers were contracting tuberculosis from the inmates? Jails become a petri dish for disease and jailers (who mostly are there because they need a job and have families to support) catch those diseases.

This all leads up to the question on my mind: Isn't a shame, a scandal even, if Gail Hanson, private school administrator and jail pastor is excluded from the women's section of the jail because she advocates for the prisoners?