Supreme Court Orders Prisoners Moved Out

And they did the right thing

It’s nice when, from time to time, the Supreme Court gets it right. It’s easy to forget the interests of prisoners. Aren’t they bad people, after all? But the Constitution does not allow for cruel treatment of people, good or bad. At issue in this case was whether the massive overcrowding and bad conditions of California’s prisons violated the Eighth Amendment’s prohibition of cruel punishment.

The court’s left and right divided predictably. I use the terms left and right with reluctance, but any active concern for the rights of prisoners immediately puts you on the left by today’s standards. (As does belief in the need to regulate markets, collect taxes for the common good, and protect the environment, but let’s take one subject at a time.) The decisive vote was Justice Kennedy, who wrote of the appalling conditions in California prisons, even attaching photographs to support his case.

This case is not only about prison overcrowding. It is also about conflicting political demands: on the one side, for longer prison terms; on the other side, for lower taxes and spending. But as with many public goods/services, we need to collect enough taxes if we want more of them. Instead, people have elected to pay less taxes and get worse public services, but without relinquishing their demand for better services.

This political fact fell outside the Court’s concern. The Court, no thanks to four ultra-right justices, did its job to uphold the Constitution even when it may mean a repugnant outcome. This ruling could mean the release of dangerous people. But that’s California’s problem, not the Supreme Court’s or the Constitution’s. If the state of California wants to keep these people locked up, and no doubt some of them should be, it’s going to have to come up with the funds for bigger facilities.   

Time to Accuse Poor People of Getting Off Easy

Yes, the poor do pay taxes; no, the rich are not being persecuted

It’s getting to be that time of year when right-wing pundits write essays accusing poor people of not paying their fair share of taxes. They will, of course, focus on the federal income tax, ignoring taxes such as the payroll tax, the gasoline tax and other sales taxes, to which low-income people contribute a good fraction of their incomes. These pundits will pretend that the only thing keeping low-income folks from being high-income folks is lack of hard work, which will come as news to the millions of people working their butts off for poverty-level wages and no benefits, who are at the same time being told that they ought to be paying more taxes so that wealthy business executives can pay less.

The right-wing critics will not mention the enormous disparity in income between the average worker and the chief executive, thereby obscuring the great take-home pay of the latter, and the relative poverty of the former. (Quarrel with my biased information source if you will, but by any account the disparity is huge.) Graphs will depict the tax contributions of different income levels. They will show that the richest people pay a much greater share of their incomes in taxes than those in the middle, and that many of those at the bottom effectively pay nothing because of tax credits for low-income people. Charts will depict what percentage of total tax revenue comes from what income levels, suggesting that the rich are getting clobbered. (Rather than acknowledging the fact that the upper income levels are where by far most of the money is, so of course that’s where most of the taxes come from!)

This misleading polemics will imply that the rich are being treated unfairly while the poor are getting off easy, and that a fairer system would be a flat tax. They will not consider how much harder it is to pay a given percentage of a poverty-level income than an income that is hundreds of times that. Instead, they will say that the richer people are simply being punished for being smarter and more hardworking than others, as though good fortune, good governance, and parents’ socioeconomic status contribute nothing to peope’s success. They will get indignant at any suggestion that factors other than personal virtue contribute to a person’s economic success, as though to consider the importance of privilege and luck is to deny the importance of effort.

None of right-wingers’ callous attitude toward the working poor should negate certain basic facts:

-You have to be quite poor to owe no federal income taxes, and even then you still pay other taxes. Last year, for an individual with no dependents, you had to make less than $13,460.

-People with three or more children could make up to $43,352 and still qualify ($48,362 for a married couple).

-These incomes are a lot less than what is reasonably considered necessary to meet basic expenses. ($21,436 for a single childless person, like me, in the Baltimore area)

I would ask those who think a tax exemption for the poor is unfair, how much would you demand from someone making barely enough to put food on the table? How much tax should they have to pay at the end of the year in addition to the taxes they already paid when they bought clothes for their kids and gas for their cars to get to work?

There is no doubt that many people who earn great incomes worked much harder than most. They should be rewarded for that, and they are. A lot. Even after taxes. So right-wingers, quit complaining.

Supreme Court Gets It Wrong Again

A district attorney’s office should be liable for misconduct by its employees

In the Thompson case, attorneys withheld evidence of the defendant’s innocence on charges of robbery and murder. Consequently, he spent 18 years in prison for crimes he did not commit. This case was not a single incident of injustice. More than one piece of exculpatory evidence was withheld during Thompson’s trial. More than one attorney knew about this and failed to act on it. But because of the court majority’s faulty reasoning, the district that prosecuted Thompson is not held liable.

The Supreme Court overturned a jury’s $14 million award to Thompson on the grounds that the district was not deliberately indifferent to the defendant’s rights. They said the district did not fail to provide its employees adequate training in the discovery of exculpatory evidence. The employees did the wrong thing, their reasoning goes, but their bosses can’t be held liable for it. But if the office responsible for putting the case against Thompson is not liable for the harm done to him, who is? Plus, it wasn’t just one rogue employee who did Thompson in. It’s clear that the prosecutors broke the law and caused an innocent man to be convicted and sentenced to death. (Thank God "justice" is not always swift.) Why is that not reason enough to hold the district responsible?

If they’re worried about endless lawsuits against district attorneys, it is hard to see why. How often do prosecutors accuse the wrong person and withhold exculpatory evidence in order to get him convicted? If it happens often, it seems we need a lot more lawsuits. If it doesn’t happen often, then D.A.s would have nothing to fear from a ruling in Thompson’s favor. They would be safe as long as they disclosed all their evidence, including evidence that may indicate innocence. Their job isn’t just to get someone convicted; their job is to get the person who did the crime convicted. Making them disclose what they have is compatible with them doing their jobs. 

The majority essentially argued that the district attorney didn’t know what was going on. That he did everything he could have been expected to do; that he had no reason to provide his employees special caution about the disclosure of exculpatory evidence; that there had been no pattern of wrongdoing that would have alerted him to the problem. But if this is the standard by which a district attorney gets off the hook when his employees knowingly convict an innocent person, the standard needs to change. If the boss doesn’t know what his employees are doing, isn’t that negligent? Even if he does the best he can, is he not still responsible for wrongful actions taken by those in his charge?

The court was wrong to take away Thompson’s award. $14 million is the least society can do to repair the damage of an innocent person's 18 years in prison.

Read the atrocious opinions of Justices Thomas and Scalia for yourself, as well as Justice Ginsberg’s devastating dissent:

http://www.supremecourt.gov/opinions/10pdf/09-571.pdf

Want Students to Learn More? Teach Them Less

But make them master it

Rote learning and busy work are underrated. If we want kids to learn things, we have to give them the discipline to learn them. Most kids obviously don’t have it on their own. Many things that need learning are unpleasant and difficult, and most kids naturally won’t do them on their own initiative. If something is important enough to teach, it’s important enough to make sure they know it. The making sure part is harder than the initial instruction but just as important. We teach them a lot of things that we proceed to allow them to forget, and then get irritated when they forget them. The problem is certainly not lack of testing. The problem is lack of practice. Too much teaching new things, not enough mastering the old things.

I see this in Writing when teachers are appalled that 5^th graders still write the personal I with a lower-case letter. I see it in Math when teachers are frustrated that students attempting to do long division and simplifying fractions don’t know their mulitiplication facts, when knowing your facts makes later math quicker and easier. We want them to retain skills but we don’t spend nearly enough time practicing the skills during school. We teach them something once and reinforce it through one or two homework assignments, then move on to something that doesn’t necessarily require the same skill, and then by the time we move on to something that requires the original skill, half or more the students have forgotten it. I believe they haven’t so much forgotten it as they didn’t solidly have it in the first place.

Where to find the time to get this practice in? At my school, students arrive from 8:25 to 8:40 and first period begins at 8:45. For students arriving at the first bell, that gives at least 10 minutes, allowing for things like doffing coats and copying homework and sharpening pencils, to do some kind of morning work. If we want them to memorize their mulitiplication facts, why not give them a facts worksheet? If we want them to practice writing sentences with correct capitalization and punctuation, give them a worksheet that has them practice that. They could have a worksheet that includes a few items from each of the core subjects, or they could alternate. Such worksheets should be fairly easy to replicate for the whole school year, as they would apply the same basic skills regardless of where in the curriculm the class currently is.

There are other times to practice. I’m a big fan of the drill. The first five minutes of class can be a management nightmare anyway. Students coming in acting like it’s party time, students coming late, students demanding to go to the bathroom or nurse, students saying they have no pencils and so on. Having something for them to do helps settle them down – a nice bonus for something that gives them what they need academically anyway. “Sure, go ahead to the nurse. You can do the drill for extra homework…. What’s that? Oh, think you can tough it out? Good for you!”

It’s not as easy to do this as it sounds. Most people I talk to basically agree with the need for more practice and basic skills. But the system pushes us in another direction and, to create the appearance of success, we follow it. We move on to new material without mastering the old stuff because we’re preparing for a standardized test that includes the new stuff. We have to make sure the students at least know enough to be proficient on the test. If they end up forgetting most of it later on, at least we have the paperwork saying they’re proficient for now. Testing is not necessarily the problem. It’s what we’re testing. We try to teach them too much and they end up learning too little.

Socialism for everyone or just a few?

A timeless and frankly tiresome debate in this country opposes a capitalistic individual responsibility to a socialistic common good. Although they would vehemently deny it, the former's proponents have the upper hand. As capitalist competition creates ever richer and more powerful winners, great inequality enables the winners to buy themselves privileges.  Individual responsibility remains only for the have-nots. The real choice, therefore, is between socialism for everyone or socialism for the privileged only. The idea of universal free-market individualism is a fantasy. That the idea fascinates many does not make it any less impractical. 

Some real-life background is instructive. The social contract, such as it is, is being slowly torn. Few workers have union bargaining rights anymore. As seen in the protests and counterprotests about changes to public workers’ benefits, the few who still have collective bargaining rights encounter hostility and resentment more than fraternal sympathy. Politics, the sometime recourse for those shunted aside by economics, is increasingly out of bounds, controlled by the rich few and their corporate associates. Indeed, people are encouraged to avoid and distrust government, leaving the state to help the winners take all the rewards.

 

As ordinary people are increasingly on their own, powerful executives retain the benefits of the corporate form. Attempts by ordinary people to wrest concessions from this boys’ club-like arrangement are dismissed as “socialist”, as though corporatist capitalism is the natural order. The idea of people working through government to achieve some kind of justice in the allocation of opportunities and rewards now seems almost naïve. Public provision of any kind of good or service (except physical security) is now widely seen as perverse, while private markets are treated as near-sacred.

The deteriorating social compact is not simply a move from collectivism to individualism. Those with the benefit of corporate or political connections retain the benefits of collectivism even as ordinary people lose them. Individual responsibility, yes, but only for the rabble. Even if faltering homeowners are not rescued, big banks still will be. Not so much because of hypocrisy, but necessity and convenience: when the bigwigs are in trouble, so is everyone else, so they will always have to be bailed out.

By necessity, any success by conservative-libertarians at making individuals more responsible for their failings is going to leave better-off people and interest groups protected. People will not give up their special privileges for the sake of a coherent right-libertarian ideology. They will retain their privileges while imposing that ideology's punitive component on the weak. This leaves us with the burden of social welfare. If the haves are going to enjoy privileges, so too must the have-nots. Otherwise you have an aristocracy or plutocracy in everything but name. It is not long before social becomes socialist and reasoned discussion, at least for one side of the debate, must cease.

It’s telling that the word socialist is a slur. The negative connotation is not entirely due to the former Soviet Union, now a fairly distant memory for most people. Yet the slur remains potent – so effective because it need not even be explained. If leftish Democrats such as President Obama seek to provide more necessary goods and services in a socialistic manner – that is, through taxes drawn disproportionately from the richest people – it remains to be explained why it is bad to have some goods and services provided socially. Is it so horrible that the naturally or socially well-endowed should support those not so blessed?

This gets more complicated. People ask, How dare we take the fruits of people’s hard labor? Yet this question hides a disputable premise. Note the emphasis on individual virtue: hard work understood not as a gift of God or nature, the gift of an able body and mind inclined toward industry and persistence, but a virtue entitling its possessor to special rewards. Personally, when I look at the (few) achievements I’ve made by working hard and applying myself, I see myself as very lucky. God (or something) gave me to do what I did. It’s nice to profit from it, but it’s too much to say I’m entitled to benefit exclusively. If anything, my good fortune imparts a responsibility for care toward people less fortunate – yes, even if they’re given to sins such as sloth. We all have sins.

Some of us have resources to protect ourselves against accountability for those sins, though, and this is where the problem arises. We might as well confess our common sin, humble ourselves before God and one another, and in the mean time embrace our responsibilities toward one another – yes, even strangers, even – gasp! – Mexican immigrants – despite their sins and ours.

The conservative fear of indulging people’s bad habits is not unfounded. It really can do harm to give someone money they probably will spend on alcohol instead of food, cigarettes instead of clothes for their kids. People really do these things. I suspect this explains much conservative anger about the welfare state. But it also leaves a lot of “Joe the Plumber” style complaint about punishing the virtuous wealthy – and accordingly, the problem of attributing to individual virtue and entitlement, gifts that properly should inspire gratitude and generosity. There remains a sense that some are entitled to special rewards, while others are not even entitled to basic needs.

For all its faults, government deserves some credit for making such needs available to everyone regardless of economic status. This is not meant as a glowing panegyric to statism. Although my experiences with the Department of Motor Vehicles have been mostly quite decent, thank you, I can accept that for many, government has been a huge pain in the backside. But there is still some kind of virtue in being able to get something you need even if you can’t afford it, without having to go begging in the streets. At the very least, critics should be asked to explain why everything, including basic needs such as medical care, should be provided (and paid for) privately, as they clearly prefer.

Of course, there are benefits and costs to providing goods socially, as there are to providing goods individually. But the more dire the consequences of failing to provide something socially/publicly, the stronger the justification required. In the United States, however, the presumption in favor of private provision for all but the poorest people goes largely unquestioned.

If you doubt this, consider public discussion about reforming old-age entitlements. It seems likely that future changes in these programs will cut benefits for better-off people, forcing them to pay for more things out of their own pocket. That is to say, they will lose sweat, blood and tears for forty (or probably more) years to generate wealth and then, instead of receiving a nice share of that largesse to support a reasonably comfortable retirement, be expected to live on whatever they’ve been able to scrounge up from their meager earnings until or unless they become really desperate. 

People are supposed to be on their own, unless of course they are major owners in a big corporation. Then, according to five members of the Supreme Court, you have the right to draw money from that corporation to support elected leaders who will legislate in your favor. It’s a splendid arrangement: socialism for the well-off, free market for everyone else. 

This aggressive self-interest at the expense of social welfare can be seen in media discussions about Medicare and Social Security. Nearly all discussions assume the need to cut the programs rather than find ways to fund them fully and maintain a political economy that is fiercely competitive yet compassionate at the same time. It’s time for people other than just old lefties to stand up and demand that government include them in decisions that will affect them, rather than pretending that we don’t need to be involved in government because we don’t need government. The elites will get theirs no matter what; we'd better get in and get ours.

Union bashers can get their facts straight

Private-sector unions are just about gone; public-sector unions are headed the same way, yet we’re still supposed to be outraged that they have any rights at all

My favorite saying is that of the late Daniel Patrick Moynihan: “People are entitled to their own opinions but not their own facts.” I think of this rule often when I listen to people grinding political axes without the benefit of valid information.

Recent controversy over public-employee benefits provides a good example. Frankly, some people just have it backwards when it comes to the issue of collective bargaining rights in the workplace. For most workers in the United States, collective bargaining isn’t even an issue; they have no collective bargaining. When it comes to negotiating with employers, they’re on their own. If they’re in a position to demand better pay and benefits, they can help themselves. If, like many more, they’re desperate for a paycheck and have no leverage to bargain, they accept whatever terms employers offer. To show for it, we have decades-long wage stagnation for the majority of American workers, while the richest people receive ever-greater portions of the wealth those workers help produce.

Not all workers are in such a funk. Many unionized public employees have relatively favorable contracts in terms of pay, benefits and job security. It’s true that in some cases such employees receive a combination of benefits that could fairly be called generous or even excessive. But surely these excesses can be curbed without abolishing all collective bargaining rights. (And I apologize for calling you Shirley.)  

Yet abolishing collective bargaining rights is exactly what several recently elected Republican governors and legislators seek to do. Where did they get the idea that unions representing government workers are the major obstacle to fiscal prudence? Well, it helps when unions are portrayed as being much more powerful than they are, and when exceptional cases are allowed to obscure the general contradictory truth that unions are less powerful than ever and headed for obsolescence.

One article mentions “tea party leader Ted Lyons, an electronics executive from Troy, Ohio, who said the proposed union changes are long overdue. ‘The labor unions have become so powerful now on a worldwide basis,’ Lyons said.” It may look that way to Mr. Lyons, but to the majority of American working people, union rights aren’t even on the table. Many work unstable hours for low pay and no health insurance or sick leave. The few who still have union benefits are under pressure to make painful concessions.

So why the anger at the few remaining union workers? States are under pressure to cut costs, and one of those costs is pay/benefits for public workers. Some feel angry that their taxes are paying for public employees to get better pay and benefits than they enjoy in their own jobs. Especially when that pay and benefits appears to be contributing to budget shortfalls.

Here is where I get a little Marxist, so bear with me. This kind of resentment among working people is great for the elites. It takes the pressure off them when the main issue is how much to cut workers’ pay instead of, say, how to find ways to collect more tax revenue from wealthier people. Class warfare works best when it happens between members of the same class, presided over by members of the upper class. I say this as a reluctant supporter of (moderately) laissez-faire capitalism, since this appears to be the system that produces the most wealth for everyone. It’s better to have a smaller slice of a larger pie than a larger slice of a smaller pie.

But the size of your slice isn’t the only issue. This is also about democracy itself. People without property should still have a say in how the system’s rewards are distributed. (Distribution – redistribution – hammer and sickle, oh my!) Collective bargaining is one way besides elections that ordinary people can have a say. At the end of the day, the managers and executives will still fare best. It would be nice if ultra-conservatives would realize that and stop hyperventilating about an egalitarian straw man. If they haven’t noticed that the inequality between the richest and poorest people has increased under both “socialist” Democrats and conservative Republicans, now would be a good time to start noticing. And no, President Obama represents no threat to this arrangement.

Justice Scalia: “Persons” does not include women

Justice Scalia, this is not a difficult one. But you still managed to get it wrong.

19^th century men didn’t have women in mind when they wrote that all persons should have equal rights.

Justice Scalia’s comments about the Equal Protection Clause not applying to sex discrimination raises the issue of how literally to read the Constitution. It doesn’t matter to Justice Scalia’s view that the Constitution prohibits states denying “persons” equal legal protection. “Persons” literally would have to include women as well as men. But he still doesn’t think the Equal Protection Clause outlaws sex discrimination – because “nobody ever thought” it did at the time it was written. Here originalism contradicts literalism. The original meaning of the word “persons” in the 14^th Amendment did not include women. But the thing is, the correct meaning of the word “persons” does include women.

I can see the potential for harm in allowing current prevailing opinion to supercede original understanding – where there is room for disagreement over what is correct and incorrect. There presumably we should defer to original understanding. But there is no room for disagreement as to whether or not women are persons. That is, where the original understanding was clearly wrong, we can safely ignore it. 

Literalist and originalist are not the same thing. Justice Scalia is only the latter. For example, the First Amendment does not actually say the government cannot outlaw flag-burning, but an originalist such as he can still believe that the First Amendment was understood as a right of free expression that would indeed preclude such a law, even though the literal language of the amendment does not. Here, of course, a non-literal reading of the Constitution is welcome to liberals and believers in a strong notion of free expression.

In the case of the 14^th Amendment, however, a literal reading of the Constitution would seem to be more suitable for liberals, who are normally associated with a broader and more elastic interpretation of the document. So are liberals being incoherent and opportunistic to interpret the Constitution broadly in one respect but literally in another?

Not necessarily. Perhaps a literal reading is suitable where there can be no reasonable argument about meaning. “Persons” necessarily includes women. So the men who wrote the 14^th Amendment didn’t have women’s rights in mind. So what? They were sexist and wrong. Justice Scalia says outlawing sex discrimination is the kind of thing legislatures exist for. (He says the Constitution neither requires nor prohibits sex discrimination.) But if we are faithful to the meaning of the words in the Constitution, we cannot allow states to have laws that discriminate against women. They are persons and the Constitution requires that laws protect all persons equally. Where the words of the Constitution tell us exactly what we have to do (as opposed to using ambiguous and necessarily subjective language such as “reasonable” and “necessary and proper”) then we can read it literally.

When, on the other hand, the Constitution does not tell us exactly what to do (as in the case of a law prohibiting flag burning, about which nothing is said in the Constitution) then we necessarily have to look at context and original understanding. If we find that the 1^st Amendment was meant to protect free expression generally and not only the written or spoken word, we have to find a law prohibiting flag burning unconstitutional. So Justice Scalia is right about freedom of expression and wrong about equal protection. Liberals are right about both.  

Source  

http://voices.washingtonpost.com/44/2011/01/scalia-constitution-does-not-p.html