For an overview of Constitutional Law in the United States of America,
see Constitutional law at LII, the Legal Information Institute at Cornell University Law School.
Friday, May 18, 2012
Sunday, June 28, 2009
USA Clean Energy Bill : Waxman-Markey American Clean Energy and Security Act of 2009 Passes House : On to the Senate
The United States - which is far behind Europe in environmental legislation, and which is learning hard energy lessons in the automotive industry - is moving forward on clean energy, as the U.S. House of Representatives on June 26, 2009 passed Barack Obama's "Clean Energy Bill", (H.R. 2998, printed June 27, 2009, also known as the "Waxman-Markey Bill", official short title "American Clean Energy and Security Act of 2009", 1201 pages in the .pdf version) which now goes to the Senate, where, in this author's view, it will still be subject to some amendment, but will surely pass.
As written at WikiNews:
Those in America who oppose sensible legislation on energy and the environment need to be reminded - time and again- that the collapse of the American automotive industry is a direct cause of the stubborn failure by US institutions and citizens to accept the energy realities.
UPDATE:
John M. Broder writes at the New York Times in House Passes Bill to Address Threat of Climate Change:
As written at WikiNews:
"The final vote was 219-212, with only 8 Republicans voting for the legislation, and 44 Democrats voting against it. The resolution addresses the "greenhouse effect," and calls for a 17% reduction of greenhouse gas emissions by 2020, and an 83% reduction by 2050. In addition, the legislation will establish new requirements for utilities, and various incentives for "going green.""The Wikipedia writes:
"The American Clean Energy and Security Act of 2009 (ACES) is an energy bill in the 111th United States Congress that would establish a variant of a cap-and-trade plan for greenhouse gases to address climate change. The bill was approved by the House of Representatives on June 26, 2009 by a vote of 219-212, but has not yet been approved by the Senate.[1][2]Proponents and opponents of the bill tend to concentrate on the specific provisions of the bill, whereas the most important impact of the bill - if passed by both houses of Congress and signed by President Obama - will be its clear message to American corporations and inhabitants that they have to start to think and act realistically with respect to energy and the environment, as has been the case in the European Union already for a great number of years.This vote was the "first time either house of Congress had approved a bill meant to curb the heat-trapping gases scientists have linked to climate change.....[3]
Internationally, the House's passage of the ACES bill "established a marker for the United States when international negotiations on a new climate change treaty begin later this year."[4]
Those in America who oppose sensible legislation on energy and the environment need to be reminded - time and again- that the collapse of the American automotive industry is a direct cause of the stubborn failure by US institutions and citizens to accept the energy realities.
UPDATE:
John M. Broder writes at the New York Times in House Passes Bill to Address Threat of Climate Change:
"The German chancellor, Angela Merkel, who was in Washington on Friday to meet with Mr. Obama, strongly endorsed the bill even though it fell short of European goals for reducing the emissions of heat-trapping gases.Mrs. Merkel, a longtime advocate of strong curbs on emissions, has been pushing the United States to take a leading role before the climate negotiations, set for December in Copenhagen."
The Law and Bicycles, Cyclists, Bikers
Lawyer On a Bike writes about bicycles and the USA:
As written by Iris Reiff from the 52nd Fighter Wing Public Affairs Office at Spangdahlem Air Base in Make way for bikers at Happy Mosel -- 17 years of the world’s longest wine street festival in announcing this year's Happy Mosel on the now past May 3:
Biking has much greater hazards on days when vehicle traffic is running normally.
In densely populated Germany, there are 70 million bicycles - considerably more than the 41 million registered motor vehicles, and in the year 2007 there were 79,000 injured bicycle riders - of whom 425 were fatalities - in accidents where bicycle riders themselves were legally at fault fully half the time.
See in this regard Bicycle Law. For German law, see Fahrrad-Recht.
A recent article about the "untold running battle" between bicycle riders and motorists caught our eye (Der unsägliche Kleinkrieg, ADAC Motorwelt, Heft 4, April 2009), especially since we were in the pedestrian area of a town center in Germany today for not more than ten minutes - just walking through - and encountered no fewer than six bicycle riders riding the wrong way on a one way street, two of these riding much too fast and recklessly weaving through pedestrians and dangerously swerving to avoid hinderances with a lack of care about the rest of the world that sadly often marks German cyclists.
We could also mention yesterday, when we had brake our car dangerously fast not to hit a bicycle coming up the road around a very sharp corner toward us - the wrong way on a one-way street. We glanced furtively in our back mirror to make sure the car behind us did not back-end our car because of our emergency braking, caused by the bike rider. The bicyclist continued on - dangerously close to us and to parked cars - as if he or she had not a care in the world.
Bicycle riding can be dangerous and bicycle riders often think that uncaring and reckless motorists are at fault for this danger - this is surely one well-known aspect of the running battle between bicyclists and motorists - but the ADAC, Germany's premier automobile club of 16 million members, points to numerous facts which suggest that bicycle riders are often also their own worst enemy on the roads.
Many cyclists appear to place the obligation of safety almost solely on the car-driving motorists to look after THEM, as if bicyclists had no duty of safety at all, either to themselves or to others. Why is that?
In the ADAC guest column to that same ADAC magazine, there is an article by psychoanalyst Dr. Wolfgang Schmidbauer titled Multiple Persönlichkeiten im Straßenverkehr ("Multiple Personalities in Street Traffic"). Schmidbauer points out that the personality of a car driver manifested in a large air-conditioned 4-wheel vehicle is completely different than the personality which surfaces when that same person rides a bicycle (we might add here that yet another, distinctly different personality surfaces when that same person mounts a motorcycle).
Schmidbauer states that bicycle riders - even those who are otherwise motorists - frequently slip into a new identity when they get on to their bicycles. In that new identity, they "individualize" the traffic laws, i.e. often flagrantly and regularly ignoring and violating the most basic traffic dictates - not stopping at stop signs, riding down one-way streets the wrong way, not signalling turns, running red traffic lights, riding on the street and blocking traffic unnecessarily even though a bike path is available right next to the thoroughfare, talking on their mobile cell phones while riding and blocking traffic because of their unawareness of the world around them, and often being a hinderance or a nuisance to normal traffic.
The immense scope of the problem that Schmidbauer correctly identifies is substantiated by the comments to the ADAC articles made by apparently non-reformable cyclists ("Unverbesserliche") at the German bicyclists forum, Velomobilforum.de, where, it seems to this reader, that they do not understand the scope of the problem. The issue is also not one of motorists vs. bicyclists, but rather one of cyclists attitudes.
Our own description for many bicyclists in Germany - based upon our over one million car miles on German roads - is "militant", and we ourselves are both a "sensible" cyclist and a "caring" motorist with loved ones in the family who also ride bicycles, so that we see this problem from both sides, including the view that reckless drivers who endanger bicyclists should be heavily fined and their driver's licenses be revoked. But let us turn to the cyclists, who are not as innocent as they appear to think they are.
Schmidbauer correctly pinpoints the underlying and errant psychology of cyclists as seeing themselves as the "good" and "little" guys and motorists as the "big" and "evil" ones - a mistaken psychological frame of mind which the cyclists then think - erroneously - entitles them to special rights. We all can recognize this extremely dangerous psychology via the often anonymous religious fanatics who have falsely convinced themselves that their alleged belief excuses them from normal civilized behavior. In fact, the result of such a psychological frame of mind is often a type of internal anarchy combined with barbarian behaviour - for which there is in fact no supportable human or legal justification.
Excepting the all-too-many aggressive automobile rowdies who are a menace to everyone, including cyclists, therer are many normal, law-abiding motorists who ALSO have their problems with many bicycle riders. Indeed, many an average law-abiding motorist regards many cyclists as being overtly aggressive on the streets, largely irresponsible and uncaring with respect to other persons or vehicles in traffic, and indeed as either ignorant of the traffic laws or unwilling to abide by them. The ADAC article states that in one college city alone - Münster, Germany - the bicyclists run intentionally through red traffic lights an estimated 13,000 times - per day, in spite of the 20,000 traffic tickets issued to cyclists in that city per year. Just imagine what one of those red-light running bicycle militants would say to a car driver who drove intentionally through a red light. Many such cyclists live with a false double standard of the traffic world.
The situation is magnified million-fold throughout Germany, partly because there is no way for pedestrians or motorists to identify militant cyclists and it is this anonymity which often makes cyclists virtual terrorists on two wheels. Barring a direct confrontation with police, they are able to engage in unlawful and aggressive behavior on the roads without great fear of detection or punishment.
In the United States the Federal Highway Administration of the Department of Transportation has issued materials on Pedestrian and Bicycle Safety, including college course materials on Bicycle and Pedestrian Transportation, of which the Introduction to Lesson 24 provides inter alia:
In the United States of our childhood, bikes in our city had to be taken to the local fire department for registration, where one also obtained a bicycle license plate, which was affixed to the back of the bicycle. This ability to identify cyclists or bicycles is not present in modern Germany, and so, bicyclists are anonymous - and many of them behave that way! Anonymity breeds barbarism.
One aspect of the solution is therefore to implement mandatory bicycle registration and official bicycle license plates in Germany.
This would not only reduce the blind aggressive militancy prevalent among many bicycle riders but it would necessarily also improve bicycle etiquette AND SAFETY in general because bicyclists and/or their bicycles would be identifiable to car drivers, pedestrians and witnesses.
Such a possibility of identification would also contribute to reduce the tremendous and inexcusable amount of bicycle theft in Germany (estimated at 400,000 per year in 2005), which is enabled by the absence of bicycle registration and by the lack of bicycle license plates.
It is such a simple solution that we are amazed that Germany has not implemented something like it.
Another area that needs substantial improvement pertains to the knowledge of bicycle law. Since no license is required in countries like Germany to ride a bicycle, many bicycle riders have very little knowledge of traffic regulations or "riding etiquette". They ride their bicycles as if they were on a distant planet.
Classes of instruction on bicycle law and etiquette should be mandatory and "bicycle licenses" should be issued to bike riders only after passing traffic and etiquette tests.
After all, even now, persons riding a bicycle in Germany can be heavily fined for traffic infractions - rightly so, because negligent or reckless bike riding can pose a substantial danger to others. Bicyclists can even lose their motor vehicle driving license for riding a bicycle while intoxicated beyond a certain legally prescribed level (blood alcohol concentration (BAC) of 0.16 or more).
Given the severity of penalites that one can incur, anyone driving or riding any type of bicycle or vehicle on the streets should have a license to do so.
"The bicycle is a two wheeled, human powered vehicle that offers no crash protection. Cyclists are at the mercy of cars. Between 1932, when bicycle crash fatality statistics were first kept, until 2002, there have been 47,000 deaths of cyclists from bicycle related injuries. 90% of all cycling deaths from a collision with a car. In 66% of the situations the crash occurred due to a traffic law violation. In 66% of the situations the immediate cause of death was a traumatic brain injury (TBI)."National Highway Transportation Safety Administration (NHTSA) Safety Facts for the year 2003 provide that:
- "622 pedalcyclists were killed in traffic crashes
- 46,000 pedalcyclists were injured in traffic crashes
- 23 percent of all pedalcyclists killed were under age 16"
"Cycling Heaven & Car-Free Cycling DaysThe auto-free "Happy Mosel" Sunday is the world's longest wine street festival, when all the roads on the Mosel River between Cochem and Schweich are blocked to automobile traffic.
Car-Free Cycling Days
The Moselle holiday region offers boundless cycling enjoyment: More than 1,000 kilometres of outstanding cycle paths, shimmering rivers, the varied cultural wine growing landscape, romantic towns and villages and the hospitality of the people make your cycling vacation an unforgettable experience. A well signposted network of nearly level cycle tracks and rural roads stretches into the neighbouring countries of Luxembourg and France.
On five Sundays during the year the streets in the Moselle holiday region are turned into an El Dorado for cyclists: Happy Moselle (Sunday after Pentecost), Saar Pedal (3rd Sunday in May), Ruwer Active (3rd Sunday in August), Summer Biking on the Nims and the Sauer (4th Sunday in August) and 'Schromp macht Spass auf dem Maifeld' (every second year in the spring) are car-free cycling days that offer fun and a happy cycling experience."
As written by Iris Reiff from the 52nd Fighter Wing Public Affairs Office at Spangdahlem Air Base in Make way for bikers at Happy Mosel -- 17 years of the world’s longest wine street festival in announcing this year's Happy Mosel on the now past May 3:
"The Mosel valley will become the Eldorado for bicyclers for the 17th year in a row, May 3, when roads between Cochem and Schweich belong to cyclists and walkers only. The 140-kilometer stretch will be closed to vehicle traffic between 9 a.m. and 7 p.m., transforming this area into a recreational roadway.There were in fact ca. 100,000 participants - and during the day five bone fractures but no fatalities.
According to organizers, more than 100,000 people are expected to participate in this unique multicultural sporting event. Happy Mosel is the longest wine street festival in the world."
Biking has much greater hazards on days when vehicle traffic is running normally.
In densely populated Germany, there are 70 million bicycles - considerably more than the 41 million registered motor vehicles, and in the year 2007 there were 79,000 injured bicycle riders - of whom 425 were fatalities - in accidents where bicycle riders themselves were legally at fault fully half the time.
See in this regard Bicycle Law. For German law, see Fahrrad-Recht.
A recent article about the "untold running battle" between bicycle riders and motorists caught our eye (Der unsägliche Kleinkrieg, ADAC Motorwelt, Heft 4, April 2009), especially since we were in the pedestrian area of a town center in Germany today for not more than ten minutes - just walking through - and encountered no fewer than six bicycle riders riding the wrong way on a one way street, two of these riding much too fast and recklessly weaving through pedestrians and dangerously swerving to avoid hinderances with a lack of care about the rest of the world that sadly often marks German cyclists.
We could also mention yesterday, when we had brake our car dangerously fast not to hit a bicycle coming up the road around a very sharp corner toward us - the wrong way on a one-way street. We glanced furtively in our back mirror to make sure the car behind us did not back-end our car because of our emergency braking, caused by the bike rider. The bicyclist continued on - dangerously close to us and to parked cars - as if he or she had not a care in the world.
Bicycle riding can be dangerous and bicycle riders often think that uncaring and reckless motorists are at fault for this danger - this is surely one well-known aspect of the running battle between bicyclists and motorists - but the ADAC, Germany's premier automobile club of 16 million members, points to numerous facts which suggest that bicycle riders are often also their own worst enemy on the roads.
Many cyclists appear to place the obligation of safety almost solely on the car-driving motorists to look after THEM, as if bicyclists had no duty of safety at all, either to themselves or to others. Why is that?
In the ADAC guest column to that same ADAC magazine, there is an article by psychoanalyst Dr. Wolfgang Schmidbauer titled Multiple Persönlichkeiten im Straßenverkehr ("Multiple Personalities in Street Traffic"). Schmidbauer points out that the personality of a car driver manifested in a large air-conditioned 4-wheel vehicle is completely different than the personality which surfaces when that same person rides a bicycle (we might add here that yet another, distinctly different personality surfaces when that same person mounts a motorcycle).
Schmidbauer states that bicycle riders - even those who are otherwise motorists - frequently slip into a new identity when they get on to their bicycles. In that new identity, they "individualize" the traffic laws, i.e. often flagrantly and regularly ignoring and violating the most basic traffic dictates - not stopping at stop signs, riding down one-way streets the wrong way, not signalling turns, running red traffic lights, riding on the street and blocking traffic unnecessarily even though a bike path is available right next to the thoroughfare, talking on their mobile cell phones while riding and blocking traffic because of their unawareness of the world around them, and often being a hinderance or a nuisance to normal traffic.
The immense scope of the problem that Schmidbauer correctly identifies is substantiated by the comments to the ADAC articles made by apparently non-reformable cyclists ("Unverbesserliche") at the German bicyclists forum, Velomobilforum.de, where, it seems to this reader, that they do not understand the scope of the problem. The issue is also not one of motorists vs. bicyclists, but rather one of cyclists attitudes.
Our own description for many bicyclists in Germany - based upon our over one million car miles on German roads - is "militant", and we ourselves are both a "sensible" cyclist and a "caring" motorist with loved ones in the family who also ride bicycles, so that we see this problem from both sides, including the view that reckless drivers who endanger bicyclists should be heavily fined and their driver's licenses be revoked. But let us turn to the cyclists, who are not as innocent as they appear to think they are.
Schmidbauer correctly pinpoints the underlying and errant psychology of cyclists as seeing themselves as the "good" and "little" guys and motorists as the "big" and "evil" ones - a mistaken psychological frame of mind which the cyclists then think - erroneously - entitles them to special rights. We all can recognize this extremely dangerous psychology via the often anonymous religious fanatics who have falsely convinced themselves that their alleged belief excuses them from normal civilized behavior. In fact, the result of such a psychological frame of mind is often a type of internal anarchy combined with barbarian behaviour - for which there is in fact no supportable human or legal justification.
Excepting the all-too-many aggressive automobile rowdies who are a menace to everyone, including cyclists, therer are many normal, law-abiding motorists who ALSO have their problems with many bicycle riders. Indeed, many an average law-abiding motorist regards many cyclists as being overtly aggressive on the streets, largely irresponsible and uncaring with respect to other persons or vehicles in traffic, and indeed as either ignorant of the traffic laws or unwilling to abide by them. The ADAC article states that in one college city alone - Münster, Germany - the bicyclists run intentionally through red traffic lights an estimated 13,000 times - per day, in spite of the 20,000 traffic tickets issued to cyclists in that city per year. Just imagine what one of those red-light running bicycle militants would say to a car driver who drove intentionally through a red light. Many such cyclists live with a false double standard of the traffic world.
The situation is magnified million-fold throughout Germany, partly because there is no way for pedestrians or motorists to identify militant cyclists and it is this anonymity which often makes cyclists virtual terrorists on two wheels. Barring a direct confrontation with police, they are able to engage in unlawful and aggressive behavior on the roads without great fear of detection or punishment.
In the United States the Federal Highway Administration of the Department of Transportation has issued materials on Pedestrian and Bicycle Safety, including college course materials on Bicycle and Pedestrian Transportation, of which the Introduction to Lesson 24 provides inter alia:
"Experience has shown that developing bicycle- and pedestrian-friendly communities requires a comprehensive approach that includes more than simply engineering and constructing bike lanes and sidewalks. This comprehensive approach includes:One aspect of the problem is that in Germany there is no official bicycle registration (only private registration, e.g. online at Finde Mein Rad) and bicycles do not have license plates. So how would you identify and report a bicycle rowdy or someone who was endangering motor vehicle traffic participants or pedestrians through their illegal bike riding?
- Engineering—designing and constructing roads for bicyclists and pedestrians.
- Education—teaching or training bicyclists, pedestrians, motorists, and other road users.
- Enforcement—ensuring that all road users follow traffic laws and rules of the road.
- Encouragement—providing incentives beyond physical infrastructure.
- Evaluation—confirming that the intended outcomes have been produced."
In the United States of our childhood, bikes in our city had to be taken to the local fire department for registration, where one also obtained a bicycle license plate, which was affixed to the back of the bicycle. This ability to identify cyclists or bicycles is not present in modern Germany, and so, bicyclists are anonymous - and many of them behave that way! Anonymity breeds barbarism.
One aspect of the solution is therefore to implement mandatory bicycle registration and official bicycle license plates in Germany.
This would not only reduce the blind aggressive militancy prevalent among many bicycle riders but it would necessarily also improve bicycle etiquette AND SAFETY in general because bicyclists and/or their bicycles would be identifiable to car drivers, pedestrians and witnesses.
Such a possibility of identification would also contribute to reduce the tremendous and inexcusable amount of bicycle theft in Germany (estimated at 400,000 per year in 2005), which is enabled by the absence of bicycle registration and by the lack of bicycle license plates.
It is such a simple solution that we are amazed that Germany has not implemented something like it.
Another area that needs substantial improvement pertains to the knowledge of bicycle law. Since no license is required in countries like Germany to ride a bicycle, many bicycle riders have very little knowledge of traffic regulations or "riding etiquette". They ride their bicycles as if they were on a distant planet.
Classes of instruction on bicycle law and etiquette should be mandatory and "bicycle licenses" should be issued to bike riders only after passing traffic and etiquette tests.
After all, even now, persons riding a bicycle in Germany can be heavily fined for traffic infractions - rightly so, because negligent or reckless bike riding can pose a substantial danger to others. Bicyclists can even lose their motor vehicle driving license for riding a bicycle while intoxicated beyond a certain legally prescribed level (blood alcohol concentration (BAC) of 0.16 or more).
Given the severity of penalites that one can incur, anyone driving or riding any type of bicycle or vehicle on the streets should have a license to do so.
Friday, May 15, 2009
What is Democracy? Democracy is ... Voting has Begun : Cast Your Vote at YouTube in the Worldwide Democracy Video Challenge : 6 Geographic Regions
What is Democracy? Democracy is ...
VOTE NOW
As written at America.gov:
"Vote for the Video that Defines Democracy Best
The Democracy Video Challenge is an online video contest in which contestants submitted videos that explore the nature of democracy. People worldwide can select a winner by voting between May 15 and June 15 for the video that best captures the nature of democracy."
Richard Engel at the Democracy Video Challenge has opened the voting starting today.
Cast your vote at YouTube.
VOTE NOW
VOTE NOW
As written at America.gov:
"Vote for the Video that Defines Democracy Best
The Democracy Video Challenge is an online video contest in which contestants submitted videos that explore the nature of democracy. People worldwide can select a winner by voting between May 15 and June 15 for the video that best captures the nature of democracy."
Richard Engel at the Democracy Video Challenge has opened the voting starting today.
Cast your vote at YouTube.
VOTE NOW
Democracy is . . . : PUBLIC Online YouTube Voting in the Worldwide Democracy Video Challenge Final Begins May 15 and Runs to June 15
America.gov staff writer Tanya Brothen has an article on the Democracy Video Challenge, an online video contest which was launched at the United Nations on September 15, 2008 and for which online voting beings on May 15, running to June 15, 2009, i.e. voting begins TODAY. In Films Highlight Hundreds of Definitions of Democracy, Brothen wirtes:
"Filmmakers from more than 90 countries submitted about 900 videos, displaying a variety of opinion, vision and creativity." [900 videos represent 580 applicants]
There were 196 video semifinalists, viewed on May 7 at the Smithsonian's Hirshhorn Museum in Washington D.C and 21 finalists will be selected today, May 15, of which seven will receive prizes in the voting. See the contest rules. See also Facebook.
As Brothen informs us:
"Award-winning filmmaker and documentarian Michael Apted and Peruvian economist Hernando de Soto will oversee the competition’s selection of 18 finalist videos, to be announced May 15. They will select three films from each of six regions (Western Hemisphere, Europe, Middle East/North Africa, sub-Saharan Africa, South and Central Asia and East Asia/Pacific).
The public will select the winning videos by voting online from May 15 through June 15 at www.youtube.com/democracychallenge. The winners will receive an all-expenses-paid trip to Washington, New York and Hollywood, where they will spend time on television and film sets; meet with film professionals, democracy advocates and government officials; and attend special screenings of their videos."
There are actually 18 world geographic finalists plus three anonymous finalists, for a total of 21 finalists, as the Video Challenge Rules write as follows:
"Round 2: An independent panel of judges comprised of film experts and democracy and youth organizations will evaluate the semifinalists. They will choose three finalists from each of the six world geographic regions as defined by the U.S. Department of State (Western Hemisphere, East Asia Pacific, Europe, Africa, Near East, South & Central Asia) and three anonymous finalists for a total of twenty-one finalists, which will be revealed on the Contest site (www.youtube.com/democracychallenge) on or about May 1, 2009.
Round 3: The twenty-one finalist Videos will be posted on the Contest site in mid-May 2009, and the general public will have one month to vote for their favorite videos using YouTube’s rating system. One grand prize winner from each of the six world geographic regions and one anonymous winner will be announced on or about June 15, 2009."
The demvidchallenge is using Twitter, where one can keep up on what is happening. See http://twitter.com/demvidchallenge
Monday, April 27, 2009
John Kaplan's Marijuana The New Prohibition and Herbert Packer's The Limits of the Criminal Sanction Join to Suggest USA Reform its Drug Laws
According to Eric E. Sterling, President of the non-profit Criminal Justice Policy Foundation and former counsel on anti-drug legislation to the U.S. House Judiciary Committee, there are currently 2.3 million Americans in jails or prisons, many of them due to drug infractions:
"We certainly need to imprison dangerous offenders - to protect us and to punish them. But we need to get a lot smarter about why we imprison and who we imprison. Remarkably, in the last thirty years, the largest increase in imprisonment has been due to prohibition drug policy.
"Consider this disturbing fact: the United States now has the world's highest incarceration rate outside of North Korea. Out of 1,000 people, more Americans are behind bars than anywhere in the world except in Kim Jong-Il's Neo-Stalinist state. The US has a higher incarceration rate than China, Russia, Iran, Zimbabwe and Burma - countries American politicians often berate for their human rights violations.
Well over two million Americans are behind bars. Let us agree that violent criminals and sex offenders should be in jail, but most Americans are not aware that over one million people spend year after year in prison for non-violent and petty offenses: small-time drug dealing, street hustling, prostitution, bouncing checks and even writing graffiti. Texas, with its boot-in-your-butt criminal justice system, is now attempting to incarcerate people who get drunk at bars - even if they are not disturbing the peace and intend to take a taxi home...
Arguably, continuously lowering the bar for what it takes to be jailed threatens the liberty of all Americans. And having one million non-violent offenders in prison (often for absurdly long periods) makes it that much easier, in the near future, for the return of debtors' prisons and dissident detention centers. This approach to locking up everyone possible undermines both the liberal emphasis on personal liberty and the conservative emphasis on small government."
Who out there in the American criminal justice system understands the basic wisdom found in Herbert Packer's Limits of the Criminal Sanction? What lawmaker, government official, judge, prosecutor, or prison official in the United States has ever read Packer's book - much less applied the inexorable legal policy conclusions demanded by it? (see Google Books, this PPT and Packer's Two Models of the Criminal Process)
Not every undesirable human action or activity in society is or should be subject to criminal punishments. There are other - more modern - means available to deal with socially undesirable behavior.
Indeed, the primitive idea of jails or prisons as legal solutions for societal problems has been around for millennia. But such jails and prisons, except as a deserved punishment of and/or an effective deterrent of violent and dangerous criminals, are by their very nature as outdated in modern law as the now discredited blood-letting is in modern medicine, which was an accepted medical practice worldwide from the earliest times of humanity down to the late 19th century, a flawed medical practice which surely cost America's first President, George Washington, his life (we quote from the Wikipedia):
"Bloodletting was also popular in the young United States of America.... George Washington asked to be bled heavily after he developed a throat infection from weather exposure. Almost 4 pounds (1.7 litres) of blood was withdrawn ... contributing to his death in 1799."
We were reminded of the similar backward state of contemporary American law by the April 26, 2009 TIME article of Maia Szalavitz on Drugs in Portugal: Did Decriminalization Work? (referring to an article by Glenn Greenwald at the Cato Institute), where the answer to that question in the title is a clear, resounding, "YES, drug decriminalization has worked in Portugal".
Szalavitz quotes Glenn Greenwald, writing at the Cato Institute:
"Judging by every metric, decriminalization in Portugal has been a resounding success," says Glenn Greenwald, an attorney, author and fluent Portuguese speaker, who conducted the research. "It has enabled the Portuguese government to manage and control the drug problem far better than virtually every other Western country does."
What sensible legal policy did Portugal adopt?
Going to the original article at the Cato Institute, Glenn Greenwald writes in Drug Decriminalization in Portugal: Lessons for Creating Fair and Successful Drug Policies :
"On July 1, 2001, a nationwide law in Portugal took effect that decriminalized all drugs, including cocaine and heroin. Under the new legal framework, all drugs were "decriminalized," not "legalized." Thus, drug possession for personal use and drug usage itself are still legally prohibited, but violations of those prohibitions are deemed to be exclusively administrative violations and are removed completely from the criminal realm. Drug trafficking continues to be prosecuted as a criminal offense....
The data show that, judged by virtually every metric, the Portuguese decriminalization framework has been a resounding success. Within this success lie self-evident lessons that should guide drug policy debates around the world." [emphasis added]
We are particularly gratified to read this result, because the Portuguese solution is the solution advocated 40 years ago by our mentor at Stanford Law School, the late Professor John Kaplan - famed for his legal brilliance from his days at Harvard, a former prosecutor who was a conservative at heart - who in the late 1960's was selected as a member of a top-notch advisory committee of law professors to advise the California state legislature on a revision of the California criminal (penal) code.
Kaplan's drug research at that time led the professorial advisory committee to recommend the decriminalization of marijuana in California to the California legislature - with the result, if memory serves correctly, that some if not all of the entire advisory committee was released from its duties by the legislature and replaced by other law professors whose political views were more in line with what the California legislature wanted to hear. I know of this only be hearsay and can not vouch for the exact details.
In any case, Kaplan responded to this experience with his book, Marijuana: The New Prohibition, which I had the honor and pleasure to edit while still a student, and in which Kaplan was of the opinion that drugs such as marijuana should be "decriminalized" - it was his major recommendation in this field of law. Drug abuse, as Herbert Packer - for whom I was also a student assistant at Stanford Law School - would have predicted by the principles in his book on the limits of the criminal sanction, simply does not lend itself well to control by criminal punishments.
Eric E. Sterling, J.D., President of the Criminal Justice Policy Foundation in his Drug Policy Bibliography and Websites lists Kaplan's book as follows:
"John Kaplan, Marijuana – The New Prohibition, Pocket Books, New York, 1971, 402 pp. A
classic. Stanford law professor John Kaplan demolished the factual foundation for marijuana
prohibition when originally published in 1970. Throughly documented."
Talcott Bates M.D. wrote in his book review of Marijuana: The New Prohibition:
"Professor Kaplan was appointed in 1966 by the California Senate to a committee to revise the California Penal Code, last completely revised in 1872. By chance he was assigned the drug laws, about which he felt he had no knowledge or experience except that which he had acquired as a one-time prosecutor as Assistant United States Attorney. It became apparent at once that the key drug problem in California was the treatment of marijuana. Not until the treatment of marijuana was intelligently handled would progress in the broader area of drug abuse be possible.
Marijuana: The New Prohibition reviews the history of marijuana, how in 1937, four years after Prohibition ended, Congress outlawed the sale, possession, and use of marijuana. Professor Kaplan points out that the measure of the wisdom of any law is the measure of its total social
and financial costs and the benefits that derive from this outlay. This book is an attempt to measure the costs of the criminalization of marijuana and concludes that the costs far outweigh the benefits."
It is not without reason, as written at ProhibitionCosts.Org, that in the year 2005, three Nobel laureates in economics and more than 500 distinguished economists advocated "replacing marijuana prohibition with a system of taxation and regulation similar to that used for alcoholic beverages [which] would produce combined savings and tax revenues of between $10 billion and $14 billion per year...."
In terms of drug possession and abuse, as I wrote previously elsewhere about John Kaplan's book:
"John Kaplan's
Marijuana -- The New Prohibition
John's book on the drug laws resulted from his membership on a professorial advisory committee to the California state legislature. John was quite conservative in his views and had in fact served as a public prosecutor of crimes, but his committee recommended a liberal stance toward marijuana - regarding its criminalization to be a legislative mistake.
John's view was that the legislature should concentrate more on workable laws regarding hard drugs such as heroin and cocaine, which were the major dangers. Too much emphasis was going toward marijuana - where young people were easily being caught in the act of smoking - and too little effort was being placed on going after hard drug makers and dealers, where arrests were much harder for the authorities to obtain.
As the result of the objective committee report, however, the committee was fired by the California legislature and a new committee was formed, ostensibly with members whose views were more in line with what the legislature subjectively wanted to hear, whether it fit the facts or not. In his book, John predicted that the criminalization of marijuana would not work - it did not work - and that, on the contrary, the marijuana laws would strengthen the hard drug dealers as suppliers - which in fact happened, leading many people to take stronger drugs. The drug abuse mess that exists today throughout much of America is partially the result of this very erroneous drug law policy, having concentrated on marijuana and not enough on the truly dangerous substances.
See: Marijuana -- The New Prohibition
by John Kaplan
Publisher: Ty Crowell Co; 1st Edition (June 1970)"
The State of California and the other states of the United States ignored Kaplan's recommendations and the results are now in, 40 years later. They do not speak well for the wisdom of past or current legislation on drug laws or their enforcement. According to the National Institute on Drug Abuse (NIDA) :
"In 2006, 25 million Americans age 12 and older had abused marijuana at least once in the year prior to being surveyed. Source: National Survey on Drug Use and Health; http://www.samhsa.gov/. The NIDA-funded 2007 Monitoring the Future Study showed that 10.3% of 8th graders, 24.6% of 10th graders, and 31.7% of 12th graders had abused marijuana at least once in the year prior to being surveyed. Source: Monitoring the Future http://www.monitoringthefuture.org/. "
The case for decriminalization and for a more intelligent approach to drug possession and abuse is clearly apparent.
Generally, in terms of all petty and needlessly "criminalized" legal infractions, there are great legislative and judicial opportunities out there to adopt sensible criminal laws, to get people out of jails and prisons who should not be there, and to help to integrate people into normal life rather than tossing them stupidly into jails and prisons, where little progress in development is possible for most. Quite the contrary, people are thrown together with hardened criminals, to their detriment. In most non-violent crimes, especially petty infractions, jail and/or prison should be the LAST option, not the first.
But how likely is it that an entrenched unmoving American legal system will now take the intelligent path forward to reform its vastly outdated drug laws and to free its jail and prison populations of people who should not be there?
Not very likely - unless the people in Congress and state legislatures suddenly get to be a lot smarter than we judge them to be.
For more resources on this topic, see the Cato Institute's Criminal Justice Reading List.
"We certainly need to imprison dangerous offenders - to protect us and to punish them. But we need to get a lot smarter about why we imprison and who we imprison. Remarkably, in the last thirty years, the largest increase in imprisonment has been due to prohibition drug policy.
Even though drug enforcement leaders have warned for more than twenty years that "we can't arrest our way out of the drug problem," every year we arrest more people for drug offenses than the year before. Last year we arrested over 1.8 million Americans, more than three times the number arrested for all violent crimes combined. Now about one-quarter of those in prison are serving drug sentences. As the centerpiece of our anti-drug strategy, arrests and imprisonment have failed: high school seniors report that drugs are easier for them to get now than in the 1970s and 1980s."
"Consider this disturbing fact: the United States now has the world's highest incarceration rate outside of North Korea. Out of 1,000 people, more Americans are behind bars than anywhere in the world except in Kim Jong-Il's Neo-Stalinist state. The US has a higher incarceration rate than China, Russia, Iran, Zimbabwe and Burma - countries American politicians often berate for their human rights violations.
Well over two million Americans are behind bars. Let us agree that violent criminals and sex offenders should be in jail, but most Americans are not aware that over one million people spend year after year in prison for non-violent and petty offenses: small-time drug dealing, street hustling, prostitution, bouncing checks and even writing graffiti. Texas, with its boot-in-your-butt criminal justice system, is now attempting to incarcerate people who get drunk at bars - even if they are not disturbing the peace and intend to take a taxi home...
Arguably, continuously lowering the bar for what it takes to be jailed threatens the liberty of all Americans. And having one million non-violent offenders in prison (often for absurdly long periods) makes it that much easier, in the near future, for the return of debtors' prisons and dissident detention centers. This approach to locking up everyone possible undermines both the liberal emphasis on personal liberty and the conservative emphasis on small government."
Who out there in the American criminal justice system understands the basic wisdom found in Herbert Packer's Limits of the Criminal Sanction? What lawmaker, government official, judge, prosecutor, or prison official in the United States has ever read Packer's book - much less applied the inexorable legal policy conclusions demanded by it? (see Google Books, this PPT and Packer's Two Models of the Criminal Process)
Not every undesirable human action or activity in society is or should be subject to criminal punishments. There are other - more modern - means available to deal with socially undesirable behavior.
Indeed, the primitive idea of jails or prisons as legal solutions for societal problems has been around for millennia. But such jails and prisons, except as a deserved punishment of and/or an effective deterrent of violent and dangerous criminals, are by their very nature as outdated in modern law as the now discredited blood-letting is in modern medicine, which was an accepted medical practice worldwide from the earliest times of humanity down to the late 19th century, a flawed medical practice which surely cost America's first President, George Washington, his life (we quote from the Wikipedia):
"Bloodletting was also popular in the young United States of America.... George Washington asked to be bled heavily after he developed a throat infection from weather exposure. Almost 4 pounds (1.7 litres) of blood was withdrawn ... contributing to his death in 1799."
We were reminded of the similar backward state of contemporary American law by the April 26, 2009 TIME article of Maia Szalavitz on Drugs in Portugal: Did Decriminalization Work? (referring to an article by Glenn Greenwald at the Cato Institute), where the answer to that question in the title is a clear, resounding, "YES, drug decriminalization has worked in Portugal".
Szalavitz quotes Glenn Greenwald, writing at the Cato Institute:
"Judging by every metric, decriminalization in Portugal has been a resounding success," says Glenn Greenwald, an attorney, author and fluent Portuguese speaker, who conducted the research. "It has enabled the Portuguese government to manage and control the drug problem far better than virtually every other Western country does."
What sensible legal policy did Portugal adopt?
Going to the original article at the Cato Institute, Glenn Greenwald writes in Drug Decriminalization in Portugal: Lessons for Creating Fair and Successful Drug Policies :
"On July 1, 2001, a nationwide law in Portugal took effect that decriminalized all drugs, including cocaine and heroin. Under the new legal framework, all drugs were "decriminalized," not "legalized." Thus, drug possession for personal use and drug usage itself are still legally prohibited, but violations of those prohibitions are deemed to be exclusively administrative violations and are removed completely from the criminal realm. Drug trafficking continues to be prosecuted as a criminal offense....
The data show that, judged by virtually every metric, the Portuguese decriminalization framework has been a resounding success. Within this success lie self-evident lessons that should guide drug policy debates around the world." [emphasis added]
We are particularly gratified to read this result, because the Portuguese solution is the solution advocated 40 years ago by our mentor at Stanford Law School, the late Professor John Kaplan - famed for his legal brilliance from his days at Harvard, a former prosecutor who was a conservative at heart - who in the late 1960's was selected as a member of a top-notch advisory committee of law professors to advise the California state legislature on a revision of the California criminal (penal) code.
Kaplan's drug research at that time led the professorial advisory committee to recommend the decriminalization of marijuana in California to the California legislature - with the result, if memory serves correctly, that some if not all of the entire advisory committee was released from its duties by the legislature and replaced by other law professors whose political views were more in line with what the California legislature wanted to hear. I know of this only be hearsay and can not vouch for the exact details.
In any case, Kaplan responded to this experience with his book, Marijuana: The New Prohibition, which I had the honor and pleasure to edit while still a student, and in which Kaplan was of the opinion that drugs such as marijuana should be "decriminalized" - it was his major recommendation in this field of law. Drug abuse, as Herbert Packer - for whom I was also a student assistant at Stanford Law School - would have predicted by the principles in his book on the limits of the criminal sanction, simply does not lend itself well to control by criminal punishments.
Eric E. Sterling, J.D., President of the Criminal Justice Policy Foundation in his Drug Policy Bibliography and Websites lists Kaplan's book as follows:
"John Kaplan, Marijuana – The New Prohibition, Pocket Books, New York, 1971, 402 pp. A
classic. Stanford law professor John Kaplan demolished the factual foundation for marijuana
prohibition when originally published in 1970. Throughly documented."
Talcott Bates M.D. wrote in his book review of Marijuana: The New Prohibition:
"Professor Kaplan was appointed in 1966 by the California Senate to a committee to revise the California Penal Code, last completely revised in 1872. By chance he was assigned the drug laws, about which he felt he had no knowledge or experience except that which he had acquired as a one-time prosecutor as Assistant United States Attorney. It became apparent at once that the key drug problem in California was the treatment of marijuana. Not until the treatment of marijuana was intelligently handled would progress in the broader area of drug abuse be possible.
Marijuana: The New Prohibition reviews the history of marijuana, how in 1937, four years after Prohibition ended, Congress outlawed the sale, possession, and use of marijuana. Professor Kaplan points out that the measure of the wisdom of any law is the measure of its total social
and financial costs and the benefits that derive from this outlay. This book is an attempt to measure the costs of the criminalization of marijuana and concludes that the costs far outweigh the benefits."
It is not without reason, as written at ProhibitionCosts.Org, that in the year 2005, three Nobel laureates in economics and more than 500 distinguished economists advocated "replacing marijuana prohibition with a system of taxation and regulation similar to that used for alcoholic beverages [which] would produce combined savings and tax revenues of between $10 billion and $14 billion per year...."
In terms of drug possession and abuse, as I wrote previously elsewhere about John Kaplan's book:
"John Kaplan's
Marijuana -- The New Prohibition
John's book on the drug laws resulted from his membership on a professorial advisory committee to the California state legislature. John was quite conservative in his views and had in fact served as a public prosecutor of crimes, but his committee recommended a liberal stance toward marijuana - regarding its criminalization to be a legislative mistake.
John's view was that the legislature should concentrate more on workable laws regarding hard drugs such as heroin and cocaine, which were the major dangers. Too much emphasis was going toward marijuana - where young people were easily being caught in the act of smoking - and too little effort was being placed on going after hard drug makers and dealers, where arrests were much harder for the authorities to obtain.
As the result of the objective committee report, however, the committee was fired by the California legislature and a new committee was formed, ostensibly with members whose views were more in line with what the legislature subjectively wanted to hear, whether it fit the facts or not. In his book, John predicted that the criminalization of marijuana would not work - it did not work - and that, on the contrary, the marijuana laws would strengthen the hard drug dealers as suppliers - which in fact happened, leading many people to take stronger drugs. The drug abuse mess that exists today throughout much of America is partially the result of this very erroneous drug law policy, having concentrated on marijuana and not enough on the truly dangerous substances.
See: Marijuana -- The New Prohibition
by John Kaplan
Publisher: Ty Crowell Co; 1st Edition (June 1970)"
The State of California and the other states of the United States ignored Kaplan's recommendations and the results are now in, 40 years later. They do not speak well for the wisdom of past or current legislation on drug laws or their enforcement. According to the National Institute on Drug Abuse (NIDA) :
"In 2006, 25 million Americans age 12 and older had abused marijuana at least once in the year prior to being surveyed. Source: National Survey on Drug Use and Health; http://www.samhsa.gov/. The NIDA-funded 2007 Monitoring the Future Study showed that 10.3% of 8th graders, 24.6% of 10th graders, and 31.7% of 12th graders had abused marijuana at least once in the year prior to being surveyed. Source: Monitoring the Future http://www.monitoringthefuture.org/. "
The case for decriminalization and for a more intelligent approach to drug possession and abuse is clearly apparent.
Generally, in terms of all petty and needlessly "criminalized" legal infractions, there are great legislative and judicial opportunities out there to adopt sensible criminal laws, to get people out of jails and prisons who should not be there, and to help to integrate people into normal life rather than tossing them stupidly into jails and prisons, where little progress in development is possible for most. Quite the contrary, people are thrown together with hardened criminals, to their detriment. In most non-violent crimes, especially petty infractions, jail and/or prison should be the LAST option, not the first.
But how likely is it that an entrenched unmoving American legal system will now take the intelligent path forward to reform its vastly outdated drug laws and to free its jail and prison populations of people who should not be there?
Not very likely - unless the people in Congress and state legislatures suddenly get to be a lot smarter than we judge them to be.
For more resources on this topic, see the Cato Institute's Criminal Justice Reading List.
Subscribe to:
Posts (Atom)
