Posts

Rights Without Reason

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Posts in this series.

On The Evolution Of Agency by Michael and related

Free Will, Agency, And Evolution
Goal Directed Agency And Intentional Agency
Great Apes AS Rational Agents 
Socially Normative Agency
Socially Normative Agency And Rights
Coming To Grips With Free Will

On Chapter 9 of The Origins OF Totalitarianism by Hannah Arendt
The Mass Migrations Caused By WWI
Denaturalization and Asylum in Interwar Eruope
Stateless In Palestine
Citizenship

On How Rights Went Wrong by jamal Greene

Background For A New Book
How Courts Came To Control Our Rights
Two Views Of Protection Of Rights
Strict Scrutiny And Rational Basis Scrutiny
The Injustice Of Our Rights Regime

Introduction

Social media is full of right-wingers bleating about the infringement of their rights. Sometimes it’s gun nuts blathering about their rights to own every gun. Sometimes it’s some dude whining about being slammed for exercising his free speech right to spew his racist opinions. These blowhards say that no limitation on their rights is permitted, whether it’s criminal penalties, civil damages, or public insults.

Perhaps these oppressed people get their idea about rights from the Declaration of Independence,

We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness….

But, of course, the Declaration doesn’t confer any rights. Maybe they think the right to mouth off and the right to strut around with guns are God-given. That would explain why they are offended when they encounter consequences for their behavior.

Perhaps they believe these rights spring from the first two Constitutional amendments. But SCOTUS says otherwise in US v. Cruikshank (1875).

The right of the people peaceably to assemble for lawful purposes existed long before the adoption of the Constitution of the United States. In fact, it is, and always has been, one of the attributes of citizenship under a free government. It ‘derives its source,’ to use the language of Chief Justice Marshall, in Gibbons v. Ogden, 9 Wheat. 211, ‘from those laws whose authority is acknowledged by civilized man throughout the world.’ It is found wherever civilization exists. It was not, therefore, a right granted to the people by the Constitution.

…

The very idea of a government, republican in form, implies a right on the part of its citizens to meet peaceably for consultation in respect to public affairs and to petition for a redress of grievances.

….

The second and tenth counts are equally defective. The right there specified is that of ‘bearing arms for a lawful purpose.’ This is not a right granted by the Constitution.

The Supreme Court says that neither the right of free association nor the right to keep and bear arms are granted by the Constitution. By that logic, neither is the right of free speech. The cases applying these amendments to the states under the 14th Amendment do not reject this reasoning.

It seems that our rights depend on the interpretation by five members of SCOTUS of a word like “republicerad”, or of whatever they think they know about our tangled history. If so, there is no way to explain anything about our rights. That’s especially true of this version of SCOTUS, which doesn’t even pretend to care about precedent, and invents rules to suit its preferred policy outcomes.

Preliminary Ideas

I’m going to read and write more about our rights. For starters, here are some thoughts. It will be interesting to see how these thoughts hold up against other people’s ideas.

1. Every idea people have about everything was invented by a human being. This is a point made by the early Pragmatist William James; see the last part of this post. This is the second in a three part series on Pragmatism, the other two are here and here. They lay out the basic ideas that help me to understand our world. For those interested in how this philosophy works in our time, take a look at Philosophy And Social Hope by Richard Rorty, a collection of essays by the late Pragmatist.

2. One problem with our Bill of Rights is that the language is unhelpful. Many of them are couched in the negative, leaving open the nature of the positive right. Others use imprecise language, such as “cruel and unusual”. From the beginning these amendments were seen as limits on the national government. When the Supreme Court began to implement the Reconstruction Amendments, it imposed the language in the Bill of Rights limiting the national government on the states. The result was the eradication of the power of the states to participate in the regulation of these rights. This was a major change in our federalism. And we were left with the vague language, now subject only to the interpretation of SCOTUS. Constitutionalizing these ill-defined rights leads to inflexibility in thinking about their content.

3. What exactly do we mean by “rights”? As a starting place, and in keeping with what I take to be the position of First Amendment absolutists and the gun nuts, we mean that no one is allowed to interfere with some action taken by another. For example, the right to own a gun means no one can interfere with anyone else’s right to buy and own a gun, including violent criminals and domestic abusers. The right to free speech means no one can interfere with the right of anti-abortion fanatics to scream outside my neighborhood abortion clinic.

4. Rights are inherently social, not individual. Every right requires a concomitant imposition on everyone else. The existence of rights limits the way our society can regulate itself. For example, anti-vaxxers may make religious liberty claims, while others point out that refusal to get vaccines threatens their children. If the anti-vaxxers prevail, we are all exposed to greater risk of illness and death.

This implies that rights should have a political aspect. Our current system is heavily biased towards a legalistic approach, empowering courts, especially SCOTUS, with undue power. It also focuses on the claims of individuals and ignores the impact on society and the claims of people not in the litigation. Dobbs is a good example: the plaintiff was the state government, and the defendant was an abortion clinic. What about pregnant women? What about their families? What about he impact on society? Alito and four other self-righteous rulers don’t care.

New Series

My next book will be The Evolution Of Agency by Michael Tomasello. I think it indirectly supplies a more useful approach to thinking about social relations, and thus rights. It’s short, and easy reading (mostly).

In this post I discuss the Epistemic Regime as described by Jonathan Rauch, in his book The Constitution Of Knowledge. The Epistemic Regime is the way we arrive at truth in the Pragmatic sense. I think it’s good background for some of Tomasello’s ideas about our species.

I’d like to follow that with books or papers about the theory of rights in the US. I don’t know what that will be yet, and if anyone has a suggestion, please put it in comments; also I’m still on Xitter @MasaccioEW, and slowly moving to BlueSky. @[email protected].

Repairing the Faults in this Nation’s Foundation

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In observance of the Fourth of July holiday, I’ve written a handful of essays for this site over the past five years. One year I wrote two posts, on and before the holiday.

2022: A Republic, If You Can Keep It

2020: Still Dreaming of the American Dream

2020: The Fourth Ahead and the Forgotten

2019: In Order to Form a More Perfect Union

2018: Happy Fourth of July: Remembering the Why

Looking back I realize now writing about the Fourth became imperative because of anti-democratic efforts by Trump and the GOP who enabled his autocratic behaviors.

By exercising our democracy, Trump was removed from office. This is what the nation’s founders envisioned, a leader who could be removed either by election or by impeachment and conviction, when voters revoked and bestowed consent to be governed.

Last year and this year, however, critical faults in the founders’ efforts to create a more perfect union have been revealed, and in a particularly ugly way.

With the Dobbs v. Jackson Women’s Health Organization decision in June 2022, a majority of Supreme Court jurists told more than half the nation they did not have bodily autonomy depending on the state they lived in. Equal protection for their fundamental human rights was voided.

This year with the 303 Creative LLC v. Elenis decision, a majority of the Supreme Court felt empowered to use a hypothetical case – not an actual case in which any citizens’ rights were violated, and a case which may have relied upon false statements – to sharply turn back the clock on civil rights and weaponize the First Amendment to allow open discrimination.

These unelected arbiters chose to ignore stare decisis, making lies of their sworn statements during nomination hearings before the Senate Judiciary Committee.

GOP-appointed Supreme Court jurists have abrogated their role defined in the Constitution, and have now set about making law in a star chamber created by partisan appointments, in turn enabled by bad faith through gerrymandering, voter suppression, and an Electoral College created to protect a white land-owning minority class in order to assure their white patriarchal power continues.

The only good thing any one of these revanchists has done in the course of seizing Americans’ rights is a warning — surprisingly, by the most corrupt of the lot, Clarence Thomas:

Thomas warned us in Dobbs the extremist revanchist faction of SCOTUS was coming for our right to privacy on which the people of this country have relied to make personal, intimate decisions about their loves and their bodily autonomy.

And lo — this June the revanchists came for LGBTQ+ rights, though not in the way we might have expected. They took a made-up threat to establish a right to exercise in commerce a way to deny LGBTQ+ persons the same access to goods and services. They did so in a way which may allow this country to return to Jim Crow — this time not only seating Blacks at the back of the corporate-owned bus but denying any protected class the equal rights they should have as human beings.

Again, equal protection under the law has been discarded by unelected federal employees with lifetime appointments.

This cannot stand; the problem is bigger than Thomas’s targets, Griswold, Lawrence, and Obergefell.

They are going after our unenumerated rights, using enumerated rights to do so.

~ ~ ~

Political historian Eli Merritt has an op-ed in today’s Los Angeles Times: The Fourth of July is all about America’s first principle — the right of revolution.

After the seditious conspiracy and insurrection of January 6, 2021, one might reasonably be put off by the title of this essay. It’s this premise Trump’s seditionists relied upon when they stormed the U.S. Capitol in order to obstruct the certification of the 2020 election, summoning the spirit of 1776 as they did so.

We can’t argue that this country wasn’t born of revolution — it’s fact.

But we can remember as Merritt points out that revolution wasn’t necessarily intended to be violent:

For the founders, the right of revolution did not imply violent overthrow of government. Rather, it was an idea that encompassed the right to resist unconstitutional acts through nonviolent civil disobedience — and, only when this failed after long sufferance, by formal withdrawal from unjust government in the defense of freedom, equality and the right of the people to govern themselves.

The revolution which created this country wasn’t the work of armed rebellion alone beginning 1765 and ending in 1783 with the Treaty of Paris. Our fellow contributor Ed Walker has been examining the second founding, which continued the revolution and evolution of this country from a colonial outpost of monarchical empire to an independent, sovereign democratic republic in which equality for all might be realized through amendments to the Constitution.

We’re now confronted with unconstitutional acts by constitutional officers attempting to undo the second founding — specifically, the Ninth Amendment:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

The right to control our bodies belongs to no state, no nation. No judicial decision should encroach upon that fundamental right.

And yet the Roberts’ SCOTUS conservatives found otherwise with its Dobbs decision, in spite of precedent acknowledging the right to privacy about our bodily autonomy.

The same court puts itself at odds with the Constitution regarding regulating commerce in Creative 303 — if a theoretical business relies on religion to limit its client base, is it really a business or is it a church?

(It’s a wholly dishonest exercise when the business doesn’t even exist; the same Christianist business would be unlikely in reality to win LGBTQ+ business because in reality, clients don’t want hire service providers for work which undermines their lives.)

We are further insulted not only by unconstitutional decisions but by the corruption which shaped them. These are not just works, they are not legitimate; they were generated for corrupt purposes and thwart the evolution toward a more perfect union.

How now are we to respond?

~ ~ ~

We must remember once again this Fourth of July that this country has not always ensured all of its people have equality, in spite of its founding manifesto:

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

The work of the first and second founding are not yet done; we are still and always becoming what we set out to be. Frederick Douglass saw an arc to the path ahead:

…my spirit is also cheered by the obvious tendencies of the age. Nations do not now stand in the same relation to each other that they did ages ago. No nation can now shut itself up from the surrounding world and trot round in the same old path of its fathers without interference. …

We reject that same old path to which the extremist revanchists wish us to return.

We reject their divisive, exclusionary ideology which will not yield a more perfect union.

We may engage in nonviolent civil disobedience to this end; Martin Luther King, Jr. held our feet to the fire in his 1963 Letter from a Birmingham Jail:

YOU express a great deal of anxiety over our willingness to break laws. This is certainly a legitimate concern. Since we so diligently urge people to obey the Supreme Court’s decision of 1954 outlawing segregation in the public schools, it is rather strange and paradoxical to find us consciously breaking laws. One may well ask, “How can you advocate breaking some laws and obeying others?” The answer is found in the fact that there are two types of laws: there are just laws, and there are unjust laws. I would agree with St. Augustine that “An unjust law is no law at all.”

MLK told us we have “a moral responsibility to disobey unjust laws.”

But we should — we must — take every available measure in our democratic framework to revoke our consent and remedy the unconstitutional faults before they fester into worse. This means active engagement in all levels of the democratic political process, from our local school boards to the White House. We can’t take any political office for granted; they are held only with our consent, and our consent is assumed when we are not engaged.

Help new voters obtain ID and register to vote. Ensure they can get to the polls in spite of voter suppression. Educate yourself about the candidates; make sure no seat goes uncontested where a revanchist GOP holds office or runs without opposition. Vote in the primary. Vote up and down the entire ticket — in doing so, you express your consent to be governed.

Do not let them assume you have given consent to an imperfect union, that you consent to their corruption as they take our innate human rights.

I ask once more this holiday as I have before:

I wrote four years ago during the Trump administration, after posting a copy of the Declaration of Independence:

The signatories to this document knew they also signed their death warrant. They debated this document thoroughly, understanding their lives, fortunes, and possibly the same of friends and family were staked on the success of the undertaking launched by this declaration (“corruption of blood” in family’s case, which so concerned the founders it was cited later in the Constitution’s Article III).

They staked blood and treasure for their thoughts and beliefs that the colonies must be free. The least we can do is remember this bravery and consider our own willingness to fight for this American democracy.

When asked in 1787 at the end of the Constitution Convention what form of government had been created, Ben Franklin answered, “A Republic, if you can keep it.”

What will we do to keep it?

What will we do to keep this democratic republic’s foundation from faulting even further?

Assaults on Free Speech and the Cities We Didn’t See

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Last night I thread a series of tweets documenting law enforcement abuses including attacks on journalists in different cities across the country during protests against police brutality.

I collected more than a half dozen reports from Minneapolis alone of attacks on journalists from different news organizations. This number doesn’t represent the entire number of journalists attacked in that one city.

Those attacked included:

Michael Anthony Adams, journalist, VICE
Tom Aviles, photojournalist, CBS affiliate WCCO
Jennifer Brooks, columnist, Star Tribune
Julio-Cesar Chavez, cameraman, Reuters and
Rodney Seward, security advisor, Reuters
Carolyn Cole, photographer, Los Angeles Times
Molly Hennessy-Fiske, journalist Los Angeles Times
John Marschitz, sound engineer, CBS (national)
Unidentified team member with Omar Jimenez, CNN
Unidentified camera person (reported by CNN but doesn’t appear to be on their team)
Nina Svanberg, journalist, Express-Sweden
Linda Tirado, freelance photographer
Ali Velshi, correspondent, MSNBC (and his team including Morgan Chesky and Richard Lui)

It’s not clear from Jennifer Brooks’ tweets from May 28 that her identity was clear to the police vehicle indiscriminately spraying tear gas out of a window toward the crowd.

Linda Tirado lost the sight in her left eye after being hit with a rubber bullet in the face.

I don’t have any tweets from Louisville KY but I’ve read that there was at least one more incident yesterday involving a member of the press. If you have anything about this and other police attacks on media not listed here, please share in comments.

Los Angeles was at least as bad as Minneapolis in terms of attacks on journalists.

These aren’t random accidents. This is a clear pattern of behavior.

Law enforcement across the country is attacking the exercise of the First Amendment.

They aren’t doing this relying on qualified immunity; their attacks on members of the press are violations of the Constitution where the identity of the media is clear, where law enforcement has made zero effort to validate the identity of the media persons they attacked.

Law enforcement are doing this with qualified impunity — assumed but not granted by voters.

Ignoring the rule of law which is the foundation of law enforcement’s existence means law enforcement has de-legitimized itself.

They are criminal gangs when they break the law and fail to protect and serve the public’s interest by attacking media which informs the public.

It’s absolutely essential that elected officials and the public demand accountability from law enforcement for their attacks on media during protests this week, before law enforcement becomes even more unaccountable for a broader range of failures to protect and serve the public

~ ~ ~

While Twitter has been awash with reports of police abusing protesters and the press — which interestingly failed to stop many white instigators engaging in property damage across the country — there were three cities I noted which did not devolve into riots while observing protests of police brutality.

They were Santa Cruz, California and Flint, Michigan.

I’ll let these tweets speak for themselves.

There weren’t reports in my timeline of property damage and rioting in either of these cities last night.

There also weren’t reports in these two cities of white agents provocateur escalating tensions by damaging property as there were in every city where police abused protesters.

It’d be nice to know if there is a more direct link between police brutality during protests and the appearance of white agitators.

This is an open thread.

Friday Morning: All That Jazz

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If you have to ask what jazz is, you’ll never know. — Louis Armstrong

It’s Friday. Don’t ask, just play.

If you thought FBI vs Apple was part of a plan to break Silicon Valley on encryption, it was
This will be the big buzz today: a secret “decision memo” reveals the government set out to access encrypted user data while putting on a good front about its relations with software companies. No information available about the source (or timing) of the memo; wouldn’t it be ironic if this secret memo had been hacked from a smartphone user’s data?

The Atlantic looks at the government’s attempt to force Apple to write code for their purposes as conscription. The secret memo bolsters this argument.

Looks like Apple may also claim the government is compelling speech. They’ve pulled out the big guns by hiring lawyers Ted Olson and Theodore Boutrous to work on this case.

Whiny telcos upset with Facebook eating their lunch with WhatsApp messaging
Like they couldn’t have seen this coming? Telcos in parts of the world like Central America and Europe have long charged uncompetitive rates for poor messaging service. Enter Facebook, which snapped up WhatsApp and integrated the messaging app in its social media platform. Facebook members now have a free messaging platform that works almost globally. The telcos are now upset that Facebook has eaten their text messaging profits. ¡Qué lástima! Though I admit I wonder if part if this grousing is really a front for governments who don’t like WhatsApp’s threat to intelligence access via telcos’ messaging services.

Citigroup’s Corbat gets a 27% pay increase
Too Big to Fail pays very well, for a very few. For Citigroup’s CEO Michael Corbat, it pays roughly $16.5 million this past year, up from $13 million the previous year. Corbat’s raise rewards him for Citibank’s improved fortunes, based in part on cutting less profitable businesses — like exiting retail banking in Argentina and Brazil.

Mercedes sued for not-so-clean diesel emissions
In a slightly different situation than with automaker VW, Daimler’s Mercedes is accused of selling diesel powered vehicles that do not meet emissions standards at low temperatures. The lawsuit was filed yesterday in New Jersey by a vehicle owner in Illinois, based on information published in Der Spiegel and the results of a study conducted by independent testing agency TNO for the Dutch Ministry of Infrastructure and the Environment. The problem at the heart of the suit:

“…the device in Mercedes’s diesel models turns off pollution controls at temperatures below 50 degrees Fahrenheit (10 Celsius), allowing the autos to violate emissions standards, according to the complaint.”

Mercedes did not disclose to buyers that its BlueTec technology, a system relying on use of urea-based NOX reduction, emitted NOX levels well above emissions standards at low temperatures. I would not be surprised to see more cases soon against Daimler and its Mercedes brand as BlueTec technology has been used in both passenger vehicles and commercial trucks for most of the last ten years.

On our mind: SKYNET
We haven’t forgotten the issue of U.S. military killing innocents *Oops!* from the sky based on metadata. Worth reading:

A “machine learning algorithm”? Imagine this in self-driving cars, hijacked via backdoors by hackers and governments. The ethics behind this technology must be widely debated in public now, before it moves beyond its already-abused role in drone-based warfare.

Should be an entertaining Friday; watch for government spokespersons to indulge in a lot of fancy-footwork jazz today.

1st Amendment and Other Concerns On Appeal of Redskins Decision

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JusticePicThere has been a lot of commotion over Wednesday’s decision by the US Trademark Trial and Appeal Board to cancel several trademark registrations of the Washington Redskins originally recognized back in the 1960’s by the United States Patent and Trademark Office (PTO). The full decision is here. It is quite long, detailed, and, at least facially, pretty compelling in its finding that the trademarks are “disparaging to Native Americans”.

Before I go further, let me say that I agree with those who think Daniel Snyder and the Washington Professional Football Franchise should change their name. It may not be the most pressing issue in our society, but it is something for which the time has come. Josh Marshall posted his thoughts on this subject at Talking Points Memo, and I think he put it all in excellent perspective and I agree with his conclusions.

The simple fact is we shouldn’t be using whole peoples as mascots for sports teams. Whether or not Indians in America today find it offensive is almost beside the point. The fact that most do is just an extra reason to do away with the practice.

With all I’ve said, there’s a part of me who feels like, ‘We really can’t have the Cleveland Indians anymore?’ It feels like a loss – part of the landscape of American sports I’m attached to. But it’s time.

Well said and, again, I agree. Josh’s entire piece is not long and is worth a read.

That said, and as much as I would like to see the name changed, I have trepidation about the government forcing the issue through agency decisions on what is proper speech, and what is not.

Tradenames and trademarks are, by their nature, really public speech and, thus, at least where they interact with the government, should be entitled to First Amendment protection. Now First Amendment protection is never absolute, but it is presumptively extremely broad. Likewise, First Amendment protections are against governmental action restricting free speech, not necessarily against private persons or entities. If I refuse to listen to you or to print what you have to say, that would be censorship, but it is not First Amendment action. If I am the government and censor you, then that is a different matter and there is a First Amendment issue.

So, here, the TTAB has taken it upon itself to restrict, at least in some regards, the free expression of the Redskins, via refusal to extend the same protection offered other “acceptable” speech and they do so by obvious decree of a governmental entity. Now the TTAB decision made out a VERY thorough and facially compelling case for Read more →

Could Santorum’s Radical Religious Fundamentalism Propel US Into Religious Violence?

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Despite the fact that our country was founded in part by immigrants seeking to escape religious persecution, the current crop of Republican presidential candidates (with the exception of Ron Paul, who gets no media airtime anyway) have carried the Republican party’s “God and country” theme to even more of an extreme than usual. Taking the clear lead in this push to extremism is Rick Santorum, who now is not only proclaiming his radical faith as a principal reason to vote for him, but he also is deriding the faith of others, primarily that of President Barack Obama.

The Washington Post notes:

When Rick Santorum accused President Obama of having “some phony theology” last weekend, it was neither an isolated event nor an offhand remark.

Instead, Santorum’s comments were a new twist on a steady theme of his Republican presidential candidacy: that Obama and other Democrats have a secular worldview not based on the Bible, one they are intent on imposing on believers.

The Republicans’ religious fundamentalism comes through in response to concrete policy issues:

The relationship between religion and government has emerged as a flash point in the presidential campaign in recent days after an effort by the Obama administration to require religious institutions to include contraception in health insurance plans for employees. All of the Republican candidates objected to the effort, which the administration tweaked after a massive outcry, especially from Catholics.

The “Founding Fathers” that conservative Republicans so want to emulate on some fronts took pains to establish the separation of church and state. Because many had come from persecuted religious minorities, they pushed for the First Amendment’s prohibition both on establishment of an official religion and for the freedom to practice all religions.

Yet, with his extreme devotion to a radical fundamentalist Christian version of Catholicism, Santorum is moving in a direction that could lead directly into the kind of religion-fueled violence we see in other parts of the world. Until now, only the occasional murder of an abortion provider has cropped up as violence that could be attributed to radical religious fundamentalism in the US. But when a candidate for president openly charges the current president with adhering to a “phony theology”, how far away are we from situations like that now in Afghanistan, where violence has erupted over the burning of Korans at Parwan prison?

When radical fundamentalist religion and government are intimately intertwined, violence seems to follow. In the current fiasco in Afghanistan, we see the mullahs in the Taliban calling for violence as a voice for the outrage at the burning:

An Afghan soldier joined protests on Thursday against the burning of copies of the Koran at a NATO base and shot dead two foreign troops, Western military sources said, as the Taliban urged security forces to turn their guns on foreigners.

Protests against the burning of copies of Islam’s most holy book drew thousands of angry Afghans to the streets, chanting “Death to America!” for the third consecutive day in violence that has killed 11 people and wounded many more.

The Taliban urged Afghans to target foreign military bases and kill Westerners in retaliation for the Koran burning at Bagram airfield on Tuesday, later directing its plea to the security forces, calling on them to “turn their guns on the foreign infidel invaders,” it said on its site shahamat-english.com.

But, remarkably, members of the Afghan Parliament have joined in with the Taliban in calling for a violent response: Read more →

A Note About OWS and Pre-Trial Diversion in Los Angeles

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I have seen a lot of garment rending on Twitter and in discussion forums I participate in about the Los Angeles Times report that a pre-trial diversion option is being offered to some Occupy Wall Street-Los Angeles protesters:

Many Occupy L.A. protesters arrested during demonstrations in recent months are being offered a unique chance to avoid court trials: pay $355 to a private company for a lesson in free speech.

Los Angeles Chief Deputy City Atty. William Carter said the city won’t press charges against protesters who complete the educational program offered by American Justice Associates.

He said the program, which may include lectures by attorneys and retired judges, is being offered to people with no other criminal history and who were arrested on low-level misdemeanor offenses, such as failure to disperse.

“Tin eared!” “Propaganda!” “Re-Education!” “Stupid!” “Tone-deaf!” “By a private corporation??” “Seriously, LA, this is the worst ever!” “Unbelievable!”

Those are a smattering of the responses I saw, and all are from people I know and respect greatly. And they are all wrong to take such umbrage at this report. Here is why.

Pre-trial diversion of criminal misdemeanor charges is an extremely common tool in municipal and other misdemeanor courts (and in some felon courts on the lowest grade offenses such as marijuana possession). It is, from a policy perspective, considered a win-win for both sides; the state and taxpayers avoid the cost of processing the defendant through the court system, and the defendant avoids having a conviction on their record (often avoid even having a formal charge lodged). But whether or not to offer pre-trial diversion lies entirely within the prosecutorial discretion of the state’s attorney. It is an option that can be offered, but certainly is not mandatory.

Just as pre-trial diversion is a voluntary option that does not have to be offered in the first place, the decision on whether to accept the offer is entirely up to the individual facing the charge. There is no punishment whatsoever for declining – none – they will stand in the EXACT same position vis a vis the state as if they had not been offered pre-trial diversion at all, i.e. there will be a municipal offense that has either been charged, or is pending charge, with a one year statute of limitation running.

There has been a hue and cry that – gasp! – the program will be administered by – gasp! – a private company. Well, they always are. I have never seen a diversion program with an educational component that was not farmed out to a private or non-profit outside entity. That is simply how it is done; cities and individual courts are not structured and funded to have classrooms, instructors and curriculum for these matters. And, being as it is a discretionary option to resolve outside of the criminal process (most are contractual, not court compelled) it just does not make fiscal or judicial sense to have it run by the court or state.

As to the content suggested for this particular diversion program offer, it is precisely what you would expect to be offered under the circumstances. Pre-trial diversion at the misdemeanor level almost always involves a perfunctory remedial/instructive class in the subject of the offense. This is the case with defensive driving class to get out of a ticket, it is the case with anger management for assault and domestic violence, it is the case for shoplifting and solicitation programs as well. For the OccupyLA cases, it is hard to imagine a more appropriate subject than a free speech centered Read more →