THE PROPENSITY STANDARD

Greetings, it has been a while.  This blog entry will focus on some legal definitions and jargon, please bear with me.  Before you take the journey into bipolar thought with me, digest this quote by, Charles C. Noble: “First we make our habits, then our habits make us.”

From dictionary.com, the word propensity is defined as, pro·pen·si·ty

/prəˈpɛnsɪti/ Show Spelled[pruh-pen-si-tee]

noun, plural pro·pen·si·ties.

1.

a natural inclination or tendency:

A group of individuals, according to crime reports, are more prone to commit certain crimes. Law enforcement has set up models that show what type of individual fits the profile of a criminal.  We live in a society laced with stereotypes, with those stereotypes we start to label people as certain types of individuals.  It's a psychological theory that I will not get too deep into, however, if you see someone of a certain ethnic background, in our minds we feel that are more "prone" to do a certain thing.  What is this "thing" in law enforcement?

Reasonable suspicion means that the officer has sufficient knowledge to believe that criminal activity is at hand. (http://legal-dictionary.thefreedictionary.com/Probable+Cause+and+Reasonable+Suspicion).

If a police officer sees someone who they believe is committing criminal activity they have satisfied their reasonable suspicion, or as I have called it, their propensity standard.  Other factors are involved, like time, place, other actors - but a policeman can have reasonable suspicion and stop you if you fit a certain propensity profile.  If you look like a person that is more prone to commit a crime, you can be stopped by law enforcement. Is this fair?  Does this help law enforcement fight crime?

The new law in Arizona gives the police the ability to act on reasonable suspicion based on a person's profile.  Law enforcement can pull over and detain someone based on how they look. That is simple and plain, and I am not here to take sides, just some background information.

The state of Arizona has a four pronged law, which is currently being heard at the Supreme Court (today is April 25, 2012). The law states:

-- A requirement that local police officers check a person's immigration status while enforcing other laws if "reasonable suspicion" exists that the person is in the United States illegally.

-- A provision authorizing police to arrest immigrants without warrant where "probable cause" exists that they committed any public offense making them removable from the country.

-- A section making it a state crime for "unauthorized immigrants" to fail to carry registration papers and other government identification.

-- A ban on those not authorized for employment in the United States to apply, solicit or perform work. That would include immigrants standing in a parking lot who "gesture or nod" their willingness to be employed.

Some may say that these four prongs will help fight the illegal immigration problem we have here in the United States of America; some say this is racial profiling.

The illegal immigration problem: it is unlawful, and a federal offense, for someone to illegally make their way into the United States of America.  It is unlawful for someone to elude examination by immigration officers at the border, and it is unlawful for someone to willfully falsely represent their immigration status.  The state of Arizona wants to be tough on crime; they want to prosecute anyone who is breaking this federal law.  The state legislature in Arizona has decided to crack down on violation of Title 8 Section 1325 of the US Code, they would like to institute these safeguards and give law enforcement the authority to police these efforts.  Now when someone is committing a crime, law enforcement will have the authority to check their "immigration" status, if they do not provide proper documentation they will be in violation of the Arizona law.  Why is this a problem? Isn't this why we have law enforcement?  Yes, it is a federal law, but the people of Arizona are fed up, and do not believe that the federal government is doing a good enough job to prevent this illegal activity.

Ok, the other side. Yes, we have federal laws in place to prevent improper entry into this country.  That is what they are federal laws, handled by the federal government.  It would be a violation to allow states to enforce their own version of this law, by allowing law enforcement to basically profile individuals, requiring them to provide documentation on site, and conduct warrantless searches based on how they look.  Profiling is never a good thing when it comes to arresting someone, where is the officers "reasonable suspicion" coming from; just because someone looks illegal does that mean they are committing a crime? This law will only lead to more harassment and racial unrest. The legal persons in the state of Arizona will have to be on notice that law enforcement can stop them and ask them for documentation. Where else in this country does that happen?  Law enforcement should not be allowed to stop someone based on how they look.

Are we going into a society, where propensity or habit can be directly linked to someone's race?  Or do we sacrifice being stopped and checked for the good of protecting our borders?  America was founded as a land of opportunity, that right came with some rules. America also was founded as a land of liberty. Stopping someone based on their race is hardly allowing them liberty to live free here.  I would challenge law enforcement to be more specific about reasonable suspicion, and make sure they are not "reasonable suspicious" of only a certain race or class of people. The scholar Rubén Rumbaut analyzed census data from the year 2000 and found that incarceration rates among legal and illegal immigrants from Mexico, El Salvador, and Guatemala were less than half the rate of U.S.-born whites. What do you think?

Unintended Lessons From MLB?

"Today is for everybody who has ever been wrongly accused,"

Ryan Braun, Major League Baseball Player (The MLB) - Milwaukee Brewers. 

This is a very interesting statement.  I wonder if Mr. Braun is referencing the 289 individuals that were exonerated from criminal sentences; where they were wrongly accused?  Before I get into this, I must say, this is not a bash Braun post. Remember I always look at both sides of the issue. That being said, ask yourself can the criminal justice system learn anything from this ordeal?

Background: Ryan Braun was the National League MVP for the 2011 season.  The MLB has a drug testing policy which suspends players if they test positive for a list of banned substances.  Once a player test positive for an illegal substance the MLB sentences them according to their guidelines. The player then can appeal to a panel which includes a MLB representative, a representative from the Player's Union (The Union), and a third party arbitrator.  The third party arbitrator is the key here, because the player is given the option to have his guilty verdict reviewed by another authority, and present evidence that The MLB may have been flawed in their testing procedures/process.  Braun did just that, he won his appeal by a 2-1 vote.  The "1" vote against was The MLB.   Braun won his appeal on a technicality.  As required by the drug testing policy, the sample was not shipped for testing as soon as possible, and instead was kept in a cool place in the sample collector's home.  Baseball screwed this one up. Or did they?

The MLB has confidence in their drug testing policy. They use the best resources available to ensure the accuracy and integrity of the procedures.   Quite frankly, performance enhancing drug usage has been a black eye over baseball for years.  One would believe that the process would be heavily relied upon and all procedures had been carefully crafted. If a test came back negative all parties involved should trust and believe in its accuracy.  Braun basically won his appeal on a technicality.  There was a question of chain of custody of the handling of his sample.  There was no sign of tampering, or any other type of negligent or malicious act.  There were also other instances where the samples were kept in a safe place before they were sent to FedEx to be shipped off to the lab.  The lab carrier who stored the Braun samples said there had been many instances where the same procedures took place, and nothing harmed the sample. It's like putting a covered glass of water on your nightstand, three days later steroids magically appear in the water. This does not happen.

Ok, nothing malicious happened. Yet, there is a procedure that should be followed.  The integrity of the process was compromised as soon as the chain of custody was broken. The policy is a good policy, but like every good policy all the steps need to be followed. Take for example a crime scene. If the investigators get on the scene, they collect the blood, fingerprints, and/or clothing. These items are left at the investigators house overnight.  If this happens, one could question the validity of the evidence.  The accused of the crime may say, "yes that is my blood", BUT how can I be 100% sure that the blood was not contaminated?  Why was the blood sent to the investigators home and not directly to the crime lab?  The accused would then, and rightfully so, say this evidence should not be presented as evidence that could prove his guilt. This is the same argument Braun has made.  No way can he be held guilty of failing a test, when the procedures to prove guilt were not followed.  Even in the absence of malicious intent, intentional of negligent tampering, the sample should not have been left unattended with the collector.  Braun winning his appeal, and subsequent exoneration from guilt of using illegal substances were justified.

Interesting case. Could this be a lesson for criminal crimes?

  Think about it, Braun's own statement was that this is a win

for everybody who has been wrongfully accused.  Well, the

significant difference here is that most people who are

accused do not have the access to challenge the ruling of a

conviction.  We have many people who are incarcerated

around this country, that never had their DNA retested, or

the process called in to question giving them a fair retrial. I

applaud The MLB for having a policy to catch wrong-doers,

but also having a system where a third party arbitrator can

reevaluate the evidence or collection of evidence.   I do not

know if Ryan Braun is guilty or innocent, I do know one

thing, I believe more individuals should be able to challenge

their verdicts of guilt.  Yes, our system has legitimate appeals

processes, but many do not have the access or resources to

even present their cases.  What is the remedy?  Do we follow

the lead of The MLB, where all criminal cases should be

arbitrated? Should this be absolute?

Are You Called?

The Supreme Court of the United States unanimously decided that religious workers may not sue their employees on the basis of discrimination.  (Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC).  A teacher who was hired by a religious school was fired. She attempted to sue the school, claiming discrimination. The court held that a person who was "called" to be a worker at the church, could not sue the church based on discrimination in the courts.  Basically, the court is aiming to stay out of all religious hiring and firing practices.  Should the constitution (your rights) be left out of your church/religious organizations business? Should a person who is a minister, pastor, etc. at a church not have any rights when a discriminatory act has taken place?  Well, let's take a look at a historical perspective of church and state, as well as both sides of this very controversial issue.

 This argument of church and state dates back to the days of The Magna Carta (The Great Charter) in England.  In England, the king ruled.  The king's subjects wanted to limit the king's powers, and created documentation to enforce those powers. The Magna Carta paved the way for the United States Constitution.   The Bill of Rights is deeply rooted in the objectives of the original Magna Carta.  Thank you England. 

 The Supreme Court, in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, prohibits a person from suing a church for job discrimination.  This demonstrates our 1st Amendment rights at work right before our eyes.  The courts should not infringe on the authority of clergy men that are freely exercising their religious rights. How can a court, legislative body, or executive tell a church who to hire, when to fire them, or what they should teach. The purpose of separation of church and state is to protect our rights as religious people to practice and worship how we see fit.  Once the government gets a foot in the door by ruling on the hiring and firing practices of churches, they will not stop there.  We must totally limit government interference with church functions.  We must protect our own set of religious laws.  There should be no intermingling of the two.

However, how will individuals employed by religious organizations be protected going forward?  Let us revisit the church school teacher case previously mentioned.   How far can she take her rights?  Does she leave her "rights" at the door as soon as she enters the classroom?  Can the church now only hire a certain race of pastors, Sunday school teachers, or administrators?  Well, the court said that if the person was considered "called" to teach, and not just a lay teacher - then the hired person(s) could not use the constitution to enforce their rights. They must follow the rules of the church only.  The court neglected to define what "called" means.  A lot of times people use vague and ambiguous language to further discriminate or persecute individuals.  A private company can fire anyone, for any reason. Yet, if that reason seems to be discriminatory or a violation of that individuals rights, the firing can be challenged in court.  What makes the private company and the church so different? I understand that freedom of religion is a right, but you still need safeguards and protection when something is just out-right wrong (i.e. firing because of a disability, race, sex, etc…)

This is another interesting, yet controversial issue.  Standing in the middle, I really do see valid points on both sides of the argument.  I do feel that the court should actually define what "called" means.  Also, what about the many charities and businesses the church runs that are in the public arena. Do they say a salesman at a religious book store is "called" and now he/she can be fired on a blatant discriminatory basis?  What is right is right, what is wrong is wrong.  Yet, stepping in and telling someone how to worship, assemble, and learn when it comes to the spiritually can be a real touchy subject. What do you think? Wait, I leave you with this quote from an English King :

“I order you to hold a free election, but forbid you to elect anyone but Richard my clerk”