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”

Help Yourself?

The 32nd President of The United States was the legendary, by some accounts great, Franklin Delano Roosevelt. He was affectionately known to the masses as “FDR.” FDR became President during a horrible economic time for America.  FDR took office in 1933, immediately following the stock market crash of 1929.   From 1929 to 1933 the economy had basically hit rock bottom.  FDR was faced with a very tall task.  During his first 100 days in office, FDR introduced "The New Deal." One of the key initiatives of the deal was to provide relief to the poor. As a result of this new deal, many social programs were introduced  and government spending drastically increased.  Times got better, but people were still out of work. Unemployment was horrible. It made some believe that more spending had no direct relation to more jobs. Opponents of the new deal believed that the government should not be spending such large amounts of money on social programs.  Does this sound familiar?  Should the government spend money to stimulate the economy, or should the government lessen the tax burden on wealthy individuals allowing them to hire people and invest money back into the economy? Let's look at both sides of this debate.

In today's' America, the top 1% of Americans basically control most of the wealth. Sit down and think about that for a minute. Some of these individuals want the government out of their pockets, and want to cut social programs.  Why not? The rich don't want you in their pockets. They have worked very hard for that money. Social programs do not promote work, it can be said that it promotes laziness. Those individuals need to carry their own weight. 

Logically speaking, this country was founded on principles of shared sacrifice.  The top percentage should not have an issue with paying more in tax. It would also seem logical that these individual would care about the less fortunate, elderly, disabled and children in America.  Taxing the rich and cutting government spending creates class warfare.  It would be crazy to expect a family of four, making $50,000, to pay the same amount in taxes, as a family of four making $500,000 a year.  That seems a little unbalanced, biased, and “un-American.”  We need social programs. We need health care; we cannot have a sick society. We need social security; we want our seniors to live a good life. We need welfare; every person does not have the same opportunity. FDR once said, "Help the forgotten man at the bottom of the economic pyramid."

In 2011, many Republicans and conservatives feel the government should cut back on spending and lower the tax rate on wealthy Americans.  Herman Cain and Rick Perry, both Republican primary opponents, have discussed the adoption of a flat tax.  A flat tax basically requires every American to have the exact same tax rate. Our current tax system is progressive, meaning the wealthier American pays higher rates.  A flat tax will lessen the tax burden on wealthy individuals and decrease government spending on so-called “worthless” programs. In a nutshell the wealthy American will keep more money in their pockets.  This money will trickle down to the poor without government interference.  This will allow the Government to cut programs such as welfare, pensions, social security, etc.  These programs will become unnecessary because the wealthy American will put people to work.  A decreased tax burden will allow employers to hire and pay more.  This will eliminate deficit spending, and the country can become safer by allocating that "spending" into protecting our borders, technology and our infrastructure.  Defense spending makes money.  Is that not smart?  During World War II, unemployment decreased because factories were built to manufacture weapons used during the war.

This is a good one.  I promise you will hear similar rhetoric in the upcoming Presidential debates. Occupy Wall Street v. The Tea Party.  No matter what side you are on, at the end of the day we as Americans need to support each other.  Should the wealthy business man be trusted to create jobs without government interference?  Or should the government should step in an ensure that wealth is distributed equally? Was the government created to assist the poor? Or, was the government created to assist a free enterprise society?  These arguments have caused nasty debates throughout American history.  Who is right? Who is wrong? Where is the middle ground?

Who Has The Power, State Your Rights

Benjamin Franklin once described the concept of popular sovereignty by saying: "In free governments, the rulers are the servants and the people their superiors and sovereigns!"  Franklin served as a delegate to the Constitutional Convention and signed the United States Constitution.  If you read the constitution, particular Article VI, Clause 2, it reads (in part):

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

I will not bore you with historical, but back in the day there was a huge issue regarding states rights.  The source of this argument between the states and the federal government was, whether states entering the Union would be slave states or free states.  There was a doctrine called the "Missouri Compromise", yes compromise. It was sort of a one for one deal, one state slave state, and one state free.  I guess you can say that our country was actually working together, the problem was slavery. I will save my slavery Dred Scott blog for another day.  Today, let us talk about Medicaid.

Medicaid is a program funded jointly by the federal and state governments, and administered by the states.  The program is designed to provide health care for low income families, seniors and person with disabilities.  Ok, you see the problem already. How often do you think that states and the federal government will agree on any issue? As mentioned earlier, states and the federal government have been at odds for centuries over who has the rights and power to making certain decisions. If we go with Big Ben's philosophy the power lies with the people, right?  Yet, reading Article VI, it seems that the power lies with the government.

In a current case before the Supreme Court, Douglas v. Independent Living Center ,the United States has banded together with California against health care providers that sued to stop the state from cutting its Medicaid program.

Whoa, the states and the federal government actually working together?  Yes, we are at a dire economic time and the federal and state governments are slashing spending wherever possible.  The state of California decided to cut rates medical providers were charging under the Medicaid program, and the United States backed them.  This will help out the recipients of Medicaid.  Medicaid recipients are usually low income, senior, or disabled individuals. We want our poor and senior citizens to have access to affordable health care, don't we? We want to make sure the big insurance providers are not taking advantage of these individuals.  And in this economic environment, the government (state and local) does not have the money to pay these high rates. Good job United States, good job California.

Oh but wait, the other side of the argument.  The unintended consequence of states cutting Medicaid funding would be that Medicaid recipients would actually lose their access to health care.  Health care businesses and insurance companies would totally back out, and return to the private market.  What could be worse, small health care businesses would go out of business, which would result and firing plenty of workers.  Medicaid was started to provide access. If rates are high shouldn't it be up to the government to continue to pay the rates for the people, despite the cost?  The government (state and local) should cut other programs, or gain revenue in other ways to ensure that Medicaid is properly funded.

Wow, this is one for the books, the US/State versus The Chamber of Commerce/American Civil Liberties Union (ACLU). The chamber representing the business interest, the ACLU representing the interest of the individual. Democracy at its finest. Yet we still have a problem.

Both sides have very compelling arguments, don't you agree?  Is Ben Franklin's statement correct, and government should look to the will of the people at any cost?  Or should we read Article VI which gives the government the decision making process? Who will sacrifice here? Where is the middle ground? I am not going to answer that, I am here to argue bother sides…until next time, be impartial.

The Proclamation of Taylor v. Taylor

Herein on this 22nd day of September, in the great year of two-thousand eleven, I introduce to you Taylor v. Taylor.  No judge, no juror, no verdict, just simply hard analysis of cases and issues from both sides.  I decided to name my blog Taylor v. Taylor after hours of consultation and quasi-bipolar thoughts.  This is not a case of alter egos, Clark Kent v. Superman, it’s the sensible mind seeking truth and positivity on both sides.  As a lawyer we are taught to win cases by any means, yet I feel the profession's missing the non-adversarial common sense factor.

Common sense to me is finding the truth on both sides of an issue.  This blog will not deal in the negative, or the devil's advocate view.  I will simply take an issue, and show the truth and facts of both sides. Whether it is murder, tort reform, taxes on the rich, school funding, sports, entertainment, or political ideologies, the facts on both sides will be equally analyzed.  As I thought of this blog, I would be remised not to mention my Professor of Property, Mr. Thomas Kleven.  Kleven, as well all called him, was a liberal law professor from Yale.  Every morning he would walk into our 9am Property class with the George Washington/Quakerish hair, a Hawaiian shirt, and a slight John Kennedy Boston accent.  Kleven's class was interesting because we would give facts of the case and he would randomly pick a student to offer "for or against" a side. This was an interesting exercise, because I must say human nature is to pick a side and stick to that one.  I also started reading judges "opinions", I found this interesting.  When did they establish these "opinions", before or after closing arguments?  Did policy or special interest influence them?  Well, I am sure I will delve in the two little angel-like figures on my shoulders throughout my blog postings (I say two angels, because we don't give the devil any credence in this blogosphere).  So I hope you all enjoy, and I hope I can get some positive feedback, and maybe change the way we look at issues.  Excluding biases and partisanship, and having fun in the process.  As the late great Thurgood Marshall once said, "Let's become social engineers." God Bless.