Who Speaks For The Low Functioning?

The median for IQ purposes is 100. That means that half of us fall below IQ 100, by definition. Those unlucky people should not be blamed or penalized for their natural condition, delivered by fate at birth. They should not be mocked. My purpose herein is to suggest that they have the same right as anybody to security and happiness. That right is not being honored, and that is a shame on all of us.

Disclaimer: I make no claims of intelligence for myself, and I would hope that anyone who examined my life would be gentle in describing the meager successes that I have achieved with any talents that I may have been given. Furthermore, it’s not up to me to assign value to people, to categorize them. I’m not judging anybody. Now let’s get on with it.

We’re not allowed to call people “stupid” anymore. That’s probably a good thing. In any case, it’s not politically correct these days to call someone stupid, or retarded. It’s true, when you think of it, that “stupid” and “retarded” are not quite descriptive. Consider the old saying, “he’s so smart that he’s stupid.” 

There are nuances to these things.

Now we are encouraged to refer to those formerly stupid people “low functioning.” Myself, I believe that the sobriquet “low functioning” encompasses more than a mere recitation of the person’s IQ. I think that the factors for low functioning status are: 1) IQ; 2) temperament; and 3) emotional health. Any combination of shortcomings in these three areas may cause some of us to be overmatched by the complexities of modern life. Our functioning is impaired. Hence, “low functioning.”

It’s worth mentioning that most families include an uncle, or a cousin, who is smart enough, and a very nice fellow, but who never seems to get his wheels on the ground. They live with their parents and struggle to make a living. They are the hidden face of the low functioning.

The point is that the low functioning will always be with us (to paraphrase). They need our consideration more than ever in our modern world, and as I say, they deserve it. Things aren’t getting any easier for working people. Up until quite recently, someone with a limited education and no extra-ordinary skills could easily find a job that could turn into a long term meal ticket. They could get married, raise families, and send their children to university. By now, those jobs have fled overseas, and our society’s education priorities have shifted to profit-centered. All that is left is Walmart, or McDonalds, and those places do not enable anyone to have a decent life.

I say, “they deserve our consideration.” What do I mean?

They deserve an education tailored to their needs; they deserve access to all the education that they can stand, practically free; they deserve social services to assist with any difficulties that they may be experiencing; they deserve decent jobs that pay a living wage; and they deserve government policies that recognize and value their existence. It is not enough to tell them, like Willard Romney told the world in 2012, “just borrow money from your parents and start a business!” (Truth to tell, Romney is the real retard in this story so far.)

In other words, the low functioning deserve their fair share of the prosperity that is a feature of American life.

That, however, is not happening. Instead, those low functioning Americans are being left behind, they are being blamed for their own status as also-rans, and, worst of all, they are being exploited by cynical power interests. (Think political interests; business interests.) This needs to stop.

(Let’s pause for a moment to consider the breath taking naivety of that simple statement, “this needs to stop.”)

These powerful interests are abusing the low functioning with things like:

1.   Institutional unemployment;

2.   Exorbitant pricing policies for education, etc.;

3.   Vote harvesting;

4.   Fear mongering; and

5.   Religion.

Dare we say it out loud? Low functioning, low education and low skilled (mostly) white people are leading the charge of American politics off into the realm of fantasy. It’s not their idea, either. It’s that exploitation thing I just mentioned.

(Unless, of course, the cart has taken over the lead from the horse, and now it is the low functioning who are driving before them their former Galtian Overlords. That’s a pleasant thought, but it is unlikely.)

They are electing people who laugh at them and work against their best interests; they are enabling religion to pervade politics; and they are empowering corporate interests in their ongoing crusade to destroy the Federal government. These are terrible things in which there is no benefit for the low functioning.

The low functioning are not to blame for their anger and discontent. They have suffered a very real diminution in their ability to make a living, and support a family, and to lead a prosperous, American life. They had the American Dream there for a short while, four decades or so. It’s well and truly gone by now. They do have real grievances that deserve airing. I feel their pain, more, in fact, than I care to admit. The terrible thing is that the exploitation that they are responding to leads them to blame the wrong forces for their reduced condition.

It’s not immigrants that have ruined the American Dream; not Democrats; not Liberals; not coastal states; not urban culture; not academic elites. It’s certainly not recent arrivals like terrorists and Muslims. I’ll sound like a broken record if I spell out who it is that they should be blaming. You know who I mean.

So, who speaks for the low functioning in American society? There was a long period in Western Civilization when nobody did, nobody cared at all. Slight shifts began to enter the picture around the arrival of the Enlightenment and the American Experiment. More recently, labor unions and New Deal Democrats did a lot to help raise the living standards of those who had previously been written off as “the poor.” (And the “undeserving poor,” to boot.) There was even, for a time, something like a covenant between labor and management, which arose during and after World War II. That was an unspoken agreement in which labor promised to diligently do the work of business, and management promised to take care of labor with health care and more equitable wages.

Man, how gone is that train by now! It’s out of sight! It gives me chills even to think about it! How great was that! No one under forty-years-old can even imagine it! Such a thing would only be considered stupid now, the real stupid, with no reference to political correctness.

But who? Who’s left? Elizabeth Warren and Bernie Sanders? An army of two? Maybe the low functioning are doomed. Where can they go for help? For solace? For Christ’s sake, where can they go for health care? How can they live on the wages of a greeter at Walmart?

The conditions that I am describing here are a scandal and a deep shame for a country that claims to be the land of the free. They should be, anyway. Look around, lots of countries are doing much better for their workers than America is. Their workers have much greater security; they make more money; they eat better; they get much more vacation time; they don’t worry about health care; their children go to university free; then have, indeed, more freedom. It’s true.

I, for one, am ashamed. 

houndog - "i brought the rain"

A David Hidalgo side project (his main band is Los Lobos). This is deep.

Someone shared a list on Facebook, "The 50 Most Drug Addled LPs." This LP was on the list, for some reason, I'm not making any value judgments except to say: great cut!

David Bowie "Life on Mars?" from Hunky Dory Ryko Clear Vinyl Edition

I seem to be taking this one personally. We of a certain age are becoming accustomed to people in our catalog dying, I mean it's a weekly occurrence by this time. RIP Lemmy! I usually shrug it off, more or less regretfully. This one is different.

I had been aware of David Bowie from his earliest appearances in Rave magazine and the New Musical Express music newspaper from England, but I had never heard anything of his at all until Space Oddity hit the New York radio in 1972. This was after Ziggy Stardust, that one passed me by, too. I thought Space Oddity was great, and I bought the LP immediately. The very next day I went back to the store and bought Bowie's entire back-catalog. Hunky Dory; The Man Who Sold the World; Ziggy Stardust; was there another one? I was smitten.

By now I would probably say that the Eno trilogy were my favorites, but my single favorite might be something more commercial like Modern Love, and now that I think of it maybe my favorite is the Aladdin Sane LP, who knows? And The Man Who Fell to Earth, man, that was a hoot, enhanced and all. Those were interesting times.

I'll stop rambling now. This one is different, that's all. Just terribly different.

Our "Justice" System, Part II

More people whose behavior contributes to the problem.

Judges

I rather like judges in the abstract. I generally favor broad discretion for judges acting on the cases before them. In the particular, though, judges can be problematic.

Judges start out as lawyers, and this often leads to problems. During their lawyer experience, judges often develop biases. Most lawyers, especially in urban settings, tend to work in narrowly defined areas of law. Criminal lawyers (no jokes, please); property lawyers, business lawyers; family lawyers (usually divorce lawyers); tort lawyers; banking lawyers. Many, upon being elevated to the bench, are assigned to work within the area of their expertise. I’ve seen this work both for and against clients.

If a bankruptcy judge worked for banks as a lawyer, he will tend to favor banks as a judge. He or she is liable to view all debtors as deadbeats. If the judge worked for debtors as a lawyer, he is liable to favor them as a judge as well. A judge who had been a criminal defense lawyer, or a Public Defender, he will probably be skeptical of everything the prosecution does and lend a sympathetic ear to criminal defendants and their lawyers. If a judge had been a prosecutor, a District Attorney, she will almost certainly treat criminal defendants as obviously guilty, because why else would they have been arrested and charged in the first place? Judges can rise above these attitudes, but this kind of prejudice is often apparent.

Judges are afraid of being overturned on appeal. There are two main ways for a judge to further his career: 1) ruthlessly clear cases from his calendar by dismissing cases; and 2) have a low record of being overturned. These things often work together.

A judge will carefully weigh the power and resources of the parties before him, and he will often decide a matter on the basis of what is best for him. Any time I said, “Frederick Ceely for the plaintiff, your honor,” and the other lawyer said, “Robert Miller (not a real person) for Gibson, Dunn and Crutcher appearing for the defendant,” I was in danger of losing, irrespective of the law and the facts. This is because the odds are that my client cannot afford to mount an appeal or a writ if we lose, while the defendant that can afford Gibson, Dunn can afford it and they will almost certainly file it. Gibson, Dunn has an appeals section for that, and they get paid, big time. If I lose, the judge is safe; if the other guy loses, the judge is in danger of being overturned. For many judges, this is an easy decision to make, and justice is not served.

God forbid the other lawyer should introduce herself as, “Jane Barton, appearing on behalf of the United States of America.” Those lawyers had resources, they’d appeal everything, right up to the Supreme Court if necessary. Judge just surrender and give them the ruling.  Small fry get pushed around, and they get pushed straight off the calendar before they know what hit them.

This works with the dismissal of cases, too. Dismissals on the pleadings most often happen when the targeted lawyers and their clients have meager resources to fight back.

Recall that judges were once lawyers, so it’s easy to believe that no judge ever believes a word that comes out of a lawyer’s mouth. They lied when they were lawyers; now they assume that all of the lawyers appearing in their courts are lying too.

Most do not like the guidelines, etc, with which the legislatures have saddled them, but many feel like it makes their jobs easier. Less work; someone to blame if something goes wrong; less emotional involvement.

I remember many good judges, men and women that I respected and in whose courts I felt safe that we were going to get a fair hearing. I also remember very well a large number of black robed devils who wreak havoc on a daily basis without a passing thought to justice.

Judges are just men and women, after all. Geniuses among them are rare, as they are rare among lawyers in general, or people in general for that matter. They do the best that they can, if you are lucky, but often that best is not very good and the only “best interest” that they serve is their own.

Lawyers

Disclaimer: I am a lawyer myself. I am admitted in the State of California, and in two of the Federal District Courts that are located in California. I claim no distinction for myself, but I will admit the status.

I worked in the trenches for twelve years or so. I made countless court appearances, most of them for matters of civil law and motion or bankruptcy hearings. Some trials, some arbitrations, some mediations. A couple of score of depositions. Sometimes I was even a party to the case! It was never a good fit for me, a bit too stressful. After ten years or thereabouts I realized that according to the published code of ethics it was often an ethical violation for a lawyer to tell the truth. Lawyers can often be sued for telling the truth. That was one of the last straws for me.

I was substitute teaching there for a while, looking for an alternative, and one wise guy in an eighth grade at some Jewish school asked me, “so, you’re a lawyer, that means that you lie?” I told him, “well, I try never to say anything that is actually not true out loud, but I do refrain from saying things sometimes, or try to spin them away from the question.”

Of lawyers, one hears the most complaints, and the most unhinged complaints, about “plaintiff’s lawyers.” This is a misplaced criticism. Plaintiff’s lawyers represent ordinary people in their struggles against insurance companies, soulless corporations, medical providers, and other predatory entities. Good for them. Criminal defense attorneys get a bad press too, but honestly, they are not “trying to get guilty criminals off.” They’re trying to get ordinary folks a fair hearing on the merits. Usually the best that they can do is prevent someone from being railroaded into a bunch of extra years. The best that they can usually do is get a guy two to five instead of seven to ten. No, the real abuses by lawyers happen on the other side, the prosecutorial side.

I have often said that a prosecuting attorney is someone whose job it is to put innocent people in prison. “Innocent” is not a word that I use frequently, because in our world of reality only tiny babies are truly innocent. What I mean here is that if a prosecutor is handed a case by his boss, and upon reviewing the file and doing a little bit of investigating he realizes that there’s no way in Hell that the guy did it, he’ll go ahead and try the case anyway. He’ll do his best to put the fellow in prison for as long as he can. It’s his career, after all. All prosecutors will describe this phenomenon in the same way: “it’s not my job to judge him; it’s my job to present the state’s case against him.” See? It’s that evil jury that puts him in prison, not the poor, humble prosecutor.

Prosecutorial excesses are all over the news these days. The legislatures have criminalized everything, so there’s always a laundry list for prosecutors to charge. And they charge defendants with everything under that sun. So the choice for a criminal defendant goes something like this. “You’re looking at a total of 228 years in prison if you are found guilty of all charges, or you can plead guilty to (something) and get only seven years.” What would you do? I’d take the seven years myself. Our prisons are full of completely innocent people who accepted the logic of this system.

I suppose that the real contribution of lawyers in general to the demise of our criminal justice system is that being reasonable when performing any function involving the legal system is just not possible. Everyone fulfills their role, with all of the contradictions and ethical shortcomings that it entails.

Or, they retire from the practice of law, flee to a developing country, and teach American law at a foreign university.  That’s what I did, and I’ve never regretted it.

Witnesses

Let’s put trial witnesses into three categories: regular folks; experts; and police. All three types represent an endless parade of mischief makers.

Trial courts try to discover what happened at some past date and time. This is never easy, since none of the professionals involved in the trial was there when it happened. Not the judge; not any of the lawyers; not the police that may be involved. Regular people who have seen something, or heard something, which might be useful as evidence, are invited to appear at the trail and answer lawyers’ questions about their experience. This most often produces testimony that is a hot mess.

Witnessing is hard. Many witnesses tell the truth, as best they can, but what they may have seen was almost certainly a shocking event. That will interfere with their perception of it, and their memory of it. Even a pretty run of the mill event is hard to describe, afterwards.

I witnessed a car accident one time. Not a criminal matter, but illustrative. My desk overlooked a busy intersection, and while I happened to be looking an accident occurred that involved about five cars, maybe six. I had been a lawyer for many years already, and had worked on numerous car accident cases. My eyes were on the event for the entire time. But I’ll tell you, when a bunch of cars start bouncing off of each other and spinning around, it’s very hard to recall accurately just who did what to whom. I made a diagram immediately, assigning fault to designating “Car Number One,” etc., in the manner of California police, and I showed it to my friends in the office. They could see where the cars where after it had all settled down, right out the window, and yet my diagram made little sense to them. How was it possible? I was a very qualified witness, but hardly credible, because it all seemed so unlikely.

Regular folks are often telling lies, too, let’s bear that in mind. They’re trying to help someone, to help the defendant in a criminal trial or the plaintiff in a tort case. It happens.

And police! I would never believe a word that a policeman said as a witness in a criminal case. No, believing them would be stupid. For one thing, they’re trying to hang the defendant, and for another thing, they’ve been thoroughly prepped by the DA’s office and they’ll say what they’ve been told to say.

Same goes for the experts. When I listen to expert testimony, I only have one question: who paid you? They’ll testify to whatever is good for their client. Or else they’ll never work again, that’s for sure. Remember what a mess the experts made of the O.J. Simpson trial?

I used to wonder if court appointed experts could be trusted. They, after all, are hired by the judge, who is supposed to be neutral. Now I wonder, though. They want the judge to hire them again, so they’ll probably do what they think that the judge wants them to do. Shouldn’t be too hard to figure out. So let’s not believe them either.

Conclusion

The whole idea of a fair justice system seems like a mighty big demand to make on reality. It just seems like a terribly hard thing to set up, in the best of situations.

Whatever system one could come up with, it would be administered by mere humans. Wouldn’t that insure that the entire thing would go wrong in a hurry? In a New York minute?

When it has worked better than it works today, that was possible because society and the people involved had a sense of how difficult it was. They left a certain amount of slack in it. Sure, occasionally a guilty party went free, but the idea was that that was preferable to innocent people going to prison.

Now we have legislators mishandling criminal defendants to get elected; prosecutors going along for the ride, drunk with their own power; lawyers just trying to make a living; and a general public that is conditioned to live in fear of crime, terrorism and minorities. The results are mass insecurity and mass incarceration.

Now, regarding this mass incarceration, who can say with confidence that it is not a conscious program of imprisoning people just to take them off the voter rolls, permanently? Would you put it past those legislators?

The least that any of us can do is to try to consider these problems and take small steps to insure that we don’t assist those who are trying to make matters worse. 

Raumpatrouille Orion - Trailer

I just came across a clip from this TV production, and the show looks like it has potential. Here's an original trailer.

There's certainly a lot of it on YouTube, probably every minute of the whole show run. The show didn't last very long, mostly because it was thought to be humorless and militaristic, borderline fascist, even.

Might be fun. Let's see how it goes.

Brave & Strong

There's a Riot Goin' On!!! I don't need to add to the accolades that this LP has received, more of them recently, I suppose, than when it came out. I had my copy though, when it was brand new. I loved it then; I love it now. This LP is proof that cocaine is good for you, for a year or eighteen months, anyway. After that, well, we've seen what happens.

Our "Justice" System, Part I

This is mostly to introduce the cast of characters involved in the ruination of the American justice system, mostly the criminal justice system. That system has worked more or less well since its founding not so very long ago. It has been working less and less well for some time now, and stands before us as a shadow of its former self.

CNN commentator Mark Griegos, described by CNN as a criminal defense attorney, spoke recently on that channel about probable cause:

“Probable cause hardly exists anymore. Probable cause these days means whatever police and prosecutors want it to mean.”

For reference, here is the definition of probable cause that I learned in law school only twenty five years ago:

“Probable cause is facts and circumstances, which, in themselves, would lead a reasonable person to believe 1) that a crime had been committed; and 2) that this certain person had committed the crime.”

It sounds quaint now, doesn’t it? Yes, things have gone wrong, but who’s responsible? Here are some of them:

Legislators

From the Latin, “legis,” meaning the law. Legislators write the law; they make up our legislatures. We are blessed in America with two levels of legislators, federal and state. We have a system of federal laws, and every state has its own legal system. They’re all different, too, but there’s one thing that they have in common these days.  They’re all “tough on crime.”

All of this started with that good old President Nixon, “Tricky Dick.” President Dick got the idea to use fearmongering about crime to scare up the vote. The pitch was: “those ungrateful blacks and those miserable hippies are ruining our peace and quiet with their demonstrations, their drugs and their riots, and we’re going to put a stop to it.” Legislators jumped on the theme and started to turn out laws that criminalized more and more behavior and increased the penalties for many crimes exponentially. In New York, new “Rockefeller Drug Laws” were enacted in the early 1970s, and all of a sudden that joint that would have gotten you one year in 1970 would now get you seven years. Soon, legislatures all over America were falling all over themselves in an attempt to out-do one another. 

By now, almost everything has been criminalized, everyone is under suspicion all the time, and America has the highest rate of incarceration in the known world.

Has there been any up-tick in the safety of Americans, or down-tick in the crime rates, as a result of this orgy of violence against the citizenry?  Why no, there has not. But the process continues.

Here are some of the bright ideas the legislators have passed as laws:

Sentencing Guidelines: one of the hallmarks of our Common Law tradition is giving judges a lot of discretion in their own courtrooms. After all, the theory goes, the judge is sitting right there, he sees everybody and everything. The judge is in the best position to figure out who is a good guy and who is a bad guy, and also the one most likely to really understand what happened. Let’s just give this guy probation, because it’s better all around. Let’s suspend this sentence, because it was probably a one-time thing and this guy had no priors. Sentencing guidelines do away with all that. Guilty means what the legislators say it means, in numbers of years that are cut in stone.

And of course the numbers are high for those years, because those legislators want the voters to think that they are “tough on crime.”

Mandatory Minimums: ditto.

Strict Liability: this aspect of law has been part of tort law for millennia. If you own a wild animal, and it hurts somebody, the injured plaintiff does not have to prove that you were negligent, that you did something wrong, or stupid. No, all he has to prove is that the animal is your property. You are strictly liable. This is a considerable mischief in criminal law.

An example, if I may. In the 1990s I had a good friend who had been a criminal defense attorney in Los Angeles for about thirty years. He represented a fellow in a case that he found most upsetting. The guy was Hispanic, about fifty years old, and he had a job in the sheriff’s department. Not a cop, just an office job. One day his son left the house with a gun to go accomplish some gang business. The dad followed him out of the house and actually talked him out of it, talked him into handing the gun over and giving up the idea. While all of this was happening, somebody saw two Hispanic “males” handling a pistol in public, and they called the police. When the police announced their presence, the dad was holding the gun by the barrel and heading back towards his house. When the police told him to freeze, he turned to explain the situation. Reasonable?

He was arrested and charged with threatening police officers with a gun. The district attorney ran with it. It is now a “strict liability” crime, the circumstances have nothing to do with it. If the DA can prove that a) the defendant had a weapon in his hand; and b) he was facing the police in question, boom, guilty. 

The guy admitted that much, because it was true and he was an honest man. 

The rest of the story was never shared with the jury. That was good for seven years, with the judge having no discretion to mitigate the punishment.

These are the people who inhabit our prisons. That guy lost his job, and by the time he gets out he’ll be almost sixty years old and he’ll have a felony prison record. I’m sure that he lost his house, too, and probably his wife as well. That’s justice in a pig’s eye right there.

Anti-Recidivist Laws: these are the famous “Three Strikes” laws that became popular some time ago. We need to be tough on crime! We need to get these repeat offenders off the streets!  Here’s how it works.

If a person has two qualifying prior felony convictions, and that person is convicted of a violent crime, the penalty is life in prison. Just saying it out loud like that gives me chills. The results are often horribly unfair, and, I believe, unconstitutional.

The famous case in my memory was a fellow with two strikes who was arrested after he seized a half-eaten piece of pizza from a teenager on the Venice Beach boardwalk. I forget how he got the strikes, but I don’t think that he had ever hurt anybody in either of them. He didn’t hit the kid to get the pizza.  The guy was homeless, and hungry. He was convicted of aggravated assault, and he got the life sentence.

I came to the law late in life so I retain some naiveté about the fine points of the law, but my understanding of Double Jeopardy is that a person cannot be tried twice for the same crime on the same facts. Isn't there a law or a principle about punishing them twice? That defendant had already been sentenced for those priors and he had served his time and been released. So how is it fair to base a life sentence on those resolved prior crimes?

Legislators love these laws, because it makes them look very, very tough on crime.

Racial Overtones: of course there are racial aspects to these things. Take the sentencing guidelines for powder cocaine vs. the ones for crack cocaine. The powder users get off much lighter on the time side; the crack defendants go to prison for much longer. It’s not entirely a black/white divide, but there are many more whites on the powder side and many more blacks on the crack side. It’s a question of marketing as much as a question of preference. People buy what’s available. For tough on crime, one must often read, “tough on those blacks.”  

This is turning into a book, so I’ll break it up into a couple of parts.