Hot on the heels of  TSA Agent Thedala Magee demand for half a mil from Amy Alkon, Elie Mystal from  Above The Law played two minutes in heaven with TSA agents of his own.

After going through the full-body scanner (note: this is my only reference to the essentially naked pictures the TSA is allowed to take of anybody with the impudence to travel by air), I’m told to wait while the TSA lady looks for a TSA man to fondle me. Apparently this is because of “low resolution” on my scan. This is minute one of embarrassment, as all the other passengers scuttle by me with the “thank God I’m not that guy” look.

Two men appear, and I’m told to accompany them to the private screening room. I’m already waddling around with no belt and no shoes, so this has all the dignity of a perp walk. Which is exactly what it is — you’re being accused of something, and don’t have a chance to defend yourself. I ask them to just re-scan me. The men ignore my request, and beckon me to follow them. “Stay calm,” I think.

The private screening room looks about as safe as the back of a van of a pedophile. I’m in this box with two dudes, thinking about how my mother has warned me about getting trapped in this situation since I was five.

Nothing untoward yet.  Just the price we pay for living in a free society, where the collective welfare trumps any individual’s feelings.  Notably, it’s not that Elie refused to get scanned, but something aroused suspicion.

I haven’t been in the room 30 seconds, but I’m consumed with how not free I am. I can’t leave; I can’t even roll my eyes. The guy explains to me why he “has to” touch my crotch. In any other American situation, this is where the bargaining would happen. “No officer, please don’t do that, I’ll flip instead.” You’re supposed to have choices in America. But in this situation, there’s nothing you can do to stop this from happening. You could be sitting on information about an active terror plot to destroy the whole airport; they’re still going to touch your crotch.

(If I seem fascinated with my crotch, it’s because they are fascinated with my crotch. It’s the only thing they talk about before they start touching you.)

One of the problems of knowing a little bit about the law works is reaching the undeniable recognition that you are now separate from the rest of the world and in the absolute control of another. 

The other touches are perfunctory. Once under your arms, once down your arms. Your chest and belly are rolled over like they spilled something on you and are trying to help you dry. They slap you on the ass like you just hit a double (more on that later). But when they get to your inner thigh and crotch, they act like they’ve found the only place on the human body that has ever been used to smuggle anything. I could have smuggled a moob-sized bomb under my shirt, but the TSA guys know whether or not I shave my balls.

The strangest thing was the testicle search. During the explanation phase, the dude said he would place his hand on my inner thigh and run it up into my crotch and “lift and separate” my testicles, three times on each leg. Now, I couldn’t hide a third testicle between my other two without it being really obvious. What weapon could I possible wedge up in there that would require six touches to detect?

At the 1:30 mark in the private room, I make my only mistake. During the third and final vertical pass across my shaft, TSA guy “Zed” says: “You can relax, sir.”

No rape.  No permanent trauma. No PTSD.  Flying society is now safe from any potential threat lurking in Elie’s pants.  But enjoying his few minutes alone with the TSA, Elie urges that everyone, every flyer, every public official, every judge, enjoy the same experience.

I think we need a new rule. I think that everybody should have to go through a TSA private screening every time they fly. Why should most of us regular people, and nearly all the decision makers, be relatively oblivious to this new form of big government? If it’s so damn important, why not let everybody get in on the fun? We’d be safe! At least from any crotch-based airline attacks.

Either we’d all get used to it, or judges and governmental officials would remember that we have rules that we put into our Constitution specifically designed to stop this kind of gross excess of government power.

If the federal bench is going to allow American citizens to be molested, it should at least have some skin in the game.

At least just once.  After all, nothing matter until it touches someone’s life.

Bob Ambrogi posts about an ambitious project by Boston College law student Anusia Hirsch, who has decided to blog about her experience at the law school Legal Assistance Bureau.  While there’s nothing new about another law student who feels that her transitory feelings are worthy of telling the world, or that her insights are inherently meaningful, Hirsch’s approach is different.

A second-year student at Boston College Law School is intentionally doing something that most legal bloggers know better not to do: blog about a client. A key difference here is that the student, Anusia Hirsch, is doing this with the full consent and cooperation of the client, who reads and approves each post before it is published, as well as of her supervising attorneys.

Hirsch started the blog,  bclabstudent, in August to chronicle her experiences working at the BC Law Legal Assistance Bureau in Waltham, Mass. She wanted the blog to serve as a guide to other law students considering working at LAB. She soon realized that the most important aspect of LAB was her work with clients, so she wanted to blog about that.

Hirsch decided that her blog would tell the story of the clients she encountered at the LAB.  How this serves as a guide to anyone isn’t exactly clear, but clearly using this blog to reveal client confidences is a world apart from the usual blog chronicling a law student’s feelings as she grows into the profession.

Her supervisors at the LAB obviously realized that this wasn’t within the scope of what lawyers do, but rather than kill the idea, sought to find a way for Hirsch to reveal confidences without violating ethical proscriptions.  This is what they came up with:

They agreed on this plan by which the client consented to the posts and approves them in advance. Names and identifying information are changed to protect identities.

A spokesperson for BC Law says this is the first law student blog that includes sanitized yet open discussions of client experiences in a sanctioned format such as this.

Essentially, this shifted the responsibility from lawyers/law student to client to determine whether privilege should be waived.  Technically, it should suffice, as the privilege belongs to the client, and the client is entitled to waive privilege.  Technically.  Yet, these scheme is troubling on two levels.

First, to what end?  This blog clearly doesn’t serve the interests of the client, who has come to the Boston College LAB for help, and ended up a public guinea pig so that a law student has something to write about.  Does this smack of using the poor and needy, the ones for whom clinics are intended, as test cases or, at best, educational tools as a price of representation?  It’s unclear whether the clients will feel pushed into agreeing to give up privilege, and it may well be that they are told in no uncertain terms that they can refuse to play along and there will no consequences whatsoever.

The most that can come of this is that it provides fodder for Hirsch, a second year law student, to express her feelings about these clients.  So what?  Hirsch is learning herself, and neither her thoughts nor feelings offer much insight.  She has no insight to give.  She’s a second year law student.  If anything, the only insight gained is how much a student has yet to learn.  Is this worth the sacrifice of a client’s confidentiality?

Worse still, this reflects an effort to find something new and different, provided one doesn’t mind the fact that the pedagogical lesson is that one of the most important aspects of practicing law, the protection of client confidences and putting the interests of a client ahead of one’s own, can be tossed to the wind in order to come up with a new concept in blogging.

“This is a big deal,” Hirsch says in her video. “We are testing new waters.”

It is a big deal, but she is not “testing new waters,”  She is ignoring a foundational duty of a lawyer so a second year law student has something cool to write about on the internet.

As for the clients, they are unlikely to appreciate what it means to give away their privilege.  Even though their names may not be fully revealed (Hirsch does use the first name, but not the last), it’s more than enough to reveal to their identity to anyone involved in a case.  Moreover, once a client has waived privilege, they waive it for all purposes.  They can’t change their mind later, when something embarrassing, significant or critical happens, and reclaim it.

Do clients appreciate what they’re giving up?  Rarely, and it’s part of the advice that an attorney would provide so they can appreciate the importance of their decision.  Are they getting this advice from a second year law student?  Are they getting this advice from a disinterested counselor? Are they getting this advice at all?

Even if this is handled with the utmost discretion and circumspection at BCLAB, will the next law student who decides to reveal all be similarly cautious, or will this become the new, cool trend for law students to reveal client confidences?

I can appreciate, better than most, how difficult it can be to write about something that is new and interesting on the internet, and why Anusia Hirsch is reaching for something different.  But I can also appreciate that the trade-off of client confidences for Hirsch’s insights is a rotten deal.  And I can similarly appreciate how this can spiral out of control and do serious harm to the very people these clinics exist to serve.

There is a pedagogical lesson to be learned here, that law students should be taught to appreciate the importance of protecting client confidences.  The first lesson is that there is nothing that pops into their heads that’s worth giving away a privileged communication. 

This blog is a bad idea, and it should not be allowed by Boston College Law School regardless of whether they’ve found a way to circumvent ethical rules.  It’s just a really bad idea.

Via Radley Balko, making his facepalm of the day, the story from  WKMG in Orlando where police claimed that they were forced to shoot Rogelio Cortes who was attempting to ram the police with his white van.

After seeing this video, prosecutors dropped attempted murder charges against Cortez, when the video clearly showed Sgt. Rhonda Huckelbery, the driver of the blue pickup behind the van, pushing the van forward into the other officers.  It’s worth going to the WKMG website for their video, which includes statements by Huckelbery.

Of course, dropping the attempted murder charges doesn’t exactly make up for the cops shooting Cortez in the abdomen and arm, and curiously doesn’t explain why he remains charged with “attempting to flee or elude police,” given that the only forward momentum demonstrated was at Huckelbery’s insistence.

But then, Huckelbery wasn’t exactly neutral on the subject of Cortez’s capture and shooting:

OPD Sgt. Rhonda Huckelbery . . suspected that men in the van stole her husband’s credit cards the day before and used them to buy nearly $1,000 in electronics.

And if that doesn’t deserve a few good bullets in the gut, then what does?

Once again, without the kismet of having a video available of what transpired, there is no way in the world that Cortez could have challenged the OPD story about his attempting to flee and ram the cops, who, fearing for their lives, had no choice but to put a few bullets into him.  There isn’t a judge alive who wouldn’t have believed the cops.  But for video.

A rather bizarre clash of religious belief against the secular demand for testimony is playing out in Los Angeles, as Rabbi Moshe Zigelman refuses to testify against others Jews.  From the LA Times;

[F]ederal prosecutors are threatening him with a return to jail unless the 64-year-old devout Hasid agrees to testify before a grand jury regarding the federal government’s ongoing probe of tax evasion in his Orthodox Jewish sect. On Wednesday, they will ask a judge to order him to testify or be found in contempt.

His attorney says Zigelman, a teacher of scripture and son of Holocaust survivors, will again refuse, citing his religious principles.

This would come off as far more sympathetic but for the fact that the rabbi did his own bit for tax-evasion in the case, and the government demands his testimony against others in the scheme.  The argument against Zigelman is framed as the rabbi being wrong (as opposed to insincere) about his beliefs:

Prosecutors have said the rabbi’s position is unsupported by Talmudic law, according to court papers filed by Zigelman’s attorneys. Defense attorneys contend that he is again being asked to make the obvious choice between heaven and earthly jail cells, and that no prison time will be able to get Zigelman to go against his religion and face ever-lasting punishment.

This is a particularly curious approach, given that three Talmudic scholars will give four opinions as to what something means.  On the one hand, the free exercise clause suggests that the government’s efforts are designed to prevent a person from exercising a legitimate religious belief upon pain of imprisonment.  On the other hand, we are a secular nation (at least some of the time) and the functioning of our system can’t be held captive to individual’s self-imposed religious limitations.  That a federal judge is being asked to rule on the validity of a rabbi’s Talmudic beliefs is, well, unseemly at best.

Rabbi Zigelman’s lawyer attempts to remove the argument from one of Talmudic interpretation and lay it out at the bottom line:

“No earthly sanction will ever make Rabbi Zigelman abandon his religious precepts,” Michael Proctor, an attorney for Zigelman wrote in court papers. “Imprisoning Rabbi Zigelman would be an empty, unjust act that accomplishes nothing.”

That, of course, is the nature of religious belief, that it is not subject to the approval or acceptance of secular authority.  Then again, the piety of the rabbi’s beliefs isn’t helped by his role in the scheme.

Zigelman was arrested in 2007 for his part in a decade-long enterprise through which wealthy donors made tens of millions of dollars in contributions to Spinka, a Brooklyn-based Hasidic sect, only to have most of the money refunded through an underground money-transfer network. The donors received large tax breaks on the bogus amounts; Spinka and related charities profited through the small portion of the sums they kept.

So what part of his religious beliefs says it’s cool to engage in criminal conduct?  Then again, having sinned once (and served his 24 month sentence for it), is the rabbi obliged to sin again?

The gist of this conflict is whether the rabbi’s refusal to testify based on his religious beliefs should give rise to his being incarcerated for contempt, meaning that the contempt power will be used to coerce a person to relinquish sincerely held and legitimate religious beliefs.  The government contends that while the beliefs might be sincere, they are not legitimate because other Talmudic scholars disagree with Rabbi Zigelman’s interpretation.

It seems to me that the government’s position is a non-starter, both from a religious perspective given that Talmudic scholars have argued and disagreed about the meaning of the Talmud for thousands of years, and no rabbi or scholar to takes the government’s position trumps the interpretations of other rabbis and scholars.  Similarly, no federal judge has any business ruling that one side’s interpretation of the Talmud is correct as a matter of law.  That’s just not how secular law rolls.

However, it’s less clear that Zigelman gets a walk because of his religious belief that he cannot testify against other Jews. 

The rabbi’s attorneys wrote in their papers that what matters is not whether Zigelman was correctly interpreting Jewish law, but the fact that his belief is sincere and that the rabbi, who is in failing health, will under no circumstance change his mind. Given his clear principle, finding him in contempt and sending him to jail will be “vindictive rather than coercive,” they wrote.

Assuming that the rabbi will not be coerced into changing his religious beliefs, then incarceration as the product of living in a secular nation, a nation of laws that apply to all subject to reasonable accommodation, as the consequence for his choosing to take a principled stance rather than acquiesce to secular authority, may be necessary.  For example, if there was some Talmudic interpretation that would compel a religious leader to commit a crime, say, that any non-believer who entered a religious sanctum must be executed, would sincere religious beliefs preclude his being punished for murder?

Yet this isn’t about committing murder, but about compelled testimony against another person, which is itself subject to limitation. Certainly a priest cannot be compelled to violate the priest-penitent privilege. Why is that more sacred from a secular perspective? To imprison Zigelman for his refusal to be a snitch against his co-religionists isn’t much of a stretch.

If only Rabbi Zigelman hadn’t been part of the crime.  At Volokh Conspiracy, Eugene doesn’t give Zigelman much of a chance of prevailing.  I suspect he’s right, though I can’t quite find a principled basis to justify that outcome.

H/T Billy

There’s a nagging question about what Thedala Magee did before she got a job with the TSA, where the power of the government to touch Americans at will emboldened her.  Did she hold some inconsequential, nasty, unimportant job, living a life of quiet desperation waiting for the chance to assert herself and let others know that she was a force to be recognized?

Without knowing more about Magee, one can only speculate, but her demand of the Advice Goddess, Amy Alkon, for the  payment of $500,000 for the emotional hurt caused by being named as the person who put her hand in Amy’s vagina four times at LAX suggests that whatever puny life she led before remains her burden.  Why else would she be so deeply hurt by the revelation?

Amy  first told the story of her treatment while the fury of “raped” by Magee was fresh in her mind.  There was no thought of concealing the name of the person whose hand penetrated her vagina.  Of course, not even the most fragile government sycophant would have imagined that a lawyer, whose aspiration is to be a  Hollywood ingenue despite her wrinkles, would seize the cause of Magee for lack of real work to do and send Alkon the nastygram.

The story is told here.  And here.  And here.  And here.  And here. And here. And here.  No doubt it will be told many more times today as well.

If Thedala Magee was stung by Amy Alkon’s using her name in describing what happened to her, she will be devastated by the attention she will receive now.  By compounding her touching with the shocking, if laughable, attempt to grab money, Magee will forever be known as the TSA agent who tried to rape twice, once by touching Amy Alkon’s vagina four times at LAX, and again by her lawyer’s demand for a half million dollars for her hurt feelings.

Will the government come to Thedala Magee’s aid, to compensate for her lawyer’s horribly bad judgment in turning her client into an object of perpetual ridicule on the internet?  The TSA’s routine response to allegations of improper sexual touching is that the agents are just doing their job, following procedure.  Which raises the question, is it the TSA’s procedure to have agents insert a hand in a woman’s vagina during a routine enhanced pat down?

I can’t imagine anyone at the TSA will take the position that its agents should insert their hands, or fingers, or penises, or tongues, into the vaginas, anuses, breasts or mouths of airline travelers.  I can imagine that there will be vague excuses to explain that these things don’t actually happen, and that their agents merely come near those parts of bodies over which Registries are made. The concern that TSA agents not be in fear of touching too closely, or sickly, presents a problem for both the TSA and those touched.

But when a person, regardless of whether they wear a uniform or think the government will cover their naughty conduct, violates the body of a person, there are no vague words that make it acceptable.  Not even a TSA agent is entitled to be a sexual predator under cover of the government.  This might all have been forgotten had Vicki Roberts, the Hollywood ingenue, not had too much time and too little prescience on her hands.  Her ill-advised demand has opened the door to a vast array of scrutiny.

What makes Thedala Magee special is that she has reminded the rest of us that the government is still empowering twisted nobodies to take liberties with the bodies of others in an exertion of their petty power.  Magee’s demand has given us reason to challenge the government’s ongoing violation of the body politic, and the bodies of human beings.  And no government agent has the authority to insert her hand into a woman’s vagina.

Marc John Randazza  has responded to Magee’s lawyer’s demand, with a letter that is meant to speak to all of us.  What happened to Amy Alkon happens to every person who believes their government should not put power in the hands of the puny, who then put their hands into our bodies, well beyond any authority the government can or does exert.

And that we have this opportunity to tell Thedala Magee, and every TSA agent who thinks their uniform makes them omnipotent or allows them to engage in the sexual assault or rape of an American, is very special indeed.  Thedala Magee is special, but not for the reasons she or Vicki Roberts thought she would be.

As New York City Councilman Jumaane Williams and Kirsten Foy, aide to public advocate Bill de Blasio, tried to make their way to the Brooklyn Museum for a political luncheon following the West Indian Day Parade, they came face to face with an immutable truth: they may be important political figures in the city, but they’re still black.

From the New York Times :

But as the two men continued walking down the sidewalk, they found themselves surrounded by uniformed police officers stationed farther along.

“Jumaane was wearing a council member’s pin, they were trying to explain who they were, but the officers weren’t listening,” Mr. de Blasio said in an interview.

Mr. de Blasio said that Mr. Williams began to argue with the officers and that at some point he and Mr. Foy were both thrown to the ground and handcuffed. They were taken to the Union Temple, a synagogue on Eastern Parkway, where Mr. de Blasio said he went after getting the call. There, Mr. de Blasio said, he spoke to a police commander, who released Mr. Williams and Mr. Foy after about 30 minutes without filing charges.

It’s always good to have the public advocate, who happens not to be black, around to straighten out these sort of things, especially when it serves to remind him that life in the Big Apple can be difficult at times:

“It’s broad daylight, they get thrown to the ground, they both get arrested,” Mr. de Blasio said. “If that’s what happens to an elected official and a senior appointee, imagine what happens to a general member of the public.”

No need to imagine, Bill.  Read the papers. Check out the  stop  and  frisk stats. How does one hold an elected position in the City of New York and find what happened to Williams and Foy an epiphany?  Still, better to learn because it happened to someone near and dear than to never learn at all.

What’s fascinating isn’t about the treatment handed Williams and Foy at the hands of a street cop, since that happens every hour or every day.  No, what’s fascinating is how the post-release spin comes out, seeking to lay blame while not offending the powerful.



It’s so very hard to stand out as a representative of the downtrodden, those who are routinely treated like garbage on the streets while not angering the boss-man.  To watch Williams tap dance around Ray Kelly and his responsibility as the Chief of Police is a thing of beauty, worthy of any good politician regardless of party or color.

Had this not involved Jumaane Williams and Kirsten Foy, there isn’t a chance in the world that anybody would have heard of this incident, outside a small circle of friends and a criminal court judge, where they would have been arraigned on disorderly conduct charges and likely an assault on some cop’s fist with their face.  It presents an opportunity to make a point about the presumption of Being Black.

And yet they’ve managed to sufficiently water down their outrage so no important person, no person they might actually have to deal with in the future, gets any dirt on their hands.  There’s a “disconnect” between the wonderful Ray Kelly and the terrible line officers who allow this culture of racial abuse to exist?  Is Kelly unaware of his department’s stop and frisk of any black or Hispanic without cause? 

A spokesman for Mayor Michael R. Bloomberg, Stu Loeser, said that the mayor spoke with Mr. Williams after the episode and that a deputy mayor spoke with Mr. de Blasio. “As the Police Department has indicated, they are investigating this incident and will take all appropriate steps once it is concluded,” Mr. Loeser said.

The police department is investigating, which means that this will never be spoken of again.  Williams and Foy will go back to work on the City’s dime and sit in clean offices, where they will be treated with the dignity they believe they deserve, and bask in the warmth of being safe from the reality of life on the streets of New York City as black men.  After all, they are important government officials, and are entitled to the protections afforded by their positions.

Maybe the cops picked on the right black men after all.

The title of the law review article, via Doug Berman’s Sentencing Law & Policy, was just too weird to ignore:

Do Exclusionary Rules Convict the Innocent?

Rules excluding various kinds of evidence from criminal trials play a prominent role in criminal procedure, and have generated considerable controversy. In this paper, we address the general topic of excluding factually relevant evidence, that is, the kind of evidence that would rationally influence the jury’s verdict if it were admitted. We do not offer a comprehensive analysis of these exclusionary rules, but add to the existing literature by identifying a new domain for economic analysis, focusing on how juries respond to the existence of such a rule. We show that the impact of exclusionary rules on the likelihood of conviction is complex and depends on the degree of rationality exhibited by juries and on the motivations of the prosecutor.

I have long thought that significant concern about wrongful convictions and significant support for the exclusionary rule were in some conceptual tension, and this paper appears to play out some of these kind of ideas.  Though I certainly believe it can be a principled supporter of the exclusionary rule while expressing vocal concerns about wrongful convictions, I think supporters of the exclusionary rule should acknowledge that they sometimes favor putting procedural concerns ahead of trial accuracy.

Dang, now I had to actually read the article and get a sense of why there might be some validity to this position.  To save you from the burden, here’s my quick and dirty: Jurors know that crucial evidence gets excluded at trial because of “technicalities,” so they assume that there is damning evidence that the judge won’t let them see and convict based on the imaginary evidence when the evidence that is admitted isn’t strong enough.

And you know, it’s not as weird as it first appears.

While there’s no basis to believe that this happens in every case, nor even in the majority of cases, every trial lawyer who has talked to jurors after the verdict knows that they come up with wild ideas in the jury room that no one would ever anticipate.  That such ideas would include the assumption that every trial involves excluded evidence seems pretty natural.

It’s wrong, of course, for jurors to assume that in every case there is hard evidence proving the defendant guilty that the court has withheld from them because of that nasty technicality we call the Constitution.  First, it’s remarkably rare that any evidence is subject to the exclusionary rule, suppression of physical evidence, statements or identification occurring so rarely given the wealth of exceptions to the various constitutional protections. 

But second, to conceive of exclusion as some trick, some technicality designed to keep damning evidence form the eyes of the factfinder, reflects a serious misapprehension of the situation.  Indeed, even Berman’s commentary seems to make this blunder:

I think supporters of the exclusionary rule should acknowledge that they sometimes favor putting procedural concerns ahead of trial accuracy.

Procedural concerns?  Hardly.  Sure, the exclusion of evidence sometimes implicates trial accuracy, particularly when we’re talking about physical evidence.  But what about a suggestive identification?  To allow its introduction at trial doesn’t further trial accuracy.  Just the opposite.  Or coerced statements?  Again, no trial accuracy to be had there.

It strikes me that there is a rhetorical argument to be made that every aspect of the law offers an opportunity, often from some cynical perspective, for damage to a party.  Sure, the judge will instruct the jury not to speculate about evidence that doesn’t come before them, and the instruction will be heard and either ignored or misapprehended like so many other instructions given.  It might carry some greater weight if judges didn’t simultaneously allow evidence under the guise of background, or completing the narrative, that is otherwise irrelevant, immaterial, or unreliable.  But that would make prosecutions more difficult, and nobody would want to prevent the prosecution from getting as much of its story in there as possible, even if it’s nothing more than a story.

In the scheme of things, however, this is not a trade-off of trial accuracy against procedure, but a means of vindicating the Constitution and addressing its violations.  Since it happens to rarely, the fact that jurors might assume that there is secret bad evidence withhold from them in every case is bizarre, and might well merit a special instruction that there is no terrible evidence that would prove guilt but has been concealed from them.  It might not be true on the rare occasion that suppression was granted, but since the jurors are likely to ignore the instruction anyway, no harm would follow.

Yet accommodating juror speculation by eliminating exclusion, and thereby eliminating the wild notion that this secret unknown damning evidence exists and is being withheld, is like using an elephant gun to shoot a mouse.  While a conceptual possibility, and perhaps even a real cause of a jury convicting an innocent person based on imaginary evidence, the need to address constitutional violations is far more real and prevalent.  This is hardly just some slavishness toward procedure, but the only means available to protect us from the government violating our constitutional rights.

To the extent the problem exists, perhaps a solution is needed.  Eliminating exclusion, however, is hardly the answer.

There are few populations more vulnerable to abuse than prisoners and their families, and there’s no place like Arizona for enjoying the opportunity to take advantage.  From the New York Times :

For the Arizona Department of Corrections, crime has finally started to pay.

New legislation allows the department to impose a $25 fee on adults who wish to visit inmates at any of the 15 prison complexes that house state prisoners. The one-time “background check fee” for visitors, believed to be the first of its kind in the nation, has angered prisoner advocacy groups and family members of inmates, who in many cases already shoulder the expense of traveling long distances to the remote areas where many prisons are located.

While they call it a “background check fee, they make no bones about the real purpose, a quick and easy money-raiser.

Wendy Baldo, chief of staff for the Arizona Senate, confirmed that the fees were intended to help make up the $1.6 billion deficit the state faced at the beginning of the year.

“We were trying to cut the budget and think of ways that could help get some services for the Department of Corrections,” Ms. Baldo said. She added that the department “needed about $150 million in building renewal and maintenance and prior to this year, it just wasn’t getting done and it wasn’t a safe environment for the people who were in prison and certainly for the people who worked there.”

“Maintenance funds for our buildings are scarce in this difficult economic time,” he said. “A $25 visitation fee helps to ensure our prisons remain safe environments for staff, inmates and visitors.”

The massive prison population has long been a fabulous revenue opportunity, from the  telephone scam to charging for room and board, as if prisons were the Hotel California.  While there are advocacy groups to help prisoners, not to mention the occasional interested lawyers and a judge or two, the rationale for picking on inmates is straightforward: They’re prisoners, screw ’em.

Decades ago, it became clear to prison officials and theorists that there were things to be done on behalf of prisoners that had salutary effects, such as providing them with some entertainment to keep them occupied, some exercise to release pent up tension and education so that they might have half a chance of going straight when they came out.  Each of these ideas caused a public backlash, as if prisoners had the sweetest deal in the world.

Before color television was commonplace, prisoners were able to watch them in the day room and people went bonkers.  Why should prisoners get to watch color TV when law-abiding folk couldn’t?  The problem was exacerbated when prisons offered college courses while tuition increases for the general public made college a stretch for many working people.  The joke was that people would do better to send their kids to prison than college to get their education.

The reasons in favor of providing prisoners with the accoutrements that would both facilitate their stay and help them to re-integrate into society were sound.  So were the beefs against them, as people struggled in their ordinary lives while prisoners were provided access to things they couldn’t afford.  Combined with the backlash toward the Welfare Queens of the 1970s, rational and humane treatment of prisoners became a dirty idea.

Arizona’s new brainstorm, charging visitors for the pleasure of seeing their loved one in prison, is not merely the latest version of how to suck blood from prisoners, but one that flies in the face of one of the more fundamental elements of a successful rehabilitation, the support of family.  Hard as it may be to believe, the family of some prisoners may not have much by way of disposable income, and having to pay sucks up money that might otherwise be used to feed the children.

Missing from this analysis is that prisoners aren’t exactly there by choice, though some would argue that having done the crime, they indeed made a decision to become guests of the state, willingly or not.  Of course, that ignores the innocent who are wrongfully convicted, the innocent who plead guilty for fear of conviction and the guilty who should never have been sentenced to prison.  But hey, these prisoners blend, so we need not concern ourselves with people we can’t easily pick out from the crowd.

But the people who are actually paying the price aren’t convicted of any crime.  These are the families who are trying to support their loved one, and upon whom society relies in trying to bring the former prisoner back into the fold.  The prisoners will get their three square meals regardless, but what of their children?

There never seems to be an end to the great ideas of using the captive population as a source of revenue, despite the backside harm caused.  And these ideas bake to perfection in the Arizona sun.  Yet they remain as misguided and counterproductive now as they were when TV used rabbit ears.  It’s enough that prisoners are incarcerated.  Leave their families, their children out of it.

For quite a while, the issues of unaffordability of legal representation, deregulation of lawyers, form farms for the unwary and the structural failure of the law to provide adequate services to those who need it while leaving vast numbers of new lawyers un- and under employed, have been on the table. 

I said I had an answer, and Labor Day seems an appropriate time to cut loose.

I propose the creation of a new professional position, the Legal Practitioner.  It’s modeled after the concept of the Nurse Practitioner/Physicians Assistant.  It would require specified and regulated education, though significantly less than would be required for a lawyer and at a substantially reduced cost.  It would require testing and licensure to make reasonably certain that it’s practitioners possessed minimum competencies and that the public was safeguarded from incompetents or, in the alternative, had redress.

The function of these Legal Practitioners would be to provide representation to member of the public in non-litigation aspects of the law, such as wills, contracts, uncontested divorces, real estate closings.  The most critical function would be to distinguish between those legal functions they are fully capable of performing and those that require an attorney.

The most important aspect of this new position is that it would entitle the practitioner to function independent of lawyers.  While they could operate within the law firm structure, they would be trained and authorized to practice as a stand alone professional, to hang out a shingle of their own.

I foresee this position as being appropriate as an intensive undergraduate major, or as a master’s level degree. It would necessarily include the basics of legal thinking, responsibility, research, and then include certification in specified areas of practice.  In other words, a Legal Practitioner would be certified to do some or all of the legal functions now done in specific niches of the law.  The practitioner would be certified to do trusts and estates, or contracts, or uncontested divorces.  Or, the practitioner can acquire certification in all niches, should that be their desire, by satisfying the coursework and achieving sufficient tested competence.

The point of all this is to provide society with a low cost, yet trained, responsible and qualified, alternative to lawyers.  By substantially lowering the barrier to entry, and limiting the scope of practice to office functions, we can find a qualified middle ground to the cheap but dangerous alternatives that are cropping up in the hope of taking advantage of the cost gap between what people can afford and what lawyers charge.

As has been suggested many times, the full range of a legal education isn’t necessary to perform many of the basic functions of the law.  Yet that doesn’t mean that anybody can practice law either.  Not only must the Legal Practitioner possess the knowledge to perform the functions permitted, but the wisdom to distinguish those functions that aren’t ordinary, but require a lawyer.  Sure, it will be challenging to make the line clear, but that is why it’s necessary to make sure that this new position is truly professional, and not merely ministerial.

Why not just let the existing paralegals open up shop?  While many have learned, through education, experience and practice, much of what will be taught to the Legal Practitioner, the position of paralegal was never intended to create an independent professional. Some may well be capable, but some will not. None were trained to perform this function, and the position was always meant to serve under the supervision of a lawyer. 

Moreover, the position of paralegal carries baggage, the impression that it’s a specialized secretary, that will impair the creation of a new professional position that holds public respect.  Critical to the success of this position is the public perception that they are truly competent professionals, and not some second-rate, cheapola version of lawyers for people who can’t afford the real thing.  Acceptance of Legal Practitioners as a respected professional performing necessary and important legal functions that can be accomplished with every assurance that it fully serves the public’s needs at a cost that is affordable and proportionate is of critical importance.  Anything less will fail to satisfy the public’s rightful expectation of receiving the excellence in legal services they are due.

Clearly, there is much still to be fleshed out in making this idea viable, but I believe it to be far superior to the alternatives provided by the companies who want to push one-size-fits-all forms into the public’s hands, or the cries for deregulation of the law so that the assistant manager at Dairy Queen can open up a law office tomorrow. 

While there are plenty of problems with the barriers to entry to practice law as an attorney, and I remain of the view that we should establish the dichotomy of solicitor and barrister, and end the fallacy of all lawyers being generalists in a specialist profession, this option seems to be the one that will do the most to both protect the public interest while providing the public with the legal services they require at a cost they can better afford.

One year is all I have left.  Starting tomorrow, I begin to count.

Carolyn Elefant wrote that despite the many things she did wrong as a mother, the one thing she did right was never count.

But one thing that I did right — and never realized til now — is that I never counted. I never counted the number of diapers I changed in a day or how many books we read together at bedtime or how many videos I let my daughters watch during long car trips or long conference calls. I never counted how many nights I stumbled groggily into their room to nurse them at night, or how many minutes I spent rocking them before they fell asleep or how many more years until I was no longer hostage to a 4 pm bus stop pick up. I never counted the time towards when I’d have more because I knew that eventually, instead of counting up, I’d be counting down.  Counting down towards the day where my daughters no longer want to share with me everything that they did in school, or where their friends’ opinion matters more than mine or where their problems exceed my capacity to help solve them. Or where they leave home first for college and then for good.

Like Carolyn, I never counted the things I did for my kids. I groused about them on occasion, to remind them of how unappreciative they were when second after getting them the thing they said they most desired, their wanted to know what I did for them lately.  But the truth is I never counted either.

When I said “no” to something, which was more than most of their friends’ parents, I didn’t count either.  And it hurt to say “no,” though I believed it was necessary and stood firm, most of the time, so that the message would get through.  Inside, I wanted to give them anything and everything, but I knew that would teach them nothing.  I never counted how many lessons I taught when I only wanted to make them happy.

But today, the counting begins.  It will be one year until the day my youngest child, my son, walks toward his future and doesn’t look back.  This is the day I’ve been working toward for years, preparing him as best I could to be strong and independent.  As much as I will want desperately to run up to him and grab his hand, to walk with him just so I can be there if he needs me, I won’t.  It’s the worst thing I could do.

One year from today, I will learn whether my efforts work.  I put him on the horse knowing that he would eventually fall off.  I did it so he would learn to get back on the horse.  I did it while I was still around, to tell him to get back on, to make him understand that as much as it hurt, as much as he was embarrassed and might want to run away, as much as he was afraid, he had to get back on the horse.  He made me proud. He always got back on, even when he didn’t want to.

But I was always there, even if only in the background, just in case things got too bad, too difficult, so that I could help and he would never have to suffer too much for life’s lessons.  As regular readers know, my son is an epee fencer, one of the best things that he ever chose to do.  He learned many critical life lessons from fencing, not the least of which is that sometimes you lose, and that there is a direct correlation between hard work and success.

While he’s done exceptionally well as a fencer, he did not win every bout.  Some losses were taken with equanimity.  Others came hard, so hard that it seemed as if he just couldn’t take it.  And then my big, tough fencer would hide his face in my shoulder, only because he couldn’t crawl inside my body to get away from the loss.

But fencing has some special rules, remnants of the days when it was a gentlemen’s sport.  After each bout, the fencers salute each other and shake hands. The failure to do so, even though the bout has already been won or lost, results in a penalty that changes everything.  So no fencer can hide from his victory or defeat, and no parent can protect them from the harsh outcome of the bout.  They have to face it directly.  There is no avoiding the eyes and hands of the victor, no matter how hard the loss.

One year. 

It would have been so easy to give him all the shiny toys he’s asked for along the way, the things he thought would make him happy and, consequently, make him happy with me.  He got more than his share, though less than many other children. Yet he took more pride in accomplishments than in possession.  He was proud of the things he did rather than the things he had.  But these things were his, and didn’t make him need or appreciate me more.

To make him depend on me for his pleasure was purely self-indulgent. As much as I might have wanted him to appreciate me, to look into my eyes with appreciation and adoration, that would come at the sacrifice of his own ability to achieve on his own. I couldn’t do that to him for my own benefit. I wouldn’t do that.

I could have told him how wonderful I thought he was, even when he really wasn’t.  When the other parents told their children they were special, I tried to tell him the truth.  There were things about him that made me swell with pride. And there were times when he could have done better. And there were times when he did wrong. He heard the praise, and the criticism, and came to know that praise meant something because it was earned, just as criticism meant something because he didn’t earn praise.

And all of this was directed toward one goal, to produce a young man capable and desirous of achievement without my help or intervention.  I changed his diaper when it was time to do so, but in one year, it will be time to watch him walk away.  If he does so without looking back, I will have accomplished my goal so that he can accomplish his. 

And now I count.  I can’t tell you how hard it is to count.