When Legislators Flout the Law

First a question.  Do you think that part of the oath that a legislator (federal or state) takes upon being sworn into office includes “upholding the law?”  The answer, shockingly, is no.  Congressmen, for example, swear to uphold the constitution, but there’s nothing about upholding the law.  Neither is upholding the law part of their defined responsibilities.

I guess the reason is that all citizens are supposed to obey and uphold the law, even if they disagree with it.  So legislators have no heightened responsibility to uphold the law.

Let’s go further with this.  Should legislators be expected to uphold the spirit of the law ... that is, not act in such a way that clearly flouts the intent of the law?  The average citizen certainly does not have this responsibility.  If there’s a way around the law, it’s a citizen’s time-honored right to take it.

I would argue, however, that it is a legislator’s heightened responsibility not just to uphold the law ... the letter of it ... but to uphold the spirit of the law.  Let me discuss two recent examples of what happens when they don’t.

In 2007, after a scandal involving junkets payed for by lobbyists, Congress passed a law prohibiting lobbyists from giving Congressmen gifts of just about any value.  The offending junkets were taken by Congressmen, typically to resort locations, where they would play and talk with the sponsoring lobbyists, obviously with the intent of influencing the Congressmen with regard to legislation or regulation that affected the interests of the lobbyists.

So what did lobbyists and their Congressional friends do?  They came up with a way to achieve the same end but not violate the letter of the law.  Junkets are now funded by PACs controlled by the Congressmen which are in turn funded by money collected from lobbyists or the corporations they represent.  Since the lobbyists are not paying for the junkets directly, there is no violation of the law!

A recent article in The New York Times documents how Congressmen, mostly but not all Republican, flout the intent of this law.   Should Congressmen be able to legally do this?  Should they at least be subject to an ethics violation?  When there is knowing violation of the intent of the law, I think the answer to both should be, yes, but certainly at least to the latter.

The other instance involves the response of various states to a series of recent decisions of the U.S. Supreme Court that limit the use of life sentences without parole for juveniles.  The underlying reason for these decisions is that children, even those who commit murder, are often less culpable than adults and deserve a chance at redemption.  

But states including Florida, Louisiana, Illinois, and Pennsylvania have gotten around the spirit and intent of these decisions either by piling on sentences that amount to life without parole or refusing to apply the ruling retroactively to juveniles who are currently serving life without parole.  Even when some states have responded with rehearings on sentencing, the new sentences imposed have been harsh (in the Florida example cited, 50 years or more) and against the spirit of the decisions. 

It is a sad statement regarding the rule of law in our democracy that those elected to pass and, one would assume, uphold the laws flout their intent so brazenly.  

Ironically, the proponents of harsh treatment of juvenile criminals are typically conservative Republicans.  They are adamant that criminals must pay the price and that they should not be coddled, regardless their age.  And yet when it comes to their own activities, they have no problem in flouting the intent of the law while obeying the letter of the law.

It may be the American way, but it is a bad way.

Prisons As Monastery Not Dungeon

In my previous post, “Rethinking Criminal Justice in a Civilized Society,” I argued that if a crime does not warrant the death penalty, then rehabilitation should be the predominant motivator in sentencing and its execution, not retribution, not punishment.

Prisons today are merely modern-day dungeons with a prettier face.  No longer do inmates have to fight off rats in dank, dark cells.  They receive decent meals, are provided beds (assuming the prison is not overcrowded), are allowed visitors, get some minimum of exercise and daylight, etc.  Some education is often available.

But the dominant policy is still punishment.  Prisons are a spiritual dead zone.  Except for insuring order, inmates are left pretty much to their own devices; they are provided no direction in changing their lives.  And so despite the fact that they are confined and watched, criminal conduct and gangs flourish in prisons.  They are a breeding ground for a more committed, smarter, criminal.  As a result, more than two-thirds of released inmates commit new crimes, often more serious and violent, within three years of leaving prison.

Is this really what our society expects from our criminal justice system?   There are two reasons why people support the punishment model.  First, it feels right ... the old “eye for eye” perspective.  But I think most people support it to improve safety.  They understand that most prisoners return to their communities within a few years, and people believe that punishment reduces the likelihood that they will commit more crimes after being released from prison.  Also, the theory is that it will deter others from committing crimes to begin with.  But our experience shows that our current prison philosophy secures neither end.

Our society’s answer to this problem has been to increase the severity of prison sentences, even for the most minor of crimes.  But that hasn’t worked either.  All it has done is create even more hardened criminals at an incredible cost to society (both regarding the cost of housing inmates as well as the cost of a continuing career of crime).

No , the answer lies elsewhere ... in the concept of rehabilitation.  Unfortunately, the concept of rehabilitation has been pretty much discredited because it’s just been given lip service, it has never really been given an opportunity to work.  Rehabilitation has to be the guiding principle; it can’t be a side effort in the midst of a brutalizing environment.  And then you have the rants of the right wing who argue against “coddling” criminals.  

In a series of pieces arguing for more emphasis on rehabilitation in The New York Times, the case was made for providing all the therapy needed and all the education desired, preferably within a “locked, safe and secure home-like residential community.”  

While I agree on the need for and the benefit of more therapy of all types and education, I believe that for most inmates, certainly for the more hardened ones, given the nature of their environmental backgrounds, a far more structured environment is necessary in order to ingrain in them new patterns of thought and behavior.  And so I would advocate a setting more patterned after the monastic experience, replete with both a regimented daily schedule and spiritual lessons and meditation.  A repurposing of our existing prison structures.

Why?  For much the same reason that boot camp is necessary to turn recruits into soldiers.  Most inmates, like most individuals, have grown up in very undisciplined circumstances. Although life does not require the discipline of the military or a monastery, discipline in the face of all the temptations and assaults of our society would be very helpful in enabling released inmates to resist falling back into familiar behaviors.

And because most inmates, like most individuals, have grown up in an atmosphere that has created a feeling of insecurity and a negative sense of self, a non-denominational spiritual program including meditation would be very helpful.  Inmates need to develop a new way of relating to themselves and to those around them, both family and the larger society.  

Above all they need to develop faith in themselves, and that can only come from a more robust spiritual life, together with education and various forms of therapy.  As a Buddhist, I would advocate a program based on Buddhist teaching as it is non-denominational and has been shown in numerous prison settings to be very effective in helping inmates (granted that in those cases the inmates self-selected the program).

The question needs to be put to the public:  “Is your primary concern regarding the functioning of the criminal justice system one of increasing personal safety?”   If the answer is overwhelmingly yes, then the future direction of prison/sentencing policy should be clear.  Rehabilitation needs to be the dominant goal of prison policy.

We’ve built all these prisons; we confine all these people; let’s make better use of that opportunity for the benefit of the public as well as the inmates.

Rethinking Criminal Justice in a Civilized Society

When someone is convicted of a crime in our society, the operative focus in sentencing is typically punishment/retribution and that focus is carried out within the prison setting.  The one slight exception to this regards the death penalty.  Many states no longer impose the death penalty regardless of the severity of the crime,

In a recent New Yorker piece, Jeffrey Toobin ends by declaring the death penalty  "an absurdity in a civilized society." That "no technology can render that process any less grotesque."  And thus he argues for the abolition of the death penalty.

While I am a card-carrying, certified Liberal, I beg to differ with Mr. Toobin and those who follow his thinking.  I believe that in any society, even the most civilized (and I question whether ours qualifies as that, but that's another matter), there is a proper place for the death penalty, carefully deliberated and administered as humanely as possible.

There are some acts that are so cruel, so inhumane, done with such total disregard for the value of human life, that there is no appropriate penalty other than the death penalty.  Not as a deterrent to such acts in the future, but because society needs to say that some acts are so beyond the pale that they deserve the ultimate penalty, death.  That is part of what makes a society civilized.  

While much attention is placed on the issue of the death penalty in our civilized society, very little attention is given to the nature of prison time served by a typical convict and how that meshes with the concept of a civilized society.  The typical prison is a dead zone where people languish in boredom and where the disposition to commit crime is actually increased with the result that we have a very high rate of recidivism, with the released person often committing even more serious crimes.

If the proper context for the debate on punishment is a civilized society, and I think that is the correct context, then I would argue that if a crime does not warrant the death penalty, then rehabilitation should be the predominant motivator, not retribution, not punishment.  That is another part of what defines a society as civilized, and we are clearly totally lacking in that.  

Our society should want to make the criminal whole in every sense of the word so that he or she not only does not commit crime when he is released but becomes a benefit to his immediate family and society.  We are all, after all, God’s children; if someone goes astray it is not because there is something inherently within him or her that is bad, but because he has been damaged growing up by the contact, the experiences, he has had with the larger culture and often even his immediate family.  This does not absolve someone of responsibility, but it should inform how the system, how a civilized society, interacts with someone who has committed a crime.

Our current system harms the individual and harms society.  It is a lose-lose situation.  The goal of rehabilitation is not only civilized, but it is in society’s best interest.  And it is possible.

The Destructive Impact of Our Us v Them Perspective

During this holiday season, I think it timely to address a fundamental problem in the development of human societies ... the us v them mentality.  People band together in groups ... whether formally or informally ... because they feel something in common and want to be part of a group, not alone, often to increase their security.  Unfortunately, most groups form their identity by differentiating themselves from others which quickly transforms into us v them, competition, and often conflict.  

We see the world as made up of some people like us, and a mass of people not like us who would exercise power over us to our disadvantage if they had the ability.  The impact of this dynamic is not surprising. And it has been the basis for the development of human societies for millennia, if not from the beginning of man.

Since all mankind ... regardless our race, color, religion, nationality ... descended from a common ancestor in Africa, how did this come to be?  It is probably a safe bet that the first society was a communal one, but at some point, someone in the group wasn’t happy and split off and formed another group, and then competition for resources began and conflict began.  You have the same pattern in animal societies ... they are communal within the group but often fiercely territorial and aggressive towards other like groups.

Although man has a brain and can think, as he has advanced technologically his basic brain patterns have not altered at all.  Man is today working with the same brain that first evolved 100,000 years ago.  And so he still sees himself in an inevitable security/conflict mode.

How sad, because we are all children of the universe, of God.  Regardless whether your higher power is a God responsive to prayer, a moral force or an amoral force, the divinity within you, or the force of the universe which has brought forth the miracle of the world and its species – we all are literally children of the same God, we all stem from an original source.

And we all have something else in common ... the suffering of mankind is universal.  There is no one, regardless how rich or how poor, who does not suffer because we are all afflicted with feelings of insecurity.

What a different world it would be if everyone felt that everyone else in the world was one with them and vice versa.  How different it would be if we followed the moral prescription of all religions to do unto others as you have them do unto you.  What if we gaged our every action by the impact it would have on others, and if others were in any way harmed we would cease or alter our actions?

There would be no war, there would be no poverty, there would be no lack of access to \quality education or quality medical care.  There would still be people who were richer or poorer, but the extent of inequality would be greatly reduced.

Who do I blame most for this continuing cancer on the soul of humanity?  The world’s major religions.  They are the force that has perpetuated more us v them feeling and violent conflict than any other force over the millennia.  Even when the conflict wasn’t religious, they have stepped up to support their nation states or communities in aggressive actions against others.

Yet the major religions are the principle holders of moral authority in the world.  They could, with a united voice, change this dynamic or at least begin the process of changing the dynamic.  They should be able to rise above their claims to exclusivity and embrace the equality of all religions as well as those who profess no religion..

I know that this will never happen.  Historical forces and our habit-energies would overwhelm any attempt to change this societal dynamic.  Nevertheless, this is what the world needs and I pray that a voice, or voices, rise to proclaim this truth and further peace on earth.

Hate Speech - The TIme Has Come to Regulate It

Hate speech is defined as “speech that attacks and is an incitement to hatred of a person or group on the basis of race, religion, gender, or sexual orientation.”  Hate speech is not a rational discussion of the pros and cons of a group’s values or actions.  It is targeted solely at the listener’s emotions.

There has always been a lot of hate speech in this country, but over the past few decades, it seems to be getting worse.  As in the past, hate speech is directed against various groups ... gays and lesbians, people of color, immigrants, pro-choice women and their doctors, Muslims ... with the object of either inciting the public to act against these groups, often through legislative action but also often through violence, or just denigrating their value as human beings.

Such speech has been deemed protected by the 1st Amendment’s right of free speech.  While that right is not absolute, the only limitations on speech approved by the U.S. Supreme Court have been incitement that created a clear and present danger of violence or illegal action, libel and slander, obscenity, “gag” orders to insure justice, or protecting consumers from false advertising, for example.

In each of these cases, someone was being harmed in a way that could not be practically countered in the “marketplace of ideas,” which is the function of free speech in a democracy.  While most European countries, and some others, banned hate speech after WWII because of the Nazi experience, the United States has not seen fit to do that.  The reasoning being that unless there was a clear and present danger, the hateful speech could be countered in the marketplace of ideas by other speech.

This reasoning may have had some validity in the pre-internet, pre-cable TV era.  But now it is a specious argument.  We live in an era where many people lead very polarized, insular lives.  Because of the advent of the internet and cable television, people now can and do listen only to news and pundits that agree with their point of view.  If they hear an opposing viewpoint, they dismiss it out of hand as being biased or ill-informed.

We also live in an age where information goes viral, which is to say that like a virus, the information spreads very quickly.  Given these two factors, together with the fact that guns are readily available and there seems to be less inhibition to using them against people, hate speech has a heightened  ability to cause a clear and present danger to the physical or mental well-being of an individual or group of individuals.  And it therefore should be banned.

Interestingly, the loudest opponents of such a law would be liberals, for whom the right of free speech is sacrosanct.  But as discussed, the right is not absolute, and such a law would not be a “slippery slope” leading to further restrictions on free speech.

Regarding those who create hate speech, they should not be able to disingenuously claim the protection of free speech.  The court has made clear that people are to be protected from a clear and present danger of violence.  In the case of much hate speech, it is clearly the intent of the speaker or writer to foment violence against individuals or groups based on an emotional hatred.  That one has no way of knowing whether someone will act on that incitement should not protect such speech.  By the time someone acts, it is too late.

And for those many instances in which hate speech deals with a legislative agenda, it should also be banned.  While there is certainly time for opposing viewpoints to be aired, the marketplace of ideas is not functioning very well in our current polarized internet/cable TV environment.  

But more fundamentally, hate speech has no place in a civilized society.  Just as a society has the right to protect consumers from false advertising and children from obscenity, society has the right and I would say the duty to protect people from hate speech.  Both the haters and those who are the object of hate suffer as a result of such speech.

The Self-Help Scam

The self-help industry is huge.  Although numbers are hard to come by, in 2008 Nielsen Bookscan reported that 13.5 millions self-help books were sold in the U.S.  The self-help industry is said to be worth around $11 billion annually, including seminars, DVDs, etc.

Obviously, lots of people are crying out for help.  They feel miserable or frustrated about their lives in various ways, whether it’s their relationships, work, family, or personal development.

And it’s no small wonder because we live in a culture which is extremely competitive and which is constantly sending us messages, whether through the media or through family and peers, that we need to be more than we are, we need to have more than we have.  We live in a culture which creates feelings of insecurity from almost day 1 after birth.  As insecure people, we cannot develop and maintain good relationships.  And we cannot be satisfied with anything we achieve; regardless how successful or powerful, we always want more in order to remain happy.  Our culture has created a collective monster.

This is the context within which the self-help industry thrives.  And it is the context in which it ultimately fails the people it supposedly is trying to help.  The problem is that as soon as you fall into the trap of feeling there is something about yourself that needs “fixing” or “improving,” there is no hope because you are buying into the culture’s hype.

And that is why, despite the tens of millions of people who read and are otherwise drawn to the advice of self-help gurus, nothing really changes in their lives or in the world.  Yes, a few “make it.”  But the vast majority get nowhere even if they faithfully follow the advice given.  If these books worked as advertised, the world would become far less dysfunctional and vast numbers of people would feel better about their lives.

No, the problem lies not with individuals, it lies with the culture and the way it impacts everyone in it.  No one can escape it.  We are all a product of our learned experience ... whether from family, peers, or the larger culture.  But it all comes back to the culture.

Our ego is the repository and protector of these learned experiences.  It drives our lives and controls our actions based on these learned experiences which at their core are based on insecurity.  As such it is the font of our neuroses that cause us so much fear, anxiety, anger, and general suffering.  It is the reason why few of us ever feel at peace or find true happiness.

Since you can’t change the culture, we have two options.  The one is to change ourselves in a way so that we have a better fit with the culture and thus do better in our interactions with it.  Succeed on its terms.  That is the basic tact of self-help books.  And it doesn’t work because our culture feeds upon and manipulates everyone in it.  And thus we can never find real happiness or peace going that route.

The other option is to change the way we interact with the culture ... to interact with it on our terms.  To realize with great clarity what it is and how it operates, how our learned experiences have impacted us and caused us endless suffering, and how we can step back from this manufactured ego and find our true selves ... strong, secure, happy, and at peace. Freeing ourselves from the cravings that our learned experience promotes ... that is the source of peace and contentment, happiness and yes, even joy.

And that, my friends, is the Buddhist path.  Ending our suffering not through the process of psychoanalysis or self-help improvement, but by understanding how our feelings and perceptions, while feeling very real, actually have no inherent reality and are just a product of our learned experience ... and learning that by freeing ourselves from this known, from our ego, we can discover again our true selves and see ourselves and the world around us as we and it really are, without the distorting filter of our learned experiences, our thinking mind.

What Has Man Wrought?

Throughout the ages, man in “civilized” societies has felt that he is superior to all other elements on this planet.  Man to put it mildly has been very full of himself when it comes to his place in the scheme of things.  Western man (which is to say followers of the Judeo-Christian tradition) even saw himself as being made in God’s image.

After all the millenia of hype, the question must be asked, has the advent of man on this planet been of benefit, either to the other elements of the planet or even to man?  What has man wrought?

Before the advent of civilized societies, the natural world functioned in a very symbiotic and pure fashion. There was nothing is this world that was despoiled.  Primitive man, up to and including the Native American Indians, had great respect for all the natural elements and lived in total harmony with them.

With the advent of civilized societies (at least Western ones; I cannot speak to the other early civilizations), and certainly since the industrial revolution, man has despoiled the environment, to a greater extent with each passing year.  “Progress” for mankind has meant degradation or extinction of the natural environment.

And what of man’s benefit to man?  At a minimum, that depends on which side of the power divide you’re standing.  

Some examples.  Starting with the growth of ancient civilizations, the powerful often dominated those they conquered by making them slaves.  Slavery as a business proposition had (and in some parts of the world still has) a long tradition that began before the start of carrying slaves to the new world.  Under the guise of “the white man’s burden” and “spreading God’s word,” European nations plundered and destroyed native civilizations around the world.  In our own country, the American government practiced what can only be called genocide against the Native American Indian.  Certainly, if man was benefiting man, it was only the strong benefiting themselves.

“O.K.,” you may say,  “all of this is true but look at the incredible progress that man has brought to mankind.”  Man has always touted the concept of progress, of an ever-improving life with each technological innovation.  Remember G.E.’s slogan, “Progress is Our Most Important Product” or DuPont’s, “Better Living Through Chemistry”?  The slogans are gone, but contemporary marketing makes the same case through manipulative images and ad copy.

There is no question that man is better off materialistically than he was in the past.  But is he happier?  Is he better off spiritually than he was hundreds of years ago?  I would argue that the answer is probably, “no.”  As he moved from the land to the city, man lost his connection to the land, his feeling of belonging and purpose.  He lost his roots and it has been getting worse with each generation.  Life may have been very hard, but there was a spirituality (not religiosity) to man’s life which provided a feeling of self-worth and an innocent happiness.  

Modern man, whether living in a major city or in the country, is totally a creature of modern culture.  He is manipulated as to what he thinks, what he wants, what he buys.  Whether it’s politics or business, it’s all about marketing, selling.  And because of our culture of competition and consumerism, we are manipulated to always want more and not be satisfied with what we have and who we are.  We have lots of stuff, but also lots of debt.  It is a system which fosters frustration, dissatisfaction, and depression.  

This is not to say that man (and of course in using this term I am including women and children) did not suffer from depression and frustration in earlier years.  But the breadth and depth of it in contemporary life is far greater.

Finally, there is the question of whether man has even benefited those closest to him ... his immediate family.  I cannot say what family life was like in ancient times.  But as man moved from primitive communal societies to “civilized” societies of a non-communal and later capitalist nature, man became an insecure animal, left to his own devises to fend for himself.  

As I argue in my book, Raising a Happy Child, insecure people raise insecure children and the cycle is never ending.  Thus we find ourselves today in a world filled with insecure people.  Regardless how powerful or rich someone may be, deep down that person is typically very insecure.  And whether in the family or at work, insecure people cannot develop strong, healthy relationships.  Certainly not ones based on unconditional love and trust.  Their insecurity has a powerful impact on how they view themselves and the world around them.  That is why our world is so dysfunctional, whether you look at family relationships, the political landscape, or the relationships between nations.

And so, the answer to what has man wrought is much degradation and misery.  We seem to be an evolutionary experiment gone awry.  Although we have advanced in many ways over the millenia, our brains (as opposed to our knowledge) have not advanced or evolved.  We are still functioning with a brain that nature developed for primitive man 150,000 years ago.  And that brain is not equipped to handle the changes that have occurred in human society over those years.  Our ability to think has unfortunately not made us better human beings.

Is there a way out?  A better way?  Yes.  In my book, Raising a Happy Child, as well as my various Buddhist books, I try to present a cohesive, positive answer for my fellow man.