Judicial Fiat Is Capital Punishment

Our activist judges threw another grenade on the concept of respect for our states' criminal laws founded on state constitutions, and not founded on the personal opinions of a few judges. The Supreme Court ruled that states can not apply capital punishment to someone convicted of a brutal and heinous murder, when the murderer was seventeen, as opposed to eighteen, at the time of his crime.

The judges pretend the issue is a matter of a "constitutional" right a brutal murderer has, because of his age. Their pretense is simply their personal preference. They made their ruling in spite of these well-known facts: The federal constitution is silent on capital punishment. The law under which the murderer was convicted is a state law, under a state constitution that permits capital punishment in his case (as would 18 other states). The Supreme Court has not ruled against the general application of capital punishment. Just fifteen years ago, the court admitted there was no basis to oppose capital punishment in exactly the same type of case for which the court now prohibits it.

How did our constitution come to have words and meaning it clearly did not have as recent as fifteen years ago? We have not amended it in the last fifteen years. We had no public referendum that said we demand the amending concept that the court now says it finds in the constitution.

What is the foundation in law and the constitution for their ruling? They have none. Their ruling does not try to uphold any legal requirement of existing law, or the constitution, which they are required to uphold. The five deciding judges based their decision on their personal beliefs and opinions about capital punishment, not applicable law and not what the constitution mandates. Their ruling abrogates your democratic and constitutional rights, as they grant to themselves the right to write a new constitution, by judicial fiat - one ruling at a time.

The critical question for our democracy is not whether or not your or I think capital punishment should or should not be used; or under what circumstances we think it should or should not be prohibited. The critical question is, if there is no constitutional right to immunity from capital punishment, then who can establish such a right? The constitutional answer is that only we, the people can do that, acting through the democratic process to amend the constitution. The people of nineteen states - the states affected by the recent judicial dictate - could, if they chose, change their state constitutions to ban the use of capital punishment. The people of those states have chosen not to do that. That is, or supposedly it was, their right.

The democratic basis of what the constitution says, and what it means is the heart of our nation's constitutional principles. It is also our highest democratic right. The operative phrase here is "we the people" not "we the court". The greatest responsibility of our highest state and federal courts is to defend, not abrogate what the people have democratically decided is the substance and meaning of our constitutions; until the people take the constitutionally mandated, democratic steps to change our constitutions.

If we cannot defend against the courts' assault on the democratic basis of our constitutions then there is no lessor democratic right the courts will not abrogate in time. By the constant application of judicial fiat, our nation becomes a democratic republic no more. "We" no longer rule, as in a democracy. We are ruled by a judicial oligarchy. The only "right" that legislating by judicial fiat advances is the courts' taking for themselves the right of a judicial dictatorship over the people, for which there is no constitutional mandate.

The benevolence that you think you see, in a court's dictating a new "right", is a false benevolence. It masks the tyranny that the court obtains for itself and its successors, by the means with which it takes over our power to grant that right. It strips away your right to the democratic basis of your constitution.

If there is some "right" that you believe your state or federal constitution should embody, then you not only should seek the establishment of that right in the law, you have an obligation to pursue that goal through the democratic means of amending the constitution. Judicial fiat can only achieve your goal by diminishing your highest personal right in a democratic republic - your right to live in a democracy.

Amending the constitution by judicial fiat in a democratic republic is the pronouncement of capital punishment on the democratic basis of the law and the government. If the democratic basis of the people's constitution is dead then the constitution is dead; long live the constitution

Tom Painter

March 23, 2005

Where Do All The Pictures Go

A new security trend got started in the 1990s aided by new technologies. It was adopted early and widely in many places, like Britain, and it now peers from cameras on public and private buildings all over the United States. The trend I am referring to is the use of closed circuit television systems (CCTV), recording all that goes on in the public space and billed as a crime deterrent. Is it?

A report, on February 24, 2005 by Ben Leapman, the Home Affairs Correspondent for the Evening Standard, suggests there is more hype than substance in the crime deterrent abilities of CCTV.

Researchers for Great Britain's Home Office looked at 14 CCTV schemes in use around Britain. They found only one that helped decrease crime. Where was that system? It was at a parking lot. Meanwhile, CCTV is so intrusive in parts of Britain that some citizens are never out of camera range, from the time they head for work in the morning until they go inside their home at night.

It should not take too much to see the real-time consequences of these schemes. Who is watching the camera? Can a camera run out and arrest someone? Can the camera understand the full context of what it sees - what are the humans saying; what is happening, or has happened out of range of the camera; how many seconds before the image passes; did the camera watcher miss it? The systems are not attached to security robots, commanded by a computer for rapid response to some condition it perceives as a threat. Not yet anyway, thank God. The systems need humans to watch the cameras, in order to be effective in real-time.

How effective is the camera-human interface? How many security personnel do the systems replace? None, in fact they likely require more personnel in order to be real-time crime deterrents. If people are needed to watch the camera, who is walking or driving in the areas where statistics show crime is committed most often? How many cameras does one person have to watch? How much time is there, from the time the image comes on screen to the camera watcher seeing it, to deciding it is a crime in progress, to dispatching personnel and their arrival at the scene? What are the chances of false alarms over what the camera watcher thought was happening? What is going on in the known crime areas that the security personnel left while running to the CCTV inspired event?

How do the real time answers to these questions compare to the use of technology to study crime statistics for the purpose of better schedules and placement of security feet on the street? Apparently, by the study in Britain, there is no comparison.

CCTV on the public space is proving to not be the crime deterrent it was sold as. Private businesses and public officials are making commercial and political success out of a scheme that does not work.

Why is it that the argument that wins is the argument that says we should not worry about a public record of our daily actions, when our actions are not committing any crime? Why do we have to accept that the recording of our daily activity is justified on the basis that, well, we "may" commit a crime; guilty until proven innocent? It seems totally contradictory to the ideas of limited government in our nation's founding principles.

My argument here is in regard to the public space. I do not oppose security cameras focused on the entrances to public buildings, homes or commercial property. They can all watch directly at the entrances and inside those places. Neither the government, nor a company nor an individual should have the right to record persons who simply pass by on the public way. Our freedom and our privacy are squandered on a false premise; while the lack of public outrage is even worse.

How much of our freedom might we yet give up, for failed security schemes? How long are the pictures saved, where are they, who needs them, why do they need them, who can buy them, whose purpose may they yet serve and what could they mean for anyone of us, at some future date?

Paranoid? No. The laws of unintended consequences, and history, have shown that those consequences that are ignored by a public policy are usually consequences that someone finds a purpose for and some means to that purpose.

Let's ban closed circuit television surveillance systems from watching the public space. Technology can be devised to provide security without compromising our privacy or our freedom.

Tom Painter

February 24, 2005

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Security: Indian Point Nuclear Power Plant Buchanan, New York

Since 9/11, there has been a greatly increased awareness about security. Clearly, we have to be very careful.

The Indian Point Nuclear Power Plant has been very highly profiled in the media. Should it be shut down? Maybe, maybe not. A complete shutdown would probably take between 5 and 7 years. The criteria that we use to determine what should be done involves a variety of issues: The safety of the plant and its functioning. Evaluation of the history and potential for terrorist attacks and nuclear accidents at this plant and other nuclear power plants both in the United States around the world. What are the alternate energy resources and how long will it take to get them into service and are they economical. These are some of the main issues.

Another important issue is evacuation in the event of a major problem-accident or terrorism. Although evacuation plans have been in place for many years, it is almost impossible to predict how even the best evacuation plan would work in the event of a really serious nuclear problem. It is hard to determine how serious panic would be and how knowledgeable the average citizen would be of what procedures to follow. For the best plan to work would require a massive evacuation education program. There may be some alternative solutions, but it would be very difficult to predict the success of outright evacuation.

In conclusion, the risk of a nuclear accident is probably significantly greater than the risk of a terrorist attack (i.e. Three-Mile Island, Chernobyl, etc.). In determining whether to close down and decommission nuclear power at Indian Point, consideration has to be given to the economic and scientific facts, as well as to what the odds are of either a nuclear accident or of terrorist attack. It may or may not be worth taking a chance, but this is what the real decision is.

The media really needs to be more careful about the details that they print if terrorism is a serious consideration. While all the facts are extremely important, there are clearly details, which would be better off not being disclosed to the general public. For example, how would the media feel if a diagram of their offices showing where their computers were located, showing where their printing presses are and showing all the ways of access to the building. If we would be comfortable reporting this, then we can disclose the details of other facilities. When we report stories, we should keep this in mind.

Editorial #29
by James C. Benerofe
March 22, 2002

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