Capable of committing a crime

Recently, the Minnesota Supreme Court upheld a drunken driving conviction of a man (named Fleck) who was drunk, asleep in his car, in his apartment parking lot, with the car keys on the car's console. The conviction and affirmation were based on Minnesota law that makes it illegal to be in "physical control" of the vehicle... meaning that the drunken person COULD take control of the vehicle.

Chief Justice Alan Page wrote that "Fleck, having been found intoxicated, alone, and sleeping behind the wheel of his own vehicle with the keys in the vehicle's console, was in a position to exercise dominion or control over the vehicle and that he could, without too much difficulty, make the vehicle a source of danger"

We might all agree that drunken drivers are a significant danger, and that they must be stopped and punished severely enough to discourage them from doing it again. I don't have a problem with laws that allow police to stop someone driving erratically and then testing for drunkenness. I do have a problem with such laws that have been expanded and harshened steadily over the years until we have now reached a point of total absurdity.

Guilty for what one MIGHT do? Guilty for what one is CAPABLE of doing? Guilty of "driving while under the influence", but NOT driving? With the car not running? With the driver not conscious? Stop and think about the implications of such law, if applied in other areas.

Could one be convicted of ROBBERY for looking at a store, because he COULD decide to rob it?

Could a man be convicted of RAPE because he is "armed" and physically CAPABLE of doing so?

Can someone with matches in their possession be convicted of ARSON because they COULD have started a fire?

Could someone be convicted of TERRORISM because their garage contains substances that are incendiary and COULD be used to construct an explosive device?

Of course not, or at least so we thought, because one can only be guilty of DOING SOMETHING, not of being CAPABLE OF DOING IT. Even if one is INTENT on doing something wrong, but doesn't actually do it, no crime has been committed... assuming rational judgment.

Under the current DUI law, no harm need be done, no actual danger need be present, and not even intent need be present. Only the CAPABILITY to possibly cause harm is required.

I'm written about the stupidity and destructiveness of "victimless crimes"... crimes when no other person is harmed. I've written about hate crimes as "thought crimes", where extra punishment is meted out because of the reasons behind the crime, but these DUI laws, as they're being interpreted, are CAPABILITY CRIMES.

DUI is not a trivial matter, but it is involved in only about 30% of driving fatalities. Why is such intensity focused on DUI? We've all seen drivers involved in personal distractions that make them a menace to other drivers... eating and drinking while driving, chatting or texting on cellphones. I recall watching one woman curl her eyelashes while driving in rush-hour traffic. The greatest impairment to accident-free driving is, in my opinion, the presence of other people in the car distracting the driver. Probably the most distracting are children. Do we have special penalties for accidents when the driver is impaired in other ways?

Generally, we don't have such special crimes, because drivers encounter many distractions that impair safe driving, not the least of which is the condition of the streets and roads, and the absurd number of signs we're required to notice and respond to instantly.

There are a great many causes of accidents and fatalities, but our laws treat substance impairment very differently, and far more harshly, than all others. There are side issues that
fog our reason when it comes to DUI. Special laws allow police to impound a car when DUI is suspected, and often those impounds become permanent takings... to the extent that police argue about which department will get possession of the car.

Careless, erratic, or even dangerous driving seldom results in arrest. If it does happen to result in a police stop and the driver is NOT under the influence, the matter is likely to end with a warning, even though the CAPABILITY (or even likelihood) of harm is clearly present.

If we allow the current Minnesota DUI interpretation to stand, it WILL serve as precedent for other similar applications of law. A precedent that allows the mere CAPABILITY to commit an offense to be treated as the offense is to turn the law completely upside down.

It seems especially ironic that the Chief Justice of the Minnesota Supreme Court, Alan Page, used to make his living as a Viking pro football player, where his job was to inflict harm on others, which he did well and famously. Yeah, well, games are different, aren't they... but consider football where penalties are called when a player MIGHT HAVE done something illegal, or because he was CAPABLE of fouling another. The case the Supreme Court ruled on was so patently ridiculous that the football parallel would be penalizing a player on the sidelines because he COULD get into the game and THEN cause harm.

Property being taken by cops? Gosh, we're outraged!

The continuing saga of the now-disbanded Twin Cities' Gang Strike Force has caused the Minnesota Legislature to perk up it's ears and identify an opportunity to make some headlines. Here is the StarTribune's headline and sub-head from Tuesday, Dec. 29th:

Minnesota Legislature to take hard look at forfeiture rules
The Gang Strike Force's meltdown could lead to new legislation governing property seizures by law enforcement agencies.

As reporter Randy Furst stated in the article: "the Legislature is swirling with proposals to dramatically change the rules governing forfeiture".

Isn't it encouraging that our elected officials have uncovered a serious problem and are anxious to do something about it? They've found that some individuals were violated by the rotten Gang Strike Force, and they're going to put a stop to it. They're going to protect us from any more such violations.

This is so typical of political hypocrisy. Asset forfeiture has been around for a long time; the Gang Strike Force just took a perfectly normal, legal process and pushed it more blatantly rather than keep it "under the radar" like most police forces.

Yes, asset forfeiture is legal, made so by the legislature who is now pretending to be up in arms about it. They made it legal for law enforcement agencies to take property "involved in a crime", and keep the property for their own use or sale. Naturally, they didn't restrict what "involved in a crime" really meant, so police forces have done very much whatever they damn well pleased.

Asset forfeiture is so embedded into government that it is a major source of income to police departments, and they have to share the booty with other parts of government. The rules were set so that if your property was taken by police, you have to prove that it shouldn't have been... a serious form of guilty until proven innocent... by you, at your expense. It's so easy to take assets that you don't even need a crime, or even a good suspicion of one. If a police force sees an asset they want, they can find a way to get it.

I first wrote about asset forfeiture 6 and a half years ago, and it was a well-established ripoff long before that. The FBI became so expert at doing it that they ran courses for police departments around the country. Government has warehouses full of stolen property.

Read my 2003 article "Another knock on your door" to learn more about how widespread and grievous asset forfeiture is. You might also want to take a look at my 2005 article "How much justice can you afford?" to see how having enough assets to be forfeited can get a criminal off the hook.

I wrote a short blog several years ago about a local case... a well-known sports star was arrested for drunk driving in his luxury SUV. Several local police departments involved in his arrest got into a dispute over which of them should get to keep the SUV, or how they should divide the spoils.

That the Minnesota Legislature should be up in arms about asset forfeiture now is complete hypocrisy. What they're really upset about is that the Gang Strike Force didn't keep good records, pushed it too far, and didn't spread the booty around properly to other government agencies. They didn't STEAL BY THE RULES.

You betcha... they'll take "a hard look" at asset forfeiture, and they'll do no more than tighten the controls to make sure the cities, counties, and state get their split of the stolen goods. Remember this next election, when legislators point to their participation in correcting asset forfeiture laws.

Vacancy, U.S.A.

Occasionally, I drive through parts of the Twin Cities that were former haunts of mine. Usually, I am surprised, and a little disappointed, at the changes that have occured since my last visit. Disappointed because what I see doesn't reflect my memories, and surprised that so much growth has taken place in what seems like the blink of an eye.

I drove around the area northwest of the 494/100 exchange. Long ago, I had my graphic design studio in that section, and watched the area grow in spectacular fashion. I also worked in two other buildings on 76th Street, and later had a client, Burgess Publishing, in the far north reaches of that quadrant, did contract work for several years for Delta Dental to the west, and did some work for Carlson Companies nearby.

In the 70's, and later, that quadrant was a hub of a large number of computer-related companies and many other technical and scientific firms. It was such a dynamic place that traffic in and out of it was always difficult.

In the past, Saturday afternoon in that quadrant was as busy as a weekday, with young professionals employed by dynamic companies all scrambling to produce innovative solutions in a market that gave handsome rewards to those who could ride the cutting edge of each technical specialty. In the 30 years since then, my visits had seen mostly cosmetic changes. A bank I watched being built on a vacant lot had turned into more small office space. A new corporate name would be seen once in a while, replacing another I recalled but couldn't name. After the building boom in the 70's filled that area, few structures changed... only the names associated with them.

What I saw today was distressing. Almost all of the buildings I remember are still there; what is missing is people. I drove around that section virtually alone... no traffic at all. The parking lots around buildings were equally vacant. The area not only didn't look dynamic... it looked dead.

Almost every building has a prominent For Lease sign in front. It's not unusual for a building to have vacancies, but I got the unnerving feeling that these buildings have serious vacancies. The area east of there, along the 494 frontage road, looks even worse... vacant lots where buildings once stood, a huge and apparently empty office building, and three major stores empty in the mall near 100. I knew that Circuit City had closed, but so did CompUSA and another large store, leaving half of that big-store mall vacant. A large store, with a great glass facade and plentiful parking in front, now dark with only the outlines of the old sign on the front, is a spooky sight, almost like visiting old ruins. In the past, as now, businesses failed, but they were usually promptly replaced by another, eager for good retail space.

I ended my tour by stopping at the Galleria, as I often do. I enjoy going there because, unlike so many other retail spaces today, it is prosperous. I usually buy a magazine at Barnes and Noble and have a leisurely latte at Starbucks. As used to be true everywhere, Galleria is busy, and ever-changing. Even though I seldom buy anything else, just walking through a prosperous mall is encouraging.

I'm worried about what I saw today. It's the visible reality of an economy that has been squeezed by terrible governmental economic policies. As I walked through the book store, I caught a glance of a book about the man most responsible for those insane economic ideas... John Maynard Keynes. His suggestion that government should borrow and spend when it's broke, and intervene in all aspects of the economy has been eagerly picked up by those politicians trying to build a legacy of powerful action... from Franklin Roosevelt right up until Barack Obama. The policies have never worked and never can, but they do allow politicians to be seen as taking spectacular action, while hiding the fact that huge debts are always passed on to future generations.

Just once in my lifetime, I would like to witness a politician, challenged by some reporter with "what do you plan to do about that problem", and hear the politician answer "Nothing... it's not the government's job, and the market will fix itself". Until I start to hear such answers, I fully expect to take more driving tours and watch as our nation continues to stagnate and decay.

Put your trust in the government

How often are we told that we can't trust private businesses to produce safe products, because they're only interested in increasing their profit? The word greed is usually applied liberally in such reports. We're told that only the government can be trusted with our safety, so we have innumerable government agencies who issue regulations, perform inspections, and levy heavy fines when infractions are found.

Of course, all that work done by the agencies increases the cost of everything we buy, but we're assured that the results are that we're far safer We put our trust in the government... they're not driven by that ugly old bottom line profit.

So... how do the agencies perform for our safety? Here's an example - The General Accounting Office was asked to investigate the food safety procedures used by the Agriculture Department for food distributed through the federal school lunch and breakfast program, which deals with 30 million school children. This was the result:

Federal authorities failed to tell schools about recalls of potentially tainted peanut products and canned vegetables, and cafeterias may have unknowingly served them to children.

They knew about problems (which is good) but they didn't pass the information along to the schools (which is not good). It really doesn't help to know about problems if you don't tell the people getting the food.

Understand now... this wasn't a one-time problem, this was a problem with their procedures that might have been happening for a long time, and might still be happening if someone hadn't asked for an investigation. In fact, until they finish "working on new recall policies" it might be happening today.

If you can't trust the government to send safe food to the kids, what can you trust them to do?

If that problem had occured with a private business, what do you think the result would be? Major fines? Losing a government contract? Business folding? Jobs lost? What do you think happened within the Agriculture Department? You think heads rolled? I doubt it... they're probably government union employees, just doing their job. I suspect it will be business as usual. They're really responsible to nobody. If your child got sick as a result, could you sue? Sorry, can't sue the government.

I love the response from the Agriculture Secretary, who said... safety is of utmost importance and his department is working on new recall policies.

Safety is of utmost importance? Are you reassured?

The retardation of America

reprinted from 09/22/04, as Obama urges children to stay in school

Yesterday, I claimed that literacy in the U.S. has declined, despite a long-standing, expensive, enforced governmental school system. Understanding how that can be true is basic to understanding many of our nation's current problems.

In his book "The Underground History of American Education", John Taylor Gatto uses as a measure of earlier reading ability the fact that the novel "Last of the Mohicans", published in 1826, sold 5 million copies within a then-population of 20 million Americans. This was popular, casual reading for entertainment. I'm reproducing below the first paragraph of that book, so that you can judge for yourself whether we have progressed or declined in our reading ability since then.

It was a feature peculiar to the colonial wars of North America, that the toils and dangers of the wilderness were to be encountered before the adverse hosts could meet. A wide and apparently an impervious boundary of forests severed the possessions of the hostile provinces of France and England. The hardy colonist, and the trained European who fought at his side, frequently expended months in struggling against the rapids of the streams, or in effecting the rugged passes of the mountains, in quest of an opportunity to exhibit their courage in a more martial conflict. But, emulating the patience and self-denial of the practiced native warriors, they learned to overcome every difficulty; and it would seem that, in time, there was no recess of the woods so dark, nor any secret place so lovely, that it might claim exemption from the inroads of those who had pledged their blood to satiate their vengeance, or to uphold the cold and selfish policy of the distant monarchs of Europe.

Consider carefully now... this was popular leisure reading for ordinary Americans. It had been just 50 years since the founding of our nation. Both Thomas Jefferson and John Adams would die in 1826. The internal combustion engine was patented that year, and the first photograph was made. There were just 24 states, and no more would be added for another 10 years. Much of the nation was still "territory", and the vast majority of Americans were either farmers or what we would consider "blue-collar" workers.

No public schools, no compulsory education, yet Americans of 1826 were more literate than we are today. Not just some, but a huge percentage of Americans were literate. By 1826, these were not immigrants who received education elsewhere, but people who had been born and raised here, most under conditions we would now consider hardship... and they were building a nation in the process.

Learning to read, in 1826, was simply accepted as normal... as normal as learning to ride a horse, shoot a gun, and a hundred other skills needed for everyday life. It was simply expected and done. Parents helped, older children helped, and it just happened... to almost everyone. They weren't taught to read... they just learned.

How much literacy has declined isn't important. What is important to understand is that individuals learn... to read or do anything else... with or without formal schooling... if they think it is important.

The imposition of compulsory schooling was a serious turning point in our nation's development. The idea that we should all surrender our children to government schools for training was pushed for reasons that should make today's liberals as angry as it does those of the religious right, who object because those schools are secular. The primary movers behind public education were the industrialists liberals so love to hate. Those industrialists wanted to create a manageable, docile, trained workforce, so they pushed the Prussian model... efficient, lockstep, and controlled.

It would be easy to blame the "robber barons" for pushing public education, but it would not have been possible without governmental edicts to make it happen, and without tax money to make it possible. If we're to place blame, it must be with the lawmakers, for only they hold the power to "make it so".

Today, we're told that education is a national necessity... that we must spend ever-increasing amounts of money for our children's' sake... and we have. We're forced to place our children in school at an early age and keep them there for many years. Their teachers are now considered "professionals", trained specifically for their work, and the educational system is massive and carefully controlled, by local government, state government, and, increasingly, our national government. We have a system of well-paid "experts" and "professionals" continually experimenting with our children's education.

We "progressed" from virtually no educational system at all, with learning eagerly done because it was expected and desired, to a colossal, forced-feeding system... and the results don't come close to matching what we once had. Our educational system isn't, as we're told, failing a few. If we believe that "No Child Left Behind" is our goal, then we have to begin by accepting the judgment that we have failed ALL of our children. We have accepted the forcible imposition of a system that has literally destroyed most of our children's natural love of learning.

If I consider all of the aspects of our current state of affairs as a nation, I find many that are seriously disturbing, and taken together, those disturbing aspects lead me to conclude that our nation is aimed directly at massive failure. If we open our eyes and judge honestly, it isn't difficult to see the signs that we are following in the footsteps of many other dominant societies that have fallen.

When I ask myself the question "Where did America go wrong"? I can point to many tragic turns, but I repeatedly return to our educational system as being the primary factor in perverting a magnificent opportunity into a continuous decline. What that educational system has done that is unforgivable... to have avoided most knowledge of what made our people and our nation great, and replaced it with rhetoric designed to convince us that only government can solve problems.

That system has dulled our brains and turned us into compliant servants of a "planned" nation. It has taught us that we are mere resources in a grandiose planned nation, and for the most part, it has convinced us.

Opposing ObamaCare without understanding the plan

I have to admit that I haven't spent much time trying to understand the President's health care proposal, yet I feel completely justified in being opposed to it. To some of you, what I just said should exclude me from even discussing the issue... how can you oppose something you know little about? Some would think that I might be a staunch Republican opposed to anything Obama and/or the Democrats propose. Nope. I would oppose a similar plan from Republicans. What I do know about the proposed plan is quite enough to oppose it, and that's what I want to explain to you.

I know this... that it's a BIG, FEDERAL, GOVERNMENT plan that promises to improve health care through government control. No more information about the proposal is needed to oppose it. There is simply NO plan with those characteristics that can possibly improve life in our nation. Why? We've been through it a hundred times with other BIG FEDERAL GOVERNMENT PLANS to save us from ourselves, and those BIG FEDERAL GOVERNMENT PLANS always have the following results:

They get far bigger than expected.
They cost far more than expected.
They become entrenched because they eliminate alternatives.
They become untouchable because they create entitled groups.
They become seriously inefficient because they have no competition.
They become politically corrupt because of the big bucks being tossed around.
They present prime opportunities for fraud and cheaters.
They decay because they cannot adapt to changing circumstances.
They shift increasing cost burdens to future generations.
They always have serious unintended consequences.

In a nutshell, BIG FEDERAL GOVERNMENT PLANS cannot work well, ever, regardless of who plans them. We need look no further for proof than to very similar BIG FEDERAL GOVERNMENT PLANS such as Social Security and Medicare.

Be assured that those plans do benefit some people. I get a Social Security check every month. Medicare has covered some of my medical expenses. How can I complain? My first complaint is that I had no choice. I was forced to participate. There is no way for me to be satisfied with my personal "results". If I die too soon, I will not receive back what I was forced to contribute. Unlike private investments, the excess will not go to my beneficiaries. If I live too long, others will be forced to fund my future checks. No, I cannot delude myself into thinking that the "government" will be responsible if I live too long... government just passes the tab along to younger people, like my own children and grandchildren.

You think that's a pleasant thought to live with? I occasionally ask students I'm speaking to how they like the idea of supporting me, a stranger to them, in my old age. They get rather pained looks on their young faces. I go on to explain how much worse those plans are becoming, and that those plans could easily bankrupt our nation.

No, Social Security and Medicare are not just bad examples of BIG FEDERAL GOVERNMENT PLANS... they are typical examples. BIG FEDERAL GOVERNMENT PLANS cannot work well, which brings me to one more result of such plans that I hate with a particular passion.

Big plans have BIG cracks. Any oversight or error becomes magnified. Large bureaucracies inevitably have flaws and oversights, but they have BIG flaws and oversights. With such BIG FEDERAL GOVERMENT PLANS, however, those individuals who fall through the cracks can become ensnared in a pit from which there is no escape. The individuals have become dependent on the system working properly. When it doesn't work properly, their very lives can be put at risk while they wait for a massive impersonal system to respond... or not. They have no alternative.

Let me explain why I'm so sure about BIG FEDERAL GOVERNMENT plans. I've spent a lot of my life making and implementing BIG PLANS. It's an approach that comes naturally to me. I tend to naturally think "outside the box" and in broad scope. As a result, I'm very aware of the inevitable faults that all big plans have. The old truism "anything that can go wrong will go wrong" is quite true. But... there is a huge difference between a BIG PLAN from me and a BIG PLAN from the FEDERAL GOVERNMENT. Ever notice that those in government don't take responsibility for anything that goes wrong? They deny problems for a long time, dismiss them as exceptions, blame them on somebody else, or simply throw still more tax money at the system to make you believe they're doing something. They're also expert at producing grand propaganda to control public opinion.

Of all the PLANS that can be conceived by anyone anywhere... of any size and scope... there are none more predisposed to disastrous results than a BIG FEDERAL GOVERNMENT PLAN, and ObamaCare is all that... in spades.

Baseball the way it oughta be

  Some readers may recall that I swore off watching the Minnesota Twins when they pushed through a new tax to support a new stadium. Many people, even those who opposed the stadium, think I'm nuts, but I am still not watching... even when they're on TV. It's a matter of principle. The stadium tax was wrong in every possible way, pushed through illegally, bypassing the legal and required referendum because legislators KNEW that the fans would oppose it if they were asked. So... they didn't ask.

I understand being a baseball fan. As I mentioned before, my father was a die-hard Cubs fan for all those many decades when it became clear that winning wasn't all fans wanted. I enjoyed Twins baseball in the losing years BEFORE the '87 World Series... enjoyed watching a bunch of kids doing their damndest to compete against big-bucks veteran teams. I watched them get better and gel as a team, playing sound baseball. Every play and at-bat was important then. When they won, it was because they played over their heads, trying harder, and thinking constantly. THAT was fun and exciting baseball. When those kids pulled off the Magic in '87, it was simply the epitome of sports excitement. It was an impossible dream transformed into breathtaking reality. I have it all on tape and can relive the tension and thrills.

The Twins are moving into their new stadium. I'm sure it will be a glorious experience, but it doesn't have a damned thing to do with baseball. Yes, it will make Minneapolis seem a little more like a major-league city, but what is that worth? The team won't play any better because of it, and the individual players won't suddenly blossom into stars. Fans will get rained on occasionally, or sweat out some hot muggy weather instead of sitting in the enclosed comfort of the old dome. There will be a delusion that the new outdoor stadium is a return to "real" baseball, but the opposite will also be true. A nice new stadium with a mediocre team won't draw crowds for long... the Twin Cities fan base is very much a fair-weather crowd. Win and we'll adore you... lose and we'll find something else to get excited about.

BASEBALL, on the other hand, continues unabated and unsullied in a small outdoor fun-filled stadium in St. Paul, home to the minor league St. Paul Saints. Very few baseball fans would notice a difference in the level of play between the Twins and the Saints. Right now, the Saints' record is .545, 1 game out of the division lead, while the Twins are at .500 and 3 games ack.What you WILL notice is that the Saint's games, win or lose, are fun for the fans. Lots of goofy things happen, and the fans are very much part of the experience. There's a lot of tailgating in the parking lot next to the stadium. The team mascot is a pig... actually two pigs... a real pig named Slumhog Millionaire, who carries fresh baseballs to the umpire, and a big bright-pink pig, Mudonna. In St. Paul, baseball is a real hoot. The Saints have what they call Ushertainers, who act as roaming cheerleaders, each with a distinct personality. Seventeen concessions stands with every sort of ballpark food you can imagine... no food item is more than $5.

At a recent game, we sat in the General Admission section, just down the left-field line behind 3rd base. Those Saint's tickets are $5 ($4 for Youth and Seniors). The very same seating for a Twins game is $31. The Saint's, not surprisingly, fill 98% of their seats, even though every home game is televised. The best reserved seats at Midway Stadium are $12.

The Saints, and a lot of other minor-league teams, are a great example of baseball the way it should be... no tax subsidies, no threats to leave town, and no municipal stadium. Sure, baseball is a business, an entertainment business. The Saints give you a lot more for your money, and they don't steal it out of your pocket. They work for it.