APO AE 09213-1315
The Honorable Orrin Hatch
Chairman, Senate Judiciary Committee
Senate Office Buioding
Washington, D.C. 20510
Dear Senator Hatch:
Wrote you in January regarding some ideas for balancing the budget and judicial reform. Delighted by the measures you and your colleagues have been taking to straighten out some of the more egregious legislative errors of the past 30 years. Haven't been wasting a minute's time. I count the real decline in American politics from Lindon Johnson's attempt to eliminate poverty in the '60s. Most of what Franklyn Roosevelt amounted to deperate measures taken in deperate times -- and the New Deal at least spared us the worst of European all-out Socialism. But Johnson just plain tried to do the impossible. Short of full-fledged communistic income equality (something not even Lenin or Stalin ever attempted) there'll always be half of us living below median income. And those in the lowest couple of deciles will always feel "poor" no matter that with food stamps, medicare, and Supplemental Security Income they're all living better than middle Middle Class citizens of sixty years ago.
All I can say is I wish you good luck in trying to modify the Crime Bill to allow States and Local Governments to decide how to spend Crime Bill money. Afraid the Court, or Presidential veto, will defeat this sensible initiative as well. See last paragraph below.
But to the main point of this letter: much of the logic behind the Great Society legislation, as well as the judicial "legislation" of the Supreme Court going back some time, was based on the supposed scientific findings of psychology -- in particular the studies of experimental psychologist B.F. Skinner. accprding to which: people are not responsible for their acts since all is determined by genetics or environment. All our acts and problems are thus caused by others.
You or your staff may well have run across the enclosed article by Duke University psychologist John Staddon which appeared in the February Atlantic . But in the event you've missed it, I'm sending along a tear copy. I think it far too important to the work of the Judiciary Committee not to make sure that it comes to your attention. Staddon turns Skinner's findings on their head, showing that Skinner himself established beyond question that both aversive and affirmative conditioning do in fact modify behavior, despite popular argument that criminal behavior is the fault of bad parenting or social injustice, and that anyway punishment doesn't deter crime.
Staddon points out that the trick in conditioning is that the reward (or punishment) must take place in close proximity to the behavior one wishes to modify. Problem with the American judicial system seems to be that we've introduced great delays between apprehension for a criminal act and eventual disposition of the case (almost a year even in the O.J. Simpson case). Then there are further delays and uncertainties introduced by weighting the system in favor of the suspect and against society. And "aversive conditioning" is then further weakened by making parole without incarceration the standard punishment -- and turning prisons into places of air-conditioned quasi-luxury with libraries, gymnasia, and individual television for the relatively few who are sent there. As a result of Labor Union pressure, prisoners are no longer even permitted to work to help offset the cost of their upkeep, making the notion of "hard labor" passe. (Indeed, we're now attacking the Chinese on "human rights" grounds for causing their state prisoners to produce goods for sale in support of their upkeep. Next we'll be demanding China also provide individual cells, air-conditioning, and gymnasia like American prisoners).
On top of that, most prisoners are now being released after minimal time to avoid the overcrowding forbidden by the courts, so that we're in fact sending the signal all Skinner's experimentation showed would happen when the reward/punishment system was delayed or corrupted: we've shown the criminal class that you can often get away with it, so it's worthwhile going for broke. During my almost forty years of foreign service I've lived in Francoist Spain, Gaullist France, PRI Mexico, Guatemala, and Deng Xiaoping China, and I can assure you that sharp and immediate apprehension and punishment does indeed deter crime. With the post-Franco liberalized reforms in Spain, crime skyrocketted. I'm not advocating that America turn itself into a repressive government: merely that we tilt our judicial system a bit more towards protecting victims and deterring criminals through applying more strictly the Constitution promise of "speedy trial" shorn of some of the judicial barnacles which have grown up over two centuries. Wouldn't hurt, for example, to insist that Federal Judges put in eight hours on the bench like other federal workers and that in this connection the Chief Justice exercise more effectively his oversight responsibilities of lower Federal Court judges and court schedules. This could go a long way towards trimming judicial backlogs.
Seems to me that once your immediate agenda is taken care of you might want to start hearings on Staddon's "new psychology" to see how his insights may apply to the Federal criminal justic system.
Turning to a related subject, it's my understanding, based on the Con Law I studied under Professor Francis Wormuth, that while Chief Justice John Marshall was able to establish that the Supreme Court can strike down Congressional legislation, this coup de main still rests on little more than Marshall's prestige, acceptance by comity on the part of Congress and the White House, and now long-term tradition -- but that other than the areas of original jurisdiction set forth in the Constitution (Article III relating to treaty law, cases involving foreign ambassadors, interstate squabbles, including those between citizens of one state and another, and admiralty law), Congress still has exclusive power to determine the jurisdiction of the Court. I was pleased to learn that you're making progress limiting the time and number of appeals which death row inmates can make, which should reduce some of the uncertainty surrounding this "aversive conditioning". But the Constitution also limits the juridiction of the Federal Congress to those matters specifically delegated to it: War and Peace, Interstate Commerce, and Foreign Affairs. Articles IX and X reserve all other matters to the States or the People -- the genius of our federal system. I am aware of many cases where the Court has cited the XIVth Amendment in a contorted manner to justify Federal intrusion in areas never delegated to Federal authorities, but I am not aware of a single citation of Articles IX or X of the Bill of Rights to protect the rights of States or the People. How about the Judiciary Committee admonishing the Court to throw out improperly enacted laws which should be no business of the Federal Government. Please refer especially to numbered paragrah 7 of enclosed paper on Constitutional Reform (sent you a copy of this with my January letter, but am assuming it's deep in some file).
I'm afraid that the attempt to roll back forty years of excessive social legislation -- and a hundred years of Court expansion of its jurisdiction -- is going to be met by the Court's attempt to protect its turf. Some academic friends and I have put together a list of needed Amendments going somewhat beyond those listed in the Contract With America. And while I have little hope of seeing a Second Constitutional Convention to consider these matters, I personally have as much confidence in this method of Amendment, which was after all provided by our inspired Founders, as I do with either of the other methods incorporated in the Constitution. If you can get some of these accomplished by legislation, e.g. subjecting Congress to the same civil rights legislation it's imposed on the rest of us -- more power to you. But unfortunately, the Court is the final arbiter of what is law under our form of government -- and since the Court has previously not only upheld many of the legislative extremes which a common sense reading of the Constitution would have held to have been beyond the delegation of powers to the Federal Government, but even extended some areas under its doctrine of judicial activism, even the more conservative Court of today is likely, on the basis of stare decisis, to overturn many if not all attempts to return to sanity as the California referenda overwhelmingly approved last November.
In addition to the tear sheet of the Staddon article and the paper on additional amendments I think the nation will require if we're to endure well into our third century, I enclose my own contribution to Staddon's thesis on individual responsibility (which will appear in the Summer issue of Dialogue magazine) which you may find of some interest in your work as Chairman of the Judiciary Committee.
With all best wishes for success in your heavy responsibilities, I remain,
Sincerely yours,
David Brighton Timmins
Enc:
1. On Responsibility and Punishment
2. Thoughts on Constitutional Reform for a New Century
3. The Doctrine of Free Agency, Determinism, and Chaos Theory
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