The judge has ruled: Remembering Dennis Challeen through his columns for the Winona Daily News
Judge Dennis Challeen passed away Thursday. He practiced law in Winona and was appointed to the municipal bench in 1964. He served for 35 years, retiring in 1999. He later wrote many community columns for both the Winona Daily News and the Winona Post. We've gathered some of them here.
Washington state Gov. Jay Inslee recently made an announcement that during his term of office no executions will occur in his state because of the problems that exist with the capital punishment system.
Shortly thereafter, Oklahoma bungled an execution with some experimental intravenous drugs.
There are now 32 states with death penalties, and 18 states, including Minnesota and Wisconsin, that have abolished capital punishment.
There are several problems with capital punishment. The first is the moral question of killing itself: Why do we kill people who kill people so we can teach people not to kill people? Other issues are whether our criminal justice system is capable of executing the guilty humanely, and never executing an innocent person. And isn’t “humane killing” an oxymoron?
The history of our ancestors and how they executed criminals and political enemies is gruesome. They stoned, hanged, beheaded, boiled, drowned, burned at the stake, impaled, beat to death, drew-and-quartered, crucified, poisoned, pressed to death, gassed, electrocuted and used firing squads.
Most people who believe in keeping the death sentence will say they would not willfully murder someone nor offer to be an executioner; however, they have no problem with the government doing the killing for them. It insulates them from moral responsibility.
There are some unusual people, however, who would not shy away from being an executioner. In 1977 when Utah executed convicted murderer Gary Gilmore who chose death by a firing squad, the authorities questioned who would serve on the firing squad. A group of deer hunters came forward and volunteered their services free of charge. Their offer was declined, and ultimately a squad of police officers performed the execution.
The criminal correction system has generally accepted the Kohlberg theory of development, which identifies six levels that humans evolve morally.
At the lowest level are persons without a conscience who are driven by total selfishness and will survive by any means necessary.
Levels two through five describe steps of gradually higher moral and social standards.
Very few make it to the top level where they are willing to sacrifice their lives for the betterment of the human race. Examples are Jesus (Christian), Gandhi (Hindu) and Dalai Lama (Buddhism).
To put it in over-simplified terms: At the lowest moral level are those who are totally self-centered, violent, revengeful and greedy with little or no respect for life, and at the highest level are those who have evolved upwards to become altruistic, selfless and caring about every living thing.
If the Kohlberg theory is valid, then when we as a society execute criminals, we are acting like the criminals we condemn — joining them at the lowest level of morality. We should be morally above the worst of us.
Support for the death penalty in America has now dropped from a high of 80 percent to 60 percent in 2013. Those who identified themselves as Republicans were 81 percent in favor, compared to 47 percent of Democrats and 60 percent of independents. When offered the choice of the death penalty or life in prison without parole, less than 50 percent supported the death penalty.
So why is there a trend away from the death penalty? One answer lies in the scientific research in DNA evidence (human cells left at the scene of the crime); and the exposed weakness of our justice system to make human error.
Nationally, since 1992 there have been 312 persons exonerated by DNA evidence proving the convicted person could not have committed the crime; 18 of them were on death row.
Up to now, the death sentence has been unsuccessfully challenged as “cruel and unusual punishment” (prohibited by the Eighth Amendment). Perhaps the debate should shift to the 5th Amendment which prohibits a person from being “deprived of life, liberty, or property without due process of law” but to do so the justice system must sit in judgment of itself and admit it is incapable of always delivering due process in death penalty cases.
Many organizations, notably Amnesty International, campaign for abolishing the death penalty — not just domestically, but world-wide. They argue that capital punishment is too often tainted not only by human error, but also economic and racial bias and there is no evidence that the death penalty serves as a deterrent to the crimes that we execute people for. (FBI figures show that murder rates in non-death penalty states are consistently lower than in death penalty states.)
Capital punishment is the ultimate, permanent denial of human rights. There can be no room for human mistakes.
When I was a child we had a relative who was a nurse in a Twin Cities hospital. When she needed an operation she went to a different hospital, and when asked why she didn’t trust her hospital, she said,” I work there, that’s why!”
People who believe in the death penalty seem to conclude that, with our trial safeguards and exhaustive appeal system, there should be no doubt about guilt. My response is similar to that of my nurse relative: “I worked there for over four decades, and I wouldn’t trust it with my life.”
Our American justice system is one of the best in the world — but it’s far from perfect and has many defects that must be addressed, particularly when it comes to the death penalty and life in prison cases.
The National Registry of Exonerations reports that since 1989 there were “1,290 cases in which a person was wrongly convicted of a crime, based upon new evidence of innocence.”
The recent development of DNA analysis has had a major impact. Since 1992 there have been nationally 312 people who have been exonerated by DNA evidence that proved the convicted person could not have committed the crime; 18 were on death row; another 16 were charged with capital crimes but not sentenced to death.
Close to home, a Bluff Siding, Wis., man spent seven years in prison before being released as wrongfully convicted, pursuant to DNA evidence. But only 5 to 10 percent of cases involve DNA (human cells left at the crime scene) — 90 to 95 percent do not involve DNA.
In the past 40 years, 143 people have been removed from death row for various reasons. The number of US. criminals exonerated in 2013 climbed to a record high of 87.
What most people don’t realize is that once a person has been convicted by a jury, the only issue before the appellate court is whether the defendant received a fair and impartial trial — whether mistakes were made by the judge or lawyers — a very difficult burden for a convicted person to overcome within a system that sits in judgment of itself.
The nonprofit Innocence Project has examined thousands of cases across our country and has made some startling conclusions:
A major problem is that “facts” presented to juries during trial are not always reliable.
Eyewitness testimony is always suspect. How many times have you had a person begin talking to you, thinking you were someone else, or you have made the same embarrassing mistake? And these errors occur with persons we think we know, not complete strangers.
Then there are false confessions or admissions. It’s hard to understand how anyone would admit to a crime he didn’t commit. However, there are people who are mentally impaired, don’t understand the serious situation they are in, or feel threatened and think they will be allowed to go home if they agree with authorities. Proof that false confessions happen: 29 of the DNA exonerated cases had pleaded guilty to crimes they did not commit and served an average of 13.6 years in prison.
Scientific evidence is often believed far beyond its reliability. Often so-called paid-for experts in their field will testify and arrive at opposite conclusions, leaving the jury wondering which expert to believe. Experts cost money that the government can easily afford but is often beyond the means of the accused, or the public defender’s budget.
Then there is bad lawyering that fails to pursue or investigate favorable evidence, or prosecutors and police who hide or ignore evidence that doesn’t agree with their theory of guilt. Sometimes it’s negligence or a simple honest mistake — but sometimes it may be intentional. Are these behaviors common? No, but they happen — and when they do, grave injustice results.
Sometimes witnesses try to please one side or another by filling gaps in their memory, or have personal incentives to exaggerate or lie. Relying on jailhouse tips, snitches and paid informants is always risky.
To quote the reform-minded Innocence Project: “Being put to death for crimes that they did not commit should be intolerable for every American, regardless of race, sex, origin or creed.”
Support for the death penalty has declined in recent years. In 1994, 80 percent of Americans polled favored the death penalty; that number dropped to 60 percent in 2013.
The late U.S. Supreme Court Justice Harry Blackmun, after supporting capital punishment for 20 years, gave up and concluded it was an experiment that has failed and said, “I no longer shall tinker with the machinery of death.” Unfortunately, too many states and courts still “tinker” with it — sometimes killing innocent people.
Back in 1997 I became ill and hospitalized. During my absence from the courthouse, an elderly retired judge was assigned to cover my duties. He came down hard on underage drinking. A few months later at a state judges’ meeting, he came up to me and said, “Those college kids came to your court expecting to pay the usual fine for underage drinking, and I told them there was a ‘new sheriff in town’ and I hit them with the maximum under the law.”
I said, “So that explains why all the college kids have quit drinking.” With an astonished look, he said. “I can’t believe that.” Unable to keep a straight face, I said. “No judge, they haven’t really changed a bit. The desire for the forbidden and the mating urge on college campuses never disappear just because of some judge’s tough sentencing philosophy.” He replied, “Well at least they had less money to spend on beer.” I answered, “If their parents paid the fine, they’re the ones who probably are drinking less.”
This exchange happened over 16 years ago and if you read the latest court convictions, nothing has changed much since the age 21 drinking law went into effect two decades ago. One survey indicates 80 percent of young people admit to illegal drinking.
Over 100 college presidents have now joined to have a national discussion on this issue. It is a big problem on campuses, costly for both law enforcement and our justice system.
Our U.S. Constitution doesn't mention any age of majority. Historically states made this determination until the National Prohibition Amendment became law in 1920, prohibiting alcohol consumption by everyone throughout the USA. It proved to be an ineffective, unenforceable disaster. It engendered dangerous bootleg alcohol, flourishing organized crime, violence, law enforcement abuses, binge drinking, widespread political corruption, and an increased disrespect for law.
In 1933 Prohibition was wisely repealed and states once again determined who could consume alcohol. Then along came the 26th Amendment (1971) which granted those ages 18 and above the right to vote. Simultaneously, 18-year-olds gained the right to drink alcohol, enter into binding contracts, marry, divorce, rent, purchase real estate, own businesses, buy stocks and bonds, go bankrupt, serve on juries, and be executed for capital crimes in many states.
But our young people didn’t handle their right to drink very well. They were out drinking and driving at late hours, and traffic fatalities and DUI’s went up drastically. So in 1984, Congress passed the Federal Underage Drinking Act which raised the drinking age to 21, and withheld highway funds from any state that did not conform. The purpose of the law was to reduce traffic fatalities, and the rational was that young people’s brains hadn't developed sufficiently for them to responsibly consume alcohol.
The USA is one of only seven countries worldwide to set the drinking age at 21; most of the other 6 countries are Muslim nations that totally prohibit alcohol consumption for religious reasons.
Thus Congress set the stage for 18 to 20-year-old citizens to play hide and seek with the law. Bogus driver’s licenses began to show up, and legal adults buying for minors; booze stolen from parents or other adults, and black market sales; honest liquor retailers with their livelihoods at risk having to be on constant guard against illegal sales to minors; increased binge drinking and disrespect for the law.
When people ignore a law they feel is unjust, it becomes easier to ignore others.
Recently the U.S. Supreme court held that gays and lesbians are a class of citizens that cannot be denied equal protection under the law, and declared the Federal Defense of Marriage Act unconstitutional. Can the “class” of 18 to 20-year-olds now make the same argument?
The answer may be not to diminish their rights, but to promote responsibility in all aspects of young people’s lives, e.g., money management, drugs, sexuality, driving motor vehicles and drinking responsibly. Perhaps an “alcohol permit” coupled with a “zero tolerance driver’s license” that can only be obtained after an intensive self-paid-for training program based upon research–not “preaching to” sermons. Any alcohol-related offense would cause the violator to lose this specially obtained license until age 21.
This or similar plans might bring a lot of “Yah, buts.” However, what we are doing now doesn't work. According to one Harvard study, there were lifesaving benefits in the beginning, but they proved temporary, and “If we are to truly tackle the dangers of youth drinking, we must admit the National-21 experiment has failed.”
The American Civil Liberties Union (ACLU) claims to be non-partisan politically, and that its only “client” is the Bill of Rights. It is sustained by private donations, and through the years has taken positions before the courts, legislators and communities that anger many Americans, be they conservatives or liberals.
It has taken a strong stand on separation of church and state. To the ACLU “The right to practice religion or no religion” is a fundamental freedom guaranteed by the Bill of Rights, and the government must keep out of religion.
One battleground has been public schools. The ACLU defends the student’s right to freedom of speech and the right to pray in school, but opposes any participation by the faculty or administration, or allowing public-owned facilities to be used in promoting any religious beliefs. They advocate that religious education should be conducted by parents, family, and the religious community — not public schools.
Another emotional controversy has been burning the American flag. The ACLU opposes any attempt to pass laws making it a crime to do so. They take the stand that a strong democracy can tolerate all peaceful forms of expression, no matter how uncomfortable they make us feel, or how much we disagree. To many citizens, burning our flag goes beyond reasonable right of dissent.
The ACLU is against surveillance cameras in public places as an invasion of privacy. It will be interesting to see if they will alter their position in view of the terroristic bombing at the Boston Marathon, where just such cameras were crucial in identifying the perpetrators.
The ACLU has taken the controversial position that the Second Amendment (right to bear arms) protects a collective right (“a well regulated militia”) rather than an individual right. This of course raises the ire of the gun lobby.
The ACLU is now reviewing this stance in view of recent U.S. Supreme Court decisions, including the very recent decision where the Court left intact New York’s law that anyone wishing to carry a gun in public must demonstrate a special need for self-protection. This indicated that states, and not solely the federal government, may regulate some gun rights.
The ACLU has consistently opposed capital punishment as a violation of the constitutional ban against “cruel and unusual punishment,” and impossible to make fair and just; that it denies due process and equal protection under the law. They seem to be winning on this issue, as several states have in recent years abolished capital punishment.
The ACLU opposes any state’s passing a constitutional amendment that defines marriage as only between one man and one woman. They also maintain that the federal Defense of Marriage Act (DOMA) was unconstitutional and. the U.S. Supreme Court has agreed.
The ACLU bewildered many liberals by arguing on behalf of conservative Rush Limbaugh when he was arrested for violation of prescription drug laws. They claimed Limbaugh’s Fourth Amendment rights (illegal search) had been violated.
The predominately Jewish community of Skokie, Illinois was outraged when a group of Nazi demonstrators displaying swastikas announced they would march and conduct a rally on the streets of Skokie. An Illinois court issued an order banning the demonstration. The ACLU claimed the injunction violated the First Amendment rights of the marchers to express themselves. The U.S. Supreme Court ultimately agreed.
But it’s not unusual for the ACLU to take unpopular stances over Bill of Rights issues, even the rights of people whose ideas they abhor; sometimes they even appear to contradict themselves. In the 1930s and 1940s they advocated enforcing the civil rights of blacks on behalf of the NAACP, while at the same time defending the freedom of speech rights of the Ku Klux Klan to hold rallies calling for the abolition of these very same civil rights.
Noting this apparent inconsistency, a satirical article by the ONION was titled: “ACLU Defends Nazis’ Right to Burn Down ACLU Headquarters.” Of course, this amusing exaggeration ignores the reality that the ACLU never advocates violence in the defense of any civil right.
But it is easy to see why some persons get irked at the ACLU, particularly when it’s their dog that’s in the fight, or their political bias that gets challenged.
The Bill of Rights is uniquely American. It defines our freedoms in simple language. The problem is interpreting these words in an ever-changing society.
The ACLU, love it or hate it, has been around for almost a century. But look at the bright side: If you publicly bad-mouth them, they will be the first to defend your right to do so.
We often read and wonder how future generations will judge the decisions we make during our lifetimes. Making the right decisions in the moment can be difficult, but it’s much easier to look back and judge whether our ancestors made the right decisions, given hindsight and what we know today.
Since the founding of our nation we have faced many society-changing decisions.
The first was abolishing slavery. Those who lived in the first half of the 1800’s heard popular arguments like these:
Slavery is ordained by the Bible and recognized in our Constitution; some races are naturally inferior to others; Africans war with each other and the victors often enslave the defeated. Those who were imported to America live a much better life than what they left behind; if slaves are freed they cannot intellectually compete with the white race and will suffer economic disaster; many slaves are content and well taken care of and do not want the responsibility of providing for themselves.
Looking back from our vantage point of today, we see these arguments were just plain wrong.
Another societal change was women’s right to vote. If you lived during the first decades of the 1900’s you would have heard arguments like these:
All governments must protect themselves from foreign threats. Women are physically, morally and socially incapable of defending and preserving our country and only men should be entrusted with these responsibilities; men by nature will look out for women’s best interests; women are too precious and emotional to think out and coolly make serious political decisions; many women have no desire to vote; and a woman’s place is in the home raising the children.
Again, with hindsight, these arguments were likewise nonsense.
So here we are in the first part of the 21st century facing another society-changing issue: Whether same-sex persons should have the right to marry.
We now hear these arguments against same-sex marriages: They will undermine traditional marriages; marriage is a God-ordained religious sacrament between a man and a woman only; gay couples are unnatural and should not be treated as equal citizens; the purpose of marriage is to conceive and raise children. If a person should be able to marry any person they love, why not more than one person (polygamy)? Or the horse they love?
These arguments sound suspiciously familiar.
The problem is that heterosexual married people do enjoy tax breaks, legal and property rights that gays and lesbians are denied.
So a fundamental issue is whether our marriage laws create a privileged class of people with advantages that are denied those outside that class, thus violating the equal protection clause of our Constitution which reads: Nor shall any state “deny to any person within its jurisdiction the equal protection of the laws.” Notice the word “state.” Notice also that it says “any person,” not “any heterosexual person.”
Another key issue is whether sexual preference is determined by nature or chosen. The majority of scientific opinion holds that we are born with our sexual preferences. If true, does that mean “nature” creates a minority class of people that are being discriminated against?
Alternatively, suppose our sexuality is a matter of personal choice. Even if so, is that a human right that the state can, or should, prohibit?
Other major principles come into play. The federal government only has the rights that were granted to it in our Constitution. If not granted, these rights remain within the states. Marriage is not mentioned in the Constitution, and that is why states have historically controlled family law, prohibiting close relative, underage, incestuous and polygamous marriages. Probate, divorce and marital property rights all are governed by state law.
Today, some states allow same sex marriages and some states prohibit them. When married couples, be they opposite or same-sex couples, move from one state to another they must abide by the laws of their new residence. This causes conflict if their marriage is not recognized.
The argument that allowing a person to marry anyone they love will open the door for polygamy, and for animal lovers to marry their pets, borders on the ridiculous. It’s absurd to suggest that any state would enact such laws. Remember, Utah was admitted into the union in 1896 only upon condition that polygamy be prohibited in their state constitution.
However the same-sex marriage debate resolves, our descendants will someday look back and judge us from their historical perspective. Will the arguments we hear today seem as ridiculous to them, as some that were made in our ancestors’ times seem to us?
I clearly recall the case, even though it happened years ago. The Highway Patrol had pulled over a car speeding north that was weaving all over Hwy. 61 at 85 mph, two tons of metal hurling down the highway — a fatal crash about to happen. The driver’s blood-alcohol content tested more than three times the legal limit. He was from Chicago, and when he appeared in court the next day, he insisted that he was in Indiana and asked why we were lying to him. I pointed to the Minnesota flag behind the bench. He couldn’t believe it. He was obviously a confused, out-of-control dangerous alcoholic.
In the late 1960s, there were more than six highway fatalities per 100 million miles traveled; today the rate is about 1. We are now much safer per miles driven than in the ’60s — a welcome statistical fact.
When I hear the simplistic argument that there is nothing laws can do to protect us from mentally deranged suicidal crazies who engage in killing people with cars or guns; my response is, “You’re right, but we can reduce the risk and in so doing save lives.”
Guns and cars have much in common. Both require responsibility and are dangerous when mishandled. Some people use them for recreation, some collect them, admire and show them off, some are attracted to the deadly power they give them, and a few want nothing to do with either.
There are reasons we are now safer in our automobiles. Four-lane interstate highways reduced head-on collisions and eliminated dangerous intersections. Cars are made safer with seat belts, better brakes, stronger body construction, cruise control and air bags. Laws were passed to change driver mentality, focus law enforcement, improve driver’s license testing, reduce insurance rates for good driving, lower legal blood-alcohol levels (from 0.15 percent to 0.08 percent) and aim media ads at risky driver behavior.
It can be argued that cars don’t kill people; people who drive cars kill people. But if cars are made safer and people use them more wisely, and high-risk drivers are removed from our highways, the chances of automobile fatalities logically diminish.
Politically we accept “car control” but not “gun control.”
I am aware that owning a car is a privilege, while owning a gun is a constitutional right. So it’s easier to pass motor vehicle laws then to alter our Constitution. No one is seriously advocating repealing our Second Amendment. However, the rights of freedom of speech, the press, protection of property and the right to bear arms are not absolute and all have limitations.
The president has formed a task force to consider, recommend or reject fundamental changes in how we deal with guns. Some likely considerations:
We made cars less deadly, so why, outside the military, do we need rapid-fire assault rifles with high-capacity ammunition clips?
Should our government, like Australia, buy up privately owned military rifles and/or institute condemnation and pay a fair market price?
Nobody argues that citizens should not have the right to keep guns in their homes for their protection. But there are strong arguments that hand guns outside the home should be limited to the military, law enforcement, security, armored money carriers and those who can show a special need. Many countries bar handguns outside the home.
If responsible people are not the problem, then responsible gun owners should accept the same laws and responsibilities we adhere to with automobile ownership: License gun owners like drivers, register their gun’s serial numbers, transfer them as we do cars with a governmental agency, and require liability insurance to cover any irresponsible acts committed with their guns. (Sometimes “good guys” accidentally harm other “good guys.”) Require them to pass gun safety tests, mental illness and criminal background checks.
Consider requiring that guns be stored in a legally described metal gun cabinet bolted to the wall, with the key being the sole responsibility of the gun owner. This limits access by children and may reduce some deadly domestic violence.
If we can put identification and locator electronic chips in cars, cellphones and dog, why not guns?
Establish a “no gun buyers list” similar to the “no fly list.”
Should densely populated cities, where hunting is prohibited for obvious reasons, have stricter gun laws than rural areas where hunting is safer — similar to speed laws that relate to vehicle congestion and pedestrians?
No matter what car or gun control laws are passed, there will always be outlaws who will circumvent these laws, but that is true with all laws.
As for the need to have a volunteer militia to fight foreign invasions or “our own tyrannical government,” perhaps we can rely upon Gen. George Washington’s experience:
“If I was called upon to declare upon Oath, whether the Militia have been most serviceable or hurtful upon the whole; I should subscribe to the latter.”
We Americans take freedom of speech for granted. After all, it’s guaranteed in our Constitution, but it’s not absolute. The classic illustration holds that if you falsely yell “fire!” in a crowded theater, you can get arrested if harm results. In addition, speech has always been limited by defamation laws. A person can be sued for libel (written words) or slander (spoken words) if someone’s reputation or good name is publicly diminished by false information in a public forum that results in damages — usually loss of business or opportunities for employment.
Until recently, libel was of constant concern primarily for authors, book publishing companies and the news media. They usually print a disclaimer at the beginning of their publications declaring that all the text is the author’s opinion and perhaps that all characters therein are fictitious to protect themselves from libel suits. Does it work? It helps but doesn’t make them immune. And with changing technology, the issue widens, as we shall see.
Now, the phenomenon of the Internet has turned millions of ordinary citizens into published authors, and their comments may be read locally or clear around the world. Many people post all kinds of comments after columns in newspapers, emails, Facebook, Twitter and YouTube without considering the future consequences of their written, hurtful words or the embarrassing pictures they are passing on for the world to see.
Surely we are all entitled to a negative opinion about someone as long as we can back up our opinion with accurate, reliable facts. The problem is that many Internet commenters lack the journalistic ability to differentiate between an opinion and a statement of fact. So, if a person doesn’t know something for sure, it’s best to remain silent. Always be careful of passing on rumors. Challenge someone’s ideas, but don’t belittle or insult that person.
Some people believe that if you don’t name the person, there is nothing that person can do about it. However, if it’s obvious whom you are libeling, you can still get into trouble.
There is also the false belief that if a commenter hides behind an anonymous moniker it will protect them from charges of libel. Unfortunately, if a libel suit is filed, the news media will most likely be joined as a defendant, and under the rules of pretrial discovery, if ordered, they must reveal the source of the libelous comment or be in contempt of court. It’s most doubtful that any sued company will strive to protect some careless or mean-spirited commenter who is not on their payroll.
It’s ironic that some newspapers often edit out or object to profanity (religious) or obscenities (sexual), which are usually protected as free speech, but miss defamation, which may be actionable.
There are defenses to libel suits. For example, the defendant may prove the statements are true, or alternately, that the statements were so outrageous no one believed them.
Another defense is that the person libeled is a public figure who has forfeited privacy by placing his or her character before the general public. But even then one must be careful; recklessly accusing a public figure of being a criminal (e.g., thief, child molester, corrupt or business scammer, which are considered libel per se) can get one into serious trouble unless the accusation is true or that person has been convicted in court and it is of public record. Sometimes it can be claimed that the libeled person’s reputation is so bad it can’t be made any worse.
Libel and slander suits are rare (there is one local case now pending). Defamation often occurs, but the burden of proof is on the complainant, and the legal fees and proof of damages are often difficult to sustain. But if there is an angry plaintiff with deep pockets, life can be made miserable for the defendant. So unless you are in the news media and insure your business for this contingency, you will find that most homeowner’s policies are not going to pay for the legal defense or pay the damages.
This is a complicated and unsettled area of the law; the Minnesota Supreme Court is now considering an Internet libel case. Simple precautions always apply: If you are writing any words that are broadcast by any media into the public domain, be civil, not mean-spirited. And when in doubt, rewrite after you’ve had time to think it over.
One policy of Abraham Lincoln is a good example. After he was assassinated, his staff found a stack of letters in the White House Oval Office that was labeled “never sent, never signed.” They were written when he was angry, and he had the wisdom to let them sit until his anger subsided. They were later published, and gave historians further insight into the mind of this kind and compassionate man.
Dennis Challeeen is a retired judge and community columnist for the Winona Daily News.
The NCAA came down with a draconian edict upon the nationally ranked Winona State basketball team because of some lack of paperwork regarding a player who transferred from another college.
Whenever people are in a position of authority, be they judges, commissioners, councilpersons or NCAA officials, part of their duties is to hand down sanctions when laws or rules are violated.
Whenever this happens there are some basic fundamental concepts of fairness that must always be considered:
The first consideration is to focus upon who is responsible for the error, wrong decision or failure to do the job they were hired, elected or appointed to do. Then aim the sanctions, penalties or punishment at the person or persons who caused the problem.
The second consideration is to avoid collateral damage by punishing innocent people who are caught up in the problem but did nothing to create the problem.
Judges every day are confronted with these considerations. So why did the NCAA officials ignore what professionals of our justice system have a duty to consider in every courthouse across this nation?
Sure, basketball is only a game, but how are we to teach young college students about fundamental fairness and respect for authority when the NCAA hands out sanctions that violate fundamental fairness? To put it as simple as possible, they ignored the person or persons who were responsible for the problem, and severely punished the players who did not nor could have caused the problem. Athletes don’t run colleges … colleges and the NCAA run them.
The problem is the officious ones got caught up in punishment, which can be constructive or destructive. How serious was the wrongdoing? Was it intentional or negligent? Did anyone willfully fail to tell the truth? Who was harmed? Would this player have been eligible to participate if it wasn’t for the paperwork problem? Sanctions must always be softened or hardened depending upon the culpability of the offender and how the wrongdoing affects others. We judges call it mitigating circumstances.
Law schools teach about malum prohibitum, meaning something is wrong because we declare it to be wrong (e.g. not paying taxes, underage drinking, exceeding the speed limit) or malum in se, meaning it is inherently wrong in any civilized society (e.g. murder, rape, stealing, assault).
What Winona State did was malum prohibitum at most, and probably not even that. They broke no state or federal law and apparently gained no unfair advantage over other teams.
Did they consider fining or suspending the person or persons who had the responsibility to clear the eligibility of the player in question? Did they consider fining the university for failing to live up to NCAA rules they agreed to abide by? How about confiscating proceeds from ticket sales generated by the athletic contests of the offending school?
How about reducing the athletic scholarships the college can grant for a given time?
We tell our young people that if you practice and work hard, play as a team, follow the rules and display good sportsmanship, they will succeed in sports as in the real world. Apparently in the NCAA world this is not true if some officials beyond the players’ control fail to follow the rules and do their job.
When judges make decisions that affect peoples’ economic or personal rights, they must follow the law, apply due process, obey constitutional safeguards and be fair to all litigants. Judges are part of our government and their decisions are subject to review. The NCAA is a private autocratic enterprise answerable to no one; the public can like it or lump it.
These NCAA officials, if they are going to make judicial type sanctions, should attend the National Judicial College and learn some fundamental concepts of fairness that judges are bound to observe every day.
And can someone explain why the common event of a student transferring from one school to another is such a complicated paperwork procedure that it should take months to accomplish?
And what wrongdoing did these talented ballplayers commit that so displeased the King?
This whole episode reminds me of the teacher who kept the whole class after school because someone shot a spitball; however, in this case the culprit, some paper shuffler hidden away down the hall, wasn’t even in the classroom.
A not uncommon case of bullying ended in tragedy.
A 16-year-old high school student and his "cheer him on" buddies were bullying a 15-year-old boy almost every day as they rode home on the school bus. One day the younger boy got off a block earlier to avoid any confrontation, but the bully and his friends also jumped off the bus and ran after him; the bully caught up and punched from behind. The victim suddenly turned, pulled out a knife and stabbed the bully 12 times. The bully, unarmed except for his fists, died from his wounds.
This is an actual case that occurred recently in Florida. Six years ago, Florida (and at least 14 other states, not Minnesota) passed "Stand Your Ground" laws that eliminated the duty to retreat, and empowered those who "reasonably believe" they are at risk of bodily harm or death to use lethal force to defend themselves against an assailant. The Florida Legislature took the "one's home is one's castle" doctrine out of the house and applied it to their streets, school buses and other public places.
Before we choose sides in this tragic school bus case, we should think of the ramifications of this law and whether our state should follow this recent trend in criminal justice.
The dead boy's father said, "If my son had a gun, he would be alive today." The implication being the old adage: Never bring a knife to a gun fight. If so, the other boy would probably have been dead, not his son. This acceleration of violence is worrisome.
Some relevant statistics before we jump to conclusions. According to a recent national survey, almost 30 percent of teens in the United States (about 5.7 million) are estimated to be involved in school bullying as either a bully, a target of teen bullying, or both. Bullying includes a person or a group that repeatedly tries to harm someone who is weaker or more vulnerable - hitting, threatening, intimidating, teasing, taunting, name calling, sexual remarks, stealing or vandalizing belongings, spreading rumors or encouraging others to exclude or reject someone socially.
"Stand Your Ground" laws might create more problems than they solve. Will teenagers now bring weapons to school to defend themselves? Can young people comprehend when it is "reasonable" to use weapons? Do such laws create a recipe for disaster by making deadly force an attractive option? It certainly creates a new strategy for criminal defense lawyers and expands what judges and juries must consider in their verdicts.
You may wonder what happened in the Florida case. The juvenile judge had a tough call to make and held that the defendant boy "was in a place where he had a right to be, and was not acting unlawfully" and "he had more than enough reason to believe he was in danger of death or great bodily harm" and therefore could not be prosecuted for manslaughter. A different judge could easily have decided otherwise - the bully was stabbed 12 times.
We adults have all experienced conflict in our teenage years; it's not a new phenomenon. Today's youth have the added communication of cell phones and texting, which can be a positive as well as a negative force when it comes to bullying.
It has been my experience that some people gravitate toward solving human conflict by meeting force with more force and violence. We all have the right to defend ourselves, but shouldn't we opt towards peaceful conflict resolution where our cell-phone-age citizens can confidentially report to school authorities or law enforcement without fear of retribution whenever they are victimized or see a bully in action?
We encourage people to report wild game violators, and other suspicious activities.
As long as we understand that some of them might be mean-spirited, false or mischievous, similar "bullying calls" shouldn't unduly invade our constitutional rights to privacy.
We who have been or are parents often feel these tragedies happen to others, but if these statistics are even close to being accurate, there may be a bully in your family, or a picked-upon underdog who may in desperation turn to lethal retaliation.
From my own childhood as well as my experience as a juvenile judge, I know that parents are often the last to learn what their children are up to when they are away from home. The Florida case changed both families' lives. One went to a funeral, the other to serious court proceedings and possible imprisonment for their son.
Back in the ’60s and ’70s, the liberals were in charge of corrections, and a lot of money was spent on rehabilitation programs. Almost everything was tried from teaching job skills, enhancing self esteem, hugs and warm fuzzies and poetry, to intense probation.
Finally a study concluded: Nothing works.
Along came the conservatives in the ’80s and ’90s who proudly proclaimed “we told you so.”
Thus began the “lock them up and throw away the key” decades resulting in over 2 million nonproductive imprisoned people whom we feed, clothe and care for medically.
Studies of these two eras concluded that both political approaches failed, each for different reasons.
Liberals failed because they tried to rescue criminals until they behaved and conservatives tried to punish them till they behaved. Both philosophies overlooked a fundamental problem: Many young people in our society grow into adulthood without being taught simple character traits like what is right and wrong and how to be responsible for themselves and others. In other words, complete parental failure. Either the parents didn’t understand responsibility themselves and had nothing to pass on; or they never took the time or effort to teach their children.
Thus many children raise themselves in the streets.
During these years I was part of the criminal justice system and after dealing with chronic offenders, I would jot down my observations about their faulty reasoning and erroneous belief systems. I perceived that what we were officially doing was ineffectual and counterproductive, making offenders worse, not better.
In 1986 I wrote a book “Making It Right.” In it, I highlighted my thoughts on why our criminal justice system yields unintended results:
n We want them to be responsible — so we take away all responsibilities.
n We want them to be part of our community, so we isolate them from our community.
n We want them to be kind and loving people, so we subject them to hate and cruelty.
n We want them to quit being the tough guy, so we put them where the tough guy is respected.
n We want them to quit hanging around losers, so we put all the losers in the state under one roof.
n We want them to be positive and constructive, so we degrade them and make them useless.
n We want them to be trustworthy, so we put them where there is no trust.
n We want them to be nonviolent. so we put them where there is violence all around them.
n We want them to quit exploiting us, so we put them where they exploit each other.
n We want them to think like normal people, so we put them where their fellow inmates think as they do. Reinforcing each other’s losing beliefs and lifestyles.
n We want them to take control of their lives, own their problems and quit being parasites, so we make them totally dependent on us.
In our electronic age words travel around the earth in an instant and Google reports where they land. These words apparently struck a common cord addressing a worldwide problem.
All civilized countries must lock up dangerous people for their public safety, but for rehabilitation prisons have proven to be counterproductive.
These words written more than two decades ago in our rivertown courthouse like a message in a bottle drifting to foreign shores has taken on a life of its own.
They were read at a corrections conference in Papua, New Guinea, published in New Zealand, quoted by the Chief Inspector of Prisons for Scotland, quoted by Sir Peter Bottomley in the British House of Commons, and cited in a court case in the Yukon, Canada.
They’ve been translated into Russian, Spanish, French, German and Japanese.
In the U.S., among hundreds of other citations, they’ve been quoted by the National Director of Drug Courts and by Gen. Barry McCaffrey, former U.S. Drug Czar.
Perhaps most touching to me, these words were found scratched on a cell wall inside a South Australian prison.
I’d like to believe this prose sheds some daylight into the swamp world of corrections in the 21st century.
For those offenders who will return someday to walk among us, we must reexamine the way we deal with them and do the opposite of what we have been doing.
In other words, teach them responsibility, what is right and wrong, employment skills, and self-reliance. And critically, the golden rule: Treat others as you would have them treat you.
But if we want criminals to change we must first reform ourselves.
More than a hundred years ago Mark Twain said:
“What gets us into trouble is not what we don’t know…
It’s what we know for sure that just ain’t so.”
Challeen is a retired Minnesota judge and lives in Winona County. Parts of his columns are excerpts from his book “Swamp Water Jurisprudence” available online at amazon.com and Kindle.
When the Prohibition Amendment took effect in 1920, it outlawed the manufacture, sale or transportation of intoxicating liquors. Advocates claimed it would reduce crime, corruption and prison population; solve social and health problems, including reducing divorces, accidents and poverty across America.
At first “The Noble Experiment” seemed to work, as alcohol availability virtually ceased. But then the real world of unintended consequences took over and turned Prohibition into a miserable failure.
People simply found new sources for their alcohol; they went underground and drank more than ever, spawning bootleggers, “moon-shiners,” homemade bathtub gin, “speakeasies,” and underworld gangsters (still with us) who illegally imported liquor from foreign countries.
Law-abiding people become selective law breakers participating in the “forbidden.” Citizens insisted on their alcohol, and criminals provided it. The laws were impossible to enforce. Finally the public had enough lawlessness, and in 1933 prohibition was repealed.
In the early 1980s reformers began a new noble experiment to eliminate the drunk driver from our highways. Their cause was just, honorable and necessary, but they chose to criminalize a public health problem.
Once again, the real world of unintended consequences created a whole new subculture of outlaws. It is not unusual to read about chronic multi-DUI offenders with blood alcohol levels two, three and four times the legal (0.08) limit. These alcoholics endure whatever punishments judges hand out without changing.
Criminologists have repeatedly warned that tough laws scare responsible people who are rarely the problem; but are ineffective on the dangerous irresponsible who are the problem.
Tougher penalties don’t seem to be the answer. Scandinavian countries have the toughest DUI laws in the world, yet their fatality rates are no better than ours. They have undeterred alcoholic DUI outlaws just like we do.
When laws are passed, consideration must always be given to unintended consequences. Like a teeter-totter when one end is pushed down, the other pops up.
To punish drunk highway outlaws, lawmakers increased the fee to retake the driver’s license exam. The unintended results: The bartenders get paid first; the outlaws drive without drivers’ licenses and then outrun the cops. Insurance premiums soar so they drive without insurance and when they have accidents there are no compensations to victims. They can’t buy license plates without insurance proof so they drive cheap unsafe cars and either steal current stickers or put the title card in a fictitious name or that of a foolish friend.
A Wisconsin study indicated more than one-third of DUI convictions are repeat offenders who drove while legally drunk 200 times for every time they got caught; and that 21,000 cars each day were driven within that state by someone over the legal blood alcohol limit.
“The numbers are staggering, and it’s very scary,” said the Wisconsin report.
Research tells us 67 percent of Americans say they drink alcoholic beverages. Although less than 10 percent of the population meets the criteria of alcoholism, the federal government estimates 17 million people have driven while legally drunk in U.S. during the course of a year.
Yet, many lawmakers claim success for tougher laws: Deaths on the highways are down.
The counter arguments: The sharp downward fatality trend started in the late 1960s, a decade before tough DUI laws were enacted. Four lane highways, less dangerous intersections, air bags and safer designed motor vehicles have greatly reduced highway fatalities.
Still, drunk driving persists.
No one rationally suggests that drunk drivers shouldn’t be arrested, but what we do with DUI offenders after arrest needs rethinking.
Jails never have and never will cure alcoholism.
Very few alcoholics cure themselves.
DUI cases should be diverted to drug courts where specially trained judges understand the science of addiction; how to identify alcoholism, what works and what doesn’t; and where the focus is on rehabilitation, responsibility and close monitoring; not punishment alone.
We have imposed a new Prohibition upon our young adults.
We allow them to vote, marry, bring children into the world, fight our wars, contract business, sue and be sued, sit on juries and hold public offices but forbid them to drink alcohol until age 21. When they had the right to drink they didn’t do well with automobile accidents; so we imposed upon them zero alcohol tolerance laws when driving. A reasonable law, but we didn’t reduce the drinking age to 18.
The result: They drink anyway which creates scofflaws and disrespect for law enforcement like their Prohibition ancestors. They furtively binge in house parties, procure false identification or send in legal adults to buy for them.
Europeans who allow 18 year olds to drink publicly don’t have these problems.
As the saying goes, those who fail to learn from history are doomed to repeat it.
Challeen is a retired Minnesota judge and lives in Winona County. Parts of his columns are excerpts from his book “Swamp Water Jurisprudence” available online at amazon.com.
Our colonial ancestors were quite creative when it came to correcting their criminal misfits. They didn't spend money on jails (spelled "gaols" in those days) because they had to feed the inmates and it was hard enough to feed themselves, so their official punishments were swift, public and often cruel.
Their courthouses had whipping posts on the front lawn together with stocks for public humiliation. A person's arms and neck were locked in boards making them helpless as the town folks and children hurled rotten vegetables and rocks at these wrongdoers.
Cruelty included cutting off ears, slitting noses and branding offenders like cattle with letters: "B" for burglar, "T" for thief, "A" for adultery and if a person stole a hog he earned an "H."
Unmarried mothers were whipped at the post. Women who "talked back to their husbands" were strapped in a chair at the end of a pole and swung out over a pond and "dunked." Men apparently were exempt from these indignities.
Those that were convicted of murder or witchcraft were hung or pressed to death (tied down with heavy rocks loaded upon them until they suffocated).
Ironically if any person inflicted these cruelties upon another that person would be charged with crimes, but when authorities hide behind the word "government" the same acts become "corrections."
Most people are surprised to learn that cell block prisons as we know them today are an American invention. The first prison in the world with the purpose of rehabilitating criminals was built in Philadelphia in 1790. (Europeans had dungeons and torture chambers but those were not to rehabilitate).
The theory at the time was to build a separate cell for each offender and place a Bible in it; after a certain prescribed "self-examination" time, the criminal would (theoretically) repent. Thus, the word "penitentiary" was born.
Well, it didn't work then and it doesn't work now, but authorities discovered that keeping criminals separate made a day's work much easier for gate keepers. The concept caught on and spread throughout the world. So here we are more than 200 years later caught up in a myth of our own creation.
Colonial debtors' prisons didn't work well either because they were counterproductive. If the debtor was locked up he couldn't work to pay his bill; and the creditor had to pay for the keep (it wasn't the King's problem), which meant throwing good money after bad.
Except for criminologists and crime researchers who know better, most people still believe prisons and jails actually rehabilitate criminals.
We keep building more jails and prisons in reliance upon this myth. Most criminals don't like being locked up either, and desperately try to avoid arrest, but they react differently to incarceration than normal people do, for reasons we are now just beginning to understand.
We know by conclusive research that locking up offenders makes most of them worse. (They reinforce each other's wrongheaded thinking.) We know locking up chemically dependent people does nothing to alter their addictions.
Imposing our will upon people who are mentally unable to comply sets them up to lose, only to be punished again; which in turn sets them up to lose again and again.
When medical doctors make patients worse it's called malpractice and they are often sued; when judges, prosecutors, jail building county commissioners and prison building legislators make criminals worse ... it's called campaigning for their next election.
It buys votes, but not public safety.
Too strong a statement? Not if we follow the research. The National Institute of Corrections' studies indicate jails and prisons have a negative rehabilitation success rate while treatment and cognitive programs have a positive success rate, yet we continue to spend money on what doesn't work and ignore what does work.
Punishing, torturing, degrading, rescuing, bailing out or giving offenders love and affection all fail because it doesn't change offenders' erroneous beliefs as to how normal society must function.
We must lock up dangerous offenders we fear, but change those that irritate and anger us; we must stop building more jails and prisons (we have enough) and build responsibility centers to control, normalize, re-educate and civilize chronic offenders.
Judges don't change the criminal mind, people have to change themselves. We now know how to identify and show them the roadmap, but they must walk the walk.
It's encouraging to note in recent months the Winona County Attorney's Office has begun to point in this positive direction rather then being part of the problem.
Challeen is a retired Minnesota judge and lives in Winona County.
Parts of his columns are excerpts from his book "Swamp Water Jurisprudence" available online at amazon.com and Kindle.
There is an old saying in criminal justice circles, that we can no more rehabilitate a criminal in a prison than we can rehabilitate a drunk in a tavern. The place is not conducive to positive thinking.
Would any sane person even consider holding Alcohol Anonymous meetings in a neighborhood bar?
I wish I had a dollar for every time I’ve heard “jails may not fix chronic offenders, but it takes them off the streets and makes us safer.” And I wish I had another dollar for every time I’ve explained that such a statement may seem logical at first glance but with a few additional facts, the opposite is true — we are less safe.
Those of us older folks remember sausage grinders. As a child, I watched my folks make sausage. Sausage meat was put in the top of the grinder, and the crank augured the meat through and out came sausage on the other side. Sausage in and sausage out.
The computer age is more familiar with “garbage in and garbage out.”
When we take criminals off our streets and lock them up we assume they will “learn their lessons” and live more responsibly when released.
It doesn’t work that way.
With jails and prisons crowded to or over capacity (because chronic losers keep reoffending) the “sausage principle applies.”
On any given day, a loser goes in the front door and another loser goes out the back door. Nothing changed; we are no safer, just another loser back on the street thinking he will be smarter and won’t get caught next time.
The “sausage” gets rotten, not better.
It’s not difficult to understand why.
We collect society’s misfits under one roof where they spend all their waking hours educating each others on how to become better criminals. They learn how to graduate from petty theft to credit card fraud, identity theft, forgery, counterfeiting, hijacking trucks, Internet scams and other lucrative illegal schemes with a much higher degree of success. Then toss in some meanness, violence, cruelty and indifference to sensitivity of others, and out walks a nasty human being.
So why is it we believe so much in jails and prisons?
Revenge and retribution is a strong human emotion, and it gives us momentary satisfaction to see someone hurt who has hurt others. But we Americans overdo it when we compare the length of our prison terms with the rest of the world.
Penalties are fine as long as they are constructive, but our penalties are destructive by making these inmates more useless, violent and alienated.
Consider this: Martha Stewart went to prison for a white-collar crime.
Do you think for a minute she will re-offend? How about the Watergate criminals? Or the savings-and-loan offenders who all served time and were never heard from again? There are all kinds of similar illustrations locally and nationally.
Does this prove jails and prisons work?
The difference is clear.
They were achievers, usually law-abiding responsible people before they let greed get the best of them. Their crimes were out of character. Upon release they immediately returned to their former responsible selves. And you can bet your last dollar they didn’t sit around discussing how to become a better crook.
They differ greatly from the never-learned how to be responsible; nonachieving losers crowd our local jails and prisons — where the worst poison the minds of the young and naïve.
So when we hear politicians say they’ll make us safer by getting offenders off the streets and into traditional jails and prisons, they are doing us no favors.
The answer lies in making incarceration a positive learning experience rather than the negative learning experience that now exists.
Chronic offenders have obvious character flaws that must be addressed: Failure to understand how normal responsible people think and why society doesn’t put up with their kind of irresponsibility. Most lack employable skills and work ethic.
On top of these flaws, the majority are chemically dependent and more often than not, slightly- to severely-mentally ill or retarded.
All these problems can be addressed locally in our community while they are under our control. The know-how exists; the trained personnel and facilities exist. What is lacking is our will to abandon old counter productive ways of thinking that never worked.
The county attorney-elect has 20 years experience with these types of offenders.
She will need our support.
Dennis Challeen is a retired Minnesota judge and lives in Winona County. Parts of his columns are excerpts from his book, “Swamp Water Jurisprudence” available at amazon.com.
No one can convincingly explain why national crime rates have steadily declined over the past two decades.
Time magazine on Feb. 22 discussed some of the better-known theories.
Politicians want to take credit for this unexpected phenomenon but cannot convince criminologists that any one factor is the cause. Criminologists warn us the study of crime is counterintuitive - the research often defies what we think makes "common sense."
America has the highest per capita prison rate in the world. More than 2 million Americans are locked up and off the streets. Common sense would tell us locked up criminals can't commit crimes (except on each other). This seems to be logical; however, when we compare prison to crime rates in each state, there seems to be no relationship to back up this theory.
Some criminologists contend the data seems to support the opposite conclusion.
Southern states with high incarceration rates also have high crime rates while northern states with lower incarceration rates have lower crime rates. States with death penalties also have higher homicide rates. Does one fact cause the other? Do prisons unintentionally cause more crime?
Some would claim southern states just choose to spend more money on prisons. Unless northern criminals gravitate toward warmer climates and get more violent on the way, there doesn't seem to be any simple explanation.
Prison graduates have an extremely high recidivism rate. Within three years after release, seven out of 10 inmates are back in prison; and that doesn't take into consideration the many ex-convicts who commit crimes and are never caught.
Thus, a new inmate goes in the prison front door and an older one leaves out the back door soon to be re-arrested and back through the front door again: a continuous cycle.
Unless we keep building more costly prisons and expand the number of inmates, it's "sausage in and same sausage out." Nothing changes for society's safety.
Most experts say we must address the causes of crime, not focus on the results.
There have been claims that police work and more sophisticated criminal apprehension methods are to be credited for the decline.
Increases or decreases in arrests are a poor measure of crime rates. The number of criminals does not equal the number of crimes.
One local burglar, for example, can do a rash of burglaries and never get caught. But if that same person is arrested and convicted, local crime rates will be affected. Unfortunately, most crimes go unsolved (see FBI crime clearance rates).
Demographers (those who study population changes) cite the fact that our general population has grown older, with fewer young people in the crime age (roughly 17 to 30).
This undoubtedly is a factor.
We have known statistically that many criminals burn out upon reaching age 30 to 35. Some experts claim even though prisons don't rehabilitate, criminals should be held till they reach the burn-out age.
The counter-argument is that prisons are colleges of criminal knowledge and those who don't burn out become professional criminals and more dangerous.
Juvenile crime rates are also down, and it may indicate more young people are, for whatever reason, not attracted to crime. Illegal drugs have always been interwoven with crime. We now have a generation of young people who have witnessed or experienced the human destruction street drugs cause.
We all know from experience that being lectured is never as effective as seeing with our own eyes. This may also explain why teenage pregnancy has declined.
Gun-rights advocates maintain when citizens are armed it acts as a deterrent to crime.
This sounds logical until we compare countries. Australia, New Zealand, Britain, Canada and Japan have strict gun-control laws and low homicide rates; however, Switzerland and Israel also have low homicide rates with few restrictions on gun ownership, including automatic rifles.
Criminologists would argue it's the culture of the country, not the number of guns, that affects crime rates.
Time magazine mentions one renegade economist "has speculated that legalized abortion caused the drop in crime. (Fewer unwanted babies in the 1970s and '80s grew up to be thugs in the 1990s and beyond)." The problem is this theory presumes unwanted babies will become criminals and not great leaders, scientists or contributors to a better world.
As you can see, criminology is a controversial subject that doesn't always follow "common sense." But then, criminals are neither normal nor known for their "common sense."
Challeen is a retired Minnesota judge and lives in Winona. His book, "Swampwater Jurisprudence," is available at amazon.com.
Every farmer knows a wise person never eats the seed corn because there’ll be no crop to sow next spring.
Yet, I’ve often seen divorce cases where foolish parents engage in bitter contested custody fights that exhaust all the family’s funds. The result: Their children never get a college education, but the lawyers’ children do.
It should come as no surprise that most judges dislike hearing divorce cases because there are no winners. The judges find themselves looking for the least lousy solution to a lousy problem.
Some people can adjust and rationally work out their problems as life moves on; others fight over every inevitable development. I often thought, “Why can’t these people work out their problems and settle them instead of leaving it to a judge, a total stranger in a black robe, to dictate their family’s future?”
I once had to decide who was awarded a worthless souvenir ash tray. The “rummage sale divorce case from hell” as some judges often call it. Some observations (often true, but not always) after hearing hundreds of divorce cases:
- Marriages begin with great expectations; yet we know statistically almost half will fail. When marriages fail, the spouses tend to exaggerate the other’s role in the failure and diminish their own.
- A spouse who brings a divorce action for the purpose of shaping up the other spouse is usually doomed for failure.
- The children who never had any say as to their parents’ mismatch usually end up being the victims. Children being caught in the middle soon learn to play both parents against the other; and the parent with custody has to set and enforce the rules; the other absent parent gets to play “Disneyland Daddy or Mommy.”
- Newly divorced men and women often suffer the “divorce rebound” and remarry too quickly. Those who endured domestic abuse are often attracted to and marry persons with the same abusive personalities as their former spouses.
- People entering second or later-in-life marriages should always consult an attorney and consider pre-nuptial agreements. That stepson you can’t stand could end up with half your estate.
When it comes to determining guilt or innocence, our adversary system serves us well. We can take a “snapshot” of a criminal act, analyze it in detail, and allow a judge or commonsense jury to make a final decision. The system works on event or episode crimes (like murder, assault, robbery) or civil money damage cases (like accidents, injuries and other unfortunate single events).
The system bogs down when we try to apply the same procedure to ongoing relationships. Examples are divorces with children involved, neighborhood disputes, conflicts in the workplace, ongoing care of our elderly, dealing with rebellious juveniles, conflicts in schools, mental illness, drug addiction, children in dysfunctional homes, harassment and domestic abuse. All are ongoing relationships that can’t be fairly analyzed because the events are continuous living “movies” rather than a “snapshot” freezing a moment in time.
Divorces don’t fit well in the adversary system; it polarizes the spouses, creates anger and often drags children into the controversy. Worse yet, long drawn out court procedures cost both parties financially. Neither party can plan for their future and move on with their lives without some resolution.
Yet, lawmakers keep trying to fit these problems into the traditional adversary system. The result: We clog our courts with complex emotional ongoing cases that have no simple solutions. A decision today may quickly become obsolete tomorrow as the participants’ lives change; unforeseen events intervene, and sometimes the court’s decision becomes so unworkable neither party to the controversy can live with the result.
Our justice system has more cases than it can handle using traditional adversary methods of procedure. Legislatures facing money crunches must add more judges or turn divorce cases over to on-going family court referees, mediators or arbitrators.
What we have now is neither fair nor efficient to the judges or the people they serve.
Challeen is a retired judge and lives in Winona.
Fads, rumors, witches and other nonsense
Every generation of young people rebel against the adult world in some form or other. Our ancestors ate goldfish, wore raccoon coats, danced the Charleston, created music like jazz and rock 'n' roll, wore their hair long, in crew cuts, bouffant, pompadours and wore clothes of all kinds that generally irritated their parents and the older generation. It's only natural for the teenage mind to be a mysterious place where they want to be different from those boring old un-cool adults.
Us older folks often forget the folly of our youth and now, being wiser, we wonder:
-- Why is it you can tell some teenagers that smoking will ruin their health and shorten their lives ... but many don't believe it.
--That dropping out of school will reduce their opportunity to earn income for the rest of their lives ... but many don't believe it.
-- That teenage pregnancy can be a disaster for the mother, the father and the child ... but many don't believe it.
-- That driving an automobile foolishly could kill them or raise their insurance rates out of sight ... but many don't believe it.
-- That tattooing and body piercing is often permanent ... but many don't believe it.
-- That drugs and alcohol can be addictive and some street drugs can alter their brains permanently ... but many don't believe it.
-- That popular fads have and always will fade away and be laughed at in retrospect ... but many don't believe it.
But if someone tells them the judge, the mayor, the county attorney, the bishop, a doctor, the coach and the superintendent of schools are all in a drug-selling ring together, many believe it without hesitation!
Some may remember a couple of decades ago this actually happened here. The drug ring rumor spread like wild fire. Not only teenagers but some of their parents and adults who should have known better joined in the nonsense. They knew it was true, someone heard it on TV, the radio and the FBI were investigating and a lot of "big shots" were going to prison. It took an editorial in the Daily News to finally tell these foolish rumor mongers there was no truth to any of these silly stories.
It's human nature to believe what we want to believe and ignore what we don't want to believe. Most of the time it's harmless, but it also can be cruel and deadly.
In 1692, some teenage girls were given serious attention when they went into trances and accused dozens of adults
in Salem, Mass., of being witches. My great-great-
(add eight more greats)
grandmother, Sarah Towne Cloyce, and her sisters,
Rebecca and Mary, were tried and convicted of witchcraft. Her sisters were hanged, but Sarah fought back against the clergy and the judges and escaped from jail. Following the biblical command "thou shall not suffer a witch to live," 21 men and women were hanged before it was decided the teenagers made up this nonsense and the deadly mass frenzy stopped.
In 1985, PBS produced a video titled "Three Sovereigns for Sarah," a factual and historically correct story of my ancestor's life. No one has been convicted of witchcraft in America since. One of the judges, Samuel Sewall, who sent these "witches" and "warlocks" to their deaths, realized his mistakes, repented, went before his church and asked to be forgiven for the part he played in this terrible tragedy. He then, as self-imposed penance, dedicated the rest of his life to fighting slavery, and promoting Indian rights and women's equality.
I'm proud to be Sarah's descendant, convicted witch or not. Judge Sewall learned the hard way ... when you believe in the death penalty, there is no room for error. Twenty-one innocent people died because of human folly.
Dennis Challeen is a retired judge who practiced law in Winona and served on the bench at the Winona County Courthouse. This column is excerpted in part from his book "Swampwater Jurisprudence," which is available online at amazon.com.
