Are we watching? Do we care? - by Judge Jim Gray

In the April 18 edition of Newsweek, columnist Philip K. Howard published a "Dear Congress" letter setting forth several national policies that are broken, and demanding that they be addressed and fixed. This is similar to the open letter that was published in this space on April 3 that "gently but firmly" demanded strong leadership from Rep. John Campbell to address and resolve the problems with illegal immigration.

As a practical matter, with all of the political polarization and other problems facing our great country, mostly there is no one left but "We the People" to take action. Are we watching? Do we care? If so, we need to persuade our public leaders that getting and staying elected is not the same thing as governing.

In addition to illegal immigration, some of those areas that must be addressed are sunset provisions for all federal agencies, the reduction of the welfare system for both the poor and the wealthy, requiring new public employees to invest in 401(k) programs for their retirement, just like workers in the private sector, and the failed and hopeless policy of drug prohibition. All of these have an enormous negative impact upon our federal budget deficit, and there appears to be no good faith effort by Congress even to address, much less resolve them.

Two additional areas that simply must be addressed are the entitlements of Social Security and Medicare. Painful as it could be, we must understand that if Congress had indexed the retirement age of 65 to increases of life expectancy when it implemented these programs in 1935, people would not be eligible today for these entitlements until they reached their middle 70s. So since the national government simply cannot remain solvent by paying entitlements at this rate, we simply must increase the ages of eligibility.

But when addressing our budget deficits, there remains a huge issue that is almost never even mentioned that will go a long way in helping us regain fiscal solvency, and that is the federal ownership of land. Most people do not realize this, but today the federal government owns about 650 million acres of land, almost 30% of our country! This property is held as national parks, national forests, national wildlife refuges, Indian reservations and military reservations, and for the good of the country's economic health, this landowning should be reassessed.

Of course, no one is proposing to sell Yellowstone, Yosemite or any of our other national treasures or military reservations that are necessary for our security. But the federal government also owns huge tracts of forests, deserts, meadows, mountains and shore lands. It would be better for everyone if that ownership were significantly reduced. (And if it is Native American land, give it back to them and let them run it!)

What would happen if some of this land were to be sold to the private sector? In addition to the monies received from the sales, the privately held land would also generate property, sales and income taxes, all of which would reduce the government's financial deficits.

But the benefits would be much more than financial. Not only is the federal government the largest polluter of land in the country, it virtually never manages property nearly as well as people do in the private sector. Why? Today the Bureau of Land Management, for example, leases out public grazing lands at artificially low rates to politically powerful people, who, in turn, have no incentive to keep from overgrazing it.

Put yourself in their place. If you had a lease to graze your cattle on government land for five years, you would want to maximize your short-term revenues as much as you could, without consideration of what it might do to the land. So you would tend to overgraze it. But if you were the owner, you would have incentives to husband the land, because if you didn't, it would decrease in utility and value.

As another example, in England many trout streams have been privatized, which means that, among other things, the owners can sue anyone who pollutes them upstream. As a result, the property is carefully husbanded, because a clean, beautiful and natural stream full of trout is more valuable for bringing in visitors and people who fish than one that is less so. Other examples are abundant, particularly in Africa with their wild animals.

That is not at all to say that the government should not have laws regarding things like pollution. The biggest example of that would be drilling for oil. It should mostly be allowed, but anyone drilling anywhere should first be required to post a significant bond with a financially strong and stable company that will be forced to pay for the cleanup and other ramifications of every drop of oil that is spilled. That way the bonding company will rigorously supervise all of the drilling, because its own money would be at stake.

So there is a better way. Are we watching? Do we care? If so, please join me in writing a letter to your member of Congress demanding that he or she take steps that will actually fix these problems. As we have said before, it is our government, and if it isn't working, it is nobody's fault but our own.

JAMES P. GRAY is a retired judge of the Orange County Superior Court, the author of "Wearing the Robe: the Art and Responsibility of Judging in Today's Courts" (Square One Publishers, 2010), Why Our Drug Laws Have Failed and What We Can Do About It, A Voter's Handbook, Effective Solutions To America's Problems and can be reached at jimpgray@sbcglobal.net or http://www.judgejimgray.com. Judge Jim Gray is also currently offering his 25 years of experience on the bench to ADR Services in Orange County for Arbitration and Mediation services.

Interpreting the 14th Amendment - by Judge Jim Gray

Why are Arizona and an increasingly large number of other states taking their own action regarding illegal immigration? It results from the frustration of the federal government's inactivity. As was discussed in this column from July 22, 2007, Congress could resolve this problem fairly easily and quickly if it wanted to, but the reality is that it has no such desire.

Why? Because many powerful Republicans want continued access to cheap labor, and many powerful Democrats want people to continue to come here illegally with the hope that eventually they will vote for Democrats. In the meantime, countless numbers of good people are being seriously injured.

Thus, I never get mad at illegal immigrants. They are simply doing what the system so strongly encourages them to do, which is to pursue a better life for themselves and their children. Of course, this is why our ancestors came here as well!

Besides, it is often dangerous and expensive now to come into this country illegally, so there is a strong self-selection process that usually excludes all but the most hearty and dedicated. So mostly I admire them.

The solution is a simple three-step process.

First, we decide how many people we need to enter our country to perform different types of labor and how long they should stay.

Second, we issue counterfeit-proof identification cards, probably based upon fingerprints or cornea images to people from other countries who legally apply for those positions.

Third, anyone who employs workers who do not have a passport or this card would be prosecuted.

The cards would allow people to come into our country and work for a prescribed period of time, and then require them to leave. The migrant workers would have reduced benefits and tax obligations while they were here, and probably could not bring their families.

But within the specified time they could cross the border without a problem, and could have driver's licenses and access to our courts because they would be here legally. Of course, people who did not have this card would increasingly find it difficult to secure or maintain a job, so they would soon be inclined to go elsewhere.

Our present, untenable situation is also being allowed to continue because, although it has all the power, the federal government doesn't have to pay for the costs of illegal immigration. Thus, it has no particular incentive to do anything about it.

Instead, most of the costs are paid by state and local governments, and the school systems. So the incentives to resolve the problems will only be present when the federal government is required to pay for things such as the health care, education and incarceration of illegal immigrants.

Arizona is attempting to enforce the federal immigration laws. Not only is there nothing wrong with that, Arizona should be applauded for doing so! Furthermore, if the federal government does not agree with Arizona's actions, it has the absolute ability to stop them cold.

How? Simply change the federal law.

And then there is the question about whether the 14th Amendment should confer automatic citizenship upon all babies born within our borders. The applicable language cited for that result is: "All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States … "

Up until now, this provision has been interpreted to stand for automatic citizenship. But the interpretation should be re-examined.

As you will recall from your history classes, the 14th Amendment was passed in July 1868 after the Civil War, and intended to confer citizenship upon former slaves. But the framers of the amendment simply could not stop with the words "all persons," because when the Constitution was ratified, slaves were officially recognized only to be 3/5 of a person. Thus, additional language was needed to address those people.

Nevertheless, if the framers were here today and asked whether that amendment would confer automatic citizenship upon a baby who, for example, was on an airplane flying from Mexico City to Toronto, but was born while the plane was refueling in St. Louis, they would give you a four-word response, which would be: "What, are you crazy?" And they would also give you the same answer if asked about children born in our country to parents who were here illegally.

Then, after pondering the situation a bit further, the framers would say: "Wait a minute, we already addressed these issues in the amendment itself by inserting the clause 'subject to the jurisdiction thereof.' If we had meant literally anyone born here would become a citizen, we would have left that clause out!"

And that is the answer. If a citizen of Japan is arrested here while on vacation, he doesn't call our embassy; he calls the Japanese embassy because he is still subject to the jurisdiction of Japan even though his physical presence is here. Thus the 14th Amendment does not need to be amended, just correctly interpreted.

Re-interpretation is certainly not something to be done lightly, but it has happened before. For example, in Brown v. Board of Education in 1954, the U.S. Supreme Court reversed the 1896 precedent of Plessy v. Ferguson by holding that "separate but equal" public schools were not equal and were therefore unconstitutional. In a similar fashion the Supreme Court should re-examine the 14th Amendment.

Finally, only after we regain control of our borders by implementing this new program and interpretation should we address the truly emotional issues of "amnesty." There truly are some special equitable considerations that must be taken into account for people who have been in this country for so long that they really have no other country to which to return. So special allowances should be made for those people.

But first things first.

JAMES P. GRAY is a retired judge of the Orange County Superior Court, the author of "Wearing the Robe: the Art and Responsibility of Judging in Today's Courts" (Square One Publishers, 2010), Why Our Drug Laws Have Failed and What We Can Do About It, A Voter's Handbook, Effective Solutions To America's Problems and can be reached at jimpgray@sbcglobal.net or http://www.judgejimgray.com. Judge Jim Gray is also currently offering his 25 years of experience on the bench to ADR Services in Orange County for Arbitration and Mediation services.

“ARE WE HAVING A DISCUSSION?” by Judge Jim Gray

 “ARE WE HAVING A DISCUSSION?” by Judge Jim Gray 01/27/08


  I am not a fan of politics. Often politicians engage in appeals to our fears and other emotions and our more base instincts. But I am a fan of addressing the issues of our day. So on two occasions in the last eleven years I took an unpaid leave of absence from my duties as a trial judge and ran for partisan offices. The first time was as a Republican running for Congress against Bob Dornan and Loretta Sanchez, and the second was as a Libertarian running for U.S. Senate against Bill Jones and Barbara Boxer. The first time I ran to win; the second I was so concerned about the direction our country was headed, I ran just to be a part of the discussion about the issues.  


In neither election was I successful in my goals. So now I tell my friends that “I am not a politician, and I have the votes to prove it.”


  Among other things, I learned from my experiences that most people do not really involve themselves in the election process. I also learned that money is much too important in that process, and, of course, most of the money is provided by special interests. And they want something in return for their “investment.” I also learned that in politics, reality is completely irrelevant – it is only the voters’ perception of reality that matters.  


  But I still continue to have a desire to discuss issues. So I approached the editors of this newspaper and volunteered to write a weekly column for a year to discuss different problems, and propose resolutions to them. They agreed, and now we are half-way through the year – this is the 26th edition of our weekly column.  


  So how are we doing? The response and feedback to the columns have been okay, but not overwhelming. I certainly do not have all of the answers, but I have thought quite a bit about these various subjects, and want to stimulate others to think about them as well. Because when it comes down to it, simply voting is not a victory. What we need is people who are voting after familiarizing themselves with the issues. So are we having a discussion?  


The two columns that generated the most responses were my recommendation that we convert to the Metric System, and that the 11-99 Foundation that supports dependents for fallen CHP officers eliminate the practice of providing license plate frames and wallet identification cards to its donors, with the implication that the donors will be given favorable treatment from the CHP on traffic citations.


Concerning the Metric System, most people were in favor, except one person who saw it as a conspiracy to take away our individuality. Representative comments were that “Are Americans too ignorant or lazy to embrace new ideas? I say let’s get on with it,” and “The success of the US is often to be found in its willingness to upgrade existing conditions.” One person even recommended we go “hard metric” right away, that is not to have a transition period, because it would be less expensive. One even (humorously?) recommended we also utilize a ten-hour clock. But I was also gently chastised by one reader who said that the “term ‘centigrade’ has been obsolete for almost 60 years. The official term is ‘Celsius.’” (That means that I have been in error about this since I was three years old.)


The 11-99 Foundation column received some of the expected responses, such as “Shame on this judge for writing such an editorial without a shred of evidence proving any kind of favoritism,” and telling me to “get your facts straight before insulting all CHP officers.” There were others from current or retired CHP officers who wrote in support, such as one that said “I wrote tickets to several drivers racing one time together with their Lambo’s with 11-99 license plate frames and badges, and the corrupt leadership at my office had all of them voided.”  


One of those officers was unintentionally supportive when he said “The 11-99 Foundation frowns upon its donors from seeking favoritism. I have seen them revoke membership from individuals who recklessly use this charities’ good intentions just to avoid a citation. Does it ever happen? Sure. Is it a guaranty? No.” Another officer provided the sobering comment that “I have stopped a number of judges and every single one made it a point to tell me they were a judge.” (I am forwarding that comment on to the California Judges Association for its information and possible action.)


There was even a local police officer that discussed the law of unintended consequences when he said that he and some of his fellow officers did not particularly like the CHP, so sometimes they tended to give more citations to cars that had the 11-99 Foundation license plate frames.  


This last comment from a current CHP officer closely matches my own experience: “On almost all of my traffic stops I was looking for a reason to not give a citation. It’s amazing how often people made this difficult. (But) I do think the license plate frames are a little much and should be discontinued.”


Finally, I sent a personal letter to Commissioner Mike Brown of the CHP, along with a copy of my original column and requested his thoughts. So far there has been no response of any kind, which, unfortunately, says more than he would probably want. But I will give him another chance to defend the practice by sending him a copy of today’s column.


The column about Restorative Justice received comments that can be divided into two categories. The first is from people who see that prisons do not rehabilitate anybody, but some rehabilitative programs actually do work. Some of those people provided first-hand experience. So they agreed with the quote in my column that “We should reserve prison space for people we are afraid of, and not for people we are mad at.” The second group was deeply concerned about having drug rehabilitation facilities in their own neighborhoods. (This is a genuine issue that, in my view, requires a balance. People who have drug problems but are trying to return to mainstream life need to live in mainstream environments. On the other hand, too much can be too much.)


The column about trying to revitalize tourism in the United States similarly drew two types of comments. One group was concise and said things like “It’s the Threat, Stupid!” The other group called the threat of terrorism “baloney,” and told me not to pull my punches. (I never said and I do not feel that the threat from terrorists is not significant. I simply would respond to that threat differently than our government is.) 


Concerning my critique upon the failure of our welfare system and our minimum wage laws, many people said that my “logic was severely flawed,” and that “Everyone should have the right and opportunity to earn a living wage. In reality, such laws are a major positive force in every Western society.” (Not surprisingly because it is such an emotional issue, none of the critics of my suggestions even addressed the fact that every time we raise the minimum wage, lots of people lose their jobs. And that is probably true in every Western society. Nor did they address my conclusion that these programs actually contribute to the increase of poverty, instead of its reduction.) But everyone appreciated my attack on the welfare system for the wealthy.  


The most notable comment about the Happy New Year column about prosperity and choice, which centered upon the federal government relinquishing much of its accumulated power back to local governments and individuals, was “We do have federalism in this country. Local governments do what the feds don’t control.” (That’s the point, it should be the other way around!)


After discussing the increasing problem of childhood obesity, one man suggested we follow the lead of Brazil by planting public areas with fruit and nut trees, which, he said, would provide “a delicious way to fight obesity.” And the column about resolving our nation’s healthcare problem by encouraging Medical Savings Accounts drew the discouraging but accurate comment from a medical doctor that “We are often forced to opt for a less optimal treatment in favor of the insurer’s profit margin.”  


The column about illegal immigration drew numbers of responses like: “Take off your rose-colored glasses. People come here and learn quickly how to get free services and food stamps,” (I agree, but they mostly do come here originally to work.) and “No amnesty. Legal immigrants first!” (I only mentioned that we would discuss amnesty after we installed a system that utilized fool-proof identification cards, which drew this comment:) “You’re not naïve enough to actually believe that a ‘tamper-proof’ ID card is possible, are you?” (Yes, I think it can be done based upon the iris in a person’s eye.)  


In response to the column that government impedes business, one man responded that he agreed that beauticians and barbers should not be required to get a license, but went on to ask “why should lawyers be protected with licenses from the competition of others who want to lawyer?” (I agree, and there is actually a movement in that direction.) The column about citizens’ rights and responsibilities, and the lack of support for our Veterans generated no comments to speak of. That was discouraging.


One response I am sure many of you agreed with was “Shorter please! Be honest, how many of you actually read the judge’s comments?” I acknowledge many of the columns were longer than I originally intended (including this one), but it is difficult to address and give suggestions about how to resolve complex and multifaceted problems in only 800 words. So I appreciate your sticking with me!


In the weeks of the scheduled year that remain, this column will address issues about how we can improve our public schools through competition; that the biggest threat to our national security is our dependence upon foreign oil, and what we can and must do about it; a suggestion to scrap the Internal Revenue Service and instigate either a national sales tax or what is called the FAIR tax; how we should address mental illness; the critical importance of the Separation of Church and State; why we should revitalize the Hemp industry; and numbers of others.  


Throughout this time, I again ask everyone to remember that none of these issues has a “solution.” Life cannot be made to be perfect, and neither are any of my proposals – or anybody else’s. The problems only have “resolutions,” which attempt to do what is best for the maximum number of people, while still protecting minority interests.


The fact remains that this is OUR government. That means that the things that are not going well today are our responsibility. And what we need is leadership. In my view, we still have the Jeffersons, Washingtons, Lincolns and Martin Luther Kings living in our society today. But we must find them and support them.  


Unfortunately, people can be manipulated and misled. I know that is not a popular thing to say, but it is true. That means that we must rely upon our democratic institutions, and upon dedicated and public-spirited leaders, who need our active support and guidance.


So please contemplate these and the other issues of our day, and join our discussion. This can be done either publicly at DailyPilot.com, or privately with me at the e-mail address given below. I will respond to all e-mail messages. Good government begins with our active involvement.

James P. Gray is a Judge of the Superior Court in California, the author of Why Our Drug Laws Have Failed and What We Can Do About It - A Judicial Indictment of the War on Drugs (Temple University Press, 2001) and Wearing The Robe - The Art And Responsibilities of Judging In Today's Courts, has a blog at http://judgejamesgray.blogspot.com/. http://www.judgejimgray.com, and can be contacted at www.judgejimgray.com.

“THE PROBLEM OF ILLEGAL IMMIGRATION” by Judge Jim Gray

  “IT’S A GRAY AREA” (2) - by Judge Jim Gray July 22, 2007

  “THE PROBLEM OF ILLEGAL IMMIGRATION”



  I seldom get angry at illegal immigrants. They are simply doing what our system so strongly encourages them to do, and they almost always come to the United States to seek a better life for themselves and their families — just like our ancestors did. Few people come here to take advantage of us or our welfare system. They come here to work, and they mostly work hard.


  Instead, I reserve my anger for the so-called immigration system. In this I am not alone, because virtually no one stands up for it. The irony is that it would not be at all difficult to install a program that would work, but neither the Republicans nor the Democrats want this to happen. Why not? The reason is money and power. One side mostly wants to take advantage of the cheap labor presented by “undocumented workers,” and the other side wants the votes that soon will come their way from the increased numbers of people that enter our country.


  But in the meantime, many good people are truly suffering and being punished under the status quo. For example, it is quite dangerous and expensive to enter this country illegally, and many workers are exploited by unscrupulous employers once they get here. In addition, we have the unintended consequence that many illegal immigrants would actually go home after several months if only they felt that they could return later without so much danger and expense. So the present system actually keeps them here longer than they would otherwise stay. In addition, of course, our healthcare, educational and criminal justice systems have been deeply overburdened by the large numbers of poor, uneducated and unhealthy people that are here illegally.


  Why do we perpetuate the present failed system? Because the federal government has virtually all of the power, makes all of the rules, and does whatever enforcement that takes place, which is not very much. But the federal government mostly does not have to pay for the costs of illegal immigrants. Most of those costs are paid by the state and local governments, and the school districts.


  What is the resolution? It is fairly straightforward, but it is a three-step process. First, since this failed system will never be changed until the federal government has the incentive to change it, we must require the federal government to pay for the governmental costs of illegal immigrants. Second, we should decide how many people can enter our country to work, and for what period of time they can stay. Then we should create a worker’s program that allows foreign workers to have something like an “Orange Card,” which will allow them to work here legally during a specified period of time. This would be similar to our former “bracero” program, and would be in addition to our present resident alien and naturalization programs. The workers probably could not bring other members of their family with them, would pay reduced taxes on their income, and would receive reduced services for healthcare while they are here. But, since they would be here legally, these workers would be able to obtain driver’s licenses.  


The third important component of this new program would be to utilize strict sanctions for all employers who in any way hire workers who are not documented. Workers who have valid identification could resume a normal life, and travel legally across the borders within the specified framework. Those who do not have proper identification would increasingly have trouble finding work, so soon they would probably go elsewhere.  


Holding people who hire undocumented workers responsible for their illegal acts would be the key, but it can be done. With today’s computer chip technology, we should easily be able to create an identification card that cannot be forged. So there would be no excuse for hiring people who do not have it. And once we have a workable system for identification, we could also exclude permanently from admission to the country those immigrants who persist in violating our laws.  


It is time to do away with our present failed system. Of course, there will still be problems. However these changes will allow us in large measure to regain control of our borders, reduce dangers and injustices for the foreign workers, seriously reduce the burden upon our taxpayers to support such large numbers of people who are here illegally, re-institute and reinforce the rule of law, and begin to return our life to normal. And then only after we have a system in place to control our borders should we address the difficult and emotional problem of who receives “amnesty” and who does not, and how to institute that in relationship to those people who have followed our laws and regulations and have requested to enter our great country through proper channels.

  James P. Gray has been a trial judge in Orange County since 1983, has written books entitled Why Our Drug Laws Have Failed and What We Can Do About It, and Wearing the Robe – The Art and Responsibility of Judging, and composed a musical entitled “Americans All.” http://www.judgejimgray.com

“ESCHEW MEDIOCRITY” - Judge Jim Gray

 IT’S A GRAY AREA (1) - by Judge Jim Gray 07/10/07


  “ESCHEW MEDIOCRITY”


  Are things in our great country really breaking down? Is Yogi Berra accurate when he says that “The future ain’t what it used to be”? In my opinion, the answer to these questions is no. However, at the same time, I believe our country in many ways is off the track, and we must make some fundamental changes in our attitudes and our approaches in order to get it going back in the right direction.


  Of course life is complicated, and many of our problems are complex. Of course we have scarce and finite resources, and many people, flora, fauna and fish are competing for them. And, unfortunately, it is also true that there seldom are any “solutions” for these problems.  


  But there can be “resolutions” to many problems like crime, healthcare, education, illegal immigration, campaign financing, environmental problems, drug use and abuse, our political system, dependence upon foreign oil, and even our tax system. However, now these issues are all bound up in politics, and, as people are becoming increasingly aware, politics and government are almost always simply about money. The doctrine of “sure you can reduce government spending, but just don’t touch my piece of the pie” controls virtually all governmental officials, bureaucracies and lobbyists.


  For the next year we will use this column to discuss and analyze many of today’s problem areas in straightforward terms. We will focus upon some approaches that work, and some that do not, and will discuss the reasons why. We will also make space for your feedback and questions about these approaches, so that together we can hone, fine-tune and put the wheels in motion to promulgate approaches that work.  


  As a trial judge in Orange County since 1983 and a candidate for federal office on two occasions I can tell you from my own experience that approaches that work are virtually always based upon four fundamental pillars: education, treatment and prevention, incentives that encourage people to act in a socially-responsible manner, and individual responsibility. You tell me the problem, and I will show you how these four pillars are a major part of the resolution.


  Things could be so much better in our society today. All too often our schools are failing our children, sick people are not able to find medical treatment, we lead the world in the incarceration of our people, there is no effective immigration system in place, problems with street gangs are increasing, as is fear from terrorism, and governments keep increasing in size and power, while continuing to scrounge for new and larger sources of revenue to take from us taxpayers.  


But there is also much cause for hope. This is our government, and if it is not working, we have no one to blame but ourselves. Each one of us can help us move forward by demanding excellence from our government officials, from our employees, from our children and their teachers, and, most importantly, from ourselves. No one has all of the answers, and that certainly includes me, but if we discuss the issues together openly, fully and honestly, we can really make some serious progress, and begin to give our great country a renewed sense of direction.


  Winston Churchill once commented that democracy is the worst form of government, except for all those other forms that have been tried from time to time. But democracy only works when we ourselves take the pains to make it work. Eschew mediocrity in our world! Set the right example! Demand accountability! Take an interest in the world around you, and help promote approaches that will help our policies and programs to work better! Foster and keep that spirit in the weeks to come as we investigate, discuss and set about to implement approaches that work. It’s going to be an interesting and productive time – and it’s going to be fun! Thank you for joining us.

 

 

 

James P. Gray has been a trial judge in Orange County, California since 1983 - http://www.judgejimgray.com