Education That Serves Society

This is going to be a sensitive topic, but examining uncomfortable truths is sufficiently worthwhile to risk being misunderstood. Recently I watched an address by acting Secretary of Education John B. King, Jr., discussing his priorities for the department. I couldn’t help noticing that it concentrated almost entirely on plans for improving and increasing opportunities for those who are either struggling or are badly served by our current education system. He also spoke about his goals for better integrating the handicapped into mainstream education. These are laudable goals but they seem badly out of balance to me.

Where do good students, and in particular the gifted, fit into these plans? Even given tight funding constraints, shouldn’t our system try to get the most out of all of its students, including high achievers? I believe that education leaders are more interested in raising the minimum level of educational achievement than in raising either the average or maximum levels. They would like to accomplish both, of course, but since resources are limited the former takes strong precedence. I believe that is wrong-headed. Working to the least common denominator stunts the potential for the rest, and society will eventually suffer the consequences. Exclusively “no child left behind” has come to mean “few children achieve their potential.”

154210_600

This is a philosophical issue that spans more than the field of education. It is a natural impulse to seek to aid those who struggle in our society, but not if this means impoverished attention to those upon whom we will eventually depend for improving life for all of us. We should deploy our resources more judiciously for the greater good. I am not arguing for ending our helping hand for the needy, only that it should not be the dominant goal.

When did you last hear an education leader focus on cooperative activities between high schools and local colleges or on deploying more advanced and higher quality AP courses? Some high school students could profitably forgo their senior year, spending time in college or junior college instead, if the needed funds could be diverted from K-12 to scholarships. This is just an example, but such ideas would likely provoke solid opposition from the education establishment.

Decriminalizing Drug Usage

Everyone agrees that our prisons are filled to overcapacity with non-violent drug offenders, the consequence of a well-meaning but flawed drug policy. This also has racial overtones as the majority of incarcerated offenders are people of color, mostly black men. This deprives many underprivileged families of desperately needed husbands and fathers.

The most popular solution is to decriminalize simple drug usage. Try treatment instead. Our war on drugs is an abysmal failure. That is so obvious to anyone except a few ideologues that I don’t think it is worthwhile to argue the point. So let’s at least try something new. In addition to better outcomes for drug offenders, decriminalization would help resolve both prison crowding and over-incarceration of black men. Not incidentally, it would also save a lot of money that could be put to more productive use. We hear this from both sides of the political spectrum and all the way up to the White House itself.

It is too bad that this persuasive analysis is completely wrong! Readily available facts refute its very basis. It is the right prescription for the wrong problem. We can do it – and we should – but it will have negligible impact on overcrowded prisons or mass incarceration of black men. It’s true that our prisons are packed full and it is also true that a disproportionate number of prisoners are black men. But this is not the consequence of mindlessly tossing minor drug offenders in the clink. Let’s look at these facts.

The state prison population accounts for about 87% of the nation’s prisoners. The following chart comes from the most recent report by the Bureau of Justice Statistics, a component of the Office of Justice Programs in the U.S. Department of Justice. It is assigned by law with the task of assembling and disseminating crime statistics to assist policymakers in ensuring that justice is both efficient and evenhanded.

25_4-hm2

Note that drug offenders who were convicted of simple possession comprise only 4% of the total. Even this minuscule percentage overstates the situation because many were plea-bargained down from trafficking charges. Perhaps you point to the 12% who were convicted of trafficking and say that these also are inconsequential offenses. If so, you really need to refresh your understanding of what harm drug trafficking does, especially to vulnerable elements of our society. But even if you persist in this blinkered view, it is clear that the mass of prisoners are neither non-violent nor poor druggies caught up in our criminal justice system. I won’t belabor this point unduly except to note that even these statistics conceal an important fact. The vast majority of all of those incarcerated are multiple offenders with long rap sheets covering many types of offenses.

But what about our federal prison population? Although federal prisons hold only 13% of those incarcerated, drug traffickers do comprise a larger but declining portion, perhaps half in 2014. Many are members of notorious drug gangs. Shall we find ways to release them to prey upon the innocent? Less than 1% were convicted of simple drug possession and, as with the states, many of these were also beneficiaries of plea-bargains from more serious offenses. Even the claims about blacks being the dominant group of drug offenders in federal prisons are mistaken. Hispanics were 48% of drug offenders sentenced in federal court in 2013, blacks were 27%, and whites 22%.

All of this is not to say that there isn’t a problem. But decriminalizing drug possession is not the solution. One of my favorite authors, H.L. Mencken, captured the essence in a New York Evening Mail article in 1917: “There is always a well-known solution to every human problem – neat, plausible, and wrong.” Treatment rather than incarceration would be better for the drug users but that would have little impact on our prison population or the larger issues of crime and race. So by all means, let’s do it but don’t be misled by false hopes that it is some kind of cure-all for other societal ills.

Fixing SCOTUS

Every human institution is flawed in its own special ways. There is no reason why we should expect otherwise. We must constantly be alert for evidence of problems and ways to overcome them. Our political institutions are no exception, although they are notoriously impervious to criticism and resistant to change.

A detail of the West Facade of the U.S. Supreme Court is seen in Washington, Monday, March 7, 2011. The court is taking up a climate change case for the second time in four years. On Tuesday, April 19, the court will hear arguments in the case American Electric Power Co. v. Connecticut, 10-174. The Obama administration is siding with American Electric Power Co. and three other companies in urging the high court to throw out the lawsuit on grounds the Environmental Protection Agency, not a federal court, is the proper authority to make rules about climate change. (AP Photo/J. Scott Applewhite, File)

The Supreme Court of the United States (SCOTUS) actually works quite well for the national benefit, but periodically it goes off track and produces horrendous mistakes. Two that leap to my mind are the decisions in Dred Scott v. Sandford in 1857 and Citizens United v. FEC in 2010 (link). I am sure that everyone has their own horror list, but that is irrelevant to my point, which is that periodically SCOTUS embraces excursions from mainstream commonsense that represent contorted readings of the Constitution.

This leads me to the point of this blog post. I was listening to a panel of very experienced and knowledgeable people who were discussing ways to improve SCOTUS. One panelist in particular had some great ideas. I wish I could give proper attribution but unfortunately I can’t recall his name.

First, do away with all the law clerks! I didn’t initially get the point but then it definitely makes sense and I see how it addresses a tendency of SCOTUS to sometimes veer off course. Note that the justices wouldn’t lose any of the research and information gathering functions now done by the clerks. The Court’s library has a staff that is fully capable of doing this job. However, just as the Library of Congress’ Congressional Reference Service does for Congressmen, the same research and same set of facts would be shared by all justices. As things now stand, individual clerks contaminate their research with preconceived notions and selective research so that the justices aren’t working from a common basis in law.

It is just my suspicion of course, but I think that justices sometimes become encapsulated in a perspective of the Constitution that is rigid and fails to accommodate change. Our prescient founding fathers definitely understood the need for careful change as even cursory review of their writings demonstrates, not to mention their provisions for amendments. The clerks, both by selection and conviction, tend to reinforce this cocooning, to the detriment of reason and just law.

Forcing the justices to actually write their own opinions would act like a form of term limits. As the panelist deftly put it, they could no longer stay in the saddle after they couldn’t mount the horse anymore. This addresses another flaw that even some justices have acknowledged. A life term is probably too long for some. Few retain their mental acuity unimpaired until the Grim Reaper wields his scythe. The original goal was to insulate the justices from petty political actions, but self-determination of capacity has sometimes failed.

A disadvantage of firing all the clerks is that it would eliminate a very useful kind of “post-doc equivalent” for law school grads. However this training would still remain in the chambers of lower court justices.

A second recommendation is to resurrect the old policy of requiring justices to ride the circuits. Until Congress abolished this duty in the Judiciary Act of 1891, justices were required to travel around the judicial districts under their supervision and participate in trials and other judicial affairs. The idea, I think, was that this kept them in touch with the real world, while at the same time preventing their jobs from becoming a part-time avocation. The justices used to hate this, just as children hate summer school, and that is probably why it ceased. Let’s bring it back and force the justices to confront the consequences of their decisions in the real give-and-take of the law. Not incidentally, adding this burden would also contribute to an effective term limit.

Anyway, these are the recommendations I heard. I take no credit for them but they make a lot of sense to me.