Truthout Stories Tue, 30 Aug 2016 11:10:37 -0400 en-gb Debate: Is Recalling Judge Persky a Victory for Sexual Assault Survivors or a Dangerous Precedent?

California lawmakers voted Monday to pass a law requiring prison time for those convicted of sexually assaulting an unconscious victim. This comes after news that California Judge Aaron Persky will no longer hear criminal cases, following outrage over lenient sentences he handed down to sex offenders. Persky became the subject of a recall campaign after he sentenced Stanford University swimmer Brock Turner to a six-month prison term for sexually assaulting an unconscious woman behind a dumpster. Judge Persky said he was concerned a longer prison sentence would have a "severe impact" on Turner. Turner is white, and Judge Persky has since given a harsher sentence to a Latino man who committed a similar crime. Turner is set to be released from Santa Clara jail on Friday, after serving only half of his six-month sentence. More than 1 million people have signed a petition demanding Persky be removed from the bench. But supporters of Judge Persky caution that efforts to recall a jurist based on his use of judicial discretion may have unintended consequences, leading to less care in sentencing and a negative impact on people of color. For more, we host a debate. Michele Landis Dauber is a Stanford law professor who is leading the recall campaign against Aaron Persky. Sajid Khan is a public defender in San Jose, California, who leads the effort in support of Santa Clara County Judge Aaron Persky.

Please check back later for full transcript.

News Tue, 30 Aug 2016 11:08:28 -0400
Why Are We Paying $300 for an EpiPen That Holds Only $1 Worth of Medicine?

In 2007, the wholesale price of the EpiPen in the US was $57. Less than a decade later, the life-saving drug now costs over $300. Each EpiPen reportedly contains only $1 worth of medicine. Mylan has a near monopoly in the US, and the company has seen its profits from the EpiPen alone skyrocket to $1 billion a year. Meanwhile, Mylan CEO Heather Bresch's total compensation has spiked from around $2.5 million in 2007 to almost $19 million today. In response to the price hikes, the consumer advocacy group Public Citizen and its allies will deliver a petition signed by approximately 600,000 people to Mylan's headquarters in Canonsburg, Pennsylvania, today demanding further price cuts. For more, we speak with Peter Maybarduk, director of Public Citizen's Global Access to Medicines Program. And we speak with Ashley Alteman, who runs a website called, where she has just posted an open letter to Mylan CEO Heather Bresch.

Please check back later for full transcript.

News Tue, 30 Aug 2016 11:05:17 -0400
The University of Chicago Guide to Free Speech ]]> Art Tue, 30 Aug 2016 00:00:00 -0400 Maine's Governor Openly Calls for Race War Against People of Color

Calls are mounting for Maine Republican governor Paul LePage to resign after he doubled down Friday on openly racist statements he made by calling for a race war against people of color.

LePage made the remarks during a press conference at which he sought to defend himself against accusations of racism. During those comments, he indicated that people of color are the enemy and should be shot.

"A bad guy is a bad guy," he said. "I don't care what color he is. When you go to war, if you know the enemy, the enemy dresses in red and you dress in blue, you shoot at red… You shoot at the enemy. You try to identify the enemy. And the enemy right now, the overwhelming majority of people coming in are people of color or people of Hispanic origin."

Those remarks followed statements last Wednesday at a town hall meeting in North Berwick, where the governor stated:

Let me tell you this, let me tell you, explain to you: I made the comment that black people are trafficking in our state. Now, ever since I said that comment, I've been collecting every single drug dealer who has been arrested in our state …

I don't ask them to come to Maine and sell their poison, but they come. And I will tell you that 90-plus percent of those pictures in my book, and it's a three-ring binder, are black and Hispanic people from Waterbury, Connecticut, the Bronx and Brooklyn. I didn't make the rules, I'm just telling you what's happening.

Yet LePage's claims are incorrect. Mark Potok, a senior fellow at the Southern Poverty Law Center, which monitors hate groups in the United States, told AlterNet, "On top of everything else, LePage is making a claim that is simply false. The fact is that most drug dealers and consumers in the United States are white."

On Thursday, the Maine ACLU filed a public records request demanding access to the "three-ring binder" LePage referenced.

LePage lashed out in response to public outcry and even objections from some Maine lawmakers. Following a news report that Democratic State Rep. Drew Gattine had criticized the governor's remarks, LePage left a violent rant on the lawmaker's voicemail, saying:

Mr. Gattine, this is Gov. Paul Richard LePage. I would like to talk to you about your comments about my being a racist, you c**ksucker. I want to talk to you. I want you to prove that I'm a racist. I've spent my life helping black people and you little son of a bitch, socialist c**ksucker. You… I need you to… just friggin'. I want you to record this and make it public because I am after you. Thank you.

He appeared to threaten Gattine's life in remarks made later to the Portland Press Herald, in which he declared: "When a snot-nosed little guy from Westbrook calls me a racist, now I'd like him to come up here because, tell you right now, I wish it were 1825. And we would have a duel. That's how angry I am. And I would not put my gun in the air, I guarantee you; I would not be [Alexander] Hamilton. I would point it right between his eyes, because he is a snot-nosed little runt and he has not done a damn thing since he's been in this legislature to help move the state forward."

This is not the first time LePage has made openly racist or violent statements. In January, he blamed the state's opioid epidemic on "guys with the name D-Money, Smoothie, Shifty," who are from New York and Connecticut and "half the time they impregnate a young white girl before they leave." And in 2011, LePage told the Maine NAACP to "kiss my butt."

According to the SPLC's Potok, LePage's latest comments are "par for the course. He has made plain his antipathy to black people. To me, his latest remarks are utterly unsurprising. Are they racist statements? Yes."

Teddy Burrage, a community activist and participant in Black Lives Matter protests who has organized with the Portland, Maine Racial Justice Congress, told AlterNet that LePage is "putting people in danger. It's not just a political gaffe or something that came about because he is unstable. The governor has potentially empowered dangerous people to hurt people of color."

On Saturday night, Democratic leaders in the legislature wrote a letter to their Republican counterparts calling on them to rebuke the governor's statements and press him either to get help or resign. The letter states that LePage "appears to be unfit to hold office at this time."

Burrage cautioned, "It would be easy to say Paul LePage is crazy or unstable, but the reality is that he is a manifestation of the people who put him in office. This is an issue in the governor's office, but it's a larger issue as far as racism being acceptable."

While Donald Trump-style racism may embolden figures like LePage, Burrage emphasized that the Maine governor's racism predates the 2016 presidential election cycle. "It's doesn't feel new to me," said Burrage, "and I am not shocked."

News Tue, 30 Aug 2016 00:00:00 -0400
Donald Trump Doesn't Understand Social Security

Republican presidential candidate Donald Trump has released a new ad that reveals that either he doesn't understand Social Security or he wants to galvanize opposition to Social Security. Either way, his rhetoric undermines our collective security.

In his ad, Trump wrongly attacks immigrants and refugees. Contrary to Trump's claims, unauthorized workers do not receive Social Security. In fact, while they contribute to Social Security through their jobs, they cannot receive Social Security. Undocumented immigrants are not even eligible for means-tested welfare programs like Supplemental Security Income. There is no ambiguity or debate: They are not eligible for Social Security's earned benefits.

Unauthorized workers have billions of dollars in Social Security contributions deducted from their pay checks each year. Social Security's chief actuary estimates that in the last 10 years they have paid more than $100 billion into Social Security. But, under the law, they are not eligible for benefits.

Donald Trump appears to be trying to undermine people's confidence in Social Security. Yet, Social Security is a foundation of economic security for all of us. It pays vital benefits to tens of millions of retirees, people with disabilities and many others, including nearly one in ten American children. Indeed, Social Security is one government program that old and young, Republicans and Democrats, all overwhelmingly support.

President Eisenhower, recognizing Social Security's enormous support, spoke of the "tiny splinter group" that opposes it. He added, "Their number is negligible, and they are stupid." 

Let's ensure that Donald Trump understands Social Security's value and the benefits it offers to all Americans. And let's not allow him and others who oppose our Social Security system to hoodwink the rest of us into believing things about it that just aren't so.

News Tue, 30 Aug 2016 00:00:00 -0400
Illinois Sues Controversial Drug Maker Over Deceptive Marketing Practices

Insys Therapeutics headquarters in Chandler, Ariz., May 12, 2014. Insys has come under fire before for using doctors with troubled histories to promote or consult on its products. (Photo: Samantha Sais / The New York Times)Insys Therapeutics headquarters in Chandler, Arizona, May 12, 2014. Insys has come under fire before for using doctors with troubled histories to promote or consult on its products. (Photo: Samantha Sais / The New York Times)

Illinois' attorney general has filed suit against Insys Therapeutics, accusing the controversial pharmaceutical company of using deceptive marketing practices -- including paying an indicted doctor thousands of dollars for "sham" speaking events -- to sell its signature pain medication.

It's not unusual for drug makers to pay doctors who have histories of misconduct for consulting or speaking about their products. A recent ProPublica analysis found that more than 2,300 doctors with records of discipline in five states had received payments from drug and medical device companies since 2013.

Insys was one of more than 400 companies that made payments to such doctors, but its activities have received far more attention than those of its peers.

According to investigations in several states, Insys' business model relied on funneling substantial payments to the doctors who most frequently prescribed its drugs, even if they had troubling disciplinary records or even criminal histories. These payments were mostly for services related to Subsys, a fentanyl-based medication approved by the FDA to treat patients suffering from cancer pain resistant to other types of opioid drugs.

Insys' activities have been the subject of 2014 and 2015 reports by CNBC and The New York Times. In June 2015, a nurse in Connecticut pleaded guilty to receiving kickbacks in connection to speaking payments she received from Insys while she was the top prescriber of Subsys to Medicaid patients in the state. In February of this year, a sales representative in Alabama pleaded guilty to fraud charges and in April, a district manager and a sales representative pleaded not guilty in New York, all in relation to kickbacks to doctors involved in speaking programs.

The most recent civil suit, filed Thursday by Illinois Attorney General Lisa Madigan in Cook County Circuit Court, seeks to impose financial penalties and bar the company from selling its products in the state. Madigan contends Insys routinely marketed the drug for off-label uses, including treatment for chronic migraines. Rather than forging relationships with doctors who treated cancer patients, "Insys instead directed its promotion and marketing in Illinois to high-volume opioid prescribers who are not oncologists or pain specialists who treat cancer," the lawsuit says. An Insys spokesperson did not return a call for comment.

The company's highest volume prescriber was Dr. Paul Madison, who prescribed 58 percent of Subsys prescriptions in the state despite treating "few, if any, cancer patients." Madison was indicted in December 2012 on federal false claims charges for billing insurers for non-existent procedures. Insys sales representatives were aware of this indictment, and were also aware of Madison's troubling prescribing habits, the lawsuit alleges.

The lawsuit says that in an August 2012 email sent to the company's then CEO, Michael Babich, a sales representative said Madison ran "a very shady pill mill and only accepts cash," and that he "basically just shows up to sign his name on the prescription pad, if he shows up at all." That October, the same representative sent another email saying Madison had "called me personally" to say his office was "really under the eye of the DEA, and that he planned on getting patients started on Subsys in Indiana."

Babich, unconcerned, replied he was "very confident that Dr. Madison will be your 'go to physician.' Stick with him." Under pressure over negative publicity and growing numbers of investigations, Babich stepped down in November 2015.

Insys paid Madison more than $87,000 for speaking, travel and food from 2013 through 2015. Madison could not be reached for comment.

The lawsuit alleges the speaking events "functioned more as social gatherings," and physicians in attendance hardly mentioned the drug at all, instead ordering as much food and drink as they liked. Most events referenced by the lawsuit took place in an upscale restaurant in Chicago. Madison's speeches were titled, "Advancements in the Treatment of Breakthrough Pain in Cancer Patients," despite his almost complete lack of experience treating cancer patients.

Beyond Madison, Insys had financial ties to an array of doctors with troubling records. ProPublica's analysis -- which included payments for things like speaking, consulting, travel, education and gifts, but excluded those for meals -- found the company had paid Florida physician Paul Wand more than $93,000 since 2013 for services related to Subsys. In 2010, the Florida Board of Medicine filed an administrative complaint against Wand after a review of his records found he was "inappropriately and excessively" prescribing controlled substances to patients "without medical justification." Earlier this year, he reached a settlement with the board under which he gave up his authority to prescribe controlled substances.

Insys has also paid Texas physician Fernando Avila $170,000 since 2013. Avila has had multiple disciplinary issues, dating as far back as 2003. In 2009, he was found to have improperly prescribed pain medication, and in 2011 he was disciplined after a patient was left with brain damage from a procedure in which Avila improperly administered anesthesia.

Neither Wand nor Avila responded to messages left at their offices.

The New York Times also found Insys had made large payments to a Michigan neurologist who was charged criminally for defrauding Medicare and a Rhode Island psychiatrist sanctioned by his state medical board. Both were accused of inappropriately prescribing Subsys.

News Tue, 30 Aug 2016 00:00:00 -0400
Why School Is a "Confusing Mental Mish-Mash" for Kids

The federal and state education reform initiatives kicked off about a quarter-century ago by the No Child Left Behind legislation assume the following: that the institution itself is basically sound, that teachers bear major blame for poor school performance, that the Common Core State Standards tell teachers what to say and kids what to remember, that bringing market forces to bear will make them do it, and that high-stakes tests monitor what's important.

Those six assumptions shape American education policy, and they're all false. Today's reform initiative began with a wrong diagnosis of what ails the institution and, by its own measure -- standardized testing -- the initiative has failed. By all other measures, the initiative hasn't just failed, it has been an institution-destroying catastrophe.

Responding to public protest, Congress recently went through the motions of loosening its grip on schooling. But not understanding the problem, it refused to abandon the sixth assumption, that standardized tests measure what's important.

They don't because they can't.

Here's why

Consider, please, this paragraph:

We want a pair of socks. Those available are knitted in Third World countries. Power to run the knitting machines is supplied by burning fossil fuels. Burning fossil fuels contributes to global warming. Global warming alters weather patterns. Altered weather patterns trigger environmental catastrophes. Environmental catastrophes destroy infrastructure. Money spent for infrastructure replacement isn't available for health care. Declines in the quality of health care affect mortality rates.

Buying socks is a matter of life and death.  Whether or not you think buying socks and mortality rates are connected; study the paragraph. It contains nine statements of fact -- the kind of information kids are expected to remember long enough to pass tests.

But isolate the nine statements of fact from each other, or change the order in which they appear, and sense changes to nonsense. What makes the paragraph make sense aren't facts but relationships, relationships between and among aspects of reality.

Learners discover and deepen their understanding of such relationships by inferring, imagining, hypothesizing, predicting, sequencing, extrapolating, valuing, generalizing, and so on -- thought processes too complex and interwoven to be evaluated by standardized tests.  

Billions of dollars, trillions of hours, and intellectual potential beyond measure, are being wasted on tests that can't measure complex thought.

Blame the core curriculum. Think I'm wrong? The core is fundamentally flawed.

What's Happening?

The core curriculum has major problems. The core subjects are important, but they're being dumped on kids many years too soon. Their number, specialized vocabularies, differing conceptual organizers, varying levels of abstractness, and their disconnectedness from each other and from life as kids live it, create a confusing mental mish-mash.

The ridiculous rate at which law and custom require the core courses to be "covered" adds to the confusion. Under enormous pressure, kids store enough information in short-term memory to make their elders think they've learned, but they've no intention of remembering it, and don't.

In matters of the mind, kids are expected to run before they've crawled or walked, and the Common Core State Standards make the mish-mash, information overload problem much worse. Specialized studies -- which the core subjects are -- should be offered no earlier than high school.

Crawling, Walking

The solution to the problem could hardly be simpler. We're born "pre-wired" to make sense. Whatever we're thinking about we locate in space and time, identify participants, describe action, and assume or attribute cause for the action. In simpler language, when we think about something, we seek -- in sufficient detail to adequately communicate -- answers to five questions: Who? What? When? Where? Why?

Those are our primary information organizers. School subjects are secondary organizers, elaborating our primary organizers as necessary to make sense -- not much to arrange to meet someone for coffee, more to complete a police report of a crime scene or describe a social problem, a great deal more to trace the causes of an international crisis or the trends of an era.

At least up through middle school the emphasis should be on mastering the basics of sense making -- exploring in hundreds of different ways the systemic relationships of our five primary organizers of information.

News Tue, 30 Aug 2016 00:00:00 -0400
"Critical" Protection Needed: Voter Registration Data Stolen in State Election Hack

FBI sources informed Yahoo News that voter databases in Illinois and Arizona had been compromised by hackers.FBI sources informed Yahoo News that voter databases in Illinois and Arizona had been compromised by hackers. (Photo: Aaron Webb / Flickr)As the Department of Homeland Security weighs adding new federal cyber security protection to election systems across the country, the FBI is revealing it may be too late for some voters.

The bureau sent an alert this month to state officials, warning them to examine their systems for malicious actors, following the hack of two State Board of Elections databases.

FBI sources informed Yahoo News that voter databases in Illinois and Arizona had been compromised by hackers who are believed to be foreign.

According to the Illinois Board of Election general counsel, the state had to shut down its voter registration systems for ten days after the hackers stole the personal data of nearly 200,000 voters. Officials say a similar attempt was made against the Arizona systems, but no data was exfiltrated.

In its bulletin to the states, the FBI called on local officials to keep an eye on eight separate IP addresses that are believed to be associated with the attacks, including one that was used in both cyber intrusions.

"The FBI is requesting that states contact their Board of Elections and determine if any similar activity to their logs, both inbound and outbound, has been detected," the FBI memo stated.

It added that "attempts should not be made to touch or ping the IP addresses directly."

News of the attack comes amid heightened anxiety that foreign hackers -- particularly Russians -- are trying to influence US elections. FBI agents did not confirm the origin of malicious actors in this latest breach. They did say they are investigating possible links with cyber-ops against the Democratic National Committee, which resulted in the release of thousands of internal party emails in July.

"This is a wake-up call for other states to look at their systems," Tom Hicks, the chairman of the federal Election Assistance Commission, told Yahoo. The commission was set up to ensure election integrity after the 2000 debacle in Florida.

Earlier this month, Homeland Security chief Jeh Johnson announced the department was "actively thinking about cyber security," including classifying election systems as "critical infrastructure."

Such a designation would afford election machines across the country new federal cybersecurity protections and investments.

Johnson noted, however, that the localized nature of voting in the US complicates those efforts, since each locality has their own method for recording and counting the votes.

In a conference call with state election officials, Johnson did inform them of basic cyber security hygiene practices, including the disconnection of electronic voting machines from the internet while ballots are being cast.

News Tue, 30 Aug 2016 00:00:00 -0400
Young People's Right to Counsel Before Questioning by Police

European nations are racing to provide lawyers for children prior to questioning or interrogation by police, rather than after arrest. Conscience requires that we in the US hasten to adopt this model for children and adolescents to fortify the right to a fair trial.

Access to lawyers before police questioning is considered a fundamental value of a juvenile's right to a fair trial.Access to lawyers before police questioning is considered a fundamental value of a juvenile's right to a fair trial. (Photo: Dirk Knight / Flickr)

Millions have seen young Brendan Dassey being interrogated by police and prosecutors, in the path-breaking Netflix series, Making a Murderer. Last week, a federal judge overturned the 16-year-old's conviction on first-degree murder, sexual assault and mutilation of a corpse based on his "involuntary" coerced confession to investigators who used "deceptive" interrogation tactics that overbore Dassey's free will. Neither his lawyer nor an adult was present during his interrogation.

Across Europe, nations are racing to provide lawyers for children prior to questioning or interrogation by police, not counsel after arrest or typically, 24 hours or even days later at the youth's first court appearance, as is the common practice in the US. The European Court of Human Rights (ECHR) has repeatedly clarified that, indeed, it fully intended to decide that "access to a lawyer should be provided as from the first interrogation of a suspect [Salduz v. Turkey (2008)] by the police." And in the parallel case of Panovits v. Cyprus, the ECHR held that juvenile suspects have a right to counsel prior to and during interrogation by police, not just the right to consult with a lawyer.

As European countries scrambled to cobble together some formal or technical form of legal representation before youth are questioned by police, the ECHR and other EU bodies consistently re-asserted that, indeed, the youth-specific requirement included special protections for youth: a prompt, qualified, individualized, legal representation-type of real lawyer, not a warning, not a video, not, as one federal judge put it, someone assigned to protect the interests of a youth who acted as "a potted plant."

This special protection to be accorded youth is rooted in international human rights law and children's rights standards (still largely out of the legal reach of the US), as well as in adolescent behavioral development and brain science, which have now been acknowledged by the US Supreme Court in a case abolishing the juvenile death penalty (Roper v. Simmons) and a case restricting the use of juvenile life without parole (Graham v. Florida).

A deeper conversation about an immediate right to counsel at the beginning point of police questioning (when it matters most) and the perils of police interrogation of youth is essential for all youth and youth advocates within the US, to clarify where our strategies for youth justice are headed. Racial and ethnic disparities have long evidenced the current and historical differences in access to legal rights in the US. As the W. Haywood Burns Institute has thoroughly documented, the ethnic and racial disparity gap between African American and white youth, and between white youth and all youth of color, is obscenely unequal and the discrepancy accelerates from the moment of initial police contact, through detention, conviction, sentencing and incarceration. Nearly 55,000 youth were incarcerated on any given night in 2013, most (87 percent) for nonviolent offenses. The majority (66 percent) were youth of color."

This year, the Chicago Police Accountability Task Force documented the need to give youth, and particularly youth of color, stronger legal protection from police abuse. African American youth are "far more likely to be arrested and so more at-risk of potential abuse: Three-fourths of the 14,600 arrests of juveniles in Chicago in 2015 were of Black children and teens," according to an article from The Chicago Reporter on data from the Illinois Criminal Justice Information Authority.

In its widely publicized April 2016 report that was sharply critical of police practices overall, the task force wrote:

CPD [Chicago Police Department] has not made the legal rights of juveniles a priority. We have heard that police frequently tell lawyers working on behalf of juveniles that their clients do not have a right to counsel or that the juvenile's guardian must approve a visit by a lawyer. Youth should be receiving more, not less, protection.

The task force found that attorneys filled out visitor request forms in less than 1 percent of all Chicago arrests in 2015. For youth, the Chicago Defender later found, the numbers were even worse: less than one-tenth of 1 percent of arrested juveniles had an attorney when in police custody.

Historically, legal developments in the US have focused on the ability of young people to comprehend Miranda warnings, a familiar but often empty Fifth Amendment right to remain silent. But one year after Miranda, the US Supreme Court focused on children's right to counsel in court, rather than when that Sixth Amendment right to a lawyer arises: Does it arise prior to a youth being interrogated? Or when a youngster is initially in custody? Or only when the youth appears in court?

In addition to these issues of when counsel is required in delinquency and criminal matters, juveniles in the US also do not have a consistent legal right, at all, to an appointed lawyer in numerous other areas of law critical to their life, liberty and well-being: in child protection cases, in immigration courts, or in parole or probation revocations, for example.

The European rulings, subsequent national decisions and legislation, and further codification in an EU Directive and Guidelines for Child Friendly Justice of the Council of Europe are having the effect of encouraging police and prosecution forces, in a wide variety of national settings, to rely more on forensic evidence (physical evidence, DNA, witnesses, victim accounts) and technological records (cell phones, cameras) for charging, prosecution and convictions, and less on confessions or admissions by youthful suspects (and adults).

In the US, the challenges by Black Lives Matter to race-based police stops, interrogations, arrests and state-sponsored shootings of people of color have opened the possibility for serious structural and legal reforms -- should we mobilize and campaign for them. These now-visible examples of police violence are building on prior revelations of wrongful convictions of youth, on struggles against police "stop-and-frisk" practices and disclosures of militarized police shootings before questioning. This is a historic opportunity we cannot afford to disregard.

Hopefully, in 2017, we will commemorate -- as a challenge, not yet a celebration -- the 50th anniversary of the germinal Supreme Court case in children's rights, In re Gault. In 1967, 15-year-old Gerald Gault was charged with making a "lewd and indecent" phone call to a neighbor woman, Mrs. Cook -- an offense that might then have resulted in a $50 fine and two months in jail for an adult, but instead resulted in a sentence of six years' incarceration for young Gerald. However, in 1967, the US Supreme Court concluded that Gerald Gault had the same full procedural due process Fourteenth Amendment constitutional rights as an adult (except bail), including the right to notice of charges against him, the right to legal counsel, the right to protection against self-incrimination, the right to confront witnesses and the right to appeal. The right to a lawyer, when there was a possibility of deprivation of liberty, was essential. Gerald's liberty was at stake. He was facing incarceration for six years. The highest court overturned his conviction.

Before Gault, "the kinder, gentler" processes of juvenile court were thought to be sufficient for children and youth. After Gault, children were acknowledged to be constitutional persons with a right to conscientious, meaningful legal representation.

In the decades following Gault, children's rights have indeed expanded in the US (see Roper v. Simmons, Graham v. Florida and JDB v. North Carolina, for example), but the effective right to counsel remains full of holes, in theory and in practice.

Beyond the right to counsel in juvenile court, guaranteed by the Due Process Clause of the US Constitution and Gault, state provisions for counsel for children in delinquency or criminal proceedings vary greatly. Counsel may not be appointed until the first court appearance, or after. In numerous jurisdictions, proof of indigence is required for appointment of publicly funded juvenile defenders or appointed private counsel. The right to a lawyer in criminal/delinquency cases, as a matter of law, was presumed to come into effect after arrest in Florida, for example, where a child's attorney "shall be allowed to provide advice and counsel to the child at any time subsequent to the child's arrest, including prior to a detention hearing while in secure detention care."

In California, pending legislation SB 1052, will require youth under the age of 18 to consult with legal counsel before they waive their Fifth Amendment constitutional Miranda rights. Much of the struggle for defendants' rights in the US has been focused on the Fifth Amendment, rather than the Sixth. When law enforcement conducts a custodial interrogation, they are required to recite basic constitutional rights to the individual, known as Miranda rights, and secure a waiver of those rights before proceeding. The waiver must be voluntarily, knowingly and intelligently made. Miranda waivers by juveniles present distinct issues. According to a legislative fact sheet released by California State Senator Ricardo Lara, "Recent advances in cognitive science research have shown that the capacity of youth to grasp legal rights is less than that of an adult. This is especially true for very young, developmentally disabled, or cognitively delayed children, and for those with mental health problems." Currently, in California, children of any age can -- and regularly do -- waive their Miranda rights. This bill would also provide courts with guidance for determining the validity of a Miranda waiver and provide some measure that the outcomes of interrogations will preserve a youth's constitutional rights.

Recent Illinois law is also emblematic of the struggle for an early, effective right to counsel for children in delinquency and criminal cases. Even its own advocates point out that the Illinois bill, SB 2370, is an embarrassingly tepid step forward. But the law raises the age from 13 to 15 years at which children being questioned in murder or sex offense cases (only) must have an attorney present. It requires police to read a simplified version of Miranda rights to all juveniles under the age of 18. After reading the statement, police are required to ask the minor: "Do you want to have a lawyer?" and "Do you want to talk to me?" And, in a significant step forward, it requires that police videotape all interrogations of youth under 18 years of age. Despite national and local efforts to provide children with more legal protections, the laws governing the rights of children in police custody still vary widely from state to state. Most states have no requirement at all for a lawyer's presence when a child is in police or detention custody, or for the videotaping of police interrogations of youth.

In Europe, the logic of the landmark ruling of Salduz is that the right to a fair trial requires that "access to a lawyer should be provided as from the first interrogation of a suspect by police." This right may only be restricted when authorities demonstrate in a particular case that there is a compelling reason for doing so. This takes care of the "desperate emergency" scenario in which a suspect's information might, theoretically, save lives. According to the European Court, "the rights of the defense will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction." Pointedly, the court explicitly emphasized "the fundamental importance of providing access to a lawyer where the person in custody is a minor."

Thus, under the case law of the ECHR, the right to counsel as from the initial stages of criminal justice is considered a fundamental value of the right to a fair trial.

The challenge for advocates in the US is to press forward vigorously, to breathe effective life into the Sixth Amendment right to counsel for children and youth on the anniversary of the landmark Gault decision. Children, adolescents and youth have a right to meaningful counsel at the point of questioning by police and prosecutors. Let us use the European experiences as an inspiration and an obligation. That would be a real tribute to the brave, forward-thinking attorneys who once took the Arizona case of Gerald Gault all the way to the US Supreme Court. Conscience requires that we press for the right to counsel for children at the time when it matters most, and which fortifies the right to a fair trial: before and throughout police/prosecutorial interrogations of children and adolescents.

News Tue, 30 Aug 2016 10:01:39 -0400
Colin Kaepernick Isn't Unpatriotic, Levi's Is

San Francisco 49ers quarterback Colin Kaepernick speaks at a news conference in New Orleans, January 30, 2013. (AJ Mast / The New York Times)San Francisco 49ers quarterback Colin Kaepernick speaks at a news conference in New Orleans, January 30, 2013. (AJ Mast / The New York Times)

Even though the season doesn't start for another two weeks, the National Football League is already embroiled in controversy.

The latest lightning rod for sports radio hot takes is San Francisco 49ers quarterback Colin Kaepernick, who surprised pretty much everyone last week when he refused to stand for the national anthem during a preseason game against the Green Bay Packers.

When asked why he did what he did, Kaepernick said he was trying to raise awareness about the fact that this country isn't living up to the motto of "liberty and justice for all."

See more news and opinion from Thom Hartmann at Truthout here.

He also said that he would continue to sit through the national anthem "until there's significant change," and the "flag represents what it's supposed to represent."

Not surprisingly, Kaepernick's protest has sparked a firestorm of outrage, quite literally so in the case of one 49ers fan, who burned the quarterback's jersey and then put a video of it on Facebook.

Conservative pundits in the media haven't gone quite so far as that one 49ers fan -- no one on "Fox So-Called News" has burned a jersey live on air, not yet at least -- but they've been just as fierce in their criticism of the San Francisco quarterback.

According to these conservatives, Kaepernick's decision to sit during the national anthem is deeply unpatriotic because it's disrespectful to the military and the police who've given their lives to keep us safe.

Former presidential candidate Dr. Ben Carson gave a version of this argument during an appearance on Fox this weekend.

This is the standard conservative argument that comes up every time someone "disrespects" the flag or "insults" the military, and it's just as wrong as now as it was the hundreds of other times someone used it to condemn a legitimate protest.

Right-wingers would never admit it, but using our constitutional protest right to take a stand for something you believe in is as patriotic as it gets.

You’d think conservatives would understand this, given how they’re always going on about the US Constitution and "personal liberty," but apparently they only mean that for white people.

Unnoticed in most of the media is the ultimate irony of all this: Levi's, the clothing company that bought naming rights for the 49ers' stadium, is way more unpatriotic than Kaepernick will ever be.

Even though it likes to portray itself as a salt-of-the-Earth, American company, Levis's, like most of corporate America, has taken advantage of the so-called free trade era to send most of its manufacturing jobs overseas.

Only one line of Levi's jeans, the 501 classics, is now made here in the US.

Meanwhile, the company's finance, customer relations and IT departments are now also all handled abroad, mostly in India.

The outsourcing of Levi's financial department alone cost 500 jobs.

And, according to Citizens for Tax Justice, Levi Strauss is sitting on more than $100 million overseas to avoid paying US income taxes on the money. Very patriotic!

In other words, while Kaepernick risks his career (and possibly his life) to take a stand for people who live and work here in the US, and Levi's exploits its reputation to participate in and contribute to the death of the middle class while enriching its executives and shareholders.

But you won't hear anything about that from Republicans.

They've been on Levi's side all along.

They've supported so-called free trade deal after so-called free trade deal, all while talking tough about God, country and the flag.

For conservatives, patriotism is just a slogan, and their crocodile tears about Kaepernick prove it.

Opinion Mon, 29 Aug 2016 16:29:32 -0400