FIRST STATE IN THE NATION VOTES ON FREE-RANGE BILL OF RIGHTS! Would Decriminalize Parents Who Let Their Kids Play Outside or Wait Briefly in Car

Last week, Arkansas voted on the very first Free-Range Kids and Parents Bill of Rights.

Oh, it wasn’t called that. Nonetheless, the proposed law would have ended “neglect” investigations of parents who simply let their children play outside, walk to school, wait in the car for under 15 minutes in temperate conditions, or come home as a latchkey kid. If the parents were otherwise neglectful or abusive, of course, the state was allowed to probe. But if the parents simply trusted their kids with a little independence, the worry that they could face charges would be lifted.

The bill was drafted by me, Adrian Moore at the Reason Foundation, and Dan Greenberg, president of the Advance Arkansas Institute, along with help from some other pro bono lawyers. Arkansas State Sen. Alan Clark sponsored it and darned if it didn’t sail through the Senate.

When it was then introduced to the House Judiciary Committee, Sen. Clark said in his opening statement that many Americans are “under the impression that a record number of children are being taken, and that’s not true.” He added that he himself was surprised. But given that kids today are not in excess danger, “This is a bill to make sure my parents would not be criminals.” In other words, any parent today simply doing what THEIR parents did — sending the kids out to run around the neighborhood — would not be treated as negligent. “This is a parents’ rights bill,” said Clark.

But as Caleb Taylor in The Arkansas Project, writes:

Are Arkansas parents smart enough to know when it’s safe to leave their kids unattended?

Apparently, many legislators don’t think so.

Members of the House Judiciary Committee voted down legislation introduced by State Sen. Alan Clark to tweak the legal definitions of child neglect and maltreatment in Arkansas.

What happened? Well, if you’d like to watch for yourself, click here for a  video of the proceedings: http://www.arkansashouse.org/ video-library. Go to March 28 and click on the Judiciary 10 a.m. hearing and scroll to 11:05 a.m. You can watch Sen. Clark explaining that the bill “just allows kids to be kids and parent to be parents.”

But then you can hear House Speaker Jeremy Gillam tell Clark that according to the “latest statistics” it takes just 37 seconds to carjack a vehicle with a child side.

Which could well be true. But simply because something CAN happen does not mean that it is remotely LIKELY to. And as Sen. Clark proceeded to point out: If kids can be kidnapped in 37 seconds from a car, the same must hold true if they are allowed to ride their bikes, or walk home from the park on their own.

And Gillam agreed that that’s so: No child is ever safe unsupervised.

The TAP article notes:

If you make the assumption that any imaginable tragedy is sufficient reason to never allow kids to be left unattended by parents, public schools should close tomorrow. It’s possible to imagine that kids could be sexually abused or beaten by a school employee. Does that mean parents who send their kids to school everyday are bad parents? Obviously not.

Well argued.

But logic did not carry the day. Nor did a list that was read aloud of parents who had indeed been investigated and/or arrested for letting their kids play in the backyard unsupervised, or walk home from the park. Even the story of a 6-months’ pregnant mom jailed overnight for letting her children wait five minutes in the air-conditioned car did not seem to move everyone.

The final nail in the bill’s coffin may have been a presentation by the prosecutor coordinator’s office, Lori Kumpuris. TAP reports:

Kumpuris noted that her association was neutral towards the bill, and then proceeded to criticize the bill — stating, in particular, that she was concerned about the bill’s impact on prosecutorial discretion. It is hard to interpret such a statement as anything other than suggesting that there are some prosecutors who really do want to hold criminal penalties over the heads of parents who do nothing more sinister than allow their children to take neighborhood walks.

Why would a state want to make it easier to arrest parents who trust their kids, their neighborhoods, and their own sense of what is safe enough?

Because to some lawmakers — and prosecutors — NOTHING is safe enough. After all, not only are they infected by the fear of our times — that children are in constant danger — they have another fear hanging over their heads: What if an investigation is closed and later on a child is hurt? Won’t that hurt their own political career?

And so Arkansas voted to preserve the right of its authorities to barge in on families who simply want their kids to have a tiny taste of the independence most of us remember from our own childhoods. Why give kids freedom — why give parents freedom — when you can take it away so easily and say you’re championing safety in the process?

So here’s what should happen next time (and there WILL be a next time, in Arkansas and beyond): Real parents should flood the chambers to say,  “I want my kid to be able to walk five blocks to his friend’s house without me worrying I’ll get arrested!” “If I drag my triplets out of the car and across the busy parking lot to get a gallon of milk, I’ll be putting them in more danger than if I dash in and out!” “Do you really think it’ll make my daughter safer if you throw me in jail for letting her come home and do her homework for an hour before I finish my shift at the plant?” “Why are you criminalizing normal parents who trust their kids, their neighborhoods and the actual crime stats?”

Sen. Clark is right: This is a civil rights issue.  And in the end, Americans will insist on the right to raise their kids as they see fit, and on kids’ right to be part of the world.

I am pasting a copy of the Arkansas bill here. Feel free to edit it for your own town, city or state and then — get it passed! – L

.

Do we really want to keep criminalizing parents who let their kids play outside unsupervised, come home by latchkey, or wait briefly in the car? 

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36 Responses to FIRST STATE IN THE NATION VOTES ON FREE-RANGE BILL OF RIGHTS! Would Decriminalize Parents Who Let Their Kids Play Outside or Wait Briefly in Car

  1. John S April 7, 2017 at 1:36 am #

    First of all, to use the Southern expression, don’t get too “riled up” to learn I am from and live in Arkansas. Save your real bile and invective in case the state goes ahead with its plan to execute 8 death-row prisoners (one of whom MIGHT be innocent, according to an investigative reporter).

    Second, this is not a defense but an admittedly poor attempt to explain that what happened to this bill and its commonsense thinking was not the only time a good idea got torpedoed. The State Legislature has a large contingent of brand-new, very largely conservative members. The House Judiciary Committee is, frankly, too well-stocked with them–I know, because I attended a number of their meetings during the just-completed session. VERY FEW bills that even seemed to go against the “get tough on crime” thinking the majority shares passed through this House Committee. Prosecutors and the big wheels in the Department of Corrections can relatively easily impress the committee members to do the right thing–as DOC wishes. In this context, I was not and am not surprised at the death of this commonsense bill.

    However, even in this state (which is part of a lingering competition to become the “Buckle on the Bible Belt”), there are some victories to cite. One of the most important is the enactment of a measure to set up special courts to determine whether incarceration, or therapy/rehabilitation is in order. The now-famous town hall meeting Tom Cotton held earlier this year also shows more than a few Arkies are concerned about the future, and not all of us are meekly falling into groupthink, Southern-style.

    The best thing anyone can do is to keep research going strong, to develop and present more and still more empirical evidence in which to more effectively strengthen current and future arguments for reform. Know too that there are Arkansans who do not like the current state of affairs. Feel free to check out the Arkansas Times (www.arktimes.com) as one example.

    Kudos to Lenore for this column, and for your regular but necessary reality-check-cum-nose-thumbing when it comes to a good deal of “conventional wisdom”.

  2. James Pollock April 7, 2017 at 2:18 am #

    “But then you can hear House Speaker Jeremy Gillam tell Clark that according to the “latest statistics” it takes just 37 seconds to carjack a vehicle with a child side.”

    But, as everyone knows, it’s completely IMPOSSIBLE to carjack a car with an adult inside it.

  3. BL April 7, 2017 at 5:04 am #

    “Kumpuris noted that her association was neutral towards the bill, and then proceeded to criticize the bill — stating, in particular, that she was concerned about the bill’s impact on prosecutorial discretion”

    Of course. It’s very concerning that prosecutors won’t be able to prosecute just because they feel like it.

  4. SKL April 7, 2017 at 10:05 am #

    Good to hear of a step in the right direction.

    Right now I’m working out a situation where my kids need to get from their school to 1 mile away, 2 afternoons per week. The route is straightforward and there is a traffic light where they would have to cross a major road. They are fully capable of walking and I’d like them to walk. However, they already told their teacher they “don’t have a ride,” so someone might be lined up to give them one. UGH why can’t all the kids walk 1 mile together? We’re talking 5th-8th grade track athletes.

    So anyway, since one of my kids is petite and might appear young to walk “alone” (i.e. with another 10yo), I will probably write a letter for them to keep in their school bag in case anyone gives them a hard time. And I will send the coach an email about it. None of this should be necessary, of course, but ….

    When I was in 5th grade, I went out for softball. I had no choice but to walk to all the practices and games. (I missed the away games because they were too far to walk.) I can’t imagine going to the coach and saying “I don’t have a ride” and expecting her to do something about it. :/

  5. Dingbat April 7, 2017 at 11:05 am #

    @ SKL It is absurd

    My county was a mockery on National Kids Walk to School Day. I think they brought in every officer and there was a cop car, with lights flashing, every 3 feet from the center of town to the high school. Unless they live directly across from 2 elementary schools surrounded by a community that is the only place where kids can actually walk to school circa 2017. Everything else is in the middle of no where… sticks.

    As a local I wanted to vomit. My Aunts, uncles and mother walked mountain miles to school. My 81 year old aunt, the oldest child, got up every morning when she was 4-5 years old long before dawn, started a fire in fireplace, milked the cow and helped her mom with the babies while she cooked breakfast. At 5 she didn’t feel ready to walk to school yet but at 6 she was ready to roll. She did her same morning routine, ate breakfast, lit a lantern, grabbed her good shoes (to put on later) and started walking across the mountains. About 2.5 miles in she met up with 3 other kids and they walked the last 2.5 miles together.

    This is not something most parents could not imagine doing today, and there is typically no need to, but I still can not process how we went from that to cop cars every 3 feet making sure high schoolers walk less than to 1 mile safely, on a well lit sidewalk, mostly in the last 30 years (as far as my area goes).

    In relation to the bill… I sincerely hope this gains ground.

  6. Dingbat April 7, 2017 at 11:24 am #

    I am at least thankful that was allowed to roam the mountains with my brothers, friends and cousins as a kid. I try to imagine parents today allowing their kids to do what we did. Every Sunday I would go to my grandparents, get in a group with the youngest group of cousins (my grandparents had 32 grandchildren, mostly girls, and the youngest were 14-4 in the early 80s) and we would hit the woods and walk for miles. No cell phones, but all of us knew how to identify poisonous snakes and spiders, poisonous ivy and oak, we knew which berries you could and could not eat, could identify (the horror) nuts, etc. We were loud enough to scare off bears. This is something parents started teaching you at 2-3 years old.

    Appalachian kids are part goat and we have no idea how people get lost in the woods.

    It was so much fun. We found the most beautiful clearings of wildflowers and streams where we played with frogs, turtles and newts…. without hand sanitizer.

    All are alive and well.

  7. Havva April 7, 2017 at 11:27 am #

    Interesting reading about Kumpuris concern over the bill’s impact on prosecutorial discretion, in the wake of reading about the federal ruling on Arizona’s definition of child molestation. See Arizona argued that prosecutorial discretion would weed out the difference between innocent contact such as bathing and diaper changes and culpable contact.

    Judge Wake just freed a swim coach jailed by that law saying:
    “Discretionary enforcement assumes laws that by their terms and in good faith distinguish the prohibited wrongful conduct from innocent conduct,” he writes. “Just trusting the government to do the right thing is poor dressing for constitutional wounds….A regime in which everyone starts out guilty and law enforcement decides who has to prove himself innocent is not the rule of law. It is a police state.”

    http://reason.com/blog/2017/04/07/federal-judge-says-arizona-molestation-l

  8. John B. April 7, 2017 at 12:16 pm #

    “A regime in which everyone starts out guilty and law enforcement decides who has to prove himself innocent is not the rule of law. It is a police state.”

    @Havva:

    This is exactly what I’ve been saying all along, in America when it comes to children, you are guilty until proven innocent. But in Arizona’s case it’s even worse. It’s up to the defendant to prove his innocence just for engaging in a simple everyday act involving children.

    Quote from Havva’s article: “May is now free after serving 10 years of what amounted to a life sentence, but the Arizona Attorney General’s Office is asking the U.S. Court of Appeals for the 9th Circuit to reverse Wake’s ruling.”

    That poor man. Finally a Judge with common sense frees him and after 10 years, he can now go where he wants to go, he can do what he wants to do, he can smell the fresh Spring air, he can enjoy holidays with his family. But yet they’re still trying to take all that away from him and after getting a taste of freedom, the lynch mob wants to throw him back into bondage!

    I can’t imagine the psychological torture that man must be going through.

  9. James April 7, 2017 at 12:28 pm #

    “Why give kids freedom — why give parents freedom — when you can take it away so easily and say you’re championing safety in the process?”

    The issue of giving parents freedom is, to me, the heart of the matter. Saying “We’re trying to protect our children” is mere window-dressing–prison doesn’t exist to protect prisoners! It’s all about being able to control what other parents do, being able to make sure no one raises their kids in a way YOU disapprove of. It’s all a way to control behavior. That’s why no amount of statistics showing that kidnapping and the like are wildly unlikely to occur have any influence on those who insist on treating children like convicts or infants. Safety is not, and never was, the point. It’s all about making sure no one ever does anything you disagree with, and the ego-inflating high of getting to punish those who disagree with you with the full power of the government.

  10. Andrea D. April 7, 2017 at 12:34 pm #

    Frak

  11. Kenny Felder April 7, 2017 at 12:55 pm #

    If you ever post something that says “such-and-such a (similar) bill is about to be voted on, please contact the relevant representatives, here are their email addresses,” I will be all over it.

  12. Eric S April 7, 2017 at 1:57 pm #

    Are there privatized prisons in Arkansas. Because that would explain why they would want a high number of prosecutions. It’s really the only reason why we have high prosecution rates in States with privatized prisons. Mo money, mo money, mo money!

  13. Eric S April 7, 2017 at 2:02 pm #

    @James: Bam! Exactly. As well, very profitable for government, because they get kickbacks when they cater to big companies that would profit from this control. At the end of the day, it’s all about $$$. Control is the easiest way to make $$$. If you haven’t seen the documentary http://www.imdb.com/title/tt2364198/ Makes very valid and scary points.

  14. SanityAnyone? April 7, 2017 at 2:08 pm #

    Keep fighting! In Delaware we recently won the right to legal midwife-attended home birth and to set up a board to educate and supervise midwives. No more sneaking around to do what people should be able to do anyway. It is still an overly restrictive bill, but an excellent step. It was a long, hard but worthwhile battle and yours will affect many more people and influence other states.
    http://delcode.delaware.gov/sessionlaws/ga148/chp033.shtml

  15. Denise April 7, 2017 at 2:10 pm #

    I spent the last fifteen years of my career driving to the state capitol to testify on various bills. I can say with certainty that in my state we do not elect the ‘sharpest knife in the drawer’ or ‘the brightest bulb on the tree’. And that is why logic or common sense does not prevail.

  16. pentamom April 7, 2017 at 2:17 pm #

    I’ve always understood prosecutorial discretion to mean “let the prosecutors decide whether it best serves the state to prosecute a particular case of apparent law-breaking,” not, “give prosecutors tools to prosecute people who didn’t apparently do anything wrong if they think those people need to be punished anyway.”

  17. pentamom April 7, 2017 at 2:18 pm #

    “But, as everyone knows, it’s completely IMPOSSIBLE to carjack a car with an adult inside it.”

    Magic proximity beams, as always, protect your kids.

  18. Sam April 7, 2017 at 2:50 pm #

    Too bad it didn’t pass, but please keep trying. (And how about your home state, New York?)

    The reported cases of arrested and threatened parents are, of course, egregious, but are they really common? Surely many kids still do play on the block, walk on their own, or stay by themselves at home or in the car for periods of time, – in the vast majority of cases, with no problems? It would be helpful to know how prevalent this normal behavior still is for today’s families, and what fraction of cases end badly for the family due to the authorities’ involvement.

  19. NY Mom April 7, 2017 at 2:56 pm #

    Bizarre!
    All about winning the next election.
    Just say:
    Build a wall.
    Lock em up.
    Keep em safe.
    Security.
    More prisons, less freedom.
    More jails, less democracy.
    Elect me, all ye helicopters, and your worries will all be small ones.
    I will keep you safe.
    Someone else will pay for the walls and the jails and the prisons and the child protective services and the correction officers and the deputy sheriffs that make the raids.

    Welcome to the land of the free and the home of the brave.

    Suckers.

  20. James Pollock April 7, 2017 at 3:13 pm #

    “I’ve always understood prosecutorial discretion to mean ‘let the prosecutors decide whether it best serves the state to prosecute a particular case of apparent law-breaking,’”

    Whether or not justice is served by a particular prosecution is a part of it (a big part, probably the biggest) but there are other areas of prosecutorial discretion, as well. For example, timing is subject to discretion, as well. (So, there’s a choice between prosecute or don’t prosecute, but there’s also a choice of prosecute now or prosecute later). There’s also the decision about exactly what charges to bring.

    Plea bargaining comes under the heading of prosecutorial discretion, too.

    I agree with you that making things not crimes is not properly an issue for prosecutors, things that have effects in prosecutorial discretion are something they can, and should, take an interest in.

    I can think of some possible situations that might, at the same time, fall under child-endangerment statutes and yet at the same time fall under FRK Bill of Rights. For example, leaving kids in a car that is properly parked in a safe place is not dangerous to kids, in the short term. But, there ARE some situations where leaving the kids in the car IS dangerous… say, in a traffic lane behind a blind curve on a highway.

    The same is true for walking to school. Sure, it’s perfectly safe for kids to walk to school in the overwhelming number of cases… but, there ARE situations and circumstances where it isn’t. So if we pass a law that says “it categorically is not child endangerment to let kids walk to and from school”, you are just fine for nearly all cases… but there are a few cases where it isn’t. So, for example, imagine a case of a child on an overnight field trip. They do something inapprpriate, so the school official says “that’s it. You’re not allowed to participate in this field trip any more. Go home.” “What, I don’t have a ride” “Not my problem. I guess you’re walking.” I’m guessing that this is not what you were thinking of when you imagined “walking to and from school”.

    A good many statutes have loopholes in them because the authors don’t anticipate ways they can be applied. For example, California’s marriage laws never specified that spouses have to be of differing genders, because when it was written, nobody ever thought about same-sex marriages. But then someone asked a court “say, does California law require spouses to be of different genders and the California Supreme Court looked and said “oops. No, it seams it does not”

    The law of unintended consequences is a valid concern. I think that’s what the prosecutors’ spokesperson was addressing, if not completely clearly.

    Consider how many people were in favor of taxpayer-funded religious schools when they thought only Christian schools would be funded, who were then horrified to learn that Muslims have schools, too, which would be only too happy to take some taxpayer funds.

  21. James April 7, 2017 at 3:54 pm #

    “As well, very profitable for government, because they get kickbacks when they cater to big companies that would profit from this control.”

    I’m not sure about direct kick-backs–never attribute to malice what’s explainable by plain greed. Even without kickbacks there’s plenty of nefarious ways for people to make money off this sort of paranoid environment. More prosecutions means more risk, which means higher insurance rates and more companies selling products that allegedly increase the safety of your little ones. Never mind the cost–when it comes to safety cost, unintended consequences, and long-term effects aren’t to be considered!! This naturally increases tax income for the government at all levels, because insurance and sales are both taxed.

    Plus there’s the fines from all those found guilty of neglect, which add up fast. I’ve long said that police are no longer in law enforcement, they’re now seen as a source of income; overzealous prosecution of parents is the equivalent to speed traps.

    But all of that is, I think, secondary. I honestly think the biggest thing is the power-trip aspect. Think of all the stories about parents verbally attacking other parents who do things like let children out of their sight for two seconds. These people aren’t making any money; they’re just inflating their egos. Those who are making money (including the governments) are cashing in on this grassroots phenomena (though it’s not a one-way street; they’re driving it to some extent as well as cashing in on it).

  22. Anna April 7, 2017 at 4:39 pm #

    ” It’s really the only reason why we have high prosecution rates in States with privatized prisons.”

    Actually, although surely private prisons are a factor, I think there’s another big reason: electorates tend to eat up any kind of “tough on crime” behavior or posturing and to punish anything that’s perceived as being “soft on crime” – one reason why, as a Canadian, I dislike your American system of having so many judges, prosecutors, etc., be elected officials. An appointed judiciary has a lot less motivation to be overzealous and harsh.

  23. John S April 7, 2017 at 4:49 pm #

    Too many of the State Legislature members may have adopted this mantra: “My mind is made up! Don’t confuse me with facts! Lalalalalalalala, I can’t hear you!”

    Before the 2016 elections, the Senate Judiciary Committee could be relied upon to block and end many, not all, of the nuttier bills coming from the House. And there were enough members in both Houses to stand up to the DOC on several occasions. Then came the elections.

    Now, unless an argument showing how a bill such as the one discussed here can/will save the Arkansas taxpayer money, such bills as these much more often than not sail through the House very easily. The real threat of a federal lawsuit over a couple of different bills got them stopped, but this bill was perceived as a “get tough on crime” measure, one very easy to pass, and to make the legislators feel good about themselves.

    @Eric S: I know the Arkansas DOC has sent inmates to a private facility in eastern Texas, and is still doing so on a few occasions. The DOC is one member of a small cluster of power forces that regularly gets the Ledge to vote its way, with few exceptions. Another is the Bentonville-based behemoth Wal-Mart–but the Walton family’s focus is on charter schools as the panacea for the future of education.

  24. James April 7, 2017 at 4:49 pm #

    “one reason why, as a Canadian, I dislike your American system of having so many judges, prosecutors, etc., be elected officials. An appointed judiciary has a lot less motivation to be overzealous and harsh.”

    Both have advantages and disadvantages. If they’re elected they’re more responsive to the public–for better or worse. If they’re appointed, the will of the public has to pass through the filter of elected officials before reaching these folks–for better or worse.

    But I’ll agree that private prisons aren’t a major contributing factor to our astronomical prison populations. The War on Drugs is a much more serious factor here. Plus, the question of the driving factor is not simple when it comes to private prisons. They tend (as I recall–please correct me if I’m wrong!) to be popular in areas with high crime rates already, as a cheap alternative to government-run prisons. But their existence tends to create a demand (empty prison cells) that naturally finds a supply (over-zealous prosecution and the corruption that naturally arises when the private sector takes on government responsibilities). So both factors come into play, with, I would think, the latter coming to dominate over time.

    Regardless, private prisons are horrible ideas that essentially invite corruption, sociopathic behavior, and rampant abuse. Even Objectivists agree that private prisons are really, really bad ideas and should never have been allowed to exist–and when you get an Objectivist to say “No, the government needs to handle this” you KNOW you’ve made a pretty bad mistake!

  25. Dingbat April 7, 2017 at 5:40 pm #

    @Havva

    Wow! When was the due process violating definition put in place? I take it was sometime before 2007, considering the 2007 ruling being overturned, but I wonder when exactly.

    I’m not saying it’s the case here but…. This is something I worry about seeing more of, considering we have particular groups of college students who have been taught to misapply the law and violate others due process rights for the last 17 years. Some of those students will be going into fields dealing with sexual abuse.

    That waa part of the problem with the Civil Rights office of the Department of Education’s 2011 Dear Colleague Letter. One of the people pushing for it was a 2004 graduate of SoJus fields and states she believed they had the right to violate others due process in the name of justice all day long.

  26. James Pollock April 7, 2017 at 5:54 pm #

    “one reason why, as a Canadian, I dislike your American system of having so many judges, prosecutors, etc., be elected officials.”

    In the federal courts, all of the prosecutors are appointed. In the state system, it’s not most of them appointed.

    We do, theoretically, elect judges in my state, but… in practice, nearly all are appointed. Here’s why. It’s a bad idea to run against a judge and lose if one will subsequently have to practice law in that court. As a result, most judges run unopposed. Judges retire from the bench in the middle of their terms, allowing the governor to appoint a replacement for the remainder of their term, at which point they stand for election… unopposed. We do get, occasionally, contested races, and more rarely, races that are contested by write-in campaigns

    In the federal courts, judtes are appointed and serve for life or until removed for cause. This causes issues, as well, as the party that doesn’t get to appoint judges fights the party that does by attempting to block appointments or, as famously happened last year, by simply refusing to consider any appointments at all.

  27. James Pollock April 7, 2017 at 6:21 pm #

    “This is something I worry about seeing more of, considering we have particular groups of college students who have been taught to misapply the law and violate others due process rights for the last 17 years. Some of those students will be going into fields dealing with sexual abuse.”

    The other possibility, of course, is that YOU are misapplying law. Title IX actions are civil actions, not criminal, and civil actions have a considerably smaller range of due process requirements. On the other hand, if a formal accusation is made, the accuser has due process rights, too..

    The number of times a college or university has been found by a court to have violated due process is very small.

  28. Papilio April 7, 2017 at 7:03 pm #

    ““one reason why, as a Canadian, I dislike your American system of having so many judges, prosecutors, etc., be elected officials. An appointed judiciary has a lot less motivation to be overzealous and harsh.”

    Both have advantages and disadvantages. If they’re elected they’re more responsive to the public–for better or worse. If they’re appointed, the will of the public has to pass through the filter of elected officials before reaching these folks–for better or worse.”

    On the other hand, if they’re appointed, no one can tell the public that they’ve elected this person themselves and so should wait for the next elections before they can change their mind.
    And also, if you let the public decide about every other official in their region, how motivated are they to really inform themselves on all those decisions they’re supposed to make? How many people even turn up to vote at all?
    How much money is spent on campaigning by all those different people?

    As for elected prosecutors, I don’t even understand how that works within the trias politica. Surely they should be part of the judicial branch, not the executive one, so why are there ties to political parties at all?

  29. James Pollock April 7, 2017 at 7:35 pm #

    “As for elected prosecutors, I don’t even understand how that works within the trias politica. Surely they should be part of the judicial branch, not the executive one, so why are there ties to political parties at all?”

    We have, at the same time, two different court systems. One is national in scope, and one is based at the state level but operated at the county level.

    In the federal system, most of the prosecutors are career civil service, but the top prosecutor is appointed by the President (and typically replaced when the office changes hands). Prosecutors are NOT part of the judicial branch because prosecution is not a judicial function, it’s an executive function. To make things more fun, some judges are ALSO not part of the judicial branch, but rather, to the executive. The general term for this is “Administrative Law Judge” and they work within specific agencies to conduct hearings of disputed facts. Most notably, deportation hearings are conducted by this kind of judge rather than by judicial-branch judges.
    Nobody in this system (except the President) is elected.

    At the state level, it’s organized a little bit differently. Most of the prosecutors are career civil service, but the top prosecutor is elected to the job. The job is typically, but not always, treated as a “nonpartisan” job, meaning that while parties are free to help nominate and elect prosecutors, the prosecutors’ political affiliations, if any, will not appear on the ballot.

    The thing is, though, that you rarely get competitive races for district attorney. The people who are most skilled as prosecutors are the career civil-service assistant district attorneys. Running against the boss is a bad career plan if you lose.

    Our system is AMAZINGLY complex, but that is by design. It was built to put many different parts in at least partial opposition to other parts, with as much fragmentation of power as possible, to combat the unitary sovereign as the source of all legal power which the revolutionaries had rejected. (Although our system of government has been overhauled in a major way three times since the Revolution, each time making the central government more powerful. Once in the switch from the Articles of Confederation to the Constitution, once in the Reformation following the U.S. Civil War, and once in the rise of the administrative state during and following the Great Depression.

  30. The Mad Guesser April 8, 2017 at 3:29 pm #

    I just hope they make teaching kids how to swim a mandatory 10 years imprisonment crime because there’s so many kids who could drown during the swimming lessons.

  31. Anna April 8, 2017 at 4:46 pm #

    “Both have advantages and disadvantages. If they’re elected they’re more responsive to the public–for better or worse. If they’re appointed, the will of the public has to pass through the filter of elected officials before reaching these folks–for better or worse.”

    I guess being “responsive to the public” seems to me appropriate to those who make the laws, but not to those who apply them. I would say a filter between the will of the people and the court system is ideal, if not essential. (And by the way, I would say from my reading of America’s founders, especially in the Federalist Papers, that they would absolutely agree.) And how can the judiciary be “responsive to the public” except by encroaching on the prerogative of legislators with judicial activism?

  32. James Pollock April 8, 2017 at 6:10 pm #

    “I guess being “responsive to the public” seems to me appropriate to those who make the laws, but not to those who apply them.”

    Being responsive to the public is vital in all areas of government, unless you prefer to have government that says “We don’t care what you think. We don’t have to care. We’re the government.”

    American government is set up (intentionally) to give different parts of it different time scopes. Representatives are re-elected every two years, the President every four, Senators every six, and judges are not elected at all. The idea being that Representatives will take a short-term view of governance… what do the people want right now… while the Senators can afford to take longer and look more to the horizon… what will people want further down the road. We try to isolate judges as much as possible, but even they have to pay at least a little bit of attention to what the people want… if enough people want something different from what the courts decide, they can provoke a response that even they, with lifetime tenure, can’t ignore.

  33. Alan April 8, 2017 at 7:14 pm #

    Glad to see that this at least got to a vote.

    Horrified that it is necessary, and horrified that the legislature did not pass it unanimously.

    America is at war with its own children, and its own future.

  34. Joanne April 9, 2017 at 4:38 pm #

    Mental Health Therapy & Psychiatry will likely be career fields in high demand for this next generation of adults since their independence has been so irreparably stifled in childhood & adolescence – how can parents raise secure, confident children when so many restrictions & votes of “no confidence” in their children are imposed by the law?

    It is absurd that government can’t straighten itself out fiscally or diplomatically and despite this hasn’t the shame enough in itself to stop infringing on parent rights under the 14th Amendment to the Constitution to raise our children as we see fit! Government should straighten out its own house before it bothers poking around in our homes and families – it’s about time the people start holding elected reps & legislators accountable at polls – enough is enough!

  35. Nightvid Cole April 10, 2017 at 12:07 am #

    I do have one question though – if a young child dashes in front of a car and the car cannot stop in time, the law says they cannot be taken to possess contributory negligence until the age of at least 6, and more commonly 7, 10, or even higher. So what do we do to the fault of a young child who is too young to be culpable? Do we shift it to the driver or to the child’s parents, who “should” have been supervising the child?

  36. James Pollock April 10, 2017 at 1:11 am #

    “I do have one question though – if a young child dashes in front of a car and the car cannot stop in time, the law says they cannot be taken to possess contributory negligence until the age of at least 6, and more commonly 7, 10, or even higher. So what do we do to the fault of a young child who is too young to be culpable?”

    Actually, some states don’t have contributory negligence at all… you either were negligent, or you weren’t.

    The answer to your question, though, is this:
    If you know, or should have known, that you might encounter children, and you operate your vehicle such that one of them is injured, you have failed your operator’s duty to operate the vehicle in a safe manner. This is true whether you’re run them over by jumping the curb, crossing the sidewalk, and running them over in their own front yard as they played, or blew through a marked crosswalk full of kids, or were driving down a suburban street and the kid ran out of a driveway right in front of your car.

    You’ll find a similar provision in property law. If you have something on your property that kids can be expected to like or be interested in, and it is dangerous for kids to be on your property, you have the responsibility for making sure the kids are protected from the danger, even if the only way the kids can encounter the danger is by trespassing. The law does NOT look to the parents and ask them “why didn’t you teach your kids not to trespass”, nor even “where the heck were YOU???” Nope. The danger is on YOUR property, so YOU have to do something about it… if it can be expected to draw kids.

    “It is absurd that government can’t straighten itself out fiscally or diplomatically and despite this hasn’t the shame enough in itself to stop infringing on parent rights under the 14th Amendment to the Constitution to raise our children as we see fit!”
    The “right to raise your children as you see fit!” is not in the Constitution in general, and the 14th amendment in specific. You might take a stab at claiming it’s in the tenth, but that’s only a limit on the federal government, not the state. The state has, and has always had, the power to set limits on how people are allowed to raise their children. They’re pretty broad, for the most part. But the state gets to decide how much of how people raise their kids is their business.

    Before whining about how oppressive the government is in telling you how to raise your kids, I strongly suggest googling “Indian boarding schools”. The schools were set up and run “for the kids’ benefit”, but the parents’ rights in the matter were, well, just not considered relevant.