TO CATCH A NUMBSKULL

No doubt you have watched NBC Dateline’s “To Catch a Predator” at least once or twice. (More would be redundant. Not only is each episode pretty much the same as the next, but they frequently recycle episodes.) There are two really curious aspects to each episode. The first is the legal premise—that online sexually chatting up a person one believes to be underage, even if s/he isn’t, is a crime in and of itself. Yes, that is the law, at least in Texas, where online solicitation of a minor is a felony, regardless of what (if anything) happens afterward. This completely overrides the common law premise that mistake of fact (unlike mistake of law) is a defense to most crimes. It actually doesn’t matter whether the “solicitor” ever meets the “minor” or engages in sex with him/her. The online conduct is sufficient, and the physical meet-and-greet is mainly evidence that the cops have arrested the right person, the person who actually did the soliciting.

The second curiosity is the fact that, increasingly, the men arrested have seen “To Catch a Predator” on television, and they still show up at the decoy’s house. Sometimes they recognize Chris Hansen, the M.C. of the show. Sometimes they acknowledge having had a “bad feeling” about meeting the decoy. But nonetheless, there they are.

Which is probably closely related to the reason so many people who get arrested, on any charge, choose to waive their rights to silence and legal counsel, and spill their guts to the police. By the time a person is old enough to be tried as an adult, s/he has probably heard the Miranda warnings on assorted cop and lawyer shows at least 1800 times. And yet somehow nobody manages to figure out that “you have the right to remain silent,” etc., means “shut up until your lawyer gets here.”

This problem arises in plenty of places other than police stations, and is not confined to poorly-educated people with scanty knowledge of standard English. In one of my college classes, an intelligent, literate student who speaks standard English with no accent whatever barely escaped disaster on my one-hour midterm exam. The instructions indicated clearly that the time allotted to questions 1 and 2 was 15 minutes each, and question 3 was 30 minutes. The student told me afterward that she read the instructions carefully (which I always remind them to do), including the time limits--and then spent more than 50 minutes on the first question.

In my other incarnation, as an attorney, I once had a client who promised to make a substantial payment on fees he already owed me, if I would represent him in a pending hearing. After the hearing, I asked him when I could expect the payment. He said something like “I won’t be paying that.” I asked him whether he recalled making the promise--he did--and then I asked him what he had meant by it. “I don’t know what I meant,” he replied. Now, that may have been only his rather ungraceful way of avoiding admitting that he had made that promise solely for the purpose of inducing me to represent him when he really needed it, and had never had any intention of paying me. Which, however disturbing it may be, is a problem in ethics, rather than in processing information.

But I have seen too many parallel cases to believe that. The problem--which probably has some Greek-root neurological name known only to Oliver “The Man Who Mistook His Wife for a Hat” Sacks--is not a perceptual disability, but the inability to allow information to influence behavior, even in the most crucial situations. Socrates, who held that all evil results from ignorance, would be dumbfounded.

Or is it inability? Is it perhaps a habit, long-hidden from consciousness and therefore almost impossible to break, a habit of resisting the impact of information on our behavior? Is it, perhaps, a necessary but overused defense mechanism arising out of a culture in which we are bombarded with constant demands that we stop, go, don’t smoke, see, hear, visit, buy, above all buybuybuy? Is ignorance the last refuge of the free mind? That would certainly explain the fact that most Americans--even highly educated intelligent people in intellectual occupations--will not admit to having learned anything in high school. And indeed, most of the first two years of college in this country (unlike the rest of the world) for all but the smallest elite, consist of a hasty review of what the students were taught in high school, precisely because they either did not learn it, or because they felt obliged to forget it immediately upon receiving their diplomas (in rather the same way the Pythagoreans postulated the soul, going from its previous incarnation into rebirth, was required to forget everything it had learned in its previous lives.)

There is similar resistance to allowing oneself to be influenced by religious objurgations. (Indeed, the willingness to actually pay attention to “preaching” and change one’s behavior as a result, is often regarded as proof positive of having joined a “cult”) and political speeches. Jurors regularly ignore judicial instructions (though studies indicate that may really be a problem of comprehension), and many of them also ignore evidence.

Unfortunately, of all of the sources of information in our universe, advertisers actually seem to have done the best job of circumventing customer resistance, apparently by casting their message as much as possible in terms other than informational. They try to provide either a non-cognitive esthetic experience which leaves the customer with a good feeling about the product, or a non-cognitive bonding experience which--especially among young male customers--builds loyalty. Information is not only irrelevant to those kinds of messages, it actually gets in their way.

Another source of such resistance may be the American legal system, with its proliferation of unenforced and often unenforceable laws. “It’s none of anybody’s business how fast I want to drive!” one respondent was quoted as saying in a newspaper article on people who drive 55 mph in the left lane (Chicago Tribune, Section 2, p. 1, 5/1/95). “It is...judgmental to decide how fast another driver should or should not travel. If and when I am stopped for speeding, I have no quarrel with receiving a ticket....However, I don’t appreciate another citizen justifying traveling just the speed limit in the passing lane in order to keep my speed in check.” Another respondent said “If I choose to risk a ticket by traveling at a more efficient rate of speed, the only people who need be concerned are myself and the local state trooper. To those who mistakenly believe that they are in danger simply because I am going faster than the arbitrarily-set speed limit, all they need to do is move over. To those who feel it is their job to keep me within the limits of the law, butt out!”

If, for instance, Chicago’s ban on downtown street parking (in effect for the last two years) had been enforced, there would be no need for the various physical barriers now being erected outside the federal building to prevent car bombings. Similarly, there have been numerous cases of a legislator proposing a criminal statute, only to find out (usually from his embarrassed research staff) that the conduct it would penalize was already forbidden by another law currently on the books but long forgotten. The NC-17 movie rating (not a law, but a voluntary regulation of the film industry) essentially means “R--but we really mean it this time!” If they had really meant it last time, it would be unnecessary. We try over and over again to command changes in behavior, and the only result is the piling of one ineffective prohibition on top of another (something the behaviorally savvy Jewish tradition specifically forbids, by the way. If you are going to eat bacon, you don’t have to have the pig ritually slaughtered.)

“Preaching,” “scolding,” and “nagging” are the words we use for any kind of discourse intended to change our behavior when we don’t want to change it. But ultimately, all information gets treated like “nagging” by most people most of the time.

And, as noted earlier in the case of the Delinquent Defendant (the Cashless Client?), this resistance to information affects not only how we deal with what we hear, but also what we say and how (if at all) it relates to what we mean. If I will not change my behavior because of what I hear or read, I also won’t change it because of what I say, nor will I expect you to pay any serious attention to what I say. (In the words of the old song, “How could you believe me when I told you that I loved you, when you know I’ve been a liar all my life?”) Probably the most outrageous example of this phenomenon in recent legal history was a case in Juvenile Court in Cook County, Illinois about ten years ago. The state’s child welfare agency sent two neglected children who were in its wardship to an out-of-state foster home, and then made virtually no attempt to oversee their care. They kept filing reports, though--based on absolutely no information--that the children were doing well. A couple of years later, one of the children died as a result of abuse by the foster family, and the other was hospitalized with severe injuries. The office of the Public Guardian sued the child welfare agency for gross negligence in failing to check on the children regularly and report accurately. The child welfare agency responded by challenging the right of the Public Guardian’s office to bring the case, on the basis of a conflict of interest, because the Guardian’s office had believed the reports! (The Court didn’t buy the argument, fortunately.) We seem to have accepted all too readily the oriental maxim “Fool me once, shame on you; fool me twice, shame on me.” Anybody fool enough to believe anybody about anything (even once) deserves to be deceived, exploited, and railroaded. The deceivers are merely doing business as usual and cannot be held responsible for the consequences of the behavior of others who choose to believe them.

I have spent a fair amount of time in class explaining the legal consequences of various kinds of mendacity in the media, and my students have no trouble grasping that what Rush Limbaugh says about Hillary Clinton is probably libellous and what Ronco says about the Vegematic is probably fraudulent. But most of them have real trouble grasping why it matters. “Of course people lie on television,” they tell me. “That’s what television is for.” Which is a close relative of the old joke about how you can tell when (name your favorite crooked politician) is lying--”His lips are moving.” The medium is the utter absence of any reliable message. Orwell’s prediction of New-speak--the total corruption of language to make a vehicle of political control--turns out to have overshot the mark. In our efforts to avoid Newspeak, we have turned American English into Nospeak--a vehicle of nothing at all. To choose to believe any communication, and modify our behavior in accord with it, is a tremendous and terrifying leap of faith, which most of us make once or twice in a lifetime, at most.

What, if anything, can a teacher do to breach the barrier between perception and behavior? How do we get across to students hardened against “nagging” the antiquated notion that letters have sounds, words--and combinations of words--have meanings, and it really matters whether you say “uninterested” or “disinterested”, “lie” or “lay”? Does repetition do it? (Probably not, or they’d come out of high school knowing a lot more than they do.) Is there a way to slip under the barrier, using the techniques of advertising? This is precisely what “Sesame Street” has done, with pretty good results. Can an individual teacher, without the high-powered special effects and resources of a national television show, do nearly as well? Or can a more subtle esthetic approach quietly dissolve the barrier, without the student even realizing it? I have known this to happen, often under the influence of poetry (either reading/hearing it or writing it.) “To every door,” says the Talmud “there are many keys, but the greatest key of all is the ax.” Or do we just keep throwing out bits of information and hope that some of them stick? The barrier is almost never completely impermeable (that way lies autism), but the things that penetrate it are likely to be an oddly-assorted and not especially useful conglomeration. Merely throwing out as much high-quality information as possible in hope of raising the quality of the total mix is too haphazard to be satisfying to most teachers (or for that matter, preachers, writers, poets, and politicians.)
Most commentators who predict the demise of literature, or of a particular literature or language, have done so largely in hope of getting credit for single-handedly reviving it. The current generation of English teachers and professional “naggers” has no such high-flown expectations. Most of us would be happy if high-school graduates would remember their sixth-grade grammar long enough to complete a sentence whose subjects and verbs come out even. We pity the high school teacher whose job seems to amount to painting the Mona Lisa on sand. We try to talk faster, so as to keep our instructions within the limits of our students’ current attention span, but we are not yet capable of being the “One-Minute Teacher,” and it’s probably just as well. Long ago, an unnamed talmudic wise guy asked the scholar Hillel to tell him the whole law “while I stand on one foot.” Hillel actually had an answer: “Love the Lord your G-d with your whole heart and soul and strength, and love your neighbor as yourself. This is the whole law and the prophets. Everything else is commentary.” But he could not resist adding, “Go and study it.” Presumably sitting down.

THE RUSH FROM JUDGMENT

Our political discourse these days seems to get bogged down in mutual accusations of being “judgmental,” “opinionated,” and playing the “blame game.” Liberals and conservatives accuse each other of believing in their own invincible rightness and the other side’s utter wrongness. For anybody who takes such discourse seriously, the result is mental paralysis.

Of course I believe that my beliefs and opinions are right. Why else would I have them? Which means I believe that those who disagree diametrically with them are wrong. How could it be otherwise (as Socrates would say)? I suppose I’m more nuanced than some people, in that I don’t necessarily see everybody on the Other Side as disagreeing diametrically with my position—there are plenty of ways for both of us to be right. (Remember the old Jewish story about the rabbi and two disputants? Disputant #1 sets out his case, and the rabbi nods sagely and says, “You’re right.” Then Disputant #2 states his case, and the rabbi thinks about it a while and says, “You’re right.” The rabbi’s wife, who has been sitting on the sidelines, says, “Wait a minute! They can’t both be right!” To which the rabbi replies, “You’re right, too.”) But it matters to me that my beliefs and opinions are right. If I thought they weren’t, I’d change them.

And of course I believe that people who do bad things are behaving badly. In that sense, I am judging them. Aristotle says that’s one of the most human things human beings do.

Progressives, of course, are the most vulnerable to being paralyzed by accusations of being “opinionated” and “judgmental.” We pride ourselves on being open-minded, tolerant, and willing to listen to the other side. And then, we are suddenly confronted by an issue on which we cannot conceive that there is another side with any valid argument—female genital mutilation, for instance—and we are brought up short. Oops! Conservatives don’t have to worry about that kind of thing; they can denounce “relativism” at every turn, and in addition have the fun of ridiculing the relativists who fall short of their own claims of virtue.

But all of us, I think, on both sides, have lost track of what tolerance really means. Tolerance is not what we extend to the opinions of others. We can and should reserve the right to say that other people’s opinions are wrong, at least occasionally. Tolerance isn’t for opinions, it’s for people. And “judging” other people’s behavior isn’t the same as condemning the people themselves.

Not that we should leap to brand other people’s opinions as wrong or other people’s behavior as blameworthy without careful consideration in the first place. We need to start considering moral/political issues with an open mind. What are the facts? Who are the authoritative sources of information? Has anybody really considered all the angles on this issue?

There is even a situational aspect to all this that rarely gets looked at these days, which the Talmudic rabbis did a pretty good job on. The Bible (in Numbers 5:11-31) describes an ordeal to which a husband who thinks his wife has been fooling around but can’t prove it can subject her, to test her fidelity. It’s unpleasant but does no permanent damage, except perhaps to the relationship between them. Done properly, it should resolve the question one way or another and close the book on the suspicion—at least that’s what the Bible has in mind. But, a couple of thousand years later, Rabbi Yochanan ben Zakkai pointed out that the ordeal contained what had now become a fatal flaw—if the husband who administered it had himself been unfaithful, one could not expect divine judgment to solve his problem. He didn’t deserve it. In short, he said, we are no longer decent enough for this ritual to work.

I think the same thing could be said about the different views on organ donation in the US and in western Europe. In the US, it is presumed that anyone who has not consented in writing to post-mortem organ donation is refusing. In Europe, anyone who does not consent must put his refusal in writing, or it will be presumed that he consents. Some organ donation advocates in this country, gravely concerned about the shortage of organ donors here, suggest that we should adopt the European practice. For a while, I thought that might be a good idea. Now, I’m not so sure. I think that, in a country like the US (and unlike Europe) where there are wide disparities between the rich and the poor, and where one of those disparities is the availability of health care, we are not decent enough to presume consent to organ donation by the most likely prospective donors, the poor. That doesn’t mean I believe the Europeans are wrong. I just don’t think their practice transplants well to this culture right now, and anybody who thinks it does probably needs to do some more thinking.

So let’s start out to form our opinions as carefully and openly as possible. At least let’s be clear about the authorities we rely on if we feel unable or unwilling to start from scratch for ourselves. (The mother of a friend of mine once drove me absolutely nuts by telling me she was opposed to the Equal Rights Amendment, but couldn’t tell me why. What she meant, I suspect, was that she was relying on some authority she couldn’t point me to at the moment. Although what bothered me the most was that she had started that particular line of conversation, and that was all she had to say about it.)

Then, when we have formed an opinion, let’s look at the Other Side to see whether, or to what extent, it is diametrically opposed to our own, and where we actually agree. Only then does it make sense to say, “I’m right. You’re wrong. Here’s why.” And even then, we need to avoid saying, “and that makes you a person I can’t talk to.” The guy on the Other Side may decide that himself, and there’s not much we can do about it. But if at all possible, we need to accept him as a human being like us, some of whose opinions we disagree with.

We also need to try to avoid the sweeping sociological generalizations about the links between belief, behavior, and disposition that are to be found, for instance, in books like The Authoritarian Personality, which presume that we are what we believe, or as the gospels assert, “as a man thinketh in his heart, so is he.” The Jewish position, to which I try to adhere whenever possible, is that we mostly don’t care what people believe, as long as they behave decently.

Similarly, we have the right to judge other people’s behavior. But we don’t have the right to condemn the people who engage in behavior we disapprove of. This problem arises most often today in sexual politics. I have no problem with the behavior of gays and lesbians as such. But when homosexual relationships involve a component of violence, I disapprove of it as much as I disapprove of violence in heterosexual relationships, and for exactly the same reasons.

But how do I deal with people who believe that the sexual behavior of gays and lesbians as such is wrong? Many of them, most notably the Catholic Church, take the “hate the sin, not the sinner” position on this issue that I generally espouse on other issues.

Most gay people I know hate that rhetoric. They think it reeks of hypocrisy, that the Catholics or whoever don’t really mean it anyway, and actually hate gays and lesbians as well as their behavior. Which may be true in many instances, but certainly not all. Catholic institutions do good work for people with AIDS and HIV, for instance, far beyond the demands of mere hypocrisy and public relations.

Possibly the real problem is that we aren’t necessarily good at our relationships with the sinners we claim not to hate. We really are being hypocritical. We want credit for a virtue we aren’t really practicing. This needs more work.

Which is a phrase we need to think about. Back when I was an English teacher, I tried to grade papers carefully, so as to give the student the information she needed to improve her writing, rather than just make her feel bad. “This needs more work” was one of the phrases I used a lot. Maybe it’s an alternative to being judgmental or opinionated. Maybe it’s what we all need.

BEHIND CLOSED DOORS

Yesterday I read a really sad newspaper article by a woman whose husband is being detained, pending deportation, as an illegal alien. I won’t comment on the situation that led to his being (a) illegal and (b) detained, because immigration law is my least favorite area of administrative practice these days. But in the course of describing her husband’s situation, the author stated that she had to visit with her husband through a thick plastic barrier, and didn’t see any difference between the “detention center” where he was being held, and a jail.

And that’s something we need to talk about. In the first place, there is a very clear and important difference between the “detention center” and a jail—the character and quality of the inmate’s neighbors. An illegal alien in a detention center is surrounded only by other illegal aliens, people who, in general, are guilty of nothing except being illegal aliens. People who can reasonably be expected not to rape, assault, or murder their neighbors, or even pressure them to join a gang. Compared to the standard county jail, that makes a detention center a veritable country club.

We don’t talk about this because we tend to be confined to the perspective of constitutional law when we talk about jail. From that perspective, the only significance of being in jail is “deprivation of liberty,” as the Fifth Amendment calls it. From that perspective, there is no difference between Cook County Jail and a suite at the Ritz Carlton with a door that locks only from the outside. All that matters, constitutionally, is the fact of not being able to pick up and leave any time one wishes, not where one is confined, and certainly not the conditions of confinement.

Every now and then, some prisoner sues the government for some really egregious condition of confinement, like getting no medical treatment for a broken bone, or food not fit for human consumption. Occasionally, the prisoner actually wins. Even more rarely, a bunch of prisoners sues and wins, often being vindicated by a resolution that puts the court in charge of running the prison. Usually, the public reaction to such outcomes is outrage that someone convicted of a crime that warrants imprisonment still has any rights at all, much less the right to complain of the conditions of his imprisonment. But note that the conditions that do turn up in court almost never include harm inflicted on an inmate by fellow inmates, even when that harm includes rape or murder. Things like that are considered, by everybody on all sides, to be part of the normal conditions of confinement. (The one major exception is that a couple of courts have recognized the applicability of the necessity defense to justify escaping from jail in order to avoid a life-threatening situation.) Inmates can prevail in court only for acts or omissions of the “correctional” authorities themselves. The courts, the “correctional” systems, the lawyers on all sides, and even the inmates, take this for granted.

There are a few organizations specifically concerned about rape in prison (google that phrase and they will turn up,) but they are trees falling unheard in the forest, as far as the legal system is concerned. As a practical matter, “correctional” systems assume no responsibility for the conduct of their inmates toward each other. On the rare occasions when official notice is taken of an inmate assault, it is generally defined as a “fight,” and all parties to it are punished equally. Inmate assaults are treated not much differently from schoolyard bullying, except that the stakes for the injured parties are a good deal higher.

The only alternative to the “war of all against all” among inmates is solitary confinement; some inmates deliberately seek it out for self-preservation, but the conditions (aside from the company) are often worse than in the general population. Inmates in solitary, for instance, are often denied visitation with their friends and families, and may also be denied reading and writing materials.

The American public is not likely to become concerned about this state of affairs anytime soon, since we regard prison inmates as, at best, the undeserving beneficiaries of our undue squeamishness about the death penalty. The fact that several religious traditions consider visiting and aiding the imprisoned to be singularly virtuous mostly gets forgotten. Unlike our forbears, we know who deserves our concern, and we would never put such people behind bars. If they’re locked up, they deserve it, or worse.

So chalk this blog up to a voice crying in the wilderness. We’re okay. Screw the other guys.