Due process concerns for the FLDS situation

[Jeff Lebowski]

Originally Posted by UtahDan

The big point that you have glossed over Mike is that this a decision made on a temporary basis that has to be reviewed fairly quickly and on an individual basis. If that were not to occur, then I would agree that there is a due process problem.

This is obviously an emotional issue for you but what you lack the sophistication to understand because your background is not in the law is that none of these constitutional principles are absolutes and that all of them give way to other principles at times.

I have tried to explain, and you have so far ignored, the idea that there is a balancing that occurs where we err on the side of protecting the children at the expense of the right of the parents and that we accept this for two reasons. The first is that is it temporary. The second is that the evil of abuse is worse than the evil of a temporary deprivation of rights. It is the same reason that you might be held without bail if you are accused of a murder. The danger to others outweighs your right to be free until a determination of guilt occurs. The law is filled with these trade offs and compromises.

There is some subtlety to the idea of due process and reading a few news paper clippings no more qualifies you for a substantive understanding of it than me riding in coach qualifies me to fly the plane. If you had just asked, rather than asking me where I went to law school because I disagreed with you, you might have stood a shot at getting an explanation from me.

I am still perplexed that so many of you think that temporarily depriving people of their children until individual review hearings can be had is a greater mischief than returning children to a pedophilia cult. I think it is a result of a skeptical view of the government and of a very limited understanding of the principles of law at work.

Now, you can ignore all of this because it doesn't fit into your narrative if you wish. Or you can just say that you think the judge made the wrong conclusion based on the available evidence. That is your right. But seriously, lets stop talking about due process conversation because the collective understanding around here of that concept is generously 1 on a scale that goes to 10. If you want to stop being insulting I might even expound it for you.

I am trying to think of another high-profile case involving competing rights that was as divisive as this one, and I am having a tough time. Hell, I argue with myself about it.

[UtahDan]

Originally Posted by Jeff Lebowski

I am trying to think of another high-profile case involving competing rights that was as divisive as this one, and I am having a tough time. Hell, I argue with myself about it.

Terri Shaivo was much worse.

[DrumNFeather]

Originally Posted by UtahDan

Terri Shaivo was much worse.

Roe v. Wade? (off the top of my head not being a lawyer)

[Cali Coug]

Originally Posted by KiteRider

Hmmm, I thought the four points were practically true by definition.

The price of protecting our rights is the cost of law enforcement, judges, public defenders, courts, prisons, maintaining CPS, parole officers, educating all of these players, and the million other things that as a non-lawyer, non-political player I am likely to overlook.

If a community doesn't pay for these things, it is unreasonable to expect the citizen's rights will be protected. Think of High Noon. If a community only hires one sheriff with the courage (another resource) to stand up against a clan of gangsters, it goes without saying that the gangsters will get away with gangster activity a lot of the time.

Gangsters, Mafia, and child-raping polygamists understand this and set up shop accordingly.

I reject that spending too little on infrastructure to protect rights means that we shouldn't reasonably expect rights to be protected. You are arguing from two different perspectives, I think. On the one hand, society makes a determination as to how to allocate resources. To an extent (though there isn't the 100% correlation you want there to be), a lack of funding can have an effect on rights. However, that is a societal determination. The right that is subsequently not protected is an individual right, not a societal right. Why should the individual not reasonably expect his/her rights to be protected? That is the purpose of government. If the government fails to perform its job, is the citizen whose rights are deprived to simply accept it and then revise his/her expectations to meet increasingly lower standards? Should society as a whole accept the lower standards because the system didn't operate well once? Or should it give us pause and inspire us to do better and to ensure the rights of the individual are satisfied?

This is an entirely different conversation than the topic started by Mike, though there is a bit of overlap.

On the one hand, a society may say that it isn't worth the price to

[Jeff Lebowski]

Originally Posted by DrumNFeather

Roe v. Wade? (off the top of my head not being a lawyer)

Oh yeah. Good point.

[Jeff Lebowski]

Originally Posted by UtahDan

Terri Shaivo was much worse.

Could be. No conflict for me on that one, however.

[Cali Coug]

Originally Posted by UtahDan

The big point that you have glossed over Mike is that this a decision made on a temporary basis that has to be reviewed fairly quickly and on an individual basis. If that were not to occur, then I would agree that there is a due process problem.

This is obviously an emotional issue for you but what you lack the sophistication to understand because your background is not in the law is that none of these constitutional principles are absolutes and that all of them give way to other principles at times.

I have tried to explain, and you have so far ignored, the idea that there is a balancing that occurs where we err on the side of protecting the children at the expense of the right of the parents and that we accept this for two reasons. The first is that is it temporary. The second is that the evil of abuse is worse than the evil of a temporary deprivation of rights. It is the same reason that you might be held without bail if you are accused of a murder. The danger to others outweighs your right to be free until a determination of guilt occurs. The law is filled with these trade offs and compromises.

There is some subtlety to the idea of due process and reading a few news paper clippings no more qualifies you for a substantive understanding of it than me riding in coach qualifies me to fly the plane. If you had just asked, rather than asking me where I went to law school because I disagreed with you, you might have stood a shot at getting an explanation from me.

I am still perplexed that so many of you think that temporarily depriving people of their children until individual review hearings can be had is a greater mischief than returning children to a pedophilia cult. I think it is a result of a skeptical view of the government and of a very limited understanding of the principles of law at work.

Now, you can ignore all of this because it doesn't fit into your narrative if you wish. Or you can just say that you think the judge made the wrong conclusion based on the available evidence. That is your right. But seriously, lets stop talking about due process conversation because the collective understanding around here of that concept is generously 1 on a scale that goes to 10. If you want to stop being insulting I might even expound it for you.

This is a good post, and I agree with much of what you said. However, I do feel there needs to be reasonable suspicion on the part of law enforcement prior to taking someone's children away. I haven't followed the case that closely to know if it existed or not. I have heard through my short review of the matter that the phone tip originally leading police to the compound was fraudulent (though police, if they didn't know it was fraudulent, may still have had reasonable suspicion to intervene and may even now have reasonable suspicion after the fraud of the phone call was revealed).

I will also say that due process shouldn't be bartered away (and I don't know that you indicate it should be). When you talk of trade-offs in the law, you are right; they do and they must occur. That said, due process shouldn't be the subject of those trade-offs. A temporary deprivation of rights isn't necessarily a violation of due process. Due process is just that- a process. There must be a fair and equitable system in place for handling difficult issues like this, but if a fair and equitable process is followed, I don't see a loss of due process where a temporary deprivation of rights occurs.

[SeattleUte]

Agree with Dan's post except the last sentence. My understanding of due process is way higher than a 1. I have less understanding where the state's special interest in protecting minors is involved. UtahDan is right though that depriving parental rights temporarily in order to ensure against risk or possiblity of continued abuse and afford due process isn't a violation of due process. He's also right in that people who read CNN or Fox or the local paper and draw ultimate conclusions are fools. I've had some recent experience in fact and can tell you that they are mostly interested in printing the sensatioal and prurient and sensationalizing innuendo or easily explainable events. They aren't interested in reporting about competence or honesty or good and consciencious work or decisions. The good hard and honest and fair work that goes on most places in this country doesn't make the newspapers.

[UtahDan]

Originally Posted by SeattleUte

Agree with Dan's post except the last sentence. My understanding of due process is way higher than a 1.

As high as, say, a 4?

PS I should also add that it is understandable that we all have narratives in our minds about certain subjects and we try to sandwhich what we learn into what we already believe. This is just a subject too complex to allow that.

[MikeWaters]

Wow, I knew it was easy to get into law school, but I didn't know it was that easy.

The point is that the law specifies what is required to take a child away, even on a temporary basis (btw, how long do you think "temporary" is?). I provided the criteria, and for the vast majority, the one that was applies is "immediate danger."

The argument that a 6 month old boy is being groomed to be a rapist, and therefore needs to be taken away from his parents under the criteria of "immediate danger" boggles my mind.

This due process only in appearance. Yes, there was a warrant, yes there was a judge, yes there was a hearing. At the very least, the hearing was only pro forma.

Any bets on how long "temporary" custody by the state is going to be? If my 6 month old was taken away for a year or two, that would be an incredibly long time.

This is crazy. Punish those that have committed crimes. Do not punish people that have not committed crimes. It's as simple as that.