Jay B Gaskill

“In part, what would happen in the wake of a Greek default would depend on whether European leaders could create a firewall* to control the damage from spreading widely-”.

Greece Nears the Precipice, Raising Fear, New York Times 9-20-12


*Hint- There is no firewall.  Read on….


The Unintentional Conspiracy That Almost Destroyed American Banking And May Yet Do More Damage…


The essence of the traditional conservative project is the preservation of boundaries – social, political and economic; and the essence of the liberal project is to seek the elimination or amelioration of the same boundaries. Both seek the improvement of the human condition – but conservatives lean towards less tinkering and more evolution, while liberals favor more social and economic engineering; liberals usually, but not always have less concern for the boundaries between private and government action. History is full of examples in which each of these approaches has worked better than the other one…for a time.

Now let’s turn to the banking mess, where invisible boundaries are crossed all the time, often with damaging consequences. In the financial world there are several such boundaries: between borrowing and owning, for example, between consequential failure and subsidized failure, and between high risk and low risk banking operations.


The design of the Titanic included below-deck watertight compartments; these were steel walls designed to contain flooding so that the entire ship could escape capsizing as long as any leak was confined, leaving enough undamaged compartments to provide net positive buoyancy. The concept was sound, though poorly executed using the technology of the day. The practice is now standard in the large vessel shipping industry using improvements in design and execution such that large vessels almost never capsize anymore.


Greece is only the first and most visible of the EU’s basket-case economies.  The firewall reference in the opening quote from the New York Times betrays a fundamental misconception about the very concept.  There was no firewall between the European economy and the Greek economy.  What the author apparently means by the term is a bailout in the form of a capital infusion as an emergency substitute for the lack of a firewall. As in the Titanic, a firewall – or sealed watertight compartment – is to avoid having a bailout.  As the Titanic taught us, bailouts sometimes cannot work.  A robust Greek firewall would have either prevented the Greek government from misusing European borrowing power to run up an irredeemable level of indebtedness or insulated the other EU members from the damage to the common currency.


There once was a working failure-containment strategy that allowed commercial banking to weather the storms that periodically buffet the investment side.  The strategy, partly cultural and partly regulatory, had two key elements: (1) keeping a sufficient number of separate banking institutions so that several failures among them would not bring down the entire system – or stress the FDIC guarantees past the breaking point; (2) maintaining a robust wall between high risk investment banking operations and the conservative banking services used by the day-today consumer and business depositors.

We are still suffering through the ripple effects of the 2008-9 US banking crisis (the scope and severity of which cannot be overstated).  That crisis was a direct result of operational and organizational changes in the finance industry during the last 15 years. Over those years, propelled by the “dot com” bubble and other high profit lures, investment banking institutions began ramping up profits by taking greater risks, ultimately trading in bundled mortgage-secured debt instruments to create the illusion of financial soundness. These instruments were, in fact, faux assets that had been leveraged as much as 50-1 then used to pad the balance sheets of a number of major financial institutions, to support more risk-taking.

Then, in a breathtaking change of policy, American commercial banking systems simply abandoned protective compartments and firewalls altogether.  Speculation in bundled mortgage debt packages, shot through with negative value assets, was allowed to contaminate traditional banking services. But during the banking crisis, Canadian banks and the more conservative commercial banks, like US Bank, were largely unaffected.  Those few conservative, traditional banks were like a handful of immunized families during the black plague.

The failure of America’s mainline banking institutions to honor the boundaries that would contain bank speculation-engendered failures was a failed experiment with liberalism enthusiastically embraced by conservatives.  Among the many, otherwise intelligent conservative voices, the scholars and analysts of the Heritage Foundation and the American Enterprise Institute joined with the liberal Brookings Institute in praising the change.  Consumer bank fees were reduced, American banks became more “world competitive”.  It was a win-win for conservatives and liberals alike.  Or was it?

As a research fellow from the Heritage Foundation recently wrote, “Prohibiting banks from engaging in certain types of financial activities is an old and discredited concept that was once embodied in the Glass–Steagall Act of 1933. Before its repeal in 1999, Glass–Steagall limited banks’ ability to meet the needs of their best customers as new, cheaper financing products developed that were outside the scope of their allowed activities. Some banks were weakened through their inability to compete with other types of financial institutions, while eventually other banks found ways around those restrictions.

“…[attempts via] misguided legislation to reestablish the Glass–Steagall Act assume that a bank should be essentially a utility limited to taking in deposits and making certain types of safe loans. They reason that if banks are protected from risky activities, other types of financial services firms can be allowed to fail without causing problems to the overall financial system. However, these proposals completely miss the point that as far back as the 1998 failure of the hedge fund Long-Term Capital Management, systemic risk to the financial system is less likely to come from banks than from non-banks.

By David C. John, Senior Research Fellow in Retirement Security and Financial Institutions in the Thomas A. Roe Institute for Economic Policy Studies at The Heritage Foundation.

Heritage Foundation Web Memo No. 2810, February 22, 2010

That piece spoke for the conservative establishment.

Background: The Banking Act of 1933 that first established the FDIC and inaugurated depression era banking reforms, was also known as the Glass–Steagall Act.  Among other things, it barred any bank holding company from owning other financial companies.  These and other firewall protections of commercial banking were repealed in 1999 by the Gramm-Leach-Bliley ActThis one measure took down the wall between investment banks that issued securities and the commercial banks (classic deposits and loan). And it repealed conflict of interest restrictions on investment bankers who simultaneously served as commercial bank officers.

It was a bipartisan orgy – liberals and conservatives banding together in the heady days of the dot com boom to erase some pesky, antiquated, profit-impairing boundaries.  The House passed the first version the act 343-86 when republicans rolled a few nay-saying conservatives and most democrats.   But the democrats jumped on board when the House voted 241-132 (most republicans opposing, most democrats supporting) to instruct negotiators to insert provisions against redlining. You may recall that redlining is what liberals called the practice of mortgage lenders who used strict borrower-criteria in poor (read minority) neighborhoods, based on the quaint notion that anyone would ever have to actually pay back a mortgage loan!

The final bill incorporated strong anti-redlining provisions.  It passed the Senate 90-8, and by the House 362-57, and was signed into law by President Clinton in late 1999.

As it turned out, this would be a key ingredient in a toxic stew.  The anti-redlining provisions led to political pressure on mortgage lenders, Fanny May and Freddy Mack (The Federal National Mortgage Association and the Federal Home Mortgage Corporation) to make more and more questionable loans.  This led to a cultural watershed: The practice of making loans that depended on the expectation of appreciation instead of the borrower’s actual ability to repay the borrowed money became the norm. Thus the seedbed for the real estate lending bubble that would dominate the 90’s and the first eight years of the 21st century was planted, watered and fertilized.

We had been warned.  Three years earlier, in 1996, Federal Reserve Chair Alan Greenspan had given a famous speech before the American Enterprise Institute (recall this was during the height of the dot com bubble) in which he asked “How do we know when irrational exuberance has unduly escalated asset values, which then become subject to unexpected and prolonged contractions?”  The final answer would come in with a shock in late 2008.

The recession that immediately followed the dot com bubble became dramatically worse in the immediate aftermath of the attacks of 9-11-01. But the real estate speculation bubble was able to fill the void, replacing the dot com froth with toxic asset fizz.  American investment banks jumped into the risk pond and frolicked for seven years in a state of uncritical, irrational exuberance.  When the inevitable banking collapse finally took place in 2008, the damage could not be confined to a few, compartmentalized risk-takers.  The “toxic asset” problem (really faux assets, un-payable loans on overvalued properties – leveraged by a factor or 50-1 in some instances) had infected Wells Fargo, Citibank, Chase, Bank of America and hundreds of other major banks, including their day-to-day main street commercial operations.

But not all banks were among the hundreds receiving bailout money in 2008 and 2009.

Worldwide Financial Crisis Largely Bypasses Canada

“Canadian banks have not gone shaky like their American counterparts, economists and other experts said. There is no subprime mortgage or home foreclosure mess. And while the United States fears a prolonged recession, Canadians have remained relatively sanguine…”

“Strict rules also govern mortgage lending. By Canadian law, any mortgage that will finance more than 80 percent of the price of a home must be insured. Two-thirds of all Canadian mortgages are insured by the quasi-governmental Canadian Mortgage and Housing Corp. As a result of the tough standards for insurance, ‘people tend not to get mortgages they cannot afford,’ Gregory said.

“’Defaulting on a loan is also more difficult in Canada than the United States, Gregory said. ‘You can’t just drop off the keys and walk away.’

“For Canada’s seven biggest banks, the percentage of mortgages at least three months in arrears was 0.27 percent in July, close to historic lows, according to the banking association. Also, few Canadian banks got caught holding large numbers of toxic American mortgages.

“Amid this relative health, there have been reports that American companies, needing cash and credit, have been turning to their Canadian subsidiaries for short-term loans.”

http://www.washingtonpost.com/wp-dyn/content/article/2008/10/15/AR2008101503321.html .

CNN Money published the initial bailout list of US Banks – there were hundredshttp://money.cnn.com/news/specials/storysupplement/bankbailout/ .


Old fashioned conservatism and sane liberalism tend to respect the essential boundaries on which day-to-day commerce depends. Those are simple boundaries, such as those between assets and liabilities, between secure loans and speculation – the boundaries that ensure reasonable safety and dependability, and they include the institutional boundaries that enable the compartmentalization of risk.

Who would tether a fully loaded 707 passenger jet to somebody’s experimental rocket plane?  Common sense and ordinary folk wisdom are not rocket science. But to the politicians and mavens with the hubris to think that a country’s economy can be “managed” by experts using techniques and algorithms that even financial advisors can’t penetrate, common sense might as well be the type I, types IIA and IIB, and heterotic SO(32) and E8XE8 superstring theories of cosmological physics.

Without the profit incentive and the discipline of failure, government’s well-meaning ventures are usually expensive failures, frequently they are one-off gestures, and rarely are they free of malign unintended consequences.  This is because government failures never punish those who engineered them. [Read my popular article, Legislative Malpractice, and weep – http://jaygaskill.com/CongressionMalpractice.htm .]

Government, especially at its well-meaning best, breeds bureaucrats as fast as a warm pile of manure breeds flies.  And mindless bureaucracy (the phrase is a redundancy), whether it infects banks, or regulatory agencies, or real estate sales agencies, or congress or the executive branch, or investment firms, is the enemy of creativity, individual judgment, and personal accountability.  The fatal attraction of pyramid schemes (and that was the housing market from 1988-2008) seduced both liberals and conservatives alike.  But only the naïve liberals and complicit unthinking conservatives were reckless enough to entice poor people into that game.  Of course, we need government, but we need insurance against its good intentions.

Spare me the elites who can’t seem to understand why the ordinary people of this country are angry at therm.


For further reading, see The American Creative Surge, also by the author, linked at http://www.jaygaskill.com/ACS2011.htm.

This article, published on The Policy Think Site and its Linked blogs, is Copyright © 2011 by Jay B. Gaskill, Attorney at Law, All rights Reserved.

Forwards and links are welcome, with attribution. For all other permissions, your comments and suggestions, contact the author via E-mail at law@jaygaskill.com.

Please rehire POTUS

Re-hire Me, Please

September 20, 2011

To all my employers:

Yes, I know now that I applied for this position with too little experience and even less competence.  And I know that my performance has been a disappointment to a lot of you… okay, most of you.

But it is with hope, bordering on great confidence, that I can now assure you:  Not only have I learned a lot from my mistakes, there are going to be improvements – big ones – they are coming any day now.

Every week or so, I am learning a lot more.

Yes, I know that 31 months and 3 weeks on the job was a long time to wait for improvement, but when you think about it… it really was only 26 months when adjusted for my training and vacations.

Now that I am finally ready, I really need another couple of years, at least, to begin to deliver some improved results.

So please rehire me when my contract runs out.  You probably won’t be sorry.

Sincerely yours,


Copyright 2011 by jay b Gaskill, as published on The Policy Think Site and its linked Blogs.  Forwarded links to this piece are welcomed with appropriate credit. Reprinting requires the author’s permission.

This letter was not actually written by anyone that the author actually knows. Any resemblance to reality is the product of parodic synchronicity or mean spirited common sense.

The author, believe it or not, is a lawyer. Contact law@jaygaskill.com


Copyright Jay B Gaskill 2011, All Rights Reserved.  Contact the author <law@jaygaskill.com> for all permissions.

T H U G O L O G Y 101

– And-

Why the Hell Be Good?

Text of speech given 9-14-11 in Moraga, CA

Back in the day when I was a newly minted lawyer with the Alameda County Public Defender’s office, I was oriented by my first boss, John Nunes, a tough, pipe-smoking trial lawyer with a biting wit. He introduced us newbies to the world of crime (some of whom still thought that defending crooks was a form of social work), with a warning: “This job,” John said, “is like touring a sewer in a glass bottomed boat.”

Over the next two decades I was immersed in a world dominated by criminal thinking…and it wasn’t Washington, DC.

Nobody issued us scuba gear.  But as a result of my immersion, and a habit of paying attention to the human condition, I gained some insights into crime worth sharing.

Now you would think that a study of thuggish behavior would be taught somewhere in the academy on a regular basis. A working understanding of the thug mindset and behavior is basic to the study of history, important for the conduct of American foreign policy, and a key to local police staffing issues.  The crooks of Alameda County taught me something worth sharing.

After serving a couple of decades in the trenches as a trial lawyer for the county public defender’s office, I went back to jail one afternoon in Pleasanton at the invitation of Sheriff Charlie Plummer.  Here I am, the chief Public Defender for Alameda County, standing in the Command Center of the modern Jail complex, the replacement for the infamous old Santa Rita Jail, about to give a commencement address to the graduating class of the Sheriff’s 102nd Police Academy.

Charlie introduced me as “the best public defender in the country.” He added, “When I see him on the elevator, I tell him ‘Have a bad day.’”  Charlie Plummer is a good man and a loyal friend.

Some of the lessons I shared with these newly minted deputies and police officers are important enough to share with you today.  But first I need to tell you about another “teaching moment”.  After I left my life of crime, my wife and I were visiting her son in mid-Manhattan.  We were in his apartment on September 11, 2001, within smelling distance of Ground Zero.  We spent the following days moving among the stunned, the worried and the grief stricken. I saw more love for the American flag than I ever had witnessed before.  And I learned a new lesson.  Very few criminals are truly evil.

When you actually encounter authentic, full-on evil, as we did that day, it is absolutely unmistakable, and qualitatively different from the merely bad and despicable.  I looked around the city and saw the rest of us, the cab drivers with turbans, the shopkeepers, the tourists, the ordinary crooks, the beautiful people and the broken ones, and I realized two things with a terrible, unforgettable clarity:  Evil is a very narrow category, terrible and dangerous, and in its presence we are privileged to see all the rest of us, however imperfect, as versions of the good.

Truth be told, I still enjoy the old fashioned criminals.  They are much like us – but burdened by their bad choices, their rap sheets and arrests; they are flawed screw-ups with a residual conscience, men and women who hold, deep down, a hope for better days.

Back to my speech to the POST academy graduates and their families gathered in Pleasanton:  I described a time when my colleagues and I were allowed to mingle with the prisoners in the old Santa Rita.  Often not a deputy was in sight as we moved among the jail population. They were a lot like the prisoners in the film, the Shaw Shank Redemption.  We were hassled, cajoled, complemented, bullshitted, begged, amused, and aggravated by our clients. Some were appealing characters, caught up in the web of their own bad decisions, now being processed by the impersonal justice machine.  Others were the classic assholes for whom flunking the attitude test was just the first in a series of life’s lessons ignored.

We really had no sense of danger as we stood in the open by wooden barracks, waiting to interview our new clients. The wind ruffled our files and papers; the crooks lined up in orderly queues.  If anyone got out of line, the other inmates would make sure we were okay.

I looked out at the academy graduates and said: “Those days are gone”.  There were knowing looks from senior deputies. We had seen it in certain prisoners’ hard, wary eyes, and their coiled-spring body language. There are reasons for this human deterioration, for the necessary bulletproof windows between lawyer and client, for the difficulties getting approval for a “contact” interview – meaning a real face-to-talk – and for all the other security precautions.  The prison and jail population is more dangerous.

Why this change? I see two main factors at work: The drug culture – it is a character poison.  And the virtual drop out of the moral foundations of society, formerly supplied by religion.  As a result, ever so gradually an entire male criminal subpopulation was brutalized.

Within the larger group of crooks over the years, I began to notice more dead eyes, more cold hearted thugs, more than ever before  – teenagers in juvenile hall for whom the act of killing someone had all the moral and psychological significance of turning off a bad television program to go to the bathroom.  I call these soul-damaged ones the “Cold New Breed”.  More on them later…

One day, I was walking back from the North County Jail in downtown Oakland where I had just seen one of my murder clients.   Behind me on the sidewalk I noticed a woman in her twenties and her child, a girl about nine or ten.  The pair had obviously just visited a prisoner charged with felony assault.  “See,” the mother was saying to her girl, “if you cut somebody, you can end up in there.”

Now I need you to stop and think about that exchange, as I did.  It spoke volumes to me.  The tone of the mother’s remark was flat and conversational.  There was no sense at all that the woman was communicating an event of moral significance.

It was as if she had said, “See those weeds, if you don’t cut the grass, that’s what your lawn will look like.”  Her tone was coolly practical, without moral judgment.

Put yourself in that conversation.

You are talking to your own child, perhaps a niece, nephew or student.  Someone the child knows is in jail for stabbing somebody. Imagine what you would say. Consider your tone.  You would feel a gut reaction to the event, a sense perhaps captured in the “My God, how could he have done that?” Every part of you would tend to communicate to the child that the act of assault itself was wrong.  Whatever your words, you would be speaking in a context in which the given was – We don’t do that. I think that was what most disturbed me about her remark: the context it revealed, a world in which basic morality was simply absent, just as if you were talking about color to a blind person.

This was not an isolated sample from an atypical population.  It was like finding dry rot and a termite in your kitchen floor, then finding telltale powder along the bedroom walls.  There is never just one termite.  Outside this room, there is a world where the moral compass is broken, where people don’t know north from south because their compasses point only in one direction — immediate, predatory self advantage.

This didn’t just happen.  The first famous philosopher who claimed that morality is just an invention set in motion a chain of events that has now put us all at risk. That one idea – morality as made up – has eaten its way though the social fabric with the same effect as a computer virus corrupting an irreplaceable data base.

By the time these notions get down to the street level, their carriers are like the drunken sailors who build a bonfire in the hold of a wooden boat far from shore.   Here are some examples of bonfire building:

  • Everybody does it.
  • She had it coming.
  • Nobody’s going to find out.
  • Money can buy anything.
  • Only an idiot would tell the truth about that.
  • I had no choice.

Once upon a time there was a great cultural transmission belt that carried the essence of the Moral Law from one generation to the next.

But not far from here, that belt is broken.

Most of the crooks I talked to(and there were several thousand over two and half decades) were more than three generations away from anyone who ever set foot in a church or had otherwise received any formal moral instruction.

Now, ordinary criminals are not hopeless cases.  You’ve heard about “honor among thieves”? It is true.  Any functioning criminal enterprise requires minimal social cooperation within the criminal cohort.  Cooperation demands a set of basic rules in order for the caper to be pulled off and the spoils to be distributed.  Crooks mimic primitive tribal behavior where outsiders are prey, but not the inner circle…at least not until after the spoils are distributed.  Minimal trust and fidelity are needed in even the criminal gang: Do not steal from or cheat your fellow crook.

Here is a true story about two thugs and a prostitute, a gang of three.  The woman’s job was to signal the thugs when she thought her John was worth robbing.  But one day she failed to account for the Thugs’ share and Thug one went into a tantrum.  He pulled a gun on “that Hoe” (as he put it) and shot her. But the round went clean through, exiting her back.  Unfortunately for Thug two, he was standing behind the “hoe”, and took a mortal chest shot.  His dying words were, “You dumb sh**. The prostitute lived to testify against Thug one.  Under the law, his murderous intent to kill the prostitute was transferred to his crime partner.  The jury convicted him of murder, agreeing that he was, in fact, a dumb sh**.

Stupidity and the failure to maintain trust relationships is why most crooks get caught. Keeping order among crooks for more than a few hours requires more than a calculation of advantage.  As soon as conditions change, somebody gets stabbed or shot.  This is why thugs tend to get caught.  The baseline trust thing requires something thugs lack:  It’s called character.

Ordinary crooks are severely foresight challenged.  Their capacity for advance planning is negligible and their impulse control is weak at best.  For the common crooks I dealt with, it was almost impossible to plan ahead.  A colleague of mine – now a judge – tells the story about when he was a public defender and attempted to persuade a young thug to take a fifteen year deal in order to avoid a life sentence.

“Doing fifteen years isn’t so bad,” Al – a well preserved man in mid-life- said.  “After all, when you are paroled, you’ll only be my age.”  One look at my friend Al, and it was no sale.  The trial and life sentence followed.  Crooks tend not to anticipate ever getting to middle age.

Most of our practice was spent attempting to persuade a subpopulation of crooks to act in their rational self interest when to most of them it was a novel idea, never before tried.  Two cautions here:  Both three strikes and the death penalty work in spite of this short term thinking.

But there is a dividing line between ordinary crooks and thugs. Not every lawbreaker is a crook and not every crook is a thug.  For that matter, not every thug is a lawbreaker.

Thugs have a casual readiness to do violence, and the complete absence of shame.  Thugs live in a world where life decisions are motivated by greed, and settled by intimidation.  And for thugs, intimidation means nothing short of a credible threat of violence – meaning I’ll get you soon, not someday.  Cooperation is a temporary alliance, a transition state between betrayals. Lying and deception are art forms to be admired and imitated.

Alpha crooks, including the Alpha thugs, are a different breed of cat.  For one thing they are smarter and better organized.  In fact, they share a number of traits with some of our political leaders.

I must say that, in spite of all the evil, sin, bullshit and depravity in the world, redemption is real.  But it is, of necessity, a singular, individual epiphany, the occurrence of which is only as real as one is realistic about what it entails.  Redemption requires recognition that you have committed a wrong, a commitment to turn away from that, and an actual new path in the better direction.  I like the Hebrew term teshuvah. It means turning away from wrong and a turning toward the Author of all good.  When we lack the moral framework to recognize that we have done something wrong, redemption is not happening.

George Orwell is credited with saying, “We sleep safe in our beds because rough men stand ready in the night to visit violence on those who would do us harm.”

The possibility that redemption will strike your local burglar like a lightning bolt does not make you safe in your bed at night.  For that we need crime control.  And crime control starts with thug control.  Think of thugs as predators, operating within a territory.  Graffiti is important because it is a territory marker.

The good news is that most thugs are controllable by a robust police presence.  The cop on the street suppresses impulse crime – by far the most common variety.  Beyond the blue uniform deterrence effect, crime control requires four equally essential elements: [1] robust, effective police work; [2] visible control of the territory by the good people; [3] swift, tough criminal justice; [4] the integration of these elements with the Moral Law.

The time honored “Rule-consequences” model actually works.  It is as basic to the human condition as Newton’s Laws are to mechanics.  The model works because people do respond to incentives and disincentives.  But the authority of law itself begins to unravel when the legal rules are not supported by belief in the Moral Law; worse still when the rules and their application don’t line up with the Moral Law.  …Because the Moral Law applies to rulers and the ruled…equally.  Without a sense of ultimate morality to which the justice and law enforcement professionals and the rest of us are subordinate, the center cannot hold.  Exceptions to the reach of justice de-legitimize all authority, especially when exceptions become exemptions based on power, privilege, politics and/or victim status.

The Moral Law is indispensable, but not sufficient.  In 12th century Europe, a single priest could face an angry sword wielding man, stopping the would-be killer in his tracks with a single phrase:  “Put down the sword or I will deny absolution.” Just try using that threat against a 21st century thug.

I once naively assumed that the K-12 educational curriculum included the essential moral injunctions of the bible, the torah and the Gospels. But the doctrine of separation of church and state has become the doctrine of the separation of moral law from all state ceremonies and institutions. This is as self defeating as refusing to teach Newton’s laws of mechanics because Isaac Newton believed he was uncovering evidence of the mind of God; or refusing to teach the Golden Rule as if it were just Christian doctrine; or refusing to celebrate the American Revolution because its architects taught that human freedom is a gift from the Creator.

Worse, the latest politically correct fad is to substitute medical terms for moral categories. It’s almost as if we are being asked to worship a secular savior – the Great Therapist.  A few of my clients had a version of this, referring to some pervert as a sick fu**.  The attempt to medicalize anti-moral behavior will someday be recognized as one of the worst mistakes of the last two centuries.

Religions are equipped by tradition to provide an answer to the “Why the hell be good?” question.  But just answering the question is not enough for the thuggish mind because thugs represent the subset of humanity who grew up without caring why other people are foolish enough to be good. Though indispensable, the Moral Law is not sufficient because the 21st century thug kills the priest.

In church or synagogue or academia, we may hear “love conquers all” without being reminded that protecting the weak requires somebody to step up to the protection task carrying a big stick.  Love, without robust action to protect the innocent, is an invitation to a visit from predatory thugs.

So we need to unite on the basics to get our thugs in order.  The pursuit of high virtue is admirable, but the prideful pursuit of purity is a distraction.  The basics mean giving primary attention to the moral boundaries that hold back the thugs. These boundaries are weakened when we are distracted and confused by too many petty rules and too much petty purity.  Prohibition is an example of misplaced priorities.

Cultural and moral relativism are shams.  Living by the core moral principles is not rocket science.  Respect for the property, privacy and persons of others, as in not robbing, cheating, tricking, assaulting, raping or killing them, and respect for family obligations are at the heart of every healthy society’s moral order.  Each is protected in the Decalogue and the English Common law. There is one overall design behind these core elements: Protect human dignity from the predators.  All the rest is small change.

It turns out that thugs can actually thrive in a robust moral environment, provided it’s run on a strict, rational, impartial rules-consequences basis.  This is the secret of the remarkably effective drug court “rehabilitation-with-teeth” programs that have sprung up all around the USA, starting in a single courtroom in Oakland in 1991.

A study of thugs teaches us that we need a more robust and realistic understanding of love, the kind that trumps gesture and is aimed at the practical outcomes, the kind of love that requires us do what actually works, the tough love that denies an addict the degrading oblivion of the needle, the harder course that is the right course.

Okay- those are Thugology Essentials.  If this was year 1800, we’d be through.  But it is the 21st century and I promised to talk about the Cold New Breed.

Evil is real.  This is a separate topic, but her is a short hand definition.  Badness and wickedness are part of the human tendency to fall away from the good, often for narrowly selfish reasons.  Evil is a complete motivational turnaround, the active, motivated pursuit of the bad as a value in its own right, as difficult as that notion is for most of us to accept.

As I said, morality is not a medical category, but if an evil mindset is an infection, it is a moral infection.   A moral breakdown begins with nihilism, the world view that, in its naked form, represents the affirmative rejection of morality.  Drawing room elites have toyed with the theory that morality is personal preference, like one’s lipstick choice or brand of beer.  For these intellectuals, such ideas are a harmless parlor game. No, these elites do not rape and pillage their neighborhoods; but that’s a small consolation. They are the Typhoid Maries of the culture.  The Cold New Breed of thugs is their progeny.

Nihilism grants a license to do evil.  In one brutal murder that I followed closely, the convicted killer, a young male was deep into the Goth scene.  He made a picture depicting a human figure with an animal head holding two severed human heads, one in each hand.  The female murder victim was stabbed and mutilated; a symbol was carved in her back resembling drawings and a CD album cover in convicted killer’s personal effects.  This young man lived in an anti-moral universe, seething with death images and malevolent ideas that had conferred psychological and moral permission to do dreadful things.   Based on his dark musical tastes, I discovered a connection to the “industrial noise” musician Boyd Rice.

Mr. Rice, who was made a High Priest in the Church of Satan founded by the nut case Anton LaVey, wears a version of the two armed cross.  Rice is a stone cold misanthrope.  His “think tank”, the Abraxas, has proclaimed the following ethos: “The strong rule the weak, and the clever rule the strong”.  This might be an accurate description of the social climate in the nation’s capital, but it is not a moral sentiment.

This is the nihilist’s creed.

The information-swamp carries all sorts of bizarre, malevolent ideation, death fantasies and dark power-ideologies. They are floating through our culture, just below the radar of most adults. They mainlined into this kid’s mind.

These ideas and images act like an odorless and colorless toxic gas that attacks the morally vulnerable.  As I followed that case, I coined a term for these toxic, pathogenic, anti-moral images:  They are “malogens”. This new term is now in use – having been cited by a political scientist with attribution. Malogens are malevolent and pathogenic cultural influences, in effect the seductive forms of anti-life nihilism, promoted in entertainment.

The convicted killer’s New Age mother was apparently clueless about the danger, and oblivious to her son’s vulnerability.  The jury did not hear the words I’m about to read to you, but they are representative of the material that assaulted this young man’s mind through his ear-buds:

“…feel the machines implanted in your thoughts/ mangled nervs twist and turn /form new paths in your brain/ pull out all the wires and push them into your heart/ yeah push it into your heart/ yeah push it into your heart…so shoot it out/ your sick life has come to me/ your life ends/ you’ll never cry or breathe again.”

I’ll spare you the rest – there was much more of this toxic material.  Clearly, the intergenerational moral transmission belt failed in this situation.

A disclaimer:  Having closely followed that trial, I have attracted e-mails from a group that is persuaded of this man’s innocence.  New issues are being raised on review, but my own assessment of the evidence presented at trial, including some damning blood evidence, leaves little room for doubt about the integrity of the jury’s decision.  Even a new trial, if one is ordered, will be very unlikely to result in his exoneration, in my opinion.  And the larger lesson remains:

We ignore malogens at our peril.  Because we live in an information saturated age, we will never shut off all the malogenic input.  We need a firewall.  Fortunately, the firewall technology already exists.  It is moral character… eight thousand year old technology.

But character is inspired, not installed like a computer program. Character is forged by trial, not played like a video game. Character is sustained by faith.  Yes, faith. All trust relationships are founded in faith. No institution, whether religious or secular, owns the patent.  Faith is open source software.  It was issued along with the human capacity for moral intelligence by the Author of the Moral Law.

You and I could be the last link in that great intergenerational transmission belt, possibly the last, best vital connection to the Moral Law. …Because too many of the later generations are not all that sure of the moral ground.  And you can’t fake moral confidence. Children can sense an adult’s moral ambivalence like a dog can smell fear. Character is our firewall against 21st century malogens.  And the rest is up to you and me.

Some question topics follow:


Three strikes laws are designed to set up a system of increasing mandatory incarceration periods for repeat, dangerous felons.  Thugs are actually aware of this and most keep track of their “strikes”.  The crime reduction effects are threefold.  One– many, but not all thugs are deterred…they may not do the math, but they do understand that more is more and a lot more is even worse.  Two – more importantly, most felons are serial repeaters.  Many burglars do ten to twenty break-ins a month.  When even of them gets another ten years, the overall burglary rate drops by the same amount.  Three – police allocate resources and time to get the best results, and three strikes givens them an extra incentive to work harder, and the results show it.


The death penalty is controversial, especially among those who are least familiar with the principles of “Thugology”.   Recent studies show a deterrent effect such that, as one scholar pointed out, each execution of a convicted murderer saves six innocent lives of would be murder victims.  Not all murders are deterrable and not all thugs are deterred by the prospect of the death penalty.  But in my experience, the idea of the death penalty is bright line simple and fits perfectly into the thug mindset.  Moreover, the very prospect of being held for years on death row, isolated from one’s prison buddies, with execution dangling as a possibility, is a deterrent in itself.  The subset of killings that are most deterrable are the situation where the would-be killer has the victim in his power and must then make a decision to kill or not to kill.  Imagine you have been carjacked and placed in the trunk of your car.

You are the only witness who can put this thug away.  You may not believe in the death penalty, but you sure as hell will wish in that moment of peril that the thug in the front seat does.   Many possible murder victims are spared.


We are hearing that crime, especially violent crime, is down, in a number of cities – Oakland excepted.  But isn’t this a recession?  Isn’t crime supposed to go up when times are hard?
Overall violent crime has sunk to its lowest level since 1973.  Homicides in New York have dropped 79% during the past two decades. Chicago is down 46%. Los Angeles is down 68%.  Among the factors cited by experts to explain this trend: “…the absence of gang-fueled wars over a drug of the moment, such as the turf battles over crack cocaine”. A second factor is the application of real-time computer mapping of crimes, enabling police agencies to deploy limited resources more quickly and efficiently.

Here is the more important revelation:  The long standing myth that poverty “causes” criminal behavior is discredited.

A major consideration is missing from the discussion: Social capital has improved in the declining crime areas.  Why?  Because of terrorism and the recession.

The social scientist, Francis Fukyama, connected social capital and the crime rate in his 2007 book, The Great Disruption and went on to identify periods when social capital was disrupted and correlate them with a breakdown in law and order.

Social capital declines as various social pressures disrupt common values.  For example, an area inhabited by a highly mobile, transient population, one where the stable families have moved out, becomes a community of strangers, or more accurately, a collection of strangers.  These areas are social capital poor, and high crime follows.

“Mere” ideas can degrade social capital, such as the malign notion that “all morality is just made up.”

Strong social capital was evident in turn-of-century American cities, populated by extended families living is close quarters.

Think of those urban settings where neighbors look after each other and even strangers are alert to predators.  Imagine a shopkeeper in a busy commercial district noticing a small girl wandering unattended, while another mother’s eyes follow the child until she reaches safety.  In a high social capital community these interactions are multiplied one hundred fold…and the activities of criminals and predators are sharply suppressed.

The recession has returned at least one member of the household to the home-front during the daytime. And the ongoing terrorist threat, particularly in the target cities, has changed the mindset of strangers as they relate to each other and the larger community.  Social capital sharply improved as a result of the common threat.  And terrorism has also placed law enforcement on edge and increased its visibility and prestige in the community.

The economic stress of unemployment and the ongoing terrorist threats are challenges to be overcome, but all these developments have worked together to remind us that strong social capital depresses the crime rate.  Our moment of comparative public safety might melt away unless we choose to remember and honor the basics of crime control:

Robust law enforcement, shared community values and relationships confer a public safety benefit to everyone.

There is a tendency to cut public protection funding, even in prosperous times, when the crime rate falls.  “Punishing” law enforcement success is a mistake, even in tough times.  It’s hard enough to be poor, but to be poor and forced to live in a crime ridden neighborhood is a nightmare.  A robust, visible police presence depresses crime, and the drop out of a regular police presence inevitably increases the boldness and activity of the crime-prone individuals.  No community is exempt; crooks and thugs inhabit every city and town in the country, but their criminal behavior rises with public complacency and neglect and falls with community vigilance and police support.

Economic poverty does not cause criminal activity to grow, but poverty in our shared moral foundations and social capital does.

Jay B Gaskill

Served as the Alameda County Public Defender 1989-1999

Some Crime and Criminal Justice Links

Death Penalty Study


History of the Alameda County Public Defender


Crime Control


Thugs, Saints and Old Fashioned Criminals


Speech to Sheriff’s Academy


The GOP Debate, Picking and Digging


This article is also posted at http://jaygaskill.com/PickPotUS2012.html

Picking POTUS 2012

The Debate and the Hole



Jay B. Gaskill

If on November 2, 2012 the economy looks a lot like it does today, the country will be electing President Perry or President Romney. It will not be electing Governor Christie, nor Congresswoman Bachmann or Congressman Ryan. Assuming, for the sake of argument, that former Governor Palin enters the race, it will not be her, either.

Money and organization dominate at this comparatively late stage in the process. Remember that the GOP convention takes place in Tampa, Florida on August 27th next year and that the nominee must be locked and loaded for a national campaign at the post-nomination starting gate, and should have already planned and staffed a transition team. The nation and the world are in a crisis, the depth and scope of which guarantee that the next administration must be prepared to swiftly assume executive responsibilities under very challenging circumstances.

Conventional wisdom holds that in yesterday’s debate Governor Perry, having seized center stage, just needed to avoid a major gaffe. I disagree. As the smoke settles, it will become clear that Rick Perry’s tendency to pithy and forceful rhetorical candor borders on the scary at a time that calls for bold policy changes delivered with calm reassurance. The electorate is grumpy to be sure, even angry and frustrated, but most Americans are emotionally fragile in a way that most Texans are not.

President Reagan wisely decided not to charge into the social security thicket and President Bush II, having responsibly put social security reform as a top priority for 2001, hit a brick wall on that issue even before the Twin Towers came down. That wall still stands.

Governor Perry and Governor Romney both understand that social security in its present form is a dramatically underfunded form of welfare. The term Ponzi scheme may actually fit (as in Perry’s book, Fed Up), but Governor Perry’s attention-getting rhetoric will dog him now and may cost him later in the general election, assuming he is nominated.

Whatever problems that social security funding presents this country, they are far from urgent when compared with the problem of funding day-to-day government operations during a deep and dangerous recession. This is not the optimum time to talk about the prospective bankruptcy of a program that will not become acute for a few years, not when we are facing the de facto bankruptcy of the federal government in the near term.

The deeper problem is the bankruptcy of the conventional economic wisdom that has brought us to this place. Look at the European mess. You are looking in a mirror. No one with access to the facts on either continent, in his or her right mind, seriously maintains that the entitlements enjoyed by the Greek rioters are sustainable, or that spending and benefit austerity can be avoided via monetary manipulation magic. It is too late for that in Europe and here in the USA.

We are in a trap. The way out consists of a mix of hard-headed spending adjustments coupled with a creative surge on the economic side. Mr. Obama dimly grasps this, but clings to a dead development model. The British economist John Maynard Keynes argued in the last century that the secret to continuing prosperity was a generous supply of money. He actually used the example (as a thought experiment) of an English village in the throes of high unemployment and deep depression. In his story, someone buries a treasure trove of currency in a deep hole. Full employment results when the villagers begin digging out the money.

It is actually frightening to me that someone as intelligent as Fed-head Bernanke still clings to a version of the Keynesian model. The villagers in Keynes’ example will starve unless the rest of the world feeds them, agreeing to accept the money the villagers have dug up. If everyone buries money and digs it up, over and over again , the depression never ends. One of President Obama’s pet showcased enterprises, a heavily subsidized, much publicized solar panel manufacturer has just gone bankrupt. Subsidized production fails without consumers. Subsidized consumption fails without production and a valuable currency to exchange for that production. Governments have never quite got it when it comes to commerce.

The centerpiece of the US recovery is a concerted, serious attack on the vast constellation of petty rules, unreasonable tax polices and crippling regulations that together constitute the political load on commerce. Ronald Reagan talked about that shining city on the hill. We need to be thinking about a different image. Imagine a soaring eagle. Now imagine a tethered one, hobbled at the feet, entangled in a web of failed good intentions.

You will know that someone is finally serious about getting us out of the trap when the talk gets seriously specific about how to lift the regulatory burdens on profit-making commercial activities in the USA.

As a thought experiment, imagine a country in which all of the various governmental regulatory agencies and commissions were made subject to a deregulation commission, tasked and empowered to strip away the regulations, petty tariffs and rules that curb economic development, hinder profit-making enterprises and inhibit new hiring. Imagine, if you will, that in lieu of an environmental impact report, we required only a shorter, swifter, more objective human heath and safety report. Imagine, also, a country in which new commercial and business regulations could not go into effect without first doing a commerce and jobs impact report. Protect snail darters or people’s prosperity? Suddenly the well -intentioned burdens on economic activity that have been imposed over the last three decades look a lot like luxuries we can no longer afford.


The DOT 2 DOT Blog

As also Published On The Policy Think Site: www.jaygaskill.com

All contents, unless otherwise indicated are

Copyright © 2011 by Jay B. Gaskill




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A PARABLE About Forrest Gump and the Promise of Poetry

Also posted on The Policy Think Site:



About Forrest Gump and the Promise of Poetry

A sage named Cuomo once said that “Campaigns are poetry, but governance is prose.”


Once upon a time, a great people elected a leader who promised greatness. He had been editor of the Law Review for a Great Legal Institution. He had published a brilliant, touching autobiography. He campaigned with stirring promises at a time of economic turmoil. He courted all sectors of the polity, even saying pointedly – “If I can’t turn this economy around in three years, I won’t deserve reelection.”

He was, in many ways, the first of his kind. Little was done to penetrate the hagiographic fog surrounding his resume. Normally the editor of a major law review is a major legal mind, the kind who will be selected to serve as a supreme court justice’s law clerk or as tenured faculty in a first tier law school, or offered a partner track in a major law firm. There is always a trail of scholarly articles from these men and women, many of whom become respected jurists in their own right. There were no scholarly legal articles authored by the leader when he was at law school or later. The leader’s first nomination to the highest court in the land was a scholar, while the leader himself was secretly seen as the beneficiary of the practice of selective social/political promotion. Even as a lecturer at a second tier law school, he left no trail of distinguished legal scholarship.

Three years passed and the economy of the great country did not turn around. But the leader announced that he would seek reelection, and began aggressively raising money for the campaign.

Many members of the this leader’s party privately grumbled among themselves: “What have we done? This man is a political chameleon, a dangerous poseur, the very kind of faux intellectual that Eric Hoffer, that famous longshoreman philosopher, warned us about. Worse, his lack of practical experience and failed promise has just driven our party into a minority position for the first time in decades.”

In even deeper private, key members of his party whispered to each other: “We have hired a one eyed, one handed, untrained, judgment-deficient pilot, who is partying in the cockpit while the plane is losing altitude at an alarming rate. We can’t visibly seek to fire him because it will violate the ADA.  So those of us who can afford the parachutes are to exit the plane, quietly, so as not to start a panic.”

But what about the rest of us?” someone asked.

This, too, will pass. Smile and pretend to be surprised at the hard landing.”

As it turned out, the great leader was not particularly intelligent. His worshipers had confused sonorous glibness with wit and wisdom.

But the wisdom of Forrest Gump holds that stupid is as stupid does.


Of course, this is just a parable.


As Published On The Out-Lawyer’s Blog


The Policy Think Site: http://www.jaygaskill.com

All contents, unless otherwise indicated are

Copyright © 2011 by Jay B. Gaskill

Permission to print all or part of this article (except for personal use) is needed. [Permission for use in group discussions is almost always routinely given.]

Please contact Jay B. Gaskill, attorney at law, via e mail at law@jaygaskill.com


Jay B Gaskill is a California lawyer who served as the Alameda County Public defender before her left his “life of crime” to devote full time to writing. His profile is posted at www.jaygaskill.com/Profile.pdf .