Politics

Treating the Unvaccinated

Written by <a href="index.php?option=com_comprofiler&task=userProfile&user=56151">Dhruv Khullar, The New Yorker</a>

Sunday, 18 July 2021 13:12

Khullar writes: "A century later, we are again losing Americans to a war that could already have ended. Nearly all covid-19 deaths in the United States are now avoidable."

For the willfully unvaccinated, it may be easier to accept the preexisting risk of contracting covid than to embrace the small but unfamiliar risks posed by the vaccines. (photo: Katherine Frey/WP/Getty Images)

Treating the Unvaccinated

By Dhruv Khullar, The New Yorker

18 July 21

In Utah, and across the U.S., doctors are facing a wave of preventable COVID deaths�and trying to convince the hesitant that �it doesn�t have to be this way.�

ear the close of the First World War, Ferdinand Foch, the Supreme Allied Commander, rejected a ceasefire request from the Germans. The two sides were actively negotiating the Armistice; it was clear that the end of the war was imminent. Still, the negotiations continued for several more days, and between Foch�s refusal, on November 8, 1918, and the signing of the Armistice, just after 5 A.M. on November 11th, nearly seven thousand men were killed and thousands more were injured. News that the war would end at 11 A.M. that day was transmitted immediately to both Allied and Central commanders. Still, as Adam Hochschild detailed in a 2018 essay for The New Yorker, the fighting continued: there were more casualties on the final day of the First World War than on D Day, in 1944. The last American killed in combat died at 10:59 A.M.

A century later, we are again losing Americans to a war that could already have ended. Nearly all COVID-19 deaths in the United States are now avoidable. According to the Centers for Disease Control and Prevention, data suggest that more than ninety-nine per cent of COVID deaths in recent months were among Americans who weren�t fully vaccinated�a finding so extraordinary that one might question its accuracy if similar statistics weren�t being reported in study after study after study. Six months after the COVID vaccines became available, more than forty per cent of American adults have not been fully vaccinated. The broad numbers don�t tell the full story: vaccine uptake is hugely variable across the U.S., and so more contagious variants are struggling to spread in some communities while inflicting real damage in others. Democrats are far more likely than Republicans to have been immunized; Vermont�s immunization rate is roughly twice that of Mississippi, where fifty-seven per cent of adults have not been fully immunized. Last month, half of American adults said that they lived in a household in which everyone had been at least partially vaccinated, even as a quarter reported that no one in their household had received a single dose. We are, increasingly, living in two Americas.

Early in the pandemic, when I was caring for COVID-19 patients during New York City�s apocalyptic surge, I met Scott Aberegg and Tony Edwards, two critical-care physicians from the University of Utah who�d flown in to help. At the time, most of America remained unaffected by the virus, but New York State was recording a tenth of all the new cases in the world; hundreds of doctors, nurses, and respiratory therapists from across the country had volunteered to help a city reeling from thousands of COVID deaths each week. In early April, 2020, Aberegg, Edwards, and I stood around a nursing station in a makeshift I.C.U., covered from head to toe in P.P.E., as alarms pinged and monitors flashed all around us. I felt a mix of gratitude and awe. The virus had shut the city down; we didn�t know how to treat it; nurses and doctors had died of it. And these guys had run toward the fire.

Since then, Aberegg and Edwards have cared for I.C.U. patients in each subsequent COVID wave: the surge that hit the South last summer, then the viral inferno that engulfed the nation in the winter. Earlier this month, Aberegg sent me an e-mail. �The unvaccinated are dying en masse out west,� he wrote. Aberegg described one man who had �looked pretty good on arrival� but was dead within thirty-six hours; he said he�d seen husbands and wives, both unvaccinated, who were dying of COVID-19. In the U.S., a fourth wave is under way. It�s smaller, more circumscribed, and more manageable�and yet it is especially tragic, because it comes at the eleventh hour.

When I caught up with Aberegg by phone, he told me that, last month, the number of COVID admissions in his I.C.U. had slowed to a trickle. But, by the end of June, cases had started to rise. He began fielding calls from hospitals in neighboring states asking if they could transfer their critically ill patients to his facility, at the University of Utah. By the Fourth of July, half of his hospital�s medical I.C.U. beds were occupied by COVID patients. Most were in their fifties; some were in their thirties, he said. The oldest patient he could remember was in his sixties.

Aberegg told me about a recent case. In late June, he received a call from a small-town hospital in a neighboring state. A man in his late fifties was struggling to breathe, and doctors were debating whether to intubate him. The man�s hospital, like some others in that area, didn�t have full-time critical-care doctors, and so throughout the day Aberegg offered guidance by phone. Eventually, the team of doctors decided to fly the man to the hospital where Aberegg works, in Salt Lake City. He learned that the man�s wife was also ill with COVID-19.

In Utah, the man was intubated. �We thought he would just kind of ride it out,� Aberegg said. �That it would be a two-week ordeal, then he�d start to get better. But that night the bottom fell out.� Despite various ventilator maneuvers, the man�s oxygen levels plummeted; his blood pressure cratered and, eventually, his heart stopped. When it was clear that he wouldn�t live, his wife�who was now receiving care at Aberegg�s hospital, as well�was wheeled into the room so that she could hold his hand as he took his final breath.

During our conversation, I asked Aberegg how it felt to care for so many critically ill COVID patients, many of them middle-aged or younger, at a time when life-saving vaccines are widely available. �There�s a big internal conflict,� he said. �On the one hand, there�s this sense of �Play stupid games, win stupid prizes.� There�s a natural inclination to think not that they got what they deserved, because no one deserves this, but that they have some culpability because of the choices they made.� He went on, �When you have that intuition, you have to try to push it aside. You have to say, That�s a moral judgment which is outside my role as a doctor. And because it�s a pejorative moral judgment, I need to do everything I can to fight against it. But I�d be lying if I said it didn�t remain somewhere in the recesses of my mind. This sense of, Boy, it doesn�t have to be this way.�

Aberegg shies away from raising the topic of vaccination with critically ill patients and their families. �It�s a very uncomfortable conversation,� he said. �You don�t want to point fingers or assign blame. Because people are so sick, so many of our conversations in the I.C.U. are already fraught and emotional and challenging. The last thing I want is to invite more of that. It�s become almost a third rail.� Aberegg�s hospital requires visitors to show proof of prior coronavirus infection or vaccination before they enter the I.C.U. Because of this policy, he said, �We end up doing a lot of telephone updates.�

Aberegg, who�s originally from northeastern Ohio, sees vaccine hesitancy not just in his work but in his personal life. His parents, who are politically conservative, got immunized only because he has been an I.C.U. physician fighting the coronavirus for the better part of a year and a half. Many of their friends and acquaintances remain unvaccinated. He told me about the father of a good friend who was recently injured in an occupational accident that left him with multiple broken bones. Even as a bedbound septuagenarian with a neck brace, he refuses to get vaccinated. He described another older acquaintance who told him, �We�re not drinking that Kool-Aid.�

�I said, �The unvaccinated are dropping like flies around here!� � Aberegg recalled. �But they just blow me off. People want to make their own decisions, even if they�re poor ones. They don�t want to be forced to do anything. It�s part of their identity. But it does make you wonder how informed their choices are. It�s like riding a motorcycle without a helmet. The wakeup call always comes too late.�

Tony Edwards, who trained under Aberegg, now works at a community hospital about twenty miles southwest of the University of Utah, on the outskirts of Salt Lake City. When I spoke with him in early July, he, too, told me that coronavirus cases had increased markedly at his hospital. (Utah currently has the nation�s sixth-worst coronavirus outbreak.) In early June, there were days when not a single medical I.C.U. room at Edwards�s hospital housed a COVID patient; now they account for about a third of the critically ill patients in his I.C.U. The most striking feature of this wave is that �they�re all young,� Edwards said. �I can�t remember treating a single older COVID patient in the past couple months. It feels like they either got it, and they�re gone, or they got vaccinated, and they�re safe.�

Like Aberegg, Edwards told me that it�s not unusual for families to be admitted to an I.C.U. together; when we spoke, he was caring for two couples in their forties. Unlike Aberegg, however, he is very direct when speaking with patients� families about getting vaccinated. �The first few times unvaccinated patients came in, I wouldn�t bring it up�it felt too raw,� Edwards said. �But I�ve gotten so frustrated that I now have no problem being straight with them. It�s the most aggressive I�ve been with any medical recommendation in my career.� In Edwards�s experience, families almost always say that they�ll get immunized as soon as possible. �Everyone is, like, Yeah, O.K., you�re right, head nod, head nod,� he said. �Then I follow up in a few days and they just kind of look at me sheepishly.� Recently, the wife of a critically ill patient told him that she would get vaccinated that day. She didn�t, and, not long after, she became a patient along with her husband. �I walk in one morning and I�m, like, Oh, there�s two patients with the same last name�what�s up with that?� he said.

With the advent and availability of vaccines, Edwards assumed that he wouldn�t be gearing up for another coronavirus wave. But four in ten adults in Utah are not fully vaccinated. �I try not to feel angry, but it�s hard,� he said. �I try to be fair. I know I�m a well-off white doctor who understands science and medicine. The vaccine came to my place of work and I just rolled up my sleeve. I get that it�s harder for other people. But at this point it�s, like, C�mon, man, this is the most important thing you can do for your health. I�m frustrated, and I don�t know what to do to make myself un-frustrated.�

I�ve followed a similar path in my own thinking. Before the coronavirus pandemic, I assumed that the seeds of vaccine hesitancy�directed, usually, toward shots for diseases like measles�lay in the success of vaccination; if someone had never confronted the devastating paralysis of polio, or the rib-fracturing cough of pertussis, it might be easy for them to question the efficacy or safety of vaccines. The risks of illness might seem distant and amorphous, whereas the risks of vaccination�however spurious�could feel vivid and tangible. As the coronavirus began to spread, I figured that it would change that equation. Surely, faced with a lethal, contagious, economy-destroying pathogen that had upended every aspect of society, even ardent vaccine skeptics would get on board.

That prediction, it turns out, was incorrect. The coronavirus has unleashed unprecedented havoc, killing more than six hundred thousand Americans and potentially leaving millions more with lingering symptoms; COVID vaccines are safe, effective, free, and accessible. Still, millions of Americans remain susceptible to death and disease by choice. Having developed vaccines of astonishing efficacy, we have failed to convince huge segments of the population that those vaccines are worth taking. Scientific success has foundered on the rocks of tribalist mistrust.

What would it take to reach something closer to full vaccination? There are four main levers available to policymakers. Education is the most obvious one: after a year of vaccine talk, it may feel like there�s nothing left to say, but many people still have questions about whether, where, and when they can get vaccinated; recent polling suggests that a majority of Americans�including four in ten who�ve been immunized�either believe or are unsure about at least one vaccine myth. At the same time, more than eighty per cent of unvaccinated individuals say that they would turn to a doctor when deciding whether to get a shot. So it is not too late for conversation to change minds.

Incentives are another lever: states are experimenting with everything from free beer and lottery tickets to college scholarships and cash payments. (Evidence on the effect of these initiatives is mixed, but some research suggests that they may temporarily boost uptake.) Full F.D.A. approval is another: nearly a third of those who remain on the fence say that such an approval would make them more likely to get vaccinated. (Currently, even though hundreds of millions of doses have been administered, COVID shots are given under an Emergency Use Authorization; Pfizer and Moderna recently applied for approval, but it�s unclear how soon they might receive it.) Finally, there are mandates. Increasingly, vaccination is a requirement for living on a college campus, working in an office, flying internationally, attending a concert. (Although the public is evenly divided on vaccine passports, many Republican governors have issued orders or signed laws prohibiting or constraining their use; the Biden Administration has said that it will not introduce a national vaccine mandate or registry, but, according to the Equal Employment Opportunity Commission, businesses can require on-site employees to get immunized.) It�s possible that all of these factors�combined, perhaps, with fear of the Delta variant�could push some holdouts over the line.

I asked Edwards what, if anything, he thought might tip the scales for people unsure about the COVID vaccines. He was at a loss, but connected me with two women he works with at one of his hospital�s clinics, who, despite helping people suffering from the aftereffects of COVID-19, have elected not to get vaccinated. (The medical center where they work strongly encourages staff and patients to get immunized.)

Ashlianne Carroll worked in a car dealership before starting as the clinic�s receptionist, in December of 2019. She�s pregnant with twins, due in January, and nearly everyone in her family�her father, her three brothers, their wives and children�has been immunized. Carroll herself gets the flu vaccine every year, but �that�s been around forever,� she told me. �We know the long-term effects. I don�t trust the COVID vaccine yet. There hasn�t been enough testing. All the stuff you hear about side effects makes it not worth it to me.� Carroll said that she�d read reports online of the vaccines� being linked to stillbirths. �Even if there�s a small chance, why risk it?� she said. To her, contracting the coronavirus seems like the less ominous possibility. Her husband, his parents, and his siblings all got COVID last year; none were hospitalized. �I feel like I�m in good enough health that it won�t be an issue for me even if I do get it,� she said.

Nicole Howard, who works closely with Edwards as a medical assistant, has similar views. Howard had a mild case of COVID in January�low-grade fever, chest congestion, body aches. But she told me that this prior infection, and the immunity it confers, has no bearing on her decision not to get immunized. (The C.D.C. recommends that even people who�ve had COVID be vaccinated, to better prepare their immune systems to fight reinfection.) �I hear about these variants, and I do wonder if it�s possible I could get it again,� she said. �But I�m thirty-one. I�m healthy. I don�t have any underlying medical conditions.� In her clinic, Howard regularly encounters people suffering from the short- and long-term consequences of COVID-19. I asked her how it felt knowing that some of the coronavirus patients she cares for are younger than she is. �Most are older,� she said. �I�m not afraid of COVID. I won�t live my life in fear.�

Howard emphasized that she takes other precautions against the coronavirus: she wears a mask in public, maintains physical distance, and washes her hands frequently. But, when it comes to COVID vaccines, at least for the time being, she�s made her decision. �You can put me in a lottery, you can give me free Starbucks for a year, but it�s not going to change my mind,� she said. �Because it�s not about that for me. It�s about what the vaccine could do to me in the future. My personal feeling is that the COVID vaccines got pushed out too fast. They weren�t studied for long enough. We don�t know what�s going to happen five years down the road. You see these horror stories. Blood clots, stroke, myocarditis. I�m in my childbearing years. Will it cause fertility issues? Will it negatively impact my unborn child?� (The COVID vaccines do not alter your DNA, cause infertility, or affect fetal development; the Johnson & Johnson vaccine has been linked to extremely rare instances of dangerous blood clots, and the mRNA vaccines to a marginally higher risk of myocarditis, especially in young men�but, in both cases, the benefits of vaccination far outweigh the risks, and over all the COVID vaccines are among the most intensely monitored and effective in history.) Howard said it�s possible that she�ll reconsider �in a year or two,� if �there�s been more testing and more long-term follow-up,� and if she doesn�t see any issues. What of the possibility of infection�from Delta or another, even more infectious variant�between now and then? �Well,� she said. �I guess that�s just a risk I�m willing to take.�

In the days since speaking with Carroll and Howard, I�ve considered the reasons for the gap between my views and theirs. It�s not that they think COVID-19 is a hoax; they have witnessed firsthand the consequences of infection, just as I have. It�s not that they belong to social networks that are deeply skeptical of vaccines; on the contrary, they work in a medical setting, and most of their friends and family members have been immunized. Still, having weighed the strength of the vaccine science, the likelihood of low-probability events, and the unknowns that remain, they have arrived at conclusions very different from mine.

I used to think that fear could push many hesitant people to get vaccinated�that watching COVID put a friend on a ventilator would make one rush to get a shot. But fear seems to work in unpredictable ways. It�s possible to shift one�s gaze away from the gravely ill and onto those who contracted the virus but escaped unscathed. It�s possible to be more afraid of the vaccine than of the virus. Perhaps the psychology of risk plays a role: for the willfully unvaccinated, it may be easier to accept the pre�xisting risk of contracting COVID than to embrace the incredibly small but unfamiliar risks posed by the vaccines. Many people seem to believe either that they won�t contract the virus or that their illness won�t be that bad�a natural and attractive view for younger Americans, but a risky one. Nearly ninety per cent of Americans over the age of sixty-five�people of all races, ethnicities, income brackets, and political persuasions�have received at least one dose of a COVID vaccine. Those facing the greatest risk seem to have an easier time taking an accurate measure of it.

But smaller risks can still be considerable�and, with more infectious variants on the rise, the virus is growing more dangerous to those who remain susceptible. In states where vaccine hesitancy is high, its consequences are already stark. In recent weeks, some of the country�s low-vaccination areas have begun driving a national doubling of daily coronavirus cases, and experiencing a spike in hospitalizations and deaths.

Death is a loss in all its forms. Still, some ends are more comprehensible than others. We might take as inevitable the loss of life in the pitch of war, but casualties suffered in the battle�s final moments, when peace is so clearly at hand, carry with them an added senselessness. Today�s coronavirus deaths are senseless. We�ve been offered a ceasefire. It�s past time we take it.

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Courts Crack Down on the 'Kraken' Lawyers

Written by <a href="index.php?option=com_comprofiler&task=userProfile&user=60171">Kimberly Wehle, The Hill</a>

Sunday, 18 July 2021 13:10

Wehle writes: "Things are heating up in a Michigan federal court around the Big Lie, with lawyers Sidney Powell and Lin Wood facing sanctions for bringing a series of election fraud lawsuits that had no apparent basis in law or fact."

Sidney Powell at a press conference with Rudy Giuliani and other lawyers for then-president Donald Trump after the election. (photo: Tom Williams/CQ-Roll Call/Getty ImageS)

Courts Crack Down on the 'Kraken' Lawyers

By Kimberly Wehle, The Hill

18 July 21

hings are heating up in a Michigan federal court around the Big Lie, with lawyers Sidney Powell and Lin Wood facing sanctions for bringing a series of election fraud lawsuits that had no apparent basis in law or fact.

This is an extremely important development for the rule of law and the integrity of the judicial system, as it comes on the heels of a New York state appeals court�s decision suspending Rudy Giuliani from practicing law in that state for allegedly lying to the courts. Recall that Team Trump brought 65 post-election lawsuits around the Big Lie, roundly losing 64 for lack of evidence and other legal flaws � including through the pens of Trump-appointed judges.

Here�s the problem for lawyers accused of lying in court: Courts, unlike politicians, are bound by rules of evidence and procedure. They have no choice but to follow the facts and the law. Otherwise, their decisions will be reversed by an appeals court. When it comes to the 2020 election litigation, some judges are finally stepping up to punish lawyers � who are otherwise constrained by ethical rules as a precondition to maintaining a law license � for apparently abusing the courts in order to spread public disinformation for political gain.

Powell and other lawyers brought four lawsuits in battleground states that included Michigan, Arizona, Wisconsin and Georgia. All four were expeditiously rejected all the way to the U.S Supreme Court. A federal court in Arizona called Powell�s case �sorely wanting of relevant or reliable evidence,� a Wisconsin judge called her pleas for relief the stuff of a �mythical time machine,� and U.S. District Judge Linda Parker dismissed Powell�s Michigan case for relying on �nothing but speculation and conjecture.� Powell also faces defamation lawsuits by Dominion Voting Systems and another manufacturer for touting the claim that the companies� machines fraudulently helped President Biden win the 2020 election. Filed in federal court in Washington, D.C., the Dominion lawsuit alleges that �Dominion�s founder, Dominion�s employees, Georgia�s governor, and Georgia�s secretary of state have been harassed and have received death threats� as a result.

On Monday, Judge Parker held a six-hour hearing on whether Powell, Wood and the other lawyers who proffered such nonsense in court should be sanctioned. �I don�t think I�ve ever seen an affidavit that makes so many leaps,� she noted about one particularly galling piece of evidence. �This is really fantastical. So my question to counsel here is: How could any of you as officers of the court present this affidavit?� Shockingly, counsel for the lawyers reportedly questioned Parker�s objectivity during the hearing, to which the judge shot back, �I would caution you to not question my procedure. You�re here to answer my questions.�

As I explained last year, lawyers practicing in federal court are bound by Rule 11 of the Federal Rules of Civil Procedure, which requires attorneys to certify upon signing any document filed in court � or making any oral argument based on such a document � that it is �not being presented for any improper purpose,� that its claims �are warranted by existing law� and that �the factual contentions have evidentiary support.� Lawyers (and their clients) can be slapped with monetary fines or other sanctions for violations, including an order directing them to pay the other sides� attorneys� fees and costs. Rule 11 and state court equivalents are further bolstered by the American Bar Association Model Rules of Professional Conduct and other ethical standards.

In 1991, the U.S. Supreme Court decided in Chambers v. Nasco to impose sanctions totaling nearly $1 million, noting that such a penalty may be �necessary to the integrity of the courts� because �tampering with the administration of justice ... involves far more than an injury to a single litigant. It is a wrong against the institutions set up to protect and safeguard the public.� This is precisely why the likes of Giuliani, Powell and Wood are in such hot water. Courts know that the corrosive effect of lawyers� shenanigans could be longstanding and incalculable. Without swift accountability, an unethical attorney's behavior sets a precedent that weakens the U.S. legal system writ large.

Wood and attorney Emily Newman tried to distance themselves from Powell, asserting that their respective roles were minimal. Wood claimed to not even know that his name was added to the Michigan lawsuit, suggesting he merely told Powell �if she needed my help, I would help her from a trial lawyer standpoint.� Powell retorted that she �did specifically ask Mr. Wood for his permission� to add his name, and counsel for the city of Detroit, David Fink, called Wood�s claim �blatantly false� given his concurrent statements on social media. Parker has given the parties two weeks to file additional papers, with lawyers for the Powell side asking for more hearings with witnesses.

For someone like me who has taught civil procedure to law students for more than 15 years, this tale is the stuff of exam hypotheticals � not something lawyers and judges often see in real life. Judge Parker said she �heard nothing� indicating that the lawyers had done their �minimal duty that any attorney has in presenting a sworn affidavit.� Unlike voters, who can be duped through widespread lies from politicians and via social media, courts are duty-bound to look for substantiated evidence and established law before moving forward with someone�s claim. Rule 11 recognizes that lawyers might be motivated to lie, so it sets up a system designed to deter unethical conduct in the future. Bad things can happen to lawyers who try to "play" judges.

As Americans continue to reel from the Jan. 6 insurrection, with a wide majority of those polled expecting election-related violence in the future, judges are right to be vigilant about slamming the courthouse doors to unscrupulous lawyers willing to exploit the judicial system for cynical advantage. For Powell, Wood and the others who allegedly perpetuated a fraud about a legitimate election in our hallowed courts of law, sanctions are probably coming. And the penalty should be severe.

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FOCUS: How the Supreme Court Dominates Our Democracy

Written by <a href="index.php?option=com_comprofiler&task=userProfile&user=60169">Nikolas Bowie, The Washington Post</a>

Sunday, 18 July 2021 10:40

Bowie writes: "The United States calls itself the world's oldest democracy, which would be true if the world began in 1965. That was the year John Lewis marched to the Edmund Pettus Bridge, the president said 'We shall overcome' and Congress passed the Voting Rights Act, which allowed many citizens to exercise their right to vote for the first time."

'Because the Supreme Court undermined or ignored Congress's attempts to enforce the Constitution, the racial caste system that we know as Jim Crow emerged like an invasive species.' (photo: Mikel Jaso/WP)

How the Supreme Court Dominates Our Democracy

By Nikolas Bowie, The Washington Post

18 July 21

Judicial review gives any five justices power over the whole government. Why?

he United States calls itself the world�s oldest democracy, which would be true if the world began in 1965. That was the year John Lewis marched to the Edmund Pettus Bridge, the president said �We shall overcome� and Congress passed the Voting Rights Act, which allowed many citizens to exercise their right to vote for the first time.

Yet the legislation of 1965 wasn�t Congress�s first attempt to build a multiracial democracy. A century earlier, lawmakers enacted a half-dozen laws that protected the right to vote, punished political violence, and banned racial discrimination in public places. But as Frederick Douglass lamented in 1883, those laws were �grievously wounded� and cut down during his lifetime. Their assassin was the Supreme Court.

�It would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders� the court wrote in 1876, as it struck down the first federal voting rights act. �It does not appear that it was their intent to interfere with any right granted or secured by the constitution,� the court wrote that same year of a White mob that murdered more than 100 Black voters. �A name on a piece of paper will not defeat them,� the court wrote in 1903, as it explained why federal law was powerless to stop �the great mass of the white population [that] intends to keep the blacks from voting.�

Because the Supreme Court undermined or ignored Congress�s attempts to enforce the Constitution, the racial caste system that we know as Jim Crow emerged like an invasive species. With the court�s approval, White people in the South terrorized Black voters, disenfranchised them and enacted state laws to codify their place at the bottom of a racial hierarchy.

Today, as American democracy enters a midlife crisis, the Supreme Court has often been heralded as democracy�s guardian. Decisions dating from 1954�s Brown v. Board of Education are seen by many as essential responses to the tyranny of the majority. Yet it appears that the court has reverted to its older ways. In 2013, a justice sneered at Congress�s nearly unanimous reauthorization of the Voting Rights Act, calling it the �perpetuation of a racial entitlement.� He was soon joined by four of his colleagues in the Shelby County decision, which treated a central provision of the Voting Rights Act as beyond Congress�s power to enact �appropriate� legislation. And in its Brnovich decision this month, the court stuck a second dagger into the act, calling it too �radical� to be enforced as written.

In the wake of these decisions � as before � Jim Crow laws are reemerging. By declining to enforce federal laws because it disagrees with Congress about whether they�re constitutionally appropriate, the Supreme Court has functioned as an antidemocratic institution that produces antidemocratic results.

In his inaugural address in 1861, President Abraham Lincoln offered perhaps the best argument for why Congress, and not the Supreme Court, should have the final word on what the Constitution requires. The court had just held in its infamous Dred Scott decision that Congress had no power to restrict the spread of slavery. �The candid citizen must confess that if the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by the Supreme Court,� Lincoln said, �. . . the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.� Lincoln thought that a self-governing people should have the power to determine what their fundamental law meant.

Lincoln�s argument wasn�t that the Constitution shouldn�t be enforced, but rather that Congress was the best institution to enforce it. Most of the Constitution�s limits are vague: The 15th Amendment permits Congress to enact �appropriate legislation� to protect the right to vote, for example, while the Fifth Amendment prohibits Congress from violating the �due process of law.� For as long as these limits have existed, there have been passionate disagreements about what they require. Congress offers a relatively democratic method for resolving these disputes. If people or state governments disagree about a law�s constitutionality, they can campaign to repeal that law.

By contrast, when the Supreme Court decides not to enforce a federal law, the justices in the majority effectively declare that their view is superior to everyone else�s. Even if the president, more than 500 members of Congress and four justices interpret the Constitution as permitting a law, if five justices disagree, then the law is not enforced. This was the scenario in 2013, when five members of the court held that a key section of the Voting Rights Act wasn�t �appropriate legislation.�

Yet no democratic procedure requires the justices to think of themselves as political equals with people who disagree with them. And while later generations of justices can revisit and overturn any of the court�s precedents, everyone else has the formal power to overrule the court only if two-thirds of both houses of Congress and three-quarters of the 50 states approve a constitutional amendment.

Indeed, it�s difficult to explain why, in a democracy, the constitutional interpretation of five justices should be superior to the constitutional interpretation of the elected officials who appointed and confirmed them.

One possible answer is that it�s the court�s job to interpret the Constitution. �It is emphatically the province and duty of the judicial department to say what the law is,� Chief Justice John Marshall wrote in his famous 1803 opinion in Marbury v. Madison. �The constitution controls any legislative act repugnant to it.� But Marshall�s emphatic response, as one critic put it, �begged the question-in-chief, which was not whether an act repugnant to the Constitution could stand, but who should be empowered to decide that the act is repugnant.�

A second possible answer is that everyone, the justices included, should follow their own interpretation of what the Constitution requires. But we all expect presidents, federal officials, state officials and even state judges to comply with federal law, regardless of whether they personally believe that the law is constitutional. As Lincoln well knew, it would be profoundly antidemocratic for a member of a state militia or the military to resist federal law. So the question � again � is what makes the justices different?

The only honest answer is that the justices are supposed to be antidemocratic. As Justice Robert Jackson wrote in 1943, �The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.� Other scholars have joined him in accepting the �countermajoritarian difficulty� of judicial review. This perspective concedes that judicial review is antidemocratic � yet necessary for democracy to function properly.

This embrace of a judicial aristocracy affects much of the culture surrounding the Supreme Court. For the past hundred years, nearly every justice has been a graduate of an elite law school. New appointments are generally praised for their brilliance, credentials, professionalism and collegiality. And written briefs, adversarial argument, secretive deliberation, highly educated law clerks and a lack of political accountability are considered tools that allow the justices to resolve fraught questions correctly, even when their interpretations are politically unpopular.

But there is little historical reason to believe there is anything intrinsically correct about the Supreme Court�s constitutional interpretations. No expertise on the planet can determine whether Congress�s 1875 ban on racial discrimination, its 1965 expansion of voting rights, or its 2010 expansion of health insurance is �appropriate� or providing for the �general Welfare.� Resolving those questions requires the same trade-offs among competing principles that a democracy makes when it decides to enact any law. Our democracy suffers when an unelected group of lawyers take away our ability to govern ourselves.

This isn�t to say that Congress hasn�t adopted any horrific laws over the past 250 years. But there are few examples of the Supreme Court intervening in a timely fashion to overturn them. The court was silent at best when Congress violently captured fugitives from slavery, dispossessed Native American tribes, excluded Chinese immigrants, persecuted political dissidents, withheld civil rights from U.S. citizens in territories and interned Japanese Americans. Efforts to remedy these injustices have been achieved not by courts, but by expanding our democracy.

The history of judicial review of federal legislation shows that the principal �minority� most often protected by the court is the wealthy. Wealthy litigants can muster the skills, time, money, influence and capacity to challenge the same legislation over and over in court. For example, in 1895�s Pollock v. Farmers� Loan and Trust Co., the Supreme Court invalidated a century of precedent to hold that a federal income tax would violate �one of the bulwarks of private rights and private property.� And in 2010�s Citizens United, the court threw out another century of federal campaign finance laws.

The best examples of judicial review working as expected by its proponents are cases such as the 2013 Windsor decision, which invalidated the Defense of Marriage Act of 1996, the 2008 Boumediene decision, which guaranteed minimal due process protections for Guant�namo detainees, and decisions in the 1970s that prohibited Congress from �protecting� women by engaging in sex discrimination. But when these cases are compared with rulings that directly contributed to the rise of Jim Crow, it becomes pretty evident that the court is, at best, no more reliable than Congress as a safeguard of political equality.

Of course, the Supreme Court has advanced democratic equality at the state level, from Brown v. Board in 1954 and Roe v. Wade in 1973 to Obergefell v. Hodges in 2015. But in these cases, federal judges didn�t disagree with Congress about the constitutionality of a federal law. To the contrary, they all enforced a federal law � the Ku Klux Klan Act of 1871. Congress enacted that law in response to Southern officials� inaction against white supremacists terrorizing Black people. In its current form in the U.S. Code, the Klan Act instructs federal courts to invalidate state actions that violate the Constitution.

As the legal theorist James Bradley Thayer observed over a century ago, when the Supreme Court invalidates a state law, it is doing something far less objectionable from what it does when it refuses to enforce a federal law. In any federal system in which a national government disagrees with a state government, one side has to prevail. There is nothing undemocratic about our system in which the federal government decides who should win. And when Congress instructs federal courts to preempt state laws � whether with the Klan Act or even with an ordinary federal law � the effect is as consistent with democracy as when President John F. Kennedy instructed federal troops to integrate the University of Mississippi. Either way, the federal government is simply seeking that its commands be enforced.

The situation profoundly changes when the Supreme Court goes rogue. For precisely the same reason that it can be democratic for federal troops to enforce Congress�s interpretation of the Constitution but extremely antidemocratic for them to disregard it, the proper role for federal courts in a democracy is to serve as its agents, not as a countervailing force. Democratic decision-making belongs in the hands of democratic bodies, not people with robes or guns.

Indeed, what a case like Brown actually illustrates is how federal legislation has successfully expanded American democracy when the Supreme Court serves as Congress�s enforcer. As the law professor Michael Klarman has observed, Southern schools remained almost as racially segregated in 1964 as they had been 10 years earlier, when Brown was decided. Formal segregation drew to a close in the South only after Congress enacted the Civil Rights Act and the Voting Rights Act.

Yet both laws stood in the face of Supreme Court precedents that restricted Congress�s power. Because the court continued to hold itself as the supreme interpreter of the Constitution, it had to give Congress permission to evade its own bad precedents � at least until it recently took that permission away.

Which returns to the original problem: Why should a court be in charge of a democracy? The answer is: It shouldn�t.

A few years before he wrote the opinion invalidating a key part of the Voting Rights Act, Chief Justice John Roberts compared his role to that of an umpire. �It�s my job to call balls and strikes,� he said, �and not to pitch or bat.�

A better metaphor is that of a horse-and-buggy driver. Most of the time, the court gives Congress free rein to act as it pleases. But the justices are quick to pull on the reins when lawmakers move to disrupt hierarchies of wealth or status. Either way, the court arbitrarily dominates Congress: Even when the court is permissive, Congress can make no law without permission.

What makes that domination arbitrary is that the justices themselves are unbridled. Federal laws stand and fall on the votes of nine unaccountable lawyers, all appointed for life because of their educational backgrounds and relationship to the governing elite.

As a result, the political choices available to us as a democracy depend not on our collective will but on the will of people who hold power until they resign or die. This is precisely what the Declaration of Independence protested. As absurd as it was then for a continent to be perpetually governed by an island, it is equally absurd now for a nation of 300 million to be perpetually governed by five Harvard and Yale alumni.

As we debate new legislation to expand the franchise and protect the right to vote, the threat of judicial invalidation has forced our elected representatives to lower their expectations about how democratic our nation can become. In the name of protecting us from the excesses of democracy, the judicial review of federal laws is costing us democracy itself.

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A Climate Justice User's Guide to the Manchin Energy Infrastructure Bill

Written by <a href="index.php?option=com_comprofiler&task=userProfile&user=60167">Sarah Lutz, Friends of the Earth</a>

Sunday, 18 July 2021 08:42

Lutz writes: "A few weeks ago, ExxonMobil lobbyists were caught on tape bragging about their plans to undermine climate policy in coming infrastructure legislation."

Senator Joe Manchin. (photo: Alex Wong/Getty Images)

A Climate Justice User's Guide to the Manchin Energy Infrastructure Bill

By Sarah Lutz, Friends of the Earth

18 July 21

few weeks ago, ExxonMobil lobbyists were caught on tape bragging about their plans to undermine climate policy in coming infrastructure legislation. The strategy seems to already be paying dividends. Look no further than Senator Joe Manchin�s Energy Infrastructure Act of 2021. This bill has Exxon�s fingerprints all over it.

The legislation proposes to make $95 billion in infrastructure investments mainly concentrated in the energy sector. But a close look at exactly where the money is going to go reveals an undeniable bet on dirty energy from the 20th century over clean energy from the 21st. In fact, the bill authorizes $28.8 billion in nuclear, carbon capture and dirty hydrogen over only $410 million in direct authorizations for wind, solar, geothermal and tidal. That�s a ratio of dirty to renewables of over 70-to-1. Even when combining the renewable provisions with the bill�s meager storage and efficiency programs, Manchin still proposes spending twice as much on dirty than he does on clean.

Here is a by the numbers guide to the worst-of-the-worst in the Exxon infrastructure bill.

$12.6 billion: The amount of money for carbon capture

The White House Environmental Justice Advisory Council (WHEJAC) released a report in May rejecting the narrative that Carbon Capture and Storage (CCS) projects should be implemented in communities under the guise of Environmental Justice (EJ). The next day, Gina McCarthy, speaking on behalf of the White House, blatantly ignored this EJ recommendation by talking up the role of CCS in Biden�s climate policy. Dismissing the WHEJAC�s recommendations further marginalizes the voices of those who would bear the burden of politicians allowing unproven technologies to embed fossil fuel infrastructure in their communities. This is just one chapter in a continual trend of politicians ignoring legitimate concerns with CCS in favor of Big Oil talking points. The result has been many high-profile projects � such as FutureGen 2.0, the Kemper power plant, and the Texas Clean Energy Project � benefiting from substantial taxpayer investments only to collapse. Senator Manchin wants to continue propping up this polluter scheme by giving away billions of infrastructure investment to CCS.

Senator Manchin�s Energy Infrastructure Act pulls much of its CCS giveaways directly from Senator Coons� SCALE Act. Notably both Senators Coons and Manchin were named as crucial allies to Big Oil in the recent video of ExxonMobil lobbyists explaining how they work with politicians to undermine climate policy.

Included in both the original SCALE Act and the Manchin bill is the new Carbon Dioxide Transportation Infrastructure Finance and Innovation (CIFIA) program. This promises subsidized, low-interest loans for a litany of projects expanding CCS infrastructure, including CO2 pipelines. The current program is authorized $2.1 billion over the next five years. The CIFIA projects would embed sacrifice zones by targeting areas already impacted by fossil fuel infrastructure. These communities already suffer the environmental and health burdens of oil and gas infrastructure and CIFIA funding would entrench this fossil fuel infrastructure rather than retire it and remediate the harms.

Often, CCS infrastructure like pipelines are designed to capture CO2 in order to help stimulate oil production � and sometimes, this infrastructure dangerously malfunctions. This is what happened last year in Yazoo County, Mississippi � a community of majority Black residents and where 34 percent of the population lives in poverty. A pipeline carrying CO2 for enhanced oil recovery ruptured and exposed the community to high concentrations of carbon dioxide, requiring area residents to seek medical treatment. The rupture also killed significant amounts of plants and wildlife in the area.

These are some of the other prominent CCS provisions in the Manchin bill:

Large Scale Carbon Storage and Commercialization Program: A major new grant program to subsidize �expanded commercial large-scale carbon sequestration projects and associated carbon dioxide transport infrastructure, including funding for the feasibility, site characterization, permitting, and construction stages of project development.�

Authorization: $2.5 billion over 5 yrs (FY22�26)

Carbon Removal Program: funding to create four regional direct air capture hubs. The projects are to be located in a region with existing carbon intensive fuel production or industrial capacity, or such capacity that has retired or closed in the preceding 10 years. At least two of the hubs are to be built in economically distressed regions with high coal or shale gas resources.

Authorization: $3.5 billion over 5 yrs (FY22�26)

Carbon Capture Large-Scale Pilot Projects, originally authorized under the Energy Policy Act of �05, were specifically designed to prolong the use of coal as a feedstock for electricity.

Authorization: $937 million over 5 yrs (FY21�25)

$6 billion: The size of the nuclear bailout

The nuclear industry likes to bundle itself with renewable energy technologies, portraying failing nuclear power plants as clean. This doesn�t pass the laugh test. Nuclear power is incredibly toxic at every stage; the mining, milling and enriching of uranium are all carbon-intensive processes that generate vast amounts of radioactive and toxic wastes. The unsustainable supply and production of nuclear power are compounded by the lack of any plan or capability to safely store the 2,000 tons of irradiated nuclear fuel produced each year. Additionally, nuclear energy is a massive source of environmental injustice, as the vast majority of uranium mines, mills, production facilities, reactors and waste dumps are located in communities that are disproportionately Indigenous, Black, People of Color, rural and low-wealth.

Wind, solar, and energy efficiency measures are proven renewable technologies that can be deployed much quicker and more affordably than nuclear power. However, instead of allowing the phase-out of aging and uneconomic reactors, Senator Manchin would authorize spending $6 billion through 2026 to bail out these failing facilities. This would harm consumers by keeping expensive, uncompetitive reactors online and hurt the climate by delaying the deployment of renewables.

Modeled on the previously introduced American Nuclear Infrastructure Act, this bailout would create a new economic incentive program managed by the Department of Energy for reactors threatened with closure. In theory, priority for subsidy payments would be given to reactors whose closure would increase air pollution. But the bill is so polluter friendly that no external, third-party verification is required to evaluate claims from utilities about emissions increases. The entire program is straight from the nuclear industry playbook: claim financial distress, threaten closure and use the leverage to demand additional subsidies.

$7 billion: The amount of funding that could be hijacked for dirty hydrogen

One of the newer Big Oil distractions has been the renewed interest in hydrogen. While hydrogen can be used for a variety of industrial and energy purposes, including as a form of energy storage, it is only as clean as the fuel source used to produce it � and 95 percent of hydrogen is produced using fracked gas. Polluters have a vested interest in maintaining this status quo, and producing hydrogen allows them to repackage fossil fuels and other dirty energies as clean. Senator Manchin is happy to oblige, as nearly all of the hydrogen provisions in the Energy Infrastructure Act make no distinctions between hydrogen produced from renewable sources and hydrogen produced from fossil fuels and nuclear. For example, the largest single hydrogen authorization in the bill is $8 billion for a series of regional hubs. Of the four hubs, only one is required to use renewable energy as a feedstock �to the maximum extent practicable,� while two others must use fossil fuels and nuclear, respectively. Given that at least two must be sited with preference to regions with major natural gas resources, and the hubs will be directed to �use energy resources that are abundant in that region,� there is little question of Senator Manchin�s intent that this funding will be used to produce hydrogen from fossil fuels.

Regional Clean Hydrogen Hubs, two of which must be located in economically distressed communities in the regions of the United States with the greatest natural gas resources.

Authorization: $8 billion over five years (FY22�26)

The Clean Hydrogen Electrolysis Program would fund research, development, demonstration, commercialization, and deployment of hydrogen produced through electrolysis. The eligibility of the high-temperature electrolyzers indicates that fossil or biomass combustion or nuclear energy could be used to provide thermal energy to help produce hydrogen.

Authorization:$1 billion over five years (FY22�26)

$1.9 billion: The size of the giveaway to logging interests

Dirty energy and timber interests are pushing a mind-boggling narrative that cutting down our forests and burning them is somehow part of a climate solution. The logging industry hides behind terms like �fuel reduction� or �restoration�, despite the most current and comprehensive science increasingly finding that such logging, deceptively conducted under the guise of forestry management, will in most cases make wildfires burn more intensely, not less. Over 200 top climate scientists and ecologists recently informed Congress that �thinning� and other logging substantially exacerbate climate change, urging Congress to shift away from funding these types of logging. Despite this, Manchin�s proposal includes massive new subsidies for increased commercial logging on federal public lands. Further, he directs Forest Service road and trail remediation funding to include considerations for increased timber demands and resource extraction.

Manchin proposes authorizing $1.9 billion for commercial logging on public lands. Much of this spending is through the guise of wildfire or forestry management. However, in the absence of environmental standards, benign-sounding activities such as �restoration� and �byproducts� are used to funnel money towards logging and clear-cutting on public lands. Federal land agencies like the U.S. Forest Service and BLM sell public timber to private logging companies and keep the revenue for their agency budgets, creating a perverse financial incentive to continue justifying these logging programs.

The Collaborative Forest Landscape Restoration Program has become heavily dominated by logging interests and U.S. Forest Service personnel, and has become little more than a vehicle for destructive commercial logging.

Authorization: $100 million over five years (FY22�26)

Mechanical thinning and timber harvesting subsidizes logging on public lands. The Forest Service defines �small� diameter trees so broadly that industrial logging activities could and would qualify. Moreover, the �to the extent practicable� phrase means that the small-diameter language can simply be ignored by the Forest Service. The broad discretion to define �small� and �ecologically appropriate� will result in logging that undermines the resiliency of our forests and results in wildfires burning more intensely.

Authorization: $500 million

Wildfire and forestry management is often used as a justification for logging, funding post-fire logging on federal public lands with taxpayer money under the guise of �restoration.� In absence of environmental standards, industrial logging and clearcutting could be spun as creating �fuelbreaks� or �removing flammable vegetation.�

Authorization: $500 million for fuelbreaks over five years (FY22�26)

Authorization: $200 million for removing vegetation to create biochar over five years (FY22�26)

Authorization: $200 million for postfire logging over five years (FY22�26)

�Byproducts of restoration projects� is a guise for subsidizing forest biomass and wood pellets produced from private and public lands. The lack of environmental standards means that the biomass and wood pellet industries would merely need to use the phrase �ecosystem restoration� to promote their logging and clearcutting in order to receive the subsidies � regardless of the truth.

Authorization: $400 million over five years (FY22�26)

20 percent: The Manchin cut to the AML coal fee

Credit where credit�s due, the Manchin bill authorizes $11.3 billion for the Abandoned Mine Land (AML) fund. This is a program to reclaim, or restore, lands scarred by coal mining that continue to pose risks to human health and the environment. Established in 1978, the AML is designed to repair lands wrecked by mining from before the advent of modern environmental law. It covers coal exclusively, and does not fund the immense reclamation needs of either hardrock minerals or uranium.

In theory, $11.3 billion is the largest authorization of the entire Energy Infrastructure bill. Likely, this number is based on the Interior Department�s current estimate of the unfunded reclamation needs of existing sites, which stands at $10.7 billion. This far exceeds the AML�s dwindling unappropriated balance of $2.3 billion. The problem is that even this fresh injection is likely too small. An analysis from the Ohio River Valley Institute finds the number closer to $20.9 billion, likely rising to $26.9 billion by 2050 as new sites are discovered and existing sites become pricier to reclaim because of climate change.

What makes the Manchin proposal so worrying is that it pairs a bailout of the AML with a sharp cut to the AML�s only source of revenue � a fee paid by companies for every ton of coal they extract. The program exacts a different fee for surface, underground, and lignite coal, but the proposal from Manchin would cut all of the existing fees across the board by 20 percent.

The AML fee is slated to expire this September, so renewing and extending it is an urgent matter. But the fee should be raised, not cut, to ensure the long-term viability of the program. Kicking the can down the road is dangerous not just for unreclaimed lands. The United Mine Workers of America is eligible for payments into its health and pension plans from the interest earned on unappropriated AML funds. Although these payments can be back-stopped to a degree by the Treasury Department, the long-term risk of AML insolvency puts added pressure on obligations owed to workers.

Despite the decline of the coal industry, the fee cut is not a negligible gift. For example, the Manchin bill would cut the rate for surface mining from 28 cents to 22.4 cents per ton. According to the Energy Information Administration, the US produced 438.9 million tons of surface coal in 2019. If the Manchin rate had been in effect then, coal companies would have saved a cool $24 million on surface coal fees alone.

$0: The size of the increase in bonding requirements for oil and gas wells on public lands

Orphan wells are one of the many dirty legacies left behind by Big Oil. Millions of oil and gas wells across the U.S. have been abandoned by operators without any effort to clean up the operation or plug the well. These wells emit roughly 281 kilotons of methane annually, contaminate surrounding groundwater, and risk explosion. Remediating these wells is crucial, they are a constant source of dangerous pollution and the clean-up process creates jobs. The Energy Infrastructure Act includes some funds for this cleanup, including $250,000,000 for orphan wells on public lands during the period of fiscal years 2022 through 2031, as well as funds for Tribal Governments. The issue is that the �Exxon infrastructure package� proposes this funding without any bonding reform. Surety, or well-plugging, bonds are intended to guarantee that drillers plug unused wells before abandoning them. However, current bonding provisions have proven far from sufficient in ensuring polluters, not taxpayers, pay for the cleanup.

Orphan wells are not well documented, so clean-up efforts are slow and costly. Unless we increase bonding rates, taxpayers will be forced again and again in the future to bailout Big Oil�s mess. Polluters should be the ones to pay for remediation, which means that bonding reform is needed. We must increase minimum public land oil and gas bonding amounts to $150,0000 on an individual lease and $500,000 in an entire state, as is proposed by bills introduced separately by Senator Bennet, Representative Lowenthal, and Representative Ledger Fernandez. We should also require operators to pay an annual fee for idled wells on public lands. But, this is the �Exxon Infrastructure package,� so the lack of bonding reform is unsurprising. Big Oil benefits from a status quo that allows polluters to walk away from their mess with zero consequences.

Conclusion

In the ExxonMobil sting, Keith McCoy talked candidly about Big Oil�s favorite democrats. No one was surprised to see Senator Manchin on Exxon�s list. Mr. McCoy�s observation, that Senator Manchin is not shy about staking his claim, is clear throughout his infrastructure bill. The over 70-to-1 dirty to renewables is classic Manchin and classic Big Oil. Legislation like this puts at risk President Biden�s promise to put climate at the center of infrastructure.

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That's Not a Criminal, That's a Teenager

Written by <a href="index.php?option=com_comprofiler&task=userProfile&user=60166">Meryl Davids Landau, The New York Times</a>

Sunday, 18 July 2021 08:40

Landau writes: "Like most police officers across the country, he had been taught to act as an enforcer, with the idea that teenagers should not get away with anything an adult would not. But in the training session, 'Policing the Teen Brain,' Mr. Lowe learned all the ways that adolescents are different from adults."

Residents stand in line for breakfast recently at a juvenile detention center. (photo: Jim Hudelson/The Shreveport Times)

That's Not a Criminal, That's a Teenager

By Meryl Davids Landau, The New York Times

18 July 21

he day Brian Lowe attended a training session for police officers on understanding the minds of teenagers, he knew his job would never be the same.

Mr. Lowe, a lieutenant in the sheriff�s office in Tippecanoe County, Ind., immediately recalled encounters with young people in the past � the teens he�d handcuffed for trespassing in a closed park in the middle of the night while hanging out with friends, the students he�d arrested for stealing a cafeteria sandwich. Like most police officers across the country, he had been taught to act as an enforcer, with the idea that teenagers should not get away with anything an adult would not.

But in the training session, �Policing the Teen Brain,� Mr. Lowe learned all the ways that adolescents are different from adults. For instance, because of their less-developed prefrontal cortex � the part of the brain charged with problem solving and controlling irrational behavior � and the coursing hormones of puberty, they are not always in command of their actions. Children who have suffered violence or other trauma are even more likely to become emotionally unstable under stress.

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