Distribution of Government Power within a State System

Rehabilitation v. Deterrence is the leading motive for the light burning on the issue of proportionality in the 11^th and 3^rd Circuit U.S. Court of Appeals; the issue of preliminary investigations which has already been decided on in Greer v. Chao, but was not addressed in Wells v. Columbus Technical College when the issue was raised in Wells’ initial complaint.  The lack of impartiality and abuse of discretion by college hearing officers raises the question of whether or not the eighth amendment was a mistake by the courts and legislatures or are the courts and legislatures taking away the eighth amendment’s ability to restrain state sentencing laws, both mandatory and discretionary; statute and policy. 

Preliminary investigations are to stipulate the record of reason, for the purpose of ensuring that due process is followed.  A proper preliminary investigation into the building blocks of an incident is written in most state agencies internal policies.  In addition, a preliminary investigation ensures the hearing officer gives both parties a neutral and detached judgment that is in the interest of justice.  Also, official internal policies constitute official state regulations which govern due process.  Recently a young boy by the name of Micheal Brown was shot and killed by St. Louis Police.  Jim Salter of the Associated Press wrote on MSN’s website in an article entitled, Vandalism, looting after vigil for Missouri man, "Most came here for a peaceful protest but it takes one bad apple to spoil the bunch. ... I can understand the anger and unrest but I can't understand the violence and looting …Deanel Trout, a 14-year resident of Ferguson, said.”  Most Administrative proceedings are in need of proper preliminary investigations.  If you scour the database of court cases of business and school disciplinary hearings you will see that most conduct a proper preliminary investigation into the building blocks of the incident before making a determination of guilt and imposing sanctions.  Rehabilitation is usually the result of performing a proper preliminary investigation because each building block of the incident sometimes has more weight to it than others; allowing for an unbiased outcome.  Alice Ristroph of the Duke Law Review wrote that proportionality has its roots in criminal sentencing of inmates sentenced to Life Without the possibility of Parole, and Death row, but the civil sanctions of punitive damages in State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 429 (2003), where “a judgment for $145 million in punitive damages on the grounds that the award “was neither reasonable nor proportionate to the wrong committed,” and BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 585–86 (1996), where “reversing a judgment for $2 million in punitive damages as “grossly excessive”. ”  The issues of Proportionality and Preliminary Investigation were not even addressed by the courts in Wells v. Columbus Technical College due to the Plaintiff not utilizing the adequate state remedy of mandamus, as stated in the opinion of the 11^th Circuit court of Appeals and Middle District of Georgia, Columbus division, but were meritorious enough on their own, along with evidence presented, to warrant a trial.  The state’s interest of the states comprising the 11^th and 3^rd  Circuit U.S. Court of Appeals is why college hearing officers can apply penological theories in preliminary investigations and discretionary sanctions, even when the language of their own policy is unconstitutional.  Even though the issue of proportionality is still percolating in the 11^th and 3^rd Circuit U.S. Court of Appeals, the 11^th Circuit decided on proportionality in two cases cited by the 3^rd Circuit.  First, in Barnes v. Zaccari 669 F.3d 1295 CA. 11 (GA) 2012,  it says, once a state creates a substantive interest in a government benefit, “federal constitutional law determines whether that interest rises to the level of a legitimate claim of entitlement protected by the Due process clause.  Secondly, in the controlling cite of  Loggins v. Thomas, it states that, “To create a sentencing scheme whereby life in prison without the possibility of parole is simply the most severe of a range of available penalties that the sentencer can impose after hearing evidence in mitigation and aggravation,” and that “The supreme court has made clear that a sentence that could constitutionally be imposed by a trial court in the exercise of discretion is no less constitutional because it is mandatorily imposed under the requirements of statue.”

People are speaking of these things and many more before, during, and after they have happened from Los Angeles’ San Fernando Valley to New Orleans’ Lower Ninth ward to burros in Staten Island.  This talk is generated by “two great intellectual shifts of the late twentieth century.” Evinced by a flood that had New York subways looking like the bottom of an ocean, Russian hackers who amassed over a billion internet passwords from an American based company, a killer virus that infected two American doctors in West Africa, and a subway system in Los Angeles that has been being built since the 1990s.  The execution of a plan depends on the actors involved, the plan itself, and the plan being either known or unknown, in whole or part to the enemy.  A perfect example of this is in Marvel’s Thor:  The Dark World (2013), Malakeith leads an ancient race to take over the universe, Dr. Jane Foster is infected with the dark force.  Thor takes her back to Asgard to try and purge it from her system, but it is only one person who can purge it from her, Malakeith.  Thor forms a very untrusting alliance with Loki as he takes Dr. Foster to Malakeith.  Thor finally releases Loki from his restraints, and Loki stabs him in the “proverbial back”, gives Malakeith the girl, cuts Thor’s hand off as he calls for his hammer.  After Malakeith purges Dr. Foster of the dark force, the plot that was planned without words and played by ear, is well executed.  For Thor’s plan to work, Loki’s betrayal had to be real, in light of its overall result.  Can you see the imperatives that were followed here in order to reach one or more desired results?  This is a prime example of kantian ethics, prima facia duties, and rights-based ethics.

The lack of proper preliminary investigations and the abuse of discretion in imposing sanctions is the result of the “distribution of government power within a state system” or is it a mistake made by legislatures and the courts?  To the officials involved it is Rehabilitation v. Deterrence, but to the persons on either side of the ‘V’, it is Homicide v. Homosexuality.  Consequently, criminal deterrence is why government officials have not extinguished the light on proportionality, as it continues to burn.  It burns because it is a valuable tool used to discredit persons subject to administrative policy and proceedings in civil matters.