Homestead Amendment – Just The Text

HOMESTEAD AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES

Neither the United States nor any State shall tax residential real property, or permit the encumbrance of residential real property by reason of any debt. Neither the United States nor any State shall evict any person from their principal residence for non-payment of rent.

 

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Homestead Amendment

This is, you know, the “outside the box” category.

Some time ago – quite a lot of time, actually – we decided to float the idea of a “jubilee” constitutional amendment.  We felt there was no end game to the debt trap our country and indeed the world was in.  We liked a gold standard for sound money.  We objected to central banks, and the basically socialist-collectivist, yet oddly oligarchical political regime they fostered.

There were many drawbacks, however.  One was intrinsic:  it took a lot of verbiage to get the idea out.  It would have been the longest constitutional amendment ever.  That is not good, because (for example) each additional word is fuel for judicial mischief undermining the whole thing.

Another was extrinsic.  People who felt they had lived a virtuous life and had been financially responsible and paid their debts objected, often emphatically, to the idea of an across the board debt forgiveness for those who have been less responsible and virtuous.  This one is, we think, close to insurmountable.  The objection does not withstand even a modicum of sober and logical reflection but it has a stubborn, if irrational, political power.

Stubborn and irrational political power, it should go without saying, is the worst possible way to be governed.  It’s a synonym for tyranny.

But let us move on.  We think that by scaling back our ambition regarding what, precisely, we might accomplish with a constitutional amendment we can effectively address the intrinsic problem.  We have another idea, in other words.  And more specifically, in far fewer words.  This amendment would not accomplish nearly so much as the jubilee amendment but it would accomplish something very significant – far more than, say, what a lot of people seem to believe a Trump administration ever would.  Or could.

The goal here is to secure the places people reside – that is, their actual real estate and dwelling, their “homes” – so that they can never be involuntarily taken away.  This is a profound change from the regime we currently live under, where the security of one’s home is always in doubt.  We consider that current regime – how shall we put this – extremely unhealthy.  Morally, politically, socially, personally, emotionally and rationally.  We submit that “natural reason” – our preferred method for viewing and interacting with the world around us – regards the “home” primarily as a stable and secure place for people to live, and that a political regime that undermines this principle of natural reason is fundamentally dysfunctional and induces cognitive dissonance among the rulers and populace alike.

So undoing that dysfunction would be no small thing.

We set forth the text of the amendment below, all two sentences.  We invite commentary from interested readers.  All three of them.  We especially appreciate commentary directed to a) whether the reader thinks the amendment will accomplish the goal set forth; b) any significant problems the amendment has; and c) any objections to the goal along with any alternative goals the reader believes would be more suitable.

HOMESTEAD AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES

Neither the United States nor any State shall tax residential real property, or permit the encumbrance of residential real property by reason of any debt. Neither the United States nor any State shall evict any person from their principal residence for non-payment of rent.

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Double Plus Bad Think – Repealed

As some of the cooler heads have pointed out, the practical effect of New York’s new and improved abortion regime is basically nil.  But ideologically it has a lot of oompf.

How so?  New York “liberalized” its abortion law in 1970, three years before the SCOTUS weighed in saying that the constitutional due process “right to privacy” was “broad” enough to encompass, you know, abortion.  How did New York do that?  Not by saying that abortion was a “right”, or that the human unborn was not a “person”; but rather by saying that any abortion taking place within the first six months of pregnancy was a “justifiable abortional act”.  That is to say, or at least strongly imply, that abortion itself was wrong, and would be criminal, but in what became any reason or no reason for a period of time it was “justifiable”, justification also being a criminal law concept described in Article 35 of New York’s Penal Law.

The ideological problem?  Abortion remained a conceptual wrong, the subject of several statutes in the Penal Law in Article 125, which was itself entitled “Homicide, Abortion and Related Offenses”.

How terribly uncomfortable and irksome for one side in the abortion wars.

Fortunately for that one side, in the almost 50 years that have passed since 1970, this curious implied commentary on the nature of abortion, still codified in New York’s Penal Law, has never, to our knowledge, been mentioned in the press, and indeed in all the blather about this recent change in the law has not been mentioned either.  Apparently it has been unmentionable.  And accordingly that one side has never had to confront the implications of what no one can, after all, speak.

And now they surely won’t have to.  The objectionable thought has been purged from the law of New York.  The long-standing oversight from the early days of our reproductive revolutionary zeal has finally been corrected, an intellectual irritant flushed down the collective memory hole where it will no longer trouble us.

That is all the change in the law was about.  It’s to show there’s no going back.

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Dzhokhar Tsarnaev, Impressionistically

We wrote this almost 4 years ago.  Never published it.  This seemed to be an appropriate moment:

 

I haven’t weighed in on this for a number of reasons; but like a lot of high profile cases it has a larger significance because so many people are aware of it and have opinions.

I’m not familiar with the evidence and don’t really want to go down that road, but I’ve formed some opinions based on a few facts that seem to be beyond dispute.

The older brother, Tamerlan, was a very strong personality.  He was also quite likely either manic/schizophrenic or brain damaged from years of blows to the head.  This is based on some recountings of his personal history which have included allusions to a personality change around the age mania or schizophrenia first appear (late teens to early 20’s) and extensive experience with boxing and/or martial arts.

When people with strong personalities become mentally ill their pathologies are extremely difficult to resist.  You can argue the most obvious points, but you’ll be brow beaten out of them if only because a normal person gets fatigued but a manic person doesn’t.  Or at least not the same way.  It’s almost like their mental illness is contagious, and to stay normal you have to put distance between yourself and them.  A much younger brother would be especially vulnerable, though, because they often grow up idolizing their older brothers, and without some third party pulling them back from the precipice they are apt to fall into the abyss, where their brother lives.

I assume this is going to be the narrative the defense advances in the penalty phase of the trial.  And it’s a good narrative, because it’s probably the truth.

And it makes – or should make – the government’s terrorism narrative look like the product of a febrile hysteria.

In other words, this was not any kind of international terrorism event at all; this was a far more domestic kind of story about a mentally ill and/or brain damaged young man who turned violent and drew his malleable, laid back baby brother into the vortex of madness.  If it hadn’t been Muslim this or that there would have been some other excuse – some other grandiose, conspiratorial bugaboo upon which Tamerlan’s mind had fixated and would eventually (and ultimately inexplicably) move him to some crazed, violent act.

And this is another case where the death penalty shouldn’t even be on the table.  Not only is the narrative I just described likely far closer to the truth than the government’s; as far as I know this kid had no prior criminal history.  For me at least, it is hard to envision any scenario where someone should be put to death on his first criminal conviction.

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Tonsillectomies And “Climate Change”

What’s the connection?  Perhaps some astute reader will figure it out and comment.

We quote:

The tonsillectomy epidemic also fell on my own family according to generation.  My father, born in Norway just after the turn of the century, escaped the procedure entirely, as did most of his generation.  I was not so lucky.  In the late 1930’s my family lived in Bellows Falls, Vermont, and at the age of five I underwent my first tonsillectomy in the local hospital.  I was one of the lucky ones to have my operation in the hospital.  Many of my friends in those Depression-era years were not so fortunate.  Their parents could not afford the hospital, so they had their operations in the school gymnasium during “tonsillectomy day” – a mass surgery event held periodically to ensure that everyone in Bellows Falls who needed an operation received an operation.  Although precise statistics are not available, this apparently meant every child in town.

Emphasis supplied.

Indeed it’s hard to find “precise statistics”.  Indeed it’s hard to to find anything at all documenting the fact – and it is a fact – that mass tonsillectomy days were held in school gymnasiums all over the northeast United States for several decades – roughly the 1930’s to the 1950’s.  Performed on children who were completely healthy and experiencing no symptoms of disease in their tonsils or anywhere else.

Was this a grotesque form of child abuse?  Sure.  Is that what people thought at the time?  Of course not.

Discuss.

 

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Pleas And Thank You

One of the consequences of the prevalence of former prosecutors being judges (and “prevalence” is putting it mildly – almost all judges were prosecutors at one point or another) is that the prosecutor mindset comes to dominate the judiciary.

Yes, there’s a mindset.  We freely admit we don’t have it, and have often remarked that we could never have been a prosecutor.

It is the prosecutor mindset that places a higher value on “finality” than on accuracy or truth, and the prosecutor mindset that recoils from the idea that a bargained for guilty plea can be undone, because a deal is a deal and that’s not fair.

Judge Garcia again:

In light of defendant’s guilty plea, the case never proceeded to trial. Presumably, the People ceased all efforts to investigate or prosecute defendant’s case…Having struck a bargain with the People many months ago, defendant cannot now contest her guilt…

“The People”.  That’s how prosecutors generally like to refer to themselves in New York.  It’s a bit pretentious and vaguely Bolshevik, don’t you think?

But moving on.  In dissent Judge Wilson is succinct:

Natascha Tiger pleaded guilty but is innocent.

He then puts “finality” in a modicum of perspective:

The majority is focused on the importance of the finality of the plea process, and the appropriate conservation of judicial resources (majority op. at 11-13). Those concerns are weighty. But “conservation of judicial resources” does not appear alongside “life, liberty and the pursuit of happiness.”

We don’t like the “wow much limited resources” excuse for not doing our jobs argument around here, but it’s a really popular refrain from prosecutors-turned-judges.  We don’t agree that it’s a “weighty” concern in the slightest when we’re talking about convicting the innocent, so while we appreciate Judge Wilson’s dissent we wish he’d been better on that point.  Some judge needs to repudiate the whole “resources” thing.  It’s repugnant, and we’ve explained our position before.

But the point here is that Judge Wilson was never a prosecutor.  Neither was Judge Rivera, who joined his opinion (“Deputy AG” is a government lawyer but not generally a prosecutor).

Among those in the majority, however, both of the opinions were authored by career prosecutors who then became judges.

So perhaps the Tiger case is a tidy illustration of at least some of the characteristics of the prosecutor mindset:  it is institutionally minded – that is, it favors institutional concerns (such as finality) over individual ones (such as freedom from incarceration or other punishment for the innocent), which is, you know, un-American – but never mind; it leans heavily towards – indeed we could say it is infused with – the “sporting theory of justice”, even though that mindset was condemned as early as 1906 by Roscoe Pound as “…disfigur[ing] our judicial administration at every point.” and, according to United States v. Agurs (at p. 108) explicitly rejected by the SCOTUS in Brady v. Maryland, at least when criminal defendants employ it.

And what about this “finality” business in habeas matters, anyway?  There’s a pretty cool resource from BYU law school that lets you conduct a search for terms in SCOTUS opinions, although we wish it were a little better.  Nevertheless, it does allow a search for the term “finality” within 10 words of “habeas”, yielding an interesting result.

Prior to the 1970’s that had never happened.  It happened twice in that decade, three times in the 1980’s and five times in the 1990’s – mirroring perfectly, we think, the trend toward the prosecutor mentality in the SCOTUS.

It’s practically tautological to say that the remedy of habeas corpus undercuts finality.  The fact that habeas corpus exists at all – although outside of the death penalty context it exists now only in theory, not in practice – is a testament to the idea that at some point, the law recognizes that finality ceases to matter when someone is wrongfully in custody.  “Finality” might have a place in the discussion of a habeas corpus case where a court was being asked to expand or extend the habeas remedy; its appearance otherwise bespeaks a visceral, emotional and irrational hostility to doing one’s duty, since it should go without saying that the law binds the judiciary.

Question:  was the SCOTUS in Herrera v. Collins, or the New York Court of Appeals in People v. Tiger, being asked to expand or extend the scope of post-conviction remedies like habeas corpus and 440 motions to encompass the notion of “actual innocence”?

Let’s change context.  In Article III of the constitution we have what is known as the “Exceptions” clause, which subjects SCOTUS appellate jurisdiction to such exceptions as the “Congress shall make”.

Can the Congress exception the SCOTUS to death, removing all jurisdiction from it?

Those that answer “no” frequently cite the principle that the separation of powers would be violated if one branch of government – the judiciary – could have its “core functions” removed by another branch.

So there are “core functions” that virtually define the judicial branch of the government?  Would exonerating the innocent be one of those?

Let’s quote Justice Rehnquist again, in Herrera v. Collins:

“After all, the central purpose of any system of criminal justice is to convict the guilty and free the innocent.”

So if that’s true – and Justice Rehnquist backed by a majority of the SCOTUS says so –  isn’t it axiomatic that courts have a duty to free the innocent that cannot be denied – or worse, shirked?  Sounds like a “core function” to us.  Non-delegable.  Implicit (not needing to be explicitly provided by some statute or rule).

The question wouldn’t even come up if our political-science-major robed rulers had ever run across the term “a priori” and had any understanding of what it meant.  To ask if the constitution prohibits the judiciary from signing off on the imprisonment or execution of an innocent person is like asking if water is wet.

It’s not true that the only stupid question is the one you failed to ask.

What about the guilty plea, then?  Well, if we say over and over (and we do) – that is, every single time someone pleads guilty – that there’s no difference between a guilty verdict after a trial and a guilty plea then…there’s no difference.  How does a question predicated on such a difference (i.e., People v. Tiger) even arise?

We give up all these “trial rights” when we plead guilty:

At a trial by jury you are presumed to be innocent, and you are entitled
to the following rights:

You have the right to be represented by your lawyer.
You have the right to confront and cross-examine witnesses presented
by the government.
You have the right to remain silent and not to incriminate yourself.
You have the right, but are not required, to call witnesses, and to testify
yourself.
Finally, you have the right to require the government to prove your guilt
beyond a reasonable doubt to a jury of twelve people who must be
unanimous in finding that you are guilty.

One reason 97% of criminal cases are resolved by guilty pleas is that this spiel is filled with distortions and outright lies.

No one really believes the accused is “presumed innocent”.

Your lawyer, assuming he is “effective”, will be hamstrung at trial by ruling after ruling designed to ensure that he loses, including restrictions on his efforts at confrontation, and having any witnesses marshaled in your defense threatened with arrest.  Or actually arrested.

Finally, there is no actual burden of proof on the government at all; more like a burden of production.  The government’s evidence can be pure garbage and you’re still at great risk of conviction and imprisonment.

So, you know, pleas.

The prosecutor and the judge (or do we repeat ourselves?) may be worried about “resources”, but the Defendant in his cross hairs is worried about his freedom (in some few cases even his life) and at least a permanent reduction into the American class of Untouchables.  The prosecutor’s concern is collectivist.  The Defendant’s is individualist.  Selfish, too, perhaps.  But in the case of an innocent Defendant the selfishness is no sin; indeed a properly ordered conscience would consider it obligatory to correct the record even in one’s own favor.

It all comes back to the late Justice Rehnquist.  Well, maybe not all.  But in any event, and ironically, Justice Rehnquist was never a real prosecutor and came from a largely private practice background, though we use the term advisedly inasmuch as his clients were picked from among the extremely well heeled in Arizona and of course he was a Stanford man.

He apparently had a callow faith in criminal trials that no one who has ever done one – representing a defendant – would be stupid enough to have.

So in Wainwright v. Sykes he endeavored to restore the concept of the “criminal trial” as a “decisive and portentous event”.  Note he was specific to criminal trials.  In civil cases the little guy mostly doesn’t even get a trial, because summary judgment, which overwhelmingly favors the institutional litigant.

See the consistency here?  Institutional litigants benefit from the trial as a “decisive and portentous event” in criminal cases, so that’s what we decide to think.  Institutional litigants benefit from avoiding trials altogether in civil cases, so the decisive and portentous event so terribly important in criminal cases ceases to matter and increasingly doesn’t even happen in civil cases.

This is called “policy”:  favoring institutional interests over individual interests because “resources”, or some such.  It’s galling.  The whole purpose of the courts is to do precisely the opposite, to neutralize the power differential.  Instead they sacralize it.

The glorification of “finality” regarding guilty pleas that every sentient person recognizes as incorrect and unjust is at the end of the slippery slope of this policy.  We have to lie, over and over, then double down, then lie some more, to get there.

Discussion of “negotiations” and “bargains” with respect to guilty pleas can be a useful shorthand, but ultimately these are analogies only:  in no way do they accurately describe the “process” that Judge Difiore considers so “integral” in People v. Tiger.

Two parties are not truly negotiating or bargaining when one of them has a gun to their head and not the other.  Does this really need to be said?

 

 

 

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Pardon Paradox And Innocence Follies

We thought we should briefly revisit our earlier post regarding People v. Tiger, a very unfortunate case from the New York Court of Appeals.  And we may revisit that case again, for other reasons.  But we have a particular reason in mind this morning.

One of the things a judge explicitly tells a criminal defendant when they are pleading guilty is that there is no difference between the conviction that results from a guilty plea and one that results from a trial.

Increasingly, and especially in the wake of the Tiger decision, this is a lie.  Tiger holds that a person who pleads guilty cannot contest their factual guilt in a “post-conviction” proceeding whereas a person who is found guilty after trial can, although let’s face it the latter is true in theory but not in practice.

Former-prosecutor-now-appellate-judges really seem to have a Thing for “finality”.  First you get Judge DiFiore:

The plea process is integral to the criminal justice system and we have observed that there are significant public policy reasons for upholding plea agreements, including conserving judicial resources and providing finality in criminal proceedings. To that end, we have recognized that a defendant can plead guilty to a nonexistent or legally impossible offense in satisfaction of an indictment that charges a higher offense. Likewise, we allow defendants to plead guilty while maintaining their innocence by entering an Alford plea. Allowing a collateral attack on a guilty plea obtained in a judicial proceeding that comported with all of the requisite constitutional protections on the basis of a delayed claim of actual innocence would be inconsistent with our jurisprudence and would effectively defeat the finality that attends a constitutionally obtained guilty plea.

Thus, a guilty plea entered in proceedings where the record demonstrates the conviction was constitutionally obtained will presumptively foreclose an independent actual innocence claim.

(citations omitted)

Notice how Judge DiFiore tries to subtly lump Alford pleas in with other guilty pleas in this context.  That’s really, really bad man.  We’ll get back to that shortly.

First, though, we’ll quote Judge Garcia.  He concurs, but wants to “emphasize” something, though we’re not sure what:

I join the majority and agree that defendant’s “freestanding actual innocence” claim is not cognizable under CPL 440.10 (1) (h). I write separately to emphasize that defendant’s “freestanding” claim is foreclosed regardless of whether she raised, or could have raised, an alternative claim.

What he really seems to want to emphasize, however, is how wonderful we are to criminal defendants and how it’s wrong to let them take advantage of our generosity:

Under New York law, a defendant who maintains his or her innocence may employ various procedural protections, and pursue an array of challenges, to ensure that guilt or innocence is fairly and reliably determined.  Initially, a person charged with a crime may elect to proceed to trial…Alternatively, a defendant may forego a trial in favor of a guilty plea. The plea bargaining process, an essential component of our justice system, enables a defendant to concede guilt in exchange for certainty and leniency—oftentimes in the form of a lesser conviction or a more favorable sentence. It also serves a number of critical public policy goals, including conservation of judicial resources and finality in criminal proceedings…

Judge Garcia really likes to “emphasize”:

Under New York’s statutory scheme, a defendant may pursue various claims on appeal to directly or collaterally challenge a judgment of conviction…First, a defendant convicted at trial may bring a direct appeal to challenge the procedural fairness of the proceedings as well as the adequacy of the evidence presented…A convicted defendant may also move to vacate the judgment pursuant to CPL 440.10…New York’s existing framework already contemplates numerous and various relief mechanisms for a defendant who—despite having been convicted—maintains his or her innocence…The CPL’s exhaustive list of specified remedies…Even where these challenges fail, a defendant has further remedies still…

And look how ungrateful they are:

 …a “freestanding” claim would allow a defendant to bargain strategically, only to later attack the factual sufficiency of his or her plea. Having received the benefit of a lenient plea deal, a defendant should not be permitted to subsequently challenge that conviction on the ground that he or she is “innocent” of the charge of conviction…

So, of course:

Having struck a bargain with the People many months ago, defendant cannot now contest her guilt in a belated, jury-less, free-for-all mini-trial.

“Free for all”?  Rhetorical excess much, Judge Garcia?

Judge Garcia quotes the more or less infamous federal habeas case of Herrera v. Collins:

 “In any system of criminal justice, innocence’ or guilt’ must be determined in some sort of judicial proceeding”

But the quote is selective.  On the same page Herrera says this:

After all, the central purpose of any system of criminal justice is to convict the guilty and free the innocent.

Judge Garcia leaves that part out.  Indeed his whole concurring opinion reads more like the rather shrill brief of a party than a judicial opinion.

Want more selectivity?  It is fundamentally and intellectually dishonest, as the majority opinion does, to cite Tollett v. Henderson for the proposition that:

When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.

without also citing the later case of Menna v. New York:

Neither Tollett v. Henderson, 411 U. S. 258 (1973), nor our earlier cases on which it relied, e. g., Brady v. United States, 397 U. S. 742 (1970), and McMann v. Richardson, 397 U. S. 759 (1970), stand for the proposition that counseled guilty pleas inevitably “waive” all antecedent constitutional violations. If they did so hold, the New York Court of Appeals might be correct. However, in Tollett we emphasized that waiver was not the basic ingredient of this line of cases, 411 U. S., at 266. The point of these cases is that a counseled plea of guilty is an admission of factual guilt so reliable that, where voluntary and intelligent, it quite validly removes the issue of factual guilt from the case. In most cases, factual guilt is a sufficient basis for the State’s imposition of punishment. A guilty plea, therefore, simply renders irrelevant those constitutional violations not logically inconsistent with the valid establishment of factual guilt and which do not stand in the way of conviction, if factual guilt is validly established. Here, however, the claim is that the State may not convict petitioner no matter how validly his factual guilt is established. The guilty plea, therefore, does not bar the claim.

Emphasis supplied, as we say, but particularly importantly here to illustrate the further intellectual dishonesty of trying to lump Alford pleas in with other guilty pleas in this context, since an Alford plea by definition contains no admissions of factual guilt.

It would be fairer, and simpler, to say that the “central purpose of any system of criminal justice” is to free the innocent, because convicting the guilty is properly the responsibility of the executive branch.  It is implicit in this that its determinations of guilt or innocence must be accurate, and so it would also be fairer to say that “finality” doesn’t matter at all in a criminal justice system, but certainly not at the expense of accuracy.  In the civil justice system it does – res judicata, doncha know – but not in the criminal justice system, which has always permitted criminal convictions to be “collaterally” attacked, which would run afoul of the doctrine of res judicata if that doctrine applied.

Which obviously, therefore, doesn’t.

We think prosecutors should be disqualified from being judges.

Finally, the “pardon” thing.  We do not understand how the SCOTUS and now the New York Court of Appeals can claim that “traditionally”, pardons were the last resort for an innocent convicted person.  In fact, traditionally, the acceptance of a pardon has been deemed an admission of guilt along with the need for forgiveness and mercy, such that even those advocating for pardons on the ground of innocence have noted that the idea is paradoxical.

The innocent convicted do not need forgiveness and mercy from us.  We need forgiveness and mercy from them, for convicting them in the first place.

The dissent in Tiger has it right, we say:

“Every wrongful conviction is a stain on the reputation of the courts, eroding public trust and confidence in the legitimacy of our institutional status and the fairness and accuracy of our decisions. This only underscores why the judiciary, the focal point of the entire justice system, is absolutely duty-bound to lead the way in making sure that the criminal justice process is as fair and accurate as humanly possible”

How many criminal defendants have stood in the dock at sentencing being upbraided by the judge for not taking “personal responsibility”, yet a majority of our Court of Appeals judges are now joining the SCOTUS Justices in offering the opinion that the innocent convicted are the responsibility of the executive branch through the pardon power?  It’s a truly shameful abdication.

But at least Judge Wilson is a voice crying in the wilderness:

Today’s decision inexplicably and unnecessarily denies that mission, eschewing our obligation in favor of further legislative action or executive clemency. I will not.

There’s that, then.  But let’s face it, Judge Wilson was writing in dissent on a 5-2 decision.

Ugh.

 

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