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LEGAL VIEW WITH ASHLEIGH BANFIELD

Canada Nixes Prostitution Laws; Obama Commutes Prison Sentences; 1800 Students Tested for T.B. References to Christianity Left Out of Christmas Song.

Aired December 20, 2013 - 11:30   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.


ASHLEIGH BANFIELD, CNN ANCHOR: (inaudible) this ruling has been stayed (ph) for a year so that parliament can deal with it and rejig and figure out how to handle this sort of thing. Does it mean it's all good if, after a year, if you don't deal with it, prostitution legal in Canada?

JOEY JACKSON, HLN LEGAL ANALYST: It means that laws in the domain of the parliament they create and do what they will. However they have to pass constitutional muster. Ultimately it will be left to the legislator, but they're given a year to come up with something that works. What the court said, it's open season for prostitution, they're not agreeing. They're not saying that it's legal or illegal.

They're saying that you have a right to safety, security. And by doing what this law would do, it would put them at serious risk. And the court said no. And finally three cheers for these three women who spearheaded this fight. They're saying I have a right to my security. And as a result of that, what you're doing is wrong. And the court agreed.

BANFIELD: This doesn't make a lot of sense on its surface. What do you mean it's not safe? Of course, it's not safe. How exactly did these women make their case? What did they say was unsafe and what was the remedy that was safer?

DANNY CEVALLOS, CNN LEGAL ANALYST: We have to start with this, prostitution in Canada is legal. But what the government is trying to do is --

BANFIELD: But the buying and selling of sex, that's legal already?

CEVALLOS: That act is legal. It's not addressed, I guess I should say. But it is legal. What the laws tried to do, what the government tried to do is make illegal all the surrounding activities, profiting from it and communicating about it. The argument they made, which is a good one, if an underlying is legal, and you make every other activity surrounding that act illegal --

(CROSSTALK)

BANFIELD: You can't do it.

CEVALLOS: Yeah, then you can't do it. That's really what it case is aboot. BANFIELD: Did you just say "aboot."

(CROSSTALK)

BANFIELD: Are you making fun of me?

(CROSSTALK)

BANFIELD: Not in front of the flag.

(LAUGHTER)

CEVALLOS: I would never. I wouldn't dare.

#; What they did was made all of those ancillary issues drop away, which then allows you to get to the root, which is the prostitution. But were those things the prostitutes said made them safe?

CEVALLOS: That's the argument. To take a silly example, if you wanted to out law riding a motorcycle, which is a dangerous activity, and you left it legal but outlawed helmets, then people would still ride motorcycles.

(CROSSTALK)

CEVALLOS: If you make all of these -- if you force people to do illegal things dangerously, or legal things dangerously, how are you served public policy? And I think that's what the court was getting at.

BANFIELD: If you look at the precedent that this could set, if parliament is going to go back and try and craft -- if they decide to do so --

(CROSSTALK)

BANFIELD: If they want to go back and cast something, don't they have to keep in mind what the Supreme Court just said? What can you draw?

JACKSON: Always. It's about regulation. And whenever you want to regulate, you want to do something meaningful and rational that doesn't put people at jeopardy.

(CROSSTALK)

CEVALLOS: I knew you were going to get to that question. Constitutionally, yes, this happens very often. The Supreme Court strikes down -- we have an interesting system.

(CROSSTALK)

CEVALLOS: The Supreme Court can strike down an act of Congress, but the Congress can come right back and essentially overrule that Supreme Court decision. It's a beautiful operation of our separation of powers. And that's the way the system is designed. It works.

JACKSON: Here is what you do. A year from today, we come back, and we talk about what they did to fix it.

BANFIELD: In the meantime, nothing really changes.

Stay with me, I've got a couple of other things for you as well.

We usually cannot mention Canada without a joke from Danny, but also without the joke that has become the mayor of Toronto, Rob Ford. As we speak, look on your left. Yes, those are the numbers of little bits of coal being delivered to Toronto city hall. Quote, "For the naughtiest boy on Santa's list."

And you're being allowed to add your own lumps at RobFord.com. He's trying to do something good with this. Promising to match those clicks with dollars for charity that is to be named later on. To be clear, Rob Ford is not dancing while it's being delivered. This is the latest video of him dancing in city hall because that's what Rob Ford does, dances at city hall.

Other news. Getting caught with crack cocaine can put people behind bars for a lot longer than you might expect. And now President Obama is starting to chip away at that. And not necessarily because he doesn't want to get tough on crime. It's who is being targeted that's the issue.

(COMMERCIAL BREAK)

BANFIELD: President Obama is no doubt counting the minutes until his Christmas vacation starts in Hawaii. The first family is due to take off at 7: 00 eastern time. But first before that, another holiday tradition, the very exciting year-end news conference. It's set for 2:00 eastern time.

I know Jake Tapper is popping the popcorn. He joins me live. He's got great news to bump into this news conference if he wants. The economic news that came out today.

I'm wondering if that's what it's about or if it's a free for all?

JAKE TAPPER, CNN CHIEF WASHINGTON CORRESPONDENT: It's intended to be more of a free for all. He doesn't usually come to these end-of-the- year press conferences with a specific agenda. He wants to talk about the issues of the day. Reporters tend to ask him a wide diverse range of questions.

I'm sure he will be asked about the Affordable Care Act and the latest decision by the White House to change the rules as it were to allow some of these to continue. He'll be asked about economic growth and the National Security Agency and review that suggested changes to the NSA. He usually doesn't come. As I say, with a specific announcement that he wants to make.

BANFIELD: We're going to watch for it live. As I know you will as well.

Thank you, Jake.

You can watch it right here at 2:00 eastern time. And then my friend Jake Tapper is going to take over for "The Lead" at 4:00 p.m. eastern.

Yesterday, the president did something that he has only done once before in almost five years in office. He commuted, cut short, a prison sentence. All of them for crack cocaine offenses. Those offenses would actually bring much lighter sentences were they adjudicated today. You're probably wondering what? Is that such a good thing.

Let's talk about why this is significant. Before something called the Fair Sentencing Act came into being in 2010, someone caught with five grams of crack got the same mandatory prison term of someone who was caught with 500 grams of cocaine. People caught with crack are much more likely to be African-American. Those caught with the coke more likely to be white. Today, there's still a disparity, but it's only 18 to one there.

I want to bring in criminal defense attorney, Mark O'Mara, who is joining us from Florida.

Mark, thanks for being with me on this one.

MARK O'MARA, CNN CRIMINAL DEFENSE ATTORNEY & CNN LEGAL ANALYST: Sure. Great to be here.

BANFIELD: Some people will see this as an ugly headline. Some will say, how can you let some crack head out of prison early. Is there a bigger headline to make of what we see?

O'MARA: The bigger headline is that the president and administration is taking a look at the true disparity between sentencing for not only crack cocaine but more importantly for all of the minimum mandatory sentencing. The problem with them is that it takes the discretion away from the judges. There are hundreds of stories where judges look at a woman or guy and say I've got to sentence you to life because it's a crack cocaine conviction even though I don't want to. What they're going to do is review the minimum mandatory sentencing and change them.

BANFIELD: This all, as I understand it, got its traction and the just say no to drug era. And that was Nancy Reagan and her husband, President Reagan. But the conservatives seem to be onboard with getting the prison population under control in this country. Can you give me a state of the union on how bad it is in this country compared to others?

O'MARA: Sure. We have the best criminal justice system in the world. We also however are the country that incarcerates the most people in the world. Some 900 people almost of adults per 100,000, some 700 of all of our citizens. It's absurd that we're putting that many people in prison.

Here is the problem, it's not working. The state of the union of the criminal justice system is -- I like the standard of proof that we have to have but we have to have alternative resources to handle the people that we do find guilty of crimes. Because everyone knows that incarcerating people does not cut down on other crimes happening. The studies are undeniable that it doesn't work. We have to come up with a better solution than just putting more people in jail than anyone else in the world.

BANFIELD: And I'll tell you what, we got to just clarify for everyone watching, if they're nervous about this notion, this is for nonviolent offenders. We're not talking about, you know, people with drug convictions with violence connected to that. I want to turn the corner for just a second. Give me a quick one-two on something near and dear to your heart, legislation that is come into being. Take it from there and tout your horn.

O'MARA: Here is my horn. Senator Sims (ph) has now filed a bill that makes cyber bullying or any type of bullying a crime. It's happening every day in every school. I like the idea that we're starting. I would like the idea of having parental responsibility. And you and I talked about that.

But I think we have to start withholding the parents responsible for what their 10 and 12 and 14-year-old children are doing. Particularly what's going to happen in the next five to ten years with the internet, we can take responsibility for our children?

The internet should not be a baby-sitter. We have to hold the parents responsible. We cannot allow 10 and 12 year olds to make adult decisions on who or how to harass. Parents are responsible for cars and guns. If my child breaks a window down the street, I pay the bill for the window replacement. It's time to hold parents responsible for what their children do. We're going to bear the burden of it. And we're training children to be desensitized to what they do.

BANFIELD: It's great to see you're writing this legislation. I like that you write good legislation as well as that you litigate well in a courtroom.

Mark, nice to see you and happy holidays.

O'MARA: Yes, enjoy yours.

BANFIELD: Thank you. I will. I will try very hard if I can get on that flight.

We're moving on to a tuberculosis scare. It's happening at a California school. There are hundreds of students and staff being tested. Here is the question. Could this spread during the holidays? We're going to take you live there, next.

(COMMERCIAL BREAK)

BANFIELD: T.B., or tuberculosis, is no joking matter. It can be fatal if not treated. That's why all 1800 students and staff at Indio High School in California are being tested today for T.B. It's certainly not something you hear about, certainly, not at a school. One student came down with T.B. and dozens more tested positive for a possible exposure.

Casey Wian is live from Indio High School. What's the latest and how is this getting to be as big as it seems?

CASEY WIAN, CNN CORRESPONDENT: Well, it's at an abundance of caution, Ashleigh, that health officials say they're testing everyone here at Indio High School. To back up, as you mentioned, a couple weeks ago, one student came down with tuberculosis. Authorities tested everyone that that student came in close contact with, about 130 people that were tested; 45 of those students tested positive for exposure, meaning that there is a chance sometime during their lifetime, 10 percent chance they could develop T.B. They're being treated with antibiotics.

No other cases of active T.B. have been found yet. But because of that high rate of people with exposure, the authorities decided they needed to test everyone at this high school to make sure that this is not going to spread to the community, which, they say, there's very low risk of that happening right now.

Parents, needless to say, very concerned.

(BEGIN VIDEO CLIP)

UNIDENTIFIED PARENT: Yeah, very worried. I've got a younger one and then four other ones at home so yeah.

WIAN: As a parent, how worried are you?

UNIDENTIFIED PARENT: To tell you the truth, I'm not. I'm not really worried.

(END VIDEO CLIP)

WIAN: Now, the job of testing 1800 students and faculty in one day, you can imagine, a huge job. They've got 30 nurses from the county health department here. And they're going to be testing people at a rate of 450 students per hour. They've got to get it all done today because this is the end, the last day of school before winter break.

Other issue here, Ashleigh, is that students need to come back during winter break on Monday to get their test results. If they don't do that, they can't come back to school when school resumes after the first of the year -- Ashleigh?

BANFIELD: What about the kids supposed to get on an airplane or travel amongst a whole bunch of other people who don't know what school they go to? Have they accounted for that?

WIAN: They have. They've brought in nurses to conduct blood tests for those students, which can provide more immediate results, more definitive results so they can go ahead and take their trips if they've got family vacations planned.

BANFIELD: That's really scary for a parent to hear that's going on there.

Casey, keep an eye on it for us. Have a good holiday. We'll see good holiday.

WIAN: You, too.

BANFIELD: See you in the New Year.

A favorite Christmas song, you know it, it's called a "Christmas Carol, Christmas." There's Christ in the song. But one school decides to extract the Christ from the song and made it a silent night. I'm going to explain this coming back.

(COMMERCIAL BREAK)

BANFIELD: Just in time for Christmas. I want you to listen to this fifth grade chorus at Ralph J. Osgood Immediate School in Kings Park, New York. Not just because it's awesome. They're singing "Silent Night." I want you to listen carefully and then tell me if you notice anyone or anything missing.

(BEGIN VIDEO CLIP)

(SINGING)

(END VIDEO CLIP)

BANFIELD: Yeah, did you catch it? No virgin mother, no child, no holy infant, no tender and mild. And definitely no Christ the Savior or Jesus Lord at thy birth. None of that. No way. Because the school didn't want to offend non-Christians by singing a Christian song. So they just left that whole Christian part out. Sort of. Some parents were really upset by this, and the school has since apologized and is promising it's not going to happen again.

I want to bring back CNN's legal analyst and defense attorney, Danny Cevallos; and HLN legal analyst and criminal defense attorney, Joey Jackson.

During the commercial break, you should have heard these two.

(LAUGHTER)

JACKSON: Yes, we were.

BANFIELD: Is there anything -- is there anything wrong with what they did other than it's annoying to hear a song excised in that way? Especially if it's a Christian song. Is there anything legal when it comes to a school or school board dealing with our children?

JACKSON: Let's start with the positives. The children were beautiful and sang very well.

BANFIELD: They were lovely.

JACKSON: Taking it to another level, we have the Establishment Clause and the Free Exercise Clause. When you think of the First Amendment, most people think of it with regard to speech. It also pertains to religion. You can establish whatever religion you want, you're free to exercise it.

The issue is whether the school is too entangled with religion. It has to be neutral. Danny and I were debating this during the break. The issue I have here, do Christians and Christianity, with the song so sacrosanct and important to this community, is this hostile? It's one thing for a school to be neutral. It's another thing to diminish what the song really means and its value by taking it out. The hostility of it could be problematic.

BANFIELD: Speaking of silly, look at that guy.

CEVALLOS: Federal courts have specifically recognized that Christmas carols have a lot of range. You have the very religious like silent night like we're hearing. That has a lot of religious undertones and the completely almost secular like jingle bells, particularly the Batman version we're all familiar with.

(CROSSTALK)

(LAUGHTER)

CEVALLOS: The thing that Joey and I were talking about, it appears that schools are, courts have held they're allowed to have religious Christmas carols. But on the converse, it appears schools have the ability to prohibit any religious carols. They have that discretion.

And Joey raised the really interesting legal issue is if you dice and slice a song, you prohibited a religious carol or have you become hostile to religion by slicing and dicing it. It's an interesting topic. And we're going to debate it for the next millennia, no doubt.

BANFIELD: Yeah. I'll see you in the next year.

How about I see you a year from now, a couple of days anyway, Joey.

JACKSON: 2014, here we come.

BANFIELD: I know. Thanks so much.

Before I let the segment go, I want to give you a quick statement from the Kings Park Central School District Board of Education. They said this, "This action was not approved by the board of education or the district administration. Nor is it their role to approve the songs chosen for our concerts. We are aware no disrespect was intended on the part of any staff member."

And there you have that. That was the "Silent Night."

Thanks everyone, for being with us. By the way, I want to leave you with this amazing picture. I know you guys are going to love it. A huge Christmas surprise. A South Carolina middle schooler, Tammy Wood, asked to open up the box. That's her dad. Oh.

(BEGIN VIDEO CLIP)

(APPLAUSE) MAJOR: JASON WOOD, U.S. AIR FORCE: Hey, bud.

TAMMY WOOD, JASON'S DAUGHTER: Daddy.

JASON WOOD: Hey. Hey, buddy. I missed you.

(END VIDEO CLIP)

BANFIELD: Don't you just -- Air Force Major Jason Wood. Tammy and her little brother had no idea he was going to make it home for the holidays. And that brings a tear.

Happy holidays, merry Christmas, happy Kwanza, anything else you celebrate. We'll see you in 2014.

AROUND THE WORLD starts right now.

SUZANNE MALVEAUX, CNN ANCHOR: Prostitution gets a big break in Canada. We'll tell you what the country's Supreme Court decided.

MICHAEL HOLMES, CNN ANCHOR: Investigators in London trying to figure out what caused this theater's ceiling to collapse injuring dozens of people in London's historic West End theater district.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: I don't think it was an explosion. And the ceiling came down.

UNIDENTIFIED FEMALE: We just thought it was sound effects of the theater.

(END VIDEO CLIP)

MALVEAUX: And we have a verdict in the trial of celebrity chef Nigella Lawson's former aides. Now Lawson is slamming the defense for ruining her reputation by asking questions about her cocaine use.

Welcome to AROUND THE WORLD.