Author Archive
ONDCP’s Smoke and Mirrors
Bruce Mirken of the Marijuana Policy Project sends along video of Office of National Drug Control Policy (ONDCP) chief John Walters openly boasting about using federal tax dollars to defeat Question 7, a Nevada ballot initiative that would effectively legalize possession of up to one ounce of marijuana for personal use.
Walter’s mere presence in the state to speak against the initiative seems to violate the Hatch Act, not to mention his use of federal dollars to organize against it. Unfortunately, the Office of Special Counsel seems to have made a gaping “drug war exception” to the act, despite the fact that what Walters is doing seems to be in direct defiance of the plain language of the law.
Violation or no, Walters’ and ONDCP’s interference in a state election is yet another example of the Bush administration’s utter contempt for federalism. This administration’s definition of the term seems to be, “the states should be able to set their own policy, except when we disagree with them.”
Notice, too, that even if we were to accept that the social maladies Walters says “correlate” with marijuana use (a relationship that has zero scientific value, and thus oughtn’t even enter into policy discussions), most are caused by the drug’s prohibition, not its recreational use.
Filed under: General; Government and Politics; Law and Civil Liberties
Privacy vs. Justice
On Monday, the U.S. Supreme Court denied Dr. Bernard Rottschaefer’s appeal for a new trial, an appeal based on clear, post-conviction evidence that the prosecution’s star witness lied under oath.
That’s unfortunate, but expected.
A woman named Jennifer Riggle testified in the criminal trial that Dr. Rottschaefer gave her OxyContin and Xanax prescriptions in exchange for oral sex. Her testimony took a hit when, after the trial, her boyfriend was released from prison, and produced dozens of letters in which Riggle admitted to him that she had made up the oral sex stories and lied under oath in exchange for leniency with respect to her own drug charges. Despite those dozens of letters, the U.S. attorney who prosecuted Rottschaefer — Mary Beth Buchanan — refused to drop or lessen the charges against him, and to date has also refused to pursue perjury charges against her star witness.
But the case isn’t over just yet. The four other women who testified at Dr. Rottschaefer’s trial have since launched civil suits against him, and all of them have given testimony during discovery that directly contradicts their testimony at trial.
The civil trial’s discovery process revealed that one woman was getting from another doctor the same medication Dr. Rottschaefer was convicted of prescribing to her — at several times the dosage Dr. Rottschaefer was prescribing. That doctor was not prosecuted, casting some doubt on the prosecution’s claim that Rottschaefer had no “legitimate medical” rationale to prescribe the medications. Others testified that they did, in fact, have some ailments that would necessitate the prescscriptions Dr. Rotschaefer was writing.
None of this came out during the criminal trial. Taken together, the testimony of these women shows a clear case of doctor-shopping and deception, and shows that Dr. Rottschaefer — like so many of the doctors the DEA has brought down — was guilty at worst of being a poor judge of character. Hardly the kind of thing for which you put someone away for 25 years.
It’s also clear that all of these women were facing their own drug charges, charges that were reduced based on their testimony against Dr. Rottschaefer.
One particularly outrageous aspect of these cases is the way HIPAA’s privacy provisions tie the hands of defense attorneys. We’re only now finding out about these women’s histories with other doctors because defense attorneys were prevented by HIPAA from knowing of or viewing their medical records. The prosecution was free to make spurious claims to the jury — claims they knew or should have known were inaccurate — but the defense couldn’t look over the very medical records that would have rebutted many those spurious charges.
Of course, if the prosecution knew of potentially exculpatory evidence — that is, their witnesses’ dealings with other doctors — and didn’t disclose it to the defense, Ms. Buchanan’s office might soon be forced to answer some difficult questions about prosecutorial misconduct.
Medical privacy is important, of course. But if the DEA is going to continue to go after these doctors with charges that hinge on the medical histories of some of their witnesses, defendant doctors ought to be able to peruse those histories for evidence that could help prove their innocence.
GOP: Online Gambling Poses Threat to U.S. Port Security
Late Friday night, the U.S. Senate passed a ban on Internet gambling. The ban now awaits President Bush’s signature.
Sen. Bill Frist attached the ban to the port security bill at the last minute on Friday, conveniently allowing the ban to go forward without any debate. That also means any senator who rightly believes that online poker is none of the government’s business would also have to vote against a national security bill to vote against the ban — making that senator a ripe target for charges of being soft on terrorism.
The major gaming sites — that is, the legitimate companies regulated by British law and traded on the London Stock Exchange — announced over the weekend that they’ll cease offering service to U.S. customers the moment President Bush signs the bill. What does that mean? Well, it means the shady, fly-by-night sites that aren’t regulated or publicly traded will now thrive with U.S. customers. These gray- and black-market sites are more prone to fraud, more likely to be involved in organized crime, and don’t include the child-protection measures the major sites have implemented.
For all the talk from Sen. Frist, Sen. Kyl, and Rep. Goodlatte about the dangers of this “unregulated” industry, the bill they’ve just passed will actually put the well-regulated gambling sites out of reach of U.S. customers. The end result? Online poker and other gaming sites will soon be even less regulated, more likely to attract children, and more likely to defraud U.S. consumers than ever before. Meanwhile, one of the most addictive forms of gambling — state lotteries — will soon make an en masse move online, thanks to an exemption in the bill that effectively creates an online monopoly for them.
In short, in an intrusive, big government effort to protect Americans from themselves, Congress has passed a futile, hypocritical, counter-productive, protectionist piece of legislation that will make it more difficult for millions of Americans to engage in an activity most participate in responsibly and moderately. For those people, the bill will probably work. But it’ll do little to prevent problem gambling, children’s access to gaming sites, or online fraud.
One can’t help but think that for Frist, none of that matters so long as the bill helps Republicans keep control of the Senate come November.
Nanny vs. Nanny
It’s time for a war on thinness!
On the eve of London Fashion Week the growing trend for “size-zero” models in the fashion industry is causing grave concern.
Experts say legislation is now needed to protect the health of the models and of the teenage girls and young women who are influenced by them.
They are urging London to follow the lead taken by Madrid — and likely to be adopted by Milan — of banning models below a certain size from the catwalks.
Under any ban, super-thin models such as Lily Cole would be barred. London Fashion Week, which begins next week, has so far refused to follow suit.
[...]
Steve Bloomfield, spokesman for the Eating Disorders Association, said today: “We do think legislation is needed.
“This is about protecting the young women and men who work in the fashion industry, as well as those who are at risk of an eating disorder and can be influenced by the pictures that they see.
Given that skinny women are hopelessly manipulated by the fashion industry, and that obese women are hopelessly manipulated by the food industry, I propose the following magic-bullet legislation:
The government should buy every obese person subscriptions to the top fashion magazines; meanwhile every skinny person should be forced to sit through a dozen McDonalds, sugary cereal, and Hostess cupcake commercials.
In six months, we’ll all wear the same size, and everyone will finally be equal.
It’s worth noting that despite all of this talk about childhood obesity, the average adolescent today is between 200 and 1,000 times more likely to have an eating disorder than Type II Diabetes (eating disorder ranges from the National Institute of Mental Health and diabetes statistics from the CDC). The state of Arkansas recently won wide praise from the public health community for a new policy of weighing all the state’s public shool kids, then sending a kind of obesity “report card” home to parents. Given the above numbers, there’s probably a pretty good chance that policy’s doing more harm than good, no?
Indeed, Britain and Australia have both seen a recent uptick in eating disorders in young girls as a result of both countries’ hysterical anti-obesity hype:
Girls as young as five are unhappy with their bodies and want to be thinner, according to a study which blames peer pressure in a child’s early years at school. Most girls thought that being slim would make them more popular, claimed the research in the British Journal of Developmental Psychology. They would also have no hesitation in dieting if they gained weight. The study was conducted among five- to eight-year-olds in South Australia, but experts said last night that British children felt “paranoid” about their weight – partly because of the Government’s anti-obesity message.
Dr Andrew Hill, of Leeds University Medical School, said research among more than 200 eight-year-olds showed a high awareness of the campaign against obesity. “Children have absorbed anti-fat messages loud and clear”, he said. “To get people to listen about a condition, you talk it up, and we have got obesity on the health agenda.
Just another example of the unintended consequences resulting from paternalistic government.
The Blunt End of Paternalism
Kudos to both the Washington Times and North Dakota state GOP Rep. Jim Kaspar for opposing the Republican Congress’s wrongheaded attempt to ban Internet gambling. There are at least a few folks on the right who still understand that there’s more to “limited government” than revoking the estate tax.
Sen. Frist is justifying his misguided, pre-election move on the grounds that it’s the government’s responsibility to protect us from bad behavior. Said Frist on the floor of the Senate, “Internet gambling threatens our families by bringing addictive behavior right into our living rooms.”
At risk of delving into libertarian cliches, even if you buy the dubious notion that protecting us from “addictive behavior” is a legitimate function of government, even the most well-intentioned of paternalistic legislation is, ultimately, enforced at the point of a gun. The people who break these laws are arrested. The people who resist arrest risk getting shot. The end of result of legislation like Frist’s is, absurdly, that government will eventually use violence against American citizens to “protect” them from violating Sen. Bill Frist’s morals.
Here’s a real-world example: At last week’s forum for my Overkill paper, I met Salvatore and Anita Culosi, parents of Sal Culosi, the Fairfax, Virginia optometrist shot and killed by a SWAT team earlier this year. The SWAT team came to Culosi’s home to enforce Virginia’s prohibition on gambling, ostensibly designed to “protect” Virginians like Sal Culosi from wagering their own money on games of chance. Culosi, an accomplished, single man who had the means to back up his wagers, had been placing bets on football games with friends. He’s dead because there are people in Virginia’s government who fail to see the absurdity of sending a military unit to arrest a man guilty of nothing more than spending his own money in ways some people find unseemly. That’s it.
Culosi’s family is still understandably devastated. Mrs. Culosi still can’t talk about her son without fighting back tears. I choked up several times just listening to her. I can’t imagine the rage that would come with losing an adult son to such a stupid and hypocritical policy. Horrible.
The Culosi outrage has been compounded by the insensitive and unaccountable behavior of many in Fairfax County government since the incident (are you reading, Justice Scalia?). It’s been seven months now, and the Fairfax County police department still refuses to cooperate with Culosi’s family.
Frist’s legislation is aimed primarily at financial institutions. But like all prohibitions on consensual crimes, it will fail. And so over the next several years we will inevitably see attempts by Congress to expand and strengthen the gambling prohibition, to the point where, as is now the law in Washington state, the prohibition will be aimed squarely at gamblers themselves, not just the companies that profit from gambling.
Perhaps Senators Frist and Kyl, and Reps. Leach and Goodlatte should sit down for a few minutes with Salvatore and Anita Culosi. It would at least help them understand the inevitable consequences of using the blunt instrument of government to impose their own values and morals on the rest of the country.
Shameless
On the off chance anyone may have thought there were any vestiges of limited government left in the ranks of today’s GOP:
Senate Majority Leader Bill Frist is trying use a bill authorizing U.S. military operations, including in Iraq and Afghanistan, to prohibit people from using credit cards to settle Internet gambling debts. Frist, R-Tenn., and his aides have been meeting with other lawmakers and officials in both the House and Senate to get the measure attached to a compromise Defense Department authorization bill, according to a Senate GOP leadership aide.
If this goes through, any senator who would dare suggest that the gambling ban be killed on the grounds that what people do with their own money on their own time in their own homes is none of Bill Frist’s business now risks accusations that he doesn’t support U.S. troops overseas.
What’s most aggravating about Congress’ full-throttle push to ban online game is that there’s really no call for it from the public, save for some of the fringe family-values conservatives. Some in Congress — Sen. John Kyl, and Reps. Goodlatte and Leach, for example — have been pushing this ban for years. But Frist’s sudden interest looks like little more than election year red meat.
Public opinion polls show most voters are overwhelmingly opposed to an online gambling prohibition. And to my knowledge, supporters of the bill can’t point to a single study showing that large numbers of Americans are gambling away their futures on these poker sites. Thus far, they’ve justified the bill with no more than a few anecdotes.
Of course, there’s also the naked hypocrisy of exempting state lotteries and the politically powerful horse racing industry from the ban. There actually are studies showing state lotteries to be a primary outlet for gambling addicts.
Baby Steps
Yesterday, the DEA announced that it would allow doctors to write multiple, post-dated painkiller prescriptions for chronic pain patients. This is good news. The prior restrictions were odious, and heartlessly required people suffering from chronic pain to make multiple trips to doctors and pharmacists to get their medication.
This problem is worse than it sounds. Because the DEA’s witchhunt has scared physicians away from palliative therapy, many of these patients have to drive several hours to find a doctor who is willing to treat them. Doctors willing to administer the most promising chronic pain treatment — high-dose opioid therapy — are even harder to find.
But yesterday’s decision doesn’t go nearly far enough. And the DEA seems to be trying to use this one concession to show its “reasonableness,” thus heading off criticism over the larger, more important issue — it’s overly aggressive pursuit of doctors.
Here’s what won’t change: The agency will continue to substitute its own judgment for the medical opinions of doctors. It will continue to define some high-dose treatments as off-limits, and it will continue to use malpractice standards, meant for civil litigation, in criminal court. The DEA also still refuses to give doctors a set of guidelines they can follow to guarantee they won’t be prosecuted, thus giving the agency a great deal of leeway and leaving doctors who engage in the experimental high-dosage treatments in legal ambiguity. The agency will also continue to deny doctors a “good faith” defense to prosecution.
Filed under: General; Health, Welfare & Entitlements; Law and Civil Liberties
In Defense of Jury Nullification
Over at my personal blog, I’ve been having a back-and-forth on the issue of jury nullification with an L.A. prosecutor who blogs under the pseudonym “Patterico.” I can certainly understand why a prosecutor would be opposed to jury nullification. Were more Americans aware of their power to nullify — a tool with a rich tradition in the American founding, by the way — prosecutors would have a lot less power.
Patterico’s “gotcha” question on the issue concerns the oath many courts require jurors to take before serving, which affirms that they will uphold the law. Patterico asks supporters of nullification if they’d risk perjury charges by taking that oath and then subverting an unjust law during deliberations.
It’s a difficult question, and one I think people interested in real justice need to reconcile with their own values and priorities. But I also think his question is pretty revealing. It shows how prosecutors and judges have tweaked juror oaths to set perjury traps for would-be nullifiers, thus taking out of play an important check against bad laws, bad judges, and bad prosecutors. I’d like to see a civil liberties group mount a challenge to those oaths.
Prepare to Be Shocked
The government’s anti-drug ad campaign has not been proven to deter children from using drugs, and lawmakers should consider reducing funding for the $1.2 billion program, congressional auditors said Friday.
The Government Accountability Office based its recommendation on its review of an independent evaluation of the media campaign by Westat Inc.
The government has spent about $1.2 billion since 1998 on scores of television, print and radio ads designed to discourage drug use among youth. The ads also describe parents as the anti-drug. President Bush requested another $120 million for next year.
Westat found the ads had no “significant favorable effects” in deterring children from trying marijuana or in getting them to stop. Rather, it found that more 12 1/2- to 13-year-olds and girls were trying the drug after seeing the ads, the GAO said.
Apparently, comparing pot-smoking cancer patients to terrorist sympathizers isn’t resonating with the public. Whoda’ thunkit’?
Full report here [.pdf].
New Botched Drug Raids in NYC
Two more botched drug raids in New York (be sure to watch the video). This is the city that is supposed to have changed its ways since the death of Alberta Spruill:
Two Bronx families said the NYPD mistakenly raided their apartments Monday morning. But the department is defending its actions.
Flexton Young said he, his wife, and their four children were asleep when police broke down the door of their apartment on the fourth floor of 974 Anderson Ave.
“They ripped through my front door, they tore off my closet door, ripped both of my kids’ rooms to pieces,” Young said. “It brought me to tears, and I just didn’t want my kids to get hurt.”
Young said police made a “big mistake” believing they’d find illegal drugs and guns in his apartment.
The raid, around six Monday morning, left the family’s apartment a shambles. Belongings were pulled off shelves and out of drawers, and tossed on the floor. Officers upended a sofa and slashed out the lining, and also dumped out box after box of dry goods in the kitchen.
Upstairs, a similar raid was made on the apartment of the Pastrana family. Police turned several rooms upside down and pepper-sprayed the family dog. Family members said one officer punched a hole in a wall, grabbed an egg beater, and started to poke around inside the wall, looking for hidden drugs and guns.
Nothing was found in the Pastrana apartment, and no one was arrested.
Downstairs, Flexton Young said police gave him a summons for marijuana possession after discovering half a joint in an ashtray.
Note the “new professionalism” on display:
“I had one officer tell me that he was sorry this happened, and everybody else just looked at me and walked away,” Young said.
A spokesman for the NYPD said police had good information they would find drugs and guns in the apartments, and the raid was justified.
If you think terrorizing two families over half a joint is an appropriate use of police tactics, then I suppose the NYPD spokesman is right.
The article ends with a sentence that’s both interesting and misleading:
According to the Civilian Complaint Review Board, more than 300 allegations of improper searches of homes and businesses have been investigated and ruled on this year. Less than five-percent of the complaints were found to be “substantiated.”
This is interesting in that it means the CCRB has confirmed 15 cases of improper drug raids in New York City alone. To my knowledge, these are the first two to have received any coverage in the media. More evidence that the raid map, alarming as it is, doesn’t even begin to tell the entire story.
But it’s likely quite a bit worse than that. As I explained in Overkill, the CCRB’s jurisdiction only extends to the actions of police officers at the scene, after they’ve served the warrant. It has no power to look into the circumstances leading up to the raid. I’ve talked to the CCRB’s spokesman several times. He has confirmed to me that this is still the case today. If a botched raid took place because of a bad tip from an informant, or because someone wrote the the wrong address on the search warrant, the CCRB is powerless to do anything about it, and won’t investigate.
Which means that the CCRB’s failure to “substantiate” claims of improper searches in those 285+ other cases in no way means that the people making the complaints were wrong, or that a “wrong door” raid didn’t take place. In fact, in most wrong door raids, the problem occurs well before the police actually force entry.
Perhaps some small percentage of those 300+ complaints are people intentionally filing a false claim of a botched search. But I have a hard time believing a large number of people would go to the trouble.
I have an op-ed pending on New York City’s use of SWAT teams, but the truth is, after promising the public after the death of Spruill that they would drastically reform the way they use SWAT teams and paramilitary police tactics, city officials have since reneged on most of those promises.
And so the mistaken raids and terrorizing of innocent people continues.
A Drug Warrior Almost, Sort of, Nearly Gets to the Truth
No nation has suffered as much — or sacrificed more — in the global war on illegal drugs than Colombia, says Karen Tandy, administrator of the U.S. Drug Enforcement Administration (DEA).
As drug policy blogger Pete Guither notes, Tandy wasn’t apologizing.
But she should have been.
Tierney Goes Dutch
John Tierney wrote his Saturday New York Times column from Amsterdam, where he found that contrary to what U.S. drug warriors would have us believe, lenient Dutch drug policy hasn’t wrought the end of Dutch society.
I do think, however, that libertarians should hesitate before citing the Dutch as a model. Last year, I attended a forum at the Dutch embassy on drug policy in the Netherlands. I was underwhelmed.
The Dutch treat drug use a little like the way the public health crazies in this country would like to treat obesity. That means there is freedom to ingest some illicit drugs, but with massive government intervention, oversight, and a panoply of PR campaigns and state-funded treatment, and very little in the way of holding users responsible for using drugs, well, responsibly.
At the forum I attended, Dutch officials were quick to correct any misunderstanding Americans might have that Dutch citizens are actually given any real freedom over what they put into their bodies. The Dutch government, they assured us, loathes and despises marijuana every bit as much as the American government. They just prefered to steer the Dutch people away from it with propaganda and heavy regulation.
That’s certainly a step up from no-knock raids, mandatory minimums, and confidential informants. But it’s still a far cry from a government that treats its citizens as adults capable of making their own decisions about intoxicants.
Seizures for SWAT
TheNewspaper.com reports that several towns in South Texas are ratcheting up money and property seizures from motorists:
In the South Texas city of San Juan, population 26,200, police have begun seizing ever greater amounts by taking both cash and vehicles from motorists. In 2005, officers collected $4400. This year, however, the force has collected $67,000. Pharr, with a population of 47,000, collected $422,000 last year. McAllen, a bigger city with 106,000 residents, collected $484,000. A federal appeals court ruling this week concluded that driving with a large amount of cash is sufficient justification for police to confiscate it, even if there is no evidence that a crime has been committed.
Guess what these towns are apparently doing with the money?
On a related note, a number of cities and towns across the country have apparently been given between $100,000 and $200,000 in Homeland Security funding to purchase armored personnel carriers for their SWAT teams. If I remember correctly, the Department of Homeland Security was supposed to be a government agency charged with fighting terrorism and responding to natural disasters.
I suppose it’s possible that places like Lake Canyon, Idaho, Eau Claire, Wisconsin, and Tuscaloosa, Alabama are high-risk terror targets. But my guess is that their new federally-funded military-grade toys will primarily be used for routine enforcement of drug laws. This quote from an official in Eau Claire seems to confirm my suspicions:
An armored truck isn’t necessary for all situations where SWAT teams are used, Matysik said.
“But because it’s available, we’ll probably use it just to be cautious,” he said.
The militarization of domestic policing continues.
More Contempt for Private Property
The New Hampshire Supreme Court has upheld yet another outrageous seizure of private property. From a editorial in the Manchester Union-Leader condemning the ruling:
The state Supreme Court ruled on Tuesday that the government can keep and destroy more than 500 CDs taken from Michael Cohen, owner of Pitchfork Records in Concord, in 2003 even though the state failed to prove that a single disk was illegal.
Cohen was arrested for attempting to sell bootleg recordings. But the police case collapsed when it turned out that most of the recordings were made legally. Police dropped six of the seven charges, and Cohen went to trial on one charge. He beat it after the judge concluded that the recording was legal.
However, the police refused to return Cohen’s CDs. In the state Supreme Court’s Tuesday ruling, Chief Justice John Broderick, writing for the majority, reasoned so poorly that it appeared as if he’d made up his mind ahead of time.
[...]
The majority concedes that no crime or illegal act was proven, but allows the confiscation anyway by concluding that a crime might have been committed. The majority used words such as “apparently,” “likely” and “would have” to describe the alleged illegal activity.
It should go without saying that speculation by a few judges that a crime might have been committed is a frightening basis for taking someone’s property.
Nearly all of the outrages we write about at Cato — foreiture cases, the Kelo case, no-knock and paramilitary raids, and the smoking bans David Boaz blogged about earlier –are the result of the wholesale disintegration of respect for property rights in America. A country that truly believes in private property wouldn’t allow government agents to seize and keep it without due process. Nor would it allow government agents to break down doors to private homes in the middle of the night to enforce consensual crimes — some 40,000 times per year. Nor would it allow the state to take the property of one citizen and give it to another, for purpses of increasing the tax base. Nor would it allow the state to tell a private business owner whom he can and can’t serve, and what terms, in the interest of controlling the private behavior of his customers.
It isn’t surprising that these violations of property rights spill over into violations of personal and economic freedom. Property rights are the very foundation of our civil liberties. A government that’s quick to restrict what its citizens can do with their private property won’t hesitate to restrict, for example, free speech (see campaign finance “reform”). A government that refuses to recognize a man’s property in his own body (re: drug prohibition) won’t hesitate to those laws by confiscating actual, physical property without due process.
The founders of course understood the fundamental connection between private property and civil liberties. James Madison was particularly eloquent on the point:
This term in its particular application means “that dominion which one man claims and exercises over the external things of the world, in exclusion of every other individual.”
In its larger and juster meaning, it embraces every thing to which a man may attach a value and have a right; and which leaves to every one else the like advantage.
[...]
In a word, as a man is said to have a right to his property, he may be equally said to have a property in his rights.
Where an excess of power prevails, property of no sort is duly respected. No man is safe in his opinions, his person, his faculties, or his possessions.
[...]
If the United States mean to obtain or deserve the full praise due to wise and just governments, they will equally respect the rights of property, and the property in rights: they will rival the government that most sacredly guards the former; and by repelling its example in violating the latter, will make themselves a pattern to that and all other governments.
When government has no respect for our rights of property, we oughtn’t be surprised when, likewise, it fails to respect our property in our rights.
Another Asset Forfeiture Outrage
The Eighth Circuit Court of Appeals has ruled that police may keep the $124,700 they seized from Emiliano Gonzolez, an immigrant who by all appearances was attempting to use the money to start a legitimate business.
This is an outrageous ruling. Consider:
Instead, the court ruled that the mere fact that Gonzolez was carrying a large sum of money, that he had difficulty understanding the officer’s questions, that he incorrectly answered some of those questions (due, Gonzolez says, to fears that if police knew he was carrying that much money, they might confiscate it — imagine that!), and that a drug dog alerted to the car Gonzolez was driving (which, as dissenting judge Donald Lay noted, was a rental, likely driven by dozens of people before Gonzolez), was enough to “convict” the money of having drug ties, even if there wasn’t enough evidence to charge Gonzolez.The court ruled that despite the fact that Gonzolez’s witnesses were credible enough to, in person, convince a lower court he was telling the truth, on appeal, it, the appellate court, reading those witnesses’ testimony on paper, simply didn’t believe them.
So the police get to keep the lifelong savings Gonzolez, his friends, and relatives had pooled to start a business. No charge and no conviction were necessary.
The opinion itself — like most asset forfeiture cases — reads like something from a third-rate military junta. Actual excerpts:
“Possession of a large sum of cash is ’strong evidence’ of a connection to drug activity.” “…while an innocent traveler might theoretically carry more than $100,000 in cash across country and seek to conceal funds from would-be thieves on the highway, we have adopted the common-sense view that bundling and concealment of large amounts of currency, combined with other suspicious circumstances, supports a connection between money and drug trafficking.” “Gonzolez had flown on a one-way ticket, which we have previously acknowledged is evidence in favor of forfeiture.” While the claimants’ explanation for these circumstances may be “plausible,” we think it is unlikely. We therefore conclude that the government proved by a preponderance of the evidence that the defendant currency was substantially connected to a narcotics offense.”
My emphasis added on the last point. The absurdity of these cases never fails to amaze when you actually see them in print. The money, not Gonzolez, was found guilty of drug crimes.
The Civil Asset Forfeiture Reform Act of 2000 was supposed to rein in seizure outrages like this one. Critics of the bill at the time noted that it didn’t go nearly far enough.
Looks like they may have been right.
Check here for Cato’s research on asset forfeiture.
Last Hope for Fourth Amendment Hangs by a Thread; Weekly Standard Rejoices
Over at the Weekly Standard, William Tucker notes gleefully that the exclusionary rule is but one Bush Supreme Court appointment away from extinction.
Tim Lynch’s 1998 Policy Analysis is about all you’ll need to thoroughly refute Tucker’s general thesis. But two specific passages in Tucker’s broadside on the Fourth Amendment are worth addressing:
What makes the exclusionary rule so absurd is that it only protects people who are guilty of crimes. If the police come to your house, knock down your door, ransack your home, throw all your belongings in the street, and find no incriminating evidence, then the exclusionary rule offers you no compensation whatsoever. Only if evidence turns up that shows you to be guilty of something are you rewarded.
This argument — that the exclusionary rule “only protects the guilty” — is a common refrain on the right. Strictly speaking, Tucker’s right. Once the scenario he outlines has taken place, the exclusionary rule offers no remedy. But Tucker and critics like him ignore the rule’s deterrent value. The exclusionary rule helps ensure that fewer of those incidents happen in the first place.
If police know in advance that evidence gathered from ill-conisidered searches performed without adequate investigation won’t hold up in court, they’re more likely to take the necessary precautions to ensure that bad searches don’t happen. That means fewer scenarios like the one Tucker lays out, and fewer of the all-too-real incidents that clutter this map.
Filed under: General; Government and Politics; Law and Civil Liberties
When Dogs Are Criminalized, Only Criminals Will Own Them
Kansas City has followed the lead of Denver and Ontario, Canada in instituting a ban on pit bulls. Any pit bulls found in the city will either be turned over to shelters outside the city or, more likely, euthanized.
Breed-specific prohibitions are a bad idea for a variety of reasons, but the most glaring is that the most common target of these laws — the “pit bull” — isn’t really a breed, but a generic name given to dogs with those features we’ve come to associated with aggression. The “pit bull” very generally refers to the American Staffordshire Terrier, but can include a number of breeds with similar features, including the most recent Best in Show at the Westminster Kennel Club and, more importantly, one of my dogs. (We were repeatedly warned when she was a puppy that she might be mistaken for a pit bull, but she’s the sweetest, most harmless dog I’ve ever known, unless you happen to be a rug or a pair of shoes).
What’s more, as the New Yorker’s Malcolm Gladwell has pointed out, it’s not even clear that pit bulls deserve their reputation:
A Georgia-based group called the American Temperament Test Society has put twenty-five thousand dogs through a ten-part standardized drill designed to assess a dog’s stability, shyness, aggressiveness, and friendliness in the company of people. A handler takes a dog on a six-foot lead and judges its reaction to stimuli such as gunshots, an umbrella opening, and a weirdly dressed stranger approaching in a threatening way. Eighty-four per cent of the pit bulls that have been given the test have passed, which ranks pit bulls ahead of beagles, Airedales, bearded collies, and all but one variety of dachshund. “We have tested somewhere around a thousand pit-bull-type dogs,” Carl Herkstroeter, the president of the A.T.T.S., says. “I’ve tested half of them. And of the number I’ve tested I have disqualified one pit bull because of aggressive tendencies. They have done extremely well. They have a good temperament. They are very good with children.”
Pit bulls do boast strong jaws that can lock into place. But many breeds can deliver a nasty bite when provoked. The attention directed at pit bulls seems more due to their trendiness, not to any unique aggressiveness in their genetics. The tough guy dog du jour was once the equally powerful Rottweiler.
More on Jesse Lee Williams, Jr.
Yesterday, I mentioned the horrific case of Jesse Lee Williams, Jr., who was beaten to death while in police custody in Harrison County, Mississippi. I noted that six months after Harrison’s death, there had yet to be any movement toward justice for the police deputies who beat him.
As it turns out, there was some movement yesterday. According to the Biloxi Sun Herald, one of the deputies who participated in the beating has confessed to federal prosecutors, and as part of a plea, has conceded a long history of abuse at the county jail. An arrest of Deputy Ryan Teel, who is thought to have inflicted the brunt of the beating, should soon follow.
This is certainly a positive development, and it will be interesting to see how Teel is ultimately charged.
But as noted, there is a long record of reported abuse at the Harrison County jail house. Reports of inmate beatings have circulated for months, not just from inmates themselves, but from other officers from other departments, and from other witnesses. Nothing was done. Encouraging as yesterday’s news was, it doesn’t undermine the criticism that earlier beatings went unaddressed, that it took a homicide to rally any real accountability, and that even then, the first signs of justice have appeared only after six months, and only after involvement from federal investigators.
As the Sun Herald noted in an editorial on the case last month, violent crimes not perpetrated by police officers seem to move through the criminal justice system quite a bit more swiftly.
Scalia’s New Police Professionalism
In his odd opinion in the Hudson v. Michigan case, Supreme Court Justice Antonin Scalia dismissed the exclusionary rule as an effective remedy when police conduct an illegal no-knock raid because, Scalia argued, police departments across the country have implemented better internal review procedures and oversight functions to deal with officer misconduct. In making that argument, Scalia went so far as to cite the work of respected criminologist Prof. Sam Walker, who later asserted that Scalia had misappropriated his work.
A scan of recent headlines suggests that when it comes to holding police accountable for botched raids, excessive force, and misconduct, Scalia’s “new professionalism” is nowhere to be found. A few examples:
• Yesterday marked the one-year anniversary of the SWAT raid on Anthony Diotaiuto, a Florida man shot and killed during an early-morning raid. The man’s bullet-riddled body was found in a bedroom closet. Police found all of an ounce of marijuana, and witnesses say they made no announcement before entering, as required by Florida law (police insist they announced). Diotaiuto’s death is the lead case in the introduction to my recent paper on paramilitary police raids. Gun rights advocates may want to take note: Diotaiuto’s possession of a legal conceal-carry permit was cited as a “major factor” in the police department’s decision to use a SWAT team and forced entry.
One year later, law enforcement officials still refuse to share any information about the raid with the media or with lawyers for Diotaiuto’s family. They’ve been met with stony silence when they’ve attempted to access copies of the police report, the internal police investigation, or Diotaiuto’s autopsy. The grand jury investigating the case has been cancelled twice. The internal police investigation apparently cleared the raiding officers of any wrongdoing, but the details are still under wraps.
The Federal Government Is Remarkably Efficient (at Throwing People in Prison)
The Pittsburgh Tribune-Review reports some disturbing statistics on conviction rates at the federal level:
About 95 percent of federal criminal defendants plead guilty. Of the remaining few who fight in court, nearly nine of 10 are convicted, according to national statistics.
[...]
“The odds are pretty stacked against defendants once an indictment is issued; that pretty much seals their fate,” said Mark Allenbaugh, a Huntington Beach, Calif., lawyer and nationally recognized expert on the federal court system. “Once the indictment is issued, conviction is almost guaranteed.”
Between 2000 and 2005, 99 percent of the 435,000 federal criminal defendants prosecuted nationwide were convicted.
I suppose it’s possible that just about everyone ever indicted at the federal level is guilty, but I doubt it. U.S. Attorneys’ offices tend to be better staffed and better funded than local prosecutors’ offices, and certainly have more resources than the average defendant. Couple this with the accompanying trends of the federalization of crime, the criminalization of everthing under the sun, and mandatory minimums, and you get a rather stark explanation for America’s exploding federal prison population.
The article also delves into the troubling role plea bargaining plays in all of this, including what amounts to the de facto punishment defendants often get for insisting on their right to a jury trial:
Former U.S. Attorney Frederick Thieman said defendants shouldn’t face tougher sentences just because they went to trial.
“There’s a ridiculous cost to exercising your constitutional right to go to trial,” Thieman said. “The stakes are too high.”
[U.S. Attorney Mary Beth] Buchanan said defendants always have the right to go to trial.
“If a defendant believes they did not commit the crime as charged, or if they believe the government cannot prove the case beyond a reasonable doubt, then a defendant absolutely has the right to a jury trial,” Buchanan said.
Those who lose shouldn’t expect leniency after the fact, Buchanan said.
“They can’t have it both ways,” she said.
As this heartbreaking report illustrates, it’s often quite a bit more complicated than that. The linked report is admittedly a state prosecution, not a federal one. But it rather aptly illustrates the absurdies arising from from ill-considered “tough on crime” legislation, drug laws, mandatory minimums, and overzealous prosecutors.
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