Author Archive
‘The Police Became a Mob’
Chief Judge Frank Easterbrook recounts the horrific police attack on Frank Jude in a ruling this month from the Seventh Circuit Court of Appeals.
By way of background, Jude tagged along with some young ladies to a house party late one evening. The party was mostly off-duty cops who immediately made Jude feel unwelcome. Jude left after just 5 minutes, but several men followed him out to the street and accused him of stealing someone’s police badge. Then the beating began:
Men punched Jude’s face and torso; when he fell to the ground, they kicked his head and thighs. The partygoers behaved as a mob. Not a single person in the house tried to stop the attack or even to call for aid. Jon Clausing, who had slashed Harris’s face, explained his conduct as “just kind of going along with everybody.” That is the way of the mob. Society has police forces to pose a counterweight to mobs, yet here the police became a mob.
Schabel and Martinez were on duty and had not been drinking, so they should have put a stop to the violence. Instead Schabel joined it, while Martinez watched. On being told that Jude had stolen Spengler’s badge, Schabel called Jude a “motherfucker” and stomped on his face until others could hear bones breaking. After telling Martinez “I’m really sorry you have to see this,” Daniel Masarik picked Jude off the ground and kicked him in the crotch so hard that his body left the ground. Jon Bartlett then took one of Schabel’s pens and pressed it into each of Jude’s ear canals, causing severe injury and excruciating pain. The men also broke two of Jude’s fingers by bending them back until they snapped. Spengler put a gun to Jude’s head and said: “I’m the fucking police. I can do whatever I want to do. I could kill you.” Bartlett used a knife to cut off Jude’s jacket and pants, leaving him naked on the street in a pool of his own blood.
The attack was so violent that it couldn’t be ignored. Several officers were prosecuted, but the blue wall of silence kicked in and several officers committed perjury to shield their criminal acts. Judge Easterbrook writes, “The distance between civilization and barbarity, and the time needed to pass from one state to the other, is depressingly short.”
Read the whole thing (pdf). Previous coverage here.
HT: Sentencing Law and Policy.
Kristof: Drugs Won the War
New York Times columnist, Nicholas Kristof’s latest column is about the failure of the drug war. Excerpt:
Here in the United States, four decades of drug war have had three consequences:
First, we have vastly increased the proportion of our population in prisons. The United States now incarcerates people at a rate nearly five times the world average. In part, that’s because the number of people in prison for drug offenses rose roughly from 41,000 in 1980 to 500,000 today. Until the war on drugs, our incarceration rate was roughly the same as that of other countries.
Second, we have empowered criminals at home and terrorists abroad. One reason many prominent economists have favored easing drug laws is that interdiction raises prices, which increases profit margins for everyone, from the Latin drug cartels to the Taliban. Former presidents of Mexico, Brazil and Colombia this year jointly implored the United States to adopt a new approach to narcotics, based on the public health campaign against tobacco.
Third, we have squandered resources. Jeffrey Miron, a Harvard economist, found that federal, state and local governments spend $44.1 billion annually enforcing drug prohibitions. We spend seven times as much on drug interdiction, policing and imprisonment as on treatment. (Of people with drug problems in state prisons, only 14 percent get treatment.)
I’ve seen lives destroyed by drugs, and many neighbors in my hometown of Yamhill, Oregon, have had their lives ripped apart by crystal meth. Yet I find people like Mr. Stamper persuasive when they argue that if our aim is to reduce the influence of harmful drugs, we can do better.
Good stuff. Jeff Miron is a Cato senior fellow. Here’s a link to Cato’s new study, “Drug Decriminalization in Portugal,” by Glenn Greenwald. More Cato research here.
Filed under: Foreign Policy and National Security; Government and Politics; Law and Civil Liberties
Should Judges ‘Have the Back’ of Police Officers?
Vice-president Joe Biden says we should rally behind the Supreme Court nomination of Sotomayor because she will “have the back” of the police. Biden is a lawyer, a senator, and former chairman of the Senate’s Judiciary Committee, so he should know better than to pull a political stunt like that to curry favor with law enforcement groups. The Constitution places limits on the power of the police to search, detain, wiretap, imprison, and interrogate. The separation of powers principle means that judges must maintain their impartiality and “check” the police whenever they overstep their authority. To abdicate that responsibility and to “go along with the police” is to do away with our system of checks and balances.
As it happens, The New York Times has a story today about one Jeffrey Deskovic. He got caught up in a police investigation because he was “too distraught” over the rape and murder of his classmate. When there was no DNA match, prosecutors told the jury it didn’t really matter. Does Biden really want Supreme Court justices to come to the support of the state when habeas corpus petitions arrive on their desks and the police work is sloppy, weak, or worse?
On a related note, Cato adjunct scholar Harvey Silverglate fights another miscarriage of justice in Massachusetts.
More on Sotomayor
Cato adjunct scholars on Judge Sotomayor:
- Harvey Silverglate looks at the Supreme Court nominee’s free speech record.
- Richard Epstein compares the libertarian and conservative criteria for Supreme Court nominees.
Today’s Wall Street Journal reports that Sotomayor’s record on criminal justice issues put her to the right of David Souter. Good grief — that would mean that for Sotomayer just about all the barriers on state power come tumbling down: structural safeguards like enumerated powers, non-delegation, separation of powers and the limits pertaining to police and prosecutorial powers.
For more background, go here and here.
Fusion Centers
Most people don’t care about government surveillance — just so long as they are not affected by it. We want the police to be on lookout for trouble — so some surveillance is necessary for the work they do. But how much?
After 9/11, state officials said they had difficulty “connecting all the dots.” Fusion centers are supposed to remedy that problem. Police departments around the country are creating databases (”fusion centers”) and the objective is to link them together so that the police can spot patterns of behavior so that crimes or terrorist attacks can be thwarted.
The goal seems sensible and worthwhile but as the details emerge on how fusion centers operate, the concept gets controversial fast. Who will be monitored? What kind of information will be collected? And who decides when pieces of information should be discarded or entered into a massive database? If false information about, say, YOU, goes into the database, will you ever learn about it? Have an opportunity to erase it or correct it?
Fusion centers are springing up all over the country and they are coordinating the efforts of some 800,000 American law enforcement officers to collect information about anyone deemed suspicious. One problem is that terrorists are not of a monolithic character. Terrorists can be extremely religious or secular; they may be Arab, white, black or any other race; terrorists come from both rich and poor backgrounds; they come from the far right, the far left — and some are simply against society generally. And when criminals are added to the mix, the potential dragnet for this casual government surveillance potentially covers scores of people.
Behaviors that make someone eligible for government monitoring are quite broad. As noted by Bruce Fein in his testimony before Congress in April, citing a July 2008 ACLU report on fusion centers, such suspicious behaviors in one LAPD directive include “using binoculars,” “taking pictures or video footage “with no apparent aesthetic value,” “drawing diagrams,” and “taking notes,” among others.
Former vice-president Cheney might argue that the monitoring is not extensive enough. He recently said (pdf): “When just a single clue goes unlearned … can bring on a catastrophe — it’s no time for splitting differences. There is never a good time to compromise when the lives and safety of the American people are in the balance.” National security, it seems, requires that we get everyone into the central database for scrutiny. We can’t afford any ”gaps” in the surveillance matrix.
I will be moderating a Cato event about fusion centers on Thursday, June 11, at noon. The panel will include attorney Bruce Fein, the ACLU’s Mike German (who co-authored the report linked above), and Harvey Eisenberg, Chief of the National Security Section in the Maryland Division of the U.S. Attorney’s office.
Filed under: Foreign Policy and National Security; Law and Civil Liberties
Prosperity in Washington
The current Attorney General, Eric Holder, left DC’s Covington and Burling to return to the Justice Department, where he held a senior post during the Clinton years. Holder’s mission is to supposedly ”rein in the free market excesses of the last eight years.” Bush’s people are done with their own crackdown and are now returning to DC’s big law firms to warn their client business firms about the coming crackdown by Holder’s prosecutors. This is sorta like the GOP legislators who are now trying to lodge complaints about Obama’s spending. Despite the rhetoric, both sides aggrandize federal power and then enrich themselves (pdf) while advising businesspeople on how to comply with myriad regulations from the alphabet agencies.
For related Cato work, go here and here.
A Lesson about Power
High school seniors pull a prank by pitching tents in the school courtyard and sleeping there overnight. Does the school need to discipline them? Perhaps. Maybe have them stay after school and pick up litter or something.
But school officials want the police to arrest the students. And when a student who had no involvement in the prank speaks out against the school authorities’ response by sending out an email, he too must be punished! The lesson here is do not question authority.
Either praise your school principal or be very quiet and obedient.
Haywood v. Drown
The Supreme Court ruling in Haywood v. Drown got lost in the news last week, but it was an important constitutional case involving the principle of federalism. The issue concerned the extent to which the central government can commandeer state judicial systems. Unfortunately, by a narrow 5-4 vote, the Court gave the central government a green light.
Justice Clarence Thomas filed another one of his sober, scholarly opinions in dissent and I think he makes the case rather well. Excerpt:
The Court holds that New York Correction Law Annotated §24, which divests New York’s state courts of subject-matter jurisdiction over suits seeking money damages from correction officers, violates the Supremacy Clause ofthe Constitution, Art. VI, cl. 2, because it requires the dismissal of federal actions brought in state court under42 U. S. C. §1983. I disagree. Because neither the Constitution nor our precedent requires New York to open its courts to §1983 federal actions, I respectfully dissent.
Although the majority decides this case on the basis of the Supremacy Clause, see ante, at 5–13, the proper starting point is Article III of the Constitution. Article III, §1, provides that “[t]he judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” The history of the drafting and ratification of this Article establishes that it leaves untouched the States’ plenary authority to decide whether their local courts will have subject-matter jurisdiction over federal causes of action.
Until this setback, the Court’s conservatives were doing well in this corner of the law. In New York v. United States (1992), the Court ruled that state legislatures were not subject to federal direction. In Printz v. United States (1997), the Court ruled that state executive officers were not subject to federal direction. This case stood for the proposition that state courts are not subject to federal direction. Alas, Justice Anthony Kennedy joined the liberals to subordinate the states to federal control.
Here’s a practical example to illustrate the problem. It’s bad enough when Congress wants to pass a law like the Americans with Disabilities Act (pdf)–a law that will create a flood of litigation. But what if Congress goes a step further and writes the law in such as way as to say ”take all those time-consuming lawsuits to the state courts. Federal judges and personnel can’t be bothered with that stuff!” So state courts get clogged or state lawmakers must raise taxes to alleviate the added burden, which blurs accountability. That’s what is likely to happen. Or, to be precise, continue to happen with increasing frequency. The feds have permission to foist costs on to the states.
But, to be clear, the main issue here is the proper division of federal and state authority. Even if Congress were to get around the problem of unfunded mandates by throwing money at the states, each state should retain control over its judiciary. As Justice Thomas notes, the issue of federal supremacy is too often distorted by liberals. Within its proper sphere, the feds are supreme. Liberals want supremacy and federal authority that is plenary. Wrong. Obama’s Supreme Court nominee should be asked about federalism and the doctrine of enumerated powers at the confirmation hearings.
Filed under: General; Government and Politics; Law and Civil Liberties; Regulatory Studies
Cheney’s Worldview
Former vice president Richard Cheney gave his big address on national security (pdf) over at AEI last week. He covered a lot of ground, but this passage, I think, tells us quite a bit about Cheney’s worldview:
If fine speech-making, appeals to reason, or pleas for compassion had the power to move [al-Qaeda], the terrorists would long ago have abandoned the field. And when they see the American government caught up in arguments about interrogations, or whether foreign terrorists have constitutional rights, they don’t stand back in awe of our legal system and wonder whether they had misjudged us all along. Instead the terrorists see just what they were hoping for — our unity gone, our resolve shaken, our leaders distracted. In short, they see weakness and opportunity.
So we shouldn’t let the terrorists see us get “caught up in arguments” about the wisdom of our foreign policy, about whether our country should go to war, about our country’s treaty obligations, about the parameters of government power under our Constitution? What is this former vice president thinking?
Does it matter if Charles Manson appreciates the fact that he got a trial instead of a summary execution? No. It does not matter what’s in that twisted head of his. Same thing with bin Laden. The American military should make every effort to avoid civilian casualties even if bin Laden targets civilians. Similarly, it does not matter if bin Laden scoffs at the Geneva Convention as a sign of ”weakness.” The former VP does not get it. It is about us, not the terrorists.
An obsession with the mentality of the enemy (what they see; what they hope for, etc.) can distort our military and counterterrorism strategy (pdf) as well. Cheney wants to find out what bin Laden’s objective is and then thwart it. I certainly agree that gathering intelligence about the enemy is useful, but Cheney seems so obsessed that he wants to thwart al-Qaeda’s objectives — even if some pose no threat to the USA, and even if some of al-Qaeda’s objectives are pure folly.
Filed under: Foreign Policy and National Security; Law and Civil Liberties
Cops Gone Wild
Terrific editorial over at the Washington Times.
Excerpt:
The bad behavior of these police officers exposes a double standard. As one Nationals fan, who is a lawyer, told us: “There’s no way those cops could pass a street sobriety test right now. Just imagine how we’d get treated if they pulled us over having consumed half of what they’ve drunk tonight - and they’re packing heat.”
We don’t begrudge police officers having a little fun, but they need to abide by the same laws they enforce on the rest of us. When they go out for a few beers, they might want to leave their uniforms and guns at home.
The idea of a National Peace Officers Memorial Week is a fine idea but it is regrettable that the memorial and event is in Washington, D.C. Just reinforces the wrongheaded notion that the federal government must be involved in everything.
Obama’s Military Commissions
President Obama is expected to announce how his administration is going to prosecute prisoners for war crimes and perhaps other terrorist offenses. Instead of civilian court, courts-martial, or new “national security courts,” Obama has apparently decided to embrace George W. Bush’s system of special military tribunals, but with some “modifications.”
Glenn Greenwald slams Obama for seeking to create a “gentler” tribunal system and urges liberals to hold Obama to the same standards that were applied to Bush:
What makes military commissions so pernicious is that they signal that anytime the government wants to imprison people but can’t obtain convictions under our normal system of justice, we’ll just create a brand new system that diminishes due process just enough to ensure that the government wins. It tells the world that we don’t trust our own justice system, that we’re willing to use sham trials to imprison people for life or even execute them, and that what Bush did in perverting American justice was not fundamentally or radically wrong, but just was in need of a little tweaking. Along with warrantless eavesdropping, indefinite detention, extreme secrecy doctrines, concealment of torture evidence, rendition, and blocking judicial review of executive lawbreaking, one can now add Bush’s military commission system, albeit in modified form, to the growing list of despised Bush Terrorism policies that are now policies of Barack Obama.
Greenwald is right. The primary issue is not due process. The tribunals might ultimately be “fair” and “unbiased” in some broad sense, but where in the Constitution does it say that the president (or Congress) can create a newfangled court system to prosecute, incarcerate, and execute prisoners?
For more about how Bush’s prisoner policies ought to be ravamped, see my chapter “Civil Liberties and Terrorism” (pdf) in the Cato Handbook for Policymakers.
Filed under: Foreign Policy and National Security; Law and Civil Liberties
End the Drug War. Just Do It.
Obama’s new drug czar, Gil Kerlikowske, in an interview with the Wall Street Journal, says it is time to move away from the “war” rhetoric surrounding federal drug policy. Since Kerlikowske has just assumed office, this is exactly the right thing to do — set a whole new tone from the militarized approach we have seen over the past 20-30 years.
Drug abuse is a problem that must be dealt with, but we don’t need to send troops to Latin America, we don’t need former generals like Barry McCaffrey to oversee drug policy, and we don’t need police officers conducting raids on American homes with machine guns and flash bang grenades.
The political climate on drug policy is shifting. Republican governors like Arnold Schwarzenegger are calling for an open debate on legalizing marijuana. New York is finally discarding its Rockefeller drug laws. And Latin American leaders are urging the U.S. to reverse course. Obama seems interested in a new direction but the appointment of a sensible law enforcement official like Kerlikowske and talk of “more treatment” is not enough. We need more decisive action away from the criminalized approach to drug policy. The time is right to just do it.
For Cato research on this subject, go here.
Time to End the War on Drugs
Gov. Arnold Schwarzenegger is calling for a large-scale study on the question of whether to legalize marijuana. Arnold wants the study to include international comparisons to show the possible impact of such a change. Cato just released such a study concerning Portugal.
Our friends at NORML are running ads like this in some markets.
Over at Reason, Jacob Sullum takes a look at national Zogby poll numbers, which shows that a majority of voters support marijuana legalization.
Time Magazine Covers Decriminalization in Portugal
This week Time Magazine has an article discussing the new Cato report, “Drug Decriminalization in Portugal” by Glenn Greenwald. Excerpt:
The question is, does the new policy work? At the time, critics in the poor, socially conservative and largely Catholic nation said decriminalizing drug possession would open the country to “drug tourists” and exacerbate Portugal’s drug problem; the country had some of the highest levels of hard-drug use in Europe. But the recently released results of a report commissioned by the Cato Institute, a libertarian think tank, suggest otherwise.
The paper, published by Cato in April, found that in the five years after personal possession was decriminalized, illegal drug use among teens in Portugal declined and rates of new HIV infections caused by sharing of dirty needles dropped, while the number of people seeking treatment for drug addiction more than doubled.
“Judging by every metric, decriminalization in Portugal has been a resounding success,” says Glenn Greenwald, an attorney, author and fluent Portuguese speaker, who conducted the research. “It has enabled the Portuguese government to manage and control the drug problem far better than virtually every other Western country does.”
According to the Time web site, it is among the most frequently read and emailed articles in the current issue. If the drug czar wanted to keep Portugal’s decriminalization under wraps, it is safe to say that we foiled that plan!
Glenn Greenwald has more over at Salon. A Wall Street Journal op-ed mentioned the study over the weekend too. Watch or listen to the Cato event where Glenn presented his findings.
U.N. Official: Portugal’s Policy ‘Appears to be Working’
Over at Drug War Rant, Peter Guither notes the strange reaction of a drug policy official to the new Cato report, Drug Decriminalization in Portugal:
Glenn Greenwald’s excellent report (on the successful decriminalization of all drugs in Portugal for personal use) was picked up by Scientific American: Portugal’s Drug Decriminalization Policy Shows Positive Results
What really caught my attention in this article was that they got the UNODC to agree that it seemed to work, but the response was Kafkaesque.
Walter Kemp, a spokesperson for the United Nations Office on Drugs and Crime, says decriminalization in Portugal “appears to be working.” He adds that his office is putting more emphasis on improving health outcomes, such as reducing needle-borne infections, but that it does not explicitly support decriminalization, “because it smacks of legalization.” Yes, decrim works, but we don’t support something that actually works because it sounds like something we’re afraid want to talk about. Right.
A spokesperson for the White House’s Office of National Drug Control Policy declined to comment, citing the pending Senate confirmation of the office’s new director, former Seattle Police Chief Gil Kerlikowske. The U.S. Drug Enforcement Administration (DEA) and the U.S. Department of State’s Bureau of International Narcotics and Law Enforcement Affairs also declined to comment on the report.Well, I guess no policy is better than what we’re used to.
Glenn Greenwald has more on the reaction to his report here.
Jim Webb and Criminal Justice
Senator Jim Webb (D-Va) is calling for a national commission to review the American criminal justice system from top to bottom. Good for him. With more than seven million people under criminal justice supervision (prison, parole, probation), a thorough review is desperately needed. You can tell that Webb is new to the Congress because he is raising a subject that most of the long term incumbents would rather not discuss. As Glenn Greenwald observes:
For a Senator like Webb to spend his time trumpeting the evils of excessive prison rates, racial disparities in sentencing, the unjust effects of the Drug War, and disgustingly harsh conditions inside prisons is precisely the opposite of what every single political consultant would recommend that he do. There’s just no plausible explanation for what Webb’s actions other than the fact that he’s engaged in the noblest and rarest of conduct: advocating a position and pursuing an outcome because he actually believes in it and believes that, with reasoned argument, he can convince his fellow citizens to see the validity of his cause. And he is doing this despite the fact that it potentially poses substantial risks to his political self-interest and offers almost no prospect for political reward. Webb is far from perfect — he’s cast some truly bad votes since being elected — but, in this instance, not only his conduct but also his motives are highly commendable.
Read the whole thing.
And speaking of Glenn Greenwald, he will be here at Cato this Friday to discuss his new study for Cato, Drug Decriminalization in Portugal. Portugal is treating drug use as a health problem, not a crime problem, and it is working rather well. When Senator Webb’s commission gets assembled, this report ought to be at the top of its reading list.
To register for the Greenwald forum, go here. For a discussion on mass incarceration, go here. For more Cato work on crime and drugs, go here and here.
Ken Lammers on Posner and Strict Liability
Ken Lammers, who blogs over at CrimLaw, recently posted a review of my new book, In the Name of Justice. By way of background, the book is an edited collection of essays. The lead essay is a reprint of the 1958 classic, “The Aims of the Criminal Law,” by Harvard Law Professor Henry Hart. Legal and criminal law experts, such as Judge Richard Posner and James Q. Wilson (among others), have written original essays about Hart’s ideas.
Among other things, Hart critiqued the doctrine of strict criminal liability–which essentially dispenses with the requirement of proving someone’s criminal intent. Hart says this is profoundly wrong. The essence of criminal conduct is that the person has done something which is blameworthy. With strict liability, prosecutors can condemn certain persons as “criminals” without proving that they have done anything that is truly blameworthy.
Judge Richard Posner’s essay offers a defense of the strict liability doctrine, but Ken Lammers is not persuaded. Here’s an excerpt:
Posner’s strongest argument is born of the wisdom of ignorance: the statutory rape argument. The statutory rape, best-interest-of-the-child, absolute strict liability is a creature born of emotion divorced from logical thought. We must protect the children at all costs. Therefore, anybody who crosses the line gets convicted no matter the circumstance. “The effect is to induce men to steer well clear of young-looking women, a form of care they would be less likely to use if ignorance were a defense.” (p. 97)
This pretty much brands Posner as someone who has not had actual trial experience. He’s never seen that trial wherein the immature 18 year old defendant (looking all of 14) has “raped” the 14 year old predatory girl (who looked 20) who had a list on her bedroom door of men she aimed to have sex with and had crossed several names off as she achieved her goal. Y’know, the same girl who turned the defendant in because she got mad at him when he found out her age and refused to have sex with her anymore. Guilt via strict liability. I’ve seen at least two cases with facts similar to this in my 8+ years practicing (none at my current locale); persons in larger jurisdictions can probably relate more of the same. This is how the “justice” of strict liability plays out in real life and anyone who thinks that is the proper way for the law to work is clearly engaging in faulty reasoning.
I agree. And statutory rape is just a single example of where the doctrine of strict liability has taken hold. Once that precedent was established, it has expanded elsewhere, as have the injustices. For example, the law bans felons from possessing guns and ammunition. Dane Yirkovsky found a bullet at his girlfriend’s house and put it in a dish on the dresser. Later, police search and find the bullet. Yirkovsky tells them that he put it there. Since he is an ex-con, he gets arrested on a felon-in-possession charge. And with mandatory minimum sentencing in place, he is now serving a fifteen year prison sentence. Under the law, Yirkovsky is “guilty.” But did he do anything that was really blameworthy? Can his conduct really be described as “criminal?”
To learn more about the state of our criminal law, get the book.
Federal Enforcement Policy Is Up in Smoke
Attorney General Eric Holder’s announcement that the federal government will end raids on medical marijuana distributors is terrific news.
The Bush administration’s scorched-earth approach to the enforcement of federal marijuana laws was a grotesque misallocation of law enforcement resources. The U.S. government has a limited number of law enforcement personnel, and when a unit is assigned to conduct surveillance on a California hospice, that unit is necessarily neglecting leads in other cases that possibly involve more violent criminal elements.
This shift in policy is also more mindful of the constitutional principle of federalism by allowing the states to try different policy approaches, and it is more respectful of the division of opinion within the medical community about the benefits of marijuana for certain patients. This de-escalation of the drug war is good policy and is long overdue.
End Drug War and Save $77 Billion
Harvard Economist Jeff Miron tells CNN that the drug laws make no sense.
On March 17, Cato will be hosting an event about The Politics and Science of Medical Marijuana. One of our guest speakers, Rob Kampia of the Marijuana Policy Project, was recently interviewed by Glenn Beck.
For more Cato work on the drug war, go here.
Milton Friedman Defends Capitalism
Unfortunately, we don’t have great advantage of having Milton Friedman with us during the present ”blame the free market” storm that is raging in Washington. Still, it’s nice to have clips of this champion in action.
Filed under: General; International Economics and Development; Political Philosophy
Grand Juror Got Too Uppity
Peter Atherton was thrown off a grand jury for asking too many questions of the prosecutors. Here’s an excerpt from Legal Times:
Back in 2001, fellow grand jurors quickly became irritated with Atherton, saying he was disruptive and was holding up the process with all of his questions about probable cause and burden of proof, according to court records.
It was Atherton’s first time on a grand jury when he showed up for service that April. He says he became concerned the jury was rushing through cases, indicting individuals without having a full understanding of the crimes.
Filing an indictment against someone is serious stuff. The process should be slow and deliberative. Alas, the old saw is that prosecutors can get grand juries to indict anything–even a ham sandwich. Atherton’s experience lends support to that–skeptics who question authority apparently can’t be tolerated. For a related case, go here. For my primer about the grand jury process, go here.
Calling All Harvard Alumni
As my colleague Dan Mitchell has noted, Harvard is about to hold a conference about how the “free market ideology has dominated legal discourse and lawmaking the last few decades.” That’s a dubious narrative (to say the least (pdf)).
In any event, Harvard alums who read this blog should know that Cato adjunct scholar Harvey Silverglate is running for a position on Harvard’s Board of Overseers. Pass the word to all the Harvard alumni you may know. Additional background here.
Prince of Darkness
Interesting interview with Robert Novak (AKA The Prince of Darkness).
Some snippets:
Q: The atmosphere in politics today is so bitterly partisan. What do you ascribe that to?
A: I don’t agree that partisanship is more bitter now. In the 19th century, the overriding issue was slavery, and there was no more partisan issue than slavery. Preston Brooks, a proslavery Democratic congressman from South Carolina, walked onto the Senate floor and beat Charles Sumner, the antislavery leader of the radical Republicans, almost to death with the metal end of his cane. Now, that was partisan.
Q: You mention the names of a lot of sources in “The Prince of Darkness,” which is practically a who’s who of everybody in government or politics over the past 50 years. Who were the most skillful leakers, the ones who really knew how to give good leak?
A: The word “leaker” has an ignominious ring. It connotes giving you something you shouldn’t have. I think I should have everything. So there are no leaks — there are sources.
Q: In your memoir, you describe an early meeting in the Oval Office with Reagan in which he quoted a couple of obscure 19th-century British free-trade advocates and some little-known modern Austrian economists. How underrated intellectually do you think Reagan was?
A: He was extremely underrated, particularly by the press. The press was very derisive. They were derisive of Eisenhower, too — they thought he was just another Army officer — but the attacks on Reagan were harsher. He was portrayed as stupid, uneducated, out of his element. I think he was very well educated and understood a lot of things. He was also very flexible in his policies — too flexible for my taste.
Q: You’ve described yourself as a hero worshiper in a field that doesn’t have many heroes. Who were your heroes?
A: To be a hero — my hero — the person has to be in the process of risking his life or his livelihood or his way of life for a principle. That’s hard to find in the political world. I’ve talked about the great Czech distance runner Emil Zapotek, the greatest distance runner of all time, who ended up working in a uranium mine because he supported the 1968 uprising. He was a great hero of mine — an athlete who changed his whole life for principle.
Q: You’ve had a chance to look back on your life and think about what you’ve done that was good and what was bad. What stands out?
A: Looking back, I tried to find out what the politicians were up to, which is a difficult job. I find that politicians as a class are up to no good. Looking back on my life, I regret I was so determined to do that. I ended up writing a lot of political trivia, which really made my reputation. I think when people stop me now and say they miss my column, what they’re talking about is the behind-the-scenes trivia — the kind of thing that made me acceptable to people who disagreed with me. But I think I would have been better off to write about tax cuts and abortion and less about inside politics.
Q: Only those issues or others?
A: I was very negative about the invasion of Iraq. That’s another subject I should have written more about, explained more. I thought the war was unjustified. But my stand led to a Novak-hates-his-country piece in the National Review, which caused me a lot of grief and cut me off at the White House. I should have explained more about why I took the position I did.
Q: Let’s talk about the Valerie Plame affair, which caused you so much grief. If you had it to do over again, would you reveal who she was?
A: If you read my book, you find a certain ambivalence there. Journalistically, I thought it was an important story because it explained why the CIA would send Joe Wilson — a former Clinton White House aide with no track record in intelligence and no experience in Niger — on a fact-finding mission to Africa. From a personal point of view, I said in the book I probably should have ignored what I’d been told about Mrs. Wilson.
Now I’m much less ambivalent. I’d go full speed ahead because of the hateful and beastly way in which my left-wing critics in the press and Congress tried to make a political affair out of it and tried to ruin me. My response now is this: The hell with you.
I bet Mr. Novak recovers from his recent surgery and returns to work so he can report on the Obama presidency.
The ‘Inane and Insane’ World of Federal Criminal Law
Over at Sentencing Law and Policy, Douglas Berman takes a look at a recent federal case:
I cannot help but wonder if the authors of the Bill of Rights would have been even more troubled by the ugly way federal criminal power is exercised here. Rather than having state authorities indict and try the defendant for all his local crimes, the feds come in, secure a conviction through a broad regulatory law, and then obtain a long prison sentence by “proving” state crimes to a federal district judge (by a preponderance of evidence) at sentencing. Thanks to modern criminal justice realities, federal prosecutors can easily make a sentencing end-run around most of the constitutional criminal procedure rules the Framers put into the Fifth and Sixth Amendments.
It’s not just one case. This is a trend in the federal courts. In my new book, In the Name of Justice, I identify many other ways in which the government is going over, under, and around the Bill of Rights.
‘Tons of Jobs’ Opening Up in D.C.
Business Week reports that the national capital area is barely sensing the recession:
Washington is getting a boost from government spending to fight the recession and fix the financial system, as well as the ongoing expenses of fighting wars in Iraq and Afghanistan and promoting homeland security. While President Barack Obama pointedly left Washington for Denver to sign the $787 billion stimulus package on Feb. 17, locals expect the metro area to garner a big share of the dollars.
“Oversight alone will (mean) tons of new jobs,” enthuses Jill Landsman, a spokeswoman for the Northern Virginia Assn. of Realtors, who says the pace of home sales has picked up over the past year even as prices have continued to fall.
Cato analysts propose to slash jobs in Washington–at least 100 agencies and programs [pdf]. It’s no big mystery why tons of people in the capital oppose Cato proposals.
Filed under: General; Government and Politics; Tax and Budget Policy
Criminals Caught on Tape?
It’s not surveillance film from a bank or gas station hold-up — it’s guys in lab coats who seem to be helping the police and prosecutors by making evidence “fit” a murder charge.
This particular case is not for the faint of heart. The film shows an autopsy of a young girl whose parent claims she drowned in the bath tub. Prosecutors say it was murder. The forensic “experts” appear to be putting bite marks on the child’s dead body using a plaster mold of the defendant’s teeth.
Assuming that’s right, how perverse is that? The government’s scientists put the marks on the child, snap some photos of the marks, and then show those pictures to the jury and declare, “The bite marks match the defendant.”
You might think that once the film is brought to the attention of the District Attorney, he’d disavow the case against the parent and have the “scientist” arrested for tampering with evidence. Sadly, it doesn’t work like that. The authorities are probably hiding under their desks, hoping this story will just go away. Because if this is not an isolated incident and someone takes a serious look at all the cases these ”experts” have been involved in, lawsuits will be filed, careers will end, and grand juries may be convened. Super-sleuth Radley Balko has been on the trail of these junk scientists for the past year or two.
60 Minutes should investigate this thing further.
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