Author Archive
Maher Arar
This week the U.S. Supreme Court declined to hear the appeal of Maher Arar, a dual-citizen of Syria and Canada who was seized by U.S. agents in September 2002 and deported to Syria under a policy of “extraordinary rendition.” Arar claims that Syrian agents tortured him for a year before letting him go.
Glenn Greenwald, Dahlia Lithwick, and Talkleft discuss the case and related issues.
Mandatory Minimum Sentencing
The U.S. Sentencing Commission is taking another look at mandatory minimum sentencing and Cato adjunct scholar, Erik Luna, offered his thoughts [pdf] to Commission members, along with other experts.
The ACLU’s Jay Rorty blogged about what he said and witnessed at the hearing:
I told the commission the story of an ACLU client, Hamedah Hasan, who received a life sentence for a first-time, nonviolent drug offense under the most extenuating circumstances: she came to stay with her cousin in order to flee a physically abusive relationship, and the cousin roped her into running errands for his drug conspiracy. Despite her previously clean record, her sentencing judge found his hands tied by a combination of mandatory minimums for crack cocaine and the then-mandatory sentencing guidelines based on those minimums. Hamedah’s sentence has since been reduced from life to 27 years, but she still has 10 years left to go. Hamedah has three daughters and one granddaughter. She gave birth to her youngest child in prison, and because of the ripple effect of this sentencing structure, Hamedah’s children and grandchildren are growing up without her. The judge has publicly urged that her sentence be commuted (reduced) and the ACLU filed a petition three months ago asking President Obama to do so.
Another tragic story recounted today was that of Weldon Angelos, who was facing a sentence of 6-9 years for dealing marijuana — until the government added three gun charges carrying increasingly harsh minimums that the law requires to be “stacked,” that is, to be added on top of one another. Even though he never fired the gun or threatened anyone, the fact Weldon had the gun with him on several occasions was enough to increase his sentence to 55 years, in spite of his judge’s firm conviction that the sentence was unfairly severe. Listening to stories like this made me wonder how Congress could have let this state of affairs persist for so long and whether they will ever be serious about changing it.
For more information, go to the FAMM (Families Against Mandatory Minimums) web site.
Update: Woman sentenced to life imprisonment for kissing a 13-year old boy and placing his hand on her breast.
Guns Save Lives, Part XXXIVXX
John Lee still has his life and four children still have a father because Mr. Lee had a handgun when three criminals tried to kill him and take his money.
When John Q. Citizen takes out a gun and the criminals flee, reporters don’t consider the incident “news” (at least when there are no injuries)–so guns are typically on the evening news when they are used by criminals. As a result of that skewed coverage, it is no wonder that many people have a negative view about firearms.
On June 17, Cato will be hosting a forum about guns, crime, and self-defense. Speakers include John Lott, Jeff Snyder, and Paul Helmke of the Brady Campaign.
For related Cato scholarship, go here.
John Whitehead on Nat Hentoff
John Whitehead of the Rutherford Institute has a nice post about Cato Senior Fellow Nat Hentoff.
Here’s an excerpt:
At the age of 85, Hentoff is a radical in the best sense of the word — a true freedom fighter and warrior journalist with a deep-seated intolerance of injustice. His integrity and willingness to buck the trends have earned him the well-deserved reputation of being one of our nation’s most respected, controversial and uncompromising writers.
Well said. At age 85, Nat Hentoff continues to write books and a weekly column. His new book is At the Jazz Band Ball: Sixty Years on the Jazz Scene.
Prosecutors and the Forfeiture Laws
Child pornography is against the law. You can go to jail if you make it, distribute it, or possess it. There is also a law that says the government can seize property that is “used” to distribute child pornography. So prosecutors can seize computer equipment from someone who engages in such criminal conduct. Pretty straightforward.
But in a recent case, the federal agents not only seized the computer, but the house and the 19 acres of land on which the house was located. The prosecution argued — and an appellate court agreed [pdf] — that there was a “substantial connection” between the acreage and the offense. That is just absurd.
I am also aware of a local case in which federal agents violently executed a search warrant in a child porn-in-the-computer-case. Early morning raid, guns drawn, neighbors detained, the works. It was as if the agents were looking for a killer who recently escaped from Leavenworth. More overkill.
John Ashcroft Returns to Heritage Foundation
Dana Milbank has an article about an Ashcroft address at Heritage yesterday.
Here’s an excerpt:
Ashcroft, in his own conciliatory gesture, implicitly acknowledged that he was on the wrong side in the Hamdi v. Rumsfeld detention case, in which the Supreme Court ruled against the Bush administration. “The Hamdi case was a bit of an anomaly because Hamdi was an American citizen, and it’s been considered settled law for a long time that American citizens always have the right in American courts to petition the court for habeas corpus,” Ashcroft allowed.
Well, yes, it was settled law right up until Bush’s lawyers launched their attack on the writ of habeas corpus. Nowadays those lawyers play down the dangerous legal positions they advanced during their tenure. Cheney is the exception.
Immigration Law — Up Close
Kirk Adams, speaker of the Arizona House of Representatives, has an article in today’s Washington Post on the controversial Arizona immigration law. Here’s an excerpt:
Under the law, officers can only attempt to determine a person’s immigration status during “lawful contact,” which is defined as a lawful stop, detention or arrest. Any “reasonable suspicion” can be derived only through the investigation of another violation or crime. Those who are concerned that law enforcement can simply walk up to a person and say, “Can I see your papers?” should keep this in mind.
The police are going to ask questions and request to see papers in a variety of circumstances — whether they have reasonable suspicion or not. From a legal, constitutional, and practical perspective, the key issue is this: What are the consequences, if any, for the person who stands his ground and declines to answer questions or declines to produce identification papers? If a person declines, will the police back off and say, “Well, that is your right, sir, you may go” or will the police escalate the situation by ordering the person to answer questions, ordering the production of identification, detaining the person, or threaten the person with arrest on bogus charges?
The police are trained to blur the line between “voluntary” interactions with people (perfectly lawful) and “involuntary” interactions with people (where police power is limited by the Constitution). So, for example, if a police agent says, “Okay pal, let’s see what’s in the backpack!” it is unclear whether the officer just made a request (lawful) or issued an order (for my purposes here, unlawful). The onus here is on the layperson to speak up if he does not wish to voluntarily consent to a search: “Officer, I don’t consent to any searches.” Upon hearing that, the officer will either (a) retreat; (b) clarify that he was ordering, not asking; (c) press the person some more to consent. A dishonest officer can just lie and deny what you said — and if that matter goes to court the outcome will depend on who the judge believes. That’s a severe practical disadvantage for laypeople.
With that background in mind, check out this video footage taken by a guy who seems to know constitutional law and immigration law inside out.
The vehicle is not stopped on a warrant, probable cause, or reasonable suspicion. As far as I can tell, all the cars are being stopped. The police ask about his immigration status and the driver declines to answer. The man in the car knows the law well and quickly makes it crystal clear that he’s not interested in a “voluntary” encounter with the police — he wants to be on his way. The police repeatedly evade his attempt to clarify the situation. That is, if the police are detaining him, the driver does not want to flee or resist the officers (that’s a crime) — but if the police are not detaining him, the driver does not wish to hang out with them and talk — he wants to be on his way. Watch the police lie and/or illegally threaten that he will be detained — until he answers their questions. Watch the police threaten to arrest the man for causing a “safety” hazard, or for “impeding” or obstructing their “work.” Given those police actions, most people will come to the conclusion that they have no choice in the matter — answer the questions and produce the ID papers. These are the situations that the courts rarely see. The citizen who was understandably intimidated by the threats may get mad, but it is not worth it to sue. If an illegal is discovered, he would be deported in a matter of hours. This video is thus a real public service announcement — whatever your view is on the immigration matter, do understand clearly how the police will be are interacting with people.
Note also that the police in the video clip work for the federal government, not Arizona. So those concerned about the Constitution should remain on guard when they hear the claim that “Arizona is only doing what the federal government is already doing.” Further, it is doubtful that the Obama administration intends to roll back or reform the powers of the federal police. Instead, it is trying to retain federal police powers while trying to find a way to challenge Arizona’s methods on racial/ethnic grounds. The Arizona law is quite misguided, but so too is the president’s legal challenge.
For a terrific video that instructs people on how to deal with the police, go here.
For related Cato work on immigration law, go here, here, and here.
Teachers Suspended for Class about Constitution
This can’t be happening. Teachers suspended from their posts for showing students a film about the Constitution! I can understand the initial parental inquiry–if a student did say “I was taught how to hide drugs.” There are such films on the market and those would certainly not be appropriate for school. But instead of gathering the facts, the school authorities seem to have made a terrible and unjust decision to suspend these teachers. The Busted film is about constitutional law and police encounters–showing people that they can lawfully stand up to the police and decline to approve a search of their home and belongings, and decline to answer police questions. Hopefully, the ACLU or FIRE will come to the defense of these teachers and get them reinstated fast.
Flex Your Rights, which produced the Busted film, recently released an even better film called 10 Rules for Dealing with Police. Cato hosted the premiere screening here in DC.
Grenades and Paramilitary Policing
The police threw a grenade through a window and then entered as they sought a murder suspect. Paramilitary weapons and tactics too often lead to unnecessary deaths and injuries. Rep. John Conyers wrote a letter to the Attorney General, asking him to monitor the case. In that letter, Conyers cites the Cato work, Overkill. That’s a start, but Conyers should go to work in the Congress and stop the Pentagon practice of selling surplus military equipment to local police departments. More here [pdf].
Update: Radley Balko has more on this incident here.
A Neocon’s ‘Catastrophe’
Mexican President Felipe Calderon comes to the United States and registers his objection to the recently enacted law in Arizona during a press conference and in a few sentences in an address to Congress.
Bill Bennett calls Calderon’s actions a “catastrophe.”
Neoconservatives like Bennett do not see the drug war and the Iraq war policies as catastrophes.
Enough said.
Law Professor Confesses ‘I’m a Criminal’
Law Professor Michelle Alexander:
Lately, I’ve been telling people that I’m a criminal. This shocks most people, since I don’t “look like” one. I’m a fairly clean-cut, light-skinned black woman with fancy degrees from Vanderbilt University and Stanford Law School. I’m a law professor and I once clerked for a U.S. Supreme Court Justice — not the sort of thing you’d expect a criminal to do.
What’d you get convicted of? people ask. Nothing, I say. Well, then why do you say you’re a criminal? Because I am a criminal, I say, just like you.
Read the whole thing. (H/T Sentencing Law and Policy). Judge Alex Kozinski and Misha Tseytlin make a similar point in an essay in my book entitled, “You’re (Probably) a Federal Criminal.”
George W. Bush Is Not Missed
An atrocious ruling from the Supreme Court yesterday in United States v. Comstock, as has been noted. It is no real surprise that the liberals on the Court ruled the way they did. They believe in big government and need a way to get around a Constitution that set up a federal government of limited and enumerated powers. Thus, we are told a “living” Constitution “evolves” in such a way as to accomodate the administrative state that is all around us. But the law at issue in the Comstock case did not arise during the Clinton years. The Adam Walsh Child Protection Act was championed by conservative legislators in the Congress and signed by Bush.
Until the Comstock ruling was issued, court watchers were unsure of how committed Bush’s Supreme Court picks (Roberts and Alito) were to the constitutional doctrine of enumerated powers. The answer has now arrived: Not much. As the Bush memoir makes its way to the bookstores, I expect there will be a good deal of spin about how good the Bush presidency was. Well, it wasn’t.
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