Author Archive
Update on the Brian Aitken Case
A New Jersey appellate court has just reversed Brian Aitken’s criminal convictions on two of three counts. Brian Aitken got caught up in New Jersey’s gun regulations as he was moving from Colorado to NJ. His firearms were lawfully purchased in Colorado but ran afoul of certain NJ rules. The jury pleaded with the trial judge three times for additional guidance as to its options in the event they were persuaded that Aitkin was indeed moving. Each time the jury was rebuffed. The judge said not to worry as he had already determined that Aitken did not qualify for the special moving exemption in NJ law. The appeals court has now ruled that the trial judge erred (pdf).
Some may recall that Governor Chris Christie took action in this matter—he commuted Aitken’s seven year sentence. Brian’s legal battle continues nonetheless. A criminal conviction makes his life difficult—among other things, it affects child custody, credit, and his ability to keep a gun in his home for self-defense.
One happy twist to his ordeal with the state has been that Brian now works for liberty with our friends at the Foundation for Economic Education.
$620,000 Jury Award for Dog Shooting
Yesterday a jury found that police officers entered a couple’s home without their permission and shot their dog for no good reason. The $620,000 award is a good outcome for the family, but all too often there is no accountability mechanism for police misconduct. Like the official response to the outrageous Cheye Calvo incident, the police insisted that they were just “doing their job,” which sounds like they’re going to keep on doing what they do.
Biden Confident about ObamaCare Litigation. Should He Be?
Over the weekend, Vice-President Joe Biden said that he was confident the Supreme Court would not invalidate President Obama’s health care law. Here’s Biden:
I’m not going to speculate about something I don’t believe will happen.
Flashback to 2000 when the Supreme Court declared then-Senator Biden’s initiative, the Violence Against Women Act, unconstitutional because it was beyond the limited powers of Congress. At the time, Biden wrote:
I am disappointed, but not surprised, by the U.S. Supreme Court’s 5-4 decision Monday to strike down the one piece of the landmark Violence Against Women Act that empowers a victim of domestic violence or sexual assault to sue her attacker in federal court. … The Supreme Court has been inching toward this decision for the last several years. In case after case, the court has grown increasingly bold in stripping the federal government of its ability to make decisions on behalf of the American people. … This court, molded by conservatives, has proven eager to substitute its own judgment for that of the political branches democratically elected by the people to do their business.
Teenager Shot and Killed
Very little media interest so far in the case of an 18-year old shot and killed by a man who claims to have acted in self-defense. It happened a few days ago in Detroit. At about 1:30 am, Willie White claims that an intruder broke into his home and that, fearing for his life, he had to shoot. Prosecutors have concluded that White acted in self-defense so there will be no criminal case.
It is too soon to tell whether White will be sued civilly for wrongful death. Relatives of the teen might hire a lawyer to argue that White had a “duty to retreat” and that he should have tried to hide in a bedroom closet instead of using deadly force. If that happens, White will need hire a lawyer to fight the lawsuit. To protect people like Willie White from that sort of thing, some states, such as Florida [update: and Michigan!], have Stand Your Ground laws, that immunize persons who act in self-defense from civil liability.
The recent Cato study, Tough Targets, details many cases of citizens using guns to thwart crime.
The Trayvon Martin Shooting: Just the Facts
Americans use guns to thwart a lot of crime, very often without having to fire the weapon. When citizens do use deadly force, the legal system will adjudicate whether that force was lawful or unlawful. With respect to the Trayvon Martin case, our focus thus far has been on Florida’s Stand Your Ground law and what role, if any, it has played in that case. I have concluded that there is no connection between that law and the Martin shooting at all. The Stand Your Ground law simply does not apply—so other legal principles will govern the legality of George Zimmerman’s conduct. My legal analysis will be published in an article next week. Walter Olson has related thoughts here.
With new developments in the case coming to light almost every day, it is difficult for outside observers to do anything but speculate. To take but one example, initially it seemed as if the Stanford police did a cursory investigation the night of the shooting. It seemed as if they simply accepted Zimmerman’s claim of self-defense and let him go. That would have been inexcusable. Yesterday, however, there was a report that Zimmerman was handcuffed, taken to the station, and questioned for about five hours. And the police questioned him again at the scene the following day. This is not to say that that was the best way to handle the matter; it is just to point out how we are getting new pieces of information each day. Today the Associated Press has this helpful article that cuts through the charges and counter-charges and simply summarizes what we know so far.
The central point to keep in mind is that deadly force is serious business. George Zimmerman took a life. Intense scrutiny into what happened is warranted.
Feds Spin Yarn About ‘Significant Threat’
Federal prosecutors told a federal judge that they’re prosecuting an elderly man because his actions constitute a “ significant threat” to the legal system.
Guess what he did?
(a) He smuggled stolen FBI documents to a suspected Al-qaeda prisoner in the NY jail.
(b) He attended court hearings and made belligerent outbursts.
(c) He wrote nasty letters to prosecutors and judges accusing them of corruption.
Actually, all he did was distribute pamphlets outside the courthouse. And in the view of federal attorneys, if such pamphlets express an opinion, or quote our second president saying jurors can and should vote according to their conscience, then the distributor must be arrested and jailed—at least if he gets too close to the courthouse.
Previous coverage here.
Plea Bargaining in the Supreme Court
The Supreme Court issued two rulings today related to plea bargaining. What if a defense attorney fails to pass along a prosecutor’s offer to his client? And what if a defense attorney gives a client really bad advice so an offer is rejected and, after a trial, the client gets a lengthy prison sentence? The Supreme Court grappled with what should be the appropriate remedy, if any, in such circumstances.
Lurking in the background of these cases is the practice of plea bargaining itself. Most Americans mistakenly think that we have a system of jury trials because they tend to hear about such cases on the news. Well, yes, some people have jury trials and some people win the lottery–most do not. According to the figures cited by the Court, “ninety-seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas.” Of the nine justices on the Court, seven did not perceive any problem with this situation.
Justices Scalia and Thomas couldn’t ignore the elephant in the room. Unlike the majority, they said plea bargaining is a “necessary evil” and that it has been “a somewhat embarrassing adjunct to our criminal justice system.” Here’s an excerpt from the Scalia dissent in Lafler v. Cooper (joined by Thomas):
In the United States, we have plea bargaining a-plenty, but until today it has been regarded as a necessary evil. It presents grave risks of prosecutorial overcharging that effectively compels an innocent defendant to avoid massive risk by pleading guilty to a lesser offense; and for guilty defendants it often—perhaps usually—results in a sentence well below what the law prescribes for the actual crime. But even so, we accept plea bargaining because many believe that without it our long and expensive process of criminal trial could not sustain the burden imposed on it, and our system of criminal justice would grind to a halt.
Well, that is the standard explanation offered, but as I noted in this article for Reason magazine, please observe that the main justification for the way in which the overwhelming number of cases are handled is a pragmatic argument–i.e. there’s just no other way of handling so many cases! The argument is not that plea bargaining is a terrific way to administer justice. And what about that “risk” of “compelling” persons to plead guilty–does that not threaten, you know, the constitutional right to trial by jury? Without much elaboration, Justice Scalia just says we “accept” it for pragmatic reasons. Oh. Today is just not a day for originalism I guess.
For additional background, go here.
Good Stuff on Criminal Justice
A few recent articles that are not to be missed:
- Conrad Black takes on conservatives and the American criminal justice system.
- A. Barton Hinkle takes on conservatives and executive power.
- Gene Weingarten takes on prosecutors and the misguided idea that accidents should be considered crimes.
For related Cato scholarship, go here.
Are New York City Crime Stats a Sham?
The Village Voice is reporting that the New York City Police Department has confirmed the allegations of a police whistleblower that at least one precinct, perhaps more, has manipulated crime statistics in a way that makes it appear that crime is down in the city, which makes police commanders and the mayor appear good to both journalists and the electorate. Here’s an excerpt:
For more than two years, Adrian Schoolcraft secretly recorded every roll call at the 81st Precinct in Brooklyn and captured his superiors urging police officers to do two things in order to manipulate the “stats” that the department is under pressure to produce: Officers were told to arrest people who were doing little more than standing on the street, but they were also encouraged to disregard actual victims of serious crimes who wanted to file reports.
Arresting bystanders made it look like the department was efficient, while artificially reducing the amount of serious crime made the commander look good.
In October 2009, Schoolcraft met with NYPD investigators for three hours and detailed more than a dozen cases of crime reports being manipulated in the district. Three weeks after that meeting—which was supposed to have been kept secret from Schoolcraft’s superiors—his precinct commander and a deputy chief ordered Schoolcraft to be dragged from his apartment and forced into the Jamaica Hospital psychiatric ward for six days.
Our Imperfect Constitution
The distinguished legal scholar from the University of Texas, Sanford Levinson, has written a new book, Framed. Here’s a brief description from the Oxford University Press:
In Framed, Levinson challenges our belief that the most important features of our constitutions concern what rights they protect. Instead, he focuses on the fundamental procedures of governance such as congressional bicameralism; the selection of the President by the electoral college, or the dimensions of the President’s veto power–not to mention the near impossibility of amending the United States Constitution. These seemingly “settled” and “hardwired” structures contribute to the now almost universally recognized “dysfunctionality” of American politics. Levinson argues that we should stop treating the United States Constitution as uniquely exemplifying the American constitutional tradition.
Levinson makes a basic point that I agree with: there is too much reverence for our fundamental charter (though certainly not enough in certain places!) and that we should seriously consider changes that would improve our polity.
In that connection, let me draw some attention to a symposium that I participated in a few months ago. The Tennessee Law Review asked various academics and lawyers to come up with ideas for improving the American Constitution. My proposal was and is to amend the amendment process itself. My thesis is that the Framers made the amendment process very difficult with the idea that they were safeguarding their charter for limited government. Let’s face it—it did not work. What we have seen is a reinterpretation of the charter that has rationalized the expansion of federal powers. By making the amendment process easier, I argue that we can bridge the gulf that exists between our legal charter and the government that we actually have. I also think we could expect to see more candor in our constitutional discourse. Prof. Levinson was asked to comment on all the symposium proposals and we found ourselves in agreement on this idea. Here’s Levinson: “I am glad to specify my agreement with [Tim Lynch's] argument that perhaps the most most valuable single amendment would be to make the process of amendment significantly easier than it is now.” I will have to consider Prof. Levinson’s other concrete proposals in Framed to see if the case has been made for other changes as well.
Go to Trial and Crash the System?
Yesterday, Law Professor Michelle Alexander wrote an op-ed for the New York Times with the title, “Go to Trial: Crash the Justice System.” Here’s an excerpt:
AFTER years as a civil rights lawyer, I rarely find myself speechless. But some questions a woman I know posed during a phone conversation one recent evening gave me pause: “What would happen if we organized thousands, even hundreds of thousands, of people charged with crimes to refuse to play the game, to refuse to plea out? What if they all insisted on their Sixth Amendment right to trial? Couldn’t we bring the whole system to a halt just like that?”
The woman was Susan Burton, who knows a lot about being processed through the criminal justice system.
Her odyssey began when a Los Angeles police cruiser ran over and killed her 5-year-old son. Consumed with grief and without access to therapy or antidepressant medications, Susan became addicted to crack cocaine. She lived in an impoverished black community under siege in the “war on drugs,” and it was but a matter of time before she was arrested and offered the first of many plea deals that left her behind bars for a series of drug-related offenses. Every time she was released, she found herself trapped in an under-caste, subject to legal discrimination in employment and housing. …
I was stunned by Susan’s question about plea bargains because she — of all people — knows the risks involved in forcing prosecutors to make cases against people who have been charged with crimes. Could she be serious about organizing people, on a large scale, to refuse to plea-bargain when charged with a crime?
“Yes, I’m serious,” she flatly replied.
I launched, predictably, into a lecture about what prosecutors would do to people if they actually tried to stand up for their rights. The Bill of Rights guarantees the accused basic safeguards, including the right to be informed of charges against them, to an impartial, fair and speedy jury trial, to cross-examine witnesses and to the assistance of counsel.
But in this era of mass incarceration — when our nation’s prison population has quintupled in a few decades partly as a result of the war on drugs and the “get tough” movement — these rights are, for the overwhelming majority of people hauled into courtrooms across America, theoretical. More than 90 percent of criminal cases are never tried before a jury. Most people charged with crimes forfeit their constitutional rights and plead guilty.
“The truth is that government officials have deliberately engineered the system to assure that the jury trial system established by the Constitution is seldom used,” said Timothy Lynch, director of the criminal justice project at the libertarian Cato Institute. In other words: the system is rigged.
In the race to incarcerate, politicians champion stiff sentences for nearly all crimes, including harsh mandatory minimum sentences and three-strikes laws; the result is a dramatic power shift, from judges to prosecutors.
Read the whole thing. I am glad to see this attention to the deplorable plea bargaining system that has developed here in the USA. Susan Burton and Professor Alexander pose an interesting thought experiment, but it is not realistic. The government has enormous leverage over everyone’s liberty. By offering straight probation to some and threatening others with additional charges and more prison time, the persons accused would be unable to hold the line–individuals will take the deals offered and surrender their right to a trial.
If we take the Constitution seriously, the only options open to us are (1) scale back the criminal codes–especially the drug laws; (2) spend the money that will be necessary to conduct the trials; (3) amend the Constitution.
For more background, go here (pdf).
Attorney General Holder and Executive Power
AG Eric Holder gave an address on Monday where he offered a legal rationale for the power of the president to kill American citizens who are outside of the United States and who are suspected of terrorist activity. George Washington University Law Professor Jonathan Turley responds:
On Monday, March 5, Northwestern University School of Law was the location of an extraordinary scene … U.S. Attorney General Eric Holder presented President Barack Obama’s claim that he has the authority to kill any U.S. citizen he considers a threat. It served as a retroactive justification for the slaying of American-born cleric Anwar al-Awlaki last September by a drone strike in northeastern Yemen, as well as the targeted killings of at least two other Americans during Obama’s term.
What’s even more extraordinary is that this claim, which would be viewed by the Framers of the U.S. Constitution as the very definition of authoritarian power, was met not with outcry but muted applause. Where due process once resided, Holder offered only an assurance that the president would kill citizens with care. While that certainly relieved any concern that Obama, or his successor, would hunt citizens for sport, Holder offered no assurances on how this power would be used in the future beyond the now all-too-familiar “trust us” approach to civil liberties of this administration.
Read the whole thing.
Previous coverage here. And Colbert’s segment, “Due or Die,” is here.
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