Author Archive
Jury Rights Day
Today’s date, Sept. 5, marks an important historical event in the development of the right to trial by jury. On this day in 1670, William Penn and William Mead were prosecuted in England for “unlawful assembly,” “disturbing the peace,” and “riot.” These “crimes” arose from Penn having preached near Grace Church to a meeting of several hundred Quakers.
It was a peculiar trial in many respects. The court, for example, denied Penn’s request to simply read the indictment. But the trial was most notable for the way in which the court tried to bully the jury. When the jury did not come back with guilty verdicts, but a verdict that simply said “guilty of speaking to an assembly,” the court refused to accept that outcome and ordered the jury to return to their deliberations. When the jury returned with a verdict that acquitted Mead of all charges, the court ordered the jury to prison! Next, the jurors filed a writ of habeas corpus challenging the legality of their imprisonment.
Soon after, an important legal precedent was set for jury independence: jurors cannot be punished for voting their conscience. That’s the story behind “Jury Rights Day.”
Alas, the jury trial has been in a steady decline here in the United States.
We started out strong. Our Constitution says, “the Trial of all Crimes, except in Cases of Impeachment; shall by by Jury.” And our second president, John Adams, said, “It is not only [the juror's] right, but his duty … to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.”
But these days, the government pressures many defendants to enter into plea bargains so fewer and fewer cases go to trial. And the government no longer wants jurors to vote their conscience. Indeed, it goes so far as to arrest people for distributing pamphlets that discuss these matters.
We need policies that will once again honor the role that juries play in securing justice.
Nat Hentoff on Perry, Obama
There has been increasing attention this week on Texas governor and Republican presidential candidate Rick Perry, as well as his book Fed Up! and his record in Texas. With respect to criminal justice, most of the talk concerns the number of executions on Perry’s watch.
In a recent column, Cato senior fellow Nat Hentoff notes that Perry has brought enlightening reforms to the juvenile justice system in that state — the gist being more focus on concentrated rehabilitation instead of prison isolation — and that this aspect of Perry’s record ought to be part of the conversation.
And where is Nat Hentoff on Mr. Obama and his record?
I don’t ask President Barack Obama for any change I can believe in, except to clear out his office and make room in the White House for a real president.
That may be too harsh. Obama has made some mistakes, to be sure, but at least he ended the wars and has the government on a sound financial footing.
Lawyers and Their Licenses
What do the New York Times, the Brookings Institution, and the Cato Institute have in common? Turns out we agree on deregulating the legal profession.
From a Times editorial: “Another step is to allow nonlawyers into the mix. The American Bar Association has insisted that only lawyers can provide legal services, but there are many things nonlawyers should be able to handle, like processing uncontested divorces. ”
From a Brookings op-ed: “It would be better to deregulate the provision of legal services. This would lower prices for clients and lead to more jobs.”
From a Cato paper: “Every state except Arizona prohibits the unauthorized practice of law (UPL); a person must possess an attorney’s license to hold himself out as a lawyer. UPL prohibitions restrict the right to pursue a legitimate occupation and the right to contract with others. By imposing a costly barrier to entry, they distort the market for legal services. Consequently, consumers face higher prices and fewer choices.”
It’s unanimous. Get going state lawmakers—deregulate the legal profession.
Feds Take in Billions with Forfeiture Powers
Today’s Wall Street Journal has part 2 of its critical look at the powers of federal law enforcement agencies and the focus of this article is on the power to seize cash, cars, homes, and other assets from people who have not been convicted of a crime. It’s called “civil asset forfeiture” because there is no criminal prosecution. Here’s an excerpt (subscription only):
New York businessman James Lieto was an innocent bystander in a fraud investigation last year. Federal agents seized $392,000 of his cash anyway.
An armored-car firm hired by Mr. Lieto to carry money for his check-cashing company got ensnared in the FBI probe. Agents seized about $19 million—including Mr. Lieto’s money—from vaults belonging to the armored-car firm’s parent company.
He is one among thousands of Americans in recent decades who have had a jarring introduction to the federal system of asset seizure. Some 400 federal statutes—a near-doubling, by one count, since the 1990s—empower the government to take assets from convicted criminals as well as people never charged with a crime.
Last year, forfeiture programs confiscated homes, cars, boats, and cash in more than 15,000 cases. The total take topped $2.5 billion, more than doubling in five years, Justice Department statistics show.
The expansion of forfeiture powers is part of a broader growth in recent decades of the federal justice system that has seen hundreds of new criminal laws passed. Some critics have dubbed the pattern as the overcriminalization of American life.
Last year, Cato hosted an event on the problem of forfeiture law and before that published numerous books and studies and articles. It’s nice to see the Wall Street Journal highlighting this problem for its readership.
‘Counterfeit Comfort’
Steve Chapman on sex offender registries:
Most convicted sex offenders do not go on to be arrested for new sex offenses, and more than 90 percent of child victims are assaulted not by strangers but by relatives or other people they know.
Sex offender registries may cause parents to focus on the remote peril while ignoring the more pertinent one. And, as in the examples cited earlier, they can inflict harsh punishment that departs from common sense and does nothing for public safety.
Shielding citizens from vicious predators is unquestionably one of the central functions of any sound government. Megan’s Laws were enacted in the sensible pursuit of that goal. What they offer in practice, though, is counterfeit comfort.
Read the whole thing. Lenore Skenazy has more thoughts about this here.
The Heritage Foundation is not only making the case for registries, but is making the case for federal intervention in this area. Wrong. Like education, crime-fighting is a subject the feds should stay out of. See the Tenth Amendment (pdf).
When the State Takes the Children
The New York Times has an article today about how city officials take children away from parents because of marijuana use. Here is an excerpt:
Hundreds of New Yorkers who have been caught with small amounts of marijuana, or who have simply admitted to using it, have become ensnared in civil child neglect cases in recent years, though they did not face even the least of criminal charges, according to city records and defense lawyers. A small number of parents in these cases have even lost custody of their children.
The article explains that even if a child is not immediately removed a “neglect finding” can kill prospects for certain jobs involving kids, such as a daycare assistant, and will make it easier for judges to order a removal down the road. Even though marijuana use is very common among whites, the neglect and removal cases are mostly brought against minorities.
When drug warriors are challenged about criminalizing marijuana use, they typically deflect the question by saying, “we’re not locking up nonviolent marijuana users.” Well that’s only because our prisons are overflowing already and they can’t convince enough lawmakers to build enough prison space to escalate the war further. Second, below the prison numbers a low scale war continues apace–tens of thousands of arrests and court appointments and, as this article shows, child removal proceedings.
New York should follow California’s approach to this issue–if the state can demonstrate actual harm to children from marijuana use, then a neglect case can be brought. Reporters should ask Mayor Michael Bloomberg whether his past drug use makes him unfit to be a parent or grandparent or to be in an occupation affecting the well-being of kids.
The Kelly Thomas Killing
The New York Times reports on the protests that are underway as a result of the beating and killing of one Kelly Thomas. Several witnesses reportedly saw several cops savagely beat Thomas after he was already in handcuffs and subdued. Here’s an excerpt from the Orange County Weekly on the incident.
On a beautiful Southern California Saturday more than 250 outraged local citizens ignored the chance to spend a sunny day at the beach, swim in their pools, shop at the mall or sip Mimosas on their porches.
Instead, for six hours a diverse group of citizens–grandmothers, little kids, lawyers, college students, businessmen and women, housewives, ex-cops, young parents, a mechanic, a dentist, a construction worker, a guy who looked like he’d just left a gay leather bar–hell, you name a group and they were probably represented–stood outside the Fullerton Police Department, waved homemade signs and shouted in protest against a grotesque case of police brutality.
When one sees the photo of what Kelly Thomas looked like in the hospital bed after the awful beating, one can better understand why people are so outraged and in the streets protesting. Here’s the photo (caution: viewer discretion advised!).
Cuccinelli Corrects an Injustice
Virginia Attorney General Kenneth Cuccinelli reviewed the evidence and concluded that one Thomas Haynesworth had been wrongly imprisoned–so he persuaded Governor Robert McDonnell to grant him parole. Not a full vindication, because Haynesworth still has a felony record, but freedom. Remarkably, Cuccinelli went still further and added Haynesworth to his staff while promising to work to clear his name and wipe his record clean. David Keene has the full story here.
The Minefield of American Criminal Law
Over the weekend, the Wall Street Journal ran an excellent article about the problem of overcriminalization—the proliferation of criminal laws and how more and more people can find themselves on the wrong side the law without even realizing it. Here’s an excerpt:
In 2009, Mr. Anderson loaned his son some tools to dig for arrowheads near a favorite campground of theirs. Unfortunately, they were on federal land. Authorities “notified me to get a lawyer and a damn good one,” Mr. Anderson recalls.
There is no evidence the Andersons intended to break the law, or even knew the law existed, according to court records and interviews. But the law, the Archaeological Resources Protection Act of 1979, doesn’t require criminal intent and makes it a felony punishable by up to two years in prison to attempt to take artifacts off federal land without a permit.
Read the whole thing.
It’s great that this phenomenon is getting more attention. Too many people in Washington seem to think that the more laws Congress enacts, the better the job performance of the policymakers. That’s twisted. Before an elected official can take any action whatsoever, he or she must first take an oath to uphold and preserve the Constitution—and the role of the federal government in the criminal area is supposed to be quite limited. I testified before a congressional committee two summers ago on this subject. And Judge Alex Kozinski, quoted in the WSJ article above, has a terrific essay in my book, In the Name of Justice, about the score of federal criminal laws now on the books. And Cato adjunct scholar Harvey Silverglate authored a fine book on the problem, called Three Felonies a Day. More here (pdf) and here.
From Hell to Heaven
Cory Maye was in his home one evening minding his own business when his front door came crashing down. Frightened that criminals were going to harm him and his child, Maye quickly retrieved a gun. When his bedroom door came crashing down next, Maye fired. When the lights came on, it turned out that the intruders were police officers and that Maye had killed one of them. The nightmare had only just begun for Maye. Police and prosecutors twisted a case of self-defense into a “murder” charge and they sought the death penalty. Cato fellow Radley Balko read about the case when he was researching a paper concerning the militarization of police tactics and no-knock raids. Radley then wrote about the injustice of Maye’s situation and word spread via the internet. A new legal team took up the case and appeals followed. When a court ordered a new trial for Maye, prosecutors offered a deal–plead guilty to a lesser charge and Maye would be set free because he had already served years in a Mississippi prison. Maye took the deal even though many thought he should not have any criminal conviction on his record for what happened that night. Still, it is hard to blame a guy for wanting to get out of prison to see his children just as fast as he possibly could. Maye was released a few days ago and here’s a snap of him playing around with his son.
Congrats to Maye. Congrats to Radley. And congrats to Maye’s lawyers at Covington and Burling.
Guns in D.C.
Three years after the Supreme Court’s landmark Heller ruling, which declared Washington, D.C.’s gun control laws unconstitutional, city officials keep fighting. Under pressure from another lawsuit concerning a de facto ban, the city says that guns may now be purchased at the police station. No details yet on whether residents will have to change into orange jump suits and wait in the holding cells while the police process the paperwork.
More here.
The Casey Anthony Verdict and the Criminal Justice System
The Casey Anthony case is all over the news this week. I did not follow the case closely, but Harvard law professor Alan Dershowitz has a good article about the case and the criminal law in today’s Wall Street Journal. One thing I do know is that this highly-publicized trial will reinforce a commonly held view about criminal justice in America–that juries weigh evidence and decide whether the accused is guilty or not. As I note in the July issue of Reason magazine, trials are infrequent events in our legal system.
Most Americans are under the mistaken impression that when the government accuses someone of a crime, the case typically proceeds to trial, where a jury of laypeople hears arguments from the prosecution and the defense, then deliberates over the evidence before deciding on the defendant’s guilt or innocence. This image of American justice is wildly off the mark.
Read the whole thing. The July issue of Reason is chock full of good articles about various aspects of criminal injustice.
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