Quotulatiousness

December 16, 2014

America’s “terribly warped justice system”

Filed under: Law, Liberty, USA — Tags: , , , , — Nicholas @ 00:03

Conrad Black talks (partly from first-hand experience) of how badly served the United States is by its justice system:

… everyone in the United States, from the president and the wealthiest and most admired citizens down, is, in some measure, a victim of this now terribly warped justice system. No one is safe and everyone pays for it. The legal cartel is riveted on the back of the country like a horse-leech and extracts $1.8 trillion a year from the American economy as the legislators and regulators add 4,000 new measures with weighty sanctions each year, for the delectation of their confrères at the bar. At any time, 1 percent of the entire adult population is incarcerated, at a cost of about $150 billion annually and usually in unconstitutionally inhuman conditions; another 6 or so percent of all adults, male and female, are awaiting conviction (99.5 percent of those tried are convicted, an absurdly implausible number rivaled only by North Korea) or are under supervised release by often pettifogging probation officers at further great cost to the country. There are 48 million convicted felons in the United States, and even if decades-old unstigmatizing offenses such as failing a breathalyzer or being disorderly at a fraternity party are omitted, this means that approximately 15 percent of American adult males are designated felons. This is an absurd and barbarous number achieved by equal-opportunity multi-ethnic injustice, albeit unevenly applied. It presents African Americans a chance to form an invincible coalition in whose victory they would be the principal winners.

Though evidence of police and prosecution abuse pours in through the media every week, the majority of Americans, personally unaffected by the failings of the system, complacently believes that they live in a society of laws envied by the world. Neither supposition is correct. The United States has six to twelve times as many incarcerated people per capita as other prosperous democracies: Australia, Canada, France, Germany, Japan, and the United Kingdom. This appalling state of affairs has developed gradually over the last 40 years, as the percentage of prosecutions resolved by (very often) abusive applications of the plea-bargain system without a trial has risen from about 80 (an unheard of number in other democratic countries) to 97. The percentage of incarcerated people among the population has multiplied by five in that time, so the U.S. today has 5 percent of the world’s people, but 25 percent of its incarcerated people (and 50 percent of its lawyers – counting only those countries in which a serious professional entry course is required to practice that occupation).

The Supreme Court has sat like a shelf of suet puddings while the criminal-justice system has become a conveyor belt to the country’s bloated and corrupt prison system, and lawyers have become an immense industry, hiding its avarice behind a fog of insipid pieties about the rule of law (which, as the phrase was meant by the authors of the Bill of Rights, can scarcely be said to exist in the U.S.). New York federal judge Jed S. Rakoff wrote in the New York Review of Books on November 20 that the traditional American notion of the day in court is “a mirage” because of the corruption of the plea-bargain system, in which inculpatory evidence is extorted from witnesses in exchange for immunity from prosecution, including for perjury. Every week there is some new exposé of horror stories of prosecutorial abuse, yet prosecutors enjoy an absolute immunity, even when it is revealed that they have committed crimes of obstruction of justice, as in the infamous Connick v. Thompson decision of 2011: An innocent man spent 14 years on death row because prosecutors willfully withheld DNA evidence they knew would, and ultimately did, acquit him; the U.S. Supreme Court narrowly overruled the damage award to the wrongfully convicted Mr. Thompson on a spurious technicality.

December 11, 2014

David Friedman on the historical uses of torture in legal situations

Filed under: History, Law — Tags: , , , — Nicholas @ 06:50

David Friedman discusses a few of the legal systems under which torture was not only possible, but omnipresent:

The use of torture to extract information is not a new idea. Under both Athenian and Roman law, slave testimony could only be taken under torture. Presumably the theory was that slaves were interrogated in order to get evidence against their owners, the owner had ways of putting pressure on the slave, so torture was needed to get the slave to tell the truth. In Imperial Chinese law, not only the defendant but also witnesses could be tortured. In that system, and I think also in some legal systems of medieval and renaissance Europe, a defendant could only be convicted by his own confession. Torture was one way of getting it.

The argument against torture, that the victim will say whatever he thinks will end it whether true or false, is also old — people in the past were not stupid. Our main source of information on Athenian law consists of orations written by professional orators to be memorized by a party to a law suit in a legal system where there were no lawyers and each party had to represent himself. There is one oration which claims that slave testimony under torture is perfectly reliable, that there has never been a case where it turned out to be false. There is another making the obvious argument on the other side, that such testimony is worthless since the slave will say whatever the torturer wants him to say.

They were both written by the same orator.

People in other legal systems that used torture were also aware of the problem. There is a collection of Chinese cases compiled in the 13th century for the use of magistrates. Many of them are cases where a clever judge realizes that an innocent person has been forced to confess under torture and figures out who is really guilty.

That raises an obvious question — if they saw the problem with torture, why did they continue to employ it? One answer is that extracting information might only have been an excuse, that the real purpose was to punish someone without having first to convict him. That is a possible explanation in some contexts, including the current case of torture by the CIA. But it does not explain contexts where the person being tortured was not the suspect but a potential witness.

A second possible explanation is the belief that a competent interrogator could distinguish a real confession from a fake one. That strikes me as the most likely explanation in the Roman and Athenian cases, where it was the defendant’s slave, not the defendant, who was being interrogated.

A third explanation is that torture might produce information that could be checked. That is the situation in the hypothetical cases sometimes offered in defense of the use of torture — the suspect is being forced to say where the kidnap victim, or the terrorist time bomb, is concealed. More plausibly, to say where the loot is hidden.

“Eyewitnesses” and the human mind

Filed under: Law, Liberty, Science — Tags: , , , — Nicholas @ 00:04

Maggie McNeill discusses some of the problems we encounter when we depend on “eye witness accounts” of events:

If you haven’t yet read my research paper, “Mind-witness Testimony”, you really ought to […] The Reader’s Digest version is:

    … The human mind doesn’t passively record events as a camera does; memory is an active and dynamic process which retains information by fitting it into schemata, mental frameworks which shape our thinking and give meaning to perceptions … The same psychological mechanism which causes us to find pictures in Rorschach’s inkblots also causes us to fit memories into the complex web of schemata by which we interpret the world. And just as we ignore those topological elements of a cloud or inkblot which do not fit the meaning our minds have imposed upon it, so do we forget or distort elements of a memory which fail to conform to the schema in which we have embedded it, or even invent elements which were not in reality present, but which the schema predicts should be…The human mind often completely fabricates memories in order to impose conformity with one’s weltanschauung. One simple example involves police lineups: people will often identify the man whom police imply (subtly or overtly) is their preferred suspect because they believe police to be expert assessors of guilt who would never implicate someone falsely, and this schema of police authority and infallibility actually shapes their memories, sometimes to the point of identifying a person who is later proven to look absolutely nothing like the actual criminal…

In witch hunts of both the classic and modern varieties, hypersuggestible people such as children, the mentally ill, the emotionally needy or the severely traumatized can be induced to “remember” all sorts of fantastic things which are not even physically possible, much less grounded in actual events; when they repeat these “memories” in court (or in front of audiences hungry for “sex trafficking” narratives) they are not lying in the strict sense, but merely playing back a script that was written into their memories by processes such as suggestion, group polarization, stereotypic conformation, guided imagination, abusive interrogation tactics and others discussed in my paper. Though the concept of “recovered memory” has been discredited and most reasonably-well-informed people understand its role in driving the Satanic panic, few have yet connected the dots to recognize “sex trafficking” narratives as produced by the same processes. However, as the public begins to recognize driving the Satanic panic, few have yet connected the dots to recognize “sex trafficking” narratives as produced by the same processes. However, as the public begins to recognize the fallibility of human memory, it’s inevitable that outlandish, evidence-free stories such as those told by Somaly Mam, Chong Kim and Theresa Flores will be treated with greater skepticism.

December 9, 2014

The “broken windows theory” of policing … applied to the police

Filed under: Law, Liberty, USA — Tags: , , , — Nicholas @ 07:02

In The Atlantic, Conor Friedersdorf discusses an interesting application of the “broken windows theory”:

One of the most influential policing concepts of our era, the broken-windows theory, holds that disorder and crime are “usually inextricably linked in a kind of developmental sequence.” At the community level, ignoring disorder leads to more of it, just as a building with a broken window soon has other windows broken. That insight has been widely embraced by law enforcement in the United States. But as Ken White observed in a recent post, we’ve yet to apply it to police agencies. “If tolerating broken windows leads to more broken windows and escalating crime,” he asks, “what impact does tolerating police misconduct have?” He points to recent examples in order to argue that the consequences are dire:

    [J]ust as neighborhood thugs could once break windows with impunity, police can generally kill with impunity. They can shoot unarmed men and lie about it. They can roll up and execute a child with a toy as casually as one might in Grand Theft Auto. They can bumble around opening doors with their gun hand and kill bystanders, like a character in a dark farce, with little fear of serious consequences. They can choke you to death for getting a little mouthy about selling loose cigarettes. They can shoot you because they aren’t clear on who the bad guy is, and they can shoot you because they’re terrible shots, and they can shoot you because they saw something that might be a weapon in your hand—something that can be … any fucking thing at all, including nothing.

    … We’re not pursuing the breakers of windows. If anything, we are permitting the system … to entrench their protected right to act that way. We give them … third and fourth chances. We pretend they have supernatural powers of crime detection even when science shows that’s bullshit. We fight desperately to support their word even when they are proven liars. We sneer that “criminals have too many rights,” then give the armed representatives of our government stunning levels of procedural protections when they abuse or even kill us.

I’d never thought about police abuses in quite this way before. But it seems to me that the reforms implied by applying broken-windows theory to police officers are very similar to many of the policy changes that critics of policing have lately been advocating. How to consistently punish police officers at the first sign of disordered behavior? Record their interactions to a cloud server that they do not control. Assign independent prosecutors to handle cases of unlawful behavior. And end the practice of arbitrators reversing punishments given to misbehaving cops.

As a former St. Louis policeman put it in the Washington Post, “The problem is that cops aren’t held accountable for their actions, and they know it. These officers violate rights with impunity. They know there’s a different criminal justice system for civilians and police. Even when officers get caught, they know they’ll be investigated by their friends, and put on paid leave. My colleagues would laughingly refer to this as a free vacation. It isn’t a punishment. And excessive force is almost always deemed acceptable in our courts and among our grand juries. Prosecutors are tight with law enforcement, and share the same values and ideas.”

November 25, 2014

QotD: Rand Paul and the war on drugs

Filed under: Law, Liberty, Quotations, USA — Tags: , , , , , — Nicholas @ 00:01

I’ll do everything to end the war on drugs. … The war on drugs has become the most racially disparate outcome that you have in the entire country. Our prisons are full of black and brown kids. Three-fourths of the people in prison are black or brown, and white kids are using drugs, Bill, as you know … at the same rate as these other kids. But kids who have less means, less money, kids who are in areas where police are patrolling … Police are given monetary incentives to make arrests, monetary incentives for their own departments. So I want to end the war on drugs because it’s wrong for everybody, but particularly because poor people are caught up in this, and their lives are ruined by it.

Rand Paul, speaking to Bill Maher, 2014-11-15.

October 23, 2014

Another quirk in the American justice system

Filed under: Law, Liberty, USA — Tags: , — Nicholas @ 07:06

In the Washington Post, Radley Balko explains how judges can convict you of crimes you were acquitted on or even crimes you were never charged with in the first place:

Most Americans probably believe that the government must first convict you of a crime before it can impose a sentence on you for that crime. This is incorrect: When federal prosecutors throw a bunch of charges at someone but the jury convicts on only some of those charges, a federal judge can still sentence the defendant on the charges for which he was acquitted. In fact, the judge can even consider crimes for which the defendant has never been charged.

Last week, the U.S. Supreme Court declined to hear Jones v. U.S., a case that would have addressed the issue. The National Law Journal summarizes the facts:

    [A] District of Columbia jury found Antwuan Ball, Desmond Thurston and Joseph Jones guilty in 2007 of selling between two and 11 grams of cocaine, relatively small amounts. They were acquitted on racketeering and other charges that they were part of an extensive narcotics conspiracy.

    Yet, when U.S. District Judge Richard Roberts sentenced the three, he said he “saw clear evidence of a drug conspiracy,” and sentenced Ball, Thurston and Jones to 18, 16 and 15 years in prison, respectively — four times higher than the highest sentences given for others who sold similar amounts of cocaine, according to filings with the Supreme Court.

There have been other cases like this, including at least two in which federal judges sentenced defendants for murders for which they were never even charged, never mind convicted. So not only can a judge sentence a defendant for crimes for which a jury acquitted, he can sentence a defendant for crimes for which prosecutors didn’t have enough evidence to charge.

October 17, 2014

QotD: Legislating absolute equality

Filed under: Law, Quotations — Tags: , , , , — Nicholas @ 00:01

…to oppose the notion of equality of opportunity these days is to be thought some kind of monstrous ultramontane reactionary, a Metternich or Nicholas I, who wants by means of repression to preserve the status quo in amber. Members of young audiences to which I have spoken have almost fainted with shock when I have said that I not only did not believe in equality of opportunity, but to the contrary found the very idea sinister in the extreme, and much worse than mere egalitarianism of outcome. To say to a young audience today that equality of opportunity is a thoroughly vicious idea is like shouting “God does not exist and Mohammed was not his prophet” at the top of one’s voice in Mecca.

Those who believe in equality of opportunity must want, if they take the idea seriously, to make the world not only just but fair. Genetic and family influences on the fate of people have to be eliminated, because they undoubtedly affect opportunities and make them unequal. Ugly people cannot be models; the deformed cannot be professional footballers; the retarded cannot be astrophysicists; the small of stature cannot be heavyweight boxers; I don’t think I have to prolong this list, as everyone can think of a thousand examples for himself.

Of course, it might be possible to level the field a little by legislating for equality of outcome: by, for example, insisting that ugly people are employed as models in proportion to their prevalence in the population. English novelist L.P. Hartley, author of The Go-Between, satirized such envious suppression of beauty (and, by implication, all egalitarianism other than that of equality under the law) in a novel called Facial Justice. It’s not a very good novel, as it happens, but the idea is very good; Hartley envisages a state in which everyone aspires to an “average” face, brought about by plastic surgery both for the abnormally ugly and the abnormally good-looking. Only in this way can the supposed injustice (actually it’s unfairness) of the genetic lottery be righted.

Hartley’s novel is a reductio ad absurdum of a pernicious idea. By contrast, Roosevelt’s “measurable quality of opportunity” is roughly achievable by human design: only roughly, of course, because some (though few) will still be excluded biologically, and there are (again few) upbringings so terrible that they preclude opportunity for the person to become anything much. But the aspiration to deny no one a “measurable quality of opportunity” is not intrinsically nasty, as is the insistence on equality of opportunity. On the contrary; our problem is, however, that the political arrangements needed to bring this about already exist in most Western countries, and still we are unhappy or discontented. Thus we — many of us, that is — attribute our unhappiness to inequality of opportunity for fear of looking elsewhere, including inward.

Theodore Dalrymple, “A More Sinister Equality”, Taki’s Magazine, 2014-04-06

August 9, 2014

QotD: What is it that keeps democracies democratic?

Filed under: Government, Law, Liberty, Quotations, USA — Tags: , , , , — Nicholas @ 00:03

This is the only thing that keeps either party within a mile of good behavior — the understanding that if you deceive the public, or act with gross incompetence, that behavior is going to be politicized and used against you.

Consider the example of the various one-party cities in this nation.

Can there be any doubt that “politicization” of one’s errors or actual violations is, while annoying for the party who has erred, the only thing that restrains a party from wholesale violations of the public trust?

Besides the obvious salutary public policy effects, there is of course a more tangible reason why records should be retained and, when subpoenaed by Congress, disclosed to that body:

Because it’s the law.

And adherence to the Law is the only thing that keeps a society of feuding political parties from degenerating into a third-world system of coups and counter-coups.

If the party I oppose shows perfect contempt for following the law when it sees a political advantage in doing so, why should I not support the selfsame law-breaking when the party I support decides it might find some advantage in doing so?

The government’s basis for rule over the citizens is based on two things:

1. Sheer naked coercive power.

And:

2. Moral authority, and the notion that, while a citizen might not like the particular government serving at any particular time, that citizen values something more eternal than the temporary political circumstances of a four year period of time.

Namely, the idea that it is best for everyone to follow the law, because it’s more important to support a stable government without turmoil and violence than to violate the law to win on any immediate, ephemeral political point.

Note that it is far better for any society that the government’s power rests more on the second pillar than on the first. Because so long as that pillar, of moral authority, of general fairness, of a general sense that the longterm interests of America are better served by adherence to government than to rebellion against it, the government will rarely, if ever, have to resort to the ultimate pillar of authority, which is physical, violent coercion.

Ace, “Sure Why Not: HHS Emails Sought by Congress To Determine Why Healthcare.gov Was Such a Catastrophe Are, Get This, Missing”, Ace of Spades H.Q., 2014-08-08.

July 16, 2014

New Zealand is considering breaking new legal ground in rape cases

Filed under: Law, Liberty — Tags: , , — Nicholas @ 08:36

And by “breaking new legal ground” I mean “beginning with a presumption of guilt” in all rape cases:

Fundamental pillars of the criminal justice system may be eroded whichever party wins the election this year, as both National’s and Labour’s proposals would look into changing the right to silence or the presumption of innocence in rape cases.

Both major parties claim the current system is not upholding justice for victims, and are looking at changes that would effectively make it easier for prosecutors to obtain convictions.

National wants to explore allowing a judge or jury to see an accused’s refusal to give evidence in a negative light, while Labour wants to shift the burden of proof of consent from the alleged victim to the accused.

Auckland University law professor Warren Brookbanks said both policies challenged two fundamental principles: the right to silence, and the presumption of innocence, which are both protected in the Bill of Rights Act.

New Zealand needs a third political alternative, as both of these parties are proposing to take away fundamental rights in pursuit of a higher conviction rate. Taking away the right to silence is bad, but getting rid of the presumption of innocence is equally bad:

Labour’s justice spokesman Andrew Little did not think the party’s proposal would lead to more innocent people being convicted.

“I don’t see why. You’re assuming that there is a propensity to lay false complaints. There is no evidence pointing to that.”

He said eroding the right to silence went too far, but Justice Minister Judith Collins said the same of Labour’s proposal.

“The presumption of innocence is fundamental to our justice system and our society. Requiring an accused person to prove their innocence would undoubtedly result in many injustices and wrongful convictions.”

A quick Google search for “false accusations in rape cases” turned up 4.3 million hits. Even the Wikipedia page on the subject (and Wikipedia editors tend to be pro-victim rather than pro-police) say that between 2% and 8% of all rape accusations are false. New Zealand’s “initiatives” in this area seem bound to create more injustice for the accused than improved justice for victims.

July 5, 2014

Did Rolf Harris face a kangaroo court?

Filed under: Britain, Law, Media — Tags: , , , , — Nicholas @ 09:59

I didn’t follow this particular case (or any of the recent British witch-hunting expeditions against former celebrities), but this post makes it seem as if at least some of the charges Harris was convicted of were remarkably flimsy:

Rolf Harris has been convicted and for many that is conclusive proof of his guilt. However, we should not forget that the British justice system is not perfect, it can make errors, as these high profile miscarriages of justice show.

I do not know if Rolf Harris committed the crimes he was accused of. However, I find the fact that he was convicted, based on the evidence reported by the BBC, alarming.

Let me explain why:

    COUNT ONE – VERDICT: GUILTY

    “The woman said she was aged seven or eight when she queued to get an autograph from Harris at a community centre in Hampshire in 1968 or 1969. When she reached the front of the queue, Harris had touched her inappropriately with his “big hairy hands”, she told the jury.

    The court heard that no evidence could be found that Mr Harris had been at the community centre. He also showed his hands to the jury and denied they were hairy.”

When they say that no evidence could be found that Mr Harris had been at the community centre, they don’t mean a cursory glance turned nothing up. They searched local newspaper archives between January 1967 and May 1974, council records and even conducted letter drops appealing for witnesses. Nothing, not a single piece of independent evidence that he was ever there!

It is hard to see how the uncorroborated recollection of an event alleged to have happened 45 years ago, when the witness was eight, can constitute proof beyond reasonable doubt.

On another count of which Harris has been found guilty by the court:

So the accuser couldn’t remember when it happened (or how old she was), she couldn’t remember where it happened and yet the jury found her 36 year old memory of the indecent assault to be evidence beyond a reasonable doubt!

When we talk about the indecent assault we are not talking about something so traumatic, like rape, that it would understandably be burned into her memory. We are talking about a 17 year old having her bottom touched in the 1970′s, a time where bottom pinching was considered mainstream enough for popular TV shows such as Are You Being Served and on billboards for respectable brands such as Fiat.

Again, nobody who wasn’t there can be sure what Rolf Harris did or didn’t do in this case, but I know that there is an £11m incentive for people to make up accusations and without any corroborating evidence there has to be a reasonable doubt in favour of the accused.

I have no idea whether Harris is actually guilty of the accusations, but I’m astonished a court could convict based on such flimsy evidence. Clearly, at least in high profile media-related cases, the presumption of innocence has been replaced by a presumption of guilt.

QotD: Collaborators and their accusers, France 1944

Filed under: Europe, History, Military — Tags: , , , , — Nicholas @ 00:01

The task of filtering the tens of thousands of Frenchmen and women arrested for collaboration in the summer of 1944 proved overwhelming for the nascent administration of de Gaulle’s provisional government. That autumn, there were over 300,000 dossiers still outstanding. In Normandy, prisoners were brought to the camp at Sully near Bayeux by the sécurité militaire, the gendarmerie and sometimes by US military police. There were also large numbers of displaced foreigners, Russians, Italians and Spaniards, who were trying to survive by looting from farms.

The range of charges against French citizens was wide and often vague. They included “supplying the enemy”, “relations with the Germans”, denunciation of members of the Resistance or Allied paratroopers, “an anti-national attitude during the Occupation”, “pro-German activity”, “providing civilian clothes to a German soldier”, “pillaging”, even just “suspicion from a national point of view”. Almost anybody who had encountered the Germans at any stage could be denounced and arrested.

Anthony Beevor, D-Day: The Battle for Normandy, 2009.

June 29, 2014

Freedom of (certain kinds of) political speech

Filed under: Law, Liberty, Politics, USA — Tags: , , , , , — Nicholas @ 10:04

Mark Steyn explains why it’s not a trivial thing to allow the Internal Revenue Service to operate as the financial wing of a political party:

… we’ve had a steady stream of emails from readers explaining that this is all well and good but it’s taxable income and what I really need to do is set up a 501(c)3 or 501(c)4 or 501(c)87 or some such as a vehicle for this campaign.

To which the answer is: well, we certainly considered the possibility, and a few years ago I might have entertained the notion. But not anymore. The National Organization for Marriage, which was founded to protect the pre-revisionist definition of marriage, is, in its various arms, both a 501(c)3 and a 501(c)4. As such, its tax returns are publicly available, but not its donor lists. Nevertheless, it is obliged to report its donors on Schedule B to the Internal Revenue Service. Someone at the IRS leaked the donor lists to a man called Matthew Meisel, a gay activist in Boston. Meisel in turn passed it on to the gay group Human Rights Campaign (whose president was a national co-chair of the Obama re-election campaign), and HRC in turn published the list of donors, which was subsequently re-published by The Huffington Post.

There’s no secret about why they’d do such a thing. As we know, if you disagree with progressive orthodoxy, you have no right to host a cable-TV home-decor show or give a commencement address at an American university or be a beauty-queen contestant. But that’s not enough for these groups. If you’re not a public figure, if you’re just a Californian who puts up a yard sign or a bumper sticker on Proposition Eight, your car will be keyed and your house defaced. And likewise, if you slip a check in the mail for a modest sum, it is necessary that you also be made an example of. Brandon Eich, Richard Raddon and Scott Eckern all lost prominent positions as chief executives because of their donations. But Marjorie Christoffersen, a 67-year-old Mormon who works in the El Coyote restaurant in Los Angeles, was forced to quit because she wrote a $100 check in support of Proposition Eight.

So, when it comes to the leaking of donor lists, we’re not dealing with anything “theoretically” or “potentially” “troubling”. These guys act on this information, and act hard, and they are willing to destroy your life for a hundred bucks.

This is nothing to do with whether you support or oppose same-sex marriage. This is about whether you support free speech, public advocacy, private advocacy and ultimately — one day soon — the sanctity of the ballot box, and whether you oppose a culture of partisan thuggery.

So how did leaking the National Organization for Marriage donor lists work out for the IRS? Well, after a two-year legal battle, the Government of the United States admitted wrongdoing and agreed to settle. For $50,000.

After two years in the toilet of American “justice”, I can tell you that 50 grand barely covers your tips to the courthouse washroom attendant. It’s nothing. The IRS budget is over $11 billion, so you figure out how many organizations’ donor lists they can leak for 50K a pop while still keeping it under “Miscellaneous” in the annual breakdown. $50,000 isn’t even a slap on the wrist — and this notwithstanding that the IRS, as it has in the Lois Lerner case, obstructed and lied, almost laughably: For example, they claimed that the leak was an inadvertent error by a low-level clerk called Wendy Peters in March 2011. But in February 2011 Mr Meisel, the gay activist, was already letting it be known that he had a source who could get him the info.

As in the Lerner case, the inconsistencies and obfuscations were irrelevant. Like Ms Lerner, Mr Meisel took the Fifth. The NOM asked the Department of Justice to grant Meisel immunity so that he could be persuaded to disclose what really happened. But Eric Holder’s corrupt Justice Department had already decided it wasn’t going to investigate the matter so it had no reason to grant Meisel immunity. The Fifth Amendment, a constitutional safeguard to protect the citizen against the state in potentially criminal matters, is being creatively transformed to protect the state against the citizens in matters for which a corrupt and selective Justice Department will never bring criminal prosecution.

So, when it comes to leaking confidential taxpayer information for partisan advantage, the IRS got away with it.

May 22, 2014

Dickens 2.0 – debt prisons of the 21st century

Filed under: Law, USA — Tags: , , , , — Nicholas @ 00:01

At Outside the Beltway, James Joyner calls attention to the widespread practice of sending minor offenders to prison for failing to pay minor fines:

NPR’s “Morning Edition” has been running a series called “Guilty and Charged,” chronicling the plight of Americans forced to go to jail because they’re unable to pay the court fees and fines associated with very minor infractions. The Supreme Court ostensibly outlawed the practice three decades ago but left the determination as to whether defendants are truly to poor to pay or simply unwilling to trial court judges. Not shockingly, perhaps, they almost invariably presume the latter.

You can listen to Tuesday’s segment, “Unpaid Court Fees Land The Poor In 21st Century Debtors’ Prisons,” at the link. Unfortunately, they only have the audio and not a transcription. Aside from what I’ve already written in the introduction above, what really stood out to me was the sheer contempt judges displayed to indigent defendants. Despite being highly educated professionals supposedly trained in the law and selected for their ability to dispassionately way evidence and reach just results, those featured on the program were positively knee-jerk and sneering. It was as if they’d plucked some random yahoo from a Denny’s, dressed him in a black robe, and had him preside over the trial.

Today’s follow-up, “Supreme Court Ruling Not Enough To Prevent Debtors’ Prisons,” was if anything more infuriating. It dove deep into the case of Kyle Dewitt, an Iraq War vet who went to jail and got caught up in an unending series of problems with the law over catching the wrong species of bass at the wrong time of year.

[…]

I’ve long been of mind that we ought to do away with fines as a means of punishment altogether. Whether paying $150 for exceeding the speed limit (almost always some nominal fine for the offense and a much higher amount for “court costs,” owed even if one just mails in the fine and never goes to court) is a deterrent depends entirely on one’s financial circumstances. It was a big deal when I was in college; it’s a nuisance now. Further, those with the means will often spend far more than the fine plus court costs to hire an attorney to plead it to an offense that doesn’t come with points that go against their license or their insurance record. It’s incredibly inequitable.

May 8, 2014

Weighty injustice

Filed under: Law, USA — Tags: , , — Nicholas @ 08:30

Scott Greenfield discusses something most of us have never given any though to:

In a New York Times op-ed. former AUSA turned Minnesota lawprof Mark Osler did a mitzvah by explaining the game played in drug sentencing. After noting some of the problems recently raised about mandatory minimums, the pardon game and absurdly long Guidelines sentences, he goes on:

    Unfortunately, none of this addresses a very basic underlying problem: We continue to use the weight of narcotics as a proxy for the culpability of an individual defendant, despite this policy’s utter failure. If a kingpin imports 15 kilograms of cocaine into the country and pays a trucker $400 to carry it, they both face the same potential sentence. That’s because the laws peg minimum and maximum sentences to the weight of the drugs at issue rather than to the actual role and responsibility of the defendant. It’s a lousy system, and one that has produced unjust sentences for too many low-level offenders, created racial disparities and crowded our prisons.

[…]

But when a person is prosecuted based upon an arbitrary distinction, that he carried a certain number of grams of dope (because we can all distinguish between the weight of 7 grams and 8, right?) it should reflect a significant difference in crime and sentence.

[Radley Balko] goes on to discuss a related, but separate, issue, that drug weight is aggregate rather than pure. In other words, ten kilos of cocaine can contain 9 kilos of baby laxative, cut as it’s called in the trade, and only one of active narcotic, but it’s still ten kilos for the purpose of charging and sentence. This is a policy decision, that the purity of the drug is not considered, even though it tells a great deal about where the defendant is on the food chain of drugs. The higher the purity, the higher on the food chain, as drugs get “stepped on,” or diluted, at each level down the chain.

This applies even with less applicable concepts, such as marijuana, where the weight of stalks and stems of seized marijuana plants can be included in aggregate weight even though they are useless as drugs. The message is, you pay by the pound, regardless. It simplified the police and prosecutorial function, even as it undermines any doctrinal justification for the charge and sentence.

April 27, 2014

The state of the US judicial system

Filed under: Law, Liberty, USA — Tags: , , , , — Nicholas @ 00:01

In a column about Mark Steyn’s legal battles with Michael Mann, Conrad Black takes time out to revisit the overall state of the US court system:

… American justice is in a shocking condition. Too many judges in the U.S. are elected; too many are ex-prosecutors; the battle over capital punishment has taken all the air out of the room in which the infamous severity of American sentences and the unspeakable lopsidedness of prosecutorial success should be debated. This is a country that inspired the world with a vision of freedom and democracy (though Great Britain, Switzerland, much of the Netherlands, and Scandinavia were just as democratic at the time of the American Revolution). Yet the entire legal apparatus has sat like a gigantic suet pudding and the Supreme Court, in between its four-month vacations, has drunk the Kool-Aid of its own bathwater. The Fifth, Sixth, and Eighth Amendment guaranties of due process, just compensation for seizure of property, grand jury deliberations as assurance against capricious prosecution, prompt justice, access to counsel (of choice), impartial jury, and reasonable bail have been put to the shredder. The United States has six to twelve times the number of incarcerated people per capita as Australia, Canada, France, Germany, Japan, and the United Kingdom, the nearest comparable countries. Even after removing from the totals all those with unstigmatizing records irrelevant to their hireability today (DUI or disorderly conduct decades ago, for example), about 15 percent of adult males are felons.

Prosecutors win 99.5 percent of their cases, 97 percent of them without trial, because of the plea bargain system, which has often been reduced to a sleazy extortion or subornation of confected and rehearsed inculpatory testimony in exchange for immunities, including from the perjury sponsored and approved by the prosecutors. This is far from what was intended by the authors of the Bill of Rights and the original propagators of the tenuous theory that American independence was a new order of the ages and the dawn of government of, by, and for the people, vested with inalienable rights, according to self-evident truths.

Beyond all that, the American legal profession is a suffocating cartel that saps 10 percent of American GDP and through its members in legislatures and regulatory authorities adds 4,000 statutes and regulations a year to the law books, steadily tightening its strangulation of American life, all and always in the name of a society of laws and the ever more equitable refinement of civilization. It would have been impossible and unreasonable to anticipate that so perceptive and spontaneous and fearless an observer as Steyn would not steadily broaden his range of fire, as he has. At one point Steyn began filing motions on his own behalf—the best written court documents you may ever read—that drip with disdain for the judicial process. He quotes Lady MacBeth and describes various pieces of the case using phrases such as “multi-car pileup,” “zombie-like,” “Potemkin hearing” and “meretricious folderol.” It would have been equally unreasonable not to foresee that the authorities upon whom his withering fire descended would not resent this deserved if unaccustomed hostility, and whatever one may think of Mann, he cannot be faulted tactically for trying to tuck himself under the wing of an affronted legal establishment. That does not justify Mann’s infliction of the hockey stick upon the world (like the great Montreal Canadiens point-man Bernard “Boom Boom” Geoffrion lowering — with considerable but probably not sufficient provocation — the real article onto the cranium of a New York Ranger forward sixty years ago) any more than it whitewashes Mann’s own insults. He has dismissed the immensely respected Danish scientist and intellectual Bjorn Lomborg as “a career fossil fuel industry apologist”; Judith Curry, co-editor of the Encyclopedia of Atmospheric Sciences and an honored member of the National Research Council’s climate research committee, as a “serial climate disinformer”; Australian journalist Andrew Bolt as a “villainous” threat to the planet who is paid by Rupert Murdoch “to lie to the public” (Mann apologized for this one after Bolt—in solidarity with Steyn—threatened a lawsuit); and the rest of us as mere “climate change deniers.”

Older Posts »
« « Twerking to Dvořák| Gerrymandering » »

Powered by WordPress