November 14, 2015

The US government has morphed from being part of “us” to being “them”

Filed under: Bureaucracy, Government, History, Liberty, USA — Tags: , , , , — Nicholas @ 04:00

Charles Murray explains why so many Americans are feeling alienated from their own government:

I have been led to this position by what I believe to be a truth about where America stands: The federal government is no longer “us” but “them.” It is no longer an extension of the people through their elected representatives. It is no longer a republican bulwark against the arbitrary use of power. It has become an entity unto itself, separated from the American people and beyond the effective control of the political process. In this situation, the foundational principles of our nation come into play: The government does not command the blind allegiance of the citizenry. Government is instituted to protect our unalienable rights. The more destructive it becomes of those rights, the less it can call upon our allegiance.

I won’t try to lay out the whole case for concluding that our duty of allegiance has been radically diminished — that takes a few hundred pages. But let me summarize the ways in which the federal government has not simply become bigger and more intrusive since Bill Buckley founded National Review, but has also become “them,” and no longer an extension of “us.”


In 1937, Helvering v. Davis explicitly held that the federal government could spend money on the “general welfare,” establishing that the government’s powers were not limited to those enumerated in the Constitution. In 1938, Carolene Products did what the Ninth Amendment had been intended to prevent — it limited the rights of the American people to those that were explicitly mentioned in the Constitution and its amendments. Making matters worse, the Court also limited the circumstances under which it would protect even those explicitly named rights. In 1942, Wickard v. Filburn completed the reinterpretation of “commerce” so that the commerce clause became, in the words of federal judge Alex Kozinski, the “Hey, you can do anything you feel like” clause.

Momentous as these decisions were, they were arguably not as crucial to the evolution of the federal government from “us” to “them” as the decisions that led to the regulatory state. Until the 1930s, a body of jurisprudence known as the “nondelegation doctrine” had put strict limits on how much power Congress could delegate to the executive branch. The agencies of the executive branch obviously had to be given some latitude to interpret the text of legislation, but Congress was required to specify an “intelligible principle” whenever it passed a law that gave the executive branch a new task. In 1943, National Broadcasting Co. v. United States dispensed with that requirement, holding that it was okay for Congress to tell the Federal Communications Commission (FCC) to write regulations for allocating radio licenses “as public convenience, interest, or necessity requires” — an undefined, and hence unintelligible, principle. And so we now live in a world in which Congress passes laws with grandiose goals, loosely defined, and delegates responsibility for interpreting those goals exclusively to regulatory agencies that have no accountability to the citizenry and only limited accountability to the president of the United States.

The de facto legislative power delegated to regulatory agencies is only one aspect of their illegitimacy. Citizens who have not been hit with an accusation of a violation may not realize how Orwellian the regulatory state has become. If you run afoul of an agency such as the FCC and want to defend yourself, you don’t go to a regular court. You go to an administrative court run by the agency. You don’t get a jury. The case is decided by an administrative judge who is an employee of the agency. You do not need to be found guilty beyond a reasonable doubt, but rather by the loosest of all legal standards, a preponderance of the evidence. The regulatory agency is also free of many of the rules that constrain police and prosecutors in the normal legal system. For example, regulatory agencies are not required to show probable cause for getting a search warrant. A regulatory agency can inspect a property or place of business under broad conditions that it has set for itself.

There’s much more, but it amounts to this: Regulatory agencies, or the regulatory divisions within cabinet agencies, operate as self-contained entities that create de facto laws that Congress would never have passed on an up-or-down vote. They then act as both police and judge in enforcing the laws they have created. It amounts to an extra-legal state within the state.

I have focused on the regulatory state because it now looms so large in daily life as to have provoked a reaction that crosses political divides: American government isn’t supposed to work this way.

October 17, 2015

Ken White of Popehat.com Talks Blogging, Anonymous Speech

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

Published on 13 Oct 2015

Ken White, founder of the influential group blog Popehat, tells FIRE how he got interested in the First Amendment and discusses anonymous speech on the Internet.

White, who writes for Popehat on a variety of issues, including the First Amendment, criminal justice, and the legal system, said a college project at Stanford University “during … one of the upsurges of controversy on campus about speech codes and speech issues,” opened his eyes to the nuances of the First Amendment.

“I wound up doing my senior honors thesis in college with a law school professor on the subject of legal restrictions on hate speech,” White said. “I thought it was very much emblematic of a very American problem, and that is: How do we express our disapproval — our moral disapproval — for bad things like bigotry, while not restricting liberties?”

Popehat seems to be a space created to do exactly that. The forum has evolved into a blog the contributors describe as a “group complaint” about “whatever its authors want.”

That freedom hasn’t always come so easily for White, who blogged anonymously for more than five years due to concerns his honest blogging might harm his career. He still thinks anonymous speech provides both benefits and drawbacks.

“I think the right to anonymous speech is very central in the First Amendment and in American life,” said White. “Throughout American history, people have said unpopular things, incendiary things, politically dangerous things behind the shield of anonymity. A lot of bad things come with that. There’s some really terrible, immoral, anonymous behavior on the Internet.”

White said there’s also a risk to writing anonymously, and that even while he benefitted from posting behind the security of an online persona, he supports the rights of others to try and discover his true identity. Eventually, White said he gave up the pretext and started blogging under his own name.

For more from White, including why free speech “catchphrases” harm First Amendment discourse, watch the above video.

July 14, 2015

QotD: Lenin’s moment of clarity

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

There is not very much good to say about the life and career of Vladimir Lenin, but give the pickled old monster this much: He cut through more than two centuries’ worth of bull and straight to the heart of all politics with his simple question: “Who? Whom?” Which is to say: Who acts? Who is acted upon? Even here in the land of the free, meditating upon that question can be an uncomfortable exercise.

The foundation of classical liberalism, and of the American order, is not the rule of law, a written constitution, freedom of speech and worship, one-man/one-vote democracy, or the Christian moral tradition — necessary as those things are. The irreplaceable basis for a prosperous, decent, liberal, stable society is property. Forget Thomas Jefferson’s epicurean flourish — John Locke and the First Continental Congress had it right on the first go-round: “Life, liberty, and property.” Despite the presence of the serial commas in that formulation, these are not really three different things: Perhaps we should render the concept “lifelibertyproperty” the way the physicists write about “spacetime.”

Kevin D. Williamson, “Property and Peace”, National Review, 2014-07-20.

July 13, 2015

Do photographers have any rights left?

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

I no longer do much in the way of “serious” photography (my digital SLR has been out of service for a couple of years now), but I still occasionally do a bit of cellphone photography when the occasion arises. On the byThom blog, Thom Hogan provides a long (yet not exhaustive) list of things, places, and people who are legally protected from being photographed in various jurisdictions … and it gets worse:

Funny thing is, smartphones are so ubiquitous and so small, many of those bans just aren’t enforceable against them in their natural state (e.g., without selfie stick), especially if they’re used discriminatingly.

I’m all for privacy, but privacy doesn’t exist in public spaces as far as I’m concerned. Indeed, I’d argue that even in private spaces (malls, for example), that if you’re open for and soliciting business to the public, you’re a public space. As for Copyright, placing artwork in open public spaces (e.g. Architecture) probably ought to convey some sort of Fair Use right to the public, though in Europe we’re seeing just the opposite start to happen. FWIW, I no longer visit and thus don’t photograph in two countries because of national laws regarding photography. Be careful what you wish for, Mr. Bureaucracy; laws often have unintended consequences. As in reducing my interest in visiting your country.

About half of this site’s readers actively practice some form of travel photography, either during vacations or while traveling for business. Note how many of the restrictions on photography start to apply against those that are traveling (locally or farther afield). It’s always easy to impose laws on people who don’t vote for you. it’s why rental car and hotel room taxes are so high, after all.

What prompted this article, though, wasn’t any of the latest photography ban talk, though. Here in Pennsylvania we have fairly restrictive regulations on “recording” another person (e.g. conversations, phone calls, meetings, etc.). In some states, it only takes one party to consent for a recording to be legal. Here in Pennsylvania it takes all parties to consent to being recorded.

H/T to Clive for the link.

June 14, 2015

More on that Reason grand jury subpoena

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

At the Foundation for Economic Education, Ryan Radia discusses the free-speech-quashing subpoena issued by a federal prosecutor in New York state:

In late May, Judge Katherine Forrest, who sits on the US District Court for the Southern District of New York, sentenced Ulbricht to life in prison. This sentence was met with mixed reactions, with many commentators criticizing Judge Forrest for handing down what they perceived as an exceedingly harsh sentence.

A few Reason users, some of whom may have followed Reason’s extensive coverage of the fascinating trial, apparently found Ulbricht’s sentence especially infuriating.

One commenter argued that “judges like these … should be taken out back and shot.” Another user, purporting to correct the preceding comment, wrote that “it’s judges like these that will be taken out back and shot.” A follow-up comment suggested the use of a “wood chipper,” so as not to “waste ammunition.” And a user expressed hope that “there is a special place in hell reserved for that horrible woman.”

Within hours, the office of Preet Bharara, the US Attorney for the Southern District of New York, sent Reason a subpoena for these commenters’ identifying information “in connection with an official criminal investigation of a suspected felony being conducted by a federal grand jury.”

This doesn’t mean a grand jury actually asked about the commenters; instead, in federal criminal investigations, it’s typically up to the US Attorney to decide when to issue a subpoena “on behalf” of a grand jury.


Even if this subpoena is valid under current law — more on that angle in a bit — the government made a serious mistake in seeking to force Reason to hand over information that could uncover the six commenters’ identities.

Unless the Department of Justice is investigating a credible threat to Judge Forrest with some plausible connection to the Reason comments at issue, this subpoena will serve only to chill hyperbolic — but nonetheless protected — political speech by anonymous Internet commenters.

March 10, 2015

Magna Carta in the modern world

Filed under: Britain, Cancon, Government, History, Liberty, USA — Tags: , , , , — Nicholas @ 04:00

Mark Steyn talks about the decline in state observance (and in David Cameron’s case, even awareness) of the significance of Magna Carta:

Real rights are like Magna Carta: restraints on state power. Too many people today understand the word “rights” to mean baubles and trinkets a gracious sovereign bestows on his subjects — “free” health care, “free” community college, “safe spaces” from anyone saying anything beastly — all of which require a massive, coercive state regulatory regime to enforce.

But, to give it is full name, Magna Carta Libertatum (my italics – I don’t think they had ’em back then) gets it the right way round. It was in some respects a happy accident. In 1215, a bunch of chippy barons were getting fed up with King John. In those days, in such circumstances, the malcontents would usually replace the sovereign with a pliable prince who’d be more attentive to their grievances. But, having no such prince to hand, the barons were forced to be more inventive, and so they wound up replacing the King with an idea, and the most important idea of all — that even the King is subject to the law.

In this 800th anniversary year, that’s a lesson worth re-learning. Restraints on state power are increasingly unfashionable among the heirs to Magna Carta: in America, King Barack decides when he wakes up of a morning what clauses of ObamaCare or US immigration law he’s willing to observe or waive according to royal whim; his heir, Queen Hillary, operates on the principle that laws are for the other 300 million Americans, not her. In the birthplace of Magna Carta, a few miles from that meadow at Runnymede, David Cameron’s constabulary leans on newsagents to cough up the names and addresses of troublesome citizens who’ve committed the crime of purchasing Charlie Hebdo.

The symbolism was almost too perfect when Mr Cameron went on TV with David Letterman, and was obliged to admit that he had no idea what the words “Magna Carta” meant. Magna Carta Libertatum: The Great Charter of Liberty. I’m happy to say Mr Cameron’s Commonwealth cousins across the Atlantic in Ottawa are more on top of things: One of the modestly heartening innovations of Stephen Harper’s ministry is that, when immigrants to Canada take the oath of citizenship, they’re given among other things a copy of Magna Carta.

Why? Because everything flows therefrom — from England’s Glorious Revolution to the US Constitution and beyond. It’s part of the reason why the English-speaking world, in contrast to Continental Europe, has managed to sustain its freedoms across the generations.

On the topic of Cameron’s inability to say what Magna Carta translates to in English, Richard Anderson is convinced it was a deliberate ploy by Cameron to downplay his (expensive) educational background:

A Prime Minister of the United Kingdom, a graduate of Eton and Brasenose no less, no more forgets stuff like this then he forgets his wife’s name or his archenemy’s personal weaknesses. He flubbed it on purpose. Boris Johnson, the rather eccentric Tory mayor of London, figured out Davy pretty much from the start:

    Johnson, a classics scholar, said: “I think he was only pretending. I think he knew full well what Magna Carta means. It was a brilliant move in order to show his demotic credentials and that he didn’t have Latin bursting out of every orifice.”

A bit of context is required here. Since the Roman Empire went the way of all flesh Latin has been the language of the European elite. At first this was for practical purposes. For centuries any useful knowledge that had survived after the fall of the Empire in the west was in either in Latin or Greek. But long after Gutenberg, whose revolution made the vernacular languages of Europe important stores of knowledge, Latin remained the mark of a gentleman.


Mr Cameron is a graduate of Eton, an Old Etonian as they say. What is Eton? It makes Upper Canada College look like a cheap poseur. It is a super private high school that has produced nineteen of Britain’s fifty-three Prime Ministers. Harvard has produced a mere eight American Presidents. The University of Toronto a corporal’s guard of four Canadian PMs. Harold Macmillan, Britain’s snottiest modern PM, once derisively quipped that Mrs Thatcher’s cabinet had more Estonians than Etonians. A meritocratic break from an aristocratic past. At least it seemed at the time. Cameron’s particular team of rivals is decidedly Toff heavy. His Chancellor of the Exchequer, George Osborne, is a descendant of Henry III and his father was a baronet.

And what distinguishes the education of a Toff, even in these fallen times, is a sprinkling of Latin. Two millennia after the Romans decided the British Isles, or at least the warmer bits of it, were worth conquering the language of Cicero is still the mark of the Great and Good. Boris Johnson was perfectly correct. David Cameron almost certainly knew what Magna Carta meant. He was pandering to the lowest common denominator by pretending not to know.

But knowing the meaning of the name of the foundational document of British liberty, and by extension the liberty of the English speaking peoples, isn’t quite like being able to translate Virgil from the original into the Greek. It’s not specialized knowledge and should never be seen as such. This is what every schoolboy should and did know until the day before yesterday. That the Prime Minister of the day should think it politically advantageous to pretend not to know basic historical information is a chilling thought. That he was pandering was disgraceful but hardly shocking. That such pandering would be successful is a condemnation of modern Britain as severe as anything found in the works of Anthony Daniels.

There is stooping to conquer and then there is surrendering to the modern Vandals. David Cameron is the man holding the gate wide open.

March 7, 2015

QotD: The “true meaning” of Starship Troopers

Filed under: Books, Liberty, Media, Military, Quotations — Tags: , , — Nicholas @ 01:00

The central theme is expanded in many ways and many sub-propositions consistent with or corollary to the main one are shown: (a) that nothing worth having is ever free; it must be paid for; (b) that authority always carries with it responsibility, even if a man tries to refuse it; (c) that “natural rights” are not God-given but must be earned; (d) that, despite all H-bombs, biological warfare, push-buttons, ICBMs, or other Buck Rogers miracle weapons, victory in war is never cheap but must be purchased with the blood of heroes; (e) that human beings are not potatoes, not actuarial tables, but that each one is unique and precious … [sic] and that the strayed lamb is as precious as the ninety-and-nine in the fold; (f) that a man’s noblest act is to die for his fellow man, that such death is not suicidal, not wasted, but is the highest and most human form of survival behaviour.

Robert A. Heinlein, letter to Alice Dalgliesh 1959-02-03 (but marked “Never Sent”), quoted in William H. Patterson Jr., Robert A. Heinlein, In Dialogue with His Century Volume 2: The Man Who Learned Better, 2014).

March 3, 2015

Sure, Molon Labe, whatever … but talk is cheap

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

At Ace of Spades H.Q., WeirdDave explains why it’s easy to talk about resisting illegal actions by the government, but few would really be willing to bear the cost:

In 480BC, Xerxes of Persia demanded that the Greeks under King Leonidas of Sparta surrender their weapons. King Leonidas responded with a laconic Molon labe, which translates as “Come and take them” and a legend was born. Even though the Greeks lost the Battle of Thermopylae that followed, King Leonidas’ stirring phrase has echoed with defiance down through history. The phrase has a rich history in America, too. From Fort Morris, Georgia, to Gonzales, Texas to Second Amendment defenders today, “Come and Take It” resonates in American hearts.

With the disturbing news this week about BATF’s attempt to ban M855 NATO Ball ammunition, the internet has been alive with people swearing fealty to the idea of molon labe. I approve. However, talk is cheap they say, and internet talk is cheaper than most. Anyone who considers themselves a patriot needs to take a good long moment of quiet reflection and ask themselves, honestly, what does molon labe mean? More specifically, they need to ask themselves what are the ramifications of defiantly proclaiming “Come and take them” if the authorities say “OK”.

The ramifications are simple: YOU ARE GOING TO DIE.

This isn’t universally true, of course, but in order for molon labe to mean anything, in order for it to be effective, you have to accept that it IS true. If we ever get to the point where the authorities are attempting to forcibly disarm the population at large, the only way to prevent it from happening is to meet force with force. If it comes to this, you will lose. Every time. Even if you are armed, ready, and respond instantly to aggression by the authorities, there are a whole lot more of them than there are of you. You might kill one, or even several, but they will keep coming and they will bring resources to bear that you can not hope to match. Officers. SWAT teams. Snipers. Air cover. Drones. They WILL take you down, and that’s not all. No, you have to accept something else too:


Think I’m talking crazy talk? Ask Vicki Weaver. Ask Sammy Weaver. I’ll wait.

February 16, 2015

Even if you do nothing, you can still be arrested for “resisting arrest”

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

We’ve seen examples of this before, but if the NYPD gets its way, the all-purpose charge of “resisting arrest” will become a felony offense:

The most half-baked “weapon” in any policeman’s arsenal should never be raised to the level of a felony. “Resisting arrest” is the charge brought when bad cops run out of better ideas. This truism runs through nearly every law enforcement agency in the country. When you take a look at videographers and photographers who have been arrested for exercising their First Amendment rights (and backed by a DOJ statement), you’ll see plenty of “resisting arrest” charges.

When a San Francisco public defender tried to head off a detective who wanted to question and photograph her client without her permission, she was arrested for “resisting arrest.”

When someone has been brutalized by the police, the words “resisting arrest” are repeated nearly as frequently as the mantra that accompanies every taser deployment and baton swing (“stop resisting”). Resisting arrest is a dodge that makes bad cops worse and marginal cops bad.

Turning resisting arrest into a felony shouldn’t happen anywhere. But perhaps especially not in New York City.


To turn this into a felony is to grant bad cops a longer leash — and allows them to do much more damage. Not only will the victims of excessive force have to deal with injuries and psychological trauma, they may also find their futures severely disrupted by a felony charge that will follow them around for years.

The protests following the clearing of the officer involved in Eric Garner’s death, followed shortly thereafter by the murder of two NYPD officers by a civilian, have turned the NYPD against the public. Bratton’s support of this abhorrent idea makes it clear he’s willing to put more power in the hands of his worst officers. However bad he feels the situation is now, this action will only make things worse. The answer lies in greater accountability from the NYPD, not additional punishments for members of the public.

January 31, 2015

If nothing else, you can be arrested for “resisting arrest”

Filed under: Law, Liberty, USA — Tags: , , , , — Nicholas @ 10:25

This is a rather amazing little scene that was played out in San Francisco:

Published on 28 Jan 2015

Public Defender Jami Tillotson was unlawfully arrested at the San Francisco Hall of Justice on Tuesday, January 27, 2015 by officers of the San Francisco Police Department

Techdirt‘s Tim Cushing has the story:

As an American citizen, you can always refuse to answer questions, especially when you’re not in custody. Easier said than done, though, which is why the option of referring law enforcement to a lawyer is always on the table. Of course, police officers will try to avoid this possiblity, usually by framing the questioning as an innocuous, purely voluntary chat. They get irritated, though, when people realize this and tell them to talk to their lawyer or continually ask if they’re free to go.

So, while Tillotson’s attempt to defend her client from questioning related to a different crime may not have fallen under guaranteed Sixth Amendment protections, her willingness to protect her client from additional police questioning certainly falls within the bounds of what she (and her client) are legally allowed to do in a situation like this (i.e., “Talk to my lawyer.”)

But the police weren’t interested in speaking to a lawyer. They wanted to take pictures and ask questions without the “interference” of someone who knew how the system works. So, they arrested her for resisting arrest — which, as the video shows, she was very clearly NOT DOING BEFORE, AFTER OR DURING THE ARREST.

Tillotson objected to the arrest, but she placed her hands behind her back and allowed police to cuff her. She never struggled or otherwise impeded the officers in their duty — which was [WARNING: circular reasoning ahead] TO ARREST HER FOR RESISTING ARREST.

It’s a mindbending, oxymoronic, ugly display of force, where might = right and anyone standing in the way of an investigation needs to GTFO. With cuffs.

January 12, 2015

The oldest game … as a video game

Filed under: Business, Cancon, Law, Liberty — Tags: , , , , , — Nicholas @ 02:00

Elizabeth Nolan Brown on an interesting video game in development:

First, choose your city: Toronto, Vancouver, or Montréal. Next, decide whether avatar Andrea (Andréa, if you chose Montreal) will work on the streets, in a massage parlor, or as an escort. Then try to get screwed literally without being figuratively fucked by the cops—an ultimately no-win situation when it comes to The Oldest Game. Developed by a team of Canadian academics, the project is meant to highlight how the country’s new prostitution law, C-36, makes life more difficult and dangerous for Canadian sex workers.

The law, which took effect in December 2014, “continues to criminalize various aspects of sex work, often removing safeguards and strategies that place sex workers in dangerous situation, placing at risk the very vulnerable people the bill ostensibly exists to protect,” note the game’s creators.

    Through various encounters with clients, colleagues and law enforcement in three difference Canadian cities, players will experience how the legislation changes the way sex workers live and work, and play through the additional challenges sex workers will face when trying to remain safe.

Sandra Gabriele, a Concordia communications professor and one of the project’s co-leads, is interested in using games as a form of journalism.

Published on 10 Dec 2014

On December 6th 2014 (the National Day of Remembrance and Action on Violence Against Women in Canada), Bill C-36 officially came into force. Replacing Canada’s previous laws on sex work, which were struck down as unconstitutional on On December 20th, 2013, the new bill have drawn a great deal of criticism for placing sex workers at even greater risk than they faced under the old legislation. The Oldest Game, a newsgame about sex work developed at Concordia University in Montreal QC, demonstrates how Bill C-36 will impact the lives of sex workers in Canada. Developed by Lisa Lynch, Sandra Gabriele, Amanda Feder, Martin Desrosiers, Stephanie Goddard, Ben Spencer, Esther Splett and Natalie Zina Walschots. Follow is on Twitter at @The OldestGame and visit our website, http://www.theoldestgame.com !

January 1, 2015

It’s. Just. Wrong. Period.

Filed under: Law, Liberty, Military, USA — Tags: , , — Nicholas @ 02:00

Jacob Sullum on the always-hot-button topic of state torture:

In an interview on Sunday, NBC’s Chuck Todd asked former Vice President Dick Cheney if he was “OK” with the fact that a quarter of the suspected terrorists held in secret CIA prisons during the Bush administration “turned out to be innocent.” Todd noted that one of those mistakenly detained men died of hypothermia after being doused with water and left chained to a concrete wall, naked from the waist down, in a cell as cold as a meat locker.

Cheney replied that the end — to “get the guys who did 9/11” and “avoid another attack against the United States” — justified the means. “I have no problem as long as we achieve our objective,” he said.

Charles Fried, a Harvard law professor who served as solicitor general during the Reagan administration, and his son Gregory, a philosophy professor at Suffolk University, offer a bracing alternative to Cheney’s creepy consequentialism in their 2010 book Because It Is Wrong. They argue that torture is wrong not just when it is inflicted on innocents, and not just when it fails to produce lifesaving information, but always and everywhere.

That claim is bolder than it may seem. As the Frieds note, most commentators “make an exception for grave emergencies,” as in “the so-called ticking-bomb scenario,” where torturing a terrorist is the only way to prevent an imminent explosion that will kill many people. “These arguments try to have it both ways,” they write. “Torture is never justified, but then in some cases it might be justified after all.” The contradiction is reconciled “by supposing that the justifying circumstances will never come up.”

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 12, 2014

Supreme Court swings and misses on cellphone privacy ruling

Filed under: Cancon, Law, Liberty — Tags: , , , , — Nicholas @ 07:00

Michael Geist on the most recent Supreme Court of Canada ruling on the ability of the police to conduct warrantless searches of cellphones taken during an arrest:

The Supreme Court of Canada issued its decision in R. v. Fearon today, a case involving the legality of a warrantless cellphone search by police during an arrest. Given the court’s strong endorsement of privacy in recent cases such as Spencer, Vu, and Telus, this seemed like a slam dunk. Moreover, the U.S. Supreme Court’s June 2014 decision in Riley, which addressed similar issues and ruled that a warrant is needed to search a phone, further suggested that the court would continue its streak of pro-privacy decisions.

To the surprise of many, a divided court upheld the ability of police to search cellphones without a warrant incident to an arrest. The majority established some conditions, but ultimately ruled that it could navigate the privacy balance by establishing some safeguards with the practice. A strongly worded dissent disagreed, noting the privacy implications of access to cellphones and the need for judicial pre-authorization as the best method of addressing the privacy implications.

The majority, written by Justice Cromwell (joined by McLachlin, Moldaver, and Wagner), explicitly recognizes that cellphones are the functional equivalent of computers and that a search may constitute a significant intrusion of privacy. Yet the majority cautions that not every search is a significant intrusion. It ultimately concludes that there is the potential for a cellphone search to be intrusive, it does not believe that that will be the case in every instance.

Given that conclusion, it is prepared to permit cellphone searches that are incident to arrest provided that the law is modified with some additional protections against invasion of privacy. It proceeds to effectively write the law by creating four conditions: a lawful arrest, the search is incidental to the arrest with a valid law enforcement purpose, the search is tailored or limited to the purpose (i.e., limited to recent information), and police take detailed notes on what they have examined and how the phone was searched.

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.”

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