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 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.”

September 12, 2014

When the government steals, they call it “civil forfeiture”

Filed under: Law, Liberty, USA — Tags: , , , , — Nicholas @ 08:53

In Forbes, Jacob Sullum explains the amazingly lenient rules in most states for the government to steal your property:

Three key features of civil forfeiture law give cops this license to steal:

The government does not have to charge you with a crime, let alone convict you, to take your property. Under federal law and the laws of many states, a forfeiture is justified if the government can show, by a preponderance of the evidence, that it is connected to a crime, typically a drug offense. That standard, which amounts to any probability greater than 50 percent, is much easier to satisfy than proof beyond a reasonable doubt, the standard for a criminal trial. Some states allow forfeiture based on probable cause, a standard even weaker than preponderance of the evidence.

The burden of proof is on you. Innocent owners like Mandrel Stuart have to prove their innocence, a reversal of the rule in criminal cases. Meanwhile, the government hangs onto the money, which puts financial stress on the owner and makes it harder for him to challenge the forfeiture.

Cops keep the loot. Local cops and prosecutors who pursue forfeiture under federal law, which is what happened in Stuart’s case, receive up to 80 percent of the proceeds. Some states are even more generous, but others give law enforcement agencies a smaller cut, making federal forfeiture under the Justice Department’s Equitable Sharing Program a tempting alternative. The fact that police have a direct financial interest in forfeitures creates an incentive for pretextual traffic stops aimed at finding money or other property to seize. The Post found that “298 departments and 210 task forces have seized the equivalent of 20 percent or more of their annual budgets since 2008.”

There’s at least some awareness in the Senate that the civil forfeiture rules are being abused:

The Fifth Amendment Integrity Restoration (FAIR) Act, a bill introduced by Sen. Rand Paul (R-Ky.) in July, addresses each of these issues. The FAIR Act changes the standard of proof in federal forfeiture cases from “preponderance of the evidence” to “clear and convincing evidence.” That change does not go as far as the Institute for Justice, a public interest law firm that has been fighting forfeiture abuse for years, would like. I.J. argues that civil forfeiture should be abolished, meaning that a criminal conviction, based on proof beyond a reasonable doubt, would be required for the government to take property allegedly connected to a crime. But Paul’s reform would make it harder for the government to prevail if a forfeiture case goes to trial, which might deter seizures of large sums in situations where the evidence is weak.

August 15, 2014

The protests in Ferguson

Filed under: Law, Liberty, USA — Tags: , , , , — Nicholas @ 15:38

David Harsanyi responds to some thoughts by David Frum:

Can you imagine what Ferguson would look like if all these demonstrators were armed?

It’s a question that’s popped up in my Twitter feed in various forms over the past few days. And as my colleague Mollie Hemingway has already done a fine job of pointing out, many in the media revealed they have only a muddled understanding of gun rights.

But let’s go with David Frum’s hypothetical proposition, because it brings to mind a few broader points.

[…]

In this situation, it was the state that behaved as if it had been deployed for war, not the majority of protestors. Most civilians don’t use guns recklessly in these situations (or any, for that matter) for reasons of self-preservation and more vitally – and this may surprise some people – because most people have absolutely no desire to shoot at the police. Even protesting civilians. Even angry protesting civilians.

So a more appropriate observation might be: Isn’t it amazing that in a country with over 250 million guns in circulation, violent political protests are almost nonexistent?

I nearly pulled the end of this article as a QotD entry on its own:

In my understanding, owning guns for self-defense or sport are only secondary reasons to support the Second Amendment. Though gun advocates often shy away from making the case, the best and most vital purpose of an armed citizenry is to be a buttress against tyrannical government. Now, I’ve never owned a gun, and I have no reason to believe that the time for aiming muskets at government troops is close or inevitable. And if it needs to be pointed out, those who do are nuts. As tragic as events of Ferguson have been, the situation certainly doesn’t call for any armed rebellion.

And yet. When the police block Main Street with tanks and aim their high-powered rifles at unarmed protestors, I don’t think to myself: “Hey, thank goodness those citizens have no way to defend themselves.” Apparently some people do.

August 8, 2014

QotD: The nature of liberty

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

So with the Bill of Rights. As adopted by the Fathers of the Republic, it was gross, crude, inelastic, a bit fanciful and transcendental. It specified the rights of a citizen, but it said nothing whatever about his duties. Since then, by the orderly processes of legislative science and by the even more subtle and beautiful devices of juridic art, it has been kneaded and mellowed into a far greater pliability and reasonableness. On the one hand, the citizen still retains the great privilege of membership in the most superb free nation ever witnessed on this earth. On the other hand, as a result of countless shrewd enactments and sagacious decisions, his natural lusts and appetites are held in laudable check, and he is thus kept in order and decorum. No artificial impediment stands in the way of his highest aspiration. He may become anything, including even a policeman. But once a policeman, he is protected by the legislative and judicial arms in the peculiar rights and prerogatives that go with his high office, including especially the right to jug the laity at his will, to sweat and mug them, to subject them to the third degree, and to subdue their resistance by beating out their brains. Those who are unaware of this are simply ignorant of the basic principles of American jurisprudence, as they have been exposed times without number by the courts of first instance and ratified in lofty terms by the Supreme Court of the United States. The one aim of the controlling decisions, magnificently attained, is to safeguard public order and the public security, and to substitute a judicial process for the inchoate and dangerous interaction of discordant egos.

[…]

Thus the law, statute, common and case, protects the free American against injustice. It is ignorance of that subtle and perfect process and not any special love of liberty per se that causes radicals of anti-American kidney to rage every time an officer of the gendarmerie, in the simple execution of his duty, knocks a citizen in the head. The gendarme plainly has an inherent and inalienable right to knock him in the head: it is an essential part of his general prerogative as a sworn officer of the public peace and a representative of the sovereign power of the state. He may, true enough, exercise that prerogative in a manner liable to challenge on the ground that it is imprudent and lacking in sound judgment. On such questions reasonable men may differ. But it must be obvious that the sane and decorous way to settle differences of opinion of that sort is not by public outcry and florid appeals to sentimentality, not by ill-disguised playing to class consciousness and anti-social prejudice, but by an orderly resort to the checks and remedies superimposed upon the Bill of Rights by the calm deliberation and austere logic of the courts of equity.

The law protects the citizen. But to get its protection he must show due respect for its wise and delicate processes.

H.L. Mencken, “The Nature of Liberty”, Prejudices, Third Series, 1922.

July 16, 2014

Free speech is so valuable that we need to designate special zones to contain it

Filed under: Bureaucracy, Liberty, USA — Tags: , , , , — Nicholas @ 07:34

Virginia Postrel on the (insane) view that colleges and universities need to create special free speech zones — and to actively censor students and teachers outside those boundaries:

The vague bans on “offensive” language and other “politically correct” measures that most people think of when they imagine college speech codes are increasingly being joined by quarantine policies that restrict all student speech, regardless of its content.

Speech-zone rules require students to ask permission to do such things as hand out leaflets, collect petition signatures, or give speeches; demand that students apply days or weeks in advance; and corral their activities in tiny areas of the campus, often away from the main pathways and quads. The rules aren’t about noise or crowds. They aren’t about disrupting classes. They’re about what you can do in public outdoor areas, and they apply even to just one or two people engaged in unobtrusive activities. They significantly infringe on students’ constitutionally protected speech.

But judging from some of the public response to the Citrus College case, a lot of people think that’s just fine. Debating national security issues, they seem to think, has no place at state colleges.

“The creation of the free-speech zones, and the enforcement of sound-level ordinances, was not to prevent free speech, but give religious or political speech a time, place, and manner that would allow speakers to address their messages to audiences on campuses without disrupting the other fundamental functions of the institutions,” wrote a retired physics professor commenting on a Chronicle of Higher Education report.

“Isn’t an institution of higher education’s primary function … the education/learning and safety of its students? Anything that is considered distracting or obstructive of the primary goals has to be managed. If some students disagree, they are welcome to attend a different college,” wrote a commenter on a public-radio discussion of the case. Another declared: “I welcome the free speech zones. On some campuses in California, you cannot walk from a classroom to the library without being bombarded by propaganda.”

A campus, in this view, should be like a shopping mall. If you’re going about your business, you shouldn’t be bothered by pamphleteers and petitioners. You should be protected against sermons and political rants. Confining controversial speech to a small area is no different from telling the guy selling sunglasses that he’s got to rent a kiosk.

July 9, 2014

Political media and a growing lack of historical awareness

Filed under: History, Media, Politics, USA — Tags: , , , — Nicholas @ 08:16

Mollie Hemingway says that media ignorance has become a serious problem:

The real problem is the arrogance that goes with the ignorance. Take Kate Zernike’s 2010 attempt at an expose of the ideas that motivate tea party activists that ran in the New York Times. She wrote:

    But when it comes to ideology, it has reached back to dusty bookshelves for long-dormant ideas. It has resurrected once-obscure texts by dead writers — in some cases elevating them to best-seller status — to form a kind of Tea Party canon.

Who are these obscure authors of long-dormant ideas? She points to Friedrich Hayek, for one. Yes, the same Hayek who won the Nobel Memorial Prize in Economic Sciences in 1974 and died way, way back in … 1992. Whose Road To Serfdom was so obscure that it has never been out of print and was excerpted in Reader’s Digest, that obscure publication with only 17 million readers. The article doesn’t get around to actually providing any insight into these activists’ philosophy and it’s probably a good thing considering that this is what she has to say about “the rule of law”:

    Ron Johnson, who entered politics through a Tea Party meeting and is now the Republican nominee for Senate in Wisconsin, asserted that the $20 billion escrow fund that the Obama administration forced BP to set up to pay damages from the Gulf of Mexico oil spill circumvented “the rule of law,” Hayek’s term for the unwritten code that prohibits the government from interfering with the pursuit of “personal ends and desires.”

Oh dear. Where to begin? How about with the fact that “rule of law” is not Hayek’s term. The concept goes back to, well, the beginning of Western Civilization and the term was popularized by a 19th century British jurist and constitutional theorist named A.V. Dicey. It’s not an unwritten code, by definition. The idea that this would be an obscure concept to someone says everything about Zernike and the team at the New York Times and precisely nothing about Ron Johnson or Hayek or that sector of citizens of the United States who retain support for the rule of law.

A few weeks ago, David Brat beat House Majority Leader Eric Cantor in a stunning upset. The media didn’t handle it well. You might say they freaked out. Among other things, reporters sounded the alarm about a phrase Brat used in his writings that, they said, suggested he was a dangerous extremist: “The government holds a monopoly on violence. Any law that we vote for is ultimately backed by the full force of our government and military.” As National Review‘s Charles C.W. Cooke noted:

    “Unusual” and “eye-opening” was the New York Daily News’s petty verdict. In the Wall Street Journal, Reid Epstein insinuated darkly that the claim cast Brat as a modern-day fascist. And, for his part, Politico‘s Ben White suggested that the candidate’s remarks “on Neitzsche and the government monopoly on violence don’t make a whole lot of sense.”

Unusual, eye-opening, and non-sensical, perhaps, to people who had never studied what government is. But that group shouldn’t include political reporters, who could reasonably be expected to have passing familiarity with German sociologist Max Weber’s claim that “the modern state is a compulsory association which organizes domination. It has been successful in seeking to monopolize the legitimate use of physical force as a means of domination within a territory.”

Or take the Los Angeles Times‘ David Savage, who argued just last week that the Supreme Court’s decisions under Chief Justice John Roberts “rely on well-established rights, such as freedom of speech and free exercise of religion, but extend those rights for the first time to corporations, wealthy donors and conservatives.” Perhaps it’s just poorly written. Surely a man who has been responsible for informing Californians about the Supreme Court since 1986 doesn’t actually believe that conservatives, corporations or wealthy donors were not covered by the Bill of Rights until John Roberts came along. As James Taranto of the Wall Street Journal notes, “that is as ignorant as it is tendentious.”

July 5, 2014

So how would they react to a strong pro-liberty Supreme Court decision?

Filed under: Law, Liberty, USA — Tags: , , , — Nicholas @ 10:43

Shikha Dalmia says that the relatively mild pro-liberty decisions from the US Supreme Court in this session have driven progressives wild. It’s hard to justify going to DEFCON-5 over Hobby Lobby or Harris … isn’t it?

This week, the United States Supreme Court handed down two rulings that are a victory for the liberties of religion, speech, and association enshrined in the First Amendment. That ought to be cause for a double celebration on July 4. But instead, the rulings, issued on the narrowest possible grounds, constitute a victory so modest — and have elicited a response from the left so hysterical — that anyone serious about liberty can’t help but be a little depressed right now.

The case that has attracted disproportionate attention is informally known as Hobby Lobby, and it challenged ObamaCare’s contraceptive mandate. This mandate requires all for-profit companies to provide all 20 forms of birth control approved by the FDA, including pills and “abortifacients,” even though they violate the Christian (Assembly of God, to be precise) convictions of the owners of Hobby Lobby, an arts and crafts chain in Texas, who were willing to cover “only” 16.

[…]

None of this, however, prevented the left from throwing a collective hissy-fit. Social media erupted into tiresome taunts of fascism. Ann Friedman called the ruling a “blow to reproductive rights” that made her want to issue “an outraged scream, sort of a combination groan-wail…while beating my fists against the desk on either side of my laptop.” (Hey Ann, be careful: A new laptop will cost you several years’ of contraceptive pills. Generic versions sell at Costco for $25 a month.)

Such moral huffing and puffing was also on display in response to the Supreme Court’s ruling in Harris vs. Quinn. That case involved the right of family members of disabled loved ones to offer care without having their state aid garnished by public unions. Harris, a mom who was providing home care to her 25-year-old disabled son, had sued the state of Illinois for forcing her to pay dues to a government union.

But what in the name of Jimmy Hoffa does looking after her son have to do with the union?

Apparently, because she receives state subsidies for caring for her son, Illinois, along with a dozen other states, considers her a “home health care worker.” This means she must submit to the exclusive representation of a government union in collective bargaining negotiations — even though she supports neither the union nor its goals.

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.

June 15, 2014

QotD: Shut up – it’s your right and (for some) your privilege

Filed under: Law, Liberty, Quotations, USA — Tags: , , , , — Nicholas @ 08:54

“Privilege” is a term that’s overused and misused in modern political discourse. Too often it’s used like a crass “shut up, I win” button in an argument. But “privilege” is sometimes an apt descriptive term of a human phenomenon: a person’s evaluation of a situation (like interaction with law enforcement) is colored by his or her own experiences, and those experiences are usually circumscribed by that person’s cultural identity and wealth. Any criminal defense attorney who has served affluent clients is familiar with this: such clients often conclude that they are a victim of a conspiracy, or of a “rogue cop” or “loose cannon prosecutor,” because their life experiences lead them to assume that the system can’t possibly treat all people the way they are being treated. By contrast, clients who have lived in poverty (or clients who are African-American or Latino) tend to recognize outrageous conduct in their case as the system working the way the system typically works — business as usual. In my post about the prosecution and death of Aaron Swartz, I argued that Swartz’ community showed such privilege in its reaction to his prosecution, seeing some sort of singular conspiracy where others saw the banal grinding of the system’s unfeeling wheels.

My advice to shut up is colored, in part, by privilege. I was reminded of this yesterday when Los Angeles County Sheriff’s Deputies searched Justin Bieber’s house. I praised Bieber for shutting up and declining to talk to the cops, and joked that criminal defense attorneys could shame clients into better practices by asking why they aren’t smarter than Justin Bieber.

But Justin Bieber and I — and many of my clients — share a crucial quality: we’re affluent and fortunate. This privilege makes us better able to endure the potential downside risks of shutting up. If we get arrested on a petty or bogus charge by a pissed-off cop, we can make bail. We won’t spend weeks or months in custody on that bogus charge because we can’t scrape together a few thousand dollars. Maybe we’ll spend the weekend in jail, because cops love to arrest you Friday afternoon, but we’ll get out in a few days at most, and in the meantime we won’t lose our jobs. Because we have families and support systems, if we do get thrown in jail on a bogus job by an angry cop, the Department of Child and Family Services won’t take away our children, plunging us into another broken system we have neither the money nor the knowledge to navigate. If the cops tow or impound our car, we can afford to pay the few hundred to few thousand dollars to get it out, and we won’t lose our jobs for lack of transportation. Even if we do lose our jobs because of a bogus and retaliatory arrest, we have savings, and families with savings, and we won’t swiftly lose our homes. If the police choose to retaliate against our silence with petty tickets and infractions and fines rather than arrest, we can fight them or absorb them.

That’s a privilege. Poor people don’t have it. Poor people live on the razor’s edge, and a bogus retaliatory arrest can destroy them. Retaliatory and capricious enforcement of petty crimes and infractions can destroy them financially. Police wield disproportionate power over them, and the criminal justice system and its agendas (like the War on Drugs) disproportionately impacts them. Police are more likely to use force against poor people and for the most part can do so without any significant risk of discipline.

When you and I weigh the downside risks of shutting up against the downside risks of talking, our downside risks are milder, and can be endured. People without our resources face a must starker choice: talk, and incriminate themselves, or shut up, and face an array of consequences they may not be equipped to survive.

Ken White, “The Privilege To Shut Up”, Popehat, 2014-01-15

June 13, 2014

Supreme Court rules unanimously in favour of internet privacy

Filed under: Cancon, Law, Liberty, Technology — Tags: , , , , — Nicholas @ 13:11

Some great news on the privacy front, this time a decision handed down by the Supreme Court of Canada, as reported by Michael Geist:

This morning another voice entered the discussion and completely changed the debate. The Supreme Court of Canada issued its long-awaited R. v. Spencer decision, which examined the legality of voluntary warrantless disclosure of basic subscriber information to law enforcement. In a unanimous decision written by (Harper appointee) Justice Thomas Cromwell, the court issued a strong endorsement of Internet privacy, emphasizing the privacy importance of subscriber information, the right to anonymity, and the need for police to obtain a warrant for subscriber information except in exigent circumstances or under a reasonable law.

I discuss the implications below, but first some of the key findings. First, the Court recognizes that there is a privacy interest in subscriber information. While the government has consistently sought to downplay that interest, the court finds that the information is much more than a simple name and address, particular in the context of the Internet. As the court states:

    the Internet has exponentially increased both the quality and quantity of information that is stored about Internet users. Browsing logs, for example, may provide detailed information about users’ interests. Search engines may gather records of users’ search terms. Advertisers may track their users across networks of websites, gathering an overview of their interests and concerns. “Cookies” may be used to track consumer habits and may provide information about the options selected within a website, which web pages were visited before and after the visit to the host website and any other personal information provided. The user cannot fully control or even necessarily be aware of who may observe a pattern of online activity, but by remaining anonymous – by guarding the link between the information and the identity of the person to whom it relates – the user can in large measure be assured that the activity remains private.

Given all of this information, the privacy interest is about much more than just name and address.

Second, the court expands our understanding of informational privacy, concluding that there three conceptually distinct issues: privacy as secrecy, privacy as control, and privacy as anonymity. It is anonymity that is particularly notable as the court recognizes its importance within the context of Internet usage. Given the importance of the information and the ability to link anonymous Internet activities with an identifiable person, a high level of informational privacy is at stake.

Third, not only is there a significant privacy interest, but there is also a reasonable expectation of privacy by the user. The court examines both PIPEDA and the Shaw terms of use (the ISP in this case) and concludes that PIPEDA must surely be understood within the context of protecting privacy (not opening the door to greater disclosures) and that the ISP agreement was confusing at best and may support the expectation of privacy. With those findings in mind:

    in the totality of the circumstances of this case, there is a reasonable expectation of privacy in the subscriber information. The disclosure of this information will often amount to the identification of a user with intimate or sensitive activities being carried out online, usually on the understanding that these activities would be anonymous. A request by a police officer that an ISP voluntarily disclose such information amounts to a search.

Fourth, having concluded that obtaining subscriber information was a search with a reasonable expectation of privacy, the information was unconstitutionally obtained therefore led to an unlawful search. Addressing the impact of the PIPEDA voluntary disclosure clause, the court notes:

    Since in the circumstances of this case the police do not have the power to conduct a search for subscriber information in the absence of exigent circumstances or a reasonable law, I do not see how they could gain a new search power through the combination of a declaratory provision and a provision enacted to promote the protection of personal information.

Update, 7 July: A few weeks later, the US Supreme Court also made a strong pro-privacy ruling, this one mandating a warrant for police to search the contents of a cellphone.

Politico‘s Josh Gerstein has more on the ruling in in Riley v. California:

The Supreme Court’s blunt and unequivocal decision Wednesday giving Americans strong protection against arrest-related searches of their cell phones could also give a boost to lawsuits challenging the National Security Agency’s vast collection of phone call data.

Chief Justice John Roberts’s 28-page paean to digital privacy was like music to the ears of critics of the NSA’s metadata program, which sweeps up details on billions of calls and searches them for possible links to terrorist plots.

“This is a remarkably strong affirmation of privacy rights in a digital age,” said Marc Rotenberg of the Electronic Privacy Information Center. “The court found that digital data is different and that has constitutional significance, particularly in the realm of [the] Fourth Amendment…I think it also signals the end of the NSA program.”

Roberts’s opinion is replete with rhetoric warning about the privacy implications of access to data in individuals’ smart phones, including call logs, Web search records and location information. Many of the arguments parallel, or are virtually identical to, the ones privacy advocates have made about the dangers inherent in the NSA’s call metadata program.

May 5, 2014

The Constitution-free zone near the US border

Filed under: Law, Liberty, USA — Tags: , , , , , — Nicholas @ 07:48

A recent decision by a federal appeal court expands the already very broad opportunities for police and border agents to stop and search travellers near the US border:

A federal appeals court just ruled that the police have a legal right to stop, search and arrest you for innocent behavior including driving with your hands at the ten-and-two position on the steering wheel at 7:45 p.m., taking a scenic route and having acne.

To the Tenth U.S. Circuit Court of Appeals, these factors added up to fit the profile of a person smuggling undocumented immigrants and drugs. The court said, “Although the factors, in isolation, may be consistent with innocent travel … taken together they may amount to reasonable suspicion.”

In other words, the police can now stop you for no reason at all. Law enforcement just needs to add a sinister context to your behavior, and off you go to jail. The court endorsed this expansion of aggressive police behavior in USA v. Cindy Lee Westhoven, No. 13-2065.

[…]

Incredibly the court found that this scenario created a reasonable suspicion for an “investigative stop.” By inserting a context that would make every driver guilty, the court upheld this belligerent law enforcement:

The officer said he spotted the car because “her arms were ‘straight and locked out’ at a ‘ten-and-two position on the steering wheel,’ — as everyone is taught in driver’s ed in high school. He was also suspicious because the road was used primarily by locals in New Mexico, and Westhoven had Arizona plates. She had acne scarring, “indicating to him she might be a methamphetamine user.” He also thought the shopping was better in Tucson than Douglas, so this was also “suspicious.”

“The dark tinted windows on Ms. Westhoven’s truck raised Agent Semmerling’s suspicion that she might be concealing something or someone in the back of her truck,” the court added.

The time happened to be between a 6-to-8 p.m. border patrol shift change, and the cop inferred that Westhoven was a smuggler trying to exploit that two-hour window. Westhoven was nervous, taking long pauses and shaking — which apparently signaled criminality.

The final nail for Westhoven was that she had two cell phones visible in the car. The cop said this was a common practice for drug smugglers. It is also common for people who have a business phone and a personal phone.

April 17, 2014

Nevada standoff and the rule of law

Filed under: Environment, Law, Liberty, USA — Tags: , , , — Nicholas @ 07:25

I haven’t been following the situation in Nevada between the armed forces of the Bureau of Land Management and the armed citizenry in support of rancher Cliven Bundy, but while my sympathies normally go toward the individual rather than the state, this case doesn’t appear to be clear-cut (and Bundy is clearly in violation of the law to some degree). Kevin Williamson seems to be in the same general state of mind:

Deserts always feel like my natural habitat, and I am very fond of them. That being said, I have, for my sins, spent a fair amount of time in Clark County, Nev., and it is not the loveliest stretch of desert in these United States, or even in the top twelve. Protecting the pristine beauty of the sun-baked and dust-caked outskirts of Las Vegas and its charismatic fauna from grazing cattle — which the Bureau of Land Management seems to regard as an Old Testament plague — seems to me to be something less than a critical national priority. At the same time, the federal government’s fundamental responsibility, which is defending the physical security of the country, is handled with remarkable nonchalance: Millions upon millions upon millions of people have crossed our borders illegally and continue to reside within them. Cliven Bundy’s cattle are treated as trespassers, and federal agents have been dispatched to rectify that trespass; at the same time, millions of illegal aliens present within our borders are treated as an inevitability that must be accommodated. In practice, our national borders are a joke, but the borders of that arid haven upon which ambles the merry Mojave desert tortoise are sacrosanct.

[…]

The relevant facts are these: 1) Very powerful political interests in Washington insist upon the scrupulous enforcement of environmental laws, and if that diminishes the interests of private property owners, so much the better, in their view. 2) Very powerful political interests in Washington do not wish to see the scrupulous enforcement of immigration laws, and if that undercuts the bottom end of the labor market or boosts Democrats’ long-term chances in Texas, so much the better, in their view.

This isn’t the rule of law. This is the rule of narrow, parochial, self-interested political factions masquerading as the rule of law.

If we are to have the rule of law, then, by all means, let’s have the rule of law: Shut down those federal subsidies and IRS penalties in states that did not create their own exchanges under the Affordable Care Act — the law plainly does not empower the federal government to treat federal exchanges identically to state exchanges. And let’s enforce the ACA’s deadlines with the same scrupulosity with which the IRS enforces its deadlines. Let’s see Lois Lerner and a few hundred IRS employees thrown in the hole for their misappropriation of federal resources, lying to Congress, etc. — and let’s at least look into prosecuting some elected Democrats for suborning those actions. And if you want to get to the real problem with illegal immigration, let’s frog-march a few CEOs, restaurateurs, and small-time contractors off to prison for violating our immigration laws — and they can carry a GM product-safety manager and a National Highway Traffic Safety Administration executive under each arm. Let’s talk about enumerated powers.

H/T to Jon, my former virtual landlord, for the link.

March 4, 2014

Britain’s prostitution law reforms are driven by moral panic

Filed under: Britain, Law — Tags: , , , , — Nicholas @ 11:35

An editorial from last weekend’s Independent:

What the All Party Parliamentary Group on Prostitution broadly proposes is Nordic-style reform, which is what the European Parliament also backed last week. This would shift the burden of prosecution from mostly women sellers to mostly male buyers and pimps. MPs are right to say that one of the root problems with Britain’s laws on the sex trade is that they send conflicting messages about who is in the wrong. If trafficked women, especially, are to be helped, they must be assured that the law is on their side. It is why the MPs want the mass of current legislation consolidated into a single Act, which makes it clear that only those who purchase sex will feel the rigours of the law.

Change along these lines will bitterly disappoint libertarians who want to see the sex trade fully legalised on Dutch or German lines. There is also an argument that it is illogical – another mixed message – to penalise the purchase of sex but not the sale. But, a counter-argument, which the authorities in Sweden, Norway and Iceland deploy with some justification, is that “redistributing guilt” over the sale of sex undoubtedly benefits women who have felt trapped into prostitution and makes life much harder for pimps and traffickers.

The underlying idea is that because many people (especially politicians) dislike the idea that women sell their bodies, it should be made illegal. The troubling reality that a lot of prostitutes are voluntarily in the business requires the would-be banners to come up with a justification that somehow invalidates the individual decisions of those women. The ongoing moral panic over human trafficking is the current choice of vehicle for that. Tim Worstall:

The only possible claim that can be made in favour of the banning of prostitution, or even of the declaration that it is something wrong that we would like to minimise, is that it represents some form of slavery in which people are forced to do things they do not agree to doing voluntarily.

And that is indeed the claim that is being made, see that reference to “trafficking” in the Independent. However, the one thing that we do in fact know about the “slavery” in prostitution is that it doesn’t, in this country at least, actually exist. For we had a plan whereby every single police force in the country went out looking for people who were indeed sex slaves. People who were being forced, against their will, into prostitution (ie, repeatedly raped, a vile crime). And when they had a look through all of the brothels, working flats, saunas and street walkers they could find not one single police force was able to come up with sufficient evidence to charge anyone at all with the crime of holding someone in such sex slavery. Operation Pentameter it was called and it’s the biggest refutation of the hysterical case about trafficking that could possibly have been devised.

The vision some have of people being forced onto the game is simply untrue. What we do in fact have is consenting adults deciding to offer such services as they wish to offer for the cash being proferred to them. And this isn’t something that requires customers to be made into criminals: nor is it something that requires suppliers to be made into criminals either. It’s just not something that requires anyone at all to be made into a criminal. It’s consenting adults deciding what to do with their own bodies.

Update: The Canadian government is conducting a survey on what to do in the wake of the Supreme Court decision that struck down key parts of Canada’s prostitution laws last year. You can participate in the survey here. The public consultation period lasts until March 17.

On December 20, 2013, in the case of Bedford v. Attorney General of Canada 1, the Supreme Court of Canada found three Criminal Code prostitution offences to be unconstitutional and of no force or effect. This decision gives Parliament one year to respond before the judgment takes effect. Input received through this consultation will inform the Government’s response to the Bedford decision.

You will find some specific questions on this issue at the end of this document. To put them in context, here is a brief overview of the current criminal laws addressing prostitution, the Bedford decision, and existing international approaches to prostitution.

1. http://scc-csc.lexum.com/decisia-scc-csc/scc-csc/scc-csc/en/item/13389/index.do?r=AAAAAQAHYmVkZm9yZAAAAAAB

H/T to Maggie McNeil for the link.

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