Quotulatiousness

April 5, 2017

Reining in legalized theft

Filed under: Law, Liberty, USA — Tags: , , , — Nicholas @ 11:48

Jacob Sullum on the efforts to clamp down on civil asset forfeiture abuse, which is another instance of the process being the punishment for too many innocent people:

During a meeting with county sheriffs in February, Donald Trump was puzzled by criticism of civil asset forfeiture, which all the cops in the room viewed as an indispensable and unobjectionable law enforcement tool. “Do you even understand the other side of it?” the president asked. “No,” one sheriff said, and that was that.

Trump might get a more helpful answer if he asked Rep. Jim Sensenbrenner, R-Wis., who last week reintroduced a bill aimed at curtailing civil forfeiture abuses. As Sensenbrenner observed, “These abuses threaten citizens’ Constitutional rights, put unnecessary burdens on innocent Americans, and weaken our faith in law enforcement.”

Civil forfeiture lets the government confiscate property allegedly linked to crime without bringing charges against the owner. Since law enforcement agencies receive most or all of the proceeds from the forfeitures they initiate, they have a strong financial incentive to loot first and ask questions never, which explains why those sheriffs were not eager to enlighten the president about the downside of such legalized theft.

A new report from the Justice Department’s Office of the Inspector General highlights the potential for abuse. Between fiscal years 2007 and 2016, the OIG found that the Drug Enforcement Administration took $4.2 billion in cash, more than 80 percent of it through administrative forfeitures, meaning there was no judicial oversight because the owners did not challenge the seizures in court.

Although the DEA would argue that the lack of challenges proves the owners were guilty, that is not true. The process for recovering seized property is daunting, complicated, time-consuming and expensive, often costing more than the property is worth.

August 25, 2016

QotD: The rapid rise and equally rapid fall of the crime of Witchcraft

Filed under: Britain, Europe, France, History, Law, Quotations — Tags: , , , , , — Nicholas @ 01:00

For the 19th century liberal and historian of ideas William Lecky, the most striking fact about England and France in the 17th century was the decline of belief in the supernatural. And the most striking instance of this fact was the collapse of belief in witchcraft.

At the beginning of that century, belief in witchcraft had been universal and unchallenged. James VI of Scotland (1567-1625) was one of the most learned men of his day. He believed without question in witches, and was a notable persecutor. When he became King of England as well in 1603, he brought his policies with him. It was to gain favour with him that Shakespeare introduced the witchcraft theme into Macbeth.

James procured a law that punished witchcraft with death on first conviction, even though no harm to others could be proven. This law was carried in a Parliament where Francis Bacon was a Member.

The law was carried into effect throughout England, and was especially used during the interregnum years of the 1650s. In 1664, under the restored Monarchy, Sir Matthew Hale — one of the greatest jurists and legal philosophers of the age — presided over the trial of two alleged witches in Suffolk. He told the jury that there could be no doubt in the reality of witchcraft. He said:

    For first, the Scriptures had affirmed so much; and secondly, the wisdom of all nations had provided laws against such persons, which is an argument for their confidence of such a crime.

One of the witnesses called for the prosecution was Sir Thomas Browne, one of the most notable writers of the age. Appearing as a medical expert, he assured the jury “that he was clearly of opinion that the persons were bewitched.” They were convicted and hanged.

It was the same in France. In the town of St Claude, 600 persons were burnt in the early years of the century for alleged witchcraft and lycanthropy. In 1643, Cardinal Mazarin wrote to a bishop to congratulate him on his zeal for hunting out witches.

Yet, in 1667, Colbert, the chief minister of Louis XIV, directed all the magistrates in France to receive no more accusations of witchcraft. Those convictions still obtained he frequently commuted from death to banishment. By the end of the century, witchcraft trials had all but ceased.

In England, belief collapsed later, but even faster than in France. The last trial for witchcraft was in 1712. Jane Wenham, an old woman, was accused of the usual offences. The judge mocked the prosecution witnesses from the bench. When the jury convicted her against his directions, he made sure to obtain a royal pardon for the old woman and a pension.

Whatever the lowest reaches of the common people might still believe, belief in witchcraft had become a joke among the educated. And because of the tone they gave to the whole of society, disbelief spread rapidly beyond the educated. Anyone who tried to maintain its existence was simply laughed at. Laws that had condemned tens or hundreds of thousands to death, and usually to the most revolting tortures before death, were now sneered into abeyance.

We should expect that a change of opinion so immense had been accompanied by a long debate — something similar to the debates of the 19th century over Darwinism, or to the debates of the day over the toleration of nonconformity. Yet Lecky maintains that there was almost no debate worth mentioning. There were sceptics, like Montaigne, who disbelieved all accounts of the supernatural, or Hobbes, who was a materialist and atheist. But, while, book after book appeared in England during the late 17th century to defend the existence of witches and the need for laws against them, almost no one bothered to argue that witches did not exist. Lecky says:

    Several… divines came forward…; and they made witchcraft, for a time, one of the chief subjects of controversy. On the other side, the discussion was extremely languid. No writer, comparable in ability to Glanvil, More, Cudworth, or even Casaubon, appeared to challenge the belief; nor did any of the writings on that side obtain any success at all equal to that of [Glanvil].

Belief in witchcraft perished with hardly a direct blow against it. What seems to have happened, Lecky argues, is a change of world view in which belief in witches ceased to have any explanatory value. We live in a world where, orthodox religion aside, belief in the supernatural is confined to the uneducated or the stupid or the insane. But if we step outside the consensus in which we live, we should see that there is nothing in itself irrational about belief in the supernatural, nor even in witches. The belief is perfectly rational granted certain assumptions.

Let us assume that the world is filled with invisible and very powerful beings, that some of these are good and some evil, that some human beings are capable of establishing contact with these evil beings, and that some compact can be made in which the power of the evil beings is transferred to human control. Granting these assumptions, it becomes reasonable to ascribe great or unusual events to magical intervention, and that it should be the purpose of the law to check such intervention.

Now, the Platonic philosophies do accept the existence of such beings. That is how Plato reconciled his One Creator with the many gods of the Greek pantheon. This belief was taken over by the Church Fathers, who simply announced that the ancient gods were demons. It then continued into the 17th century. It seemed to explain the world. Doubtless, cases came to light of false accusations and of people convicted because they were ill rather than possessed by demons. But our own awareness of corrupt policemen and false convictions does not lead us to believe that there are no murderers and that murder should not be punished. So it was with witchcraft.

During the 17th century, however, the educated classes came increasingly to believe that the world operated according to known, impersonal laws, and that God — assuming His Existence — seldom interfered with the working of these secondary laws. In such a view of the world, the supernatural had no place. Belief in witchcraft, therefore, did not need opposition. It perished as collateral damage to the system of which it was a part.

Sean Gabb, “Epicurus: Father of the Enlightenment”, speaking to the 6/20 Club in London, 2007-09-06.

December 24, 2015

So what about that Mens Rea stuff anyway?

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

Scott Greenfield on an important legal quirk:

The inclusion of a specific mens rea requirement is common in criminal laws. For example, first degree murder usually requires the “intent to kill,” whereas lesser degree murders or manslaughters may only require “recklessness.”

So why do some laws lack a mens rea requirement? They tend (though are hardly so limited) to be regulatory laws that are backed up by criminal sanctions. There are tens of thousands of laws that demand people do or not do some remarkably inconsequential act, such as not throwing undersized fish over the side of a boat.

The way Congress compels compliance with these trivial regulations is to enforce it with a criminal sanction, such as “failure to do X is a felony punishable by up to seven million years imprisonment.” And there are, literally, tens of thousands of opportunities to visit Club Fed.

These laws have been subject to strict liability, not because they are so evil and harmful, as they are almost invariably malum prohibitum laws, wrongs only because Congress says so, not because they reflect some inherent immorality. The problem, as was made clear in the fish case or the Gibson guitar case, is that no one knows all the tens of thousands of regulations the government enacts, creating a trap for the unwary when there is no rational reason to believe that conduct is wrong, no less criminal.

Of course, as the DoJ points out, the maxim that “ignorance of the law is no excuse” (except if you’re a cop) has been around for centuries. What hasn’t been around for centuries, however, are the tens of thousands of trivial regulations that can land someone’s butt in prison just as well as a nice drug conspiracy. So Main Justice didn’t show Sensenbrenner’s bill the love.

    If the bill passes, the result will be clear, said Melanie Newman, the Justice Department spokeswoman. “Countless defendants who caused harm would escape criminal liability by arguing that they did not know their conduct was illegal” she said.

By “countless,” she means too few to count. Or she means nothing other than a new law would limit prosecutors to only those defendants who deserved to be prosecuted. That would cause sad prosecutor tears.

November 16, 2015

The Ontario government’s anti-SLAPP legislation

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

At Techdirt, Tim Cushing looks at the positive and not-so-positive aspects of newly introduced Bill 51:

Good news for Canadians! Well…some of them. This good news only applies to a) Ontario residents who a.1) aren’t vexatious litigants who use BS defamation lawsuits to silence critics.

    Bill 52, which changes the Courts of Justice Act, the Libel and Slander Act and the Statutory Powers Procedure Act, received royal assent Nov. 3.

    The bill contains a provision that “would allow the courts to quickly identify and deal with lawsuits that unduly restrict free expression in the public interest, minimizing costs and other hardships endured by the defendant,” said Yasir Naqvi, Ontario’s Liberal Community Safety and Correctional Services Minister, last March during a debate on the bill. “It will extend qualified privilege in defamation law under the Libel and Slander Act.”

In other words, it’s an anti-SLAPP law. A handful of states in the US have recognized the damage bogus litigation can do to defendants even when plaintiffs clearly don’t have an actionable case. Laws like these also neutralize the chilling effect of bogus legal threats. Holding frivolous litigants responsible for legal fees tends to greatly reduce the number of questionable cease-and-desist demands issued by would-be litigants.

That such a law would be passed in Canada is somewhat of a coup considering its courts’ bizarre decisions in defamation cases. In some cases, courts have come to rational conclusions (Google is not a “publisher” of defamatory material simply by linking to it in search results). In others, courts opened up brand new avenues of liability, like in the case of blogger Michael Veck, who was ordered to pay $10,000 to the defamed party despite only re-posting what another writer had actually written.

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.

September 28, 2015

QotD: Universal criminality

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

I’ve written on many occasions about what I call universal criminality, the crowning achievement of the modern police state, under which there are so many vague, overbroad and counterintuitive laws that every single person is in violation of at least a few of them at all times. Nearly any encounter with the police can be turned into “assault on a police officer” or “resisting arrest”, almost any business can be twisted into “racketeering”, virtually any financial transaction can be redefined as “money laundering” and even normal friendships or business interactions can be tortured into “conspiracy”. But while charges like these can be used to harass, bankrupt and imprison the target, possibly for many years, they often lack the firepower necessary to totally destroy his life forever; after his release from prison he might still be able to find work, have a normal social life and rebuild his shattered fortunes into some semblance of a comfortable existence. Worst of all (from the prosecutorial viewpoint), the public might even side with the victim, turning him into a martyr both during and after his state-sanctioned torture and caging. But there is one weapon in the state’s arsenal which, used properly, will utterly destroy a person’s life. At the end of the process he will have no money, no friends and no home; he will be completely unemployable and condemned to everlasting surveillance, shunned by society and unable even to avail himself of even paid companionship without triggering still more awful consequences. If the prosecutor is really lucky, his victim may even be murdered by the police or other thugs or take his own life. And all it takes to detonate this thermonuclear weapon of modern law is the sending of a single email.

Maggie McNeill, “Instant Criminal”, The Honest Courtesan, 2014-09-19.

September 25, 2015

QotD: The danger of vague laws

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

Prosecutors, and regulators more generally, like vague standards that are impossible to enforce consistently. It gives them a great deal of discretion in whom they target and how. It is a threat that can be wielded to force pleas to lesser crimes or other “voluntary” actions that obviate the need for a messy trial they might lose.

Megan McArdle, “California Accidentally Legalizes Campus Sex”, Bloomberg View, 2014-09-23.

September 3, 2015

Reparations for India’s colonial period?

Filed under: Britain, History, India — Tags: , , , — Nicholas @ 02:00

In Time, Shikha Dalmia explains why India may not want to cuddle up too closely to the idea of getting reparations from the UK:

Indian politician and celebrated novelist Shashi Tharoor caused a mini-sensation late last month when he went before the Oxford Union, a debating society in England’s prestigious eponymous university, and argued that Britain needed to give India reparations for “depredations” caused by two centuries of colonial rule. It was a virtuoso performance — almost pitch perfect in substance and delivery — that handily won him the debate in England and made him a national hero at home.

But the most eloquent point that emerged in the debate is one he didn’t make: While Brits are grappling with their sordid past by, say, holding such debates, Indians are busy burying theirs in a cheap feel-goodism.

Colonialism, without a doubt, is an awful chapter in human history. And Tharoor did a brilliant job of debunking the standard argument of Raj apologists that British occupation did more good than harm because it gave India democracy and the rule of law. (This is akin to American whites who argued after the Civil War that blacks had nothing to complain about because — as the Chicago Tribune editorialized — in exchange for slavery, they were “taught Christian civilization and to speak the noble English language instead of some African gibberish.”)

[…]

Reparations make sense when it is still possible to identify the individual victims of political or social violence. But if paying collective reparations for collective guilt is appropriate, then how about India “atoning” for thousands of years of its caste system? This system has perpetrated “depredations” arguably worse than those of colonialism or apartheid against India’s dalits — or untouchables — and other lower castes. And despite what Hindu denialists claim, this system remains an endemic part of everyday life in many parts of India. Indeed, much like the Jim Crow south, local village councils even today severely punish inter-caste mingling and marriage, even issuing death sentences against young men and women who dare marry outside their caste.

None of this is meant to single out India. Alexis de Tocqueville, the great French philosopher, who visited America in the early 19th Century, expressed astonishment at how Americans could blithely both claim to love liberty and defend slavery without any sense of contradiction. Every civilization has its stock of virtues and vices, ideals and transgressions. Moral progress requires each to constantly parse its history and present to measure how far it has come and how far it must go to bridge the gap between its principles and practices.

August 20, 2015

QotD: Defining “social justice”

Filed under: Media, Politics — Tags: , , , — Nicholas @ 01:00

Still, though, what is social justice? That’s harder to figure out. Indeed, one of the fascinating aspects of “social justice” is that it sounds so pleasing and innocuous, a term any politician can use in a speech or signing statement. But each time someone tries to define it, the idea becomes more radical. The Green party is one of the few organizations that get into specifics, and its platform goes on for pages and pages delineating what “social justice” means — everything from “a commitment to ending poverty” through “welfare” to “open dialogue among all residents of Hawai’i on the sovereignty option of full independence.”

Meanwhile, a major report from the United Nations insists that “social justice is not possible without strong and coherent redistributive policies conceived and implemented by public agencies.” Typical U.N. statism? Perhaps, but it’s downright Jeffersonian compared with the more concentrated and pernicious asininity to follow. The U.N. warns: “Present-day believers in an absolute truth identified with virtue and justice are neither willing nor desirable companions for the defenders of social justice.” Translation: If you actually believe in the antiquated notion that rights exist outside the schemes of governments and social planners, then you are not part of the global effort to promote goodness.

I don’t have space here to detail the intellectual history of the term, but the sad irony of its birth is worth noting. In 1840, the theologian Luigi Taparelli d’Azeglio came up with the concept as a way to defend civil society from the ever-increasing intrusions of the state. Social justice, according to Taparelli, was the legitimate realm of justice beyond formal legal justice. Since then, the term has become completely inverted: “Social justice” has become an abracadabra phrase granting the state access to every nook and cranny of life.

The reason Hayek refers to the “mirage of social justice” is quite simple: There’s no such thing. “Only situations that have been created by human will can be called just or unjust. . . . Social justice,” Hayek concludes, “does not belong to the category of effort but that of nonsense, like the term ‘a moral stone.'” The assertion that high unemployment is “unjust” is dangerously misleading nonsense. Justice creates a claim on others. So who is being unjust? The employers who cannot afford more workers? The consumers who refuse to create enough demand to justify more workers? The government, for not raising taxes to pay for labor that isn’t needed? Social justice is based on rights — social rights, economic rights, etc. — that cannot be enforced in a free society. It’s like saying “Let the market decide” in North Korea.

The only way for social justice to make sense is if you operate from the assumption that the invisible hand of the market should be amputated and replaced with the very visible hand of the state. In other words, each explicit demand for social justice carries with it the implicit but necessary requirement that the state do the fixing. And a society dedicated to the pursuit of perfect social justice must gradually move more and more decisions under the command of the state, until it is the sole moral agent.

Jonah Goldberg, excerpt from The Tyranny of Clichés, published by National Review, 2012-04-22.

July 11, 2015

Reason.tv – How the Feds’ Subpoena of Reason and Gag Order Went Public

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

Published on 7 Jul 2015

You may have already heard about how the government tried to stifle Reason‘s free speech.

Federal prosecutors based in New York sent a grand jury subpoena and letter to Reason, commanding editors to hand over the records of six commenters who wrote hyperbolic statements about federal judge Katherine Forrest below a blog post at Reason.com. Forrest sentenced Ross Ulbricht to life in prison without parole for creating the Silk Road website.

Then came a gag order from U.S. District Court, meaning Reason could not write or speak publicly about the subpoena or gag order — even to acknowledge either existed. But between the subpoena being issued and the gag order being issued, one legal blogger managed to figure out what was going on.

“I got an email and I looked at it and I thought wow, this is a federal grand jury subpoena to Reason magazine,” says Ken White, a writer at the legal blog Popehat who is himself a former federal prosecutor. White sat down with Reason TV to talk about how he broke the story and what he thinks it means for press freedom and open expression online.

“What’s upsetting is that there is no indication whatsoever either that the prosecutor or the judge gave any consideration to the fact that this was being aimed at a reporting organization about a First Amendment issue,” says White. What’s more, White stresses that the comments named in the subpoena are commonplace for the internet and especially at Reason.com, a site, he notes, “whose clever writing is eclipsed only by the blowhard stupidity of its commenting peanut gallery.”

The scrutinized comments ranged from taunts such as “I hope there is a special place in hell reserved for that horrible woman” to “Its (sic) judges like these that should be taken out back and shot,” but none, say White, come close to qualifying as “true” threats or anything other idle chatter. It remains unclear why the U.S. Attorney’s Office was interested in such internet fodder, how often these sorts of subpoenas get sent out to news organizations, and how often they comply. Nevertheless, White points out that federal prosecutors hold an enormous amount of power over human lives and rarely reflect on how they use — and abuse — their position.

“A fish doesn’t know that it’s in water,” says White. “A federal prosecutor doesn’t know that they are swimming in power. They could do it, so they did.”

Produced by Paul Detrick. Shot by Zach Weissmueller and Justin Monticello.

July 1, 2015

The awe and majesty of the Grand Jury

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

I was not aware that the title “Grand Jury” doesn’t necessarily mean that there’s a jury empanelled to decide “grand” issues of law under US practice:

Over at the Daily Beast, Nick Gillespie attempts to bring religiosity to the fuzzy-wuzzies by describing what it was like to be hit with a ridiculous grand jury subpoena and unprincipled gag order. In response, several Daily Beast commenters trot out an argument I see now and then: “well, citizens on the grand jury thought that there were grounds to issue a subpoena.”

No.

In fact, hell no, or if you prefer, bless your heart, no.

Let’s talk about how federal grand jury subpoenas actually work. These days the U.S. Attorney’s Office prints them from fillable pdfs. Given that we were still typing them when I left the USAO in 2000, they probably achieved this technical benchmark in 2012 or so. Assistant United States Attorneys — that is, snot-nosed punks like I was at twenty-six — issue a grand jury subpoena by filling it out, or more likely, asking their secretary to fill it out. Nominally, the subpoena is issued on behalf of the grand jury. But it is not by any stretch of the imagination, issued by the grand jury. The AUSA need not — and never does, in my experience — ask the grand jury for permission. When the target of the subpoena produces documents, most often the Assistant U.S. Attorney lets the case agent — some Special Agent of the FBI or DEA or whatever — hold on to them.

So is the grand jury involved at all? Well, sort of. If and when the federal prosecutor seeks an indictment relying in part on documents produced in response to a grand jury subpoena, they’ll summarize the results of the subpoena to the grand jury. But that could be years after the fact. Prior to that, the acknowledged “best practice” is for the AUSA to appear before the grand jury, tell the grand jurors that a subpoena has been issued on their behalf, briefly outline the nature of the investigation, and ask their consent for the case agent to maintain custody of the documents produced — which, because they have been produced “to the grand jury,” are governed by secrecy requirements.

Does that always happen? No. Even when it does happen, it’s rarely a significant check on the use or abuse of grand jury subpoenas. First, when I was an AUSA, I never once had a grand juror ask about why I was issuing such a subpoena or exactly what I got back. I don’t know that any of them ever looked up from their newspapers. The common practice is to make a report so perfunctory that the grand jurors have no context from which to determine whether a subpoena is appropriate — and you’d only be reporting the subpoena after the fact. Second, there’s often no continuity of grand jurors. In a small district you might have only one grand jury that meets once a week, and those grand jurors could, in theory, write things down in their notebooks and keep track of them over time. But in many districts there are many federal grand juries. In Los Angeles, for instance, there was a different one meeting every day of the week. AUSAs don’t necessarily report subpoenas from the same investigation to the same grand jury over time. And federal grand juries turn over after a year and a half (unless extended), which means that the grand jurors hearing you report a subpoena this year won’t necessarily be the same ones hearing you report the next subpoena in the investigation next year.

June 12, 2015

Reason becomes a DOJ target because commenters disrespected a judge

Filed under: Liberty, Media, Politics, USA — Tags: , , — Nicholas @ 05:00

Every now and again, it’s easy to believe that we’ve somehow slipped down a hole in time to a less free, more authoritarian time. This is the kind of thing you could easily imagine happening in Fascist Italy or Franco’s Spain rather than in the United States in 2015:

The United States Department of Justice is using federal grand jury subpoenas to identify anonymous commenters engaged in typical internet bluster and hyperbole in connection with the Silk Road prosecution. DOJ is targeting Reason.com, a leading libertarian website whose clever writing is eclipsed only by the blowhard stupidity of its commenting peanut gallery.

Why is the government using its vast power to identify these obnoxious asshats, and not the other tens of thousands who plague the internet?

Because these twerps mouthed off about a judge.

Last week, a source provided me with a federal grand jury subpoena. The subpoena, issued by the U.S. Attorney’s Office for the Southern District of New York, is directed to Reason.com in Washington, D.C.. The subpoena commands Reason to provide the grand jury “any and all identifying information” Reason has about participants in what the subpoena calls a “chat.”

[…]

Regrettably, The Government Can Probably Abuse the Grand Jury Subpoena Power This Way

The grand jury’s investigative power — exercised nominally on its behalf by the U.S. Attorney’s office — is nearly unchecked. It’s not like a stop-and-frisk or search; the government doesn’t need reasonable suspicion or probable case to use grand jury subpoenas to seek information. In general, one can only challenge grand jury subpoenas when they are irrationally burdensome (like demanding that Apple produce every document about iPhones in its possession) or for an improper purpose (like using the grand jury to improve trial evidence after an indictment has already been returned) or, very rarely, when privacy or constitutional issues are in play.

Reason.com — or the anonymous commenters — could file an action in federal court seeking to quash this subpoena. We know how that would likely come out, because someone recently did it. During the 2012 election cycle a juvenile but prolific Twitter personality named “Mr. X” tweeted “I want to fuck Michelle Bachman in the ass with a Vietnam era machete.” The government subpoenaed Twitter for Mr. X’s identifying information; Mr. X filed a motion to quash the subpoena. The United States District Court for the District of Columbia rejected the motion.

May 26, 2015

Ilya Somin’s new book on eminent domain

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

The book is being published in time to mark the tenth anniversary of the Supreme Court’s dreadful Kelo decision:

My new book, The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain is now in print. It is the first book about the Kelo decision and the massive political backlash it generated, written by a legal scholar. The Grasping Hand is coming out just in time for the tenth anniversary of Kelo on June 23.

Kelo-Book-Cover-Final-Version-e1432095413354Here is a summary from the University of Chicago Press website (the book is also co-published by the Cato Institute):

    In 2005, the Supreme Court ruled that the city of New London, Connecticut, could condemn fifteen residential properties in order to transfer them to a new private owner. Although the Fifth Amendment only permits the taking of private property for “public use,” the Court ruled that the transfer of condemned land to private parties for “economic development” is permitted by the Constitution – even if the government cannot prove that the expected development will ever actually happen. The Court’s decision in Kelo v. City of New London empowered the grasping hand of the state at the expense of the invisible hand of the market.

    In this detailed study of one of the most controversial Supreme Court cases in modern times, Ilya Somin argues that Kelo was a grave error. Economic development and “blight” condemnations are unconstitutional under both originalist and most “living constitution” theories of legal interpretation. They also victimize the poor and the politically weak for the benefit of powerful interest groups, and often destroy more economic value than they create. Kelo itself exemplifies these patterns. The residents targeted for condemnation lacked the influence needed to combat the formidable government and corporate interests arrayed against them. Moreover, the city’s poorly conceived development plan ultimately failed: the condemned land lies empty to this day, occupied only by feral cats.

    The Supreme Court’s unpopular ruling triggered an unprecedented political reaction, with forty-five states passing new laws intended to limit the use of eminent domain. But many of the new laws impose few or no genuine constraints on takings. The Kelo backlash led to significant progress, but not nearly as much as it may have seemed.

    Despite its outcome, the closely divided 5-4 ruling shattered what many believed to be a consensus that virtually any condemnation qualifies as a public use under the Fifth Amendment. It also showed that there is widespread public opposition to eminent domain abuse. With controversy over takings sure to continue, The Grasping Hand offers the first book-length analysis of Kelo by a legal scholar, alongside a broader history of the dispute over public use and eminent domain, and an evaluation of options for reform.

April 24, 2015

Junk science watch – lie detectors

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

Gavin McInnes on the polygraph machines and their questionable accuracy:

I met Doug Williams in August while developing a pilot for a TV show about myth busting. He’s the most vocal critic of polygraph machines in the world and authored the book From Cop to Crusader: My Fight Against the Dangerous Myth of “Lie Detection.” Williams’ history in law enforcement brought him from the Oklahoma City Police Department to the White House where he served under Johnson and Nixon as a communications advisor (Johnson was cool, Nixon was a dick). He has issued thousands of polygraph tests over the years and even helped make the test part of federal law.

Doug started to realize the whole thing was a scam in the late 1970s and since then has devoted his entire life to giving everyone else the same epiphany. Unfortunately, the government doesn’t see it the same way and on May 12th, his trial will begin for the crime of “train[ing]… customers how to conceal misconduct and other disqualifying information.” He was busted by two undercover federal agents who took his course and decided the class had gone from simply “debunking” to “aiding and abetting.” The Feds are trying to say that Williams is hampering investigations, but all he’s doing is proving these machines don’t work by presenting evidence. 60 Minutes did the same thing in a 1986 episode where three out of three experts failed their own test. People are losing their jobs and going to prison based on the findings of a machine that appears to be totally unreliable. The only thing he’s hampering here is the abuse of power. The irony is, if it’s possible to beat a polygraph, it clearly isn’t a reliable piece of equipment. If it’s not possible to beat, his courses are irrelevant. You can teach someone to trick a police radar all you want. It’s still going to clock you if you’re going over the speed limit. This seems like common sense yet the state has won cases like this before. In 2013, an electrician named Chad Dixon was sentenced to 8 months in jail for helping people beat the machine.

March 27, 2015

Keeping people out of jail isn’t quite as easy as it seems

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

Megan McArdle is being a downer about the idea that if we just stop throwing people into jail for non-violent drug possession, it’ll make a big dent in the prison population:

De-incarceration is clearly an idea whose time has come. But doing it means thinking clearly about de-incarceration. And as I discovered when I went to a recent event on the topic, most of us in the media don’t.

We’re hampered by the rampant perception that all we need is to wise up and stop incarcerating people for simply possessing drugs, something many of us feel shouldn’t be a crime at all and certainly shouldn’t merit prison time. At the event I attended, someone who has actually studied the matter closely pointed out what experts know and most journalists apparently don’t: Relatively few people are in prison for simple possession or for other minor crimes. The shock in the room was palpable.

I wasn’t shocked, but not because I am somehow immune to this delusion. Rather, I had it stripped from me a few years back, when I went to Hawaii to report on its innovative probation program, Hawaii’s Opportunity Probation with Enforcement. HOPE has sharply reduced the number of people who “flunk” probation and end up with long prison terms. To study it, I sat in a courtroom for a week and actually watched how the process worked. I’ve written about it in my book, but here’s something I didn’t write about: how shocked I was by the composition of the docket. I’d been expecting a lot more simple possession — and a lot less robbery, assault, domestic violence and burglary.

Even the most dedicated anti-incarceration activist would call these “real” crimes, and they were numerous. Even the most dedicated advocate of drug legalization — such as, say, me — would have to admit that a large percentage, perhaps the majority, of the people who committed “real” crimes had some sort of a drug problem — not as in “smokes more weed than they really should” but as in “admitted to the judge that they had smoked crystal meth recently enough to flunk the drug test they were about to be required to take.”

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