Quotulatiousness

May 22, 2014

Dickens 2.0 – debt prisons of the 21st century

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

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

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

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

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

[…]

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

May 8, 2014

Weighty injustice

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

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

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

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

[…]

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

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

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

April 27, 2014

The state of the US judicial system

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

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

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

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

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

February 13, 2014

Disproportional punishment

Filed under: Law, USA — Tags: , , , , — Nicholas @ 10:16

In the Washington Post, Jacob Sullum illustrates the weird disproportionality of the sentences handed out to child porn offenders versus the sentences received by actual child abusers:

The legal treatment of people caught with child pornography is so harsh that they can end up serving longer sentences than people who actually abuse children. In a 2009 analysis, federal public defender Troy Stabenow shows that a defendant with no prior criminal record and no history of abusing children would qualify for a sentence of 15 to 20 years based on a small collection of child pornography and one photo swap, while a 50-year-old man who encountered a 13-year-old girl online and lured her into a sexual relationship would get no more than four years.

Under federal law, receiving child pornography, which could mean downloading a single image, triggers a mandatory minimum sentence of five years — the same as the penalty for distributing it. Merely looking at a picture can qualify someone for the same charge, assuming he does so deliberately and is aware that Web browsers automatically make copies of visited sites. In practice, since the Internet nowadays is almost always the source of child pornography, this means that viewing and possession can be treated the same as trafficking.

The maximum penalty for receiving or distributing child porn is 20 years, and federal sentencing guidelines recommend stiff enhancements based on factors that are extremely common in these cases, such as using a computer, possessing more than 600 images (with each video clip counted as 75 images), and exchanging photos for something of value, including other photos. Federal agents reportedly found 200 child porn videos on Loskarn’s hard drive when they arrested him on December 11.

Ninety percent of federal child-porn prosecutions involve “non-production offenses” like Loskarn’s: downloading or passing along images of sexual abuse, as opposed to perpetrating or recording it. As a result of congressional edicts, the average sentence in such cases rose from 54 months in 2004 to 95 months in 2010, according to a 2012 report from the U.S. Sentencing Commission (USSC). The penalties have become so severe, the commission noted, that judges frequently find ways to dodge them, resulting in wildly inconsistent sentences for people guilty of essentially the same conduct.

February 12, 2014

Spain reconsidering law that makes them venue of choice for international cases

Filed under: China, Europe, Law — Tags: , , — Nicholas @ 08:38

Another day, another non-Spanish leader or ex-leader being charged with crimes against humanity in a Spanish court … but perhaps not for long:

Spain’s MPs voted on Tuesday to push forward with a bill that limits the power of Spanish judges to pursue criminal cases outside the country, a move that human rights organisations said would end Spain’s leading role as an enforcer of international justice.

Last month, the ruling People’s party (PP) tabled a fast-track legal change to curb the use of universal jurisdiction, a provision in international law that allows judges to try cases of human rights abuses committed in other countries. Since being adopted into Spanish law nearly two decades ago, the doctrine has allowed Spanish judges to reach beyond their borders and investigate serious human rights abuses in countries such as Argentina, Rwanda and Guatemala.

Its use put the Spanish justice system into the headlines at times — most famously for the 1998 arrest of the Chilean dictator Augusto Pinochet in London.

“This reform makes it even harder to probe into severe human rights abuses,” said Ignacio Jovtis, of Amnesty International Spain. “It’s a step backwards for human rights and justice.”

Nearly two dozen international human rights groups have spoken out against the change, calling it political interference in the justice system and urging the government to abandon the reform.

It’s one thing to provide a venue for pursuing violations of civil rights, but it’s quite another to allow your justice system to become an international laughingstock. Spain’s legal system has come dangerously close to the latter with the current law in place. It certainly has created some awkward situations like this:

MPs voted to push ahead with the move a day after a court in Spain ordered Interpol to issue arrest warrants for the former Chinese president Jiang Zemin, as well as four senior Chinese officials, over alleged human rights abuses in Tibet decades ago.

The arrest orders come just as Spain is seeking to lift its sagging economy by deepening trade relations with the Asian superpower.

China issued a sharp rebuke, leaving little question that the issue had strained ties between the two countries. “China is strongly dissatisfied and firmly opposed to the erroneous acts taken by the Spanish agencies in disregard of China’s position,” said a foreign ministry spokeswoman, Hua Chunying, at a daily briefing.

November 12, 2013

The cult of the victim

Filed under: Law, Media — Tags: , , — Nicholas @ 08:38

In sp!ked, Barbara Hewson explains why the “believe the victim” mantra is a “recipe for injustice”:

First, it creates an ideal climate in which those who have not been abused can claim that they have been. Second, it ignores the ease with which false memories of abuse can be created, whether by self-persuasion, interaction with victim/survivor groups, or influence by third parties with axes to grind. Those third parties may include therapists, policemen, injury lawyers, campaign groups, and journalists avid for scandal. All these players espouse the ideology of victimisation.

In 1997, the US sociologist Joel Best identified seven widely accepted propositions which, taken together, create this powerful ideology:

1) Victimisation is widespread;
2) Its consequences are fundamentally psychological, and long-lasting;
3) Victims are innocent, victimisers are exploitative, and there is no room for moral ambiguity;
4) Both society and victims themselves fail to appreciate the extent of victimisation;
5) People must be taught to recognise their own, and others’ victimisation;
6) Claims of victimisation must not be challenged, as this is ‘victim-blaming’;
7) The word ‘victim’ connotes powerlessness: the term ‘survivor’ is preferable. (1)

Victims/survivors are praised for their courage, and enjoined to recover. The language of recovery is permeated by the doctrinaire religiosity of the 12-step movement, pioneered by the founders of AA in the US. This may explain why some victim-advocacy groups can sound cult-like, with their own jargon (‘grooming’, ‘trafficking’, ‘mind control’) and their disdain for non-believers.

But, like any religion, the victim/survivor movement needs new recruits and new spheres of influence. Not satisfied with sensitising society to victims’ needs, they then demand integration within institutional structures, and then wholesale institutional change. The contemporary victim industry, according to Best, mass-produces victims.

Even those who deny prior experience of victimisation are seen as candidates for conversion. Best quotes the comedienne Roseanne Barr from the early Nineties: ‘When someone asks you, “Were you sexually abused as a child?”, there’s only two answers. One of them is, “Yes”, and one of them is “I don’t know”. You can’t say no.’

What Barr alludes to is the concept of ‘gradual disclosure’. Hugely influential with therapists and social workers, this posits that people who have been abused will initially deny it, and need help to overcome their denial. This is a deeply flawed approach, because it assumes that there is always something to disclose. It refuses to countenance the possibility that a denial means there is nothing to disclose. According to researchers, there is no clinical evidence to support the theory of gradual disclosure (2).

October 24, 2013

Balancing the scales of justice

Filed under: Law, USA — Tags: , , , — Nicholas @ 10:45

Do you remember the name Annie Dookhan? She shows up in a post called “If you’re not getting enough convictions on drug charges, tamper with the evidence at the lab“. Her case came to court recently and she was sentenced to a three-year prison term. At Popehat, Clark does a bit of math to determine whether the scales of justice are in balance here:

Before she was caught Dookhan lied about 34,000 samples.

Over 4,000 cases were tainted with her corrupt evidence.

Over 1,100 people were jailed in cases where Dookhan was the primary or secondary chemist finding them “guilty” of drug crimes.

Without knowing the exact durations of their sentences, we can’t know how many person-years of confinement Dookhan was responsible for, but taking two years as a conservative guess per person, she was responsible for 2,200 person years of confinement.

Without knowing the exact torture and abuse these 1,100 men and women underwent, we can’t know exactly how much rape and degredation Dookhan was responsible for, but given that we do know that most rape victims in the US are men, specifically men in the custody and “protection” of the State, and looking at the multiple studies that show that 9-20% of inmates are raped, we can guess that Dookhan was responsible for over 100 men and women being raped. To hand-wave further, we can guess than because “once a punk, always a punk” in the prisoner’s code, she is responsible for thousands of actual rapes.

To recap:

Ariel Castro:

  • crime: 3 prisoners, 30 person years, hundreds of rapes.
  • sentence: life plus 1,000 years.

Annie Dookhan:

  • crime: 1,100+ prisoners, 2,200+ person years, thousands of rapes.
  • sentence: three years,

September 18, 2013

Elizabeth Loftus on false memories

Filed under: Health, Science — Tags: , , , — Nicholas @ 07:19

The more we discover about the process of memory formation and recall, the more we discover that our memories are more fallible and plastic than we believed. Elizabeth Loftus talks to Alison George about the problem of false memories:

AG: How does this happen? What exactly is going on when we retrieve a memory?
EL: When we remember something, we’re taking bits and pieces of experience — sometimes from different times and places — and bringing it all together to construct what might feel like a recollection but is actually a construction. The process of calling it into conscious awareness can change it, and now you’re storing something that’s different. We all do this, for example, by inadvertently adopting a story we’ve heard — like Romney did.

AG: How did you end up studying false memories?
EL: Early in my career, I had done some very theoretical studies of memory, and after that I wanted to [do] work that had more obvious practical uses. The memory of witnesses to crimes and accidents was a natural place to go. In particular I looked at what happens when people are questioned about their experiences. I would ultimately see those questions as a means by which the memories got contaminated.

AG: You’re known for debunking the idea of repressed memories. Why focus on them?
EL: In the 1990s we began to see these recovered-memory cases. In the first big one, a man called George Franklin was on trial. His daughter claimed she had witnessed her father kill her best friend when she was 8 years old — but had only remembered this 20 years later. And that she had been raped by him and repressed that memory too. Franklin was convicted of the murder, and that started this repressed-memory ball rolling through the legal system. We began to see hundreds of cases where people were accusing others based on claims of repressed memory. That’s what first got me interested.

AG: How did you study the process of creating false memories?
EL: We needed a different paradigm for studying these types of recollections. I developed a method for creating “rich false memories” by using strong suggestion. The first such memory was about getting lost in a shopping mall as a child.

AG: How susceptible are people to having these types of memories implanted?
EL: Depending on the study, you might get as many as 50 percent of people falling for the suggestion and developing a complete or partial false memory.

As I’ve mentioned before, the more we learn about memory, the less comfortable I am with the belief that eyewitness testimony in criminal cases is as dependable as our legal system assumes. There are definitely large numbers of people in prison based on eyewitness accounts … some of which are almost certainly false memories (but believed by the witness to be accurate).

AG: Is there any way to distinguish a false memory from a real one?
EL: Without independent corroboration, little can be done to tell a false memory from a true one.

AG: Could brain imaging one day be used to do this?
EL: I collaborated on a brain imaging study in 2010, and the overwhelming conclusion we reached is that the neural patterns were very similar for true and false memories. We are a long way away from being able to look at somebody’s brain activity and reliably classify an authentic memory versus one that arose through some other process.

AG: Do you think it’s important for people to realize how malleable their memory is?
EL: My work has made me tolerant of memory mistakes by family and friends. You don’t have to call them lies. I think we could be generous and say maybe this is a false memory.

August 6, 2013

Get used to seeing the term “parallel construction”

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

From Zero Hedge:

Undated documents discovered by Reuters show that federal agents are trained to “recreate” the investigative trail to effectively cover up where the information originated, a practice that some experts say violates a defendant’s Constitutional right to a fair trial.

“I have never heard of anything like this at all,” is one law professor’s response to the fact that a secretive DEA unit is funneling wiretap, informant, and telephone database information to authorities across the nation in order to launch investigations of Americans (targeting common criminals, primarily drug dealers), “It is one thing to create special rules for national security, ordinary crime is entirely different. It sounds like they are phonying up investigations.”

Agents are instructed to use “normal investigative techniques to recreate the information provided by [the secret DEA source],” and as the documents reveal — “remember that the utilization of [data] cannot be revealed or discussed in any investigative function.”

Stunningly, after an arrest was made, agents then created a “parallel construction” to suggest the information secretly gathered was stumbled up during the course of the investigation — “It’s just like laundering money — you work it backwards to make it clean.” One recently retired federal gent noted, “It was an amazing tool; our big fear was that it wouldn’t stay secret.”

July 22, 2013

When is an “arrest” not really an arrest?

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

Answer: when you try to sue them for false arrest:

The Portland police and City Attorney are making an argument in federal court this month that gives another glimpse into the increasing claims of authority of police in our society. Scott Miller was stopped for jaywalking by Officer Dean Halley in 2010 and admitted that he committed the common violation of pedestrians. The officer however proceeded to handcuff him, tell him “you’re under arrest,” throw him into the back of a cruiser and then drove him a block away. He was in custody for about 30 minutes, but Deputy City Attorney William Manlove is arguing that citizens cannot sue because such acts do not constitute an actual arrest. They are something between a chat and custody, but not an arrest for purposes of legal action.

So, according to Portland, this constitutes just being detained and is effectively beyond any challenge of a citizen. In other words, police can routinely handcuff citizens, lock them in court and even tell them that they are under arrest without being subject to accountability for wrongful arrests.

Deputy City Attorney William Manlove insists that when Miller briefly jaywalked one morning while trying to catch a bus, he could be detained and handcuffed but not treated as an arrested person despite the express statement of the officer. It is an argument that would allow officers virtually unchecked authority in handcuffing citizens and holding them. It is the perfect authoritarian loophole and the city Portland wants to help establish it for future cases.

When Officer Friendly roughs you up, searches your car, and detains you for an indeterminate period of time, in no way does that imply that your rights have been infringed, citizen. Move along … nothing to see here.

July 16, 2013

QotD: American justice

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

The defining characteristic of English law is its distribution of power between prosecutor, judge, and jury. This delicate balance has been utterly corrupted in the United States to the point where today at the federal level there is a conviction rate of over 90 percent — which would impress Mubarak and the House of Saud, if not quite, yet, Kim Jong Un. American prosecutors have an unhealthy and disreputable addiction to what I called, at the conclusion of the trial of my old boss Conrad Black six years ago, “countless counts.” In Conrad’s case, he was charged originally with 17 crimes, three of which were dropped by the opening of the trial and another halfway through, leaving 13 for the jury, nine of which they found the defendant not guilty of, bringing it down to four, one of which the Supreme Court ruled unconstitutional and the remaining three of which they vacated, only to have two of them reinstated by the lower appeals court. In other words, the prosecution lost 88 percent of the case, but the 12 percent they won was enough to destroy Conrad Black’s life.

Multiple charges tend, through sheer weight of numbers, to favor a result in which the jury convict on some and acquit on others and then tell themselves that they’ve reached a “moderate” “compromise” as befits the reasonable persons they assuredly are. It is, of course, not reasonable. Indeed, the notion of a “compromise” between conviction and acquittal is a dagger at the heart of justice. It’s the repugnant “plea bargain” in reverse, but this time to bargain with the jury: Okay, we threw the book at him and it went nowhere, so why don’t we all agree to settle? In Sanford, the state’s second closing “argument” to the strange, shrunken semi-jury of strikingly unrepresentative peers — facts, shmacts, who really knows? vote with your hearts — brilliantly dispenses with the need for a “case” at all.

Mark Steyn, “A Dagger at the Heart of Justice”, National Review, 2013-07-15

July 9, 2013

Replacing impartial courts with revolutionary tribunals

Filed under: Government, Greece, Law, Media, USA — Tags: , , , — Nicholas @ 08:57

Victor Davis Hanson talks about earlier experiments with tribunals:

In ancient Athens, popular courts of paid jurors helped institutionalize fairness. If a troublemaker like Socrates was thought to be a danger to the popular will, then he was put on trial for inane charges like “corrupting the youth” or “introducing new gods.”

Convicting gadflies would remind all Athenians of the dangers of questioning democratic majority sentiment. If Athenian families were angry that their sons had supposedly died unnecessarily in battle, then they might charge the generals with capital negligence — a warning to all commanders to watch their backs. As in the case of Socrates, a majority vote often led to conviction, and conviction to a death sentence, or at least ostracism or exile. The popular courts freelanced to ensure that “the people” would hold sway over the perceived powerful and elite.

For a couple of years in revolutionary France, a Tribunal Révolutionnaire tried royalists, clergy, the wealthy, and supposed counter-revolutionaries on trumped-up charges of crimes against the people. Their purpose was a more violent version of the Athenian idea that the courts should serve the public by targeting the prominent, influential, or wealthy.

We in the United States are in jeopardy of turning our own criminal-justice system into revolutionary tribunals — fanned by the popular media and public opinion and directed against so-called enemies of the people.

[. . .]

The American court system is insidiously focusing on social transformation rather than individual justice. If Neanderthal reactionaries in California twice voted to reiterate that marriage is between a man and a woman, then leave it to judges and courts to find them bigoted and politically incorrect. In the present revolutionary environment, the degree of the Obama administration’s enforcement of federal laws concerning gay marriage, or illegal immigration, or the new health-care law has hinged on politics and perceptions about social justice — and the courts increasingly predicate their own decision-making on these same considerations. The street can brand a court either an esteemed ally or a reactionary enemy of the people, and so the courts make the necessary adjustments.

Update: The New York Times editorial board expresses its concern about “the laws you can’t see”.

As Eric Lichtblau reported in The Times on Sunday, the Foreign Intelligence Surveillance Court has for years been developing what is effectively a secret and unchallenged body of law on core Fourth Amendment issues, producing lengthy classified rulings based on the arguments of the federal government — the only party allowed in the courtroom. In recent years, the court, originally established by Congress to approve wiretap orders, has extended its reach to consider requests related to nuclear proliferation, espionage and cyberattacks. Its rulings, some of which approach 100 pages, have established the court as a final arbiter in these matters.

But the court is as opaque as it is powerful. Every attempt to understand the court’s rulings devolves into a fog of hypothesis and speculation.

[. . .]

As outrageous as the blanket secrecy of the surveillance court is, we are equally troubled by the complete absence of any adversarial process, the heart of our legal system. The government in 2012 made 1,789 requests to conduct electronic surveillance; the court approved 1,788 (the government withdrew the other). It is possible that not a single one of these 1,788 requests violated established law, but the public will never know because no one was allowed to make a counterargument.

When judicial secrecy is coupled with a one-sided presentation of the issues, the result is a court whose reach is expanding far beyond its original mandate and without any substantive check. This is a perversion of the American justice system, and it is not necessary.

June 22, 2013

Interesting – and probably inevitable – legal wrinkle for the NSA

Filed under: Law, Liberty, Technology, USA — Tags: , , , — Nicholas @ 08:58

At Outside the Beltway, Doug Mataconis links to an interesting article:

It’s only been a few weeks since we learned to true scope of the National Security Agency’s data mining of the phone records of American citizens, but already lawyers in civil and criminal cases across the country are seeing the database as a potential discovery goldmine:

    The National Security Agency has spent years demanding that companies turn over their data. Now, the spy agency finds the shoe is on the other foot. A defendant in a Florida murder trial says telephone records collected by the NSA as part of its surveillance programs hold evidence that would help prove his innocence, and his lawyer has demanded that prosecutors produce those records. On Wednesday, the federal government filed a motion saying it would refuse, citing national security. But experts say the novel legal argument could encourage other lawyers to fight for access to the newly disclosed NSA surveillance database.

    “What’s good for the goose is good for the gander, I guess,” said George Washington University privacy law expert Dan Solove. “In a way, it’s kind of ironic.”

    Defendant Terrance Brown is accused of participating in the 2010 murder of a Brinks security truck driver. Brown maintains his innocence, and claims cellphone location records would show he wasn’t at the scene of the crime. Brown’s cellphone provider — MetroPCS — couldn’t produce those records during discovery because it had deleted the data already.

    On seeing the story in the Guardian indicating that Verizon had been ordered to turn over millions of calling records to the NSA last month, Brown’s lawyer had a novel idea: Make the NSA produce the records.

[. . .]

This particular criminal case is, of course, on where the Federal Government is a party to the case as a prosecutor. As such, the Judge must weight not simply the government’s argument that the information requested is classified and thus should not be disclosed, but also the question of whether the prosecution has a duty to turn over the evidence to the Defendant. As a general rule, the prosecution must turn over any evidence that is potentially exclupatory or which tend to call some aspect of the prosecution’s theory of the case into doubt. The rules for what must be turned over vary from state to state, and the Federal Courts have their own rules, but they all generally follow the principles set down by Brady v. Maryland, which established the general rule that Defendants are entitled to be provided with exculpatory evidence that prosecution may have against them.

Of more interest, though, is the likely hood that attorneys may try to gain access to this NSA metadata in cases where the Federal Government is not involved, such as state court criminal proceedings or even civil matters such as divorces

June 21, 2013

How many laws have you broken today?

Filed under: Law, Liberty, USA — Tags: , , — Nicholas @ 10:09

Alex Tabarrok on the changes to US criminal law over the years: No One is Innocent.

I broke the law yesterday and again today and I will probably break the law tomorrow. Don’t mistake me, I have done nothing wrong. I don’t even know what laws I have broken. Nevertheless, I am reasonably confident that I have broken some laws, rules, or regulations recently because its hard for anyone to live today without breaking the law. Doubt me? Have you ever thrown out some junk mail that came to your house but was addressed to someone else? That’s a violation of federal law punishable by up to 5 years in prison.

Harvey Silverglate argues that a typical American commits three felonies a day. I think that number is too high but it is easy to violate the law without intent or knowledge. Most crimes used to be based on the common law and ancient understandings of wrong (murder, assault, theft and so on) but today there are thousands of federal criminal laws that bear no relation to common law or common understanding.

[. . .]

If someone tracked you for a year are you confident that they would find no evidence of a crime? Remember, under the common law, mens rea, criminal intent, was a standard requirement for criminal prosecution but today that is typically no longer the case especially under federal criminal law .

Faced with the evidence of an non-intentional crime, most prosecutors, of course, would use their discretion and not threaten imprisonment. Evidence and discretion, however, are precisely the point. Today, no one is innocent and thus our freedom is maintained only by the high cost of evidence and the prosecutor’s discretion.

June 18, 2013

A brief history of Habeas Corpus

Filed under: History, Law, Liberty, USA — Tags: , , , , — Nicholas @ 10:09

In Reason, Jonathan Hafetz reviews a new book by Anthony Gregory called The Power of Habeas Corpus in America: From the King’s Prerogative to the War on Terror:

This tension between the ideal and the reality of habeas corpus is central to Anthony Gregory’s excellent new book, The Power of Habeas Corpus in America. Gregory, a research fellow at the Independent Institute, provides a valuable contribution to the literature on habeas corpus, one with broader implications for civil liberties, state power, and justice in a liberal democracy. The book does not attempt to capture all of the complex doctrinal shifts in habeas over the centuries. Instead, it synthesizes these developments to underscore a paradox: the way habeas serves as “both as an engine and a curb on state power.” In the process, Gregory charts how power dynamics have historically shaped struggles over habeas and its role in American society.

Gregory situates this paradox early in habeas‘ history. During the 15th and 16th centuries, habeas served mainly as a mechanism for England’s central courts to assert control over ecclesiastical courts and other rival tribunals. By demanding that reason be given why any of the king’s subjects was imprisoned, habeas helped increase the crown’s authority and legitimacy.

By the late 17th century, on the other hand, habeas had become a means of challenging royal authority itself, eventually taking on its modern incarnation as the Great Writ of Liberty. Yet even here, the story is more complex. Building on the pioneering work of historian Paul Halliday, Gregory points out that, contrary to popular interpretations, habeas‘ potential as a judicial constraint on state power was threatened by legislation. Gregory notes, for instance, how the famous Habeas Corpus Act of 1679, labeled by William Blackstone as a “second Magna Carta and stable bulwark of our liberties,” ultimately diluted the writ’s potency and flexibility by tying it down to statute. Increasingly, habeas‘ efficacy would be seen to depend on legislative action — an understanding perhaps best illustrated by U.S. Supreme Court Chief Justice John Marshall’s statement that a federal court’s power to award the writ “must be given by written law.”

[. . .]

The contradictions within habeas were manifested during antebellum America, where the writ was used both to bolster slavery and to undermine it. Slave owners employed habeas to apprehend runaways — for example, by petitioning state courts in the North to assist in apprehending their “property.” Other state courts in the North, by contrast, sometimes used habeas to free slaves or block their return to the South. Ultimately, the ability of state courts to wield habeas in defense of individual liberty was limited by Supreme Court rulings barring state interference with the enforcement of federal fugitive slave laws and, eventually, with federal detentions generally — an example of what Gregory describes as the dangers of centralization.

A significant counter to Gregory’s thesis is the role federal habeas corpus played during the 20th century in helping enforce civil rights in the South and in advancing the criminal procedure revolution undertaken by the Supreme Court to protect the rights of defendants. Gregory’s account here runs against the traditional narrative in which habeas‘ centralization was critical to its continuing role in protecting liberty. In response, Gregory cites the declining utility of federal habeas corpus following several decades of Supreme Court decisions and congressional restrictions that have made it more difficult for prisoners not merely to obtain relief but even to have their claims heard by a judge. Federal habeas, Gregory writes, has become a “shell of what it promised to be.”

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