Quotulatiousness

July 3, 2014

Jeremy Bentham’s “secret” writings

Filed under: Britain, History, Liberty, Media, Quotations — Tags: , , , — Nicholas @ 10:43

In the Guardian, Faramerz Dabhoiwala reviews a recent “discovery” that Jeremy Bentham, far from being an innocent about sexual matters (as portrayed by his disciple John Stuart Mill among others), had thought deeply on the topic and had written much. After his death, these writings were ignored for fear that they would discredit his wider body of work.

Bodily passion was not just a part of Bentham’s life: it was fundamental to his thought. After all, the maximisation of pleasure was the central aim of utilitarian ethics. In place of the traditional Christian stress on bodily restraint and discipline, Bentham sought, like many other 18th-century philosophers, to promote the benefits of economic consumption, the enjoyment of worldly appetites and the liberty of natural passions. This modern, enlightened view of the purpose of life spawned a revolution in sexual attitudes, and no European scholar of the time pursued its implications as thoroughly as Bentham. To think about sex, he noted in 1785, was to consider “the greatest, and perhaps the only real pleasures of mankind”: it must therefore be “the subject of greatest interest to mortal men”. Throughout his adult life, from the 1770s to the 1820s, he returned again and again to the topic. Over many hundreds of pages of private notes and treatises, he tried to strip away all the irrational and religious prohibitions that surrounded sexual activity.

Of all enjoyments, Bentham reasoned, sex was the most universal, the most easily accessible, the most intense, and the most copious — nothing was more conducive to happiness. An “all-comprehensive liberty for all modes of sexual gratification” would therefore be a huge, permanent benefit to humankind: if consenting adults were freed to do whatever they liked with their own bodies, “what calculation shall compute the aggregate mass of pleasure that may be brought into existence?”

The main impetus for Bentham’s obsession with sexual freedom was his society’s harsh persecution of homosexual men. Since about 1700, the increasing permissiveness towards what was seen as “natural” sex had led to a sharpened abhorrence across the western world of supposedly “unnatural” acts. Throughout Bentham’s lifetime, homosexuals were regularly executed in England, or had their lives ruined by the pillory, exile or public disgrace. He was appalled at this horrible prejudice. Sodomy, he argued, was not just harmless but evidently pleasurable to its participants. The mere fact that the custom was abhorrent to the majority of the community no more justified the persecution of sodomites than it did the killing of Jews, heretics, smokers, or people who ate oysters — “to destroy a man there should certainly be some better reason than mere dislike to his Taste, let that dislike be ever so strong”.

Though ultimately he never published his detailed arguments for sexual liberty for fear of the odium they would bring on his general philosophy, Bentham felt compelled to think them through in detail, to write about them repeatedly and to discuss them with his acquaintances. In one surviving letter to a friend, he joked that his rereading of the Bible had finally revealed that the sin for which God had punished the inhabitants of Sodom and Gomorrah was not in fact buggery, but the taking of snuff. He and his secretary had consequently taken a solemn oath to hide their snuff-pouches and nevermore to indulge “that anti-Christian and really unnatural practice” in front of one another. Meanwhile, they were now both happily free to enjoy “the liberty of taking in the churchyard or in the market place, or in any more or less public or retired spot with Man, Woman or Beast, the amusement till now supposed to be so unrighteous, but now discovered to be a matter of indifference”. Among those with whom Bentham discussed his arguments for sexual toleration were such influential thinkers and activists as William Godwin, Francis Place and James Mill (John Stuart Mill’s father). Bentham’s ultimate hope, “for the sake of the interests of humanity”, was that his private elaboration and advocacy of these views might contribute to their eventual free discussion and general acceptance. “At any rate,” he once explained, even if his writings could not be published in his own lifetime, “when I am dead mankind will be the better for it”.

April 17, 2014

Online illegal drug sales persist because they’re safer than other channels

Filed under: Britain, Law, Liberty — Tags: , , , , — Nicholas @ 07:34

At the Adam Smith Institute blog, Daniel Pryor discusses the reasons for “Silk Road” continuing despite police crackdowns:

Growing up in Essex has made me appreciate why purchasing illegal drugs online is a far more attractive option. I have experienced the catastrophic effects of drug prohibition first-hand, and it is part of the reason that the issue means a great deal to me. Friends and acquaintances have had terrible experiences due to contamination from unscrupulous dealers with little incentive to raise their drugs’ quality, and every reason to lace their products with harmful additives. The violence associated with buying and selling drugs in person has affected the lives of people close to me.

As a current university student, I now live in an environment populated by many people who use Silk Road regularly, and for a variety of purchases. From prescription-only ‘study drugs’ like modafinil to recreational marijuana and cocaine, fellow students’ experiences with drugs ordered from Silk Road have reinforced my beliefs in the benefits of legalisation. They have no need to worry about aggressive dealers and are more likely to receive safer drugs: meaning chances of an overdose and other health risks are substantially reduced.

Their motivations for using Silk Road rather than street dealers correlate with the Global Drug Survey’s findings. Over 60% of participants cited the quality of Silk Road’s drugs as being a reason for ordering, whilst a significant proportion also used the site as a way to avoid the potential violence of purchasing from the street. Given that payments are made in the highly volatile Bitcoin, it was also surprising to learn that lower prices were a motivation for more than a third of respondents.

April 12, 2014

Under-the-table money in college sports

Filed under: Football, Sports, USA — Tags: , , , , — Nicholas @ 08:58

As I’ve said before, I don’t follow US college football — which is why the pre-draft churn of names and teams in NFL coverage moves me very little — so my knowledge of how the NCAA organizes and manages team sports is pretty low. I do know that a lot of university student athletes are given scholarships with many nasty strings attached which force them into emphasizing the sport over their education. The scholarships are tied to team performance, so that what should be a great opportunity for a kid to earn a degree that otherwise would be out-of-reach effectively turns into four years of indentured servitude, followed by non-graduation. The students are also forbidden to earn money from activities related to their sport (signing autographs for a fee or selling an old game jersey can get you thrown out of school). Gregg Easterbrook regularly points out that some “powerhouse” football schools have terrible graduation rates for their students: the players are used up and discarded and nobody cares that they leave college no better off — and in many cases much worse-off — than when they started.

That’s one of the reasons I’m fascinated with the drive to introduce unions at the college level: even if the students don’t end up with a salary, they should at least be able to count on their scholarship to keep them attending class regardless of the whims of their coaches.

However, if the allegations in this story are true, the situation is even murkier than I’d been lead to believe:

The Bag Man excuses himself to make a call outside, on his “other phone,” to arrange delivery of $500 in cash to a visiting recruit. The player is rated No. 1 at his position nationally and on his way into town. We’re sitting in a popular restaurant near campus almost a week before National Signing Day, talking about how to arrange cash payments for amateur athletes.

“Nah, there’s no way we’re landing him, but you still have to do it,” he says. “It looks good. It’s good for down the road. Same reason my wife reads Yelp. These kids talk to each other. It’s a waste of money, but they’re doing the same thing to our guys right now in [rival school’s town]. Cost of business.”

Technically, this conversation never happened, because I won’t reveal this man’s name or the player’s, or even the town I visited. Accordingly, all the other conversations I had with different bag men representing different SEC programs over a two-month span surrounding National Signing Day didn’t happen either.

Even when I asked for and received proof — in this case a phone call I watched him make to a number I independently verified, then a meeting in which I witnessed cash handed to an active SEC football player — it’s just cash changing hands. When things are done correctly, there’s no proof more substantial than one man’s word over another. That allows for plausible deniability, which is good enough for the coaches, administrators, conference officials, and network executives. And the man I officially didn’t speak with was emphatic that no one really understands how often and how well it almost always works.

[…]

This is the arrangement in high-stakes college football, though of course not every player is paid for. Providing cash and benefits to players is not a scandal or a scheme, merely a function. And when you start listening to the stories, you understand the function can never be stopped.

“Last week I got a call. We’ve got this JUCO transfer that had just got here. And he’s country poor. The [graduate assistant] calls me and tells me he’s watching the AFC Championship Game alone in the lobby of the Union because he doesn’t have a TV. Says he never owned one. Now, you can buy a Walmart TV for $50. What kid in college doesn’t have a TV? So I don’t give him any money. I just go dig out in my garage and find one of those old Vizios from five years back and leave it for him at the desk. I don’t view what I do as a crime, and I don’t give a shit if someone else does, honestly.”

“If we could take a vote for these kids to make a real salary every season, I would vote for it. $40,000 or something. Goes back to mama, buys them a car, lets them go live like normal people after they work their asses off for us. But let’s be honest, that ain’t gonna stop all this. If everyone gets $40,000, someone would still be trying to give ’em 40 extra on the side.”

This is how you become a college football bag man.

February 15, 2014

In one stroke, Connecticut becomes the state with the highest proportion of criminals

Filed under: Law, Liberty, USA — Tags: , , , — Nicholas @ 10:54

In a development that absolutely nobody could have seen coming, Connecticut has the highest known population of (technical) criminals in the United States:

In a massive display of civil disobedience, tens of thousands of state residents have refused to register what the left calls assault weapons, instantly making them criminals guilty of a felony.

The legacy of the Connecticut residents who used their privately owned firearms to help overthrow the tyrannical colonial rule of King George III, who probably considered their muskets the military-style assault weapon of the day, apparently lives on.

Connecticuters in the tens, perhaps hundreds, of thousands have refused to comply with a law, adopted after the December 2012 massacre at Sandy Hook Elementary School, requiring them to register what gun-control advocates consider assault weapons by the end of 2013.

As the Hartford Courant reports, as of Dec. 31 some 47,916 applications for assault weapons certificates had been received by state police. By some estimates, this represented as little as 15% of the rifles classified as assault weapons owned by Connecticut residents.

Estimates by people in the industry, including the Newtown-based National Shooting Sports Foundation, place the number as high as 350,000.

Update, 19 February: The editorial board of the Hartford Courant thinks that the solution to this problem is to just ignore the deadline or even scrap the law. No, wait, that’d be a sensible reaction. They actually want the state to round up the scofflaws en masse:

Some people actually tried to comply with the registration law, but missed the deadline. The state’s official position is that it will accept applications notarized on or before January 1, 2014 and postmarked by January 4. But, says Dora Schriro, Commissioner of the Department of Emergency Services and Public Protection, in a letter to lawmakers [PDF], anybody sufficiently law-abiding but foolish enough to miss that slightly extended grace period will have to surrender or otherwise get rid of their guns.

This, of course, is the eternally fulfilled fear of those who oppose registration of things governments don’t like — that allowing the government to know about them will result in their eventual confiscation. Such confiscation, despite assurances to the contrary, occurred in New York, California, and elsewhere. Connecticut has accomplished something special, though, by making “eventual” a synonym for “right now.”

You know who won’t have to surrender their weapons? People who quietly told the state to fuck off.

This successful example of mass defiance horrifies the editorial board of the Hartford Courant, which shudders at the sight of the masses not obeying an order that, history, tells us, never had a shot at wide compliance. According to them:

    It’s estimated that perhaps scores of thousands of Connecticut residents failed to register their military-style assault weapons with state police by Dec. 31….

    …the bottom line is that the state must try to enforce the law. Authorities should use the background check database as a way to find assault weapon purchasers who might not have registered those guns in compliance with the new law.

    A Class D felony calls for a maximum sentence of five years in prison and a $5,000 fine. Even much lesser penalties or probation would mar a heretofore clean record and could adversely affect, say, the ability to have a pistol permit.

    If you want to disobey the law, you should be prepared to face the consequences.

Such shock! Such outrage!

January 24, 2014

President Obama in hot water for not lying about marijuana

Filed under: Health, Politics, USA — Tags: , , , , — Nicholas @ 08:34

Politicians get into trouble for shading the truth, being “economical” with the truth, or just flat-out making shit up. It’s what politicians do. In this case, however, President Obama is taking flak because he didn’t lie:

Prohibitionists were outraged by President Obama’s recent observation that marijuana is safer than alcohol — not because it is not true but because it contradicts the central myth underlying public support for the war on drugs. According to that myth, certain psychoactive substances are so dangerous that they cannot be tolerated, and the government has scientifically identified them. In reality, the distinctions drawn by our drug laws are arbitrary, and marijuana is the clearest illustration of that fact.

“As has been well documented,” Obama told The New Yorker’s David Remnick in an interview published on Sunday, “I smoked pot as a kid, and I view it as a bad habit and a vice, not very different from the cigarettes that I smoked as a young person up through a big chunk of my adult life. I don’t think it is more dangerous than alcohol.” When Remnick pressed him to say whether marijuana is in fact less dangerous than alcohol, the president said yes, “in terms of its impact on the individual consumer.”

Judging from survey data, that is not a very controversial position. According to a recent CNN poll, 87 percent of Americans think marijuana is no more dangerous than alcohol, and 73 percent say it is less dangerous. Yet Obama’s statement does seem inconsistent with his administration’s stubborn defense of marijuana’s placement on Schedule I of the Controlled Substances Act, a category supposedly reserved for drugs with a high abuse potential that have no recognized medical value and cannot be used safely, even under a doctor’s supervision.

[…]

You can see why pot prohibitionists reacted with dismay to Obama’s comment — not because it was false but because it was true. As measured by acute toxicity, accident risk, and the long-term health effects of heavy consumption, marijuana is clearly safer than alcohol. That does not mean smoking pot poses no risks, or that drinking is so dangerous no one should ever do it. It simply means that the risks posed by alcohol are, on the whole, bigger than the risks posed by marijuana. So if our drug laws are supposed to be based on a clear-eyed evaluation of relative risks, some adjustment would seem to be in order.

January 22, 2014

Private prisons – crony capitalist palaces of injustice

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

The United States has seen a vast increase in the number of drug offenders (the majority of them non-violent) and a corresponding increase in the private prison industry. As Wendy McElroy explains, these are not free-market solutions to a government problem: they’re monuments to crony capitalism:

The United States leads the world, by a large margin, in the production of at least one thing: prisoners. We have 25 percent of the world’s inmates, but just 5 percent of the world’s population.

Where do they come from? Well, since the Anti-Drug Abuse Act of 1986, the number of American inmates has risen from approximately 300,000 to a currently estimated 2.3 million. This statistic points to the role of drug-related victimless “crime” in creating prisoners.

There are other sources. The “private prison complex” is a creation of crony capitalism through which privileged corporations are paid well for the “care” of inmates and for leasing out prison labor to other businesses.

Ten percent of American prisons are now “privately” operated, for-profit businesses. Between 1990 and 2010, the number of for-profit prisons rose 1600 percent, far outpacing the growth of public ones or the population at large. The likelihood of being arrested is already higher in America than anywhere else in the world. That likelihood will rise if the financial incentives to imprison more people continue or increase.

[…]

“Private” prisons are run by corporations to which government outsources the care of inmates. The corporation receives X tax dollars for each prisoner, quite apart from the actual cost of care. This builds in an incentive to skimp on services such as food and medical care. And, indeed, most prison contracts include a “low-crime tax” or “lock-up quota.” This system means taxpayers compensate the corporation for empty cells if the number of prisoners falls below a set quota. A recent report, “Criminal: How Lockup Quotas and ‘Low-Crime Taxes’ Guarantee Profits for Private Prison Corporations,” found the average “occupancy guarantee” to be 90 percent; in four states, it is between 95 percent and 100 percent. Thus the “private” prison is guaranteed a tax-funded profit.

[…]

The “private” prison industry is private in the same sense that crony capitalism is capitalist. Namely, not at all. It is the antithesis of a truly private industry that competes in the free market, does not accept tax funds, and cannot compel labor. By contrast, the “private” prisons enjoy a monopoly over a service that is created by laws and sentencing policies. They receive tax money and preferential treatment. They exploit captive labor through circumstances similar to plantation slavery.

November 12, 2013

Contacting the Boston Police public affairs office is now considered “intimidation”

Filed under: Law, Liberty, USA — Tags: , , , , — Nicholas @ 09:34

At Popehat, Ken White discusses the fascinating case of the public affairs office of the Boston Police department as a “victim” of “intimidation” from callers:

The story begins typically for Photography Is Not A Crime with a story about a Boston Police Department sergeant thuggishly assaulting a photographer recording a traffic stop. A PINAC fan and journalism student named Taylor Hardy called the Boston PD’s Bureau of Public Information on its public line to ask about the story. Hardy spoke with Angelene Richardson, a spokesperson for the Boston Police Department who provides information to the media and public. When Hardy published a recording of that call, the Boston Police Department arranged for him to be charged with wiretapping. Hardy claims that he informed Richardson that he was recording the call (though he did not successfully record that part of the conversation), apparently Richardson claims that he did not.

Even assuming that Hardy didn’t disclose that he was recording (and it would be foolish to take the BPD’s word on that), it’s very dubious policy for the government to charge a citizen with a crime for recording a call with a police department’s public information officer on the phone line the department identifies as its public information line. Any such communication can’t possibly be regarded as private. There may be constitutional problems with a wiretapping statute that allows prosecution of a citizen under those circumstances. But the BPP wasn’t done doubling down yet.

When Carlos Miller wrote about the wiretapping charges against Hardy, he encouraged readers to contact Richardson at her BDP telephone number and email address, which the BPD published online:

    Maybe we can call or email Richardson to persuade her to drop the charges against Hardy considering she should assume all her conversations with reporters are on the record unless otherwise stated.

In other words, Miller encouraged his readers to petition the government for a redress of grievances, as protected by the First Amendment.

The BPD has charged Miller with witness intimidation. The BPD also threatened any of Miller’s readers who contact the BPD:

    Detective Nick Moore also assured me he would do the same to any PINAC readers if they continue to contact departmental spokeswoman Angelene Richardson as they have been doing since yesterday.

    “I can go and get warrants for every person who called her,” he said during a telephone conversation earlier this evening. “It’s an annoyance. It’s an act of intimidation.”

Indeed — an act of intimidation is involved. But it’s an act of intimidation by the BPD, which is sending a clear message about how it will handle citizen dissent.

What a accomplishment: the Boston Police Department has discovered a way to make it a crime for citizens to contact the person it designates to talk to citizens.

October 26, 2013

The costs of drug prohibition – “Molly”

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

Jacob Sullum on Frank Owen and Lera Gavin’s search for “Molly” (MDMA powder in capsule form):

Last year in Playboy, Frank Owen skillfully dissected the Legend of the Causeway Cannibal, explaining how people around the world came to believe that the synthetic stimulants known as “bath salts” caused one man to eat another’s face, even though it turned out that the assailant had not actually consumed any of those drugs. In a new Playboy article, Owen and his wife, Lera Gavin, go “Chasing Molly,” searching high and low for some decent MDMA sold under its latest brand name. Spoiler alert: They fail.

[…]

It looks like many people who report MDMA-like experiences of openness and connectedness after consuming molly are providing further evidence of the powerful impact that “set and setting” (expectations and environment) have on a drug’s perceived effects. Yet this interesting experiment drug warriors have set up has a cost: not just disappointment but potentially deadly hazards for consumers who get something different from what they thought they were buying, as tends to happen in a black market.

Prohibition not only makes drugs more dangerous by creating a situation where people are swallowing iffy pills and snorting mystery powders; it blocks attempts to ameliorate those hazards. Owen and Gavin note that music festivals such as Electric Zoo, which this year was cut short after two drug-related deaths, “refuse to allow organizations such as Dance-Safe to test molly on-site because organizers fear they will be accused of condoning drug use.” Such accusations can trigger serious legal consequences, including forfeiture and criminal prosecution.

July 20, 2013

UK government inches closer to giving posthumous pardon to Alan Turing

Filed under: Britain, History, Law, WW2 — Tags: , , — Nicholas @ 09:50

In the Guardian, Nicholas Watt updates the news on a private member’s bill that would give Alan Turing a pardon:

Alan Turing, the Enigma codebreaker who took his own life after being convicted of gross indecency under anti-homosexuality legislation, is to be given a posthumous pardon.

The government signalled on Friday that it is prepared to support a backbench bill that would pardon Turing, who died from cyanide poisoning at the age of 41 in 1954 after he was subjected to “chemical castration”.

Lord Ahmad of Wimbledon, a government whip, told peers that the government would table the third reading of the Alan Turing (statutory pardon) bill at the end of October if no amendments are made. “If nobody tables an amendment to this bill, its supporters can be assured that it will have speedy passage to the House of Commons,” Ahmad said.

The announcement marks a change of heart by the government, which declined last year to grant pardons to the 49,000 gay men, now dead, who were convicted under the 1885 Criminal Law Amendment Act. They include Oscar Wilde.

Update: On the other hand, Matt Ridley thinks that there’s a major problem with this approach.

That Turing deserved an apology in his lifetime for this appalling treatment is not in doubt. What will be debated tomorrow is whether a posthumous pardon from today’s Government is right, or may be a further insult to his memory. After all, the word pardon implies that his crime is still a crime, which it is not, and it will do nothing for the victim (especially since he was an atheist), and do nothing to untarnish his reputation, which history has already fully untarnished. Also it could be unfair to other, less famous convicted gay men and may even seem to rewrite history rather than leaving it starkly to reproach us. By rights, Turing should be pardoning the Government, but that’s not possible.

So it is not easy to judge if a pardon is the right thing. For my part, I think a greater matter is at issue — whether we have done enough to recognise Turing’s scientific reputation and how we put that right. It becomes clearer by the day that, irrespective of his tragic end and even of his secret war service, he ranks for the momentous nature of his achievements with the likes of Francis Crick and Albert Einstein in the 20th-century scientific pantheon. This was not just a moderately good scientist made famous by persecution; this was the author of a really big idea.

[…]

When the war broke out, Turing’s genius proved as practical as it had been ethereal in the 1930s. His crucial contributions to three successive computing innovations at Bletchley Park — the “bombe” machines for replicating the settings of the German Enigma encryption machine, the later cracking of the naval Enigma machine enabling U-boat traffic to be read, and finally the Colossus computer that broke the Germans’ “tunny” cipher machine — provided Churchill with the famous “ultra” decrypts that almost certainly shortened the war and saved millions of lives in battlefields, ships and camps.

For this he was appointed OBE, but secrecy shrouded his work until long after his death, so he wasn’t known to be a hero, let alone the man who saved so many lives. He moved to what would become GCHQ, but in the paranoid days after Burgess and Maclean fled east, his homosexuality conviction categorised him as a security risk.

June 25, 2013

Portugal’s experience with drug decriminalization

Filed under: Europe, Health, Law, Liberty — Tags: , , , — Nicholas @ 14:38

The Cato Institute sent out a Twitter update, reminding everyone about the 2009 White Paper by Glenn Greenwald on how the Portuguese drug experiment played out after 2001:

On July 1, 2001, a nationwide law in Portugal took effect that decriminalized all drugs, including cocaine and heroin. Under the new legal framework, all drugs were “decriminalized,” not “legalized.” Thus, drug possession for personal use and drug usage itself are still legally prohibited, but violations of those prohibitions are deemed to be exclusively administrative violations and are removed completely from the criminal realm. Drug trafficking continues to be prosecuted as a criminal offense.

While other states in the European Union have developed various forms of de facto decriminalization — whereby substances perceived to be less serious (such as cannabis) rarely lead to criminal prosecution — Portugal remains the only EU member state with a law explicitly declaring drugs to be “decriminalized.” Because more than seven years have now elapsed since enactment of Portugal’s decriminalization system, there are ample data enabling its effects to be assessed.

Notably, decriminalization has become increasingly popular in Portugal since 2001. Except for some far-right politicians, very few domestic political factions are agitating for a repeal of the 2001 law. And while there is a widespread perception that bureaucratic changes need to be made to Portugal’s decriminalization framework to make it more efficient and effective, there is no real debate about whether drugs should once again be criminalized. More significantly, none of the nightmare scenarios touted by preenactment decriminalization opponents — from rampant increases in drug usage among the young to the transformation of Lisbon into a haven for “drug tourists” — has occurred.

The political consensus in favor of decriminalization is unsurprising in light of the relevant empirical data. Those data indicate that decriminalization has had no adverse effect on drug usage rates in Portugal, which, in numerous categories, are now among the lowest in the EU, particularly when compared with states with stringent criminalization regimes. Although postdecriminalization usage rates have remained roughly the same or even decreased slightly when compared with other EU states, drug-related pathologies — such as sexually transmitted diseases and deaths due to drug usage — have decreased dramatically. Drug policy experts attribute those positive trends to the enhanced ability of the Portuguese government to offer treatment programs to its citizens — enhancements made possible, for numerous reasons, by decriminalization.

June 24, 2013

Read an excerpt from Rise of the Warrior Cop by Radley Balko

Filed under: Books, Law, Liberty, USA — Tags: , , , , — Nicholas @ 16:09

There is an excerpt from the book Rise of the Warrior Cop in the July issue of the ABA Journal:

Are cops constitutional?

In a 2001 article for the Seton Hall Constitutional Law Journal, the legal scholar and civil liberties activist Roger Roots posed just that question. Roots, a fairly radical libertarian, believes that the U.S. Constitution doesn’t allow for police as they exist today. At the very least, he argues, police departments, powers and practices today violate the document’s spirit and intent. “Under the criminal justice model known to the framers, professional police officers were unknown,” Roots writes.

The founders and their contemporaries would probably have seen even the early-19th-century police forces as a standing army, and a particularly odious one at that. Just before the American Revolution, it wasn’t the stationing of British troops in the colonies that irked patriots in Boston and Virginia; it was England’s decision to use the troops for everyday law enforcement. This wariness of standing armies was born of experience and a study of history — early American statesmen like Madison, Washington and Adams were well-versed in the history of such armies in Europe, especially in ancient Rome.

If even the earliest attempts at centralized police forces would have alarmed the founders, today’s policing would have terrified them. Today in America SWAT teams violently smash into private homes more than 100 times per day. The vast majority of these raids are to enforce laws against consensual crimes. In many cities, police departments have given up the traditional blue uniforms for “battle dress uniforms” modeled after soldier attire.

Police departments across the country now sport armored personnel carriers designed for use on a battlefield. Some have helicopters, tanks and Humvees. They carry military-grade weapons. Most of this equipment comes from the military itself. Many SWAT teams today are trained by current and former personnel from special forces units like the Navy SEALs or Army Rangers. National Guard helicopters now routinely swoop through rural areas in search of pot plants and, when they find something, send gun-toting troops dressed for battle rappelling down to chop and confiscate the contraband. But it isn’t just drugs. Aggressive, SWAT-style tactics are now used to raid neighborhood poker games, doctors’ offices, bars and restaurants, and head shops — despite the fact that the targets of these raids pose little threat to anyone. This sort of force was once reserved as the last option to defuse a dangerous situation. It’s increasingly used as the first option to apprehend people who aren’t dangerous at all.

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.

May 26, 2013

Putting the Gibson Guitar raids into context

Filed under: Bureaucracy, Law, Politics, USA — Tags: , , , , — Nicholas @ 11:06

Remember back in 2011 when the US government raided Gibson Guitars for alleged violations of Indian law? (Posts here, here, here, here, and here.) Now that we’re learning much more about the IRS witch hunt for Tea Party organizations, Investor’s Business Daily points out that the Gibson raids now make sense:

Grossly underreported at the time was the fact that Gibson’s chief executive, Henry Juszkiewicz, contributed to Republican politicians. Recent donations have included $2,000 to Rep. Marsha Blackburn, R-Tenn., and $1,500 to Sen. Lamar Alexander, R-Tenn.

By contrast, Chris Martin IV, the Martin & Co. CEO, is a long-time Democratic supporter, with $35,400 in contributions to Democratic candidates and the Democratic National Committee over the past couple of election cycles.

“We feel that Gibson was inappropriately targeted,” Juszkiewicz said at the time, adding the matter “could have been addressed with a simple contact (from) a caring human being representing the government. Instead, the government used violent and hostile means.”

That includes what Gibson described as “two hostile raids on its factories by agents carrying weapons and attired in SWAT gear where employees were forced out of the premises, production was shut down, goods were seized as contraband and threats were made that would have forced the business to close.”

Gibson, fearing a bankrupting legal battle, settled and agreed to pay a $300,000 penalty to the U.S. Government. It also agreed to make a “community service payment” of $50,000 to the National Fish and Wildlife Foundation — to be used on research projects or tree-conservation activities.

Update, 31 January 2014: Gibson releases a new guitar to celebrate the end of the case.

Great Gibson electric guitars have long been a means of fighting the establishment, so when the powers that be confiscated stocks of tonewoods from the Gibson factory in Nashville — only to return them once there was a resolution and the investigation ended — it was an event worth celebrating. Introducing the Government Series II Les Paul, a striking new guitar from Gibson USA for 2014 that suitably marks this infamous time in Gibson’s history.

From its solid mahogany body with modern weight relief for enhance resonance and playing comfort, to its carved maple top, the Government Series II Les Paul follows the tradition of the great Les Paul Standards—but also makes a superb statement with its unique appointments. A distinctive vintage-gloss Government Tan finish, complemented by black-chrome hardware and black plastics and trim, is topped by a pickguard that’s hot-stamped in gold with the Government Series graphic—a bald eagle hoisting a Gibson guitar neck. Each Government Series II Les Paul also includes a genuine piece of Gibson USA history in its solid rosewood fingerboard, which is made from wood returned to Gibson by the US government after the resolution.

[…]

The Government Series II Les Paul is crafted in the image of the original Les Paul Standard, with a carved maple top and solid mahogany back with modern weight relief for improved playing comfort and enhanced resonance. The glued-in mahogany neck features a comfortably rounded late-’50s profile, while the unbound fingerboard — with a Corian™ nut, 22 frets and traditional trapezoid inlays just like the very first Gibson Les Pauls — is made from solid rosewood returned to Gibson by the US government. And, the guitar looks superb with its unique Government Tan finish in vintage-gloss nitrocellulose lacquer.

May 21, 2013

Conflating rules for “sexual harassment” with “sexual assault”

Filed under: Bureaucracy, Law, Liberty — Tags: , , , , , , — Nicholas @ 10:17

Wendy Kaminer on the issues of sexual harassment rules on campus:

What’s the difference between an unwelcome request for a date and rape? Pursuant to the Obama administration’s definition of sexual harassment, this is not an easy question to answer.

You have to read the administration’s latest diktat to colleges and universities to believe it. In a joint letter to the University of Montana (intended as ‘a blueprint’ for campus administrators nationwide), the Department of Justice (DoJ) and the Education Department’s Office of Civil Rights (OCR) define sexual harassment as ‘unwelcome conduct of a sexual nature’, verbal or non-verbal, including ‘unwelcome sexual advances or acts of sexual assault’. Conduct (verbal or non-verbal) need not be ‘objectively offensive’ to constitute harassment, the letter warns, ignoring federal court rulings on harassment, as well as common sense. If a student feels harassed, she may be harassed, regardless of the reasonableness of her feelings, and school administrators may be legally required to discipline her ‘harasser’.

They are also required to promulgate detailed policies parroting the DoJ/OCR definition of harassment, as well as procedures for reporting and prosecuting alleged offences: ‘Federal government mandates unconstitutional speech codes at college and universities nationwide’, the Foundation for Individual Rights in Education (FIRE) accurately declares:

‘Among the forms of expression now punishable on America’s campuses by order of the federal government are:

  • Any expression related to sexual topics that offends any person. This leaves a wide range of expressive activity — a campus performance of The Vagina Monologues, a presentation on safe-sex practices, a debate about sexual morality, a discussion of gay marriage, or a classroom lecture on Vladimir Nabokov’s Lolita — subject to discipline.
  • Any sexually themed joke overheard by any person who finds that joke offensive for any reason.
  • Any request for dates or any flirtation that is not welcomed by the recipient of such a request or flirtation.

There is likely no student on any campus anywhere who is not guilty of at least one of these “offences”. Any attempt to enforce this rule evenhandedly and comprehensively will be impossible.’

FIRE is right to note that fair, inclusive enforcement of this mindlessly broad policy is impossible. But I doubt it’s intended to be fairly enforced. I doubt federal officials want or expect it to be used against sex educators, advocates of reproductive choice, anti-porn feminists or gay-rights advocates if their speech of a sexual nature is ‘unwelcome’ by religious conservatives.

May 20, 2013

18-year-old charged with two felonies due to relationship with 15-year-old

Filed under: Law, Liberty, USA — Tags: , , , , — Nicholas @ 10:08

An 18-year-old Floridian is facing two felony charges of “lewd and lascivious battery on a child 12 to 16” due to a relationship with a 15-year-old girl:

“These people never came to us as parents, never tried to speak to us… and tell us they had a problem with the girls dating,” Kaitlyn Hunt’s mother, Kelley Hunt-Smith, wrote in an statement posted to Facebook. “…They were out to destroy my daughter. [They] feel like my daughter ‘made’ their daughter gay.”

According to Hunt-Smith, police arrived at the family’s home Feb. 16 and put her daughter in handcuffs. Local news website TCPalm.com listed Kaitlyn Hunt’s arrest for “lewd and lascivious battery” on Feb. 18, and the girl’s mug shot is still easily accessible on the Internet.

But the trouble didn’t stop there. The other girl’s parents repeatedly tried to have Kaitlyn, a senior, expelled from school. Despite the Sebastian River High School administration’s denial of their request, and a judge’s order allowing Kaitlyn to remain in school (so long as the girls had no contact), the 15-year-old’s parents successfully petitioned the school board to have Hunt removed from school weeks prior to graduation.

On the one hand, it’s outrageous that Hunt has been charged, but it’s oddly re-assuring that even though it’s a lesbian relationship, it’s being dealt with exactly the same way that a comparable heterosexual relationship would be: treated as a sex crime. And yes, in either case it’s absurd that teenagers are being classed as sexual predators for relationships that would have been considered quite ordinary a decade ago.

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