Before 25-30 years ago, most people had a sense of what the law was, without having to go to law school, because they understood, intuitively, that some things were bad. Mala in se, the law calls it — “bad in itself.”
But the criminal codes have proliferated mala prohibata offenses — “bad just because the law has prohibited it” — like evil freedom-eating Tribbles for 30 years.
Do you know what you are currently permitted to do? Do you know what you will face a criminal penalty for doing?
You don’t. None of us are aware of the myriad laws we’re breaking every day, simply by doing things that seem obviously legal but some vicious Marxist bureaucrat somewhere decided to put you in jail for.
And this state of affairs works out perfectly for the Marxists.
30 years ago, you’d just assume that anything that wasn’t obviously contrary to morality was legal. That is, you’d have a built-in default setting of assuming liberty. And that assumption of liberty would then propel you to take actions.
But now, you have to assume that many things that aren’t contrary to morality are illegal anyway. And so you now have — quel coincidence! — a built-in default setting of assuming prohibition. And that assumption that many of the things you’d like to do are illegal and criminal thereby reduces your desire to take any action at all.
You become docile, unmotivated, compliant, and risk-averse.
And this state of affairs works out perfectly for those who would control you. Only half the things you’d like to do are actually criminal, but you assume the rest might be too, thus putting it in your head you need State Permission to take virtually any action besides going to work and, of course, paying the state its dues.
Ace, “Enemy of the State”, Ace of Spades HQ, 2013-02-26
February 27, 2013
QotD: “There ought to be a law”
February 17, 2013
A shocking, lurid tale of depravity that transfixed Victorian London
In History Today, Richard Canning reviews a new book on the trial of Frederick Park and Ernest Boulton, aka Mrs Fanny Graham and Miss Stella Boulton in 1871:
McKenna provides what is certainly the definitive account of the Boulton/Park story, drawn not only from contemporary journalism but also from the full legal transcript, a miraculous survivor housed in Kew’s National Archives. It is a miserable tale, if leavened both by McKenna’s dramatic verve and, during the show trial held in Westminster Hall, by Fanny and Stella’s black humour. The establishment account – that the pair’s persistent cross-dressing importuning was a scandal to public morals that must be stopped – soon breaks down. McKenna shows clearly how the men were effectively set up and, to some degree, even entrapped.
Police confidence in pressing the serious charge of ‘conspiracy to solicit, induce, procure and endeavour to persuade persons unknown to commit buggery’ (as opposed to the minor offence of outraging public decency) was nonetheless misplaced. Buggery had until lately incurred the death penalty and still carried a lifelong penal sentence. No such charge had been brought for 240 years. The problem which attended the endless, farcical medical examinations of Boulton and Park reflected sodomy’s millennial history as the nameless or invisible crime. Few Victorian doctors could claim to have seen evidence of the extreme anal dilation which purportedly occurred after the ‘insertion of a foreign body’. Of the half dozen who inspected the pair – both inveterate sodomites, as McKenna concedes – only one remained certain that the corporeal evidence supported conviction. They were acquitted and the notion that ‘the impurities of Continental cities’ had reached London was rooted in legal terms for a quarter-century – if paradoxically seeming somehow to be affirmed.
McKenna lays bare a fascinating tapestry of interrelated personal histories, only partially capable of reconstruction. Frederick’s elder brother Harry, already twice disgraced, was hiding in Scotland under an assumed name. Their father, a judge, was urgently shipped off to South Africa during the trial of his younger son. Impressively, Frederick’s mother – amusingly a literal ‘Mary Ann’ – took to the stand to defend his moral character. So successful was she that the identification of Frederick/’Fanny’ as a theatrical mother’s boy exonerated him entirely from the imputation of vice.
January 16, 2013
Prosecutorial abuse and the Swartz case
Writing in the Guardian, Glenn Greenwald calls for reform in the way prosecutors are immune from any consequences of their misdeeds:
To begin with, there has been a serious injustice in the Swartz case, and that alone compels accountability. Prosecutors are vested with the extraordinary power to investigate, prosecute, bankrupt, and use the power of the state to imprison people for decades. They have the corresponding obligation to exercise judgment and restraint in how that power is used. When they fail to do so, lives are ruined — or ended.
The US has become a society in which political and financial elites systematically evade accountability for their bad acts, no matter how destructive. Those who torture, illegally eavesdrop, commit systemic financial fraud, even launder money for designated terrorists and drug dealers are all protected from criminal liability, while those who are powerless — or especially, as in Swartz’s case, those who challenge power — are mercilessly punished for trivial transgressions. All one has to do to see that this is true is to contrast the incredible leniency given by Ortiz’s office to large companies and executives accused of serious crimes with the indescribably excessive pursuit of Swartz.
This immunity for people with power needs to stop. The power of prosecutors is particularly potent, and abuse of that power is consequently devastating. Prosecutorial abuse is widespread in the US, and it’s vital that a strong message be sent that it is not acceptable. Swartz’s family strongly believes — with convincing rationale — that the abuse of this power by Ortiz and Heymann played a key role in the death of their 26-year-old son. It would be unconscionable to decide that this should be simply forgotten.
[. . .]
In most of what I’ve written and spoken about over the past several years, this is probably the overarching point: the abuse of state power, the systematic violation of civil liberties, is about creating a Climate of Fear, one that is geared toward entrenching the power and position of elites by intimidating the rest of society from meaningful challenges and dissent. There is a particular overzealousness when it comes to internet activism because the internet is one of the few weapons — perhaps the only one — that can be effectively harnessed to galvanize movements and challenge the prevailing order. That’s why so much effort is devoted to destroying the ability to use it anonymously — the Surveillance State — and why there is so much effort to punishing as virtual Terrorists anyone like Swartz who uses it for political activism or dissent.
The law and prosecutorial power should not be abused to crush and destroy those who commit the “crime” of engaging in activism and dissent against the acts of elites. Nobody contests the propriety of charging Swartz with some crime for what he did. Civil disobedience is supposed to have consequences. The issue is that he was punished completely out of proportion to what he did, for ends that have nothing to do with the proper administration of justice. That has consequences far beyond his case, and simply cannot be tolerated.
Update: Radley Balko‘s latest column is also on the topic of the public prosecutor.
The death of Internet activist Aaron Swartz has generated a lot of discussion about the power of prosecutors — particularly federal prosecutors. This is a good thing. The conversation is long overdue. But the discussion needs to go well beyond on Swartz and the Computer Fraud and Abuse Act.
Prosecutors have enormous power. Even investigations that don’t result in any charges can ruin lives, ruin reputations, and drive their targets into bankruptcy. It has become an overtly political position — in general, but particularly at the federal level. If a prosecutor wants to ruin your life, he or she can. Even if you’ve done nothing wrong, there isn’t a whole lot you can do about it.
There are a number of factors that got us here, and it’s worth looking at them in turn.
November 16, 2012
Waiting for the Feds to respond to legal marijuana in Colorado and Washington
Phillip Smith examines the changed situation in Colorado and Washington in the wake of the marijuana legalization votes and what the federal government may do:
While the legal possession — and in the case of Colorado, cultivation — provisions of the respective initiatives will go into effect in a matter of weeks (December 6 in Washington and no later than January 5 in Colorado), officials in both states have about a year to come up with regulations for commercial cultivation, processing, and distribution. That means the federal government also has some time to craft its response, and it sounds like it’s going to need it.
So far, the federal response has been muted. The White House has not commented, the Office of National Drug Control Policy has not commented, and the Department of Justice has limited its comments to observing that it will continue to enforce the federal Controlled Substances Act.
“My understanding is that Justice was completely taken aback by this and by the wide margin of passage,” said Eric Sterling, former counsel to the House Judiciary Committee and currently the executive director of the Criminal Justice Policy Foundation. “They believed this would be a repeat of 2010, and they are really kind of astonished because they understand that this is a big thing politically and a complicated problem legally. People are writing memos, thinking about the relationship between federal and state law, doctrines of preemption, and what might be permitted under the UN Single Convention on Narcotic Drugs.”
What is clear is that marijuana remains illegal under federal law. In theory an army of DEA agents could swoop down on every joint-smoker in Washington or pot-grower in Colorado and haul them off to federal court and thence to federal prison. But that would require either a huge shift in Justice Department resources or a huge increase in federal marijuana enforcement funding, or both, and neither seems likely. More likely is selective, exemplary enforcement aimed at commercial operations, said one former White House anti-drug official.
October 18, 2012
Reason.tv: Are We In the Final Days of Marijuana Prohibition?
“There’ a rising tide of acceptance of the fact that people are going to smoke marijuana, and it’s like the prohibition against alcohol in the 1930s. There’s a recognition that perhaps the laws are causing more harm than the drugs themselves,” says Rick Steves, author and travel host.
Steves and others attended “The Final Days of Prohibition” conference in downtown Los Angeles in early October. The conference was put on by the National Organization for the Reform of Marijuana Laws (NORML), and Reason TV was on the scene to ask about the future of marijuana laws in the U.S., particularly in the upcoming election where the states of Oregon, Washington, and Colorado all have marijuana legalization initiatives on the ballot.
September 30, 2012
If you’re not getting enough convictions on drug charges, tamper with the evidence at the lab
The war on drugs is already insane enough, with civil liberties being curtailed in pursuit of drug dealers and even drug users. The number of US citizens in prison for drug charges helps make the US one of the most-imprisoned societies in the world. But even with all that, things can still get worse, as this story from the Huffington Post shows:
“Annie Dookhan’s alleged actions corrupted the integrity of the entire criminal justice system,” state Attorney General Martha Coakley said during a news conference after Dookhan’s arrest. “There are many victims as a result of this.”
Dookhan faces more than 20 years in prison on charges of obstruction of justice and falsely pretending to hold a degree from a college or university. She testified under oath that she holds a master’s degree in chemistry from the University of Massachusetts, but school officials say they have no record of her receiving an advanced degree or taking graduate courses there.
State police say Dookhan tested more than 60,000 drug samples involving 34,000 defendants during her nine years at the Hinton State Laboratory Institute in Boston. Defense lawyers and prosecutors are scrambling to figure out how to deal with the fallout.
[. . .]
Verner said Dookhan later acknowledged to state police that she sometimes would take 15 to 25 samples and instead of testing them all, she would test only five of them, then list them all as positive. She said that sometimes, if a sample tested negative, she would take known cocaine from another sample and add it to the negative sample to make it test positive for cocaine, Verner said.
September 3, 2012
Volokh on the GOP “war on porn” platform plank
At the Volokh Conspiracy, Eugene Volokh points out that aside from satisfying a checklist item for some constituencies, the GOP’s stated intention to crack down on pornography just doesn’t have a lot of benefits:
As we know, there’s lots of porn of all varieties out there on the Internet, including porn that might well be seen as offensive to “community standards” in at least one American state (the standard that would be applicable under the plurality view in Ashcroft v. ACLU (I) (2002), if prosecutors choose to bring a case in that state), or perhaps even under some “national community standard” (the alternative standard urged to varying extents by the other opinions in that case). In principle, the government might well be able to prosecute many American pornography producers and distributors under current obscenity laws.
[. . .]
So we have three possible outcomes:
(1) The U.S. spends who knows how many prosecutorial and technical resources going after U.S. pornographers. A bunch of them get imprisoned. U.S. consumers keep using the same amount of porn as before. Maybe they can’t get porn on cable channels or in hotel rooms any more, but that’s so twentieth century; instead, consumers will continue to be able to get more than they ever wanted on the Internet. Nor do I think that the crackdown will somehow subtly affect consumers’ attitudes about the morality of porn — it seems highly unlikely that potential porn consumers will decide to stop getting it because they hear that some porn producers are being prosecuted.
[. . .]
(2) The government gets understandably outraged by the “foreign smut loophole.” “Given all the millions that we’ve invested in going after the domestic porn industry, how can we tolerate all our work being undone by foreign filth-peddlers?,” pornography prosecutors and their political allies would ask. So they unveil the solution, in fact pretty much the only solution that will work: Nationwide filtering.
[. . .]
(3) Finally, the government can go after the users: Set up “honeypot” sites (seriously, that would be the technically correct name for them) that would look like normal offshore pornography sites. Draw people in to buy the stuff. Figure out who the buyers are. To do that, you’d also have to ban any anonymizer Web sites that might be used to hide such transactions, by setting up some sort of mandatory filtering such as what I described in option (2).
[. . .]
So, supporters of that plank of the platform, which do you prefer — #1, #2, or #3? Note that I’m not asking whether porn is bad, or whether porn should be constitutionally protected. I’m certainly not asking whether we’d be better off in some hypothetical porn-free world (just like no sensible debate about alcohol, drug, or gun policy should ask whether we’d be better off in some hypothetical alcohol-, drug-, or gun-free world).
I’m asking: How can the government’s policy possibly achieve its stated goals, without creating an unprecedentedly intrusive censorship machinery, one that’s far, far beyond what any mainstream political figures are talking about right now?
August 20, 2012
Punks as snobs
Always willing to explore the contrarian position, Brendan O’Neill explains why Pussy Riot’s legal issues have gotten so much attention in the west:
Pussy Riot’s closing statements in their trial for blasphemy confirmed that they have not only inherited the original punk movement’s thrashing guitars and in-yer-face sensibility; they have also effusively embraced its art-school snobbishness.
Punk, in its original incarnation, was always as much a screech of rage against the “sheeple” as it was a two-fingered salute to the powers-that-be. Think Johnny Rotten wailing “They made you a moron!” in the Sex Pistols’ “God Save the Queen”. “Don’t be told what you want / Don’t be told what you need”, sang Rotten, expressing the core belief of punk — that the vast bulk of the masses, effectively everyone except the punks, had been moulded into a moron by the man.
The same snobbish thinking animates Pussy Riot today. In her closing statement, Nadezhda Tolokonnikova bemoaned the “enforced civic passivity of the bulk of the population” in Russia. She said the Russian regime “easily manipulates public opinion” — which sounds like an attack on the regime but it is also a sly salvo against the Russian masses, who must have minds like putty if they can be so easily manipulated. In contrast to this civil slavishness, Pussy Riot are all about “authentic genuineness and simplicity”, said Tolokonnikova.
[. . .]
Now we can see why Pussy Riot are so popular among many liberal opinion-formers here in the West — it is because both share a view of the little people as less culturally sophisticated and more easily forced into conformism than the commenting, bohemian, punkish sets. But of course, making snobbish statements and singing rubbish songs should not be a crime. Pussy Riot should be freed from prison immediately and allowed to continue expressing their loathing of Putin’s regime and their disgust with the Russian masses.
July 27, 2012
Twitter joke trial comes to the correct result, eventually
Taken 2 years for British judges to hear a definition of Twitter that they understood. Welcome to the 21st Century, chaps. #TwitterJokeTrial
— Graham Linehan (@Glinner) July 27, 2012
Kelly Fiveash at The Register on the Twitter “bomb threat” case:
A bloke found guilty of tweeting a “menacing” joke about blowing up a UK airport has had his conviction quashed by the High Court today. A collective sigh of relief was heard moments later from comedians addicted to the micro-blogging website.
Paul Chambers, 28, was waiting to fly from Doncaster’s Robin Hood airport to Belfast to see his girlfriend, whom he met on the social networking site, when snow closed the airfield and delayed his flight.
He vented his frustration in a series of tweets to his squeeze Sarah Tonner, now his fiancee, including a suggestion that he had considered “resorting to terrorism” to ensure he could visit her.
[. . .]
Mr Justice Owen and Mr Justice Griffith Williams said in the High Court today that the facts needed to be considered in context, pointing out that the tweets had clearly appeared to be a reference to the airport closing due to adverse weather conditions.
“There was no evidence before the Crown Court to suggest that any of the followers of the appellant’s ‘tweet’, or indeed anyone else who may have seen the ‘tweet’ posted on the appellant’s time line, found it to be of a menacing character or, at a time when the threat of terrorism is real, even minimally alarming,” the High Court heard.
June 30, 2012
Thai farm workers arrested for “causing global warming”
A weird little story from Thailand:
PHETCHABUN – Early one Thursday morning, a gun was pointed at Ms. Kwanla Saikhumtung, a 34-year-old mother, because she was farming.
The man who pointed the gun was one of ten armed officers from Phu Pha Daeng, the local wildlife sanctuary in Lomsak district. After observing the villagers for three days, the officers finally informed Ms. Kwanla and twelve fellow villagers from Huay Kontha that they were trespassing on wildlife sanctuary land. They demanded that the villagers come to the police station to talk with them.
They refused. The villager that hired them paid taxes on the plot, leading the villagers to believe they had a right to work the land, and they worried about finishing their work.
[. . .]
This incident was the beginning of a seven-year-long legal battle, pitting Ms. Kwanla against the Thai government. She and the other twelve villagers — the youngest only sixteen at the time — were first charged with trespassing.
The real shock, however, came when they were slapped with a 470,000 baht fine for contributing to global warming under the charge of causing environmental damage.
[. . .]
The Royal Forestry Department (RFD) fined the villagers for cutting down trees and farming, drawing from the 1992 National Environmental Quality Act which forbids “destruction, loss, or damage to natural resources owned by the State.” Their fine was determined according to a formula used to calculate environmental damage. The formula measures the increase in temperature caused by cutting down trees. Any increase in the land temperature shows ‘global warming’. In essence, cutting down trees to farm corn leads to global warming.
The Huay Kontha villagers have a running joke, “Because we pick the corn, the world gets hotter.”
The charges that Ms. Kwanla and the other villagers face shed light on an emerging trend in Thailand. Land dispute issues are becoming increasingly common. According to Pramote Pholpinyo, coordinator of the Northeast Land Reform Network (LRN), there are currently 35-40 “global warming” cases against villagers in Thailand, with charges amounting to almost 33 million baht.
H/T to Anthony Watts for the link.
June 21, 2012
May 31, 2012
May 21, 2012
May 18, 2012
Conservative arguments for legalization of marijuana
Frances Woolley at the Worthwhile Canadian Initiative blog:
Milton Friedman — Nobel Laureate in Economics and adviser to Ronald Reagan — supported legalizing and taxing marijuana. Stephen Easton’s classic paper advocating marijuana legalization was published by the Fraser Institute. Why do so many right-leaning economists favour marijuana legalization?
Conservative economists typically believe that a person is a best judge of what is in his or her own interests. From this premise it follows that the government should not try to constrain or influence people’s behaviour. Yes, marijuana use has well-documented negative side effects, from memory loss to male breast growth. Yet if fully informed individuals decide that these personal costs are worth accepting for the benefits that marijuana use brings, the government should respect that choice. As Willie Nelson says “I smoke pot and it is none of the government’s business.”
[. . .]
Another reason for conservatives to favour legalization and taxation of marijuana is that they do not like paying taxes. Criminalization costs. According to a 2005 US study, legalization would save state and local governments $5.3 billion annually in reduced enforcement costs, while the federal government would gain another $2.4 billion federally. Locking up people for possession of a small amount of marijuana is a waste of resources, and good fiscal conservatives deplore waste.Taxing marijuana would be a money-maker: $6.2 billion annually, if marijuana were taxed at rates similar to those on alcohol and tobacco, according to this same 2005 report.Those revenues could be used to reduce deficits, or fund reductions in the taxes paid by conservative economists.
Conservatives have lots of good reasons to favour legalization. The people who should be fighting legalization are the small scale growers: little family-run organic pot farms wouldn’t stand a chance against industrial scale agri-business.
April 25, 2012
The War on Drugs: “For every complex problem, there is an answer that is clear, simple and wrong”
The Wall Street Journal looks at the drug war and considers alternatives:
Our current drug policies do far more harm than they need to do and far less good than they might, largely because they ignore some basic facts. Treating all “drug abusers” as a single group flies in the face of what is known as Pareto’s Law: that for any given activity, 20% of the participants typically account for 80% of the action.
Most users of addictive drugs are not addicts, but a few consume very heavily, and they account for most of the traffic and revenue and most of the drug-related violence and other collateral social damage. If subjected to the right kinds of pressure, however, even most heavy users can and do stop using drugs.
Frustration with the drug-policy status quo — the horrific levels of trafficking-related violence in Mexico and Central America and the fiscal, personal and social costs of imprisoning half a million drug dealers in the U.S. — has led to calls for some form of legalization. Just last week, at the Summit of the Americas in Cartagena, President Barack Obama got an earful from his Latin American counterparts about the need to reverse current U.S. drug policy.
In brief, American (and to a lesser extent, Canadian) drug policies follow this pattern: 1) identify a problem, 2) pass laws against it, 3) discover that the laws haven’t solved the problem, 4) double-down and ratchet up enforcement and penalties. In other words, if it’s not working, then derp it again.
The quote in the headline is, of course, from the writings of H.L. Mencken.
