Tag: law enforcement

Anti-Sex School for Johns?

In a novel approach to punishing men who attempt to hire prostitutes, Nashville and other cities are sending first-time offenders to a one-day class where they learn from former prostitutes, health experts, psychologists and law enforcement officers about “the risks of hiring a prostitute.”

This is a waste of time.

Prostitution is “the oldest profession” for a reason: sex is a biological imperative. A day of anti-sex school will have no effect on the demand for prostitution.

The better approach is to legalize.

Under legalization, the vast majority of men would patronize legal establishments. This would also allow quality control, since competition would encourage prostitution services to certify their employees as free from STDs and above the age of consent. Legalization would help the women who serve as prostitutes by reducing the violence they suffer from johns and pimps. In particular, legalization would mainly eliminate forced prostitution.

The claim that prostitution encourages sexual assault does not pass the sniff test. Many countries, plus Nevada and Rhode Island, allow legal prostitution to varying degrees, but no evidence suggests they have a higher incidence of violence toward women.

C/P Libertarianism, from A to Z

The Zero Percent Doctrine

I was never a fan of Dick Cheney’s one percent doctrine.

According to Ron Suskind, after 9/11 Cheney explained to law enforcement and intelligence officials that they should treat even the one percent chance of a terrorist attack as a mathematical certainty. The particular case was of a Pakistani nuclear scientist helping al-Qaeda to acquire a nuclear bomb, but the standard became a shorthand for U.S. counterterror efforts generally. No scale of effort would be too great. Better to chase down 100 leads, 99 of which turn out to be bogus, because finding just that one nugget would have been worth the level of effort.

Now we have evidence that the federal government is chasing down far more than 99 blind alleys for just one lead. From today’s front-page story in the New York Times, Eric Schmitt explains how the FBI has adapted and evolved since 9/11:

The bureau now ranks fighting terrorism as its No. 1 priority. It has doubled the number of agents assigned to counterterrorism duties to roughly 5,000 people, and has created new squads across the country that focus more on deterring and disrupting terrorism than on solving crimes.

But the manpower costs of this focus are steep, and the benefits not always clear. Of the 5,500 leads that the squad has pursued since it was formed five years ago, only 5 percent have been found credible enough to be sent to permanent F.B.I. squads for longer-term investigations, said Supervisory Special Agent Kristen von KleinSmid, head of the squad. Only a handful of those cases have resulted in criminal prosecutions or other law enforcement action, and none have foiled a specific terrorist plot, the authorities acknowledge. (Emphasis mine.)

So, just to review:

  • 5,500 leads over 5 years
  • 5 percent deemed credible
  • “A handful” technically would mean five or less, but charitably might total a few dozen. Still, that translates to far less than 1 percent of leads investigated resulting in a criminal prosecution.

But, and here’s the kicker,

  • None – zero, zip, nada – foiled a specific terrorist plot.

On the face of it, this seems like a waste of time and resources that should be spent elsewhere.

There are several plausible explanations, however, for why I’m wrong and why those who believe that we are not dedicating sufficient resources to combating terrorism are right.

  • Perhaps other government agencies have been far more effective at disrupting terror plots. (But when the relative comparison is zero, it isn’t very hard to clear that bar.)
  • Perhaps Schmitt got his facts wrong. (Doubtful. He is one of the most experienced and reliable reporters on the beat.)
  • Perhaps the knowledge that 5,000 people chasing down 5,500 leads deters would-be terrorists from even attempting anything. (Or it could simply be helping bin Laden’s plan “to make America bleed profusely to the point of bankruptcy.”)

Two other points bear consideration. First, it is possible that arresting, prosecuting and convicting people of lesser crimes disrupts what might someday become a full-scale terror plot. There is no reason to think that the guy trying to cut down the Brooklyn Bridge with a blowtorch was much smarter than the 15 guys who provided the muscle for the 9/11 attacks. The difference was leadership, which defined a plausible terrorist attack and devised the means to carry it out. That said, there are problems associated with the expansion of federal laws, and the growing power of prosecutors, and I would still much prefer that common criminals be handled in a run-of-the-mill fashion. Local cops, local prosecutors, local jails.

Which leads to the second point. Reflecting the growing federalization of the criminal law, the FBI strayed into a number of areas even before 9/11 that should have been handled by local law enforcement. This expansion of the federal criminal law poses a threat to individual liberty. (Thanks to Tim Lynch for pointing to this source.) But counterterrorism is one of the few legitimate functions for a federal law enforcement agency, and if the FBI is devoting more resources to that than to other crimes, that in and of itself wouldn’t be a bad thing.

I remain unconvinced, however, that what we are seeing is a wise expenditure of resources. And while I understand that zero terrorist plots uncovered is not equal to zero threat of a future attack, it is incumbent on the FBI – and more generally those who think that the problem is too little, as opposed to much, being devoted to counterterrorism – to prove why they need still more resources.

Until that occurs, I think that UCLA’s Amy Zegart, who is quoted in the Times story, should get the last word on this point:

Just chasing leads burns through resources. … You’re really going to get bang for the buck when you chase leads based on a deeper assessment of who threatens us, their capabilities and indicators of impending attack. Right now, there’s more chasing than assessing.

Hate Crimes Bill Becomes an Amendment

Unsure about prospects on passing the Local Law Enforcement Hate Crimes Prevention Act as a stand-alone bill, proponents intend to attach it as an amendment to the Department of Defense Authorization bill. As I have said previously, this bill is an affront to federalism and counterproductive hater-aid.

Federal Criminal Law Power Grab

This legislation awards grants to jurisdictions for the purpose of combating hate crimes. It also creates a substantive federal crime of violent acts motivated by the “actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability of any person.”

This is a federalization of a huge number of intrastate crimes. It is hard to imagine a rape case where the sex of the victim is not an issue. The same goes for robbery - why grab a wallet from someone who can fight back on equal terms when you can pick a victim who is smaller and weaker than you are?

This would be different if this were a tweak to sentencing factors.

If this were a sentence enhancement on crimes motivated by racial animus - a practice sanctioned by the Supreme Court in Wisconsin v. Mitchell - then it would be less objectionable if there were independent federal jurisdiction.

Thing is, the federal government has already done this, with the exception of gender identity, with the Federal Sentencing Guidelines (scroll to page 334 at the link):

If the finder of fact at trial or, in the case of a plea of guilty or nolo contendere, the court at sentencing determines beyond a reasonable doubt that the defendant intentionally selected any victim or any property as the object of the offense of conviction because of the actual or perceived race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation of any person, increase by 3 levels.

The contrast between a sentence enhancement and a substantive crime gives us an honest assessment of what Congress is doing - federalizing intrastate acts of violence.

If Congress were to pass a law prohibiting the use of a firearm or any object that has passed in interstate commerce to commit a violent crime, it would clearly be an unconstitutional abuse of the Commerce Clause.

Minus the hate crime window dressing, that is exactly what this law purports to do.

What this really amounts to is a power grab - giving the federal government power to try or re-try violent crimes that are purely intrastate. Just as the Supreme Court invalidated the Gun Free School Zones Act in United States v. Lopez because it asserted a general federal police power, this law should be resisted as a wholesale usurpation of the states’ police powers.

The act also essentially overrules United States v. Morrison, where the Court overruled a federal civil remedy for intrastate gender-motivated violence. Forget a civil remedy; while we’re re-writing the constitution through the Commerce Clause let’s get a criminal penalty on the books.

Trials as Inquisitions

The hate crime bill will also turn trials into inquisitions. The focus of prosecution could be on whether you ever had a disagreement with someone of another “actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability.” Worse yet, it can turn to whether you have any close friends in one of these categories, as demonstrated in the Ohio case State v. Wyant. The defendant denied that he was a racist, which led to the following exchange in cross-examination on the nature of the defendant’s relationship with his black neighbor:

Q. And you lived next door … for nine years and you don’t even know her first name?

A. No.

Q. Never had dinner with her?

A. No.

Q. Never gone out and had a beer with her?

A. No… .

Q. You don’t associate with her, do you?

A. I talk with her when I can, whenever I see her out.

Q. All these black people that you have described that are your friends, I want you to give me one person, just one who was really a good friend of yours.

David Neiwert says that this won’t happen because of a constitutional backstop in the legislation. Unfortunately, the House version of the bill explicitly endorses impeaching a defendant in exactly this manner:

In a prosecution for an offense under this section, evidence of expression or associations of the defendant may not be introduced as substantive evidence at trial, unless the evidence specifically relates to that offense. However, nothing in this section affects the rules of evidence governing impeachment of a witness.

Worse yet, the Senate version of the hate crime bill, the one which will likely become law after conference committee, does not contain this provision. Instead, it explicitly says:

Courts may consider relevant evidence of speech, beliefs, or expressive conduct to the extent that such evidence is offered to prove an element of a charged offense or is otherwise admissible under the Federal Rules of Evidence. Nothing in this Act is intended to affect the existing rules of evidence.

Anyone want to bet that an aggressive prosecutor could find that not having a close enough relationship with your neighbor counts as “expressive conduct” for the purposes of prosecution?

Future Push for More Federal Authority Over Intrastate Crimes

The hate crime bill also pushes a snowball down the mountain toward wholesale federalization of intrastate crime. In a few years this snowball will be an avalanche. By making any gender-motivated crime a hate crime, which will necessarily include nearly all rapes, we will define ordinary street crimes as hate crimes.

With a consistent average of 90,000 rapes a year, this expansion of hate crime definition will come back in a few years where those ignorant of the change in terms will wonder why hate crime is now rampant. “Rampant” only because we have made the relevant definition over-inclusive to the point of being meaningless.

And in a few years, we can revisit this issue with a fierce moral urgency to pass more feel-good legislation that upends state police powers in an effort to do something - anything - to confront this perceived crisis. A perception that Congress is creating in this legislation.

Courts Check D.C. Government — Again.

Last year, the Supreme Court declared the D.C.’s gun control law unconstitutional (pdf).  Now a federal appellate court has unanimously declared that D.C. police’s aggressive ”Neighborhood Safety Zone” (NSZ) checkpoint policy is unconstitutional (pdf). 

Under the policy, any vehicle entering an area that has been declared a “Neighborhood Safety Zone” by the city’s police chief can be “stopped for the purpose of determining whether the driver has a legitimate reason for entering the NSZ.”

Here’s an excerpt from the appelate court decision:

We further conclude that appellants have sufficiently demonstrated irreparable injury, particularly in light of their strong likelihood of success on the merits. … The harm to the rights of appellants is apparent. It cannot be gainsaid that citizens have a right to drive upon the public streets of the District of Columbia or any other city absent a constitutionally sound reason for limiting their access. As our discussion of the likelihood of success has demonstrated, there is no such constitutionally sound bar in the NSZ checkpoint program. It is apparent that appellants’ constitutional rights are violated. It has long been established that the loss of constitutional freedoms, “for even minimal periods of time, unquestionably constitutes irreparable injury.” Granted, the District is not currently imposing an NSZ checkpoint, but it has done so more than once, and the police chief has expressed her intent to continue to use the program until a judge stops her.

It’s time for Mayor Adrian Fenty to show Peter Nickles, the Attorney General of the city, to the door.  Too many of his ideas have proven to be misguided and contrary to law.

No Wrongdoing in the Calvo Raid?

Last year the Prince George’s County Sheriff’s Department SWAT Team raided the home of Berwyn Heights, Maryland Mayor Cheye Calvo. Police officers on the case knew that dealers were sending packages to random addresses so that accomplices in delivery companies could pick them up. The officers didn’t take the drugs out of circulation at the warehouse when they intercepted them. They simply sent them to the bogus address and raided it. The investigating officers did this without checking with local law enforcement officials, who probably would have told them that the mayor wasn’t a drug dealer and that they were barking up the wrong tree. The SWAT team shot and killed Mayor Calvo’s two dogs and caused significant property damage to his home before they got around to figuring out his (nonexistent) role in narcotics trafficking.

The Sheriff’s Office just cleared its deputies of any wrongdoing.

Radley Balko has a post up at Reason. His Cato study, Overkill: The Rise of Paramilitary Police Raids in America, shows that this is not an isolated incident. Check out the raidmap for more detail.

Mayor Calvo spoke at a Cato event in the wake of the raid, “Should No-Knock Police Raids be Rare-or Routine?” He tells his story below:

Should Judges ‘Have the Back’ of Police Officers?

Vice-president Joe Biden says we should rally behind the Supreme Court nomination of Sotomayor because she will “have the back” of the police.  Biden is a lawyer, a senator, and former chairman of the Senate’s Judiciary Committee, so he should know better than to pull a political stunt like that to curry favor with law enforcement groups.  The Constitution places limits on the power of the police to search, detain, wiretap, imprison, and interrogate.   The separation of powers principle means that judges must maintain their impartiality and “check” the police whenever they overstep their authority.  To abdicate that responsibility and to “go along with the police” is to do away with our system of checks and balances.

As it happens, The New York Times has a story today about one Jeffrey Deskovic.  He got caught up in a police investigation because he was “too distraught” over the rape and murder of his classmate.  When there was no DNA match, prosecutors told the jury it didn’t really matter.  Does Biden really want Supreme Court justices to come to the support of the state when habeas corpus petitions arrive on their desks and the police work is sloppy, weak, or worse?

On a related note, Cato adjunct scholar Harvey Silverglate fights another miscarriage of justice in Massachusetts.

It Is a Checkpoint, After All

The Philadelphia Inquirer asks why the TSA didn’t catch Bonnie Sweeten absconding to Orlando at the airport after faking her own and her daughter’s abduction.

The TSA and FBI are right: it’s not airport security’s job to look for people like Bonnie Sweeten. But they will quickly agree to make it part of their mission when newspapers and Members of Congress start to say they should. This is how a nominal airline security program transmogrifies into a general law enforcement checkpoint, and the noose tightens on your right to travel.