Topic: Law and Civil Liberties

Obama Commutes Some Sentences

From the Miami Herald:

President Barack Obama on Thursday issued 13 pardons and commuted the sentences of eight individuals.

The commuted sentences involved men and women serving long terms on drug charges, including several sentenced to life without parole.

“Each of them has served more than 15 years in prison,” Obama noted. “In several cases, the sentencing judges expressed frustration that the law at the time did not allow them to issue punishments that more appropriately fit the crime” …

Another prisoner whose sentence Obama commuted, Clarence Aaron of Mobile, Ala., was sentenced to life without parole in 1993 following his conviction on cocaine charges. Aaron has been a “model prisoner (who) has taken courses in religious studies, economics, Spanish, photography and behavioral development,” according to Families Against Mandatory Minimums.

Obama’s actions here are welcome news to the prisoners and their families, but, from a big picture perspective, the president’s actions are stingy and long overdue.  For additional background, go here and here.  The Pardon Power blog has more details.

Flashback:  I call for the Bush administration (2007!) to pardon Clarence Aaron.

Vermont’s Chief Justice Cites Cato Portugal Study

Chief Justice Paul Reiber at Vermont Law School in South Royalton

From the Seven Days publication:

In recent weeks, Vermont Chief Justice Paul Reiber has gone public with an unusually assertive critique of the war on drugs and the “tough on crime” approach that has defined criminal justice for decades.

Reiber, who holds an office in which occupants usually avoid saying anything remotely controversial, has stopped short of recommending policy or criticizing any individuals or government bodies. But in a pair of speeches and a brief interview with Seven Days, he has declared ineffective the current reliance on police and punishment, and touted the merits of treatment-based models for dealing with crime rooted in substance abuse….

In his Boston speech, Reiber highlighted reforms in Portugal, which in 2001 abolished criminal penalties for possession of all drugs, and replaced incarceration with drug treatment. Vermont’s chief justice called the results of that experiment “astonishing,” citing a study from the libertarian Cato Institute showing that Portugal experienced a large drop in drug use and a spike in the number of people seeking treatment.

Check out the Cato report on Portugal’s drug decriminalization policy here.

The Economic Impact of NSA Spying

At some point, I hope someone does a thorough, empirical study of the impact of NSA spying on U.S. companies.  But for now, all we have is anecdotal evidence, like this:

Today Brazil’s government announced it won’t buy $4.5 billion worth of US fighter jets in a move attributed to anger over controversial US intelligence-gathering that targeted Brazilian citizens and officials, including president Dilma Rousseff.

The Brazilian government’s official statements pointed to performance and cost issues as the reason to pick Sweden’s Saab AB to develop 36 fighters, though many observers had believed Boeing had the upper hand while bidding to expand Brazil’s air force.

Calling the decision “disappointing” in a statement, Boeing says it isn’t done trying to sell to Brazil, a major client for the company’s commercial air business, noting that ”over the next several weeks, we will work with the Brazilian Air Force to better understand its decision.”

One way to understand it: “The NSA problem ruined it for the Americans,” a Brazilian government official told Reuters. Public opinion turned against the US, and Brazil is leading the charge for a United Nations resolution that would limit electronic surveillance. Edward Snowden, the former National Security Agency contractor whose leaks revealed the US surveillance, obliquely requested asylum in Brazil earlier this week, but it looks the country isn’t interested in hosting the whistleblower.

Today, a White House panel charged with assessing American electronic snooping released a report urging new limits on US intelligence agencies. One of its recommendations is to more carefully assess the costs of surveilling foreign leaders like Brazil’s Rousseff. On this front, Brazil’s decision on the fighter planes is a costly object lesson for the US government.

Justice Delayed Is Justice Denied

Four years is too long to wait for a ruling on a constitutional claim. Not for the ultimate vindication of a right that’s been summarily denied, mind you, but a mere ruling in a case asserting this right that has long ago been briefed and argued.

That’s the situation faced by my colleague Tom Palmer and his fellow plaintiffs in a lawsuit challenging the District of Columbia’s complete ban on carrying guns for self-defense outside the home. Palmer v. District of Columbia was one of many suits filed in the wake of the Supreme Court’s 2008 ruling in District of Columbia v. Heller, which found that the Second Amendment protects an individual right to keep and bear arms. (Recall that two years ago the Seventh Circuit struck down a similar ban in Chicago, the only other place in the country where there is no legal way to exercise the right to carry – forget places like New York, New Jersey, and Maryland, where it’s possible in theory even if local law enforcement can, and always do, deny requests in practice.)

This case has now been pending for more than four years without a resolution of cross-motions for summary judgment – both parties agreed that the case can be decided by the judge on the law, without fact-finding or a trial. The docket (see pages 37-42 of this document) is one of the weirdest I’ve ever seen for a federal case: Palmer was filed in August 2009 and a hearing was held in January 2010, at which point Judge Henry Kennedy took the case under advisement. In July 2011, Chief Justice John Roberts (!) reassigned the case from Judge Kennedy to Judge Frederick J. Scullin, Jr. of the Northern District of New York. (In other words, Judge Kennedy sat on the case for 18 months and then retired.) There was a status conference soon after, then a motion hearing scheduled for August 2012 (more than a year later), which was rescheduled for October 2012, after which Judge Scullin took the case under advisement, and then… nothing. Plaintiffs’ counsel Alan Gura (my friend and sometime co-author) filed a motion to expedite in August 2013, and then a petition for a writ of mandamus – a request that a higher court command a government official to do something – with the U.S. Court of Appeals for the D.C. Circuit in October 2013.

Clay Conrad on Jury Nullification

A few weeks ago, the Drug Policy Alliance had its annual convention in Denver.  I was on a panel that addressed jury nullification.  The other panelists were Clay Conrad (author, Jury Nullification: The Evolution of a Doctrine), Kirsten Tynan (Fully Informed Jury Association), and Steve Silverman (Flex Your Rights).  Steve Silverman transcribed the discussion.  Here is an excerpt:

Clay Conrad

Clay Conrad: Jury NullificationToday judges tell jurors to commit injustice in the name of the law, and we call that progress  –Clay Conrad

Clay Conrad is currently a lawyer in private practice.  He discusses the history and background of jury nullification. (Jump video of Clay’s talk.)

What is Jury Nullification?

“Jury nullification is the act of a criminal trial jury in refusing to convict on conscientious grounds in spite of proof of guilt beyond a reasonable doubt, because they think the law is unjust, the law is misapplied, or the punishment is inappropriate.”

“Juries have always had [a political] role. That’s what the founders intended to protect in the 6th Amendment, and that’s what’s guaranteed in the constitutions of all 50 states.”

“The understanding of the phrase ‘judges of both fact and law’ has changed over the years because our understanding of where the law comes from has changed. Back in that period of history, people believed in natural law doctrine. That was the generally accepted view of where the law comes from. Law was considered part of natural science to be discovered.”

“Today we have a much more technocratic understanding of the law. Natural law doctrine has given way to a positive, formalistic conception of law. But under natural law doctrine when you say the jury is the finder of fact and law, it means they can determine where justice lies, because justice is what the law was. It was the understanding of what was just that was their understanding of the law.”

“Today judges tell jurors to commit injustice in the name of law, and we call that progress.”

Cato will soon be releasing an e-version of Clay Conrad’s book.

Ohio Legislator: Your Kids Belong to the State

In the wake of a tragedy, there is a natural and understandable desire to prevent something similar from ever happening again. Unfortunately, legislators too often respond hastily to the passionate demands that they “do something” without thinking through the consequences of their actions. This phenomenon gave rise to the morbid truism that “dead kids make bad laws,” such as “Kyleigh’s Law” in New Jersey. In the wake of a fatal car accident involving a teenage driver, the state legislature passed a law requiring teens to drive vehicles with special decals to make it easier for police to enforce an 11:00pm curfew. When irate parents raised concerns that the decals put their children at risk of being followed by pedophiles, 13 legislators who had initially voted for the law filed a bill to repeal it.

The story that gave rise to “Teddy’s Law” (Senate Bill 248) in Ohio is similarly heartbreaking and the legislative response has been similarly misguided. After teachers reported their suspicions about abuse to Children’s Services, Teddy Foltz-Tedesco’s mother pulled him out of school under the pretense that she would homeschool him. Instead, her boyfriend, Zaryl Bush, tortured and killed the 14-year-old Teddy. Bush is now serving life in prison.

Teddy’s story is a tragic failure of the system to protect him after years of warning signs and reports from neighbors. However, the legislators’ response goes in the wrong direction. Rather than address why social services failed to act on repeated reports of abuse, “Teddy’s Law” treats all would-be homeschooler parents as child abusers until proven innocent. The legislation further assumes that all children belong to the state, as it requires families to seek permission from the government to homeschool their own children. They would have to submit to background checks and a social services investigation in which parents and children are interviewed separately. The law grants the agency the authority to deny the right to homeschool if it “determines it is not in the best interest of the child,” without providing any guidelines as to how that determination should be made.

And while it unconstititionally treats all parents as possible criminals, the Home School Legal Defense Association argues that “Teddy’s Law” likely would not have even saved Teddy:

Even if, as SB 248 would require, his mother had sought social service’s approval to homeschool and was denied, he still would have been at home subject to abuse after school. Regardless of where he went to school, Teddy was left by authorities in a home where they knew abuse was occurring.

Clearly, SB 248 would not have saved Teddy.

SB 248 turns fundamental American values upside down. Parents have been deemed by the United States Supreme Court in Parham v. JR to act in their children’s best interests. In Pierce v. Society of Sisters, the Court ruled that parents have a fundamental right to direct the education of their children. This law replaces parents with unqualified social workers to make educational decisions for children.

Moreover, as HSLDA notes, by treating all parents as child abusers, “Teddy’s Law” diverts scarce resources away from focusing on parents actually suspected of child abuse. Instead of protecting children like Teddy, the misguided law would make it more likely that future Teddys would fall through the cracks.

Vigilantes in Mexico: Another Reason to Repudiate Drug Prohibition

A relatively new development in Mexico’s ongoing drug wars is the increasingly active role of vigilante groups.  That is especially true in Michoacán and other states in the western portion of the country.  I discuss that development in a new article over at the National Interest Online.

The initial temptation might be to cheer on the vigilantes.  After all, the rise of “self defense militias” indicates that a growing number of Mexicans are now willing to resist the power of the brutal cartels and fight back, if necessary.  But for two reasons one ought to resist the temptation to applaud.  First, the nature of many of the militias is exceedingly murky.  Some of them may even be front groups for rival trafficking organizations seeking to displace the dominant cartel in a particular region.

Second, even in cases where the vigilante groups are genuine anti-cartel forces, the growth of vigilantism is a worrisome sign.  It is an emphatic vote of “no confidence” in the government’s ability to maintain order and the rule of law.  That is similar to what occurred in Colombia from the late 1980s through the early years of the 21st century.  As the power of drug gangs and their radical leftist guerrilla allies surged, frightened and angry Colombians formed right-wing militias in many rural areas.  But some of those groups soon became little more than death squads, and for a time, Colombia seemed to be heading down the path toward becoming a failed state.  We certainly do not want to see a comparable trend in our next door neighbor.

The rise of vigilantism in Mexico is yet another reminder of the disastrous consequences of drug prohibition.  That strategy greatly raises the retail price of a product that a large number of consumers insist on using.  Creating such a lucrative black market premium fills the coffers of those willing to defy the law to traffic in that product.  And the vast majority of individuals and groups willing to take that path are ruthless criminal elements.  Prohibition, in short, empowers and enriches thugs.

Washington’s enthusiasm for and insistence upon preserving an international drug prohibition policy has caused enormous problems for Mexico and other drug-source countries. As the leading consumer of illegal drugs and the most powerful member of the international community, the United States largely determines the direction of policy on this issue.  Fortunately, there are signs of changing attitudes on both the domestic and international fronts.  Public opinion surveys show that a majority of Americans are now in favor of legalizing marijuana, the mildest of illegal drugs, and such states as Colorado and Washington have already adopted modest legalization measures.  Uruguay has gone even further, legalizing not only the possession and use of marijuana but also commerce in that drug.

Uruguay’s course is the correct one.  It’s not enough to legalize drug possession—the trade itself needs to be taken out of the hands of criminal syndicates.  And if we wish to defund the cartels, abolishing prohibition must apply to all currently illegal drugs, not just marijuana.  Our policy makers need to internalize the lesson that prohibition not only does not work, it causes horrific unintended consequences.  That was true of America’s foolish crusade against alcohol in the 1920s and early 1930s, and it is true in spades of the current crusade against illegal drugs.  The surge of vigilantism in Mexico and the threat of chaos it embodies should spur policy makers to finally recognize that reality.