Topic: Law and Civil Liberties

‘Justice’ à la Venezuelan

This week a Venezuelan judge indicted opposition leader María Corina Machado on flimsy charges of conspiracy to kill President Nicolás Maduro. If found guilty, she could spend up to 16 years in prison. Can she expect a fair trial from the Venezuelan judiciary?

Not at all, according to the findings of an investigation led by three Venezuelan lawyers and published in a new book, El TSJ al Servicio de la Revolución (“The Supreme Court at the Service of the Revolution”). According to their research, since 2005 Venezuela’s justice system has issued 45,474 sentences, but not once has it ruled against the government.

Machado’s fate thus depends entirely on the whims of Maduro and his entourage. The precedent of Leopoldo López, another opposition leader who has been jailed since February on charges of arson and conspiracy, does not bode well for Machado. 

CBS News Highlights Cato Study on Grand Juries

Here is a link to, “A Grand Facade: How the Grand Jury Was Captured by Government.”

Excerpt:

The prosecutor calls the shots and dominates the entire grand jury process. The prosecutor decides what matters will be investigated, what subpoenas will issue, which witnesses will testify, which witnesses will receive “immunity,” and what charges will be included in each indictment.

Because defense counsel are barred from the grand jury room and because there is no judge overseeing the process, the grand jurors naturally defer to the prosecutor since he is the most knowledgeable official on the scene. That overbearing presence explains the old saw that a competent prosecutor can “get a grand jury to indict a ham sandwich” if he is really determined to do so.

And the reverse also holds true: If a prosecutor does not want an indictment, he can secure that outcome if he is really determined to do so.

Celebrate the 81st Anniversary of Repeal Day at the Cato Institute

On December 5, 1933, the 21st Amendment to the Constitution was ratified, ending our nation’s failed experiment with alcohol prohibition. Yet, 81 years later, modern-day prohibitionists continue to deny the laws of supply and demand, attempting to control what individuals can choose to put into their own bodies.

The War on Drugs is a glaring example of contemporary prohibitionism, but nanny-staters have even attempted to ban substances as innocuous as “too-large” sodas or gourmet cheeses.

This Friday, join the Cato Institute for a look at prohibition 81 years after the repeal of the 18th Amendment.

 

I will be moderating a panel featuring Cato Senior Fellow Walter Olson, editor of the nation’s oldest law blog Overlawyered.com; Stacia Cosner, Deputy Director of Students for Sensible Drug Policy; and Michelle Minton, Fellow in Consumer Policy Studies at the Competitive Enterprise Institute. Panelists will discuss modern prohibitions—from the Drug War to blue laws, and from tobacco regulation to trans fats—drawing connections with their earlier antecedent.

Alcoholic beverages and other commonly restricted refreshments (bring on the trans fats!) will be served following the discussion.

What better place to celebrate the 81st anniversary of the repeal of Prohibition than the Cato Institute? Space is limited, so make sure to register for your chance to go home with a commemorative door prize.

Not in D.C.? The panel will be live-streamed and questions may be submitted via Twitter using #CatoDigital.

#CatoDigital (formerly #NewMediaLunch) is a regular event series at the Cato Institute highlighting the intersection of tech, social media, and the ideas of liberty. Email Kat Murti at kmurti [at] cato.org to get future event updates and more.

The War Between Disparate Impact and Equal Protection Continues

For decades, courts have been struggling to reconcile two conflicting theories of what constitutes unlawful discrimination. The first theory, often called “disparate treatment,” reflects the commonly understood meaning of “discrimination.” Under this theory, a government action discriminates—violates the principle of equal protection or equality under the law—if it explicitly or implicitly treats members of one race or other special group differently from others. Examples of disparate treatment include Jim Crow’s black codes, university admission caps and quotas, and policies excluding women from certain positions.

The second theory, known as “disparate impact,” argues that the definition of discrimination should be much broader and include laws and policies that, while neutral in their application and operation, disproportionately harm members of a specific group. An example of a rule that would be considered discriminatory under this theory, but not under disparate treatment, would be a requirement that all soldiers in a particular unit be over six feet tall—because, as a statistical matter, far fewer women would be eligible than men. In several other cases, Cato has argued that allowing disparate impact theory claims against government bodies is problematic because the only way a government can assure that a rule doesn’t accidentally produce statistically unequal outcomes is to engage in intentionally discriminatory policies—like quotas—that can ensure a specific outcome.

Here is the case that proves this point: Buffalo makes promotions within its fire department on the basis of both merit and seniority. Firefighters who wish to be considered for advancement have to pass a set of exams. Those who are successful are placed on a list of candidates eligible for promotion within a set time period. If a candidate isn’t promoted within that period, however, the promotion qualification expires and he’s forced to re-take the exams.

During one administration of the exam, the only successful candidates were white. Because that was statistically unlikely given the racial makeup of the department, the city feared that if it promoted the successful candidates, it would be sued for having a policy that had a disparate impact on non-white firefighters. Its solution was to make a racially based decision not to promote any of the qualified candidates, allowing their promotion-list placements to expire.

In a litigation battle that has progressed in fits and starts over many years, Cato has now joined the Pacific Legal Foundation and other concerned groups on a brief reminding the New York Court of Appeals (that state’s highest court) that allowing government to engage in disparate treatment to avoid accusations of disparate impact simply trades one form of discrimination for another. And, as Chief Justice John Roberts wrote for a Supreme Court plurality back in 2007, the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.

The New York Court of Appeals will hear argument in the case of Margerum v. City of Buffalo on January 6 in Albany. For more on the “war between disparate impact and equal protection”—in the context of a previous firefighter-promotion case—see this prescient essay by Kenneth Marcus in the 2009 Cato Supreme Court Review.

Majority of Americans Misperceive Crime Trends

According to a recent Gallup survey, the majority of Americans think that crime is on the rise. This misperception persists year after year. Only 21 percent of Americans realize that crime is actually falling. Consider murder and rape alone:

Murder and rape are not the only crimes that are falling. The downward trend in U.S. crime rates also holds for simple and aggravated assaults as well as robberies. Crime, in other words, is falling across the board.

 

 Furthermore, the fall in crime is not limited to the United States. Globally, crime is down. For example, consider the homicide rate in Europe over the last century:

 

Why do most people perceive the world as increasingly crime-ridden despite statistical evidence to the contrary?

Harvard professor and HumanProgress.org advisory board member Steven Pinker provided a number of reasons for our deeply ingrained pessimism during a recent Cato event, “If Everything is Getting Better, Why Do We Remain So Pessimistic?” which can be viewed here. His book, The Better Angels of Our Nature, offers a more in-depth look at the decline of violence.

Obama’s Big Idea: Let’s Hike Federal Cop Subsidies

President Obama’s newly announced police-reform package lives up to one’s worst expectations. He flatly refuses to curtail the federal police militarization program, instead calling for a big hike in federal spending on aid to local departments with the usual micromanaging strings attached. These strings will predictably make departments more responsive to Washington, and lobbies with clout there, as distinct from their local communities. As USA Today notes, one powerful interest group has been especially active behind the scenes: “The Fraternal Order of Police, the nation’s largest police union, has waged an intense lobbying campaign to keep the surplus equipment flowing,” with its executive director specifically speaking up in favor of the transfer of armored vehicles and personnel carriers.  A Washington Post editorial notes that while the administration has now released some useful information on the Pentagon’s 1033 surplus-gear program, it still apparently has no plans to improve data gathering on police use of lethal force. 

In a related story that shouldn’t be missed, Conor Friedersdorf assembles excessive-force and misconduct horror stories of cops reinstated in union arbitration proceedings from Oakland, Philadelphia, Pittsburgh, Miami, Sarasota, and elsewhere around the country. He concludes:

I’d rather see 10 wrongful terminations than one person wrongfully shot and killed. Because good police officers and bad police officers pay the same union dues and are equally entitled to labor representation, police unions have pushed for arbitration procedures that skew in the opposite direction. Why have we let them? If at-will employment, the standard that would best protect the public, is not currently possible, arbitration proceedings should at a minimum be transparent and fully reviewable so that miscarriages of justice are known when they happen. With full facts, the public would favor at-will employment eventually.

You can’t tackle the excessive force problem credibly unless you tackle the power of the police unions. Period. 

[adapted from a post at Overlawyered]

The Washington Post On Dodd-Frank’s Conflict Minerals Fiasco

Economic sanctions, when they have an effect at all, tend to inflict misery on a targeted region’s civilian populace and often drive it further into dependence on violent overlords. That truism will surprise few libertarians, but apparently it still comes as news to many in Washington, to judge from the reaction to this morning’s front-page Washington Post account of the humanitarian fiasco brought about by the 2010 Dodd-Frank law’s “conflict minerals” provisions. According to reporter Sudarsan Raghavan, these provisions “set off a chain of events that has propelled millions of [African] miners and their families deeper into poverty.” As they have lost access to their regular incomes, some of these miners have even enlisted with the warlord militias that were the law’s targets. 

Congress added the provisions to Dodd-Frank in a fit of moral self-congratulation over making sure Americans had the chance to be ethical and thoughtful consumers of such products as jewelry and cellphones (as well as thousands of other products, as it turned out, from auto parts to the foil in food packaging). Publicly held companies would be required to report on their supply connections to “conflict minerals” such as tin, tungsten, and gold mined in war-torn areas of the Democratic Republic of the Congo. Lawmakers assigned enforcement of the law to the Securities and Exchange Commission – a body with scant discernible expertise in either African geopolitics or metallurgy – and barbed it with stringent penalties for disclosure violations, to which are added possible liability in class-action shareholder lawsuits.

Reactions to this morning’s Post account frequently employ words like “unintended” or “tragic” to describe the effect on miners of the law, which people in the Congo soon came to call “Loi Obama” – “Obama’s law”.  Unintended and tragic? Maybe. But not unforeseen, because the signs that the law would backfire this way have been in plain sight for years now – as in this 2011 account by Prof. Laura Seay (via) of how “electronics companies now have a strong incentive to source minerals elsewhere, leaving Congolese miners unemployed.” Or this 2011 account by David Aronson in the New York Times of the “unintended and devastating consequences” that he “saw firsthand on a trip to eastern Congo.” Or this more recent paper by law professor Marcia Narine.

But although the evidence has been there for years, the will to believe in the law was too strong – a will fueled by anti-corporate campaigners who take it on faith that when brutalities in the underdeveloped world occur within two or three degrees of separation of the activities of multinational businesses, the right answer must be to blame and shame the businesses.

You might call it an expensive lesson for Americans too, if you assume that anything has been learned. A recent Tulane calculation found that the costs in business compliance have already topped $700 million, with billions more ahead should nothing change. Just this September, the U.S. government conceded that it “does not have the ability to distinguish” which refiners and smelters around the globe are tainted by a connection to militia groups. That is to say, the government has demanded of business a degree of certainty that it cannot achieve itself.  Courtesy of UCLA corporate law professor Stephen Bainbridge, here’s a flowchart of what complying might involve for a given business. 

If the new Republican Congress wants to be taken seriously about fixing counterproductive regulation, it should make the repeal of this law an early priority.