Topic: Law and Civil Liberties

Justice Department Announces Partial Forfeiture Reform

The Washington Post has just reported that Attorney General Eric Holder today announced that, without evidence that a crime occurred, the Justice Department will end its practice of “adopting” civil asset forfeiture cases brought to the department by state and local enforcement agencies. The usual motive for such “equitable sharing” is to help local police departments to circumvent state restrictions aimed at stopping abuses, which arise because once the property is seized, on mere suspicion that it may have “facilitated” a crime, the local police departments keep it.

Such abuses, brought about by those perverse incentives, have led many states to require that any property so seized be turned over to the state’s general treasury. To get around that, state and local police departments ask the Justice Department to “adopt” the case, after which the assets are then split between the Justice Department and the local police department. Without evidence that a crime occurred, that is the practice that will end.

There are deeper problems with American civil asset forfeiture law, however, starting with the very practice of seizing property on the mere suspicion that it may have “facilitated” a crime. A crime does not have to be proven because it is the property that is said to be “guilty” under this bizarre area of our law, its roots in the Middle Ages. Thus, Volusia County, Florida, police stop motorists going south on I-95 and seize any cash they’re carrying in excess of $100 on suspicion that it’s money to buy drugs. New York City police make DUI arrests and then seize drivers’ cars. District of Columbia police seize a grandmother’s home after her grandson comes from next door and makes a call from the home to consummate a drug deal. Officials seize a home used for prostitution and the previous owner, who took back a second mortgage when he sold the home, loses the mortgage. No crime is ever proven. No prosecution is even begun.

In 1995 Cato published the late Rep. Henry J. Hyde’s book about these abuses, which led to partial reforms of federal law in 2000. But the core of the law remained. And abuses continued under state law. Today’s announcement is an important step toward limiting some of those abuses, but more needs to be done. See here and here for more on this subject.

Is a Sock Drug Paraphernalia?

Yes, according to the attorney general. And the “crime” of possessing drug paraphernalia is serious enough to warrant deportation of a legal permanent resident:

At the U. S. Supreme Court Wednesday, the question before the justices boiled down to whether a sock can be considered drug paraphernalia.

Each year 30-35,000 people are deported for drug crimes. But federal law does not treat all drug crimes equally. The question before the justices was whether the government can deport legal permanent residents for minor drug offenses.

Moones Mellouli came to the U.S. on a student visa from Tunisia in 2004. He graduated with honors, then went on to earn two master’s degrees—in applied mathematics and economics—from the University of Missouri-Columbia. He became a lawful permanent resident, worked as an actuary, and taught mathematics at the university.

But in 2010, he was arrested for driving under the influence and having four Adderall pills in his sock. Adderall is a drug prescribed to treat hyperactivity, but it’s widely used by students and others to study and stay awake. Millouli pleaded guilty to a misdemeanor for possession of drug paraphernalia—namely the sock in which he had the four pills. He got a suspended sentence plus a year’s probation, and he was subsequently deported.

He appealed his deportation all the way to the Supreme Court.

Campaign Finance Censors Lose Debate to Reddit

Yesterday, the website Reddit, which is aptly called “the front page of the Internet,” featured an interesting discussion on attempts to overturn Citizens United, the 2010 Supreme Court case that held that the First Amendment protects the right of corporations and unions to make independent expenditures in elections. A group of five people working to overturn the decision fielded questions from the community in a so-called “Ask Me Anything” (AMA) thread. Past AMAs have been created by a wide-range of famous and interesting people, including Jon Stewart and even Barack Obama.

The five advocates titled the thread “We’re Working on Overturning the Citizens United Supreme Court Decision – Ask Us Anything!” Fielding questions were Aquene Freechild from Public Citizen, Daniel Lee from Move to Amend, John Bonifaz from Free Speech for People, Lisa Graves from Center for Media and Democracy, and Zephyr Teachout former candidate for New York governor and associate professor of law at Fordham University.

At the beginning of the AMA they proclaimed:

January 21st is the 5th Anniversary of the disastrous Supreme Court Citizens United v. FEC decision that unleashed the floodgates of money from special interests.

Hundreds of groups across the country are working hard to overturn Citizens United. To raise awareness about all the progress that has happened behind the scenes in the past five years, we’ve organized a few people on the front lines to share the latest.

Surprisingly, at least to me, the AMA was a disaster. Reddit caters to younger people and, as such, it is generally quite left-wing. The Reddit “Politics” community, in particular, is known for having a substantial left-wing tilt. I had thought the community would rally around the advocates—pat them on the back, complain about the Koch brothers, and pontificate on how no “real” policy change can occur until “big money” is silenced.

Instead, the community not only asked excellent and difficult questions, but they clearly identified the fundamental problems with the advocates’ position.

The Government Should Spend More Money!

From today’s New York Times editorial page:

What is a year of your life worth? How about 10 years? Or 20? In many ways the question is unanswerable: Who can assign a dollar amount to the experience of watching a child grow up, of being able to care for an elderly parent?

But when the government has wrongfully convicted and imprisoned someone, a cash payout is the most meaningful way to make amends and achieve some measure of belated justice….

Thirty states, the federal government and the District of Columbia have laws providing for compensation to the wrongfully convicted — from $5,000 per year in Wisconsin to $80,000 per year in Texas. But, over all, almost a third of those exonerated get nothing.

Wait, let’s go over that one more time: A third of the persons wrongfully imprisoned receive no compensation from the government?  What to make of policymakers who manage to spend billions of dollars and yet say there is no room in the budget for compensating the victims of government mistakes or misconduct?

The Pope Weighs in on Charlie Hebdo

Just when the West is struggling to make clear to the rest of the world the nature and importance of free speech—and the underlying political separation of sacred and secular—Pope Francis weighs in and muddies the waters. Responding during a flight to the Philippines today to press questions about the Charlie Hebdo killings in Paris last week, the Pope said clearly that “One cannot make war [or] kill in the name of one’s own religion, that is, in the name of God. To kill in the name of God is an aberration.” He said also, however, that free speech does not imply total license to insult or offend another’s faith: “One cannot provoke, one cannot insult other people’s faith, one cannot make fun of faith. Every religion has its dignity.”

So far so good—insofar as his “cannot” implies simply that one “ought not” to make fun of another’s faith, as a matter of good behavior, other things being equal. That caveat is necessary because there are times when religious claims and, especially, practices are rightly ridiculed, as when they threaten to restrict the freedom of those of no or of other faiths. Thus understood, however, the Pope is simply distinguishing between what one has a right to do—speak freely, even if offensively—and what one ought to do—refrain from giving gratuitous offense.

But the Pope did not stop there. He added, “In freedom of expression there are limits, like in regard to my mom”—alluding to an earlier comment, “If [a dear friend] says a swear word against my mother, he’s going to get a punch in the nose. That’s normal.” To be sure, it may be “normal,” but it breaks down the distinction between speech and force—and opens the door to justifying the use of force to punish speech. If legitimate in the personal sphere, why not in the public sphere as well? In fact, American law has such a doctrine, the “fighting words doctrine,” which the Supreme Court held in 1942 in Chaplinsky v. New Hampshire to refer to words that “by their very utterance inflict injury or tend to incite an immediate breach of the peace” and are among the “well-defined and narrowly limited classes of speech the prevention and punishment of [which] … have never been thought to raise any constitutional problem.”

But that doctrine has never sat comfortably within our free speech jurisprudence, and in fact it has been steadily narrowed over the years, for good reason. The proper response to offensive speech is speech in turn. Otherwise, were the force of law to be sanctioned as a proper response, there would be no end to the fine lines that would need to be drawn to distinguish when and when not force would be justified—and no clear bounds on official powers to sanction. Indeed, do we need more than to look around the world to places where speech is not protected? Surely, the Pope did not mean to open the door to blasphemy laws, but he cracked the door just a little.

Big Win for Student Liberty

The Atlanta-based U.S. Court of Appeals for the Eleventh Circuit has issued another landmark opinion that protects student rights against the arbitrary diktats of university officials. In a case that has wound up and down the federal judiciary several times, the court today again ruled for Valdosta State University student Thomas Hayden Barnes, who had been placed on administrative leave without a hearing after he had peacefully protested the construction of a parking garage.

As I described in summarizing the last brief Cato filed in this case, the Eleventh Circuit had previously affirmed the denial of qualified immunity against university president Ronald Zaccari, restating that malicious public officials aren’t entitled to special protections when they clearly violate the rights of another. On remand, the district court inexplicably let the defendants off on the student’s claim that Zaccari and others retaliated against him for exercising his First Amendment rights—he had already won on other claims regarding his due process rights—then applied a severe across-the-board reduction of attorney’s fees awarded to Barnes, and even granted reverse attorney’s fees for the defendants who were held not liable, going so far as calling those claims frivolous solely because they were unsuccessful.

The Eleventh Circuit has now reversed the lower court yet again, on all these points, asking the district court to reconsider the First Amendment claim and recalculate the attorney’s fees. The decision is pretty technical with no really quotable passages, but the workmanlike slap-down of the district court is notable.

Students who stand up for their constitutional rights are rare, and imposing unfavorable fee awards will only make it more difficult for them to secure strong representation. (Barnes’s counsel is the renowned First Amendment lawyer and Cato adjunct scholar Bob Corn-Revere.) The district court, while acknowledging that some rights were violated, only offered half-measures as a remedy. The Eleventh Circuit has now corrected that mistake, sending university officials the loud, clear message that constitutional protections don’t stop at the edge of campus.

Public Schooling’s Pluralism Problem and the School Choice Solution

Last month, the Orthodox Union, a prominent Jewish organization, launched a campaign advocating for private school choice policies. That raised hackles from Americans United for Separation of Church and State (AU), which condemned the chutzpah of the Orthodox Union to work for equal funding for children in their community:

“It [the campaign] will require us to stop being timid,” [Orthodox Union executive vice president Allen Fagin] said. “We pay our taxes, and our kids are also entitled not to be left behind.”

That statement, of course, is only half-true: Fagin’s constituents do pay their taxes, and their children are indeed entitled to an education. But that’s exactly what public schools are for. OU’s campaign relies on the same faulty logic we’ve seen from advocates of voucher programs: Because parents pay taxes, they should be able to ask every other taxpayer in the state to subsidize their child’s religious education. It’s a clear constitutional violation. […]

It’s unconscionable (and exceptionally brazen) for OU to demand that further funds be siphoned away from public schools intended to serve entire communities in order to promote their private religious agenda. If Orthodox parents want to place their children in religious schools, that’s their right. And it’s their responsibility to pay for it.

In reality though, it’s the idea that so-called “public” schools are actually “public” that is only half-true. District schools are technically open to any student whose parents can afford to live in the district, but they are certainly not “intended to serve entire communities.” For example, they are not intended to serve Orthodox Jews or others like them who have a different vision of education. When everyone is forced to pay for one school system and decisions about education are made via a political process, there will be winners and losers.