Topic: Law and Civil Liberties

When the Government Takes Your Money, It Takes Your Property

When Daniel and Andrea McClung applied for a permit to build a small business on their property in Sumner, Washington, the city charged them nearly $50,000 to pay for improvements to the city’s entire storm drainage system.

The McClungs sued the city under the Fifth Amendment to the Constitution, whose Takings Clause prohibits the government from “taking” private property for public use without just compensation.  They argue that the city cannot force them to pay fees for off-site pipes absent proof that their development would have a specific detrimental effect on the existing drainage system–and without any evidence that the impact was worth $50,000.

The Ninth Circuit ruled in favor of the city, reasoning that money is not property (so there could be no unconstitutional taking) and that because the fees were imposed by ordinance (so the city’s determination that the pipes needed upgrading was justification enough for the fees).  The McClungs have now asked the Supreme Court to review their case.

Cato, joined by the Pacific Legal Foundation and the Building Industry Association of Washington, argues that this case is a perfect vehicle for the Court to revisit the scope of Fifth Amendment protections.

Our brief highlights the deep divisions among state and federal courts over several important issues, such as whether the Takings Clause applies to legislative (as opposed to bureaucratic) exactions and whether it applies to monetary exactions (not just burdens on land use).  The Court should take this case to ensure that the standard for reviewing development conditions is uniform across the country and make clear that property right protections do not depend on ill-defined distinctions such as the form of property demanded by the government or the manner in which a condition is imposed.

Court Embraces the Spirit of Aloha

Today the Supreme Court unanimously ruled that the resolution Congress passed in 1993 to apologize for U.S. involvement in the overthrow of the Hawaiian monarchy—a determination that remains controversial among historians—did not affect Hawaii’s sovereign authority to sell or transfer the lands that the United States had granted to the State at the time of its admission to the Union.  In an opinion by Justice Alito, the Court correctly explained that the words of the Apology Resolution were conciliatory and hortatory, creating no substantive rights—and indeed the resolution’s operative clauses differ starkly from those which provided compensation to, for example, the Japanese-Americans interned during World War II.

Importantly, the Court also noted that it would “raise grave constitutional concerns” if any act of Congress purported to cloud Hawaii’s title to sovereign lands so long after its admission to the Union.  This last point is perhaps most important to the ongoing debate over the “Akaka Bill,” which would create a race-based entity to extract political and economic concessions from the state and federal governments on behalf of ill-defined “native Hawaiians.”  It is delicious irony that Hawaii’s attorney general, Mark Bennett, an Akaka Bill supporter, secured this victory.

Just as Hawaii is now allowed to develop state lands for the benefit of all its citizens, hopefully Congress will in future refrain from inflaming racial divisions and instead treat all Hawaiians, regardless of race, with the legal equality to which they are entitled.

Further Cato materials on the above: Here’s our brief in the case, Hawaii v. Office of Hawaiian Affairs.  Here are articles I wrote on the case and on the on the Akaka Bill.  Here is a write-up of a debate I had at the University of Hawaii last month.  Finally, here is a podcast I did for the Grassroot Institute (Hawaii’s free-market think tank) – where, among other things, I correctly predicted the Court’s vote today and the scope of its opinion.

Monday Podcast ‘The Politics of Medical Marijuana’

As of this writing, 13 states have passed legislation legalizing medical marijuana. President Obama’s pledge to stop raiding medical marijuana facilities was met with praise from opponents of the drug war, but what does it mean for the future of drug policy?

In Monday’s Cato Daily Podcast, Rob Kampia, executive director of the Marijuana Policy Project, explains his organization’s goals and strategies for ending marijuana prohibition in the United States.

Our society is not quite ready yet to completely end marijuana prohibition. So what we want to do is keep as many people from being arrested and put in jail as possible in the short run. One way of doing that is to legalize medical marijuana state by state.

Kampia spoke at a policy forum on medical marijuana at the Cato Institute in March.

Jim Webb and Criminal Justice

Senator Jim Webb (D-Va) is calling for a national commission to review the American criminal justice system from top to bottom.    Good for him.  With more than seven million people under criminal justice supervision (prison, parole, probation), a thorough review is desperately needed.  You can tell that Webb is new to the Congress because he is raising a subject that most of the long term incumbents would rather not discuss.  As Glenn Greenwald observes:

For a Senator like Webb to spend his time trumpeting the evils of excessive prison rates, racial disparities in sentencing, the unjust effects of the Drug War, and disgustingly harsh conditions inside prisons is precisely the opposite of what every single political consultant would recommend that he do.  There’s just no plausible explanation for what Webb’s actions other than the fact that he’s engaged in the noblest and rarest of conduct:  advocating a position and pursuing an outcome because he actually believes in it and believes that, with reasoned argument, he can convince his fellow citizens to see the validity of his cause.  And he is doing this despite the fact that it potentially poses substantial risks to his political self-interest and offers almost no prospect for political reward.  Webb is far from perfect – he’s cast some truly bad votes since being elected – but, in this instance, not only his conduct but also his motives are highly commendable.

Read the whole thing.

And speaking of Glenn Greenwald, he will be here at Cato this Friday to discuss his new study for Cato, Drug Decriminalization in Portugal.  Portugal is treating drug use as a health problem, not a crime problem, and it is working rather well.  When Senator Webb’s commission gets assembled, this report ought to be at the top of  its reading list.

To register for the Greenwald forum, go here.  For a discussion on mass incarceration, go here.  For more Cato work on crime and drugs, go here and here.

Thursday Podcast: ‘A Failed Drug War in Mexico’

Since 2008, more than 7,000 people have been killed  in violence associated with the drug war in Mexico. Secretary of State Hillary Clinton is traveling to the region this week, and said Wednesday that the United States shares the blame for the violence.

In today’s Cato Daily Podcast, Cato scholar Doug Bandow offers analysis on how the U.S. should respond to the crisis on our southern border.

Ken Lammers on Posner and Strict Liability

Ken Lammers, who blogs over at CrimLaw, recently posted a review of my new book, In the Name of JusticeBy way of background, the book is an edited collection of essays.  The lead essay is a reprint of the 1958 classic, “The Aims of the Criminal Law,” by Harvard Law Professor Henry Hart.  Legal and criminal law experts, such as Judge Richard Posner and James Q. Wilson (among others), have written original essays about Hart’s ideas.  

 Among other things, Hart critiqued the doctrine of strict criminal liability–which essentially dispenses with the requirement of proving someone’s criminal intent.  Hart says this is profoundly wrong.  The essence of  criminal conduct is that the person has done something which is blameworthy.  With strict liability, prosecutors can condemn certain persons as “criminals” without proving that they have done anything that is truly blameworthy.

Judge Richard Posner’s essay offers a defense of the strict liability doctrine, but Ken Lammers is not persuaded.  Here’s an excerpt:

Posner’s strongest argument is born of the wisdom of ignorance: the statutory rape argument. The statutory rape, best-interest-of-the-child, absolute strict liability is a creature born of emotion divorced from logical thought. We must protect the children at all costs. Therefore, anybody who crosses the line gets convicted no matter the circumstance. “The effect is to induce men to steer well clear of young-looking women, a form of care they would be less likely to use if ignorance were a defense.” (p. 97)

This pretty much brands Posner as someone who has not had actual trial experience. He’s never seen that trial wherein the immature 18 year old defendant (looking all of 14) has “raped” the 14 year old predatory girl (who looked 20) who had a list on her bedroom door of men she aimed to have sex with and had crossed several names off as she achieved her goal. Y’know, the same girl who turned the defendant in because she got mad at him when he found out her age and refused to have sex with her anymore. Guilt via strict liability. I’ve seen at least two cases with facts similar to this in my 8+ years practicing (none at my current locale); persons in larger jurisdictions can probably relate more of the same. This is how the “justice” of strict liability plays out in real life and anyone who thinks that is the proper way for the law to work is clearly engaging in faulty reasoning.

I agree.  And statutory rape is just a single example of where the doctrine of strict liability has taken hold.  Once that precedent was established, it has expanded elsewhere, as have the injustices.  For example, the law bans felons from possessing guns and ammunition.  Dane Yirkovsky found a bullet at his girlfriend’s house and put it in a dish on the dresser.  Later, police search and find the bullet.  Yirkovsky tells them that he  put it there.  Since he is an ex-con, he gets arrested on a felon-in-possession charge.  And with mandatory minimum sentencing in place, he is now serving a fifteen year prison sentence. Under the law, Yirkovsky is “guilty.”  But did he do anything that was really  blameworthy?  Can his conduct really be described as “criminal?”

To learn more about the state of our criminal law, get the book.

‘We’re Failing. Let’s Keep Trying’

Secretary of State Hillary Clinton’s diagnosis of the war on drugs:

“Neither interdiction [of drugs] nor reducing demand have been successful.”

“We have been pursuing these strategies for 30 years.”

“Our insatiable demand for illegal drugs fuels the drug trade.”

Secretary of State Hillary Clinton’s prescription for the war on drugs:

“We’ve got to take a hard look at what we can do to stop the bad guys”.

My prognosis:

“I think [trying harder to stop the bad guys] is going to fail.”