Topic: Law and Civil Liberties

Busy Courthouses, Few Trials

From NYT columnist Adam Liptak:

Trials are on the verge of extinction. They have been replaced by settlements and plea deals, by mediations and arbitrations and by decisions from judges based only on lawyers’ written submissions. …

Instead of hearing testimony, ruling on objections and instructing jurors on the law, judges spend most of their time supervising the exchange of information, deciding pretrial motions and dealing with settlements and plea bargains. …

Those who have the temerity to “request the jury trial guaranteed them under the U.S. Constitution,” wrote the judge, William G. Young of the Federal District Court in Boston, face “savage sentences” that can be five times as long as those meted out to defendants who plead guilty and cooperate with the government.

The movement away from jury trials is not just a societal reallocation of resources or a policy choice. Rather, as Judge Young put it, it represents a disavowal of “the most stunning and successful experiment in direct popular sovereignty in all history.”

Indeed, juries were central to the framers of the Constitution, who guaranteed the right to a jury trial in criminal cases, and to the drafters of the Bill of Rights, who referred to juries in the Fifth, Sixth and Seventh Amendments. Jury trials may be expensive and time-consuming, but the jury, local and populist, is a counterweight to central authority and is as important an element in the constitutional balance as the two houses of Congress, the three branches of government and the federal system itself. …

I was on jury duty last week, in a state criminal court in Manhattan. During the orientation on Wednesday, a court officer, with mixed pride and hyperbole, said his was the busiest courthouse in America.

I never saw so much as the inside of a courtroom. After a couple of days of milling around in an assembly room with more than 100 other potential jurors, the State of New York thanked us for our service and sent us home.

For more about how plea bargaining tactics tax the right to jury trial, go here (pdf).

To listen to a talk that Judge Young gave at Cato, go here.

Barney Frank, the Occasional Libertarian

Rep. Barney Frank, chairman of the House Committee on Financial Services, gave a resoundingly libertarian interview to NPR’s “All Things Considered” Friday evening. Frank has introduced a bill to repeal last year’s ban on online gambling. As he did in this 2003 Cato Policy Forum, he made his argument in libertarian terms. From the Nexis transcript:

ROBERT SIEGEL: First of all, what is your motive here? Is it libertarian? Is it to achieve more revenues for the government by taxing activity? What is it?

Rep. FRANK: It’s libertarian. I am appalled at the notion that the government tells adults that they cannot do certain things with their own money on their own time in ways that do not harm anybody else because other people disapproved of them. …

But my motive is overwhelmingly that I just don’t want to see the government telling people what to do….

SIEGEL: How much money would taxing Internet gambling bring in to the federal government?

Rep. FRANK: Well, in the bill I am - not a lot - I really want to make it very clear, that’s not my major focal point here. Potentially this could be a useful source of revenue just like any other business. But I do want to stress, my main motivation here is that I do think I should mind my own business and I want to deal with the environment, and I want to deal with economic problems, and I want to deal with poverty and all these other things. But I spend a lot of energy trying to protect people from other people. I have none left for protecting people from themselves.

In between those segments, Frank said that we allow lots of things over the Internet–like wine sales–that are appropriate for adults but not for children. And he said that conservatives want to ban things they think are immoral, and liberals want to ban things they think are “just tacky.”

It’s good to hear an elected official use the word libertarian, and use it correctly, and apply it to issues. Would that more of his colleagues would do so. I’m reminded that seven years ago I did a libertarian rating of Congress. Frank did better than most Democrats, and indeed better than most Republicans (including 7 of the 11 members of the Republican Liberty Caucus Advisory Board). But he voted to restrict steel imports, restrict gun sales and gun shows, and implement the restrictive “Know Your Customer” bank regulations, and he opposed a tax cut. So his commitment to not telling what people to do with their own lives and their own money seems limited.

This year, as Financial Services chairman, he’s demonstrating his interventionist tendencies as well as his sometime libertarian instincts. He wants to push all workers into government health care, to regulate corporate decisions about executive compensation, to put more obstacles in the way of free trade across national borders, to keep Wal-Mart from creating an internal bank clearinghouse to hold down its costs. Not to mention expanding anti-discrimination rules to include gay, lesbian, bisexual and transgender people.

Frank told another journalist:

“In a number of areas, I am a libertarian,” Frank said. “I think that John Stuart Mill’s ‘On Liberty’ is a great statement, and I was just rereading it.

“I believe that people should be allowed to read and gamble and ride motorcycles and do a lot of things that other people might not want to let them do.”

Would that the Republicans who once took Congress on the promise of “the end of government that is too big, too intrusive, and too easy with the public’s money” also reread (or read) “On Liberty” and take its message to heart. And would that Barney Frank come to realize that adults should also be free to spend the money they earn as they choose and to decide what contracts, with foreign businesses or local job applicants, they will enter into.

Mallaby, Penn & Teller on Immigration

Sebastian Mallaby’s Washington Post column today on immigration is simply outstanding. After providing evidence that hard-working people who have crossed the border without the state’s stamp of approval do not increase the rate of unemployment, cost the average taxpayer nothing, and at worst depress wages of native high school drop-outs by 9 percent, Mallaby makes the argument that many otherwise decent people seem unable to make: the well-being of immigrants counts, too:

[A]lthough the concern for high-school dropouts is welcome, it must be weighed against the aspirations of migrants. Is it right to push native workers’ pay up by 2 percent [a generous estimate of the gain from tighter restrictions on liberty of movement] if that means depriving poor Mexicans of a chance to triple their incomes?

Of course it isn’t, and given that the total economic effect of immigration on U.S. households is a wash, the big ramp-up in enforcement spending beloved by immigration hawks is an egregious waste of money. But no politician is going to say that.

Another excellent, and rather more entertaining, rejoinder to nativist hysteria is Penn and Teller’s new immigration episode of Bullsh*t, available here for your viewing pleasure.

This Is a Republic (2)

At an appearance in Iowa this month, the Washington Post reports, Sen. John McCain went out of his way to declare his support for President Bush:

“There’s only one commander in chief of the United States, and that’s George W. Bush,” he told the crowd.

No, senator. This is a constitutional republic, and we don’t have a commander in chief. According to Article II of the Constitution, “The President shall be Commander in Chief of the Army and Navy of the United States.”

That’s an important distinction, and it’s disturbing that any candidate for the presidency would miss it. If McCain wants to be commander in chief of the whole country, of you and me, and to direct us the way the president directs the officers and soldiers of the armed forces, he needs to propose an amendment to the Constitution–an amendment that would effectively make the rest of the Constitution irrelevant, since it was designed as a Constitution for a limited government of a free people.

Next McCain will want us to bow and curtsy.

Corruption in Atlanta Police Dep’t. ‘Widespread’

A few months ago, Atlanta police officers broke into the home of Kathryn Johnston with a “no-knock” search warrant to look for drugs. Ms. Johnston, who was 88 years old, thought she was being burglarized.  When she heard men breaking down her front door, she retrieved her handgun and shot through the door. The police shot back and killed her.

Her tragic death brought scrutiny to the police department, and what a mess it is. Yesterday, several officers pleaded guilty to criminal charges. They lied to obtain the warrant and then they tried to cover up their lies by planting marijuana and cocaine in Ms. Johnston’s home as she lay dead on the floor. 

The Atlanta chief of police apparently couldn’t clean house himself — he called 911 and asked for the FBI and federal prosecutors for assistance. Yesterday, federal officials said they are investigating a “culture of corruption.” An attorney for one of the cops involved claims that the officer was “trained” to put false information into search warrant applications! The investigation is still underway.

Last year, the Supreme Court heard a no-knock case and the majority opinion was authored by Justice Scalia. Scalia and the conservatives said that concerns about civil liberties violations were overblown in light of “the increasing professionalism of police forces.” Wrong.

The spotlight is on Atlanta because of Ms. Johnston’s death. But it would be a serious mistake for anyone to conclude that the “culture of misconduct” is unique to that city’s police department. It’s hard to say how bad it is because there’s so little interest in tackling the festering problem.  If more journalists  would take an interest, we’d see more corrective action, as happened with the Walter Reed scandal. Why not begin with the Maye case in Mississippi?

I’d Be OK with Hinky, Given Post Hoc Articulation

Bruce Schneier has a typically interesting post about right and wrong ways to generate suspicion. In “Recognizing ‘Hinky’ vs. Citizen Informants,” he makes the case that asking amateurs for tips about suspicious behavior will have lots of wasteful and harmful results, like racial and ethnic discrimination, angry neighbors turning each other in, and so on. But people with expertise — even in very limited domains — can discover suspicious circumstances almost automatically, when they find things “hinky.”

As an example, a Rochester Institute of Technology student was recently discovered possessing assault weapons illegally (though that’s not necessarily good policy):

The discovery of the weapons was made only by chance. A conference center worker who served in the military was walking past Hackenburg’s dorm room. The door was shut, but the worker heard the all-too-familiar racking sound of a weapon … .

Schneier explains this in terms of “hinky”:

Each of us has some expertise in some topic, and will occasionally recognize that something is wrong even though we can’t fully explain what or why. An architect might feel that way about a particular structure; an artist might feel that way about a particular painting. I might look at a cryptographic system and intuitively know something is wrong with it, well before I figure out exactly what. Those are all examples of a subliminal recognition that something is hinky — in our particular domain of expertise.

This straddles an important line. Is it something we “can’t fully explain,” or something that feels wrong “before [one can] figure out exactly what”? My preference is that the thing should be explainable — not necessarily at the moment suspicion arises, but at some point.

I’m reminded of the Supreme Court formulation “reasonable suspicion based on articulable fact” — it was hammered into my brain in law school. It never satisfied me because the inquiry shouldn’t end at “articulable” but at whether, subsequently, the facts were actually articulated. “The hunch of an experienced officer” is an abdication that courts have indulged far too long.

I hear fairly often of “machine learning” that might be able to generate suspicion about terrorists. The cincher is that it’s so complicated we allegedly “can’t know” exactly what caused the machine to find a particular person, place, or thing worthy of suspicion. Given their superior memories, I think machines especially should be held to the standard of articulating the actual facts considered and the inferences drawn, reasonably, to justify whatever investigation follows.