Topic: Law and Civil Liberties

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.”

Tuesday Podcast: ‘Anthony Kennedy’s Modest Libertarianism’

Author Helen J. Knowles calls Supreme Court Justice Anthony Kennedy a “modest libertarian” in her new book The Tie Goes to Freedom: Justice Anthony M. Kennedy on Liberty, which analyzes Kennedy’s jurisprudence.

In Tuesday’s Cato Daily Podcast, Knowles explains why she chose to recognize Justice Kennedy as a “modest libertarian”:

If you line all the justices up and say… did they vote for the individual, or for the government? Kennedy is overwhelmingly in favor of the individual rather than the government, far more than any of his colleagues.

Events This Week

kennedy-bookMonday, March 23, 2009

BOOK FORUM- The Tie Goes to Freedom: Justice Anthony M. Kennedy on Liberty
12:00 PM (Luncheon to Follow)
The Cato Institute

Author Helen Knowles examines how Kennedy’s background as a law student and classroom teacher has influenced his judicial philosophy. The book begins by examining Kennedy’s judicial thought in the context of libertarian thought. Knowles does not call the justice a libertarian. Instead, in a sympathetic but not uncritical analysis, she uses libertarian philosophy, focusing on privacy, race, and speech cases, to draw out Kennedy’s views about limited government and individual liberty. Please join us for a discussion of Justice Kennedy’s “modest libertarianism,” with comments by one of the nation’s foremost constitutional scholars, Professor Randy Barnett.

Watch live online here.

CAPITOL HILL BRIEFING- Tax Havens Should Be Celebrated, Not Persecuted
12:00 PM (Lunch Included)
B-340 Rayburn House Office Building

Join Cato scholar Dan Mitchell and former member of the Cayman Islands Monetary Authority Richard Rahn to review the myths and realities about the role of tax havens in the global economy.


Tuesday, March 24, 2009

POLICY FORUM- Georgia’s Liberal Institutions In the Wake of War and the Global Economic Crisis
12:00 PM (Luncheon to Follow)
The Cato Institute

Featuring David Bakradze, Speaker of the Georgian Parliament; Kakha Bendukidze, Former Minister of the Economy and Reform Coordination, Georgia; and Andrei Illarionov, Senior Fellow, Center for Global Liberty and Prosperity, Cato Institute.

Register to attend or watch live online here.

The Price of the Drug War

Critics of the drug war long have pointed out how criminalizing drug use creates crime.  America has been through this experience before, with Prohibition.  Just look at Prohibition-era Chicago with pervasive corruption and mob warfare.

Unfortunately, the experience is being repeated in Mexico.  And the violence is spilling over the border into the U.S.  Reports the New York Times:

Sgt. David Azuelo stepped gingerly over the specks of blood on the floor, took note of the bullet hole through the bedroom skylight, raised an eyebrow at the lack of furniture in the ranch-style house and turned to his squad of detectives investigating one of the latest home invasions in this southern Arizona city.

A 21-year-old man had been pistol-whipped throughout the house, the gun discharging at one point, as the attackers demanded money, the victim reported. His wife had been bathing their 3-month-old son when the intruders arrived.

“At least they didn’t put the gun in the baby’s mouth like we’ve seen before,” Sergeant Azuelo said. That same afternoon this month, his squad was called to the scene of another home invasion, one involving the abduction of a 14-year-old boy.

This city, an hour’s drive north of the Mexican border, is coping with a wave of drug crime the police suspect is tied to the bloody battles between Mexico’s drug cartels and the efforts to stamp them out.

Since officials here formed a special squad last year to deal with home invasions, they have counted more than 200 of them, with more than three-quarters linked to the drug trade. In one case, the intruders burst into the wrong house, shooting and injuring a woman watching television on her couch. In another, in a nearby suburb, a man the police described as a drug dealer was taken from his home at gunpoint and is still missing.

Tucson is hardly alone in feeling the impact of Mexico’s drug cartels and their trade. In the past few years, the cartels and other drug trafficking organizations have extended their reach across the United States and into Canada. Law enforcement authorities say they believe traffickers distributing the cartels’ marijuana, cocaine, heroin, methamphetamine and other drugs are responsible for a rash of shootings in Vancouver, British Columbia, kidnappings in Phoenix, brutal assaults in Birmingham, Ala., and much more.

United States law enforcement officials have identified 230 cities, including Anchorage, Atlanta, Boston and Billings, Mont., where Mexican cartels and their affiliates “maintain drug distribution networks or supply drugs to distributors,” as a Justice Department report put it in December. The figure rose from 100 cities reported three years earlier, though Justice Department officials said that may be because of better data collection methods as well as the spread of the organizations.

Washington officials want to believe that throwing more money at the Mexican government will solve the problem.  But there’s nothing in the experience of Afghanistan, Colombia, or many other drug production and smuggling centers to suggest that more enforcement, especially by a government as weak as that in Mexico City, will end the drug trade.

Only taking money out of drug production and sales will end the violence.  And that means no longer treating what is fundamentally a health and moral problem as a criminal problem.  Legalizing adult drug use may not be a great solution, but it would be a vast improvement over drug prohibition, which promotes violent crime while tens of millions of Americans still use illicit substances.

DHS Officials Skirt Open Meeting Laws to Promote REAL ID

There’s not much chance that U.S. Department of Homeland Security officials went to Annapolis to argue against having Maryland implement the national ID law. Maryland’s Gazette reports:

Federal homeland security officials skirted open meetings laws at a briefing last week on the state’s efforts to comply with the federal Real ID Act, unsettling several lawmakers in an era of heightened government transparency.

A meeting with the Maryland House Judiciary Committee members and other lawmakers was carefully regulated to avoid reaching a quorum so open meeting rules could be avoided.

Something is funny in the state of Maryland, and something is funny at the DHS, to insist on holding closed meetings about REAL ID during what President Obama promised would be the most open and transparent administration in history.

Napolitano revealed early this month that she has been collaborating with the National Governors Association on REAL ID. Just what they plan also remains a secret.

As governor of Arizona, she signed legislation to resist REAL ID, but politicians that come to Washington have a tremendous capacity to go native and start working to build federal power. There’s even precedent for them working with the NGA to do it.

The Problem of Guantanamo

The Constitution obviously does not leave Americans helpless in fighting against those who wish them ill.  But it also sets standards of conduct that should not – indeed, cannot – be carelessly tossed aside.

The prison at Guantanamo Bay has become such an international symbol of the U.S. abandoning its principles because it reflects an anti-terrorism policy gone badly awry.  First, the Bush administration was both callous and careless in imprisoning people, even paying unreliable tribal allies for captives.  Second, the U.S. government created no effective and objective truth-determining process to assess guilt.  Third, Washington employed torture, violating both domestic and international law.

No doubt dangerous terrorists have been incarcerated at Gitmo.  But so too have many innocent people.  Indeed, the claims of former State Department Chief of Staff Larry Wilkerson are particularly sobering:

Lawrence B. Wilkerson, the former chief of staff to Secretary of State Colin Powell, admitted today that of the approximately 800 detainees held at Guantanamo Bay since the controversial detention center opened, only “two dozen or so” were actually terrorists. Wilkerson told the Associated Press today that “there are still innocent people there,” and that “some have been there six or seven years.”

Wilkerson made other comments earlier in the week in an internet posting entitled “Some Truths About Guantanamo Bay.” In that posting he said that “several in the US leadership became aware of the lack of proper vetting very early on and thus, of the reality that many of the detainees were innocent of any substantial wrongdoing, had little intelligence value, and should be immediately released.”

Wilkerson also claimed that then-Secretary Powell and Richard Armitage were pressuring for the repatriation of as many detainees as possible, and that former Defense Secretary Donald Rumsfeld and Vice President Dick Cheney were unphased by the fact that “among the detainees was a 13 year old boy and a man over 90,” standing in opposition to returning detainees.

Even if Wilkerson exaggerates–and he has been a credible witness so far–he points to the price America has paid for failing to live up to its principles.  The U.S. has locked up many who were neither terrorists nor otherwise dangerous.  Doing so undoubtedly has helped turn some people in and out of Gitmo towards violence against America.  And mistreating the innocent has badly sullied America’s reputation as a shining city upon a hill.

Confronting terrorism will never be easy.  But violating America’s principles is no way to defend the America in which we all claim to believe.