Topic: Law and Civil Liberties

Legal Process Is Good Business

I’ve written here a couple of times about how government access to data threatens many new and forthcoming business models.

TechDirt, a favorite tech-business blog, writes today about some ISPs’ perceived lack of cooperation with law enforcement.  That ‘lack of cooperation’ is asking for a warrant before revealing customer data.  “But requiring a warrant is a check against abuse; without them it’s hard for ISPs to judge the legitimacy and seriousness of a request. By valuing privacy, they better serve their customers, and ensure that law enforcement is only pursuing cases within the scope of the law.”

Very nice to see a business-oriented blog showing how privacy protection nests with commercial interests and good government.

Winning, But Losing

When the government accuses someone of a criminal offense, it typically proceeds to exert enormous pressure on the accused to surrender the right to a jury trial. Fewer than 10 percent of the criminal cases in America go to trial. Plea bargaining dominates the system.

Sometimes a person will insist on a trial. This is risky because if the government gets a conviction, it will mete out extra punishment because it was forced to go through the “trouble” of a trial. But if the jury sides with the accused, the state loses, right? Wrong.  The state can still unleash punishment after an acquital. 

Hard to believe, I know. Here’s a recent ruling (United States v. Ibanga) in which the Court is at pains to explain the law.

After an eleven-day trial, a jury acquitted defendant Michael Ibanga of all of the drug distribution charges against him and one of the two money laundering charges against him in the Indictment. The single count of which defendant Ibanga was convicted typically would result in a Guidelines custody range of 51 to 63 months. However, the United States demanded that the Court sentence defendant Ibanga based on the alleged drug dealing for which he was acquitted. This increased the Guidelines custody range to 151 to 188 months, a difference of about ten years. …

What could instill more confusion and disrespect than finding out that you will be sentenced to an extra ten years in prison for the alleged crimes of which you were acquitted? The law would have gone from something venerable and respected to a farce and a sham.

From the public’s perspective, most people would be shocked to find out that even United States citizens can be (and routinely are) punished for crimes of which they were acquitted.

[…]

The Sentencing Guidelines have accomplished much good in the course of standardizing the sentencing process. Similarly, the Fourth Circuit’s post-Booker presumption approach is a politically savvy parry to the thrust of those who call for more stringent measures, such as the expansion of mandatory minimums. However, it is a charade to say that the Sixth Amendment violations inherent in the Guidelines are cured simply by intoning the word “advisory.” Saying something is so does not make it so.

One of Charles Dickens’ characters, Mr. Bumble, famously observed, “If the law supposes that, … the law is an ass– an idiot.” Charles Dickens, Oliver Twist 463 (3d ed. The New American Library 1961). He was referring, of course, to a legal fiction that had no basis in reality. Many of our fellow citizens believe that Mr. Bumble was right — that the legal process is rigged through sleights of hand that defy common sense. It would only confirm the public’s darkest suspicions to sentence a man to an extra ten years in prison for a crime that a jury found he did not commit. (Italics added.)

This case stands out because the ruling is bitterly critical of this aspect of sentencing law. Most court rulings affirm this stuff all the time, without comment. 

I should point out that the state is powerless to do anything in the typical TV drama situation where there is a single murder charge that the jury is considering against someone. If there’s a single charge and the jury says “not guilty,” the prosecutor cannot do anything about that result. But that’s TV. Nowadays, when a case goes to trial, there are multiple charges. And if the jury comes back with a single “guilty” verdict, the government might still drop a ton of bricks on the defendant — even if the jury said “not guilty” on a dozen other charges.

Does the existence of such a power influence a person’s decision with respect to whether he ought to “waive” his right to a jury trial in first place — and accept a plea bargain? What do you think?

The constitutional right to a jury trial is on life-support and that’s where the government wants it. Go here for Cato articles related to sentencing.

Don’t Tread on Me

Attorney General Alberto Gonzales does not like it when members of Congress poke their noses into the affairs of the executive branch. 

Consider today’s Washington Post report on this week’s release of the transcript from an April House Judiciary Committee hearing on such matters as domestic surveillance and treatment of potential terrorists. During the hearing, Gonzales repeatedly evaded lawmakers’ questions.

Here’s a snippet from the exchange between Gonzales and Rep. Jerrold Nadler (D-NY):

Nadler: Can you assure this Committee that the United States Government will not grab anybody at an airport or anyplace in U.S. territory, and send them to another country without some sort of due process?

Gonzales: Well, what I can tell you is that we’re going to follow the law in terms of what—

Nadler: Well, does the law permit us to send someone to another country without any due process, without a hearing before an administrative, an immigration judge or somebody? Just grab them off the street and put them on a plane, goodbye without — we’ve done that. Does the law permit us to do that? Do we claim that right?

Gonzales: I’m not going to confirm that we’ve done that.

Bush and Gonzales have this message for the Congress: Go back to investigating steroid use among athletes or something, but don’t tread on us!

On Media and Habeas Corpus

TV.  People call it the “boob tube.”  People banish it from their homes to demonstrate how smart and superior they are (oh, and elitist).  People argue endlessly about who should be able to own TV stations because, with too much media in too few hands, other people might hear or learn the wrong things.

The inferiority of TV.  Its subjection to the control of media titans, who play footsie with political power.  These things are demonstrated to be absurd by things like this: a former sportscaster on a throwaway cable news channel imploring his audience and the President about habeas corpus, the Military Commissions Act, and American history - for nearly nine minutes.  This is the kind of thing that happens in our supposedly vapid, short-attention-span media world.

Now, I’m not a fan of Keith Olbermann, nor an opponent of the current administration (though I criticize policies unreservedly when I think they’re wrong).  I make these disclaimers to encourage you to consider the arguments Olbermann makes, looking past some of his personal invective.  He states quite strongly things that our careful scholars are suggesting and exploring here, here, here, here, and here

People, when you’re not reading Levy, Moller, or Lynch - watch TV!

Tampering with George Mason’s Bill of Rights

I have an op-ed in the Washington Examiner on Virginia’s proposed constitutional amendment to restrict marriages, civil unions, domestic partnerships, and various contractual arrangements:

This amendment goes too far. But even its first sentence — the ban on gay marriage — is unworthy of a state that was the birthplace of American freedom. It is a cruel irony that this amendment to restrict contract rights and exclude loving couples from the institution of marriage is to be added to Virginia’s Bill of Rights, a document originally written by the great Founder George Mason.

Mason’s eloquent words inspired Thomas Jefferson in writing the Declaration of Independence and James Madison in writing the Bill of Rights for the U.S. Constitution. We should not add language to Virginia’s Bill of Rights that would limit rights rather than expand them.

Gay marriage is not legal in Virginia, and there’s no prospect of changing that in the foreseeable future, whether by legislative or judicial action. Ballot Question No. 1 is unnecessary and will create legal uncertainty.

Google (et al.) and Government Surveillance

Ars Technica reports here on the “provocative claim that Google is currently cooperating with secret elements in the US government, including the CIA.”  This is a possibility I blogged about here a couple of weeks ago.

It’s something people should be concerned about, and people’s concern is something Google should be concerned about.  

People averse to the risk of exposing their online activities to government surveillance should take Google’s studious silence as confirmation.