Topic: Law and Civil Liberties

Parents: Teach Your Children Well

On Friday I picked my son up at Union Station.  He came home for the weekend to go see Corteo with the family.  He has only been at college for a few months.  I miss his smile.  I miss his questions.  He and his girlfriend were so polite. They were being the adults while I was being the child.  I just couldn’t help myself.  I told them all about my new job, what I had done that day, what I had done the day before, my plans for the weeks to come.

On the way home in the car, Nathan said, “Hey, Mom.  I’ve written a new poem.”

“Really?” I answered, realizing how selfish I’d been.  “Let’s hear it.”

And I ask you

Speak to me of freedom? You know not what it means
but take its name and shackle those with whom you disagree
You wave a flag of righteousness; you bellow and you scream
That those who are not as you are they never should have been

Speak to me of god and tell me what he thinks
of bigotry and hatred for the love each person makes
A fellowship, a flock for which you try to build a wall
The blackest sheep is slaughtered as an offering to them all

Speak to me of love and tell me what it takes
to make a love and test it true, the arrow to be straight
One path is true one path is tried one path we will allow
Two people bound in heart and mind but cannot give a vow

Speak to me of law and tell me what is just
a chance for those with tyrant tendencies to run amok
A forum for the many to oppress a hapless few
Virginia is for lovers, but there’s no room here for you.

Nathan Revere (Nov. 2006).

Don’t Panic

John Mueller’s new book is out; it’s called Overblown: How Politicians and the Terrorism Industry Inflate National Security Threats, and Why We Believe Them. In it he expands on the argument he outlined in Cato’s Regulation Magazine two years ago [.pdf], namely that that, while the terrorist threat is real, “it has been systematically and very substantially exaggerated.” (For more, see the recent Mueller-led debate in Cato Unbound.)

This could be a very important book, with important implications for the way we discuss the terrorist threat and the right policies to respond to it. For one thing, if Mueller is right, and I think he is, it’s well past time to repudiate the idea that respecting constitutional limits is going to get us all killed (for example, the hoary soundbite “the Constitution is not a suicide pact”).

Yet, strangely, not everyone appreciates Mueller’s good news. The first Amazon reader review of the book begins, “The problem with this book is its over-reliance on logic….”

This Incumbent Was Protected from the Wave

Last week I wrote about the ways the Bipartisan Campaign Reform Act of 2002 made Christopher Shays’ re-election bid more likely.

Yesterday, Chris Shays bucked the national trend and won re-election despite having trailed in the polls for some time. He won by 3 percentage points of the vote. In 2004, a better year for Republicans, Shays won by 4 points.

Perhaps he should send a thank you note to the sponsors of the law, Senators John McCain and Russell Feingold as well as Rep. Martin Meehan and … Rep. Christopher Shays.

REAL ID and a Sweep for Democrats in New Hampshire

There are many explanations for the strong result Democrats got in the election yesterday. Focusing on New Hampshire, there is a neat correlation between support for the REAL ID Act and defeat at the polls yesterday.

Jeb Bradley was one of “several Washington officials … urging state senators to support Real ID” when the state legislature was considering a bill to reject it. He was defeated by Carol Shea-Porter, a surprise victor who enjoyed little help from national Democrats. Here’s Shea-Porter speaking at an anti-REAL-ID rally.

Representing the Second District, Charlie Bass was an original co-sponsor of the REAL ID Act, and he touted that fact on his Web site. His replacement is Paul Hodes. Hodes is not a full-throated critic of REAL ID, but he did tell AP, “I do not favor creating a new central federal database using the permanent images of these documents… . A piece of paper is not the solution to securing our borders from terrorism. We need to better coordinate our existing law enforcement databases and watch lists.”

The Republican leadership of the state senate gutted and killed New Hampshire’s bill to reject REAL ID earlier this year. In a debate Monday, Republican Senate President Ted Gatsas said “There’s no question REAL ID makes sense.” Ted Gatsas will no longer be Senate President. Democrats took control of the New Hampshire State Senate for only the second time since 1911. Gatsas’ re-election bid was too close to call overnight, but it now appears he narrowly beat back his Democratic opponent.

As to REAL ID opponents, Governor John Lynch was re-elected. Voters gave control of the New Hampshire Executive Council (an additional legislative body that would have to approve the acceptance of federal funds for implementing REAL ID) to Democrats for good measure.

Of course, many things influence the outcome of elections, but REAL ID has been fiercely debated in New Hampshire this year. It’s not a coincidence that the party on the wrong side of the national ID issue was voted out of power.

Get Your Laws off My Body … of Constitutional Rights

One of the underappreciated costs of Roe v. Wade is its potentially radioactive effect on other rights.  Exhibit A:  The debate over the federal Partial Birth Abortion Act, whose constitutionality the Supreme Court will consider tomorrow during oral argument in Gonzales v. Carhart

The Act, passed in 2003, attempts to do what the Supreme Court told the Nebraska legislature it couldn’t do in Stenberg v. Carhart:  ban partial birth abortion without providing any exception for the health of the mother.  Why does Congress think it can tread where Nebraska couldn’t?  Because Congress, unlike the Nebraska legislature, inserted legislative findings in its version of the act, and those findings state that partial birth abortion is never “medically necessary” to a woman’s health.  The Solicitor General, in turn, contends that those findings deserve deference.

Now, I’m no fan of Roe or partial birth abortion.  But the case is about more than abortion:  If the Supreme Court owes Congress blanket deference when it determines facts that affect the scope of a Court-declared constitutional right, then the ever-shrinking power of the Supreme Court to “say what the law is” has shrunk to a disturbingly low ebb.

The costs for other judicially protected rights, if the Court took up the SG’s suggestion, are unnerving.  Imagine, say, that Congress finds that affirmative action in schools of higher education that sponsor ROTC is necessary to promote an effective multicultural military.  Should that trigger a compelling interest exception to strict racial neutrality?  Or imagine that Congress finds that affirmative action in higher education is needed not for another 25 years, as Justice O’Connor hypothesized in Grutter v. Bollinger, but another 30 or 40?  Or that Congress finds that EPA-sanctioned eminent domain in dense urban residential areas constitutes a “public use” under the Takings Clause when exercised in favor of environmentally conscious developers who commit to redevelop the land to create more green space?

If, as many conservatives hope, the Court in Carhart declares that Congress can determine facts that affect the scope of a right, all of those arguments will be far more plausible, as a matter of precedent, than they are today, a point Cato makes in its heterodox amicus brief supporting the pro-choice side in Carhart.

This danger underscores one of the toxic costs of Roe:  When the Court is unable to overturn Roe, but nonetheless holds the case in relatively low esteem, the temptation is strong to give Congress more and more power to nibble at its edges.  Once Congress is granted the power to nibble at one set of rights, all other rights are suddenly less secure.

Here’s one way the Court might avoid this danger, while simultaneously avoiding entrenching Roe in our law:

1.  Reject deference to Congress’s legislative findings because Congress deserves no special deference in an area where states are the primary regulators of medical practice by tradition and constitutional structure. 

2.  Reaffirm that Casey requires intermediate, not strict, scrutiny of infringements on the “fundamental right” to abortion, while reserving the merits of the Roe line for a later case.

3.  Note, finally, that while Congress’s findings are insufficient to overcome women’s liberty interests under the intermediate scrutiny test, state legislation is a different matter.  Were a state to pass a version of the bill passed by Congress, containing similar findings, the Court would be willing to consider granting them the deference denied Congress.  

By underscoring that strict scrutiny doesn’t apply to abortion regulations, this argument would avoid further erosion of the principle that legislatures deserve no deference when they find facts relevant to the scope of rights protected by strict scrutiny.  By giving states, not Congress, deference when they enact partial birth abortion bans accompanied by appropriate findings, the Court would return some modicum of power over abortion regulation to the states, where this power belongs.  (Of course, the Court could go even farther:  by declaring the Act beyond Congress’s enumerated power to regulate commerce–but, given that argument hasn’t been made and Raich gave up the ghost on this set of arguments–that’s simply not on the table.)

The most likely proponent of such an argument, alas, is the ever-unpredictable Justice Kennedy, a Roe fan who dissented in Stenberg based on the proposition that states deserve leeway to manage the medical trade-offs of abortions, short of an outright ban.  Unfortunately, Kennedy is also the author of the Turner I and Turner II cases, which establish that deference is owed, at a minimum, to Congress’s predictive fact-finding in areas that implicate First Amendment rights subject to intermediate scrutiny.  And that, sports fans, makes Carhart the most hair-raising case of this Supreme Court term.

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.