Topic: Law and Civil Liberties

George Will on Criminal Justice Reform

George Will’s latest column draws attention to Judge Alex Kozinski’s critique of the American criminal justice system.  Here is an excerpt:

The Republican Party, like Sisyphus, is again putting its shoulder to a boulder, hoping to make modest but significant changes in the Electoral College arithmetic by winning perhaps 12 percent of the African American vote. To this end, Republicans need to hone a rhetoric of skepticism about, and an agenda for reform of, the criminal justice system. They can draw on the thinking of a federal appellate judge nominated by Ronald Reagan.

In an article that has stirred considerable discussion since it appeared this past summer in the Georgetown Law Journal, Alex Kozinski of the U.S. Court of Appeals for the 9th Circuit provides facts and judgments that should disturb everyone, but especially African Americans, whose encounters with the criminal justice system are dismayingly frequent and frequently dismaying….

Prosecutions are preceded by police investigations. Police, says Kozinski, have “vast discretion” about, among many other things, which leads to pursue and witnesses to interview. They also have opportunities “to manufacture or destroy evidence, influence witnesses, extract confessions” and otherwise “stack the deck against people they think should be convicted.” A woman spent 23 years on death row because of an oral confession she supposedly made during a 20-minute interrogation by a detective who Kozinski says was later shown “to be a serial liar.” The conviction of a man who spent 39 years in prison was based “entirely” on the eyewitness testimony of a 12-year-old who saw the crime from a distance, failed to identify the man in a lineup and was fed information by the police.

Read the whole thing.

Cato will be hosting a debate between Judge Kozinski and Judge J. Harvey Wilkinson next month.  Related post here.

The Unconfusing Ninth Amendment

Over at his “Bench Memos” blog at NRO, Ed Whelan has taken exception to my Cato@Liberty post of Friday last wherein I called into question his critique of George Will’s column of Thursday last, which had defended Randy Barnett’s recent speech at Berkeley, drawn from his 2008 B. Kenneth Simon Lecture at Cato, arguing that the Constitution is libertarian and that judges should actively enforce its protection not only of enumerated but of unenumerated rights as well, pursuant to the Ninth Amendment. Got that? Now let’s get to the substance of the matter.

Whelan’s latest, entitled “More Ninth Amendment Confusion,” is mercifully brief. I had argued, among other things, that conservatives’ long-standing (and often understandable) fear of what they see as “judicial activism” has led them to read the Ninth Amendment (“The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”) as a mere rule of construction, not as an affirmation of unenumerated rights. Thus they are wary of judges finding rights that are not fairly clearly “in” the Constitution. (There is some wiggle room there: thus, for example, most would allow freedom of speech to entail the right to burn the flag.)

But a core problem with that view, I wrote, is that it implies that “prior to the ratification of the Bill of Rights, two years after the ratification of the Constitution, we enjoyed almost no rights against congressional majorities—save for those few mentioned in the original document.” Whelan responds:

The “rights against congressional majorities” that existed before the Bill of Rights was ratified arose from the Constitution’s limitations on Congress’s powers. In Madison’s words: “If a line can be drawn between the powers granted and the rights retained, it would seem to be the same thing, whether the latter be secured by declaring that they shall not be abridged, or that the former shall not be extended.”

Just so! Where there is no power—by virtue of the doctrine of enumerated powers—there is a right. In other words, prior to the ratification of the Bill of Rights we had a vast sea of rights within which there were islands of federal power. But as I noted in an exchange with Randy over the weekend, way back in 1991 I had written:

Indeed, if the Framers intended unenumerated rights to be protected without a bill of rights, how can we imagine that those rights were meant to be any less secure with a bill of rights.

The addition of the Bill of Rights, in short, did not reduce the number of rights we enjoy, limiting them to those fairly clearly “in” that document. It simply enumerated some of the rights in that vast sea of previously unenumerated rights—all of which, enumerated and unenumerated alike, were later incorporated against the states through the Fourteenth Amendment, properly read.

Whether judges discover those unenumerated rights expressly—as when they discover a right to sell and use contraceptives (Griswold v. Connecticut) or a right of fit parents to control access to their children (Troxel v. Granville) or many other such rights—or do so only implicitly by finding no power is not the issue since either method comes to the same thing—as Madison said. The Ninth Amendment simply affirms that we “retain” all the unenumerated rights we held prior to the ratification of the Bill of Rights. In expressly stating that, it can be said to be a font of rights, even though the actual font is the theory of natural rights, which rights we retained when we reconstituted ourselves in 1787.

ADDENDUM: Ed Whelan has kindly brought to my attention a couple of mistakes in this post, which I correct, plus more, in this new post.

What Should Presidential Candidates Say about Judges?

As predictable as the sun’s rising in the East is NRO’s Ed Whelan’s rush to the barricades when George Will (or many others, for that matter) is found defending a judiciary “actively” engaged in defending a right not expressly found in the Constitution.

The occasion this time was Will’s piece in yesterday’s Washington Post, “The false promise of ‘judicial restraint’ in America.” In it, Will notes that, given the advanced age of several Supreme Court justices, a supremely important presidential issue is being generally neglected in the presidential debates, namely, the criteria by which a candidate would select judicial nominees. And that is “because Democrats have nothing interesting to say about it and Republicans differ among themselves about it.” Drawing on a speech that Randy Barnett recently gave at UC Berkeley, Will defends what we at Cato have long defended, namely, a judiciary actively engaged in reading and applying the Constitution as written. And that includes accurately reading the Ninth Amendment: “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people”

Senate Judiciary Committee Considers Sentencing Reform

The Senate Judiciary Committee held a hearing this week on sentencing reform.  One of the witnesses was Debi Campbell, who was sentenced to 19 years in a federal penitentiary for selling meth.  One of her colleagues in the meth trade was busted by the police first–so that person cut a deal and agreed to testify against Campbell.  Federal authorities rewarded that drug offender with zero jail time. 

Conservatives sometimes argue that longer prison sentences will “send a message” to the community and deter drug offenders.  Ms. Campbell’s testimony offers a dose of reality on that one.  She says she knew selling meth was against the law, but had no idea she could face close to 20 years in prison for what she was doing.  She was hooked on meth and was selling to support her addiction.  She was not reading the Congressional Record to see what messages Congress was sending. 

Another conservative argument is that long prison sentences will incapacitate the offender.  That holds true for a rapist, but one wonders how the community was made safer by keeping Ms. Campbell locked up for so many years.  But there’s a former federal prosecutor out there who probably thinks he did good work on Ms. Campbell’s case.

Check out Ms. Campbell’s testimony.  Only 7 minutes, but powerful.

Related items here and here.

No, Let’s Not Make Assaults on Cops a Hate Crime

The town of Red Wing, Minnesota, has passed a resolution urging that assaults on police be made a hate crime, a position urged for some years by the Fraternal Order of Police (FOP) union. How bad an idea is this? A very bad one indeed, I argue in an op-ed for the Minneapolis Star-Tribune:

Critics argue that [existing hate-crime] laws in effect play favorites, departing from the spirit of equal protection under law that aims at treating all victims of personal assault as equally important.

Because they seem to put an official public seal on a narrative of oppression, such laws are also lobbied for in me-too fashion by other groups that rightly or wrongly see themselves as oppressed….

Not only are lethal assaults on police declining, I note, but the vast majority of them do not arise from any supposed prejudice or animus against cops, nor do such crimes go neglected and unprosecuted. Besides, most states already allow sentence enhancements on other grounds for crimes against police:

…what would [such a change in law] symbolize? The merely absurd proposition that police in the U.S. today are an oppressed minority group? Or the downright dangerous proposition that the law should step in to chastise and rectify the attitudes of a public that may not be as supportive of police wishes and demands as cop advocates would like?

Read the whole thing. Incidentally, the town council voted last week to let its Human Rights Commission review the resolution, a possible step toward reconsidering it. Some earlier Cato commentary on hate-crime laws hereherehere, and here.

No Way (to Violate Property Rights), San Jose

A San Jose ordinance requires developers to set aside 15 percent of their units for sale at an “affordable housing cost.” Those affordability restrictions remain in effect for 45-55 years. If developers don’t want to set aside affordable housing units, they have the option to build affordable units elsewhere, pay a fine, dedicate land for affordable units, or acquire or rehabilitate existing affordable units.

However laudable it is to construct affordable housing, the city is essentially appropriating part of the developers’ property for its own uses or conditioning the issuance of permits on paying out large amounts of money. The California Building Industry Association (CBIA) filed suit, arguing that the city’s restrictions violate the Fifth Amendment’s Takings Clause, which prohibits the government from taking private property for public use without just compensation.

Previous Supreme Court decisions, including Koontz v. St. Johns River Water Management District from 2013 (which Cato supported), held that such conditions on building permits can violate the Takings Clause if the exaction—whether a fine or a requirement to set aside affordable housing—is unrelated to the proposed building project. It would thus be unconstitutional to condition a permit for a housing development on the construction of a new library, because the library has nothing to do with the proposed building project.

In the CBIA case, however, the California Supreme Court ruled that, because the conditions in San Jose derive from a legislative act rather than an ad hoc permitting condition, the U.S. Supreme Court’s clear precedents don’t fully apply. The CBIA has asked the U.S. Supreme Court to set the California Supreme Court straight by making clear that the Takings Clause prohibits such permitting conditions whether they come from a legislature or a discretionary permitting process.

Cato, joined by the Reason Foundation, has filed a brief in support of the CBIA’s petition. We argue that there’s no basis in the Takings Clause for distinguishing between legislative conditions and ad hoc permitting conditions. To the landowner or the developer, the effect is the same: the government imposes onerous conditions before allowing them to use their land. Moreover, legislatively imposed conditions are worse because they have broader effects, thus magnifying the unconstitutional harms to property owners.

Finally, there’s no reason to expect less abuse from the legislature than from permitting officials. Legislatures are prone to being captured by special interests who demand all sort of exactions from and conditions on landowners. Government officials, whether they are legislators or permitting clerks, often see taking property without compensation as a way to get something for nothing.

The Supreme Court should take this case and say that this ain’t okay, San Jose.  

Judicial Engagement, Illustrated

Does the government need to offer you a good reason when it restricts your liberty? Most Americans would likely answer “yes.”  But what’s a “good reason?” Must the government’s allegedly “good” reasons be supported with evidence or should courts just give the government the benefit of the doubt?

Both progressives and conservatives often do ask judges to put a thumb on the judicial scales in the government’s favor. Progressives see government as generally a force for good (except when certain preferred rights are threatened, as defined by progressive elites), while conservatives want judges to defer to the elected branches (except when Obamacare or other disfavored federal programs are at issue). Thus we have the twin scourges of judicial adventurism and minimalism – rewriting or ignoring inconvenient constitutional or statutory provisions – instead of unblinkered judicial enforcement of the law. 

In other words, both progressives and conservatives miss the boat when they focus on judicial modes (whether a ruling is “activist,” an empty term meaning that its user disagrees) rather than interpretative theories (originalism vs. living constitutionalism, textualism vs. purposivism). Indeed, even people who care about judicial modes should want judges who apply their preferred interpretive theory without regard to extra-legal considerations and without adopting biases towards the government or any other type of party. The nomenclature is less important than the substance, but “judicial engagement” is increasingly becoming the name for the alternative to the wholly unsatisfactory debate about judicial “activism” and “restraint.”