Topic: Law and Civil Liberties

Police Misconduct — The Worst Case in August

Over at Cato’s Police Misconduct site, we have selected the worst case for the month of August. It’s the Baltimore Police Department (BPD). 

Although the misconduct has been festering for many years, our selection is based upon the investigative findings of the Department of Justice, which were published in a report last month.

Here are a few of those findings:

  • The BPD engages in a pattern or practice of making unconstitutional stops, searches, and arrests;
  • The BPD engages in a pattern or practice of using excessive force;
  • The BPD engages in a pattern or practice of retaliating against people engaging in constitutionally-protected speech;
  • The BPD has allowed violations of policy to go unaddressed even when they are widespread or involve serious misconduct;
  • The BPD has failed to take action against offenders known to engage in repeated misconduct.

Because the problems run deep, it would be a mistake to focus all of our attention on the police department itself. The political establishment of Baltimore knew there were problems, but failed to address them. It remains to be seen whether the reform rhetoric we have been hearing will be followed by real action.


DEA Plans to Ban Kratom

Kratom is a plant that, according to users, relieves pain, reduces anxiety, and aids withdrawal from opioids like heroin.

The Drug Enforcement Administration, however, believes kratom is dangerous and has no valid medical use. So the DEA is placing kratom in Schedule I of the Controlled Substances Act, which effectively bans legal use of the drug.

The DEA’s decision prompted one user to send me this email:

I’ve read many of your posts online, and remembered you today as I heard some news that, I fear, is going to change my life for the worse. I’m sure you are aware that very soon kratom is going to be banned nationwide.

Full disclosure: I do depend on kratom for anxiety and (very) occassional pain from back spasms. About five years ago kratom gave me my life back after finally weening myself from prescription pain medication. I take it every day, and I’ve never had to increase the amount. This amazes me.

I am a successful high school teacher, husband, and father. I have a master’s degree in education and I work hard to take care of my family. I have refused, and will continue to refuse, to become a ward of the pharmaceutical industry. Which I suppose, in the eyes of the DEA, now makes me a felon.

I am writing to ask you if you have any advice at all for how to fight this. I am writing writing writing … senators and health officials … posting on forums, donating money. This all feels quite futile.

So I guess I’m also, not so subtly, asking you if you believe there is any way you could help. You are an expert in this field. Your voice would be heard much more clearly than a high school teacher in Southwest Ohio. What you might say I do not know. But I do know there are thousands of people right now who are frightened and angry, and my gut tells me this ban could cause many to suffer. But of course I am also being selfish.

Miami Vice

The City of Miami has come up with an ingenious plan: raise revenue without asking for a dime from taxpayers and make Wall Street banks pay for it, all under the auspices of fighting racial discrimination. Actually, it would be unfair to give Miami full credit for the idea: so far, it’s only one of more than a dozen cities, counties, and school districts that have tried the same scheme.

The plan works by engaging the services of plaintiffs’ counsel (who typically work on a contingency fee, requiring the city to pay nothing out of pocket) to sue mortgage lenders under the Fair Housing Act (FHA). The city claims that it has suffered from a diminished tax base, in addition to an increase in the need for its services, all thanks to lenders’ alleged discriminatory practices.

While this is an interesting theory, it falls well outside the problems the FHA was designed to address. It seems the Supreme Court may also question whether the FHA permits this type of suit as it has granted certiorari in the case Bank of America v. City of Miami. On Monday, the Cato Institute filed a brief in support of Bank of America and its co-defendant, Wells Fargo.

Trial by Jury on Life Support

Earlier this month, the New York Times ran a headline “Trial by Jury, a Hallowed American Right, Is Vanishing.”  This is very true.  It’s a trend that we at Cato have been lamenting for many years.  Despite the clear language of the Sixth Amendment, that the accused shall enjoy the right to trial by jury in “all criminal prosecutions,” the government manages to oversee a system where jury trials are quite rare–only about 1 percent of the criminal cases will be decided by juries.

Fortunately, there’s a new book that calls attention to this problem, The Missing American Jury, by Professor Suja Thomas.  Entrepreneur Mark Cuban recommends the book, saying jury trial “is a right that you never think you will need … until you do.”  Precisely.  Beyond the criminal area, the administrative state is also trampling the right to jury trial in the civil area

For a podcast interview with Suja Thomas, go here.

For related Cato scholarship, go here and here.

The Weird World of Data (and Your Privacy)

In 2007, Judge Richard Posner found it “untenable” that attaching a tracking device to a car is a seizure. But the Supreme Court struck down warrantless attachment of a GPS device to a car on that basis in 2012. Putting a tracking device on a car makes use of it without the owner’s permission, and it deprives the owner of the right to exclude others from the car.

The weird world of data requires us to recognize seizures when government agents take any of our property rights, including the right to use and the right to exclude others. There’s more to property than the right to possession.

In an amicus brief filed with the U.S. Court of Appeals for the D.C. Circuit last week, we argued for Fourth Amendment protection of property rights in data. Recognition of such rights is essential if the protections of the Fourth Amendment are going to make it into the Information Age.

The case arises because the government seized data about the movements of a criminal suspect from his cell phone provider. The government argues that it can do so under the Stored Communications Act, which requires the government to provide “specific and articulable facts showing that there are reasonable grounds to believe that [data] are relevant and material to an ongoing criminal investigation.” That’s a lower standard than the probable cause standard of the Fourth Amendment.

As we all do, the defendant had a contract with his cell phone provider that required it to share data with others only based on “lawful” or “valid” legal processes. The better reading of that industry-standard contract language is that it gives telecom customers their full right to exclude others from data about them. If you want to take data about us that telecom companies hold for us under contract, you have to get a warrant.

Prohibition and Mass Incarceration

In my last post, I noted promising support for marijuana legalization initiatives this fall. Still, outside libertarian circles, there​​ unfortunately isn’t the political will to support a broader repeal of our federal and state drug laws.

Before you say it: No, drug legalization will not solve our mass incarceration problem. Not all by itself, ​anyway​; ​the numbers just don’t add up. You can see that for yourself at the Urban Institute’s web-based prison population forecaster. As the Urban Institute notes,

While dramatically reducing the national prison population requires addressing the hard stuff—like long prison sentences and time served for violent offenses—reforms to drug laws and revocation policies will still go a long way in many states.

For example, nonviolent offenses are a major driver of the prison population in Alabama, Kentucky, Missouri, Oklahoma, and Texas, so sending fewer people to prison for drug and property crimes would have a big impact on incarceration rates. Halving drug admissions would cut the prison population by nearly 10 percent in each of those states by the end of 2021. And a 50 percent reduction in admissions for all nonviolent crimes would cut at least a quarter off their populations (nearly a third in Kentucky).

​For good or ill, the Urban Institute doesn’t ​consider libertarians’ first-best solution, which ​is​ of course the full legalization of all drugs​. Libertarians support this policy not just because ​it would help empty the prisons, but because it’s your body, and it’s your right to choose what goes into it.​

These propositions are obvious to us; if only they were more obvious to others. But as the success of marijuana legalization becomes increasingly apparent, I hope that a fuller legalization, also once laughed at, will come to be taken more seriously.

Venezuelan Regime Kidnaps Yon Goicoechea, Friedman Prize Winner

Members of what was surely the Venezuelan regime’s secret police yesterday kidnapped opposition leader and 2008 Milton Friedman Prize winner Yon Goicoechea from his car after he left his home. Diosdado Cabello, the second most powerful person in the regime, publicly announced that the government had arrested Yon on the bogus claim that he was carrying explosives. In the video broadcast on national television, Cabello referred to the $500,000 Friedman Prize award that Yon received as evidence that Yon was some sort of foreign-employed agent bent on terrorism. “That man was trained by the U.S. empire for years,” he said, “It looks like his money ran out and he wants to come here to seek blood. They gave him the order there in the United States.”

This is an old trick of the Chavista regime—distract attention from the severe political, economic and social crisis that it has inflicted on the country. Venezuela’s so-called Socialism of the 21st Century has produced shortages of everything from food and water, to medicine and electricity. Hunger is becoming widespread, the rate of violence is among the worst in the world, and the regime has become extremely unpopular. (We have commented on this downward spiral here, here, here, and here).

Yon won the Friedman Prize in 2008 for having led the student movement that played the central role in defeating the constitutional reform that would have given Hugo Chavez what at that time would have been an unprecedented concentration of political and economic power. One of Yon’s and the student movement’s central tenets is their advocacy of non-violence in the promotion of basic freedoms and democracy. Yon also offers an optimistic vision about the future and potential of his country (see his Friedman Prize acceptance speech here). That approach contrasts with the regime’s constant reliance on repression and force and helps explain its appeal to most Venezuelans. For the same reason, the government’s claim of terrorism on Yon’s part lacks any credibility. The idea that the Friedman Prize is awarded so that the recipient carry out specific tasks is also risible. The prize is given “to an individual who has made a significant contribution to advance human freedom,” and has no conditions attached to it whatsoever. It has been awarded to numerous freedom champions from around the world including prominent reformers and human rights and freedom of speech advocates.

Yon’s detention comes just prior to massive popular protests against the government that are planned for this Thursday. Sticking to the pattern it has followed over the past few years as the crisis has deepened, the regime is doubling down on repression rather than adjusting to political or economic reality. His kidnapping shows just how insecure the regime has become and the importance of speaking truth to power.

In the months and days prior to Yon’s detention, the regime has arrested other opposition leaders and activists. Nobody is sure exactly where Yon is being held or under what conditions (though we believe he is in a cell at the headquarters of the secret police in Caracas). The Venezuelan government stopped being democratic and respecting the rule of law years ago, but we nevertheless call on it to release Yon immediately and treat him with the basic rights to due process that should be afforded to any Venezuelan citizen.