Topic: Law and Civil Liberties

Olympia Considers Putting Washingtonians into the National ID System

Tacoma, Washington’s News Tribune has editorialized about the REAL ID Act in a way that will be unfamiliar to followers of the national ID law and its implementation. The state has been “dawdling,” it says, by not moving forward on the national ID. The Department of Homeland Security (DHS) has been “patient to a fault” and “dispensed grace” to the 28 states (NT’s number) that have escaped federal punishment. Next we’ll be told that the federal government is efficient and responsive.

If you’re just tuning in, last fall DHS began a major, concerted effort to bring state governments in line with the provisions of the REAL ID Act, a federal law designed to create a national ID system. Washington State has resisted this federal power-grab up over the last decade, but Senator Curtis King (R) recently introduced legislation that would bring Washington into compliance. This threatens Washingtonians privacy and liberty.

Passed in 2005, the REAL ID Act is a federal law designed to coerce states into adopting uniform standards for driver’s licenses and non-driver IDs. Compliance would also require the Washington State Department of Licensing to share drivers’ personal data and documents with departments of motor vehicles across the country through a nationwide data sharing system. If fully implemented, REAL ID would create a de facto national ID card administered by states for DHS. The back-end database system the law requires would expose data about drivers and copies of basic documents, such as birth certificates and Social Security cards, to hacking risks and access by corrupt DMV employees anywhere in the country.

If the Laws are Inconvenient, Just Change Them: The Dubious Legality of Another Puerto Rican Reform

The FT published a piece this week suggesting that it’s actually perfectly legal for the Puerto Rican government–which is on the brink of insolvency–to change its constitution and repudiate its guarantee to general obligation bondholders, in a rhetorical sleight-of-hand that makes me convinced that Jacques Derrida has won the war for the hearts and minds of America’s youth.

The article’s proposal is at once banal and unserious, and much of it they credit to their students, presumably because they recognize this: the first is that while the Puerto Rican constitution may guarantee the payment to the general obligation bondholders with the full faith and credit of the government, that doesn’t mean that the commonwealth’s government couldn’t just change the constitution and eliminate this pesky promise. Legality achieved! Laws change all the time–even constitutions–they aver, and debtors shouldn’t be surprised if that happens in a way that just happens to hurt them financially.  

Another way for the commonwealth to get around the constitutional promises, they suggest, is to make use of provision 3105 of Puerto Rico’s civil code, which “recognises that creditors sometimes have a duty not to enforce debt in ways that prejudice other creditors.”

The other creditors in this instance are the retirees and state employees of Puerto Rico, who may see their wages or pension benefits frozen as a part of the island’s financial reforms. Doing such a thing is, in their perspective, always and everywhere a disaster, and setting aside the law is justifiable because of the harm that would be done if other government spending were ever forced to be cut in order to pay the island’s debt.

Overfederalization at the Airport

People who fly a lot will invariably have a bad experience at the airport, sooner or later. Delays, cancellations, huge lines, and overbooked flights can wear on people, and sometimes individuals take their frustrations out on an airline employee. And, once in a while, the person goes too far and crosses the line into assaulting that employee.

In no airport in America is assaulting an airline employee legal under state law. The laws against simple assault—that is, unwanted physical contact, often without injury—apply just as much at the terminal gate as they do at your local bar or walking down the street. But, as with seemingly every bad thing that happens, someone wants to make a federal case out of it. Literally.

Senator Maria Cantwell (D-WA) introduced an amendment to a bill before the Senate to make the simple assault of an airline employee punishable up to ten years in federal prison. This is a problem for a bunch of reasons, but here are two that stick out.

First, the crime lacks what criminal justice folks call a “nexus” to a federal interest. That is, unlike disrupting a flight while on board a plane—which is regulated by federal law and the Federal Aviation Administration—or interfering with a federal government employee—such as a TSA agent or air marshal—there is no particular reason a simple assault of a private business employee triggers federal involvement. If a ticket agent is spat upon or touched without consent by a would-be traveler, that agent has every right to call the local (or airport) police and file charges if he chooses. For these reasons, the law is duplicative and unnecessary.

Second, the possibility of ten years in prison is too much for contact without injury. The statute that would be amended included an enhanced penalty to protect TSA employees who are charged with keeping America’s skies safe from would-be terrorists. One could argue—indeed, I would—that the original statute includes a penalty too stiff relative to the crime. Most simple assault statutes in the federal code include sentence maximums between six months and one year. It’s hard to understand how an angry person grabbing the arm of a ticket agent walking away from them potentially carries ten times the maximum sentence if that person had instead shoved a member of Congress. (see 18 U.S.C. § 351 (e))

A skeptic might say that, in practice, no one will get ten years for petty actions. Perhaps that’s true, but then why should we make such a sentence possible in the first place?

No one should shove a member of Congress or assault an airline employee, period. Simple assault is a crime already, as well it should be. But as the conversation about mass incarceration and sentencing propriety continues on Capitol Hill, legislators should internalize the lessons learned from years of disproportionate sentencing and overcriminalization.

The federal criminal law should be limited to those crimes that properly fall under federal jurisdiction, demonstrate a particular need that is not being met by local authorities, and, when needed, provide sentences proportionate to the severity of the given crime.  This proposed amendment failed all of these aims.

 

The 1994 Clinton Crime Bill

With the New York primary just days away, a policy fight has erupted on the left regarding the 1994 Clinton Crime Bill.  I have a piece today over at Newsweek on the subject.  Here’s an excerpt:

The Crime Bill maddens today’s BLM activists because it earmarked $7.9 billion in grants to the states for the building of prisons. To be eligible for the funds, states had to meet certain conditions. The idea was to encourage the states to embrace the stricter policies found in the federal system, which had abolished parole and limited good time credits for prisoners, which allow well behaved inmates to earn an earlier release date.

Many states were eager to do just that. During the 1990s, America was building a new prison every week, on average. And as soon as those facilities opened up, they were soon operating beyond their original design capacity.

Many of the prisoners were young minority men, nonviolent drug offenders who were serving mandatory minimum sentences….

Hillary has tried to sound like a reformer, saying, “We need a true national debate about how to reduce our prison population while keeping our communities safe.”  

Such throwaway lines are not nearly enough for BLM activists. For them (and others too), support for the 1994 Crime Bill is the political equivalent of Hillary’s vote to support the Iraq war: It was a key indicator of policy judgment—and the Clintons failed the test.

I also point out that Cato’s 1995 Handbook for Congress called for repealing the Clinton Crime Bill precisely because it would lock up thousands and thousands of people who do not belong there.  We urged policymakers to call off the drug war and to reserve prison space for violent offenders.  Alas, Congress turned away from our policy advice. 

Balancing the Federal Budget

Donald Trump says, “we’ve got to start balancing budgets,” and promises that he is “going to cut spending big league.” Trump provides few specifics, but his impulse is certainly commendable.

Ted Cruz offers a much more detailed plan, which includes abolishing four cabinet departments and a couple dozen agencies and programs. The presidential candidate is right that the “current and projected rates of government growth are unsustainable, irresponsible, and constitutionally indefensible.”

Large spending cuts should be on the agenda when the next president enters office in 2017. Spending cuts would spur economic growth by shifting resources from lower-valued government activities to higher-valued private ones. Cuts would expand freedom by giving people more control over their lives and reducing the regulations that come with spending programs.

What should the next president cut? I have updated a plan at DownsizingGovernment to cut dozens of agencies and programs across the budget. I’ve included cuts to entitlements, business subsidies, aid to the states, and other items. The cuts would not only balance the budget and begin reducing the government’s massive debt, but they would also enhance our civil liberties by dispersing power from Washington.

See the new spending cut plan here.

Jury Nullification Debated in Washington Post

This week the Washington Post has been publishing commentary on the legal doctrine of jury nullification, which boiled down refers to situations in which a jury returns a “not guilty” verdict in a criminal case even though the accused broke a law, rule, or regulation.  To take a quick example, a jury might acquit a patient for using marijuana to alleviate her symptoms even though federal law does not allow any exceptions.  It’s a controversial subject because lawyers and prosecutors and judges have been taught that jury nullification is totally inappropriate–so it is understandable where they’re coming from.

However, most lawyers are not familiar with the history.  You can’t find references to “jury nullification” around the time of the American Revolution.  That’s because it was considered to be part and parcel of what a jury trial was all about.  If jurors thought the government was treating someone unjustly, they could acquit and restore that person’s liberty.  Jury trials were celebrated–and explicit provisions were put into the Constitution so that the government could not take them away. 

Today, the legal system is hostile to the doctrine of jury nullification–even to the point of punishing people who distribute pamphlets!  Some years ago, Cato published the most comprehensive book on the subject, Jury Nullification: The Evolution of a Doctrine by Texas attorney, Clay Conrad.  I’m glad to see that our author has a piece in the Washington Post series today.

One reason the Post decided to run this series is that there’s a move in New Hampshire to revive the doctrine there.  A jury nullification bill had enough support to pass the General Assembly, though its prospects in the Senate are uncertain.

If you agree that jury nullification is an important check on the power of government, take a moment and share this post and/or related material with all your friends and contacts.  The government wants to keep everyone in the dark on this one.

For additional information, go here and here.

Our Friends at CEI Face a Subpoena Over Climate Dissent

The campaign to attach legal consequences to supposed “climate denial” has now crossed a fateful line. Yesterday:

The Competitive Enterprise Institute (CEI) today denounced a subpoena from Attorney General Claude E. Walker of the U.S. Virgin Islands that attempts to unearth a decade of the organization’s materials and work on climate change policy. This is the latest effort in an intimidation campaign to criminalize speech and research on the climate debate, led by New York Attorney General Eric Schneiderman and former Vice President Al Gore….

The subpoena requests a decade’s worth of communications, emails, statements, drafts, and other documents regarding CEI’s work on climate change and energy policy, including private donor information. It demands that CEI produce these materials from 20 years ago, from 1997-2007, by April 30, 2016.

CEI General Counsel Sam Kazman said the group “will vigorously fight to quash this subpoena. It is an affront to our First Amendment rights of free speech and association.” More coverage of the subpoena at the Washington Times and Daily Caller.

A few observations:

  • If the forces behind this show-us-your-papers subpoena succeed in punishing (or simply inflicting prolonged legal harassment on) a group conducting supposedly wrongful advocacy, there’s every reason to think they will come after other advocacy groups later. That includes yours.
  • This article in the Observer details the current push to expand the probe of climate advocacy, which first enlisted New York AG Eric Schneiderman and then California’s Kamala Harris — into a broader coalition of AGs, with Massachusetts and the Virgin Islands just having signed on. More than a dozen others, such as Maryland Attorney General Brian Frosh, seem to be signaling support but have not formally jumped in. More: Peggy Little, Federalist Society.
  • CEI people, many of whom we count as longtime friends and allies in the pro-liberty policy community, have been active critics of the Schneiderman effort, with Hans Bader, a senior attorney there, highly critical just a week ago.
  • In these working groups of attorneys general, legal efforts are commonly parceled out among the states in a deliberate and strategic way, with particular tasks being assigned to AGs who have comparative advantage in some respect (such as an unusually favorable state law to work with, or superior staff expertise or media access). Why would one of the most politically sensitive tasks of all — opening up a legal attack against CEI, a long-established nonprofit well known in Washington and in libertarian and conservative ideological circles — be assigned to the AG from a tiny and remote jurisdiction? Is it that a subpoena coming from the Virgin Islands is logistically inconvenient to fight in some way, or that local counsel capable of standing up to this AG are scarce on the ground there, or that a politician in the Caribbean is less exposed to political backlash from CEI’s friends and fans than one in a major media center? Or what?
  • I recommend checking out the new Free Speech and Science Project, which intends to fight back against criminalization of advocacy by, among other things, organizing legal defense and seeking to hold officials accountable for misusing the law to attack advocacy.
  • This is happening at a time of multiple, vigorous, sustained legal attacks on what had been accepted freedoms of advocacy and association. As I noted yesterday in a piece in this space, Sen. Elizabeth Warren has just demanded that the Securities and Exchange Commission investigate several large corporations that have criticized her pet plan to impose fiduciary legal duties on retirement advisors, supposedly on the ground that it is a securities law violation for them to be conveying to investors a less alarmed view of the regulations’ effect than they do in making their case to the Labor Department. This is not particularly compelling as securities law, but it’s great as a way to chill speech by publicly held businesses.

[cross-posted, with slight changes, from Overlawyered]