Topic: Law and Civil Liberties

Police Misconduct — The Worst Case in January

Over at Cato’s Police Misconduct web site, we have identified the worst case for January.  It is the case of a Boiling Springs Lake, NC officer who shot a 90-pound, mentally-ill teenager while two other officers held the teen down.  Keith Vidal’s parents called the police because their son was having a schizophrenic episode and they needed assistance subduing him.  Keith had a small screwdriver in his hand when the first police unit arrived.  The officers tased Keith and were holding him down when an officer from the second unit, which had arrived about a minute later, shot between the two officers holding Keith down, saying, “We don’t have time for this.”  The officer claimed he was defending the life of one of the officers holding Keith down because Keith still had the tiny screwdriver in his hand.   The family had recently lost a daughter in a car accident, and now had to watch their son die in front of them, shot by one of the very people they had called for help.

More here.

Eugene Robinson: ‘We’re Losing this Drug War’

From Robinson’s column in today’s Washington Post:

Oscar-winning actor Philip Seymour Hoffman is yet another victim of the war on drugs. Prohibition is not working. It is time to try something new….

We do know that this need to get high is beyond some people’s control. Our drug policy of prohibition and interdiction makes it difficult and dangerous for people like Hoffman to get high, but not impossible — and it makes these tragic overdose deaths more common than they have to be.

The obvious problem is that when an addict buys drugs on the street, he or she has no way of knowing how pure the product is and what else it might contain….

As long as this commerce is illegal, it is totally unregulated. Since we know that addicts will continue to buy drugs on the street, we also know that some will die from drugs that are either too potent or adulterated with other substances that could make them lethal. Is this really the intent of our drug policy? To invite users to kill themselves?

The idea is supposed to be that authorities will somehow keep the drugs from entering the country. This would be a joke if it weren’t such an epic tragedy.

Read the whole thing.  It is actually well past time to “try something new.”  For Cato scholarship on drug policy, go here.

Leaving Child Alone In Car For A Few Minutes = Abuse?

When I was small, my (conscientious, non-abusive) mother would leave me alone in the back seat of our car for brief spells while she ran into stores to do errands, an experience that’s entirely typical for most people I know from my generation. Nowadays a parent who behaves that way might risk a police record or a serious encounter with child welfare authorities. “In [a New Jersey] appeals court decision last week, three judges ruled that a mother who left her toddler sleeping in his car seat while she went into a store for five to 10 minutes was indeed guilty of abuse or neglect for taking insufficient care to protect him from harm.” The child was unharmed and an investigation of the household found it not otherwise problematic, which apparently still did not suffice to stop the abuse charge from going forward.

When the law behaves this way, is it really protecting children? What about the risks children face when their parent is pulled into the police or Child Protective Services system because of overblown fears about what conceivably might have happened, but never did?

Author Lenore Skenazy, who’s led the charge against the forces of legal and societal overprotectiveness in her book Free-Range Kids and at her popular blog of the same name, explains her doubts about the New Jersey case here and here. Tomorrow, Wed. Feb. 5, she’ll be the guest of the Cato Institute for a lunchtime talk on helicopter parenting and its near relation, helicopter governance; I’ll be moderating and commenting. The event is free and open to the public, but you need to register, which you can do here.

Kindly Inquisitors

This week Jonathan Rauch celebrates the new, expanded edition of his book Kindly Inquisitors: The New Attacks on Free ThoughtHe’s also guest-blogging at the Volokh Conspiracy, itself newly hosted at the Washington Post. In his first post, Rauch sums up a key point of his book and also why its reissue is so timely:

Over the past 20 years, the idea that minorities need protection from hateful or discriminatory speech has gained ground, both in American universities’ speech codes and in national laws abroad. In fact, I argue, minorities are much better off in a system that protects hateful or discriminatory speech than in a system that protects them from it.

Kindly Inquistors offers a moral defense of free inquiry, with a focus on how minorities fare under different approaches to controversial speech. Rauch concludes that when individuals disagree, the only proper approach is the “checking of each by each through public criticism.” 

He terms this approach liberal science, and he recommends it not just in science, but in public policy. One of the most interesting facets of Kindly Inquisitors is the way that Rauch links the free inquiry of science to the free inquiry found in liberal democratic societies; both, he argues, are also akin to the free inquiry found in capitalism.

In all these areas, free inquiry can nevertheless cause genuine harm. Why not restrict, just a bit, if it will prevent some suffering? In the book, Rauch answers:

The truth is that liberal science demands discipline as well as license… It does not give a damn about your feelings and happily tramples them in the name of finding truth. It allows and – here we should be honest – sometimes encourages offense. Self-esteem, sensitivity, respect for others’ beliefs, renunciation of prejudice are all good as far as they go. But as primary social goals they are incompatible with the peaceful and productive advancement of human knowledge. To advance knowledge, we must all sometimes suffer. Worse than that, we must inflict suffering on others.

For many, these words will not be welcome. And for a few truly loathsome people, they will be all too welcome. Undeniably, words a lot like these have been used as a pretext to hurt, which they should not be.

Yet we classical liberals have always welcomed the progress that comes from free minds, from the free exchange of ideas, and from the freedoms of travel and commerce, even if at times they bring disruption, embarrassment, or loss. In science, in public opinion, and in the marketplace, there will always be failures. And yet for a society to succeed, such failures cannot be avoided.

Our faith in mankind’s ability to find and act upon the truth is key: We trust that the process of inquiry, with its defeats as well as its victories, will bring a better and better life for us all. 

‘Client choice has never been tried in the United States before’

Instead of the public defender system, how about providing poor persons who are accused of a crime with a voucher that they can use to hire their own attorney to represent them in court? Comal County, Texas will give this system a try in a few months.

From the San Antonio-Express News:

“Our belief is that a system of client selection can lead to improved services. Whether in fact that’s something that will occur needs to be empirically tested,” [former Indiana University School of Law dean Norman) Lefstein said. “I certainly hope that this will not be the only experiment in the United States involving client selection of counsel.”

But it will be the first. Results of the pilot program, including the costs, case outcomes and client satisfaction levels, will be tracked by the Justice Management Institute of Virginia.

“We’ve done an initial set of interviews with folks in Comal County to document how things operate,” said Elaine Borakove, institute president. “Client choice has never been tried in the United States before, so we’re very excited.”

The initiative was sparked by a 2010 Cato Institute paper calling for the use of free-market forces to address problems with America’s indigent defense systems, whether they’re based on court appointments or salaried public defenders.

The 2010 Cato paper mentioned is titled, “Reforming Indigent Defense,” by Stephen Schulhofer and David Friedman. In this blog post, David Friedman recalls the skepticism he received onthis idea 20 years ago from Judge Richard Posner. Another post here from Radley Balko.

The Power of the Pen

The run-up to Tuesday’s State of the Union seemed downright ominous for those of us opposed to rule by presidential decree. “I’ve got a pen and I’ve got a phone,” the president warned uncooperative legislators: “we’re not just going to be waiting for legislation in order to make sure that we’re providing Americans the kind of help they need.” “You have to swerve really hard to the executive powers at a time like this,” a senior administration official told the Washington Post.

ObamaPenObama would, Press Secretary Jay Carney explained, “work with Congress where he can, [but] bypass Congress where necessary,” because 2014 was going to be “A Year of Action.” (Last year’s SOTU slogan was “Let’s Get It Done,” but I guess we didn’t git ‘er done).

Yet the unilateral actions mentioned in Tuesday’s speech are mostly Clintonian smallball: new “innovation centers”; expanding SelectUSA; a Biden-led review of federal job training; jawboning CEOs about unemployment, etc. (though I am curious where the president’s supposed to get the authority to conjure new retirement savings accounts into existence…)

Obama also issued a veiled threat that “with or without Congress,” he’d move forward on gun control. But it’s not much of a threat if last year’s list of 23 executive actions on guns is any indication. Contra the excitable Rep. Steve Stockman (R-TX), nominating a new ATF director and “review[ing] safety standards for gun locks and gun safes” do not “an existential threat to this nation” make.

All in all, the executive action items in the 2014 SOTU weren’t nearly as menacing as the hype. ““Stroke of the pen, law of the land,” kinda… lame.

Welcome Rumblings Of A Wider Drug War Clemency

Do opinion columns get results? Last month I wrote an op-ed for Bloomberg View chiding President Obama for not using his clemency powers more broadly on behalf of inmates serving insanely long drug sentences. Now the New York Times reports:

The Justice Department wants low-level drug criminals who were sentenced under tough laws from the days of the crack epidemic to ask the president for early release from prison.

In an unprecedented move, Deputy Attorney General James M. Cole asked defense lawyers on Thursday to help the government locate prisoners and encourage them to apply for clemency. The clemency drive is part of the Obama administration’s effort to undo a disparity that flooded the nation’s prison system and disproportionately affected black men.

“Bypassing Congress” is suddenly the White House slogan of the hour, but as Eugene Kontorovich points out at the Volokh Conspiracy, that loose term tends to confound two entirely different kinds of executive action. It’s fully consistent with our constitutional design for the president to act unilaterally in exercising what are known as inherent executive powers along with some range of statutory executive powers legitimately delegated by Congress. Since the American Revolution and indeed long before, executive clemency has been among the most widely recognized of inherent executive powers, a subject of very broad discretion. For a president, that’s some of the most solid ground he can stand on, constitutionally speaking; he gets onto thin ice when he tries to use unilateral executive action to accomplish essentially legislative goals, as by decreeing changes in labor law that Congress is unwilling to enact.

Last month, I wrote:

It’s baffling that over a quarter-century in which presidents of both parties have relentlessly sought to assert powers the Constitution never granted them they should be so meek about using the pardon powers that our constitutional system unquestionably gives them.

It’s entirely consistent to insist on applying close constitutional scrutiny when the president decrees, say, higher minimum wages at federal contractors, even as we applaud this week’s progress toward the wise and merciful use of executive clemency powers well-settled since the time of the Founding.