Tim Lynch (Author at The Cato Institute)

Criminal Code Modernization and Simplification Act of 2011 (Congressional Testimony)

Tue, 13 Dec 2011 00:00:00 EST

I. Introduction and Background My name is Tim Lynch. I am the director of the Cato Institute's Project on Criminal Justice. I appreciate the invitation to testify this morning on H.R. 1823, which aims to modernize and simplify the federal criminal code. I am supportive of this undertaking because...

Florida v. Adkins (Legal Briefs)

Mon, 28 Nov 2011 00:00:00 EST

Challenges to Florida's unconstitutional drug law scheme continue to gain momentum. Following a successful federal district court challenge to the constitutionality of laws lacking a mens rea (mental culpability, rather than, for example, incidental possession) requirement, people convicted under them have come forward en masse to ask state courts to reexamine their convictions. As described in the background to a previous brief, the district court held that these sorts of laws offend the constitutional guarantee of due process. Florida's Supreme Court has consolidated over 40 appeals resulting from that federal court decision (which itself is now on appeal). Cato has once again joined the National Association of Criminal Defense Lawyers, Florida Association of Criminal Defense Lawyers, ACLU, Drug Policy Alliance, Calvert Institute for Policy Research, Libertarian Law Council and 38 law professors on a brief supporting the rights of persons convicted under the "strict liability" statutes. We urge the Florida Supreme Court to follow the federal district court's lead and strike down laws prohibiting the sale, possession, or delivery of illicit substances without requiring mental culpability. That court now has the opportunity to reverse these unwarranted convictions and purge a nationally singular stain on civil liberties.

Florida Dept. of Corrections v. Shelton (Legal Briefs)

Wed, 02 Nov 2011 00:00:00 EDT

Florida is so zealous in pursuing the war on drugs that its laws classify the possession, sale, and delivery of controlled substances as offenses not requiring the state to prove that the defendant knew he had possessed, sold, or delivered those substances. In the current case, state prosecutors convicted Mackie Shelton of transporting cocaine under one of these "strict liability" statutes, the trial judge having instructed the jury that the state only needed to prove that Shelton delivered a substance and that the substance was cocaine. Shelton successfully challenged the constitutionality of that state law in federal court, where the district judge overturned the conviction and noted that "Florida stands alone in its express elimination of mens rea as an element of a drug offense." Florida appealed that ruling to the U.S. Court of Appeals for the Eleventh Circuit. Cato has joined the National Association of Criminal Defense Lawyers, Florida Association of Criminal Defense Lawyers, ACLU, Drug Policy Alliance, Calvert Institute for Policy Research, and 38 law professors in a brief supporting Shelton's position. The Supreme Court has recognized only limited exceptions to the general rule that criminal culpability requires mens rea (a guilty mind). These "strict liability" crimes fall under the rubric of "public welfare offenses" and are typically what most people would not consider "serious," such as traffic violations and selling alcohol to minors. Policymakers justify dispensing with mens rea requirements in such contexts by citing the need to deter businesses from imposing costs on society at large, or the burden that having to prove mens rea in these sorts of cases would overwhelm courts, or that the penalties are relatively small and carry little social stigma. Florida's legislature, however, went well beyond the normal boundaries of public welfare offenses in imposing strict liability for drug crimes that can carry significant prison terms — and thus violated the due process of law and traditional notions of fundamental fairness. As an alternative argument purporting to save its drug laws, Florida points to the availability of affirmative defenses, that these defenses (e.g., "I didn't know it was cocaine") to a presumption of guilty intent take the statute out of the (constitutionally dubious) strict liability category. But a state may not simply presume the mens rea element of a crime: In Patterson v. New York (1977), for example, the Court held that prosecutors cannot reallocate the burden of proof by forcing a defendant to prove an affirmative defense. In requiring defendants to prove that they are "blameless" in these sorts of drug crimes, Florida's statutes fail constitutional muster. We urge the Eleventh Circuit to affirm the district court and declare the offending state law unconstitutional.

United States v. Jones (Legal Briefs)

Mon, 03 Oct 2011 00:00:00 EDT

As technology advances — and law enforcement adapts these advancements to police work — courts will be asked to apply the Fourth Amendment's protections against unreasonable searches and seizures in new and varied situations. In 2004, the FBI, as part of a joint task force, suspected Antoine Jones of dealing drugs. To verify their suspicions, agents secured a warrant allowing them to attach a GPS tracking device to Jones's car (but then attached it after the warrant had expired, and in Maryland rather than the warrant's operative jurisdiction of D.C.). The FBI used this device to monitor and record the car's every movement for nearly a month before finally arresting Jones. The U.S. Court of Appeals for the D.C. Circuit found that the FBI's action was unconstitutional because it violated Jones's "reasonable expectation of privacy" — the two-part Fourth Amendment standard developed in the landmark case of Katz v. United States. The "reasonable expectation of privacy" doctrine holds that if a person has an actual (subjective) expectation of privacy and that expectation is one society is prepared to accept, then the Fourth Amendment protects the object of that expectation. The court found that the long-term round-the-clock GPS surveillance, even of a vehicle always on public roads and in locations readily observable by a cop on the street, was qualitatively different than a temporary stakeout or other conventional surveillance. The government successfully petitioned the Supreme Court to review the case, and the Court added the issue of whether installing the GPS device was itself a Fourth Amendment violation, quite apart from the monitoring. Cato filed a brief supporting Jones and arguing that the Court should take this opportunity to strengthen Fourth Amendment protections by finding unconstitutional the government's continuous and long-term tracking of someone's vehicle without a valid warrant. This case affords the Court an opportunity to revisit the "reasonable expectation of privacy" standard — which has dominated this area of law for over 40 years but is a misinterpretation of Katz that has proven unworkable. Standing alone, the "reasonable expectation" test reverses the original meaning of the Fourth Amendment by putting the onus on citizens to prove the reasonableness of their expectations instead of examining the reasonableness of government action. By measuring the actions an individual takes to shield his information against the reasonableness of the government's actions in piercing that shield, the Court can simplify this area of law from one measuring esoteric "expectations" to one examining a straightforward factual question. Moreover, the government's conversion of Jones's property — his car — into a surveillance device acted as an unreasonable seizure for Fourth Amendment purposes because it deprived Jones of a valuable property right, the right to exclude others from his property. Similarly, using his car then to collect information and track Jones then became an unreasonable search. Thus, even if the Court continues to adhere to the "reasonable expectations of privacy" test, it should recognize the sanctity of Jones's property and find the warrantless GPS-attachment and -surveillance unconstitutional.