Archives: 05/2017

Defending the Right to Armed Self-Defense in the Tar Heel State

“Why didn’t you run away?” It was this dreaded question, asked of victims of violent crime who chose to defend themselves and kill their attackers rather than turn tail and run to uncertain safety, that “stand your ground” laws were intended to address. We shouldn’t demand that ordinary people be Jason Bourne, constantly aware of the availability and potential risk of any exits to the rooms they’re in, even while under pressure, in order to claim self-defense. That’s why North Carolina passed its own “stand your ground” law in 2011: to prevent someone like Gyrell Lee, who defended himself and his cousin in good-faith reliance on his right to repel force with force, from being treated like a common criminal.

Lee had been celebrating New Year’s Eve at his cousin Jamiel Walker’s home. Several times throughout the night, known troublemaker Quinton Epps showed up with some friends and argued with Walker, becoming increasingly intoxicated and aggressive. At some point Lee, who had completed a concealed-carry class and was familiar with the legal rules surrounding gun use, retrieved his pistol from his car “just in case.”

Epps returned a final time, hurling verbal abuse at Walker in the street while Lee and others tried to de-escalate the situation. Suddenly, Walker punched Epps and Epps responded by grabbing the hood of Walker’s sweatshirt and shooting him in the stomach five times. Lee raised his own gun after the second shot, but didn’t fire out of fear of hitting his cousin. Once Walker was able to pull himself away—he would later be found dead from his wounds in a nearby yard—and Epps lifted his gun towards Lee, Lee fired eight times, killing Epps.

The judge at Lee’s murder trial instructed the jury on Lee’s general right of self-defense, but failed to inform them that a defendant accused of homicide has “no duty to retreat in a place where the defendant has a lawful right to be,” and is entitled to stand his ground. The judge also entirely failed to instruct the jury on Lee’s equal right to use deadly force in the defense of Walker. The jury, originally deadlocked, convicted Lee of second-degree murder.

Trump Use of Intelligence Questioned

Intentionally or otherwise, President Trump continues to make headlines, this time involving allegedly highly sensitive information on ISIS that he shared with senior Russian officials during an Oval Office visit. If, as the Washington Post has alleged, that the information was provided by a U.S. ally in the region and that Trump did not seek the ally’s clearance in advance to share the intelligence with the Russians, it represents potential collateral political damage with said ally. Today, National Security Advisor H.R. McMaster held a press conference clearly designed as a damage control operation, although by admitting that “the president wasn’t even aware of where this information came from” he only reinforced the image of Trump as impulsive and careless.

One thing that is not in question is Trump’s authority to share the data with the Russians. The real question is whether he should’ve done so. 

Recall that it was the Soviet KGB’s successor organization, the FSB, that gave the CIA and the FBI the tip that the Tsarnaev brothers were terrorist-in-the-making two years before the Boston Marathon Bombing. That episode was the exception to the rule and record of America’s dealings with Russian intelligence services, as one CIA veteran of Russian operations noted earlier this year. Trump has made no secret of the fact that he wants to increase counterterrorism cooperation between the United States and Russia, particularly against ISIS. Whether his off-the-cuff intelligence sharing foray with Russian Foreign Minister Lavrov and Russian Ambassador to the U.S. Kislyak was the right way to do it is highly debatable. That it has at least temporarily focused attention away from a genuine ongoing scandal–the “Russiagate” investigation and the timing of the firing of ousted FBI Director James Comey–is beyond dispute. Trump’s Oval Office antics have given the Russians unearned wins on both issues this week.

Sessions’ New Charging Memo

Senator Rand Paul has a column over at CNN, urging Attorney General Jeff Sessions to reconsider his recent memo to federal prosecutors that encourages them to seek serious charges and mandatory minimum sentences.  Here’s an excerpt:

The attorney general’s new guidelines, a reversal of a policy that was working, will accentuate the injustice in our criminal justice system. We should be treating our nation’s drug epidemic for what it is – a public health crisis, not an excuse to send people to prison and turn a mistake into a tragedy.

And make no mistake, the lives of many drug offenders are ruined the day they receive that long sentence the attorney general wants them to have.

Read the whole thing.  To put this latest move into some perspective, several points need to be kept in mind.  First, like his earlier crime-fighting memos, this is consistent with what Republican administrations do.  That is, they reverse the executive orders that the Democrats put in place.  Sessions is reversing the policies of Eric Holder and restoring the charging policies that Former Attorney General John Ashcroft had in place.  Second, media reports that Sessions is bringing back the drug war are exaggerated because, as Professor Doug Berman noted, the war never went away under Obama.  Third, Trump and Sessions do not “oversee” the American criminal justice system.  The criminal system is decentralized among the states.  The federal system has been growing but is around 10 percent of the overall system.  So while Sessions gets a lot of attention, most of the action quietly occurs at the state and local level.

That said, Sessions is definitely moving in the wrong direction.  He is a strong proponent of mandatory minimum sentences, which have the effect of transferring power from impartial judges to ambitious prosecutors.  And they are so rigid that they too often lead to injustice–especially in drug cases where the quantity of drugs can be the primary factor instead of a person’s culpability.  Low-level mules get severe sentences for example driving narcotics from one city to another.

Sessions also conflates drug enforcement with the violent crime that is the primary concern of most Americans.  He believes that more drug busts can have a real impact on violent crime.  He is badly mistaken about that.  When the police lock up a rapist or a mugger, that enhances public safety.  Drug busts have little impact.  The street dealers and mules are quickly replaced and the black market trade continues as before.   

Lately, Sessions has been making the observation that drug dealers have to resort to violence to resolve their disputes.  There is truth to that, but that has always been a part of the conservative/libertarian critique of the drug war policy.  During the days of alcohol prohibition, newspapers reported on the “beer wars” in the cities.  After prohibition ended, no beer wars.  We would see the violent crime rate decline if the drug war were to end. 

Senator Paul is right about the need for sentencing reform, but even modest steps in that direction are likely to be opposed by Trump and Sessions.  State and local leaders have to take the lead on criminal justice reform.

The Future of American Internationalism

Hal Brands has published a long and thoughtful essay at War on the Rocks on the future of American Internationalism. Despite its length, or perhaps because of it, the piece is worthy of a careful read.

Echoing themes that I have discussed previously (e.g. here and here), Brands foresees two equally plausible scenarios: a return to the liberal international order (LIO) crafted and sustained by a bipartisan foreign policy elite since the end of World War II; or an enduring shift away from internationalism, a process decades-in-the-making, but hastened by Trump’s presidency.

Brands is cautiously optimistic that the former will eventually prevail, provided that U.S. leaders undertake a series of reforms reflecting new geopolitical and domestic political realities. Fearful that Trump’s isolationism and hyper-nationalism will prevail, I have argued for a third way. U.S. leaders should reiterate their commitment to economic openness and international engagement, but call on other wealthy nations to share in the burdens of maintaining it. And they should back up such rhetoric with actions, by renegotiating decades-long alliance relationships, and avoiding intervening militarily in disputes that do not engage vital U.S. security interests. 

Brands does shade the truth from time to time. For example, he claims that U.S. leaders “sought to sustain a global balance of power that favored America and its democratic allies, and to advance liberal concepts such as democracy and human rights.” A not-complete list of the U.S. government’s perilous partners over the past 70 years reminds us that Washington’s commitment to promoting democracy and human rights has been inconsistent, at best.

  • Chiang Kai-shek (Taiwan)
  • Syngman Rhee/Park Chung Hee/Chun Doo-Hwan (South Korea)
  • Ayub Khan/Zia-ul-Haq/Pervez Musharraf (Pakistan)
  • The House of Saud
  • The Shah of Iran
  • Hosni Mubarak/Abdel Fattah el-Sisi (Egypt)
  • Plus a handful (or more) of generals and strongmen in Latin America

E-Verify Has Delayed or Cost Half a Million Jobs for Legal Workers

E-Verify is a government national identification system that employers currently use voluntarily to screen out unauthorized immigrant workers. Members of Congress want to make the program mandatory for all employers with the Legal Workforce Act, which has passed the House Judiciary Committee three times. This legislation would be the largest employer regulation in terms of scale in the history of the United States, applying to every single employer and every single worker in the country and also roping in several agencies to run it. 

The system has already proven remarkably ineffective at its intended purpose—keeping unauthorized workers away from jobs. In fact, in many cases, it does the opposite—keeping authorized workers away from employment. While many have focused on how making it mandatory would increase the number of these errors, E-Verify is already causing headaches and costing jobs for legal workers.  In fact, from 2006 to 2016, legal workers had about 580,000 jobs held up due to E-Verify errors, and of these, they lost roughly 130,000 jobs entirely due to E-Verify mistakes.

Here’s how E-Verify catches innocent people. The system checks information all workers must provide on their I-9 forms against the databases of either the Department of Homeland Security (DHS) for legal immigrants or the Social Security Administration (SSA) for U.S. citizens. If the system fails to verify this information, it will issue a “tentative nonconfirmation” (TNC). People who receive a TNC must challenge it within two weeks or it turns into a “final nonconfirmation” (FNC), and the employer must fire them.

Legal workers can receive an erroneous TNC for a variety of reasons. Employers may have put their information into the system incorrectly. This is especially common for hyphenated names or individuals with multiple last names. It can also happen if someone changes their name, but SSA or DHS has failed to update their entry in the database. Errors can also occur when SSA or DHS employees enter a person’s information into the database.

Whatever the case, the employee has an affirmative duty to fix the issue. They must formally contest the error. If they are a citizen, they need to physically visit a Social Security Administration office to figure out the problem. If they are a legal foreign worker, they need to go to DHS. This process can take months because the worker has no idea what the problem is. In 2012, it took more than 8 days to resolve a TNC for more than a third of all legal workers who received one.

Unfortunately, U.S. Citizenship and Immigration Services (USCIS) data fails to report in more detail how long these took to resolve, which could potentially have taken months. For workers who need to submit a Privacy Act request to obtain their records, it can take more than three months even to obtain a response, let alone fix the underlying problem. As the Table below highlights, from 2006 to 2016, legal workers had to overcome 450,039 tentative nonconfirmations. Under the Legal Workforce Act, employers could condition employment based on an E-Verify confirmation, meaning all of these workers would lose weeks or months of wages. If the job was temporary, they could lose it entirely.

Table: E-Verify Cases and Errors, 2006 to 2016

Year

Total Cases TNC % Overcome TNCs Overcome Erroneous FNC % FNC Errors Total Error % Total Errors

2006

1,743,654

0.78%

13,513

0.50%

8,733

1.28%

22,246

2007

3,271,871

0.63%

20,449

0.33%

10,925

0.96%

31,374

2008

6,648,845

0.45%

29,920

0.20%

13,195

0.65%

43,114

2009

8,717,711

0.30%

26,153

0.13%

11,182

0.43%

37,335

2010

16,458,448

0.30%

49,375

0.09%

13,998

0.39%

63,373

2011

16,612,333

0.28%

46,515

0.08%

13,187

0.36%

59,701

2012

20,205,359

0.26%

52,534

0.07%

14,893

0.33%

67,427

2013

23,937,505

0.22%

52,663

0.05%

10,838

0.27%

63,500

2014

27,074,552

0.19%

51,442

0.04%

11,235

0.23%

62,677

2015

30,538,992

0.18%

54,970

0.04%

11,082

0.22%

66,052

2016

32,815,564

0.16%

52,505

0.03%

10,144

0.19%

62,649

Total

188,024,834

 

450,039

 

129,411

 

579,450

Sources: Total cases (2006-2014): U.S. Citizenship and Immigration Services, “E-Verify History and Milestones,” January 19, 2017. TNC share overcome (2011-2016): U.S. Citizenship and Immigration Services (USCIS), “E-Verify Program Statistics – Performance.” USCIS archived pages. E-Verify Erroneous TNC and FNC rates (2006-2010): Westat, “Evaluation of the Accuracy of E-Verify Findings,” July 2012. (Note FNC error rate in Westat expressed in terms of share of FNCs.)

On Saving the Dollar

Every time I say something nice about monetary rules, as I did in my last post here, some Alt-M readers wonder why I’m doing that instead of championing free banking and choice in currencies. Have I given up my former views concerning the merits of these alternatives? Am I suffering from a bout of, or even from chronic, “fedophilia”? Might the Fed itself have purchased my apostasy?

Nothing of the sort. Although my views on the Fed, and on free banking, have changed somewhat since I first started writing on these subjects back in grad school (what sort of scholar would I be if they hadn’t?), they haven’t changed in any fundamental way. I still consider the acquiescence of economists in governments’ creation of currency monopolies to have been one of that professions’ greatest blunders; and I still favor freedom in banking, provided such freedom is understood to imply the absence, not just of extraordinary government regulations, but also of extensive government guarantees, whether explicit or implicit. Finally, I continue to oppose laws that interfere with people’s freedom to employ currencies other than the one officially sanctioned by their own government, whether those other currencies be public or private, paper or metallic or digital.

If I still believe all these things, why do I keep saying nice things about monetary rules? So what if a rule might be better than discretion, given the existence of a fiat-money issuing currency monopoly? If currency competition is better still, surely that’s what I ought to be plugging!

Court: Kentucky Print Shop Needn’t Print Messages With Which It Disagrees

On Friday a Kentucky state appeals court ruled in favor of local print shop Hands On Designs, which had declined to print t-shirts promoting the Lexington Pride Festival because the shop’s owners disapproved of the ideological message of the shirts. The ruling, narrower than it might be, may in the end protect the owners against this particular claim under Lexington’s ordinance barring discrimination in public accommodations. It missed the opportunity, however, to make clear—as Cato urged in its amicus brief—that laws violate the First Amendment when they force people to print or utter words in which they disbelieve.

Eugene Volokh, who with UCLA’s First Amendment Clinic wrote Cato’s amicus briefnotes that the three-judge panel split three ways in the course of not reaching the First Amendment issue. The judge who wrote the lead opinion decided that the shop hadn’t breached the terms of the law in the first place, because the ordinance did not set up any protected category based on “message or viewpoint.” (There is no guarantee that courts elsewhere will follow that logic, however, especially since some anti-discrimination statutes, like Seattle’s, do purport to set up political or ideological opinion as a protected class.)

A concurring judge also cited a second reason for the shop owners to win, namely Kentucky’s version of RFRA (the Religious Freedom Restoration Act, which mandates accommodation). He reasoned that the law as interpreted burdened the owners’ religious practice and had not been shown, as required, to have done all it could to minimize burdens in the course of serving a compelling purpose. Again, not all courts in future cases will follow this path; many states do not have RFRAs, and even when they do, judges may rule that a given anti-discrimination law is a closely enough tailored measure for a sufficiently compelling purpose. 

The Hands On case inevitably invites comparison with the series of high-profile cases in which small business people have faced complaints and sometimes hefty damages under state and local public-accommodation discrimination laws for turning down requests to provide supplies and services (photography, floral arrangements, hall rental, cake) for the celebration of same-sex marriages. So far, the courts have mostly been unwilling to recognize the First Amendment issues involved in these cases. That’s one thing that jumps out at you about the Lexington case: it may be a matter of dispute whether the selection of angles and moods in photography is a form of expression, but if printing an opinion on a t-shirt doesn’t count as expression, what does? One landmark Supreme Court case, Cohen v. California, in fact hinged on the status of a garment slogan as expression. And as Ilya Shapiro pointed out in this space a year and a half ago, another important First Amendment case at the Court, 1977’s Wooley v. Maynard, found it an impermissible burden for a citizen to have to put on display a state slogan—New Hampshire’s “Live Free or Die”—with which he disagreed.