Topic: Criminal Law and Civil Liberties

Unanimous Supreme Court Upholds Right to Be Free of Excessive Fines

It’s gratifying that the Supreme Court unanimously agreed that the Eighth Amendment’s Excessive Fines Clause applies to the states, meaning that states can’t fine you in a way that’s wholly disproportionate to the offense you commit. As one of the long-established natural rights in the Anglo-American legal tradition, there’s no reason it wouldn’t be and the debates over the Fourteenth Amendment’s ratification support this conclusion. (Here’s Cato’s brief in Timbs v. Indiana.)

At the same time, it’s disappointing that Justices Neil Gorsuch and Clarence Thomas were the only ones who explained, in separate concurrences, that the Fourteenth Amendment’s Privileges or Immunities Clause is the more constitutionally faithful way of extending rights as against state infringement. (Justice Ruth Bader Ginsburg’s majority opinion, joined by all but Justice Thomas, used the Due Process Clause.)

We’ll have to wait for some more difficult/less clear case to see if anyone else joins that originalist refrain. For practical purposes, it may not matter which clause of the Fourteenth Amendment provides the mechanism by which the Excessive Fines Clause is applied to the states. But it certainly matters for unenumerated rights (those not listed in the Bill of Rights), the jurisprudence regarding is confusing and controversial. If the Fourteenth Amendment ratification debates elucidate which such rights are covered under which clause, that would be important.

For that matter, it could matter in cases where the meaning of even an enumerated right was different in 1868 (at the Fourteenth Amendment’s ratification) than in 1791 (when Bill of Rights was ratified). Take the right to keep and bear arms, which the Supreme Court extended to the states in McDonald v. Chicago (2010). One of the key motivations behind the Second Amendment was the Founders’ concern about government tyranny. After the Civil War, however, the right to armed self-defense took on a different dimension as the Fourteenth Amendment’s enacters were quite concerned about the disarmament of freed slaves, as well as of other people who held unpopular opinions during Reconstruction. Justice Thomas – who provided the necessary fifth vote in McDonald – pointed this out in his solo concurrence.

Moreover, because using the Privileges or immunities Clause is more textually sound, the worst that could happen from moving away from “substantive due process” analysis is that there’s no change – but the upside is that only those rights supported by the original public meaning of constitutional text would be protected. That’s the dynamic that Josh Blackman and I described in the run-up to McDonald as “Keeping Pandora’s Box Sealed.” 

And now we have two justices for that view, as Josh and I predicted in an early draft of our forthcoming George Mason Law Review article “The Once and Future Privileges or Immunities Clause.” Before final publication, we’ll have to tweak some language regarding the “prediction” there now that the Court has ruled and we know what Gorsuch thinks, but you can see our  discussion at a Fourteenth Amendment conference hosted by Scalia Law School and the Institute for Justice last October. It’s unfortunate that Justice Brett Kavanaugh didn’t join either of his colleagues’ concurrences; he had no occasion to rule on the Fourteenth Amendment on the D.C. Circuit – nor do any of his scholarly writings touch on this area – so his vote today could indicate that he simply doesn’t want to revisit this area of law. Or, of course, it could mean that he didn’t want to rock the boat in a case where it doesn’t matter. 

In any event, with two justices and near-complete (and cross-ideological) agreement in the legal academy, there is real potential for movement on the Privileges or Immunities Clause – even if that potential hasn’t yet been realized.

That’s Not a Knife… This Is a Knife!

If a law is so vague that it makes it impossible to know whether what you’re doing is illegal or not, it cannot stand. Especially not when the vague law requires no criminal intent to render an action unlawful. The state of New York ignored this basic point of criminal law with its ban of “gravity knives”—pocket knives capable of being opened by the mere force of gravity or a slight flick of the wrist, as opposed to “switchblades,” which are spring loaded. The legislature both failed to define what a gravity knife is and eliminated any requirement that a person have criminal intent (mens rea) when it made simple possession of a pocket knife that could qualify as a “gravity knife” a crime.

The central problem here is that this law, which imposes strict liability on simple possession of a contraband knife, provides for discriminatory and unpredictable enforcement. The U.S. Court of Appeals for the Second Circuit acknowledged the law’s absence of a mens rea requirement but held that it makes no difference whether the defendant believed a knife was legal or not, whether he actually attempted a “wrist flick” to open the knife, or even if he received advice from a police officer that the knife was lawful. Ultimately, the court below suggested that challenges to such prosecutions could only be raised on an as-applied basis—meaning that when someone is prosecuted under this law for carrying a Swiss Army or other common folding knife, then he may be able to raise this defense. But forcing people who don’t and can’t know how to conform to a vague law to wait until they are prosecuted to challenge it is unreasonable.

John Copeland, who was arrested for possessing a common folding knife, now seeks Supreme Court review, hoping to have New York’s law overturned. Cato has joined a group of criminal-law professors on an amicus brief in which we provide a primer on criminal liability where weapon possession charges should be accompanied by a showing that a defendant has both knowledge of possessing an illegal object and of the object’s unlawful characteristics. Our argument parallels a Supreme Court ruling in an analogous drug case, McFadden v. United States (2015), regarding the defendant’s knowledge of substances he possessed.

When a law is vague in a substantial part of its application and provides people no means of knowing whether their conduct is legal, that law is unconstitutionally vague and must either be struck entirely or narrowed to eliminate the infirmity. It is fundamentally (and constitutionally) unfair to impose criminal liability on people who have no way of knowing their conduct is illegal and have no intent to commit a crime.

The Supreme Court will decide later this winter or spring whether to take up Copeland v. Vance.

An Exchange on Consent Decrees

Readers interested in federalism and legal policy may want to check out my recent exchange on federal consent decrees with Cato alumnus Radley Balko, famed for his writing on police misconduct. It started when I wrote a partial defense at National Review of former Attorney General Jeff Sessions’s signing of guidelines somewhat narrowing the Department of Justice’s discretion in arriving at future consent decrees with cities and states that it sues. My piece emphasized that discontent over consent decrees has been building for decades in policy areas like education, mental health, and welfare, even though policing may have been the subject of the most recent headlines. Balko wrote a detailed response at the Washington Post (“The Trump administration gave up on federal oversight of police agencies — just as it was starting to work”) and I followed up a week later with a rejoinder agreeing with many of his points but taking issue with a couple of others.  

Here is one bit of common ground I cited: “Neither I nor, so far as I can see, the Sessions memo argued that decrees are necessarily illegitimate as a legal or constitutional matter. To the contrary, we all assume that such decrees will often have a sound legal basis and will continue to be negotiated in the future.” As my colleague Roger Pilon has pointed out, the post-Civil War Fourteenth Amendment confers on the federal government “the power to negate state actions that deny their citizens the privileges and immunities of citizens of the United States.” It’s more than plausible that the practices of police departments like those in Chicago and Baltimore deny some citizens those rights. 

But moving from the case for consent decrees in principle to the way they should operate in practice quickly gets more complicated. I wrote about the Baltimore decree at the time as follows (more): 

The decree (documentsummary of high points) mingles some terms that rise to genuine constitutional significance with others that no court would have ordered, and yet others that appear not to be requirements of the law at all, but at most best practices. Many are virtually or entirely unenforceable (“professional and courteous” interaction with citizens). Whether or not the decree results in the less frequent violation of citizens’ rights, it is certain to result in large amounts of new spending and in the extension of the powers of lawyers working for various parties.

Meanwhile, the more systematic problems with consent decrees, and especially with their cumulative accretion over time, have been widely documented, as in the case of children’s services

13 years after Ross Sandler and David Schoenbrod’s groundbreaking book Democracy by Decree, small groups of litigators, experts, special masters and other insiders continue to run many government agencies … “the Illinois child-welfare system is burdened by 10 different consent decrees, including one that has lasted nearly 40 years.” … By design, it is made hard to get out from under a decree, which can leave the small controlling group in control indefinitely: Connecticut’s 25-year-old child-welfare consent decree “contains 22 outcome measures that all must be met and sustained for six months before exit,” which has never happened.

The issues of federalism, practicality, and unintended consequences will not always be easy to sort out, but I hope our exchange makes at least a start. 

Lawsuit: Car Passenger Tased 11 Times, Criminally Charged after Asking Officer “Why?”

Although police violence doesn’t grab headlines as often as it did a few years ago, the problems of unnecessary and excessive force continue throughout the country. One case out of Glendale, Arizona is making its rounds on the Internet after the body camera video from the officers was released to the public.

If you click through to the very disturbing video, you can see what is detailed in the federal lawsuit against the officers and the Glendale Police Department (GPD): In July 2017, Johnny Wheatcroft, a passenger in a stopped vehicle, asks why the police officer demanded to see his identification. The officer, Matt Schneider, falsely told Wheatcroft that vehicle passengers needed to carry identification. Schneider then needlessly escalates the situation, forcibly removing Wheatcroft from the car while still entangled in his seatbelt. Wheatcroft was physically abused and shocked with a Taser 11 times, several jolts of which were inflicted after he was prone and in handcuffs, including once in the groin area (the lawsuit asserts he was shocked directly on his genitals, though GPD released a statement denying this and said the Taser was applied to Wheatcroft’s thigh). This spectacle all takes place in front of Wheatcroft’s wife and rightfully horrified children who were in the backseat of the car.

Wheatcroft was arrested and charged with resisting arrest and aggravated assault. He spent months in pretrial detention before charges were dismissed after review of the footage.

Medical Marijuana

Thanks to a newly released study, advocates of medical marijuana have even stronger arguments in favor of expanding marijuana legalization.

Using data from state registries, the authors find that a large majority of medical marijuana patients – 64.9 percent – report chronic pain as a qualifying condition. Additionally, “of the conditions for which patients are licensed to use medical cannabis, 85.5 percent have either substantial or conclusive evidence of efficacy.”

As politicians continue to argue over how best to address the current opioid epidemic, medical marijuana is quietly making a case for itself. Study after study has shown marijuana’s effectiveness as a substitute for opioids in patients struggling with pain management. Removing marijuana’s Schedule I classification and expanding patient access should be a priority.

Erin Partin co-authored this post.

Baltimore to Stop Enforcing Laws Against MJ Possession?

Baltimore’s top prosecutor, State’s Attorney Marilyn Mosby, announced on Tuesday that her office will stop pursuing prosecutions against individuals charged with marijuana possession, saying

“We need to get serious about prioritizing what actually makes us safe, and no one who is serious about public safety can honestly say that spending resources to jail people for marijuana use is a smart way to use our limited time and money.”

While this is a positive step forward, resistance remains. The interim police commissioner has promised that, “[Marijuana arrests will continue] unless and until the state legislature changes the applicable laws.”

Despite the protests of marijuana opponents, progress continues. In the past three years, six states have legalized recreational marijuana and thirteen others have legalized the use of medical marijuana and CBD products. Maryland already has a legal system for medical marijuana, and perhaps Ms. Mosby’s stance will push state legislators to act.

Erin Partin co-authored this post.

The Church of Safe Injection

One major negative of drug prohibition is that it causes riskier ingestion methods.  Prohibition raises drug prices, which encourages injection to get a big bang for the buck.  Prohibition also fosters restrictions on clean syringes, which means users exchange dirty needles, increasing the transmission of HIV and other diseases.

Prohibition also increases overdoses, since potency is difficult to assess in a black market.

Hence the Church of Safe Injection:

Lewiston, Maine: On an 11-degree night here this month, an unconventional mass was held outdoors, next to a 2017 Honda parked on a street corner.

The altar took the form of the small car’s hatchback trunk. The not-so-typical communion: sterile needles, the overdose antidote naloxone, and the rubber tourniquets used prior to drug injection. For shooting and mixing heroin hygienically, alcohol swabs and sterile water. For the cold, hand warmers and socks, and for the hungry, granola bars.

At the center of it all was Jesse Harvey, 26, a Portland-area peer recovery coach who is the founder of the Church of Safe Injection.

The congregation lends structure to a rogue coalition of harm-reduction advocates who work to distribute thousands of syringes — possessing more than 10 is illegal in Maine — as well as hundreds of doses of naloxone. Members of the “church” don’t take that title lightly.

Such organizations are a small but sensible step toward reducing the harm from drug use.  Better still, opiods would be legal, thereby reducing the incentive to inject or share needles and making it easier for users to determine potency.

Until then, however, safe needle exchanges and other harm reduction measures (like Methadone Maintenance) are steps in the right direction.  Cato’s Jeffrey Singer makes a compelling case for harm reduction here.  And Cato will host a conference on harm reduction on March 21st in Washington, DC.

 

 

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