Crime & Federalism

Check out this Washington Post piece about how the British authorities broke open the terror plot:

LINK

“It all began with a tip: In the aftermath of the July 7, 2005, suicide bombings on London's transit system, British authorities received a call from a worried member of the Muslim community, reporting general suspicions about an acquaintance.

From that vague but vital piece of information, according to a senior European intelligence official, British authorities opened the investigation into what they said turned out to be a well-coordinated and long-planned plot to bomb multiple transatlantic flights heading toward the United States -- an assault designed to rival the scope and lethality of the Sept. 11, 2001, hijackings.”

That’s right: It started with a TIP! In the American legal system, a tip – along with some basic corroboration – is a classic way to develop probable cause, and thereby to obtain warrants for searches or wiretaps.

In other words, the plot wasn’t discovered by massive, nationwide wiretaps or datamining bank records. It was uncovered by classic law enforcement techniques.

So the pro-Bush talking point arising out of this bust - that it proves the Bush Administration needs leeway over civil liberties to conquer terrorism - is exactly wrong. Rather, this case demonstrates quite clearly that we can fight terrorism using the same legal law enforcement methods we’ve been using for decades without trashing the Bill of Rights.

Apropos this recent post regarding whether the law should require pharmacists to fill prescriptions for medications to which they morally object to filling, David Boaz writes: 

We seem to be talking past each other. I'm not challenging any of your arguments about the value of family planning and contraception. I'm just asking what we should do about people who disagree with you. I think people who have different moral or religious or medical views should not be forced by law to act against their consciences.
...

If you think that pharmacists should be required to dispense EC against their consciences, would you also say that every physician should be required to perform abortion if requested? Or every plastic surgeon required to perform breast implants if a woman shows up at the clinic requesting them? Or maybe you would say that women shouldn't be able to make the choice to get breast implants, and doctors shouldn't perform them. Either way, the question is: Who decides? Each individual, or the government?

That's libertarianism.  You have your right to an abortion, and I have my right to refuse to enable that right.  It's something people seem to forget.  All they think about are their own rights. 

"But I have a right to an abortion!" Yes, you do.  Comes then the non-sequitur: "You must help me exercise that right!"  Wrong.  We both should have the right to choose.

Anyhow, read the full debate and you'll see why Mr. Boaz is one today's leading libertarian thinkers.

After the tragic murder of Judge Lefkow's family, and the recent Atlanta shootings, the topic of the day will be: How do we protect our judges?  Regular readers know I love judges, so their safety matters significantly to me.

Protecing judges is a complex and emotional issue.  Many will demand that we adopt costly proposals, perhaps turning courtrooms into bunkers.  Yet every dollar allocated towards courtroom security will be a dollar not allocated to other programs.  Should costly security measure subordinate medial research or protection from terrorists.

And I don't think that handcuffing criminal defendants is a suitable answer.   Such proposals would face obvious constitutional problems.  But as a matter of policy, do we want to further prejudice defendants by handcuffing them?  It's hard enough instilling in a jury the presumption of innocence without chaining litigants.  A chained defendant, like a chained animal, is not someone but something.  And we put things in cages, even if its only crime was making us afraid.

What should we do?  My proposal is simple -- Arm judges.

Judges are officers of the court, and almost all undergo a strict background check.  Those obtaining a lifetime federal appointment will have their life histories vetted by the FBI.  Those running for office will be scrutinized by their opposition.  So in arming judges we are not giving firearms out willy-nilly.

Moreover, we already trust judges with the gravest concerns.  Literally every day judges answer constitutional questions that will affect the life and liberty of millions.  Holding that suspected terrorists be must be provide due process might mean that our enemies will remain among us.  Requiring police officers to read defendants Miranda rights might prevent law enforcement from stopping crime sprees.  We trust our judges.

Judges also sentence people to prison, and sometimes, to death.  Given that we already trust judges with matters of life and death, why not trust with firearms?

Implementation would be simple and relatively inexpensive.  Every judge would be issued a sidearm suitable to his or her size and disposition.  Special instructors would provide judges with mandatory firearms training, similar to a CLE.  We have ample state and federal police officers willing and able to provide this training.  Given that even the highest-quality firearms and inexpensive, and that we already have firearms instructors on the government payroll, it's obvious that the costs of protecting our judges - and thus our courtrooms - are small.

Some will argue that judges are among the most vocal opponents of gun rights.  Thus, they would resist this proposal.  Fair enough.  Judges should not be required to possess a firearm.  But we should not deny other judges the right to self-protection. The most effective - and most cost-effective - proposal to keep judges safe is to empower judges to protect themselves.

Sam Heldman writes:

Doing appellate work on both criminal and civil cases, you notice odd things. For example: The same evidentiary record could be held sufficient to prove a fact beyond a reasonable doubt, yet insufficient to prove the same fact by a “preponderance” standard in a civil case. Strange, but true and disturbing.

Mr. Heldman proves his argument, in an article you can access here.

Then read this post by David Bernstein about an attorney whose girlfriend served on a jury in a civil case he was trying.  The judge refused to declare a mistrial.  There is support in the case law for the judges decisions.  In a Texas case, a prosecutor's girlfriend served on a jury in a criminal case he tried.  An en banc court of the Texas Criminal Appeals affirmed the conviction.

We'll have to watch this case to see if Texas applies a double-standard when the defendant is Ford Motor Company.

In Johnson v. California, the Court held that it would apply strict scrutiny to racial classifications within prisons.  I'm troubled by this.

Racial equality is one of our highest goals.  Indeed, I'm indignant when my friends not of the Anglo persuasion are treated differently - in my own sight - than I am.  But when it comes to prisons, pragmatism must prevail.

In prison, constitutional values should be subordinated to:

* Protecting guards from prisoners
* Protecting prisoners from guards
* Protecting prisonsers from rape and murder.

Everything else is gravy.  It's more important that a guard not get shanked, or that a prisoner not get raped, than it is for the Constitution to flourish within prison walls.  Some might consider me cruel.  I say -- What value does the Equal Protection Clause or First Amendment have to someone being gang-raped or stabbed?

Prisons are cruel places, where gangs trade human beings for cigarettes and drugs.  Most people have even odds that they'll escape prison rape.  If state officials rationally conclude that segregation will prevent these abonimable practices, then I say, listen to the states.

Justice Jackson famously said that the Constitution is not a suicide pact.  I say that the Constitution is not an enabling charter for prison rapists.

We should make it our first priority to provide prisoners the base of Maslow's pyramid - safety first, then constitutional rights.  Until we stop prisoner abuse, all but the Fourteenth Amendment's affirmative duty requirement should be stayed inside prison walls.

Kelo v. City of New London is another example of the pervasive racism in modern liberalism.  At issue in Kelo is whether a city may re-distribute private property from homeowners to large corporate interests.  Kelo has liberals saying two things -- Screw the Constitution and racial minorities.

The burden of eminent domain falls on the elderly and minorities.  Don't believe me?  Read this amicus brief, written by attorneys for the NAACP and AARP, filed on behalf of property owners.  Indeed, most readers of this blog likely live near the city's big shots, and thus you need not fear that your family homes and memories will be crushed by bulldozers acting on behalf of faceless corporations.  You're well-connected, if not politically, then geographically.  The mayor is not giving up his home, and thus, you're safe.

What's odd - or perhaps not? - about Kelo is that although minorities and the elderly bear the burden of eminent domain, political liberals support a narrow interpretation of "public use" and thus won't protect them.  As usual, liberals are telling the poor that the Nani State Knows Best.  Though I must wonder how many six-figure-making liberals would allow their homes to be crushed for the "public good."  It's funny how we always know best when asking others to sacrifice.

Contrary to ignorant assertions that groups like the Pacific Legal Foundation and Institute for Justice shill for big business, Kelo shows conservative public interest groups acting contrary to big business' goal.  Almost always it's large companies seeking to use the city's power to condemn property.  After all, little folks don't wield much influence over city hall -- It takes a lot of money to buy a city.

The legal aspects of Kelo are fascinating, but at heart, it's another example of left-wingers showing blacks that they know what's best.  "Listen to us," cry the liberals,"we're from the government, and we're here to help."

Either the PATRIOT Act is the biggest threat to civil liberties, or it's nothing to worry about.  Seems a big simplistic, 'eh?

Fortunately, there is now a source providing actual discussion of the law.  (My instincts say that most people discussing the PATRIOT Act haven't read it.)  Go visit Patriot Debates, which I've also permalinked.

Via Orin Kerr.

In comments to Sandefur's post below, Mr. Atma writes:

Well then, how about if we characterize them as children with serious psychological problems, who were beaten and abused by alcoholic stepfathers, and who were exposed to drugs and alcohol at a very young age? After all, that certainly fits the defendant in this case.

But as Mr. Atma is aware, the Eighth Amendment and Due Process Clause requires that juries be allowed to consider all mitigating evidence, including youth and childhood abuse.  What the Court did in Roper was take that question from the jury.  The Court held that juries were unworthy to dispense the ultimate punishment.

Maybe that's something Mr. Atma and Norm approve of.  Indeed, in a post below, Norm approved of the Court's taking away from the provience of the jury the ability to weigh youth as a mitigating factor.  I wonder how Norm would feel if the Court decided to take away the issues of damages from a jury, or if the Court decided that all trials should be before judges.  After all, the Eighth Amendment, like the Sixth and Seventh amendments, are just words, subject to a more "enlightened" interpretation at the Court's whim.

We either trust juries, or we don't.  In Roper, the Court distrusted the juries ability to weigh youth and childhood abuse as a mitigating factor.  Like State Farm v. Campbell, the Court said judges know better, and we must restrain juries.

I guess I'm outdated, since I think the jury's powers have already been unduly encumbered, and that juries should have the power to pass on the justness of a law before convicting.  But hey, in an era of tort reform, we can't be surprised when death is snatched from the jury.  After all, juries are out of control, right?

What issues will the Court next take from the jury?

UPDATE: Mr. Atma makes a peripheral but fair point, writing:

A jury can't consider mitigation evidence that it never sees. As soon as you start arguing that states should be providing an adequate defense to capital defendants, then I'll grant some validity to your argument about juries.

I disagree with Strickland, and I think that most people who call themselves "criminal defense lawyers" should be disbarred for incompetence.  I also think that all human institutions are flawed, and therefore, the death penalty should not be available in most cases.  But whether capital representation is inadequate (it is) is a different issue from whether the Court should take an issue away from the jury.

Also, I oppose the death penalty.  But so long as its constitutional, the Court must allow juries the option to met it out.  To say otherwise is to align one's self with the Roy Moore school of jurisprudence.

Norm suggested below that the techniques learned at the Trial Lawyers College be made available to all.  Why?

Don't government agencies have enough advantages?  The prosecutor gets to decide what charges to file and what bail should be set at - effectively determining whether the accused must choose between posting bond or retaining counsel of choice.  If the accused demands Sixth Amendment right to a jury trial, the judge and prosecutor will punish him.  The government can bribe witnesses, offering plea bargains and money in exchange for witness testimony. 

Also available to the government are nearly unlimited investigative resources.  And the Court has clearly said that the government need not use those resources to ensure they snagged the right man.  Should we also forget that judges and juries give police officers almost cult-like deference?  Oh, and then there's the grand jury.

When the playing field is leveled, then yes, prosecutors should have equal access to Spence's goofy tactics.  But until then, criminal defense lawyers should have access to at least one thing unavailable to the prosecution.

He woke up at his usual time of 6 a.m., rubbed his eyes, and brewed a pot of coffee.  "Man, I'd be finished without this stuff," he chuckled to himself.

After a hectic morning, he decided on a two martini lunch: "It's to calm the nerves," he said to the wide-eyed waitress.

Finished with work, he heads home, where he enjoys a thick steak, salted baked-potato, and creme brulee.

For his post-dinner pleasure, he winds down with a good book, a courvoisier and a Cohiba his friend snuck in after vacationing in the Dominican Republic.

At around 9 p.m. he popped a little blue pill, since things haven't worked the same since he turned 50.

Afterwards, he and his wife are watching the evening news when a headline flashes at the bottom of the screen.  "BREAKING STORY: Man caught with 50 kilos of marijuana arrested."

"Thank God," he says to his wife, "that the police are keeping these dope pushers off the streets."