Criminal Justice – Page 14

My Friend The NRA Member

My friend Pierre Atlas is a political science professor who teaches at Marian University, where he directs the Richard Lugar Franciscan Center for Global Studies. He is also a lifetime member of the NRA–and if survey research is to be believed, his attitudes are far more representative of rank-and-file NRA members than the lunatic positions taken by that organization’s leadership–not to mention, their “bought and paid for” Senators and Congresspersons.

Pierre writes a periodic column for the Indianapolis Star, and in his most recent one, listed a number of realistic, reasonable steps we could take to curb gun violence.

He began the column by recognizing the practical difficulty of simply eliminating AR-15s.

Some people want to ban AR-15 platform rifles. But even if this could pass constitutional muster, given that the AR-15 is possibly the most popular rifle in America and there are millions of them in circulation, doing so would be politically and logistically difficult, if not impossible. On the other side, we hear the standard refrain, “Now is not the time to talk about guns,” or “this is not about guns, it’s about mental health.”

Clearly, this shooter — who I will not name — had serious problems and telegraphed his violent intent on social media. But he didn’t commit his crime with a butter knife.

Pierre writes that America has a gun problem, and that it is always the right time to talk about it. He then offers a beginning prescription:

In addition to enforcing all the laws already on the books, here are 10 practical, pragmatic things Congress or state legislatures can and should do now, which I believe most Americans, including most gun owners, would support:

•Universal background checks

•Mandatory reporting of stolen guns

•Prohibit gun purchases for people on the no fly list

•Allow the Centers for Disease Control to collect and analyze gun violence data

•Ban the manufacture, sale and possession of bump stocks, which allow semi-automatic weapons to mimic full-automatics

•Require safety training for all carry permits

•Mandate that a purchaser of any firearm, rifle as well as handgun, must be 21

•With court orders and due process, remove guns from homes in cases of domestic violence or openly stated threats to others

In addition to these eight items, Congress should hold hearings with expert testimony to explore legislation addressing the following controversial issues: Reporting of potentially violent mental health cases and the building of a data base; and regulating social media content for threats of violence.

With 300 million guns in American homes, we aren’t going to enforce wholesale bans on categories of weapons, even if such approaches were constitutionally and politically feasible. But the only impediment to proceeding on the basis of Pierre’s list is political will; these steps are clearly both constitutional and practical.

The items on this list all address the stupidity of excessive solicitude for the tender sensibilities of the gun lobby, but two in particular are aimed at policies that have long infuriated me: the ban on CDC funding for research on gun violence, and allowing people on the no-fly list to buy guns.

Evidently, people too dangerous to allow on a plane aren’t too dangerous to arm.

But it is the refusal to fund research that is particularly telling. Talk about legislation that “sends a message”! The message is, “We don’t want data. We suspect we know what that research might find, so we aren’t going to allow it. No evidence-based policy for us!”

These are sensible, “do-able” measures. Let’s make them happen. And then let’s work on changing the culture than has convinced fearful folks to amass personal arsenals.

Comments

Americans Need To Grow Up

The ubiquity of social media has created a whole new category of problems, especially for lawmakers and parents. Much of the consternation is understandable and many of the concerns eminently reasonable. But when technology and social media meet America’s deeply-rooted sexual prudery, we get some very unfortunate (not to mention marginally insane) results.

A recent case from Minnesota is illustrative.

A 14-year-old girl is facing charges in Minnesota juvenile courts that could lead to her being placed on a sex offender registry—all for taking a nude selfie and sending it to a boy at her school. Prosecutors say that she violated Minnesota’s child pornography statute, which bans distributing sexually explicit pictures of underaged subjects.

Words fail.

A 14-year old girl showed an absence of good judgment. (That’s sort of the definition of a 14-year old…girl or boy.) This sort of behavior clearly calls for parental intervention; what it just as clearly doesn’t call for is placement on a sex-offender registry.

Parents, schools, and law enforcement around the world are wrestling with how to handle teen sexting. In 2014, a teenage boy in the UK was added to an investigative database after sending a nude snap to a classmate. The Supreme Court in Washington state recently upheld the child pornography conviction of a 17-year-old boy who sent a picture of his erect penis to a 22-year-old woman.

We can expect to see more of these cases in the future because surveys suggest that it’s a common activity among underage teenagers. One recent survey found that 12 percent of 12- to 17-year-olds had sent a sexually explicit image to someone else in their lifetimes—including 4 percent who had done so in the last month. That adds up to millions of teenagers who could be classified as child pornographers by the reckoning of Minnesota officials.

I don’t have a solution for this problem, but I’m pretty sure that labeling impulsive and hormonal teenagers sexual predators and giving them criminal records that will follow them through their adult years–affecting their abilities to get jobs, enter universities and rent apartments–isn’t the way to go.

For some reason, Americans have never seen sex as simply a natural part of life. (Hester Prynne isn’t the only woman who has been humiliated by that A.) That historical prudery, ironically, has intensified interest in–and consumption of– pornography and other sexually-explicit materials. Anyone who ever raised teenagers understands the attraction of the forbidden. It’s like drinking–French children who are accustomed to wine with dinner are much less enamored of alcohol than the suburban offspring of uptight parents who lock their liquor cabinets and lecture their children about the evils of drink.

We really need to grow up.

Comments

Compelling Honesty

It’s interesting how many people indignantly wrap themselves in the Free Speech provisions of the First Amendment in order to justify behaviors that–properly understood–aren’t really speech at all.

In all fairness, it can be difficult to distinguish between actions that are intended to communicate a message (protected) from actions that are committed through speech (not protected).

If you describe that cubic zirconium you are selling as an expensive diamond, the fact that your fraud involved the spoken word won’t turn your deception into a free speech issue. On the other hand, if you burn an American flag (assuming it’s yours to burn), you are clearly doing so in order to convey a message. (The content of that message is precisely why people get so angry.)

This little exercise in First Amendment philosophy is an introduction to an interesting case involving Crisis Pregnancy Centers.

Crisis pregnancy centers (CPCs) are pro-life organizations that often offer women incorrect, incomplete or misleading information about their reproductive options.

In response, some localities have passed legislation requiring CPCs to make disclosures to their clients. California, for example, passed the Reproductive FACT Act in 2015. Under this law, CPCs must notify clients of public resources available to prevent or terminate pregnancies. It also mandates that CPCs inform their patients if they are not licensed as a medical facility.

Anti-choice advocates have taken issue with these requirements. The National Institute of Family and Life Advocates has sued California’s attorney general on behalf of CPCs. In November 2017, the U.S. Supreme Court decided it would hear the case.

The question the Court will have to decide is deceptively simple: does requiring Crisis Pregnancy Centers to disclose accurate information that counters or undermines their beliefs violate their First Amendment right to free speech?

At first blush, the idea of requiring speech to be truthful seems like a great idea. (Fox “news” anyone?) In practice, it’s difficult if not impossible to separate opinion from flat-out lying. After all, most lies aren’t as obvious as those constantly being told by Donald Trump and Sarah Huckabee Sanders. In the case of Crisis Pregnancy Centers, however, the intent to mislead is pretty transparent.

A 2016 paper published in the Journal of Pediatric and Adolescent Gynecology found that nearly half of the 85 websites surveyed promoted abstinence-only sexual education. Over 60 percent of these websites provided negative facts about condoms, including minimizing their efficacy and suggesting they break often, and less than 10 percent encouraged the use of condoms to prevent sexually transmitted infections.

A larger examination of 254 CPC websites, published in Contraception in 2014, found that 80 percent provided at least one item of false or misleading information — most commonly, claiming links between abortion and mental health concerns.

A study published in 2017 in Women’s Health Issues focused on the websites of crisis pregnancy centers in Georgia. It reviewed all of the accessible websites of the CPCs in the state and found that more than half had “false or misleading statements regarding the need to make a decision about abortion or links between abortion and mental health problems or breast cancer.” Eighty-nine percent of sites did not indicate that their centers do not offer contraceptives or direct patients to resources where they might find them.

There is considerably more abortion research at the link.

The question that the Justices will have to weigh, however, is unrelated to the issue of reproductive choice–although attitudes about abortion will undoubtedly play an outsized role.

The legal issue to be resolved will apply in areas far removed from reproductive rights. What level of harm to the public justifies government interference with an advocacy organization’s communications? Do the lies being peddled rise to the level of fraud, as in our cubic zirconium example? Or should the risks to the “consumers” of these services be governed by the doctrine of caveat emptor–let the buyer (or in this case, the pregnant woman) beware? Should the imposition of government sanctions require intent–that is, should a finding of culpability require evidence that the people making the false claims know better?

I personally think that organizations willing to lie to women who are already distraught are despicable. But legal analysis must consider the consequences of a decision based upon that sort of emotional reaction.

Can the Supreme Court craft a decision that limits the ability of dishonest folks to prey on vulnerable women, without handing government a cudgel with which to beat the merely opinionated? And if so, what should be the burden of proof?

Comments

Guns–A Meditation

Once again, Americans are talking about guns in the wake of an unspeakable tragedy. There is little I can add to the outpouring of conflicting opinions, but after digesting a fair number of them, and for what it may be worth, I will share my perspective.

Bear with me.

There are 300 million guns in this country. We aren’t going to get rid of them–couldn’t if we tried. Furthermore, the vast majority of gun owners are responsible people–hunters, sportsmen, people hoping to protect their homes. It’s true that a significant number of the 30,000 plus gun deaths in America each year involve those responsible owners: suicides, domestic abuse, children accidentally shooting themselves or others. These deaths are tragic, but I’d draw an analogy to highway deaths–we don’t ban or confiscate cars because they can be lethal.
If we continue with the car analogy, however, there are lessons to be learned. We don’t let just anyone drive; in order to get a license you must pass a test. Your license can be revoked if you repeatedly break the rules. Academics study traffic deaths and issue recommendations for making our roadways safer–and legislatures, by and large, take those recommendations seriously. With guns, Congress has prohibited government from funding research on gun violence, and state lawmakers are constantly attacking and rolling back even the most reasonable firearm regulations. Congress even refused to pass a measure that would have prohibited individuals on the no-fly list–people with demonstrable connections to ISIS–from owning guns.
The history and interpretation of the Second Amendment has been twisted beyond recognition. If self-proclaimed “originalists” are really interested in the original meaning of the Amendment (I have my doubts), they might find this explanation by former Supreme Court Justice John Paul Stevens edifying.
Stevens entire explanation should be read for a full understanding of the history of the Second Amendment and Supreme Court cases interpreting it, but a couple of paragraphs are illuminating.

For more than 200 years following the adoption of that amendment, federal judges uniformly understood that the right protected by that text was limited in two ways: First, it applied only to keeping and bearing arms for military purposes, and second, while it limited the power of the federal government, it did not impose any limit whatsoever on the power of states or local governments to regulate the ownership or use of firearms. Thus, in United States v. Miller, decided in 1939, the court unanimously held that Congress could prohibit the possession of a sawed-off shotgun because that sort of weapon had no reasonable relation to the preservation or efficiency of a “well regulated Militia.”…During the years when Warren Burger was chief justice, from 1969 to 1986, no judge or justice expressed any doubt about the limited coverage of the amendment, and I cannot recall any judge suggesting that the amendment might place any limit on state authority to do anything….

Thus, Congress’s failure to enact laws that would expand the use of background checks and limit the availability of automatic weapons cannot be justified by reference to the Second Amendment or to anything that the Supreme Court has said about that amendment. What the members of the five-justice majority said in those opinions is nevertheless profoundly important, because it curtails the government’s power to regulate the use of handguns that contribute to the roughly 88 firearm-related deaths that occur every day.

I am not and never have been a gun owner, so I will not attempt to respond to the gun lobby’s impassioned defense of an unrestricted and unregulated right to own any and all kinds of firearms. I will leave that defense to Trae Crowder, who is both more eloquent and more informed about “gun culture” than I am.

https://www.facebook.com/traecrowder/videos/672513076292692/?hc_ref=ARSnDiEnjYXkr0_m0CPY9UHFJJay1OZC4Kpszs7UtiIfpd_0Yi9QAtvYn5iBk3IomM4&fref=nf

What I do know is that a mother should be able to take her daughter to a concert without worrying that one of them won’t live to make it home. I do know that a husband has a right to take his wife to a concert without having her die in his arms. I do know that constant, widespread anxiety about safety feeds social tensions and paranoia, and exacerbates the tribalism that is tearing this country apart.

Gun owners, please listen: Obama wasn’t going to “take” your guns. Hillary wasn’t, either. No one is suggesting the confiscation of 300 million firearms, or a law forbidding further gun sales. Funding research on gun violence, keeping guns out of the hands of people with a history of violence or mental illness, or people on the no-fly list, is not an infringement of anyone’s Second Amendment rights.

Requiring drivers’ licenses wasn’t a “slippery slope” toward the confiscation of cars, and restrictions on AK-47 ownership won’t lead to Armageddon.

Comments

Good Things Still Happen!

The news isn’t all terrible. (Okay, mostly it is. But not all.) The GOP’s latest effort to strip healthcare from millions of Americans appears to be dead, and Patheos has reported on a rare and welcome bit of bipartisanship:

The U.S. House of Representatives unanimously approved three amendments late Tuesday that would defund a notorious federal forfeiture program that was recently restored by U.S. Attorney General Jeff Sessions…

Sponsored by Reps. Justin Amash, Tim Walberg, and Jamie Raskin and co-sponsored by Reps. Steve Cohen, Jim Sensenbrenner, and Mark Sanford, the amendments address so-called “adoptive” seizures and forfeitures. Under the federal adoption program, state and local law enforcement can seize property without filing criminal charges, and then transfer the seized property to federal prosecutors for forfeiture under federal law. Local and state agencies can collect up to 80 percent of the forfeiture proceeds.

This pernicious practice had been curtailed under former AG Holder, it has been reinstated by Sessions. The amendments cut off funding for the reinstated program. Political sentiment across the spectrum has shifted strongly against asset forfeiture; more than a dozen states have moved to restrict the practice over the past few years.

For those who may not be familiar with civil forfeiture, it is a practice that allows police to seize — and then keep or sell — any property they allege is involved in a crime. Owners of the property need not ever be arrested or convicted of a crime for their cash, cars, or real property to be confiscated by the government.

As the ACLU has explained,

Forfeiture was originally presented as a way to cripple large-scale criminal enterprises by diverting their resources. But today, aided by deeply flawed federal and state laws, many police departments use forfeiture to benefit their bottom lines, making seizures motivated by profit rather than crime-fighting. For people whose property has been seized through civil asset forfeiture, legally regaining such property is notoriously difficult and expensive, with costs sometimes exceeding the value of the property.

After Sessions moved to restore the program, The Atlantic looked at the numbers, which are staggering:

Civil forfeiture has existed in some form since the colonial era, although most of the current laws date to the War on Drugs’ heyday in the 1980s. Law-enforcement officials like Sessions defend modern civil forfeiture as a way to limit the resources of drug cartels and organized-crime groups. It’s also a lucrative tactic for law-enforcement agencies in an era of tight budgets: A Justice Department inspector general’s report in April found that federal forfeiture programs had taken in almost $28 billion over the past decade, and The Washington Post reported that civil-forfeiture seizures nationwide in 2015 surpassed the collective losses from all burglaries that same year.

Civil forfeiture has always been problematic, even in theory. As practiced, it makes a joke of the rule of law, not to mention constitutional values like fundamental fairness and limited governmental authority.

Let’s hope the Senate follows the example set by the House, and tells Jeff Sessions there are limits to his regressive efforts.

Comments