Category Archives: Criminal Justice

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.
  • 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

Trump’s Not The Only One Undermining the Rule of Law

One of the many reasons Trump’s pardon of Arpaio was so appalling was the nature of Arpaio’s behavior during the years he was sheriff. Trump’s pardon essentially endorsed the abuse of power.

Every time a public official–cloaked in the authority of the state–engages in self-serving, corrupt or unlawful behaviors, government legitimacy suffers. The most central principle of the rule of law is that no one is above it; the rules apply equally to the governed and those who do the governing.

Of course, if we don’t know what government officials are doing, we can’t enforce the rules.

One of the reasons our Constitution explicitly protects freedom of the press is because the press acts as a “watchdog,” ferreting out official misconduct. When Trump attacks unflattering coverage as “Fake News,” when Arpaio criticizes the press for pointing out that his actions are racist, they are attempting to delegitimize a critical element of Constitutional accountability.

Mother Jones recently provided an excellent example of how the system is supposed to work.  The magazine investigated and uncovered a Judge’s conflict of interest in the aftermath of an immigration raid that netted 400 undocumented workers. As the article notes, such workers are

usually charged with civil violations and then deported. But most of these defendants, shackled and dragging chains behind them, were charged with criminal fraud for using falsified work documents or Social Security numbers. About 270 people were sentenced to five months in federal prison, in a process that one witness described as a “judicial assembly line.”

Overseeing the process was Judge Linda R. Reade, the chief judge of the Northern District of Iowa… The incident sparked allegations of prosecutorial and judicial misconduct and led to congressional hearings. Erik Camayd-Freixas, an interpreter who had worked at the Waterloo proceedings, testified that most of the Spanish-speaking defendants had been pressured to plead guilty…

Yet amid the national attention, one fact didn’t make the news: Before and after the raid, Reade’s husband owned stock in two private prison companies, and he bought additional prison stock five days before the raid, according to Reade’s financial disclosure forms. Ethics experts say these investments were inappropriate and may have violated the Code of Conduct for United States Judges.

The subsequent discovery of emails and memos from Immigration and Customs Enforcement showed that in the months leading up to the raid, Judge Reade had repeatedly met with immigration officials and federal prosecutors. She had also attended a meeting with officials from the US Attorney’s Office where “parties discussed an overview of charging strategies,” according to ICE memoranda. In those meeting she learned that about 700 arrests were anticipated.

I’ve previously argued that prisons should never be privatized. Not only is incarceration an inherently governmental function, but the private prison industry lobbies (often successfully) for counterproductive public policies. Currently, CCA and Geo, the two largest prison companies, are actively resisting criminal justice reforms and the decriminalization of marijuana. The Mother Jones article points to a less-recognized danger–public officials succumbing to the temptation to “enhance” the value of their investments.

Today, dozens of people who were sentenced by Reade while her husband owned prison stock remain behind bars. According to the US Sentencing Commission, the Northern District of Iowa, where Reade sits, sends a significantly higher proportion of defendants to prison, and with longer sentences, than the national average.

Can we spell “appearance of impropriety”?

Comments

What Portugal Can Teach Us About The Drug War

America’s policymakers evidently didn’t learn anything from the disaster that was alcohol prohibition. (Jeff Sessions clearly didn’t!)

In fact, for a country whose citizens constantly assert a belief in individual liberty, we rank right up there on the forced prudery scale. As any historian or political scientist can confirm, America’s legal landscape is littered with religious moralism masquerading as public safety.

When it came to drug use, and our incredibly expensive and demonstrably ineffective drug war, moralism joined hands with racism, first against Asians and Opium, and then against African-Americans, as Michelle Alexander copiously documented in The New Jim Crow. 

Years of criminal justice research have confirmed the futility–and injustice–of America’s approach to drug prohibition, an approach that creates drug “schedules” unsupported by evidence of harm, fails to distinguish between use and abuse, treats drug use as a criminal justice issue rather than a public health problem, and requires massive wasteful public expenditures.

Those are mistakes Portugal no longer makes.

Portugal decriminalized the use of all drugs in 2001. Weed, cocaine, heroin, you name it — Portugal decided to treat possession and use of small quantities of these drugs as a public health issue, not a criminal one. The drugs were still illegal, of course. But now getting caught with them meant a small fine and maybe a referral to a treatment program — not jail time and a criminal record.

The reactions from so-called “experts” were predictable. And wrong.

Whenever we debate similar measures in the U.S. — marijuana decriminalization, for instance — many drug-policy makers predict dire consequences. “If you make any attractive commodity available at lower cost, you will have more users,” former Office of National Drug Control Policy deputy director Thomas McLellan once said of Portugal’s policies. Joseph Califano, founder of the Center for Addiction and Substance Abuse at Columbia University, once warned that decriminalization would “increase illegal drug availability and use among our children.”

But in Portugal, the numbers paint a different story. The prevalence of past-year and past-month drug use among young adults has fallen since 2001, according to statistics compiled by the Transform Drug Policy Foundation, which advocates on behalf of ending the war on drugs. Overall adult use is down slightly too. And new HIV cases among drug users are way down.

Now, numbers just released from the European Monitoring Centre for Drugs and Drug Addiction paint an even more vivid picture of life under decriminalization: drug overdose deaths in Portugal are the second-lowest in the European Union.

Portugal has now operated under decriminalization for fifteen years, a time period sufficient to allow us to draw some conclusions. At a minimum, we can conclude that the country hasn’t experienced the dire consequences that opponents of decriminalization predicted.  The Transform Drug Policy Institute, which has analyzed Portugal’s policy outcomes, says of  of Portugal’s drug laws,

The reality is that Portugal’s drug situation has improved significantly in several key areas. Most notably, HIV infections and drug-related deaths have decreased, while the dramatic rise in use feared by some has failed to materialise.

Of course, there are other aspects of Portuguese society that are important contributors to these salutary results. As an article from Vice points out,

Though often narrowly assessed in reference to its decriminalization law, Portugal’s experience over the last decade and a half speaks as much to its free public health system, extensive treatment programs, and the hard to quantify trickle down effects of the legislation. In a society where drugs are less stigmatized, problem users are more likely to seek out care.

So let’s see….a country that doesn’t stigmatize or criminalize personal drug use, and provides its population with an extensive “free public health system” seems to have solved–or at least significantly moderated–its drug problem.

And of course, Portugal–like every other industrialized country— spends far less per capita on medical care than the U.S. does.

We don’t learn from our own failures, and we refuse to learn from other countries’ successes. I think that’s what’s called American Exceptionalism.

Comments