Category Archives: Criminal Justice Reform

Harold Fish is Free!

On the Liberty Papers, much of what we write is negative; decrying the steady movement towards tyranny and totalitarianism that is the trajectory of the U.S.. Occasionally, we get to report some good news.Harold Fish has been released from jail.

His case is an important one; the state of Arizona charged him with murder for defending himself with too powerful a weapon; while hiking in the backwoods, Mr Fish was charged by a group of aggressive dogs (who were, quite reasonably, unleashed) . Fish had a 10mm Kimber Pistol with hollow point ammunition. He fired a warning shot into the ground to scare them off as they closed to within a few feet of him. At this point, he was attacked by the dog owner who screamed that he was going to kill Mr Fish and charged swinging his fists. Mr Fish fired three rounds at the last moment before the man got within punching distance and mortally wounded his attacker. he then spent agonizing minutes trying to get medical help for the man.

The police investigating the case thought it a clear case of self defense. The lawyers working for the state of Arizona disagreed, claiming that the size and type of rounds he was carrying indicated that Mr Fisher had set out on his hike with murder on his mind.

Through this argument, and by convincing the judge to keep exculpatory evidence out of the trial, the attorneys were able to successfully convict Mr Fish of murder, although within 24 hours at least one horrified juror contacted the defense attorney claiming that the excluded evidence would have resulted in a different verdict.

This case is important in that people have a right to defend themselves. Certainly, the courts have long held that police have not obligation to defend us. The act of walking outside the patrol area of the police does not mean that we have agreed to allow people to murder or assault us.

Luckily, the appelate court agreed that Mr Fish had been convicted unfairly, and thanks to recent changes in Arizona law clarifying the rules governing self defense, there is little chance that his retrial will result in a conviction.

Harold Fish lost three years of his life to prison. He is nearly $500,000 in debt at a time of his life where he has little prospect of paying it off (Donate here to his defense fund). All because a stranger attacked him, he defended himself, and a prosecutor didn’t like the size of his gun.

In a just world, the prosecutor would have to make Mr Fish whoole for all the money and time he lost on this frivolous prosecution. Unfortunately, we do not live in a just world.

At least Mr. Fish gets to have dinner with his wife again…

Hat Tip: Massad Ayoub of Backwoods Home Magazine.

I am an anarcho-capitalist living just west of Boston Massachussetts. I am married, have two children, and am trying to start my own computer consulting company.

Ain’t Nobody’s Business If You Do

THIS BOOK IS BASED on a single idea: You should be allowed to do whatever you want with your own person and property, as long as you don’t physically harm the person or property of a nonconsenting other.

Thus begins a book that everyone interested in politics should read; Ain’t Nobody’s Business If You Do: The Absurdity of Consensual Crimes in a Free Country by Peter McWilliams.  Published in 1998, it is a damning survey of how the United States had become a state composed of “clergymen with billy-clubs”.  It analyzes the consequences of punishing so-called victimless crimes from numerous viewpoints, demonstrating that regardless of what you think is the most important organizing principle or purpose of society the investigation, prosecution and punishment of these non-crimes is harmful to society.

This remarkable book is now posted online, and if one can bear to wade through the awful website design, one will find lots of thought-provoking worthwhile commentary, analysis, theory and history.

His final chapter, on how to change the system, while consisting mainly of pie-in-the-sky, ineffective suggestions of working within the system, starts of with an extremely good bit of advice that I urge all our readers to try:

The single most effective form of change is one-on-one interaction with the people you come into contact with day-by-day. The next time someone condemns a consensual activity in your presence, you can ask the simple question, “Well, isn’t that their own business?” Asking this, of course, may be like hitting a beehive with a baseball bat, and it may seem—after the commotion (and emotion) has died down—that attitudes have not changed. If, however, a beehive is hit often enough, the bees move somewhere else. Of course, you don’t have to hit the same hive every time. If all the people who agree that the laws against consensual crimes should be repealed post haste would go around whacking (or at least firmly tapping) every beehive that presented itself, the bees would buzz less often.

I highly recommend this book.  Even though I have some pretty fundamental disagreements with some of his proposals, I think that this book is a fine addition to the bookshelf of any advocate of freedom and civilization.

Hat Tip: J.D. Tuccille of Disloyal Opposition.

I am an anarcho-capitalist living just west of Boston Massachussetts. I am married, have two children, and am trying to start my own computer consulting company.

Mother Jones Takes on the War on (Some) Drugs

The July/August 2009 issue of the Left-leaning Mother Jones dedicates several articles to the asinine War on (some) Drugs.
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The title of the magazine’s cover story states it best – “Totally Wasted: We’ve blown $300 billion. Death squads roam Mexico. Cartels operate in 259 cities. This is your War on Drugs. Any Questions?”

Reason’s Nick Gillespie points out that there are many areas that libertarians would disagree with (like I said, MoJo is a Left-leaning publication) but I think it’s good to expose a new audience to the failure that is this nation’s drug policy. From there we can debate the best way to bring the War on (some) Drugs to a conclusion.

Ronald Kitchen: The Latest Death Row Exoneree

Radley Balko made the following observation at his blog:

“Illinois has sentenced 224 people to death since reinstating capital punishment in 1977. Since then, 20 have been exonerated. I’m not sure what an acceptable rate of error in death penalty cases would be, but nine percent seems awfully high, doesn’t it?”

One wrongfully killed person at the hands of the state is too many, nine percent is completely unacceptable.

Liberty Rock Friday: …And Justice for All by Metallica

This song somehow seems appropriate in marking the end of another term of the U.S. Supreme Court.

Metallica
…And Justice for All
…And Justice for All (1988)
justice

Songwriters: Hammett, Kirk L; Hetfield, James Alan; Ulrich, Lars

Halls of Justice Painted Green
Money Talking
Power Wolves Beset Your Door
Hear Them Stalking
Soon You’ll Please Their Appetite
They Devour
Hammer of Justice Crushes You
Overpower

The Ultimate in Vanity
Exploiting Their Supremacy
I Can’t Believe the Things You Say
I Can’t Believe
I Can’t Believe the Price You Pay
Nothing Can Save You

Justice Is Lost
Justice Is Raped
Justice Is Gone
Pulling Your Strings
Justice Is Done
Seeking No Truth
Winning Is All
Find it So Grim
So True
So Real

Apathy Their Stepping Stone
So Unfeeling
Hidden Deep Animosity
So Deceiving
Through Your Eyes Their Light Burns
Hoping to Find
Inquisition Sinking You
With Prying Minds

The Ultimate in Vanity
Exploiting Their Supremacy
I Can’t Believe the Things You Say
I Can’t Believe
I Can’t Believe the Price You Pay
Nothing Can Save You

Justice Is Lost
Justice Is Raped
Justice Is Gone
Pulling Your Strings
Justice Is Done
Seeking No Truth
Winning Is All
Find it So Grim
So True
So Real

Lady Justice Has Been Raped
Truth Assassin
Rolls of Red Tape Seal Your Lips
Now You’re Done in
Their Money Tips Her Scales Again
Make Your Deal
Just What Is Truth? I Cannot Tell
Cannot Feel

The Ultimate in Vanity
Exploiting Their Supremacy
I Can’t Believe the Things You Say
I Can’t Believe
I Can’t Believe the Price We Pay
Nothing Can Save Us

Justice Is Lost
Justice Is Raped
Justice Is Gone
Pulling Your Strings
Justice Is Done
Seeking No Truth
Winning Is All
Find it So Grim
So True
So Real

Seeking No Truth
Winning Is All
Find it So Grim
So True
So Real

SCOTUS: No Constitutional Right for DNA Testing Post-Conviction

Last week in District Attorney’s Office for the Third Judicial District et. al. v. Osborne the U.S. Supreme Court ruled 5-4 that convicts have no Constitutional right to DNA testing even if such testing would conclusively determine the guilt or innocence of the convict. In this particular case, William Osborne was willing to pay for the DNA test at his own expense but the DA’s office refused to allow Osborne to have access to the sample. Roberts, writing for the court’s majority joined by Thomas, and Scalia, ruled against Osborne because of lack of legal precedents and that Osborne did not avail himself of the available evidence and technological advances at the time of trial. Alito with Kennedy joining wrote a concurring opinion in which Alito worried that allowing Osborne to have access to his DNA sample would flood the criminal justice system with demands that more DNA evidence be preserved. Both opinions stressed that the domain for making guidelines for DNA preservation and testing would better be handled by state legislatures rather than the federal courts.

First, some excerpts from Justice Roberts:

A criminal defendant proved guilty after a fair trial does not have the same liberty interests as a free man. At trial, the defendant is presumed innocent and may demand that the government prove its case beyond reasonable doubt. But “[o]nce a defendant has been afforded a fair trial and convicted of the offense for which he was charged, the presumption of innocence disappears.” Herrera v. Collins, 506 U. S. 390, 399 (1993). “Given a valid conviction, the criminal defendant has been constitutionally deprived of his liberty.” Dumschat, supra, at 464 (internal quotation marks and alterations omitted). (p. 15)

Osborne seeks access to state evidence so that he can apply new DNA-testing technology that might prove him innocent. There is no long history of such a right, and “[t]he mere novelty of such a claim is reason enough to doubt that ‘substantive due process’ sustains it.” Reno v. Flores, 507 U. S. 292, 303 (1993). (p. 19)

Establishing a freestanding right to access DNA evidence for testing would force us to act as policy makers, and our substantive-due-process rulemaking authority would not only have to cover the right of access but a myriad of other issues. We would soon have to decide if there is a constitutional obligation to preserve forensic evidence that might later be tested. Cf. Arizona v. Youngblood, 488 U. S. 51, 56–58 (1988). If so, for how long? Would it be different for different types of evidence? Would the State also have some obligation to gather such evidence in the first place? How much, and when? No doubt there would be a miscellany of other minor directives. See, e.g., Harvey v. Horan, 285 F. 3d 298, 300–301 (CA4 2002) (Wilkinson, C. J., concurring in denial of rehearing).

In this case, the evidence has already been gathered and preserved, but if we extend substantive due process to this area, these questions would be before us in short order, and it is hard to imagine what tools federal courts would use to answer them. At the end of the day, there is no reason to suppose that their answers to these questions would be any better than those of state courts and legislatures, and good reason to suspect the opposite. See Collins, supra, at 125; Glucksberg, supra, at 720.” (p. 20 & 21)

I think Roberts is making this issue more complicated than necessary. As he points out, the evidence has been preserved. There is no need to get into “policy making” to say that the DA must allow Osborne access to the sample that the DA physically possesses. And even if the presumption of innocence disappears and the burden of proof falls on Osborne to prove his innocence, how can he possibly attempt to do so without having the sample?

Now an except from Alito:

Respondent was convicted for a brutal sexual assault. At trial, the defense declined to have DNA testing done on a semen sample found at the scene of the crime. Defense counsel explained that this decision was made based on fear that the testing would provide further evidence of respondent’s guilt. After conviction, in an unsuccessful attempt to obtain parole, respondent confessed in detail to the crime. Now, respondent claims that he has a federal constitutional right to test the sample and that he can go directly to federal court to obtain this relief without giving the Alaska courts a full opportunity to consider his claim […]

[…]

[E]ven though respondent did not exhaust his state remedies, his claim may be rejected on the merits, see §2254(b)(2), because a defendant who declines the opportunity to perform DNA testing at trial for tactical reasons has no constitutional right to perform such testing after conviction.” (p. 1 & 2)

Stevens in his dissent (joined by Ginsburg and Breyer; Souter filed a concurring opinion) responded to the majority opinion as follows:

The State of Alaska possesses physical evidence that, if tested, will conclusively establish whether respondent William Osborne committed rape and attempted murder. If he did, justice has been served by his conviction and sentence. If not, Osborne has needlessly spent decades behind bars while the true culprit has not been brought to justice. The DNA test Osborne seeks is a simple one, its cost modest, and its results uniquely precise. Yet for reasons the State has been unable or unwilling to articulate, it refuses to allow Osborne to test the evidence at his own expense and to thereby ascertain the truth once and for all. (p. 1)

The liberty protected by the Due Process Clause is not a creation of the Bill of Rights. Indeed, our Nation has long recognized that the liberty safeguarded by the Constitution has far deeper roots. See Declaration of Independence¶2 (holding it self-evident that “all men are. . . endowed by their Creator with certain unalienable Rights,” among which are “Life, Liberty, and the pursuit of Happiness”);see also Meachum v. Fano, 427 U. S. 215, 230 (1976) (STEVENS, J., dissenting). The “most elemental” of the liberties protected by the Due Process Clause is “the interest in being free from physical detention by one’s own government.” Hamdi v. Rumsfeld, 542 U. S. 507, 529 (2004) (plurality opinion); see Foucha v. Louisiana, 504 U. S. 71, 80 (1992) (“Freedom from bodily restraint has always been at the core of the liberty protected by the Due Process Clause”).

Although a valid criminal conviction justifies punitive detention, it does not entirely eliminate the liberty interests of convicted persons. For while a prisoner’s “rights may be diminished by the needs and exigencies of the institutional environment[,] . . . [t]here is no iron curtain drawn between the Constitution and the prisons of this country.” Wolff v. McDonnell, 418 U. S. 539, 555–556 (1974); Shaw v. Murphy, 532 U. S. 223, 228–229 (2001) (“[I]ncarceration does not divest prisoners of all constitutional protections”). Our cases have recognized protected interests in a variety of post conviction contexts, extending substantive constitutional protections to state prisoners on the premise that the Due Process Clause of the Fourteenth Amendment requires States to respect certain fundamental liberties in the post conviction context. See, e.g., Thornburgh v. Abbott, 490 U. S. 401, 407 (p. 7 & 8)

Wow, if I didn’t know any better, I would think Stevens was of a libertarian or Lockean ideology because I think he is spot on in this case. There are times whenever “judicial activism” is necessary whenever state legislatures fail to uphold due process and other Constitutional protections.

Stevens continues:

The fact that nearly all the States have now recognized some post conviction right to DNA evidence makes it more, not less, appropriate to recognize a limited federal right to such evidence in cases where litigants are unfairly barred from obtaining relief in state court. (p. 9)

Throughout the course of state and federal litigation, the State has failed to provide any concrete reason for denying Osborne the DNA testing he seeks, and none is apparent. Because Osborne has offered to pay for the tests, cost is not a factor. And as the State now concedes, there is no reason to doubt that such testing would provide conclusive confirmation of Osborne’s guilt or revelation of his innocence.7 In the courts below, the State refused to provide an explanation for its refusal to permit testing of the evidence, see Brief for Respondent 33, and in this Court, its explanation has been, at best, unclear. Insofar as the State has articulated any reason at all, it appears to be a generalized interest in protecting the finality of the judgment of conviction from any possible future attacks. See Brief for Petitioners 18, 50.8 (p. 11)

In other words, if the state properly convicted the right person, what is the state so afraid of?

It seems to me obvious that if a wrongly convicted person were to produce proof of his actual innocence, no state interest would be sufficient to justify his continued punitive detention. If such proof can be readily obtained without imposing a significant burden on the State, a refusal to provide access to such evidence is wholly unjustified. (p. 13)

It’s really is too bad that Stevens’ opinion did not carry the day. It’s also too bad that Osborne was the test case for this very important issue (Osborne is not what most might consider a sympathetic person; even if he was proven innocent of these charges, he faces other charges unrelated to this case). It doesn’t seem right that the Supreme Court would allow the state to withhold exculpatory evidence which would lead to the truth. Isn’t getting to the truth the point of our criminal justice system?

Quote Of The Day

The Sheriff whose deputies raided Berwyn Heights, MD mayor Cheye Calvo’s house predictably doesn’t think they did anything wrong. He said a lot of pretty despicable things in that article, but this one really bothers me:

“I’m sorry for the loss of their family pets,” Jackson said. “But this is the unfortunate result of the scourge of drugs in our community. Lost in this whole incident was the criminal element. . . . In the sense that we kept these drugs from reaching our streets, this operation was a success.”

What criminal element? The mayor? His wife? His elderly mother-in-law? The two labrador retrievers they shot?

Did they suspect Calvo was a drug-runner? Obviously not, because they ALREADY knew the drugs were intended (from an on-going investigation) for a false drop.

If there’s a criminal element, don’t you think it might be the guys, dressed in black, who busted down the door of a law-abiding citizen, terrorized his family, and shot his dogs? All without even a cursory investigation to see if they’d done anything wrong other than having their own address on a package that even the cops weren’t sure was intended for them?

This isn’t the result of the scourge of drugs or the criminal element. This is the result of shoddy police work. This Sheriff should be ashamed of his wanton disregard for logic and humanity.

Drug Czar Calls For End To “War On Drugs”

It’s too early to tell if it’s a semantic change or a major step in the right direction, but these comments from President Obama’s “Drug Czar” are encouraging:

WASHINGTON — The Obama administration’s new drug czar says he wants to banish the idea that the U.S. is fighting “a war on drugs,” a move that would underscore a shift favoring treatment over incarceration in trying to reduce illicit drug use.

In his first interview since being confirmed to head the White House Office of National Drug Control Policy, Gil Kerlikowske said Wednesday the bellicose analogy was a barrier to dealing with the nation’s drug issues.

“Regardless of how you try to explain to people it’s a ‘war on drugs’ or a ‘war on a product,’ people see a war as a war on them,” he said. “We’re not at war with people in this country.”

Mr. Kerlikowske’s comments are a signal that the Obama administration is set to follow a more moderate — and likely more controversial — stance on the nation’s drug problems. Prior administrations talked about pushing treatment and reducing demand while continuing to focus primarily on a tough criminal-justice approach.

And the result of that has been that we have more people in prison than any other nation on Earth, with large numbers of them being there for actions that would not be crimes at all but-for the fact that some drugs are illegal.

While Kerlijowske’s statements do need to be backed up with actual changes in drug policy before I’ll take them seriously, at least one advocate of drug legalization is taking this as a good sign:

Ethan Nadelmann of the Drug Policy Alliance, a group that supports legalization of medical marijuana, said he is “cautiously optimistic” about Mr. Kerlikowske. “The analogy we have is this is like turning around an ocean liner,” he said. “What’s important is the damn thing is beginning to turn.”

Let’s hope so.

Colorado Senate Defeats Death Penalty Repeal by 1 Vote

Like déjà vu but this time in reverse, the Colorado Senate voted down the bill which would repeal the death penalty and use the savings to fund cold case homicide investigations by a single vote*. Though the Senate stripped out the death penalty provision just 15 minutes before the scheduled vote on Monday, the conference committee decided to put the death penalty back on the table to force each Senator to directly say “yea” or “nay” on the controversial issue. All 14 Republicans (mostly “pro-life” Republicans to be sure) plus 4 Democrats decided once again that its perfectly okay for the State of Colorado to kill.

Of the 4 Democrats who joined the majority, Mary Hodge who is opposed to the death penalty was quoted in The Denver Post as saying “It’s the hardest vote I’ve ever taken.” She went on to explain that she voted against the bill because she didn’t like how it conflated the issues of the death penalty and cold case funding.

Well congratulations Mary, Mary, quite contrary! Thanks to your vote the death penalty will remain. I hope you can sleep well at night knowing that you missed an opportunity to repeal this repugnant punishment because you felt the issues of the death penalty and cold case funding “are not connected.”

I beg to differ.

Colorado has limited resources to dedicate to criminal justice; the death penalty consumes nearly $1 million of those resources annually**. The victims of unsolved homicides have just as much right to bring their killers to justice as those whose killers have been convicted.

Most disappointing of all is the idea that far too many people have far too much faith in their government and their criminal justice system despite its many flaws.

» Read more

Last Minute Senate Rewrite Jeopardizes Colorado Death Penalty Repeal

Only 2 weeks ago the Colorado House passed H.B. 1274, a bill which would repeal the death penalty and use the savings to solve homicide cold cases, by a single vote. Foes of the bill in the Senate stripped out the death penalty repeal provisions and added an alternative source of funding to satisfy those who support additional cold case spending: a $2.50 surcharge on individuals convicted of a crime. According to The Denver Post, the rewrite happened a full 15 minutes before the Senate was scheduled to vote and with only a few days left in the current legislative session.

The Denver Post article goes on to explain how the rewrite puts the death penalty repeal in doubt:

Sponsor Sen. Morgan Carroll, D-Aurora, blamed the amendment on some colleagues’ anxieties over the controversial topic of repealing the death penalty and said the maneuver leaves little time to work out compromises and no time for public hearings or fiscal analysis of the new draft.

“Some people are looking for ways to avoid voting on the core issue,” Carroll said. “This is a totally different bill that’s not had a public hearing. It’s gamesmanship that makes a mess of public policy.”

Carroll had the backing of a broad coalition of groups — including the families of victims of unsolved murders, whose painful stories helped push the idea that ending the death penalty could be used as a funding source for cold-case investigations.

With their needs potentially met, however, the remaining death-penalty foes in the coalition could lose one of their most poignant and persuasive voices.

I think Sen. Carroll is mostly right. Her colleagues in the Senate are probably thinking more about the 2010 election than any principle regarding the death penalty. With the rewritten provisions to fund the cold case unit and taking the death penalty off the table, her friends in the Senate can avoid making a controversial vote and not have to worry about angering voters.

I’m sure that Gov. Bill Ritter (D) who is also up for re-election in 2010 is most relieved of all about these developments. So far, Gov. Ritter has managed to remain on the fence on the issue with his finger firmly in the air to determine which way the political winds are blowing. Perhaps the only clue as to where he stands – when Ritter was the Denver D.A. he unsuccessfully pursued the death penalty in 7 cases.

Perhaps the “limited resources” and economic arguments was not the best strategy to pursue after all. While these are, in my view, persuasive arguments they should be secondary considerations to the real moral and legal question: should the state have the right to kill? This is the question that far too many politicians do not have the courage to answer.

The article continues:

Carroll said there is too great a risk of wrongful conviction to chance an irreversible penalty such as death.

“How many colleagues do we have in the Senate who believe the state or the government is infallible?” she asked.

As I have written on many occasions, infallible the government is not. This is especially true for our broken criminal justice system.

Fake Cops, Fake Raid, Real Guns

Here’s yet another example illustrating why the practice of SWAT style raids should be ended: robbers posing as cops.

Here’s the news story from WRAL:

This is the unedited surveillance video:

As bad as this situation was, it could have ended much worse. It’s very fortunate that the armed robbers encountered the man on the porch first and the others inside could see what was happening thanks to the surveillance video (had this individual not been on the porch, the robbers could have gained entry as police officers serving a lawful warrant). Also, the fact that one of the patrons was armed and able to return fire was the difference in being cleaned out by the robbers (and possibly murdered) and forcing the robbers to abandon their criminal pursuit. It’s just too damn bad that neither robber was killed.

Of course if the police didn’t routinely use paramilitary tactics to raid poker games or those suspected of drug possession in the first place, then individuals would know without question that the intruders are indeed criminals attempting to do harm and could respond appropriately without fear of killing a police officer.

Hat Tip: The Agitator

Cato Report: Portugal’s Seven Year Experiment with Drug Decriminalization “a Resounding Success”

greenwald_whitepaper

In July of 2001, Portugal tried something which would horrify policy makers the world over: the decriminalization of all drugs. As a result, Portugal turned into a country overrun with drugs, stoners, drug tourists, and criminals…right?

Not according to a report by Cato’s Glenn Greenwald entitled Drug Decriminalization in Portugal: Lessons for Creating Fair and Successful Drug Policies. Greenwald concludes:

“The data show that, judged by virtually every metric, the Portuguese decriminalization framework has been a resounding success. Within this success lie self-evident lessons that should guide drug policy debates around the world.”

While this result may shock most people, this comes as no surprise to Libertarians. The question is, will the rest of the world learn from Portugal’s experiment with drug decriminalization?

More Information on this report:

Click here to view the Cato policy forum event related to this report.

Colorado One Step Closer to Abolishing the Death Penalty

20090422_013500_deathpenalty
The Colorado House passed the bill which would eliminate the death penalty by 1 vote.

The Denver Post reports on the dramatic moment:

In the hushed state House chamber, all eyes Tuesday stared up at the vote board, which showed lawmakers deadlocked 32-32 on whether to repeal the death penalty in Colorado.

All but Rep. Edward Vigil’s eyes, that is.

The Fort Garland Democrat sat at his desk with a hand held to his forehead, contemplating his suddenly crucial decision.

Heads swiveled in his direction. Whispers filled the silence. Seconds passed.

After nearly a minute, Vigil pushed a green button and, in doing so, pushed House Bill 1274 on to the state Senate in a dramatic 33-32 victory for death-penalty foes at the Capitol.

“Hopefully this will make us a better society in Colorado by not having a death penalty,” Vigil said afterward, “though I have my reservations.”

The bill would eliminate the death penalty as a sentencing option going forward and would use the projected cost savings to fund a cold-case unit in the Colorado Bureau of Investigation.

Only 1 Republican voted in favor of repealing the death penalty on pro life grounds: Rep. Don Marostica of Loveland.

As evident from the article, Coloradans are very divided on the question of the death penalty, despite the fact that only 1 person has been executed in Colorado since 1976. How the vote will go down in the Senate and whether or not former prosecutor Gov. Bill Ritter (D) will sign the bill into law is anyone’s guess.

It’s my hope that Colorado will ultimately make the right decision and follow New Mexico’s lead.

Reforming America’s Prison System: The Time Has Come

Sen. Jim Webb (D-VA) in his recent article calling for a major reform of America’s prisons in Parade Magazine brought some very disturbing, eye opening, statistics about America’s prison system to light. In summary this is some of what he found:

-Since 1984, America’s prison population has quadrupled from 580,000 to 2.3 million

-Though the U.S. accounts for 5% of the world’s population, the U.S. accounts for 25% of the world’s reported prisoners

-Local, state, and federal spending on corrections costs the U.S. taxpayer about $68 billion annually* (California spent nearly $10 million on corrections last year by itself!)

-16% (350,000) adults in prison or jail are mentally ill

-3/4 of drug offenders in state prisons are non-violent offenders or in prison solely for drug offenses

-47.5% of all drug arrests in the U.S. were fore marijuana offenses

-Despite insignificant statistical differences regarding drug use among races, Blacks (accounting for 12% of the U.S. population) account for 37% of all drug arrests, 59% of which are convicted and account for 74% of all drug offenders sentenced to prison

Perhaps for the “tough on crime” types, this is all good news but for anyone else who thinks critically of these statistics, I would expect that most would be concerned if not horrified. In response to these statistics, Sen. Webb makes the following observation:

“With so many of our citizens in prison compared with the rest of the world, there are only two possibilities: Either we are home to the most evil people on earth or we are doing something different–and vastly counterproductive.”

For regular consumers of the evening news, it may seem that the first possibility could be true. Without fail, the evening news reports stories of violence, vandalism, kidnapping, rape, child molestation, and murder both locally and nationally. There is also no shortage of true crime programs** detailing the most heinous crimes one could imagine being committed against other human beings; it’s all very disturbing. Our jails and prisons surely must be overflowing from these creeps!

One would think that roving bands of murderous thugs are on every street in America, yet we each almost always make it to and from work, to and from running errands and eating out unmolested. Our odds of being killed in an auto accident*** are many times greater than being victim to this roving band of murderous thugs. How can this be?

While we should each be vigilant and aware of our surroundings and always use common sense, the perception that our prisoners are overflowing with mostly violent criminals just isn’t true. Figure 1 shows the U.S. prison population under the purview of the U.S. Bureau of Prisons. The BOP population accounts for 202,493 of America’s 2.3 million prisoners.

Figure 1

Source: Bureau of Prisons as of February 2009

Source: Bureau of Prisons as of February 2009


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Open Thread Question of the Day: How Can We Fix Our Prisons?

Our prison system, holding nearly 25% of the worlds reported prisoners, may seem like an April fool’s joke but certainly is not a laughing matter. I’m in the early stages of writing a post in response to Sen. Jim Webb’s (D-VA) recent article in Parade entitled: Why We Must Fix Our Prisons.

Sen. Webb is looking for some recommendations on how to reform the prison system so I thought it would be interesting to solicit some ideas from readers and fellow Liberty Papers contributors. The following is the specific questions Sen. Webb wants to answer:

I am now introducing legislation that will create a national commission to look at every aspect of our criminal justice system with an eye toward reshaping the process from top to bottom. I believe that it is time to bring together the best minds in America to confer, report, and make specific recommendations about how we can reform the process. This commission will be tasked with giving us clear answers to hard questions, including:

Why are so many Americans currently in prison compared with other countries and our own history?

What is this policy costing our nation, both in tax dollars and in lost opportunities?

How can we reshape our nation’s drug policies?

How can we better diagnose and treat mental illness?

How can we end violence within prisons and increase the quality of prison administrators?

How can we build workable re-entry programs so that our communities can assimilate former offenders and encourage them to become productive citizens?

How can we defend ourselves against the growing scourge of violent, internationally based gang activity?

The more specific your answers, the better. I’ll refrain from posting here as I will answer these questions and more in my upcoming post.

Maryland House Passes Mayor Calvo’s SWAT Bill by 126 to 9 Vote

Despite the objections of the National Tactical Officers Association, the bill championed by Berwyn Heights Mayor Cheye Calvo passed the Maryland House by a wide margin:

Delegates adopted a bill, on a 126 to 9 vote, that would require law enforcement agencies to report every six months on their use of SWAT teams, including what kinds of warrants the teams serve and whether any animals are killed during raids. The bill was prompted by the case of Berwyn Heights Mayor Cheye Calvo, whose two black Labrador retrievers were shot and killed during a botched raid by a Prince George’s County Sheriff’s Office SWAT team in July.

Calvo has said he was surprised to learn that police departments use the heavily armed units far more routinely than they once did but that it is difficult to get reliable statistics about SWAT raids. The Senate has passed a similar measure.

Here’s hoping that the differences in the House and Senate bills are ironed out, that the Governor has the good sense to sign this bill into law, and that the remaining 49 states will soon pass similar legislation.

H/T: Reason Hit & Run

Obama’s Policy to Fight Mexican Drug Cartels is Doomed to Fail

The Obama administration, rather than dealing with the root cause of the violence along the Mexican border, has decided to adopt a policy to deal with the symptoms. The problem is that this policy will neither alleviate the symptoms nor come close to treating the problem.

WASHINGTON – The Obama administration promised Tuesday to help Mexico fight its drug war by cutting off the cartels’ supply of guns and profits, while resisting the Texas governor’s call for a troop surge at the border to ward off spillover violence.

Let’s assume for a moment that Obama’s policy to prevent Mexico bound firearms from leaving the U.S. 100% successful. Given the fact that the drug cartels can acquire firearms from other sources (such as corrupt Mexican government agents with access to firearms among other sources) the only difference would be that the firearms are no longer coming from the U.S.

The Obama administration correctly identifies that the drug cartels are so powerful because of the profitability of the illicit drug trade. It’s this ability to make enormous profits, particularly in an impoverished country as Mexico, that attracts players into the business and makes corruption on the part of government officials almost irresistible. Unfortunately, though the Obama administration has identified the profitability of the drug trade as the source of the drug cartels’ power, there is clearly a profound misunderstanding of the way basic economics work (as if the bailouts, handouts, and myriad of other government programs were not proof enough).

The steps announced by Homeland Security Secretary Janet Napolitano – 450 federal agents shifted to border duty, supplied with dogs trained to detect both drugs and cash, and scanners to check vehicles and railcars heading into Mexico – amount to a subtle but important shift:

The blockade of contraband will now be a two-way effort. The fence begun under the Bush administration will be completed, to deter smugglers of drugs and workers. But the new emphasis will be on disrupting the southbound flow of profits and weapons that fuel the cartels.

At his televised news conference Tuesday, President Barack Obama said that for now, it’s more important to disrupt the cartels’ access to profits and weapons than to fortify the border with soldiers.

“That’s what makes them so dangerous,” he said. “The steps that we’ve taken are designed to make sure that the border communities in the United States are protected and you’re not seeing a spillover of violence. … If the steps that we’ve taken do not get the job done, then we will do more.”

So what’s wrong with this approach? The basic economic law of supply and demand tells us that whenever a product is in high demand (drugs in this case) and the supply is lower (in this case by successful drug interdiction by the U.S. governemnt), those who supply the given demand stand to profit more NOT LESS! Whether Obama’s policy results in a decrease in the supply of drugs of 1% or 99%, those drugs which do make it to the end customer will pay even more to get them.

I would even go as far as to say that the Mexican drug cartels would cheer this policy. Sure, the cartels might have more difficulty moving their product into the U.S. and their profit and firearms out of the U.S. but for the most clever smugglers, these enhanced drug interdiction efforts would filter out the competition! (And we know how black market operators hate competition).

On some level, I do believe that even the political class understand this but somewhere, there is a disconnect. Just yesterday in her visit to Mexico, Secretary of State Hillary Clinton admitted that the war on (some) drugs over the past 30+ years “has not worked.”

“Our insatiable demand for illegal drugs fuels the drug trade.”

And now the disconnect:

“Our inability to prevent weapons from being illegally smuggled across the border to arm these criminals causes the deaths of police officers, soldiers and civilians…”

Mrs. Clinton apparently recognizes how the war on (some) drugs has been an abject failure fails to realize that the Chosen One’s policies will do little to reverse this trend. If she truly wants to do something productive, something has to be done about what she (correctly) describes as this “insatiable demand” for these drugs. She seems to understand that the “Just say No” campaign didn’t work but does she and others within the Obama administration really believe that more drug hysteria PSA’s will do anything to curb this demand?

Given how the Obama administration has decided to deal with the drug war related violence along the border, I’m not optimistic. If spending billions of dollars annually on this insane war on (some) drugs which has contributed to leading the world in the number of people in prison (imprisoning 1 out of every 100 adults; more than half of the U.S. prison population is there because of drug related offenses) has failed to curb the demand, then perhaps it’s time to try a different approach.

Nothing short of legalizing the drug trade will stop the violence, so why does the politicos, law enforcement, and government bureaucrats at almost every level continue the same “get tough” policy which clearly has not worked? The only conclusion I can come to: they must be high.

Abandoning the Rule of Law

The United States is a banana republic. The Jeffersonian ideal of a series of republics built upon enlightenment values of freedom and reason has died. It wasn’t a sudden death, like that which occurs in a car crash; where one can pinpoint to the second where death occurred. Rather it was a slow lingering death, with organ after organ gradually slowing, a long twilight that ended in the dark of a moonless night.

Some would argue that this is a melodramatic claim, made by some bitter conservative in reaction to the evolution of society, the rantings of a “dead-ender” in knee-jerk opposition to the inevitable and gradual improvement of society. We can test whether or not they are right by comparing the principles of a free society to those dominating the U.S. right now.

The Principles of the Rule of Law

First let us examine whether or not we live under a rule of law.

Joseph Raz described the rule of law as possessing the following properties:

  • Laws are prospective rather than retroactive.
  • Laws are stable and not changed too frequently, as lack of awareness of the law prevents one from being guided by it.
  • There are clear rules and procedures for making laws.
  • The independence of the judiciary has to be guaranteed.
  • The principles of natural justice should be observed, particularly those concerning the right to a fair hearing.
  • The courts should have the power to review the way in which the other principles are implemented.
  • The courts should be accessible; no man may be denied justice.
  • The discretion of law enforcement and crime prevention agencies should not be allowed to pervert the law.

Clearly most of these principles are currently violated, blatantly and routinely:

  • The list of retroactive laws are legion.  Two that leap to mind are the new tax on AIG bonuses, and the Lilly Ledbetter Fair Pay act.
  • Anybody who has watched the legislative process in Congress closely would recognize that the laws are not only not stably maintained, but are changing bewilderingly often, with little notice and even less opportunity for people negatively affected by the law to present their case to legislators
  • The rules and procedures for making laws are anything but clear.  Witness this essay on the Master Resource blog concerning how the Federal government is going to establish regulations on CO2.
  • In an era when any prosecutor could indict a ham sandwich and make it stick, the nominal independence of the judiciary is meaningless. Furthermore, many of the judges in the U.S. legal system abrogate their independence routinely, witness the “deference to the executive” given in numerous critical cases concerning the limit of government power
  • The principles of natural justice have been thrown out of the window.  How can people contest the charges against them, if the evidence is kept secret from them and their lawyers?  How can a government that passes laws allowing contracts to be retroactively rewritten and used as the basis of fines claim to respect any natural law? How can a government that denies people the right to publish what they want, to own weapons for their own defense, to enter into contracts with anyone they want lay any claim to respecting natural justice?  How can a person obey the law, when even the legislators and the executive branch are ignorant as to what the law is?  How can asset forfeiture, where people who have not been convicted of any crime have their property seized by the government which then sells it or uses it for its own pleasure, be compatible with any notion of due process?
  • Nor are the courts accessible…  The laws and procedures of the legal system have become so byzantine that only an expert can navigate them.  And, sad to say,  a handful of people have been detained in a manner that was clearly designed to prevent them from reaching any court, and few people in government have protested.
  • There are two ways that law enforcement may abuse their discretion in such a way as to pervert the law.  One is to turn a blind eye to violations of the law, such as that which occurred in the 19th century when a group of white men murdered a black man.  This is out of fashion – with the famous exception of the “blue wall of silence“.  The other is to “charge stack” – to use its powers to detain and investigate to pursue people frivolously and maliciously  despite its foreknowledge that such an investigation would not in fact turn up a serious crime.   This abuse is systemic.  People are over-charged with tens or even hundreds of charges for a single act by prosecutors who hope to coerce a guilty plea out of a defendant facing hundreds of years of jail time. Often the frivolous investigations are directed against the family members or loved ones of the prosecutor’s target. Take the prosecution of Greg Anderson for his refusal to testify against Barry Bonds; prosecutors are investigating family members in an obvious attempt to coerce his testimony.  This is not a new problem, the IRS is notorious for this tactic.

Now that we have established that the rule of law is effectively dead, the next question to ask is whether or not the rule of law is worth defending?  One can even argue that the rule of law is some unrealizable ideal, laws don’t enforce themselves, they are enforced by men.  So why should we bemoan the failure to live up to some unrealizable ideal?  The answer is, of course, that how well the lawmakers, and law enforcers adhere to the principles of the rule of law is a necessary precondition of how wealthy, prosperous, and pleasant a society is.  All of the principles of the rule of law have at their root a governing set of axioms:

  • The law applies to all equally.
  • The law is not capricious – people can know beforehand which actions are lawful and which are not
  • The law is generated in a manner that allows all affected people to have a voice in crafting it, and that it is not produced by a special class of people for their own interests.

You cannot violate Raz’ principles without producing a society that fails to satisfy those axioms.  A society that applies the law differently to different people, or is capricous and unpredictable, where the laws are crafted for the benefit of some at the expense of others is a society that discourages productive activities and encourages predatory activities, one that is on the fast track towards tyranny.

Where to Now?

I am not concerned with pointing the finger of blame at any individuals or classes of people. Nor am I concerned with reestablishing the past. Murray Rothbard famously commented the the rot set in before the Treaty of Paris was signed. L Neil Smith pointed to the convention which wrote the U.S. Constitution as the moment the death began, calling it a coup. It is clear that the death began in the 19th century, and has been accelerating in the 20th. Merely dialing the clock back will not address the root causes of the death.

The root cause of the death is the fact that the vast majority of the U.S. populace is completely ignorant of what the rule of law is, and the dangers that accompany its abandonment.  Too many people are willing to make deals with the devil for their own benefit, or out of a desire to be left alone.  Too many people are interested in short-term gain to recognize how destructive these policies they accept, or even cheer at will be in the coming months.  Convincing them to change their ways is a difficult, and even quite likely an impossible task.

The change that must happen is not simply the election of a different president, or exchanging one political party’s control of Congress for that of another.  It is not a question of impoved ballot access laws.  Nor is it a question of storing a shotgun loaded with deer slugs in one’s closet.

What is required is a divorce.   Seccession.  Emigration.  Passive disobedience.  The construction of alternate institutions that bypass the state.

Such actions come at a price, people lose their income, friends, and even their families’ support.  But, as unprincipled government takes its toll, those losses will become less and less significant for larger numbers of people, and our numbers will grow.  The more the state takes, the more people will resist.  Four hundred years ago, monarchs whose treasuries had been emptied by the religious wars of the Reformation began selling charters to colonies in the New World as a means of raising money.  The flight of people to the New World, and the tax competition it trigerred led to the flowering of liberty and the spread of Enlightenment values.  If we lay the groundwork now, the coming collapse can be turned to our advantage.

I am an anarcho-capitalist living just west of Boston Massachussetts. I am married, have two children, and am trying to start my own computer consulting company.

Quote of the Day II: Gov. Bill Richardson on the Death Penalty

(CNN) — New Mexico Gov. Bill Richardson signed a bill Wednesday repealing the death penalty in his state, his office confirmed.

Regardless of my personal opinion about the death penalty, I do not have confidence in the criminal justice system as it currently operates to be the final arbiter when it comes to who lives and who dies for their crime,” Richardson said in a statement Wednesday.

He noted that more than 130 death row inmates have been exonerated in the past 10 years, including four in New Mexico.

“Faced with the reality that our system for imposing the death penalty can never be perfect, my conscience compels me to replace the death penalty with a solution that keeps society safe,” he said.

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