Category Archives: Human Rights

Rick Santorum Revives The Lincoln-Douglas Debates; Unwittingly Takes Douglas’ Side

Wow… Just, wow. I’ve heard of people taking quotes out of context, but Rick Santorum is treading down a slippery slope that I think even he, as a hardcore social conservative, would find himself quickly uneasy with:

His spokesman Hogan Gidley emails me in response to Mark Miners comments: “Senator Santorum is certainly an advocate for states’ rights, but he believes as Abraham Lincoln – that states do not have the right to legalize moral wrongs. The Senator has been clear and consistent – and he believes that marriage is and can only be: between one man and one woman.”

Now, it’s easy to see where Santorum is coming from — the Lincoln-Douglas debates. Lincoln at the time was arguing, as so many libertarians argue, that there are some rights which are not to be voted on. Popular sovereignty can be good for making some decisions, but that in the case of slavery, it is used to uphold a moral wrong. Infringements upon rights granted by natural law cannot be justified by majority vote:

Lincoln’s strategy was to isolate Douglas’s doctrine of popular sovereignty from the national mainstream as a form of moral dereliction for its indifference to the corrupting effect of slavery in republican society. Douglas insisted that in his official capacity as a United States senator he did not care whether the people in a territory voted slavery up or down. Lincoln admonished: “Any man can say that who does not see anything wrong in slavery, but no man can logically say it who does see a wrong in it; because no man can logically say he don’t care whether a wrong is voted up or voted down.” Douglas argued that the people of a political community, like any individual, had a right to have slaves if they wanted them. Lincoln reasoned: “So they have if it is not a wrong. But if it is a wrong, he cannot say people have a right to do wrong.”

Lincoln and Douglas were coming from different first principles. In fact, the argument is not at all unlike modern arguments about abortion, a point I’ve made before. The question is not whether abortion should be allowed, the question is whether a fetus is inherently “person” enough to have natural rights. If it is, abortion is murder. If it is not, abortion is no different morally from removing a cancerous growth from one’s uterus. Yet both sides constantly talk past each other without acknowledging that they are working from wildly different first principles.

Abraham Lincoln, contrary to what Santorum suggests, is not suggesting that all men must be forcibly stopped by government from engaging in moral wrongs. He explicitly acknoledges the libertarian right of natural law — you can do what you wish with what is yours. You may self-govern; the nanny state is not there to stop you from acting within your personal domain. From his 1854 speech in Peoria, IL (same source link as above, italics original, bold added by me, and one sentence from the original speech inserted into the below passage for continuity):

The South claimed a right of equality with the North in opening national territory to the expansion of slavery. Rejecting the claim, Lincoln denounced slavery as a “monstrous injustice” and a direct contradiction of “the very principles of civil liberty” in the Declaration of Independence. Lincoln said that the right of republican self-government “lies at the foundation of the sense of justice,” both in political communities and in individuals. It meant that “each man should do precisely as he pleases with all that is exclusively his own.” Declared Lincoln: “The doctrine of self-government is right—absolutely and eternally right—but it has no just application” as attempted in the Nebraska Act. Spelling out the natural-law premises of his argument, Lincoln continued: “Or perhaps I should rather say that whether it has just application depends upon whether a negro is not or is a man. If he is not a man, why in that case, he who is a man may, as a matter of self-government, do just as he pleases with him. But if the negro is a man, is it not to that extent, a total destruction of self-government, to say that he too shall not govern himself? When the white man governs himself that is self-government; but when he governs himself, and also governs another man, that is more than self-government—that is despotism.” Recurring to the nation’s founding principles, Lincoln summarized: “If the negro is a man, why then my ancient faith teaches me that ‘all men are created equal'; and that there can be no more moral right in connection with one man’s making a slave of another.”

Note my bolded portion on self-government. It seems that Abraham Lincoln and Rick Santorum have some agreement that a state cannot legalize a moral wrong — they merely happen to have WILDLY different definitions of what constitutes a moral wrong.

Abraham Lincoln is following the traditions of natural law and natural rights. Each man is his own, and barring his attempts to coerce others to do his bidding, he should have freedom to operate as he sees fit. Slavery is an attempt to coerce others to do his bidding, and therefore it is an abhorrent moral wrong that has no place in a free society.

Rick Santorum is following a different tradition, one that states that man is NOT his own, and should forcibly be stopped from operating in his own domain if his actions violate no ones natural rights, but violate Santorum’s own sensibilities. If two members of the same sex, wholly consensually and within the bounds of their natural rights, want to engage in a right of contract such that they bound themselves together for all the legal purposes we generally associate with marriage, they must be barred from doing so. This consensual and voluntary action must not be permitted!

Abraham Lincoln says that the government must not condone the violation of one man’s natural rights by another, and that democracy is not an adequate justification for doing so. Rick Santorum says that government must be in the job of actively violating those natural rights, even if the people of a territory choose to vote to recognize those rights! Abraham Lincoln says that slavery is wrong because it takes away the right of self-government; Rick Santorum says that we must all be slaves of the state, because he doesn’t like what we choose to do with our freedom.

Abraham Lincoln decries a situation which denies the equality before the law of human beings; Rick Santorum claims the mantle of Abraham Lincoln while cheering laws that deny that equality! In doing so, Rick Santorum misses the irony: he’s replaying the Lincoln-Douglas debates in modern times, but he doesn’t realize that he’s taking Douglas’ side, not Lincoln’s.

With Less than 24 Hours Remaining Before the Execution, Doubts Persist About the Guilt; Innocence of Troy Davis

Despite seven of nine eyewitnesses recanting their testimony, the failure to find the murder weapon, DNA or other forensic evidence, and despite jurors from the original trial who say they would not sentence Troy Davis to death if they had it to do over again, the State of Georgia will execute Troy Davis for the murder of Mark MacPhail on September 21, 2011.

As I have pointed out before, eyewitness misidentification is a leading cause for wrongful convictions. The New Jersey Supreme Court has even gone as far as requiring that jury instructions advise the jury of the human fallibility of memory based on roughly thirty years of research.

Besides the eyewitness testimony the other evidence linking Davis to the murder were shell casings found at the scene that linked Davis to another shooting for which he was convicted. The problem is apparently, ballistics evidence isn’t all it’s cracked up to be either. It’s certainly by no means as solid as DNA evidence.

As someone who is opposed to the death penalty on principle, I believe that Troy Davis’s sentence should be commuted to life. The fact that seven witnesses recanted their testimonies is very troublesome whether they were mistaken the first time or coerced to give the testimony the police and prosecution wanted to hear.

But is this enough to say that Troy Davis is innocent of this horrible crime? As much as I would like to say yes, I’m afraid the answer is no.

Proving someone guilty beyond a reasonable doubt and proving someone innocent are two very different things. Once someone is found guilty, the burden of proof is shifted from the state to the convicted (i.e. no longer innocent until proven guilty but rather guilty until proven innocent). While it is disturbing that, for one reason or another, seven witnesses recanted their testimony the fact remains that two did not. Whether or not Davis could have been convicted on the strength of two witnesses rather than nine is impossible to say.

The shell casings in of themselves are circumstantial as is the testimony of the remaining two witnesses. However, when enough circumstantial evidence is put together, reasonable doubt gets less and less reasonable even to someone like me who would enter the jury box very skeptical of the state’s case (though I’m not certain that this would be enough in this case).

And what about the jurors who changed their minds about voting for the death sentence? Those who wish to see the execution carried out might suggest that these jurors could have been pressured (along with the witnesses perhaps) by anti-death penalty activists and/or Davis’s lawyers. As much as I hate to admit it, they would have a valid point. It’s not difficult to imagine a juror having second thoughts about condemning a man to die – guilty or not.

If you asked me, failure to meet the burden of proof of actual innocence notwithstanding, “do I personally believe that Troy Davis is guilty of murdering Mark MacPhail?” my answer would be simply “I don’t know.”

And I really don’t know and I don’t believe my friends in the anti-death penalty movement know either.

This is why I would not be comfortable holding a sign saying “Troy Davis is Innocent” or wearing the t-shirt that some are wearing at the protest which read “I am Troy Davis.”

I will gladly sign the petitions to whomever to have the sentence commuted on basic principle but I am by no means willing to say that Troy Davis is innocent of this crime. To my fellow travelers who oppose the death penalty on principle, I urge caution on this one as to arguing Davis is innocent.

I don’t know if Davis committed the murder or not but neither do those who insist that Troy Davis must die tomorrow. All the more reason why the execution should be cancelled and the sentence commuted.

An Innocent Man Was Probably Executed on Gov. Rick Perry’s Watch…Not That Anyone Cares

Is it possible that the G.O.P would nominate and/or the American people would elect for president a man who as governor more likely than not executed an innocent man?

An even more disturbing question would be: Could Gov. Rick Perry be elected president despite his efforts to keep investigators from learning the truth about the Cameron Todd Willingham case both before and after Willingham’s execution?

It seems we will have an answer to these questions in the 2012 campaign.

Apparently, these questions were not of much concern among Texans. According to a recent Politico article written by Alexander Burns and Maggie Haberman, Sen. Kay Bailey Hutchison who ran against Perry in the gubernatorial primary in the 2010 campaign asked focus groups what they thought about the idea that an innocent man may have been executed on Gov. Perry’s watch. For the most part, the question was a non-issue. According to several (unnamed) former Hutchison staffers, they quoted one individual as saying “It takes balls to execute an innocent man.”

Of course Gov. Perry continues to insist that Willingham was guilty of setting the fire that killed his three girls even though nine independent leading fire experts who have since reviewed the case all say the prosecution’s expert relied on science that has since been discredited.

Gov. RICK PERRY (R), Texas: This is a guy on his- on- in the death chamber, his last breath, he spews an obscenity-laced triad [sic] against his wife. That’s the person who we’re talking about here. And getting all tied up in the process here is, frankly, a deflection of what people across this state and this country need to be looking at. This was a bad man.

These are Willingham’s last words Gov. Perry was referring to:

No question, the words that Willingham directed at his wife are pretty rough. Willingham could have taken the high road but he didn’t. A bad man? Maybe. But to suggest that because Willingham’s last statement, which I agree is obscene and arguably low class, somehow “proves” that he killed his own children tells me that the Texas governor has a very low standard of proof.

Willingham’s spouse believed in his innocence in the beginning but as the execution date drew nearer, she changed her mind and made statements in the media that she believed he was guilty. How many men, innocent or not, in a similar situation would feel betrayed say something similar?

At Gov. Perry’s first debate appearance at the Ronald Reagan Presidential Library, when challenged about his executive order that would have required girls age 12 and over to get the HPV vaccine, he said that the way he went about it was wrong but explained that he was concerned about these young girls getting a deadly cancer. He “errs on the side of life,” a statement I couldn’t believe he could actually say with a straight face given his unwillingness to err on the side of life with regard to capital punishment.

Toward the end of the debate, Brian Williams asks Gov. Perry the following:

Governor Perry, a question about Texas. Your state has executed 234 death row inmates, more than any other governor in modern times. [Applause] Have you struggled to sleep at night with the idea that any one of those might have been innocent?

Gov. Perry responds:

No, sir. I’ve never struggled with that at all. The state of Texas has a very thoughtful, a very clear process in place of which—when someone commits the most heinous of crimes against our citizens, they get a fair hearing, they go through an appellate process, they go up to the Supreme Court of the United States, if that’s required.

Never struggled with the thought that there’s even the slightest possibility that an innocent man has been executed on his watch at all? The fact that five men who were once on death row who were exonerated on his watch doesn’t give Gov. Perry even a little pause? Five men who would have been executed had Gov. Perry had his way? And even after the recent revelation via exculpatory DNA evidence that an innocent man, Claude Jones was executed just before Gov. George W. Bush handed the governorship to Perry and ascended to the presidency?

If Gov. Perry is so certain of the guilt of every single individual who has been executed on his watch, why does he continue to stymie investigations into the Willingham case? Perhaps even more importantly, why does Gov. Perry continue to block efforts to allow Hank Skinner to have DNA testing which would determine once and for all if Skinner is the murderer Gov. Perry thinks he is before executing him this coming November?

What is Gov. Perry so afraid of?

Gov. Perry would have us believe that the “very clear process” in Texas is so perfect that there is just no way that a wrongfully convicted person could be executed. He is either in denial or doesn’t care if the occasional innocent person is killed by the state (and even if Willingham wasn’t a murderer, he was still “a bad man” so who cares right?). The death penalty is just the sort of a punishment that neither Gov. Perry nor the State of Texas can live without. Judging by the thunderous applause at the very mention of Texas’ 234 executions at the Reagan Library, sadly Gov. Perry is hardly alone in a Republican Party where the majority of its members ironically and hypocritically call themselves “pro-life.”

5 New Orleans Cops Convicted on 25 Counts in Post-Katrina Shootings

A new chapter in one of the more disturbing occurrences following hurricane Katrina came to a close today in a jury verdict that found 5 New Orleans cops guilty on 25 counts.

The AP reports (via The Houston Chronicle):

NEW ORLEANS — A federal jury on Friday convicted five current or former New Orleans police officers of civil rights violations in one of the lowest moments for city police in the chaotic aftermath of Hurricane Katrina: the shooting deaths of a teenager and a mentally disabled man as they crossed a bridge in search of food and help.

[…]

Sgts. Robert Gisevius and Kenneth Bowen, Officer Anthony Villavaso and former officer Robert Faulcon were convicted of civil rights violations in the shootings that killed two people and wounded four others on the Danziger Bridge less than a week after the storm. They face possible life prison sentences.

Retired Sgt. Arthur “Archie” Kaufman and the other four men also were convicted of engaging in a brazen cover-up that included a planted gun, fabricated witnesses and falsified reports. The five men were convicted of all 25 counts they faced.

[…]

Faulcon was found guilty of fatally shooting Ronald Madison, a 40-year-old mentally disabled man, but the jury decided his killing didn’t amount to murder. Faulcon, Gisevius, Bowen and Villavaso were convicted in the death of 17-year-old James Brissette. Jurors didn’t have to decide whether Brissette was murdered because they didn’t hold any of the defendants individually responsible for causing his death.

The documentary series Frontline had an investigative report on this case entitled “Law & Disorder” (episode below).

Watch the full episode. See more FRONTLINE.

Does Gay Marriage Imperil Free Speech?

One would think that one has very little to do with the other. That is, unless one is Gary Bauer, who seems to be taking a tactic I’ve seen too often out of leftists suggesting that if someone in the private sector wants to fire you for saying something bigoted, that it’s an assault on your freedom of speech.

Recently, Frank Turek, an employee for computer networking firm Cisco Systems, was fired for authoring a book titled “Correct, not Politically Correct: How Same-Sex Marriage Hurts Everyone.” Turek had a stellar work record and never talked about his religious or political views on the job.

But after a homosexual manager at Cisco Googled Turek’s name, learned about his views and complained to a human resources professional at Cisco, Turek was immediately fired.

Also recently, Canadian sportscaster Damian Goddard was fired for declaring his opposition to gay marriage. Rogers Communications fired Goddard after he tweeted his support for Todd Reynolds, a hockey agent, who had earlier voiced his opposition to the activism of Sean Avery , a New York Rangers player who was part of the New Yorkers for Marriage Equality campaign in the lead-up to the same-sex marriage vote in the New York State Legislature.

Now, I don’t know the workplace policies of either corporation, but I would assume that in the first case, Turek violated some section of his employment contract with Cisco. I might call that an overreaction, but I wouldn’t call it a violation of his freedom of speech. It was, rather, an exercise in freedom of association (or, in this case, disassociation). The second case, the sportscaster is a public figure, and I think it’s quite likely that Rogers Communications might believe that his thoughts on gay marriage would impact ratings or the bottom line.

Should either corporation be forced to retain an employee that publicly espouses values — values that I’d call bigoted — inconsistent with those of the corporation? Cisco is a multinational company with highly diverse employees, and it’s quite possible that someone hired to put together leadership seminars [as Kurek was] may not be seen as a leader himself if he publicly advocates legal oppression against people who he is to lead.

But let’s take it a step farther. Let’s assume instead that either Kurek or Goddard were advocating against interracial marriage. Let’s say that Kurek was writing books claiming interracial marriage hurts families, and that the races shouldn’t mix. After all, many of the arguments at the time of Loving v. Virginia were based on religious beliefs. Would Gary Bauer be defending either? I fail to see any difference in principle here — in both cases, one would be arguing against legal equality based upon one owns religious convictions of what defines a proper marriage. And in both cases, the issue at hand LEGALLY [not morally] is whether the state can withhold access to a LEGAL CONTRACT between two adults.

Bauer continues with a slightly more thorny issue:

Same-sex marriage is already having a chilling effect on religious freedom. In states that have legalized civil unions or gay marriage, Catholic adoption agencies have been shuttered or lost their tax-exempt status for refusing to let gay couples adopt children.

Last week in Illinois, Gov. Pat Quinn affirmed a decision by the Illinois Department of Children and Family Services not to renew adoption contracts with Catholic Charities for the same reason because of the state’s law recognizing same-sex civil unions.

This seems like outright state hostility to religion, when viewed through Gary Bauer’s eyes. However, from a legal perspective, the 14th amendment demands equality before the law. If gay marriage is legal, then gays should be allowed the same rights as straights when it comes to adoption. And if an agency looking to work with the state on adoptions refuses to comply with equal protection clauses, those agencies should not get state funding.

Again, this can be greatly simplified if we refer back to other cases of equality before the law. Should adoption agencies be free to take state funds and refuse to allow interracial straight couples to adopt? Should state charter school funds be given to schools which admit white and asian students, but bar blacks and hispanics? The state itself is barred from discrimination in most cases, and while some wholly private organizations can discriminate, state adoption contracts and state school funding are most certainly not wholly private. If a religion wants to work WITH the government, they have to do so on the government’s terms.

I would think that if the arguments were advanced today, Gary Bauer would call the person advocating against interracial marriage a bigot. I think if someone were arguing for re-segregating the schools, Gary Bauer would call that person a bigot. A Gary Bauer of 50 years ago, I’m not so sure.

Of course, a Gary Bauer of only 3 years ago might give us a different tone:

Last week, a few days before Pope Benedict XVI’s visit to America, TV talk show host Bill Maher went on a profanity-laden tirade against the Pope and the Catholic Church. On his HBO Real Time program, Maher claimed that the Pope “used to be a Nazi,” and called the Catholic Church a “child-abusing religious cult” and “the Bear Stearns of organized pedophilia.”

The result: (Cue sound of crickets chirping.)

Maher believes he can get away with such overt bigotry under the pretext of “creative license.” As Maher said in his non-apology apology: “Now first of all, it was a joke, during a comedic context…”

And when the Catholic League confronted HBO about why it continues to give Maher airtime, the station insisted that his anti-Catholicism was a matter of “creative freedom.” Needless to say, such “creative freedom” would not be extended to those who make racist, anti-gay or anti-Muslim remarks. Ask Don Imus.

Based on a *very* charitable reading of that op-ed, one can potentially infer that Bauer things nobody should be fired for bigoted remarks, and that he’s merely upset at the double standard of the left. It seems, based on my reading of his article, that his concern with the double standard is that Bill Maher isn’t punished, not that right-wingers who make bigoted statements are.

Gary Bauer is not fighting for religious freedom, he’s fighting for the right to espouse bigoted politics with no social cost. Sorry, Gary, that’s just not how it works. You might not think that treating gays like they’re not worthy of the same legal rights is bigotry, but I’m afraid that an ever-growing portion of the country disagrees with you on that. If we call you on it, that doesn’t mean you’ve lost your right to free speech. It means we think you’re a bigot.

Kevin Drum’s Guest Bloggers Upholding The [ahem] Fine Standards He Has Created There

Kevin Drum is on vacation this week. While I thought that might leave me without boneheaded material to criticize, I’m afraid he’s found guest bloggers as credible and clueless as himself. Today we have Andy Kroll, who wants to delve into meta-debates about rights and entitlements with Wisconsin Gov. Scott Walker:

But the statement that really jumped out from Walker’s interview is his own perception of the bargaining fight:

“They defined it as a rights issue. It’s not a rights issue. It’s an expensive entitlement.”

What’s his first step to show how wrong Walker is? Well, he skips right to the United Nations, a body whose Declaration of Human Rights clearly states that you can use your rights as long as you don’t do so in a way “contrary to the purposes and principles of the United Nations” (Art. 29, Sec 3). He starts there and follows on with a lot of other legally-created privileges that he calls rights:

Hmm. I’m pretty sure the Universal Declaration of Human Rights, passed by the UN after World War II (and drafted and adopted by the US), says that collective bargaining is in fact a human right. Oh, yes, there it is, in Article 23 of the Universal Declaration:

4. Everyone has the right to form and to join trade unions for the protection of his interests.

Then there’s the National Labor Relations Act (NLRA) here in the US, which “explicitly grants employees the right to collectively bargain and join trade unions,” according to the scholars at Cornell University Law School. Or as the National Labor Relations Board’s website puts it, the NLRA “protects employees’ rights to act together, with or without a union, to improve working terms and conditions, including wages and benefits.”

All of this analysis has one critical flaw: it doesn’t properly recognize that there are multiple kinds of rights, and that a right which the government shall not deny is, well, slightly different than one that it grants. I left the below in a comment to that Kroll’s post at the original site:

Are you even familiar with the distinction between “negative rights” and “positive rights”?

Negative rights are rights that you have unless someone else infringes upon them. You have a right to life, but not to force others to produce the food and shelter you need to live. You have the right to freedom of speech, but not the right to force anyone to listen (or, in the case of blogging, to force a blog to print your comments to a post). A right to healthcare or education — if you define it as me not being stopped by government or highway robbers from freely purchasing health or education services on an open market from a willing seller — is a negative right.

Positive rights are rights that require someone else to procure them to you. A right to healthcare — if you assume that those who can’t afford care should be covered by “society” — is a positive right. A right to an education — if you assume it should be paid for by government taxes — is a positive right. A right to food — if you define it as foodstamps for the indigent — is a positive right. *ALL* positive rights can be described as “entitlements”, as they’re what we as a society might define all people are entitled to be provided to them if they cannot do it themselves.

A “right” to organizing a union is a positive right (inasmuch as it restricts and employer’s ability to fire people for trying to exercise it). If we so choose, in our democratic society, that people should be allowed to unionize to counterbalance what may be perceived as in unfair labor advantage to the employer, we can call it a “right” all we want, but it’s a positive right, not a negative right. As such, calling it an “expensive entitlement” doesn’t seem all that out of the ordinary. I don’t see any real disconnect in what Walker said.

Now, I was a bit unclear in that final paragraph. What I intended to say was this: The right to form a union is a negative right. It is inherent in the right to freedom of association. The right to collective bargaining is a negative right. It is inherent in the right to freedom of speech. As you point out (and as I intended to), it becomes a positive right when we write laws or regulations forcing businesses to the other side of the table. Forcing an employer to actually deal with them on those collective terms is the “entitlement” of that positive right.

Andy Kroll waded into deep water here, and it’s clear he didn’t want to recognize that. It’s also potentially true that Gov. Walker did the same — the original linked article doesn’t make clear whether Walker’s statement about entitlement had deeper context. Kroll is trying to use one line from an already snipped interview to make Gov. Walker sound like a simpleton who doesn’t understand the nature of rights. In doing so, Kroll only proves that to be the case about himself.

Last Call to Meet Our $500 Goal/Life After Exoneration

Disclaimer: The views expressed here at The Liberty Papers either by the post authors or views found in the comments section do not necessarily reflect the views of The Innocence Project nor its affiliates.

In support of our fundraising efforts for The Innocence Project, I had tried to dedicate at least one post per week over the last four weeks to the cause of criminal justice reform – many of which are the very reforms The Innocence Project are working to bring about. With today being the last day of this fundraising campaign, 228 “Innocence Partners” combined efforts has raised nearly $15,000 of the $20,000 target. As of this writing, you readers have already donated $375 – 75% of our $500 goal! Thanks to everyone who has donated so far or plans to donate. Remember: your donations are 100% tax deductible.

Believe it or not, in the time we joined this campaign nearly a month ago to help The Innocence Project, 2 individuals have been exonerated as a direct result of The Innocence Project’s help!

In case you are wondering what $20,000 can accomplish (the overall campaign’s goal), this is how far The Innocence Project says the money can go:

• Pay for post-conviction DNA testing that may prove innocence for 4 clients.

• Provide 16 exonerees with basic needs including food, rent, and transportation for the first month after release.

• Cover the costs to send 20 exonerees to testify before state legislatures to reform the criminal justice system.

• Send 25 local advocates to an Innocence Project training to learn how to advance wrongful conviction reforms in their state.

• Allow a staff attorney to represent 5 clients.

• Enable staff to advocate for wrongful conviction reforms in 6 states.

In this series of posts, I covered some of the reforms and issues The Innocence Project has been trying to bring to light such as compensation for the wrongfully convicted, eyewitness misidentification, and false confessions. Rather than doing a rush job writing a final piece for the series, I encourage everyone to follow this link for the Frontline episode entitled “Burden of Innocence” (I couldn’t find a nifty player to embed the episode into this post but you can watch the episode in its entirety there). This episode deals with life after these individuals have been exonerated and their struggles to reenter and rejoin free society. It seems that there is much work that needs to be done here as well.

You Would Never Confess to a Crime You Did Not Commit? Don’t Be So Sure

Disclaimer: The views expressed here at The Liberty Papers either by the post authors or views found in the comments section do not necessarily reflect the views of The Innocence Project nor its affiliates.

In support of our fundraising efforts for The Innocence Project, I have decided to dedicate at least one post per week over the next four weeks to the cause of criminal justice reform – many of which are the very reforms The Innocence Project are working to bring about. With just 2 weeks left of this fundraising campaign, 208 “Innocence Partners” combined efforts has raised over $10,000 of the $20,000 target. As of this writing, you readers have already donated $375 – 75% of our $500 goal! Thanks to everyone who has donated so far or plans to donate. Remember: your donations are 100% tax deductible.

One more brief note before I get into this post’s topic of false confessions. Just three days ago, Thomas Haynesworth became The Innocence Projects’ 267th exoneree and was released from prison after serving 27 years for three rapes that DNA tests and other evidence prove he did not commit (well, technically he was paroled; The Innocence Project is now trying to have his conviction overturned via the Virginia Court of Appeals or by a pardon from the governor who says he will consider pardoning Haynesworth).

False Confessions

A skilled interrogator knows all sorts of ways to persuade individuals guilty of committing a crime to confess. The problem is, the same interrogator’s methods can often persuade individuals who are innocent to confess as well.

But why would an innocent person confess to crimes as serious as rape and murder, you ask? This is some of what The Innocence Project has learned:

In about 25% of DNA exoneration cases, innocent defendants made incriminating statements, delivered outright confessions or pled guilty.

These cases show that confessions are not always prompted by internal knowledge or actual guilt, but are sometimes motivated by external influences.

Why do innocent people confess?
A variety of factors can contribute to a false confession during a police interrogation. Many cases have included a combination of several of these causes. They include:

•duress
•coercion
•intoxication
•diminished capacity
•mental impairment
•ignorance of the law
•fear of violence
•the actual infliction of harm
•the threat of a harsh sentence
•Misunderstanding the situation

The documentary series Frontline episode “The Confessions” (below) profiles a case where eight individuals were charged in large part due to five confessions for a rape and murder of a Norfolk, Virginia woman. Only one of the five confessions turned out to be true and the actual perpetrator admitted he acted alone.

Watch the full episode. See more FRONTLINE.

How can false confessions be minimized? One common sense reform The Innocence Project is pushing is simply passing laws which would require all interrogations to be recorded. If the men in the above case had their confessions recorded, the interrogators wouldn’t have the ability to have each rehearse their confessions until it fit with their theory. Every lie and every threat by the interrogators would be replayed for the jury to hear. Only then could the jury have a more complete context of the interrogation.

Additional Thoughts on Recording Interactions with the Police

In response to the above post, Tom Knighton made some very good points in a blog post of his own regarding mandatory recording of interrogations that bear repeating here:

Littau suggests simply recording interrogations as a tool for preventing false confessions as the jury would hear the whole situation and perhaps make up their own minds regarding the so-called confession. I’m going to go so far as to suggest this as a tool for protecting law enforcement officers, as well as suspects. Recorded interrogations can also tell that an officer didn’t coerce a confession, assault a suspect, or anything else they may be accused of.

Transparency is always preferable to non-transparency when it comes to government, even in the law enforcement sector. By recording interviews, an agency opens a window on the process and protects everyone involved.

As the old saying goes, there’s three sides to every story. In the criminal justice system there’s the suspect’s side, the state’s side (or referred sometimes to as “the people’s” side), and the truth. Recording all interactions between the police and the suspect provides something very close to the truth (I say close because even video evidence can be limiting due to a variety of factors).

Really I think that all police interactions should be required by law to be recorded if the person doesn’t have access to a lawyer at that particular moment (and even then, the interaction should be recorded unless the lawyer wishes otherwise). Every police stop, every search warrant, and every raid on a person’s home should be fully* recorded; resulting video should be kept unedited** so both sides can examine the evidence fairly.

Of course, this all assumes that the purpose of our criminal justice system is to get to the truth.

*In the case of police raids, something that Radley Balko advocates (which I agree with fully) is that every SWAT or police officer who takes part in a raid should be required to have a camera mounted on his/her person – preferably helmet mounted. This would present the events how they happened from multiple points-of-view.

**Editing, destroying, or omitting such a video should be considered a crime akin to any other tampering or destruction of evidence.

Exonerated After 18 Years on Death Row, Anthony Graves Will Not Be Compensated on a Legal Technicality

Anthony Graves, the 12th death row inmate to be exonerated in Texas, will not receive his $1.4 million compensation for serving 18 years in prison for a crime he did not commit. The sum of $1.4 million might sound like a lot of money until one considers all the years of lost income potential, time pursuing his dreams, time with family and friends, and basically enjoying the everyday freedoms most of us take for granted. When considering what Anthony Graves has lost, $1.4 million is a mere pittance of what he deserves and an insult to any notion of justice.

But Anthony Graves will not get $1.4 million pittance from the State of Texas despite this injustice.

Why?

The Texas Comptroller’s office’s rationale is that the phrase “actual innocence” is nowhere to be found in the judge’s ruling that set Graves free. Apparently, none of the other combinations of words to which most reasonable people would reach that very conclusion in the judge’s ruling doesn’t matter. As Donald Pennington put it writing for Yahoo! News, Anthony Graves has been “Twice Robbed by the State of Texas.”

Pennington writes:

Why weren’t state employees, such as the prosecutor, as adamant about following the rules when they were trying the case? It was discovered by the 5th US Circuit Court of Appeals in 2006 that prosecutors had withheld evidence and elicited false testimony in their case against Anthony Graves from 1994. If the “rule of law” is so important to these sorts of bureaucrats, why are those rules so subjectively applied?

For that matter, when prosecutors commit these sorts of abuses, why aren’t they brought up on charges? Isn’t this sort of case a perfect example of unlawful imprisonment, kidnapping, and felony conspiracy? Since Anthony Graves was, in fact, on death row for something he did not do, shouldn’t those people working in the prosecutor’s office (at the time) be charged with attempted murder?

I couldn’t agree more with Pennington’s sentiments here. Why can’t the prosecutor and those working for him be charged with these above crimes? I imagine that if prosecutors were actually held criminally responsible for what would be crimes if committed by anyone else, we might then (finally) hear some talk of reforming the system. Let one prosecutor receive a death sentence for falsely putting someone else on death row, just one…

Back to First Principles: An Excellent Primer on the Rights of Life, Liberty, and Property

In beginning the 112th Congress, House members took turns reading the Constitution aloud to a nearly empty chamber. While I in some ways appreciate members at least uttering the words, I believe that the members would have been better served not by merely reciting the words but by studying the philosophical roots of the Constitution, particularly the Bill of Rights. This two part video does an excellent job explaining the meaning of the Bill of Rights as the document related to the times it was written as well as how it continues to aid us in the difficult times we currently live.

Part 1 deals with the philosophical foundations that came out of the Age of Enlightenment.

Part 2 explains the reasoning behind each of the ten amendments we call the Bill of Rights

As the narrator went through each of the amendments, I couldn’t help but think of the many instances where these very rights have been violated and continue to be violated by federal, state, and local governments throughout the country. For those of you who want to really know what we are about and the larger liberty/small government movement is all about, these are the very principles we are trying to restore. These are our guiding principles.

If ever you are perplexed by a position that we write about be it our opposition to the war on (some) drugs, opposition to conscription, support for sound money, support for the right to bear arms, opposition to ObamaCare, opposition to the so-called Patriot Act, etc. , you might find it helpful to refer back to these first principles.

I would like to encourage others to share these videos because I would like to see these videos go viral to remind our friends on the Left, the Right, and the middle about why these rights are so important and worth fighting for.

Related: The Philosophy of Life, Liberty, and Property Explained

Open Thread: Successes and Setbacks for Liberty in 2010/Hopes for 2011

Was 2010 a good year or bad year for liberty and why? Like most of you will likely respond, 2010 was very much a mixed bag IMHO.

On the positive side, the mandate section of ObamaCare was found unconstitutional, the military’s “Don’t Ask, Don’t Tell” policy was repealed, Wikileaks exposed the federal government for the corrupt organization it is, the Democrats took a beating on election day, and the Bush era tax cuts were extended (though with the return of the death tax, extension of unemployment benefits, and other compromises in the bill, I’m not yet sure if this was a good or bad thing).

On the other hand, Republicans gained ground on election day (I’m not optimistic that they have changed much since the last time they ran things), the vast majority of incumbents in both parties were easily reelected, government spending is way out of control, the Fed wants to pump some $600 billion into the economy by printing more counterfeit money, unconstitutional invasive searches continue to take place at airports in the name of safety, both Democrat and Republican politicians consider Wikileaks to be a “terrorist” organization, and President Obama believes he can assassinate American citizens where they stand with no due process whatsoever.

On the criminal justice front, The Innocence Network (part of The Innocence Project) exonerated 29 individuals in 2010 for crimes they did not commit. Back in March, Hank Skinner came within an hour of being executed when SCOTUS halted the process. Skinner’s case continues to wind its way through the courts. In other death penalty news of 2010, Kevin Keith’s death sentence was commuted to life by Gov. Strickland, Anthony Graves became the 12th death row inmate to be exonerated in Texas, a key DNA sample was determined to not be a match for another Texas man, Claude Jones who was executed in 2000, and Texas continues to stonewall inquiries into the likely wrongful 2004 execution of Cameron Todd Willingham. As these questionable death penalty cases pile up, hopefully this will be the beginning of the end of the death penalty in Texas and elsewhere.

In a couple of other cases we never quite got around to at The Liberty Papers but deserve to be mentioned: Cory Maye was granted a new trial by the Mississippi Supreme Court because the trial judge failed to give jury instructions to consider a “defense of others” defense and in Arkansas, the Arkansas Supreme Court ordered a new hearing for the so-called “West Memphis 3” to consider newly discovered DNA evidence and juror misconduct from the original trial (if you are not familiar with this case, I urge you to follow this link as a starting point. The more I have looked into this case the more disturbing I find it to be…a perfect example of what is so terribly wrong with the system).

Hopes for 2011
Rather than offering predictions for 2011, here are some of my hopes:

– I hope that the justice will be served in the above cases.

-I hope I am wrong about the Tea Party Republicans and that they will actually be a force of positive change for more liberty and smaller government

-I hope that Ron Paul decides not to run for president for the 2012 campaign but instead puts his support behind former New Mexico Gov. Gary Johnson (I’ll get into my reasoning in a future post).

-I hope by this time next year, I’ll have far more successes than setbacks for liberty to report.

Now it’s your turn. How do you feel about the state of liberty in 2010 and how do you feel about the year ahead?

ACTION ALERT: Call/Write NJ Gov. Christie and Tell him to Pardon Brian Aitken

For those of you who are unfamiliar with this case involving a lawful gun owner being caught in the snare of New Jersey’s strict gun control laws, here’s a summary of what happened:

On January 2, 2009 Brian was arrested for illegal possession of firearms while moving from one residence from another. All of the firearms were legally owned—Brian passed three different FBI background checks to purchase and had even cleared an FBI screening for employment as a data researcher handling confidential information for a banking security software firm. His integrity, character, and right to own was not in question…so what was?

New Jersey statutes make it illegal for anyone without a concealed carry permit to possess a firearm even if it’s otherwise lawfully owned. The only way to lawfully possess firearms in New Jersey is through exemptions to the law like driving to and from a shooting range or moving residences. However, as they are exemptions from the law they must be raised during trial therefore removing the presumption of innocence for the charge of possession.

[…]

Several witnesses, including the arresting officer, testified that not only did Brian have multiple residences but that his car was packed with his personal belongings–so much so that it took the police 2 hours and 39 minutes before they found Brian’s guns locked and unloaded in the trunk of his car, exactly as NJ law dictates. Brian knew this because only days earlier he had found out through the NJ state police how to legally transport his firearms in NJ. The officers, believing Brian had done nothing wrong, then offered to leave the firearms at his parents’ house, but when they wouldn’t fit in his father’s safe the supervising officer decided to arrest him instead.

[…]

During the trial it became clear to everyone in the courtroom that Brian fit the exemptions of the law for moving between residences. However, the judge withheld the law from the jury, thereby ensuring a guilty verdict. Regardless, the jury returned from deliberation three times specifically requesting to be read the exemptions of the law. One can only assume that this was so they could find Brian not guilty. The judge and the prosecutor made it clear that they had no intention of allowing Brian to walk out an innocent man. They were more interested in a guilty verdict than truth and justice.

It seems pretty clear to me that the judge (who was not reappointed by Gov. Christie) and prosecutor want to make an example of Mr. Aitken. By all accounts, Aitken went out of his way to obey New Jersey’s absurd anti-gun laws but somehow finds himself serving 7 years in state prison.

There is a very good possibility that Gov. Christie (R) will pardon Aitken as Christie seems to be sympathetic in this case. He’s already getting quite a flood of messages into his office to do the right thing but I believe we should join in and encourage even more to do the same.

Call Gov. Christie at 609-292-6000 and politely leave a message to set Brian Aitken free so that he can spend his Christmas with his family instead of behind bars.

You can also join “Free Brian Aitken” on Facebook. Go here for additional details.

***UPDATE***

I’m very pleased to announce that this action alert can be cancelled: Gov. Christie has commuted Aitken’s sentence to time served. Go here to read my update on the case.

Thanks to all who participated in this action alert.

TSA Update: More Strip and Grope, Opponents are “Domestic Extremists”

Strip and grope to come to boats, trains, and more?

“[Terrorists] are going to continue to probe the system and try to find a way through,” Napolitano said in an interview that aired Monday night on “Charlie Rose.”

“I think the tighter we get on aviation, we have to also be thinking now about going on to mass transit or to trains or maritime. So, what do we need to be doing to strengthen our protections there?”

Opponent’s of strip and grope are “domestic extremists”:

Following the publication of my article titled “Gate Rape of America,” I was contacted by a source within the DHS who is troubled by the terminology and content of an internal memo reportedly issued yesterday at the hand of DHS Secretary Janet Napolitano. Indeed, both the terminology and content contained in the document are troubling. The dissemination of the document itself is restricted by virtue of its classification, which prohibits any manner of public release. While the document cannot be posted or published, the more salient points are revealed here.

[…]

The terminology contained within the reported memo is indeed troubling. It labels any person who “interferes” with TSA airport security screening procedure protocol and operations by actively objecting to the established screening process, “including but not limited to the anticipated national opt-out day” as a “domestic extremist.” The label is then broadened to include “any person, group or alternative media source” that actively objects to, causes others to object to, supports and/or elicits support for anyone who engages in such travel disruptions at U.S. airports in response to the enhanced security procedures.

Fabulous, now I’m a domestic extremist. Well, as Barry Goldwater said: “I would remind you that extremism in the defense of liberty is no vice! And let me remind you also that moderation in the pursuit of justice is no virtue.” On second thought, when it comes to opposing an agency dedicated to controlling and intimidating American travelers, I will wear the extremist label with pride. Will you?

Airport Activism Anyone?

With the Thanksgiving holiday coming up (and busiest travel day of the year), a group of concerned citizens is calling November 24th “National Opt-Out Day.”

Wednesday, November 24, 2010 is NATIONAL OPT-OUT DAY!

It’s the day ordinary citizens stand up for their rights, stand up for liberty, and protest the federal government’s desire to virtually strip us naked or submit to an “enhanced pat down” that touches people’s breasts and genitals in an aggressive manner. You should never have to explain to your children, “Remember that no stranger can touch or see your private area, unless it’s a government employee, then it’s OK.”

The goal of National Opt Out Day is to send a message to our lawmakers that we demand change. We have a right to privacy and buying a plane ticket should not mean that we’re guilty until proven innocent. This day is needed because many people do not understand what they consent to when choosing to fly.

For more details, go here.

Since I won’t be flying, I won’t personally be participating in National Opt-out Day but I strongly encourage all who are to participate. I’m also interested in what experiences are when/if you are given the “porno or grope” option. I’ll have an open thread ready for you to tell us what you witness or experience.

In closing, here is a short segment from Judge Andrew Napolitano’s “Freedom Watch” called “Right to Know” concerning your 4th Amendment rights.

Innocence Project: Key DNA Sample Not a Match to Man Executed in Texas

The Innocence Project reported just today that the hair sample used to condemn Claude Jones to death was not a match.

“(Houston – November 12, 2010) The Innocence Project today released DNA test results proving that crucial hair evidence found at the scene of a murder, the only physical evidence linking the accused Claude Jones to the crime, did not belong to Jones. Although he always maintained his innocence, Jones was executed for murdering Allen Hilzendager on December 7, 2000. George Bush, who was awaiting a decision from the Florida Supreme Court on whether the presidential election recount would continue, denied Jones’ request for a 30 day stay of execution to do DNA test on the hair sample. The memo from the General Counsel’s office that recommended against the stay did not tell Bush that Jones was seeking a DNA test of the hair. Evidence that the hair “matched” Jones was critical to the prosecution’s case at trial and proved to be the key factor in a narrow 3-2 decision by the Texas Court of Appeals finding there was sufficient corroboration of the accomplice who testified against Jones to uphold the murder conviction.

[…]

“It is unbelievable that the lawyers in the General Counsel’s office failed to inform the governor that Jones was seeking DNA testing on evidence that was so pivotal to the case,” said former Texas Governor and Attorney General Mark White. “If the state is going to continue to use the death penalty, it must figure out a way to build safeguards in the system so that lapses like this don’t happen again.”

[…]

“The DNA results released today may not prove that Jones was innocent, but they do raise serious questions about whether the prosecution’s case was strong enough to present to a jury and the decision to seek the death penalty in the first place,” said Governor White. “No matter what your opinion of the death penalty, I hope we can all agree that it should only be used when the state is absolutely sure that the right person has been convicted.”

So why are we only now learning nearly 10 years after the fact that the State of Texas executed Claude Jones who was convicted based solely on a hair sample that did not tie him to the crime scene?

After the San Jacinto County District Attorney’s office refused to give the Innocence Project permission to do testing on the evidence, the Innocence Project, the Texas Observer, the Innocence Project of Texas and the Texas Innocence Network brought a successful lawsuit to do the testing that proved the hair did not belong to Jones.

Yet another example of the State of Texas stonewalling to keep the facts from ever seeing the light of day. These are the same government officials who are actively covering up another case where the state likely executed an innocent man in 2004 by the name of Cameron Todd Willingham (See the Frontline documentary of this case here).

Just two weeks ago, another man by the name of Anthony Graves became the 12th death row inmate exonerated in Texas (and 139th in the country) since 1973 after serving 18 years. Fortunately for Graves, his exoneration came before his date with the death chamber.

In Gov. Rick Perry’s mind, the exoneration of Graves was proof positive the criminal justice system in Texas is “working.”

“I think we have a justice system that is working, and he’s a good example of — you continue to find errors that were made and clear them up,” Perry said. “That’s the good news for us, is that we are a place that continues to allow that to occur. So I think our system works well; it goes through many layers of observation and appeal, et cetera. So I think our system is working.”

Now that this new revelation that Claude Jones was executed based on faulty evidence has come to light, I wonder if Gov. Perry still thinks the system is “working”? They were so cock sure that Graves, Jones, and Willingham* were guilty of capital murder and proven wrong but continue to use the same stonewalling tactics in Hank Skinner’s and other cases. Gov. Perry et. al would rather cover these cases up because they don’t want to risk losing their license to kill.

» Read more

Correcting the so called “Corrections” system

As of today, it should be clear to everyone in this country, that our system for dealing with criminals (I won’t call it a “criminal justice” system since justice has so little to do with it), is utterly broken, beyond any conventional concept of repair.

At this point, again I say, it should be clear we can’t just “fix it”, we need to start over again, with a different concept.

I have a radical idea…. how about this time we start with an HONEST concept… because right now we are anything but honest about what the real function of the “criminal justice” system is; and that dishonesty is what has made all our efforts to date fail miserably.

Today, although we will never admit this to ourselves publicly, there are three things keeping the “Corrections” system going:

1. It’s a jobs program for law enforcement and “corrections” officers, and administrators

2. Non-offending people ARE actually safer when offenders are imprisoned (the problem is, what happens when they get out).

3. We like lots of cops (or at least the IDEA of lots of cops), we want to be “safe”, and we feel that people who do bad should be PUNISHED.

That’s really what it comes down to though, is punishment.

Punishment isn’t SUPPOSED to “help” them. Punishment isn’t supposed to “rehabilitate” them.

The very term “department of corrections” is a hypocritical misnomer.

Americans (and to a large extent most other cultures), put people in prison to punish them, not to “fix” them.

“Correctional system”, “penitentiary”… All high minded hypocritical myths.

The reason “Sheriff Joe” “Americas Toughest Sherrif” is so popular (despite being the worst sort of self aggrandizing, corrupt, civil rights abusing scum) is because he reassures people that he is “punishing the bad guys”; and THAT is honestly what people want.

Eastern State Penitentiary, the first “modern” penitentiary style prison, was deliberately fashioned to resemble monks cells (which is where we got the name for inmate housing units), in the belief that isolation, contemplation, prayer, and penitence (thus the name), would reform criminals into decent men. It was held up as the new “humane” model. In reality it drove prisoners mad and they killed themselves, and each other, in droves.

So long as we refuse to acknowledge the true purpose behind “custodial sentencing” and pretend it has anything to do with the offender coming out better on the other side, we are stuck with what we’ve got (And rapidly getting worse).

We have to stop pretending that punishment does anything but feed our base emotions.

We have to stop pretending that the negative prospect of prison is sufficient to deter criminals from committing crimes. Most criminals by nature have a poor appreciation for consequences, poor impulse control, and an inability to make valid risk/reward calculations.

When you put a criminal away, all you are doing is warehousing him where he can’t commit that crime anymore. That does serve a valid purpose, but it costs a huge amount of money, and doesn’t fix the problem.

The so called “criminal justice” system can no longer serve as a jobs program for law enforcement, lawyers, administrators, and corrections personnel; nor can it simply be warehousing of offenders until we release them to commit their next offense.

So, here it is, really simple; my pie in the sky ideal for how to deal with crime and punishment.

Step 1: drug addiction, possession, use, and sale, must be decriminalized

This has to happen for ANYTHING to have any hope of working. That would eliminate something like 80% of the offenses in higher criminal courts, and drastically reduce prison populations (at least 40%, most likely something more like 80%).

Step 2: We must not only stop, but revert the proliferation of felonies

Right now, you can be convicted of a felony in some states, for as little as selling the wrong kind of fish at the wrong time. We have established a ridiculous number of offenses as “high crimes” (what felonies are intended to be); without any real justification or social purpose, except to inflate those whom the state can claim as convictions, claim higher punitive penalties from, or incarcerate for longer periods of time.

Accordingly, all crimes currently classified as felonies must be reclassified as misdemeanors unless they meet one or more of the following conditions:

1. Physical violence sufficient to cause grievous bodily harm, grievous trauma (such as rape and molestation), or substantial risk of loss of life (or more).

2. Physical or monetary damages equal to or greater than two years income at minimum wage, presuming a 1940 hour work year.

3. Crimes against basic human rights, including terrorism, tampering with courts, deprivation of rights etc…

4. Grave harm to the national security of the united states, including espionage and treason.

5. Criminal negligence, gross indifference, coercion, conspiracy, or fraud sufficient to cause the above.

Step 3: We must completely overhaul our punishment and societal protection model

We must eliminate custodial sentences for non-violent crimes, including felonies, unless those crimes involve:

1. Gross negligence or indifference leading to violent consequences or the loss of life (anything from drunk driving to greater liability issues)

2. Coercion, force or fraud causing damages in excess of five years of minimum wage (because this is effectively slavery for the victim)

3. Special circumstances which are considered “heinous” (more on that later).

We must restore the element of criminal intent into how crimes are charged and sentenced. If there is no intent, then there can be no intentional crime; only crimes of negligence or indifference, which are generally considered far less severe.

In this regard, any action taken while intoxicated or impaired should be considered qualifying, HOWEVER only if criminal damage or injury to others results.

I believe that people should be allowed to drink, swallow or smoke whatever they want, but if their choices cause impairment which then causes damage or injury to others, they should be punished SEVERELY; and crimes involving impairment should be considered intentional for purposes of determining severity.

Also for purposes of determining the severity of an offense, coercion or fraud shall be considered equivalent to force (force being defined as violence, or the threat of violence).

All other criminal offenses should be punished by restitution and compensatory and punitive damages to the victim, compensatory and punitive fines to the state, labor for public benefit, public humiliation, and two years of convict status (which can be reduced by order of a judge only after discharge of all obligations).

Further, on discharge of all other obligations, convicts shall be given a term, of “probation” equal to the length of their existing sentence.

The crimes, sentences, and photographs of all those convicted of criminal offenses should be published in all local newspapers, as well as on local and national web sites; and announced on local television.

All convicts should be required to wear a distinctive article (bracelet, necklace, ankle bracelet etc…) which lists their crime and sentence, and which cannot be covered up while in public.

Convicts must wear this article, until such time as their sentence and obligations have been discharged. At any time, the convict should be legally required to disclose their crime and sentence to anyone who asks; unless doing so would cause danger or disruption.

If a convict is able to earn more than a state mandated minimum wage in their private pursuits, they may continue performing them, and pay restitution and fines directly. If not, then they are directed to work for the state, at a competitive wage for such jobs as they perform, while meeting prevailing employment standards for such a position (i.e. if the only job they qualify for is ditch digger, it’s the only job they can get; and they still have to compete for it with non-convicts).

If the convict is unable to meet basic standards of work, or is unwilling to work, then they will be reduced to menial forced labor at minimum wage. If they refuse this, they will be incarcerated, as a regular inmate, for the term of their sentence.

Restitution, damages, and fines should of course be directly garnished from the convicts wages; but should be considered pre-tax income deductions for tax purposes.

All custodial sentences shall have terms of two, five, ten, twenty five years, or life (or death in states that allow it).

Different charged offenses can be combined consecutively to “stack” sentences; but only if those offenses make up separate criminal acts (if one crime involved 8 different chargeable elements with a 2 year sentence for each, then the convict would receive 8 two year sentences to run concurrently. If he committed the same crime on 8 different occasions, he could receive consecutive sentences, for a total of 16 years incarceration)

There is no parole, however sentences can be reduced (more on that later).

Forcible rape, aggravated sexual assault, sexual molestation, aggravated kidnapping, intentional premeditated or depraved homicide (what would be first degree murder in most jurisdictions), felony murder if the homicide is heinous by itself, any intentional negligent or depraved indifference crime resulting in mass death or mass grievous injury (mass being defined as multiple victims who were not individually targeted, or multiple victims who were unknown to the criminal and whom they had no individual an personal motive to harm), any crime involving tampering with a court or an election, any crime involving the intentional deprivation of an individuals basic human and civil rights (as enumerated in the declaration of independence, and the constitution), torture, espionage, treason; or any attempt to commit those crimes, or conspiracy to commit those crimes; shall all be considered “heinous crimes”.

Heinous crimes should all carry the maximum length of incarceration, and should be eligible for the death penalty in jurisdictions that allow it.

It is important however, that all state and federal laws about the definitions of these crimes must be clarified and harmonized to meet the highest standard of criminal act, and criminal intent (for example, a potentially but not explicitly sexual element to a simple assault – such as public nudity or forced nudity -, would not make it sexual assault. The intent and act must be sexual in nature, and involve sexual contact or acts, or attempted sexual contact or acts. Forcible rape must be limited to actual acts of physical violence, or coercion by threat of violence, resulting in a sexual act).

Oh and yes, I really do believe that voter fraud and election fraud should be punishable by life in prison. So should criminally preventing someone from voting who has the lawful franchise. Any criminal deprivation of rights should be considered as serious as rape or murder.

In addition to their custodial sentence, of course, all penalties that apply to non-custodial sentences would also apply. Restitution, damages, fines and fees, as well as all other conditions of convicts.

Sentences can be reduced, by a judge, on review of the case, and circumstances. A review will be automatically initiated at the time the convict discharges their restitution, damages, and fines, should they do so before the term of their incarceration is completed. Criminals convicted of heinous crimes however, would not be eligible for early release except for humanitarian reasons.

While serving a custodial sentence and incarcerated, unless disabled and unable to do so, the convict will be required to perform productive labor for at least 8 hours a day, five days a week; for which they will be paid at minimum, a base sum equal to the cost of their incarceration (for which they will be charged). They will also accumulate sick leave benefit, and paid vacation days, equivalent to a government employee of the same grade as whatever productive labor they perform.

If the convict is disabled and unable to perform any work, they will be given the same disability status as any disabled individual; and will receive the equivalent of all federal and state disability payments and benefits, to offset the cost of their incarceration.

The convict is to be given the opportunity to voluntarily learn useful job skills, and perform at a useful job at market rates, which can earn them money to pay their fines and restitution.

If the convict has useful skills which can be applied to work that can be performed within the terms of their incarceration without undue risk, this is to be allowed.

The convict is also to be offered the opportunity to work overtime, and earn more money; to be used to pay the cost of their incarceration, their fines and restitution; the balance of which should be the inmates to control as they see fit.

This should not imply the inmate has a right to any job other than basic labor paid at a rate sufficient to cover the cost of their incarceration. Only that the opportunity to seek and perform other employment must be allowed.

If a convict refuses to work, or does not meet minimum standards of work, they are to be restricted to solitary confinement without public exercise, visitation, or communication privileges (excepting legal and spiritual council), and reduced to subsistence ration. Additionally, any work day the convict refuses to work, the cost of their incarceration for that day will be added to their obligations.

Some of this may seem ridiculous (vacation days for convicts?) but it serves an important purpose. The convict should understand, they are performing a job, for pay. They benefit from their own labor, and they have to pay for their own upkeep. If they work harder or more or at a better job, they get ahead; just like everyone else.

This kind of normalization is really the only way to produce people who won’t reoffend when they get out. Get them useful job and life skills they can transfer to the outside world; and get them in the habit of meeting standards of behavior; you’ll see a huge difference.

Any convict caught committing any felony while incarcerated will be subject to immediate extension of their sentence to life in the case of non-violent felonies, or death in the case of violent felonies. Self defense (against ANY crime or attempted crime against them, not just murder) is considered a valid defense against such charges however.

On their release from custody, convicts will be liable to the same penalties and strictures as those who have received non-custodial sentences.

Any further felony committed by any felony convict, whether incarcerated or not, prior to the discharge of any and all obligations (fines, restitution, service or labor), or in the convicts “probation” period will result in an automatic custodial sentence of at least five years; even for offenses that would not normally carry a custodial penalty.

Any violent felony committed prior to the discharge of any and all obligations shall result in an automatic custodial sentence of life in prison, or death.

On the discharge of their fines and restitution, and completion of any service or labor requirements, and any probation period; all convicts shall have all their civil rights restored, including the right to vote, and the right to keep and bear arms.

Private employers may discriminate against convicts, even after their obligations have been discharged, should they choose to do so. The federal, state, and local governments however may NOT discriminate against convicts whose sentences have been discharged however, except for those convicted of Heinous crimes (who should, in general, not be released anyway) or in the case of employment in law enforcement, criminal justice, corrections, national security, or the military.

Any repeat offense of the same felony, or any violent felony by a convicted felon who has discharged their sentence, shall cause a convict to be considered an incorrigible offender, and subject to an automatic sentence of 25 years, life, or death at a judges discretion (25 years for any crime that would normally rate a sentence less than 25 years. Life for any crime that would normally rate 25 years. Death for any heinous crime, or crime that would normally rate life). As always, this is subject to review and reduction by a judge after the convict has discharged their obligations (excepting heinous crimes).

I call this the “one chance, don’t blow it” rule. I believe it is fully justified, because the nature and scope of felonies is being dramatically reduced; the standards for offense are much higher, and the ability of someone to reintegrate into society without re-offending should be much better under this regime.

That’s it. Not exactly simple, but a lot less complicated than our current system… and if anything can work, it ought to be this.

I am a cynically romantic optimistic pessimist. I am neither liberal, nor conservative. I am a (somewhat disgruntled) muscular minarchist… something like a constructive anarchist.

Basically what that means, is that I believe, all things being equal, responsible adults should be able to do whatever the hell they want to do, so long as nobody’s getting hurt, who isn’t paying extra

Nolan Exposes McCain’s Antipathy for Civil Liberties in Arizona Senate Debate

David Nolan, co-founder of the Libertarian Party and author of “The World’s Smallest Political Quiz” (to which the result is plotted on the “Nolan Chart”) is running against none other than the most recent Republican presidential nominee, Sen. John McCain for his senate seat. KTVK-3TV hosted a debate last Sunday which included Sen. McCain along with challengers Rodney Glassman (D), Jerry Joslyn (G), and David Nolan (L). Believe it or not, all candidates were given equal time to debate the issues; something that is usually missing from the debates I’m accustomed to watching.

Despite the skills of those challenging Sen. McCain – particularly the two 3rd party candidates, the latest Real Clear Politics Average Poll shows McCain with a comfortable 17.4 point lead over his closest challenger, Rodney Glassman. Critics of 3rd parties look at poll results like this and wonder “what’s the point” of allowing 3rd party candidates to participate when their chances of winning are so miniscule.

IMHO, I believe that both Nolan and Joslyn did a fine job demonstrating why 3rd party candidates should be included by raising issues, proposing solutions, and exposing the shortcomings of the two party system and the candidates themselves to voters and concerned citizens.

In the 3rd part of this debate (below), Nolan brought up a McCain sponsored bill that is most likely not on the radar of very many people: S. 3081, the “Enemy Belligerent Interrogation, Detention, and Prosecution Act of 2010.”

(Beginning at -6:14 in part 3 of the debate)

Nolan: “One of the reasons I got into this race is that right now, at this very moment Sen. McCain is a sponsor – I think the lead sponsor of Senate Bill 3081 […] a bill which would authorize the arrest and indefinite detention of American citizens without trial and without recourse. This is one of the most dangerous, evil, un-American bills that’s ever been proposed in congress and nobody who would sponsor such a bill should be sitting in a seat in the United States Senate.”

And what was Sen. McCain’s response to the charge by Nolan of sponsoring such a “dangerous, evil, un-American” bill?

McCain: “Well again, I hope that our viewers won’t judge me by the remarks just made [by Nolan], they may be a little bit biased.”

Nolan raised the issue again in his closing remarks. Sen. McCain did not respond.

Okay, fair enough. Perhaps Mr. Nolan is biased. He is trying to take his job after all. Fortunately for now at least, the average person with an internet connection can freely search and find the bill and learn of its contents. Let’s take a look and see how “biased” Mr. Nolan was and determine whether or not Arizona’s senior senator should be “judged” by the bill he is currently sponsoring.

SECTION 1. SHORT TITLE.

This Act may be cited as the ‘Enemy Belligerent Interrogation, Detention, and Prosecution Act of 2010’.

SEC. 2. PLACEMENT OF SUSPECTED UNPRIVILEGED ENEMY BELLIGERENTS IN MILITARY CUSTODY.

(a) Military Custody Requirement- Whenever within the United States, its territories, and possessions, or outside the territorial limits of the United States, an individual is captured or otherwise comes into the custody or under the effective control of the United States who is suspected of engaging in hostilities against the United States or its coalition partners through an act of terrorism, or by other means in violation of the laws of war, or of purposely and materially supporting such hostilities, and who may be an unprivileged enemy belligerent, the individual shall be placed in military custody for purposes of initial interrogation and determination of status in accordance with the provisions of this Act.

(b) Reasonable Delay for Intelligence Activities- An individual who may be an unprivileged enemy belligerent and who is initially captured or otherwise comes into the custody or under the effective control of the United States by an intelligence agency of the United States may be held, interrogated, or transported by the intelligence agency and placed into military custody for purposes of this Act if retained by the United States within a reasonable time after the capture or coming into the custody or effective control by the intelligence agency, giving due consideration to operational needs and requirements to avoid compromise or disclosure of an intelligence mission or intelligence sources or methods.

“Suspected unprivileged enemy belligerent” ? No, that doesn’t sound Orwellian at all. Now let me highlight Sec. 3b3 and let you, the reader decide if any of this strikes you as “dangerous,” “evil,” or even “un-American.”

(3) INAPPLICABILITY OF CERTAIN STATEMENT AND RIGHTS- A individual who is suspected of being an unprivileged enemy belligerent shall not, during interrogation under this subsection, be provided the statement required by Miranda v. Arizona (384 U.S. 436 (1966)) or otherwise be informed of any rights that the individual may or may not have to counsel or to remain silent consistent with Miranda v. Arizona.

Talk about double speak! Such individuals are not “criminal suspects” who in our criminal justice system normally considers “innocent until proven guilty” who have Constitutionally protected rights but “suspected enemy belligerents” who are apparently assumed guilty until a high ranking official in the executive branch, or the president himself determines otherwise.

Sorry, I’m getting a little ahead of myself. I haven’t even got to the most disturbing part of the bill yet – Section 5:

SEC. 5. DETENTION WITHOUT TRIAL OF UNPRIVILEGED ENEMY BELLIGERENTS.

An individual, including a citizen of the United States, determined to be an unprivileged enemy belligerent under section 3(c)(2) in a manner which satisfies Article 5 of the Geneva Convention Relative to the Treatment of Prisoners of War may be detained without criminal charges and without trial for the duration of hostilities against the United States or its coalition partners in which the individual has engaged, or which the individual has purposely and materially supported, consistent with the law of war and any authorization for the use of military force provided by Congress pertaining to such hostilities.

So here we are in 2010, Sen. McCain et al advocating giving American citizens POW status under Article 5 of the Geneva Convention as they may be “enemy belligerents” in an ill-defined and open-ended “war on terror.” The provisions of the USA PATRIOT Act which were originally supposed to be temporary but now as a practical matter, a permanent fixture of federal law, apparently don’t go far enough to dismantle what is left of the Bill of Rights.

One thing I found interesting in this debate was not only Sen. McCain’s response (or lack thereof) but also the deafening silence of his Democrat challenger who could have easily picked this issue up and ran with it if he shares Nolan’s civil liberties concerns. Could it be that Mr. Glassman would also support this bill if he were elected to replace Sen. McCain? If so, I wouldn’t be at all surprised considering that President Obama who is a member of the same political party as Glassman actually believes he can assassinate Americans without due process of any kind. Both the Obama and Bush administrations have even gone as far to say that if or when the president makes a “state’s secrets” claim, no court can even consider the legality of such cases. There’s little doubt in my mind that President Obama would sign S. 3081 into law as this would only enhance his power.

Maybe for now on we should stop referring to the first ten amendments as “The Bill of Rights” and call them “The Bill of Privileges.” This would at least be honest because rights cannot be taken away and therefore can never be “inapplicable.”

UPDATE: Despite Possible Political Implications, Gov. Strickland Stops Kevin Keith’s Execution; Commutes Sentence to Life

Bob Driehaus writing for The New York Times reports:

CINCINNATI — A death row inmate convicted of murdering a child and two adults was spared the death penalty Thursday by Gov. Ted Strickland of Ohio, who said there were possible problems with the evidence.

A diverse group of Republicans and Democrats, attorneys general and federal and state judges and prosecutors had rallied around the case of the inmate, Kevin Keith, 46, after his lawyers uncovered evidence they say casts doubt on his guilt.

In commuting the death sentence, Mr. Strickland, a Democrat, said that he believed it was still likely that Mr. Keith committed the murders, but that he was troubled by the likelihood that evidence uncovered since his conviction would not be presented to a court before the scheduled Sept. 15 execution.

“That would be unfortunate,” Mr. Strickland said in a statement. “This case is clearly one in which a full, fair analysis of all of the unanswered questions should be considered by a court. Under these circumstances, I cannot allow Mr. Keith to be executed.”

Gov. Ted Strickland should be applauded for doing the right thing and preventing Kevin Keith’s execution. Strickland, who is as of this posting trailing in his race for re-election against his Republican challenger John Kasich by roughly 10 points, had to know that stopping an execution of someone convicted of a particularly heinous act is a very risky proposition politically. George W. Bush is the only governor in history to commute a death row sentence in an election year and go on to win re-election. Kasich, on the other hand, has the luxury of not having to comment one way or the other (and so far his campaign hasn’t).

Neither the parole board nor SCOTUS were willing to consider the “unanswered questions” about Kevin Keith’s guilt. Keith’s life was quite literally in Gov. Strickland’s hands. And even though Gov. Strickland still believes that Keith is likely guilty of these murders, he decided to err on the side of life – life in prison but life none the less.

Keith’s legal team, though thrilled that their client’s life was spared, are not going to be completely satisfied until these questions are presented in a new trial in hopes of proving Keith’s innocence.

The article continues:

“The same compelling reasons that support Governor Strickland’s actions today,” said one of his lawyers, Rachel Troutman, “warrant a new, fair trial for Mr. Keith, including the existence of newly discovered evidence, the revelation of evidence withheld by the state, and the development of new science behind eyewitness identification, all of which point to Mr. Keith’s innocence.”

There is no excuse for the state to withhold evidence that doesn’t support the state’s case. It seems that all too often prosecutors focus too much on “winning” their cases at the expense of justice. Justice not only denied for the accused but also for the victims and their families.

There’s also no excuse for the John Kasich campaign’s silence in this case. Kasich is running to replace the sitting governor of a death penalty state. Kasich owes it to Ohio voters to explain why his opponent, the sitting governor made the right or wrong decision in this case. It’s not really enough for a candidate for governor to answer a generic question about whether s/he supports the death penalty or not when real death penalty cases with real and difficult questions exist in a state that executes the second highest number of people in the nation.

All legal issues and politics aside, the commuting of Kevin Keith’s death sentence to life is very good and welcome news.

Related Post:

Even Death Penalty Supporters Urge Ohio Gov. Strickland to Spare Kevin Keith

Even Death Penalty Supporters Urge Ohio Gov. Strickland to Spare Kevin Keith

Its one thing when anti-death penalty activists petition a governor to pardon or commute a sentence of an individual scheduled for execution but quite another when death penalty supporters agree. Kevin Keith is scheduled to be executed by the state of Ohio on September 15th for the 1994 murders of 2 adults and 1 child; a crime he has maintained he did not commit. Despite exculpatory evidence which points away from Keith and despite Gov. Ted Strickland’s (D) own public comments where he said he found “certain aspects” of the case “troubling,” the parole board voted 8-0 in favor of executing Keith.

Fortunately, the parole board’s decision is non-binding; Gov. Strickland or perhaps SCOTUS can still do the right thing and halt the execution until the more ‘troubling’ aspects of this case can be fairly reconsidered.

According to this article in The Guardian, among those who are urging Gov. Strickland to halt the execution are more than 30 former judges and prosecutors including former Ohio Attorney General and death penalty supporter Jim Petro (R) and former Ohio Supreme Court Justice Herbert Brown.

Jim Petro in a letter to Gov. Strickland:

“I am gravely concerned that the state of Ohio may be on the verge of executing an innocent person”

Justice Herbert Brown in another letter:

“There is a mass of exculpatory evidence, suppressed evidence, faulty eyewitness identification and forensic reports that support legitimate claims of innocence”

Innocence Network President and Clinical Professor at the University of Wisconsin Law School Keith A. Findley, while likely biased against the death penalty also wrote to persuade the governor:

Like so many of the wrongful conviction cases, tunnel vision by police, prosecutors, and even courts appears to have played a central role in Mr. Keith’s case and his ultimate conviction.

[…]

The evidence of these pernicious effects of tunnel vision, coupled with the compelling new evidence in Mr. Keith’s case, suggests that Ohio might be on the verge of executing an innocent man […]

Keith’s defense team, in a statement following the parole board’s decision points out that Gov. Strickland signed a bill into law which prohibited some of the very techniques investigators used against their client. Unfortunately for Keith, the banning of these faulty procedures came too late.

Yes, the case of Kevin Keith is indeed troubling. Maybe if a few thousand more can petition Gov. Strickland, he will be even more troubled to the point to where he will end this madness (click here to sign the petition).

In other troubling death penalty news, a federal judge has denied Troy Davis’ innocence claim despite 7 of 9 eyewitnesses recanting their testimonies against him.

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