Category Archives: Legal

Former Liberty Papers Contributor Authors Report on “Over-criminalization Epidemic” for Freedomworks


Former Liberty Papers contributor Jason Pye may have long ago moved on from this humble blog but he certainly hasn’t moved on from doing his part to educate the general public on matters of liberty and justice. Pye’s latest work for Freedomworks is something I have a great deal of interest in and concern about: over-criminalization.

What can be done about the idea that the average person commits (usually unwittingly) three felonies a day? Pye offers some great ideas; mine are probably too radical. My radical proposal being

1. Congress should repeal the entire criminal code and restore the Crimes Act of 1790.

2. Crimes that are already on the books in a given state should have jurisdiction instead of similar federal crimes (i.e. murder is already a crime in all 50 states and all the territories, therefore; the federal government should not charge anyone for murder as the state or territory would use its police power to bring charges).

This would go a long way towards solving the problem of over-criminalization.

That said, Pye’s recommendations are probably more politically feasible and should be a great starting point.

The Over-criminalization Epidemic: The Need for a Guilty Mind Requirement in Federal Criminal Law

Related Posts:
Do We Really Want the President to Enforce ALL Federal Laws?
Quote of the Day: Jason Pye on the Smarter Sentencing Act

Bullshit Laws, Fiscal Irresponsibility, and the Inevitability of Police Abuse

missing plate

Every day fleets of law enforcement officers, from the DEA on down to the local police department, head out onto the streets armed with guns and hair-trigger fears for their own safety.

If they were going to fight the good fight against violence and theft, we could be unreservedly grateful. All too often these armed ingenues, represented by unions, covered by workers comp, and unwilling to tolerate any degree of risk to their person, instead spend their time enforcing petty, bullshit laws that accomplish nothing more than mindless bureaucratic authoritarianism—and revenue for overspent budgets.

Samuel Dubose was missing a front license plate. Walter Scott had a broken brake light. Caroline Small was sitting in her parked car. Eric Garner was selling untaxed cigarettes. James Boyd was camping in the wrong place. David Garcia was feeling suicidal. Zachary Hammond was on a first date with a woman carrying ten grams of marijuana. Freddie Gray was …

Does anyone even know?

These are the “crimes” for which they died.

In July, protestors at the Netroots Nation conference in Phoenix interrupted Democratic presidential candidates Bernie Sanders and Martin O’Malley to heckle their talking-point platitudes and demand concrete proposals for addressing police abuse. O’Malley, whose tough-on-crime polices as mayor of Baltimore sent its police department into a downward spiral of violence and corruption, had little to offer. Earlier this week Scott Walker, the only candidate in the first GOP debate asked a question on the topic, came up with nothing more tangible than better training, more support, and “consequences.”

Not independent investigators to handle accusations of misconduct. Not better record keeping to identify problematic officers and departments. Not body cams or enhanced protection of the public’s right to record. Not abolishing mandatory minimum sentencing laws that make suspects desperate. Not decriminalizing nonviolent offenses. Not ending the disastrous “war” on drugs.

Some of the protestors, who have continued to interrupt Sanders’ appearances, focus on racism. An independently worthy cause, ending racism is nevertheless not enough to solve police abuse. Racism is a sufficient cause of such problem, but not a necessary one.

No. The problem is you.

You have to stop supporting all the petty laws that can ultimately be enforced only with violence. Sex-for-money between consenting adults. Sale by and to and ingestion of substances by peaceful adults. Jaywalking, loitering, broken tail lights and the myriad thousand other nonviolent offenses that exist for no greater purpose than that the upper castes may express their disapproval of those who achieve less than Stepford levels of respectability.

Every law, every rule, every regulation—from cigarette taxes to fines for broken brake lights to driving without a license to civil penalties for refusing to make a wedding cake—carries with it the implicit edict that you are willing to have officers in uniforms kill people to enforce it.

Bounkham "Bou Bou" Phonesavanh was sleeping when militarized police threw a flash grenade into his crib during a raid looking for someone who sold $50 worth of illegal drugs. No drugs were found, no arrests made; the suspect no longer lived there.

Bounkham “Bou Bou” Phonesavanh was sleeping when police threw a flash grenade into his crib during a raid looking for a suspect alleged to have sold $50 worth of illegal drugs. No drugs were found, no arrests made; the suspect no longer lived there.

That you are willing to throw flash grenades at babies to keep grownups from ingesting methamphetamine (even though you know once thusly tasked, cops will lie to get those warrants). That you are willing to put that cigarette-tax dodger in a chokehold. That you are willing to kill those Oregon bakers if they won’t pay the fine for not baking the cake, and try to lock their door when the sheriff comes to execute on that judgment. You will risk violence by sending thuggish swat teams into legal medical marijuana dispensaries to terrorize customers inside. You would rather that poor mother with the broken brake light or the expired plates pay her fine to your government than feed her children. You are willing to shoot a man in the head for only having a rear license plate on his vehicle.

You are willing to spend billions packing our prisons, eroding our civil liberties and constitutional rights, and imposing roadside anal probings as the acceptable costs of keeping peaceful people from ingesting the substances of which you disapprove.

To your countenance of such tactics for such ends, add the near irresistible temptation of unearned riches—in an era of profligate spending and mismanaged budgets—and violence is an all but inevitable outcome. Civil asset forfeiture creates perverse incentives that lead police departments to prioritize nonviolent drug crimes, while victims of violence wait weeks for assistance; where crime labs let murder evidence backlog for decades, while drug cases get processed within hours.

Yet the insidious evil of treating citizens like municipal ATM machines takes place on an even smaller level than civil asset forfeiture. An official shake-down system also exists in the form of excessive tickets for petty offenses, doled out to those who cannot afford to fight back (disproportionately poor and minority), and then ballooning and escalating into ever more unmanageable sums until arrest and jail time result.

There are no debtors prisons in the U.S.A. Unless the creditor is the government. Then you’re fucked.

The Justice Department’s scathing report on the Ferguson, Missouri police department documented the disturbing end-game of such practices: a situation where 25% of the city’s revenue came from fines imposed by an unsupervised police force prone to excessive use of force. Jack Hitt at Mother Jones has reported on another Missouri suburb where, in response to a legislative cap on revenue that could be generated via traffic stops, the city enacted a whole host of other petty, bullshit laws (against such menaces as basketball hoops in the front yard, overgrown hedges, disorderly window blinds, and pants worn to low) and increased its non-traffic related arrests by 495%.

For the affluent this may be nothing more than an annoying shadow tax system to prop up an overreaching government that spends so far outside its means it pays tax dollars to research how robot-provided Swedish massage affects rabbits’ recovery from exercise. For the poor, knowing their lives will be ruined by fines they cannot afford to pay, jail time, job loss, and mandatory minimums that destroy families, it is why they run.

It is also why they kill.

Because at its worst, this system of official shakedown invites the very threats that put officers on edge. Dionne Wilson, widow of a slain California officer, understands this only too well. Her husband Dan Niemi showed up to investigate a noise complaint and found himself facing Irving Ramirez, who had a history of drug incarcerations. Carrying both guns and drugs when confronted, and desperate not to go back to jail, Ramirez shot and killed Officer Niemi. Wilson used to wonder why Ramirez was ever let out of prison.

Now she wonders why he ever had to go in.

It is easy to blame the problem of police violence on racist cops with (the gender neutral equivalent of) small dicks and big Napoleon complexes. It is harder to take responsibility for the crap laws and fiscal irresponsibility that make bad cops inevitable.

Sarah Baker is a libertarian, attorney and writer. She lives in Montana with her daughter and a house full of pets.

John Oliver Takes on Mandatory Minimum Sentences

For those of you who don’t have HBO and are unfamiliar with Last Week Tonight With John Oliver (very much in the same vein as The Daily Show only uncensored) the segment below is a must watch. While John Oliver is certainly of the Left, he definitely has a libertarian streak on social and criminal justice issues. In this segment, Oliver takes on the travesty known as mandatory minimum sentences (i.e. zero tolerance policies with even more severe consequences).

In the Wake of Obergefell v. Hodges: Gay Marriage, Religious Liberty, and the Free Markets

Church of the Pilgrims, Washington DC

[Photo: Church of the Pilgrims, a Presbyterian USA Church in Washington DC, via Wikimedia Commons.]

On Friday, June 26, 2015, the Supreme Court held in Obergefell v. Hodges that under the Fourteenth Amendment, states are required to license marriages between same-sex partners and to also recognize same-sex marriage licenses from other states. The topic of same-sex marriage is probably one of the most polarizing topics in modern-day America. Over the past several days I have seen dozens of people, both for and against same-sex marriage, acting hateful to one another, unfriending and/or blocking people on social media because they have different views, and just having a very nasty tone. But why? Why can’t we have a dialogue on the topic? Let’s face it. Obergefell is now the law of the land. The purpose of this post is to try to open that dialogue. So now that gay marriage is legal in all 50 states, what comes next?

Gay Marriage

Contrary to what many may think, the Supreme Court did not create new law here. They did not legislate from the bench. The Supreme Court has a long history of recognizing marriage as a fundamental right and has held that the states cannot discriminate against consenting adults with regard to this fundamental right. The Supreme Court has held this time and time again. As Justice Kennedy noted in his majority opinion:

[T]he Court has long held the right to marry is protected by the Constitution.
In Loving v. Virginia, 388 U. S. 1, 12 (1967), which invalidated bans on interracial unions, a unanimous Court held marriage is “one of the vital personal rights essential to the orderly pursuit of happiness by free men.” The Court reaffirmed that holding in Zablocki v. Redhail, 434 U. S. 374, 384 (1978), which held the right to marry was burdened by a law prohibiting fathers who were behind on child support from marrying. The Court again applied this principle in Turner v. Safley, 482 U. S. 78, 95 (1987), which held the right to marry was abridged by regulations limiting the privilege of prison inmates to marry. Over time and in other contexts, the Court has reiterated that the right to marry is fundamental under the Due Process Clause.

– Obergefell (slip op., at 11)

Furthermore, the right to marry is guaranteed under the Equal Protection Clause of the Fourteenth Amendment. Anytime that a fundamental right is restricted to a group of people, the government bears the burden of proving that the law is necessary to meet a compelling government interest, that it is narrowly tailored to meet that interest, and that the means of implementing the law is the least restrictive means available. The Court found that there is no compelling government interest in denying same-sex couples the fundamental right to marry solely because of their sexual orientation. This is not creating new law. This is the Supreme Court telling the states that any law which restricts fundamental rights between consenting adults is unconstitutional.

Another argument that I often hear is that people think that this should be left up to the individual states to decide. That would be true under the Tenth Amendment. However, the Tenth Amendment only applies to powers not delegated to the United States by the Constitution. The Supreme Court has the power to interpret these laws under the Fourteenth Amendment. So the states’ rights argument doesn’t apply. Bans on same-sex marriage also violate the Privileges and Immunities Clause of the Fourteenth Amendment. This means that citizens who move to a new state are entitled to the same rights and privileges of citizens in the new state. The state cannot discriminate against them. Therefore, a marriage license that is valid in Massachusetts is also valid in Mississippi. A state cannot discriminate against people who move from other states.

This is not a legislative issue either. As Justice Kennedy stated:

The dynamic of our constitutional system is that individuals need not await legislative action before asserting a fundamental right. The Nation’s courts are open to injured individuals who come to them to vindicate their own direct, personal stake in our basic charter. An individual can invoke a right to constitutional protection when he or she is harmed, even if the broader public disagrees and even if the legislature refuses to act. Obergefell (slip op., at 24)

So even though the ideal process may be to go through the democratically elected legislature, this does not preclude one from raising the issue before the Court if his or her fundamental rights are abridged.

Therefore, the Supreme Court did not create a new law. They did not legislate from the bench. This is not a case of judicial activism run amok. Even if you do not agree with gay marriage, at least understand that the government cannot deprive others of fundamental rights that are given to the rest of us.

Religious Liberties

Rest assured that just because same-sex couples can now marry in all 50 states, it does not mean that the government can discriminate against religious institutions. The government should not force any particular denomination, pastor, priest, or clergy to perform a same-sex wedding against their will. This would violate the Free Exercise Clause of the First Amendment.

I don’t foresee this as much of an issue. Most gay people that I know would get married outside of the church anyway. But if a same-sex couple does want to get married in a particular denomination, their right to marry is not infringed by a pastor’s denial to perform the service. The same-sex couple is still free to seek out another pastor. If a Southern Baptist church does not want to perform the ceremony, the couple can go to an Episcopalian church. If a pastor with the Presbyterian Church of America (PCA) declines to perform a ceremony based on his religious conviction, the couple can seek a pastor with the Presbyterian Church USA (PCUSA) willing to perform the ceremony.

Therefore, I don’t see this decision as an attack on our religious liberties. Every denomination should be able to exercise their faith and religion as they see fit under the Free Exercise Clause of the First Amendment. If you do agree with gay marriage, at least understand that the government cannot infringe on a clergy’s right to exercise his or her faith by declining to perform a same-sex marriage.

Free Markets

Okay. So now same-sex marriage is legal in all 50 states. How does this affect the markets and what does it mean for all of the bakers, florists, photographers, et. al who decline their services to same-sex couples? As a Christian AND a libertarian, I sometimes find myself at odds with…myself. Even if I disagree with something that goes against my convictions, it doesn’t give me the right to deprive another of their rights or hate on them for their choices. So I want to view this topic in two lights. How should this be handled with regard to the free markets and the courts? And how does this appear in the eyes of God?

Over the past several years, Christian wedding service providers, such as bakers, florists, and photographers, have declined to provide their services to same sex weddings. In Colorado, Masterpiece Cakeshop was sued for failing to make a wedding cake for a same-sex reception. Despite the owner’s willingness to serve homosexuals in his establishment, he believes that making the wedding cake means that he is participating in the union and it goes against his convictions. More recently, in Oregon, an administrative judge proposed that Sweet Cakes by Melissa pay a same sex couple $135,000 for refusing to bake a cake for a same-sex marriage. Then of course, there was the New Mexico case where the NM State Supreme Court held that Elane Photography discriminated against a same-sex couple by refusing to record their wedding, despite their policy on welcoming gay couples for other services.

From a free market, libertarian position, I disagree with all of these decisions. In each of these cases, the business owner was willing to serve gay couples, but did not want to participate in the wedding ceremony. Businesses are rewarded or punished in the marketplace for their stances and services. If a customer doesn’t like their stance, s/he does not have to give them business. Let the markets dictate what happens to the business. I also understand the business point of view that their services are forms of expression. They should be protected from being forced to cave on their religious convictions. If they don’t want to express themselves in that manner, I don’t agree that they should be forced to. But does that mean that it’s the right decision?

As Christians, is this the way that we are to show our love to the world? In Matthew 22:36-40, Jesus tells us that we are to first, love the Lord our God with all our heart, soul, and mind and second, that we are to love our neighbors as ourselves. When we decline these services to others, are we loving our neighbors as ourselves? Are we reflecting the love of Jesus as we are called to do? I don’t think so. Jesus never really hung out with the religious folks. He was always meeting with, preaching to, and loving on the fishermen, the taxcollectors, the prostitutes, the dregs of society. Jesus said that he didn’t come for the righteous or powerful, but to save those who are lost. When we refuse services to same-sex couples, are we drawing them closer to God, or are we just pushing them further away?

I think that it’s time that we love our neighbors as ourselves.


Albert holds a J.D. from Barry University School of Law as well as an MBA and BA in Political Science from The University of Central Florida. He is a conservative libertarian and his interests include judicial politics, criminal procedure, and elections. He has one son, named Albert, and a black lab puppy, named Lincoln. In his spare time, he plays and coaches soccer.

One of the Original “Liberty Papers” Turns 800


A mere 572 years before the U.S. Constitution and the Bill of Rights, 561 years before the Declaration of Independence, and 465 years before John Locke’s Two Treatises of Government was a government-limiting charter which inspired the authors of each of these was the Magna Carta. In June of 1215, a full 800 years ago, a group of land barons had decided that they had enough of the tyrannical rule of King John. Rather than depose the king outright, the barons forced King John to surrender some of his powers, thus creating the concepts British Common Law and the Rule of Law.

The history of the Magna Carta and how it was almost quashed is quite interesting:

There are four copies of the charter still in existence – one each in Lincoln and Salisbury Cathedrals, and two in the British Library.
The curator of the Library’s exhibit, Dr Claire Breay, told Sky News: “The most important thing about Magna Carta is that it established the principle of the rule of law.

“No free man shall be seized or imprisoned or stripped of his rights, or outlawed or exiled, except by the judgement of his equals or by the law of the land. And that clause is really at the heart of Magna Carta’s fame today.”

Those who negotiated the treaty would be astonished at how its reputation has survived eight centuries, because it was annulled after only 10 weeks.
The Pope ruled that King John had been forced to sign it under duress. Yet in the years afterwards, the language in the charter was revised and reintroduced and became part of the cornerstone of English law.

Vicor Hugo famously said “No army can stop an idea whose time has come.” Shortly after King John’s signing of the Magna Carta, the idea of the rule of law had come; the divine rights of kings was no longer universally accepted.

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