Category Archives: Legal

A Sign of the Times – Nebraska Repeals the Death Penalty

"Old Main" NM State Penitentiary

Yesterday Nebraska became the latest state to repeal the death penalty. While this is encouraging as states in recent years have ended this barbaric practice, what is even more encouraging and unusual is the fact that Nebraska is a red state. Nebraska is the first predominately conservative state in 40 years to repeal the death penalty. This isn’t to say that all conservatives were on board with the repeal. Republican Governor Pete Ricketts vetoed the repeal but supporters overrode the veto with the minimum number of votes required by 30 to 19 (conservatives accounted for 18 of the votes in favor of repeal).

Pema Levy writing for Mother Jones elaborates:

Today’s vote makes Nebraska “the first predominantly Republican state to abolish the death penalty in more than 40 years,” said Robert Dunham, executive director of the Death Penalty Information Center, in a statement shortly after the vote. Dunham’s statement singled out conservatives for rallying against the death penalty and said their work in Nebraska is “part of an emerging trend in the Republican Party.” (Nebraska has a unicameral, nonpartisan legislature, so lawmakers do not have official party affiliations.)


“I think this will become more common,” Marc Hyden, national coordinator of Conservatives Concerned About the Death Penalty, said in a statement following the repeal vote. “Conservatives have sponsored repeal bills in Kansas, Montana, Wyoming, South Dakota, Missouri, and Kentucky in recent years.”

The article goes on to point out that in the most recent Pew survey that 77% of Republicans support the death penalty. My question is, why? Fellow Liberty Papers contributor Albert Northup made a compelling case earlier this year as to why conservatives and libertarians should oppose the death penalty:

Are you pro-life? Opposed to big government? Do you believe in reducing government spending? Do you support the death penalty? If you answered yes to all of these questions, then you may want to re-think your position on the death penalty. As supporters of life, liberty, property, and limited government, I believe that all conservatives and libertarians should oppose the death penalty.

I couldn’t agree more. Perhaps more conservatives will come around to this more logically, philosophically consistent position.

A Thought Experiment: Fraternity Initiation Gone Horribly Wrong


I would like to conduct a little thought experiment.

It seems that quite a few people have very strong opinions about the Freddie Gray case in Baltimore. Some of you see this as a race issue, others as a police issue (cops either almost always have halos or devil horns), and a few see this as the human tragedy it truly is. Some believe that there simply isn’t enough proof to bring charges against the six police officers. They are being railroaded and overcharged some say (I would like to point out that overcharging non-cops and railroading non-cops in the justice system is an everyday occurrence). I would like to remove these variables and see if we come up with a different conclusion if we change the actors.

Let’s say that instead of six cops putting Freddie Gray in a paddy wagon its six fraternity brothers (of any race you wish, but let’s say they are all of the same race…use your imagination) from the (fill in the blank) chapter doing an initiation. At this point in the story, our analogue for Freddie Gray is a pledge who wants to join this fraternity. Let’s call him Jim.

Are you with me so far?

Now that we know who the actors are let’s continue…

Several of the fraternity brothers find Jim and start the initiation process. They put Jim in hand cuffs and call the rest of the fraternity brothers who eventually pull up in a van. As they begin to put Jim in the van, he begins to panic.

“I can’t breathe, I need my inhaler!” Jim says.

The fraternity brothers ignore Jim’s concerns and proceed to put him in the back of the van.
Jim sits on a bench with both his hands and feet cuffed but not restrained in a seat belt. The van peels out down the road. Jim is bouncing around the van. Whatever else happened inside the van remains unclear. Did the fraternity brothers get a little too rough with him? What caused Jim’s neck injury? Was his injuries sustained just from bouncing around with his hands and feet bound?

We don’t know for sure.

The driver stops the van and checks in on Jim. Clearly, Jim appears to be hurt but the driver offers no medical attention, shrugs, and returns to the driver’s seat.

After driving a few more blocks, the van stops to pick up a second fraternity pledge. Jim, no longer really “into” being a pledge says at least twice that he needs to be taken to a hospital or at the very least, dropped off. Jim is having difficulty breathing. The driver again ignores Jim’s pleas and obvious medical needs.

What happens next remains controversial. Some news outlets say the other pledge witness Jim trying to injure himself! A day or two later, the person claiming to be the other pledge says that he was being misquoted and said that Jim did not try to injure himself. Even more news stories claimed that the original story was true and the second story was false.Dr. David Samadi writing an article for The New York Daily News writes that an injury of that type being self-inflicted is “highly unlikely.”

After driving around a bit more the van stops again. Jim is on the floor and unresponsive but the frat brothers again decide not to take him to a hospital or offer any kind of assistance. Still bound at his hands and feet and still not secured in a seat belt, the van makes its way to the frat house.
When the van finally stops at the frat house, the driver notices that Jim isn’t breathing. The frat brothers finally come to terms with just how dire the situation is and dial 911.

Jim is transported to the hospital via ambulance. About a week later, Jim dies of injuries to his spine.

In the autopsy report, the cause of death is ruled a homicide.

In the weeks that followed Jim’s death, there were all sorts of rumors about his character. He had been arrested several times – mostly drug offenses. Stories on social media also claimed that Jim had sustained the spine injuries in a car accident prior to the fraternity initiation and had a surgery to repair the damage (this story turned out to be false but many people still believe it to be true). Furthermore, the toxicology report revealed that Jim had heroin and marijuana in his system.

Now that these variables are a little different, is there anyone out there who is going to tell me that in such a scenario these six frat brothers would not receive at least some of the following charges?

-Manslaughter by vehicle (gross negligence on the part of the driver – 10 years)

-Manslaughter by vehicle (criminal negligence on the part of the driver – 3 years)

-False imprisonment (the remaining five frat brothers – 1 count each)

-Manslaughter (1 count for each frat brother)

Based on these findings by the DA, would you say these frat brothers are being over charged? Should they be charged at all? Jim was alive and well before the frat brothers picked him up. Now he is dead. Something happened while he was under the control of the frat brothers.

And what about Jim’s arrest record? (Note: arrests are not the same as convictions) What about the toxicology report showing heroin and marijuana in his system? Assuming this is true, does this somehow absolve the frat brothers of any wrong doing, at least partially? If so how?

Final question: is your conclusion to the above scenario similar to the real life Freddie Gray case? If not, why not?

As to other ancillary comments about the protests, riots, or other cases…post those elsewhere as they are not relevant to this discussion.

Misunderstanding Law, Government, and Society

GovernmentIsForceMost people… At least most people in modern western democracies… Seem to have a fundamental and unconscious assumption about the nature of law and government, that goes something like this:




Law and government, are or should be, the expression of the will of the majority, for the purpose of making collective decisions, taking collective actions, fixing problems and righting wrongs.

If I gave that definition to most people as what government “should” be, or even what it is, I’d guess they would agree.

But that’s not what law and government are at all. In fact, that notion of the nature of law and government, is not only wrong, it is extremely harmful.

What are law and government?

Government, is the instrument of collective delegation of the legitimate initiation and use of force against others.

Law, is the body of rules by which that force is administered and applied.

The only legitimate purpose for which, is to secure and protect the rights of individuals governed by them.

So, what’s the other thing, and why is this a problem?

The other definition, is more properly that of society (as distinct from culture).

Government is NOT Society, and Society, is NOT Government

This conflation of government, and society, is a very serious social and political problem because those who hold it… and I firmly believe it’s a large majority… believe that law and government, should be used for “doing what’s good, and stopping what’s bad”.

They naturally wish to see government do what they think is right, or best, and stop that which they think is wrong, harmful, or wasteful… And not just in areas where force should be applied.

They conflate “legal” with “good” and “illegal” with “bad”, and try to make laws against things which they think are bad, or mandating things which they think are good.

They often even conflate “legal” or “attempting to make legal” with “approving and supporting”, and “dissapproving and opposing” with “illegal” or “attempting to make illegal”.

This is incredibly harmful

We have allowed… even encouraged people… to deeply hold the fundamental notion, that they get to vote on other peoples opinions, choices, and behavior; and if their “side” wins the vote, that it is legitimate to make those things legal or illegal.

It also means that these people automatically and reflexively try to solve personal, moral, social, or societal problems, with government and law, when it is entirely inappropriate, even harmful, to attempt to do so. Most of those problems cannot be solved by the use of force;, or at best can only be solved inefficiently, ineffectively, and while violating the rights of others.

In encouraging this misapprehension, we have in fact made the personal, the political, and the political, the personal.

How do we stop the harm?

We must correct this critical error in peoples fundamental apprehension of law and government.

People need to understand, at the most fundamental level, that government is force, and that law is how that force is directed and administered. No more, no less.

If we don’t correct this misapprehension, then we will continue to simply seesaw back and forth between majoritarian tyrannies, as social changes dictate.

Rights will continue to be violated and abrogated as the opinions of society fluctuate.

The favored, will continue to be privileged over the disfavored at the expense of the disfavored’s rights, until the pendulum swings again and the roles are reversed.

Yes, I realize, that is largely how it has always been… But never has law and government had such a depth and breath, had so great a reach into our personal lives, as it does today, and this unfortunately shows no sign of receding.

The absurdity of this reach… and overreach… is finally becoming apparent to many people, on all ideological “sides”; be it the “war on drugs”, the “war on terror”, privacy and surveillance, or gay marriage and wedding cakes.

So, we have to take action, now

Use this growing awareness of the overreach, to help people understand.

We have to show people these aren’t just outlying excesses. That they result from the way we think of, look at, and attempt to use, government.

We have to get people to understand, that if they can say “there ought to be a law”, and then get a law made banning something that they don’t like; then their worst enemy, can get a law made banning something they love.

We have to return to the notion that fundamental rights matter, and that the only legitimate purpose of law, and government, is to protect those fundamental rights.

Everything else?

That’s up to individuals, and to society as a whole, NOT GOVERNMENT.

Voluntary collective action. If it’s really what people want, then they’ll work for it, without the threat of force. If it’s not really what they want, then we shouldn’t be forcing people to do it.

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

Quote of the Day: Baltimore 2015 Edition

what ifI’ve been thinking quite a bit about the situation in Baltimore and the very state of our culture. This Facebook status update I came across yesterday is very worthy of repeating here.

I really wish people would stop posting Freddie Gray’s criminal record, as if that makes him deserving of having his spine broken while in police custody, killing him. You can’t claim to be a supporter of constitutional rights, yet care nothing of Freddie Gray’s rights. This brother was no less deserving of his life than any white collar criminal. I don’t support rioting & looting, but I also won’t support those who think his life was worth less than the next person, or that he got what he deserved. He was the victim in this case, and his record is irrelevant… – Talitha McEachin

Agreed. Unless Freddie Gray presented a presented a threat to the lives of the police officers while he was in custody*, the police had no right to use the force they used that ultimately ended his life. Whether he was arrested one time or a thousand has nothing to do with how Gray was treated.

*Of course at this point, we don’t really know what happened while Gray was in custody. This is yet another argument for the notion that each and every moment the police are interacting with a suspect that these interactions should be recorded and made available (eventually) to the public. There’s simply no excuse for this not to be the policy of every police department in 2015.

Quote of the Day: Jason Pye on the Smarter Sentencing Act


Jason Pye, former contributor to The Liberty Papers and current Director of Justice Reform at FreedomWorks posted an article yesterday for Rare Liberty about some promising political developments in the area of criminal justice reform. Perhaps one of the most promising of these developments at the federal level is a bill being considered is S.502 – The Smarter Sentencing Act.

Jason explains why he believes this reform is a step in the right direction:

With federal prison spending booming, an unlikely bipartisan alliance has emerged to bring many of these successful state-level reforms to the federal justice system. Sens. Mike Lee (R-Utah), Ted Cruz (R-Texas), and Rand Paul (R-Ky.) have joined with Dick Durbin (D-Ill.), Cory Booker (D-N.J.), and Sheldon Whitehouse (D-R.I.) to reform federal mandatory minimums – a one-size-fits-all, congressionally mandated approach to sentencing.


The Smarter Sentencing Act would expand the federal “safety valve” – an exception to federal mandatory minimum sentences for low-level nonviolent offenders with little or no criminal history – and cuts in half mandatory minimum sentences for nonviolent offenders. This more rational approach to sentencing will reduce costs on already overburdened taxpayers. The nonpartisan Congressional Budget Office estimated a net $3 billion cost-savings over a decade. The Justice Department believes the bill will save an eye-popping $24 billion over 20 years.

The benefits of the Smarter Sentencing Act may not end with the fiscal savings. It could also reverse the damage done by federal mandatory minimum sentences in certain communities, which, as Lee recently explained, “have paid a high cost for the stiff sentences that mandatory minimums require.”

1 2 3 4 101