“Lochte’s story shows one good reason why we should not uncritically believe people who claim to be crime survivors.” [Andrew Fleishman, Fault Lines]
- Virginia “one of a minority of states that suspend driving privileges — in most cases, automatically — for failing to pay court costs and fines arising from offenses completely unrelated to driving.” [Washington Post editorial]
- D.C. Circuit “Rules DOJ Discovery Blue Book Off-Limits … For Now” [Jonathan Blanks, Cato]
- “The New York Times Knows Florida’s Self-Defense Law Is Bad but Can’t Figure Out Why” [Jacob Sullum]
- “We often hear that almost no one goes to prison simply for using marijuana.” But add “near a school”… [David Henderson]
- A forensics roundup from Radley Balko;
- “When Everything Is a Crime: The Overregulation of Ordinary Life” [Harvey Silverglate conversation with Reason’s Nick Gillespie]
Big news from federal court in San Francisco: we’ve repeatedly questioned the U.S. Department of Justice’s adventurous decision to charge Federal Express with crimes for, in essence, refusing to snoop into its customers’ packages and business. From our post two years ago:
The federal government has prevailed on a grand jury to indict Federal Express for servicing what it should have known were illicit online pharmacy operations. FedEx says it repeatedly asked the government to supply a list of shippers it considered illicit so that it could cut off service, but that the government refused; the Department of Justice contends that circumstantial evidence should have been enough to alert the package shipment company. …
And last month, quoting Washington Legal Foundation’s Cory Andrews:
“Federal prosecutors have accused FedEx of knowingly shipping illegal drugs in interstate commerce and laundering money by merely doing its job: delivering packages (in this case, from online Internet pharmacies) to their intended recipients and getting paid for the service. …To avoid the very sort of ‘gotcha’ prosecution at issue here, Congress inserted exceptions for common carriers in each of the relevant statutes” authorizing shipment of prescription medications and controlled substances when done in the usual course of business….
Now, this [Associated Press/ABC News]:
A criminal trial nearly two years in the making alleging FedEx knowingly delivered illegal prescription drugs to dealers and addicts ended suddenly Friday when prosecutors moved to dismiss all charges against the shipping giant.
U.S. District Court Judge Charles Breyer, who had been highly critical of the government’s positions as the trial unfolded, granted the motion to dismiss: on Friday he called FedEx “factually innocent” and said the withdrawal of charges was “in the court’s view, entirely consistent with the government’s overarching obligation to seek justice even at the expense of some embarrassment.”
FedEx spokesman Patrick Fitzgerald said in a statement Friday that the company has always been innocent and the case should never have been brought.
“The government should take a very hard look at how they made the tremendously poor decision to file these charges,” he said. “Many companies would not have had the courage or the resources to defend themselves against false charges.”
Many in the field of white-collar legal defense have warned large corporations, particularly those with businesses built upon relationships of public trust, to cut a deal with the federal government rather than try to withstand the full force it can bring to bear in a prosecution. But FedEx, for one, has shown that it is still possible to defy the authorities and win. Mike Koehler at FCPA Professor says that might help lay to rest what has been called the “Arthur Andersen effect” in which indictment is itself seen as tantamount to corporate death.
P.S.: Our friend James Copland of the Manhattan Institute has this observation (via email):
What’s remarkable here is that UPS agreed to a $40 million non-prosecution agreement — and to hire a new corporate officer and an independent auditor looking over their shoulder and reporting to the U.S. Attorney — for the same alleged conduct.
[cross-posted at Cato at Liberty]
More from Jim Copland and Rafael Mangual at Real Clear Markets: “Judge Breyer observed that the government had failed to show any ill intent, and he pointedly noted that prosecutors have not gone after the U.S. Postal Service for the same conduct…. glad FedEx called the government’s bluff and won.” And: Eugene Volokh; George Leef, Forbes (and thanks for quote).
“Federal prosecutors have accused FedEx of knowingly shipping illegal drugs in interstate commerce and laundering money by merely doing its job: delivering packages (in this case, from online Internet pharmacies) to their intended recipients and getting paid for the service. …To avoid the very sort of ‘gotcha’ prosecution at issue here, Congress inserted exceptions for common carriers in each of the relevant statutes” authorizing shipment of prescription medications and controlled substances when done in the usual course of business.
While courts have generated no case law authoritatively interpreting these exemptions in the Controlled Substances Act (CSA) and the Food, Drug, & Cosmetic Act (FDCA), “the need to do so had never presented itself because no prosecutor had ever dared to bring such a dubious indictment in the previous 45 years of the CSA’s existence.” [Cory Andrews, Washington Legal Foundation; earlier (“Feds indict FedEx for not snooping into packages”)]
Overhearing and repeating the wrong sort of evidence can land a parrot in a witness-protection program [Laurel Braitman, Digg]
Quite a read: former Wyoming GOP Sen. Alan Simpson, arguing for second chance law, recalls his own youthful offenses [Sioux Falls Argus-Leader]
Scalia for the general reader: my new piece briefly explains his textualism, originalism, and rules jurisprudence [American Media Institute Newswire, syndicated] And in a new Cato Podcast, Caleb Brown interviews Tim Lynch and me about the Justice’s legacy in the areas of criminal law, regulation, and administrative law:
In his long battle against vagueness in defining crimes, Justice Antonin Scalia was a true hero of liberty and the rule of law. Harvey Silverglate discusses that here.
- “Professional Responsibility: Prosecutors Run Amok?” video of panel from Federalist Society Lawyers’ Convention, with Judge Alex Kozinski, John Malcolm, George Terwilliger III, Darpana Sheth, moderated by Justice Keith Blackwell of the Supreme Court of Georgia;
- Criminal punishment with no showing of mens rea (guilty state of mind) is just fine with a certain faction of progressives and that’s revealing [Scott Greenfield, earlier and generally, new Right on Crime website on criminal intent standards]
- “Bill Cosby And Eliminating Statutes Of Limitation: A Truly Terrible Idea” [Joe Patrice, Above the Law]
- An “emerging narrative in law enforcement circles: Cops aren’t shooting people nearly enough” [Radley Balko]
- Police officer is struck and killed by passing car while attending to scene following alleged drunk driving crash. Can driver charged with original crash also be charged with manslaughter and homicide arising from officer’s death? [Ken Womble, Fault Lines on Long Island case of People v. James Ryan]
- Labeling sex offenders’ passports? Really, what next? [Lenore Skenazy/New York Post, David Post/Volokh] “Why America Puts 9-Year-Old Kids on the Sex Offender Registry for Life” [same, Reason] “What new mean thing can we do to sex offenders to show how serious we are?” [Radley Balko]
- “If you ignore levels, and just look at rates of change, crime rates in Canada track those in the United States to an astonishing degree. How can that be?” [Tyler Cowen on forthcoming Barry Latzer book, The Rise and Fall of Violent Crime in America]