On the West Coast, changing public policies including lighter legal consequences for theft and lower priority of police response have led to a rise in shoplifting and other crime in stores, sometimes blatant. Compounding the problem: stores fear large liability payouts should they chase or touch a suspected miscreant [Christopher F. Rufo, City Journal; Scott P. Lindsay study for Downtown Seattle Association]
We posted last month about Mike Chase’s new book “How to Become a Federal Criminal: An Illustrated Handbook for the Aspiring Offender” (Atria Books). For a deeper dive, check out Shoshana Weissmann’s lengthy running thread with many more highlights from the book. And of course since A Crime a Day is itself a Twitter-based project, you should be sure to follow it while there (see also).
"To engage in criminal flamingo bartering, the offender only needs a lead on a flamingo and something of roughly equivalent value to trade for it." pic.twitter.com/rh0KuP6JmC
— Shoshana Weissmann, Sloth Committee Chair ? (@senatorshoshana) July 11, 2019
Since an attacker motivated by anti-immigration sentiments killed 22 at an El Paso, Texas Walmart, there has been a cry for new laws against “domestic terrorism.” Most who join in the outcry, however, haven’t begun to think through the implications, especially since these sorts of laws “rarely stay limited to their nominal purpose,” notes Fordham’s John Pfaff in a thread. “Criminal laws will inevitably be written broadly, and that breadth will inevitably mean they will expand their reach.”
I’m really struggling to understand what a “domestic terrorism” law would add.
Here’s the core part of Fed’s international terrorism statute:
Note that everything covered by the statute—murder, kidnapping, etc.—must already be a crime.
There’s nothing new… but real risks: pic.twitter.com/jnSusKkxPC
— John Pfaff (@JohnFPfaff) August 7, 2019
The Patriot Act created special warrants to go after terrorists. Over 11,000 such warrants were issued in 2013:
0.5% were used in terror cases.
80% were used in routine drug cases.https://t.co/ivKTOajBQT
Laws like this always reach farther than we think. https://t.co/7tCUQ9LO4l
— John Pfaff (@JohnFPfaff) August 7, 2019
- “Authorities noted in the complaint he lived ‘9 houses’ away from the site of a residence where drug transactions were occurring…” [Tim Cushing, TechDirt on $626,000 Missouri civil asset forfeiture seizure]
- As Loyola lawprof Dane Ciolino points out, Louisiana “victims’ rights” bill seems meant to hobble public defenders’ witness investigations without holding law enforcement and D.A.s to same standards [Kira Lerner, The Appeal, earlier here, here, here, and here]
- A “truly disgraceful chapter in the history of British policing” culminates in conviction of fantasist who made up child abuse charges against prominent figures [Dan Rivers, ITV]
- The May 19 story on Dallas’s nonprosecution policy for lower-level offenses (“shoplifters’ holiday”) resulted in a discussion in comments of the similar policy of Suffolk County, Mass. (Boston) district attorney Rachael Rollins. Rollins’s policy has since come in for considerable controversy: “A Globe review of Rollins’s record reveals that, not only is the Suffolk DA dropping more cases than before, but some of the cases don’t seem “low-level” at all, involving serious bodily injury, major thefts, and career criminals.” [Andrea Estes and Shelley Murphy, Boston Globe, July 6]. [h/t reader Hugo C., who writes: “Two cases stood out to me: (a) an assailant who put an attorney in the hospital with long-term brain damage got no prison time, and (b) a criminal caught breaking into a warehouse with a crowbar (and found to be in possession of 39 stolen credit cars) was turned loose.”]
- Electronic ankle monitors that not only report location, but also capture and report back audio of the wearer’s surroundings, raise difficult privacy issues [Kira Lerner, The Appeal via Chaz Arnett]
- Alexandra Natapoff discusses her recent book Punishment without Crime: How Our Massive Misdemeanor System Traps the Innocent and Makes America More Unequal [Cato event video with Jonathan Blanks; related Cato podcast]
- Leave the country with too many nickels, absent a special license from the U.S. Mint;
- Label as “macaroni” pasta that is the wrong size or shape, or as “Swiss cheese” a cheese that is solid rather than having holes;
- Circulate a private currency;
- Engage in weather modification without notifying the Secretary of Commerce;
“An amusing guide to some of the more bizarre statutes can be found in the new book ‘How to Become a Federal Criminal: An Illustrated Handbook for the Aspiring Offender‘ (Atria Books) by criminal defense lawyer Mike Chase, who also runs the Crime A Day Twitter account.” [Reed Tucker, New York Post] “‘Almost anyone can be arrested for something,’ Justice Neil Gorsuch observed in a case the Supreme Court decided last month.” [Jacob Sullum]
Crossing to join his four liberal colleagues, Justice Neil Gorsuch wrote the opinion in yesterday’s Davis v. U.S., finding unconstitutionally vague a federal sentence-enhancement provision prescribing “harsher penalties for those who use guns ‘in connection with certain other federal crimes.'” [Jack Rodgers, Courthouse News] His opinion begins:
In our constitutional order, a vague law is no law at all. Only the people’s elected representatives in Congress have the power to write new federal criminal laws. And when Congress exercises that power, it has to write statutes that give ordinary people fair warning about what the law demands of them. Vague laws transgress both of those constitutional requirements. They hand off the legislature’s responsibility for defining criminal behavior to unelected prosecutors and judges, and they leave people with no sure way to know what consequences will attach to their conduct. When Congress passes a vague law, the role of courts under our Constitution is not to fashion a new, clearer law to take its place, but to treat the law as a nullity and invite Congress to try again.
It was the third rights-of-the-accused case this term in which Gorsuch took the liberal side, and put him at odds once again with Justice Brett Kavanaugh. In his dissent yesterday, after crediting tougher federal laws with at least partial responsibility for the drop in crime since the 1980s, Kavanaugh noted that the sentence enhancement has been applied without seeming difficulty in thousands of cases of violent offenses since its enactment:
The Constitution’s separation of powers authorizes this Court to declare Acts of Congress unconstitutional. That is an awesome power. We exercise that power of judicial review in justiciable cases to, among other things, ensure that Congress acts within constitutional limits and abides by the separation of powers. But when we overstep our role in the name of enforcing limits on Congress, we do not uphold the separation of powers, we transgress the separation of powers….
The Court usually reads statutes with a presumption of rationality and a presumption of constitutionality.
While both were appointed by President Trump, Gorsuch and Kavanaugh have been anything but in lockstep.
Dissenting in the recent case of Nieves v. Bartlett, on the First Amendment handling of arrests motivated in part by retaliation for protected speech, Justice Neil Gorsuch wrote that criminal law in U.S. has expanded to a point where “almost anyone can be arrested for something.” And the implications? [Ilya Somin] Earlier on Nieves and the retaliatory-arrest case that preceded it last year, Lozman v. Riviera Beach, and more on the Nieves outcome from Tim Cushing at TechDirt.
5 widely circulated myths about prisons:
* U.S. prisons are full of nonviolent drug offenders;
* private prisons drive mass incarceration;
* long sentences are causing our prison population to age;
* recidivists and career criminals are pretty much the same group;
* not sending someone to prison saves $35,000 a year.
“A proposal before the D.C. Council would allow up to 80 regular citizens, 10 in each ward, to issue tickets to vehicles parked where they aren’t allowed — blocking crosswalks, in bike lanes, in front of bus stops.” What could go wrong? [Luz Lazo, Washington Post, also Laredo Morning Times]
Still, others say most people would prefer enforcement be left to trained, public employees.
“Public officials may be far from perfect .?.?. but there is that extra layer that at least you can train them and they are likely to have the time on the job that allows them to build up their expertise,” said Walter Olson, a senior fellow at the Cato Institute. They also have protocols to follow — and a job at stake.
“The cellphone evidence can go a long way, but it still doesn’t always tell the whole story,” he said. “A lot of times you are going to have people who are genuinely guilty and you will be enforcing the law as it was intended to be enforced. But traffic enforcement does have a lot of judgment calls.”
But Olson says he can see why the practice would be attractive to cities.
“The city gets more revenue without having to pay salaries,” he said. “The potential increase in ticket revenue would get their interest right away.”
I’ve got a new piece at Real Clear Policy on the push to constitutionalize crime victims’ rights (“Marsy’s Law”). Excerpt:
Unfortunately, most versions of Marsy’s Law so far impinge on legitimate rights of criminal defendants, constitutionalize issues better left to resolution by judges or lawmakers, and create ongoing tension with the presumption of innocence. …
Interests of evenhanded justice counsel against letting patterns of conviction and punishment depend too much on whether the complainant in any particular case is angry, energetic, articulate, or for that matter present at all. The function of criminal prosecution cannot be to validate the victim’s suffering. It must instead be to ascertain the truth as best as possible and impartially carry out the legal consequences on the guilty.
In short, there are very good reasons why the Framers included in the Constitution and Bill of Rights many protections for criminal defendants, but relatively few for victims. We forget that wisdom at our peril.