- Drivers’ license should signify ability to drive motor vehicle safely. Denial for miscellaneous arm-twisting reasons – e.g. child support – is bad policy. [Beth Schwartzapfel, Marshall Project (“43 states suspend driver’s licenses for unpaid court debts, but only four require a hearing beforehand to determine whether the failure to pay is willful or simply a reflection of poverty.”); Jessica Silver-Greenberg, Stacy Cowley and Natalie Kitroeff, NYT (“Twenty states suspend people’s professional or driver’s licenses if they fall behind on [student] loan payments, according to records obtained by The New York Times.”)] Earlier here (tax delinquents in New York), here, here, here, etc.;
- Under centuries of precedent, bail must be individualized as well as not excessive [Ilya Shapiro on Cato amicus in Walker v. City of Calhoun, Eleventh Circuit] And my piece on Maryland’s botched bail reform is now available ungated at Cato;
- Harvey Silverglate recounts an old tale of prosecutorial entrapment — starring Robert Mueller, then acting U.S. Attorney in Boston [WGBH]
- Criminal justice, mass incarceration, and the libertarian cause: Radley Balko’s speech on winning Bastiat Award [Reason]
- “The Troubling Expansion Of The Criminal Offense Of Obstructing The IRS” [Kathryn Ward Booth, Vanderbilt Law]
- Murder rap for drug supplier after overdose distorts both criminal law principle and incentives [Scott Greenfield, earlier here and here, see also here and here (prescribing doctors)]
- Sources: Treasury intelligence division has unlawfully spied on and collected Americans’ private financial information [Jason Leopold and Jessica Garrison, BuzzFeed]
- “A majority of Americans oppose the idea of regulating CEO pay.” [Thaya Brook Knight, IBD]
- “Senate should vacate the harmful consumer banking arbitration rule” [Keith Noreika (acting U.S. Comptroller of the Currency), The Hill]
- “Derivative litigation mainly serves as a means of transferring wealth from investors to lawyers.” Is there a case for abolishing it? [Stephen Bainbridge]
- U.S. government files false affidavit, stages splashy raid, destroys business. Tough luck apparently [Ira Stoll on Second Circuit finding of qualified immunity for prosecutors in David Ganek case]
- “Look in the Mirror: Why the Number of Public Companies & IPOs are in Decline” [Patrick A. Reardon, CrowdFund Insider]
In which innocence can be irrelevant: the defendant “wept with joy. Then she stood before the judge and pleaded guilty to a crime she says she did not commit.” [Emily Yoffe, The Atlantic]
I’m in today’s New York Post. Excerpt:
“Mueller teams up with New York attorney general in Manafort probe,” Politico reported Wednesday. Commentators went wild.
What could be more exciting than for the special counsel investigating the Russian matter to team up with noted Trump foe Eric Schneiderman? Neither the president nor Congress can lay a glove on him; some of the legal weapons he wields go beyond what Mueller has at his disposal; and if Schneiderman obtains convictions in state court, Trump will have no pardon power. It’s like two superheroes with coordinating capes and powers!
Around liberal Twitter, it was a total game changer. “THIS IS BIG!!!!!!” typed Amy Siskind of New Agenda, hailing the sort of news for which four or five exclamation points won’t do. “What’s Russian for ‘Trump’s goose is cooked?’” crowed Harvard’s Laurence Tribe.
In the opposite camp, the Trumpian claque at Breitbart argued that with the combative New York AG on board — Schneiderman has long feuded with Trump, and is widely disliked by Republicans — the whole Russian probe can be dismissed as tainted. The connection “undermin[es] the integrity and impartiality of Mueller’s inquiry,” wrote Joel Pollak. “There could not be a more inappropriate person to be seen working with Mueller.”
Both sides should calm down….Federal and state prosecutors are supposed to cooperate when investigations overlap. That’s what they do.
I go on to discuss sharing of grand jury information, the ripples of dismay sent by Trump’s Joe Arpaio pardon (on which more from Josh Blackman here, see also and earlier), and New York’s Martin Act. Whole thing here.
Ken White at Popehat has written new explainers on how federal grand juries work and on search warrants. From the latter: “Even the best-trained and most responsible federal agents — and I mean this with the utmost respect — tend to act like coked-up raccoons when you turn them loose with a search warrant.”
- Clark Neily, who spent 17 years at the Institute for Justice and is the author of the constitutional law book Terms of Engagement, joins Cato as vice president for criminal justice [Cato press release]
- California is among 29 states that revoke drivers’ licenses for failure to pay tickets, which can knock poorer persons out of the workforce over minor offenses [Maura Ewing, The Atlantic]
- It’s quite rare for prosecutors to file felony charges against public defenders — unless you’re in New Orleans [The Guardian] “Jefferson Parish prosecutors used fake subpoenas similar to those in New Orleans” [Charles Maldonado, The Lens]
- To explain America’s love affair with incarceration, look first to ideology not race [Thaddeus Russell, Reason]
- North Carolina law bans persons on sex offender registry from using social media. Constitutional? [Federalist Society podcast with Ilya Shapiro, Cato on Supreme Court case of Packingham v. North Carolina, more on sex offender registries]
- Judge orders D.A. to return life savings seized from legal medical cannabis business owners; no charges had been brought [Institute for Justice press release] D.A. then files charges against him and his attorney [NBC San Diego]
Seems incredible: the district attorney’s office in the county-equivalent that includes New Orleans sends out bogus subpoenas not actually cleared with a judge ordering witnesses to appear for investigations. A spokesman says it’s been done for decades. Following press inquiries, “the District Attorney’s Office has said the practice will end.” [The Lens (New Orleans)]
New court reforms proposed by the U.K.’s Ministry of Justice would do away with many criminal defendants’ right to cross-examine accusers before a jury. The rules provide that what are deemed “vulnerable” victims and witnesses, mostly in sex cases, will instead be allowed to undergo cross-examination recorded in advance for later play in court. [BBC] Here in the U.S., the Sixth Amendment’s Confrontation Clause might have a thing or two to say about that.
Jonathan Abel, guest posting at Volokh Conspiracy, has a series on the numerous tensions affecting prosecutors’ Brady v. Maryland obligation to disclose impeachment evidence that may be available in police personnel files, that is to say, evidence unfavorable to the credibility of planned police testimony: intro, first, second, third, fourth, and fifth posts.