Strictly Speaking

Strict liability is bullshit.

An ex-soldier handing in a found sawed-off shotgun faces five years in an English prison for illegal possession of a firearm. Of course, he only possessed it in order to get it off the streets and turn it into police:

A former soldier who handed a discarded shotgun in to police faces at least five years imprisonment for "doing his duty".

Paul Clarke, 27, was found guilty of possessing a firearm at Guildford Crown Court on Tuesday – after finding the gun and handing it personally to police officers on March 20 this year.

The jury took 20 minutes to make its conviction, and Mr Clarke now faces a minimum of five year's imprisonment for handing in the weapon.

In a statement read out in court, Mr Clarke said: "I didn't think for one moment I would be arrested.

"I thought it was my duty to hand it in and get it off the streets."

The court heard how Mr Clarke was on the balcony of his home in Nailsworth Crescent, Merstham, when he spotted a black bin liner at the bottom of his garden.

In his statement, he said: "I took it indoors and inside found a shorn-off shotgun and two cartridges.

"I didn't know what to do, so the next morning I rang the Chief Superintendent, Adrian Harper, and asked if I could pop in and see him.

"At the police station, I took the gun out of the bag and placed it on the table so it was pointing towards the wall."

Mr Clarke was then arrested immediately for possession of a firearm at Reigate police station, and taken to the cells.

The story goes on to say that Mr. Clarke's intent is irrelevant because gun possession is a "strict liability" offense, meaning that no matter how one comes into possession of a banned item or substance, or whether or not one had mens rea--criminal intent--he is technically guilty.

This is doubly frustrating because he faces "at least" five years in prison. Like some gun and other criminal offenses in the United States, Mr. Clarke is poised to lose five years of his liberty for doing the right thing because of mandatory minimum sentencing laws.

One-size-fits-all laws are pernicious. While most of these laws were crafted to bring uniformity and fairness to criminal sentencing--consistency , generally speaking, is a good thing--they become inflexible barriers to true justice in many cases. As I have said before, judges should be allowed to assess the facts of any given case to bring about a just conclusion to a criminal matter. Statutory constraints like "strict liability"--particularly when coupled with mandatory minimum sentences--cross the line from proper legislative decisionmaking into what should be exclusively judicial purview. Stripping judges of their ability to judge mitigating factors--or, in this case, undisputed facts that should have led to immediate dismissal--can result in the state committing crimes against its citizenry.

While I'm not familiar with the English criminal justice system, given that America's common law is a direct descendant of English common law, there has to be some executive or other official that can issue a pardon for this man. They should issue that pardon immediately, in addition to an apology.

Last year, I wrote a piece for reason on mandatory minimum sentences as they applied to ex-(and hopefully future) NFL star Plaxico Burress, that can be found here. Also, in today's WSJ, the feds are rethinking mandatory minimum policy. Let's hope (against hope, probably) that they get this right, at least on a federal level.

'By Any Means Necessary' Does NOT Apply to Prosecutions

Some disturbing news I just read in WaPo:

RICHMOND, Va. (AP) -- Lawyers for sniper mastermind John Allen Muhammad are asking a federal appeals court in Virginia to toss out his conviction and death sentence.

...

On appeal, Muhammad claims prosecutors withheld crucial evidence. He also alleges errors by his court-appointed attorneys and the trial judge.

I'm less concerned with the errors by his attorneys and, from the cases I've read, judges are loath to overturn judges on procedural grounds in all but the most egregious cases. Prosecutorial misconduct, however, is in the news right now thanks to the nitwits who botched Sen. Ted Stevens' case.

I'm not familiar with the Muhammad/Malvo proceedings, but hopefully charges from other murders can be pursued if he gets off. That said, he should be freed (on this charge) if his allegations are true.

Without the spectre of convictions being overturned for violating defendants' rights, prosecutors have little incentive to abide by the rules.

John Allen Muhammad deserves to die, but only after being convicted at a fair trial. To many, this distinction may seem unimportant or even insulting, but the rights of defendants--even guilty ones--must be respected. Proper prosecutorial procedure is essential to a fair criminal justice system.

Imaginary Jurisprudence

The cojones on this Congress are approaching Blagojevich magnitude:

Self-proclaimed victims of global warming or those who "expect to suffer" from it - from beachfront property owners to asthmatics - for the first time would be able to sue the federal government or private businesses over greenhouse gas emissions under a little-noticed provision slipped into the House climate bill. (emphasis mine)

There is a long-established standard in courts of law: a plaintiff must provide what is known as "standing." Standing, in a nutshell, is reasonable proof that the plaintiff has suffered a harm because of the law or action they are challenging. For example, the D.C. gun case was originally called "Parker v. D.C.," but the complaints of Ms. Parker and all the other plaintiffs except Dick Heller were thrown out for lack of standing. Their complaints were based on conjecture: that they could reasonably expect to be arrested for having a firearm didn't pass the D.C. Circuit Court of Appeals' standing standard. Dick Heller showed standing by being rejected for a gun permit, going through a procedural hurdle to show the government actively denied his purported 2nd Amendment right--i.e., harm.

While I find that particular interpretation dubious, it illustrates my point that standing is an important and substantive hurdle that limits the suits brought into court. Expanding standing to expected harm, based on arbitrary standards of emissions, is entirely too burdensome on any defendant, whether a private entity or the federal government.

For example: while you are more likely to develop lung cancer or emphysema from smoking, it is not a statistical certainty. Indeed, you may get one or the other--or neither. You may, as smokers often defend themselves, get hit by a bus tomorrow and never suffer any long-term consequences from smoking. This law, if passed, will allow people to sue on grounds that they may--or indeed, may not--suffer harm from emissions.

This is not to anyway argue with the scientific methods of global warming. But there is not a single reputable study or finding that says that any individual or group will, with 100% certainty, suffer damages or harm as a result of carbon emissions. Furthermore, EVEN if there were, the extent of that damage is purely conjecture and incalculable for the purposes of awarding damages.

To exact an amount for damages that haven't happened yet is anathema to our theories of jurisprudence. This is a dangerous provision that can be described as nothing other than a gift to environmentalists and trial lawyers. This isn't justice: this is punitive preemption.

Ronald Coase famously dealt with pollution in market terms nearly 40 years ago, but I will grant that even in his framework, harm will come to people. In that case, the harmed have recourse through the court system, as they very well should. But while I fear an environmental regulatory regime under this Congress, it is infinitely preferable to an EPA rendered impotent by countless and contradicting lawsuits.

If they stop and think about it, I doubt highly that even environmentalist would like environmental protection by judicial fiat either--unless, of course, they want Justice Scalia determining environmental standards?

Gideon and the Right to Counsel

Walter Mondale has an op-ed in WaPo today calling for the states and the federal government to"rededicate" themselves to ensure that all defendants in criminal cases have adequate counsel, as assured in Gideon v. Wainwright. In addition, the former vice president alludes to expansion of this right to "certain" civil litigants.

Walter, you had me until "civil litigants."

In my current professional capacity, I come across requests for assistance from prisoners, criminal defendants, and civil plaintiffs in cases against the government. I work in a policy shop and always have to refer them to actual law firms or organizations that actually handle litigation, but the requests pour in nonetheless. I have never figured out the ratio of legitimate claims to frivolous ones, but I assure you that there is no shortage of the latter in regards to civil litigation.

People with no real concept of law, our legal system, or even basic understanding of the Constitution file cases in courts regularly, often on a pro se basis (i.e., without a lawyer). If all the paperwork is done, then the courts have to at least entertain the claim and find a legal reason to dismiss it. (I can only imagine the awful job sifting through mounds of paranoid, rambling incoherence and trying to come up with a decent reason to dismiss if the dedicated simpleton successfully addresses the issue of standing.) Such cases allege monitoring by all extant--and some fictitious and extra-terrestrial--government agencies, unfair seizure of property due to defaulted mortgages that they somehow try to argue away, and other farcical thoughts that should never be conceived, let alone addressed in a court of law.

Expanding the right to counsel to civil litigation is not only a logistical nightmare, but one in which provides the perverse incentive to increase the amount of litigation in an already overly litigious society. Yes, courts play a vital role in keeping businesses in check. But, good god, the product and medical liability suits are already choking the courts--which are understaffed, by the way (thanks Pat Leahy!)--and making it difficult to do business or take care of people. This is not a good thing.

I understand that Mr. Mondale wrote "certain" civil cases and would presumably be insulated from the more blatantly ridiculous claims--I'm not trying to straw man him here. However, this could lead to an entirely new strain of litigation that could very well expand any "narrowly tailored" legislation limiting whom is eligible for counsel. Any case or plaintiff deemed outside of the direct scope of the statute can appeal the original judgment, and any successful challenge would start the entire process over again. There would be no uniformity among the states, so different states' statutes would be pitted against one another and judged differently in different jurisdictions. It would work its way up and back down through the various court systems for years to come--and with all that litigation comes lawyer's fees that can be extracted from the respondent parties and taxpayers (since this all relies on the plaintiffs being unable to pay the first place). Is it any wonder the ABA is leading this charge?

We need tort reform, of that there is little question. But giving more people access to an overrun court system is not the answer.

Quote of the Day

(Ok, it was this weekend. But I've been traveling, so deal)

[D.C. Police Chief Cathy] Lanier, who was accompanied at the news conference by City Administrator Dan Tangherlini with Mayor Adrian M. Fenty (D) out of town, defended the [Trinidad neighborhood] checkpoints yesterday as legal and a useful police tool. "Until a judge orders me to stop, I'm going to do everything I can to protect the people in Trinidad," Lanier said.

Except, of course, make it easier for the citizens to protect themselves with handguns.

Brutalizing English for Political Gain

My head nearly exploded this morning when I read this opening paragraph of a WSJ editorial:

The best news about yesterday's White House-Democrat deal on overseas eavesdropping is that the ACLU and the anti-antiterror Internet mob are apoplectic. This can only be good for U.S. national security. Too bad the compromise also comes at the cost of a further erosion of Presidential war powers.

"Anti-antiterror?" "War powers?"

I've ranted against "anti-antiterror" before, although it still infuriates me to no end. If the WSJ is going to be that way, they should just call people like me pro-terrorist or communist or whatever other ridiculous smear they can think of for properly comprehending the 4th Amendment to the Constitution of the United States. If they did that, they could limit their offensiveness to their own ideas without butchering the language to mask the absurdity of their implication.

Secondly, domestic intelligence gathering is not a tool of war. Indeed, it is a criminal justice issue and thus properly relegated to the judicial oversight of the FISA court. Under this twisted logic that conflates a policy talking-point (i.e. "War on Terror") with a conflict between military or paramilitary forces (i.e., war), one could easily argue for discarding Constitutional rights in the "War on Drugs" or even the "War on Poverty"--and they have.

Calling something a "war" as a political tactic does not make it so. Such language is simply a political trick to convince the public that the government can strip individuals rights for the sake of some greater good during a national emergency, that may or may not be as dangerous as advertised.

More on the political chicanery of the ubiquitous war metaphor can be found in my friend Gene Healy's book Cult of the Presidency. Buy it here.

Technology Fights The System

In the latest incident of technology catching police abuse/lying, a man gets a cop busted for perjury (and consequently escapes a 25-year prison stint) because he secretly recorded his own interrogation:

A teenage suspect who secretly recorded his interrogation on an MP3 player has landed a veteran detective in the middle of perjury charges, authorities said Thursday.

Unaware of the recording, Detective Christopher Perino testified in April that the suspect "wasn't questioned" about a shooting in the Bronx, a criminal complaint said. But then the defense confronted the detective with a transcript it said proved he had spent more than an hour unsuccessfully trying to persuade Erik Crespo to confess - at times with vulgar tactics.

Once the transcript was revealed in court, prosecutors asked for a recess, defense attorney Mark DeMarco said. The detective was pulled from the witness stand and advised to get a lawyer.

[...]

Prosecutors then offered Crespo, who had faced as many as 25 years if convicted, seven years if he pleaded guilty to a weapons charge. He accepted.

Three Cheers Tokes for Federalism!

Some encouraging news out of California:

The decision by a unanimous three-judge panel of the 4th District Court of Appeal to uphold a court order directing Garden Grove police to return marijuana seized from a properly certified patient is a welcome validation of the law approved by voters 11 years ago. Since it clarifies the duty of state and local law enforcement agencies – to uphold state law, not to ignore it and seek to enforce federal law – it should end the noxious and widespread practice of simply seizing medical marijuana from patients who are legally entitled to possess it.

Medical marijuana may provide an excellent catalyst to get more lefties to be respectful of federalism. The federal 'War on Drugs' is perhaps the best example to demonstrate that concentrating so much power in the federal government runs counter to the interests of personal liberty.