- “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]
My take on the Oregon standoff, this morning at The Federalist:
As my Cato Institute colleague Randal O’Toole skillfully explained, none of the protagonists in the Oregon standoff really deserve our admiration: the Hammond ranching family misbehaved, the federal government overcharged, and then the Bundy cranks arrived to spray kerosene on the glowing embers….
Unlawful protest occupations of public places and government buildings have long been a familiar part of American public life, and even those not involving arms sometimes have rather serious consequences for the health and well-being of innocent bystanders….
In the ordinary calculations of humanity, events like Waco and Ruby Ridge and the Philadelphia MOVE bombing represent a grotesque failure. Despite the spirit of the mob and the ever-present temptation to shoot first, most such situations in our country are resolved with legal consequences for the wrongdoers but not with loss of life and limb. We should be glad of that.
Read the whole thing here. I’ve covered the earlier Bundy Nevada standoff in this space, as well as the wider phenomenon I call folk law. For more coverage of occupations, blockades, and acts of physical intimidation that were resolved without bloodshed (and sometimes without later legal consequences to those who broke the law) see our tag on selective law non-enforcement, including this from 2011 about how some cheered when unionized Wisconsin police announced solidarity with protesters occupying the state capitol and refused orders to oust them.
More: Randal O’Toole has a new post up on the Hammonds’ actions and punishment.
The Washington Legal Foundation recently published a graphics project/report called “Timeline: Federal Erosion of Business Civil Liberties” that includes sections showing concurrent changes in six areas of law: mens rea, public welfare offenses and the responsible corporate officer doctrine; EPA criminal enforcement policies; DoJ criminal prosecution policies; attorney-client privilege; deferred prosecution and non-prosecution agreements; and proliferation of criminal laws, and sentencing developments. Read more, including updates, here.
- If tempted to idealize the U.K. justice system, be aware it was in a London court that Saudi millionaire beat rape charge by arguing that he “tripped” into sexual congress [New York mag]
- Dear Reuters: it would be great if you could report the full story behind a perp walk like Martin Shkreli’s [Ken White, Popehat]
- Better for ten innocents to be imprisoned than one businessperson go free: “The New York Times has come out against the creation of a minimum mens rea element for all federal crimes.” [Scott Greenfield, Scott Shackford] More: Orin Kerr; more Greenfield; Cato podcast on mens rea with Robert Alt.
- Obama Justice Department’s incursions on mens rea dovetail with its efforts on the responsible corporate officer doctrine [Ilya Shapiro and Randal John Meyer, National Review]
- Escalating fines and fees, as well as a probation system under an incentive not to work, drag down poorer residents of Biloxi, Miss. [Radley Balko]
- How federal law came to define “sex trafficking” to include non-coerced adult prostitution [American U. law professor Janie Chuang quoted by Glenn Kessler, Washington Post “Fact Checker”, who also debunks wildly inflated figures from Attorney General Loretta Lynch]
- If only the late Gary Becker, a towering figure in law and economics, could have been persuaded to give up one of his less happy theories… [Alex Tabarrok]
How can you resist a debate between two of the nation’s most distinguished federal appeals judges — Alex Kozinski of the Ninth Circuit and J. Harvie Wilkinson III of the Fourth — moderated by Tim Lynch? [more; coverage, Jacob Gershman, WSJ]
P.S. More on Judge Kozinski’s recent ideas on criminal justice reform (sample: let defendants choose jury or bench trial, study exonerations in depth, go after bad prosecutors) from Eugene Volokh and Radley Balko.
The urge to criminalize the other guy’s politics and advocacy seems to be running especially strong these days. If you doubt it, here’s another data point: a Latino advocacy group called Presente.org, following Republican presidential candidate Donald Trump’s controversial comments critical of immigration, called for arresting Trump. Not only did this not stir any great outcry, but rival Democratic presidential candidate Bernard Sanders has now hired Presente.org’s executive director to lead his Latino outreach.
One reason our elections and public debates are intensely fought is that they carry high stakes. Their stakes will be higher yet if the price of coming out on the losing side in an election or debate is to face potential prosecution.
David Kopel writes that “background check” laws pushed by the Bloomberg anti-gun campaign in states like Colorado and Washington have weird effects, whether intended is not entirely clear, on such topics as safe storage of firearms, the sharing of firearms during informal target shooting, and the legality of handgun possession by 18-21 year olds. This might be a sub-instance of a related problem noted by Glenn Reynolds at USA Today: “Gun-control laws have a tendency of turning into criminals peaceable citizens whom the state has no reason to have on its radar.”
- Manufacturing while foreign: Holman Jenkins compares Department of Justice’s handling of General Motors case with those of Toyota and Takata [WSJ, paywall]
- “Electronic surveillance by the Drug Enforcement Administration has tripled over the past 20 years, and much of that increase has involved bypassing the federal courts.” [Brad Heath, USA Today via Balko]
- Sen. Hatch: criminal justice reform needs to include reform on issue of mens rea/criminal intent [John Malcolm, Daily Signal]
- Clinton administration tended to embed its anti-gun gestures in its then-popular carceral-state enactments [Jesse Walker on the 12-year lull in anti-gun legislation and whether it’s ending]
- New DoJ policy on corporate criminal prosecutions risks scapegoating [Thaya Knight, Cato] Despite transient surge early in Obama years, federal white-collar crime prosecutions have now fallen to 20-year low [TRAC Reports]
- A legal remedy should federal law enforcers falsely malign you in a press release? Dream on [Scott Greenfield]
- If you oppose high U.S. incarceration rate, but wish more corporate executives went to prison, check your premises [Matt Kaiser, Above the Law]
During pregnancy “occasional, small doses of diazepam (the generic name for Valium) are considered safe… But one morning a few weeks later, when Shehi was back at her job in a nursing home and the baby was with a sitter, investigators from the Etowah County [Alabama] Sheriff’s Office showed up at the front desk with a warrant. She had been charged with ‘knowingly, recklessly, or intentionally’ causing her baby to be exposed to controlled substances in the womb — a felony punishable in her case by up to 10 years in prison. The investigators led her to an unmarked car, handcuffed her and took her to jail.” [Nina Martin, ProPublica]
P.S. Expanded into a longer post at Cato at Liberty.