Overlawyered » crime and punishment http://overlawyered.com Chronicling the high cost of our legal system Mon, 22 Dec 2014 10:29:24 +0000 en-US hourly 1 http://wordpress.org/?v=4.0 Brian Aitken at Cato http://overlawyered.com/2014/12/brian-aitken-cato/ http://overlawyered.com/2014/12/brian-aitken-cato/#comments Thu, 18 Dec 2014 10:55:05 +0000 http://overlawyered.com/?p=50046 In several 2010 posts we covered the story of Brian Aitken, who was imprisoned by the state of New Jersey simply for carrying unloaded guns and ammo in his trunk (really, that was the extent of the crime). Last week Cato hosted Aitken to talk on his new book The Blue Tent Sky: How the […]

Brian Aitken at Cato is a post from Overlawyered - Chronicling the high cost of our legal system

]]>

In several 2010 posts we covered the story of Brian Aitken, who was imprisoned by the state of New Jersey simply for carrying unloaded guns and ammo in his trunk (really, that was the extent of the crime). Last week Cato hosted Aitken to talk on his new book The Blue Tent Sky: How the Left’s War on Guns Cost Me My Son and My Freedom. Tim Lynch of Cato moderated, and I gave comments. Event description:

In 2009 Brian Aitken, a media consultant and web entrepreneur, ran afoul of New Jersey’s draconian gun laws when he was arrested while transporting two handguns unloaded and locked in the trunk of his car. Despite the fact that Aitken owned the guns legally and had called the New Jersey State Police for advice on how to legally transport his firearms, he found himself sentenced to seven years in prison.

In 2010 New Jersey governor Chris Christie commuted Aitken’s sentence. But Aitken’s experience, like that of other law-abiding gun owners who’ve faced long prison sentences for honest mistakes, raises troubling questions about gun-law overreach, prosecutorial discretion, and judicial abdication.

I recommended the book as a riveting and outrageous read, yet leavened with hope because of the story of the strong public movement that formed to protest the injustice of his incarceration. In my comments, I mentioned the feds’ heavily armed raid on an Indiana antiquities collector. More on that story here.

Tags: , ,

Brian Aitken at Cato is a post from Overlawyered - Chronicling the high cost of our legal system

]]>
http://overlawyered.com/2014/12/brian-aitken-cato/feed/ 0
Police and community roundup http://overlawyered.com/2014/12/police-community-roundup-2/ http://overlawyered.com/2014/12/police-community-roundup-2/#comments Mon, 15 Dec 2014 05:05:32 +0000 http://overlawyered.com/?p=49797 Oh, no: “Ferguson to Increase Police Ticketing to Close City’s Budget Gap,” because three arrest warrants per household is still too low [Bloomberg News via Zach Weissmuller (& thanks for quote), earlier] In years 2011/12 alone, one Buffalo officer “killed as many dogs in the line of duty as the entire NYPD.” [WGRZ] “He believed […]

Police and community roundup is a post from Overlawyered - Chronicling the high cost of our legal system

]]>
  • Oh, no: “Ferguson to Increase Police Ticketing to Close City’s Budget Gap,” because three arrest warrants per household is still too low [Bloomberg News via Zach Weissmuller (& thanks for quote), earlier]
  • In years 2011/12 alone, one Buffalo officer “killed as many dogs in the line of duty as the entire NYPD.” [WGRZ]
  • “He believed the poor had the right to buy and sell.” Tunisia yes, Staten Island too? [David Boaz, USA Today]
  • “The language of protest: Race, rioting, and the memory of Ferguson” [Abigail Perkiss, NCC/Yahoo, mentions me]
  • “Red light cameras to go dark in New Jersey” [Josh Kaib, Watchdog Wire] “Public opinion swings hard against traffic cameras” [AutoBlog]
  • On interpreting statistics on race and policing, point counter-point [Scott Alexander, Ezra Klein, Alexander] Reminder: increasing ranks of black officers does not necessarily lead to fewer shootings of black civilians [Jamelle Bouie, Slate]
  • “Sex, Spice, and Small-Town Texas Justice: The Purple Zone Raid” [Reason.tv video]
  • Tags: , , , , , ,

    Police and community roundup is a post from Overlawyered - Chronicling the high cost of our legal system

    ]]>
    http://overlawyered.com/2014/12/police-community-roundup-2/feed/ 0
    “Eric Garner, criminalized to death” http://overlawyered.com/2014/12/eric-garner-criminalized-death/ http://overlawyered.com/2014/12/eric-garner-criminalized-death/#comments Fri, 12 Dec 2014 10:21:46 +0000 http://overlawyered.com/?p=49985 “… the political class… uses the multiplication of criminal offenses as a form of moral exhibitionism.” [George Will, Washington Post/syndicated] Tweet Tags: crime and punishment

    “Eric Garner, criminalized to death” is a post from Overlawyered - Chronicling the high cost of our legal system

    ]]>
    “… the political class… uses the multiplication of criminal offenses as a form of moral exhibitionism.” [George Will, Washington Post/syndicated]

    Tags:

    “Eric Garner, criminalized to death” is a post from Overlawyered - Chronicling the high cost of our legal system

    ]]>
    http://overlawyered.com/2014/12/eric-garner-criminalized-death/feed/ 3
    Iowa prosecuting man over alleged sex in nursing home with demented wife http://overlawyered.com/2014/12/iowa-prosecuting-man-alleged-sex-nursing-home-demented-wife/ http://overlawyered.com/2014/12/iowa-prosecuting-man-alleged-sex-nursing-home-demented-wife/#comments Thu, 11 Dec 2014 09:28:08 +0000 http://overlawyered.com/?p=49967 A question of consent: “The case has produced no evidence thus far that the couple’s love faded, that Donna failed to recognize her husband or that she asked that he not touch her, said Rayhons’ son Dale Rayhons, a paramedic and the family’s unofficial spokesman.” Mrs. Rayhons, who suffered from Alzheimer’s disease, is dead now […]

    Iowa prosecuting man over alleged sex in nursing home with demented wife is a post from Overlawyered - Chronicling the high cost of our legal system

    ]]>
    A question of consent: “The case has produced no evidence thus far that the couple’s love faded, that Donna failed to recognize her husband or that she asked that he not touch her, said Rayhons’ son Dale Rayhons, a paramedic and the family’s unofficial spokesman.” Mrs. Rayhons, who suffered from Alzheimer’s disease, is dead now and can’t testify. “In interviews, Rayhons said his life and reputation are already ruined. … He says he’s most distraught about being kept from Donna during the last weeks of her life.” [Bryan Gruley, Bloomberg, via @amyalkon] (& Scott Greenfield, Eugene Volokh)

    Tags: , ,

    Iowa prosecuting man over alleged sex in nursing home with demented wife is a post from Overlawyered - Chronicling the high cost of our legal system

    ]]>
    http://overlawyered.com/2014/12/iowa-prosecuting-man-alleged-sex-nursing-home-demented-wife/feed/ 5
    Bootleg cigarettes, Prohibition and the death of Eric Garner http://overlawyered.com/2014/12/eric-garner-criminalization-everyday-life/ http://overlawyered.com/2014/12/eric-garner-criminalization-everyday-life/#comments Sat, 06 Dec 2014 16:45:35 +0000 http://overlawyered.com/?p=49870 Eric Garner, asphyxiated during his arrest on Staten Island, had been repeatedly picked up by the NYPD for the crime of selling loose cigarettes. Washington Examiner: The crime of selling “loosies” was not considered a serious one in the past. Many corner stores in New York City once sold them quietly upon request. But former […]

    Bootleg cigarettes, Prohibition and the death of Eric Garner is a post from Overlawyered - Chronicling the high cost of our legal system

    ]]>
    Eric Garner, asphyxiated during his arrest on Staten Island, had been repeatedly picked up by the NYPD for the crime of selling loose cigarettes. Washington Examiner:

    The crime of selling “loosies” was not considered a serious one in the past. Many corner stores in New York City once sold them quietly upon request. But former Mayor Michael Bloomberg’s cartoonish anti-tobacco crusade changed that and everything else. Smoking in public places was banned. Punitive taxes and a legal minimum price of $10.50 were imposed in an effort to push prices ever-upward, so that a brand-name pack of 20 cigarettes now costs as much as $14 in New York City.

    As a result, the illicit sale of loose and untaxed cigarettes became more commonplace.

    I noted at yesterday’s Repeal Day panel at Cato that according to figures last year, New York’s unusually high cigarette taxes had brought it an unusual distinction: an estimated 60 percent of consumption there is of smuggled or illegal cigarettes, much higher than any other state. Another way to think of it is that New York has moved closer to prohibition than to a legal market in tobacco. [earlier 2003 Cato study]

    In his history of Prohibition, Last Call, Daniel Okrent cites (among many other law enforcement misadventures) the fatal shooting of Jacob Hanson, secretary of an Elks lodge in Niagara Falls, New York, in a confrontation with alcohol agents — though Hanson had a clean record and was not carrying alcohol. At the time, many saw Hanson’s death as reflecting poorly on the Prohibition regime generally. For some reason, though, Senator Rand Paul (R-Ky.) has drawn fire from some quarters for making a parallel observation about Garner’s death. [BBC; note however that while Garner's frictions with the local NYPD seem to owe much to his repeated cigarette arrests, the proximate event leading to his arrest seems to have been his attempt to break up a fight]

    Yale’s Stephen Carter: “On the opening day of law school, I always counsel my first-year students never to support a law they are not willing to kill to enforce.” [Bloomberg View via Ilya Somin]

    Tags: , , ,

    Bootleg cigarettes, Prohibition and the death of Eric Garner is a post from Overlawyered - Chronicling the high cost of our legal system

    ]]>
    http://overlawyered.com/2014/12/eric-garner-criminalization-everyday-life/feed/ 4
    “Some fear rioting may seal Ferguson fate for decades” http://overlawyered.com/2014/12/fear-rioting-may-seal-ferguson-fate-decades/ http://overlawyered.com/2014/12/fear-rioting-may-seal-ferguson-fate-decades/#comments Mon, 01 Dec 2014 05:15:21 +0000 http://overlawyered.com/?p=49779 Quoted in USA Today and other papers on what can be the very long road back once a reputation for riots tanks a community’s business climate and property values. [Yamiche Alcindor, USA Today] Tweet Tags: crime and punishment, real estate

    “Some fear rioting may seal Ferguson fate for decades” is a post from Overlawyered - Chronicling the high cost of our legal system

    ]]>
    Quoted in USA Today and other papers on what can be the very long road back once a reputation for riots tanks a community’s business climate and property values. [Yamiche Alcindor, USA Today]

    Tags: ,

    “Some fear rioting may seal Ferguson fate for decades” is a post from Overlawyered - Chronicling the high cost of our legal system

    ]]>
    http://overlawyered.com/2014/12/fear-rioting-may-seal-ferguson-fate-decades/feed/ 0
    Catalonia: new LGBT bias law shifts burden to accused http://overlawyered.com/2014/11/catalan-lawmakers/ http://overlawyered.com/2014/11/catalan-lawmakers/#comments Mon, 17 Nov 2014 05:15:33 +0000 http://overlawyered.com/?p=49192 The separatism-minded Spanish region of Catalonia has enacted a law under which “the person accused of homophobic acts will have to prove his innocence, reversing the presumption of innocence until proven guilty.” [El Pais, TheLocal.es] The law includes fines for anti-gay occurrences in the workplace. Advocates defended the shifting of the burden of proof onto […]

    Catalonia: new LGBT bias law shifts burden to accused is a post from Overlawyered - Chronicling the high cost of our legal system

    ]]>
    The separatism-minded Spanish region of Catalonia has enacted a law under which “the person accused of homophobic acts will have to prove his innocence, reversing the presumption of innocence until proven guilty.” [El Pais, TheLocal.es] The law includes fines for anti-gay occurrences in the workplace. Advocates defended the shifting of the burden of proof onto the accused to prove innocence as a “positive discrimination measure [that] is already in place for other offenses, such as domestic violence against women, in instances when it is very difficult to prove.” [VilaWeb] (& welcome Andrew Sullivan readers)

    Tags: , ,

    Catalonia: new LGBT bias law shifts burden to accused is a post from Overlawyered - Chronicling the high cost of our legal system

    ]]>
    http://overlawyered.com/2014/11/catalan-lawmakers/feed/ 23
    “Codifying the Rule of Lenity” http://overlawyered.com/2014/11/codifying-rule-lenity/ http://overlawyered.com/2014/11/codifying-rule-lenity/#comments Tue, 04 Nov 2014 10:13:25 +0000 http://overlawyered.com/?p=49215 Justice Scalia on the rule of lenity in U.S. v. Santos, 2008: This venerable rule not only vindicates the fundamental principle that no citizen should be held accountable for a violation of a statute whose commands are uncertain, or subjected to punishment that is not clearly prescribed. It also places the weight of inertia upon […]

    “Codifying the Rule of Lenity” is a post from Overlawyered - Chronicling the high cost of our legal system

    ]]>
    Justice Scalia on the rule of lenity in U.S. v. Santos, 2008:

    This venerable rule not only vindicates the fundamental principle that no citizen should be held accountable for a violation of a statute whose commands are uncertain, or subjected to punishment that is not clearly prescribed. It also places the weight of inertia upon the party that can best induce Congress to speak more clearly and keeps courts from making criminal law in Congress’s stead.

    Vikrant Reddy (footnotes omitted):

    Although this understanding should be perfectly ordinary, the application of the rule of lenity has in fact begun to erode dramatically in recent years. This has happened in concert with a troubling phenomenon: the dramatic growth of criminal law in a variety of non-traditional arenas, generally involving freely agreed-upon exchanges between adults. These “business crimes” (which include such things as harvesting oysters at the wrong time of day, improperly thrashing pecan trees, or even mislabeling citrus fruit) are increasingly exempt from the ordinary application of the rule of lenity in the minds of many judges and prosecutors.

    Tim Lynch of the Cato Institute has even argued that the ordinary application of the rule of lenity “has been turned on its head.” He has observed that “When an ordinary criminal statute is ambiguous, the courts give the benefit of the doubt to the accused, but when a regulatory provision is ambiguous, the benefit of the doubt is given to the prosecutor.”11 What is troubling is that while defendants found guilty of these business crimes are subject to criminal sanctions—including prison—they increasingly do not enjoy the fundamental due process protections that are supposed to be guaranteed by the rule of lenity.

    His paper for the Texas Public Policy Foundation recommends:

    • Texas should formally codify the rule of lenity in the state code.
    • The rule of lenity is a partial solution to a larger problem — the overall trend towards overcriminalization in American life.
    • Fewer “business crimes” would mean fewer crimes for whichthe rule of lenity is disregarded.

    Tags: , ,

    “Codifying the Rule of Lenity” is a post from Overlawyered - Chronicling the high cost of our legal system

    ]]>
    http://overlawyered.com/2014/11/codifying-rule-lenity/feed/ 1
    Pennsylvania bill would enable victims to sue offender for reopening anguish http://overlawyered.com/2014/10/pennsylvania-bill-enable-victims-sue-offender-reopening-anguish/ http://overlawyered.com/2014/10/pennsylvania-bill-enable-victims-sue-offender-reopening-anguish/#comments Sun, 19 Oct 2014 13:52:12 +0000 http://overlawyered.com/?p=48956 Both houses of the Pennsylvania legislature have passed and sent to Gov. Tom Corbett a bill “allowing judges to issue injunctions, or grant any other ‘appropriate relief’ if there is ‘conduct’ by a criminal ‘offender’ that ‘perpetuates the continuing effect of the crime on the victim.” Such an effect is specified to include, though it […]

    Pennsylvania bill would enable victims to sue offender for reopening anguish is a post from Overlawyered - Chronicling the high cost of our legal system

    ]]>
    Both houses of the Pennsylvania legislature have passed and sent to Gov. Tom Corbett a bill “allowing judges to issue injunctions, or grant any other ‘appropriate relief’ if there is ‘conduct’ by a criminal ‘offender’ that ‘perpetuates the continuing effect of the crime on the victim.” Such an effect is specified to include, though it is not limited to, a “temporary or permanent state of mental anguish.” The “revictimization remedy” bill, S. 508, is apparently aimed at providing a way to go after a much-cooed-over convicted cop-killer for delivering recorded speeches at college campuses, to the distress of the family of the policeman he shot; Paul Alan Levy describes the bill’s use of the word “conduct” as a “fig leaf” for its intent to restrict speech. What Levy calls the “exceptional breadth” of the bill’s language could imperil or chill a wide range of other activity that might tread on victims’ feelings, such as campaigns to rally public opinion against a conviction or in favor of clemency. The bill, Levy says, “threatens to make Pennsylvania a national laughing stock.” [Consumer Law & Policy; Fox News; NBC Philadelphia; more, Joel Mathis, Philadelphia mag] More on the ever-popular “victims’ rights” cause from Steve Chapman and Roger Pilon.

    Tags: , ,

    Pennsylvania bill would enable victims to sue offender for reopening anguish is a post from Overlawyered - Chronicling the high cost of our legal system

    ]]>
    http://overlawyered.com/2014/10/pennsylvania-bill-enable-victims-sue-offender-reopening-anguish/feed/ 1
    Police and prosecution roundup http://overlawyered.com/2014/09/police-prosecution-roundup-22/ http://overlawyered.com/2014/09/police-prosecution-roundup-22/#comments Thu, 11 Sep 2014 04:05:28 +0000 http://overlawyered.com/?p=47556 Enviro activists unlawfully block coal ship, Massachusetts prosecutor expresses approval by dropping charges [James Taranto, Jacob Gershman/WSJ Law Blog, ABA Journal] Unfortunately-named Mr. Threatt charged with “robbery that happened while he was in jail” [Baltimore Sun via @amyalkon] “How conservative, tough-on-crime Utah reined in police militarization” [Evan McMorris-Santoro, BuzzFeed] More: What if we needed it […]

    Police and prosecution roundup is a post from Overlawyered - Chronicling the high cost of our legal system

    ]]>
  • Enviro activists unlawfully block coal ship, Massachusetts prosecutor expresses approval by dropping charges [James Taranto, Jacob Gershman/WSJ Law Blog, ABA Journal]
  • Unfortunately-named Mr. Threatt charged with “robbery that happened while he was in jail” [Baltimore Sun via @amyalkon]
  • “How conservative, tough-on-crime Utah reined in police militarization” [Evan McMorris-Santoro, BuzzFeed] More: What if we needed it someday? San Diego Unified School District defends acquisition of armored vehicle [inewsource.org] And Senate hearing [AP]
  • “Machine-based traffic-ticketing systems are running amok” [David Kravets, ArsTechnica]
  • Thanks, Fraternal Order of Police, for protecting jobs of rogue Philadelphia cops who could cost taxpayers millions [Ed Krayewski; related earlier]
  • Study: returning from 6- to 12-person juries could iron out many racial anomalies at trial [Anwar et al, Tabarrok]
  • Courts can help curb overcriminalization by revitalizing rule of lenity, mens rea requirement [Steven Smith]