Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘crime and punishment’

Show trials for fossil fuel execs? Candidates divided on that

My new Bulwark piece: “He does not say what criminal law he thinks they have broken, despite the plain current legality under current law of operating refineries, at-pump gas sales and so forth. But note that Sanders’ language is not forward-looking — it’s retrospective. He’s not just talking about passing some new law and then arresting executives who proceed to violate it. He is talking about prosecuting past lawful behavior….

“America needs a politics with fewer authoritarian impulses, not more.”

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Hearing might be required before city can close business under nuisance-abatement law

Earlier this month we linked the story of a Dallas car wash owner whose business was shut down by the city under a nuisance abatement law because it was deemed to attract crime, even though the owner was not alleged to have done anything to further the crime and in fact had called police many times to complain about it.

Last month a Sixth Circuit panel, over a dissent, ruled that the city of Saginaw, Mich. may have violated Rita Johnson’s rights when it shut down her Rita’s Southern Soul Café without first according her a hearing. Johnson had rented out her restaurant one evening to a private party; “For unknown reasons, individuals unaffiliated with her or the party emerged from a vehicle that night and began shooting at the restaurant.” Police surmise that rivalry between gangs might have prompted the attack, but neither perpetrators nor motive were established. The case now goes back for further litigation in which Johnson will be allowed to argue that a hearing before shutting down her café would have been warranted. [Johnson v. Morales via Institute for Justice “Short Circuit”]

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Dallas businessman calls cops 100x to report local crime. And then…

Under a nuisance abatement law enacted by the city of Dallas, the city can designate local businesses that it considers to be the scene of recurrent crime, and then shut down those businesses. It did this to a car wash whose owner proceeded to obtain from the city and make public more than a hundred 911 call records in which he had pleaded with the city to come do something about criminal activity. “Neighborhood leaders have been licking their chops on social media talking about what they’ll do with his two large corner lots when the city finally squeezes him hard enough to make him sell.” [Jim Schutze, Dallas Observer via Tim Cushing, TechDirt]

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Crime and punishment roundup

  • Three episodes of the Cato Daily Podcast, all with Caleb Brown: “A Survey of State-Level Criminal Justice Reform” with Robert Alt of the Buckeye Institute; “Reforming Parole and Probation” with Marc Levin of the Texas Public Policy Foundation; “Getting Honest on Bail Reform” with Josh Crawford of the Pegasus Institute;
  • In news of unconstitutional legislation, the lawmakers of Monroe County, N.Y. (Rochester) want to make it illegal to “annoy” a police officer [James Brown, WXXI, Eugene Volokh]
  • Jury unanimity is required in federal criminal trials, but does the Constitution also require it at the state court level? [Federalist Society SCOTUS Brief video with Jay Schweikert on Ramos v. Louisiana, argued at the Court Oct. 7]
  • In August New York Gov. Andrew Cuomo signed a law stripping state double jeopardy protections from Trump associates who may receive clemency in the future. It’s an improperly targeted enactment at best [Jacob Sullum, earlier]
  • Denison, Texas drunk with multiple priors, lying on gurney in hospital, kicks police officer and gets 99 year sentence for that [Stan Smith, KXII]
  • Lengthy profile of Philadelphia DA Larry Krasner, including his feuds with the local U.S. Attorney and Pennsylvania’s Attornry General. One disturbing data point: “Homicides in the city are up six percent and shootings are up 10 percent this year.” [Steve Volk, Philadelphia Magazine]

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Discontinue prosecution of shoplifting, get more of it

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]

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More highlights from “How To Become a Federal Criminal”

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).

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Demands for new “domestic terrorism” laws

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.”

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Crime and punishment roundup

  • “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]

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Ways to violate federal law

  • 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]

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“Supreme Court Nixes Sentencing Law as Unconstitutionally Vague”

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.

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