I Would Actually Endorse A Sting and the Police State

Young teacher, the subject of warrant-less scrutiny...

By Robert H.

The latest libertarian trend is to claim we live in a police state.  Popehat is doing it here.

First off, our criminal justice system is terrible and rife with human rights abuses.  It's worse than you think (216,000 prisoners are sexually abused a year!  Most by guards! 30,000 people in a solitary confinement regime that amounts to torture!  Racial bias controlling who goes to jail!  The flashy stuff (NSA spying, Gitmo, secret evidence, etc). It's awful!)  But it's not police state bad.  In a comments section (one I don't particularly recommend reading, the conversation is dull) I explained why I don't think we are a police state.  I am just going to copy and paste that here.  Check out the last paragraph for another fascist libertarian sighting:

Since I was asked, I will rejoin the conversation for one more post.  My dividing line for police state/not police state is "does the rule of law routinely constrain the government's exercise of police power."  In America, it clearly does. 

This is not to say that it always effectively constrains the police power.  There are failures -- too many.  But boy howdy does it *often* constrain police power.  Let's take an example from my criminal defense days (working for a criminal law attorney as a law student.  As an attorney I have never practiced criminal law) and think about a DWI arrest in the city I was then living in.  Does the rule of law constrain how this goes down?  Clearly.   

Things that will happen during the arrest and trial of our DWI defendant which the cops are only doing or allowing because of the rule of law.  IE, shit they do not want to do but will (if this list is too boring, just replace it with the words "lots of things"):

1. Record the entire stop on camera.
2. Not force the defendant to take a breathalyzer test if he refuses.  Alternately, they could pay a judge to stay up all night signing orders that let them force tests on people.  They never did the second option when I was there because it is too costly and judges hate it.
3. If the defendant agrees to a field sobriety test, the cop will call a special officer trained in the field sobriety test, wait for him to show up, and then the new cop will spend a few minutes very carefully giving the test in a way that will stand up to scrutiny (cases got overturned too often when they tried to train every cop in giving the test, so they went to this new system).
4. Stop questioning the defendant if he asks for an attorney (remember, they are on tape).
5. Let the defendant call an attorney.
6. Get the D before a magistrate to make a probable cause determination within 48 hours of the arrest.
7. Give the D a hearing where he can make the case for reasonable bail, with some protections on the setting of bail.
8. Give the defendant access to and a copy of that tape I've been talking about.
9. Give the D a trial.  A jury trial if he asks for it.
10. Give the D time and evidence to prepare for the trial.  Exclude improperly collected evidence from the trial.
11. Give the D a right for his attorney to show up at the trial.
12. Make the trial public.
13. Pay a lawyer to represent the D if he can't afford one.
14. Let the D go if he wins the trial.
15. Let my boss appeal the trial.  This initiates a new trial that is public, itself appeal-able, etc.
16. Let my boss file collateral attacks on the D's imprisonment if he loses the trial and is imprisoned, IE federal habeas motions.
17.  Limit the term of the D's custodial confinement and the amount he can be fined.
18. Etc, etc, etc.

The cops wants to do none of this.  It is a lot easier to just pull someone over, realize they are clearly drunk, get him to a judge when you feel like it, and have the judge assign whatever sentence seems to him fair (or that his political masters tell him to assign). All these other things either make imprisoning my client more costly, harder, or impossible, depending on the facts of the case.  These things let my then boss negotiate or win outcomes the state police and DA don't want.  Even better, if the governor or president decide they don't like this stuff, in most cases they would be shit out of luck.  Or they could stage a military coup, I guess. 

These are also not iron clad protections.  A drunk driver hating cop could pull over the defendant, turn off his dashboard camera, shoot the D, and maybe get off.  But then again, anyone could commit a crime anywhere and maybe get off.  As things stand, the practical upshot of all these legal protections is the state doing things it doesn't like and people spending less time in jail because of it. 

Lots of states don't have most of these protections.  A public trial, a trial so rigorous you have to film yourself if you hope to win it, a right to an attorney, an exclusionary rule, careful monitoring of how cops administer sobriety tests, the ability to refuse the breathalyzer test, etc. etc. etc.   It's just not there.  It's a lot more like the "cop decides you are guilty, judge believes him and gives you the punishment he feels like" procedure.  If there is a judge.  And they bother to give your sentence a definite term. And the cop bothered to see if you were actually guilty of a crime.

So that's the rule of law.

***
In bigger things as well the government is constrained by the rule of law.  Even in Gitmo, a shining example of our system at close to its worst, the defendants have routinely been able to force the executive to do things the executive does not want to do (IE, have congress establish a procedure for the status reviews, stop strip searching detainees before they meet with their lawyers, give detainees meaningful access to federal courts, etc.)  Obviously the rule of law has, in the main, failed at Gitmo.  But it has done way way better than it would in many many other states.   

So again, the state screws up all the time!  Badly!  America perpetrates terrible human rights abuses!  The rule of law does not effectively constrain some state actors at some times!  We are torturing, as you say, tens of thousands of prisoners in solitary confinement at any given time!  That sh-- is f---ing terrible.  But turning away from those abuses to the core of American life, the rule of law is still really active and really powerful here, if not as active and powerful as we would like.  In a police state, that is not true.  Things aren't mostly nice here because we have a mostly nice police state.  Things are mostly nice here because we don't have a police state, and the state's ability to be mean is mostly constrained..

As an aside, my own take on how I came to my views is not that I was brainwashed to love America, because I am not a nationalist and would defend a whole host of other human rights abusing states from the name "police state."  Instead, I would explain it this way: I've studied and worked in the American criminal justice system and I know how  bad it can be.  I also have a passion for international human rights law, and know  just how bad other countries can be.  The rule of law is strong here.  Elsewhere, it is nonexistent.  Those are the police states.  

Finally, if you can indulge a request of mine, please begin your next essay on the American police state by stating your beliefs that 1. America is just as bad as Nazi Germany, and 2. Human rights and the rule of law were respected for everyone in Nazi Germany's core territories except for the Jews.  Those two beliefs are the single most surprising and important things someone could know about your world view before they invest time in reading your essays.

Big Brother Imprisoning You is Worse than Big Brother Watching You

By Robert H.

So this week we learned the government is gathering a lot of info about you without the usual procedures you jump through to get a search warrant (see links below), and people are freaking out.  But this ignores an important fact: search warrants themselves are really easy to get.  Search warrants aren't important because they make it hard for the police to search your house; they are important because they make it hard for the police to send you to jail.

Let's look at two attempts by the government to get information about you:

1. A cop goes to a judge and says a reliable informant he trusts promised you were a drug dealer.  He asks for a warrant to search your home.  The judge, inevitably, grants it.

2. A cop avers to the US foreign intelligence surveillance court that he needs meta data Verizon has about your calls, or searches through PRISM data in a way designed to avoid returning data about American citizens but which, in this instance, does return information about you.

To me, the procedure in one does not look much more rigorous than two, at least in terms of judicial oversight.  A cop trying to get an abusive search warrant just has to make up the existence of a reliable informant and, bam, a warrant is issued based on the testimony of "reliable informant" Lies McFartWhistle.

Lies McFartWhistle seen here (Lady McFartWhistle not pictured).

But now compare these two situations:

1. A cop made up the existence of a "reliable informant" to get a search warrant to your house, where he found drugs.  This comes out at trial after the warrant is examined and the cop questioned by the defense, the Court rules both that there was no probable cause for the search and that the officer did not act in good faith, and all the evidence springing from the search is ruled inadmissible.  Cops can't tell the jury they found drugs in your place; you go free.

2. A cop lies to get an FISC warrant and gathers data demonstrating you are a terrorist.  This data is then presented against you at trial. Because FISC warrants are secret, you cannot see the warrant or explore the reasons it was granted.  You go to jail.

Get my point?  It's very terrible when the government learns your private information and all, but it is really REALLY terrible when the government uses that private information to convict you of a crime.  Because of that, our number one safeguard against government intrusion into our privacy isn't magistrates issuing warrants -- they do so based on perfunctory and routine affidavits -- it is judges excluding evidence that wasn't gathered with probable cause.

In other words, the most important thing when it comes to the government invading your privacy isn't stopping the invasion itself, it is keeping the government from using the information they got to hurt you.  And that is why the use of secret evidence and secret warrants in criminal trials are and always have been the biggest threat to our way of life and to our privacy that has emerged in the war on terror.  And that's even if you include "terrorism" as something that has emerged in the war on terror.

So the new abuses that are being reported are bad, but you shouldn't take your eye off the ball: the real victims aren't we whose cell phone meta data is insecure, it is the terrorist being convicted or the immigrant being deported based on secret evidence approved by secret means.  It's not the government gathering secrets we should fear; it's the government using them.

The Swartz is With You (Provided You are a Lenient Prosecutor)

Aaron Swartz was a smart computer programmer/activist who sneakily downloaded millions of copyrighted articles off of JSTOR, an academic search engine, to protest academic articles being placed behind pay-walls (and possibly to distribute them via file sharing).  JSTOR said it didn't mind, but he was nevertheless prosecuted very severely by the Massachusetts US attorney, and ultimately killed himself under the strain of the lawsuit (plus the strain of mental illness, obviously).  You can read about it, plus the political fallout from it, here.

Orin Kerr has a post that, among other things, provides justification forthe prosecutors wanting to punish Swartz harshly. It can be summed up in two steps: 1. People who break duly passed democratic laws in an attempt to undermine or change them should be punished, especially when they attempt to change them through non-democratic means 2. The correct measure of punishment is specific deterrence -- what it takes to keep them from doing it again.  To use his own words:

We live in a democracy.   We might not like all the rules in a democracy, but the way to change those rules is through democratic change.  Swartz could have tried to be punished under the law to bring attention to the law in the hope of changing it through the democratic process.  But instead he had something anti-democratic in mind [IE, to circumvent JSTOR's copyrights by illegally distributing the articles]. I think it’s pretty clear that in a democratic system, that kind of anti-democratic cause is something that we should disfavor.  You can break the law to draw punishment, but the ultimate goal of traditional civil disobedience is achieving change through the legal means of democracy.  Swartz had something else in mind, it seems;  changing the law de facto by his unilateral action. Given the importance of the difference, a punishment that was the minimum sufficient to persuade Swartz to follow the law in the future seems appropriate.

This makes no sense to me.  I can accept that people have a duty to obey democratic laws for the sake of argument, and should especially refrain from trying to change laws in non-democratic ways .  I can accept arguendo that Swartz violated that duty.

But while we have a duty to obey dumb laws, we obviously don't have a duty to fight for stupid laws.  We 1. don't have to put in any effort to see dumb laws are enforced (beyond some simple requriments, like "don't obstruct justice"), 2. can actively fight to bring down dumb laws in legal ways -- blog against 'em, protest against 'em, and 3. can even do stuff to help law breakers, provided it is legal -- represent 'em court, blog on their behalf, etc.

 In other words, when it comes to dumb laws we have a duty to not break the law and that's it.  But Kerr seems to be saying that, were I a US attorney, I would be morally obligated to do more than that.  Not just obey the law, but actively fight for it.  Makes it my life work to see that dumb laws are not broken, even above and beyond my legal duty to do so.  Because US attorneys don't have a duty to prosecute every crime they hear about, the law very specifically gives US attorneys prosecutorial discretion.  If, within that discretion, a US attorney wants to punish a lawbreaker more lightly because the law he broke was stupid, they get to (as a legal matter).  That they don't get to as a moral matter apparently rests on us saying "breaking dumb laws is bad, but none of us have a moral duty to help enforce dumb laws beyond what is legally required of us.  Except for US attorneys, upon whose shoulders alone rests the charge of preserving democracy by vigorously prosecuting those who violate dumb laws."  To me, that begs the question:  Why do *I* get to fight within the law to undermine dumb laws and help lawbreakers as much as possible, but US attorney's don't?  Or did I get that wrong, and I do in fact have a moral obligation even above my legal obligations to support dumb laws?

Basically Ortiz is arguing against prosecutorial discretion, more-or-less saying that prosecutors have a moral duty to vigorously prosecute anyone likely to be a recidivist and likely to comity crimes that undermine democratically created laws (and since most of our laws are democratically , that basically means "anyone likely to break the law again").  I think that imposes a bizarre obligation on prosecutors.  Just so, I don't think prosecutorial discretion undermines the rule of law (there are lots of ways to reign in prosecutors who abuse prosecutorial discretion, from firing them to prosecuting them to voting them out of office).  So I basically disagree all around.

Swartz didn't much harm anyone, wasn't likely to much harm anyone again, and was acting in a good cause.  He deserved, at most, a slap on the wrist.  I have no moral duty to yell at him on this blog in order to preserve our democratic laws, and prosecutors had no moral duty to harshly punish him in order to preserve dumb laws.

Rape is Worse than Bad Charts But Harder to Stop with Blogging

At the risk of turning this into the, "Hey, here's a marginally more misogynistic way to interpret data!" blog, I have some questions about this chart currently making the blogger rounds:

They say their data comes from the national crime victimization survey, but I have some problems with that.

1. The national crime victimization survey doesn't measure the number of falsely accused rapists, as near as I can tell.  The FBI measures "unfounded reports" of forcible rape, but 1. "unfounded reports" is a dumb statistic with definitions varying from police department to police department, 2. as near as I can tell they just measure forcible rape, not all rape (I probably just haven't dug enough), and 3. it comes to 8 out of a 100 reports being false.  I don't get how you go from there to a graph showing that there are two falsely accused rapist for every thousand rapists.

There are lots of studies of false rape accusations, and that is a remarkably low number.  It looks like the way they got there was by creating a vast universe of unreported rapists: "sure, 5 out of 100 rape reports are false, but there are a thousand unreported rapes for every reported one" gets you to a very low number of falsely accused people per rapist (numbers in that example were made up).  But there's a problem with that:

2. The national crime survey has found that two out of three rapes aren't reported, which is obviously terrible.  But this chart looks much more terrible, showing 90 percent of rapists going unreported.  Now it's possible for both statistics to be true: if the reported rapists were committing lots of rapes per person  and the unreported rapists were committing less rapes per person (IE, you could have 66 unreported rapes committed by 66 different people, but 33 reported rapes committed by, say, 3 people who committed 11 rapes each).  But it isn't immediately obvious to me how you can conclude that reported rapists are serial rapists and unreported rapists only rape once.  I just can't find that data in the survey.

So yeah, this chart could be absolutely right and I just haven't dug through the numbers enough.  But at first glance, it looks weird.

I'd add that "number of people falsely accused of rape against the number of people who have raped" is a weird statistic.  For what I think they are trying to show, "you should tend to believe people who accuse other people of rape," the statistic you want is the number of accusations to number of false accusations.  Or maybe they are trying to show that we should prioritize rape victims over victims falsely accused of rape when making policy decisions, in which case they should focus on number of raped people to number of people falsely accused of rape.  Or maybe they are trying to say, "there are way more rapist bad guys than false reporting bad guys, when making policy trade offs we should go after the rapist bad guys," in which case we want to know the number of rapists to the number of false accusers.  But this metric -- comparing victims of one crime to perpetrators of a completely different crime -- doesn't make much sense to me.  It would be like comparing "number of burglars to number of identity theft victims" to show that burgling is a bigger problem.

Edit: The enliven project has posted an explanation of where they got their "data."