Showing posts with label federalism. Show all posts
Showing posts with label federalism. Show all posts

Friday, November 8, 2013

Love and chemicals and hate and unnecessary federal prosecutions

A suburban couple.

An affair.

A love child.

An angry wife.

Poison. Poison. Poison.

Soap opera? Lifetime movie? Nope - fact pattern for a case before the US Supreme Court.

Carol Anne Bond found out her husband was sleeping with a neighbor and had fathered a child with his mistress. Ms. Bond was, understandably, upset. Folks tend to deal with their anger issues in different ways. Ms. Bond threatened her hubby's little hussy.

She ended up pleading guilty to a charge of harassment.

But, believing, as the Mythbusters do, that anything worth doing is worth overdoing, Ms. Bond turned up the volume and set out to poison the object of her husband's affections. The US Postal Service eventually learned of her actions and recorded her in the act.

Federal prosecutors then charged Ms. Bond with violating the terms of the Chemical Weapons Convention - a treaty to which the US is a signatory. Ms. Bond was convicted and sentenced to six years in prison.

Ms. Bond appealed her conviction, arguing that the application of the treaty violated the notion of state's rights. The question is whether the provisions of an international treaty signed by the US government are binding on individuals in the states.

What Ms. Bond did was a clear violation of state law. She could have been prosecuted by prosecutors in Pennsylvania and sentenced to a maximum of two years.

The defendant and the victim both lived in Pennsylvania. The attempted poisonings were committed in Pennsylvania. Pennsylvania has laws that make it a crime to try to poison someone. There was no vital federal interest at stake. While treaties are the law of the land, the treaty in question concerns nations at war with each other - there was no contemplation that the treaty would be used to prosecute a wife scorned.

There was no reason for a federal prosecution in this case. There is never any reason for a federal prosecution when there is a state statute that covers the activity in question. The only crime mentioned in the Constitution is treason - a crime against the state itself. Maybe this is too radical a notion - and I'm certain that it's far too late in the game to pursue - but we really need to rethink our approach to federal criminal jurisprudence. Our goal should really be to reduce the number of federal crimes - not increase them.

Until then we will continue to have to deal with the absurdity of folks being prosecuted in federal court over actions that properly belong in the state courts.

Thursday, November 22, 2012

The joint that broke the camel's back

So, Eric Holder, what's the big deal about Colorado and Washington voting to legalize marijuana? Why should it matter that two states decided the benefits of the war on drugs wasn't worth the cost? Maybe you're worried that some other states will come to the conclusion that it doesn't make sense to waste public resources arresting, jailing and trying cases involving an ounce or two of the chronic.

The bigger question, however, is why the federal government is involved in the prosecution of marijuana cases at all. Up until last week, all 50 states had laws on their books making it a crime to possess marijuana. Why were los federales even involved in pot cases? It would seem that the states had it under control.

As I've stated many times before, the only federal crime specified in the Constitution is treason. According to the 10th Amendment, everything else was left up to the states.That's what the conservatives have been screaming for years.

Then how come no one questions why the federal government prosecutes drug cases?

If two states are tired of the time and money spent on pot prosecutions, so be it. I thought the beauty of federalism is that there are 50 little laboratories out there that can test various ideas and programs. Why not let a couple of states try out decriminalizing marijuana? Why not step back and see what happens?

The worst case scenario is more people start passing the bong around the room. Well, Mr. Holder, I've got news for you. Kids are still smoking pot in high school and college and it's been illegal for generations. Anyone who wants to buy any weed can easily find a seller.

The best case scenario is Colorado and Washington save money that would have been spent arresting, jailing and trying folks who were dumb enough to get caught with marijuana (and here's my tip for the day -- smoke the chronic at home and don't carry it in your car, trust me on this). Maybe the states realize some additional tax revenue as a result. Maybe you'd even see a drop off in some violent crime since the distribution of marijuana would be regulated.

And, if these benefits are realized, maybe other states would take a look and begin to question their own laws regarding marijuana. For some states, legalizing it might be the way to go while, for others, reducing possession of small amounts of marijuana to the level of a traffic ticket might work.

Maybe Mr. Holder's real fear is that the actions in Colorado and Washington might lead folks to question why there are so many federal crimes that duplicate the laws on the books in the 50 states. Maybe he's afraid there might be some movement to pare down the list of federal crimes. Or maybe it's because those in power are unwilling to cede any of the authority they've grabbed over the years.

So, Eric, which is it?

Wednesday, December 22, 2010

We're the ones paying to shred the Bill of Rights

In NHTSA's No Refusal Weekend Toolkit you can find some interesting talking points about why motorists' rights under the Constitution and Bill of Rights should be bent, folded, spindled and mutilated:

  • The BAC test is one of the most important pieces of evidence in a DWI arrest. The prosecuting attorney will review the evidence to determine whether to pursue a DWI offense, reduce the case to a lesser offense, or dismiss the case. 
  •  Allows prosecutors to obtain evidence including alcohol and other impairing substances in the arrestee’s system. 
  • BAC testing preserves evidence for independent testing. 
  •  Answers jury’s expectations regarding the “CSI effect” (i.e., they always have that sort of evidence on TV) 
  • May decrease the breath test refusal rate and may decrease the number of trials. 
  • May increase your conviction rates based on solid evidence. 
  •  Increases training opportunities for law enforcement and prosecutors. 
  •  Brings diverse groups together in a law enforcement effort and fosters understanding among these groups. 
  • May establish better relationships with area hospitals. 
  • May provide judicial protection for law enforcement officers and nurses in DWI cases. 
  • Provides due process for arrestees. 
  • Makes a bold statement about your commitment to DWI enforcement.

Let's make a joke out of the 4th Amendment because it'll make it easier to make cases against motorists suspected of driving while intoxicated! That's just the ticket. By compelling motorists to give evidence to the police by threat of forcible blood draw we might also reduce the number of motorists who choose to exercise their right to trial by jury.

Would that bold statement be that we don't care what the Constitution or the Bill of Rights says -- we're going to do what we want to do when it comes to suspected drunk drivers?

And all of this comes from your tax money. That's right, NHTSA is using our tax money to promote an initiative to curb the Constitutional rights of the citizenry. This is Big Brother at its worst. We can't have labor unions using members' dues money for political activity, but we have to sit by while the state takes money out of our pocket to push for curbing our rights on the highway.

How's that for limited government?

Thursday, December 16, 2010

Sometimes right is right

I'm often a critic of the Right when it comes to our criminal (in)justice system, but, sometimes they've actually got it "right."

Right on Crime, a conservative organization looking at how we handle crime, launched this week. Right on Crime is headed up by Marc Levin, the director of the Center for Effective Justice at the Texas Policy Foundation.

One of the priority issues for Right on Crime is overcriminalization. I've written before about the explosion in the number of federal crimes over the past century. In many cases these federal crimes are crimes that are already covered in state penal codes. The vast majority of federal crimes are regulatory crimes - "crimes" in which there is no alleged victim and no required mens rea.

There are so many of these strict liability crimes that it is impossible to keep up with them. Men and women are charged with criminal violations without ever knowing the alleged conduct was criminal. Right on Crime's solution is right in line with what I've stated in the past:

• Stop creating new criminal offenses as a method of regulating business activities. Regulation is better handled through fines and market forces, not the heavy stigma of criminal sanctions
• Avoid licensing new occupations and revise laws to eliminate criminal penalties that are currently associated with many occupations.
• Ensure that an appropriate culpable mental state is included in the elements of all offenses.
• Return the responsibility for prosecuting and punishing traditional crimes to the states.
• Revise criminal laws to remove ambiguities and consolidate redundant laws to help prevent prosecutorial abuse.

There is not one of Right on Crime's proposals that I can't say I don't agree with. Strict liability regulatory crimes should be stricken from the criminal ledger. Enforce regulatory law through civil penalties, not criminal sanctions. For the most part, violent crime should be handled by the states. Let the states handle those charged with drug crimes in state court.

Now when it comes to handling substance abuse issues, Right on Crime proposes more drug courts. On this we disagree. While it is true that many defendants charged with possession are in need of drug treatment, the courts are not the proper vehicle for delivering that treatment. Courts are for meting out justice (in a perfect world). Forcing treatment upon an individual upon threat of criminal sanction is not the best way to see that someone receives treatment for an addiction. Drug courts also serve to undermine our adversarial system by forcing defense attorneys to be on the same "team" as prosecutors and law enforcement.

Another area in which we are in agreement is that warehousing inmates doesn't work. Currently approximately one person in 100 is incarcerated. Forty years ago that number was 1 in 400. While the United States holds 5% of the world's population, we hold 23% of the world's prisoners. Something's not working. Warehousing inmates drains money from state coffers and prevents able-bodied men and women from being productive citizens which reduces state and federal tax revenue. It also creates a situation in which middle-aged men and women are released from prison without the ability to earn a living.

According to Right on Crime, we need to:

• Understand that to be considered “successful,” a prison must reduce recidivism among inmates.
• Increase the use of custodial supervision alternatives such as probation and parole. In many cases, these programs can also be linked to mandatory drug addiction treatment and mental health counseling that would prevent recidivism. States' daily prison costs average nearly $79.00 per day, compared to less than $3.50 per day for probation.
• Consider geriatric release programs when appropriate. Approximately 200,000 American prisoners are over the age of fifty. The cost of incarcerating them is particularly high because of their increased health care needs in old age, and their presence has turned some prisons into de facto nursing homes for felons – all funded by taxpayer.
• Consider eliminating many mandatory minimum sentencing laws. These laws remove all discretion from judges who are the most intimately familiar with the facts of a case and who are well-positioned to know which defendants need to be in prison because they threaten public safety and which defendants would in fact not benefit from prison time.
• For those instances when prisons are necessary, explore private prison options. A study by The Reason Foundation indicated that private prisons offer cost savings of 10 to 15 percent compared to state-operated facilities. By including an incentive in private corrections contracts for lowering recidivism and the flexibility to innovate, private facilities could potentially not just save money but also compete to develop the most cost-effective recidivism reduction programming.

Again, I agree with most of their proposals - with the exception of privatizing prisons. There is something more than a little unseemly about for-profit prisons. Throw in quarterly profit expectations and concerns over share prices and you've got a recipe for cutting corners.

These proposals are based on the principles of federalism and limited government and would, in many cases, restore some sanity to our criminal (in)justice system.

Monday, November 22, 2010

The Constitution is the target of NTSB's Most Wanted List

Oh, the Tenth Amendment is alive and well. Y'all remember the Tenth Amendment, right? That's the one that says
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
You also remember the separation of powers doctrine. You know, the one that says the legislature enacts the law, the executive enforces the law and the courts rule on the law.

The last time I checked, it was up to the state legislature to amend or change the penal code. It's the state legislature's job to decide what is and what isn't against the law.

We have folks jumping up and down and cheering for those who espouse federalism, "states' rights," and limited government. But now we have the National Transportation Safety Board (NTSB) entering the fray with its "Most Wanted List" and pressuring state governments to change and amend state penal codes. That's right, the federal government is putting pressure on the states to bend to the will of los federales. More than than, the executive branch of the federal government is putting the screws to state legislatures to fall into line.

Here's the NTSB's agenda:

  • Enact legislation to reduce crashes involving repeat offenders who drink large amounts of alcohol, including:
    • Frequent, statewide sobriety checkpoints.
    • More effective measures (sanctions/treatment) for first time arrests with high blood alcohol concentration and repeat offenders.
    • Zero blood alcohol requirement for those already convicted of driving while intoxicated.
    • Administrative license revocation for refusing to take or failing an evidential test for alcohol.
    • Vehicle sanctions for DWI offenders to separate drinking from driving.
    • Elimination of plea-bargaining DWI offenses and programs that divert offenders and purge offense records.
    • DWI offense records retention for at least 10 years to identify repeat offenders.
    • Special sanction court-based programs such as DWI courts for hard core DWI offenders

Let's just go down the list, shall we?

Sobriety checkpoints have been declared unconstitutional in Texas. Why? Because the police must have reasonable suspicion or probable cause to pull you over. Sobriety checkpoints would allow the police to harass motorists without reason.

As for punishments, the legislature has determined that a first-time DWI merits a sentence of up to 6 months in the county jail and a fine not to exceed $2,000. A subsequent offense can get you 12 months in the county jail and a fine of up to $4,000. If you still haven't learned your lesson, a third offense is a third degree felony and will get you a bed in the state penitentiary. As for probation, it's up to the court to impose whatever conditions it feels are appropriate when suspending a sentence.

Zero blood alcohol? Last time I checked, it was legal for an adult in Texas to consume alcoholic beverages. The last time I checked, it's legal to drive so long as you haven't lost the normal use of your mental or physical faculties due to the consumption of alcohol. Need I remind anyone, Prohibition didn't work the first time.

The license suspension for refusing or failing a breath test - let's just talk about double jeopardy, collateral estoppel and the Fifth Amendment. The entire ALR program in Texas is just a way to coerce motorists to blow into the state's breath test machine so the state can obtain evidence it wouldn't have any other way of obtaining. And we already have vampires and their black-robed friends just waiting to take your blood if you decide to exercise your right to refuse.

The NTSB wants to stop prosecutors from offering pretrial diversions or "reductions" in DWI cases. Here we go -- Washington meddling in the affairs of local jurisdictions. There are any number of reasons why a pretrial diversion in a DWI case might be the right solution. There are also good reasons why some DWI's are "reduced" to obstruction of a highway or reckless driving. In the name of dragging everyone into the criminal (in)justice system, the government hasn't given a second thought to the consequences that follow a criminal conviction.

And my favorite, the DWI court - a facade of justice where defense attorneys are prodded to become a member of "the team" and sell their client out. Either treat DWI like a criminal offense and let the criminal (in)justice system take care of it, or treat it as a medical condition and let the doctors treat the disease. The criminal (in)justice system is not equipped to be a social service provider. The purpose of the criminal courts is to determine whether an individual violated the laws of the state, not to prescribe treatment for a medical condition.

If you like what Bret Ligon, Warren Diepraam and their crew are doing up in Montgomery County, jump aboard for the ride.

Let the witch hunt begin!

Saturday, January 2, 2010

Today the interlock, tomorrow...

Senator Frank Lautenberg (D.-NJ) and Senator Tom Udall (D.-NM) have introduced the Drunk Driver Repeat Offender Prevention Act that would require states to mandate the installation of an ignition interlock device in the car of anyone convicted of driving while intoxicated. The device would have to remain in the car for at least six months.

According to the proposed legislation if a state refused to go along with this new federal mandate it could lose some federal highway funding. This is the same method Congress used to "convince" the states to raise their drinking ages t0 21 and to lower the states' per se definition to an alcohol concentration of .08 and higher.
“We know that 50 to 75 percent of drunk drivers continue to drive on a suspended license because they can. With an ignition interlock, DUI offenders can still go to work, school, or anywhere else they need to go. They just can’t drive drunk.” -- Jan Withers, MADD national board member
The goals of the legislation may be laudable, but the means of achieving them is not. First, it is not against the law in any state for a motorist to consume an alcoholic beverage and drive a car -- provided the motorist is not intoxicated or has an alcohol concentration below a certain threshold. Second, the installation of an interlock device will not prevent a person from driving another vehicle. Third, driving while intoxicated is not a federal crime (except in some limited circumstances) and the federal government has no business dictating how states punish acts that violate their own criminal statutes.

In Texas many courts require an ignition interlock device be installed before a restricted license will be issued to a motorist who has been convicted of driving while intoxicated. The motorist could lose his license if the device detects any alcohol. A court may also order the installation of an interlock device if a motorist's license suspension is probated by the court. In that case, the motorist could face a motion to revoke probation if the device detects any alcohol. But what about a motorist who pleads guilty, receives time served and never applies for a restricted license? What sanction could a court place on that motorist?

Maybe the next step in this assault on personal liberty and our constitutional rights will be a bill forcing states to place all motorists convicted of DWI on probation. How palatable is that option?

Thursday, January 8, 2009

Making a federal case

The price of poker in the federal sexual abuse case against U.S. District Judge Samuel Kent has risen. On Wednesday los federales amended the indictment to include additional allegations of sexual abuse and obstruction of justice.

What I want to know, however, is why on earth this case is even in federal court. The acts that the judge is accused of committing were also violations of state law. Why isn't Judge Kent standing trial in state court?

The only federal offenses per the U.S. Constitution are counterfeiting U.S. currency and treason - because both are crimes against the United States. Nowhere in Article I, Section 8 is Congress bestowed with the power to create additional federal crimes. Such a notion flew in the face of the principles of federalism.

Do we really need to prosecute someone in federal court for murder? What Timothy McVeigh did was against the law in Oklahoma. Why is a drug kingpin standing trial in federal court? The last time I checked, possession and distribution of a controlled substance is a crime in Texas.

According to The Champion (published by the National Association of Criminal Defense Lawyers), there were about 165 federal criminal laws at the turn of the 20th century. That number has mushroomed to almost 4,500 today. Most of those crimes are regulatory and public welfare offenses for which the mens rea has been, for the most part, negated.

The 10th Amendment states that the states retain any rights not delegated to the United States in the Constitution. This proliferation of federal criminal legislation is just another example of the way in which the federal government has extended its reach far beyond what the Founding Fathers ever intended.