Law & Justice: August 2004 Archives

Although I think it's mean and pointless to hurt a helpless creature, I don't really care what people do to their own animals. There shouldn't be any criminal punishment for hurting an animal you own, and if you hurt someone else's animal you should be prosecuted similarly to any other form of property crime.

An 11-year-old Indianapolis girl faces legal trouble after witnesses told Indianapolis police she intentionally mistreated a kitten Saturday night by swinging it in the air with a cord tied around its neck.

The girl was arrested on a Class A misdemeanor charge of torturing or killing a vertebrate animal. Animal Care and Control officials said in a report that the animal had to be euthanized because of injuries to its neck and its poor health.

The incident happened in the 2300 block of North Moreland Avenue around 6:30 p.m. An Indianapolis police officer who arrived to investigate also reported seeing the girl slam the kitten onto a wagon and heard the kitten cry out, according to a report.

The story doesn't indicate if the child owned the animal or not, but it's pretty absurd to criminally charge an 11-year-old.

My real concern in cases like these is that torturing small animals is part of the terrible triad of childhood behaviors, along with pyromania and bedwetting, that are common among psychopaths and sociopaths. According to Mindhunter author and former FBI agent John E. Douglas, something like 80% of serial killers displayed two or three of these behaviors by age 12. Certainly not everyone who does these things will become a serial killer, but there are other dangers associated with such mental pathologies; this girl should probably be put under psychiatric monitoring for a while, and her parents should be taught to look for other signs of future trouble.

The inestimable Wendy McElroy comments on public breastfeeding (and just two weeks after me!) and writes quite sensibly:

The case for breastfeeding on public property is stronger than on private property. Public venues are not governed by clear ownership rules. Thus, the argument that breastfeeding is natural and healthy may sway whatever process determines that property's use. ...

By contrast, private property has clear ownership rules; the owner should determine what is acceptable behavior by customers or visitors. That's why there are "No Shoes, No Shirt, No Service" signs. Control of access comes with ownership and it applies no less to a business than it does to a home. ...

Private property has been under attack for decades by those who claim that owner who "inappropriately" denies access to his property is violating civil rights. For example, an owner who refuses to serve women customers is said to violate their "right" to non-discrimination.

But no valid civil right entitles anyone to benefit from another person's possessions, from another person's time and labor. No one has a civil right to access someone else's property without the owner's consent. To demand such a "right" is an uncivil act that strips away one of the main protections of a peaceful society: namely, the line dividing what is mine from what is yours.

And anyway, why does anyone need to get all huffy about it?

Breastfeeding is natural and our society undoubtedly overreacts to naked breasts. But the winner-take-all approach of extreme advocates only acts to polarize society on a problem for which reasonable solutions can evolve. When done with some discretion, public breastfeeding is becoming socially acceptable with many businesses accommodating the shift.

Breastfeeding need not devolve into cultural warfare. The issue will yield to courtesy, common sense and a bit of respect for the other person's rights.

Just remember that you heard it here first....

Update:
Mrs. Noggle has a great no breastfeeding here logo.

Edvard Munch's "The Scream" has been stolen. Please remain calm and pass any clues you may find to me via email.

I like the term, and I got it from this post by Randy Paul at Beautiful Horizons about the British government deciding to allow information gained by torture in other countries to be used to identify suspected international terrorists.

The court ruled that the British government can use evidence obtained under torture outside the country when deciding to detain indefinitely foreign terrorism suspects, unless Britain was involved in the torture or encouraged it. The same material can also be considered by the Special Immigration Appeals Commission, which hears appeals by these suspects against indefinite detention. Much of the evidence before this commission is heard in closed proceedings to which the detainees and their lawyers of choice have no access. Instead, they are represented by security-cleared lawyers appointed by the government. Under the Convention Against Torture, to which Britain and more than 130 countries are party, evidence obtained under torture is inadmissible in “any proceedings” before a court. But the majority in the Court of Appeal said today that because the Torture Convention is not part of British domestic law, the Home Secretary has no obligation to enquire about how information from third countries was obtained when he certifies foreign nationals as suspected international terrorists.

Mr. Paul notes that information gained from torture can be rather unreliable, but is that critically important if the government is only certifying that a person is suspected to be a terrorist? I'm not aware of the consequences of this official certification of suspicion, but it doesn't sound the same as an actual conviction for terrorism.

Mr. Paul claims that there's a moral obligation to refuse to consider evidence gained by torture, but is that true? Certainly using such information is not morally equivalent to actually performing the torture -- unless the user has an arangement with the torturer sufficient to make the user an accomplice. Perhaps a rejection of all such evidence is required to eliminate the temptation for such arrangements? Though information obtained by torture may be unreliable that doesn't make it useless; should innocent people be risked just because investigators don't want to pursue a torture-tainted lead?

The Human Rights Watch report continues:

In his dissenting judgment, Lord Justice Neuberger made clear the consequences of the majority’s decision, stating that "by using torture, or even by adopting the fruits of torture, a democratic state is weakening its case against terrorists, by adopting their methods, thereby losing the moral high ground an open democratic society enjoys."

But I disagree. The "case" against terrorists is that they want to kill us, which is completely independent of whether or not we use torture. We don't fight terrorists because we think we're morally superior (although we are), we fight them to protect our own lives. The moral high ground is nice to have because it makes us feel warm and fuzzy, but it's incidental to the underlying cause of the conflict.

Update:
It's important to understand the difference between a judicial proceeding and an executive action. I'm not at all confident in my understanding of the UK government, but as it applies to America there's a world of difference. For example, the President can delegate his authority to detain enemy combatants to a commission which may then consider evidence and make rulings as a Presidential proxy. This is very different from a judicial court that derives its authority from Congress, precedent, and the Constitution. Keep this in mind as you read the comments.

I've written before that although I'm generally sympathetic to drug legalization on civil liberties grounds, I'm skeptical that such a huge change would actually be beneficial to individuals or society as a whole. One of the reasons why I'm unsure is that I can see the effect that legal drugs -- such as cigarettes and alcohol -- have on people I know, and I can see the costs they impose on society in general.

I like the idea that everyone should be able to do whatever they want as long as it doesn't hurt anyone else, but in most cases it's impossible to prevent hurting others, due to a confluence of harmful choices. For example, a person who smokes and also votes for public health care is trying to pass along the cost of smoking to me and other non-smokers. These two choices combined make for a very bad policy that restricts more liberty than either one would alone -- each alone may, in fact, be arguably good. (Not that I'm a fan of socialized medicine, but if everyone took care of their health and didn't engage in harmful activities, it could work.)

So when it comes to cases like this woman being sent to jail for smoking around her kids, I'm not very sympathetic. Even though it appears that the legal rationale for jailing her is that she's in violation of a custody agreement (she agreed not to smoke around her kids), the judge "upheld the order in January, citing medical evidence of the effects of secondhand smoke on children". Medical evidence would be unnecessary if the custody agreement were as well-defined as the article makes it sound. (Or maybe the judge is just throwing it in for free.)

The unintended externalities that could be caused by drug legalization are an example of the potential dangers of idealistic libertarianism (CC). I'd like to move in that direction -- from where we are now -- but I'm wary of moving too far, too quickly.

(This post feels like it's rambling, so I'm going to stop here.)

I'm posting this mainly so I can point Orin Kerr or one of the other Conspirators to my question, which is brought to mind by Professor Kerr's post on the Patriot Act and domestic terrorism. He writes that many people have mistaken understandings of the Patriot Act, particularly as it relates to "domestic terrorism". He then goes on to explain what it actually means, and responds to Dahlia Lithwick using a quote of hers:

Maybe it's just me, but that doesn't "sound[] as if it's directed . . . toward effigy-burning, or Greenpeace activity[.]" It's an interesting irony, though; a number of the claims that the Patriot Act chills speech are based on the erroneous belief that this statutory definition is a criminal prohibition. Strange, isn't it?

So here's my question. If a law is widely misunderstood by the public and actually does chill speech -- even though perhaps it wouldn't, if it were properly understood -- can it run afoul of the First Amendment? Is a law's actual effect important, or are the only relevant effects those that follow rationally from a proper understanding of the law?

Update:
Orin Kerr responds via email:

I am not a 1st Amendment expert, but my understanding is that the answer is generally no. The Courts look to the actual language of the law, not how it has been understood by the public.

Modoc County, California, issues more concealed weapon permits than Los Angeles County, despite having less than one-fiftieth the population -- and the place is a shooting gallery, right?

Cantrall and about 270 fellow residents of this sparsely populated corner of northeastern California routinely carry concealed handguns. When it comes to packing heat — at least legally — no other county in the state surpasses Modoc.

According to state Department of Justice statistics, about one in 29 residents here has a concealed-weapons permit. That compares with one in 800 residents for the rest of the state.

Modoc County issues almost as many permits as Los Angeles County — which has more than 50 times more people. Los Angeles County Sheriff Lee Baca has approved only 377 permits, mostly for judges, prosecutors, public defenders and retired federal agents. ...

Records kept by the state attorney general's office indicate that violent crimes occur here at less than one-third the rate in Los Angeles County. According to FBI statistics, there was only one homicide in Modoc County from 1993 through 2002. Sheriff Mix says the county averages about one "questionable death a year, including suicide."

Gee, do you think there's a connection? Nah, that's just too simplistic.

(HT: Al Rantel on the radio.)

Dahlia Lithwick has a good New York Times editorial about how the criminal justice system is basically incapable of resolving acquainance rape accusations, a point I've made before. She writes:

Rape shield laws prohibit the use of an accuser's prior sexual history to undermine her credibility, with rare exceptions. These laws were urged by feminist reformers in the 1970's because until that time the central inquiry in rape cases was whether the accuser was a tramp who, essentially, "asked for it." Cordoning off her sexual past from public scrutiny was vital, and in classic "stranger in the bushes" cases it made good sense. Who cares whether a woman had sex four times that night? No assailant had the right to force a fifth. But the problem in acquaintance rape cases - centered as they are on nuanced questions about the accuser's consent and the defendant's understanding of that consent - is that the legal inquiry does come down to whether she asked for it. Almost literally. And all the evidence of her sexual behavior - in this case the physical evidence implicating the accuser's other encounters that week - thus becomes highly relevant.

This well-intentioned reform in our rape laws has led to two unappealing alternatives: Either the defendant's legal presumption of innocence is flipped on its head, since rape shield laws unambiguously deny him access to potentially exculpatory evidence, or - as a practical matter - the woman's sexual history goes on trial regardless, permitting humiliating public scrutiny often likened to a second rape.

Ms. Lithwick then goes on to criticise the media for hyping the case to monumental proportions, but I think that's a futile effort. The media exists to make money, and there's money to be made in publicizing celebrity rape trials. Period. (Anyone who thinks the media's main goals are the pursuit of truth or to inform the public are delusional.)

The law is a blunt instrument, and not well-suited for every task to which we may like to apply it. In acquaintance rape cases the truth is difficult to discern, and often even the accuser and the accusee aren't sure what really happened. So what's the best way to resolve such accusations? If the evidence is sketchy a jury must acquit, but that doesn't mean individual members of society can't make up their own minds and shun whichever party they feel to be in the wrong. The situation is magnified in spectacle trials because of the high profile, but the principles are the same.

And, of course, if you don't want to be raped or accused of rape, don't hang out in secluded areas with strangers. That'll go a long way towards reducing your risk. It's not your fault if a car full of racing teenagers runs through a stop sign and smashes into your vehicle (as I heard happen the other day, and then saw the wreckage), but if you don't wear your seatbelt you're a fool.

(HT: VC.)

Update:
Via Insty, TalkLeft has an excellent example of how questionable some cases -- including rape cases -- are. This is the type of thing that makes me reconsider my support for the death penalty in its current state. Of course, sending a man to jail for 17 years for a rape he didn't commit is hardly much better.

In a bizarre conclusion to a disturbing story, Mary Kay Letourneau is reuniting with the now-20-year-old man she abused almost a decade ago.

After spending seven years behind bars, Mary Kay Letourneau (search) will legally be allowed to see the former student she was convicted of having sex with.

A judge on Friday approved the motion lifting the no-contact order between Letourneau and Vili Fualaau (search), with whom she had two children.

If you remember, Letourneau was only sent to jail after she violated the terms of her parole by continuing to have sex with Fualaau after her first conviction, and after having two children by him. Just more irrationality regarding children and sex. I don't imagine she would have treated as leniently the first time if she were a 35-year-old man abusing a 12-year-old girl.

“I've been waiting for a long time for this to happen — for her to come out," Fualaau said on NBC's the "Today" show Friday. "And now that I — now that she is out now, you know, I'm really excited to see her.” ...

Fualaau said he's looking forward to getting together with Letourneau and their children to see if they can have a life together.

Does anyone out there see this relationship ending well? I can't imagine a more dysfunctional "family" -- and I'm sorry, but I feel compelled to use quotes. The abuser will almost certainly turn into the abusee now that her former victim is older, and I shudder to think of the consequences for the children. Can Letourneau even get custody of their two kids (or her four other kids by her former husband, who moved to Alaska) after being convicted of sexually abusing a child? Does it matter that her former victim is still "in love" with her (again, more quotes)? Should a 20-year-old be given custody of his (likely) 8-year-old children?

The whole thing is almost too weird for words.

A friend told me a story about a couple of con men working a scam at the temporarily closed Montebello DMV. Apparently they made some shirts that said "DMV" on the front and stood outside the building posing as driving test administrators. Although the facility was closed, people who didn't know better were lining up outside to pay $20 to drive around the block a few times with the fake instructors, who then gave them a certificate and told them to come back in six weeks for their license. This went on for over two weeks before they were recently arrested.

In what must be a surprise for leftists, the two most recently arrested (would-be) terrorists in America are Arab Muslims.

To be fair, other non-Arabs are listed later in the article as terrorists -- but I didn't find any non-Muslims. I'll make the obligatory (and true!) disclaimer that not that all Muslims are terrorists, but it sure does seem that all terrorists are Muslim.

I call laws that are or will eventually be impossible to enforce impossiblaws. Take, for instance, the recent FCC ruling that Voice-over-IP technology must be tappable by law enforcement.

Internet phone carriers such as Vonage should set up their systems so U.S. law enforcers can monitor suspicious calls, the Federal Communications Commission (news - web sites) tentatively ruled on Wednesday.

By a vote of 5-0, the FCC (news - web sites) said "voice over Internet protocol," or VoIP, providers should be subject to the 1994 Communications Assistance for Law Enforcement Act, which ensures that law enforcers will be able to keep up with changing communications technologies.

The law does no such thing as ensuring that law enforcers will be able to keep up, all it does it force technology to retard itself.

... the FCC will accept further public comments before making its ruling on VoIP final.

Final. I love it. How long do you think this "final" ruling will even be relevant? How long will it be before distributed VoIP technology renders traditional telecommunication companies obsolete? How long until the FCC will be completely powerless to enforce any of its rulings, because technology will have simply slipped past like a ghost on a dark night?

Princess Leia: The more you tighten your grip, Tarkin, the more star systems will slip through your fingers.