Law & Justice: November 2005 Archives

So I like mixing my metaphors, so what? Today is the 12th anniversary of the singing of the Brady Bill by President Clinton and David Kopel has posted a sobering history lesson full of reasons why we shouldn't trust the left and their crusade to disarm us.

Much of the support for the "Brady Bill" came from the claim--which was demonstrably false--that the bill would have prevented John Hinckley from buying the guns he used to shoot President Reagan and Press Secretary Jim Brady.

Most significant is Mr. Kopel's reminder of the hoped-for Brady II law.

Almost immediately after passage of the "assault weapon" ban, Handgun Control, Inc. (which later renamed itself "the Brady Campaign"), announced "Brady II." Brady II would make permanent the handgun purchase waiting period which was set to expire in 1998, and would limits handgun purchases to one per month. The bill would also require all states to set up handgun licensing systems, with possession of a handgun permitted only to persons who pass federally-mandated safety training. All handgun transfers would be registered with the government.

Brady II would require every owner of a "large" ammunition clip to be licensed the same way that the federal government licenses machine gun owners. Simply to retain the magazines currently owned, a person would have to be fingerprinted, and pay heavy federal taxes. Brady II would also lower the ten-round limit to six rounds. As a result, the owner of a Colt .45 pistol and the standard seven-round magazine for the gun would need to go through the federal machinegun licensing system.

Under Brady II, anyone who owned at least twenty guns or 1,000 rounds of ammunition would be required to obtain a federal "arsenal" license. Licensees would be subjected to three unannounced police inspections per year. Persons who were required to have a license but did not obtain one would of course be subject to whatever enforcement action the Bureau of Alcohol, Tobacco and Firearms deemed appropriate.

For purposes of defining an "arsenal," firearms, firearms parts, and ammunition clips would all count as a "firearm." In other words, if a person owned three rifles, three handguns, two ammunition clips for each gun, and set of disassembled spare parts for the rifles and the handguns, he would have an "arsenal" consisting of at least 20 "guns." A thousand rounds of ammunition also count as a so-called "arsenal." So the hundreds of thousands of target shooters who pick up a pair of bricks of rimfire ammunition for $15 every few months would also become the owners of "arsenals."

One of the main reasons to oppose all gun restrictions is that it is the stated intent of those who propose such laws is to eventually ban all private gun ownership.

I seem to be writing about abortion a lot recently... go figure. Roger Pilon has an excellent explanation of why Roe v. Wade should be overturned and the issue of abortion returned to the states. It's really pretty simple:

And so the basic substantive question was clear: When does the right to life begin?

On that question, the Constitution is indeed silent--mostly. Here's why. We would all agree, I hope, that if a doctor took the life of a baby one day after birth, it would be infanticide--murder. Thus, states that protected older babies but not younger ones would doubtless be subject to equal protection challenges, at least, and would probably lose. But if taking the life of a baby one day after birth is murder, what is the difference if the act is performed one day before birth? It strains credulity to suppose there is any real difference. Well, what of two days before birth--and so on down the line? It's impossible to draw a principled line at which to say, precisely, that this is where the right to life begins. The court's trimester taxonomy in Roe was its own invention, entitled to no more constitutional support than anyone else's opinion on the matter.

And so we come to the jurisdictional question: Who decides? And on that the Constitution is not silent. Whether we believe that the right to life begins at conception or at some point over the next 270 days, we all believe, I hope, that it begins at some point along that line. We all agree, that is, that there is some point at which abortion amounts to murder. We just can't agree about where that point is. And so we're faced with a classic line-drawing problem, not unknown in other areas of the law, but here involving the criminal law and, therefore, the general police power--the power that belongs, under the Constitution, to states.

Legislatures and Congress should be drawing lines, not the courts.

Mark Kleiman and Cathy Young both have thoughtful defenses of the idea that criminal justice needs to take into account not just deterrence and incapacitation (to prevent future crimes) but also retribution. Says Mr. Kleiman:

I share the glee that I assume most of my Blue friends will feel at the prospect of Augusto Pinochet finishing out his life behind prison bars. ...

Note, however, that if putting Pinochet away is justified, it must be on some basis other than deterrence or incapacitation. Perhaps it's time to rethink the place of retribution as a legitimate goal of criminal justice policy. Making what remains of Pinochet's life as miserable as possible is something owed to his victims. It proclaims that what he did was wrong, that the victims did not deserve their victimization, and that they were important enough to be worth revenging.

Why should it be so hard to see that, and to apply it to more ordinary cases?

I've long held a similar view that the purpose of the criminal justice system should be to punish wrongdoers and that any peripheral effects (such as bringing "closure" or reformation) are just icing on the cake.

(HT: Eugene Volokh.)

I'm sure I'm not the first Republican to say so, but I'm glad that former Congressman Randy "Duke" Cunningham has resigned for taking bribes, and I hope he goes to jail. There are few greater betrayals of the public trust than accepting bribes, and Cunningham directly endangered national security by taking bribes from defense contractors. Good riddance.

After months of insisting he had done nothing wrong, Rep. Randy "Duke" Cunningham tearfully acknowledged taking $2.4 million in bribes, saying: "The truth is I broke the law."

The eight-term Republican and former Vietnam fighting ace pleaded guilty to graft Monday and resigned, admitting he took money mostly from defense contractors in exchange for government business and other favors.

"In my life, I have had great joy and great sorrow. And now I know great shame," a tearful Cunningham said after the plea. "I can't undo what I have done but I can atone."

But Cunningham, who could get up to 10 years in prison at sentencing Feb. 27 on charges of conspiracy to commit bribery and fraud, and tax evasion, may not be the only person ensnared in the case. Prosecutors have indicated they have more than him in mind.

He should be ashamed, because his behavior was disgraceful.

Along with the left's lament that there are more people in jail now than ever, even though crime is dropping (gee, think there's a connection?), it's amazing how simple logic rarely comes into play in the politics of law enforcement. In Britain, officials are encouraging more women to report rape but are also concerned that their conviction rate is falling.

RAPE attacks are increasing rapidly in England and Wales, but the number of cases that end in a successful prosecution has fallen to a record low.

According to government figures published yesterday,only one in eighteen rapes reported to police ends with the suspect being punished, although government ministers have pledged to increase the number of convictions. ...

It is the fall in the conviction rate to 5.6 per cent which will cause most disappointment to the Government, Crown Prosecution Service (CPS) and police. They have succeeded in encouraging more and more women to come forward to report rape but still too many cases never get into court.

The women who are least likely to come forward are the women who know that their case will be the toughest to prosecute. Encouraging more rape victims to report is, of course, a good idea, but it will also tend to push the conviction rate down. However, putting more rapists in jail is good, even if the process results in a lower conviction rate overall. I suppose there's some conviction rate that would be so low that it would be wasteful, but I don't know what it would be.

From an article about apportioning blame for rape:

Although the number of rapes reported to the police has gone up in recent years, the number of convictions has stayed constant, producing a dramatic drop in the conviction rate from 33 per cent in 1977 to just over 5 per cent today.

If the number of convictions has really stayed constant despite far more reportings, that's a strong indication that many of the additional reportings are false claims... but this possiblity isn't even discussed due to the twisted logic of law enforcement politics.

I believe that many rape accusations are completely spurious and that women who falsely accuse men of rape should be thrown in jail, but I'm not sure what to make of the idea that "drunken consent is still consent".

WOMEN who are raped while drunk face losing the chance to bring their attackers to justice after a legal ruling on the eve of new licensing laws.

A High Court judge yesterday threw out the case of a student who claimed that she was raped while drunk and unconscious on the basis that “drunken consent is still consent”. ...

The prosecution in the rape case had said it could not go on after the woman admitted that she could not remember whether she gave consent or not or whether sex had taken place. The jury at Swansea Crown Court was told: “Drunken consent is still consent.” ...

She told the jury that she had no recollection of events but insisted that she would not have agreed to sex with the man.

If you have no recollection, and there are no other witnesses, merely insisting that you wouldn't have wanted to have sex with they guy shouldn't be enough to support a rape prosecution. However, it seems like there's a world of difference between being drunk and being unconscious. If a woman is drunk and gives consent, then that's consent and there's no rape, even if she regrets it the next morning. But an unconscious person can't consent to anything, and if it can be proven that the woman was unconscious at the time of sex then that should be considered rape (unless she gave consent beforehand or there are other unusual circumstances).

Unlike the "cool mom" who got sentenced to 30 years in jail for having sex with a 15-year-old and a 17-year-old, a "cool teacher" received no jail time after having sex with her 14-year-old student. See? I told you the 30-year sentence was excessive.

A female teacher pleaded guilty Tuesday to having sex with a 14-year-old student, avoiding prison as part of a plea agreement.

Debra Lafave, 25, whose sensational case made tabloid headlines, will serve three years of house arrest and seven years' probation. She pleaded guilty to two counts of lewd and lascivious battery. ...

The boy told investigators the two had sex in a classroom at the school, located in Temple Terrace near Tampa, in her Riverview town house and once in a vehicle while his 15-year-old cousin drove them around Marion County.

The best part? Prosecutors apparently bought the defense's argument that Mrs. Lafave was simply too attractive to be sent to jail.

After Tuesday's hearing, Lafave's attorney, John Fitzgibbons, said the plea was "a fair resolution of this case." Asked how she felt afterward, Lafave said "tired."

Fitzgibbons said in July that plea negotiations had broken off because prosecutors insisted on prison time, which he said would be too dangerous for someone as attractive as Lafave.

It doesn't really sound fair, but at least I won't have to worry about ever being sent to prison.

(HT: James Taranto, again!)

Although I think Stanley "Tookie" Williams, multiple murderer and founder of the Crips gang, should be executed regardless of his supposed "redemption", I fail to see how he can possibly have met even the lowest threshold for forgiveness. Since being sentenced to death for the murders of Albert Owens, Tsai-Shai Yang, Yen-I Yang and Yee-Chin Lin in 1979, Williams has continually refused to admit his guilt or to assist investigators in dismantling the gang he founded. How can there be any sort of redemption without repentance?

Law enforcement officials, however, have told the governor that they don't believe in Williams' redemption because he has refused to admit that he committed the murders and has declined to participate in "debriefing" sessions with corrections officials about gang members.

Williams has said that even though he formally renounced gang life in 1997, participating in the "debriefing" sessions would make him a "snitch."

"Despite the overwhelming nature of the evidence against him, and despite the nonexistence of any credible defense, Stanley Williams steadfastly refused to take any responsibility for the brutal, destructive and murderous acts he committed. Without such responsibility, there can be no redemption, there can be no atonement, and there should be no mercy," says the filing by the district attorney, which was signed by John Monaghan, assistant head deputy district attorney, and Deputy Dist. Atty. David Walgren.

Cooley's letter to Schwarzenegger said that since Williams founded the Crips in 1979, the gang "has been responsible for literally thousands of murders in Los Angeles County alone."

Good riddance. The only regret society should have is that it took 25 years to execute this monster.

If your state had a problem with serial killers selling their art for profit I don't think you really need to be worrying about the limits of free speech, you need to be figuring out why your serial killers haven't been executed yet.

BOSTON (Reuters) - An online auction of artwork by a serial sex killer triggered outrage in Massachusetts on Tuesday where lawmakers proposed to block criminals from profiting on what they called "murderabilia," setting off a debate on free speech rights of prisoners.

A colored pencil sketch of Jesus Christ kneeling in a desert by Alfred Gaynor, a serial killer serving four life sentences for sodomizing and choking to death four women, went on sale on Tuesday on a Web site operated by a prisoner advocacy group.

It was one of nearly 300 artworks offered for auction through December 18 on The Fortune Society's Web site. If sold, nearly all proceeds from the work entitled, "A Righteous Man's Reward," will go to Gaynor, the group said.

Massachusetts' main problem is that it doesn't have a death penalty (source: deathpenaltyinfo.org). If you execute serial killers then you don't have to worry about their speech.

Yeah! What's cooler than partying with your mom? Nothing I can think of! Anyway, the so-called "cool mom" who hosted sex and drug parties for her kids and their friends is going to jail for 30 years. Seems excessive to me, considering that there are no allegations of violence that I'm aware of.

An Arvada mother tearfully apologized Monday and was sentenced to 30 years in prison for hosting sex-and-alcohol parties for teenagers.

Silvia Johnson, 41, pleaded guilty earlier this year to two counts of sexual assault, and nine counts of contributing to the delinquency of a minor.

Prosecutors said between 2003 and 2004, Johnson held 15 to 20 parties at her home and gave teens alcohol, marijuana and methamphetamines. She also confessed to having sex with two of the teenage boys.

If she had been prosecuted for distributing the drugs I suppose I could support a sentence of 10-15 years, but "contributing to the delinquency of a minor"? C'mon. Of course, most of the sentence is probably due to the sexual assault charges, the victims of which were 15 and 17. Yes, that's super creepy and disgusting, but last time I checked even 15-year-olds know all about sex, and most of them are doing it.

I don't know the details of the assault charges, but considering that armed robbers and violent rapists tend to get less than 10 years in prison it's hard to see how this sentence is justified.

I really think that the Senate should consider Judge Alito's whole record, and the White House should vigorously defend his positions, which are shared by most conservatives. This is the battle conservatives want to fight. We want to convince our fellow Americans that the principles espoused by Judge Alito are right and worthy of their support.

Although Judge Alito's conservatism has not been particularly evident in his legal rulings, it was abundantly clear in his job application 20 years ago.

"I believe very strongly in limited government, federalism, free enterprise, the supremacy of the elected branches of government, the need for a strong defense and effective law enforcement, and the legitimacy of a government role in protecting traditional values," he wrote.

"In the field of law, I disagree strenuously with the usurpation by the judiciary of decision-making authority that should be exercised by the branches of government responsible to the electorate," he added.

The document also provides the clearest picture to date of Mr. Alito's intellectual development as a conservative.

"When I first became interested in government and politics during the 1960s, the greatest influences on my views were the writings of William F. Buckley Jr., the National Review, and Barry Goldwater's 1964 campaign," he said. "In college, I developed a deep interest in constitutional law, motivated in large part by disagreement with Warren Court decisions, particularly in the areas of criminal procedure, the Establishment Clause, and reapportionment."

Unfortunately some Republicans are shying away from the discussion and attempting to avoid confrontation.

A leading Republican involved in the nomination process insisted that this does not prove Judge Alito, if confirmed to the Supreme Court, will overturn Roe v. Wade, the landmark 1973 Supreme Court ruling that made abortion a constitutional right.

"No, it proves no such thing," said the Republican, who spoke on the condition of anonymity. "In fact, if you look at some of the quotes of his former law clerks, they don't believe that he'll overturn Roe v. Wade."

In contrast to the sentiment underlying that equivocation, I believe that the majority of Americans can be convinced that the states should be allowed to handle the abortion issue without federal intervention. I believe that conservatives can win this fight head-on, and that we'll never have a better opportunity to pick it. Rather than trying to obfuscate and dismiss Judge Alito's beliefs, the Republican party should stand behind them and convince the American people that more power should be returned to the democratic branches of government.

Why is it that the concept of "privilege" has been created to shelter communications between lawyers and clients and doctors and patients, but the contents of a person's own journal or diary can be used against him in court? I bet more public figures would keep diaries for the sake of history, like President Lincoln did, if they knew their own words couldn't be subpoenaed as evidence.

Multiple-murderer Andrea Yates gets another trial because the psychiatrist who testified that she was mentally sound when she killed her five children mistakenly hypothesized that she might have gotten the idea to do so from an episode of Law & Order.

Andrea Yates, who was convicted of murder in the drownings of her children, will have to be retried, Texas' highest criminal court ruled today.

The Texas Court of Criminal Appeals upheld a lower court ruling that threw out Yates' murder convictions because of mistaken testimony by a prosecution psychiatrist. ...

The First Court of Appeals in Houston overturned the convictions last January because of testimony from prosecution psychiatrist Park Dietz, who said Yates was healthy enough to know what she was doing.

Dietz also suggested that Yates got the idea for the murders from an episode of a television show for which he consulted. However, it turned out no such episode existed.

Who cares where she got the idea from? What does that have to do with anything? How ridiculous.

The only interesting thing about the Panther Cheerleader sex-in-the-bathroom-not-really story is that the girls lost their jobs because of their embarrassing conduct.

An ex-Carolina Panthers cheerleader charged with giving police a false name during her arrest at a bar has denied accounts that she was having sex with another cheerleader in a restroom stall.

Renee Thomas, 20, also accused of hitting a bar patron, is charged with giving a false name and causing harm to another, a third-degree felony punishable by probation or a jail term of up to five years. The second cheerleader, Angela Keathley, 26, is charged with disorderly conduct and resisting arrest. ...

The cheerleaders were not in town to perform at the game, and the team said both were fired from the TopCats squad for violating a signed code that bans conduct embarrassing to the Panthers.

Someone let me know when an athlete is fired for "embarrassing conduct"... not that mere assault could possibly embarrass most athletes.

Former Congressmen Pat Schroeder and Bob Barr have written a column in the Washington Times decrying Google's new Google Print service that allows users to search through the full text of books, many of which are still under copyright protection. Setting aside the gross unfairness of continual copyright term extensions (which now protect a work for 70 years after the creator's death), the principle analogy used in this article to criticize Google is pretty weak.

Google Chief Executive Officer Eric Schmidt has argued the "fair use" provision in copyright law allows Google to scan copyrighted books and put them on their Web site without seeking permission. He compares this to someone at home taping a television show and watching it later. Taped TV show are watched in millions of households every night and is quite legal; rebroadcasting that show to make a buck is not.

So would Mr. Schroeder and Mr. Barr feel more comfortable if Google Print were only available to Google shareholders? If that were the case, then no "rebroadcast" would be occuring, since the material would only be being used by those who made the copies.

The basic problem here is that, as rich as some people have gotten by selling intellectual property, it seems inevitable that technology will eventually make it impossible to protect intangible forms of ideas. I'm not sure whether this change will good or bad, but it's really only a side effect of technological advancement that in many other ways brings about unambiguous good, and I don't think there's any going back. The software and music industries are dealing with it, the movie industry is starting to deal with it, magazines and newspapers are adapting to survive in the new environment, and there's no reason to expect the publishing industry to be exempt.

The case of Chester D. Turner is a perfect example of how a database of criminals' DNA can help solve past crimes and prevent future ones. Californians passed Proposition 69 in 2004:

The new law, officially called the DNA Fingerprint, Unsolved Crime and Innocence Protection Act, is expected to add the genetic data of 1 million people to California's databank over the five years, making it the largest state-run DNA databank in the country.

The law, approved by 62 percent of the state's voters in the Nov. 2 election, allows police to take DNA samples from every adult and juvenile convicted of a felony and from all adults arrested for specific felonies such as sexual assault and murder. In 2009, the law will be broadened to enable police to gather DNA data from anyone arrested for any felony -- ranging from residential burglary to murder -- whether or not they are ever charged or convicted with a crime.

Does this raise privacy concerns? As I've written in my series about the future of law enforcement, I don't like the idea of police robots scouring the sidewalks for DNA from spit and then mailing tickets to the offenders. But California's current law is limited to felons (and suspected felons, which is more troubling, granted), and may assist in revealing and prosecuting monsters like Chester D. Turner.

A former pizza deliveryman accused of being one of the city's most prolific serial killers was ordered Tuesday to stand trial on charges of murdering 10 women, two of whom were pregnant.

Superior Court Judge William R. Pounders ruled during a preliminary hearing that there was sufficient cause to believe Chester D. Turner committed the slayings that occurred from 1987 to 1998.

Turner, 38, is currently serving an eight-year prison sentence in an unrelated rape case. Pounders set a Nov. 15 arraignment date.

Turner's DNA was matched to sperm cell evidence from the bodies of all the victims, said Carl Matthies of the police department's scientific investigations division. The likelihood of the genetic profile belonging to someone other than Turner was one in one-quintillion, Matthies said.

It doesn't look like the DNA database authorized by Proposition 69 was involved in making this connection, but I don't have any doubt that once the system is implemented it will yield similar results.