Posts tagged ‘death penalty’

On the Death Penalty and Ideological Turing Tests

Actually trying to understand how those you disagree with think, rather than just accepting some straw man version, can make one a much better debater.  Bryan Caplan's ideological Turing test is not just about empathy and being open to opposing arguments, but it also pays dividends in making better arguments for one's own positions.  I love how Jesse Walker begins his pitch to Conservatives against the death penalty:

The typical conservative is well informed about the careless errors routinely made by the Internal Revenue Service, the U.S. Postal Service, and city hall. If he's a policy wonk, he may have bookmarked the Office of Management and Budget's online list of federal programs that manage to issue more than $750 million in mistaken payments each year. He understands the incentives that can make an entrenched bureaucracy unwilling to acknowledge, let alone correct, its mistakes. He doesn't trust the government to manage anything properly, even the things he thinks it should be managing.

Except, apparently, the minor matter of who gets to live or die. Bring up the death penalty, and many conservatives will suddenly exhibit enough faith in government competence to keep the Center for American Progress afloat for a year. Yet the system that kills convicts is riddled with errors.

Freedom <> Democracy

In this country, at least in high school civics classes, we often equate freedom and democracy.  But this is not the case.  I have written before that protection of individual rights is far more critical to our well-being than voting.  If there was a system with a better track record for protecting individual rights than democracy, I would support it, even if it did not involve voting.

Here is an interesting example from Kuwait of a king protecting individual rights from a democratically-elected body

Although a monarchy, Kuwait has an elected parliament and a generally free media. It regularly invites foreign analysts and journalists to observe its elections. I am making my second trip this year.

Tremors from the Arab Spring are being felt here. The parliament elected in 2009 faced charges of corruption and lost popularity, and was dissolved at the beginning of the year. Elections were held in February.

All very democratic.

The new legislature was dominated by anti-government activists and, more important, Islamists. Top of the latter’s agenda was making Sharia the basis of all laws, imposing the death penalty for blasphemy, and closing Christian churches. Not very good for liberty.

The Kuwaiti emir, Sheikh Sabah al-Ahmad al-Sabah, said no to all three. Liberty was protected only because Kuwait was not a genuine parliamentary system where elections determine the government.

Please, do not over-interpret my point here.  I am well aware that the Emir in Kuwait holds a number of illiberal views with which I would disagree.  But its an interesting example none-the-less.

Schizophrenic Trust in the Government

Matt Curran has spot-on comments about the death penalty in a letter to the Tampa Bay Times

Robyn Blumner's column highlighting the wrongful executions of Carlos DeLuna and Cameron Todd Willingham was a very compelling argument against the death penalty. I am a Republican who rarely agrees with Blumner, but in this case she was spot on. While I believe that there are individuals who certainly deserve to lose their lives for the crimes they commit (John Couey comes to mind), I simply do not trust the government to administer such a process fairly or accurately. This is because the government is run by human beings, who like the rest of us are motivated by narrow self-interest and restrained by limited knowledge. Because those in government rarely face the consequences of their decisions, they often make the wrong ones, even if their intent is pure.

What I find puzzling is how Blumner can so effectively articulate these failings of government when it comes to civil liberties in one column, and in the next champion its abilities and competence in economic matters. A criminal trial is a grueling and exacting process that seeks to administer justice in a very narrow, specific instance. If government doesn't deserve our faith in doing that correctly, how can we trust it to control and coordinate the countless decisions that hundreds of millions of Americans make each day in our economic lives?

For more from Matt, his blog is here.

California Vote on Death Penalty

I have migrated from being a death penalty hawk 30 years ago to being against the death penalty.  In short,  if I don't trust the government to be able to make decisions on alternate fuel loans, I don't trust them to make life and death decisions.  I grew up in Texas where governors in political races would compete with one another on who has or promises to execute the most people.  Literally they were running on body counts.  This is not an environment conducive to good decision-making.

Further, the death penalty does too much to cut off one's full appeal rights.  A black man in Mississippi in 1965 was never going to get his full Constitutional appeal rights.  Men have been executed that later improvements in racial tolerance or DNA evidence might have exonerated.

Apparently, some of the original supporters of California's death penalty expansion in the 1970's* are now promoting its repeal, and are trying to woo other Conservatives to the cause

Thirty-four years later, another initiative is going on the California ballot, this time to repeal the death penalty and replace it with mandatory life without parole. And two of its biggest advocates are Ron Briggs and Mr. Heller, who are trying to reverse what they have come to view as one of the biggest mistakes of their lives.

Partly, they changed their minds for moral reasons. But they also have a political argument to make.

“At the time, we were of the impression that it would do swift justice, that it would get the criminals and murderers through the system quickly and apply them the death penalty,” Mr. Briggs, 54, said over tea in the kitchen at his 100-acre farm in this Gold Rush town, where he grows potatoes, peppers, melons, cherries and (unsuccessfully, so far) black Périgord truffles.

“But it’s not working,” he said. “My dad always says, admit the obvious. We started with 300 on death row when we did Prop 7, and we now have over 720 — and it’s cost us $4 billion. I tell my Republican friends, ‘Close your eyes for a moment. If there was a state program that was costing $185 million a year and only gave the money to lawyers and criminals, what would you do with it?’ ”

*For those who did not live through the 1970's, it is hard to describe how much the culture was absolutely steeped in the notion that city streets were Road Warrior-esque free-fire crime zones.  The Dirty Harry movies, the Charles Bronson vigilante movies, Escape from New York, the Warriors, etc. etc all promoted this notion that we were too soft on crime and that we had allowed criminals to run wild.

A Question

Shouldn't a prosecutor who knowingly withheld exculpatory evidence in a death penalty case be treated as an attempted murderer?

Worst Anti-Death Penalty Argument Ever

Long time readers will know that after years of being a death penalty hawk in my younger years, have turned against the death penalty because I do not think that our government run legal system is capable of handing out death sentences fairly.  In particular, we see too many case overturned 20-30 years after the fact by DNA and other evidence, as well as changing social pressures (e.g. increased sympathy for blacks in the deep south) that I don't like the death penalty because it cuts off the ability to appeal.  Sure, folks on death row get a zillion appeals, but after 6-8 years these run out and the person is killed.  How is that going to help the black man convicted in 1962, when changing societal dynamics might only offer him a fair hearing in 1985, or DNA evidence in 1995, or help from the Innocence Project in 2005?

Never-the-less, I have to say this may be the worst appeal I have ever seen against the death penalty, with one man trying to hold up the process because the lethal drugs were obtained from a non-US supplier.  LOL, I don't think he is really worried about the drugs somehow being ineffective.  I sympathize with him, I would be doing everything I could too, particularly in a state like Arizona where law-of-the-west politicians compete to see who can send prisoners to the grave fastest.

Best Argument Against the Death Penalty

I agree with TJIC:

If we can't trust the government to enforce the speed limit or issue liquor licenses fairly, how can we trust it to kill citizens fairly ?

It strikes me as odd that law-and-order conservatives can distrust every single department of the government except the guys who carry guns.  The post office and the police are run by the same organization.

More extensive thoughts on the death penalty here and here.

Eeeek!

Readers probably remember that I am against the death penalty.   My main objection is that it effectively short-circuits appeal rights.  Sure, people sent to death row get a lot of appeals, but those appeals are relatively narrow in time, say over 8-10 years.  Would 10 years of appeals help a black man put wrongly on death row in Alabama in 1955?  It wasn't until 20-30 years later, or even 50 years later, that both society and technology have changed enough to free a lot of people in jail.  Just look at how many people the Innocence Project has helped to free, and how many are starting to be freed with DNA.

In this context, I found this statement (via Stephen Littau of the Liberty Papers) particularly frightening.

"This court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is "˜actually' innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged "˜actual innocence' is constitutionally cognizable." "“ From the dissenting opinion by Justices Scalia and Thomas on the question of whether death row inmate Troy Davis should receive a new trial after 7 eye witnesses against him recanted their testimonies against Davis.

If innocence does not matter, what the hell does??

Ditto

Via TJIC, Radley Balko shares almost exactly my position on the death penalty:

I'm opposed to the death penalty not because I don't think there are some crimes so heinous that they merit death as a punishment. I'm opposed to it because I don't think the government is capable of administering it fairly, competently, and with adequate protections to prevent the execution of an innocent person.

This is an issue that I have moved pretty far on since my high school conservative days.  I used to be a death penalty hawk --  I suppose this was in part due to the natural tendency to take the opposite side of folks making bad arguments.  Death penalty opponents would argue that we just don't have the right to take away the life of that lady who drowned her three kids by sinking them in a car in a lake because she was tired of taking care of them.   Well, I felt she had pretty much forfeited her ability to fall back on the sanctity of life defense.

But I am increasingly pessimistic of the justice system's ability to adequately separate guilt from innocence (it is run by the government, after all).  We have far too many examples of people who have exhausted their normal appeals and have sat in jail, and even on death row, for years or decades before exculpatory evidence came to light (or, in situations of bias like in the deep south, where courts were finally willing to consider exculpatory evidence).   We can only tremble to think of how many innocent men were never cleared before the day of the fatal injection came.  Prosecutors, who often are using the position as a springboard for higher office, generally have the incentive never to back down from a case and to defend every conviction, no matter how clear the evidence becomes that an innocent person is in jail, to the very end  (see Janet Reno, for example, who in a twist of terrible irony now sits on the board of the Innocence project, while men falsely convicted in her day care pogrom still sit in jail).

Update: Speaking of prosecutorial abuse....

It's a Feature, not a Bug

Laws that require the goodwill and ethical functioning of its participants, without oversight, always worry me.  The companion argument to this is when someone says (and this is popular among Democrats nowadays) all this infrastructure in the government that does not work will be fine when we get our own smart people running it.

It never, never works.  Here is yet another example:  All that extra post-9/11 investigatory power?  Trust us, we only use it on the bad guys.

The Maryland State Police classified 53 nonviolent activists as
terrorists and entered their names and personal information into state
and federal databases that track terrorism suspects, the state police
chief acknowledged yesterday.

Police Superintendent Terrence B.
Sheridan revealed at a legislative hearing that the surveillance
operation, which targeted opponents of the death penalty and the Iraq
war, was far more extensive than was known when its existence was
disclosed in July....

Said the unrepentant leader of this efort:

"I don't believe the First Amendment is any guarantee to those who wish to disrupt the government," he said.

Reading my history, disrupting the government was not the last thing they were trying to protect, it was the first thing. 

Arizona Business Death Penalty Enacted

This Tuesday, Arizona's death penalty goes into effect for businesses that knowingly hire workers who have not been licensed to work by the US Government.  Employers must use the e-Verify system the Federal government has in place to confirm which human beings are allowed by the federal government to work in this country and which people businesses are not allowed to employ.  Businesses that don't face loss of their business license (in itself a bit of government permission to perform consensual commerce I should not have to obtain).

There are any number of ironies in this law:

  • The Arizona government has resisted applying the same tight standards to receipt of government benefits, meaning the state is more comfortable with immigrants seeking government handouts than gainful employment.
  • The state of Arizona resists asking for any sort of ID from voters.  This means that the official position of the state of Arizona is that it is less concerned about illegal immigrants voting and receiving benefits than it is about making sure these immigrants don't support themselves by working.  This is exactly the opposite of what a sane proposal would look like. (and here)
  • In the past, we have used Arizona drivers licenses to verify citizenship.  By implementing this law, the Arizona Government has said that an Arizona driver's license is not sufficient proof of citizenship.  Unable to maintain the integrity of their own system (e.g. the drivers license system) the state has effectively thrown up its hands and dumped the problem on employers
  • The e-verify system, which the law requires businesses use, currently disappears in 11 months.
  • The law requires that the e-Verify system be used for both current and new employees.  It is, however, illegal under federal law to use the e-Verify system on current employees.
  • In fact, the e-Verify system may only be used within 3 days of hire -- use it earlier or later, and one is violating the law.  In a particular bit of comedy, it is illegal to use the e-Verify system to vet people in the hiring process.  The government wants you to entirely complete the expensive hiring process before you find out the person is illegal to hire.
  • There are apparently no new penalties for hiring illegal immigrants at your house (since there is no business license to lose).  State legislators did not want to personally lose access to low-cost house cleaning and landscaping help.  We're legislators for God sakes -- we aren't supposed to pay the cost of our dumb laws!

I have criticized the AZ Republic a lot, but they have pretty comprehensive coverage on this new law here and here.

Update:  Typical of the government, the e-Verify registration site is down right now.

Update #2:  It appears Arizona is taking a page from California's book.  California often passes regulations that it hopes businesses will follow nationally rather than go through the expense of creating different products or product packaging for California vs. the other states.  Arizona may be doing something of the same thing, since the terms of use for e-Verify require that if a business uses e-Verify, it must use if for all employees.  Therefore, a business that has any employees in Arizona is technically required to use this system for all employees nationwide.

Update #3:  By the way, I guess I have never made my interest in this issue clear.  We do not hire any illegal immigrants.  Since most of our positions require employees to live on site in their own RV, it is seldom an issue since the average illegal immigrant does not own an RV.  We have always done all of our I-9 homework, even though the government stopped auditing I-9's about 8 years ago.  We have in fact been asked about five times by foreigners to hire them under the table without having the licenses and papers they need from the US government -- all of them have been Canadian.

Revisiting Arthur Anderson's Death Sentance

The firm of Arthur Anderson was put to death by government prosecutors.  Unlike human beings, Anderson was killed without ever receiving a trial, and was dead long before any appeal was mounted.  Many a media tear have been shed for Enron employees who lost their savings in the Enron 401-K, where they invested in Enron by choice, but I have seen few people sympathizing with the tens of thousands of people who lost their savings in the AA collapse, the vast vast majority of whom never touched the Enron account.

Mary Morrison has a nice analysis (pdf) of why Anderson was probably killed unfairly.  Her central argument is that the main fraud at Enron was perpetrated in the off-balance sheet special purpose entities, or SPE's, when third parties put up capital that the SPE called equity, but was in fact really a loan with a verbal (non-written) promise to repay by either the entity or Enron.  By disguising a loan as equity, and by by disgusing related parties as arms-length investors, Enron was able to avoid consolidation of the SPE's with its financial statements.

Ms. Morrison argues persuasively that since Anderson was not the auditor for any of these SPEs, it had no way to uncover the true nature of these sham financing agreements, since these SPEs were effectively different corporations with different auditors.  AA had to rely on signed statements by each deal's principals that the financing for the SPE was as described (which is standard practice in this type situation and is considered to represent adequate due dilligence).  Anderson had no way to know what was going on in the SPE's, and since the SPE's were separate legal entities from Enron, it had no legal right to poke around in these entities and of course no subpoena power.  It had no way to know about the hidden verbal second part of the financing agreements.  She argues AA was a victim of the fraud and of false statements by Enron and the SPE managers and investors. 

It is interesting to note that the prosecution of the Enron case is prosecuting Enron managers right at this minute for making such fraudulent statements to AA and for hiding the nature of the SPE's from AA.  In other words, the prosecution team that first gave AA the death penalty for allegedly conspiring with Enron to hide their problems is now prosecuting Enron managers on the legal theory that AA was innocent and duped by the managers, which was AA's defense before they were wiped out.

Tom Kirkendall has more on AA's martyrdom here.  He also continues his scary series of articles on prosecutorial abuse here.  The pressure brought to bear to prevent defense witnesses from testifying is particularly frightening.  When you read this, you are really left wondering how the auditors for the SPE's, which may include KPMG, escaped unscathed (in fact escaped richer, since they got their share of the now-defunct Anderson's clients) when Anderson was put to death.

Why Court Decisions Involving Death Make Us Nervous

Twenty years ago, I was a fairly hard core death penalty proponent.  I never could muster up much respect for the life of someone who had themselves shown so little respect for life in committing the heinous crimes that incur the death penalty.

Over the years, I have not gained any additional respect for a killer's right to life, but I have had growing doubts about our ability to mete out this penalty fairly.  To some extent this is based on the accusations that certain groups are more likely to get the death penalty than other groups.  For example, its fairly clear that men committing heinous crimes are more likely to get the death penalty than women.  I am also mostly willing to accept the notion that blacks are more likely to get the death penalty for the same crime as whites -- I hesitate to fully embrace this conclusion only because the people making this case are the same people who play the race card on everything, from OJ's guilt to fan reaction to Sammy Sosa's corked bat, so it has an element of the boy crying wolf.

However, discrimination is not the main reason I no longer support the death penalty for anything but the most extreme cases (there is still a need for an ultimate penalty in certain cases - without it, people who have already earned life in prison might see nothing to lose in killing a policeman or prison guard).  I have come to believe that the death penalty impairs a person's right to appeal. 

Now, certainly people sentenced to the death penalty get many layers of appeal.  However, while these appeals may cover many years, at some point the convicted person is put to death, and any further appeals or introduction of new evidence is no longer possible.  A multi-decade vindication process is not without precedent, for a number of reasons:

  • Racial mores may have to change:  How many black men were put to death unfairly in the south up through the 1960's?  Yes, they got to have all their appeals, but their appeals all occurred in the same place and time-frame as their conviction.  Only a generation later, long after many were dead, could a legal system run by a society with a different outlook on blacks look at some of these cases in a new light.
  • Public hysteria may have to calm down:  Though none that I know were sentenced to the death penalty, look at how many teachers and day care workers were convicted in the child molestation panics of the 1980's, only to be release decades later after the hysteria had passed, and in some cases after the original ego-driven prosecutors had retired.  The Gerald Amirault case is a great example.
  • Technology may have to change:  A number of people who had exhausted nearly all their appeals prior to being put to death have been vindicated, sometimes many years after the fact, by new DNA testing technologies.

We all know that courts make mistakes, some of which take decades to fix.  What if we never had a chance to change the flawed Plessy vs. Ferguson decision?  Criminal cases are no different - mistakes and abuses happen.  In most cases, these can be fixed, even decades after the fact.  The wrongly accused, like Mr, Amirault, loses a piece of his life, but still has some left.  Once put to death, though, the wrongs can't be fixed.

The reason I think about all this today is because of the Terri Schiavo case.  I am at a loss as the the right thing to do is here, and am amazed that so many people on both sides are so certain they are right -- the facts in this case are just so messy.  I am willing to accept that the court in Florida has done their job in plowing through all this mess and making the best decision they could under the law, and I am not about to advocate setting some really bad constitutional precedents just to second-guess them.

However, I am left with the same worry that I think many Americans are in cases like this.  Courts do make mistakes, what if they are wrong here?  After next week, there will be no more chances to appeal.

Why Judge Nominations Are Suddenly So High Stakes

Over the last 10 years, it certainly appears that the stakes have been raised substantially in judicial nominations, to the point that the approval of federal judges seems to be the number one issue in front of the Senate, even ahead of matters like Social Security reform or tax policy.  Sure, in the 80's we had some high-profile confirmation battles (e.g. Bork, Thomas), but those were for the Supreme Court and might be narrowly interpreted as revolving around issues of abortion and perhaps affirmative action.  Certainly both sides of the abortion debate are gearing up to duke it out over Supreme Court nominations, but most of the current brouhaha in the Senate is over lower level appointments that can't reasonably be interpreted as having much influence on abortion.  So something else must be going on.

To understand what this "something else" is, I want to digress a bit into the analogy of campaign finance (yes, its analogous).  I won't conceal the fact that I think that the most recent round of campaign finance "reform" has been a disastrous infringement on first amendment rights, the implications of which are only just coming to the surface.  However, my opinion of it is irrelevant to the analogy.  While proponents of campaign spending restrictions point to the "corrupting influence" of large sums of money in the election process, what no one ever mentions, though, is why such large sums of money are being spent in the first place.  It is this latter issue on which I want to focus.

The reason that politics have become so high-stakes, at least in dollar terms, is because the government controls so much more of the economy and our lives.  A century ago, the federal government had the power to raise and lower tariffs, and some limited control of the money supply, and occasionally gave out land grants to new railroads, and that was about it.  Today the government can tax an individual or corporation six or seven different ways, determines how much you must pay your employees, controls much of the health care system, holds product design or pricing approval authority for many industries, controls access to critical raw materials, etc etc.  If the government decides it does not like a particular person or industry, it can charge it with billions in extra costs in taxes -- or if it finds an industry politically expedient, it can pump it up with billions in subsidies.    Every year, the government takes literally trillions of dollars from one unfavored class of citizen and gives it to a more politically favored class. 

With stakes this high, it is no wonder that more and more people are willing to pay more and more money to let their voice be heard in the political process.  Greater amounts of money flowing into politics is not a sign of a broken democracy, but just its opposite.  More political spending means more money spent on speech, which in turn results from more people trying to add their voice to the political process more intensely.   Rather than deal with the root cause, the growing power of government to arbitrarily transfer wealth, the country instead lurches from one half-assed attempt at political speech control to another.

So here is where I am going with this analogy.  Today, it increasingly appears to people that the process for approving Presidential judge nominations in the Senate is broken.  The opposition party, first with some tentative steps by Republicans under Clinton and then with wholesale defiance by Democrats under Bush, are increasingly making the appointment of judges tremendously contentious.  I would argue though, as with campaign finance, that the problem is not with the process, but with the changing power of judges.  Over the last 30 years, judges have increasingly gone beyond interpreting and applying law to creating new law on their own, a power that is as constitutionally unjustified as it is unchecked.

To understand this, lets first start with an example of what I would consider appropriately constitutional behavior by judges.  This is an example from a case brought against the Bush Administration, demanding the release of terrorist suspects the administration has held indefinitely.  The Bush administration argued that the war on terrorism was different from other crimes, and that it required an enhanced ability to indefinitely intern suspects.  The US District judge in the case disagreed, and note particularly the language he uses (emphasis added):

U.S. District Judge Henry F. Floyd ruled Monday that the president of the United States does not have the authority to order Jose Padilla to be held indefinitely without being charged.

"If the law in its current state is found by the president to be insufficient to protect this country from terrorist plots, such as the one alleged here, then the president should prevail upon Congress to remedy the problem," he wrote.

I can find no more perfect example of a judge appropriately fulfilling his constitutional role.  For him, the necessity or merit of being able to hold terrorist suspects without charges is IRRELEVANT to him.  Judge Sweet might well consider holding suspects without charges in these cases to be the most necessary thing in the world, or alternately the most reprehensible.  But his job is not to decide if such a power SHOULD exist, his job is to decide if such a power DOES exist.  And he says it does not -- and to call the legislature if you want one, because it is their job to create new law. 

Unfortunately, there is a growing theory of jurisprudence that creates an expanded role for judges.  In this theory, judges are empowered to act sort-of as the institutional Dali lama, the wise person who descends from the mountain from time to time to correct moral lapses made by legislatures.  If you are a Star Trek fan, think of this theory placing judges in the role of the Organians, parachuting into human affairs from time to time to correct moral problems.  As Justice Scalia put it in a recent decision:

The Court thus proclaims itself sole arbiter of our Nation's moral standards, and in the course of discharging that awesome responsibility purports to take guidance from the views of foreign courts and legislatures.

The problem with this theory is two-fold.  First, it calls for making judges the rulers in a benevolent dictatorship, for there really are no checks on judges elected for life who suddenly have the power to create new law.  Sure, the notion of a benevolent dictatorship of people with strong moral compasses has been a compelling notion to some through the centuries, but it never works and always ends up getting abused.  Which leads us to the second problem with the theory, which is that there is no constitutional basis for judges creating new law, nor would the power-paranoid writers of our Constitution ever have allowed it. 

Now, you may be thinking me paranoid to think of judges as taking on the power to write law.  I offer proof in two parts.  First, doesn't the exponentially higher stakes and greater attention today in approving judge appointments point to the fact that judges somehow have more power than they had a few decades ago?  Second, lets look at an example.

I covered this one in this post on media privilege, and quoted from the NY Time editorial:

[Judge Robert Sweet] explained that the United States Court of Appeals for the Second Circuit in New York recognized a qualified First Amendment privilege that protects reporters from being compelled to disclose their confidential sources

Judge Sweet defended the existence of this privilege by saying:

he took note of the important role of confidential sources in news investigations of the Watergate, Iran-contra, Monica Lewinsky and Abu Ghraib scandals

Do you see the difference from Judge Floyd's opinion above.  In this case, the Judge does express his opinion, that confidential sourcing has played an "important role" in unwinding a number of political scandals.  He uses this as a justification to create a privilege for reporters to conceal evidence and ignore subpoenas from a federal investigation.  Recognize, as background, that whatever shield law for reporters that may exist in your state, there is NO press shield law allowing concealment of sources at the Federal level.  And, the First Amendment itself only says:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

I don't see anything in that text that implies that the press can legally get away with obstructing justice while other citizens not in the press, like Martha Stewart, go to jail for obstructing justice.  Now, you might think that the press should have such a privilege.  Heck, I might in fact support some type of privilege.  But the fact is that right now, it does not exist under the law and judge Sweet should have given judge Floyd's answer, which I can't resist paraphrasing:

If the law in its current state is found to be insufficient to protect the media in doing valuable work, then the press should prevail upon Congress to remedy the problem

Now I am sure that I am vulnerable here to Constitutional scholars saying that I am a neophyte to Constitutional Law and I don't understand the chain of court decisions that lead to, in the case above, the press privilege precedent.  I have two responses to this.  First, I am tired of Constitutional Law being made into this arcane specialty where only a few experts can participate in the discussion, like Jesuits arguing about some arcana of a papal encyclical.  The Constitution is a very short and straight-forward document.  Anyone can understand it, and should.  I don't need 10 years of legal training and a piece of paper from the state bar to tell me that I see nothing about hiding information from police investigations in the First Amendment (heck, there are only 50 words there - where can it be hiding?)

My second response is specifically aimed at the chain-of-precedent reasoning for so many of the new rights and privileges that seem to be created nowadays.  Of course, precedent is critical in making law work - Common Law is all precedent and even in our constitutional system, relying on precedent saves a lot of rework (e.g. the Supreme court already decided this case X way so until they revisit it, we will follow that precedent). 

However, something else seems to happen in this chain.  Have you ever taken an original document, and Xeroxed it, and then made a copy of the copy, and then a copy of the copy of the copy, etc. through 10-20 generations?  What happens?  Typically somewhere along the way, some small flaw or spot on the machine causes a spot to appear on the copy.  As the copy is copied through successive generations, the spot grows and begins to stand out, until it is just as much a part of the document as the original text.  The spot, however, is an artifact that is reinforced through generations, like kids repeating a mistake in the game telephone.  That is what some of these court decisions feel like to me.  How did the NY circuit court find a press privilege - well, someone found a very very limited privilege out of thin air years ago, and then another judge used that as a precedent for expanding the privilege, until it is set in concrete today.  Just like the document experts in the CBS memo fraud want to get hold of originals of the documents to remove all the artifacts of copying to make the best decision on authenticity, so I in turn wish that courts would sometimes set aside all those intervening layers of other judges' decisions and just go back to the original damn document and work straight from the Constitution.

Liberals and some libertarians support have supported this theory of jurisprudence to date because to a large extent many of their causes have been net beneficiaries.  And, if history teaches anything, trashing constitutional controls to achieve near-term policy goals nearly always comes back to haunt those who do it. I understand the temptation -- for example, I oppose the death penalty for minors, and left the recent Supreme Court decision on the death penalty out of this post because I thought it a reasonable role for the Court to reinterpret "cruel and unusual".  But others, including Professor Bainbridge whose work I like a lot, and Justice Scalia whom he quotes, would argue that I am letting a favorable outcome blind me to the same problem of courts writing law. 

Postscript:  You may have noticed I did not mention Roe v. Wade.  In fact, I tend to avoid abortion issues like the plague.  In part this is because I have friends that are strongly, perhaps even radically pro-choice and friends who are strongly, perhaps even radically ant-abortion.  Like a lot of Americans, I believe that a fetus is not a human life at conception plus one day and it is very definitely a human life to be protected at birth minus one day, and I worry a lot where the dividing line is in the middle between life and non-life.  However, I will make two comments in the context of this post about Roe v. Wade that I think are fairly belief-neutral:

  1. I have never understood how "privacy" drives legality of abortion.  The clear question is "is the fetus a human life".  If it is not, then since it must instead just be tissue in a woman's body, then I accept her right to do with it as she pleases.  However, if the fetus is a human life, then it has rights of its own and the woman may not violate these except in special circumstances, no matter how much privacy she has.  So the decision is really one of "is the fetus a life"?  The Constitution does not give us much guidance on this question, but typically these types of uncertain decisions have been left to the states.  It is only with Roe v. Wade that the Court began taking on a new role of exercising a moral override over legislatures in certain areas (see Organian / Benevolent Dictatorship example above)
  2. I can't find a privacy right in the Constitution, though I will say I wish it was there, and would support a well-worded amendment in that area.  However, if the Court in its greater wisdom feels like there is a privacy right buried in there somewhere that restricts government intervention into what we do of our own free will with our own bodies, then there are a HELL of a lot of laws out there that need to be declared unconstitutional beyond just anti-abortion law, including:  narcotics laws, prostitution laws, the FDA, the tobacco settlement, alcohol prohibitions, helmet laws, seat belt laws, etc.

More on the Press and Revealing Sources

In a previous post, I wrote:

There were two interesting court decisions today that each can be summarized as "the press does not have rights or legal privileges beyond those granted to any ordinary citizens"

A number of readers were confused by this, as we have always seen the brave reporter on TV or in the movies protecting their information sources under a "shield law".  Many states, but not all, do in fact have shield laws that give reporters some protection against revealing their sources of information under subpoena.  However, there is no such law at the federal level, and any state laws that exist do not apply to federal courts or subpoenas.

However, despite this lack of an explicit federal shield law, most media organizations argue that the Constitution confers such privilege on them anyway.  Per the NY Times, some judges agree:

[Judge Robert Sweet] explained that the United States Court of Appeals for the Second Circuit in New York recognized a qualified First Amendment privilege that protects reporters from being compelled to disclose their confidential sources

This confuses me - I have read the first amendment many times.  I see the stuff about freedom of the press.  I always naively assumed this meant that they had the freedom to publish any old bonehead thing they wanted, including criticism of the government, without any limitations by the state.  I never realized that this meant that they also had the freedom to evade subpoenas and cover up evidence of crimes, things the rest of us would go to jail for (e.g. Martha Stewart).  Does the fact that the same amendment refers to freedom of religion mean that priests can legally cover up wrongdoing?  Do freedom of speech protections mean that bloggers can hide sources from subpoenas?

I find the judge's logic, as reported by the Times, to be scary:

The judge, Robert Sweet, reasoned, correctly, that the subpoenas for the phone records were the functional equivalent of demanding testimony from the reporters themselves, and he took note of the important role of confidential sources in news investigations of the Watergate, Iran-contra, Monica Lewinsky and Abu Ghraib scandals.

In other words, the Judge thought that allowing the press to hide their sources was useful in some cases historically, so he created a new first amendment privilege.  This is the kid of action that irritates the heck out of me.  What the judge just did in this case is legislate.  He saw a need in society and created a new privilege for a class of citizens based on that need.  You may even agree with his logic - in fact, I may even agree in part with his logic - but it is not his job!  He should be saying: "I'm sorry, as useful as such a protection may be, I see no basis for it in federal law or in the Constitution.  If you think you need one, write your Congressman but for now, there is no such privilege".  UPDATE:  If judge Sweet needs an example, here is one from an unrelated case:

U.S. District Judge Henry F. Floyd ruled Monday that the president of the United States does not have the authority to order Jose Padilla to be held indefinitely without being charged.

"If the law in its current state is found by the president to be insufficient to protect this country from terrorist plots, such as the one alleged here, then the president should prevail upon Congress to remedy the problem," he wrote. (hat tip LGF)

Sounds a lot like my suggestion above, huh?  This strikes me as a good judicial practice - rule on the law as it is, rather than what you think it should be.  We actually don't know whether Judge Floyd thinks that it is a good idea for the President to be able to order terrorist suspects held indefinitely, nor should his opinion matter.

Another Update:  Professor Bainbridge has a good post on yet another case of legislating from the bench.  I am lukewarm on the death penalty in general and am opposed the death penalty for minors, but I still think the Supreme Court is dangerously overstepping its bounds here.  The majority opinion talks about practices in other countries and public opinion - what does that have anything to do with Consitutionality? Those are arguments for legislation banning death penalty for minors in the legislature, not for the Court.

By the way, the Times wants to be able to keep secrets, but gets pretty huffy when other people have the same privilege:

Some judge may have looked at the issue, but we have no way of knowing, given the bizarre level of secrecy that still prevents the reporters being threatened with jail from seeing the nine-page blanked-out portion of last week's decision evaluating the evidence.

I found one other point in this same NY Times editorial to be hilarious.  I have not really commented on the Plame affair, because I found it to be pretty boring.  In fact, it is telling that most discussion of the affair ended the day after the elections.  Anyway, I found this note by the NY Times pretty funny:

Meanwhile, an even more basic issue has been raised in recent articles in The Washington Post and elsewhere: the real possibility that the disclosure of Ms. Plame's identity, while an abuse of power, may not have violated any law. Before any reporters are jailed, searching court review is needed to determine whether the facts indeed support a criminal prosecution under existing provisions of the law protecting the identities of covert operatives.

There is nothing wrong with this statement in and of itself - in fact, I agree.  Its funny only because the Times was the one reporting that it was in fact a crime committed:

Officials are barred by law from disclosing the identities of Americans who work undercover for the C.I.A. That provision is intended to protect the security of operatives whose lives might be jeopardized if their identities are known.

Among those who have cried foul are several Democratic senators, including Charles E. Schumer of New York, who have said that if the accusation is true and if senior administration officials were its source, law enforcement authorities should seek to identify the officials who appeared to have violated the law. Mr. Schumer has asked Robert S. Mueller III, director of the Federal Bureau of Investigation, to look into the case.

The Best of the Web pointed out this even more telling statement from a 12/31/04 NYT editorial.  Note the complete lack of uncertainty as to whether there was any crime committed (emphasis added)

The change was announced by the newly appointed Deputy Attorney General James Comey, who turned the case over to a respected career prosecutor, Patrick Fitzgerald, the United States attorney in Chicago. Mr. Fitzgerald is charged with finding out who violated federal law by giving the name of the undercover intelligence operative to Mr. Novak for publication in his column.

Interesting to see how their perspective changed when the subpoenas landed at their door.  "Law enforcement needs to get to the bottom of this as long as, err, they don't ask us to help".