There is little question that Timothy Trybus, the obnoxious drunk who angrily confronted Mia Irizarry as she was preparing for a birthday party at a Chicago park in June 2018, was guilty of disorderly conduct. He may also have committed simple assault. But both of those offenses are Class C misdemeanors, punishable by up to 30 days in jail. So why does he face up to five years in prison?

It is entirely because of the opinions Trybus expressed during his tirade, which this week led a jury to convict him of two felony hate crimes.

This case is highly instructive for anyone who doubts that hate crime laws punish people for what would otherwise be constitutionally protected speech. If Trybus had yelled at Irizarry because he hates birthday parties or because she was wearing a Green Bay Packers hat, he might still have been arrested for harassing her, but he would not be facing a prison sentence. Because he yelled at Irizarry about her Puerto Rican flag T-shirt, his misdemeanors became felonies.

A viral cellphone video recorded by Irizarry, which shows an audibly intoxicated and belligerent Trybus repeatedly harassing her, provided the damning evidence of his benighted views. “Why are you wearing that?” Trybus asks, pointing at the flag shirt. “This is America….You’re not gonna change us, you know that?…You should not be wearing that in the United States of America….If you’re an American citizen, you should not be wearing that shirt in America.”

Under Illinois law, Trybus’ behavior pretty clearly qualified as disorderly conduct, which includes “any act” performed “in such unreasonable manner as to alarm or disturb another and to provoke a breach of the peace.” His actions may also have amounted to assault, a charge that applies to anyone who “without lawful authority…knowingly engages in conduct which places another in reasonable apprehension of receiving a battery.”

Trybus’ lawyer, David Goldman, questioned whether Irizarry was “reasonably in fear of receiving a battery,” noting that he never touched her and that she remained calm throughout the episode. But in these circumstances, it would not be unreasonable for an unaccompanied woman to fear that the angry, intoxicated man who repeatedly rebuked her and refused to leave her alone might be capable of violence.

Either way, both of these offenses are misdemeanors. What made them felonies was the Illinois hate crime law, which applies “when, by reason of the actual or perceived race, color, creed, religion, ancestry, gender, sexual orientation, physical or mental disability, or national origin of another individual or group of individuals,” someone commits any of several offenses, including assault and disorderly conduct. A hate crime is a Class 4 felony, punishable by up to three years in prison, for a first offense and a Class 3 felony, punishable by two to five years in prison, for a second offense if it is committed in “a public park.”

To put it another way, the maximum sentence for Trybus’ offenses is 60 times as long as it would have been if prosecutors had not invoked the hate crime statute. And that staggering multiplier applies purely because the object of his ire was the Puerto Rican flag on Irizarry’s shirt, suggesting that he targeted her because of her race, color, or ancestry. Trybus could spend an extra 59 months behind bars for no reason other than the content of his beliefs, as opposed to the manner in which he expressed them. That clearly amounts to punishing him for his opinions, which is not something the government should be doing in a society that claims to respect freedom of conscience and freedom of speech.

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2019-09-27 16:28:27

I much enjoyed participating in this podcast, which was taped in front of a student audience Wednesday here at UCLA; here is IJ’s summary of the three cases my UCLA colleague Richard Re, Robert Everett Johnson (Jones Day), and I discussed:

After a student newspaper at the University of California, San Diego published a piece satirizing safe spaces and trigger warning, the student government pulled funding for all print media. A First Amendment violation? And…

When doling out federal grant money for community policing efforts, the DOJ gives preference to local departments that promise to cooperate with federal immigration efforts. Which, says Los Angeles, would actually undermine community trust in police. Did the DOJ exceed the powers delegated to it by Congress? And …

Religious organizations need not comply with some aspects of the Americans with Disabilities Act. But does the so-called “ministerial exception” extend to a Catholic school that fired a fifth grade teacher who needed time off for chemotherapy?


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Today the U.S. Centers for Disease Control and Prevention (CDC) finally confirmed that the vast majority of patients with vaping-related respiratory illnesses have reported using cannabis products, typically purchased on the black market. Among 514 patients for whom the information was available, the CDC found, 77 percent reported using THC products. Just 16 percent said they had vaped only nicotine, although the types, sources, and brands of the products were not identified.

Since people may be reluctant to admit illegal drug use, the true rate of THC vaping among the patients with respiratory symptoms is almost certainly higher. Prior data from several states indicated that 83 percent to 100 percent of patients reported that they had vaped THC.

Another CDC study, based on interviews with 86 patients in Wisconsin and Illinois, found that 87 percent “reported using e-cigarette products containing THC.” Two-thirds of the THC vapers said they used cartridges “sold under the brand name Dank Vapes,” one of several “largely counterfeit brands with common packaging that is easily available online and that is used by distributors to market THC-containing cartridges with no obvious centralized production or distribution.”

In light of this information, the main thrust of which has been apparent for at least a month, it is harder than ever to justify the insinuation that legal e-cigarettes are to blame for the lung disease outbreak, which involves 805 cases and 12 deaths by the CDC’s latest count. While 16 percent of the patients in the CDC’s study of 514 cases said they vaped only nicotine, those self-reports may not be reliable given the sensitivity of the subject. In any case, there is no indication so far that any of the patients were using legal e-cigarettes, as opposed to black-market pods or e-liquids, which may pose special hazards.

The CDC’s findings make sense, since legal e-cigarettes have been used by millions of Americans for years without reports of lung illnesses like these. The cases emerged only in recent months, which suggests that the problem is relatively new additives or contaminants in THC vapes, and possibly also in counterfeit nicotine pods or nicotine e-liquids of unknown provenance.

“It seems there’s too much conflating these tragic lung injuries with store-bought brands of regulated, legal e-cigs like Juul and NJOY,” former Food and Drug Administration Commissioner Scott Gottlieb observed yesterday, “and far too little blaming THC, CBD, and bootleg nicotine vapes—where so far, the only available hard evidence points.” While “some people may be getting sick from legal e-cigs,” he said, “to save lives and make sound policy we must follow science.”

The CDC has slightly revised its muddled message about the hazards of vaping. “While this investigation is ongoing,” it says, “CDC recommends that you consider refraining from using e-cigarette, or vaping, products, particularly those containing THC” (emphasis added). That last part is new. The CDC also implicitly acknowledges that conventional, combustible cigarettes are more dangerous than e-cigarettes: “If you are an adult who used e-cigarettes containing nicotine to quit cigarette smoking, do not return to smoking cigarettes.”

Meanwhile, however, Massachusetts has banned all vaping products, leaving former and current smokers without this harm-reducing alternative. Earlier this month, Michigan and New York imposed “emergency” bans on the flavored e-cigarettes that former smokers overwhelmingly prefer. This week Rhode Island announced a similar ban, and today Washington state followed suit.

Rhode Island Gov. Gina Raimondo (D) and Washington Gov. Jay Inslee (D) both cited the lung disease outbreak, along with recent increases in underage vaping, as part of their justification, even though the bans they plan to impose will not apply to the products that seem to be the main culprits. All of these bans are being imposed by unilateral executive action, without any input from state legislatures.

These panicky prohibitions create a situation where former smokers may go back to a far more hazardous source of nicotine and current smokers may be deterred from quitting by the lack of appealing alternatives. The bans also give a boost to the very black-market products that have been implicated in vaping-related respiratory illnesses. The predictable result will be more diseases and deaths, which the governors presumably do not intend.

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2019-09-27 19:00:29

  • Bless the Harts. Fox. Sunday, September 29, 8:30 p.m.
  • Almost Family. Fox. Wednesday, October 2, 9 p.m.

Fox’s idea of domesticity has always been a little on the feral side. From television’s very first dysfunctional-family comedy Married … with Children to the longest-running sitcom in TV history, The Simpsons, Fox bloodlines zig-zag with wild abandon.

Having clubbed Ozzie and Harriet and the Cleavers like baby seals, the network is now turning to their modern descendants, the Bechleys, a blended family. Really blended—in test tubes and petri dishes. And there are dozens of them.

Almost Family, Fox’s comedy-drama about the aftermath of a meltdown at a fertility clinic, is easily the most promising series of the fall broadcast season: funny, poignant, and drenched in the chemistry between three charismatic actresses playing women who suddenly learn they’re sisters.

It’s also the most likely to be buried under an avalanche of political-correctness tantrums. When Fox held a press conference last summer after screening the show for TV critics, it immediately turned into a #MeToo witch hunt, with the critics ranting about what they said was Almost Family‘s flippant attitude toward “medical rape.”

Almost Family is a lot of things, but flippant isn’t one of them. The show’s premise may sound like a television contrivance, but a very similar scandal erupted at an Indianapolis clinic in 2018. (Oddly, though, that’s not the story the show is based on; it’s an adaptation of an Australian series called Sisters that launched in 2017.)

Almost Family centers around Julia Bechley (Brittany Snow, Crazy Ex-Girlfriend), an only child who works as the communications director at a clinic run by her widowed father, Leon (Timothy Bottoms, Ordinary People), an irascible pioneering fertility doctor.

Their relationship, always problematic, goes completely haywire when Leon, confronted by reporters, confesses that in the uncertain early years of his practice, he used his own sperm to impregnate scores of his female patients.

Julia’s sense of personal and professional betrayal (the resulting scandal threatens to sink the clinic) only grows more profound in the face of her father’s chilly indifference. He was, he insists, just trying to bolster the crude early fertility technology to help his patents achieve positive outcomes.

“Not outcomes,” she furiously retorts. “Babies! Who grew up to be people!”

Among those people are Julia’s ex-best friend Edie Palmer (Megalyn Ann Echikunwoke, 90210), a belligerent defense attorney who stole Julia’s college boyfriend, and Roxy Doyle (Emily Osment, Hannah Montana), a fading and surly ice-skating star now known less for triple axels than a mean left hook.

The three share more than DNA. Julia’s sunny PR smile masks inner turmoil that regularly boils over into squalid bathroom hookups with men she either barely knows or wishes she didn’t. Edie’s uncertain about an outwardly model marriage that, at home, has sunken into a sexual deep-freeze. And Roxy, her body a twisted wreck after too many hard spills on the ice, believes her parents (“the losers who raised me”) see her as less a daughter than a meal ticket.

Each of the women feels a vague but insistent sense of an undefined hole in her life. “I’m sorry you picked such a broken person to be married to,” Edie tells her husband after a fight, but it’s a line that, with little alteration, could have been spoken by any of them.

Screenwriter Annie Weisman, who produced 23 episodes of Desperate Housewives, has woven Almost Family into a seamless tapestry of drama and comedy. And Snow, Echikunwoke and Osment are all equally adept at both, playing off one another like a stage ensemble that’s headed into its 800th night on Broadway. The tale they tell has legal pyrotechnics, corporate intrigue, and countless layers of betrayal. But its real story is how, out of the jagged shards of their fractured lives, these women tentatively start rebuilding something together.

Fox’s other premiere this week is also an oddball family story, one that gestated at Saturday Night Live, where creator and producer Emily Spivey wrote while stars (their voices, anyway; Bless the Harts is animated) Kristen Wiig and Maya Rudolph delivered the lines.

Jenny Hart (Wiig) is a single mom working in a greasy spoon in a small Southern town; her mother Betty (Rudolph) dreams of amassing a fortune through eBay trickery.  There’s not much here you haven’t seen on another Fox cartoon, King of the Hill, except it’s done with Southern accents. The pilot does feature a couple of interesting guest appearances—one by an anarchist cat working to destroy zoning laws, and another by Colin Powell doing the macarena. Call me if they get their own shows.

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Denver is mulling new legislation that would increase the minimum wage to $15.87 an hour by 2021, with additional raises every subsequent year.

Introduced by Democratic Mayor Michael Hancock and Councilwoman At-large Robin Kniech, the measure would take effect in January of 2020, when businesses would be required to pay employees at least $13.87 an hour. After the additional $2 raise in 2021, that minimum would increase by 15 percent or $1.75 an hour—whichever is greater—every year after.

The current Colorado minimum wage is $11.10 an hour.

Researchers have long argued over the merits of minimum wage laws: A study from the University of Washington found that Seattle’s minimum wage hurt the city’s low-skilled workers, while a paper from the University of California, Berkeley says such reservations are unfounded, even in rural areas. It’s likely that there’s at least some truth to both conclusions: Some people earn more, some people work fewer hours for a higher hourly wage and end up breaking even, and some others might be shut out of the workforce altogether.

Yet one industry that tends to fall on the losing end of such proposals is the restaurant industry, which operates on skeletal profit margins—usually topping 6 percent at max.

Like much of the country, Denver offers a tipped wage, a lower hourly base pay for servers and bartenders that allows them to make up the rest—and more—in tips. But unlike much of the country, the Colorado Constitution stipulates that the tipped wage cannot be less than $3.02 below the state minimum, putting Denver’s current tipped base at $8.08. That’s already higher than the federal full minimum wage, which sits at $7.25 an hour. (It’s worth mentioning that, if tips don’t bring workers to the state’s minimum wage threshold, their employers are legally required to make up the difference.)

“The speed with which this hike would be implemented is extreme,” Sonia Riggs, president and CEO of the Colorado Restaurant Association, tells Reason, noting that restaurants would have a grand total of two months to ready themselves for the first hike. The city council is set to vote on the measure in November. If it passes, she assumes that dining establishments across Denver will first find themselves rushing to raise prices.

“People are not willing [to] pay $25 for a cheeseburger,” says Riggs. “Less eating out is bad for everyone in this business.”

That won’t be the only effect. Riggs explains that, as it stands, servers in the city make somewhere between $20-40 on average, an even greater sum than Denver’s proposed minimum wage hike. They’ll see a considerable bump in hourly wages. But kitchen staff, who typically make a marginal rate higher than the state’s $15.87 proposal, will receive nothing at all. Back-of-house employees will thus watch front-of-house staff land a sizable raise, even though the latter were already bringing home considerably more cash.

“When the cook making $17 an hour sees the server getting a 50 percent raise to do the same job, the cook is going to want $20/hour,” says Riggs. “But remember, the restaurant has less money to work with here to accommodate that. So again, the restaurant has to raise prices and decrease costs, including cutting staff, in order to survive.”

Survival is the name of the game in the restaurant industry, and it’s a hard one to win. That becomes even less achievable with large minimum wage hikes: A recent study conducted by two researchers at Harvard Business School found that a median-rated restaurant on Yelp was 14 percent more likely to shutter with every dollar added to the tipped wage. For Denver, those odds would reach 67 percent come January 2021, if the legislation sails through the city council.

Riggs also remarks that restaurants in the area face a labor shortage in kitchen staff. Yet the measure would just further aggravate that problem, hamstringing the restaurateurs who want to hire more help, but who can no longer afford it.

“In the case of the restaurant industry,” she says “this proposal actually hurts the people it’s trying to help.”

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2019-09-27 21:10:43

Sex ed got a little schizophrenic in the ’70s, tugged in one direction by the sorts of moral strictures that schools had traditionally included in their curricula and in another direction by the anything-goes ethos of the day. That’s how you got classroom filmstrips like the unfortunately titled How To Get Gonorrhea, which sounds at one moment like it might be about to start moralizing (“If you are promiscuous, sooner or later you will encounter a partner who has gonorrhea, and you are going to get it”) but then starts offering teens tips on how to get tested or treated without their parents finding out.

The good folks at Uncommon Ephemera have been digitizing old filmstrips and posting them on YouTube, and this artifact from 1974 is one of their best finds yet. With psychedelic artwork, a jazzy porn-rock soundtrack, and a V.D. monster whose face, visible at the 0:46 mark, bears a striking resemblance to Monty Burns, here is How To Get Gonorrhea:

The company that produced this—Sunburst Communications—is still around today. But it’s now called the Sunburst Technology Corporation, and its chief focus is educational video games. I guess every era tries to shape young minds in its own way.

(For past editions of the Friday A/V Club, go here.)

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Of all the places to argue that only the government should be trusted with guns, Beto O’Rourke picked…Kent State University.

Kent State is, of course, the location of the infamous 1970 shooting that left four students dead and nine others injured. The shots were fired not by private citizens but by members of the Ohio National Guard, who shot at a crowd protesting America’s involvement in the Vietnam War.

Invoking armed agents of the state gunning down unarmed civilians is an interesting way to argue that Americans would be better off if the government forcefully disarmed private citizens. But hey, I guess that’s why we keep being told Beto’s an “unconventional” candidate.

Since the mass shooting at a Walmart in his hometown of El Paso, Texas, former congressman O’Rourke has tried to jump-start his flailing presidential campaign by being the candidate who is most gung-ho about gun control. He made headlines at the most recent Democratic debate by promising, “Hell yes, we’re going to take your AR-15.” More specifically, he is proposing a ban on “the manufacturing, sale, and possession of military-style assault weapons”—that is, semiautomatic rifles with certain cosmetic characteristics.

“Americans who own AR-15s [or] AK-47s will have to sell them to the government,” O’Rourke has explained. “We’re not going to allow them to stay on our streets, to show up in our communities, to be used against us in our synagogues, our churches, our mosques, our Walmarts, our public places.”

As J.D. Tuccille pointed out last month, there’s scant evidence to suggest that such a policy could be implemented effectively, and it’s pretty unclear how O’Rourke would get gun owners to comply with the law.

When New Jersey implemented a similar policy in the early 1990s, the state obtained a mere 18 guns of the estimated 100,000 to 300,000 firearms owned by Garden State residents—and only four were turned over voluntarily. Australia’s much ballyhooed gun buyback program netted between 650,000 and 1 million firearms, about a quarter of the estimated number of guns owned by Australians at time. There are believed to be more than 350 million privately owned guns in the United States.

Taking the rest would require a massive mobilization of federal, state, and local law enforcement.

O’Rourke’s plan to take guns out of private citizens’ hands would not have prevented the Kent State massacre. But it would create lots of new opportunities for agents of the state to point guns at Americans who aren’t a threat to anyone.

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2019-09-27 20:04:00

The prison staff carted the books away in late January, removing more than 200 titles from a small library inside the Danville Correctional Center in Illinois.

The library was part of the Education Justice Project (EJP), a college education program for inmates run by the University of Illinois. The prison removed the books without notice; Rebecca Ginsburg, director of the program, says it took weeks to get an answer about why the library had been pillaged. She was eventually told that prison officials had decided the books hadn’t gone through the proper review process. Emails obtained through public records requests later revealed that they had been concerned about “racially motivated” materials in the library.

According to Ginsburg, the removal followed months of increased scrutiny that included rejecting books from the proposed curriculum for the upcoming semester. Among the rejected or removed titles: W.E.B. Du Bois’s The Souls of Black Folks, the autobiography of Frederick Douglass, and Booker T. Washington’s Up From Slavery.

“At one point they actually threatened to throw away the books that they had confiscated, over 200 books,” Ginsburg says. “I’m a professor, so to me books are this magical thing, and to talk about throwing books away…it was extraordinary.”

The censorship drew national headlines and brought embarrassing attention to the state prison system. The Illinois Department of Corrections has since revised its literature policies, although the books taken from EJP were never returned.

The incident at Danville was just one of several stories about prison censorship to make the national news this year, and only a small example of the unmitigated power of prison censors across the country, according to a new report released this week by PEN America.

The report details how U.S. prisons arbitrarily apply book bans in the name of institutional security. Texas, for example, bans The Color Purple but not Mein Kampf. Michelle Alexander’s The New Jim Crow was banned in prisons in North Carolina, Florida, Michigan, and New Jersey, although those bans were reversed after they received media attention. A New York prison tried to ban a book of maps of the moon, claiming it presented an escape risk.

The PEN America report concludes that prison book censorship policies across the country “are almost uniformly overbroad, arbitrary, under-examined, under-challenged, and maximally restrictive well past the point of reason.”

Other state prison systems have tried to ban donations of used books to inmates, citing flimsy concerns over contraband. And publications that report aggressively on the criminal justice system, such as Reason, are often impounded by prison censors. Prison Legal News, a vital source of legal information for inmates, is completely banned in Florida prisons.

“We see over and over again that it’s disproportionately books by or about people of color, books that are critical of the criminal justice system, and books that advocate minority or controversial political or social views,” says David Fathi, director of the American Civil Liberties Union (ACLU) national prison project. “This is the kind of content-based and viewpoint-based censorship that is most inimical to First Amendment values.”

The result is that the hardest place to read about the U.S. criminal justice system—the subject of bestselling books, a glut of podcasts, and prestige television shows and documentaries—is from inside the U.S. criminal justice system.

For example, earlier this year the Arizona’s Department of Corrections (ADOC) banned Paul Butler’s Chokehold: Policing Black Men, a nonfiction book about race and policing. The ACLU sent a demand letter arguing the ban violated the First Amendment. The ACLU was preparing to litigate when the ADOC relented and reversed the ban in June.

In April, the ACLU sent a letter to the Chatham County Sheriff in Georgia urging him to rescind a policy that banned almost all books except for the sparse few already on the jail’s book cart.

Maryland officials also briefly floated a proposal to severely limit from its prisons. They scrapped the idea after receiving a swift public backlash.

Last year, Pennsylvania and Washington both attempted to ban donations of used books to inmates. All books would have to be purchased through approved vendors, which often offer limited selections at high prices or require inmates to purchase electronic tablets. The prisons cited security concerns over contraband, but news investigations showed there was little actual evidence of smuggling via donated dictionaries.

Nonprofit groups like Books to Prisoners, which sends thousands of volumes a year to inmates who request them, say such policies have been getting more restrictive in recent years.

“Prison book programs have been having to deal with this for years and years and years, and it just seems to be getting worse since the end of 2017,” says Michelle Dillon, a board member of Books to Prisoners.

Dillon says Books to Prisoners spends about $70,000 a year sending packages of books to inmates, roughly $45,000 of which goes toward shipping costs. It doesn’t have the money or resources to keep track of shifting mailroom policies and book ban lists. (Kansas prisons, for example, banned 7,000 different titles until recently.)

“We just have to cross prisons off the list at some point and redirect our limited money towards those prisons where we can be assured that we’ll get in,” Dillon says. “It’s unfortunate of course for the people who are incarcerated in that state, because I know they want books, and we want to send them books. But oftentimes you just have to send a little note card back to say, ‘Hey, we’re sorry, but your facility does not allow our program.'”

For inmates, more than 95 percent of whom will be released at some point, books more than just a temporary mental escape from confinement.

“Those books tell people who are incarcerated not to give up,” Jarrett Adams, a formerly incarcerated civil rights attorney, told PEN America. “I would not be where I am today if it weren’t for having been able to read certain books that addressed systemic racism and mass incarceration.”

While what goes on behind prison walls may seem like a distant concern for people on the outside, Fathi says it is quite the opposite.

“Prisoners are the canary in the coal mine,” Fathi says. “When you look at how the government treats prisoners, you see what unchecked, arbitrary government power looks like. And it’s not pretty.”

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Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

New on the podcast: A special Ninth Circuit edition recorded before a live student audience at UCLA Law. Featuring UCLA Professors Eugene Volokh and Richard Re as well as Jones Day Associate Robert Everett Johnson. Click here for iTunes.

  • Fed up with conditions for laboratory animals at Howard University, attending veterinarian contacts the NIH to let it know about the recent deaths from heat exhaustion of 21 mice. The university responds by shortening her contract by six months. D.C. Circuit: Which may be illegal retaliation against a False Claims Act whistleblower.
  • During a criminal trial of four co-defendants, a juror’s wife is diagnosed with a brain tumor. Three of the defendants agree to proceed with a jury of 11. The government agrees to proceed if all four defendants agree to do so. The fourth defendant—who has tried repeatedly to get out of the case—holds out. The court declares a mistrial. Does double jeopardy bar retrial? First Circuit: Not at all. The mistrial was manifestly necessary. (Plus, the defense now has a sneak peek at the prosecution’s case.)
  • Allegation: Connecticut voting law counts prisoners in the district where their prison is located rather than their home district—even though most do not have the right to vote and those who do can vote only in their home district. Which artificially inflates voting power in the white rural areas where prisons are located and deflates representation in the majority-minority urban areas of the state. Second Circuit: This should be heard before a three-judge panel at the district court.
  • The Mohegan Sun Arena, a publicly owned Wilkes-Barre, Penn. event space, sequesters protestors in a special enclosure near the arena’s entrances. The facility also prohibits protestors from swearing or using megaphones. Animal rights group: Those restrictions violate the First Amendment! Third Circuit: Yes and no. The special enclosure is valid since that’s a reasonable measure to prevent congestion at the arena’s entrances. But singling out protestors for bans on profanity and megaphones? The arena hasn’t come close to justifying those rules.
  • When New Jersey repealed its prohibition on sports betting, the NCAA, NFL, NBA, MLB, and NHL sued, arguing repeal violated federal law. The leagues won in the trial court, but racetrack owners who wanted to offer sports betting eventually won before the U.S. Supreme Court. Can the racetrack owners now collect on the $3.4 million the leagues were forced to put up as bond after they won a temporary restraining order in the trial court? Third Circuit (over a dissent): That’s the risk the leagues ran when they asked for a TRO.
  • Dallas-area photographer responds to the scene of an overdose, begins photographing victim and paramedics. Transit officer orders him to stop and arrests him when he refuses to do so. Whoops! Transit department guidelines—adopted while the officer was on medical leave—explicitly permit this sort of photography. Fifth Circuit: Reasonable officers know they can’t arrest you for things that aren’t illegal. No qualified immunity.
  • This Sixth Circuit opinion (holding that sovereign citizens’ unconventional beliefs are not enough to stop them from representing themselves) contains, in the view of your humble editors, a surprisingly touching tribute to individual autonomy—as well as a narrative menagerie including Batman and 46 quintillion dollars.
  • The University of Michigan has established a “Bias Response Team” that responds to student-reported “bias incidents.” Although it lacks any power to impose punishments, it can make referrals to police or the university. Does that unconstitutionally chill speech? A free speech advocacy group whose members attend the school has associational standing to find out, says two-thirds of a Sixth Circuit panel.
  • Detroit police raid home. Oops! The owner is—unbeknownst to the officers—a licensed medical marijuana provider, who is not pleased when an officer shoots, kills two of his dogs. Owner: The dogs were calm. Officer: The dogs were aggressive. And one was unlicensed and therefore contraband. Sixth Circuit: No qualified immunity. The owner can sue the officer.
  • Sixth Circuit: Getting stinking drunk and then cleaning a gun may be “dumb,” but, without more, it does not justify involuntary commitment. No qualified immunity for cops who committed a woman for doing just that. Dissent: You’d be singing a different tune if the gun owner had actually harmed herself following the text message “Good bye.” The police acted reasonably.
  • The U.S. Supreme Court’s decision in Reed v. Town of Gilbert worked a revolution in the First Amendment treatment of content-based regulation of signs. Seventh Circuit: Which doesn’t help the owners of Leibundguth Storage & Van Service in Downers Grove, Ill., whose sign (picture in opinion) is treated just as badly as anyone else’s.
  • Allegation: Driver attempts to exit mall parking lot to avoid approaching security guard, an off-duty Little Rock, Ark. police officer. As the car drives away from the officer, he opens fire, hitting the driver in the back four times and a passenger in the face. Excessive force? Officer: The car was actually backing up toward me and other guards when I fired. Eighth Circuit: This goes to a jury. No qualified immunity. (Per The Washington Post, the officer was involved in 69 use of force incidents over six years.)
  • Tenth Circuit: There’s chutzpah and then there’s arguing that the guards you employ to provide security to state-legal marijuana businesses can’t avail themselves of federal labor law because they participate in “drug trafficking.”
  • State court in Bryan County, Ga. issues man an $895 speeding ticket. Man: I don’t have that kind of cash on me right now. Judge: OK, pay it within two weeks. The man pays the fine the next day. But months later, a probation officer submits a warrant for the man’s arrest for … not paying the fine. And months after that, he’s arrested. And briefly jailed. Which causes him to get fired from his job. Eleventh Circuit: The probation officer enjoys qualified immunity from the man’s federal claims, but she’s not immune from the man’s state-law tort claims.
  • Colorado police arrest two men for handing out information on jury nullification outside a Denver courthouse. A First Amendment violation? Colorado Supreme Court (over a dissent): No need to decide that. The statute applies only to efforts to influence a specific case, and these guys didn’t care what cases prospective jurors might sit on.
  • And in en banc news, the Fourth Circuit will not reconsider its holding that the feds’ power to regulate interstate commerce permits them to prosecute a man who attacked a coworker out of anti-gay animus. Judge Agee, who dissented from the panel ruling, writes that the issue of when noneconomic activity falls under the scope of the Commerce Clause is one the Supremes should address “without delay.” The Fifth Circuit, however, will reconsider its recent holding that Mississippi’s legislative boundaries (redrawn in 2012) dilute African Americans’ voting strength in the Mississippi Delta in violation of the Voting Rights Act.

Zion, Ill. forces landlords to force tenants to submit to warrantless inspections of their homes. Landlords who refuse may face fines of up to $750 per day or have their right to rent property revoked altogether. Which doesn’t sit right with Dorice and Robert Pierce, who have called their apartment home since 2000. After the Pierces demanded that inspectors produce a warrant before searching their home, officials threatened them with eviction (and their landlord with ruinous fines). Which is unconstitutional, so today the Pierces and their landlord joined with IJ to challenge Zion’s rental inspection ordinance in federal court. Click here to learn more.

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2019-09-27 19:15:26

Can a federal judge sentence you for a crime your jury says you didn’t commit? In a sane world, the answer would be “no.” If a prosecutor charges you with five crimes, and the jury finds you not guilty of four of them, the judge who then doles out the sentence should be able to consider only that one guilty verdict.

Yet federal judges can, and often do, use what’s called “acquitted conduct”—charges for which a person has been found not guilty—when sentencing defendants for the crimes the jury says they did commit. It’s a horrifying bug in the federal criminal justice system that doesn’t get nearly enough attention. Until now. 

Sens. Dick Durbin (D–Ill.) and Chuck Grassley (R–Iowa) introduced a bill this week that would expressly prohibit the use of acquitted conduct at sentencing. “If any American is acquitted of charges by a jury of their peers, then some sentencing judge shouldn’t be able to find them guilty anyway and add to their punishment,” Grassley said in a statement released this week. “That’s not acceptable and it’s not American.”

The power of acquitted conduct is a deadly arrow in the prosecutor’s quiver. The fact that a judge will consider at sentencing every offense the prosecutor charges, even if jurors don’t buy the prosecutor’s pitch, essentially allows prosecutors to game the justice system. They can charge a defendant with an offense they know they can prove beyond a reasonable doubt, and then charge more serious offenses, with tougher penalties, that they can’t prove. Even if jurors act responsibly by convicting only on charges proved beyond a reasonable doubt, and refuse to convict on the reach charges, the prosecutor still wins when the judge takes all the charges into consideration at sentencing.  

“Under our Constitution, defendants can only be convicted of a crime if a jury of their peers finds they are guilty beyond a reasonable doubt,” Durbin said in a statement. “However, federal law inexplicably allows judges to override a jury verdict of ‘not guilty’ by sentencing defendants for acquitted conduct.”

A laundry list of criminal justice reform groups supports Durbin and Grassley’s bill, titled the Prohibiting Punishment of Acquitted Conduct Act. The bill would amend the federal criminal code “to preclude a court of the United States from considering, except for purposes of mitigating a sentence, acquitted conduct at sentencing,” and it would “define ‘acquitted conduct’ to include acts for which a person was criminally charged and adjudicated not guilty after trial in a Federal, State, Tribal, or Juvenile court, or acts underlying a criminal charge or juvenile information dismissed upon a motion for acquittal.”

The bill has support from several libertarian and conservative groups, including Americans for Prosperity, the American Conservative Union, Americans for Tax Reform, FreedomWorks, Prison Fellowship, the R Street Institute, Right on Crime, and Koch Industries. 

It’s not hard to see why this bill has bipartisan support. But to understand why the practice exists at all—and why some people will inevitably eventually oppose this bill—it helps to think of the federal criminal code as a choose-your-own-adventure book in which three out of every four narrative choices end in “go to prison.” Police and prosecutors want to keep it that way.

The use of acquitted conduct at sentencing empowers prosecutors at the very early stages of the justice adventure. Upon gathering enough evidence to make an arrest, the prosecutor can file enough charges that, if the defendant is convicted of all of them, he or she will go to prison for a very long time. So the prosecutor encourages the defendant to plead guilty and receive a lesser sentence. Staring down the barrel of 20 years in prison if they lose at trial, versus 10 or five if they plead guilty, more than 95 percent of federal defendants plead guilty.

But what if the defendant didn’t do everything she was accused of, or if the prosecutor’s evidence against her is weak? Well, she can take her case to trial and have it out before a jury. And instead of 20 years in prison, or 10, or five, maybe she is acquitted of all charges and gets no time in prison, or is convicted of only a fraction of the charges and spends only two or three years in prison.

That’s when acquitted conduct comes into play. Prosecutors can lose before the jury and still win at sentencing. 

“Using acquitted conduct to set sentences heightens the temptation of prosecutorial overreach by blunting the downside to the government,” reads an amicus brief filed by FAMM* and the National Association of Federal Defenders in Asaro v. United States, an acquitted conduct case that the Supreme Court has been asked to hear. The authors go on to write: 

If the defendant succumbs to the government’s aggressive charges and pleads guilty, the government wins; if he goes to trial and is convicted on those charges, the government still wins; and if he goes to trial and persuades a jury that he is innocent of them, the government still wins, so long as it secures conviction on a more easily proved offense and persuades the sentencing judge of his guilt by a preponderance of the evidence. When acquittal of certain counts is just a “speed bump at sentencing”…prosecutors have little to lose by larding an indictment with charges they cannot prove beyond a reasonable doubt. The government has conceded as much, acknowledging that punishing acquitted conduct encourages charges prosecutors would otherwise forgo.

This is a bad practice. Thankfully, it’s one Congress appears willing to address without waiting for the Supreme Court.

  • Full disclosure: I served as FAMM’s communications director from 2014 to 2016. 

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