Thou Shalt Not Dissent

November 13th, 2015

The first commandment of any orthodoxy is “thou shalt not dissent.” Because, to the orthodox, their doctrine is who they are. It is their identity. Any threat to the dogma is existential — any challenge to their beliefs is a threat to themselves. And so the first law is to forbid dissent within; and the second law is to repress dissent from without.

This happens all the time, and everywhere. It’s why the Tudors had such a problem with Catholics, why Muslims have such a problem with apostasy, why we had the Red Scare, and why Academia is such a self-selectedly dangerous place for those who don’t toe the party line.

So you look at the shenanigans going on at college campuses lately. I’m not writing a substantive criticism here –plenty more are writing fine pieces on how hypocritical, misguided, entitled, and meanspirited are those who shout down views with which they are uncomfortable; those who demand warnings before exposed to knowledge; those who want others to protect them from the dangerous ideas in the First Amendment that let people criticize their First-Amendment-protected speech and associations; those who demand punishment of those who do not protect them as fully as they like, or who do not grovel enough when they apologize. None of this is new. Student groups at my own college back in the late 80s would forbid the press and “outsiders” from their otherwise public meetings on campus, would swipe an entire press run of student papers running an editorial contrary to their views, would go after dissenters with vitriolic passion, and so forth and so on. It’s what orthodoxies do.

I’m writing to point out that the end result of “thou shalt not disent” — unless brutally enforced, and often even then — is to breed more and stronger dissent. It’s counterproductive. And it’s going to be counterproductive here.

Because people push back. Ideas that they don’t even care that much about at first suddenly become deeply important and worth fighting for, when threatened with repression. Mildly-observant once-a-year churchgoers become dedicated fervent churchgoers when they move to a country where they have to do it underground. Casual supporters of gun ownership who otherwise had no problem with sensible safety regulation (viz, the NRA before the late 70s) suddenly become rabid opponents of any attempt to regulate ownership in the face of an orthodoxy of banning guns, to the point of creating their own orthodoxy (see the NRA ever since).

Why is climate change denial such a big thing? Why are people so avid in denying that the climate is warming, that it’s very likely caused by greenhouse gases created because of human activity? The science is pretty damn clear on this one. Why do otherwise rational people resist it with such passion? Because climate change became an orthodoxy that shouts down and silences those who disagree. From reading conservative pundits, one gets the impression — clearly their impression — that the climate change orthodoxy refuses internal dissent to such a great extent that even shoddy studies get praised if they support the dogma, while inconsistent studies are silenced rather than acknowledged and dissected, and there’s more than a little sweeping of inconveniences under the rug in service of the cause. The very phrase “climate change deniers” is an accusation, a charge of blasphemy, a label that there’s something seriously wrong with you, that you don’t deserve to be heard. The result is that people who are naturally skeptical about sweeping scientific claims (“remember how it was Global Cooling, before it changed to Global Warming? and are eggs good for us again?”) start to feel like they’re being pushed around. And so they push back. Their skepticism — so readily assuaged with respectable evidence — becomes opposition. And now you can shout yourself until you’re blue in the face, show them reams of reams of data, and they simply don’t trust it. You can’t reason someone out of a position they didn’t reason themselves into.

And so look what these adult “kids” on campus want: Racial tolerance? That’s a good thing! Courtesy, gentility? What’s wrong with that! Freedom to form associations of like-minded individuals with their own space where they’re free to associate without constantly being confronted by other-minded people? By all means!

What are they getting? It started off with mild derision — look at these social justice warriors, aren’t they silly? But then they started fighting their war by silencing, shutting down, excluding, and punishing everyone who wasn’t sufficiently orthodox? That’s only causing pushback. Thoughtful people may only criticize their methods, but many will feel compelled to oppose them on the merits. People whose mild racism might have gone away with simple exposure and accustomization (the whole point of “diversity,” remember?) now may well feel attacked, learn to associate only more negativity, and double down on their racism. That is a bad thing! Those the PC see as uncouth, when treated with pure discourtesy, rudeness, and hostility, may well decide that PC manners ain’t manners at all, and double down on their own attitudes. When the SJW insist on their own freedoms of expression, but insist on stifling the expression of others, not only do they lose all credibility in the Free Speech arena, but they’re fighting for a dangerous precedent where the tables may turn, and they may find their own expression being stifled.

These orthodoxies fail because they’re held by otherwise decent people. Not too many of them would be willing to enforce them with, say, a brutal pogrom. Which is kinda what it takes. They really and truly believe they’re right, and that dissent is goddamn dangerous, and that the ends are noble enough to justify their suppression of dissent. If they’re lucky, all of that just makes them look silly. But when push comes to shove, it makes them the bad guys.

And it’ll backfire. It’s going to make it that much harder to achieve social justice, because now they’ve got to overcome the very “deniers” their orthodoxy created.

Well anyway, I’ve got my popcorn. Let’s watch the show.

A Prosecutor Defends Eyewitness Identification

November 11th, 2015

It’s fairly well-established that eyewitness identification sucks, as a rule. There have been tons of scientific studies going back decades — and more are conducted all the time — on the reliability of eyewitness testimony. The studies generally conclude that we’re really bad at noticing things, remembering them accurately, and identifying faces we aren’t already familiar with. Oh, and we really really suck at it when the face is of someone of another race. Meanwhile, the field of neuroscience is reporting breakthroughs literally every month in our understanding of how the brain creates memories, stores memories, distorts memories, processes sensory perceptions, processes faces, recognizes faces, et cetera et cetera et cetera. On top of all that, there have been studies demonstrating how traditional law enforcement methods can make all of this even worse, and what other methods would work better. And on top of all that is the incontrovertible data that eyewitness testimony has played a significant role in wrongful convictions that have been proven to be wrongful.

If you want to go read the scientific literature, please do. There’s a lot. If you want a quick-and-dirty version, I’ve been covering it in my comic for — holy hell, a year now? For those preferring a more, say, jurisprudential approach, Judge Alex Kozinski wrote an excellent summary of the situation in Criminal Law 2.0, his preface to this summer’s Georgetown Law Journal Annual Review of Criminal Procedure. Click on the link to read his views.

But in American jurisprudence, these are still minority views. The courts are slow to adopt change, and have been incredibly slow to adapt the law of eyewitness identifications to the scientific facts. It’s starting to happen. And I fully expect us to reach critical mass within a generation if not sooner. But the majority of courts aren’t there yet.

And law enforcement isn’t entirely on board, either. You’d think they’d want to be on board, though — after all, who wants to lock up an innocent person and leave the real bad guy free to do it again? But inertia, the investment of ego, and confirmation bias are much more powerful than you may suspect. Especially in law enforcement. You’ve seen the mind-numbingly bad arguments cops and prosecutors have come up with to insist someone’s guilty even after the DNA proves he isn’t — or even to fight tooth and nail against the DNA analysis that would prove it. There’s too much invested in having been right.

And there’s a lot of ego, inertia, and confirmation bias invested in the sense that eyewitness identifications — they way they’ve traditionally been done — are just fine and dandy.

Which brings us to the recent publication of “The Unreliable Case Against the Reliability of Eyewitness Identifications: A Response to Judge Alex Kozinski,” by Connecticut appellate prosecutor Laurie Feldman.

Feldman’s piece is an attempt to say Kozinski — and all the others who have problems with eyewitness identifications and testimony — have it all wrong. Things aren’t as bad as everyone says, and we shouldn’t jump to make unnecessary reforms. Don’t fix what ain’t broke.

Click on the link to read the whole thing yourself. I, for one, don’t find it terribly well reasoned, but your mileage may vary. From what I understand, her points are these:

(1) There’s no scientific proof that jurors put too much store in eyewitness testimony.

(2) There’s no good science saying eyewitnesses aren’t reliable.

(3) Scholarship here is agenda-driven, which distorts the results. Peer review only makes this worse.

(4) Just because someone was exonerated, that doesn’t mean he was innocent. So how does that mean the eyewitness who fingered him was wrong?

(5) So what if 72% of DNA-based exonerations were cases involving false I.D.? How many cases, where DNA proved guilt, involved an eyewitness’s correct I.D.? What if it’s the same number?

(6) We’ve only exonerated a teeny tiny subfraction of a fraction of people convicted on eyewitness testimony. That sounds like they’re reliable, not unreliable.

(7) Courts are allowing experts to testify about all this, and they shouldn’t. This exposes the jury to political agendas, and makes the scientists advocates instead of objective scientists. Courts are moving too fast to adopt reforms like this.

(8) It’s unwise to jump on the latest social-science fad to fix what ain’t broke. There’s not a single study saying that double-blind experiments are better than ones where the examiner knows who the suspect is. And simultaneous lineups simply get better results than sequential ones.

All I can say is:

(1) If her footnotes are to be relied upon, she clearly has a lot of reading to do. I can suggest a bibliography if she wants one. This recent National Academy of Sciences report is a good start. Heck, she’s welcome to take every damn book off my bookshelf right now because I need the space for all my resources for the comic’s upcoming forays into Constitutional Law.

(2) Ditto.

(3) Perhaps she should stop reading scholarly writings and “social science” sources, and focus on the objective scientific studies out there. I encourage her to maintain a healthy skepticism of sociology and meta-analysis and studies with small sample size or weird methods — but the good news is there’s a whole lot of good stuff out there with good clean numbers and healthy p-values.

(4) DNA exonerations pretty clearly show he ain’t the guy. The eyewitness who absolutely positively no doubt about it said that’s they guy? Wrong.

(5) Not the issue. The issue isn’t how many guilty people are properly convicted. The issue is, when an innocent person does get wrongfully convicted, what’s causing that, and how can we prevent it from happening again? When 72% of your wrongful convictions that you know to be wrongful because the DNA says so were based on a false identification? That’s a very strong correlation. Combined with the fact (sorry, it’s true) that juries do put a whole heck of a lot of weight on that false I.D., and it’s safe to say we’ve got causation as well. (Whereas 100% of wrongful convictions may have taken place in a courtroom with a judge, a very high correlation indeed, but there’s zero evidence that the presence of a judge played any effect on the jury’s verdict, so we can disregard that one.)

(6) Intellectually dishonest. You’re saying “you guys haven’t disproven all these other cases yet, so let’s presume those IDs were good.” Ignoring the fact that only a small teeny tiny microscopic percentage of cases where the defendant insists upon his innocence are ever taken up by folks like the Innocence Project. You’re also comparing the number of hits in the sample size to the overall population being studied. The fact is, an obscenely high number of hits in this statistically significant sample probably translates to an obscenely high number of hits overall.

(7) Fine. You’re not allowed to use DNA experts, either… Seriously? Draw up a timeline of courts adopting real meaningful reforms here and show me how it’s moving too fast.

(8) Apparently the latest fad = decades of research, and basic Science 101 recommendations for how to conduct an experiment that have been understood for ages. None of this is rocket science. None of this is remotely eyebrow raising to anyone with a genuine science background. If you really don’t think double-blind studies are proven to be effective, that they eliminate intentional and unintentional suggestion by the examiner, then you really really shouldn’t have skipped that day in 8th-grade Science class. As for simultaneous vs. sequential, you are ALMOST RIGHT!! Because sequential arrays DO result in fewer correct identifications, along with fewer false ones. Sequential arrays only solve the problem of relative-judgment witnesses who compare the faces in the lineup to each other. They’re best used with children, lower-IQ people, and all the people whose brains really work this way only they don’t know it and neither do you. All of whom, it so happens, are the ones making the MAJORITY of false identifications. Losing a few correct IDs (because during sequential procedures we all tend to raise our threshold for certainty, worrying that a better match might be coming up) is a small price to pay for ensuring so many innocents don’t have their lives and liberty and futures taken away by mistake. Isn’t it? And simultaneous lineups are only as effective once you’ve adopted the suggested reforms, including some you didn’t discuss.

This all sounds like another one of those prosecutors thwarting justice in the name of inertia.

My final recommendation to her would to be to allow herself to be receptive to the idea that innocent people do sometimes get convicted, that bad identifications do sometimes cause this, and that there are solutions that can prevent such injustices, can ensure that the cops don’t put the wrong guy in jail, can ensure that the real perp doesn’t remain free to do it again, don’t cost hardly anything, and are easy to institute. And if that’s the case, then why the heck are you so opposed to it? Do you want those preventable injustices to occur?

Because that’s kinda how you came off.

Standing to Sue the NSA?

November 2nd, 2015

A couple of weeks ago, Wikimedia’s lawsuit against the NSA got thrown out. Wikimedia (and the ACLU, NACDL, Amnesty International, and many more) claimed the NSA was violating everyone’s rights with its “upstream” surveillance of internet communications. The court dismissed the case because nobody could prove that they had “standing” to bring the case in the first place. The plaintiffs failed to establish that the NSA had actually intercepted any actual communications. They relied on statistics — there are gazillions of communications that go over the wires being monitored, so there must have been improper interceptions. The court said “must have been” isn’t good enough, there isn’t standing, good day.

This isn’t the first time that’s happened. A few weeks before that, a Pennsylvania divorce lawyer had his case against the NSA shot down for the same reason — he couldn’t prove that he himself had been harmed, because he couldn’t show that any of his communications had actually been intercepted. So no standing, case dismissed.

These cases rely on the 2013 Supreme Court ruling in Clapper v. Amnesty International, which held that merely “possible” injury isn’t enough to assert standing in a case like this. You need to show that the injury is real, and either actually happened or is truly imminent. Even if there’s a reasonably good chance that your communications were intercepted, that’s not good enough. There’s no res ipsa loquitur when it comes to standing here.

Of course, that’s nonsense, because the whole doctrine of res ipsa is basically “yeah, the plaintiff can’t prove you harmed him, but come on! It’s pretty obvious you must have.” It’s rebuttable, but the doctrine at least lets the plaintiff into the courthouse. [Yes I know Fourth Amendment and First Amendment jurisprudence aren’t exactly the same as that of negligence in Torts, but come on.]

It doesn’t matter, though, because this is what the Supreme Court always does in cases like this. None of this is a surprise to anyone.

In Clapper, the appellants wanted the Court to say  §1881a of FISA is unconstitutional, as is the NSA’s surveillance of communications. The Supreme Court did not want to deal with these issues. This “no standing” decision is their way of saying that.

An important fact about the Supreme Court is that it doesn’t have to take every case that comes its way. It gets to pick and choose, for the most part. They exercise this discretion, for the most part, based on purely nonpolitical considerations such as how busy they are. Or because a given case isn’t the right one to make a ruling with, and they’re waiting for a better one to come along. (Sometimes they do appear to cross the line with their discretion, see Bush v. Gore, and when that happens the entire authority of the Court gets called into question. A lesson that has to get re-learned every now and then.)

Prudence is another consideration that the Court takes into account when accepting or rejecting a case. In other words, “we’d better not get involved in this issue.”

If you look back at all the times the Court has skirted an issue by saying a party had no standing, it’s hard to find a definition of standing that reconciles them all. I’ll go so far as to say that they are irreconcilable. There is no consistent theory that explains them all. Except, that is, the consideration of Prudence. When you take into consideration the Court’s desire to not go sticking its nose in a sensitive matter, everything becomes clear.

It’s been the Court’s practice to do this for a long time, now. This very fact was taught in the very first class of my first year of law school, back in 1993, and it was already an old habit long before then. So it cannot have come as a surprise to anyone. I’ll bet you a dollar that even if you did find proof that your personal communications had been intercepted — and after Snowden and all the other post-Clapper revelations, it’s easier to meet some of the Court’s conditions — they’d still find a way to say you lacked standing. They’ve left themselves plenty of wiggle room, there.

That doesn’t mean you don’t keep trying! Just don’t be surprised if they keep refusing to get to the merits. They don’t want any part of it.

Crime and Punishment

October 12th, 2015

Over at, Dara Lind has posted the shocking “One chart that puts mass incarceration in historical context.” Lind painstakingly sifted through Bureau of Justice Statistics reports to create a graph of U.S. prisoners per 100,000 of population, from 1880 to 2013.

Focusing on those sentenced to prison (i.e., for more than 1 year) is an appropriate measure. As Lind points out, the data for jails (less than 1 year) is inconsistent. But more than that, if we are concerned with the long-term incarceration of our people, then prison’s where you find it. These are the people who have been locked away. The people whom we’ve decided deserve to have a chunk of their lives taken away, in retaliation for something they did.

The chart is stunning:



Imprisonment is relatively rare until the Great Depression, when it nearly doubles. The new rate stays fairly consistent through the Roosevelt, Truman, and Eisenhower years. Not sure about JFK, but under Johnson and Nixon it dips slightly. It goes back to Ike levels again under Carter. Then it jumps like mad under Reagan, Bush, and Clinton, spiking more than 600% from 1980 to 2000. It seems to have leveled off a bit under Bush II and Obama, but it’s now staggeringly higher than it ever was before.

Before getting into the reasons for it, for what’s going on here, I rummaged through the data to see whether there’s been a similar spike in crime — or perhaps whether the incarceration has lowered crime by keeping the criminals off the streets. Here’s what I’ve found:


So we’ve got property crime (stealing stuff, mostly) driving the majority of offenses. Violent crimes (murders, rapes, assaults, etc.) aren’t really changing the shape of the curve, though they do amplify it.

Let’s see how this matches with the imprisonment rate (I also used BJS data, but a different raw data set than Dara used, that had different values in some places. Where Dara’s BJS data differed, I relied on Dara’s set for consistency. Any BJS data folks are more than welcome to offer corrections):

Here’s the prison rate by itself:

Prison rate 450

And here it is superimposed on the crime rates for the same years:

crime and prison rates 450

Well, it’s hard to see any correlation between crime and imprisonment here. Crime seems to have gone up and down regardless of what imprisonment was doing. Shooting up during the slight dip and recovery from 1960 through 1979. Plummeting for about 5 years of gently rising imprisonment rates. Rising sharply again almost to the 1979 high over the next 8 years, while the imprisonment rate shot up even faster. Then dropping fairly steadily ever since 1992, while imprisonment continued to shoot up and finally stabilize.

I’m sure some of the incarceration may well have led to some of the drop in crime for a variety of reasons, but the relationship just can’t be as tight as one might hope. (Hoping, of course, that we haven’t been as crazy and unjust a society as this makes us look.)

But heck, I left something out. Drug crimes, right? That’s the ticket! The war on drugs must be what drove this!

Here’s the graph for drug crime during the imprisonment spike (coincidentally the only years for which I could find raw data):

drug crime 450

Well, hell. Incarceration’s not driving that down, for sure. And it’s not rising nearly enough to counter the drop in other crimes. In fact, prisoners incarcerated for drug-related crimes have been going down steadily since they peaked at 22% of the prison population way back in 1990. It is not the war on drugs that’s driving this.

It’s clear that it’s not rising crime that’s causing rising prison populations.

Could it be that prison population is going up because people are being incarcerated for longer periods of time? In other words, those who go away stay away, and the few new people each year just make the numbers go up? Sort of like Antarctica gets almost zero precipitation, but what it gets sticks around, which explains its super-deep snow pack?

Let’s see:


Crap, I don’t have enough data to make a meaningful graph. The last time the BJS ran the numbers, it was 1996. The average felony prison sentence in state courts was 62 months (a hair over 5 years) and in federal court it was 78 months (6 and a half years). The national average was 63 months (because the vast majority of crimes are prosecuted at the local level, very few federally).

If we say that the sentencing numbers haven’t changed significantly since then (a reasonable supposition, by the way), then the antarctic snowpack theory just cannot explain the rising prison population. The vast majority of prisoners don’t get locked away for more than a few years.

So if crime isn’t going up, and sentences aren’t going up, then how the hell do we get so many people in prison?

An interesting take on this was posted over at Slate last year. In an interview titled “Why Are So Many Americans in Prison: A Provocative New Theory,” Fordham law professor John Pfaff says it’s the prosecutors who are to blame. Fewer people are getting arrested, but prosecutors are sending more of those who do get arrested to prison than ever before.

This makes sense to me. I’m not thrilled with his political explanation of the phenomenon — that DAs want to get reelected, so they want to look tough on crime and charge more things as felonies. I don’t think that can possibly be all of the explanation.

It is absolutely true that DA’s offices get their budgets from politicians, and politicians base those budgets not on the effectiveness of the office as measured by a drop in crime, but rather on the more readily-counted number of felony indictments and convictions. So there is absolutely a base (in all senses of the word) drive to get indictments to justify the prosecutor’s offices’ own existence. Plus, to some extent perhaps, the drive of the guy on top to get re-elected.

But those higher-level policy considerations aren’t doing the prosecuting. That’s the young line Assistant DAs taking the cases and making the decision of what to do with them. Guided (often directed) by their managing chiefs, none of whom are elected officials. These are lawyers, not politicians, making the decisions.

At the individual prosecutor level, ADAs are deciding to prosecute cases they wouldn’t have bothered to take years ago. Where prosecutors once exercised their discretion and good judgment, they now are more likely to prosecute a case simply because they can.

Also at the individual prosecutor level, ADAs are deciding to prosecute cases as felonies that they previously would have let go as misdemeanors. This may well be due to the requirements of their higher-ups, wanting to inflate their numbers. But there is also a personal incentive here, as well. With crime falling, there are fewer and fewer chances to try big cases — the stuff that prosecutors (for the most part) want to do. It’s where the fun is, the challenge, the hard work. It’s where it all happens. In many jurisdictions, it’s the path to advancement, as well. If you’re not trying felony cases, there’s a sense that you’re not really doing your job.

So when there aren’t enough felonies to go around, there’s a strong incentive — politically and personally — to make enough.

Where Pfaff sees little hope in reform at the political level to get elected DAs who’ll lower the indictment numbers, the real reform is in reducing headcount among the line assistants. Keep the supply relative to the demand. If there’s not enough crime to go around, instead of manufacturing some way to justify their existence, offices should just get leaner. It’s hard to do, but a lot easier than changing who’s getting elected on a county-by-county basis.

That said, although I think Pfaff’s idea is noteworthy and brilliantly insightful, I haven’t given it enough consideration to tell if he’s right or not. One thing I do not have is data to back it up one way or another. All I have is my own prior experience as a prosecutor for almost 10 years, and my anecdotal discussions with my friends who are now bureau chiefs and such, and with others at leadership levels in prosecutors’ offices around the country (all of whom shall of course remain nameless). Until I have some data, I’m just going to call this one a good theory, and leave it at that.

But what do you think? Give us your ideas in the comments.

Q&A Roundup Part 6

September 18th, 2015

My comic was on hold for a bit this summer during a trial and the run-up to trial beforehand. I periodically reassured my readers that I was still here, and would be back once the “work” work was done. This spawned its own variety of reader comments. I had to reply to this one:

I have this wonderful feeling that as the trials drag on the story of the “sorry for the delay” notes will be a searing tale of one lawyers descent into madness and redemption, maybe with some hot gypsies thrown in.

That’d be pretty funny. Sadly, I don’t have time for madness. Maybe gypsies, ha!

[UPDATE: Trial’s still going, but everything’s on schedule. Can’t complain. I’ll get back to this soon enough.]

[UPDATE: Ditto today. Keep the faith.]

[UPDATE: You know, I thought this would have been over by now. Screw it – I’ll spend some time on the comic tonight. Just a little. Just to keep it fresh in my mind.]

[UPDATE: I didn’t get much sleep last night, but it was so worth it. Good to feel the words and pictures flowing again. They’ll have to wait some more, though. Too much to do for court.]

[UPDATE: I lied. Couldn’t wait. Comic called last night, and I answered. Bad lawyer! No coffee!]

[UPDATE: Christ. Today the judge actually stopped things to ask if I was paying attention. Apparently there’d been a question. Fortunately I had the wit to give an answer, because truth be told I’d been rewriting that stupid page in my legal pad. For the nineteenth time. I think I covered pretty well, but oh god how am I going to make that page make sense when I never said that other stuff ten pages ago when I should have and it’s too late to bring it up now. Stress.]

[UPDATE: Tonight the wife kept pestering me to come to bed. Yeah right. She only means to sleep. I don’t get why I have to be there sleeping at the same time. Doesn’t she see I’m working?]

[UPDATE: So sleepy. I swear I saw Lady Justice and The State gossiping in front of the courthouse today. But of course it’s just the statues. Statues hardly ever gossip, ha!]

[UPDATE: So tonight she was all “come to bed, and I don’t mean just to sleep” but then of course she turned it into a rant and was all “jeezus when was the last time you slept through the night” and “you’re killing me here” like SHE is the one suffering. I didn’t even reply right away because 1) Rude. And 2) I had to get this freaking line art just the right kind of sloppy. And of course as soon as I turn around to answer she’s gone. Well, I guess whatever it was couldn’t have been THAT important, amirite?]

[UPDATE: Hey, sorry the delay is just going on and on. Trial kinda sucks up your whole day, 24-7, except for sleeping. Though I’m giving up just a tiny bit of that sleep to work on the comic so you don’t have to wait for-freaking-ever! ‘Cause I love you guys. You guys are the best.]

[UPDATE: Was looking for cheese tonight. Don’t know why, just craved cheese for some reason. Couldn’t find it in the fridge. Called out to She Who Must Be Obeyed to ask where she’d “hidden” it (ha!) but no answer. Guess she’s out with the girls. Actually haven’t seen too much of her lately. Nice of her to let me work, though.]

[UPDATE: I must say this trial is going really well so far, but you’d think the government would have run out of witnesses by now! How many people even LIVE in that neighborhood? Oh well, back to the grind tomorrow. And I really shouldn’t comment like that on an ongoing case. Forget I said it, okay?]

[UPDATE: It’s probably nothing? But late last night I felt a, you know, *presence* in the room with me. Kind of like someone was looking over my shoulder at my drawings. And judging me. No, seriously, I was kinda creeped out.]

[UPDATE: Had to go to the store after court today. All out of coffee. Too bad they don’t sell it in I.V. bags! Ha ha ha ha ha!!!]

[UPDATE: It happened again. I felt the presence. So I spun around in my chair real fast, and there was nothing there. Except there was. I could have sworn I saw, just for a moment, a little gnarled old lady watching me in the dark from the far corner of the room. I might not have been getting enough sleep lately (ANYTHING for you guys!) so it could have been one of those “microsleep” waking dreams you hear about truckers getting, where they *had* to swerve on that deserted highway in Utah because of the dragon in the middle of the road. Though my money’s on the dragon being real. But not this old lady. She was just a figment, for a fraction of a second, and then she was gone. Just my imagination. But you truckers out there, you watch out for those dragons, okay?]

[UPDATE: It’s been a few days since I checked in, just wanted to let you know the trial is STILL going on. The court reporter even said it’s starting to seem surreal to him. Nobody remembers a case going on this long. The prosecutor doesn’t even acknowledge us, just keeps plugging away, calling witness after witness. I’m tempted to not even cross-examine the next one, just to kinda move things along.]

[UPDATE: Spoke to her last night. I’d been building up the courage for a couple of nights. Just lost it and demanded that she tell me what she wants! The old lady spoke back!!! Her voice was like honey that’s crystallized and cracked with disuse. She wanted to tell me the future, what my jury was going to do, warning me about a strategy I’ve been contemplating. But I shut her right up. Tell me what’s going to happen next in the comic, I demanded! But the evil thing just vanished in disgust. That’s okay. The characters talk to me now. I bet if I’m nice to them, they’ll clue me in on what they’re planning to do. Maybe I’ll draw Pi that pony she wanted as a little girl…]

[UPDATE: Today the judge made a REALLY inappropriate comment about hygiene, looking right at my table. As if *I* have any say over whether the jail let my client shower before coming to court. Ugh. The old lady was back again last night. First she just looked at me, like she was considering something. Her big hoop earrings lay awkwardly against this big scarf she wears around her hair. Then she changed. Kind of filtered into a much younger her. Now she looked maybe sixteen. Same earrings, but now her hair was free and long and wild. She danced barefoot, though there was no music, in ruffled skirts that billowed about her like an ancient sea creature. Then she put a finger to her eye and dissolved into nothing. I had been wondering when she’d finally leave. I have a COMIC to write, you know?]

[UPDATE: So I spat coffee all over the morning paper. Did you see it, too? They said my trial had ended over a month ago, for reasons they didn’t disclose, and it was being – get this – RE-tried in a couple of weeks. These reporters never get anything right. If they’d bothered to, you know, actually come to COURT they’d have seen we’re still slogging away. Idiots.]

[UPDATE: Last night when I was talking to the characters, the narrator guy (what the hell is his name, anyway?) opened up a door I must have drawn, and invited me in. That was really nice of him, but I had to say no. Too busy!]

[UPDATE: You know what? If they invite me in tonight? I’ll say yes. I’ll go.]

[UPDATE: I hope they have coffee!]

Q&A Roundup Part 5

September 18th, 2015

I made a thing for Radley Balko at the Washington Post on Qualified Immunity. Some people had questions about it over on my comic, which was about something completely different. One of the WaPo pages mentioned the elimination of the KKK under President Grant.

Wait I thought that the KKK and Knights of the White Camilla weren’t so much defeated as succeeded in implementing policies after the compromise that brought Rutherford B Hayes into the White House?

There’s no doubt that Reconstruction failed, and racist policies were certainly implemented as a result — but the KKK itself did cease to exist as an organization. Another KKK would eventually be formed in 1915 or thereabouts, but that original one was gone.

The failure of Reconstruction is a fascinating area of our nation’s history that can be difficult to piece together, because almost everything written about it until maybe the 1960s was revisionist as hell. And even a lot of modern sources can be equally revisionist, just on the opposite swing of the pendulum. I think of the fiasco as a long string of failures and miscalculations, worsened by the economic depression of the 1870s, of which Hayes was only the last. (And speaking of revisionism, until the 1950s or 60s Hayes was lauded as the man who reunified the country, one of the greatest presidents!)

That is very interesting. However, what does any of this stuff about reconstruction have to do with law? Or the neuroscience of memory?

What, we haven’t had digressions here before? Just run with it.

As to the Qualified Immunity thing – is that the same doctrine that allows prosecutors to avoid any punishment when they do things like withholding evidence during discovery?

Nope. Different doctrine.

Prosecutors have something else called “absolute immunity.” They can’t be sued for stuff they did in their role as prosecutor, even if it was really really egregious and caused great injustice. They lose their absolute immunity only when they start doing the actual police work, at which point qualified immunity would instead apply. Apart from that, they have absolute immunity.

It can be a real problem: Prosecutors have insane power, and complete discretion as to how to use their power. But there’s no accountability for misuse or abuse of that power. Sure, there’s professional discipline for prosecutorial misconduct, but it’s rarely enforced. And it’s not the same as allowing the victim to sue the malefactor.

[A few states do allow suits for some prosecutorial misconduct. The damages are (I think) always paid from tax money in those cases, though, so even then the prosecutor herself isn’t at risk.]

We’ll cover all this in more detail when we get to Advanced Criminal Procedure. But that subject — what happens once you’ve been charged with a crime — is more about what the lawyers and judges can and cannot do. So I’m not going to get to that until I’ve at least done Constitutional Law and Torts, which are much more relevant (and interesting) to everyone else. So in the meantime, feel free to bring that stuff up here in the comments!


[If you want to read what I actually said about Qualified Immunity, click on the link at the top.]

Q&A Roundup Part 4

September 18th, 2015

The officer gets his overtime. The defendant gets his freedom. But the victim doesn’t get his property back. If someone steals all of the money in my bank account, the police find a paper trail that shows who did it, but the courts suppress the evidence because the evidence was acquired unlawfully, then can I still sue them in civil court to get my money back or does the money become the thief’s property for all intents and purposes? Or is there a third option that I do not know about?

The victim’s reaction is irrelevant to criminal law.

Criminal law is about whether the state can punish an offender. The victim isn’t a party to the case, but is merely a source of evidence. The prosecutor doesn’t represent the victim’s interests in restitution, but the state’s interest in punishment. Restitution may be ordered as part of a sentence, but it doesn’t have to be.

But just as the victim’s rights aren’t part of the criminal case, whether the criminal case pans out or not has little bearing on the victim’s rights. Even if the criminal case gets dropped or dismissed, the victim can still exercise his rights. He seeks justice, not in criminal court where he is not a party, but in civil court.

It is civil court, not criminal court, that is about righting wrongs. If someone harms you, you can sue them in civil court for money damages to “make you whole” and compensate you for the harm. If someone stole a particular thing, you can ask for a court order compelling them to give that thing back.

The outcome — or even existence — of a criminal case doesn’t have much effect on exercising your rights in civil court. Different rules apply, they have different standards of proof, and they really are like apples and oranges, so what happens in one court doesn’t really carry over to the other one. It would be unjust to deny people their right to civil justice just because a prosecutor exercised her discretion not to prosecute someone, or because evidence strong enough for a civil case wasn’t enough to meet the higher burden in a criminal one. That’s how someone like O.J. Simpson can be acquitted and unpunished by the criminal courts, and found responsible and liable for money damages for the same act in civil court.

In the example you’re responding to, the guy apparently stole a coin collection. We don’t know that the collection itself was ever recovered by the police. If it was, it was probably saved to be used in evidence. Regardless of the outcome of the case, police departments typically have a procedure for property owners to reclaim their stuff afterwards. If the thief had already sold the coins, however, there’s nothing for the police to return, so the victim would have to sue the thief for the value of what was stolen.

People do forget sometimes that civil law and criminal law are two entirely different and separate things (heck, I never knew this myself until after I started law school). That can lead to confusion when they expect the criminal law to enforce their rights against the offender. In criminal law it is the offender who has rights, not the victim. The only “justice” a victim typically gets from a criminal case is a sense of retribution — the offender got harmed, too. For the more meaningful justice of being restored or at least compensated, you need to take it to civil court. That’s what it’s for.

Q&A Roundup Part 3

September 18th, 2015

Hey Nathan,

I’m ≡≡≡≡≡≡≡≡, an AI MSc student. Your comic is great! : ) I have some questions.
(1) The Good Wife, a show about lawyers, makes law knowledge seem a bit like a weapon to be used for attack and defence to help one navigate the civilized world. To what extent is this true? That is, what exactly is the utility of law knowledge without a license to practice it? Does being the best unlicensed lawyer in the universe turn you into a superhero or just an interesting dude?
(2) Suppose hypothetically that the AI apocalypse will be upon us in 5-20 years. Will laws about AI rights be passed? Will the development of AI systems in uncontrolled environments become illegal in an effort to prevent it?
(3) Along similar lines, it might, in the not too distant future, be trivial to surveil everything, everywhere, all the time. How does the legal system address this? How do you see the law evolving as these waves of technology hit us?

Thanks for writing, ≡≡≡≡≡≡≡≡! Each of your questions could make for a long article in a law review, but here are some quick off-the-top-of-my-head thoughts:

1) I haven’t seen the show, but there are certainly people out there who try to use knowledge of law (and rules in general) as a tool to get their way. Sometimes it’s to prevent other people from doing something, sometimes it’s to make other people do something, and sometimes it’s to get money from people. Obstruction, compulsion, and extortion. They’re rare, in my experience, but they do exist.
If you think of life in a given society as a game, then the law is simply the rulebook for playing that game. And it can be hard to play the game if you don’t have at least a basic understanding of the rules (which is what I’m trying to give folks with my comic). The better you understand the rules that apply to you, the better you’ll be able to play the game, the less likely another player will be able to cheat you, and the better your understanding of the game itself. Similarly, the better you understand the law that applies to you, the better you’ll be able to make informed decisions, protect yourself from those who would use law as a weapon, and the deeper your understanding of our society and culture. The utility of law knowledge is the ability to navigate life.
The reason why lawyers exist, and why there is such a demand for them, is because we keep adding to the rulebook and rewriting it and making it ever more complex and arcane. Nobody can know all of it, so we hire people who understand the bit that affects us right now, and pay them for advice and to make decisions on our behalf. But that doesn’t mean people shouldn’t bother learning at least the basics of law, and just leave it all up to the lawyers. That would be like downloading a bot to play the game for you. And not even knowing which kind of bot to get.
I don’t think a fundamental knowledge of the law makes one either a superhero or extra interesting. I think it’s a basic prerequisite for functioning in any society.
2) The less we understand something, the more we fear it. The more we fear something, the more we try to prevent it. Often, this means passing laws to prohibit something when we don’t understand what we’re prohibiting. Laws like that are typically both overbroad, punishing those it wasn’t aiming at, and ineffective against the intended target.
Most people have even less understanding of technology than they do of law. Politicians and regulators are no different. I’d expect all kinds of laws trying to regulate and prohibit scary tech, and I’d expect blameless people to be prosecuted and punished simply because they’re easy to catch and easy to convict according to poorly-thought-out laws, and I’d expect people who want to develop the tech to find ways of doing so regardless.
In other words, we’ll do what we always do.
3) The concern with surveillance is mostly with how the government can do it. For individuals and businesses, the main concern is not breaking laws against wiretapping – recording someone’s voice without their knowledge. This is why many security video cameras don’t have a microphone.
When it comes to the government, all these extra cameras everywhere are a potential source of evidence that the government could subpoena – and because it wasn’t the government taking the videos, there’d be no issue about whether the government violated your rights when the video was taken. Free evidence that won’t be suppressed. The expense would be in tracking down useful videos and subpoenaing them before they’ve been deleted.
But what I think you’re getting at is whether there may be an erosion of our “expectation of privacy” – and therefore our protections against government surveillance – as surveillance in general becomes more ubiquitous and technologically advanced. I think that’s extremely likely. After all, if a reasonable person would have to expect that he or his stuff could be detected by any private individual or entity, then how can it be reasonable to prohibit the police from detecting it? Not just security video and things people capture with their cell phones, but also code that tracks behavior online, and other details yet to be imagined.
As surveillance technology advances and its use gets more ubiquitous, we’ll have two options: (a) prohibit people from using or making advanced devices; severely restrict public photography and video recording; and restrict the production and use of software that can analyze it; or (b) let the government see what any private person or organization could see. The first option is impractical, unworkable, and in my opinion morally wrong. So we’re probably going to have to go with the second. Our expectation of privacy is going to erode, and the government will be allowed to see more and more of what we do.
I’d be interested to hear what other people think about these questions. All the best!

Q&A Roundup Part 2

September 18th, 2015

I’m writing a response to an essay on “consent as a felt sense” and looking for a deeper explanation of mens rea and the reason why it ought form the basis for not just a legal system, but for the social norms of a community. I know there is some good discussion in the Elonis v. US case, but who are some good sources to read that really lay out the reason why we should (or should not) examine an actors mindset when judging culpability?

Mens rea isn’t really the basis of our legal system, nor is it really the basis of social norms. Mens rea is the legal term for the mental state that makes an act punishable by the state. If I accidentally tripped on a crack in the sidewalk and fell on you, bruising your arm, yes I caused injury to you, but because I had no culpable mental state – no mens rea – that’s not an injury the law wants to punish me for. Whereas if I intentionally whacked you on the arm and bruised it, the state could send me to jail. Same act, same harm, but only punishable because I was trying to harm you.

That’s a very small subset of the law. Mens rea doesn’t come up much in, say, corporate law or contracts or wills or real estate, etc. There may be some question of what parties intended or meant to do, but that’s not the same analysis as whether (or to what degree) they were being evil.

Mens rea doesn’t underlie social norms, either, but is instead a way of looking at why they were broken. It’s the difference between merely being rude or awkward and criminal stalking or harassment. It’s the difference between an accidental killing and murder one. The social norm would be what is or is not done, whereas mens rea is how purposefully you violated it.

Rather than mens rea forming a basis for “just a legal system,” it is instead a basis of “a just legal system,” ensuring that we only punish those who deserve it, who chose to break the rules. Injustice often arises when we punish without caring about mens rea. (See my chapter on strict liability, “Guilt without Fault,” for example.)

As for “consent as a felt sense,” be careful discussing it in the same breath as the law. That phrase is an attempt to redefine “consent” to mean something else. The law is very clear about what consent means.

“Consent” means voluntarily agreeing (or acquiescing) to something, so that it can now happen. If you ask me if you can borrow my bicycle, and I say yes, then I consented to you borrowing my bicycle. Even if while riding my bike you hit a pedestrian, and oh my god if I’d known you were going to do that I’d never have said yes, it doesn’t change the fact that I let you do it. The future doesn’t change the fact that I gave consent now. By the same token, if you steal my bicycle and later ask me if it was okay, even if I say yes I still did not consent to you taking it in the first place. You still committed theft. The fact that I’m okay with it now doesn’t change the past. That’s ratification or something like that, not consent.

“Consent as a felt sense” is really the opposite. It’s a way of saying consent works backwards in time, rather than forwards. It lets me “take back” my consent to you riding my bike, after I find out you later hit a pedestrian. If it was internally consistent, it would let my later acquiescence convert your crime of theft into a non-criminal borrowing, after the fact. The law doesn’t work like that.

It usually comes up in the context of rape – specifically wanting to call consensual sex nonconsensual rape, if afterwards one of the participants feels like he/she wouldn’t have agreed to it if they knew how they’d feel about it now. In other words, “taking back” one’s consent because they regret what they consented to. The law doesn’t work that way, but those who speak of “consent as a felt sense” tend to say “so what,” and say we shouldn’t be so concerned with whether the rules were obeyed at the time as with how people felt afterwards.

The problem in that world – and it’s a big one – is that mens rea is irrelevant. Who cares whether you were trying to do anything wrong or whether you were trying to do the right thing. The important thing isn’t your culpability then, but my feelings now. In that world, you could be punished even though you did everything right, and did nothing wrong. It embodies all the injustice of strict liability crimes, with all the unpredictability of a world without rule of law, where nobody knows what they might go to jail for or why. Can you imagine what kind of a hell that would be?

This is why lawyers – especially criminal lawyers – are super leery of this kind of sociological definition-changing. Utopians tend to make misery. Especially when they don’t understand the law and why it is the way it is.

Another reader’s response: I’m clearly not as experienced as lawyer as this guy (two thirds of a 1L criminal law class woo!), but I thought I’d share my two cents.

I think the above lawyer’s analysis fails in regarding consent as something that is given once, rather than a continuous process.  It is not precisely analogous to the bike-giving example because that’s a bailment created for a limited duration of time; meanwhile, in order for an act to be truly consensual there must be consent at each individual action that occurs, and at each moment.  To clear up some possible strawmen, I’m pretty sure that the above lawyer thinks that people can verbally revoke consent in the middle of a sex act.  Conversely, I don’t mean that explicit verbal consent must be gotten every time e.g. someone goes from touching one body part to another.

I think the “consent as a felt sense” can be better understood to modify the actus reus of rape, rather than the mens rea.  Rape is then redefined as “any sexual act done without the subjective experience of consent with another person.”  I think this is the proper definition, since it focuses the crime on where the harm actually occurs; e.g. inside the mind of the person being victimized.  Of course, in order to be morally culpable, much less criminally answerable, there must also be a mens rea; was someone intentionally, knowingly, recklessly, or negligently violating someone’s subjective experience of consent?  Or did they have no way of knowing?  Obviously if someone has no clue that consent was no longer experienced, and had no way of knowing it, they’re not culpable.

So far this looks pretty similar to today’s rape law, but I’d like to bring in an example from my own life to illustrate.  When I was 17, I engaged in my first relationship with a 39-year old man.  Things proceeded pretty quickly, and we started having sex.  When we finally got there, I was clearly distressed; I was shaking, not just trembling, and drenched in sweat that went beyond normal sexual aerobics.  My voice caught in my throat.  I think it’s far to characterize that situation as one where the subjective experience of consent was no longer there, but I also did not have the means to verbalize that to my partner.  My partner, to his credit, stopped what he was doing, we had a discussion, and two weeks and a couple drinks later I had the best experience of my life.

But was it simply to my partner’s credit?  I think what the people who define consent as a felt experience would say that it’s not.  It’s the bare minimum of morally acceptable behavior.  Even if I had given verbal consent prior, anyone who would continue having sex with someone who is clearly in distress merely because they met the empty formalism of rape law is morally culpable.

Spreading the idea of consent as a felt experience, or encoding it into law, is about crystallizing that insight.  Torts law is often about placing the burden of preventing harm on those who are in the best position to be able to do so (to be fair, I got this from my heavily law-and-economics torts professor, so I have no idea if this is the mainstream view).  Surely that’s the person who lost felt consent, since they can verbalize it, but the initiator is also in a position to minimize harm by stopping if they think felt consent has been lost.  It makes sense to incentivize people to stop if they have reason to believe consent is no longer present.

Rape law, and current mores around rape, would say that what my boyfriend did was not obligatory.  I think it is, which is why I want to spread the idea of consent as a felt experience.

You raise a couple of really intriguing points.

The first is the concept of consent as a continuous process. There are at least two excellent classroom discussions to get out of that. First would be whether it’s actually a continuing process. If you have happily consented to have sex with your boyfriend, must you really consent to each tickle, touch, or thrust before it can take place, or have you actually consented to the experience as a whole, however it may unfold? I suspect that the common understanding is the latter, rather than the former – in which case, if your understanding is the former, it might behoove you to so inform your partner, lest there be any unfortunate misunderstandings that ruin your experience or his life.

Still on that first point, another excellent discussion could be whether, and at what point, such consent is revocable. Is it a hard-and-fast rule that, no matter when, the moment you withdraw consent any further continuation of the act is rape? Or is there more of a continuum? Take these three situations: (a) You say “let’s go to bed” and you partner eagerly agrees, but before anyone’s jeans are off you change your mind and say not tonight. (b) You’ve been happily having intercourse, well past the penetration stage, and while he’s going hot and heavy you remember something he did that upset you, you immediately lose interest in continuing and tell him to stop, but he doesn’t stop immediately so you push him off. © You had sex and it was great. Now it’s the next day and you feel really bad that you had sex. Maybe he turned out to be a jerk in the morning, or whatever. The point is you no longer want it to have happened. The question would be, do all three of those acts count as revocation of consent, do only (a) and (b) count, or does only (a) count, and why? The trick with these discussions, of course, is to dig down to the underlying principles behind people’s different positions, to ensure that people aren’t talking past each other despite using the same language.

The second intriguing point you raise is when you say you think it is obligatory for sex partners to do what your boyfriend did. You were exceedingly nervous at the prospect of losing your virginity, but never made it known that you didn’t want to go through with it. Your partner picked up on the fact that this wasn’t very enjoyable for you, and had the good grace to wait until you were more comfortable with it. You would make mandatory his ability to distinguish your distress from the normal apprehension and excitement that accompany many first forays into sex. You would make mandatory his ability to correctly interpret your internal feelings when you have not communicated them. You would make mandatory the gentility and wisdom of an experienced, middle-aged man, and impose them on every 17-year-old trying sex himself for the first time, possibly as distressed as you were.

And to be clear, you’re saying that anyone who gets it wrong, anyone who mis-reads the cues, anyone who isn’t as sensitive or mature as this ideal, should have his future taken away, should be branded a felon, should be imprisoned, should be registered as a sex offender and despised for the rest of his life, denied the opportunity for most education, employment, social involvement, and relegated to an underclass of citizens we like to pretend don’t exist. Because that’s what happens when you make this stuff obligatory.

Hey, maybe that’s exactly what you want. Maybe it isn’t. Don’t let me put words in your mouth. But as someone who’s defended both men wrongfully accused of sex crimes and women charged with making false accusations, I’d caution anybody urging such mandates to be very clear on the outcome they desire. Good intentions, and all that.

Q&A Roundup Part 1

September 18th, 2015

I get a lot of questions over at my comic and on Tumblr, and try to answer most of them as best I can. Some get answered privately, but some are out there for all to see. It occurs to me that there may be readers of this blog who may not want to be seen reading a comic, or be caught dead lurking on Tumblr. Fair enough. But my ego’s strong enough that I think there’ve been a few exchanges you might be interested in.

So I’m basically going to just cut-and-paste this and the next few posts from stuff I’ve already written in response to questions elsewhere.


First off, I love your comic and your blog. Reading your analysis has made me feel more informed when I read the results of court cases or existing law.

Second, I have a question for you. From what I understand, many of the initiatives meant to overturn Citizens United ( have as part of their text “human beings, not corporations, are persons entitled to constitutional rights.”

Am I correct in reading this as overthrowing Dartmouth College v. Woodward ( and invalidating contracts held by corporations? Would this mean that contracts of employment would also be invalidated?

I tried looking through your blog to see if you’d written about Citizens United before, but didn’t find anything.

Thanks, I really appreciate it!

As for the Citizens United issue, the phrase “human beings, not corporations, are persons entitled to constitutional rights” flies in the face of a lot of constitutional law. Dartmouth v Woodward was perhaps the beginning of corporate personhood, but there’s much more to it than that.

Corporations are fictional persons created by the state, and in order for that fiction to make sense the courts have recognized that corporations have to have at least some of the protections our Constitution grants to individuals against the government. But not all of them. Importantly, they are not “citizens” for the purposes of the Fourteenth Amendment (the big one when it comes to whom the Bill of Rights protects). They cannot vote. They don’t have the right against self-incrimination under the Fifth Amendment. They don’t have “personal” rights that human beings would have, such as the right to get married, to travel, to run for office, to sit on a jury, etc. The Privileges & Immunities Clause doesn’t apply to corporations, nor do they have the right to Liberty that is protected by Due Process.

The difficulty is that the courts really haven’t given us much guidance on what rights can apply to corporations and which belong strictly to human beings. When they say a corporation has a right, the reasoning usually boils down to “because we said so.”

If you look at all the various constitutional rights, some may seem obviously personal and some may seem obviously applicable to corporations, but there’s a lot of gray area that’s not so obvious. That’s why reasonable people differ. And that’s why “because we said so” case law only breeds frustration. Citizens United and Hobby Lobby are only the most recent instances of frustration and disagreement. Until the courts come up with an underlying principle to guide their jurisprudence, there’s only going to be more.

In a case like Hobby Lobby, you could reduce the confusion and frustration by limiting a corporation’s standing to sue. In Hobby Lobby, for example, the issue was that the corporation’s human owners didn’t want to have to do something. Hobby Lobby kinda sued on their behalf. But you can’t sue on someone else’s behalf. To have standing, you yourself had to be harmed. The individuals should have tried to enforce their own right not to be forced into doing something, rather than the corporation saying it shouldn’t be forced to do something its owners didn’t like. Then you don’t have to worry about whether the corporation is “closely held” or whether it can practice a religion or what have you.

Still, that doesn’t do much for a case like Citizens United. There, the corporation would have been harmed by not being able to support candidates and policies that could affect its bottom line. It has standing, and the issue is whether the government can prevent it from supporting candidates.

Some say the corporation should not be allowed to do that, because it amplifies the support of its shareholders – they can all support a candidate individually one time, and then a second time in the aggregate. If that is the principle, then corporate taxation should go out the window. The shareholders are already being taxed once on their income, and taxing them a second time in the aggregate violates this ideal.

Some say the corporation simply shouldn’t count as a person at all. But that principle would also mean a corporation could not be sued or held criminally liable for its acts – something very few who profess this principle would like to see. Generally, those who want to abolish corporate personhood also want to be able to hold corporations liable for their misconduct and even their mistakes. You can’t have it both ways.

What seems to make the most sense to me is to say yes, corporations are fictional people, and yes, in order to function they need certain rights. And we can pick and choose which rights apply and which don’t. BUT, in so doing, we don’t have to say those rights apply to corporations in the same WAY that they apply to people.

There’s no reason (other than judicial laziness) why rights couldn’t be applied to corporations differently than for humans. If allowing corporations to donate to politicians leads to unwanted distortions of our politics, there is no reason why we couldn’t limit the corporate right in such a way as to minimize those distortions. The First Amendment right to fund political speech doesn’t have to work exactly the same way as it does for humans. The corporation is a creation of the state, after all, and the state can fiddle with it without harming any actual citizens.

A simple guiding principle could be that a corporation’s rights can never outweigh the rights of human beings, and if the protection of a corporation’s rights would give it greater weight than humans then that protection would have to give way. Sort of a “your right to swing your fist ends where my nose begins” analogy, with the added sense that humans outrank fictional entities. You’d still have plenty of wiggle room and gray area in which to draw lines, but principled jurisprudence would do away with much of the unpredictability and frustration our “because we said so” case law has created.

Anyway, that’s my quick two cents off the top of my head. Better stop now before I get in too deep and start spending hours researching policy arguments and case law to support what I’m saying.

Paranoia from the PBA President

September 15th, 2015

Over lunch today, the head of one of the NYPD’s powerful police unions* emailed a shrill “open letter” to the press, blaming the “armchair rhetoric” of columnists and pundits for the worsening relations between the police and the communities they serve.  Here’s the email:

To all arm-chair judges:

If you have never struggled with someone who is resisting arrest or who pulled a gun or knife on you when you approached them for breaking a law, then you are not qualified to judge the actions of police officers putting themselves in harm’s way for the public good.

It is mystifying to all police officers to see pundits and editorial writers whose only expertise is writing fast-breaking, personal opinion, and who have never faced the dangers that police officers routinely do, come to instant conclusions that an officer’s actions were wrong based upon nothing but a silent video. That is irresponsible, unjust and un-American. Worse than that, your uninformed rhetoric is inflammatory and only serves to worsen police/community relations.

In the unfortunate case of former tennis pro, James Blake, — who was clearly but mistakenly identified by a complainant — there certainly can be mitigating circumstances which caused the officer to handle the situation in the manner he did. Do they exist? Frankly, no one will know for sure until there is a full and complete investigation. That is why no one should ever jump to an uninformed conclusion based upon a few seconds of video. Let all of the facts lead where they will, but police officers have earned the benefit of the doubt because of the dangers we routinely face.

The men and women of the NYPD are once again disheartened to read another the knee-jerk reaction from ivory tower pundits who enjoy the safety provided by our police department without understanding the very real risks that we take to provide that safety. Due process is the American way of obtaining justice, not summary professional execution called for by editorial writers.


Patrick J. Lynch

Here’s where that’s coming from:

  1. Last week, retired tennis player James Blake was at the entrance to the (very nice) Grand Hyatt hotel in midtown Manhattan, waiting for a car to take him to an appearance at the U.S. Open. Out of the blue, an armed man in a white t-shirt, jeans, and sneakers attacked him, shoved him against the wall, then twist-slammed his body face-down onto the pavement.
  2. The armed attacker was a police officer, James Frascatore, who mistakenly thought Blake was a suspect in a credit card fraud. Frascatore did not identify himself as a police officer until after Blake was in handcuffs.
  3. Video of the attack surfaced (seen here). Frascatore was widely criticized for excessive and unnecessary force, word spread that he’s had a long record of overdoing it.
  4. To stem the public-relations disaster, Frascatore was placed on desk duty while an investigation could proceed.
  5. The public-relations disaster only got worse, with Blake calling for Frascatore to be fired, and many thought leaders joining in that wish.
  6. Lynch is now responding to all that, saying that it’s too soon to judge Frascatore, we shouldn’t jump to conclusions until we know the whole story, he deserves the benefit of the doubt because police officers have a dangerous job, the people calling for him to be fired enjoy the benefits of policing without the wisdom that comes from understanding what police officers risk, and that Frascatore deserves due process before being tarred as an offender.

A lot of people are going to knee-jerk dismiss Lynch’s email as a load of horseshit at best, and at worst a dangerous defense of a dangerous man that exemplifies the corruption of police unions and the thin blue line’s blind eye to evil within its ranks.

A lot of people are going to knee-jerk cheer Lynch’s email as a necessary breath of fresh air, a much-needed skewering of those who god knows why insist on attacking the freaking good guys, who give aid to the enemy by fanning the flames of anti-cop sentiment, those namby-pamby assholes who put good cops’ lives in danger to further their petty political points.

I’ll try not to be too knee-jerk here, but Lynch is wrong. He’s hypocritical, foolish, and wrong.


Look, nobody doubts that the police have a risky job. It’s nowhere near as risky as they sometimes think, with fewer cops being shot these days — despite there being far, far more cops and criminals on the streets — than there were more than half a century ago. (Sorry, that link was from 2013. They’re even safer now.) But the fact remains that police officers do sometimes, occasionally, rarely, get killed on the job. Even by people suspected of nonviolent crimes like credit card fraud.

You think I’m going to say that’s irrelevant. But it’s not. I’ll get to that in a moment.

But holy cow, the hypocrisy. Once again the refrain that “we can’t judge this officer until all the facts are in.” “Don’t rush to judgment.” “Don’t jump to conclusions based only on the evidence you’ve seen.” “Don’t ruin his reputation and career before he’s had the due process of a full and fair investigation.”

Oh, please.

When police officers start living by those maxims, maybe then they can expect to benefit from them. Rushing to judgment, jumping to conclusions based on limited evidence, is what cops do. It’s what they’re trained to do. It’s their blasted job description. And they immediately do their best to destroy the lives of those they’ve arrested, before any evidence is in, before any due process has even begun, by hauling their victims through perp-walks and holding press conferences specifically designed to condemn people who haven’t even been arraigned yet, much less been convicted.

Whenever a police representative makes any of these claims, you have my permission to vomit on their shoes in disgust.

That’s the hypocrisy, and it’s obvious. What’s the foolishness?

Lynch is foolish to attack the punditry in this way. The opinion writers and journalists of America have been the best friend of the police since forever. Including the lefty anti-establishment types who flocked to journalism after Watergate. Yes, them too. They’re the ones who made the police into heroes. It sure wasn’t the people on the street who actually interacted with cops and batons and TPF goons, and it certainly wasn’t the people safe in their offices and houses and dorm rooms whose only encounter with the police was a speeding ticket. It’s been the storytellers — the journalists, the screenwriters, the comic-book artists — who’ve reliably instilled the ideal of the noble police officer.

The exceptions used to be exceedingly rare, and only in reaction to exceedingly awful conduct.

What would a wise police establishment do? A wise establishment would co-opt these writers eagerly, and make sure that these rare exceptions were known to be exceptions, were disavowed as unpolicemanlike, and that real police officers neither behave that way nor tolerate those who do.

What the unions have consistently done, however, is to double down each time it happens. With every case of police brutality, the police back the wrongdoer. And each time they do that, the police themselves, turn the outcry, bit by bit, against the police themselves. By identifying with the wrongdoers, the police have gradually become the wrongdoer in many eyes. Some say the anti-police demonstrations in Ferguson last year marked a tipping point, and that anti-cop sentiment is becoming systemic. But they said that after Amadou Diallo, after Abner Louima, after Rodney King, a generation ago, and it never really snowballed. But if we are at a tipping point or near one, how much wiser to stop it by co-opting the opinion makers? Not antagonizing them and proving to them that everything they suspected and feared is in fact true.


Video is not the policeman’s friend, necessarily. It’s easy enough to edit out the bits that show the threat a police officer was reacting to, to make his reaction look senseless and out of the blue. There are plenty of videos making the rounds that do just that. It’s unfair when that’s all we see, and yes when we jump to conclusions based on such videos we jump to the wrong conclusions. But the solution to that is not the same old doubling down, locking arms, and spouting the same mindless defense of wrongdoing and hypocrisy. That only breeds more skepticism and cynicism. The correct thing to do is provide the rest of the facts, so the public knows not only what’s what, but also that someone tried to manipulate them. People don’t like that. You can do this without undermining an officer’s legal defense. He doesn’t have to say a word on camera. That’s what you union mouthpieces are for, right?

Video is also not always the policeman’s friend when viewed by an untrained eye. You officers on the job right now, how many videos have you seen of a justified shooting, where it all happened too fast or at the wrong angle for the camera to pick up on the gun? Happens all the time. Joe Public sees a video of a cop shooting an unarmed man for no reason. But if you defend the bad shootings along with the proper ones, how is he to know?


As Radley Balko recently wrote, “Once again: There is no ‘war on cops.’ And those who claim otherwise are playing a dangerous game.


So what about the danger, then?

Police training and experience can be pretty dysfunctional. In fact, it’s amazingly similar to the socialization and experience that trains street thugs to behave the way they do.

You take a kid being raised in the inner city by a young, uneducated, single mom. Surround him with those who would hurt him or take advantage of him. He learns not to trust the people around him to have his best interests at heart. When someone tries to make him do something, the best response may well be to deny that person any authority over him, to fight back. The world is a dangerous place, in which he must assert himself forcefully if he is to survive. The other guy doesn’t count. All that counts is getting home okay, and if he can make a little money all the better. [For more on that, read this (or listen to the authors’ Freakonomics podcast or this unrelated Ted talk), or pick up any recent textbook on delinquency.]

In the Academy, police are trained that they are surrounded by those who would hurt them or take advantage of them. On the street, they deal almost exclusively with the violent, the broken, the unpredictable. They very rarely get asked directions by kids out of a Norman Rockwell painting. They learn to assert their authority immediately and forcefully. Otherwise a perp might fight back, and they might get hurt. The perp doesn’t count. All that counts is getting home okay, and if the officer can make a little overtime along the way, all the better.

Dysfunctional? You bet.

But that explains why Frascatore did what he did.

You or I or James Blake can look at the arrest of someone like, say, James Blake, and see a shocking unnecessary use of force. We wonder aloud “why didn’t he just show his badge, explain that Blake was suspected of a crime, and make the arrest peacefully, and only elevate the force used if — and to the extent that — the other guy first made it necessary?” (What, you don’t say sentences like that aloud?)

The dysfunction of a police officer’s training and experience explains why you or I might think that, but it would never even occur to an officer.

His automatic, learned behavior is to attack the suspect with overwhelming force and subdue him above all else. This may be perfectly rational when dealing with a violent or crazed thug. But when dealing with a perplexed honest citizen, the citizen’s confusion gets misinterpreted as resistance, and the officer’s reaction just gets worse.

This dysfunction is what Lynch is trying to defend when he accuses the punditry of ill-informed armchair quarterbacking. If they only knew the realities, they’d understand why this was no big deal, why this was understandable and indeed proper arrest behavior. (Hypocrisy, again. Somehow the police themselves have been granted a dispensation not to have to understand the behavior of those they are arresting.)

The solution, of course, is to think. To take a second and decide whether this person needs to be jumped with shouts of authority and a gun in his ear, or whether a discreet arm on the shoulder and a word in the ear might suffice. To take a second to figure out whether this well-dressed man at a swanky hotel is resisting your authoritah (do people still quote Cartman?) or whether he is in fact frightened and confused by an apparent armed assault.

It seems to work with violent anti-authoritarian inmates (see the above-linked study). Who knows, it might work with cops, too.

But what won’t work is more of the same knee-jerk hypocrisy and paranoia from the PBA.


*The Patrolmen’s Benevolent Association, which represents uniformed patrol officers. There’s a different union for uniformed sergeants, another one for detectives, and yet another one for lieutenants.

A Modest Proposal

May 20th, 2015

Yesterday, the New York Senate voted to pass “Brittany’s Law,” to create a new public registry of offenders. Think “sex offender” registry, only for anyone convicted of any violent felony. People with a conviction in their past would have to register for ten years or more (under penalty of another felony conviction). Local law enforcement would be notified of who these people are and where they’re living (makes it easier to harass and arrest them and put them back in jail again). If there’s a fear of re-offense (evidenced by such things as being out on parole, or whether the original violent felony involved violence), then the public could be notified with their photo, details of what they did, where they live now, and more.

Why? Because, you know people who were once convicted of a violent crime? Sometimes they commit another one later! Gasp! Think of the children! The public must be informed and protected, so we can protect our children and our neighborhoods and our workplaces from all those people, some of whom might commit another violent crime later perhaps! Who cares if it had just been a domestic dispute, or they’d shouted “fire” in a crowded theater, or they’d defended themselves in a fight by kicking while wearing shoes, or they moved here from another state and brought their gun with them? (All potential violent felonies in NY.) We need to be protected from all violent felons, if the law’s going to protect us from rapists and murderers and terrorists! That’s what this law’s trying to do: protect us.

But some people complain that this is a bad thing.

Some folks say it punishes people all over again, after they’ve already served their time. Some folks say it makes it harder for these people to reintegrate into society, find a place to live, and get a job. Some folks say this only increases the chances that these people will return to crime.

Some people object on the grounds that any law named after a victim is de facto overbroad, unjust, and a nightmare waiting to happen.

Other people, however, point out that some violent criminals do commit subsequent crimes after they’ve done their time. They can pose a threat. We can’t just rely on criminal law to deal with it, because that only punishes people after they’ve committed a crime. We want to prevent those crimes from happening in the first place. Honest to god, think of the children!

Well, if you put it that way, it all makes sense! Let’s punish people — not for what they did do, but for what they might do. We don’t want a law that reacts, we want a law that protects.

When you put it that way, though… The problem is, this new law just doesn’t go far enough.


The central premise of this law, and others like it, is that rehabilitation doesn’t work. It’s a nice idea, but in reality rehabilitation’s just a pipe dream.

That’s kinda true. Criminal penalties — whether they be jail, prison, probation or what have you — simply don’t prevent recidivism. The vast majority of people who get arrested will never ever commit another offense, regardless of whether their case is prosecuted or dismissed. Either it was a one-off mistake in an otherwise blameless life, or the mere arrest and arraignment was enough to scare them straight. The few who do go on to reoffend don’t seem to stop. At least, their punishment seems to have little measurable effect on whether they stop or not. (Ignoring drug treatment and mental health treatment, which aren’t technically punishment anyway.)

No, nobody with a halfway-decent understanding of our criminal justice system thinks that punishment rehabilitates anybody. It just doesn’t happen.

It doesn’t deter anything, either. Very few criminals decide not to offend after sober reflection of what the consequences might be. Even fewer violent criminals. (Those people who are deterred are those for whom the mere fact that punishment happens is enough to scare them away from contemplating crime. The possibility of a conviction alone is deterrence enough. The nature of the punishment is irrelevant. More importantly, these are not the people we’re worried about.)

If jail doesn’t rehabilitate, if it doesn’t deter, then what good is it?

It’s great for removal — getting the criminals off the streets so they can’t commit further crimes. Inmates can’t mug people on the street. They don’t kill us. They don’t rape… the rest of us. We’re safe from them.

More than that, we know that it works! Crime is down nationwide — violent crime, too — not merely because of demographic shifts but because in recent decades we’ve been locking people up for longer and longer chunks of their lives, keeping them off the streets. The prison population is soaring despite the drop in crime not because we’re shoving more people into prison, but because once there they’re staying longer. Sure we have more people locked up per capita than anywhere else on Earth, but aren’t we safer? Yes, TV shows and the news make people think crime is astronomically more likely than it really is, but you and I aren’t stupid people swayed by that nonsense — we’re the cognoscenti. We know that crime is down, and locking people up is why.

We’re safe from them… For as long as they’re locked up, anyway.

Most of the time, incarceration is sadly temporary.

Which means we’re not safe. And even Brittany’s law can’t protect us. Not really.

Which is why I have a modest proposal:



Punish all violent felonies by death.

Think about it: Removal is the only thing that works. The whole point of Brittany’s Law is to make removal more permanent — to keep them out of our communities and workplaces long after the justice system was forced to release them from custody. Removal’s what we want. The only way to really get that removal is to… you know… remove those people. For good. For once and for all. And execution’s really the only way to go.

Life sentence, you say? But why go to all the expense of feeding and housing and protecting and providing care for a dirty stinking nasty criminal for the rest of his life? First they hurt their victim, and now they’re going to suck our taxes dry for the rest of their days? Don’t forget, most violent offenders are young men between 17 and 30, with a long life ahead of them. And what’s the point of a life sentence, anyway? If you’re going to take away a man’s liberty permanently, if you’re going to remove him from the world permanently, what’s the point of keeping him alive? Death is more certain, efficient, and (if actually carried out instead of jammed up with decades of appeals) cost-effective.

What about exile, you ask? How historically-minded you are. There once was a time when you could ship off your criminals to another land, with a realistic expectation that they’d never get back. Sadly, in these modern times, there aren’t too many countries out there willing to let us ship boatloads of violent criminals to their shores. Plus how expensive would that be? And then they could always escape and sneak back through our borders like any illegal immigrant, and you just did all that for nothing. No, it’s just not workable in this day and age.

Execution is the only way to make sure these people never commit another crime again.

It’s the only way to be sure.

This isn’t an original idea, of course. For hundreds of years, our legal predecessors punished minor crimes with a fine, and major ones with death. (Jail was where you waited until the sentence was handed down, to make sure you didn’t flee in the meantime.) It only became a problem in England when they started criminalizing too many things and people started being killed for stuff that didn’t seem so major. We only invented prison sentences more recently, in an enlightened attempt to match the severity of the penalty to the severity of the crime, taking away a portion of your life that could be measured with scientific exactitude. And also to give you a chance to ponder your misdeeds and make yourself a better person, so you could come out a valuable contributing member of society once more. But now we know that rehabilitation is hogwash, and figuring out how many years a crime is “worth” only heightens the impermanence of the removal. It defeats the whole purpose! No, let’s go back to the tried-and-true. And if there do happen to be a few crimes that shouldn’t be punished with death, it shouldn’t take much time at all to identify and amend them.

Think about all the tax dollars we’d free up from the prisons. Think, liberals, of all those for-profit prisons we’d put out of business, along with the corruption they breed. Think, conservatives, of how low our crime rate would plummet, once we start keeping the bad guys off the street for good. Think, libertarians, of the smaller government we’d enjoy with far fewer agencies and bureaucracies and social programs and social workers and defense lawyers and the rest of the whole long tail of woe that trails behind each of these losers counterproductive members of society. Think, jurists and lawmakers, of the respect for the law we would instill when any potential lawbreaker has a gas chamber waiting for him. Think, everybody, of the children!

It’s a modest proposal, I know. But seriously, if we’re going to give up on every purpose of punishment but removal, then let’s be serious about it and remove them.



That’s not what you want?

Well, make up your mind. Because it’s exactly what you’re trying to accomplish. Your representatives say so every time they vote for something like this. Obviously it’s what you, their voters, want. Otherwise they wouldn’t do it.

Tell you what: You figure out why my modest proposal is wrong. Then explain in the comments why your Brittany’s law (or what have you) is somehow, nevertheless, right.

Go ahead. Just don’t forget to think of the children.



[Inspired by reading the back-and-forth after this tweet by Scott Greenfield]

A Fundamental Disconnect

May 1st, 2015

Your smartphone has a lot of private stuff on it. Passwords, photos, messages, files. You want to keep it private. So it’s a good thing that companies are building better encryption into their phones, right?

Not according to law enforcement. They complain a lot about encryption. Encryption is pretty good, these days, which means law enforcement can’t easily get stuff that’s encrypted. It used to be you have to be kinda tech-savvy yourself to encrypt your stuff. But now phones are encrypting your stuff by default. Cops, prosecutors, spies, and regulators want those passwords, photos, messages, files. And now they can’t get them. They’re frustrated. Like a spoiled brat throwing a tantrum, telling her dad to make Willy Wonka give her what she wants, they shout at lawmakers to make the nasty companies give them access. Maybe they don’t go “if you loved me, you would” (though they might), but echoing the rallying cry of governmental overreach everywhere, they scream “think of the children!”

Seriously, that’s their argument. Eric Holder, our recently-departed Attorney General, cried “think of the children!” last autumn at the Global Alliance Against Child Sexual Abuse Online conference. Law enforcement can do its job while “adequately protecting” your privacy (whatever he thinks that means), he said — but “when a child is in danger, law enforcement needs to be able to take every legally available step to quickly find and protect the child and to stop those that abuse children. It is worrisome to see companies thwarting our ability to do so.”


Damn those evil, evil companies for helping child abusers!

It’s a common refrain. Just the other day, a Massachusetts district attorney testified before Congress that “when unaccountable corporate interests place crucial evidence beyond the legitimate reach of our courts, they are in fact placing those who rape, defraud, assault and even kill in a position of profound advantage over victims and society.”

Damn those evil, evil corporations!

What law enforcement needs, they say, is a “backdoor” — they demand and insist that tech companies build flaws into their encryption, so that government can get those secret files and catch bad guys. We can trust law enforcement to only use those encryption flaws for a good cause. And it’s not like any of those bad guys will be able to use those flaws to commit more crimes.


Of course this is pure nonsense. And fortunately there was at least one congressman present on Wednesday who knows it.

California Rep. Ted Liu called B.S., in no uncertain terms. Tech companies aren’t doing this to help criminals, he said, but to protect their customers. “Because the public is demanding it.” And by the way, the public is demanding it because it “does not want an out-of-control surveillance state.” That’s right, the public is demanding protection from the government.

Which is what the Fourth Amendment’s all about, after all. Protecting our privacy from government intrusion.

This may seem obvious to you. That you have basic privacy interests in your stuff. And just because the government wants to see it, that doesn’t mean they should be able to.

But law enforcement doesn’t see it that way. Nope. Cops and prosecutors and spies and regulators honestly believe they are entitled to it. If evidence of a crime exists, they honest to God think there oughta be a way for them to get it.

That’s the fundamental disconnect that’s driving this debate. Because they’re wrong.


Let’s set aside the colossally stupid assumption that only good guys will be able to exploit backdoors to encryption. But only after noting that this alone demonstrates an enormous lack of understanding about how data tech works. That the folks who are supposed to be protecting us from malicious hackers want to give those very crooks a way to steal our private data, our bank accounts, our private photos — this alone should be alarming as hell.

Who’s accusing whom of aiding and abetting the bad guys?

But let’s set that aside. Let’s focus on that disconnect. That fundamental misunderstanding of the role of law enforcement, of the Constitution they’re sworn to uphold, and what law enforcement is “entitled” to.


Here’s the deal: Law enforcement isn’t entitled to a damn thing.

Yes, we’d love for them to be able to get all the evidence they lawfully can. Absolutely. If there’s evidence of a crime, and the government can find it without violating anyone’s rights, then by all means the government should do so. Society wants criminals to be punished for their crimes, and that can’t happen without evidence to prove that they did it.

Society wants that. But it demands that government not violate our rights in the process. There’s nothing in the Constitution granting law enforcement the right to collect evidence. But there’s plenty in there specifically protecting individuals from the government, specifically limiting what the government can do when it tries to gather evidence. Why? Because although catching and punishing the bad guys would be nice, it’s not as important to us as making sure the government doesn’t use its awesome power to do bad things to us.

We’ve balanced it nicely with our Exclusionary Rule. If law enforcement crosses the line, then they’re not allowed to use evidence they got by crossing that line. But they can still use the other stuff they got lawfully. This encourages them to gather all they lawfully can, without any fear of repercussions, and only takes away stuff they shouldn’t have had in the first place. And our courts bend over backward to say evidence was lawfully gathered.

But not everything can be lawfully gathered. It just can’t. Just because it exists, that doesn’t mean the government can see it.

“But private actors can see it!” you hear law enforcement cry. “Where’s the justice in a system that prevents the police from seeing stuff a civilian or a company could see?”

One: You are also civilians. No matter how much you arm yourselves with military gear and dress up like soldiers, police are not the military. You’re us. We’re not “them.”

Two: As Representative Ted Liu pointed out in a strong rebuke to the D.A. at that hearing, “here’s the difference: Apple and Google don’t have coercive power. District attorneys do, the FBI does, the NSA does.”

It’s simple. Private actors aren’t restricted by the Fourth Amendment, because private actors aren’t the government. They can’t throw you in jail. Maybe they can sue you or ding your credit rating, but the government can destroy your life and even take it away. The Constitution tries very hard to limit what the government can do with all that power. And as Rep. Liu concluded, “it’s very simple to draw a privacy balance when it comes to law enforcement and privacy: just follow the damn Constitution.”

So no. You can’t whine and cry that you’re not allowed to see things the rest of us can see. We need to be protected from you. Our founding fathers knew it. The Constitution you’re sworn to uphold exists to protect us from you. From you, not from Google.


“But what about the children!”

What about them?

“What about a kid who’s in danger of being horribly abused by a bad guy?”

And you have his phone, but not… him?

“Didn’t you hear us? A kid could have been horribly abused!”

That would be sickening and awful, and we’d love it if you caught the guy who did it.

“Well, what if the evidence we need to prove the bad guy did it is encrypted on his phone?”

And you’d know this… without having other evidence?

“For the sake of argument, yes! My God, we won’t be able to punish the man who made this child suffer!”

And this is different from every other case where you can’t find the evidence you need… how?

“We know it exists! Probably!”

And this is different from any other case where you can’t find the evidence you need… how?

“But tech companies can design their products so we can find the evidence! Government should compel them to do that!”

Well, how about private safes and security vaults, should those manufacturers be forced to design inherent flaws so cops can open them easily?

“That’s a great idea! Yes!”

Wait, I didn’t-

“Yes! And lawyers and doctors and priests — we should be able to force them to tell us what the suspect told them! And…”

You’re starting to scare me. This is the kind of government overreach we’re afraid of. Don’t you get it?

“But think of the children!”

Inexpert Testimony

April 27th, 2015

The purpose of a trial is not to discover the truth. Sorry. Whether civil or criminal, bench or jury, the purpose of a trial is to decide on an “official version” of the facts. The purpose of the justice system is to make an enforceable, hopefully final, decision about a dispute. The system does this by applying the law to the facts, and determining what the appropriate outcome is. The system already knows what the law is, presumably. But it can’t apply that law — it can’t do anything — until it has a set of facts to work with. We’d like the official facts to be as close to the truth as possible, of course, but one way or another we need to decide what they are.

That’s what the jury is for. That’s all the jury is for, most of the time: to be the “finder of fact.” Obviously, there are competing versions of the facts to choose from, or else there wouldn’t be a trial. The jury has to decide which facts the justice system will get to use. (And as Scott Greenfield pointed out this morning, once that official version of the facts has been determined, the system is extremely loath to revisit them. These are the facts we’ll rely on for damages, for sentencing, for appeals, forever.)

The jury’s job is important. It is sacred. The idea that twelve honest members of the community can assess the evidence and figure out what was proven and what was not proven is integral to our concept of justice. And in a jury trial it’s important that only the jury gets to perform its sacred task. We don’t let anyone else decide the facts for them. That would mean replacing the jury of twelve with a jury of one. We tightly control who gets to testify, what questions they can be asked, and what they’re allowed to say. We limit the evidence only to relevant testimony, and try to exclude categories of evidence that are too unreliable to use — especially evidence that cannot be challenged.

And we certainly don’t let witnesses or lawyers vouch for the truthfulness of their testimony. “You have to believe this because, in my opinion, it’s true” is not something you can say to a juror.

Unless you’re an expert witness, that is. Then you get to not only opine on what evidence means, on facts the jury needs to decide, but also on the reliability of your opinion. Ideally, an expert is an objective witness with no stake in the proceedings, who has knowledge of a subject that is just too complex or arcane to expect of jurors. Whatever they’re testifying about, they’re needed because it’s not common knowledge. So the expert gets to summarize the arcane subject, draw factual conclusions for the jury, and also give his opinion about how reliable he is — how confident he is in his conclusions.

When he gives his expert opinion, the expert witness does the jury’s job for them. The jury needn’t assess his reliability — the judge called him an expert, and the expert himself said the basis for his opinion was reliable. The jury doesn’t need to assess his summary or his conclusions about the evidence — if they could do that, they wouldn’t have needed an expert in the first place. And besides, the expert gave them his expert opinion of how reliable that conclusion is. The expert witness can easily become a jury of one.

So we are really really careful about who we allow to testify as an expert witness, and strictly limit what they can testify about.



Of course there are exceptions. And of course they’re mainly to be found in criminal trials, where the stakes are highest, and the jury’s role is most important.

One exception you’ve probably heard about before. [Heck, I’ve probably griped about it here a couple of times, only just as I can’t be bothered to edit these posts before I post them, I can’t be arsed right now to look up whether I’ve written on it already.] This is the exception for expert police testimony. Instead of establishing valid academic and professional credentials to ensure that this expert knows what the heck he’s talking about, and instead of having him specify the resources and data on which he relies (and thus give the other side a chance to challenge the validity of those sources), we pretty much let the police witness provide his own opinion about whether he’s an expert, and then we call him an expert, and then we let him tell the jury what the evidence means.

Cop: “I was trained by other police officers about how drug deals work. I’ve participated in lots of arrests that involved drugs. In my opinion, I am super-familiar with how drug deals work.”

Judge: “Okay, jury, this guy’s an expert.”

Cop: “In my expert opinion, those apparently innocent bits of evidence really mean the defendant sold that other guy some drugs.”

Jury: “Well, that’s that. When’s lunch?”

It’s self-serving testimony by the government, deciding for the jury the ultimate issue of the case. It’s not from a disinterested witness, but usually from the same officer who made the arrest. He’s telling the jury that, in his opinion, he was right. And the judge is telling the jury he’s giving this opinion as an expert. The witness isn’t giving any details of what he’s basing this expert opinion on, and so its reliability cannot be challenged. All that’s happening is he’s getting to vouch for his own expertise, and the government is getting to vouch for the reliability of its evidence.

But this isn’t what I wanted to complain about today. At least the officer was first screened and offered as an expert. Eyewitnesses, on the other hand…


The eyewitness gets to give expert opinion testimony without even being admitted as an expert.

Eyewitness testimony is notoriously inaccurate. On average, it’s no better than a coin toss. More than 3/4 of the death-row exonerations to date have been from convictions based on eyewitness testimony. Humans just don’t see everything as accurately as we think we do, our memories are malleable as hell, and we’re really bad at pointing out the culprit in a lineup. But boy howdy are we confident! We think our memories really happened, even when they’re demonstrably false. We think we’re right. How can we not? But we’re wrong an awful lot.

Confidence has zero to do with the reliability of an eyewitness. Almost every eyewitness is confident that they’re remembering things accurately. Even when they’re wrong.

And yet, when an eyewitness says they’re confident that they’re right, it has a huge effect on juries. When a witness vouches for her own testimony, studies show that jurors tend to believe her. The effect is powerful — it is almost impossible to overstate it. In fact, even when a witness has contradicted herself on the stand, and has been shown to be clearly unreliable, if she tells the jury that she is very confident that she’s right, the jurors will say they found her credible.

Courts also put a lot of stock in an eyewitness’s opinion of her own accuracy. The more confident the witness feels, the more likely she’ll be allowed to testify. The Supreme Court itself has gone out of its way to say that eyewitness confidence is a factor that should be considered when assessing the reliability of her testimony.

In other words, if an eyewitness says “I’m sure I’m right,” the jury’s not only going to be more likely to believe her, but they’re supposed to believe it more.

How stupid is that?

This is opinion testimony. The eyewitness is giving an opinion on an issue of fact — the reliability of her testimony. This is a decision the jury needs to make. She doesn’t have an unusual background that lets her assess this any better than the ordinary juror. On the contrary, because it’s her own memory and perceptions, she’s the one person least qualified to give a reliable assessment of its accuracy. But she’s the one who gets to tell the jury how accurate she is.

Not only that, but in many states the defense is not allowed to even present their own expert testimony to rebut her opinion. No expert opinion that this eyewitness got it wrong. (Two main reasons: one, eyewitness unreliability is considered such common knowledge –ha! — that expert testimony is unnecessary; and two, general testimony about how people in general get it wrong isn’t evidence that this person got it wrong.) All that can be done is cross-examine to find inconsistencies and reasons to argue later that the witness was wrong. But that’s not very helpful, because again, when an eyewitness testifies that she has high confidence in her accuracy, those inconsistencies and other indicia of unreliability get ignored, and the jury tends to believe her regardless.

It’s not just a confrontation issue, but an evidentiary one as well. Witness confidence just isn’t a reliable indicator of witness accuracy. We’re wrong far too much of the time. In general the rules of evidence exclude categories of evidence that have a substantial risk of being unreliable. Everywhere else, we exclude evidence that cannot be challenged. If we were consistent, then, our rules of evidence would preclude witness assessments of their own accuracy rather than encouraging them.

It is the jury’s job to assess whether this witness got things right, and nobody else’s. Yet we go out of our way to take that decision away from them, and let the witness herself decide whether her testimony is correct. She’s giving an expert opinion on the reliability of her evidence. And not only is she not an expert, she is in fact the one person least qualified to assess the reliability of her memory.

But we let her say it. She gets to give her inexpert testimony, and do the jury’s job for them. And that snapping sound we hear right afterwards? That’s the jury’s brains turning off.

Undoing overcriminalization

March 31st, 2015

So I saw this opinion piece in USA Today by Glenn Harlan Reynolds, titled “You Are Probably Breaking the Law Right Now: When lawmakers don’t even know how many laws exist, how can citizens be expected to follow them?” It joins a growing tide of public awareness about overcriminalization in the U.S. — especially at the federal level — and that’s a good thing. (It also joins a growing number of pieces that use bird feathers as their lead example of serious stupid crimes ever since my little comic on the topic went mildly viral back in 2012 — and that’s also a good thing.)

What struck me was that this was in USA Today, of all places — arguably the nation’s most accessible newspaper, with the broadest audience. It’s not the paper of snooty elites or masters of the universe — it’s Everyman’s paper. That means the word is starting to get out for real. Once the general population starts hearing about overcriminalization, and more importantly realizing that it can affect them personally — it’s only a matter of time before they start calling their congressmen to do something about it.

The time seems more ripe than ever. The past few years have seen a rapidly growing public awareness of police abuses. Something happened to the police while we weren’t paying attention, and now we’re all starting to see a nation filled with highly militarized police forces, police who see the rest of us as their adversaries rather than their masters, police eager to swipe our assets and make collars for dollars… and a realization that this excessive power is being used against “good guys” just as much as those bad guys nobody cares about. Add some basic familiarity with overcriminalization in this country, and you’re going to get a lot of people worried about militarized SWAT teams taking them down for crimes they didn’t even know they’d committed. (In other words, what’s already been happening for years.)

Awareness is necessary before anything can change, of course. So more articles like this (and podcasts and blog posts and hashtags and…) would be a good thing. Spread the word. And then maybe we’ll be able to make some headway. Maybe over a generation or two we might see some moderation of our criminal laws. Or who knows, maybe even take our foot off the accelerator of police powers a smidge? (It’s happened before, after all.) Maybe these could start to be realistic goals to shoot for!

Those were the initial musings I had when I first saw Reynolds’ piece today. But here endeth the serious part of this post, because my thoughts that immediately followed were just, well… silly.

I started to daydream. I imagined such a public outcry against too much police power, too many crimes on the books, and other abuses of the criminal justice system, that critical mass was reached. The tide turned. Progressive politicians who previously clamored to outlaw everything they didn’t like, now fought to shout loudest against the use of criminal law to punish human beings for mere civil and regulatory ends. Reactionary politicians who had once competed to look “tough on crime” by ratcheting up police powers and punishments, now vied with one another to deflate the excessive might of the State and protect individuals from unlimited government.

Far-fetched, I know. But it got worse.

A president was elected on a platform of total reform. Congress was tasked with completely overhauling the federal criminal code — throwing it all out and starting from scratch, eliminating everything that was duplicative, poorly thought out, vague, and stupid. Eliminating every regulatory crime created by the unelected bureaucrats, and requiring that only elected representatives could criminalize anything. Requiring a mens rea element for every offense. Standardizing the terminology and drafting of criminal statutes. Withholding federal funding from states and municipalities that failed to adopt policing reform grounded on the principle that police are civilians, and all the other civilians are on their same team, and most importantly requiring that there be zero financial incentive whatsoever — either to the officer or to the police department — to engage in any detention or seizure. And so forth and so on.

And the people rejoiced. Things got better.

Silly, right? Well, at least a guy can daydream. Now back to work.

[H/T Walter Olson]