Tag Archives: rule of law

Europe’s Show Trials Are Where America’s Anti-Speech Regime Is Going

American politics has taken a bad turn. We see this in an increase in politically motivated criminal charges. At universities, students’ due process protections are being eliminated in favor of a politically modish star chamber. One presidential candidate even promised to appoint a special prosecutor to investigate the other.

Absent a serious reexamination of these practices, injustice will become a fixed custom. To see where we’re headed, we need only look to Europe, where prosecution for one’s politics has already become the norm.

During a 2014 election rally, Geert Wilders, Dutch parliamentarian and head of the Netherlands’ Party for Freedom (PVV), asked the crowd if they wanted fewer or more Moroccans in the country. Supporters chanted “fewer, fewer,” and Wilders replied, “We’ll take care of that.”

The Hague Public Prosecutors subsequently decided Mr. Wilders had committed a hate crime.

Wilders’ trial is not the beginning, and it won’t be the end of this type of legal miscarriage. Peering across the pond, one perceives a decaying continental rule of law, birthing its orphan child: the show trial.

Continue reading at The Federalist.

U.S. Unnecessarily Continues to Trail in Property Rights Protections

In the Property Right Alliance’s newly-updated International Property Rights Index (IPRI), the United States ranked 15th out of the 128 countries studied. Yet many would presume the United States to be much higher on the list. It seems somewhat intuitive that the United States would be ranked above countries such as New Zealand, Japan and Australia, and possibly above the United Kingdom and Hong Kong, but the study shows this is not the case.

While strong in intellectual property protections, the United States has more work to do in terms of protecting physical property rights and fostering legal and political environments that do not allow for unnecessary seizures. The United States might be tied for first with Japan in its protection of intellectual property rights with a score of 8.63 (out of 10), but the empirical evidence shows that the U.S. protects physical property and its legal and political environments to a lesser extent. Reforming eminent domain abuse and civil asset forfeiture could aid the United States in better protecting citizens’ property rights.

Continue reading at The Daily Caller.

Conservativism, Black Lives Matter, and the Rule of Law

At the Republican Convention Donald Trump branded himself as the “law and order” candidate. Since then, his rhetoric has not let up. At each rally since the convention he has repeated the same claim. With the murder of police officers in Dallas and Baton Rouge still on the nation’s mind and Black Lives Matter’s new list of demands in the news, there is a palpable sense of fear that law and order is breaking down in the United States.

Trump says he is the only one who can crack down and solve it.

Even though murder rates have been falling since the 90s, 51 percent of Americans are concerned “a great deal” about crime and violence, a significant increase from a low of 39 percent in 2014. Donald Trump’s new self-proclaimed role as protector of the rule of law is perfectly timed to tap into the concerns of ordinary Americans.

But, by painting himself as the law and order candidate, Trump is also implicitly labeling his political enemies, specifically Black Lives Matter, as agents of chaos. While he may not “tell it like it is,” it’s clear that Trump has signaled to his supporters that they should fear Black Lives Matter as a threat to the rule of law.

Trump isn’t the only Republican pushing this message. At the Republican Convention, Sheriff David Clarke forcefully called the Black Lives Matter movement “anarchy,” and Chris Christie is on record blaming Obama for encouraging the movement’s “lawlessness.”

Their argument make for good politics, but it is absolutely unconvincing.

Black Lives Matter, as a movement, is relatively peaceful and its local leaders have been quick to denounce violence of all kinds. More importantly, re-establishing the rule of law is essential to the broader movement. Black Lives Matter, in a way, actually agrees with the conservative right.

The central complaint of Black Lives Matter is that black Americans simply are not treated equally under the law. While black people are around 13 percent of the population, they make up nearly 40 percent of the population incarcerated for drug use despite a usage rate that is nearly identical to whites.  Blacks are also 17 percent more likely to face the use of force from a police officer after controlling for other variables. If you’re black, it’s hard to think that the law is treating you fairly.

Black Lives Matter isn’t wrong to think that this unequal treatment is really a breakdown in the rule of law.  Arbitrary enforcement of a law more heavily against one group than another is what we expect from countries like Russia, not the United States. We’ve enshrined the belief that this type of lawmaking is impermissible in the 14th Amendment and the Declaration of Independence, but to black Americans, it looks like we’re not living up to these standards.

Black Lives Matter’s complaint isn’t just with how law is being applied to black people; it’s also about the perception that this same law isn’t being applied to police officers. Since the rise of social media, the Internet and television have been plastered with images of police violence, reinforcing the belief that cops are not being held responsible for their actions. Whether the actions of the police officers who ended the lives of Freddie Gray, Alton Sterling, or Tamir Rice were criminal or not, these killings catalyzed the notion that the police are above the law.

This complaint is not unsubstantiated. Since 2005, only thirteen officers have been convicted of murder or manslaughter. In 2014 and 2015, there were no convictions. This small number of convictions is taking place in an environment where, between 2005 and 2016, police have killed more than 1,000 people, on average, per year. It’s nearly impossible to charge a police officer, let alone convict one for violence against the civilians they are charged with protecting.

The immunity of the police, or any group of individuals, is one of the deepest signs of a collapse in the rule of law. When certain people can get away with actions that others cannot, trust in legal institutions almost always collapses. This is one of the many reasons why black Americans show up for jury duty in such low numbers. Minority communities are also less likely to assist in police investigations and officers inevitably end up feeling isolated from the community and less safe.

Real conservatives realize that upholding the rule of law is absolutely essential to building a safe and free country. Luckily, some are realizing that the ideals of Black Lives Matter aren’t all that different from their own. A growing number of Congressional conservatives, like Senator Mike Lee (R-UT), are joining the increasingly bipartisan fight for criminal justice reform.

We could make much needed progress on the issue of race in America if conservatives came to realize that Black Lives Matter doesn’t need to be an enemy in the fight to preserve law and order. If conservatives put themselves in the movement’s shoes, they might realize that they both want exactly the same outcomes.

Patrick Holland is a Young Voices Advocate and senior at Swarthmore College.

FBI Announcement is a Slap in the Face to the Rule of Law

We can’t get away with what Hillary can. Tuesday, Director James Comey announced that the Federal Bureau of Investigation would not recommend a suit against Presidential hopeful Hillary Clinton for having an email server used for both private emails and State Department communications. Despite the illegality of her actions, Clinton was only mildly embarrassed by her behavior, but her campaign remains strong and will not face consequences for her transgressions.

Hillary Clinton’s use of a private server was reported by the New York Times in early 2015. Not only was Mrs. Clinton operating a private server, but many say that people within State and the White House knew about it.

House Republicans are thoroughly displeased with the FBI’s decision, so much so that Director Comey was called to testify to Congress on Thursday about the investigation.

There are many problems with Hillary’s behavior, aside from lack of transparency and threats to national security. The issue lies in why Hillary Clinton is treated as above the law. Director Comey said in his statement, “[t]o be clear, this is not to suggest that in similar circumstances, a person who engaged in this activity would face no consequences. To the contrary, those individuals are often subject to security or administrative sanctions. But that is not what we are deciding now.” Comey and the FBI have concluded that Hillary Clinton had broken a number of laws and protocol, but will not be charged for her crimes.

Other people throughout the government and military send and receive sensitive information on government servers on a daily basis. Other Secretaries of State and government officials have never been alleged to have over 100 emails containing classified information on a private server in their home. Military personnel who also handle classified and secret information spoke to Independent Journal on how they would be revoked of their security clearance, blacklisted, or fired if they did the same thing as Hillary Clinton.

The only explanation for Hillary getting off with a slap on the wrist is that there truly is a class of political elite, and then the rest of America. This is a sad example of the double-standard that exists within American government today between the government and the people. The political elite are being explicitly exempt from the consequences that any other citizen would face for the same crime.

Gone are the days of politicians and officials being subject to the same rule of law as the rest of the country.

Effecting Change Outside the Law: 4 Things More Important Than the Written Code

What change do you want to see in the world? Maybe you want marijuana to be legal. Or you want to curtail police brutality.  Or perhaps you want to reduce the racial disparity in prisons.

One way to effect these changes is to get the law amended on paper. To do that, you’ll need a bill, a committee, a vote, and a signature — not to mention time and toil. In 2012, candidates and interest groups spent nearly $4 billion influencing congressional elections. And that’s only at the federal level.

What a waste of time and money.

The focus on legislation belies how justice — particularly criminal justice — actually works. Codified law is one small cog in a giant machine. Discretionary application of statutes, regulations, and judicial opinions determines so much more than written words. Even within the legal system, individual choice and action rule the day.

You see, the written law barely matters. It’s just words on a page. If you want to change something in society, focus on influencing the cogs that matter. Here are four of them:

1. Police

A law means nothing if it’s not enforced. Police departments have limited resources. They must prioritize. In practice, they enforce some laws with an iron fist, and they completely ignore others. Hopefully, they pay more attention to dead bodies than to doobies. But often their incentives are just the opposite.

Police officers need “reasonable suspicion” to stop you and “probable cause” to arrest you, both of which are very low standards. Yet, even if there is probable cause to make an arrest, an officer does not have to act on it.

Discretion allows traffic cops, for example, to issue a warning instead of a citation. And nobody (except maybe dairy farmers) wants cops arresting restaurateurs for not serving margarine just because thelegislature says margarine is mandatory. Theoretically, officers are able to examine a situation and forego using the arrest power unless absolutely necessary.

If exercised diligently, discretion enables police to improve relationships with communities. As University of Wisconsin Law School professor emeritus Herman Goldstein observed in 1963,

Police officials too often fail to recognize that there are many in the communities which they serve who have an inherent distaste for authority — and especially police authority.… It behooves law enforcement officials to refrain from unnecessarily creating a situation which annoys such individuals.

The limited exceptions to discretion demonstrate its importance. For example, some states mandate an arrest for domestic violence calls. The complicated nature of such situations often leads to dual arrests, which leaves children without their parents. Mandatory arrests disempower victims by revoking choice. In general, they promote an overreliance on criminal problem-solving strategies by precluding other means of conflict resolution.

By the way, police officers don’t actually need to know the law. The Supreme Court’s 2014 ruling in Heien v. North Carolina confirmed that when stopping or arresting someone, officers are allowed to make “reasonable” mistakes about the law. For better or worse, the law on the streets amounts to what an officer reasonably believes it is, not what it actually is on paper.

After making an arrest, police have further discretion. They can release you. They can refer your case to a district attorney. Sometimes they can refer your case to a city attorney to prosecute it as a civil ordinance violation. That means no criminal record and no threat of jail time — just a fine.

2. District attorneys

District attorneys don’t do anything until the police send the accused their way. Without a referral, a DA probably won’t even know anything happened. Even when the police do refer a case, the DA often tosses it out.

DAs have full discretion over which “perps” to prosecute and which to completely ignore. They also have discretionary power over what charge to bring against the accused. A DA can legally charge any version of an offense for which probable cause exists — from an aggravated felony to a minor misdemeanor.

The charging decision depends on multiple factors. First, resource restraints require DAs to make conscious decisions about what cases are economically worth pursuing. Second, political pressure forces elected DAs to be “tough” on certain crimes — which means being lenient on others. Third, a particular DA may have a moral or ethical reason for forgoing charges.

Read the rest at The Freeman…