Tag Archives: Due Process

The Due Process Right To Plea Bargain

16 Thursday Aug 2018

Posted by in Criminal Justice, Over-Criminalization

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Our criminal justice system is not the exemplar of due process we’d like to think. Instead, the deck is often stacked against defendants because prosecutorial incentives, mandatory minimum sentences and plea bargaining interact in perverse ways. This is exacerbated by our tendency to demand laws against every behavior that offends us, some that are redundant, some with lower burdens of proof, and some that are just silly. Civil justice is subject to excesses as well, as claims of victimhood are bounded only by the fertile imaginations of plaintiffs’ attorneys, but that’s a subject for another day.

Prosecutors tend to be ambitious, which is not necessarily a bad thing. But the U.S. is unique in electing prosecutors, and a “tough-on-crime” message is often successful at the polls. This magnifies the incentive for aggressive prosecution to achieve a high rate of conviction and lengthy sentences. Of course, defendants are often at a disadvantage in terms of the quality of their legal representation, but beyond that are a variety of prosecutorial tactics that can be used in pursuit of these goals.

A nexus between several factors has made the criminal justice system much harsher for defendants. Multiple charges on related and even unrelated crimes, often with harsh mandatory minimum sentences, can help secure a guilty plea on the original charge. The prosecution gets a conviction and avoids the cost of a trial, but the due process rights of the defendant are compromised in the process. Former Federal District Court Judge Kevin Sharp resigned from the bench because he could no longer tolerate the abuses done by mandatory minimum sentences. He offers a couple of examples:

“Antonio was driving down the street and, without being too graphic, he and his girlfriend were engaged in an activity that caused him to cross slightly over the double-yellow line. The police saw it and pulled him over. The police suspected his girlfriend was a prostitute, so they split Antonio and his girlfriend up and asked them questions. The police realized based on her answers that she in fact was Antonio’s girlfriend. Then, the police said, ‘OK, we are going to let you go. Oh, by the way, do you mind if we search your car?’ Antonio, forgetting that he had an unloaded pistol under the front seat of his car, responded, ‘No, go ahead.’ Antonio was charged with being a felon in possession of a firearm. Because he was convicted as an adult in his prior crimes, his mandatory minimum sentence was 15 years. …

Members of Congress, in their desire to be elected and reelected, often show how tough on crime they can be, and they say, ‘Look, mandatory minimums are necessary so that we can take discretion away from the judges.’ But these legislators have not taken away discretion, they have just moved it to the prosecutor, who has a dog in the hunt.“

The so-called “trial penalty” is the subject of a study on the disparate sentences offered in plea deals versus those likely to be imposed if the defendant goes to trial. This disparity is truly a threat to the Sixth Amendment right to a fair trial. Over 97% of federal criminal cases are now settled by plea, and again, rejecting a plea deal can carry considerable risk for a defendant. In fact, in discussing this study, Walter Pavlo puts things starkly: innocent people are pleading guilty. He quotes this finding:

“There is ample evidence that federal criminal defendants are being coerced to plead guilty because the penalty for exercising their constitutional rights is simply too high to risk.”

“How to make an innocent client plead guilty” is the topic of Jeffrey Stein’s confessional on the topic:

“... according to the National Registry of Exonerations, 15 percent of all exonerees — people convicted of crimes later proved to be innocent — originally pleaded guilty. That share rises to 49 percent for people exonerated of manslaughter and 66 percent for those exonerated of drug crimes.

You tell your client that they would probably win at trial, but if they lose, they will go to prison. The plea promises some meaningful benefit: getting out of jail sooner, avoiding deportation, not losing a job, seeing a daughter before her next birthday. But your client would have to accept responsibility for a crime they may not have committed.

The final stage happens in court. Your client has signed the paperwork admitting to something you believe in your gut they did not do. Maybe they acted in self-­defense. Maybe they were standing near the actual perpetrator and were presumed guilty by association because of the color of their skin. Maybe they were the victim of an honest misidentification.”

An episode in South Carolina indicating possible manipulation by prosecutors involved a grand jury, which is convened to hear preliminary evidence in a case and decide whether the defendant should be indicted on charges brought by the prosecution. This particular grand jury approved 904 indictments in a single day, averaging 39 seconds per indictment! In response, 27 defense attorneys filed a motion to have the indictments thrown out. It’s impossible to imagine that all of those cases received serious deliberation. Instead, the grand jury appears to have served as a rubber-stamp for the prosecution.

Over-criminalization is another major factor contributing to the erosion of due process rights. As Glenn Reynolds says, the next step should be fewer laws. This earlier paper by Reynolds made the point more forcefully: “Ham Sandwich Nation: Due Process When Everything Is a Crime” (free download):

“Overcriminalization has thus left us in a peculiar place: Though people suspected of a crime have extensive due process rights in dealing with the police, and people more charged with a crime have even more extensive due process rights in court, the actual decision whether or not to charge a person with a crime is almost completely unconstrained. Yet, because of overcharging and plea bargains, that decision is probably the single most important event in the chain of criminal procedure.

Reynolds offers a number of remedies, including replacement of absolute immunity for prosecutors with “qualified good-faith immunity”, pro-rata allocation of defense costs based on the ratio of convictions to the number of charges, and requiring that earlier plea offers be revealed to the jury at trial.

Today, the many laws we have against victimless behavior overburden the justice system. Have you ever: purchased a large soda? Used recreational drugs? Purchased raw milk? Engaged in oral sex? Played fantasy sports? Used a plastic straw? Vaped? Paid for a sex toy? Sold lemonade from a stand without a permit? Purchased a Happy Meal? Given food to a homeless person? These are just a few activities that are, or soon-to-be, illegal in certain jurisdictions, and I mentioned only one case having to do with licensure. I have not even mentioned crimes promulgated by federal regulators.

In “Enforcing the Law Is Inherently Violent“, Conor Friedersdorf quotes Yale Law Professor Stephen L. Carter:

“Every law is violent. We try not to think about this, but we should.  On the first day of law school, I tell my Contracts students never to argue for invoking the power of law except in a cause for which they are willing to kill. They are suitably astonished, and often annoyed. But I point out that even a breach of contract requires a judicial remedy; and if the breacher will not pay damages, the sheriff will sequester his house and goods; and if he resists the forced sale of his property, the sheriff might have to shoot him.

This is by no means an argument against having laws. … It is an argument for a degree of humility as we choose which of the many things we may not like to make illegal. Behind every exercise of law stands the sheriff – or the SWAT team – or if necessary the National Guard. Is this an exaggeration? Ask the family of Eric Garner, who died as a result of a decision to crack down on the sale of untaxed cigarettes. That’s the crime for which he was being arrested. Yes, yes, the police were the proximate cause of his death, but the crackdown was a political decree.”

Yes, we need “a degree of humility as we choose which of the many things we may not like to make illegal.” We have over-crowded prisons and we have failed to protect the due process rights of the accused. A conviction should require proof of guilt beyond a reasonable doubt. In statistical terms, that would mean a very low p-value. Instead, our system has devolved into one in which defendants presumed innocent are forced to reckon with myriad risks, exaggerated by “kitchen sink” prosecutors and mandatory minimum sentences. The tradeoffs facing defendants are so unfavorable that few cases ever go to trial. The plea bargaining system often reduces the burden of proof to a matter of gamesmanship. For prosecutors, it’s like shooting fish in a barrel.

Administrative Supremacy, Lost Checks and Balances

16 Friday Jun 2017

Posted by in Regulation

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The two-for-one regulatory order issued by the Trump White House in January raises some practical difficulties in implementation. It requires that federal agencies eliminate two regulatory rules for every new rule promulgated, both in terms of the number of rules and any incremental regulatory costs imposed. Two out for every one in. Questions surrounding the meaning of “a regulation”, how to define incremental costs, and whether a particular rule is actually mandated by legislation are not trivial. Nevertheless, the spirit of this order is admirable and it serves as the leading edge of the Administration’s attempt to roll back the scope and impact of excessive government authority.

The cost of regulation is vast. Economists at the Mercatus Center at George Mason University have estimated the total cumulative cost of regulation in the U.S., finding that regulation has reduced economic growth by 0.8 percent per year since 1980. Without the additional regulatory growth since 1980, the U.S. economy would have been about 25 percent larger than it was in 2012. That’s a $4 trillion shortfall, or roughly $13,000 per person.

While regulation and administrative control over the private economy takes an increasing toll on economic growth and human welfare, the problem goes beyond economic considerations: administrative agencies have “progressively” usurped not just legislative but also judicial power. The concentration of executive, legislative and judicial power constitutes a “fourth branch of government“, a development inimical to the principles enshrined in our Constitution and a prescription for slow-boil tyranny. It facilitates rent seeking and corporatism just as surely as it creates a ruling class of individuals who act on their personal and arbitrary inclinations. We are ruled by men backed by police power, not impartial laws.

Glenn Reynolds writes that unelected rule makers and central planners are able to manipulate decisions across a broad swath of the economy and society. He quotes a new book by Philip Hamburger of Columbia Law School called “The Administrative Threat“:

“Government agencies regulate Americans in the full range of their lives, including their political participation, their economic endeavors, and their personal conduct. Administrative power has thus become pervasively intrusive. But is this power constitutional?

A similar sort of power was once used by English kings, and this book shows that the similarity is not a coincidence. In fact, administrative power revives absolutism. On this foundation, the book explains how administrative power denies Americans their basic constitutional freedoms, such as jury rights and due process. No other feature of American government violates as many constitutional provisions or is more profoundly threatening. As a result, administrative power is the key civil liberties issue of our era.“

Two previous posts on Sacred Cow Chips have dealt with Hamburger’s work. The first, “Hamburger Nation: An Administrative Nightmare“(1) provides the following explanation of his position:

“Hamburger examines the assertion that rule-making must be delegated by Congress to administrative agencies because legislation cannot reasonably be expected to address the many details and complexities encountered in the implementation of new laws. Yet this is a delegation of legislative power. Once delegated, this power has a way of metastasizing at the whim of agency apparatchiks, if not at the direction of the chief executive. If you should want to protest an administrative ruling, your first stop will not be a normal court of law, but an administrative review board or a court run by the agency itself! You’ll be well advised to hire an administrative attorney to represent you. Eventually, and at greater expense, an adverse decision can be appealed to the judicial branch proper.“

The exercise of rule-making authority, and even extra-legal legislative action by the administrative state, has economic costs that are bad enough. Hamburger also emphasizes the breakdown of the separation of executive and judicial powers inherent in the enforcement and adjudication of disputes under administrative law. This was the subject of the second Sacred Cow Chips post referenced above: “Courts and Their Administrative Masters“. It reviewed an unfortunate standard established by court precedent involving judicial (“Chevron”) deference to administrative agency fact-finding and even interpretation of law. While the decisions of administrative courts, which are run by the agencies themselves, can be appealed to the judicial branch, such appeals often amount to exercises in futility.

“…courts apply a test of judgement as to whether the administrative agency’s interpretation of the law is “reasonable”, even if other “reasonable” interpretations are possible. This gets particularly thorny when the original legislation is ambiguous with respect to a certain point.

…the courts should not abdicate their role in reviewing an agency’s developmental evidence for any action, and the reasonability of an agency’s applications of evidence relative to alternative courses of action. Nor should the courts abdicate their role in ruling on the law itself.“

This paper on Judicial Deference to Agencies by Evan D. Bernick of Georgetown Law makes the case that judicial deference is a violation of the constitutional separation of powers, concluding that:

“… in cases involving administrative deprivations of core private rights to ‘life, liberty, or property,’ fact deference violates Article III’s vesting of ‘[t]he judicial power’ in the federal courts; constitutes an abdication of the duty of independent judgment that Article III imposes upon federal judges; and violates the Fifth Amendment by denying litigants ‘due process of law,’ which requires (1) judicial proceedings in an Article III court prior to any individualized deprivation of ‘life, liberty, or property’; and (2) fact-finding by independent, impartial fact-finders.“

Inez and Jarrett Stepman in Townhall note that there are almost three million well-paid federal employees with job security that would make most private sector workers envious.

“Though the abolishment of the spoils system [which allowed civil service hiring and firing based on political party] was meant to mitigate corruption and incompetence, it has resulted in a toxic combination of enhanced agency power and an entrenched civil servant class with its own institutional—and frequently political—interests, virtually unaccountable to the president or any other elected official.“

The Stepmans discuss legislation that might stem the usurpation of lawmaking power by the administrative state. They are convinced that the administrative state must be reigned-in. Ironically, expanded executive authority means that the process of reversal is not that difficult in many cases. By way of example, here’s a piece on the ease of undoing certain Obama era regulations. Executive orders, or “the pen and the phone” in Obama’s charming parlance, lack legitimate legislative authority and can be reversed by new executive orders. I firmly believe that reversing the earlier orders is the right thing to do at the moment, but the unchecked authority that makes it possible (and the supremacy of the administrative state) is a source of economic instability, and it must end. Eric Boehm makes this point eloquently in Reason at the last link above:

“New policies that affect wide swaths of the economy and reshape entire business models should go through Congress, or at the very least should be subject to the public rulemaking process. Guidance documents and other ‘dark matter’ regulations that by-pass those processes can be un-made as quickly as they were made, leaving businesses to deal with an ever-changing and unpredictable regulatory state that does not really help anyone, no matter which side you’re on in any individual policy fight.“

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(1) The principle title “Hamburger Nation” was intended as a play on Glenn Reynolds’ paper “Ham Sandwich Nation: Due Process When Everything Is a Crime“, in which he discussed the judicial implications of over-criminalization and regulatory overreach.

 

Anti-Gun Babes Up In Arms

17 Friday Jun 2016

Posted by in Gun Control, Gun Rights

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Passion for various forms of gun control was inflamed by the tragic murder of 49 patrons (with 53 injured) at the Pulse nightclub in Orlando, Florida in the early hours of last Sunday morning. A man with ties to radical Islam was the perpetrator, but that’s not convenient to the left’s narrative, so scapegoats for the massacre run the gamut from guns to transgender bathroom laws to Christian “intolerance”, as opposed to the intolerance of a bat-shit crazy Islamic extremist. The Soopermexican notes the following:

“It’s really amazing how liberals [sic] are finding a way to blame Christians for the actions of the Orlando terrorist, who was, 1) gay, 2) Muslim, 3) Democrat, and 4) racist. … But then that’s what they did that time when a crazed liberal gay activist tried to shoot up the Family Research Council. Remember that? He literally said he wanted to kill everyone and then ‘smear Chick-Fil-A in the victim’s faces.’“

In case there’s any misunderstanding, I include that quote NOT to denigrate gays, Muslims, or Democrats, but to emphasize the absurdity of blaming Christians for the Orlando shootings. To get a sense of the infectious silliness going around in leftist circles over the slaughter, read this account of a vigil for the Pulse victims held in Columbia, MO by several student organizations near the main campus of the University of Missouri, at which Latino activists scolded the gay activist crowd for being “too white” and for paying insufficient attention to racial issues. Of course, it’s true that many of the Orlando victims were Latino, but after all, the vigil was for them, too, not just the white victims.

The left despises private gun ownership, or perhaps private anything except for their own privileges. Gun-blame feels so compassionate to them, and in this case, it conveniently avoids any mention of the killer’s ethnicity and radical ideology. Agitators say that “assault weapons” must be banned, but they are generally unable to articulate a precise definition. More thorough background checks are another favorite “solution”, but that’s based on an article of faith that such checks would be effective. Without proof that background checks actually work, and there is none, it still seems like a good idea to the “do something” crowd. Then, there are those whose real agenda is to ban guns outright, despite the fact that gun bans are counterproductive and infringe on the rights of law-abiding citizens.

Most of those who wish to ban assault weapons think they are referring to guns that fire repeatedly when the trigger is pulled. In other words, they believe that assault weapons are fully automatic weapons. But fully automatic weapons have been banned in the U.S. since 1934! Semi-automatic weapons require the trigger to be pulled to fire each bullet but load the next bullet automatically. James B. Jacobs of the NYU School of Law gives a fairly detailed description of the distinction between so-called assault weapons and other firearms, which essentially comes down to appearance:

“‘Assault weapons’ are semiautomatic firearms designed to look like military rifles. They are not military rifles—sometimes called assault rifles24—such as the U.S. Army’s M-16 … that can be fired in automatic or semiautomatic mode, or Russia’s AK-47, Germany’s HK G36 assault rifle, and Belgium’s FN Fal assault rifle. In contrast to assault rifles, these semiautomatic look-alikes do not fire automatically. Functionally, they are identical to most other semiautomatics. … Practically all modern rifles, pistols, and shotguns are semiautomatics; non-semiautomatic long guns include bolt action, slide action, and breach loaders; non-semiautomatic pistols are called revolvers.“

Jacobs discusses the futility of a ban on assault weapons and offers accounts of some historical assault weapon bans that were ineffective. Those outcomes were due in part to the flimsy distinction between assault weapons and other guns, as well as the fact that assault weapons are used in a relatively small percentage of gun crimes and in few mass shootings (also see here). This is corroborated by a recent paper appearing in the journal Applied Economics in which the authors report:

“… common state and federal gun laws that outlaw assault weapons are unrelated to the likelihood of an assault weapon being used during a public shooting event. Moreover, results show that the use of assault weapons is not related to more victims or fatalities than other types of guns. However, the use of hand guns, shot guns and high-capacity magazines is directly related to the number of victims and fatalities in a public shooting event. Finally, the gunman’s reported mental illness is often associated with an increase in the number of victims and fatalities.“

Another contention made by ill-informed opponents of gun rights is that mass shootings are never stopped by citizens with guns. That is simply not true, but it is good propaganda because foiled shooting attempts tend to receive much less notice than actual mass shootings. This article by Eugene Volokh provides a list of confirmed incidents in which a mass shooting was averted by a citizen carrying a gun. This situation has its counterpart in the left’s denial that defensive gun uses (DGUs) occur more frequently than gun crimes. DGUs are difficult to count because they often go unreported and may not even require the firing of a shot.

Another mistake is the continued advocacy for “gun-free zones” (such as the Pulse nightclub) within which even guards are not allowed to carry firearms. Andrew Napolitano rightly labels these “killing zones”.

More stringent background checks are another favorite solution of gun-rights opponents. However, actual background checks have done nothing to stop the most vicious mass shootings that have occurred over the past few years. This is another testament to the naiveté of relying on government to protect you, in this case, a government information system. Sheldon Richman has explained the futility of background checks thusly:

“… people with criminal intent will find ways to buy guns that do not require a check. Proponents of background checks seem to think that a government decree will dry up the black market. But why would it? Sales will go on beyond the government’s ability to monitor them. Out of sight, out of government control. … Thus the case against mandating ‘universal’ background checks withstands scrutiny. This measure would not keep criminally minded people from acquiring guns, but it would give a false sense of security to the public by promising something they cannot deliver.“

Advocates of assault weapon bans and wider background checks are inclined to characterize gun rights supporters as paranoid. As Volokh explained last year, however, there is strong reason to believe that the pro-gun lobby has correctly assessed the motives among the opposition as more extreme. Volokh notes that an ineffectual ban, like the 1994-2004 assault weapon ban and many other gun bans internationally, cannot outweigh the interests of society in protecting a basic liberty.

And as to basic liberties, Rolling Stone offers a wonderful illustration of the left’s disregard for individual rights and constitutional protections in an angry missive to gun rights supporters: “4 Pro-Gun Arguments We’re Sick of Hearing“. The author not only holds the Second Amendment in distain: vogue left-think has it that the entire Constitution is tainted because the framers were unable to agree on abolition 230 years ago (at a time when slave ownership was commonplace among the aristocracy). The fact that many of the founders were sympathetic to abolition makes little difference to these critics. They say the Constitution is not a legitimate framework for governance, despite its extremely liberal point of view on issues of individual rights. Apparently,  Rolling Stone would be just fine with abrogating the free speech rights of gun advocates.

Over the past 20 years or so, case law has increasingly viewed the Second Amendment as “ordinary constitutional law“, meaning that it protects individuals’ right to bear arms. The “well-regulated militia” limitation written into the Second Amendment is no longer accepted by the courts and most legal scholars as a limitation on individual rights. The militias it references were state militias raised from the civilian population, and the armaments they used were generally owned by the same civilians. In any case, there is no time limitation imposed on gun ownership by the Second via that clause. An earlier discussion of these issues was provided by Eugene Volokh in “The Commonplace Second Amendment“.

All this is quite apart from the Ninth Amendment, which states that nothing in the Constitution should be interpreted as limiting rights that are unenumerated. That would include self-defense, and ownership of a gun for that purpose is well advised. The Wikipedia entry on the Ninth Amendment says:

“One of the arguments the Federalists gave against the addition of a Bill of Rights, during the debates about ratification of the Constitution, was that a listing of rights could problematically enlarge the powers specified in Article One, Section 8 of the new Constitution by implication. For example, in Federalist 84, Alexander Hamilton asked, ‘Why declare that things shall not be done which there is no power to do?’“

In other words, we do not derive our rights from government or the majoritarian passions of the moment.

Finally, the debate in Congress this week has centered on whether individuals on the FBI’s Terrorist Watch List should be denied the right to purchase a gun. That might seem like a no-brainier, but it raises legitimate concerns about civil liberties. There are about 700,000 people on that list (some reports put the number much higher), many of them U.S. citizens; some of them are there by mistake. Individuals on the list have not been convicted of a crime and are therefore entitled to due process under the Fifth and Fourteenth Amendments. Watch Rep. Trey Gowdy’s passionate defense of due process to a DHS official this past week. When the ACLU and congressional republicans agree on the tyrannical nature of a restriction like this, you just can’t dismiss it out-of-hand. Such a change in the law cannot be justified without a fast and effective process giving citizens on the list a right of challenge.

The left is bereft of competence on the matter of guns, gun rights and the Constitution generally. They consistently demonstrate a dismissive view of individual liberties, whether that involves guns, religion, property, speech or due process. The tragedy in Orlando deserves more than ill-informed, knee-jerk conclusions. The most productive approach to terror risks involves individuals able to protect themselves and help watch out for others. That’s consistent with the position of the gay gun-rights group Pink Pistols. More power to them!

 

 

 

Hamburger Nation: An Administrative Nightmare

04 Friday Mar 2016

Posted by in Big Government, Judicial Branch, Legislative Branch, Regulation

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By what authority do unelected bureaucrats in administrative agencies increasingly make laws, enforce those laws and adjudicate violations? The fact that all of these activities take place within the executive branch of government appears to be an obvious contradiction of the separation of powers required by the first three articles of the Constitution, the principle of “Rule By Consent” of the governed, and protections of individual liberty. In a strong sense, the regulatory apparatus has grown so unwieldy that the powers routinely exercised by administrative agencies today seem beyond even the reach of elected executives. The rules promulgated by this “fourth branch” of government are essentially extralegal, a point discussed at length in Philip Hamburger’s “Is Administrative Law Unlawful“. He has also explained these issues at the Volokh Conspiracy blog in “Extralegal power, delegation, and necessity“, and “The Constitution’s repudiation of extralegal power“.

Hamburger examines the assertion that rule-making must be delegated by Congress to administrative agencies because legislation cannot reasonably be expected to address the many details and complexities encountered in the implementation of new laws. Yet this is a delegation of legislative power. Once delegated, this power has a way of metastasizing at the whim of agency apparatchiks, if not at the direction of the chief executive. If you should want to protest an administrative ruling, your first stop will not be a normal court of law, but an administrative review board or a court run by the agency itself! You’ll be well advised to hire an administrative attorney to represent you. Eventually, and at greater expense, an adverse decision can be appealed to the judicial branch proper.

This adds up to a dangerous lack of accountability and power. Marginal Revolution points out that critics of Hamburger’s book overlook the potential for harm that could be done by a “vindictive” president. But we should not lose sight of the fact that bureaucrats themselves, at any level, can be vindictive, as the IRS targeting scandal has shown. But that is only one motive for abuse of power; another motive may be more pervasive: the ability to reward those in a position to promote the self-interests of those who populate the administrative state. These are dangers that are endemic to big government. In a post entitled “Are Government Regulators More Virtuous than Everyone Else” (No!), Ivan Carrino highlights the weakness of arguments like those made by George Akerlof and Robert Shiller in “Phishing For Phools“, who call for greater government regulation on the grounds that consumers are vulnerable to manipulation by businesses. Carrino says:

“One can’t help but notice the central contradiction in this analysis. On the one hand, it is assumed that markets fail because of ‘normal human weakness.’ On the other hand, it is assumed that regulation, which must necessarily be implemented by human beings with equal or greater ‘weaknesses,’ will somehow solve the problem.

Akerlof and Shiller simultaneously demonize human beings who operate in the private sector while idealizing human beings who operate in the public sector.“

Glenn Reynolds has been a prominent critic of the administrative state. As a consequence of the vast and growing body of regulatory rules, it’s become increasingly difficult for individuals, acting on their own or as businesspeople, to know whether they are in acting in violation of administrative law. Reynolds discusses regulatory crime and over-criminalization in “You May Be Breaking The Law Right Now“, and in his great paper “Ham Sandwich Nation: Due Process When Everything is a Crime” (free download).

Hamburger’s main position is that law should be made by elected representatives, not by bureaucrats who lack direct accountability to voters. Ilya Somin believes that with time, Hamburger will have great influence on legal theorists in this regard. He compares Hamburger’s insights on administrative law to Richard Epstein’s work on takings. Epstein insisted that “almost all regulations that restrict property rights should be considered ‘takings’ that require compensation under the Fifth Amendment.” Somin notes that Epstein’s position, despite harsh criticism from certain quarters, has influenced legal thinking in a dramatic way over the years.

What’s to be done? Can a line reasonably be drawn between constitutional legislative power and delegated rule-making authority? Somin is skeptical that absolute restrictions on lawmaking by the administrative state are practical, in the sense that there will always be details that cannot be addressed in enabling legislation. Others have suggested practical paths forward: Joseph Postell attempts to give a roadmap in “From Administrative State to Constitutional Government“. A recent Glenn Reynolds op-ed, “Blow Up The Administrative State“, gives a qualified defense of Texas Governor Greg Abbot’s proposed amendments to the Constitution. Among other things, Abbot proposes to:

“–Prohibit administrative agencies … from creating federal law.
  –Prohibit administrative agencies … from preempting state law.
  –Give state officials the power to sue in federal court when … officials overstep their bounds.
  –Allow a two-thirds majority of the states to override a federal law or regulation.”

I would add that administrative review and adjudication should be independent of the agencies themselves. Also, Representative Mia Love (R-UT) has proposed legislation that would restrict Congress to bills focused on points directly related to a single issue (i.e., no omnibus bills), which would help to check the growth of the administrative state.

All of these measures seem consistent with Hamburger’s views. Reynolds is fully cognizant of the dangers of a constitutional convention. Nevertheless, he recognizes that Abbot’s proposals would impose harder limits on the size of government, and defends them in colorful fashion:

“A smaller government would mean fewer phony-baloney jobs for college graduates with few marketable skills but demonstrated political loyalty. It would mean fewer opportunities for tax dollars to be directed to people and entities with close ties to people in power. It would mean less ability to engage in social engineering and ‘nudges’ aimed at what are all-too-often seen as those dumb rubes in flyover country. The smaller the government, the fewer the opportunities for graft and self-aggrandizement — and graft and self-aggrandizement are what our political class is all about.“

For further reading, Michael Ramsey at The Originalism Blog posts links to several other essays by Hamburger at The Volokh Conspiracy, where he acted as a guest-blogger.

 

 

 

Ev’rybody’s Gone Serfin’, Serfdom USA

11 Tuesday Aug 2015

Posted by in Big Government, Regulation

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Any new or existing enterprise can be strangled with ease when regulatory coercion is brought to bear. Whole industries can be strangled. And the strangulation of freedoms is not limited to business concerns. Individuals are impacted as well by the loss of employment choices and opportunities, choices in the marketplace, and even more basic freedoms such as speech and assembly. In an excellent paper, “The Rule of Law in the Regulatory State“, John Cochrane of The University of Chicago highlights the negative consequences of growth in the scope and complexity of regulation. It looks like a working paper with a few items in need of editorial attention. Nevertheless, it contains several interesting ideas, some noteworthy examples of regulatory overreach, and useful dimensions along which to think about regulatory power and its application.

Cochrane’s first two paragraphs give an overview of the pernicious social effects of regulation gone wild, yet they only scratch the surface:

“The United States’ regulatory bureaucracy has vast power. Regulators can ruin your life, and your business, very quickly, and you have very little recourse. That this power is damaging the economy is a commonplace complaint. Less recognized, but perhaps even more important, the burgeoning regulatory state poses a new threat to our political freedom.

What banker dares to speak out against the Fed, or trader against the SEC? What hospital or health insurer dares to speak out against HHS or Obamacare? What business needing environmental approval for a project dares to speak out against the EPA? What drug company dares to challenge the FDA? Our problems are not just national. What real estate developer needing zoning approval dares to speak out against the local zoning board?“

The centerpiece of Cochrane’s paper is his elaboration on a list of bullet points, or dimensions for assessing a regulatory process. The list is given below in italics (without quote marks), and each bullet is followed by my own brief clarification:

  • Rule vs. Discretion? – Rules are better. How much latitude shall a regulator have?
  • Simple/precise or vague/complex? – Simple is better. Vague/complex ≈ discretion.
  • Knowable rules vs. ex-post prosecutions? – Surprise! You’re busted. Vague ≈ unknowable. 
  • Permission or rule book? – Don’t make me ask. Review my plans non-arbitrarily. 
  • Plain text or fixers? – Must I hire a specialist with agency connections?
  • Enforced commonly or arbitrarily? – Objective vs. motivated enforcement.
  • Right to discovery and challenge decisions. – Transparency of evidence & standards.
  • Right to appeal. – to courts, not the agency.
  • Insulation from political process. – Limit discretion and scope of powers.
  • Speed vs. delay. – six months or approve by default.
  • Consultation, consent of the governed. – Formal representation in rule-making.

Sorry if lists make you snooze, but I think it’s a good list, even if the bullets aren’t mutually exclusive. The items highlight the always-present choice between restraining government’s exercise of coercive power versus restraining and coercing the governed.

Cochrane then takes the reader on a “tour” of regulatory areas, including several aspects of financial regulation, health care, foods & drugs, the environment, the internet, campaign finance, national security, immigration and education. These sections are brief, but in each of these areas, Cochrane highlights negative consequences of regulation that illustrate government failure based on the dimensions given in his list of bullets. Here’s an anecdote from his section on environmental regulation:

“Already, anyone opposed to a project for other reasons — like, it will block my view — can use environmental review to stop it. Delay is as good as denial in any commercial project.

The small story of Al Armendariz, head of EPA region 6 who proposed ‘crucifying’ some oil companies as an example to the others is instructive. He was caught on tape saying:

‘The Romans used to conquer little villages in the Mediterranean. They’d go into a little Turkish town somewhere, they’d find the first five guys they saw and they would crucify them. And then you know that town was really easy to manage for the next few years.

…we do have some pretty effective enforcement tools. Compliance can get very high, very, very quickly.’

According to the story, Armendariz shut down Range Resources, one of the first fracking companies. Range fought back and eventually a Federal Judge found in its favor. But an agency that operates by “crucifying” a few exemplars, explicitly to impose compliance costs, is ripe to choose just which exemplars will be crucified on political bases.“

Cochrane closes by describing his vision of a “Magna Carta for the regulatory state” in order to protect “citizens from arbitrary power“:

“It is time for a Magna Carta for the regulatory state. Regulations need to be made in a way that obeys my earlier bullet list. People need the rights to challenge regulators — to see the evidence against them, to challenge decisions, to appeal decisions. Yes, this means in court. Everyone hates lawyers, except when they need one.

People need a right to speedy decision. A “habeas corpus” for regulation would work — if any decision has not been rendered in 6 months, it is automatically in your favor.“

Accomplishing great things is difficult, both in the physical world and in creating value in any form for which other free individuals will trade. By comparison, failure is easy, and so are regulatory decisions that precipitate failure. So often, so easily, so arbitrarily, and with little accountability, those decisions destroy freedom, value and our ability to improve human welfare.

You Probably Broke The Law Today

15 Wednesday Apr 2015

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More widespread ignorance of “the law” is an implication of a regulatory state growing in size and complexity. The tendency of expanding regulation to over-criminalize prompted this reexamination of the legal doctrine of “presumed knowledge of the law”, by Michael Anthony Cottone (abstract at the link, but it offers a free download of the full paper). I believe the cause of justice compels additional protections for individuals or companies against administrative accusers. Not only does this appeal to my sense of fair play, it also should incent bureaucrats to write clear rules and minimize conflicts with existing regulations. And it may discourage overaggressive bureaucrats from pursuing charges over disputes whose resolution might be subject to more reasonable compromise.

Over-criminalization was also the impetus for Glenn Reynolds’ “Ham Sandwich Nation: Due Process When Everything is a Crime” (another abstract with a free download available):

“Though extensive due process protections apply to the investigation of crimes, and to criminal trials, perhaps the most important part of the criminal process — the decision whether to charge a defendant, and with what — is almost entirely discretionary. Given the plethora of criminal laws and regulations in today’s society, this due process gap allows prosecutors to charge almost anyone they take a deep interest in.”

The “due process gap” is said to give rise to the expression, “a good prosecutor can get an indictment against a ham sandwich.” Here is a good discussion of the Reynolds paper at The Volokh Conspiracy, with additional links. Reynolds offers a number of possible remedies, including the creation of certain forms of liability for prosecutors, banning plea bargains, and limiting criminal prosecution for regulatory crimes. There are a few other interesting suggestions at the last link.

Heavy regulation of economic and social affairs places burdens on a society’s ability to prosper economically and culturally. It requires real resources to administer and imposes compliance costs on those it regulates. There are unnecessarily high social costs to a system of detailed rule-making by unelected bureaucrats who have incentives to both increase their dominion and to enhance their long-term career prospects. The latter is often accomplished via “partnership” with some of the largest regulated entities, which leads to rules favoring those entities at the expense of smaller competitors. And a large regulatory complex also offers an avenue through which the executive branch can promulgate rules based on expansive interpretations of existing law, circumventing checks on executive power enshrined in the Constitution. To these drawbacks we can add the consequences of over-criminalization. These should be addressed through limits on prosecutorial discretion and a more neutral perspective on presumed knowledge of administrative law.

Due Process Is the Enemy of Racism

13 Monday Oct 2014

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There is nothing racist about upholding the 14th Amendment right to due process under the law. The tragic Michael Brown shooting this summer in Ferguson, Missouri has led to shocking calls for denial of due process to Darren Wilson, the police officer involved. The African-American community in Ferguson may have legitimate grievances with aspects of their local government, including their representation on the local police force. However, the calls for Wilson’s immediate conviction appear to be motivated by simple ignorance of the legal system.

The image above appeared in several publications as the controversy surrounding the shooting escalated. That the mainstream media, or even alternative media outlets, and politicians would make calls for immediate charges against Officer Wilson led some to ask whether due process was a casualty of the Michael Brown shooting:

“The idea that you can tell who is innocent and who is guilty by the color of their skin is a notion that was tried out for generations, back in the days of the Jim Crow South. I thought we had finally rejected that kind of legalized lynch law.”

As the quote makes clear, due process rights should be respected as a source of protection against racism in law enforcement and the prosecution of crimes. Citizens should also be aware that they have a due process right to record the police; those engaged in acts of protest or civil disobedience would be wise to do so in order to defend themselves against false accusations.

Some would argue, of course, that Michael Brown himself was denied due process in his altercation with Officer Wilson, but that unproven assertion does not trump Wilson’s right to due process. Alan Dershowitz bemoans the lack of video evidence in the Brown shooting, but he staunchly defends Officer Wilson’s due process right. It is too easy to vilify those accused or suspected of the most serious and despicable offenses; that is why due process must be respected, even if the system isn’t free of errors. Of course, even accused murderers and rapists are entitled to due process.

In the end, the verdicts that come out of the system must be respected, or there is no hope of moving closer to perfect justice. Let us hope that is remembered when the grand jury ends its deliberations over whether to charge Darren Wilson in the Brown shooting, no matter the verdict.

Are Rapists Entitled To Due Process?

20 Friday Jun 2014

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Of course they are! Under our legal system, any accused individual has the right to due process under the law. Unfortunately, accusations of rape or sexual assault on campus are now being adjudicated by boards of discipline under vague definitions and loose evidentiary standards. The mere claim of an alleged victim is sometimes treated as sufficient evidence to obtain a verdict, which could include the loss of scholarship funds or expulsion. Ideally, any allegation of this kind serious enough to be a crime should be referred immediately to law enforcement authorities. Punitive action by the school under these circumstances, without high standards of evidence, should be deferred until the allegations are resolved through the courts.

Rape is a horrid crime. Far less horrid is this: get drunk, hook-up, awaken with strong regret, allege sexual assault. But while this doesn’t approach the horror of rape, weak allegations of this kind are not as uncommon as they should be. George Will’s recent column on campus sexual assault raised ire in some circles primarily because of one sentence: “Colleges and universities …are learning that when they say campus victimizations are ubiquitous … and that when they make victimhood a coveted status that confers privileges, victims proliferate.” HuffPo reacted to Will’s column with this damning piece. Today, the St. Louis Post-Dispatch announced that it is replacing Will’s twice-a-week column with one written by Michael Gerson, thus far the only major daily newspaper to cancel Will’s column.

Will’s use of the phrase “coveted status” was possibly an ill-fated attempt to connect the ease with which a false accusation can be affirmed by a campus kangaroo court and the achievement of credibility within radical feminist circles. He’d have done better to say that on campus, females may have a privileged status if only because males they may accuse of sexual assault are likely to be denied due process. Privileged? Probably just a one-shot deal. David Bernstein covers some related nuances regarding privilege on campus.

Professor Michael Jacobson discusses Will’s column and some of the legal implications of new “definitions” of sexual assault, due process and victimhood being propagated. Christopher Paslay has some pointed comments about the left’s distorted views on certain aspects of the debate.

Does the Left Wish To Preserve Basic Freedoms?

09 Friday May 2014

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Certainly not first amendment rights, and they prove it every day. This warning is from FEC Chairman Lee E. Goodman, as told by the Ace of Spades: “The Left Will Not Stop Until It Enlists the Power of Government to ‘Regulate’ Political Speech by Conservative Media, and Even Conservative Blogs.” A collection of hypocrites of the first-order, the Left’s tolerance of speech depends of course on how much they like your rap. Equal treatment by tax authorities? No. Neutral media regulation? No. Even-handed grants of waivers for political contributions? No. Harassment by law enforcement based on the content of speech? Why yes. Just ask Nakoula Basseley Nakoula and Dinesh D’Souza.

Here’s Daniel Henninger on the Left’s role in degrading free speech, and even the right to due process, at American universities. “Make no mistake, universities under constant pressure from the Obama administration and the most driven members of their “communities” will comply and define due process downward.”