The Freedom Bulletin

This week the Supreme Court heard arguments in the case of Albert Florence. Horrifically, Mr. Florence was wrongly arrested due to a computer mistake for failing to pay a traffic fine, which he had actually paid, and was then thrown in jail and strip searched twice. The Court is deciding whether New Jersey’s practice of strip-searching all inmates who are held in jail before trial is constitutional.

Interestingly, the more “liberal” justices seemed more opposed to strip searches and the more “conservative” ones seemed to lean toward supporting them.

Justice Sotomayor said that much contraband enters jails ”not on intake, but…from corrupt correction officials” and reminded her fellow justices of a very important principle, asking, ”What are we doing with the presumption of innocence? That’s also a constitutional right.”

Justice Kagan contrasted this case with a 1979 decision approving body cavity searches after contact visits, saying, ”Here, you are talking about somebody who is arrested on the spot. There is no opportunity for planning, for conspiracy with respect to contraband.”

Justice Scalia claimed that strip searches were routine at the time the Bill of Rights was ratified. Although I don’t know for sure, that would be very surprising to me. He also implied that it would be okay to strip someone “to see if the person has any fleas or cooties or, you know, any other communicable disease before he is put into the general population.”

My view:

Although jail officials and people who support strip searches do not refer to them as a punishment and do not conduct them for that purpose, being subjected to such a degrading invasion of privacy is unarguably a punishment, and a severe one at that. It is always wrong to inflict punishments on people who have not been convicted of a crime, both from a common-sense point of view and according to the Fifth Amendment to the Constitution, which forbids that anyone ”be deprived of life, liberty, or property, without due process of law.” Heck, you could even argue the more radical position that strip searches, even of people who have been convicted of crimes, are unconstitutional because they are a “cruel and unusual” punishment under the Eighth Amendment.

Looking at the debate from a slightly different angle, using common sense about searches and seizures also makes it clear that strip searching people, when there is no reason to suspect they may be hiding weapons or contraband, is unconstitutional. If someone is arrested, then presumably there is reasonable suspicion that they committed some crime. But the strip search is not related to finding evidence of a crime, it is done for safety and security purposes. If the inmate has done nothing to raise suspicion of smuggling contraband, then there is no reasonable suspicion to conduct a strip search, and it therefore violates the Fourth Amendment. This is even more true when someone is arrested for a minor offense such as failing to pay a traffic ticket.

A lawyer from the Department of Justice told the Court, ”You cannot say that there are some minor offenders that don’t pose a contraband risk. You have individuals who are making (a) very quick determination. They have very little time, and if they guess wrong, those mistakes can be deadly.” But a strip search is a severe violation of a person’s dignity, privacy, and sexual integrity. The burden of justification must always be on those who want to inflict such a violation, and it is certainly not enough of a justification that there is some chance, however small, that the person might have contraband. If you don’t have enough time to figure out which inmates raise a reasonable suspicion, you shouldn’t be searching anyone.

In my opinion, this particular case is a no-brainer. Punishing people in this way, when they must be presumed innocent and have done nothing to raise suspicion, is unconstitutional, and I hope the Supreme Court recognizes this.

John Thompson was convicted of murder and sentenced to death in 1985. He didn’t testify in his own defense because he worried that a prior armed robbery conviction would hurt his credibility. Shortly before his planned execution, in 1999,  private investigators discovered that prosecutors in the robbery case had withheld evidence that blood at the crime scene did not match him, that a supposed eyewitness description did not resemble him, and that the main informant had received a reward from the victim’s family. He was then retried on the murder charge and quickly acquitted. Then, he sued the district attorney who prosecuted him, Harry Connick, Sr., for failing to train his employees on their duty (established under Brady v. Maryland) to share exculpatory evidence with the defense. He was awarded $15 million for his suffering, one for each year he spent behind bars and one for legal fees.

Last week, the Supreme Court threw out this award. Justices Clarence Thomas and Antonin Scalia both wrote opinions, which Dahlia Lithwick at Salon called among the “meanest ever.” Justice Ruth Bader Ginsburg read her dissent aloud.

Scalia called the wrongful conviction the work of a “miscreant prosecutor,” not the fault of the D.A.’s office as a whole, in explaining why D.A. Connick shouldn’t be held liable. But Ginsburg wrote that similar Brady violations had occurred several times in the same office, that five prosecutors had been involved in the misconduct, and that they failed to correct it “despite multiple opportunities, spanning nearly two decades, to set the record straight.”

What makes this case really unjust is that, according to Ms. Lithwick from Slate, “the courts already give prosecutors absolute immunity for their actions as prosecutors.” So neither the D.A. nor individual prosecutors can be held responsible for misconduct that took 14 years from a man’s life and nearly killed him. Clearly, someone did something wrong. Either D.A. Connick failed to properly teach his prosecutors about their Brady obligations, or one or more individual prosecutors chose to violate these obligations. I don’t know enough to make a determination of which was the case here, but one or the other certainly was. It is wrong that neither of the possibly culpable parties can be made to pay restitution to their victim, Mr. Thompson.

• Full opinion (PDF)

Here’s some news on an old, notorious Massachusetts murder case. Dirk Greineder is an allergist from Wellesley who was convicted of murdering his wife back in 1999. Now he is taking his case to the Supreme Court, hoping to be one of the few appellants granted a writ of certiorari:

“In a 30-page petition to the Supreme Court, filed Jan. 28 by his attorney James L. Sultan, Greineder notes that the Sixth Amendment of the Constitution guarantees that a defendant be confronted with the witnesses against him.

A key piece of the case was DNA testing linking him to the knife and brown work gloves presumably used by his wife’s killer, his petition states. The prosecution presented the results through the testimony of a forensic laboratory director, but the testing was conducted and reviewed by three people who did not testify at the trial.”

Read the rest at Boston.com.

The Supreme Court ruled today that the Westboro Baptist Church’s protests at military funerals are protected by the First Amendment. The WBC is the extremist religious group, led by Fred Phelps and composed largely of his extended family, that believes that the deaths of soldiers are God’s punishment to America for its acceptance of gays and lesbians. Not an idea I agree with, to say the least, and one that is extremely offensive and hurtful to many people, especially the family of Lance Cpl. Matthew Snyder, who was killed in Iraq and whose funeral the WBC picketed.

But the Court decided that the Snyder family is not entitled to monetary compensation from Phelps and his organization. As Chief Justice Roberts wrote in his opinion:

“Westboro addressed matters of public import on public property, in a peaceful manner, in full compliance with the guidance of local officials. It did not disrupt Mathew Snyder’s funeral, and its choice to picket at that time and place did not alter the nature of its speech. Because this Nation has chosen to protect even hurtful speech on public issues to ensure that public debate is not stifled, Westboro must be shielded from tort liability for its picketing in this case.”

Contrast this with France’s legal response to fashion designer John Galliano’s alleged anti-Semitic rant. He was charged with “public insults based on origin, religious affiliation, race, or ethnicity” and faces up to six years in prison for saying things like “I love Hitler” and “your forefathers would be gassed.”

Although the First Amendment protects unpleasant speech, I am thankful for it. Opinions should not be banned merely because they are offensive to many people. Extreme, radical, and even wrong views such as those of the Phelps family and anti-Semites, have a role in public discourse simply because diversity of opinion is a good thing. I would rather live in a world where people are allowed to express all kinds of views, even those that I find offensive and wrong, than one where people are forced or pressured into uniformity of thought.

Full Supreme Court ruling (PDF)

Here’s an interesting appellate success story for a defendant. Luis Melendez-Diaz, 32 years old and from Jamaica Plain, was convicted of cocaine trafficking in 2004 in Boston’s very own Suffolk County Superior Court. He appealed on the grounds that Massachusetts law allowed proescutors to present forensic experts’ reports as evidence without allowing him to cross-examine the experts, thereby violating his Sixth Amendment right to “be confronted with the witnesses against him.” His case went all the way to the Supreme Court. In 2009, they overturned his conviction and sent his case back to be tried again. Today, in his retrial, he was acquitted.

The message? Appealing one’s conviction can work, although it isn’t statistically likely. Melendez-Diaz is still in prison for a drug trafficking conviction in another county, but it does seem like constitutionally, he had a point. Congratulations to him, I guess!

Source: Boston.com

The Supreme Court ruled today in McDonald v. Chicago that the Second Amendment applies to state and local governments in addition to the federal government. The case centered around Chicago’s ban of basically all handguns, which will likely be repealed as a result of the ruling.

The decision is not perfect – it allows some state and local gun restrictions, just not those that ban handguns entirely. Paul Helmke, the head of the Brady Campaign to Prevent Handgun Violence, was “reassured that the Court has rejected, once again, the gun lobby argument that its ‘any gun, for anybody, anywhere’ agenda is protected by the Constitution.” But this is still a victory for liberty because the court has upheld one of our fundamental rights, the right to bear arms, and sent a message to state governments that they cannot trample all over people’s freedoms just because they aren’t the federal government.

Ilya Shapiro of the Cato Institute wrote as much:

“The Fourteenth Amendment, coming on the heels of the Civil War, says clearly that never again would the Constitution tolerate state oppressions and that all individuals possess certain fundamental rights. And it is equally clear that the right to keep and bear arms is one of those deeply rooted fundamental rights, not least because the Framers thought so highly of it as to enumerate it in the Second Amendment.”

Otis McDonald, the Chicago grandfather and community leader who brought the lawsuit against his city, brought up another positive aspect of the decision, in addition to preserving freedom:

“This will make criminals think twice. If you have the right to have a handgun in your house, even if you don’t have a gun, that will give criminals a second thought, a third thought about breaking in to your house.”

Full text of the decision (PDF)

Gun pictures thanks to Adams Guns

As you probably know, the Supreme Court ruled on Thursday to loosen limits on political spending by corporations. Corporations, unions, and other organizations are now allowed to runs ads explicitly supporting candidates at any time they want to during campaigns.

This ruling makes sense – why shouldn’t corporations and non-profits be allowed to explicitly support candidates if they are already allowed to run ads un-explicitly supporting candidates? But after a little thinking, I believe that the whole system of campaigns being financed by private donations is far from ideal.

Here’s an idea that I came up with – it might be radical and other libertarians might not like it, but here goes. What if campaigns weren’t financed by donations at all? Suppose that people and organizations weren’t allowed to donate to campaigns. Instead, TV channels and radio stations could be required to allocate a certain number of ad slots, for free, to each candidate in elections.

Some people might find it unappealing for the government to be able to tell TV channels and radio stations what to do. But now, we have a system in which political influence and ability to win elections depend on money. Campaign finance is collectively self-defeating, like a nuclear arms race. Say, for example, that I donate $100 to candidate A, and you donate $100 to candidate B. Seeing that the candidates are now tied again, I give $100 more to A. Then you give $100 more to B to tie up the race again. This could keep going on until we’ve each given $1 million to our preferred candidate, and the outcome – the candidates being tied – would be the same as if we’d given nothing. Doesn’t seem like that was a waste of money? Wouldn’t it be better if we could keep our money for ourselves without having to feel like we are letting the candidate we don’t like win?

Not only does the current campaign finance system limit politics to the well-off, it’s just wrong for anyone – rich or poor – to have to pay money to run for office. The ability to share your views with the world shouldn’t be a commodity, and a candidate’s likelihood of winning shouldn’t depend on the amount of money they and their followers are willing to sacrifice. It’s such a waste for losing candidates who spend millions of dollars on nothing, and even for winning candidates whose victory comes at a huge financial cost.

Another perk of my system: it would greatly help third-party and independent candidates, since TV and radio would have to give the same amount of ad time to all candidates.

Further reading:

• CNN: Supreme Court eases restrictoins on corporate campaign spending
• Economy Watch: US Supreme Court: No to Campaign Finance Limits