Blunderov
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"We think in generalities, we live in details"
  
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Law Running Rabid
« on: 2009-07-26 04:11:47 » |
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[Blunderov] I mentioned in a previous post that I'm chary of laws that equivocate the convenience of law enforcement with the concept of justice and that law ought not to invent facts to this (or indeed any other) end*. Here is a particularly noxious example of what I mean.
Picture: Kafka's Metamorphisis
Source: www.amrep.org - A dark, adapted eye
You're Probably a Federal Criminal, Too
Date: 25 July 2009, 08:17:00 PM
Source: rbalko@reason.com
Author: Radley Balko
Last week, Reps. Bobby Scott (D-Va.) and Louie Gohmert (R-Texas) held much-needed hearings last on the ever expanding reach and scope of federal law which, given a creative prosecutor and compliant judge, can make a federal criminal out of just about anyone.
One witness who testified at the hearings is convicted federal felon Krister Evertson. The Heritage Foundation’s Brian Walsh has a write-up. What happened to Evertson is so outrageous, it merits a lengthy excerpt:
Krister never had so much as a traffic ticket before he was run off the road near his mother’s home in Wasilla, Alaska, by SWAT-armored federal agents in large black SUVs training automatic weapons on him.
Evertson, who had been working on clean-energy fuel cells since he was in high school, had no idea what he’d done wrong. It turned out that when he legally sold some sodium (part of his fuel-cell materials) to raise cash, he forgot to put a federally mandated safety sticker on the UPS package he sent to the lawful purchaser.
Krister’s lack of a criminal record did nothing to prevent federal agents from ransacking his mother’s home in their search for evidence on this oh-so-dangerous criminal.
The good news is that a federal jury in Alaska acquitted Krister of all charges. The jurors saw through the charges and realized that Krister had done nothing wrong.
The bad news, however, is that the feds apparently had it in for Krister. Federal criminal law is so broad that it gave prosecutors a convenient vehicle to use to get their man.
Two years after arresting him, the feds brought an entirely new criminal prosecution against Krister on entirely new grounds. They used the fact that before Krister moved back to Wasilla to care for his 80-year-old mother, he had safely and securely stored all of his fuel-cell materials in Salmon, Idaho.
According to the government, when Krister was in jail in Alaska due to the first unjust charges, he had “abandoned” his fuel-cell materials in Idaho. Unfortunately for Krister, federal lawmakers had included in the Resource Recovery and Conservation Act a provision making it a crime to abandon “hazardous waste.” According to the trial judge, the law didn’t require prosecutors to prove that Krister had intended to abandon the materials (he hadn’t) or that they were waste at all — in reality, they were quite valuable and properly stored away for future use.
With such a broad law, the second jury didn’t have much of a choice, and it convicted him. He spent almost two years locked up with real criminals in a federal prison. After he testifies today, he will have to return to his halfway house in Idaho and serve another week before he is released.
So he was convicted of "abandoning" the hazardous materials in Idaho because he was in an Alaska jail awaiting trial on the bogus safety sticker charge for which he was acquitted. But he wasn’t allowed to use that in his defense. Nor were prosecutors required to prove that the materials he didn’t really abandon were actually waste. Note too the ridiculously paramilitary confrontation and arrest for the non-crime of failing to affix a safety sticker to a UPS package.
Back in 2004, Gene Healy wrote a piece for Reason on the ever-growing federal criminal code.
Source: http://www.reason.com/news/show/32860.html
Date: December 17, 2004
Author: Gene Healy
Making A Federal Case Out of Almost Everything
It's time to rediscover constitutional limits
"Don't make a federal case out of it," we used to tell people who blew things out of proportion. But that phrase is quickly losing its bite as the federal government expands its jurisdiction to every area of American life.
Responding to the Barry Bonds-Jason Giambi steroid scandal, Senator John McCain (R-AZ) recently threatened to bring the federal hammer down on Major League Baseball: "Major-league baseball players and owners should meet immediately to enact the standards that apply to the minor leagues, and if they don't, I will have to introduce legislation that says professional sports will have minimum standards for testing," McCain said on December 3rd. (Up next, perhaps, legislation to revoke the American League's designated hitter rule.)
The week before McCain issued his threat, the Justice Department fought in the Supreme Court to maintain the right to jail sick people taking marijuana on the advice of their doctors and with the approval of their state government. On November 29, the Supreme Court heard oral argument in Ashcroft v. Raich, a case involving two desperately ill women who use marijuana and seek protection from prosecution under federal drug laws. Acting solicitor general Paul Clement told the Court that medicine grown in one's own backyard for home consumption was a national matter, subject to Congress's power to regulate interstate commerce—despite the fact that there is nothing remotely commercial or interstate about the conduct at issue.
Those are just two recent examples of a federal government that views its jurisdiction as limitless. That's a view quite at odds with the one held by the Constitution's Framers. The document they drafted envisioned a federal government focused on national issues, such as "war, peace, negotiation, and foreign commerce," in Madison's words. Even the most devoted advocate of national power, Alexander Hamilton, agreed, explaining in Federalist 17 that under the Constitution, "the ordinary administration of criminal and civil justice" would be left to the states.
We've drifted far from that understanding. Congress's power to "regulate Commerce...among the states," which was designed to eliminate state-level trade barriers, has become a limitless font of federal power, used to regulate or criminalize behavior better left to the states or the civil law.
With commerce clause limits eviscerated, almost anything can be a federal crime. We've gone from a Constitution that mentions only three federal crimes (treason, piracy, and counterfeiting) to a federal criminal code with over 4,000 separate offenses, some of them stunningly trivial. In 2002, President Bush signed legislation making it a federal crime to move birds across state lines to engage in fights. The ban on cockfighting joined such notable federal crimes as interstate transport of unlicensed dentures (punishable by up to a year in prison), tampering with an odometer (up to three years), and pretending to be a member of the 4-H Club (up to six months). These and other offenses larded throughout the U.S. code could make for an interesting conversation with one's cellmate: "What are you in for, kid?"
But out-of-control federalization is only rarely amusing. It brings serious costs. In addition to the trivial crimes mentioned above, Congress has federalized a host of ordinary street crimes already covered by state criminal codes, crimes like arson, carjacking, and gun possession by felons. Shunting these cases into federal court causes huge delays to civil litigants and unsustainable pressure on the federal courts. Chief Justice Rehnquist has characterized the result as "a crisis in workload." Forcing the federal courts to handle workaday criminal matters crowds out civil suits and leads to huge delays for civil litigants because criminal defendants have a constitutional right to a speedy trial and everyone else has to wait in line.
Moreover, a federal government focused on everything from cockfighting to steroid use is a federal government that's not focused on truly national issues. Case in point: In the months leading up to the September 11 attacks the FBI was engaged in an 18-month-long sting operation at a brothel in New Orleans that netted 12 prostitutes. September 11 should have concentrated the mind wonderfully as to proper federal priorities, yet federal law enforcement to this day continues to behave like the local vice squad.
But the most important costs of overfederalization are the costs to the rule of law. A federal criminal code that covers everything essentially delegates to prosecutors and police the power to pick targets they think they should get rather than offenses that need to be prosecuted [Bl. My emphasis]—leaving everyone at risk. That is unacceptable in a country that still considers itself a government of laws and not of men. It's well past time we rediscovered the wisdom of constitutional limits.
*[Bl.] A semantic minefield I realise; to declare that someone "is guilty of an offence" is to invent a fact. But IMV every act of legislation is a written confession of our human failure and is not much to be celebrated. Of course we all do have our individual and collective failings and this cannot be wished away but IMV the ideal of justice is probably better served by having fewer laws rather than more.
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