National Police Misconduct Reporting Project

Mother Jones on Overcriminalization

Chase Madar:

If all you’ve got is a hammer, then everything starts to look like a nail. And if police and prosecutors are your only tool, sooner or later everything and everyone will be treated as criminal. This is increasingly the American way of life, a path that involves “solving” social problems (and even some non-problems) by throwing cops at them, with generally disastrous results. Wall-to-wall criminal law encroaches ever more on everyday life as police power is applied in ways that would have been unthinkable just a generation ago….

The term “police state” was once brushed off by mainstream intellectuals as the hyperbole of paranoids. Not so much anymore. Even in the tweediest precincts of the legal system, the over-criminalization of American life is remarked upon with greater frequency and intensity. “You’re probably a (federal) criminal” is the accusatory title of a widely read essay co-authored by Judge Alex Kozinski of the 9th Circuit of the US Court of Appeals. A Republican appointee, Kozinski surveys the morass of criminal laws that make virtually every American an easy target for law enforcement. Veteran defense lawyer Harvey Silverglate has written an entire book about how an average American professional could easily commit three felonies in a single day without knowing it.The daily overkill of police power in the US goes a long way toward explaining why more Americans aren’t outraged by the “excesses” of the war on terror, which, as one law professor has argued, are just our everyday domestic penal habits exported to more exotic venues. It is no less true that the growth of domestic police power is, in this positive feedback loop, the partial result of our distant foreign wars seeping back into the homeland (the “imperial boomerang” that Hannah Arendt warned against).Many who have long railed against our country’s everyday police overkill have reacted to the revelations of NSA surveillance with detectable exasperation: of course we are over-policed! Some have even responded with peevish resentment: Why so much sympathy for this Snowden kid when the daily grind of our justice system destroys so many lives without comment or scandal? After all, in New York, the police department’s “stop and frisk” tactic, which targets African American and Latino working-class youth for routinized street searches, was until recently uncontroversial among the political and opinion-making class. If “the gloves came off” after September 11, 2001, many Americans were surprised to learn they had ever been on to begin with.A hammer is necessary to any toolkit. But you don’t use a hammer to turn a screw, chop a tomato, or brush your teeth. And yet the hammer remains our instrument of choice, both in the conduct of our foreign policy and in our domestic order. The result is not peace, justice, or prosperity but rather a state that harasses and imprisons its own people while shouting ever less intelligibly about freedom.

Read the whole thing.  The article by Judge Kozinski appears in my book, In the Name of Justice, found on the home page here.

 

More on the Aaron Swartz Case

From the One Generation Away blog:

Aaron Swartz was an influential man with very important friends, and that’s why this case is getting so much attention.  Sadly, this kind of behavior by prosecutors is not an extreme example, but instead par for the course.

“[I]t’s important to realize that what happened in the Swartz case happens it lots and lots of federal criminal cases. Yes, the prosecutors tried to force a plea deal by scaring the defendant with arguments that he would be locked away for a long time if he was convicted at trial. Yes, the prosecutors filed a superseding indictment designed to scare Swartz even more into pleading guilty (it actually had no effect on the likely sentence, but it’s a powerful scare tactic). Yes, the prosecutors insisted on jail time and a felony conviction as part of a plea. But it is not particularly surprising for federal prosecutors to use those tactics. What’s unusual about the Swartz case is that it involved a highly charismatic defendant with very powerful friends in a position to object to these common practices. That’s not to excuse what happened, but rather to direct the energy that is angry about what happened. If you want to end these tactics, don’t just complain about the Swartz case. Don’t just complain when the defendant happens to be a brilliant guy who went to Stanford and hangs out with Larry Lessig. Instead, complain that this is business as usual in federal criminal cases around the country — mostly with defendants who no one has ever heard of and who get locked up for years without anyone else much caring.”

That was law professor Orin Kerr.  He has a proposal for change:  “Felony liability under the statute is triggered much too easily. The law needs to draw a distinction between low-level crimes and more serious crimes, and current law does so poorly.”  Some have proposed “Aaron’s Law” which would remove terms of service violations from the federal criminal code….

Aaron Swartz knew he was breaking the law when he downloaded those articles.  What he did not know, was that if a prosecutor wanted to make his life hell, she could credibly see to it that he was locked up until his mid 50’s.  We should make sure that punishments fit crimes, and that when we collectively threaten to remove a human being from society for a generation or two, they actually did something worthy of such a profound punishment.

The Police “Raid” on Michael Salman’s Home

John Whitehead:

Under the blazing Arizona sun stands an encampment of military tents filled with some 2,000 people. They battle the heat by positioning themselves in front of a few large fans, but they are of little use when temperatures reach 145 degrees. Stun fences surround the perimeter, with four Sky Watch Towers bearing down on the occupants. Facial recognition software and K-9 units keep track of the people moving about, longing for their freedom.

For the residents of Tent City Jail, their time behind bars is an exercise in humiliation: they are forced to dress in pink underwear, they “work seven days a week, are fed only twice a day, get no coffee, no cigarettes, no salt, pepper or ketchup and no organized recreation.” They work on chain gangs, and have to pay ten bucks every time they want to see a nurse. This draconian treatment is not reserved for hardened criminals. In fact, most inmates in Tent City are imprisoned for less than a year for minor crimes, or are simply awaiting trial.

It is in this Guantanamo-like facility, surrounded by hardened criminals and subjected to all manners of degradation and hardship that Michael Salman—who was fined more than $12,000 and sentenced to 60 days in jail starting on July 9, 2012, for the so-called “crime” of holding a weekly Bible study in his Phoenix home, allegedly in violation of the city’s building codes—is incarcerated.

What happened to Michael Salman—armed police raids of his property, repeated warnings against holding any form of Bible study at his home, and a court-ordered probation banning him from having any gatherings of more than 12 people at his home—should never have happened in America. Yet this is the reality that more and more Americans are grappling with in the face of a government bureaucracy consumed with churning out laws, statutes, codes and regulations that reinforce its powers and value systems and those of the police state and its corporate allies. All the while, the life is slowly being choked out of our individual freedoms. The aim, of course, is absolute control by way of thousands of regulations that dictate when, where, how and with whom we live our lives. …

Michael Salman is merely one more unfortunate soul caught in the government’s cross-hairs, only his so-called crime deserving of prosecution was daring to take part in a time-honored tradition that goes back centuries—gathering with family and friends at home for prayer and worship.

Since 2005, Michael and his wife Suzanne have hosted Bible studies at their Phoenix home for 20-45 family and friends, depending on the day of the week and time. Attendees park their cars on the Salmans’ 4.6-acre property so as not to crowd the street or inconvenience the neighbors. However, after some neighbors complained about the gatherings, city zoning officials started harassing the Salmans, advising them that they were breaking the law because religious activities, even in the home, have to be governed by building codes for churches, rather than residential homes. Of course, these zoning officials had no problem with group gatherings for family reunions, football parties, Tupperware parties or Boy Scout meetings. In June 2009, nearly a dozen armed police officers, accompanied by city inspectors, raided the Salmans’ property, charging them with 67 code violations that apply to commercial and public buildings, including having no emergency exit signs over the doors, no handicap parking spaces or handicap ramps.

For more than three years, the Salmans attempted to placate city officials, even agreeing to install overhead sprinklers in their converted game room, but when zoning officials started insisting that the Salmans actually install paved roads and curbs on their private property, they said “no more.” That’s when city officials really turned up the heat, sentencing Michael Salman to 60 days in jail, more than $12,000 in fines and a two-year probation. Making matters worse, city officials then found Michael guilty of violating his probation by continuing to hold Bible studies on his private property after being ordered not to have more than 12 people gathered on his property at any one time. In addition to increased jail time for Michael and fines, the Salmans will also be subjected to unannounced monthly visits by government inspectors, checking to ensure they do not have more than 12 people in their home at any given time.

Read the whole thing.

 

Now Ignorance of Foreign Law Is, Apparently, No Excuse

From the Wall Street Journal:

Without warning, 30 federal agents with guns and bulletproof vests stormed our guitar factories in Tennessee. They shut down production, sent workers home, seized boxes of raw materials and nearly 100 guitars, and ultimately cost our company $2 million to $3 million worth of products and lost productivity. Why? We imported wood from India to make guitars in America….

The Aug 24 raid was authorized under the Lacey Act. Originally enacted as a means to curb the poaching of endangered species, the law bans wildlife and plants from being imported if, according to the interpretation of federal bureaucrats, the importation violates a law in the country of origin.

The fingerboards of our guitars are made with wood that is imported from India. The wood seized during the Aug. 24 raid, however, was from a Forest Stewardship Council-certified supplier, meaning the wood complies with FSC’s rules requiring that it be harvested legally and in compliance with traditional and civil rights, among other protections. Indian authorities have provided sworn statements approving the shipment, and U.S. Custom allowed the shipment to pass through America’s border and to our factories.

Nonetheless, the U.S. Fish and Wildlife Service decided to enforce its own interpretation of Indian law, arguing that because the fingerboards weren’t finished in India, they were illegal exports. In effect, the agency is arguing that to be in compliance with the law, Gibson must outsource the jobs of finishing craftsmen in Tennessee.

This is an overreach of government authority and indicative of the kinds of burdens the federal government routinely imposes on growing businesses. It also highlights a dangerous trend: an attempt to punish even paperwork errors with criminal charges and to regulate business activities through criminal law. Policy wonks call this “overcriminalization.” I call it a job killer.

In America alone, there are over 4,000 federal criminal offenses. Under the Lacey Act, for instance, citizens and business owners also need to know – and predict how the U.S. federal government will interpret – the laws of nearly 200 other countries on the globe as well. Many business owners have inadvertently broken obscure and highly technical foreign laws, landing them in prison for things like importing lobster tails in plastic rather than cardboard packaging (the violation of that Honduran law earned one man an eight-year prison sentence). Cases like this make it clear that the justice system has strayed from its constitutional purpose like stopping the real bad guys from bringing harm.

I testified before the Congress last fall on the overcriminalization problem.  More from Harvey Silverglate here.