Archive for the Criminal Justice Category

Time to Restore Jury Trials as Judicial Standard

Certainly the Bill of Rights envisioned a criminal justice system in which jury trials were the norm:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed . . . ; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Now hardly any defendant faces a jury. “In fiscal year 2012, 97 percent of all federal drug convictions were secured by guilty pleas,” notes Human Rights Watch in its new study, “An Offer You Can’t Refuse: How US Federal Prosecutors Force Drug Defendants to Plead Guilty.” (The Atlantic published an article based on the report.) An article for the American Bar Association reports, “[O]ur federal courts actually tried fewer cases in 2002 than they did in 1962, despite  . . . more than a doubling of the criminal filings over the same time frame.”

At the state level, “97.6 percent of all Colorado felony convictions result from plea bargains, not jury trials,” I reported last year. (See also my op-ed on the subject for the Gazette.)

What’s responsible for the withering away of the Fifth Amendment? In short, legislators have empowered prosecutors to threaten criminal defendants with insanely long prison sentences in order to coerce them into accepting plea deals. When defendants can plead guilty and sit in prison for a few years or go to trial and risk sitting in prison for a few decades, it’s no surprise that many plead guilty—whether or not they are guilty.

Of course, the broader problem is that legislators have empowered prosecutors to send people to prison for years or decades on end for activities that violate no one’s rights, such as selling drugs (to consenting adults). For obvious reasons, prosecutors have a harder time getting jury convictions for such “crimes” even when the defendants are guilty.

Regardless, we have moved from a criminal justice system fundamentally controlled by the citizenry to a criminal justice system fundamentally controlled by prosecutors.

What to do about it? One obvious step is to repeal mandatory sentences for non-rights-violating “crimes.” Then judges could better dampen prosecutorial zeal. I think we should consider other reforms as well, such as the idea of limiting the “trial penalty.” If prosecutors could threaten people with sentences no longer than, say, half again as long as that of their plea offers, that would dramatically increase the percentage of criminal trials going to jury.

Statists, of course, dislike giving hoi polloi a voice in criminal proceedings. They think that government agents know best and that citizens should basically stay out of the way. They also claim that trials cost more—ignoring the obvious fact that unjust prison terms cost the taxpayers insane amounts of money.

If we respect the spirit of the Fifth Amendment and want a criminal justice system tied closely to the citizenry, then we the people must demand the restoration jury trials as the standard practice rather than the rare exception in the criminal justice system.

Creative Commons Image by Andrew Bardwell

Is Five-Year Sentence for Abusive Deputy Excessive?

I was surprised to read in the October 18 North Jeffco Westsider that an abusive sheriff’s deputy from Adams County—David Morrow—was convicted of assaulting a restrained teen and sentenced to five years in prison.

First I was surprised that any abusive police officer, anywhere, had actually been charged with any crime by any district attorney. Kudos to Dave Young—the district attorney for Colorado’s 17th judicial district (which covers Adams and Broomfield counties)—and to his team for prosecuting the deputy for a crime he obviously committed. I hope the prosecution inspires DAs everywhere to charge police officers within their jurisdictions whenever those officers commit violent crimes. I am damned sick of reading stories about cops who needlessly beat the crap out of people, then not only avoid criminal prosecution but often keep their jobs.

But then I was surprised by the length of the sentence. Five years strikes me as excessive for punching a drunk, belligerent teen in the face. Offhand, I would consider a reasonable sentence to consist of a few months in the county jail followed by a few year’s probation in association with intensive anger-management classes and community service. The courts should have also required Morrow to personally pay for the teen’s medical bills and related expenses.

Let’s look at some of the facts of the case. A good place to start is with a media release from Young’s office:

Morrow . . . was convicted of second-degree assault . . . , third-degree assault . . . and child abuse. . . .

On June 12, 2011 at about 1:10 a.m. Morrow responded to a call about a disturbance at 8790 Welby Road in Adams County. According to court records and evidence presented during the trial, the 15-year-old boy, who appeared highly intoxicated, was taken into custody and transported by ambulance to the hospital because parent contact information could not be obtained from him. The ambulance attendant had restrained the juvenile’s hands and feet because of his verbally combative behavior. Morrow struck the juvenile on the face with a closed fist as he passed by the teen who was restrained on the ambulance gurney.

A Westword story and a 9News video embedded by Westword add a few relevant details. The teen in question was so drunk he couldn’t even identify his parents. Obviously the party to which Morrow was sent was totally out of control and totally deserving of a police response. The teen “mouthed off” and, prior to being restrained, refused to obey lawful police orders (if we interpret the remarks of one of the party’s organizers who was interviewed by 9News). I understand why Morrow was frustrated with this drunk, belligerent, mouthy, law-breaking teen. Obviously that did not give Morrow any justification to punch the teen and break his jaw. Officers of the law have to be better than the lowlifes with whom they come into contact on a daily basis.

Obviously Morrow committed a crime and was justly prosecuted and convicted. I hope DAs go after every city cop and sheriff’s deputy who violates the rights of others.

But what about that five-year sentence? According to the Westsider story, Morrow was convicted “after a six-day jury trial in August.” He faced a maximum of sixteen years in prison.

These facts leave me with a number of questions. What sort of deal did the DA offer to Morrow, and why did he not take the deal? (Westsider reports that Morrow’s attorney claimed his client acted in self-defense, which seems ridiculous.) Who is this attorney who let his client go to prison for five years for punching a belligerent, drunk teen? Why did the judge impose such a harsh sentence?

Another important question: What’s going to happen to Morrow in prison? If I were a sheriff’s deputy, about the last place on earth I’d want to be is in prison. In what prison will Morrow spend time? Is it more of a “country club” sort of prison or more of a “don’t drop the soap” sort of prison? Will Morrow be assaulted, raped, or murdered in prison? Assuming his prison is as bad as I think most prisons are, it seems horribly unjust to sentence a guy guilty of a relatively minor-level assault to the very real risk of getting violently assaulted or worse. Will Morrow be protected from other criminals in prison who I suspect would be more than happy to bust up a cop?

To sum up: I’m glad Morrow was prosecuted and convicted for committing a crime. I’m not at all sure that the resulting prison sentence is just or that Morrow will be adequately protected from other criminals while in prison. I think the surrounding questions deserve deeper consideration.

An Open Letter to My Westminster Neighbors

Update: The police have made an arrest in the Jessica Ridgeway murder. Remember that due process matters, the evidence matters, and suspects are presumed innocent until proven guilty. Yet, the possibility that this may be the guy, and that the perpetrator might now be off the streets, is a huge relief. Thank you, law enforcement, for your diligence.

Dear Westminter Neighbors,

The murder of Jessica Ridgeway has horrified the residents of the city.

Although we read about horrific crimes daily in the paper, this crime struck close to home. I have taken my nephews to play at Witt Elementary, the very school that Jessica attended. My wife and I vote at that school. My wife has walked alone on the very trails where a man tried to abduct a woman earlier in the year—the same man police suspect is responsible for Jessica’s murder.

We all want the perpetrator caught.

But not all means are justified toward that end.

When a neighbor told me that police asked to search her house, without cause, merely as part of a fishing expedition, I was surprised. I was proud of her for respectfully declining.

When I saw a claim on Facebook that police were swabbing people for DNA, I was shocked. And yet, “Investigators have gathered DNA samples from about 500 people as they search for Jessica Ridgeway’s killer, 9Wants to Know has confirmed.”

I hate to state the obvious here, but if the police have 500 “suspects,” that means the police have no suspects.

Although it is a reasonable guess that the perpetrator of this heinous crime is still in the area, apparently the police have no idea where the perpetrator lives, whether he ever resided in the area, or whether he is still in the area.

Now, I suspect that the real value to the police in asking for DNA samples is simply in observing how people respond to the request. (I don’t know whether the police actually have DNA from the perpetrator collected from the crime scene; I hope so.) Honestly, I have a hard time thinking badly of police officers who resort to this tactic; the desperation to arrest the perpetrator is palpable.

However, I do urge my neighbors—including members of the Westminster Police Department—to remember their Fourth Amendment rights and responsibilities. This is an excellent time to review the language of that important amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

If the police ask to swab your cheek for a DNA sample, or to search your house without cause, the only appropriate answer by any self-respecting citizen is “no.”

We are citizens of a free republic, not subjects of a police state.

If the price of capturing a heinous murderer is to surrender our basic rights, then the price is too high.

However, as a practical matter, generally the police do far better to conduct a real criminal investigation rather than to go on fishing expeditions. Seriously, how many hours have the police wasted swabbing and testing (if the testing is even done, which I doubt) essentially random men in the area? Police officers could have spent that same time employing other, and likely more effective, means of investigation.

I am fully aware of the danger posed to the community by a callous and cowardly murderer—a man who brutalizes innocent and defenseless children—who may still be in the area. However, a far greater threat to our lives and safety would be the creation of a police state. America’s Founders hardly were ignorant of the evils of which men are capable. And yet they learned, by the examples of history as well as by their own hard experiences, that the police powers must be restricted. The Fourth Amendment is not some utopian scheme that prevents the police from doing their jobs; it is a needful recognition of our basic rights and of appropriate limits of police power.

In a previous article I used the term “civilian” to distinguish those who are not police. Someone appropriately corrected me. The police too are “civilians.” They are civil servants. Properly their job is to protect people’s rights, to act as peace officers. For the most part, based on what I’ve read in the media, I’ve been impressed by the way the police have approached this difficult and painful case. These police officers are our neighbors, too. We respect the rights-protecting work you do. I ask the police, as their neighbor and fellow citizen, that you stay focused on your mission of protecting individual rights, and not lose sight of the letter or the sprit of the Fourth Amendment.

If by some chance the perpetrator of this heinous crime reads this post, I say to you this: We are not your neighbor, we are your sworn enemy. We are watching, and we will do what we can to bring you down. Now, I cannot speak for the prosecutor, but I suspect that, if you voluntarily turn yourself in and throw yourself on the mercy of the court, you will have a better chance of avoiding the death penalty, as richly as you deserve it.

I do hope my neighbors remember that nearly everyone around us is a good, hard-working, family-loving person. It’s easy to be overwhelmed by the horror of a crime such as this one. But the goodness of humanity is revealed all around us, every day. Let’s remember that.

Sincerely,

Ari Armstrong

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DA Candidate Weir Shares Goals, Views of Drug Policy

Pete Weir, district attorney candidate for Colorado’s First Judicial district (Jefferson and Gilpin counties), discusses the balance between helping low-level offenders rehabilitate and cracking down on hardened criminals. He also discusses drug offenses and proposals to legalize marijuana.

Weir spoke September 27 at the Wheat Ridge United Neighborhoods Election Preview Forum.

Mental Illness and Violence

Clearly, some individuals are prone to committing acts of violence, whereas other individuals (in modern civilizations, the overwhelming majority of individuals) are not.

I see three important conditions that can predispose a person to committing an act of violence: mental illness, psychopathy, and dangerous ideology. (A fourth condition, while more important, is fairly obvious: some people, through mental habit and irresponsible choices, turn themselves into criminals.)

Mental Illness

The mentally ill person suffers paranoid delusions, hears demonic “voices” or the like, etc.

We know, for example, that the Aurora murderer was seeing a psychiatrist, and she was so disturbed by his behavior that she contacted the police “several weeks” prior to his murderous rampage. (Please note that mental illness does not automatically negate moral and legal culpability.)

Regarding the recent murders near Texas A&M, the murderer’s mother regarded her son as seriously mentally ill.

A psychological report about the Tucson murderer notes his mental illness.

Apparently, the mentally are are not getting the help they need.

Last year, the Denver Post published an article titled, “Mental health services in a fragile state in Colorado.”

Following the Aurora murders, the Denver Post published the following comments by Clayton Cramer:

In most states in 1960, involuntary commitment required only a preponderance of evidence that a mentally ill person would benefit from treatment. If you were exhibiting evidence of mental illness, there was a good chance that you would be hospitalized, perhaps for a few months, perhaps longer.

The primary reason was for your own safety, but a side effect was that the society as a whole was safer.

As stricter due-process standards for commitment became public policy in the 1970s, state mental hospitals first emptied, then closed. (We now have as many mental hospital beds in this country per capita as we did in 1850 — and we did not have enough then.)

Murder rates rose. Random acts of mass murder, usually committed by people with mental illness histories (and not always with guns) became depressingly common. . . .

There were hundreds of lesser-known mass murders. Over the last 40 years, there have also been tens of thousands of almost unknown individual murders committed by the deinstitutionalized mentally ill.

In a recent talk, Dave Kopel argued that the government should fund more mental health services.

I am very sympathetic with the idea that it’s important to get appropriate help for the mentally ill. I am also deeply concerned about the civil liberties issues involved.

As for methods of financing, I do not have a well-developed theory on the proper relationship of government to mental health services. On one hand, clearly there is a relationship between mental health and public safety. On the other hand, most of what constitutes mental health services has little if anything to do with public safety. To me, this is not a central issue in today’s context, though it would be an interesting research project for somebody.

Of more immediate concern is the problem of forcibly locking up people because of an alleged mental illness. Recently Cato published a series of articles on this very topic.

Most mentally ill people do not harm others. Basic principles of justice demand that we not punish people for crimes they might commit. Surely involuntary confinement constitutes the most serious form of coercion (short of torture and execution).

Yet providing treatment for the mentally ill need not involve involuntary confinement. It could involve proactively offering help to those who need it.

Those who decline institutionalization might reasonably be subject to additional police scrutiny, if they pose a threat to others. As to whether and how the freedom of the severely mentally ill to, for example, purchase drugs and firearms should be legally restricted, I have no well-developed opinion.

The huge problem, as usual, is, who watches the watchers? Who evaluates the evaluators? Once the government gets in the business of forcibly restricting the freedoms of the mentally ill, what’s to stop government agents from abusing this power?

Indeed, what’s to stop government agents from arbitrarily declaring any political enemy or pesky critic to be “mentally ill?”

Yes, I fear murderers—though, as I’ve suggested, many people have a wildly disproportionate fear of the risks of homicide relative to other causes of death. But I fear a tyrannical government much more than I fear murderers. By my evaluation of the future, I’m more likely to be unjustly confined or physically harmed by the government than I am to face somebody trying to kill me.

My tentative conclusion, then, is this. Offer help to the mentally ill, but forcibly limit the freedoms of the mentally ill only in the case of a person who, by word and deed, poses a clear and present danger to the safety of others. (For example, if somebody threatens to shoot up a school or a movie theater, that should definitely raise a red flag with law enforcement.)

Psychopathy

Michael Shermer argues that a small but nontrivial portion of the population consists of psychopaths, who are disproportionately likely to commit acts of violence.

Therefore, Shermer argues, the government should ban all semi-automatic “assault” rifles.

There are many problems with Shermer’s position.

The most important problem is that Shermer would violate the civil rights of millions of Americans in a futile effort to stop a tiny number of psychopaths.

Shermer has no idea what an “assault rifle” even is, he ignores other guns of comparable capacity (pump-action shotguns, semi-automatic handguns), he ignores the usefulness of guns in self-defense, and he ignores the ability of would-be criminals to obtain illegal guns. See my longer post on the issue of firearms.

Shermer also here ignores the other two factors that often lead to violence: mental illness (or, if we count psychopathy as a type of mental illness, other types of mental illness), and dangerous ideology.

The problem of dealing with psychopaths is comparable to that of dealing with the mentally ill: How can we justify restricting the freedoms of those who might commit a crime in the future? The film Minority Report was intended as a warning, not a road map.

Whatever is done regarding the mentally ill and the psychopathic, clearly it is wrong—outrageously wrong—to restrict the freedoms of those who are not mentally ill and not psychopathic, in order to try to prevent harm by members of those two groups.

Dangerous Ideology

Far and away the greatest cause of violence, historically and today, is dangerous ideology. That is the cause of all religious wars, the Nazi holocaust, the Communist holocaust, the fascist Japanese war machine, and the modern Islamist assaults that now plague many regions of the world.

The Columbine murders seem to have been motivated by a nihilist ideology, not by mental illness or psychopathy (formally defined).

Notice that Michael Shermer does not call for prior restraint of free speech, even though expression is what spreads these dangerous ideologies.

The way to defeat dangerous ideologies, qua ideologies, is to argue against them. The way to defeat those who, motivated by dangerous ideologies, pose a specific and demonstrable danger to others, is to take police action against them at the civilian level, and military action against them at the regional or national level.

I would also note in this context that the danger of homicidal ideologies is a good reason (but hardly the only reason) to support the right of the people to keep and bear arms.

Summary

The central issue here is protecting the innocent against those who would do them harm. Part of that means protecting the innocent from the mentally ill, the psychopathic, and the homicidally zealous. An equally important goal—or, arguably, a far more important goal—is protecting peaceable citizens from the abuses of government.

Articles on the Aurora Theater Murders

Here I collect the links to my notes pertaining to the Aurora theater murders, drawn both from this web site and from The Objective Standard.

Yesterday I visited the site of the memorial. See my Creative Commons photos hosted by Picasa. Needless to say, it is a solemn and sad place.

I also uploaded a short video of the memorial to YouTube under Creative Commons.

Incidentally, I was not able to capture clear images of possible signage at the theater, because the police have the area taped off far from the entrance. (Also, there was significant window glare, and my 10x zoom was not nearly adequate.) So I cannot offer definitive answers about that matter.

First, let us not lose sight of who’s at fault or what the perpetrator is: Evil.

In “Keeping Crime Risks in Perspective,” I argue that “it is counterproductive to obsess about crime or to make decisions based on irrational fears about crime.” I point out, “Of the 2.5 million deaths in 2010, around 118,000 were from unintentional injuries, 38,000 were by suicides, and 16,000 were by homicide.” Although we should recognize violent crime as horrific and try to stop it, we should also keep our risks in perspective.

In “Condemn Scapegoating in Aftermath of Atrocities,” I point out the foolishness and injustice of blaming legal abortion, the Batman movies, or the National Rifle Association for the murders.

A couple of my articles pertain to general matters of public safety:

* A Modest Proposal for Theater Security (That Would Actually Work)
I propose that theaters place the following sign prominently near the entrance: “Armed, off-duty police officers who carry their guns into this theater get unlimited complimentary movie entry and concessions. Please see management for details.”

* Civilian Responses to Active Attackers
I interview my father Linn about what regular citizens can do to effectively respond to active attackers.

Several of my posts focus on firearms:

* Thoughts on the Aurora Murders and Armed Citizens
I argue that gun restrictions generally have little impact on criminals, yet they make it harder for law-abiding citizens to defend themselves from criminals. I specifically address proposals regarding so-called “assault weapons” and the capacity of magazines.

* Guns, the Media, and Contributing Factors to the Aurora Murders
I discuss what it means for something to be a “contributing factor” to a crime, and what, if anything, the government should do about it.

* Notes About the Aurora Murders, Guns, and the Political Aftermath
I discuss gun magazines at greater length, and I address a few other details pertaining to firearms.

* Correcting the Denver Post’s Errors About Guns
I respond to a Denver Post editorial regarding so-called “high capacity magazines.” I also respond to a few other matters concerning the Post‘s coverage of the murders.

Finally, while it is a mistake to strongly tie the murders to the latest Batman film, obviously the two are historically linked. See my initial thoughts about the movie and my longer review of it, “The Dark Knight Rises—And Asks Us to Rise As Well.”

Guns, the Media, and Contributing Factors to the Aurora Murders

Christian FrenchWhile the moral guilt for the Aurora murders lies with the murderer himself, obviously with any crime it’s worth looking at contributing factors.

To take an example related to a different crime, consider that drunk driver Gary Sheats injured a woman and killed her child-to-be in an auto wreck after creating a “DUI history spanning three decades.” While obviously the moral fault is his, the fact that the justice system treated his previous drunk-driving crimes leniently increased the likelihood of him causing a disastrous wreck, and we might want to consider legislative reforms.

At the same time, we should avoid making unwarranted accusations or demonizing the innocent. Recently The Objective Standard published my article, “Condemn Scapegoating in Aftermath of Atrocities,” in which I point out the foolishness and injustice of blaming abortion, the Batman films, or the National Rifle Association for the Aurora murders. I will be disappointed, but not surprised, if others think of many new targets to scapegoat.

A contributing factor is anything with a causal bearing on the incident in question. The fact that Colorado legalized abortion obviously has no causal bearing on the Aurora murderers, so abortion is not a contributing factor. The fact that somebody sold alcoholic beverages to Sheats clearly is a contributing factor to his crime; it’s impossible to drive drunk without consuming alcohol.

Of all the factors that contribute to crimes, we knowingly and rationally accept some of them, whereas we rationally seek to mitigate or eliminate others.

First consider a couple of obvious things that we rationally accept, though they are contributing factors to crimes.

A contributing factor to drunk driving is driving itself, or, to narrow the example, driving for entertainment-related purposes (such as driving to a movie theater). Yet no one seriously proposes that we stop driving for purposes of entertainment, or that the government limit driving to only certain, politically approved purposes. Obviously we accept all the risks of driving as well worth the rewards.

The most obvious contributing factor to mass murders is the fact that people often meet in public. They meet in theaters, businesses, churches, restaurants, sporting events, concerts, and so on. Yet no one seriously proposes that we stop meeting in public, or that the government restrict public meetings. Obviously, the benefits of mass public meetings far overshadow the risks.

Now consider a contributing factor to drunk driving that Americans have actually tried to outlaw in the past.

Despite the fact that the sale of alcoholic beverages is a contributing factor to drunk-driving crimes, some of which kill the innocent, we’d be foolish to outlaw the sale of alcoholic beverages in order to try to stop such crimes. Americans tried that before (for broader reasons), and the resulting ignoble disaster was Prohibition.

Many people consume alcoholic beverages responsibly, and such beverages are quite important to many people’s lives; consider how enthusiastic some people are about wine, beer, Scotch, and so on. Prohibiting alcoholic beverages would constitute a large-scale violation of people’s rights to enjoy liberty, control their bodies and their property, trade freely, and pursue their happiness.

Prohibiting alcohol is not necessary or even very useful for curbing alcohol-related crimes. Regarding drunk driving, the police can and should pull over and, where appropriate, arrest dangerous drivers. Of course, this cannot prevent all drunk-driving crimes, but it can prevent many of them.

Another problem with the prohibition of alcohol is that it cannot possibly eliminate its production and sale. Millions of Americans (myself included) would manufacture or trade alcoholic beverages illegally. Prohibition would turn loose the police state on those millions of Americans, thereby violating their rights, and radically expand the violent black market. My guess is that the number of deaths and injuries resulting from prohibition would exceed those associated with drunk driving.

The upshot of these considerations is that we rationally accept the sale of alcoholic beverages, though it is a contributing factor to drunk driving.

Consider a broader example: the Fourth Amendment. No doubt certain crimes could be prevented if the police had the power to randomly search houses, cars, and bodily cavities at any police officer’s discretion. But we should never allow such a thing, because it would turn America into a police state and turn the police into the primary violators of rights. Thus, we rationally embrace civil rights and restraints on the police, even though such protections certainly contribute to the perpetration of some crimes.

Obviously the proper focus is on those contributing factors that we rationally should seek to mitigate or eliminate. We should remember that living entails risks. The only way to eliminate all risks in your life is to stop living. It is important, then, to figure out which risks we reasonably can mitigate or eliminate, and which we cannot, and then to mitigate risks appropriately. With that background, let us proceed.

The Government and Risk Management

The surest path to the destruction of a prosperous and free society is for its members to demand “there ought to be a law” for every real or imagined evil.

The proper purpose of government is not to micromanage our lives, not to decide for us what risks we may accept, not to enact controls based on “cost-benefit” considerations that ignore the nature of government.

The proper purpose of government is to protect individual rights. When government accomplishes that, it mitigates the risk of crime and enables us, as individuals, to make our own decisions about our lives.

If you want to invite lung cancer by smoking, you should be perfectly free to do so (consistent with property rights). If you wish to die young as a drunk, that is your right.

But if you try to criminally harm others or their property, then the government should seek to stop you.

Obviously the government cannot stop all crime. That is why the government properly recognizes and protects the fundamental human right of self-defense. And that is why we, as individuals, take numerous precautions to try to protect ourselves from crime; for example, we lock our doors and refrain from walking down dark alleys at night in dangerous neighborhoods.

As the rivers of blood flowing through human history illustrate, governments are not metaphysically restricted to the mitigation of harms; very often governments commit horrific atrocities. So it is obviously a foolish mistake to look on government as an agent capable only of mitigating risks; we must look on government as an agent capable of imposing overwhelming risks to our lives, our liberties, and our safety. It is the principle of individual rights that properly defines the ways in which government should act to mitigate risks, and the ways in which we as citizens should act to mitigate the risks of abusive government.

Thus, when seeking to mitigate risks in our lives, we must ask not only which risks we rationally can mitigate, but how those risks should properly be mitigated. Specifically, we must establish whether a particular risk should be managed by private individuals or by government agents.

The Media and the Publicity of Criminals

One of the “reasons” the Aurora murderer chose to attack people at the opening of one of the most popular movies in history is obvious. He knew doing so would cause his name and photograph to be plastered across practically every news-related web page in the world for months on end. He wanted to achieve global infamy, and he did.

Round-the-clock media coverage of mass murders give some murderers precisely what they want—publicity and attention.

Don Lindley, a former Denver police officer who teaches as Regis University, told the Denver Post: “The media [have] an awful lot to do with this. A lot of these offenders are driven by the exposure they will get. That’s what they want, in addition to payback for some hurt they think they’ve suffered.”

In an article for USA Today, Dave Kopel urges, “Don’t turn Aurora killer into [a] celebrity.” J. J. Gould writes a similar piece for The Atlantic.

That sensationalist media coverage of mass murders encourages more mass murders is obvious.

Hopefully it is equally obvious that it is not a problem for the government to try to solve, for that would violate rights of free speech, a pillar of a free society.

But journalists can take care how they report a story, and we as consumers of media can pay attention to what we promote and encourage.

Guns

The fact that the Aurora murderer was able to obtain firearms obviously allowed him to use those guns to kill and injure others.

It does not therefore follow that the government should ban certain guns or all guns.

As I’ve written, people own and use guns for self-defense, and doing so is their right. Moreover, as philosopher Michael Huemer argues, people benefit from gun ownership in other ways, as from their value in recreation.

Generally, gun restrictions impose harms on the law-abiding—especially by diminishing people’s ability to defend themselves from criminals—without doing much if anything to impede criminals. Everyone knows that it’s relatively easy to obtain every sort of illegal drug, and the same would be true of guns under a regime of gun prohibition. Moreover, murderers can cause mayhem in other ways, as by setting off bombs, lighting fires, and plowing vehicles into crowds of people.

The idea that attempting to control the gun ownership of millions of law-abiding Americans will somehow significantly cut crime is ludicrous.

What we need instead are laws and enforcement actions that target criminal activities and threats of such, and that leave peaceable citizens unmolested.

Other Contributing Factors

We know the Aurora murderer was seeing a psychiatrist. Was he taking prescribed drugs for emotional problems? Did he in fact send a package to his psychiatrist describing his criminals plans before he carried them out? These are important matters to investigate.

What about violent video games and movies? I have seen a video game in which the user plays a criminal who shoots and maims others and steals their belongings—that’s the point of the game. Such a “game” is disgusting, and it should not be sold. Nor should it be censored.

Many violent video games and movies, on the other hand, portray good people fighting evil people. Not all violence means the same thing. There is a profound moral difference between initiatory violence that violates the rights of others, and defensive violence.

Only a tiny fraction of those who play violent video games or watch violent movies commit acts of violence, and if a causal connection exists at all it is extremely weak. People have free will! A basic principle of a free society is that we do not punish or restrain the innocent on account of the guilty.

No doubt contributing factors to the Aurora murders can and will be discussed at mind-numbing length. Let’s remember some important points. The moral fault lies with the murderer. Scapegoating is wrong and counterproductive. We knowingly and rationally accept many things that contribute to crimes because we benefit from those things. Finally, and perhaps most importantly, just because something contributes to crime, doesn’t mean the government should ban it. If we wish to mitigate our risks of suffering harm, the most important thing we can do is restrain government to its purpose of protecting individual rights.

Related:

Creative Commons Image: Aalborg Stift

Evil

Though the last thing we needed was another reminder, yes, some people are capable of committing horrific evil.

But we are Colorado. We will reach out to our neighbors. We will become a stronger community. We will build our lives and our values and oppose those who hate and destroy human values.

Sorrow quickly gave way to anger as I read the news accounts this morning. The new Batman movie is a global event and, because of that, a global discussion and shared experience. And the killer targeted that event specifically as an intentionally symbolic act of pure nihilism, pure destruction for destruction’s sake.

Undoubtedly we will now hear endless speculation about motives and influences. But, whatever the pretext, the killer chose to commit these atrocities against innocent and defenseless victims. The “reasons” why make no difference; there can be no reasons why, ultimately, except that he chose depravity.

We choose to live.

“Inviolate” Right to Jury Trials Undermined by High Plea Rate

Colorado’s Constitution states, “The right of trial by jury shall remain inviolate in criminal cases” (Article II, Section 23).

How does that square with the fact that 97.6 percent of all Colorado felony convictions result from plea bargains, not jury trials?

Today’s Colorado Springs Gazette features my article on the subject. My thesis is this: “By threatening the accused with drastically more severe potential penalties if they exercise their right to a trial by jury, prosecutors undermine that right and sometimes compel the innocent to plead guilty.”

The statistics on which my article was based come from a document requested by the Independence Institute under the Colorado Open Records Act. I’ve put the entire Excel document on my web page.

I summarize some of the major findings as follows:

Colorado criminal statistics for the years 2006 through 2011 show that Colorado prosecutors rely on plea bargains to reach convictions an overwhelming 97.6 percent of the time, according to documents obtained by the Independence Institute through a Colorado Open Records Act request.

According to those documents, only 4,241 felony convictions resulted from a jury trial, or 2.4 percent of the total of 175,015 felony convictions. A total of 6,101 felony cases went to trial, so the conviction rate at trial was 70 percent.

Drug cases accounted for 54,321 felony filings (23 percent) of 238,987 total filings. In terms of convictions, drug cases accounted for 43,034 (25 percent) of the total. Of the 790 drug cases that went to trial, 611 resulted in a conviction, meaning that only 1.4 percent of drug convictions resulted from a jury trial.

In the article, I cite an ABC News report as well as a New York Times article.

My hope is that the report will spur other journalists and researchers to examine the figures for previous years in Colorado as well as for other states, and then to dig deeper into long-term trends and modern practices.

Image: Creative Commons by Andrew Bardwell

Nanny Statist Sullivan Arrested for Consensual Crimes

Pat Sullivan, who as Arapahoe County Sheriff from 1984 to 2002 busted drug dealers and prostitutes, himself was recently arrested for attempting to trade meth for sex.

As CBS summarizes, ”Today, he’s accused of offering methamphetamine in exchange for sex from a male acquaintance, and he’s locked up in the jail that bears his name, the Patrick Sullivan Jr. Detention Facility.”

Sullivan was a hard-core drug warrior. CBS continues, “In 2007 and 2008, Sullivan actively participated in state and local meth task forces, created to help the state deal with the drug problem.”

I mentioned the story to Jacob Sullum over at Reason, and Sullum looked up more details on Sullivan’s drug-warrior past. Sullum reviews a Denver Post story about how current drug warriors set up Sullivan with paid informants and surveillance. (As I mentioned on Twitter, ordinarily those who surveil consenting adults trading drugs for sex are justly regarded as perverted stalkers.) Sullum writes:

This sort of sleazy setup is an egregious waste of law enforcement resources, and it is manifestly unjust to threaten someone with six years in prison for attempting a peaceful, entirely consensual transaction with another adult. But that is par for the course in the war on drugs, a cause Sullivan enthusiastically served for many years. He led opposition to a 1998 medical marijuana initiative and calledasset forfeiture “an incredible tool” in the battle againt meth.

Thankfully, because of asset-forfeiture reforms that I helped to promote, the cops are less likely to steal Sullivan’s house or car over the alleged drugs.

But Sullivan was not merely a drug warrior, he also enthusiastically busted people for prostitution. Consider this February 6, 1990 article by theDenver Post:

Gerald Perry of the Denver Broncos turned himself in yesterday to begin serving a 15-day jail sentence for soliciting a prostitute. …

Sheriff Pat Sullivan said the offense that Perry was convicted of occurred in the portion of Aurora that is in Adams County. Perry was sentenced by an Aurora municipal judge to the Arapahoe County Jail, but in the order written by the court clerk, the Adams County Jail was specified….

He said the Broncos left tackle will be confined in the jail’s 12-cell medical unit except for meals and recreation periods.

“Someone of his stature and reputation would be disruptive” if placed in the facility’s general population, said Sullivan. …

The sheriff said that with time off for good behavior, Perry could walk out of the jail Feb. 14. “He gets six days of good time, as long as he’s good,” Sullivan said.

Reading that in light of Sullivan’s own recent arrest is downright creepy.

But Sullivan’s Nanny Statism did not extend only to drugs and prostitution, with which he was allegedly involved, but also to gambling. Consider this March 24, 1990 article by John Sanko in the Rocky Mountain News:

Gov. Roy Romer says he doesn’t want Colorado cities turned into miniature versions of Las Vegas or Atlantic City, where casino gambling is the name of the game. …

“I don’t think this is healthy, I don’t think it’s wise and I don’t think it’s needed,” Romer said of plans to bring casino-style gambling to eight small towns and allow electronic poker in others.

“It would put us on a slippery slope that we would not recover from and we would become a full-scale gambling state.”

Lawmakers who support the gambling plan scoffed, but Romer got no argument from Fort Collins District Attorney Stuart VanMeveren.

“It brings in prostitution , it brings in a lot of transients, it brings in a lot of other social problems,” VanMeveren said.

Speaking for the state’s law officers, Arapahoe County Sheriff Pat Sullivan said serious problems cropped up in the past just with fund-raising “casino nights” for charities.

We wouldn’t want low-life drug-dealing prostitutes doing something like raising money for charity through casino nights!

So as sheriff Sullivan fought drug use, prostitution, and gambling — the Nanny State trifecta — and he also advocated controls on civilian gun ownership. In an email today, Dudley Brown of Rocky Mountain Gun Owners wrote:

One of the reasons I am so opposed to the government being involved in your Second Amendment rights is that it takes the power away from you and puts it in their hands.

In the hands of people like the former Republican Sheriff of Arapahoe County, Patrick Sullivan.

Sullivan made a habit of helping out groups like the Brady Campaign when it came to preventing law-abiding citizens from exercising their Second Amendment rights.

He even testified before Congress for Handgun Control in favor of the Brady bill, and in the State Capitol against any concealed carry reform.

During his 18-year tenure as Arapahoe County Sheriff, Sullivan was a poster boy for big government…

But not only was Sullivan a major Nanny Statist, he was also a tax-and-spender. Vincent Carroll reviews for the Denver Post:

[Sullivan] agreed to participate in a political advertisement in 1992 against the Taxpayer’s Bill of Rights in which he pointed to a section of the amendment that he said “cuts cops and puts criminals back on the street.”

That claim was a lurid falsehood — which voters apparently sensed because they approved TABOR that year by a comfortable margin.

Given how little Sullivan cared for others’ freedoms, it’s a little hard to feel too sorry for him now that he has been arrested for consensual crimes.

And yet we must also remember all the violence Sullivan stopped as a peace officer, and all the innocent people he helped protect from harm.

Lovers of liberty must point out the basic injustice of Sullivan’s arrest, even though it’s the sort of police action Sullivan himself once endorsed.

Time to Reform Jury Duty?

Surprisingly, some people actually appear not to want to serve on a jury. I would like to serve, but I can’t manage to get seated on a jury. I’ve been called for jury duty twice. The first time I was dismissed before I even saw the inside of a courtroom. Today I traveled to Jefferson County’s “Taj Mahal,” where twenty-five of us got released by the judge because, in his words, “We’re not actually having a jury trial today” in the case for which I was called.

My experiences illustrate why jury duty in Colorado should be reformed. After I review some modest reforms, I’ll consider some broader possible changes.

I awoke at the 6:30 in the morning and left my house a few minutes after seven. After missing the Colfax exit off I-70, I circled around and made it into the building at quarter till eight. Check-in was uneventful, though I thought it quite ridiculous that I had to hand over my wallet at security. After we potential jurors waiting around in uncomfortable seats (the problem was low, flexible backs), a judge and then a staffer explained the general process, then showed a video with Ed Sardella further explaining jury duty. The staffer mentioned that, of the several cases scheduled for the day, it was possible that some or all of them could reach a plea agreement.

By 9:50, we were still sitting around. (I read from Sam Harris’s latest book on my iTouch.) Finally at 10:22 a different staffer called my name along with 24 others and asked us to move into the hall. Somebody expressed surprise that it took 25 of us to fill a six-person jury. Judge Bradley Burback was pleasant enough, and he expressed regret that the prosecutor had not yet arrived. Finally a young fellow (I assume from the prosecutor’s office) entered the court room and asked to speak with the judge, who soon assumed an expression that seemed to indicate, “You’ve got to be kidding me.” After telling us there wasn’t going to be any jury trial in this case, he released us at 10:35. So figure the entire event took around four hours of my day, plus gas and vehicle wear.

That’s a price I would gladly bear — if it actually made any difference. The problem is that my time was completely wasted, as was the time of most of those called for jury duty today.

My suggestions for modest reforms are as follows:

First, reach plea agreements the day before trial, and reduce the number of jurors called in accordingly.

Second, call us in no earlier than needed. I see no point of sitting around for two hours. Why not set the check-in time to 9:30 or ten? And make the video available online.

Third, only call in the number of jurors actually needed. (I realize that to some extent this is a guessing game, but the policy now seems to be to call in as many potential jurors as even conceivably needed, then add a large cushion. I’d be interested to know what fraction of those called in actually end up sitting on a jury.)

Fourth, limit the number of dismissals to a reasonable number. I recognize that we don’t want people on a jury who personally know a party in the case, nor do we want KKK members or the like. But those sorts of dismissals constitute a tiny portion of the jury pool. The fact that lawyers can pick and choose the most manipulable jurors from a large pool has led journalist Vin Suprynowicz to define “voir dire” as jury stacking. You simply don’t need 25 people to fill a six-member jury.

Now for my more far-reaching reforms. The first has to do with compensation. If you work for somebody else, Colorado law forces the employer to pay their employee $50 per day for up to three days. (See Statute 13-71-126. Actually, nobody at the court house bothered to mention the detail about the $50 limit.) If you work for yourself, a staffer informed us, the court will provide compensation only in extreme circumstances, as arbitrarily decided by a judge. That’s totally unfair. If jury duty is a responsibility of each individual citizen, then why should employers have to pick up the costs? One of the staffers actually made a point to say that, if potential jurors were released early, the court would not contact their employers, so jurors were welcome to take the rest of the day off. I don’t think it’s the court’s businesses to interfere with employment contracts, perhaps except to mandate unpenalized time off for jury duty. (I don’t even think that’s needed, because any employer who hassled an employee about jury duty would get picketed, and I’d participate.)

It does make sense to me, however, to compensate people for hardship, such as for otherwise-unnecessary child care or mileage for the unemployed. Jury duty shouldn’t put a person in financial hardship.

But I don’t think the state has any business compensating jurors for their time or forcing employers to do so. If it’s a fundamental responsibility of citizenship, then the individual juror should bear those costs. I would be open to arguments for compensation, say, if a trial extends beyond a week or so, given that a tiny fraction of trials can grow exceedingly long. Right now, under 13-71-129, the state compensates jurors (a measly) $50 per day for every day of service after the third day.

I save my most far-reaching and tentative reform for last. Giving the state the power to force people to perform any duty makes me extremely nervous. Does involuntary servitude become morally permissible if restricted to jury duty for a day or a trial? (I notice that Congressman Mike Coffman is trying to end the military draft, an admirable aim.)

Here’s what the statutes say about enforcement: “13-71-123. Enforcement of juror duties. The court shall take whatever action may be appropriate to enforce the provisions of this article. Upon a finding that a juror will not appear to perform or complete juror service or in response to the court’s order, the court may take such action as is likely to compel the juror to appear.”

The key word there is “compel.” Obviously the statute is quite broad.

Yet juries constitute a key protection of our basic liberties. The Bill of Rights guarantees “the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.” True, sometimes juries can be capricious, biased, and emotional. But, on the whole, I’d far rather trust my liberties to a jury of my peers rather than to an appointed representative of the state. Locking somebody in a cage constitutes an extreme restriction of that person’s basic freedom of action, and that should be done only after a person is legally convicted by a jury.

So what is the proper way to balance these two apparently competing values? I tentatively propose that people be allowed to ditch jury duty, in writing, and thereby surrender all rights to trial by jury in the future. Under this policy, everyone retains the right to trial by jury, but that right entails participation in the jury system. If you can’t be bothered to serve on a jury, fine: but don’t expect the rest of us to sit on your jury should you stand accused. Of course, for this to work, a person would have to be offered a legitimate opportunity to serve on a jury and then officially decline the summons, having been notified of the consequences.

But this proposal makes me nervous. It could be abused; if standards slipped a jury summons lost in the mail might be construed as nonperformance. Moreover, somebody could claim not to have understood the consequences.

Another possibility is to allow people to buy their way out of jury duty, say with a $100 fine. But this would skew the jury pool to lower-income participants, which disrupts the ideal of a random cross-section of the defendant’s community.

I do not expect the mandated jury service to be altered anytime soon, nor is the matter pressing given all the other obvious and severe violations of our rights. It is an interesting issue in that it involves an unusual tension between liberties and mandates. Even absent reform, I can’t imagine why anyone would try to avoid jury service. My only irritation is that I have not actually been able to serve on a jury.

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Amy commented May 22, 2011 at 12:14 PM
The idea of being able to opt out and then relinquish your right to have a jury in the future is an interesting one. And I agree that if the option of a fine was given, a fine that was too low would mean only the lowest income people would sit on a jury. More to think about…

Susan commented December 16, 2011 at 9:59 PM
I work for a dentist he does not pay for time lost in jury duty;also he can not schedule patients w/ me if he does not know till the night before that I will be there, so I lose 2 months pay(lenght of jury duty in KY). When I asked judge to be excused,he said he was “tired of financial hardship claims, he needed jurors”,(by the way, one of the financial hardship excuses he did give was to one of my patients who is a multimillionaire farmer, it is winter here here in Ky, not much for the farmers to do. So yes, having jurors is important, but having to borrow money to pay my monthly bills because of the nature of my job stinks. By the way,I am not poor but definately not rich, I work hard but in todays economy not many people can go 2 months without thier usual salary. Slavery was outlawed by the 13 amendment yet the court can hold you in servitude,at the wimsy of a judge.