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The 9th Circuit Upholds the Freedom to Drink a Beer

Jacob Sullum | December 19, 2007, 12:49pm

The U.S. Court of Appeals for the 9th Circuit recently rejected a probation requirement that would have forced Marcus Betts, a former TransUnion employee who pleaded guilty to fixing people's bad credit reports in exchange for bribes, to abstain from alcohol for three years. The court deemed the requirement an abuse of discretion, noting that it was not reasonably related to a legitimate criminal justice goal, as required by federal law:

No one suggests that alcohol played any role in Betts's crime. And there was no evidence that Betts had any past problems with alcohol. Under these circumstances, we think it impossible to say that the condition imposed bears a reasonable relationship to rehabilitating the offender, protecting the public, or providing adequate deterrence.

In so concluding, we join the other two circuits to have faced this precise question....

The statute permits a discretionary supervised release condition to be imposed only "to the extent that such condition...involves no greater deprivation of liberty than is reasonably necessary for the purposes set forth" in sections 3553(a)(2)(B), (C), and (D). Moderate consumption of alcohol does not rise to the dignity of our sacred liberties, such as freedom of speech, but the freedom to drink a beer while sitting in a recliner and watching a football game is nevertheless a liberty people have, and it is probably exercised by more people than the liberty to publish a political opinion. Liberties can be taken away during supervised release to deter crime, protect the public, and provide correctional treatment, but that is not why it was taken away in this case.

A PDF of the ruling is available here.

[Thanks to Eric Sterling, by way of Allen St. Pierre]

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Comments to "The 9th Circuit Upholds the Freedom to Drink a Beer":

gaijin | December 19, 2007, 12:54pm | #

...the freedom to drink a beer while sitting in a recliner and watching a football game is nevertheless a liberty people have...

I'll drink to that!

Brandybuck | December 19, 2007, 12:56pm | #

Life, Liberty, and the Pursuit of a Really Good Belgian Import That Hasn't Been Sitting Under Flourescent Lighting Too Long...

joe | December 19, 2007, 12:59pm | #

I like it. Freedom defined by actually looking at the experience of people living their lives.

gaijin | December 19, 2007, 1:00pm | #

...Liberties can be taken away during supervised release to deter crime, protect the public, and provide correctional treatment...

Of course, this would mean that the only obvious path for those who know whats best for the rest of us is to convert liberties into crimes through legislation.

Episiarch | December 19, 2007, 1:02pm | #

This is interesting, because I just encountered something similar from a co-worker.

His daughter was caught, at 20 years of age, purchasing some alcohol (this is in CT). She was not driving at the time, nor had she consumed any alcohol.

As part of her punishment, her license was revoked for 6 months. Now WTF does that have to do with procuring liquor as a "minor"?

One could make the very tenuous argument that she might drink the illegally obtained alcohol and then drive, but she could do that with any alcohol--so by that rationale, no one under 21 should be allowed to drive.

This is troubling because the state continues to widen its punishment of people. Not only does taking away her license have nothing to do with the extremely minor crime she committed, but the taking away of a license is an extreme hardship. They wouldn't even give her a "drive to work and back" exemption.

Seriously, besides house arrest or imprisonment, what is more of a hardship (for someone who does not live in a metropolitan area with public transit) that denying them the ability to drive? If you don't have family and friends who can help, how do you work, buy your food, go to the doctor, etc?

Yet judges seem more and more willing to do this.

Pro Libertate | December 19, 2007, 1:06pm | #

Man, now there's a guy who needs to star in a beer commercial.

gaijin | December 19, 2007, 1:06pm | #

Episiarch...I am with you on the license thing...the only question, though, is 'what should the penalty be for the offense?'

I suspect that the license thing is an easy to administer punishment because it:
1. Is painful
2. Is not a protected right

Ska | December 19, 2007, 1:07pm | #

the freedom to drink a beer while sitting in a recliner and watching a football game is nevertheless a liberty people have, and it is probably exercised by more people than the liberty to publish a political opinion.

Probably??

RE:Episiarch's story, you can see the tremendous influence of MADD - just buying alcohol illegally prompts a revocation of your driver's license, and it is assumed the two are related.

Elemenope | December 19, 2007, 1:07pm | #

...so by that rationale, no one under 21 should be allowed to drive.

For the love of all holiness, stop giving them ideas!!!

R C Dean | December 19, 2007, 1:07pm | #

No one suggests that alcohol played any role in Betts's crime.

So how the fuck did this wind up in his probation?

Ska | December 19, 2007, 1:09pm | #

To gaijin - how about a $500 fine and 20 hours community service? That's not enough for this case?

gaijin | December 19, 2007, 1:14pm | #

Ska-

oh that works for me...don't get me wrong, I think the idea of purchasing alcohol underage shouldn't be penalized...the consumption should be...I was just trying to ask the question that I suspect the 'punish and enslave' crowd would.

reinmoose | December 19, 2007, 1:16pm | #

Episiarch -
I mentioned the same thing about revoking drivers licenses the other day on the thread where the guy got his license revoked for walking home drunk. It's outrageous and completely unrelated to the crime.

David | December 19, 2007, 1:26pm | #

I was just trying to ask the question that I suspect the 'punish and enslave' crowd would.

Would that be same as the "everything not defined as a right is a revocable privilege" crowd?

Kolohe | December 19, 2007, 1:32pm | #

Moderate consumption of alcohol does not rise to the dignity of our sacred liberties, such as freedom of speech,

This premise is very wrong. However, because this fundemental error is widespread among the body politic, the march will continue toward the nanny state.

TrickyVic | December 19, 2007, 1:35pm | #

David,

Usually that crowd defines everything as a privilege, such as your 5th Amendment privilege. I don't think they believe anything is a right.

TrickyVic | December 19, 2007, 1:36pm | #

Well, execpt for their right to revoke your privilege.

Kolohe | December 19, 2007, 1:42pm | #

I like it. Freedom defined by actually looking at the experience of people living their lives.

I don't like it. Freedom is inate, not consequential ("endowed by the Creator" and all that jazz) To start making policies otherwise is one the the freeway onramps to serfdom. ("what do illiterate peasants need with a printing press, anyways?")

zig zag man | December 19, 2007, 1:50pm | #

IIRC here in Colorado, if you are on probation for any reason, regardless of the infraction, you are subjected to random alcohol and drug screenings and you have to pay for them out of your own pocket.

TrickyVic | December 19, 2007, 1:54pm | #

Freedom. Endowed by the creator, administrated by government.

New World Dan | December 19, 2007, 2:01pm | #

R C Dean:

RTFD. It states that the judge was, essentially, pissed off at the public defender's office. The public defender's office has a blanket policy of advising their clients to remain quiet on the subject of alcohol use. The judge doesn't like this and so told the defender's office that he's going to assume the worst from their clients until that policy changes.

prolefeed | December 19, 2007, 2:02pm | #

I like it. Freedom defined by actually looking at the experience of people living their lives.

Of course you like it, joe, because then all "rights" become subjective and can be taken away at will -- "hey, it's not like anyone here was using their guns all that much, so why not confiscate them for the public good?"

I greatly prefer freedom defined as "everything you do, unless narrowly defined otherwise in a law passed solely to protect the innocent from the depredations of others."

zig zag man | December 19, 2007, 2:25pm | #

"Liberties can be taken away during supervised release to deter crime, protect the public, and provide correctional treatment, but that is not why it was taken away in this case."

I suspect that all probation practices, such as drug and alcohol screening are said (by the prohibitionistas) to be designed for the above reasons.

However, IMHO the reason a person on probation can't have a beer or smoke a joint in the privacy of your their home is to rub their nose in the fact that the state can pretty much take what it wants from you and you can't do anything about it.

It's additional punishment over and above the original sentence and it is designed to make them fail so the state can lock them up.

joe | December 19, 2007, 2:27pm | #

That's it, exactly. I like it when the government steers clear of intruding on the freedom of people to engage in the behaviors that they actually engage in, as part of a plot to expand government's ability to take away people's rights.

Elemenope | December 19, 2007, 2:28pm | #

RTFD. It states that the judge was, essentially, pissed off at the public defender's office. The public defender's office has a blanket policy of advising their clients to remain quiet on the subject of alcohol use. The judge doesn't like this and so told the defender's office that he's going to assume the worst from their clients until that policy changes.

Wow, so the judge has a beef with the PDs for doing their job and advising their clients well and so he's gonna take out his frustration on their clients on sentencing?! That's beyond obnoxious. That's, um, impeachable.

joe | December 19, 2007, 2:28pm | #

I greatly prefer freedom defined as "everything you do, unless narrowly defined otherwise in a law passed solely to protect the innocent from the depredations of others."

BTW, by wring "everything you do," you just agreed with me.

Ha ha.

Episiarch | December 19, 2007, 2:38pm | #

I think what all this indicates is the growing attitude of judges that they have the right to sentence you to anything they want. Some judges are pretty decent people, but some think they are your Lord and master.

Taktix® | December 19, 2007, 3:04pm | #

Twenty-eighth!

crimethink | December 19, 2007, 3:24pm | #

the freedom to drink a beer while sitting in a recliner and watching a football game is nevertheless a liberty people have, and it is probably exercised by more people than the liberty to publish a political opinion.

While I agree with the court's reasoning here, I think this is a sad statement about our society. Not because most people are drinking and watching futbol, but because most people don't give a damn about politics, and are content to watch the more sacred liberties slip away so long as they can enjoy their vices.

robc | December 19, 2007, 3:35pm | #

crimethink,

Or, is it people choose to engage in their sacred liberties because they know that in the grand scheme of things, politics isnt important.

crimethink | December 19, 2007, 3:59pm | #

robc,

Unfortunately, the price of liberty is indeed eternal vigilance. John Adams wrote that he studied politics and war so that his descendants could study mathematics and poetry, and I agree that the sooner politics becomes unimportant, the better.

But right now is most definitely not that time.

TrickyVic | December 19, 2007, 4:13pm | #

"""Not because most people are drinking and watching futbol, but because most people don't give a damn about politics, and are content to watch the more sacred liberties slip away so long as they can enjoy their vices."""

I think that's part of the problem with Congress. They are not concerned about sacred liberties as long as they can enjoy their vice of spending our money.

R C Dean | December 19, 2007, 5:35pm | #

The public defender's office has a blanket policy of advising their clients to remain quiet on the subject of alcohol use. The judge doesn't like this and so told the defender's office that he's going to assume the worst from their clients until that policy changes.

I'm struggling with how "assume the worst" squares up with "presumed innocent until proven guilty beyond a reasonable doubt." A little help here?

crimethink | December 19, 2007, 5:39pm | #

As scary as the executive and legislative branches can be, the completely unchecked authority possessed by the judiciary scares me the most.

Brian Courts | December 19, 2007, 7:10pm | #

As scary as the executive and legislative branches can be, the completely unchecked authority possessed by the judiciary scares me the most.

First, how unchecked is it really? I suspect there are a few more checks on the judiciary than you're acknowledging. But a more pragmatic point - of all the threats to freedom imposed by the government in 200-plus years, the fact is the vast majority have come from the legislative and executive branches. I think we have plenty to fear from the mob-mentality of pure majoritarianism which is more easily expressed, or catered to, through the first two branches.

Mad Max | December 19, 2007, 9:47pm | #

My problem with the sentence is that it was designed to punish the offender for the mistakes of his lawyer. That’s my only problem with it.

To keep some perspective, let’s look at what Betts pleaded guilty to doing:

“Betts falsified 654 credit histories, generating around a million dollars in losses to lenders who got stuck with the bad risks. . . . Betts took bribes to use his employment duties in a way that would distort the credit reports his employer provided, with obvious potential harm to lenders who relied on the reports.”

It would be harder to imagine a clearer violation of the Great Sacred NIOFF Principle. This guy helped people steal things of value by false pretenses. He should be grateful they let him stay out of prison.

Jim in Erie, CO | December 19, 2007, 11:14pm | #

While I agree that the punishment does not specifically fit the crime, that is there being no evidence that the consumption of alcohol had anything to do with his criminal activity, it still seems an appropriate punishment to me.
And, as I always say, if you don't like the potential punishment, don't do the crime.
His inability to drink a brew while watching a football game is hardly hard time. If he feels like he is suffering a bit, well, isn't that what the punishment part is supposed to be, inconvenient?
As for the silly argument that possession of alcohol by a minor is different then consumption, get real!
No underage kid buys alcohol just to have it. They intend to consume it with or without friends.

jkii | December 20, 2007, 2:58am | #

Jim in Erie, CO:
And, as I always say, if you don't like the potential punishment, don't do the crime.

And keep your eye on the sparrow:

http://www.youtube.com/watch?v=mrz_qowIIbQ