Reason Magazine - Staff > Radley Balko > Hit & Run Posts

The Long Arm of Liability

rbalko@reason.com (Radley Balko) — Tue, 02 Dec 2008 11:04:00 EST

Massachusetts' highest court has ruled that a livery service is liable for a drunk driving fatality caused by one of its customers—after he had been dropped off. Seems like a helluva' stretch to get to negligence, here.

The Supreme Judicial Court found that Ultimate Livery Service Inc. of Boston and its driver, Richard Broderick, were negligent in a 2001 accident that killed an off-duty Boston police officer and left several other people with serious injuries.
The court said Broderick should not have dropped off a drunk passenger at a location where he would probably get into a car and drive.

Even here, I'd have a problem with the ruling. But it's actually worse. The service didn't drop the passenger off at a parking lot, or at his car. It dropped him off at another bar.

William Powers, along with five other men, had hired Ultimate to take them to a bachelor party on the night of Aug. 11, 2001. The driver picked them up in a 15-passenger van at a South Boston sports bar, took them to a strip club in Rhode Island, then drove them back to the sports bar. The men drank in both bars and during the ride to and from Rhode Island.
Powers, joined by two of the men, drove away after being dropped off and had a violent intersection collision with another car. The crash killed Sean Waters, an off-duty police officer who was a passenger in the other car, and passengers in both cars were injured.
Lawsuits were filed by Waters's estate and the injured passengers, claiming that Ultimate and its driver were negligent in allowing Powers to leave the van at the Boston bar when they knew, or should have known, that Powers was probably going to drive a car while intoxicated.

Because the driver in this case helped Powers and his friends get drunk (he stopped so they could by more liquor) the court could have just used this case to extend the state's dram shop liability laws. That would have been bad enough. But the notion that a driving service is somehow supposed to discern the intent of its customers after they leave the vehicle is absurd. It also isn't difficult to see how that level of liability might put a damper on these sorts of services, which would actually make the state's roads more dangerous.

I also wonder what a taxi or limo driver who suspects an intoxicated passenger might drive at some point in the night is supposed to do, particularly if the customer demands to be let out. Drive them around until they're sober? Drive them to a police station? Should they make possibly intoxicated passengers sign a waiver promising not to drive until they're sober?

(Thanks to David Boaz for the tip.)

More Death, More Drug Raids Gone Wrong: FBI Edition

rbalko@reason.com (Radley Balko) — Tue, 02 Dec 2008 00:19:00 EST

The family of Laquisha Turner, a 17-year-old quadriplegic woman who died last week in Richmond, California, is blaming her death on an FBI drug raid of their home.

"When I opened the door I said, 'I have a disabled daughter...you guys are going to scare her, you can come in and search, do whatever you have to do,' but by this time they were coming in the side door shooting things," West said.

West believes the agents used tear gas during the raid on her house.

The agents were serving a for West's son, wanted on felony drug charges. The FBI declined to comment to ABC7, citing an ongoing investigation, but sources close to the raids said the agents used flash-bang gernades, not tear gas but admitted they do leave a cloud of smoke.

Turner was kept inside, breathing the air while waiting for paramedics while the raid went on.

"They kept telling her to get down on the ground and she kept telling them, 'I can't get down,'" West said.

The FBI was apparently looking for Turner's brother, who is wanted on felony drug charges. Oddly, Turner was paralyzed after being shot two years ago in a drive-by targeted at her boyfriend. That shooting led to retaliatory shootings that precipitated the series of FBI raids last month. Prosecutors may now charge her assailants with murder.

It's too early to say if Turner's death was directly attributable to the raid. Her family is awaiting the results of an autopsy. And it's difficult to muster much outrage over the more severe charges for the men who shot her two years ago. But regardless of whether the raid was a factor in her death, she was needlessly put through another horrifying experience. Once again we have police storming a house with guns and flashbangs to apprehend a drug offender. And once again, it looks like they didn't first bother to check to see who might be inside (if they knew Turner was inside and chose the paramilitary tactics anyway, all the worse). In this case, they at best terrified—and at worst may have killed—the very woman whose injury set off the reason for the raids in the first place.

This comes a couple of weeks after a drug raid in Pittsburgh that resulted in the first on-duty death of an FBI agent in more than a decade. Agent Samuel Hicks was shot and killed when Christina Korbe, the wife of suspect Robert Korbe, says she mistook the raiding FBI agents for armed robbers, and fired blindly down the stairs to her home. While Robert Korbe is a repeat drug offender, Christina had no prior record, and claims she was protecting her 10- and 4-year-old children, who were asleep upstairs during the 6 am raid. She called 911 shortly after shooting Hicks. She has been charged with criminal homicide.

Posse Comitatus Goes Belly Up

rbalko@reason.com (Radley Balko) — Mon, 01 Dec 2008 13:20:00 EST

Yuck.

The U.S. military expects to have 20,000 uniformed troops inside the United States by 2011 trained to help state and local officials respond to a nuclear terrorist attack or other domestic catastrophe, according to Pentagon officials.

The long-planned shift in the Defense Department's role in homeland security was recently backed with funding and troop commitments after years of prodding by Congress and outside experts, defense analysts said.
There are critics of the change, in the military and among civil liberties groups and libertarians who express concern that the new homeland emphasis threatens to strain the military and possibly undermine the Posse Comitatus Act, a 130-year-old federal law restricting the military's role in domestic law enforcement.
But the Bush administration and some in Congress have pushed for a heightened homeland military role since the middle of this decade, saying the greatest domestic threat is terrorists exploiting the proliferation of weapons of mass destruction.
Before the terrorist attacks of Sept. 11, 2001, dedicating 20,000 troops to domestic response -- a nearly sevenfold increase in five years -- "would have been extraordinary to the point of unbelievable," Paul McHale, assistant defense secretary for homeland defense, said in remarks last month at the Center for Strategic and International Studies. But the realization that civilian authorities may be overwhelmed in a catastrophe prompted "a fundamental change in military culture," he said.

I predict that while now couched in terms of the necessity for a ready response to a cataclysmic terrorist attack, within five years there will be calls to use these forces for less urgent matters, such as crowd control at political conventions, natural disaster response, border control, and, inevitably, some components of the drug war (looking for marijuana in the national parks, for example).

Here's hoping Obama scales this back. Or if he doesn't, that, with a Democrat in the White House, the Republicans rediscover the way they once got the heebie-jeebies over this stuff.

LEAP on Repeal Day

rbalko@reason.com (Radley Balko) — Mon, 01 Dec 2008 11:51:00 EST

The gang at Law Enforcement Against Prohibition—a group of ex-cops, judges, and prosecutors who've come out against the drug war—will commemorate the 75th anniversary of the repeal of alcohol prohibition with an event tomorrow at the National Press Club. From the press release:

On Tuesday, December 2, a group of law enforcers who fought on the front lines of the “war on drugs” and witnessed its failures will commemorate the 75th anniversary of alcohol prohibition’s repeal by calling for drug legalization. The cops, judges and prosecutors will release a report detailing how many billions of dollars can be used to boost the ailing economy when drug prohibition is ended.

“America’s leaders had the good sense to realize that we couldn’t afford to keep enforcing the ineffective prohibition of alcohol during the Great Depression,” said Terry Nelson, a 30-year veteran federal agent and member of Law Enforcement Against Prohibition (LEAP). “Now, cops fighting on the front lines of today’s ‘war on drugs’ are working to make our streets safer and help solve our economic crisis by teaching lawmakers a lesson from history about the failure of prohibition. We can do it again.”

Here's LEAP's compelling promotional video:

Balko Speaking on Repeal Day

rbalko@reason.com (Radley Balko) — Mon, 01 Dec 2008 11:20:00 EST

This Friday, I'll be speaking at a Cato Institute forum commemorating the 75th anniversary of Repeal Day. Here are the details:

Free to Booze: The 75th Anniversary of the Repeal of Prohibition
POLICY FORUM
Friday, December 5, 2008
3:30 PM (Reception To Follow)
Featuring Michael Lerner, author of Dry Manhattan: Prohibition in New York City; Glen Whitman, author of Strange Brew: Alcohol and Government Monopoly; Asheesh Agarwal, Former Assistant Director of the Federal Trade Commission's Office of Policy Planning; and Radley Balko, Senior Editor, Reason. Moderated by Brandon Arnold, Cato Institute.
The Cato Institute
1000 Massachusetts Avenue, NW
Washington, DC 20001
Watch the Event Live in RealVideo
Listen to the Event in RealAudio (Audio Only)
On December 5, 1933, the 21st Amendment to the Constitution was ratified, thus ending our nation’s failed experiment with Prohibition. Organized crime flourished during Prohibition, but what were the other effects of the national ban on alcohol? How and why was it repealed? Please join the Cato Institute for a celebration of the 75th anniversary of the repeal of Prohibition and a discussion of its legacy and continuing impact on America. Drinks will be served following the discussion.

Cato events, unless otherwise noted, are free of charge. To register for this event, please fill out the form below and click submit or email events@cato.org, fax (202) 371-0841, or call (202) 789-5229 by 3:30 PM, Thursday, December 4, 2008.

Here's the link to register online.

Small Bit of Holiday Sanity in Georgia

rbalko@reason.com (Radley Balko) — Thu, 27 Nov 2008 09:45:00 EST

A Georgia judge has allowed Wendy Whitaker to remain in her home while she fights her continued presence on the state’s sex offender list.

I blogged about Whitaker’s case last week.

Here's a Bad Idea...

rbalko@reason.com (Radley Balko) — Tue, 25 Nov 2008 12:52:00 EST

…electing public defenders.

Imagine the perverse, overly law-and-order sentiment that pervades the elections of judges and prosecutors now applied to the selection of who will represent the indigent accused.

Witness Matt Shirk, a Republican recently elected public defender in Jacksonville, Florida. Shirk, who was backed by the local chapter of the Fraternal Order of Police, has never defended a homicide case. His campaign promises included a vow not to oppose funding cuts to the office he was running for, and a promise to squeeze as much money as possible out of indigent defendants, including a proposal for hte postponed billing of acquitted defendants who might later be able to find some employment.

Shirk also promised during the campaign not to make drastic changes to the staff of the public defender office. But last week, he announced he’d be firing ten senior-level attorneys and three administrators.

As it turns out, several of the fired attorneys Shirk fired worked on the high-profile case of Brenton Butler, a 16-year-old wrongly accused of the robbery and murder of an elderly tourist. The Butler case was a huge embarrassment for Jacksonville’s sheriff’s department. Trial testimony suggested Butler’s confession had been beaten out of him by detectives with the department. Butler’s case eventually became the subject of the Oscar-winning HBO documentary Murder on a Sunday Morning. The sheriff’s department apologized to Butler, and reopened its investigation into the murder.

You’d think the kind of attorneys who could expose that kind of injustice (and, of course, expose the fact that the tourist’s real killer was still on the loose) would be exactly the sort of people a public defender would want on his staff.

Pat McGuiness, one of the fired public defenders who worked on the Butler case, says Shirk hasn’t even had the time to interview or review the personnel files of the people he fired. McGuiness alleges that Shirk’s axing of some of the office’s most skilled and experienced attorneys was a favor, in exchange for the police support he received during the campaign.

Shirk has yet to respond to those allegations, or explain his rationale for the firings.

(Hat tip to Bobby G. Frederick)

Mohels Aren't Paid Very Well, But They Get To Keep the Tips!

rbalko@reason.com (Radley Balko) — Mon, 24 Nov 2008 11:05:00 EST

Or maybe not.

Foreskins have long been treasured by cosmetic dermatologists because they are rich in fibroblasts, tiny cells that play a crucial role in healing wounds and generating collagen and connective tissue. (One foreskin can be bioengineered into a piece of lab-grown skin the size of a football field.) The makers of Vavelta extract them by finely dicing the foreskins and treating them with enzymes. Then the fibroblasts are suspended in a proprietary cell storage medium and injected into "problem areas" with a fine gauge needle. In preliminary studies, Vavelta has worked well at eliminating wrinkles and scars without any side effects other than mild redness and itching (and the weirdness of knowing that you've got a foreskin in your face).

Insert "dickhead" joke, here.

In all seriousness, as the PopSci article points out, this does raise some interesting ethical issues. Who owns your son's foreskin? If you leave it with the hospital, or with your rabbi, can they then sell it to a pharmaceutical company to be diced, treated, and injected into Joe Biden? If so, should they be required to notify you first? Is it in a kid's best interest to allow his parents to sell off his foreskin, given the fierce debate over the possible health benefits/drawbacks of circumcision?

Kerry Howley delved into some of these issues in her terrific feature from our March 2007 issue, "Who Owns Your Body Parts?"

Thanks to Tom Hynes for the . . um . . . tip.

Woman May Lose Her Home Because of Decade-Old Blowjob

rbalko@reason.com (Radley Balko) — Mon, 24 Nov 2008 09:41:00 EST

Wendy Whitaker, 29, has been on Georgia's sex offender list for more than 12 years. Her crime? She performed oral sex on a high school classmate just after turning 17. The boy was just shy of his 16th birthday. Both were sophomores. Whitaker is now suing, claiming that given her crime, her sex offender status is cruel and unusual punishment.

After the international uproar associated with the Genarlow Wilson case (Wilson, you'll remember, was convicted of a similar crime—having consensual oral sex with a 15-year-old while he was 17), Georgia's legislature clarified state law to prevent these sorts of cases—what Whitaker did 12 years ago is no longer a crime in Georgia. But because some Georgia lawmakers stubbornly wanted to keep Wilson in jail, the legislature took a separate vote to keep the law from applying retroactively. Wilson and Whitaker are still convicted felons. Whitaker's suit cites the Georgia Supreme Court's ruling in Wilson's case, which found that Wilson's 10-year sentence and mandatory sex offender status amounted to cruel and unusual punishment.

The question is whether the court will consider the registration requirement in and of itself cruel and unusual punishment for people convicted of consensual oral sex as minors before the law was changed.

Whitaker is also involved in a second lawsuit—this one to keep her house. In 2006, she and her husband scoped out neighborhood surrounding the Harlem, Georgia home they eventually purchased to be sure they were in compliance with Georgia's sex offender law at the time. That law prohibited offenders from living within 1,000 feet of any area where children congregate. Despite their efforts, local authorities ordered Whitaker and her husband to vacate shortly after they moved in. They had overlooked a nearby church, which was running an unadvertised daycare service.

That law was struck down by the Georgia Supreme Court last year, giving Whitaker a brief reprieve. But Georgia's legislature then passed a revised law earlier this year, one lawmakers apparently believed is in compliance with the state supreme court's decision, but that still manages to rope in Whitaker. Last week, she was told she has to move out of her home by Thanksgiving. If that happens, she'll likely have to foreclose.

reason's Jacob Sullum wrote on Georgia's sex offender law here and here. Kerry Howley wrote on sex offender exile laws here.

Julie Amero's Denouement

rbalko@reason.com (Radley Balko) — Sun, 23 Nov 2008 18:44:00 EST

Amero is the 40-year-old Connecticut substitute teacher convicted in January 2007 of four felony "corrupting a minor" charges when the computer she was using in front of her middle school class began opening a loop of pornographic pop-up windows. She faced a possible 40-year sentence. I wrote a short piece about her in our May 2007 issue:

As she tried to close the ads, the loops only intensified. She says some sort of adware or malicious software on her computer caused the pop-up ads to appear; such infections were indeed found on the computer later, including the Web address of a seemingly innocuous hairdressing site that spun off the loop of porn ads that Amero described in her defense. The school had filtering software on all of its computers but had let the software licenses expire, rendering the filters useless. The prosecution later conceded that Amero’s computer was never even tested for malware.
The state’s expert witness, a computer crimes investigator with the Norwich Police Department, testified that because the URLs for the offending sites were “highlighted,” Amero must have deliberately clicked on them. Yet none of the major Web browsers requires a mouse click to highlight a link; any address that has been loaded by the browser, which happens whenever a pop-up window opens, will show up as “visited.”

When Amero's case hit the Internet early last year, tech experts across the country quickly recognized what had happened, and dozens volunteered to aid in her defense. A state judge granted her a new trial in June of last year after he was presented with evidence from actual experts (as opposed to the Norwich Police Department's badly misinformed computer crimes investigator) that the computer had been infected. Yet the state's prosecutors stuck to their guns.

Finally last week, the state of Connecticut dropped the four felony counts against Amero. But her vindication isn't quite complete. As part of the plea, Amero still had to plead guilty to a misdemeanor, pay a $100 fine, and will have to forgo her teaching license in Connecticut. She has also been hospitalized from stress and a heart condition brought on by the whole ordeal. Incredibly, some public officials in Connecticut still insist she's guilty of knowingly corrupting minors with porn. Here's Hartford Courant columnist Rick Green:

New London County State's Attorney Michael Regan told me late Friday the state remained convinced Amero was guilty and was prepared to again go to trial.
"I have no regrets. Things took a course that was unplanned. Unfortunately the computer wasn't examined properly by the Norwich police," Regan said.
"For some reason this case caught the media's attention,'' Regan said.

Another state's prosecutor, David Smith, apparently also said at the hearing that, "the State felt that they had enough of a case, but that due to Julie’s declining health, that he and William Dow had agreed to a lesser charge." How generous of them.

Press Release of the Day

rbalko@reason.com (Radley Balko) — Fri, 21 Nov 2008 14:36:00 EST

Delivered to my inbox yesterday:

Al Qaeda Leader's Anti-Obama Racial Slur Denounced by Black Conservatives
Washington, D.C. - Members of the Project 21 black leadership network are denouncing the racial slur made against President-elect Barack Obama by al Qaeda deputy Ayman al-Zawahiri, and hope al-Zawahiri's crude action is a sobering reminder for the President-elect and his supporters about the harsh attitudes of our nation's enemies.
"While no fan of Barack Obama, I am a proud American. I find this terrorist's remarks directed at our nation's incoming leader to be highly offensive," said Project 21 chairman Mychal Massie.

I hear a repentant al-Zawahiri has scheduled a sit-down with Al Sharpton and Don Imus early next week.

Radley Balko Around Town

rbalko@reason.com (Radley Balko) — Fri, 21 Nov 2008 12:07:00 EST

Just a reminder, tomorrow at 11:30am ET I'l be speaking on a panel about police militarization and the drug war at the Students for Sensible Drug Policy's annual conference at the University of Maryland, College Park.

New Report: CIA Lied About Missionary Plane Shot Down Over Peru

rbalko@reason.com (Radley Balko) — Fri, 21 Nov 2008 11:15:00 EST

In 2001, the Peruvian Air Force shot down a plane flying over the Amazon after receiving information from the CIA that the plane was trafficking in narcotics. It wasn't. It was filled with Christian missionaries. The attack resulted in the death of 35-year-old Veronica Bowers and her infant daughter Charity. The CIA was working with the government of Peru as part of a program to intercept drug planes en route—another part of our disastrous drug interdiction efforts in Latin America.

Seven years later, CIA Inspector General John Helgerson has issued a blistering report finding that the CIA repeatedly lied and covered up details about the intercept program, about the downing of Bowers' plane, and about other incidents that never made the news.

Unfortunately much of Helgerson's report is classified, so the conclusions, while damning, are frustratingly lacking in detail. Rep. Peter Hoekstra (R-Mich.), whose district Bowers was from, is trying to get the entire report declassified. Here are a few excerpts from what's been released to the public [pdf]:

The plane, following the Amazon River in its westward journey in daylight, was tracked by a CIA aircraft as a suspected narcotrafficker and was fired on by the Peruvian Air Force. The mother and infant were killed; the American pilot was seriously wounded. Within hours, CIA officers began to characterize the shootdown as a one-time mistake in an otherwise well-run program. In fact, this was not the case.

[...]
The routine disregard of the required intercept procedures in the ABDP led to the rapid shooting down of target aircraft without adequate safeguards to protect against the loss of innocent life. Key Peruvian and American participants in the program told OIG that, in many cases, performing the required procedures would have taken time and might have resulted in the escape of the target aircraft. In addition, because the required procedures to establish contact with a target aircraft were difficult to conduct, it was easier to shoot the aircraft down than to force it down. The result was that, in many cases, suspect aircraft were shot down within two to three minutes of being sighted by the Peruvian fighter – without being properly identified, without being given the required warnings to land, and without being given time to respond to such warnings as were given to land.
[Emphasis in original.]

In other words, the risk of the loss of innocent life was acceptable if it meant more efficient ways of inhibiting the delivery of narcotics. Lying to Congress and the exeuctive? All worth it. Because it's all about stopping people from getting high.

Collateral damage—and let's face it, that's how the CIA and federal drug warriors view Veronica and Charity Bowers—has always been an accepted part of drug prohibition, but this callous disregard for the loss of life and human rights seems particularly egregious in our foreign interdiction efforts. See the House of Death case, where federal agents looked the other way while one of their Mexican informants participated in a series of brutal and entirely preventable murders. See our pre-September 11 anti-narcotics alliance with the Taliban, or our continued drug interdiction aid to Thailand after the government mass executed thousands of suspected drug offenders, sans trial.

My favorite most recent example is an op-ed in the Arizona Daily Star by a former DHS counter-narcotics official insisting that the increasingly bloody and brutal drug-related killing in Mexico is a sign that the U.S. and Mexico are "winning" the drug war. Because what's a few thousand dead Mexicans if we can point to a 19 percent drop in the use of cocaine here in the U.S.?

I Love the Smell of Murderous Thuggery in the Evening

rbalko@reason.com (Radley Balko) — Thu, 20 Nov 2008 22:10:00 EST

Legendary high-end Paris candle-maker Cire Trudon introduces "Ernesto," for those of you who want to fill your home with the scent of a sweaty, murdering Latin revolutionary:

In a hotel of Havana, sizzling under the stubborn sun of the Revolution, fierce overtones of leather and tobacco meddle with waxy silence of wood. Breaking out of the cool dimness, sly grimaces emerge, framed by the smoke of cigars and the barrels of guns.

Please note, this scent isn't for the proletariat. This particular block of paraffin infused with the scent of glorious Marxist uprising will set you back a cool $75 for 9.5 ounces. ¡Hasta la Victoria Siempre!

Thanks to Jim McCarthy for the link.

Judge Orders Release of Five Gitmo Detainees

rbalko@reason.com (Radley Balko) — Thu, 20 Nov 2008 22:00:00 EST

From the Washington Post:

For the first time, a federal judge today ordered the release of enemy combatants from the U.S. military prison in Guantanamo Bay, Cuba, ruling that the government had provided insufficient evidence to continue their detentions.
The decision came in the case of six Algerians who were detained in Bosnia after the Sept. 11, 2001, terror attacks and have been held at the military prison in Cuba for nearly seven years. U.S. District Judge Richard J. Leon, a Bush appointee, ruled that five of the men must be released “forthwith” and ordered the government to engage in diplomatic efforts to find them new homes.
In an unusual move, Leon also urged the government not to appeal his ruling, saying “seven years of waiting for our legal system to give them an answer” was long enough.

The judge did find sufficient evidence for the government to continue to hold a sixth detainee, which suggests his decision was the result of a careful look at the evidence.

I browsed the reactions of a few conservative blogs, and found the predictable outrage that the court system would dare challenge the authority of the executive branch to snatch up people and detain people in overseas prisons without ever giving them a trial, possibly ever. What you won't find is much concern that the Bush administration has been wrong in a disturbing number of these cases about just how dangerous most of the Gitmo detainees really are—which you would think might raise worries that a not insignificant number of them may actually be innocent.

National Review's Andy McCarthy nearly gets there:

It seems pretty clear that the Bush administration did not help matters here. Nearly seven years ago, the President publicly claimed the Algerians were planning a bomb attack on the U.S. embassy in Sarajevo. Last month, however, the Justice Department suddenly informed the Court that it was no longer relying on that information. We've seen this sort of thing happen too many times over the last seven years...

...and? And the frequency of these mistakes should give us pause before placing all of our trust in the executive to detain people indefinitely on the basis of secret, unreviewable evidence? And the Bush administration should be ashamed of itself for exaggerating the actual evidence against some of these detainees in its efforts to drum up support for unlimited executive power? And it raises the shameful possibility that we may actually have kidnapped and arrested more than a few innocent people, and detained them for years?

No, no. None of that. McCarthy concludes....

...and the effect can only be to reduce the confidence of the court and the public that the government is in command of the relevant facts and can be trusted to make thoughtful decisions.

Ah yes. A Republican-appointed judge has reviewed his first six Gitmo cases, and found that in five of the six, the government not only didn't have sufficient evidence to continue to hold the detainees, he ordered their release forthwith, and urged the government not to appeal his ruling. That's a pretty resounding repudiation. And McCarthy's reaction is, "Gee, I hope this doesn't undermine the public's faith in executive power!"

It damned-well ought to. Remember that last month, U.S. District Judge Ricardo M. Urbina ordered the release of 17 Chinese Uighurs, also after determining the government had no proof not only that they were enemy combatants, but that they were even a security risk (the government won on appeal, so the Uighurs are still at Gitmo). And as I wrote in a short piece for reason last year, an astonishingly high number of Gitmo detainees fall far short of the classification "the worst of the worst," to use a favorite phrase of the Bush administration and its allies.

In May 2003, Guantanamo held 680 prisoners, the highest number to date. About half have since been released. The Bush administration has claimed the prisoners at the camp represent the “worst of the worst” terrorist threats to the U.S. But when the Seton Hall law professor Mark Denbeaux and the defense attorney Joshua Denbeaux analyzed information supplied by the Defense Department, they found that less than half the inmates were determined to have committed a hostile act against the United States or its allies. Only 8 percent are suspected to be Al Qaeda fighters.

Of the 385 still held at Guantanamo, the Pentagon plans to formally charge 60 to 80. To date, just two have been tried by a military tribunal, and only one, Australian David Hicks, has been convicted. He was sentenced to nine months in prison, which he was allowed to serve in Australia.

You can add to that Salim Hamdan, who was convicted in a military tribunal on minor counts of supporting terrorism. The government wanted 30 years to life. The tribunal judge gave him just five-and-a-half years, clearly a comment on the seriousness of crimes. He will soon be eligible for release, unless the government decides to continue to detain him, anyway.

Me, I look at all of this and I worry that we've given the executive way too much power, that they're abusing that power, and that our government is arresting, detaining, and possibly torturing people who are either innocent, or clearly not a threat to the United States. McCarthy looks at all of this and worries that it might undermine the cause of continuing to give the executive unchecked power to keep people in prison indefinitely, no questions asked.

To which my response would be . . . one can only hope.

A Bit More on Eric Holder

rbalko@reason.com (Radley Balko) — Thu, 20 Nov 2008 14:10:00 EST

National Review relays two troubling stories on Obama AG nominee Eric Holder’s role in the Elian Gonzalez case.

Here’s the first:

In the period before armed agents seized the child, the Justice Department had been leaking its intention to avoid any sort of armed intervention. It would all be done quietly, they suggested. When top Department officials were asked about it, they said nothing to change that impression. About two weeks before the raid, Tim Russert asked Holder, “You wouldn’t send a SWAT team in the dark of night to kidnap the child, in effect?” Holder answered, “No, we don’t expect anything like that to happen.” Then the Department did precisely that. The day after the seizure, Holder appeared again with Russert, who asked, “Why such a dramatic change in position?” “I’m not sure I’d call it a dramatic change,” Holder answered. “We waited ‘til five in the morning, just before dawn.”

It’s one thing to not want to tip your hand about what you’re planning. It’s something else to be retroactively smug about sending armed agents into a private home to pry a kid out his nonviolent relatives’ arms at gunpoint.

Then there’s this:

Eric Holder, the deputy attorney general, appeared on Fox News a few hours after the raid that morning. Judge Andrew Napolitano accused the Justice Department of taking the child at gunpoint. Mr. Holder denied the charge. What he didn’t realize was that he was appearing on a split screen, the other half showing the Alan Diaz photo. “Not taken at gunpoint?” an incredulous Napolitano shot back. “Have you seen the photograph?“

He probably hadn’t. That would explain why he thought he could get away with lying about how Gonzalez was seized.

Hat tip for both stories to Rob Port.

Drug Policy Reform Organizations Weigh in on Holder

rbalko@reason.com (Radley Balko) — Thu, 20 Nov 2008 13:34:00 EST

I asked several drug policy reform groups for a statement on Obama's nomination of Eric Holder to head up the Justice Department. The consensus seemed to be mild disappointment tempered with cautious optimism that despite his recent staff selections, Obama will keep his campaign promises to end the federal raids on medical marijuana dispensaries and work to ameliorate the discrepancy in crack/powder cocaine sentencing.

I think this is about right. In Rahm Emanuel, Joe Biden, and now Holder, Obama has already picked some pretty aggressive drug warriors for top positions. That's troubling only to the extent that their positions on federal drug policy factored into his decision to choose them. I doubt that it played a role with any of the three.

All three will of course be advising Obama. And I'd rather have less draconian aides whispering in his ear. But if Obama has designs on changing federal drug policy, he'll do so. Neither Biden, nor Holder, nor Emanuel can stop him. Who Obama ends up choosing to head up the DEA and ONDCP will be a far better indicator of whether he intends to continue the Bush administration's aggressive prosecution of the drug war, or if he's looking at a more tempered approach.

My prediction? He'll call off the medical marijuana raids. Anything more would be a pleasant surprise. And even that will be offset by his insistence on resurrecting harmful criminal justice block grant programs.

The ACLU's Drug Law Reform Project declined to comment. But here's what other drug policy reform advocates had to say:

Aaron Houston, director of government relations, Marijuana Policy Project
Holder's record from a dozen years ago is concerning, but we expect President-elect Obama to keep his pledge to end federal raids in medical marijuana states, and that the Obama administration will not rerun the Clinton administration's terrible medical marijuana policies. One in four Americans now lives in a medical marijuana state, and medical marijuana outpolled Obama in Michigan by six points. Medical marijuana states, including Colorado, New Mexico and Nevada, were essential to Obama's victory, and continuing a federal war against a quarter of the country would make no sense.

Bill Piper, director of of national affairs, Drug Policy Alliance
Holder seems really knowledgeable about the ways the war on terror infringes on civil liberties and how that undermines law enforcement, but seems to have a blindspot when it comes to the war on drugs, which also infringes on civil liberties and undermines law enforcement (probably more so than the war on terror). President-elect Obama doesn't have this blindspot so there's room for hope. America needs an Attorney General who will stand behind Obama's promises to end the DEA's medical marijuana raids in California, eliminate the crack/powder disparity, repeal the federal syringe ban and begin treating drug use as a health issue instead of a criminal justice issue.

Julie Stewart, president, Families Against Mandatory Minimums
FAMM’s experience with Eric Holder has been limited primarily to executive clemencies granted during the Clinton administration and that experience was generally a good one. Holder was Deputy Attorney General when nearly two dozen nonviolent drug offenders serving harsh and excessive sentences were granted much-deserved commutations at the end of President Clinton’s term. Although Holder is most well-known for his opinion regarding the Marc Rich pardon, he presumably reviewed and recommended in favor of commuting the sentences of the drug offenders, too, who have gone on to lead productive and law-abiding lives. Hopefully, his experience as Deputy Attorney General will motivate him to take an active role as Attorney

General in ensuring that clemency requests are processed in an efficient manner and that real and meaningful review is given to all cases, which is currently not happening.

Holder’s past positions on mandatory minimum sentences give pause. As the U.S. Attorney in Washington, DC in 1996 he advocated for mandatory sentences of 18 months to six years for selling drugs – including marijuana. (Thankfully, the DC City Council did not adopt his proposal.) FAMM will give him the benefit of the doubt and hope that in the ensuing dozen years he has developed a more comprehensive view of sentencing policy that gives the courts the reasoned discretion they need to sentence individuals according to their culpability. Confirmation hearings should flesh out his current position on sentencing policy.

Allen St. Pierre, executive director, NORML
NORML has serious concerns about the choice of Eric Holder as the next Attorney General because he has a long history of opposing drug policy reforms, perceiving cannabis smoking by adults as a public nuisance worthy of constant harassment, promoting violent governmental intervention into the private lives of citizens who consume cannabis, supporting mandatory minimum sentencing and so-called civil forfeiture laws.

His attraction to the myth of ‘fixing broken windows’ and using law enforcement to crack down on petty crimes will swell an already overburdened, bloated, expensive and failed government prohibition against otherwise law-abiding citizens who choose to consume cannabis.

Brits Propose Possible Life Sentence for Johns

rbalko@reason.com (Radley Balko) — Thu, 20 Nov 2008 12:05:00 EST

The UK is proposing a new law stating that any sex with a prostitute later shown to be working in the sex trade involuntarily is per se rape, possibly punishable by life in prison. Johns will be prohibited from claiming ignorance of the prostitute’s status in their defense.

In a society where prostitution were legal, open, and market regulated, this sort of law would make some sense. Under such a regime, most (or nearly all) advertised prostitutes and brothels would, in all likelihood, be legit. Few people trafficking in sex slaves would want the attention that comes with openly advertising their services.

But black markets by definition obscure information from consumers. When prostitution is illegal (or quasi-legal, as it is Britain), it’s hard to distinguish voluntary sex workers from involuntary ones, because they’re all illegal. They all operate underground. There’s undoubtedly a clear moral distinction between patronizing a sex worker who chooses to sell her body, and one who’s forced to do perform under the threat of harm by a pimp or a mama-san. The problem is that under a prohibition on prostitution, it becomes more difficult for Johns to make that distinction.

The other sad irony here is that I would guess that all else being equal, most Johns don’t want to have sex with a woman against her will. Yes, I’m sure many Johns today practice some willful ignorance about the status of the prostitutes they patronize. But in a society where sex for money were open and legal, the sex slave trade would almost certainly lose a huge chunk of its market share (whatever that may be). Given the option between legal sex with an advertised prostitute or brothel or risking arrest by having sex with a prostitute in a shady, unadvertised, unregulated, underground brothel that may be using sex slaves, I don’t think it’s wildly speculative to say that most Johns would choose the former.

In any case, under such a scenario, you could certainly make a stronger case for throwing the book at those who choose the latter.

Border Search Nabs Medical Marijuana User

rbalko@reason.com (Radley Balko) — Wed, 19 Nov 2008 14:51:00 EST

Last month, I posted on concerns from the ACLU that the Department of Homeland Security was coupling the terrorism threat with an old Supreme Court case to essentially nullify the Fourth Amendment for anyone driving on a public road within 100 miles of a U.S. border.

The Supreme Court's decision in U.S. v. Martinez-Fuerte allows for suspicionless but minimally invasive roadblock searches of motorists for the purpose of checking for illegal aliens. The ACLU maintains that DHS is conducting far more thorough searches, stretching the ruling in that case well beyond what the Court intended.

Seattle's Post-Intelligencer ran a story this week that seems to confirm the ACLU's fears. Earlier this year, border patrol agents cited 55-year-old Stephen Dixon for marijuana possession after searching his car at a checkpoint near the U.S.-Canadian border. Dixon wasn't crossing the border, he just happens to live in the area where the feds set up one of their checkpoints (the article describes the checkpoint as "dozens" of miles from the border).

Dixon has a doctor's prescription to take medical marijuana for chronic pain associated with an amputated leg and an injured spine. A drug dog tipped off the border agents to Dixon's couple of grams of marijuana. That a drug dog was on the scene would at least seem to suggest that the border agents had more in mind than merely looking for illegal immigrants sneaking down from Canada.

The good news is that U.S. Attorney Jeff Sullivan has refused to pursue charges against Dixon and four others caught with small amounts of marijuana at the same checkpoint. The bad news is, the border patrol seems intent on continuing to rely on the Supreme Court decision in Martinez-Fuerte to conduct illegal searches far away from the border. DHS agents could also refer over to local prosecutors the minor drug cases the U.S. attorney doesn't want.

Radley Balko Around Town

rbalko@reason.com (Radley Balko) — Wed, 19 Nov 2008 14:10:00 EST

This Saturday, I'll be speaking on the issue of police militarization and the drug war at the annual Students for Sensible Drug Policy conference.

And on Friday, December 5, I'll be speaking on the alcohol neoprohibition movement at a Cato Institute event celebrating the 75th anniversary of Repeal Day.

Forensic Experts Aren't Team Players. Nor Should They Be.

rbalko@reason.com (Radley Balko) — Wed, 19 Nov 2008 12:46:00 EST

reason contributor Roger Koppl relays the story of a district attorney in the Midwest who threatened one of Koppl's acquaintances, who happens to be a county medical examiner. The prosecutor's complaint? The doctor had testified for the defense in a nearby jurisdiction. Koppl writes:

The email says, “I do not find this acceptable” and “I view this practice as a conflict of interest and inappropriate.” I think the DA sincerely believes that his ME acted wrongly. “I would never accept a request to review the matter in the first place. Nor do you have to accept these requests. If you continue to do so, I am giving you the courtesy of letting you know that neither the Sheriff or I will be in a position to continue to support your appointment as the [local] County Coroner.” That’s quite a threat: If you persist in testifying for the defense in other counties you’ll lose your job as ME in this county.

I think Koppl's friend needs to publicly name this district attorney. It is the DA's behavior that is unprofessional, irresponsible, and wholly inappropriate, here. A medical examiner is not part of the prosecution's "team." From the National Association of Medical Examiners' Forensic Autopsy Performance Standards:

Medicolegal death investigation officers, be they appointed or elected, are charged by statute to investigate deaths deemed to be in the public interest--serving both the criminal justice and public health systems. These officials must investigate cooperatively with, but independent from, law enforcement and prosecutors. The parallel investigation promotes neutral and objective medical assessment of the cause and manner of death.

To promote competent and objective death investigations . . . [m]edicolegal death investigation officers should operate without any undue influence from law enforcement agencies and prosecutors.

Many prosecutors don't see it this way (pdf). They believe a medical examiner's job is not to get at the truth, but to help the state win convictions. If his conclusions differ from the prosecutor's theories about the crime, then the medical examiner's job is to keep his mouth shut. This case is even more egregious, in that this particular prosecutor is objecting to his own county's medical examiner testifying in another jurisdiction. As Koppl explains, this may be an effort by prosecutors in the area to gain a monopoly on "truth" by depriving defendants of qualified available experts.

Koppl and I wrote a piece for Slate earlier this year outlining steps to a more fair, accurate, and honest forensics system.

The One Presidential Power Bush Doesn't Care For

rbalko@reason.com (Radley Balko) — Tue, 18 Nov 2008 19:27:00 EST

That would be the pardon power.

Former U.S. pardon attorney Margaret Colgate Love writes in the Washington Post:

Bush's 157 pardons say little about his criminal justice philosophy. Most have gone to people convicted long ago of minor offenses, who spent little or no time in prison, and who are unknown outside of their communities. Five of his six sentence commutations went to small-time drug offenders who had spent years in prison and were close to their release dates.
Meanwhile, Bush has denied almost 8,000 clemency requests, many of which were indistinguishable from the ones he granted.
[...]
The Sentencing Reform Act of 1984 made the pardon power virtually the only mechanism by which lengthy mandatory prison sentences can be reconsidered once they have become final. Supreme Court Justice Anthony Kennedy, the author of opinions upholding harsh sentencing laws, urged in a 2003 speech to the American Bar Association that the pardon process be "reinvigorated" in response to "unwise and unjust" federal sentencing laws; "a people confident in its laws and institutions should not be ashamed of mercy," he said.
[...]
A series of final pardons could highlight flaws in the justice system that would be instructive to the next administration. The Framers considered the pardon power an integral part of our system of checks and balances, not a perk of office. Judicious grants of clemency can signal to Congress where rigid laws should be amended and give policy guidance to executive officials. The president's intervention in a case through his pardon power benefits an individual but also signals how he wants laws enforced and reassures the public that the legal system is capable of just and moral application.
It is ironic that a president who has stretched his other constitutional powers to the breaking point has been so reticent and unimaginative in using the one power that is indisputably his alone.

The one time Bush used the pardon power to make a statement about injustice was when he commuted what he determined was an unfairly long sentence for former Cheney chief of staff Scooter Libby. There's also some talk now that Bush may pardon all federal counter-terrorism interrogators to clear them of possible torture charges in an Obama administration (Obama has signalled that he won't pursue such charges). There's also talk (though it seems more far-fetched) that Bush will issue a blanket preemptive pardon for himself and his top advisers before leaving office.

Here are just a few people more deserving.

The Favor Factory

rbalko@reason.com (Radley Balko) — Mon, 17 Nov 2008 17:59:00 EST

Last month, the Seattle Times assembled a handy database breaking down the earmarks attached to the 2008 defense appropriations bill. The paper looked at how many of the bill's earmarks went to each congressional district and, in turn, how much money in campaign contributions the recipients of those earmarks have given to the congressmen who requested them.

For example, my congressman, Rep. Jim Moran (D-Va.) larded the 2008 defense bill with $40.6 million in earmarks. Over the last five years, the recipients of those earmarks have given Moran more than $890,000 in campaign contributions. Moran was second only to Rep John Murtha (D-Pa.) in raking in contributions from recipients of his sponsored earmarks—Murtha reaped $1.6 million in contributions from the whopping $126 million he put in the bill.

Only about 10 percent of Congress requested no earmarks at all.

New Jersey Politician Takes His Job Description a Bit Too Literally

rbalko@reason.com (Radley Balko) — Wed, 12 Nov 2008 14:17:00 EST

Just to play devil's advocate, I’m not sure how this is any worse than the bank bailout.

One of the victims who Jersey City Councilman Steve Lipski allegedly urinated on last Friday night at a Washington D.C. nightclub said last night he initially thought someone had spilled beer down his leg.

But when he looked up to the balcony at Nightclub 9:30, where a Grateful Dead tribute band was performing, Joe, a 22-year-old University of Utah student — who only wanted to be identified by his first name — said he saw Lipski “grinning and urinating.”

“He (Lipski) kind of had this grin on his face, and you could see his manhood in his hand,” Joe said, who estimates 30 people on the dance floor were within range of a “long arc and stream of urine coming out into the crowd.”

As the smell of urine hung in the air, a couple of people “ran off screaming” when they realized what was happening, Joe said.

The display went on for a “solid minute,” Joe said.

Cory Maye's Appellate Brief

rbalko@reason.com (Radley Balko) — Wed, 12 Nov 2008 11:25:00 EST

Mississippi public defender Bob Evans and several attorneys at the D.C.-based Covington & Burling law firm have filed a brief with the Mississippi Court of Appeals on behalf of Cory Maye. This is the fist step in Maye’s appeal of his capital murder conviction for killing Prentiss, Mississippi police officer Ron Jones during a botched drug raid on Maye’s home in December 2001. You can download and read the brief here.

I’m obviously reading the brief as a partisan, and as someone who isn’t a lawyer, but I find it enormously convincing. It also illustrates just how bad Maye's trial attorney really was. You wonder how many other criminal defendants' cases would look a whole lot different were they able to procure the service of a top-notch law firm.

There is one bit of new information in the brief that I’m embarrassed to say seems to have escaped everyone the past few years, including me: If you look back through the trial transcripts, there’s no testimony from any of the raiding police officers that they actually knocked on Maye’s door. There’s testimony that they announced themselves, and that they made several attempts to kick down the door. But not a single one of them testified to knocking, or to seeing or hearing another officer knock. Taking the police testimony at face value, they announced “police!”—and then began kicking down the door.

This seems to be pretty important. The prosecution’s contention may have had a bit more weight if the police claimed to have knocked several times and announced themselves before trying to take down the door. But to yell “police,” and then start kicking without a knock only bolsters Maye’s claim that he thought criminal intruders were breaking into his home.

Put yourself in Maye’s position again. You’re asleep. It’s after midnight. For starters, it’s probably a safe assumption that a sleeping person wouldn’t hear—or at least shouldn’t be expected to mentally process—the initial police announcement. That’s why knocking is so critical. Instead, Maye was awoken to the sound of several men trying to kick down his door. At that point, even subsequent police announcements probably wouldn’t register, or at least you couldn’t blame him for not processing them. Moreover, Maye’s attorneys note in the brief that one police officer inside the duplex on the other side during the Maye raid says he didn’t hear any police announcement.

But there’s room for more confusion, here, too. Even assuming Maye heard and processed the police announcement, it isn’t clear that he would have known the announcement was directed at him. Indeed, he had little reason to think the police would ever break into his apartment. He wasn’t dealing drugs, and had no criminal record. He did, however, live next door to a known drug dealer, the presumed target of the raid. Even assuming Maye heard sirens, or saw lights, or heard a police announcement (and there’s little reason to think he did any of that), it wouldn’t be unreasonable for him to assume it was all directed at his neighbor, and to fear that the person trying to break into his home was his neighbor, or possibly one of his neighbor’s clients, fleeing the police. After all, the police are supposed to knock before entering, particularly when they’re at the door of someone who hasn’t committed any major crime. Someone breaking into your home without knocking, in the dead of night, is more likely to be a criminal.

The warrant to search Maye’s home, incidentally, was not a no-knock warrant.

The rest of the brief articulates the myriad other problems with Maye’s conviction already discussed here at reason and at my personal blog, but in a manner more tidy, pithy, and convincing.

Covington & Burling attorney Abe Pafford says he expects the court to hear the case early next year.