Defending the liberty of scum

I am generally a tough justice sort of guy. I believe we are generally too easy on repeat offenders in this country, and that if we enforced the legislation we have in more cases we would have fewer criminals on the streets. I also believe that rape is one of the worst things one human being can inflict on another, and that there is no punishment severe enough for such a heinous crime. So I find myself in the unenviable position, today, of having to defend the likes of serial rapists from injustice.

I refer specifically to the recent Supreme Court 7-2 decision on the ability of the Federal Government to detain “sexually dangerous” offenders past their sentence.

”At arguments in January, Solicitor General Elena Kagan told the court that federal prison officials found about 15,000 inmates with histories of sexual violence or child molestation, but only 105 who were determined to have a mental illness making it "reasonably likely" they would commit such offenses again.

One of those prisoners was Graydon Comstock, who in November 2006, six days before completing a 37-month federal sentence for possession of child pornography, was certified as sexually dangerous and denied release. He and four other such prisoners sued, claiming that Congress assumed powers only states can exercise.”

The Supreme Court cited the “Necessary and Proper Clause”:

” The Congress shall have Power - To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

They argued that the safeguarding of citizens was an implied power of Congress, and that detaining criminals deemed to be dangerous was merely a natural extension of this power.

When our government deems a certain action as unacceptable, it passes a law prohibiting the behavior. As part of this law it will assign a certain punishment, be it jail time, a fine, or something else, that is determined to be proportional to the seriousness of the crime.

Mr. Comstock had been convicted of a serious offense. He was convicted by a jury of his peers as guaranteed him by the Sixth Amendment. Being found in violation of the law he was then sentenced to a punishment as proscribed by said law.

What the Supreme Court has decided is that the Federal Government can assign punishments as it sees fit completely outside the process guaranteed in the Constitution. The only requirement is that the criminal be deemed as dangerous enough not to be released back into the general population. Whenever you grant government power you must assume they will abuse it. History has taught us that to do otherwise is folly. Therefore the natural question to ask is: What is dangerous, and who gets to define it?

If our goal is to keep a serial rapist off the street for the rest of his life then we can have that discussion. I won’t even disagree with you. Indeed, lock him up! If that is what the true intent is then let us use the method we already have to ensure this. Let us change the law to make a life sentence possible for a serial rapist. Then we can trust the justice system we have, including the jury made up by the accused's peers, to decide whether the man is dangerous enough to be deprived of liberty for the rest of his life.

What we should not do is trust the federal government to make this determination outside of the influence of We the People.

Hey! Let's ignore the Constitution when we don't like it!

Recently New Yorkers brushed closely with fate as a Pakistani man, one Faisel Shahzad, allegedly attempted to detonate a bomb in Times Square. Quite possibly the worst terrorist in history on American soil, his list of successes with the plot begins with the location he chose, and ends with the propane tanks he was going to use. Mind bending incompetence notwithstanding, Faisel’s motives, if the accusations against him are correct, were clear: To kill as many fellow citizens as possible.

Shortly after this story developed I heard conservative talk radio host Sean Hannity speaking about the treatment of Mr. Shahzad after he was arrested. It didn’t take long for my brain to attempt to vacate my skull via my ears. The gist of his argument was this: This man should not have been read his Miranda rights because they could have gotten in the way of interrogation efforts.

Sean is not alone. Republican after Republican has gone on the record saying that Faisel should not have been “Mirandized”. John McCain was awoken out of his cryogenic sleep to say “Don’t give this guy his Miranda rights until we find out what it’s all about”.

I was dumbfounded. I was speechless. Then I was furious. Why am I outraged? To answer that we must first forget Faisel Shahzad for a moment. Instead, let’s focus on what the rights these illustrious thinkers are so up in arms about.

Miranda rights ought to be familiar to anyone who has even watched a cop on TV arrest the bad guy. It goes something like this:

”You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to speak to an attorney, and to have an attorney present during any questioning. If you cannot afford a lawyer, one will be provided for you at government expense.”

What you may not have realized at the time is that these are not called “rights” for nothing. The police legal department did not simply make them up. They draw their roots from the founding papers of our nation.

Let’s start at the top. The Fifth Amendment to the Constitution reads:

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” (emphasis mine)

The italicized portion of this amendment, the fact that an American citizen cannot be compelled to witness against himself, is where we derive the right to silence. By extension, if you choose not to exercise that right you are told the consequences of that action.

The Sixth Amendment to the Constitution states:

“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, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; 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.”(emphasis mine)

Pretty much broken down to crayons. You have the right to a lawyer. Period.

That a man is presumed to be innocent until proven otherwise is a widely acknowledged legal principle of every civilized nation, particularly in the Western world. It is never explicitly stated, but is heavily implied, through the 5th, 6th, and 14th Amendments, and you would be hard pressed to find a soul who would dispute it.

Finally, the aforementioned 14th Amendment, Section 1, states:

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”(emphasis mine)

Our Founders understood the propensity of government to restrict the rights and freedoms of its citizens out of expedience. Those who followed in their footsteps wanted to make certain that there could be no doubt whatsoever that a government cannot arbitrarily choose which rights a citizen ought to be allowed when.

Faisel Shahzad is many things. A Pakistani, a Muslim, a father, a husband, an alleged terrorist, an alleged traitor. He is also one more thing that is far more important in this case than any other: He is a naturalized American citizen.

As a citizen he has rights. Among those rights are those detailed in the Miranda list. Note I do not say, nor does the Constitution imply, he has those rights when it is convenient for us. Note that I do not say, nor does the Constitution imply, that he ought to have those rights up until they get in our way.

If Faisel were not a citizen he would not have any protection under the Constitution. If Faisel had been captured on a foreign battlefield by our soldiers he would be rightly classified as a Prisoner of War. The fact is, however, that Faisel is an American, he was arrested by American civil authorities, and like it or not, he deserves equal protection as guaranteed to him by the Constitution of the United States!

To those who would lay claim to the title Conservative and yet pretend that they can throw out this, our most precious document and guardian of our freedoms, simply because it suits the needs of the moment, I would say you ought to be ashamed. You, sirs, are in this moment more despicable by far than Faisel himself. For, while this alleged traitor sought only to deprive those around him life, you would seek to grant the government the right to deprive its citizens of liberty.

Constitutional Convention: The Proverbial Nuclear Option

There is a building in Washington DC wherein lies a dusty old document. Despite its proximity to our lawmakers it molders in obscurity, seemingly forgotten by the people sworn to protect it. It is such an amazing work of man, and yet it begins with three unassuming words: “We The People”. This document, centuries old, is a chain weight that seeks to drag down our Federal government’s potential for power. They, our non-representing representatives, have clearly forgotten one part of this glorious work in particular. The Tenth Amendment to the Constitution, the last in the Bill of Rights, reads:

”The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

For anyone who has talked to me for periods of longer than five minutes the above statements should come as no surprise. I am not alone in this attitude. If you need confirmation, check out this compilation of congressional approval ratings. Note the massive column of red, and the fact that the highest congress has managed this year is an epic 32%. There is an attitude of defeatism in the populace. After all, the people that would need to enact change to bring government back into check are in fact the very people that would stand to lose in the bargain. How can we, short of armed revolt, convince them?

The new piece I have to offer today is an interesting solution offered by Mark McKinnon, Republican strategist, and Lawrence Lessig, Harvard Professor and avid supporter of Barrack Obama. They recommend we throw the Federal government completely out of the loop. They say we should go nuclear. They say we ought to host a constitutional convention.

Such a convention, as they explain, would be brought about through Article V of the Constitution. Two thirds of the states would have to pass legislation demanding such a convention. If two thirds get together than decide it, it happens. You may have noted the absence of any action needed by the Federal government. That is because there isn’t any. They are put on the sidelines while the state legislators decide how the Constitution ought to be amended in order to put the Federal government back in its place.

I encourage you to read their article for the entirety of their opinion. I, for one, support any measure that would put the power of governing back where the Tenth Amendment says it ought to be: With the States and the People.

Admin note: Post email notifications

One of my readers asked me recently how she could set it up so that she was notified via email that I had posted onto my blog. I did some digging and found that blogger allows me to set up a list of email addresses to notify when I post.

So if any of you out there would like the same service, simply let me know. You can shoot me an email, if you know that address, or contact me through facebook. If you don't know either of those simply post your email and your wish to be added to the list as a comment on this blog. All my comments are moderated by me before they are visible to anyone else, so the only person who will see your email is myself. Thanks for reading!

- Lobe

Arizona Immigration Law

Recently the great state of Arizona passed a law concerning a particular section of criminals, namely illegal immigrants. The original law was AZ Senate Bill 1070. It was amended by AZ House Bill 2162. The law itself is rather short at 11 pages long (the unamended senate bill is 17 pages) in this official .pdf version. The amount of controversy generated by this bill, however, is anything but small. Thousands of citizens, aliens, pundits, commentators and lawmakers have protested this law even before it was signed. They object that it is a free pass to allow for racial profiling, that it will tread on the civil liberties of citizens, and that it is a power grab by the state of Arizona into the exclusively federal domain of immigration. President Obama called the measure “misguided”. The rhetoric continues to fly hot and heavy. What is a citizen to do?

After having a conversation with a police officer friend of mine who voiced concerns over the possible implications to civil liberties for true citizens I took it upon myself to become informed. I did something our lawmakers have recently forgotten how to do: I took time out of my day to sit down and read the document, from start to finish.

The law starts off running with sections 1-501. This section states that any person who applies for a federal benefit administered by the state that requires the person to be a citizen or lawful resident of the United States must prove that they are, in fact, a citizen or lawful resident. Section 1-502 is the state benefit mirror of 1-501. The proof required is very mundane. Simply presenting a valid AZ driver’s license is enough. Failing that, a birth certificate or passport will also suffice.

The high intensity legislation continues with Section 11-051. This is the section of the law which outlines how law enforcement agencies deal with illegal immigrants. Contrary to what you may have heard this Section does not allow for any police officer to pull any citizen off the street because they suspect they may be an illegal immigrant. The law actually states that it applies only to “any lawful stop, detention or arrest…in the enforcement of any other law or ordinance…where reasonable suspicion exists that the person is an alien and is unlawfully present in the United States”. It goes on to say that a “reasonable attempt shall be made, when practicable, to determine the immigration status of the person”. Also, “any person who is arrested shall have the person’s immigration status determined before the person is released” and “A law enforcement official or agency…may not consider race, color or national origin in implementing the requirements of this subsection”.

In other words, you must already be breaking the law in some fashion before the police officer is allowed to do anything to ascertain your immigration status. Should you be arrested your immigration status will be checked. Note it does not matter what you were arrested for, what you look like, what your name is, or anything else. All that matters is that you were breaking the law and got caught.

Subsection C mandates that the federal agencies in charge of immigration be notified when an illegal immigrant is convicted of a crime and is released from custody. Subsection D makes the life of a law enforcement officer a bit easier by mandating that they may transport a confirmed illegal immigrant to a federal facility even if said facility is outside their normal boundaries of jurisdiction. So even if the facility is in the next county over Officer Jones can go ahead and send illegal immigrant Joe Smith to lockup.

Section 13-1509 is interesting in that it makes illegal immigration a bit more…well…illegal. Any person who is found to be in violation of the federal immigration laws and is present on any public or private land in Arizona is now also guilty of trespassing. While it is only a CL 1 misdemeanor the law stipulates that any person convicted of trespassing due to this section of the law is not eligible to have their sentence commuted or suspended. This gives the state greater latitude in enforcing immigration inside their own borders by adding a state charge to the federal list.

Sections 13-2928 and 13-2929 are what I would like to refer to as the “aiding and abetting” clauses of the law. They make picking up workers on the side of the road a crime if doing so impedes traffic. It criminalizes knowingly hiring an illegal. It even makes it criminal to “transport, move, shelter, or conceal from detection” an illegal alien. This is only a CL 1 misdemeanor, normally, but if the number of illegals is ten or more (can anybody say coyote?) it jumps up to a CL 6 felony.

Finally, Section 23-214 requires that every employee must be ran through the e-verify system in order to make certain they are legally allowed to work in the US.

At the end of the day this law goes a long way to make it easier for a law enforcement official to identify illegal immigrants who are already breaking the law, arrest said criminals, and transfer them to the appropriate federal facility for processing. It make life a little harder to the crooked businesses that hire these criminals. It makes sure that every employee in the state is e-verified to be certain that no illegal can take a job from a citizen or legal resident.

Having read the legislation I can say that this law has nothing to do with race or ethnicity. It has everything to do with catching criminals and putting them away. It has to do with making it more difficult for people to stay in this country illegally. Both of these goals are right and appropriate for government.