Kingston man ticketed for solitary lockdown protest

Ontario stay at home order needs to be amended to allow outdoor protests | National Post - Christine Van Geyn:

May 26, 2021  "The current stay-at-home order in Ontario needs to be amended to permit outdoor protests, which have been happening all across Ontario. The continued prohibition on public protests is undermining the rule of law through uneven enforcement, it violates our fundamental rights, disrupts the democratic process, is impractical, and is unscientific.

"Every weekend thousands of people gather at Queen’s Park and march through Toronto to protest the province-wide lockdown. And last week thousands of people across the greater Toronto area spent the week protesting in support of Palestinians. These protests are meaningful and are a part of our democratic process. It is how many people express their frustration at government policies and international conflicts. People who may feel otherwise powerless to impact change can protest together to show unity and grab the attention of political elites. Whatever your views on the reason for these protests, they are a Charter protected activity.

"But under the current stay-at-home order in effect in Ontario, people risk tickets when they exercise their right to assemble and express political views. The stay-at-home order requires everyone to remain in their residence unless they fall under a permitted exception that allows them to be out and about. Protesting is not one of those permitted reasons.

"The good news is that police in Toronto do not appear to be handing out tickets for these protests. But the bad news is that this is not the case for protestors in smaller communities across the province.

"Take for example, the case of Robert Bristol in Kingston. Bristol opposes the current lockdown. While supportive of some health measures, he believes that the current lockdown has gone too far and is in many ways irrational. It’s not an especially controversial view. Bristol decided to express his frustration by protesting in front of Kingston City Hall. He carried a 'no more lockdowns" sign and protested alone while wearing a mask. Despite this scenario creating literally zero risk of spreading COVID, Bristol was stopped by police and ticketed for violating the stay-at-home order. Police told Bristol that public protests are not a permitted purpose for being outside his home.

"This is bizarre and unjustifiable.... In the past, remote risk has never justified prohibiting public demonstrations. But if Bristol’s lone protest can be stopped on the basis of some hypothetical and frankly impossible danger, what will this mean for other protests in the future where such risk is actually less remote? It would be quite convenient for the government to prohibit citizens from protesting their policies on this basis. But this is not how governments ought to behave in liberal democracies.

"The practice of uneven ticketing undermines the rule of law, and the prohibition on demonstrations against government policies undermines our democracy. But the argument for allowing outdoor protests becomes even more compelling when one looks at the science.

The risk of transmitting COVID in outdoor settings is exceedingly low.... For example, a study of case numbers in Ireland found that just one in every thousand confirmed COVID cases was traced to outdoor transmission, meaning that 0.1 per cent of total cases was linked to outdoor transmission. Ontario’s own science advisory table never recommended that Premier Dour Ford close outdoor recreational amenities. Dr. Peter Jüni, who sits on the table, has said 'just as an estimate, that outdoor activities are probably roughly 20 times safer than indoor activities.'

"The government needs to amend the stay-at-home order to allow for public protests. And if [Ontario premier Doug] Ford won’t make that change voluntarily, there are organizations that are seeking to compel him to make the change. Bristol, the ticketed lone protestor, is working with the Canadian Constitution Foundation to challenge not only his ticket, but the stay-at-home order as well."

Read more: https://nationalpost.com/opinion/christine-van-geyn-ontario-stay-at-home-order-needs-to-be-amended-to-allow-outdoor-protests

German court strikes down personal contact ban

German District Court declares Corona Ordinance Unconstitutional UK Human Rights Blog - Rosalind English:

25 January 2021 -"In a landmark judgement on January 11, a district court judge in Weimar declared the prohibition on social contact unlawful as contrary to the German Basic Law (Gründgesetz). Its order at the time had been unconstitutional because the Infection Protection Act was not a sufficient legal basis for such a far-reaching regulation as a contact ban, the ruling said. The order of the contact ban had violated human dignity and had not been proportionate. (Reported in MDR Thüringen on 22 January 2021). In this case a citizen of Weimar had been prosecuted and was to be fined €200 for celebrating his birthday together with seven other people in the courtyard of a house at the end of April 2020, thus violating the contact requirements in force at the time. This only allowed members of two households to be together.... 

"This is the first time a judge has dealt in detail with the medical facts, the economic consequences and the effects of the specific policy brought about by the Coronavirus pandemic... With Germany having a federal legal system, there is no uniform case law yet on this point....

"Part of the rule of law is the requirement that laws be definite. Laws may not simply make blanket decrees and thus encourage overenthusiastic interpretation by the authorities leading to arbitrariness. According to the Infection Protection Act, the 'competent authority shall take the necessary protective measures'. In the normal course of events, this means that infected people or those suspected of infection can be isolated or contaminated premises closed. The Infection Protection Act does not provide for a general ban on contact that also covers healthy persons. However, as has been argued by many administrative courts to date, an overstepping of the regulatory circle of the Infection Protection Act beyond the normal course of events can be justified if it is an 'unprecedented event' that is so new that the legislature could not possibly have made the necessary regulations beforehand.

"The judge did not accept this exception to the rule of law. As early as 2013, the Bundestag prepared a risk analysis of a pandemic caused by a 'virus Modi-SARS' with the cooperation of the Robert Koch Institute, in which a scenario with 7.5 million deaths in Germany in a period of three years was described.... In view of such an event, which was considered at least 'conditionally probable' ... the legislator could therefore have examined the regulations of the Infection Protection Act and adapted them if necessary. This policy failure, as a result of which Germany had run into the epidemic virtually unprepared – without legal precautions to combat it, without stocks of masks, protective clothing and medical equipment, could not now lead to politicians being allowed to close any regulatory gap as they saw fit....

"The judge’s conclusion: there were no 'unjustifiable gaps in protection' that would have justified resorting to general clauses. These measures would have violated human dignity, which is 'inviolably guaranteed' in Article 1, Paragraph 1 of the Basic Law'.... 

It is one of the fundamental freedoms of people in a free society to be able to determine for themselves with which people (assuming they are willing) and under what circumstances they enter into contact. The free encounter of people with each other for the most diverse purposes is at the same time the elementary basis of society. The state has to refrain from any purposeful regulating and restricting intervention. The question of how many people a citizen invites to his home or with how many people a citizen meets in public space to go for a walk, to do sports, to go shopping or to sit on a park bench is of no fundamental interest to the state....

"In January 2020, hardly anyone in Germany could imagine that the state could forbid them from inviting their parents to their home under threat of a fine, unless they sent the other members of their family out of the house for the time they were there. Hardly anyone could imagine that three friends could be forbidden to sit together on a park bench. Never before has the state thought of resorting to such measures to combat an epidemic. Even in the [2013] risk analysis ... which after all described a scenario with 7.5 million deaths, a general ban on contact (as well as curfews and the extensive shutdown of public life) is not considered. Apart from quarantining contacts of infected persons and isolating infected persons, the only anti-epidemic measures mentioned are school closures, the cancellation of major events and hygiene recommendations (BT-Drs. 17/12051, p. 61f)....

"The district judge meticulously examined studies that show how ineffective the no-contact order is. He weighed the restrictions on freedom against the fact that protection has been neglected in old people’s homes, while the less vulnerable population is no longer allowed on the streets. At the same time, the judge dealt in detail with the collateral damage of the lockdown decisions, which is now becoming increasingly apparent.... 

Based on what has been said, there can be no doubt that the number of deaths attributable to the lockdown policy measures alone exceeds the number of deaths prevented by the lockdown many times over. For this reason alone, the standards to be assessed here do not satisfy the proportionality requirement. Added to this are the direct and indirect restrictions on freedom, the gigantic financial damage, the immense damage to health and the non-material damage. The word “disproportionate” is too colourless to even hint at the dimensions of what is happening. The lockdown policy pursued by the state government in the spring (and now again), of which the general ban on contact was (and is) an essential component, is a catastrophically wrong political decision with dramatic consequences for almost all areas of people’s lives, for society, for the state and for the countries of the Global South.

"However, this ruling is by no means the end of the story.... Thüringen’s equivalent of the DPP has already appealed the matter to the LandesGericht. Their judgment will definitely be available online, and I will report on that when it comes through."

Read more: https://ukhumanrightsblog.com/2021/01/25/german-district-court-declares-corona-ordinance-unconstitutional/

The fallacies behind state Covid mandates

No ‘rule of six’, please, we’re British. We can make our own decisions | The Times - Jonathan Sumption:

September 13, 2020 - "The prime minister has declared that he will do 'whatever is necessary' to stop the spread of the coronavirus. One of the things that is necessary, apparently, is to stop us enjoying the company of our friends and family in numbers above six. There are at least three fallacies behind these bossy declarations. One is that the spread of an endemic virus is amenable to government control. The second is that legal coercion is a good way of doing it. The third is that stopping infections is all that matters, so that one does not have to count the human cost.

"If one thing has become clear over the past six months, it is that aggressive measures of social distancing make little difference in the long run. They buy time, but reduce deaths only if they last indefinitely. Even buying time comes at a heavy price in depression, mental illness and misery.... Spain took the most extreme and brutally enforced measures in Europe. Sweden had the mildest measures: no lockdown or school closures and only moderate measures of social distancing. Yet Spain now [i.e., September - gd] has the worst second spike on the Continent and Sweden none at all.

"There are many variables that affect the long-term progress of the disease, including the population’s state of health and age balance. But one thing that does not seem to affect it is government policy. The reason seems tolerably clear. People can spread Covid-19 before their symptoms appear — and even if they have no symptoms. So isolating known cases is always too late. Whatever distancing measures you take, short of shutting everyone indefinitely in a box and feeding them through a tube, the virus will still spread, but more slowly....

"Of all the ways of buying time, legal coercion is the most inefficient. Legal coercion is indiscriminate, whereas this virus discriminates. It attacks the old and clinically vulnerable. Across Europe and the UK, the upsurge of infections is heavily concentrated among healthy people under 50. 

"The increasingly absurd health secretary Matt Hancock gets cross about this being pointed out. But, with a handful of exceptions, the infected young will experience only mild symptoms or none. What matters is not infections but hospital admissions and deaths, which have increased relatively little, both here and in other European countries. This suggests that, while the young and healthy are getting on with their lives, the vulnerable are sheltering themselves. It is happening spontaneously.

"What is more, it is exactly what ought to be happening. People are making their own judgments, guided by their own vulnerabilities and their own tolerance of risk. The result is a far more discriminating approach than the government’s regulatory blunderbuss. Left to themselves, people can manage this virus better than Boris Johnson and Hancock because they can fine-tune their precautions to their own situation and that of the people around them. Taking the decisions out of their hands and imposing one-size-fits-all measures is despotic and ineffective....

"To justify their policies and command submission, ministers have to resort to fear, the classic tool of despotic regimes.... Will the public take it seriously?... Why should they? No one can respect laws made with no achievable objective or coherent plan. There is a limit to what people can be expected to put up with from a government that thinks hyperactivity is a substitute for thought, that seems incapable of matching the measures to the problem and has nothing but crocodile tears for the collateral damage to people’s lives."

Read more: https://www.thetimes.co.uk/article/no-rule-of-six-please-were-british-we-can-make-our-own-decisions-9j8zbh5nh

The greatest interference with liberty in our history

Former Supreme Court judge LORD SUMPTION gives a withering critique of the Government's lockdown | The Mail on Sunday - Jonathan Sumption:

May 2, 2020 - "COVID-19 is not the greatest crisis in our history. It is not even the greatest public health crisis in our history. But the lockdown is without doubt the greatest interference with personal liberty in our history.... Even in wartime, we never confined the entire population to their homes, 24/7, if they did not have some excuse acceptable to a Minister.

"States have always tried to confine people known to be carrying dangerous infections. But we live in a new world in which, if we are ill, the State will try to cure us. From this, it is said to follow that the State can take control of our lives against our will even if we are healthy, lest we fall ill and need its services too much. Suddenly, it is our duty to save the NHS, not the other way round.

"It is now pointless to object to the imposition of the lockdown in the first place.... The question is how we get out of it. It is a pity that the Government did not ask itself that question when, in the blind panic following the delivery of Imperial College London's Professor Neil Ferguson's statistical projections, it legislated the lockdown on the hoof in a late-night press conference. They now find themselves trapped by their own decisions.

"Ministers have formulated five tests to be satisfied before the lockdown is lifted. What is wrong with these tests is that they are all about health and only about health.... They think that this will allow them to avoid criticism by sheltering behind the scientists. But that is just an evasion of political responsibility.... Ending the lockdown is a political decision, not a scientific one.  It boils down to a single question. Is it worth it? That depends only partly on the science. There are also moral judgments, constitutional values and economic consequences involved.

"First, the medical issue. I am not going to argue about Professor Ferguson's projections. They have caused some discomfort among reputable professionals. They are based on some rather arbitrary assumptions. And they leave out of the account important considerations, such as the adverse health consequences of the lockdown itself or the number of people who would have died anyway from underlying clinical conditions even without Covid-19....

"Second, we need to ask how many deaths we are prepared to accept in order to preserve other things that we value.... To say that life is priceless and nothing else counts is just empty rhetoric. People say it because it is emotionally comfortable and avoids awkward dilemmas. But they don't actually believe it. We went to war in 1939 because lives were worth losing for liberty. We allow cars on the roads because lives are worth losing for convenience. We travel by air although pollution kills. We tut-tut about it, but we willingly do it.

"Third question. What sort of life do we think we are protecting? There is more to life than the avoidance of death. Life is a drink with friends ... a crowded football match or a live concert ... a family celebration with children and grandchildren ...  companionship, an arm around one's back, laughter or tears shared at less than two metres. These things are not just optional extras. They are life itself. They are fundamental to our humanity, to our existence as social beings. Of course death is permanent, whereas joy may be temporarily suspended. But the force of that point depends on how temporary it really is....

"Fourth, there is the money question. People decry attempts to measure the mortality of Covid-19 against the economic cost of reducing it. But this too is rhetoric, and hypocritical rhetoric at that.... You and I and the editor of The Guardian and the driver of the No 9 bus and the Archbishop of Canterbury and the cashier at the supermarket all value and depend on money. Not just in the sense that it pays our wages or pensions.... A thriving economy, of the kind that we are now throwing away, is the source of our security and the foundation of our children's future. We would do well not to sneer at it. Poverty kills too. And when it does not kill, it maims, mentally, physically and socially.

"Last but not least, we have to ask ourselves what are the limits to the things that the State can legitimately do to people against their will in a liberal democracy. To say that there are no limits is the stuff of tyrants.... One of the more impressive observations of the Swedish epidemiologist Professor Johann Giesecke, in the interview in which he justified Sweden's refusal to lock its people down, was ... that there are some things that may work and that a totalitarian state like China can do. But a country like Sweden with its long liberal tradition cannot do them unless it wants to become like China.

"We, too, have to ask ourselves what kind of relationship we want with the State. Do we really want to be the kind of society where basic freedoms are conditional on the decisions of politicians in thrall to scientists and statisticians? Where human beings are just tools of public policy? A society in which the Government can confine most of the population without controversy is not one in which civilised people would want to live, regardless of their answers to these questions....

"Not everyone will agree, which is fair enough. These are difficult value judgments, on which one would not expect general agreement. The fundamental point is that these questions need to be confronted and publicly discussed by politicians without the kind of emotive evasions, propagandist slogans and generalised hype that have characterised their contribution so far."

Read more: https://www.dailymail.co.uk/debate/article-8281007/Former-Supreme-Court-judge-LORD-SUMPTION-gives-withering-critique-Governments-lockdown.html

Libertarian law student group forming in Canada

Libertarian student group Runnymede Society seeks to shake up Canada’s legal culture - The Globe and Mail - Sean Fine:

September 10, 2019 - "A libertarian student group has developed a growing presence in law schools, where it seeks to shake up a legal culture it views as devoutly uncritical of the Supreme Court and established Canadian legal norms. From a tiny group on a handful of campuses three years ago, the Runnymede Society now has a presence on nearly all of the country’s 18 law campuses....

"Similar to the influential Federalist Society in the United States, which also started as a student group, Runnymede has a core view that judges too often are guided by their own political preferences, rather than applying the law. In its first book of essays, published late last month with the provocative title Attacks on the Rule of Law From Within, and in edgy remarks at its events from leading judges, it has sought to spark a debate on some cherished Canadian principles, such as the Charter of Rights and Freedoms being a living tree that changes with the times.

"'Obviously the Canadian legal community is a small community, and the game is influencing the influencers, says Joanna Baron, a Runnymede founder and now the executive director of its parent group, the Calgary-based Canadian Constitution Foundation....

"Runnymede, which is non-partisan, has 'partnered' with the Federalist Society for some of its events, accepting speakers from the U.S. group, says Runnymede national director Mark Mancini, whose website biography says he has 'a mandate to shift the legal culture in Canada towards liberty.' (Runnymede is the name of the meadow where the Magna Carta was written in the 12th century.)...

"The Runnymede Society says it is not socially conservative and does not have the Federalist Society’s deep attachment to originalism – the idea that the Constitution should be interpreted as its authors intended, rather than according to the living-tree approach widely used in Canadian courts. But it wants students exposed to both views, Ms. Baron says....

"And 'liberty-oriented legal arguments are still seen as outliers.' One example of a liberty-oriented argument comes in the biggest case under way involving the Canadian Constitution Foundation – the eight-year-old Cambie Surgeries case in Vancouver, in which the foundation has retained leading lawyers to argue for a right to private medical care....

"Runnymede Society has a $250,000 annual budget, Mr. Mancini says, and gives charitable-tax receipts through the Canadian Constitution Foundation, which received just more than $5-million in donations in the year ending in March, 2019, from individuals and foundations. The biggest part of those donations was given for the Cambie case, Ms. Baron said....

"With the exception of a grant of about $10,000 from the U.S.-based Atlas Network, which funds groups supporting the rule of law and free markets, it has received no money from foreign sources, Ms. Baron said."

Read more: https://www.theglobeandmail.com/canada/article-libertarian-student-group-runnymede-society-seeks-to-shake-up-legal/
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5th Amendment covers biometric phone locks, California judge rules

Feds Can't Force You To Unlock Your iPhone With Finger Or Face, Judge Rules - Thomas Brewster, Forbes:

January 14, 2019 - "A California judge has ruled that American cops can’t force people to unlock a mobile phone with their face or finger....

""The order came from the U.S. District Court for the Northern District of California in the denial of a search warrant ... filed as part of an investigation into a Facebook extortion crime, in which a victim was asked to pay up or have an 'embarassing' video of them publicly released. The cops had some suspects in mind and wanted to raid their property. In doing so, the feds also wanted to open up any phone on the premises via facial recognition, a fingerprint or an iris.

"While the judge agreed that investigators had shown probable cause to search the property ... judge Kandis Westmore ruled ... that the government did not have the right, even with a warrant, to force suspects to incriminate themselves by unlocking their devices with their biological features. Previously, courts had decided biometric features, unlike passcodes, were not 'testimonial' ... because a suspect would have to willingly and verbally give up a passcode, which is not the case with biometrics. A password was therefore deemed testimony, but body parts were not, and so not granted Fifth Amendment protections against self-incrimination....

“'If a person cannot be compelled to provide a passcode because it is a testimonial communication, a person cannot be compelled to provide one’s finger, thumb, iris, face, or other biometric feature to unlock that same device,' the judge wrote. 'The undersigned finds that a biometric feature is analogous to the 20 nonverbal, physiological responses elicited during a polygraph test, which are used to determine guilt or innocence, and are considered testimonial....'

"Andrew Crocker, senior staff attorney at the digital rights nonprofit Electronic Frontier Foundation, said the latest California ruling went a step further than he’d seen other courts go....

"The magistrate judge decision could, of course, be overturned by a district court judge, as happened in Illinois in 2017 with a similar ruling. The best advice for anyone concerned about government overreach into their smartphones: Stick to a strong alphanumeric passcode that you won’t be compelled to disclose."

Read more: https://www.forbes.com/sites/thomasbrewster/2019/01/14/feds-cant-force-you-to-unlock-your-iphone-with-finger-or-face-judge-rules/
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U.S. Congress passes First Step Act

First Step Act: House passes criminal justice reform, following Senate - Vox - German Lopez:

December 20, 2018 - "The US House of Representatives on Thursday passed a criminal justice reform bill, sending the most significant changes to the federal criminal justice system in decades to President Donald Trump’s desk. The Senate previously overwhelmingly approved the legislation in an 87-12 vote.

"The bill, called the First Step Act, makes modest changes to the federal system. It very slightly pulls back punitive mandatory minimum sentences by, for example, letting judges give lower sentences in some circumstances and relaxing a 'three strikes' law to give 25 years instead of life in prison. It makes 2010 crack sentencing reforms, which eased crack sentences to bring them more in line with powder cocaine penalties, retroactive. It expands 'good time credits' that well-behaved inmates can use to get out of prison a little earlier. It creates 'earned time credits' that encourage inmates to take part in rehabilitative programs for an earlier release.

"It doesn’t end the war on drugs or mass incarceration. It won’t stop police from locking up nonviolent drug offenders. It doesn’t legalize marijuana. It doesn’t even end mandatory minimums or reduce prison sentences across the board, and it in fact only tweaks both. As the First Step Act’s name suggests, its supporters consider it a first step.

"The bill also only affects the federal system — which, with about 181,000 imprisoned people, holds a small but significant fraction of the US jail and prison population of 2.1 million.... In total, the First Step Act will let a few thousand inmates — likely around 6,000 to 7,000 — out of prison early once it’s enacted, and slightly shorten prison sentences in the future....

"Even though Trump ran on a 'tough on crime' platform in which he promised to support harsh prison sentences, the president has come to support the legislation — in large part thanks to the backing of key advisers, including his son-in-law Jared Kushner. He’s expected to sign the bill in the coming days."

Read more: https://www.vox.com/policy-and-politics/2018/12/20/18148482/first-step-act-criminal-justice-reform-house-congress
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Arizona politicians enjoy "legislative immunity"

An Arizona Lawmaker Thought Speeding Was OK Because of His Legislative Immunity - Hit & Run : Reason.com - Zurie Davis:

July 13, 2018 - "An Arizona politician has been caught on camera bragging that he's exempt from the law. The body-cam video, first shared by Parker Live Online, shows a sheriff's deputy speaking with state Rep. Paul Mosley (R–Lake Havasu City) after pulling him over for speeding.

"'I informed Mosley that 97 mph in a 55 mph zone is considered criminal speed,' the deputy wrote in his written report. 'Mosley stated he was just in a hurry to get home to surprise his family in Lake Havasu City, Arizona. Mosley also told me that I should just let him go and that I shouldn't waste anymore of my time dealing with him due to his immunity as a government official'....

"After a brief argument about speeding, the deputy walks away without appearing to give Mosley a speeding ticket. A search of traffic violations by the Associated Press does not show Mosley receiving a ticket that day.

"The legislative immunity that Mosley touted is found in Article 4, Part 2, Section 6 of the Arizona Constitution. It states, 'Members of the legislature shall be privileged from arrest in all cases except treason, felony, and breach of the peace, and they shall not be subject to any civil process during the session of the legislature, nor for fifteen days next before the commencement of each session.'

House Speaker J.D. Mesnard criticized Mosley's use of immunity, saying, 'Nothing short of an emergency justifies that kind of speeding, and assertions of immunity in that situation seem outside the intent of the constitutional provision regarding legislative immunity.'

"The Arizona Fraternal Order of Police also responded by rescinding its endorsement of Mosley.... Mosley's colleagues, both Republican and Democrat, have also responded negatively to the video.... On Thursday, Mosley apologized for his conduct in a Facebook post."

Read more: https://reason.com/blog/2018/07/13/arizona-lawmaker-speeding-immunity
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Watch the video: https://www.youtube.com/watch?v=wdbZIPusCMw

Record # of wrongly-jailed freed in US in 2017

Discovery of Police Corruption Freed Dozens of Imprisoned Americans in 2017 - Hit & Run : Reason.com - Scott Shackford:

Mar. 14, 2018 - "In 2017, 84 Americans were freed from prison after revelations of government misconduct helped prove them innocent. That sets a record, according to an annual report on exonerations in America... An additional 96 defendants in Chicago and Baltimore were released last year in 'group exonerations' as a result of two very high-profile police corruption cases.

"The details are part of the National Registry of Exonerations' annual report, a project by the University of California Irvine Newkirk Center for Science and Society, the University of Michigan Law School, and the Michigan State University College of Law. All in all, 139 exonerations were added to their registry for 2017, a drop from 171 in 2016. Though the total number of exonerations came down, a record number of people were exonerated due to official misconduct, mistaken eyewitness identification, false confessions, and perjury or false accusations.

"There has been a significant decline in exoneration for drug crimes ... because a backlog of cases from Harris County, Texas, has finally been cleared. In Harris County, the district attorney's office discovered hundreds of cases where defendants pleaded guilty to drug possession but subsequent crime lab tests discovered no actual illegal substances in the drugs. The county has been working since 2014 to go through all these cases and free people imprisoned for substances that turned out to not be illegal....

"Ledura Watkins, 61, was convicted of murder in 1976 in Detroit. After serving 41 years in prison, he was exonerated and released in June after details came out about faulty forensic evidence and police and prosecutor misconduct. His case represents the longest sentence served by anybody on the registry....

"Among the behaviors that led to this record-setting year, the most common form was concealing evidence. Of the 51 cases where a person convicted of homicide was subsequently exonerated in 2017, 43 involved official misconduct.... There were 29 exonerations involving false confessions in 2017, another record..... Eleven exonerations were a result of false confessions connected to ... one detective.

"In 66 exonerations — almost half the total — the underlying crime didn't even happen."

Read more: https://reason.com/blog/2018/03/14/discovery-of-police-corruption-freed-doz
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Bastiat on The Law and its limits

Bastiat Knew the Proper Limits of Government Force - Foundation for Economic Education - Working for a free and prosperous world - Frank Hollenbeck:

February 18, 2018 - "High school students in the United States are usually required to take a course in government. They learn about the structure of government but rarely discover the appropriate role of government.... If they did, one of their required readings would be Frédéric Bastiat’s treatise The Law, a seminal mid-nineteenth-century work....

"Bastiat states that individuals are born with the natural rights of life, liberty, and property. From this notion, the only proper function of the use of force or the law is the collective organization of the natural right to self-defense of these rights....

"He then defines any illegitimate use of force or of the law as legal plunder. This is an all-encompassing term which includes any unjustified violation of the life, liberty, or property of others. Many examples abound today with regulations on labor (e.g. minimum wage laws), products (e.g. subsidies and tariffs), health care, education, or even the use of marijuana or any other drugs....

"The problem with legal plunder is that it creates hatred and discord and eats at the very fabric of society. The US Civil War was fought primarily for two reasons: slavery and tariffs. The first was a violation of liberty, the second was a violation of property....

"The law should be a viewed as a negation; if you don’t violate the life, liberty, or property of someone else, you should not see the arm of the law or care much about the role of government.... If the law were properly defined, you would not blame the government for your misfortunes nor would you credit it with your successes.... Bastiat wrote:

[I]f you attempt to make the law religious, fraternal, equalizing, philanthropic, industrial, literary, or artistic — you will then be lost in an uncharted territory, in vagueness and uncertainty, in a forced utopia or, even worse, in a multitude of utopias, each striving to seize the law and impose it upon you. This is true because fraternity and philanthropy, unlike justice, do not have precise limits. Once started, where will you stop? And where will the law stop itself?

"More important than left or right is the concept of liberty. The solution to the problem of human relationships is freedom, and it thrives most when the role of government is limited, the use of force is constrained, and the law is confined to the administration of universal justice, or, more precisely, the law is exclusively used as a roadblock to injustice."

Read more: https://fee.org/articles/bastiat-knew-the-proper-limits-of-government-force/
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Volokh blog moves from Post to Reason

Inside the Beltway: Legal blog departs Washington Post for libertarian publication - Washington Times - Jennifer Harper:

December 13, 2017 - "An influential Washington Post blogger has bid farewell to that news organization. The Volokh Conspiracy — a legal and policy blog launched 15 years ago by UCLA law professor Eugene Volokh — has moved to Reason Magazine, published by the Los Angeles-based Reason Foundation, a bastion of libertarian principles, including individual liberty, free markets and the rule of law....

"Volokh — whose has two dozen law professors and attorneys on his vibrant team — describes the contributors as 'libertarian, conservative, centrist, or some mixture of these.' He also says he was concerned by the Post’s ever-tightening paywall and said that he wanted to assert the blog’s editorial independence — 'making sure that we can write what we want, in the way that we think is right....

"'We especially value our loyal, longtime readers, who are particularly likely to trust and enjoy our work. And it’s important to us that law students, college students, young lawyers, and others have free, easy access to the analysis and discussion on our site. Moving to Reason lets us do these things, while still partnering with a respected media organization that we have long admired'....

"'In an era of hyper-partisanship and tribal politics, The Volokh Conspiracy’s commitment to intellectual honesty and rational discourse has never been more essential or important. Eugene and the blog’s contributors have shaped national conversations on key policy areas and changed the way Supreme Court cases and legal issues are framed and discussed precisely because they engage ideas and opponents fairly, openly, and factually,' notes Nick Gillespie, editor-in-chief of Reason.com, who vows to provide 'the openness and independence the blog needs to thrive and expand its impressive influence.'"

Find the legal eagles’ new nest at Reason.com/Volokh."

Read more: https://www.washingtontimes.com/news/2017/dec/13/inside-the-beltway-legal-bloggers-walk-away-from-w/
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Why is ignorance of the law "no excuse"?

If the Law Is This Complicated, Why Shouldn’t Ignorance Be an Excuse? - Clark Neily & Jack Brown - Townhall:

October 30, 2017 - "When was the last time you sat down with a complete set of the federal, state, and local codes setting forth the tens of thousands of criminal violations for which you could be sent to jail? If you answered 'never,' you’re in good company. Nevertheless, America’s judges still cling to the proposition that it’s perfectly fine to lock people up for doing something they had no idea was illegal. But it’s not fine, and the justifications for that palpably unfair rule have only grown more threadbare with time....

"One rationale for the maxim that ignorance of the law is no excuse was to give people an incentive to educate themselves about legal requirements. But as any law student will attest, one can study those requirements for years and barely scratch the surface. Another rationale was to prevent people from escaping criminal penalties by claiming ignorance, even when they actually knew they were breaking the law. That might have made sense in ancient times when there were only a few dozen crimes on the books and all of them involved morally blameworthy conduct like murder, arson, or rape.

"But today the law has grown so complicated, and the relationship between law and morality so attenuated, that these supporting rationales no longer make sense. There have been multiple attempts to count the number of federal crimes, including by the Department of Justice, and no one has yet succeeded. Title 18 of the United States Code, which governs crimes and criminal procedure, has over 6,000 sections, and it is estimated that there are more than 4,500 federal crimes and over 300,000 agency regulations containing criminal penalties. And of course this does not include the dizzying array of state and local criminal codes, ignorance of which is practically assured but still not excused....

"Moreover, ... the increasing criminalization of morally blameless conduct makes the punishment of innocent mistakes even more likely. For example, federal law makes it illegalto possess the feather of any native migratory bird even if one just picks it up off the ground, and the potential penalties for doing so include fines and even time in prison....

"A trio of seafood importers were sentenced to eight years in federal prison because some of the lobsters they imported from Honduras were alleged to be undersized or egg-bearing females that were unlawfully shipped in plastic bags instead of the cardboard boxes mandated by federal law.....

"Indianapolis 500 champion Bobby Unser ... was convicted of illegally driving his snowmobile in a National Forest Wilderness Area in 1996 after he and a friend were stranded in the mountains during a blizzard, and forced to take shelter in a barn while suffering from hypothermia....

"In 2009, Robert Eldridge, a fisherman from West Chatham, Massachusetts, faced up to a $100,000 fine and a year in prison after he freed a humpback whale that had been caught in his fishing gear, and only escaped with a comparatively small $500 fine after pleading guilty. More recently, Alison Capo also faced a year in prison after her daughter rescued a federally protected woodpecker from the family cat.... (Her initial fine of $535 was ltimately rescinded by the agency, claiming it was a “clerical error.')....

"Subjecting well-meaning homeowners, desperate snowmobilers, innocent password sharers, and countless other blameless Americans to prosecution for conduct that no reasonable person would know was illegal does nothing to advance the cause of justice and much to undermine it."

Read more: https://townhall.com/columnists/clarkneily/2017/10/30/if-the-law-is-this-complicated-why-shouldnt-ignorance-be-an-excuse-n2401290

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State must reimburse wrongfully convicted, SCOTUS rules

Wrongfully Convicted Entitled to Refunds, Rules Supreme Court - David G. Savage, Governing.com:

April 20, 2017 - "People who are freed from prison when their convictions are reversed deserve a refund of what they paid in fees, court costs and restitution, the Supreme Court ruled Wednesday....

"The 7-1 decision orders the state of Colorado to refund several thousand dollars to two defendants, a woman and a man, who were convicted of sex crimes but had their convictions reversed. Shannon Nelson, who was charged with abusing her children, was acquitted in a retrial, and the prostitution-related charges against Louis Madden were dropped.

"In both instances, the state insisted on keeping the restitution they had paid.

"UCLA law professor Stuart Banner and the UCLA Supreme Court Clinic appealed the case of Nelson v. Colorado to the high court last year, noting that Colorado was the only state that regularly refused to refund money taken from criminal defendants who were later exonerated.

"Arguing the case in January, Banner said that as a matter of common sense and long legal tradition, people who were exonerated had a right to get back the money that was taken from them.

"The state's lawyer had raised eyebrows among the justices by arguing that the money in question was 'the state's money' because it was 'obtained pursuant to a conviction.'

"Colorado had adopted an Exoneration Act that allowed 'an innocent person who was wrongly convicted' to file a civil suit to seek refunds, but only if they could prove they were innocent of the crime. Most states allowed exonerated people to file a motion with a trial judge seeking a refund.

"Ginsburg said Colorado's scheme violates the 14th Amendment's protection for due process of law because it presumes the exonerated defendants are still guilty.

"'After a conviction has been reversed, unless and until the defendant should be retried, he must be presumed innocent of that charge,' she said, quoting earlier rulings. 'Colorado may not presume a person, adjudged guilty of no crime, nonetheless guilty enough for monetary extractions.'"

http://www.governing.com/topics/public-justice-safety/tns-scotus-wrongful-conviction.html
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Globe: Please, please think of the treaties!

The collateral damage of legalizing marijuana - The Globe and Mail - Steven Hoffman:

April 17, 2017 - "For decades, the world has collectively criminalized and controlled access to [cannabis] through three international treaties.... Article 4(c) of the Single Convention limits drugs’ use 'exclusively to medical and scientific purposes,' and Article 36(1)(a) requires state punishment for their possession, production, sale and delivery. Article 3(2) of the Trafficking Convention specifically criminalizes drugs’ possession, even if just for personal consumption.

Of course, countries do have some flexibility in implementing these treaties.... Yet the treaties’ flexibilities are rather limited. Unless we change our constitution, Canada cannot legally legalize cannabis without either renegotiating the UN treaties, obtaining special exceptions, finding creative workarounds, or withdrawing from them.

"Negotiations, exceptions and creative lawyering will only get Canada so far. In a report published last week, my University of Ottawa law students explained ... there is only one promising legal workaround – one that utilizes the treaties’ 'scientific purposes' exemption. This would involve claiming that cannabis legalization was necessary to conduct a big natural experiment on the inter-generational effects of legal cannabis and likely require enrolling every cannabis purchaser into a long-term cohort study....

"But if the government deems this workaround infeasible, then withdrawing from the treaties is the only other option. Yet this requires giving at least one year’s notice. If Canada wants to legalize cannabis on July 1, 2018, it needs to trigger its withdrawal by this July 1. That leaves only a couple of months for diplomats to try negotiating changes or special exceptions before just unilaterally withdrawing from the treaties....

"The consequences of undermining international law are severe.... This week, we saw Syria again use chemical weapons and there are rumours of a forthcoming North Korean nuclear test.... Canadians may not care about international law when it’s just about [cannabis], but they probably do care when these laws help fight chemical weapons, nuclear proliferation, and human rights abuses....

"While there may be significant health and social benefits from legalizing cannabis, we must not allow international law to become collateral damage in the pursuit of other objectives.... The alternative – undermining international law – is unacceptable, unfair and unjust to all."

Read more: http://www.theglobeandmail.com/opinion/the-collateral-damage-of-legalizing-marijuana/article34717440/
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Gary Johnson's SCOTUS picks 'best of them all'

Best Supreme Court Shortlist Of Them All: Gary Johnson’s | Above the Law - David Lat:

November 2, 2016 - "I’m a fan of the Supreme Court shortlist just released by libertarian president candidate Gary Johnson (and not just because I have some right-of-center tendencies). Say what you will about these folks, but at least they’re interesting.... All six figures on this list are brilliant and well credentialed....

"Ninth Circuit Court of Appeals Judge Alex Kozinski ... needs no introduction to regular readers of Above the Law.... Damon Root of Reason offers a good summary of his appeal, noting the judge’s 'principled defenses of the First Amendment, the Second Amendment, limited federal powers, and the due process rights of criminal defendants.' And let’s not forget his TV and movie career....

"Randy Barnett: The Georgetown law professor is most famous for his libertarian legal advocacy, including the medical marijuana case of Gonzalez v. Raich, which he argued before SCOTUS, and NFIB v. Sebelius, the major Obamacare challenge.

"Judge Janice Rogers Brown ... the D.C. Circuit judge 'is revered in libertarian legal circles for her stirring votes in defense of the Fourth Amendment against pro-police ‘orthodoxy’ and in defense of economic liberty against ‘burdensome regulation'.... Back in 2010, I mentioned her in my round-up of uncomfirmable conservative dream candidates for SCOTUS.

"Tom Campbell, before he joined the faculty (and served as dean) of Chapman Law, taught law at Stanford and business at UC Berkeley. This former SCOTUS clerk also has a Ph.D. from the University of Chicago — in economics, a Chicago specialty — and a J.D. from Harvard Law. As a former U.S. Congressman and California State Senator, he would bring much-needed political experience to the Court.

"Miguel Estrada ... a Harvard Law grad and ex-SCOTUS clerk, ... was famously nominated to the D.C. Circuit back in 2001, before falling victim to a filibuster (and despite receiving a unanimous 'well-qualified' rating from the ABA). He’s widely regarded as one of the finest appellate advocates in the nation, praised by Justice Elena Kagan — with whom he disagrees on many issues — as 'an extraordinary lawyer' with 'a towering intellect.'

Jonathan Turley ... [t]he George Washington University law professor supplements his scholarship with real-world litigation, in matters ranging from the Clinton impeachment to the Sister Wives case, and he engages in frequent media commentary, in broadcast and print as well as online....

"Johnson has a zero percent chance of winning — and that’s too bad, at least for the Supreme Court."

Read more: http://abovethelaw.com/2016/11/the-best-supreme-court-shortlist-of-them-all-gary-johnsons/?rf=1
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Gary Johnson announces Supreme Court choices

Libertarian presidential candidate names two law profs as potential SCOTUS picks - Debra Cassens Weiss, ABA Journal:

October 17, 2016 - "Libertarian presidential candidate Gary Johnson has announced his U.S. Supreme Court shortlist: law professors Jonathan Turley of George Washington University and Tom Campbell of Chapman University....

"Turley has challenged provisions in Utah’s polygamy law, and has sued over executive actions regarding the Affordable Care Act. 'Though I have never met Governor Johnson,' Turley wrote on his blog, 'I obviously share many values with him on the constitutional system.'

"Campbell told Law.com Johnson may have noticed his support for separation of powers, as well as his newspaper op-ed last spring suggesting that Republicans with a Libertarian bent should consider a third-party candidate."

Read: http://www.abajournal.com/news/article/libertarian_presidential_candidate_names_two_law_profs_as_potential_scotus
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Gary Johnson’s Supreme Court Picks Would Add More ‘Diversity’ To The Court | Above the Law - Elie Mystal:

October 17, 2016 - "As a purely intellectual exercise, I don’t hate these picks. Campbell is a law and economics Republican who would probably allow the Court to continue being the most pro-corporate collection of justices in American history. Turley is a civil libertarian who thinks the Second Amendment condemns us all to living in an armed hellscape. Both of these guys studied at the University of Chicago at some point. We’d be getting robust defenses of the market’s supremacy to solve issues for us from either of these guys.

"BUT THEY’RE NOT PROSECUTORS. Their legal experience is more theoretical than practical, but here are two guys who haven’t made their bones in the incarceration-industrial complex. Turley has media experience, Campbell has political experience. Nobody on the current Court has much of either. Yes, they’re both white males.... But there is more than one kind of diversity needed on the Court, and these guys would add some much needed professional diversity to the Court."

Read more: http://abovethelaw.com/2016/10/gary-johnsons-supreme-court-picks-would-add-more-diversity-to-the-court/
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Clint Bolick named to Arizona Supreme Court

Institute for Justice co-founder named to Arizona Supreme Court - The Washington Post - Jonathan H. Adler, The Volokh Conspiracy:

January 6, 2016 - "This morning, Arizona Gov. Doug Ducey announced the appointment of Clint Bolick to the Arizona Supreme Court. The appointment is notable in several respects. This is Ducey’s first Supreme Court appointment. In selecting Bolick, Ducey also went outside party ranks. (Ducey is a Republican; Bolick is an independent.)

"The most notable thing about this appointment is Bolick’s extensive background in libertarian public interest litigation and advocacy of greater judicial protection of property rights and economic liberty. Among other things, Bolick co-founded the Institute for Justice, served as president of the Alliance for School Choice, and (most recently) was vice president for litigation at the Arizona-based Goldwater Institute. Before co-founding IJ, Bolick had worked at the Landmark Legal Foundation, the Equal Employment Opportunity Commission and the Justice Department. He is also the author of several books, including Unfinished Business: A Civil Rights Strategy for America’s Third Century, David’s Hammer: The Case for an Activist Judiciary,” and, most recently, Immigration Wars: Forging an American Solution (co-authored with Jeb Bush)....

"In making the appointment, Ducey praised Bolick as a 'nationally renowned and respected as a constitutional law scholar and as a champion of liberty.' According to Ducey, Bolick 'brings extensive experience and expertise, an unwavering regard for the rule of law and a firm commitment to the state and citizens of Arizona. I’m confident Clint will serve impartially and honorably in this important role.'

"Bolick will face an initial retention election in two years, and then every six years thereafter. Justices on the Arizona Supreme Court also must retire at age 70."

Read more: https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/01/06/institute-for-justice-co-founder-named-to-arizona-supreme-court/

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Police used as tax collectors, justice reform conference told

America's most conservative figures make case for criminal justice reform: Jarvis DeBerry | NOLA.com:

November 6, 2015 - "You want to know why some Ferguson, Mo., residents hated their police? Grover Norquist, the head of Americans for Tax Reform and perhaps the most rigidly conservative man in the country, gave his opinion Friday morning (Nov. 6). Norquist, as everybody knows, hates taxes. And at a criminal justice reform conference hosted by the Charles Koch Institute, Norquist argued that humankind's antipathy for the tax collector explains the anger in that St. Louis suburb.

"As a March report from the Department of Justice revealed, city officials in Ferguson relied on tickets and fees to fund their government. Every year, officials were raising projections, that is, the amount they expected to extract from the people. And who were they expecting to bring them that money? The police.

"'We've turned these guys into tax collectors then we wonder why we hate them," Norquist said. 'Because we haven't read history. Take them out of the tax-collection business!'....<

"Stephanie Cutter, who served as a deputy campaign manager for President Barack Obama in 2012 ... agreed with Norquist that it's problematic to send police out primarily to collect fees, but insisted that it's more complex than that. Cutter also stood with Norquist in opposition to civil asset forfeiture. That's when, for example, the police raid a house looking for drugs and take an occupant's property or cash. Even if the person is acquitted of a crime, he or she will likely have to sue to get their property back. Suing often costs more than the value of the seized property. 'There's nothing fair about it,' Cutter said....

"[O]ther conference panelists complained about the increasing militarization of our police forces. There was also lots of talk about 'overcriminalization.' Some of the panelists seem to equate increasing government regulations on businesses with overcriminalization, but Stephen Smith, a law professor at Notre Dame, said what's happening to individuals is far worse than anything happening to corporations.

"Many of our criminal statutes are vaguely written and judges interpret them in a way that's most favorable to prosecutors, Smith said, and in so many places, indigent defense is a joke....

"Citing the work of attorney Harvey Silverglate who says the average American unwittingly commits three felonies a day, Smith said that in the feds' eyes, 'Everything's a crime. You can try to fight it. Even if you have the money to fight it, you're still going to be convicted.'"

Read more: http://www.nola.com/crime/index.ssf/2015/11/grover_norquist_reform.html
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Mens rea bills introduced in U.S. House & Senate

In reforming federal criminal law, intent is key | TheHill - James R. Copland & Rafael Mangual:

November 27, 2015 - "On November 17, the House Judiciary Committee unveiled four bills to address what we and other reformers have called 'over-criminalization.' The first of these, The Criminal Code Improvement Act, was principally sponsored by Rep. James Sensenbrenner (R-Wis.) and bipartisan cosponsors including Rep. John Conyers (D-Mich.), the House’s longest-serving member. The bill sought to clarify federal criminal standards regarding criminal intent. The next day, Sen. Orrin Hatch (R-Utah) introduced his own, similar criminal justice reform bill.

"On November 18, Sensenbrenner’s bill sailed through committee markup unanimously, but left-wing groups such as ThinkProgress and Public Citizen came out in opposition, falsely characterizing it as a sop to business. The White House followed suit — placing in jeopardy the Obama administration’s stated desire for criminal-justice reform, including changes to federal sentencing laws.

"That’s unfortunate. Over-criminalization, which refers to the vast expansion of what is deemed criminal under law, is a very real concern. The federal criminal code now contains nearly 5,000 crimes and more than 300,000 criminally enforceable regulations. Thus, it is impossible even for trained attorneys, let alone the everyday citizen, to know what may be considered criminal. According to civil-libertarian lawyer Harvey Silvergate, the average American unknowingly commits three felonies a day....

"Traditionally, individuals could be held civilly liable for accidentally transgressing legal norms, but to be criminally convicted, an individual had to have mens rea, Latin for a 'guilty mind.' The federal legal and regulatory codes, however, are now rife with offenses that lack such protections: According to a 2010 study by the Heritage Foundation and the National Association of Criminal Defense Lawyers, 57 percent of the 446 new nonviolent crimes proposed in the 109th Congress lacked the traditional intent standard, as did 64 percent of those crimes ultimately enacted into law....

"Sensenbrenner’s and Hatch’s bills squarely address this problem by making 'knowing' or 'willful' violations the default rule for criminal violations in federal law: Though Congress may make certain actions criminal without a showing of intent, courts would no longer be permitted to assume that Congress meant to do so unless a statute says so explicitly.....

"Indeed, fourteen states already have statutes that explicitly create a default criminal-intent standard. Ohio most recently enacted such legislation, in December 2014. Like Sensenbrenner’s bill in committee, Ohio’s default criminal-intent act passed both houses of its legislature unanimously, and there is no good reason why there shouldn’t be similarly broad, bipartisan support for the idea at the federal level.

"Reasonable minds can differ about the merits of various federal laws and regulations, but it’s indisputably impossible to navigate 300,000 rules without risk of error.... The White House’s stated opposition aside, let’s hope Congress takes up the new bills — and starts taking criminal intent seriously."

Read more: http://thehill.com/blogs/congress-blog/judicial/261355-in-reforming-federal-criminal-law-intent-is-key
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Marijuana use a human right, Mexican Supreme Court rules

Pot gets green light from Mexico's Supreme Court - Mexico Daily News:

November 5, 2015 - "By four votes to one, the court’s first chamber approved the cultivation, processing and possession of cannabis for personal use. However, the ruling will only apply to four activists – Josefina Ricaño Vàndala, Armando Santacruz González, José Pablo Girault and Juan Francisco Torres Landa Ruffo – who challenged the law by applying to set up a marijuana club in 2013 for recreational, non-commercial use....

"'The ruling will only apply to the persons it protects – the resolution of the first chamber does not legalize the supply or sale [of cannabis],' said Humberto Castellejos, legal counsel in the office of the president. 'Growing it with any other objective, even for recreation, is a crime according to the law.'

"Nevertheless, campaigners for legalization including the four activists who challenged the law, are optimistic that the ruling will pave the way for an eventual dismantling of Mexico’s strict marijuana laws....

"The ruling is the first of its kind and establishes a precedent for similar cases in future. Four more like it would establish jurisprudence and require the federal government to change Mexico’s cannabis laws.

"Another legalization campaigner, Hector Aguilar Camín, also welcomed the ruling. 'This is a watershed decision; we have to start separating the substance from the hell produced by its persecution,' he said in reference to Mexico’s drug wars, which have killed thousands of people.

"'Our objective was always to change drug policy in this country, which is one of the main motors for the violence, corruption and the violation of human rights in Mexico,' said Santacruz Gonzàlez.

"Mexican law permits possession of up to five grams of cannabis, but activists say this is a halfway measure as few users buy such small amounts....

Supreme Court Judge Arturo Zaldivar, who proposed the ruling, based his argument on the human right to 'personal development' and recreation that did not harm others."

Read more: http://mexiconewsdaily.com/news/pot-gets-green-light-from-supreme-court/
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