Pick xenophobe A or xenophobe B

Arizona Senator Tom O'Halleran is a tired old hack with a miserable "Needs Improvement" score on spending issues from Americans for Prosperity who cast his vote for the latest red-ink-soaked state budget that threatens to put taxpayers on the hook to cover a looming $1.5 billion deficit. So what's his primary opponent Steve Pierce challenging him over?

Who will be meaner to brown people, of course. My wife being a registered Republican, I have mailers from both candidates touting their tough-tough-toughness on border issues. That's all these mailers address.

Too bad I support immigration -- even illegal immigration.

Yes, Pierce does -- oh yeah -- say he's a bit more conservative on spending. But then in the next breath he promises to throw more dollars at government schools.

Which leaves primary voters choosing between two candidates who are campaigning on their dislike of Mexicans.

The Democratic candidate, Pat Chancerelle, doesn't seem to hate Mexicans, and she probably wouldn't be any worse on spending than O'Halleran -- but she'll need to take time off from starring in the latest Mummy movie to compete for the office. And as a candidate she ... oh ... well ... I'm sure she's a very nice person.

I can't find a Libertarian candidate, or I'd park my vote there on general principle.

With so much at stake, isn't it nice to know what issues excite the candidates?

A little jury nullification in Boston

This past March, a remarkable thing happened. A juror in a federal trial in Massachusetts actually exercised his responsibility to question the government's authority to prosecute a defendant. Apparently pressed by fellow jurors to address his doubts to the bench, Thomas R. Eddlem sent a note to US District Court Judge William G. Young asking: "Where – if two-thirds of both houses of congress voted in 1919 that it was necessary to amend the constitution to give congress the power to ban mere possession of a substance (prohibition of alcohol in that case) – is the constitutional grant of authority to ban mere possession of cocaine today?"

Taken aback, Judge Young essentially replied that the government has the power because courts say it does -- based on the infinitely malleable Commerce Clause. Unmoved, Eddlem persisted, and was ultimately yanked from the jury for his troubles and replaced by an alternate.

It's impressive enough that a juror had the temerity to question the grounds for a prosecution -- most jurors today grudgingly serve their time as rubber stamps for the judge, doing what they're told and neglecting their role as representatives of the people in the courtroom.

Even more impressive is that Eddlem -- a radio talk-show host and former research director for the John Birch Society -- raised a valid objection that has been a legal sore point for many scholars. No less an authority than Supreme Court Justice Clarence Thomas raised a similar concern in his dissent (PDF) in Gonzales v. Raich:

Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything–and the Federal Government is no longer one of limited and enumerated powers.

So Eddlem's question to Judge Young is one that has been echoed at the highest level -- hardly a fringe concern. He exercised his responsibilities as a juror and did so in an extremely credible way. Nevertheless, Judge Young was so shocked that he penned a 41-page legal memorandum (PDF) denouncing Eddlem's presumption, as well as the doctrine of "jury nullification" that he accused Eddlem of espousing.

Jury nullification is when jurors are so offended by a law or by the application of a law that they refuse to bring a conviction, even when a defendant is clearly guilty. During American history, juries have nullified (refused to enforce) laws against assisting runaway slaves, peddling alcohol in violation of Prohibition, dodging the draft and smoking marijuana, among other laws that draw the scorn of a sizeable portion of the population.

Young's memorandum cited chapter and verse about alleged abuses of nullification and the dangers it supposedly poses to American democracy -- though in doing so, he managed to completely ignore Clay S. Conrad's Jury Nullification, the definitive book on the subject, which ably addresses such objections. That's an odd omission, since Young does cite a minor article by Conrad as an example of political advocacy for nullification.

Eddlem denies that he supports nullification and, in fact, says he would have voted to convict in a state court -- his objections were constitutional in nature. But that clearly puts him in the tradition of a long line of jurors who have refused to do the government's bidding in cases of prosecutions they considered unjust.

But whether it was nullification or not, was Eddlem's action such a good idea?

Remember, every step along the way, all of the other participants in the criminal justice system exercise discretion based on their own sense of what's right. Police officers look the other way, prosecutors decide not to pursue cases, judges dismiss or reduce charges and pass down light sentences. These officials are all representatives of the state. It's only the jury, the representatives of the people in the court, that Judge Young and his colleagues say should behave like automatons. That makes no sense -- or rather, it makes an unfortunate self-serving sense when argued by a judge, whose power is diminished by independent jurors.

Really, there's every reason to recognize the jury's right to exercise at least as much mercy as the other participants in the criminal justice system -- especially given their role as the last check on the power of the state. That right was not just recognized, but celebrated by the founders. John Adams, the nation's second president, said it is the juror's "duty ... to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court."

In fact, there's some evidence that more jurors than we usually realize appreciate their power to mitigate the impact of the law. In 1999, the Washington Post reported:

The most concrete sign of the trend is the sharp jump in the percentage of trials that end in hung juries. For decades, a 5 percent hung jury rate was considered the norm, derived from a landmark study of the American jury by Harry Kalven Jr. and Hans Zeisel published 30 years ago. In recent years, however, that figure has doubled and quadrupled, depending on location. Some local courts in California, for example, have reported more than 20 percent of trials ending in hung juries. Federal criminal cases in Washington, D.C., averaged 15 percent hung juries in 1996 (the most recent year for which data were available), three times the rate in 1991.

A hung jury is simply one in which the 12 men and women around the table disagree over whether to convict or acquit. But judges, lawyers and others who study the phenomenon suspect that more and more differences are erupting not over the evidence in these cases, but over whether the law being broken is fair.

Eddlem may have drawn the headlines, but jurors across the country are quietly exercising the discretion he publicly advocates.

Just a dog?

I love my dogs almost as much as I love my kid. I have no compunctions about breaking traffic laws to get beloved members of my family urgent medical care. And I don't like police officers on power trips who are dismissive of the value of the lives of members of my family. So if I had been in Michael Gonzalez's shoes, I don't think Officer Paul Stephens would have survived the encounter captured in this video.



Stephens is "undergoing counseling"? I'll be happy to give him a session or two.

Popular support for censoring 'public' airwaves

Almost half (47%) of Americans think the government should dictate the political content of radio and television broadcasts in the name of "balance" between liberal and conservative views -- and 31% think the same controls should be imposed on Websites and bloggers. That's according to a Rasmussen Reports survey released last week. All this despite the fact that most Americans (71%) think it is "already possible for just about any political view to be heard in today’s media."

My guess is that many people miss the connection between the lack of a modern "Fairness Doctrine" -- a government mandate to provide "balanced" views in the media -- and the availability of "just about any political view." When the government intervenes -- as it did in the past -- "balance" becomes a matter of airing two flavors of mainstream political views that satisfy the powerful officials who espouse such views, at the expense of ideas that don't easily fit into categories favored by FCC apparatchiks. The easiest way for broadcasters to satisfy the law is to not air too much opinionated discussion, and to keep what they do air within the realm of off-the-shelf received wisdom that is easily packaged with a matching opinion from the "other" side -- as if there are only two sides.

The lethal impact of of Fairness Doctrine-style content regulation on free speech is why Supreme Court Justice William O. Douglas once wrote, "The Fairness Doctrine has no place in our First Amendment regime. It puts the head of the camel inside the tent and enables administration after administration to toy with TV or radio in order to serve its sordid or its benevolent ends."

Americans are probably more tolerant of open, unregulated debate on the Internet than on the air because the airwaves are considered a "public" medium subject to government censorship. Little known, however, is the fact that the idea of "public" airwaves was originally promulgated by the government -- especially by then Secretary of Commerce Herbert Hoover -- to justify government censorship of the (then) new medium of radio when officialdom was still smarting from court decisions reinforcing the autonomy of print media.

In his 1991 book, Freedom, Technology and the First Amendment, Jonathan Emord wrote:

As early as the First National Radio Conference in 1922, Secretary of Commerce Hoover had said that the "ether" was a "public" medium. By the Fourth National Radio Conference in 1925, he had developed a theory that the entire broadcasting industry was one necessarily imbued with a "public" character, that is, a nature that must be under government controls to ensure that it presented programming in the "public interest." ...

In Hoover's view, the broadcaster's freedom of speech had to be suppressed to ensure the propogation of a "preferred" message, one tailored by government for the benefit of the listening public. ...

Hoover's "public airwaves" justification for government control of broadcasting content was as self-serving as a government declaration of a monopoly over newsprint to control the content of newspapers. Unfortunately, it has taken on a life of its own, with people citing the "public" nature of the airwaves as if it were Holy Writ, rather than a political power play by a government official who was more than a bit of a control freak.

So, decades after Hoover made his move, we still have a plurality of Americans demanding that government control the ideas they hear, as if that will somehow be "fair."

Bad laws breed civil liberties violations

I write a lot about the excesses of law-enforcement officers during the course of their efforts to uphold one law or another. Doors kicked in, people killed, dogs shot, phone lines tapped, curfews imposed -- they're all examples of official overreaching at that unpleasant intersection of private activity and state disapproval. For some people, the implication of a lot of coverage of such abuses is that a little more scrutiny, improved oversight and the right people in charge will make law enforcement a much less perilous, much more respectful enterprise, which the people need not fear.

But what if that's not the case? What if, in many circumstances, we've handed police and regulators and enforcers of many stripes missions that are impossible to fulfill? It may be that we've assigned law-enforcers goals so frustratingly elusive that even angels could not resist the temptation to escalate tactics to insane extremes, trampling liberty and decency along the way.

Deranged escalation may best be represented -- for now -- by the violent raid on the home of Berwyn Heights Mayor Cheye Calvo, during which his dogs were killed by armed and armored narcs apparently fearful that the pooches might resent the marijuana-suppressing intrusion. Yes, worse raids have deprived people of their lives in the past -- Radley Balko has documented the bloody outcomes in Overkill: The Rise of Paramilitary Police Raids in America (PDF). But when a creature of the state, however minor, like Calvo can't protect his own pets from police overstepping, you know we've stepped over a cliff.

But that leap into the void was probably inevitable given the government's obsession with achieving the impossible: eliminating the consumption of marijuana by Americans. Seventy years after Reefer Madness, decades into the War on Drugs, a survey by the World Health Organization still says that 42.4% of us have smoked grass.


That drug prohibition thing isn't going so well. And after a couple of consecutive lifetimes of failure, entering the homes of low-level government officials with guns blazing because somebody tried to deliver a package of forbidden weed to the house may suddenly take on a false patina of sanity to prohibitionists who have lost a bit of perspective.

The fact is, there have been a lot of laws that are essentially unenforceable -- or whose enforcement results in unintended consequences that raise the frustration index for those given the thankless job of making sure we all toe the line. By and large, these laws are unenforceable because a relatively large segment of the population is unwilling to obey them, and they involve activities in which there's no victim -- nobody to file a complaint or cooperate with police.

The dirty little secret of law enforcement is that it's largely dependent on public cooperation -- to obey the law and to help the police bring transgressors to heel. When laws represent something less than a near-universal consensus -- when they're nothing more than a majority preference jammed down the throats of an unwilling minority -- they're doomed to be defied. Cops then are relegated to the role of arm-twisters, trying to intimidate the minority into submission through increasingly brutal tactics, or else they just give up as an act of resignation or corruption.

Prohibition is infamous of course. Thirteen years of illegal liquor brought us mass disobedience, crooked cops, violence and an explosion of organized crime. From a paper prepared in 1972 for the National Commission on Marihuana and Drug Abuse:

Other statistics demonstrated the increasing volume of the bootleg trade. In 1921, 95,933 illicit distilleries, stills, still works and fermentors were seized. in 1925, the total jumped to 172,537 and up to 282,122 in 1930. In connection with these seizures, 34,175 persons were arrested in 1921; by 1925, the number had risen to 62,747 and to a high in 1928 of 75,307 (Internal Revenue, Service, 1921, 1966, 1970: 95, 6, 73). Concurrently, convictions for liquor offenses in federal courts rose from 35,000 in 1923 to 61,383 in 1932.

The law could not quell the continuing demand for alcoholic products. Thus, where legal enterprises could no longer supply the demand, an illicit traffic developed, from the point of manufacture to consumption. The institution of the speakeasy replaced the institution of the saloon. Estimates of the number of speakeasies throughout the United States ranged from 200,000 to 500,000 (Lee, 1963: 68).

A history of that particular legal fiasco should be a required course for any aspiring legislator or law-enforcer. Even without formal instruction, though, you'd think the lesson would stick -- but it hasn't. Lawmakers still insist on sending the police to force people to stop doing things they want to do, even when there's nobody to complain and little interest in compliance.

So we see police breaking up friendly card games with headline-grabbing raids -- even in jurisdictions where the law doesn't prohibit playing cards for money -- only profiting from promoting the same. Sure the games continue, only now a bit further underground -- but at least those nefarious card players had the Hell scared out of them.

People then turn to the Internet for their gambling fix. What's the government going to do about that?

Try something else crazy, it turns out -- like arresting former executives of companies based in countries where online gambling is perfectly legal who merely change planes in the United States. That's like Saudi Arabian cops busting a Playboy employee because naughty pictures published on American Websites are frowned on in Islamic countries.

That enthusiasm for enforcing the unenforceable at all costs should have all of us -- gun control advocates included -- thanking the Supreme Court for saving us from ourselves by taking outright gun bans off the table with the Heller decision.

Why?

Because gun owners have a history of defying gun control laws. Because the authorities would be inclined, given their past efforts, to escalate enforcement. And because resistance to such escalation would inherently involve, you know, guns.

In his book, Can Gun Control Work?, James B. Jacobs, Warren E. Burger Professor of Law and Director of the Center for Research in Crime and Justice at New York University, and an advocate of firearms restrictions, looked at the issue logically and concluded, "If black market activity in connection with the drug laws is any indication, a decades-long 'war on handguns' might resemble a low-grade civil war more than a law-enforcement initiative."

And there's drug prohibition again -- the eternally failed crusade to make much of the population change its sinful (in the eyes of the crusaders) ways, or else.

It won't work. It can't work. It never has worked.

But the authorities try, and try and try to make people knuckle under to laws that they find offensive and intrusive. And as people refuse to comply, the authorities raise the stakes, adopting tactics that most of us recognize as violations of civil liberties, of fundamental rights and of simple human decency.

Yes, I have a bone to pick with the cops when they kick in doors, plant evidence and shoot the innocent.

But I suspect that I'd have remarkably little to write about if lawmakers refrained from sending law-enforcers to do the impossible.

Who needs laws when you just know someone 'crossed a line'?

In Marlboro, Massachusetts, a retired chemist named Victor Deeb had the misfortune to call the fire department when his air conditioner burst into flames.

I say "misfortune" because, when the authorities arrived, they discovered that, not surprisingly, a chemist keeps a chemistry laboratory in his home.

And they freaked.

Pamela A. Wilderman, Marlboro’s code enforcement officer, said Mr. Deeb was doing scientific research and development in a residential area, which is a violation of zoning laws.

“It is a residential home in a residential neighborhood,” she said. “This is Mr. Deeb’s hobby. He’s still got bunches of ideas. I think Mr. Deeb has crossed a line somewhere. This is not what we would consider to be a customary home occupation. … There are regulations about how much you’re supposed to have, how it’s detained, how it’s disposed of.”

There probably are regulations about keeping and disposing of chemicals -- there are rules about almost everything these days. But Ms. Wilderman cites not a single violation other than petty zoning infractions, and Mr. Deeb has been charged with no crime. If Ms. Wilderman is somewhat unfamiliar with the regulations, she might want to consult Mr. Deeb, who has patents pending and is likely more familar with the applicable rules for keeping and disposing of chemicals than are the city's employees.

For now, Mr. Deeb is reportedly happy to be able to return home, after being forced from his dwelling for three days while the authorities trucked off his laboratory equipment and supplies for disposal -- presumably without compensation. Actually, the disposal process might pose a real risk, since Mr. Deeb has proven himself capable of handling the chemicals without mishap while the authorites are an unknown quantity. Fortunately, there was nothing especially hazardous among supplies to excite concern.

None of the materials found at 81 Fremont St. posed a radiological or biological risk, according to the state Department of Environmental Protection. No mercury or poison was found. Some of the compounds are potentially explosive, but no more dangerous than typical household cleaning products.

"No more dangerous than typical household cleaning products"? Uh huh. And no citations for regulatory infractions. So Ms. Wilderman and company are protecting the people from nonexistent risks by enforcing rules that may or may not have been violated, if officials can ever figure them out.

Yeah. Somebody "crossed a line somewhere," but it wasn't Mr. Deeb.

Cop finally taken to task for killing a dog

Yes, it's true. After all too many stories about police officers who almost seemed to relish killing canines -- like the two pooches gunned down at the home of Berwyn Heights, Maryland, Mayor Cheye Calvo -- Chandler, Arizona, police Sergeant Tom Lovejoy goes to trial for killing a dog.

Don't get too excited, though. Lovejoy is in hot water for killing a police dog. He left the 5-year-old Belgian Malinois in the back of his car for 13 hours on Aug. 11, 2007. Temperatures outside hit an average high of about 103 at that time of year, so the dog never had a chance inside a sheet-metal oven.

It's nice to see prosecutors take a serious view of the death of a dog at the hands of a police officer. It'd be nicer if that concern extended to dogs in private hands.

As for mishaps -- lethal and nearly so -- aimed at mere people ... Well, I'm not holding my breath.