Academic Subtweeting

This week, I co-authored two essays with Seth Barrett Tillman on somewhat obscure legal questions. First, what happens if the Chief Justice is unable to preside at the presidential impeachment trial? Second, can the Speaker of the House be elevated to the Presidency? The former piece was occasioned by the spurious claim that Chief Justice Roberts might have to recuse given his comments about President Trump. The latter piece was based on the increasing likelihood that Vice President Pence may also face an impeachment inquiry.

This post won’t rehash our admittedly unorthodox position on offices and officers. Rather, this post will opine on yet another way that Twitter degrades academic discourse: the subtweet. Merriam-Webster defines the term as “a usually mocking or critical tweet that alludes to another Twitter user without including a link to the user’s account and often without directly mentioning the user’s name.”

Subtweets are very common on Twitter. Often, a person will criticize someone’s writing, but not “tag” him or her. (Twitter only notifies you if you are tagged in the tweet.) The subtweeter may include the person’s name, but not his username. Or, the subtweeter may add a screenshot of the offending person’s tweet.

Why subtweet? Some people on Twitter are prone to block critics. A subtweet avoids the blockage. In other cases, the subtweeter may want to avoid getting into a lengthy Twitter fight with the person. A subtweet preserves social-media sanity. In any event, subtweets are designed to avoid notifying the person who is being criticized. Subtweeting provides a small degree of anonymity, even when posting from a public account. That is, you can avoid confronting the accused. (My research assistant wrote her law review note on whether a subtweet could give rise to Title IX liability.)

In short, subtweeting promotes a one-sided attack that avoids an open exchange. This purpose is inconsistent with academic discourse. Professors should not subtweet as a means to criticize other professors. If they wish to critique a fellow scholar they can do so publicly, by tagging them. Let the chips fall where they may. Or critique them privately in an email. I always prefer to contact someone directly if I have a question about their work. You can even send them a link to the tweet!

The best way to criticize another scholar is the old-fashioned way: write a substantive response. Indeed, we chose to post on Balkinzation as a means to respond to Gerard Magliocca, who wrote only the Chief Justice could preside. After reading our post, Gerard changed his opinion, and said we were right.

In January 2018, I posted my own rules for Twitter. At the time, I wrote:

In my experiences there are two general categories of @replies. First, there are people who are asking genuine questions: Perhaps my post wasn’t clear, or there is a logical followup question, or maybe there is an issue I hadn’t considered. I don’t mind replying to those queries in a thread. The second category are people who are not asking genuine question (even if they preface their tweet with “I have an honest question”). Instead, they are baiting you into making a point, which they will then turn against you (perhaps by setting you up for a hypocrisy charge, see #3), or are simply baiting you into an argument that has no end, because they enjoy public debate. More power to them, but it’s not for me. Most arguments on Twitter consist of two or more people trying to prove that he/she is (1) smarter, (2) wittier, and (3) and more persuasive. Present company included, most people are not nearly as smart, witty, or persuasive as they think they are. Especially on Twitter, when debates become emotional. To avoid this trap altogether, I only respond to questions I see as falling into the first category. I’ll simply ignore the latter category. If you ask a question on Twitter, and I don’t respond, please send the same question to me by email. I promise, I will reply quickly. (My response rate is rapid.) That so few people ever follow up with an email suggests that more often than not, the goal is not to exchange ideas, but to occasion a public Twitter fight.

Since 2018, I have significantly scaled back my Twitter usage. I no longer reply to anyone. It is not a good use of anyone’s time. I will be happy to respond to questions by email.

I do acknowledge one irony of this post. So far, I did not identify the subtweeters! You can read the thread here. This was not the first time I was subtweeted by people know well, and engage with frequently. I welcome emails from any or all of them if they have questions about my work. Or a substantive response.

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Philly Police Union Attacks Eagles Football Player for Opposing Police Brutality

After Philadelphia Eagles safety Malcolm Jenkins wrote an op-ed in the Philadelphia Inquirer calling for more police accountability and transparency, the local Philly police union responded by bluntly telling Jenkins to shut up.

Philadelphia is in the midst of a much-needed conversation about police reform. Mayor Jim Kenney was re-elected to another term in office earlier in the month and is now on the hunt for a new police commissioner after Richard Ross resigned in August amid reports of sexual harassment and racial discrimination within the police force.

The Philadelphia Police Department’s mismanagement has led to hundreds of drug cases being dropped due to a corrupt narcotics unit, the creation of an oft-abused asset forfeiture program, and thousands of stops of mostly black drivers by officers who claim to “smell” marijuana in order to justify warrantless stop-and-frisk searches. In 2016, Philadelphia voters elected Larry Krasner, a civil rights lawyer, as the city’s district attorney for the purpose of checking and balancing that oppressive policing system.

Jenkins, meanwhile, is a co-founder of the Players Coalition Task Force, a non-profit organization formed by professional athletes to call for reform in policing and criminal justice. Jenkins submitted an op-ed to the Philadelphia Inquirer that ran on Monday, calling for Kenney to select a new police commissioner who will focus on fighting corruption within the department and reforming the practices of the police to focus on real crimes that affect the community. Jenkins came loaded with stats and facts:

The last commissioner resigned amid allegations of sexual harassment. Over 300 officers posted racist and sexist social media posts. Officers remain on the force despite using physical force against vulnerable people. And rather than solving serious crimes — police here make arrests in just 47% of all murder cases and 23% of all nonfatal shootings — they are busy stopping people over the “smell” of marijuana with over 3,300 drivers in the first quarter of 2019 alone, 84% of whom were black.

He notes that the Philadelphia police’s use of stop-and-frisk searches find guns just one percent of the time. He calls for the police to stop arresting children in school, and for any new commissioner to implement a “zero tolerance” policy for police misconduct and to support a citizen review board.

Here’s how the Philadelphia Fraternal Order of the Police, which represents 14,000 active and retired officers, responded in a letter signed by its president, John J. McNesby:

It’s amazing, but not terribly surprising, that McNesby responded to Jenkins’ critique not by challenging his data, but with a personal attack against him and the Inquirer for publishing his opinion. McNesby then has the gall to complain that “Hurling slurs and false allegations against police offers nothing in the way of improvement.” Yet, there are no insults in Jenkins’ piece, only data and specific recommendations that could reduce violent crime and improve community relations.

Let’s suggest that this one particular paragraph is what is sticking in McNesby’s craw. Jenkins wants a commissioner who is not afraid of McNesby’s bluster:

A commissioner who fights back against the police union. Nearly every time we hear a story of an officer abusing power, whether through violence or racist Facebook postings, the police union is there to defend the bad behavior. We need a commissioner who isn’t in lockstep with the union and who will instead push back when the union tries to hide and justify bad behavior. The commissioner must also support a union contract that allows for more officer accountability, even if that is an unpopular position with the rank and file.

Data shows that hundreds of Philadelphia cops fired for bad behavior have been able to fight their way back onto the police force, thanks to union contracts. Reason noted in 2017 how one police officer managed to get back on the force after being fired for killing an unarmed man by shooting him in the back.

The police union’s overheated response here indicates how little value the Philadelphia Fraternal Order of Police places on developing or maintaining positive relationships with members of its own community. Second, it demonstrates how little regard Philadelphia’s police union places in behaving like responsible, mature adults who will accept accountability for the power to arrest and use deadly force against citizens.

McNesby might be right about one thing, however. Given the Philadelphia Police Department’s practice of planting drugs on suspects, costing the city millions in lawsuit settlements, perhaps the Inquirer should consider surveying drug dealers.

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Philly Police Union Attacks Eagles Football Player for Opposing Police Brutality

After Philadelphia Eagles safety Malcolm Jenkins wrote an op-ed in the Philadelphia Inquirer calling for more police accountability and transparency, the local Philly police union responded by bluntly telling Jenkins to shut up.

Philadelphia is in the midst of a much-needed conversation about police reform. Mayor Jim Kenney was re-elected to another term in office earlier in the month and is now on the hunt for a new police commissioner after Richard Ross resigned in August amid reports of sexual harassment and racial discrimination within the police force.

The Philadelphia Police Department’s mismanagement has led to hundreds of drug cases being dropped due to a corrupt narcotics unit, the creation of an oft-abused asset forfeiture program, and thousands of stops of mostly black drivers by officers who claim to “smell” marijuana in order to justify warrantless stop-and-frisk searches. In 2016, Philadelphia voters elected Larry Krasner, a civil rights lawyer, as the city’s district attorney for the purpose of checking and balancing that oppressive policing system.

Jenkins, meanwhile, is a co-founder of the Players Coalition Task Force, a non-profit organization formed by professional athletes to call for reform in policing and criminal justice. Jenkins submitted an op-ed to the Philadelphia Inquirer that ran on Monday, calling for Kenney to select a new police commissioner who will focus on fighting corruption within the department and reforming the practices of the police to focus on real crimes that affect the community. Jenkins came loaded with stats and facts:

The last commissioner resigned amid allegations of sexual harassment. Over 300 officers posted racist and sexist social media posts. Officers remain on the force despite using physical force against vulnerable people. And rather than solving serious crimes — police here make arrests in just 47% of all murder cases and 23% of all nonfatal shootings — they are busy stopping people over the “smell” of marijuana with over 3,300 drivers in the first quarter of 2019 alone, 84% of whom were black.

He notes that the Philadelphia police’s use of stop-and-frisk searches find guns just one percent of the time. He calls for the police to stop arresting children in school, and for any new commissioner to implement a “zero tolerance” policy for police misconduct and to support a citizen review board.

Here’s how the Philadelphia Fraternal Order of the Police, which represents 14,000 active and retired officers, responded in a letter signed by its president, John J. McNesby:

It’s amazing, but not terribly surprising, that McNesby responded to Jenkins’ critique not by challenging his data, but with a personal attack against him and the Inquirer for publishing his opinion. McNesby then has the gall to complain that “Hurling slurs and false allegations against police offers nothing in the way of improvement.” Yet, there are no insults in Jenkins’ piece, only data and specific recommendations that could reduce violent crime and improve community relations.

Let’s suggest that this one particular paragraph is what is sticking in McNesby’s craw. Jenkins wants a commissioner who is not afraid of McNesby’s bluster:

A commissioner who fights back against the police union. Nearly every time we hear a story of an officer abusing power, whether through violence or racist Facebook postings, the police union is there to defend the bad behavior. We need a commissioner who isn’t in lockstep with the union and who will instead push back when the union tries to hide and justify bad behavior. The commissioner must also support a union contract that allows for more officer accountability, even if that is an unpopular position with the rank and file.

Data shows that hundreds of Philadelphia cops fired for bad behavior have been able to fight their way back onto the police force, thanks to union contracts. Reason noted in 2017 how one police officer managed to get back on the force after being fired for killing an unarmed man by shooting him in the back.

The police union’s overheated response here indicates how little value the Philadelphia Fraternal Order of Police places on developing or maintaining positive relationships with members of its own community. Second, it demonstrates how little regard Philadelphia’s police union places in behaving like responsible, mature adults who will accept accountability for the power to arrest and use deadly force against citizens.

McNesby might be right about one thing, however. Given the Philadelphia Police Department’s practice of planting drugs on suspects, costing the city millions in lawsuit settlements, perhaps the Inquirer should consider surveying drug dealers.

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Wanted: A Dem Presidential Candidate Who Defends Individualism, Capitalism, Non-Interventionism

Tonight’s Democratic debate will showcase attacks on South Bend, Indiana, Mayor Pete Buttiegieg, who has surged in early state polls over the past month, achieving frontrunner status in Iowa and New Hampshire. Former Vice President Joe Biden, Sen. Elizabeth Warren (D–Mass.)—whose momentum has stalled after finally explaining how she was going to pay for her Medicare for All plan—Sen. Bernie Sanders (I–Vt.), Sen. Kamala Harris (D–Calif.), tech entrepreneur Andrew Yang, Sen. Amy Klobuchar (D–Minn.), billionaire environmentalist Tom Steyer, Rep. Tulsi Gabbard (D–Hawaii), and Sen. Cory Booker (D–N.J.) will all be gunning for Mayor Pete, and it should be fun and interesting to see how the 37-year-old military vet and former McKinsey consultant holds up under it all.

The Democratic nomination is still completely up for grabs, which helps explain why near-zero-chance characters such as former Massachusetts Gov. Deval Patrick and billionaire former New York Mayor Michael Bloomberg are testing the waters. Here we are, a year out from a general election against the least-popular president in recent memory, and the Dems look poised to snatch defeat from the jaws of victory. So much so, in fact, that former Pres. Barack Obama has stepped out of an Andy Thomas painting to implore his party to nominate a centrist who might actually be able to win. (Go here for details on how to watch the debate on cable or online.)

But as someone who is socially tolerant and fiscally responsible, tonight’s debate will mostly be about what’s not on stage: A candidate who robustly champions what Reason celebrates as “a world of expanding choice—in lifestyles, identities, goods, work arrangements, and more,” and pushes back against “busybodies, elites, and gatekeepers who insist on how other people should live their lives.” My vote, along with the votes of one-third of the electorate, is up for grabs. According to The New York Times, 32 percent of Americans have said they will “definitely” vote for President Trump and 33 percent have said they will vote for whomever the Democrats nominate. But there is nobody in the Democratic field who comes close enough to libertarian preferences toward the size, scope, and spending of government to win me over at this point. Rather than promising to be the second coming of FDR, they should seriously think about what it would take to win my vote and people who think like me.

Which is not to say certain positions taking root among Democratic Party elites aren’t consistent with a libertarian perspective. With the exception of Biden and possible candidate Bloomberg, all the Democrats have signed off on pot legalization and at least a few have nodded toward the decriminalization of sex work, the abolition of cash bail, criminal justice reform, ending civil asset forfeiture, and other longstanding libertarian hobby horses. When it comes to foreign policy, most are non-interventionist (Tulsi Gabbard is particularly outspoken on this issue), though Joe Biden, who still leads in the national polls, is a tried-and-true hawk, and the relative inexperience or silence of the others is worrying (the military-industrial complex routinely rolls whoever is in the White House). These are not small wins, especially since Donald Trump basically supports the same agenda. The president has already signed the most-significant federal criminal-justice-reform law in recent memory and, as a candidate, promised that he would sign legislation turning marijuana’s status over to the states (something Hillary Clinton refused to do).

Unfortunately, the Democratic candidates have all pledged to spend vast amounts of new money and to institute massive new regulations or create new bureaucracies to further their vision of the good society. Warren is the exemplar on this score, extruding new policies costing trillions of dollars on an almost daily basis, as if it’s a bodily function. She’ll pay for her version of Medicare for All, plus free college, reparations for gay couples who couldn’t take tax deductions when same-sex marriage was banned, and much more with a wealth tax and a host of other new levies that somehow never touch the sacrosanct “middle class” (now defined as anyone making less than a billion dollars a year). Never mind that her plans are likely unconstitutional and incapable of raising the trillions of dollars needed to pay for such largess. Arguably more troubling, Warren has also promised to break up companies such as Facebook, Google, Amazon, and anyone else she thinks is too big or contravenes her personal sense of right and wrong.

In calling for huge amounts of new spending and regulation, Warren is joined even by supposedly forward-looking, business-savvy candidates such as Andrew Yang, whose 21st-century cabinet would include a Department of the Attention Economy, which would dictate policy and business strategy to social media companies. Each of the Democratic candidates also supports some version of The Green New Deal, which uses environmental end-of-days hysteria to sell every jobs, housing, and health care plan floated by progressives over the past 50 years.

Just a few decades ago, the future was supposed to be about radically decentralizing power to “end users” in distributed networks. That dream is almost completely missing from any of the Democrats’ platforms. In highly attenuated form, it flickers on in Andrew Yang’s unaffordable universal basic income plan, which would gift unrestricted cash grants to every American adult. It lives on, too, barely, in Cory Booker’s tepid support for charter schools, but the big idea of giving individuals more freedom in how to run their lives and businesses has taken a back seat to command-and-control policies that give a bigger-and-bigger federal government more say in every decision we might make.

Of course, neither Donald Trump nor the Republicans offer much to libertarians, despite historical reliance on libertrarian rhetoric about life, liberty, and the pursuit of happiness and nominal support for minimal government. In fact, under Trump, the GOP has become the party of trade barriers and immigration restriction while continuing to load up on debt and deficits. Such policies work against, if not completely negate, whatever successful deregulation and tax reform has happened. Whether he realizes it or not, the president is acting like the Hickey character in Eugene O’Neill’s The Iceman Cometh, shredding all our illusions by forcing us to confront the vast gap between our rhetorical dreams and lived realities. Certainly, he’s revealed that Republicans, who couldn’t stop talking (rightly) about the negative effects of debt and executive branch overreach during Obama’s tenure, to be unprincipled worshippers of power.

If The New York Times is right, Trump and whatever Democrat ends up with the brass ring next spring can bank on one-third of the electorate. What of the remaining 33 percent? Many, maybe most, will doubtless be swayed by the literal and figurative handouts each side will offer: Here’s free healthcare, free college, free birth control, free whatever. Vote for me. Here’s more money if you have kids or own a house. Here’s a way of pissing off coastal elites, of keeping factory jobs in the country and of keeping economic refugees from “shithole countries” out. Vote for me. Politics isn’t that complicated, it’s a tawdry slow dance between self-enrichment and contempt for the other side.

But then there are the libertarians among us, whom many insist simply don’t exist. Yet according to Cato’s polling director, Emily Ekins, somewhere between 7 percent and 22 percent of American voters can legitimately be called libertarian in that they broadly support economic freedom, civil liberties, and lifestyle pluralism. Only one of the last five presidential elections was decided by more than 7 percentage points of the popular vote, suggesting that libertarians can provide the winning edge even if we only exist in numbers to the low end of Ekins’ assay. In fact, in 2016, the Libertarian Party (LP) candidate, former New Mexico Gov. Gary Johnson, pulled 3.3 percent of the popular vote, or more than the 2.1 percent margin between Hillary Clinton and Donald Trump. Unless independent Rep. Justin Amash of Michigan jumps into the LP race, the party’s nominee is likely to be a virtual unknown almost certainly incapable of replicating Johnson’s haul of nearly 4.5 million votes. Most of those votes, like mine, are up for grabs.

It’s a lark, of course, to dream that any of the candidates on tonight’s stage will start talking libertarian-friendly lines about economic freedom and individualism, just as it’s nuts to expect Donald Trump to reverse himself about the ease and efficacy of trade wars and tariffs. But come the general election, my vote—and that of between 7 percent and 22 percent of the electorate—will still be in play and waiting to be won by a candidate who defends or at least pays respect to economic and civil liberties, individualism and free speech, and what Reason dubs “free minds and free markets.” The wooing of the libertarian vote, if it’s going to happen at all on the Democratic side, starts tonight.

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Wanted: A Dem Presidential Candidate Who Defends Individualism, Capitalism, Non-Interventionism

Tonight’s Democratic debate will showcase attacks on South Bend, Indiana, Mayor Pete Buttiegieg, who has surged in early state polls over the past month, achieving frontrunner status in Iowa and New Hampshire. Former Vice President Joe Biden, Sen. Elizabeth Warren (D–Mass.)—whose momentum has stalled after finally explaining how she was going to pay for her Medicare for All plan—Sen. Bernie Sanders (I–Vt.), Sen. Kamala Harris (D–Calif.), tech entrepreneur Andrew Yang, Sen. Amy Klobuchar (D–Minn.), billionaire environmentalist Tom Steyer, Rep. Tulsi Gabbard (D–Hawaii), and Sen. Cory Booker (D–N.J.) will all be gunning for Mayor Pete, and it should be fun and interesting to see how the 37-year-old military vet and former McKinsey consultant holds up under it all.

The Democratic nomination is still completely up for grabs, which helps explain why near-zero-chance characters such as former Massachusetts Gov. Deval Patrick and billionaire former New York Mayor Michael Bloomberg are testing the waters. Here we are, a year out from a general election against the least-popular president in recent memory, and the Dems look poised to snatch defeat from the jaws of victory. So much so, in fact, that former Pres. Barack Obama has stepped out of an Andy Thomas painting to implore his party to nominate a centrist who might actually be able to win. (Go here for details on how to watch the debate on cable or online.)

But as someone who is socially tolerant and fiscally responsible, tonight’s debate will mostly be about what’s not on stage: A candidate who robustly champions what Reason celebrates as “a world of expanding choice—in lifestyles, identities, goods, work arrangements, and more,” and pushes back against “busybodies, elites, and gatekeepers who insist on how other people should live their lives.” My vote, along with the votes of one-third of the electorate, is up for grabs. According to The New York Times, 32 percent of Americans have said they will “definitely” vote for President Trump and 33 percent have said they will vote for whomever the Democrats nominate. But there is nobody in the Democratic field who comes close enough to libertarian preferences toward the size, scope, and spending of government to win me over at this point. Rather than promising to be the second coming of FDR, they should seriously think about what it would take to win my vote and people who think like me.

Which is not to say certain positions taking root among Democratic Party elites aren’t consistent with a libertarian perspective. With the exception of Biden and possible candidate Bloomberg, all the Democrats have signed off on pot legalization and at least a few have nodded toward the decriminalization of sex work, the abolition of cash bail, criminal justice reform, ending civil asset forfeiture, and other longstanding libertarian hobby horses. When it comes to foreign policy, most are non-interventionist (Tulsi Gabbard is particularly outspoken on this issue), though Joe Biden, who still leads in the national polls, is a tried-and-true hawk, and the relative inexperience or silence of the others is worrying (the military-industrial complex routinely rolls whoever is in the White House). These are not small wins, especially since Donald Trump basically supports the same agenda. The president has already signed the most-significant federal criminal-justice-reform law in recent memory and, as a candidate, promised that he would sign legislation turning marijuana’s status over to the states (something Hillary Clinton refused to do).

Unfortunately, the Democratic candidates have all pledged to spend vast amounts of new money and to institute massive new regulations or create new bureaucracies to further their vision of the good society. Warren is the exemplar on this score, extruding new policies costing trillions of dollars on an almost daily basis, as if it’s a bodily function. She’ll pay for her version of Medicare for All, plus free college, reparations for gay couples who couldn’t take tax deductions when same-sex marriage was banned, and much more with a wealth tax and a host of other new levies that somehow never touch the sacrosanct “middle class” (now defined as anyone making less than a billion dollars a year). Never mind that her plans are likely unconstitutional and incapable of raising the trillions of dollars needed to pay for such largess. Arguably more troubling, Warren has also promised to break up companies such as Facebook, Google, Amazon, and anyone else she thinks is too big or contravenes her personal sense of right and wrong.

In calling for huge amounts of new spending and regulation, Warren is joined even by supposedly forward-looking, business-savvy candidates such as Andrew Yang, whose 21st-century cabinet would include a Department of the Attention Economy, which would dictate policy and business strategy to social media companies. Each of the Democratic candidates also supports some version of The Green New Deal, which uses environmental end-of-days hysteria to sell every jobs, housing, and health care plan floated by progressives over the past 50 years.

Just a few decades ago, the future was supposed to be about radically decentralizing power to “end users” in distributed networks. That dream is almost completely missing from any of the Democrats’ platforms. In highly attenuated form, it flickers on in Andrew Yang’s unaffordable universal basic income plan, which would gift unrestricted cash grants to every American adult. It lives on, too, barely, in Cory Booker’s tepid support for charter schools, but the big idea of giving individuals more freedom in how to run their lives and businesses has taken a back seat to command-and-control policies that give a bigger-and-bigger federal government more say in every decision we might make.

Of course, neither Donald Trump nor the Republicans offer much to libertarians, despite historical reliance on libertrarian rhetoric about life, liberty, and the pursuit of happiness and nominal support for minimal government. In fact, under Trump, the GOP has become the party of trade barriers and immigration restriction while continuing to load up on debt and deficits. Such policies work against, if not completely negate, whatever successful deregulation and tax reform has happened. Whether he realizes it or not, the president is acting like the Hickey character in Eugene O’Neill’s The Iceman Cometh, shredding all our illusions by forcing us to confront the vast gap between our rhetorical dreams and lived realities. Certainly, he’s revealed that Republicans, who couldn’t stop talking (rightly) about the negative effects of debt and executive branch overreach during Obama’s tenure, to be unprincipled worshippers of power.

If The New York Times is right, Trump and whatever Democrat ends up with the brass ring next spring can bank on one-third of the electorate. What of the remaining 33 percent? Many, maybe most, will doubtless be swayed by the literal and figurative handouts each side will offer: Here’s free healthcare, free college, free birth control, free whatever. Vote for me. Here’s more money if you have kids or own a house. Here’s a way of pissing off coastal elites, of keeping factory jobs in the country and of keeping economic refugees from “shithole countries” out. Vote for me. Politics isn’t that complicated, it’s a tawdry slow dance between self-enrichment and contempt for the other side.

But then there are the libertarians among us, whom many insist simply don’t exist. Yet according to Cato’s polling director, Emily Ekins, somewhere between 7 percent and 22 percent of American voters can legitimately be called libertarian in that they broadly support economic freedom, civil liberties, and lifestyle pluralism. Only one of the last five presidential elections was decided by more than 7 percentage points of the popular vote, suggesting that libertarians can provide the winning edge even if we only exist in numbers to the low end of Ekins’ assay. In fact, in 2016, the Libertarian Party (LP) candidate, former New Mexico Gov. Gary Johnson, pulled 3.3 percent of the popular vote, or more than the 2.1 percent margin between Hillary Clinton and Donald Trump. Unless independent Rep. Justin Amash of Michigan jumps into the LP race, the party’s nominee is likely to be a virtual unknown almost certainly incapable of replicating Johnson’s haul of nearly 4.5 million votes. Most of those votes, like mine, are up for grabs.

It’s a lark, of course, to dream that any of the candidates on tonight’s stage will start talking libertarian-friendly lines about economic freedom and individualism, just as it’s nuts to expect Donald Trump to reverse himself about the ease and efficacy of trade wars and tariffs. But come the general election, my vote—and that of between 7 percent and 22 percent of the electorate—will still be in play and waiting to be won by a candidate who defends or at least pays respect to economic and civil liberties, individualism and free speech, and what Reason dubs “free minds and free markets.” The wooing of the libertarian vote, if it’s going to happen at all on the Democratic side, starts tonight.

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Tennessee Court Refuses To Test DNA Evidence That Could Exonerate a Man the State Already Executed

A technicality in the law stands in the way of a daughter’s attempt to prove that the state of Tennessee put her innocent father to death.

Sedley Alley was convicted of the 1985 rape and murder of Marine Cpl. Suzanne M. Collins. Collins was jogging in a park near a naval base in Millington when she was abducted. Three witnesses said her abductor was driving a brown station wagon. Alley drove a similar vehicle. He was pulled over and told naval security that he was driving around town and drinking beer the night of the abduction.

Alley was brought in for questioning on the naval base. When the questioning was completed, Alley started his vehicle so he could leave. The witnesses, who happened to be present, said the sound of his car matched the sound of the perpetrator’s vehicle.

Collins’ mutilated body was discovered the next day and law enforcement arrested Alley.

The Commercial Appeal has more details on Alley’s case.

Alley confessed to the murder and led police to the crime scene. However, there are several problems with the state’s case. The Innocence Project, a civil liberties group, now believes Alley was coerced into making a false confession by the police. An expert would later testify that police tainted Alley’s confession by telling him non-public details about the crime.

The group also notes inconsistencies with the evidence used to convict Alley. The witness description of the suspect did not match Alley’s features. Alley’s supposed recollection of the crime also did not match up with the details uncovered by investigators. In fact, he repeatedly said that he did not remember committing the crime.

Alley was executed by lethal injection in June 2006. April Alley, his daughter, is now working with the Innocence Project to clear her father’s name posthumously.

The Innocence Project has called for testing physical evidence from the case, which includes red underwear believed to be owned by the assailant and stains on Collins’ shirt and bra. The group received information about another possible suspect: a man who attended the same training school as Collins. They believe that this man, most recently indicted for homicide and rape in St. Louis, is a serial offender.

In May, April Alley and the Innocence Project filed a petition with the Criminal Court for Shelby County in Memphis, asking the state to DNA test the evidence in her father’s case. The petition also asked Gov. Bill Lee (R) to use executive authority to order testing.

On Monday, Judge Paula Skahan dismissed the petition.

Skahan’s opinion says that April Alley “does not have standing” as Alley’s estate to file a petition for post-conviction DNA testing of evidence held by the state. Skahan’s decision rests on Tennessee’s Post-Conviction DNA Analysis Act of 2001, which merely allows “a person convicted of and sentenced for the commission of first-degree murder” to file a petition of this nature.

The cruel irony of this legal predicament is that Alley, who is deceased because of the state’s actions, is the only person who has the authority to file a petition asking the state to test the evidence that could exonerate him.

Worse, as the Innocence Project petition explains, Alley previously sought post-conviction testing under the act and was denied due to “a now-reversed and clearly incorrect interpretation” of the 2001 law, which was not cleared up by the Tennessee Supreme Court until 2011.

“I’m heartbroken. Frankly, I’m numb. I’m very grateful for all who have supported me in this effort to find the truth. We will see this through to the end, no matter what it takes,” April Alley said in response to the ruling.

The Innocence Project wrote in a statement that it has “already filed a notice of appeal.” The group criticized Skahan’s ruling, saying, “The petition simply asks for testing of available DNA evidence, which could be done within 30 to 60 days. It will now take months, if not years, to go through the courts to finally get to the truth in this matter.”

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Giving Government Vast Snooping Authority Is One Thing Democrats and Republicans Both Like

Are you thoroughly invested in the impeachment drama? Do you thrill to the clash of good guys and villains in the ring of democracy, with the fate of the republic as the prize?

Have fun with that. There’s a good case to be made that all this political heat and light is little more than professional wrestling for flabby people. If Democrats really feared Donald Trump’s exercise of the powers of the presidency, why would they propose extending the surveillance powers of the controversial Patriot Act?

Buried on the next-to-last page of the Continuing Appropriations Act, meant to keep the government’s lights on and dated yesterday, is the following language:

Section  102(b)(1)  of  the  USA  PATRIOT  Improvement  and  Reauthorization  Act  of  2005  (50  U.S.C.  101805  note)  is  amended  by  striking  “December  15,  2019”  and inserting “March 15, 2020”.

This relatively innocuous language pushes back the sunset provision of the Patriot Act by three months, leaving its vast powers in the hands of a president who Democratic presidential hopeful Joe Biden charges with “failure to uphold basic democratic principles,” who House Speaker Nancy Pelosi has accused of “alarming connections and conduct with Russia” and, joined by Senate Democratic Leader Charles Schumer, says is making an attempt to “shred the Constitution.”

Many Democrats flat-out call Trump a “traitor.”

If you take those comments seriously, that’s a hell of a guy to trust with the powers granted by the Patriot Act. And frightening powers they are.

“The USA PATRIOT Act broadly expands law enforcement’s surveillance and investigative powers and represents one of the most significant threats to civil liberties, privacy, and democratic traditions in US history,” notes the Electronic Frontier Foundation. The law “eliminates checks and balances that previously gave courts the opportunity to ensure that those powers were not abused,” the group adds.

The American Civil Liberties Union agrees, calling the Patriot Act “an overnight revision of the nation’s surveillance laws that vastly expanded the government’s authority to spy on its own citizens, while simultaneously reducing checks and balances on those powers like judicial oversight, public accountability, and the ability to challenge government searches in court.”

Passed in the panic-stricken wake of the September 11, 2001 terrorist attacks, the Patriot Act was basically a dusted-off wish-list of surveillance-state powers drafted after the 1995 Oklahoma City bombing. Although the bill failed, at first, to gain congressional approval, it sat ready and waiting for the right set of circumstances to come along. That happened as America watched buildings burn and fellow citizens die six years later. Even in that environment of fear, lawmakers included a sunset provision in the Patriot Act, meaning it would expire after four years. With some changes, it was reauthorized in 2005, 2011, and 2015.

The alleged authorship of the original surveillance proposal provides a helpful hint as to why Democrats might be so eager to extend expansive surveillance power, even for a president they say they despise: They had a hand in its creation.

“I drafted a terrorism bill after the Oklahoma City bombing,” then-future veep and perennial presidential wannabe Joe Biden boasted to The New Republic in 2008. “And the bill John Ashcroft sent up was my bill.”

Whether or not Biden really authored what became the Patriot Act, he and many of his fellow Democrats certainly take pride of ownership and show plenty of enthusiasm for its powers. The 2011 and 2015 reauthorizations occurred under Democratic President Barack Obama, with Biden as vice president.

The Trump administration also favors reauthorization of the Patriot Act, including a dropped provision allowing the National Security Agency to gain access to records of Americans’ communications. That part had been somewhat defanged under the Obama administration amidst public uproar over revelations of domestic surveillance by whistleblower Edward Snowden.

Biden, as vice president, threatened countries that considered offering asylum to Snowden—another feather in his surveillance-state cap.

The Democratic Party, by and large, seems to be right there with Biden. This year’s proposed reauthorization of the Patriot Act isn’t exactly a one-off; last year, donkey party leaders kneecapped an effort in the House by dissident libertarian-leaning Republicans and liberal Democrats to roll back some of the more intrusive elements of the Patriot Act.

“It became quickly apparent that leading Democrats intended to side with Trump and against those within their own party who favored imposing safeguards on the Trump administration’s ability to engage in domestic surveillance,” The Intercept‘s Glenn Greenwald wrote at the time. “The most bizarre aspect of this spectacle was that the Democrats who most aggressively defended Trump’s version of the surveillance bill—the Democrats most eager to preserve Trump’s spying powers as virtually limitless—were the very same Democratic House members who have become media stars this year by flamboyantly denouncing Trump as a treasonous, lawless despot in front of every television camera they could find.”

When the 2018 surveillance reform measure was defeated, Rep. Adam Schiff (D-Calif.), who now leads the impeachment inquiry against President Trump, gloated that Congress had avoided “a crippling requirement in national security and terrorism cases.”

Like I said, it’s professional wrestling for flabby people. When it counts—with civil liberties and the (un)trustworthiness of the state to handle its dangerous toys—there’s little to distinguish leading Democrats from leading Republicans. Their major real disagreement is over who should be in charge of misusing and abusing those excessive powers. Ultimately, though, Democrats are happy to keep the surveillance state up and running and in the hands of a president they denounce as dangerous.

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Tennessee Court Refuses To Test DNA Evidence That Could Exonerate a Man the State Already Executed

A technicality in the law stands in the way of a daughter’s attempt to prove that the state of Tennessee put her innocent father to death.

Sedley Alley was convicted of the 1985 rape and murder of Marine Cpl. Suzanne M. Collins. Collins was jogging in a park near a naval base in Millington when she was abducted. Three witnesses said her abductor was driving a brown station wagon. Alley drove a similar vehicle. He was pulled over and told naval security that he was driving around town and drinking beer the night of the abduction.

Alley was brought in for questioning on the naval base. When the questioning was completed, Alley started his vehicle so he could leave. The witnesses, who happened to be present, said the sound of his car matched the sound of the perpetrator’s vehicle.

Collins’ mutilated body was discovered the next day and law enforcement arrested Alley.

The Commercial Appeal has more details on Alley’s case.

Alley confessed to the murder and led police to the crime scene. However, there are several problems with the state’s case. The Innocence Project, a civil liberties group, now believes Alley was coerced into making a false confession by the police. An expert would later testify that police tainted Alley’s confession by telling him non-public details about the crime.

The group also notes inconsistencies with the evidence used to convict Alley. The witness description of the suspect did not match Alley’s features. Alley’s supposed recollection of the crime also did not match up with the details uncovered by investigators. In fact, he repeatedly said that he did not remember committing the crime.

Alley was executed by lethal injection in June 2006. April Alley, his daughter, is now working with the Innocence Project to clear her father’s name posthumously.

The Innocence Project has called for testing physical evidence from the case, which includes red underwear believed to be owned by the assailant and stains on Collins’ shirt and bra. The group received information about another possible suspect: a man who attended the same training school as Collins. They believe that this man, most recently indicted for homicide and rape in St. Louis, is a serial offender.

In May, April Alley and the Innocence Project filed a petition with the Criminal Court for Shelby County in Memphis, asking the state to DNA test the evidence in her father’s case. The petition also asked Gov. Bill Lee (R) to use executive authority to order testing.

On Monday, Judge Paula Skahan dismissed the petition.

Skahan’s opinion says that April Alley “does not have standing” as Alley’s estate to file a petition for post-conviction DNA testing of evidence held by the state. Skahan’s decision rests on Tennessee’s Post-Conviction DNA Analysis Act of 2001, which merely allows “a person convicted of and sentenced for the commission of first-degree murder” to file a petition of this nature.

The cruel irony of this legal predicament is that Alley, who is deceased because of the state’s actions, is the only person who has the authority to file a petition asking the state to test the evidence that could exonerate him.

Worse, as the Innocence Project petition explains, Alley previously sought post-conviction testing under the act and was denied due to “a now-reversed and clearly incorrect interpretation” of the 2001 law, which was not cleared up by the Tennessee Supreme Court until 2011.

“I’m heartbroken. Frankly, I’m numb. I’m very grateful for all who have supported me in this effort to find the truth. We will see this through to the end, no matter what it takes,” April Alley said in response to the ruling.

The Innocence Project wrote in a statement that it has “already filed a notice of appeal.” The group criticized Skahan’s ruling, saying, “The petition simply asks for testing of available DNA evidence, which could be done within 30 to 60 days. It will now take months, if not years, to go through the courts to finally get to the truth in this matter.”

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Giving Government Vast Snooping Authority Is One Thing Democrats and Republicans Both Like

Are you thoroughly invested in the impeachment drama? Do you thrill to the clash of good guys and villains in the ring of democracy, with the fate of the republic as the prize?

Have fun with that. There’s a good case to be made that all this political heat and light is little more than professional wrestling for flabby people. If Democrats really feared Donald Trump’s exercise of the powers of the presidency, why would they propose extending the surveillance powers of the controversial Patriot Act?

Buried on the next-to-last page of the Continuing Appropriations Act, meant to keep the government’s lights on and dated yesterday, is the following language:

Section  102(b)(1)  of  the  USA  PATRIOT  Improvement  and  Reauthorization  Act  of  2005  (50  U.S.C.  101805  note)  is  amended  by  striking  “December  15,  2019”  and inserting “March 15, 2020”.

This relatively innocuous language pushes back the sunset provision of the Patriot Act by three months, leaving its vast powers in the hands of a president who Democratic presidential hopeful Joe Biden charges with “failure to uphold basic democratic principles,” who House Speaker Nancy Pelosi has accused of “alarming connections and conduct with Russia” and, joined by Senate Democratic Leader Charles Schumer, says is making an attempt to “shred the Constitution.”

Many Democrats flat-out call Trump a “traitor.”

If you take those comments seriously, that’s a hell of a guy to trust with the powers granted by the Patriot Act. And frightening powers they are.

“The USA PATRIOT Act broadly expands law enforcement’s surveillance and investigative powers and represents one of the most significant threats to civil liberties, privacy, and democratic traditions in US history,” notes the Electronic Frontier Foundation. The law “eliminates checks and balances that previously gave courts the opportunity to ensure that those powers were not abused,” the group adds.

The American Civil Liberties Union agrees, calling the Patriot Act “an overnight revision of the nation’s surveillance laws that vastly expanded the government’s authority to spy on its own citizens, while simultaneously reducing checks and balances on those powers like judicial oversight, public accountability, and the ability to challenge government searches in court.”

Passed in the panic-stricken wake of the September 11, 2001 terrorist attacks, the Patriot Act was basically a dusted-off wish-list of surveillance-state powers drafted after the 1995 Oklahoma City bombing. Although the bill failed, at first, to gain congressional approval, it sat ready and waiting for the right set of circumstances to come along. That happened as America watched buildings burn and fellow citizens die six years later. Even in that environment of fear, lawmakers included a sunset provision in the Patriot Act, meaning it would expire after four years. With some changes, it was reauthorized in 2005, 2011, and 2015.

The alleged authorship of the original surveillance proposal provides a helpful hint as to why Democrats might be so eager to extend expansive surveillance power, even for a president they say they despise: They had a hand in its creation.

“I drafted a terrorism bill after the Oklahoma City bombing,” then-future veep and perennial presidential wannabe Joe Biden boasted to The New Republic in 2008. “And the bill John Ashcroft sent up was my bill.”

Whether or not Biden really authored what became the Patriot Act, he and many of his fellow Democrats certainly take pride of ownership and show plenty of enthusiasm for its powers. The 2011 and 2015 reauthorizations occurred under Democratic President Barack Obama, with Biden as vice president.

The Trump administration also favors reauthorization of the Patriot Act, including a dropped provision allowing the National Security Agency to gain access to records of Americans’ communications. That part had been somewhat defanged under the Obama administration amidst public uproar over revelations of domestic surveillance by whistleblower Edward Snowden.

Biden, as vice president, threatened countries that considered offering asylum to Snowden—another feather in his surveillance-state cap.

The Democratic Party, by and large, seems to be right there with Biden. This year’s proposed reauthorization of the Patriot Act isn’t exactly a one-off; last year, donkey party leaders kneecapped an effort in the House by dissident libertarian-leaning Republicans and liberal Democrats to roll back some of the more intrusive elements of the Patriot Act.

“It became quickly apparent that leading Democrats intended to side with Trump and against those within their own party who favored imposing safeguards on the Trump administration’s ability to engage in domestic surveillance,” The Intercept‘s Glenn Greenwald wrote at the time. “The most bizarre aspect of this spectacle was that the Democrats who most aggressively defended Trump’s version of the surveillance bill—the Democrats most eager to preserve Trump’s spying powers as virtually limitless—were the very same Democratic House members who have become media stars this year by flamboyantly denouncing Trump as a treasonous, lawless despot in front of every television camera they could find.”

When the 2018 surveillance reform measure was defeated, Rep. Adam Schiff (D-Calif.), who now leads the impeachment inquiry against President Trump, gloated that Congress had avoided “a crippling requirement in national security and terrorism cases.”

Like I said, it’s professional wrestling for flabby people. When it counts—with civil liberties and the (un)trustworthiness of the state to handle its dangerous toys—there’s little to distinguish leading Democrats from leading Republicans. Their major real disagreement is over who should be in charge of misusing and abusing those excessive powers. Ultimately, though, Democrats are happy to keep the surveillance state up and running and in the hands of a president they denounce as dangerous.

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Federal Indictment Says Deadly Houston Drug Raid Was Based on Lies From Start to Finish

Today the Justice Department announced that three people have been indicted on federal charges because of their roles in a fraudulent no-knock drug raid that killed a middle-aged Houston couple on January 28. The indictment alleges not only that Gerald Goines, the narcotics officer who spearheaded the operation, lied in his search warrant affidavit, but that Patricia Ann Garcia, whose 911 calls prompted Goines’ investigation, lied when she implicated Dennis Tuttle and Rhogena Nicholas in drug dealing.

The upshot is that the basis for the raid was a lie from start to finish. That realization contradicts Houston Police Chief Art Acevedo’s insistence that there were sound reasons, apart from Goines’ prevarications, to think Tuttle and Nicholas were selling heroin.

Goines, who already faced state murder charges in connection with the raid that killed Tuttle and Nicholas, has been charged with violating their Fourth Amendment rights under color of law. The Justice Department says “Goines faces up to life in prison” if convicted of those charges, although the statute also allows the death penalty for violations with lethal consequences.

Goines, who retired in March after 34 years with the Houston Police Department, claimed in his affidavit that a confidential informant had purchased heroin from a middle-aged “white male, whose name is unknown,” at the house on Harding Street that Tuttle and Nicholas shared. But the raid, which was executed the day after that purported sale, discovered no heroin and no evidence of drug dealing. Soon afterward Houston police investigators concluded that the confidential informant described by Goines did not exist. Goines then changed his story, claiming he had bought the heroin himself. According to the federal indictment, that was also a lie.

The Justice Department says Goines “made numerous materially false statements in the state search warrant” and afterward repeatedly lied about the circumstances of the raid. In addition to the civil rights charges, Goines is accused of falsifying records and obstructing an official proceeding.

The indictment also charges Steven Bryant, a Houston narcotics officer who helped back up Goines’ story, with obstructing justice by falsifying records. Bryant, who supposedly identified the “brown powder substance” that the nonexistent informant never bought as black-tar heroin, already faced a state charge of tampering with a governmental record. The federal charge carries a maximum penalty of 20 years in prison.

The biggest revelation in the indictment is that the January 8 report about drug activity at the Harding Street house was completely false. Yet Houston Police Chief Art Acevedo has repeatedly cited that report as evidence that his department right to investigate Tuttle and Nicholas.

According Acevedo, a woman called police on January 8 to complain that her daughter was “doing heroin” inside the house. At a press conference three days after the raid, Acevedo described the call this way: “The caller wanted to remain anonymous but said that her daughter was inside the residence ‘doing drugs, and they have a lot of guns in the residence.’ She stated there was also a female in the house.” The woman said she had looked through a window, and she saw that “her daughter was in the house, and there were guns and heroin.”

When two patrol officers arrived in response to that call, the woman was nowhere to be found. According to Acevedo, they questioned a passer-by and afterward heard her say into her cellphone, “Hey, the police are at the dope house.” When the officers called the woman who had made the report, Acevedo said, “She stated she did not want to give any information because they were drug dealers and they would kill her. She wanted the officers to go into the house and get her daughter.” The officers explained that they had no authority to enter the house.

The federal indictment says the caller, which it identifies as Garcia, made all of that up. Garcia is charged with “convey[ing] false information by making several fake 911 calls,” an offense punishable by up to five years in prison.

Acevedo said Garcia’s calls showed there was legitimate basis for the investigation that led to the Harding Street raid. He called the home a “problem location” and a locally notorious “drug house.” He even claimed that people who lived nearby had thanked police for raiding the house. Yet neighbors interviewed by local news outlets described Tuttle and Nicholas, who had lived on Harding Street for two decades, as perfectly nice and said they had never seen any signs of criminal activity.

Even after Goines’ lies were revealed, Acevedo insisted that police “had probable cause to be there,” relying on Garcia’s false report. “I still think they’re heroes,” Acevedo said of the officers who killed Tuttle and Nicholas after breaking into their home without warning. If the lack of oversight that allowed this disastrous operation to unfold were not reason enough to demand Acevedo’s resignation, his dogged defense of the investigation and his casual defamation of Tuttle and Nicholas would be.

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