Category: reason

Outrage over some controversial pardons by Kentucky’s former governor is being used to resurrect a “victim’s rights” law that the state’s top court struck down last year.

After losing his reelection bid in November, Republican Gov. Matt Bevin approved more than 650 pardons and commutations before leaving office. Many of these were perfectly normal expressions of the governor’s power. Some, for example, benefitted people who faced or already served heavy sentences for drug-related offenses. Some commuted the sentences of men on death row to life in prison.

But some others were highly controversial and led to calls for investigations. A convicted murderer pardoned by Bevin was a member of a family that had raised more than $20,000 for Bevin’s re-election campaign at a fund-raiser. Another pardoned prisoner had been convicted of raping a 9-year-old; Bevin raised public ire by saying he didn’t believe the evidence against the man because the child’s hymen was still intact. (A popular myth holds that this proves no sexual intercourse occurred.)

Now a Republican state legislator is channeling public anger to try to pass a “Marsy’s Law” to designate certain “rights” for crime victims.

Marsy’s Laws are named after Marsalee Nicholas, a woman killed by her ex-boyfriend in 1983 after he was released from jail on bail. They have been pushed into law in several states, in campaigns funded by Nicholas’ wealthy brother. They purport to expand the legal rights of people who are victims of crimes, granting them legal standing to demand protection from criminal defendants, restitution from criminals, notifications of court proceedings, and a say in parole hearings for those serving time.

Kentucky voters passed a version of Marsy’s Law as a ballot initiative in 2018. But last June the state’s top court tossed the law out because the wording of the statute wasn’t included on the ballot. Instead, voters were simply asked, “Are you in favor of providing constitutional rights to victims of crime, including the right to be treated fairly, with dignity and respect, and the right to be informed and to have a voice in the judicial process?”

Lawmakers promised to try to bring the law back before the Assembly, and last week State Sen. Whitney Westerfield (R–Crofton) announced its resurrection in an op-ed for the Courier Journal. The piece doesn’t actually mention Bevin’s pardons and commutations, but it notes that Westerfield has updated the version passed in 2018 to “ensure victims have the right to be heard in and notified of the consideration of any pardon, commutation of sentence or granting of a reprieve.”

The problem with Marsy’s Laws is that they do a whole lot more than just notify crime victims of proceedings involving those charged and convicted of crimes. By giving victims a version of legal “standing” during the investigation and trial of crimes, these laws have the potential to tilt the balance against the defendants and violate their constitutional rights by treating them with the presumption of guilt rather than innocence. Allowing the alleged victim to have a say in a defendants’ bail, for example, treats the defendants as though they’re guilty when they haven’t even been convicted.

As such, defense attorneys and the American Civil Liberties Union are largely opposed to these laws. David M. Ward, president of the Kentucky Association of Defense Lawyers, warned back in 2018:

The reason we have the procedural protections for the accused that we do is that our criminal justice framework rests on the presumption of the accused’s innocence and the fact that, occasionally, people that are accused of a crime are not guilty. Identifying a “crime victim” at the outset of the proceeding presumes just the opposite. Take for example one category of cases—those involving self-defense. Do we really want a system where a person who claims this fundamental right of self-protection must defend themselves not only against the power of the State but also against the legal onslaught mounted by a victim who later, after a trial, turns out to be anything but?

Marsy’s Laws sometimes allow alleged “crime victims” to control how much information about themselves is made public. In some states, police who shot people in the line of duty have used Marsy’s Laws to conceal records about those violent encounters—including the officers’ names—by identifying themselves as crime victims.

These laws also make it harder for prisoners to seek out appeals. This can have any number of potentially bad consequences for somebody trying to prove his or her innocence. As Matthew Harwood wrote in Reason,

Under the version of Marsy’s Law passed in Florida last year, people convicted of noncapital crimes have only two years to complete all appeals, while those on death row have five years. The new limits are based on the victim’s right to proceedings free of unnecessary delays. Under prior law, by contrast, there were limits on how long it could take to file a post-conviction action, Miller said, but there were no limitations on how long the post-convictions could last once initiated.

“For all of my clients, we got involved in the case one or two decades later,” says the Innocence Project’s [Seth] Miller, whose organization has gotten 18 people in Florida released from prison. “Is this going to be used by victims of crimes to prevent us from pressing post-conviction motions based on newly discovered evidence of innocence, because it’s outside an arbitrary time frame set out in this new constitutional provision?”

But it’s hard for politicians to go wrong telling voters that they’re protecting the rights of crime victims, even if parts of the proposal replicate laws already on the books and even if it completely upturns the concept of presumed innocence.

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Add Pottstown, Pennsylvania, to the list of jurisdictions getting slapped over officials’ efforts to bypass search and seizure protections by mandating regular inspections of rental units. Last week, a Pennsylvania court vacated earlier rulings in favor of local officials and said trial should continue on plaintiffs’ claims that their rights are violated by invasions of their homes without cause or consent.

That’s potentially good news for the people of Pottstown, but also for tenants and landlords everywhere. Recent decades have seen creeping efforts by local governments to treat those who rent homes by choice or necessity as second-class citizens denied the full protections for their privacy embodied in the Fourth Amendment and similar state provisions.

What’s at stake is ably summarized in the Pennsylvania ruling. “In June 2015, the Borough enacted a number of housing ordinance amendments. At issue here, the amendment included provisions requiring each owner of rental property to permit inspections of all rental units every two years,” the three-judge panel of the Commonwealth Court of Pennsylvania noted in the January 6 opinion. “If voluntary access for an inspection is denied, the ordinance allows the Borough to apply for an administrative warrant… The record does not disclose what criteria, if any, the Borough must satisfy in order to obtain such a warrant.”

So far as anybody can tell, the criteria boils down to “let’s print another sheet of paper with the word ‘warrant’ on it.” That loose standard—if it can even be called a standard—raises real concerns when it acts as a skeleton key for government officials to enter people’s homes and look through their living spaces and private possessions.

“Tenants also point out that each inspector is instructed to share with police any observation of an item in a rental unit that the inspector, in his total discretion, considers an indicator of criminal activity…thus allowing police to obtain information about the contents of a dwelling without the need to obtain a search warrant based on individualized probable cause,” the court adds.

Pottsville’s rental inspections not only evade the protections intended by the Fourth Amendment and the arguable even more protective Pennsylvania constitution, but may even do so deliberately. How convenient it is for law enforcement to have colleagues acting as their eyes and ears, but subject to fewer restrictions.

Unsurprisingly, Pottstown tenants Dorothy and Omar Rivera, and their landlord Steve Camburn, objected to the cause-less search and filed suit in 2017 to prevent the invasion of their home. They were joined by Kathleen and Rosemarie O’Connor, who live next door to their father, Thomas O’Connor, in a second family home that the city treats as a rental unit. The plaintiffs are represented by a team led by the Institute for Justice.

Fighting coerced, cause-less inspection of rental units isn’t new for the Institute for Justice. It challenged Yuma, Arizona over a similar law in 2002, and forced the city to make search warrants conditional on probable cause. The group is currently fighting similar inspections in Zion, Illinois, and Seattle, Washington, as well.

“Seattle’s law is being challenged as more and more cities adopt similar, proactive programs to help improve rental inspections,” Curbed reported of the challenge to that city’s cause-less searches. “Detroit and Syracuse, New York, have recently passed similar ordinances.”

So have other local governments.

“If there is one thing every American understands, it’s that government officials don’t have the right to enter our homes unless they have a warrant or there’s a true emergency,” ACLU of Virginia Executive Director Claire Guthrie Gastañaga objected after Hampton, Virginia, adopted a similar rental inspection requirement in 2013. The ACLU earlier threatened legal action against Virginia officials in Chesterfield County, deterring them from adopting similar inspections.

Most of these rental inspection laws couch their rationales in public health language. They’re full of concern about code compliance and maintaining safe and hygienic conditions for tenants. Sure, tenants could take concerns up with their own landlords, or file complaints on their own initiative, but much of the push behind rental inspections drips with contempt for the agency of mere renters.

“By relieving tenants of the burden of having to force reticent landlords to make needed repairs, systematic inspections can help ensure that a locality’s rental housing stock is maintained and that residents live in healthy conditions,” ChangeLab Solutions, a public health nonprofit, claims in A Guide to Proactive Rental Inspection Programs published in 2014.

“Often, the most vulnerable tenants don’t complain,” the report continues. “Some tenants are unaware that they have a right to safe and habitable housing. They may not know about existing tenant protections or code enforcement programs. Or they may have language barriers or disabilities that make it difficult to navigate the code enforcement system. Many tenants may be afraid to complain about their housing for fear of increased rent or landlord retaliation (such as eviction). Residents may be undocumented or have limited income that hampers their ability to move.”

The ChangeLab Solutions report notes that some tenants may have privacy concerns and wish to deny entry to inspectors. It recommends administrative inspection warrants as a means of breaching such barriers.

As befits laws that were born in contempt for those who sign leases instead of deeds, penalties for noncompliance are often levied on landlords, leaving them to find a way to coerce resistant tenants into admitting inspectors, or else join those tenants in fighting intrusive officials.

Many landlords do give in and act as proxies to twist tenants’ arms into allowing government officials to search their homes without probable cause. But lawsuits across the country, including the one proceeding in Pottstown, show that other owners prefer to join with their tenants to preserve search and seizure protections against intrusive officials who treat privacy concerns with disdain.

Rental inspections are supposed to be about public health. But nothing is healthier than a public dedicated to preserving its own privacy and liberty against snoopy officials.

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The ride-sharing company Uber and the food-delivery outfit Postmates, joined by two individual plaintiffs, filed a federal lawsuit last month challenging AB 5, California’s strict new law regulating the so-called gig economy. Unfortunately, the suit neglected to include an important and necessary constitutional argument.

AB 5, as Reason‘s Elizabeth Nolan Brown has reported, was designed to force “companies like Uber and Postmates—along with any employer that relies heavily on independent contractors, freelancers, or consultants—to hire most workers as full-time employees and provide a range of benefits to their contingent workforces.” The two companies, which launched the suit at the U.S. District Court for the Central District of California, Western Division, argue that this regulation deprives “workers of the flexibility and freedom of their current independent status, and instead [places] them under the authority, control, and direction of an employer.” This, the suit maintains, violates both workers’ and employers’ “fundamental liberty to pursue their chosen work as independent service providers and technology companies in the on-demand economy.”

Uber and Postmates are correct that the U.S. Constitution, properly understood, protects economic liberty against state infringement. But their suit fails to invoke the principal constitutional provision that does the protecting. Consider the language of the suit:

AB 5 violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the United States Constitution, the Ninth Amendment to the United States Constitution, and the Contracts Clause of Article I of the United States Constitution, as well as the Equal Protection Clause, Inalienable Rights Clause, Due Process Clause, Baby Ninth Amendment, and Contracts Clause of the California Constitution.

Missing from this rather long list is the Privileges or Immunities Clause of the 14th Amendment, a provision which was both designed and originally understood to protect a broad range of fundamental rights from state abuse, including economic liberty. As then–Texas Supreme Court Justice Don Willett observed in a 2015 opinion, the 14th Amendment’s record “is replete with indications that ‘privileges or immunities’ encompassed the right to earn a living free from unreasonable government intrusion.”

Don’t just take Willett’s word for it. Take the word of Rep. John Bingham (R–Ohio), the principal author of the Privileges or Immunities Clause itself. “The provisions of the Constitution guaranteeing rights, privileges, and immunities to citizens of the United States,” Bingham told the House of Representatives in 1871, include “the constitutional liberty…to work in an honest calling and contribute by your toil in some sort to the support of yourself, to the support of your fellowmen, and to be secure in the enjoyment of the fruits of your toil.”

It’s nice to see Uber and Postmates championing the right to economic liberty in federal court. It would be even nicer if they included the most important constitutional support for that right.

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When can the law stop you from saying things about me in order to protect my privacy? Pretty rarely, it turns out.

Let’s just make clear what kind of “privacy” we’re talking about. The Supreme Court has sometimes discussed a “right to privacy,” but that’s generally a right to personal autonomy—for instance, the right to buy and use contraceptives. We’re not talking about that right here.

We also often have a right to physical privacy in the sense of freedom from trespass or surveillance. The Fourth Amendment, for example, protects us against “unreasonable searches and seizures” by the government. The law of trespass protects us against physical intrusions by our neighbors.

The tort of “intrusion upon seclusion” protects us from other kinds of surveillance, such as people photographing into our bedrooms using high-powered magnifying lenses or people telephoning us repeatedly in the middle of the night. We’re not talking about that here, either.

Rather, we’re talking about “informational privacy”—restrictions on communicating information about me when I think that information is highly private.

Here are the five rules of free speech and privacy:

Rule 1: We usually have a right to speak about other people, not just about ideas. We can express opinions about them, even if those opinions are insulting. We can say true things about them, even when they’d rather keep that information private.

Newspapers and TV programs are chock full of such speech about people, many of whom would rather not be spoken about. The same is true of biographies. Even autobiographies usually reveal information not just about the writer, but about his family, friends, lovers, business associates, and more.

Rule 2: We have a nearly absolute right to reproduce information drawn from government records. Newspapers can quote arrest reports, or documents from court cases, even when they describe the private details of the defendant’s life—or of a victim’s life. For instance, in 1989 the Supreme Court struck down a statute that forbade the media from publishing the names of sex offense victims. Such a statute, the Court held, wrongly limited the right to publish information drawn from government records, such as arrest reports.

And this right doesn’t vanish with time. There can be no European-style “right to be forgotten” under American law, at least when it comes to material taken from government records.

Rule 3: Our free speech rights extend to speech about private figures, and not just about government officials or famous people. Indeed, newspaper stories often disclose information about ordinary people who have never sought publicity.

Rule 4: Lower courts have allowed some civil lawsuits for so-called “public disclosure of private facts.” The Supreme Court has never decided whether this tort is constitutionally valid. But even if the tort can be constitutional, courts agree that it’s sharply limited.

First, it applies only to revelations of highly embarrassing or personal information, such as sexual history or medical conditions.

Second, it’s limited to statements that aren’t “newsworthy.” That’s a vague line, but courts have read the newsworthiness defense quite broadly: So long as the facts are linked to newsworthy events, such as a crime, people are free to repeat them.

Third, as Rule 2 notes, material borrowed from government records—again, such as trial transcripts or arrest reports—can pretty much always be published.

Rule 5: The strongest protection for privacy is generally contract. If a business, for instance, promises not to disclose information about its customers, that promise can be enforced in court. Same if, for instance, someone who is working for a celebrity signs a nondisclosure agreement as a condition of employment.

Such contracts aren’t always enforceable; for instance, if a court orders you to disclose information about a customer, you can’t just insist that you had promised the customer to keep it secret. Likewise, a federal statute bars businesses from requiring consumers to sign “non-disparagement” clauses, in which the consumer promises not to publish critical reviews of the business.

But if a contract not to speak is otherwise enforceable, the First Amendment doesn’t prevent its enforcement. And that extends to promises of privacy as well as to other nondisclosure agreements.

—
Written by Eugene Volokh, who is a First Amendment law professor at UCLA.
Produced and edited by Austin Bragg, who is not.
Additional graphics by Joshua Swain

This is the ninth episode of Free Speech Rules, a video series on free speech and the law. Volokh is the co-founder of The Volokh Conspiracy, a blog hosted at Reason.com.

This is not legal advice.
If this were legal advice, it would be followed by a bill.
Please use responsibly.

Music: “Lobby Time,” by Kevin MacLeod (Incompetech.com) Licensed under Creative Commons: By Attribution 3.0 creativecommons.org/licenses/by/3.0/

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When Willie Nash was booked into a Mississippi corrections facility, officers failed to confiscate his phone. For that, he was sentenced to 12 years behind bars. The state’s Supreme Court acknowledges that proper booking procedure was probably not followed and that Nash did not seem to know his phone was illegal, but they nonetheless ruled Thursday that the sentence is fair.

After Nash was booked into the Newton County Jail on a misdemeanor charge, he asked a jailer to charge his phone, seemingly unaware that he was not supposed to have the item. Mississippi Code Section 47-5-193 considers the possession behind bars of “any weapon, deadly weapon, unauthorized electronic device, contraband item, or cell phone” a felony; the offense carries a prison sentence of three to 15 years.

The jailer took the phone to a sheriff’s deputy. Nash initially denied ownership, but officials confirmed that it was his using the passcode he had previously provided the jailer. In one of the text exchanges discovered, a contact inquired about Nash’s location, to which he responded, “in jail.”

A jury then found Nash guilty of possessing of a cell phone in a correctional facility. At sentencing, the judge told Nash to “consider yourself fortunate.” Had the court used Nash’s previous burglary convictions to classify him as a habitual offender, he would have received the full 15 years in prison, not 12.

Nash appealed not the conviction but the lengthy sentence, which he said was both “grossly disproportionate” and a violation of his Eighth Amendment right against cruel and unusual punishment. He also argued that the statute’s list of prohibited items put them in descending order of seriousness, implicitly indicating “differing degrees of transgression” that deserved different penalties. But the state Supreme Court decided that it could not find “under the law that the trial court abused its discretion in sentencing.”

The Court shot down the “differing degrees of transgression” argument on the grounds that the statute warns against violating “any provision.” And since the sentence fell within the “statutory range”—that is, because it does not exceed 15 years—the Court said it could not be appealed.

“While obviously harsh, Nash’s twelve-year sentence for possessing a cell phone in a correctional facility is not grossly disproportionate,” the Court concluded. The judge, the decision noted, had expressed his reasoning for the sentence, citing Nash’s prior convictions and acknowledging that he could have given Nash the full 15 years.

In a concurring opinion, Associate Justice Leslie D. King wrote that while the Court upheld case law in its ruling, the case “seems to demonstrate a failure of our criminal justice system on multiple levels.”

It was “highly probable,” King said, the proper booking procedure was not followed and that Nash’s behavior indicated he was unaware that his phone was illegal. He added that it seemed “problematic” to “allow someone into the jail with a cell phone, and then to prosecute that person for such action.” And despite Nash’s previous convictions, King felt his history showed a change in behavior. Nash had served time for burglary, but for nearly 10 years afterward, Nash had stayed out of trouble and has provided for his wife and three children.

The judge could have used more discretion, King concluded, since Nash’s crime was victimless, he was not doing anything “nefarious” with the phone, and he provided it willingly.

Mississippi has the third-highest incarceration rate in America.

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