Tag: hit&run

Can a federal judge sentence you for a crime your jury says you didn’t commit? In a sane world, the answer would be “no.” If a prosecutor charges you with five crimes, and the jury finds you not guilty of four of them, the judge who then doles out the sentence should be able to consider only that one guilty verdict.

Yet federal judges can, and often do, use what’s called “acquitted conduct”—charges for which a person has been found not guilty—when sentencing defendants for the crimes the jury says they did commit. It’s a horrifying bug in the federal criminal justice system that doesn’t get nearly enough attention. Until now. 

Sens. Dick Durbin (D–Ill.) and Chuck Grassley (R–Iowa) introduced a bill this week that would expressly prohibit the use of acquitted conduct at sentencing. “If any American is acquitted of charges by a jury of their peers, then some sentencing judge shouldn’t be able to find them guilty anyway and add to their punishment,” Grassley said in a statement released this week. “That’s not acceptable and it’s not American.”

The power of acquitted conduct is a deadly arrow in the prosecutor’s quiver. The fact that a judge will consider at sentencing every offense the prosecutor charges, even if jurors don’t buy the prosecutor’s pitch, essentially allows prosecutors to game the justice system. They can charge a defendant with an offense they know they can prove beyond a reasonable doubt, and then charge more serious offenses, with tougher penalties, that they can’t prove. Even if jurors act responsibly by convicting only on charges proved beyond a reasonable doubt, and refuse to convict on the reach charges, the prosecutor still wins when the judge takes all the charges into consideration at sentencing.  

“Under our Constitution, defendants can only be convicted of a crime if a jury of their peers finds they are guilty beyond a reasonable doubt,” Durbin said in a statement. “However, federal law inexplicably allows judges to override a jury verdict of ‘not guilty’ by sentencing defendants for acquitted conduct.”

A laundry list of criminal justice reform groups supports Durbin and Grassley’s bill, titled the Prohibiting Punishment of Acquitted Conduct Act. The bill would amend the federal criminal code “to preclude a court of the United States from considering, except for purposes of mitigating a sentence, acquitted conduct at sentencing,” and it would “define ‘acquitted conduct’ to include acts for which a person was criminally charged and adjudicated not guilty after trial in a Federal, State, Tribal, or Juvenile court, or acts underlying a criminal charge or juvenile information dismissed upon a motion for acquittal.”

The bill has support from several libertarian and conservative groups, including Americans for Prosperity, the American Conservative Union, Americans for Tax Reform, FreedomWorks, Prison Fellowship, the R Street Institute, Right on Crime, and Koch Industries. 

It’s not hard to see why this bill has bipartisan support. But to understand why the practice exists at all—and why some people will inevitably eventually oppose this bill—it helps to think of the federal criminal code as a choose-your-own-adventure book in which three out of every four narrative choices end in “go to prison.” Police and prosecutors want to keep it that way.

The use of acquitted conduct at sentencing empowers prosecutors at the very early stages of the justice adventure. Upon gathering enough evidence to make an arrest, the prosecutor can file enough charges that, if the defendant is convicted of all of them, he or she will go to prison for a very long time. So the prosecutor encourages the defendant to plead guilty and receive a lesser sentence. Staring down the barrel of 20 years in prison if they lose at trial, versus 10 or five if they plead guilty, more than 95 percent of federal defendants plead guilty.

But what if the defendant didn’t do everything she was accused of, or if the prosecutor’s evidence against her is weak? Well, she can take her case to trial and have it out before a jury. And instead of 20 years in prison, or 10, or five, maybe she is acquitted of all charges and gets no time in prison, or is convicted of only a fraction of the charges and spends only two or three years in prison.

That’s when acquitted conduct comes into play. Prosecutors can lose before the jury and still win at sentencing. 

“Using acquitted conduct to set sentences heightens the temptation of prosecutorial overreach by blunting the downside to the government,” reads an amicus brief filed by FAMM* and the National Association of Federal Defenders in Asaro v. United States, an acquitted conduct case that the Supreme Court has been asked to hear. The authors go on to write: 

If the defendant succumbs to the government’s aggressive charges and pleads guilty, the government wins; if he goes to trial and is convicted on those charges, the government still wins; and if he goes to trial and persuades a jury that he is innocent of them, the government still wins, so long as it secures conviction on a more easily proved offense and persuades the sentencing judge of his guilt by a preponderance of the evidence. When acquittal of certain counts is just a “speed bump at sentencing”…prosecutors have little to lose by larding an indictment with charges they cannot prove beyond a reasonable doubt. The government has conceded as much, acknowledging that punishing acquitted conduct encourages charges prosecutors would otherwise forgo.

This is a bad practice. Thankfully, it’s one Congress appears willing to address without waiting for the Supreme Court.

• Full disclosure: I served as FAMM’s communications director from 2014 to 2016. 

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• Bless the Harts. Fox. Sunday, September 29, 8:30 p.m.
• Almost Family. Fox. Wednesday, October 2, 9 p.m.

Fox’s idea of domesticity has always been a little on the feral side. From television’s very first dysfunctional-family comedy Married … with Children to the longest-running sitcom in TV history, The Simpsons, Fox bloodlines zig-zag with wild abandon.

Having clubbed Ozzie and Harriet and the Cleavers like baby seals, the network is now turning to their modern descendants, the Bechleys, a blended family. Really blended—in test tubes and petri dishes. And there are dozens of them.

Almost Family, Fox’s comedy-drama about the aftermath of a meltdown at a fertility clinic, is easily the most promising series of the fall broadcast season: funny, poignant, and drenched in the chemistry between three charismatic actresses playing women who suddenly learn they’re sisters.

It’s also the most likely to be buried under an avalanche of political-correctness tantrums. When Fox held a press conference last summer after screening the show for TV critics, it immediately turned into a #MeToo witch hunt, with the critics ranting about what they said was Almost Family‘s flippant attitude toward “medical rape.”

Almost Family is a lot of things, but flippant isn’t one of them. The show’s premise may sound like a television contrivance, but a very similar scandal erupted at an Indianapolis clinic in 2018. (Oddly, though, that’s not the story the show is based on; it’s an adaptation of an Australian series called Sisters that launched in 2017.)

Almost Family centers around Julia Bechley (Brittany Snow, Crazy Ex-Girlfriend), an only child who works as the communications director at a clinic run by her widowed father, Leon (Timothy Bottoms, Ordinary People), an irascible pioneering fertility doctor.

Their relationship, always problematic, goes completely haywire when Leon, confronted by reporters, confesses that in the uncertain early years of his practice, he used his own sperm to impregnate scores of his female patients.

Julia’s sense of personal and professional betrayal (the resulting scandal threatens to sink the clinic) only grows more profound in the face of her father’s chilly indifference. He was, he insists, just trying to bolster the crude early fertility technology to help his patents achieve positive outcomes.

“Not outcomes,” she furiously retorts. “Babies! Who grew up to be people!”

Among those people are Julia’s ex-best friend Edie Palmer (Megalyn Ann Echikunwoke, 90210), a belligerent defense attorney who stole Julia’s college boyfriend, and Roxy Doyle (Emily Osment, Hannah Montana), a fading and surly ice-skating star now known less for triple axels than a mean left hook.

The three share more than DNA. Julia’s sunny PR smile masks inner turmoil that regularly boils over into squalid bathroom hookups with men she either barely knows or wishes she didn’t. Edie’s uncertain about an outwardly model marriage that, at home, has sunken into a sexual deep-freeze. And Roxy, her body a twisted wreck after too many hard spills on the ice, believes her parents (“the losers who raised me”) see her as less a daughter than a meal ticket.

Each of the women feels a vague but insistent sense of an undefined hole in her life. “I’m sorry you picked such a broken person to be married to,” Edie tells her husband after a fight, but it’s a line that, with little alteration, could have been spoken by any of them.

Screenwriter Annie Weisman, who produced 23 episodes of Desperate Housewives, has woven Almost Family into a seamless tapestry of drama and comedy. And Snow, Echikunwoke and Osment are all equally adept at both, playing off one another like a stage ensemble that’s headed into its 800th night on Broadway. The tale they tell has legal pyrotechnics, corporate intrigue, and countless layers of betrayal. But its real story is how, out of the jagged shards of their fractured lives, these women tentatively start rebuilding something together.

Fox’s other premiere this week is also an oddball family story, one that gestated at Saturday Night Live, where creator and producer Emily Spivey wrote while stars (their voices, anyway; Bless the Harts is animated) Kristen Wiig and Maya Rudolph delivered the lines.

Jenny Hart (Wiig) is a single mom working in a greasy spoon in a small Southern town; her mother Betty (Rudolph) dreams of amassing a fortune through eBay trickery.  There’s not much here you haven’t seen on another Fox cartoon, King of the Hill, except it’s done with Southern accents. The pilot does feature a couple of interesting guest appearances—one by an anarchist cat working to destroy zoning laws, and another by Colin Powell doing the macarena. Call me if they get their own shows.

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An off-duty Los Angeles police officer who shot and killed an unarmed, apparently developmentally disabled man in a confrontation in a Costco in June will not face criminal charges for his actions.

A grand jury declined to indict Salvador Sanchez for shooting and killing David French, 32, after the two of them had a brief and vague fight in a Costco in Corona, California.

French was apparently the aggressor, but he was unarmed. According to multiple accounts of the incident, French, with no provocation, struck Sanchez on the back of the head while they were waiting in line at a food sample station. Sanchez says he was holding his infant son in his arms when he was knocked down suddenly and briefly knocked out. His lawyer, David Winslow, said that when Sanchez reawakened, he believed he was “fighting for his life.”

Sanchez fired 10 shots, killing French and critically injuring French’s parents.

After the encounter, French’s family came forward to explain that French was nonverbal, intellectually disabled, and diagnosed with schizophrenia. Family members said French had no history of violence but had recently been prescribed a new medication.

A security camera in Costco captured part of the encounter, but a court order barred its release until a grand jury decided against an indictment on Wednesday. Unfortunately, the video, which can be viewed here, is not terribly illuminating. It does not show Sanchez shooting French, but it does show French and a family member falling—likely his father, who said he attempted to intervene between his son and Sanchez—to the floor as Sanchez, off-screen to the left, shoot at them.

It is worth noting that the video appears to show the Frenches as moving away from Sanchez and not attempting to move aggressively toward him. And Riverside County District Attorney Mike Hestrin has said that less than four seconds elapsed between the point where French knocked Sanchez down and Sanchez got up and began shooting. Today, the Los Angeles Times reports that Sanchez was 20 feet away from the men when he began shooting, while still sitting on the floor after being knocked down.

Hestrin could decide to prosecute Sanchez even without the grand jury indictment. But he does not intend to, because 12 of the 19 members of the grand jury said they didn’t see enough evidence to justify charges.

Meanwhile, the LAPD is doing its own administration investigation to determine whether Sanchez’s decisions were appropriate under department policy.

Everybody involved in the shooting sees this as a tragedy, and nobody is arguing that French deserved to be shot and killed. The question is whether Sanchez’s use of lethal force was justified given the situation.

Would this response be the same if Sanchez were not a police officer? California political leaders are quick to implement tight gun controls and to give officials the power to seize citizens’ weapons. It’s hard to fathom a Californian who is not part of law enforcement getting to shoot an unarmed man in a massive store while people ran away screaming without so much as a slap on the wrist.

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President Donald Trump and Prime Minister Shinzo Abe of Japan have reached a deal that promises to cut tariffs and boost trade between the two nations. That’s good news. But the agreement is also a disappointing reminder of a better deal that could have been.

The pact, announced Wednesday, is an undeniably positive development for American businesses and a rare pro-trade maneuver from the Trump administration. Japan agreed to reduce or eliminate tariffs on many American agricultural exports, including beef, pork, corn, and some fruit. In return, the U.S. will reduce tariffs on Japanese industrial products, bicycles, flowers, tea, and other items. The deal also bars either country from raising duties on digital products, such as streaming videos, music, and video games.

A joint statement issued by the two leaders states that the agreement is a step toward settling other tariff-related issues—a signal that Trump’s threat of hitting Japanese-made cars with tariffs could be off the table now.

WE HAVE A JOINT STATEMENT pic.twitter.com/tjksq5GGXg

— Soumaya Keynes (@SoumayaKeynes) September 25, 2019

“This is a huge victory for America’s farmers, ranchers, and growers,” Trump said at a press conference announcing the deal. “And that’s very important to me.”

Indeed, increasing access to Japanese markets could be a $7 billion boost for American farmers—who have been hit particularly hard by Trump’s trade wars, which have sharply reduced exports to China. But American farmers could already have had greater access to Japan, and to a number of other countries around the Pacific Ocean, if Trump had not yanked America out of the Trans-Pacific Partnership (TPP) shortly after taking office.

Trump’s opposition to the TPP, a 13-nation trade agreement the Obama administration was trying to put together, was supposedly rooted in his belief that the bilateral trade deals he promised to negotiate would be better for Americans. But the very agricultural tariff reductions Trump is trumpeting as a victory for American farmers in his Japan deal were also part of the TPP.

In other words, if the U.S. had remained in the TPP, American farmers would already be benefitting from lower tariffs on beef and pork exported to Japan. And they would have greater access to other nations too. Trump is celebrating the benefits of a single trade pact when he could have had much more.

“It really is a pretty small-scale trade agreement,” says Clark Packard, a trade policy counsel with the R Street Institute. “The TPP was a better deal than this. It encompassed a lot more areas of trade. It had more members, it was more expansive, and we wasted a lot of time and effort to get to this point.”

The TPP would have eliminated 18,000 tariffs that the partner countries currently impose on American exports. It also would have included soybean exports, which are notably not part of the U.S.–Japan deal.

The TPP was not perfect. Like any trade deal, it would have set rules that favored some politically connected U.S. exporters. It was hundreds of pages long, much of which was dedicated to trying to impose American labor, environmental, and intellectual property rules on other countries. In an ideal world, politicians and bureaucrats would have no role to play in the trade between people and businesses, no matter how many national borders are crossed in the process. If Trump wanted to scrap the TPP in favor of simpler deals that merely reduced tariffs and other barriers to trade, that would have been an improvement.

Instead he has done the opposite. He has raised tariffs on many imports—which means hiking taxes on American consumers and businesses—and his decision to abandon the TPP deprived American businesses of new opportunities in Asian markets.

Signing a trade with Japan is a small step in the right direction, but it only cancels out a portion of the damage Trump has done. “It’s better than the status quo,” says Packard, “but not as good as it could have been.”

 

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Google handles 88 percent of search traffic in the United States. Facebook has more than 2.4 billion active monthly users worldwide. Half of all U.S. online retail is projected to go through Amazon by 2021.

Both Democrats and Republicans have called for breaking up the tech giants, holding them legally liable for what others say on their platforms, and imposing new regulations that would stop them from misusing their customers’ personal information. But there’s also a growing movement, which includes some of the web’s early pioneers, to come up with technological ways to counter Facebook, Amazon, Twitter, and Google.

The goal is to build a better, more decentralized web.

“There are so many different possible ways of decentralizing the internet, and what’s lacking is the legal right to interoperate and the legal support to stop dirty tricks from preventing you from exercising that legal right,” says Cory Doctorow, a science fiction author and tech journalist who’s been thinking and writing about the web since Tim Berners-Lee introduced it to the public in the early 1990s.

Berners-Lee and other web pioneers intended for their creation to be decentralized and open-source. “The cyber-utopian view was not merely that seizing the means of information would make you free, but that failing to do so would put you in perpetual chains,” says Doctorow.

There are many theories about why the web became centralized. Doctorow largely blames the abuse of intellectual property law to defeat the decentralized “free software” movement championed by the programmer and activist Richard Stallman. Stallman helped create the popular open-source operating system Linux after freely modifying Unix, Bell Labs’ proprietary system.

But the Digital Millennium Copyright Act, passed in 1998, became an impediment to the open and permissionless approach to software development. The law was intended to prevent duplication of copryrighted works and was eventually applied to all software. Breaking “digital locks” to learn from, interact with, and improve upon the code of dominant web platforms became a federal crime. It’s standard practice for today’s tech companies to shield their proprietary code from would-be competitors by wielding the power of an increasingly expansive intellectual property regime.

“And so this thicket of exclusive rights around products that can be invoked to prevent new entrants for making add-ons, compatible products, or even competing products is a really important change in the landscape,” says Doctorow. “One that has made it very hard for new entrants to emerge and I think is in large part responsible for the concentration in the industry.”

Despite these legal and political challenges, innovators are attempting to create new decentralized ecosystems of web services.

Mitra Ardon is the head of decentralization at the Internet Archive, a digital repository of more than 50 petabytes of images, movies, and texts—including more than 330 billion webpages.

“The archive’s mission is to make all of mankind’s knowledge available online forever to everyone for free, which is a pretty big vision, right?” says Ardon.

He says the history of the web is too important to be held in custody by a single organization. So he’s overseeing a plan to migrate the Internet Archive’s more than 50 million gigabytes of data to a distributed network maintained by users.

A beta version of this peer-to-peer network is already operating and publicly accessible.

“I think what [a more decentralized web] would look like is a world where servers were everywhere, that your internet router at home would also be a server,” says Ardon.

Doctorow doesn’t think the decentralized web can take off without government intervention. He agrees with Sen. Elizabeth Warren (D-Mass.) and Josh Hawley (R–Mo.) that the Federal Trade Commission should break up the tech giants.

“[The tech giants] got giant doing what we used to ban and that we stopped banning right when the tech industry started,” says Doctorow, who argues that Ronald Reagan and the federal courts undermined the original intent of the Sherman Antitrust Act during the 1980s using the legal theories of former federal judge Robert Bork:

Every president since Reagan has expanded Bork’s doctrine, allowing for even more aggressive market concentration, producing a country (and a world) where a handful of firms dominate virtually every industry, from telcoms to talent agencies, wrestling to eyewear, to Big Tech. 

But in the October 2019 issue of Reason magazine, economist Thomas Hazlett argues that sweeping antitrust action has often entrenched existing players, largely due to the phenomenon of regulatory capture:

The late Nobel laureate George Stigler started as a “bust ’em up” guy: In 1952 he wrote an article in Fortune stating the “case against Big Business” and calling for the dissolution of General Motors. But through observation and analysis, Stigler’s view progressed until he arrived at an antitrust policy that gave dynamic forces their due and put consumer interests at the center. He came to see government institutions as imperfect, and he posited in a 1971 paper the theory of “regulatory capture,” whereby “regulation is acquired by the industry and is designed and operated primarily for its benefit.”

Arguments about antitrust aside, the technological tools needed to bring about a more decentralized web may already exist, though they’re not yet widely implemented.

“Web 3.0 has this wonderful set of trust baked into the Internet itself,” says Molly Mackinlay, a former Google programmer and a current project lead of the InterPlanetary File System (IPFS), a communications protocol that’s meant to replace the hypertext transfer protocol (HTTP) that most of us use to access the web now. While HTTP connects your computer to a particular server, IPFS scours the network for a piece of content, which gets assigned a unique ID marker and connects you to whomever happens to be hosting it.

Mackinlay wants a decentralized web that relies less on centralized servers and more on distributed storage networks—such as Filecoin, a cryptographic token that rewards users for storing data. This, she says, would be an effective way to sidestep the dangers of censorship and overregulation.

“That’s a better, safer, more resilient world, which doesn’t end up…susceptible to authoritarian manipulation and control,” says Mackinlay.

Produced by Zach Weissmueller. Camera by Alexis Garcia, John Osterhoudt, and Weissmueller. Opening graphic by Lex Villena. Additional graphics by Meredith Bragg.

Photo credits: Preston Ehrler/ZUMA Press/Newscom, Stefani Reynolds/CNP/Polaris/Newscom, ITU Pictures (under CC Attribution 2.0 License), Jeremy Hogan/Polaris/Newscom. 

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The sticker appears to be a version of this:

But of course this is constitutionally protected, given the Court’s decision in Cohen v. California (1971) that a jacket bearing the words “Fuck the Draft” was constitutionally protected. Indeed, it’s not even barred by the relevant Tennessee statute (Tenn. Code § 55-8-187), which reads,

To avoid distracting other drivers and thereby reduce the likelihood of accidents arising from lack of attention or concentration, the display of obscene and patently offensive movies, bumper stickers, window signs or other markings on or in a motor vehicle that are visible to other drivers is prohibited and display of such materials shall subject the owner of the vehicle on which they are displayed, upon conviction, to a fine of not less than two dollars ($2.00) nor more than fifty dollars ($50.00). “Obscene” or “patently offensive” has the meaning specified in § 39-17-901 [which restates the First Amendment test for obscenity, and defines “patently offensive” as “that which goes substantially beyond customary limits of candor in describing or representing such matters,” apparently referring to sexual matters.

The word “fuck” in this context doesn’t fall within the First Amendment obscenity test, as the Court recognized in Cohen:

This is not … an obscenity case. Whatever else may be necessary to give rise to the States’ broader power to prohibit obscene expression, such expression must be, in some significant way, erotic. It cannot plausibly be maintained that this vulgar allusion to the Selective Service System would conjure up such psychic stimulation in anyone likely to be confronted with Cohen’s crudely defaced jacket.

The same logic applies here; indeed, the Tennessee Attorney General’s office has acknowledged (Tenn. Op. Atty. Gen. No. 88-44) that

The [statute] will not reach bumper stickers that are in extremely poor taste but are not obscene [under the Supreme Court’s obscenity precedents]. For example, bumper stickers such as “s..t happens,” although unquestionably in poor taste, do not meet the constitutional or statutory standards for obscenity because they do not appeal to the purient interest. Consequently, they cannot be banned as obscene.

See also Cunningham v. State (Ga. 1991) (“Shit Happens” bumper sticker constitutionally protected).

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Footage went viral this week of a woman, apparently from the United States, telling off some Hong Kong protesters for desecrating their city with protest posters and graffiti.

“Is this OK? Is this respectful?” she asks, pointedly gesturing to a defaced nearby wall, before trailing off with a tone-deaf trump card, “If my mother saw me write this…”

Do you really feel safe living under a police state.

— EdwinLau (@EdwinLa81362329) September 23, 2019

The woman then questions Hongkongers about the aims of their protests, which are now in their 16th week. The protests started over an extradition bill that would have allowed suspected criminals to be sent to mainland China, but they have expanded to embrace broader demands for more liberty and self-government.

Hong Kong is technically part of China, but the city’s citizens are allowed far more freedom—including freedom of the press and the right to elect some of their legislators—under the “one country, two systems” policy, which will be sunsetted in 2047. Many Hongkongers fear being placed under authoritarian Chinese rule, knowing that on the mainland censorship is the norm, the Communist Party must be appeased at every twist and turn, and political opponents get disappeared (often before showing up on state-run TV with a tearful coerced confession or histrionic display of remorse).

“Find me one case where violence led to a solution,” the woman in the video challenges the Hongkongers. “What a waste of time for everybody,” she says of the demonstrations. In fact, the protests have had at least one significant, if tentative, success: Hong Kong’s chief executive, Carrie Lam, conceded one of the movement’s five demands three weeks ago by withdrawing the bill that set off the protests.

“You guys value freedom more than safety. Do you agree? I think safety is more important than freedom,” the American says. “If you have a safe environment, you can communicate.”

But it’s freedom of speech that lets people be free of legal retribution for the words they say. It’s freedom of speech that allows people wide latitude in how they express themselves, and where, and to whom. A “safety” enforced and ensured by an authoritarian police force is a fickle promise if you piss off the people in charge, and it doesn’t necessarily mean safety for everyone. Sometimes one person’s feeling of safety comes at the expense of other people’s freedoms. Hongkongers, attempting to keep Beijing’s influence at bay, are keenly aware of this.

“China’s thinking is safety is more important than freedom,” the woman claims, before beginning to chip away at posters with her nail. “We shouldn’t do this! This is my city, too!”

At one point she speaks something that sounds like Cantonese. So she could be an expat living in Hong Kong, concerned about the degree to which the city’s been torn apart by civil unrest. But her safetysplaining makes it clear that she either doesn’t understand or just doesn’t care about how high the stakes are. One gets the impression that she hasn’t had her freedom seized for the sake of someone else’s safety.

Under full Chinese rule, Hongkongers will get neither freedom nor safety. An authoritarian regime that forces subservience to the party cannot be trusted to provide either one.

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I much enjoyed participating in this podcast, which was taped in front of a student audience Wednesday here at UCLA; here is IJ’s summary of the three cases my UCLA colleague Richard Re, Robert Everett Johnson (Jones Day), and I discussed:

After a student newspaper at the University of California, San Diego published a piece satirizing safe spaces and trigger warning, the student newspaper pulled funding for all print media. A First Amendment violation? And…

When doling out federal grant money for community policing efforts, the DOJ gives preference to local departments that promise to cooperate with federal immigration efforts. Which, says Los Angeles, would actually undermine community trust in police. Did the DOJ exceed the powers delegated to it by Congress? And …

Religious organizations need not comply with some aspects of the Americans with Disabilities Act. But does the so-called “ministerial exception” extend to a Catholic school that fired a fifth grade teacher who needed time off for chemotherapy?

 

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There is little question that Timothy Trybus, the obnoxious drunk who angrily confronted Mia Irizarry as she was preparing for a birthday party at a Chicago park in June 2018, was guilty of disorderly conduct. He may also have committed simple assault. But both of those offenses are Class C misdemeanors, punishable by up to 30 days in jail. So why does he face up to five years in prison?

It is entirely because of the opinions Trybus expressed during his tirade, which this week led a jury to convict him of two felony hate crimes.

This case is highly instructive for anyone who doubts that hate crime laws punish people for what would otherwise be constitutionally protected speech. If Trybus had yelled at Irizarry because he hates birthday parties or because she was wearing a Green Bay Packers hat, he might still have been arrested for harassing her, but he would not be facing a prison sentence. Because he yelled at Irizarry about her Puerto Rican flag T-shirt, his misdemeanors became felonies.

A viral cellphone video recorded by Irizarry, which shows an audibly intoxicated and belligerent Trybus repeatedly harassing her, provided the damning evidence of his benighted views. “Why are you wearing that?” Trybus asks, pointing at the flag shirt. “This is America….You’re not gonna change us, you know that?…You should not be wearing that in the United States of America….If you’re an American citizen, you should not be wearing that shirt in America.”

Under Illinois law, Trybus’ behavior pretty clearly qualified as disorderly conduct, which includes “any act” performed “in such unreasonable manner as to alarm or disturb another and to provoke a breach of the peace.” His actions may also have amounted to assault, a charge that applies to anyone who “without lawful authority…knowingly engages in conduct which places another in reasonable apprehension of receiving a battery.”

Trybus’ lawyer, David Goldman, questioned whether Irizarry was “reasonably in fear of receiving a battery,” noting that he never touched her and that she remained calm throughout the episode. But in these circumstances, it would not be unreasonable for an unaccompanied woman to fear that the angry, intoxicated man who repeatedly rebuked her and refused to leave her alone might be capable of violence.

Either way, both of these offenses are misdemeanors. What made them felonies was the Illinois hate crime law, which applies “when, by reason of the actual or perceived race, color, creed, religion, ancestry, gender, sexual orientation, physical or mental disability, or national origin of another individual or group of individuals,” someone commits any of several offenses, including assault and disorderly conduct. A hate crime is a Class 4 felony, punishable by up to three years in prison, for a first offense and a Class 3 felony, punishable by two to five years in prison, for a second offense if it is committed in “a public park.”

To put it another way, the maximum sentence for Trybus’ offenses is 60 times as long as it would have been if prosecutors had not invoked the hate crime statute. And that staggering multiplier applies purely because the object of his ire was the Puerto Rican flag on Irizarry’s shirt, suggesting that he targeted her because of her race, color, or ancestry. Trybus could spend an extra 59 months behind bars for no reason other than the content of his beliefs, as opposed to the manner in which he expressed them. That clearly amounts to punishing him for his opinions, which is not something the government should be doing in a society that claims to respect freedom of conscience and freedom of speech.

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Yet another study has concluded that the hoops U.S. women must currently jump through to obtain birth control are unnecessary. In “A Study of Telecontraception,” published in The New England Journal of Medicine, researchers show that it can be safe to get a birth control pill prescription through online consultation and then receive the medicine.

The researchers employed “secret shoppers” to seek birth control prescriptions online, with some indicating conditions that would make it unsafe to take certain brands or, in some cases, to take any oral contraceptive at all. The study was limited—it involved seven women, nine companies, and 63 virtual visits between October 2018 and March 2019. But the results are promising.

In almost all cases—93 percent—the providers followed the Centers for Disease Control and Prevention’s guidelines. Oral contraceptives were prescribed in just three out of 45 visits with potential red flags. That, the authors say, suggests “adherence to guidelines among telecontraception vendors may be higher than it is among clinics that provide in-person visits.”

Writing in the New England Journal of Medicine letters section yesterday, the authors—Tara Jain, Eleanor B. Schwarz, and Ateev Mehrotra, all of Harvard Medical School—define telecontraception as “the provision of contraception through a website or smart-phone app” and note that it has “recently emerged as an alternative to provision at clinic visits.” Some of their findings:

Each visit lasted a mean of 7.5 minutes, during which patients completed an online  questionnaire. Two vendors provided a video call during the visit immediately after patients completed the questionnaire. In 20 visits (32%), a follow-up interaction occurred in the form of text messaging with three vendors, a phone call with two vendors, and a video call with one vendor. Three vendors did not require patient–provider interaction. A prescription was sent electronically to a local pharmacy on the same day as the visit or mailed to the patient’s home within a mean of 7 days (range, 3 to 14 days). The mean total cost (including the initial visit and any required follow-up visits) for a 12-month prescription for an uninsured patient was $313 (range, $67 to $519).

Yesterday was also “World Contraception Day,” marked by a push to make birth control pills available over-the-counter. Activists aim to “free the pill” from doctor’s visits, prescriptions, and trips to the pharmacy. It’s a policy that many medical professionals have recommended, it could go a long way toward curbing unintended pregnancies, and it could truly expand access (not just insurance coverage) when it comes to birth control.

Emergency contraception has for years been available without a prescription. But politics and bureaucracy have prevent the same from happening with regular birth control pills.

This week the American College of Obstetricians and Gynecologists updated its 2012 recommendation to say that not just the pill but all forms of hormonal birth control, include vaginal rings and contraceptive patches, should be available over the counter.

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