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A federal appeals court ruled today that a new Florida law stripping voting eligibility from felony offenders who are too poor to pay off their court debts is unconstitutional.

The 11th U.S. Circuit Court of Appeals in Atlanta upheld a temporary injunction issued by a federal judge last year in favor of 17 plaintiffs who sued the state, saying they were too poor to pay off their court-imposed fines and fees, and thus were barred from voting for no reason other than their poverty. The narrow ruling only applies to plaintiffs in the case, but it’s a setback for Florida Republicans’ attempts to limit the scope of a 2018  amendment to the state constitution that restores voting rights to felony offenders.

The 11th Circuit found that the state’s law requiring the plaintiffs to pay their court debts before they can regain their voting rights violates the Equal Protection Clause of the 14th Amendment. Stripping voting rights from poor offenders who can’t afford to pay fines and fees, the court wrote, doesn’t advance the state’s interest in collecting debts, and it creates disparate punishments based solely on wealth.

“Here, the plaintiffs are not punished in proportion to their culpability but to their wealth—equally guilty but wealthier felons are offered access to the ballot while these plaintiffs continue to be disenfranchised, perhaps forever,” the opinion states. 

 In 2018, Florida voters approved Amendment 4, an amendment to the state constitution that restored voting eligibility to an estimated 1.4 million residents with felony records. At the time, it was hailed as one of the largest single expansions of voting rights in U.S. history.

Prior to the passage of Amendment 4, Florida had one of the harshest felon disenfranchisement laws in the country—a vestige of the state’s “Black Codes,” passed during Reconstruction. It was only one of four states that imposed lifetime bans on voting for people with felony records.

However, disputes over Amendment 4’s implementation began almost immediately. The language of the amendment says felony offenders regain eligibility to vote “upon completion of all terms of sentence including parole or probation,” but it does not say whether “all terms” included financial obligations imposed by courts.

Florida Republicans argued it did. (Notably, so did lawyers for groups supporting the amendment before it was passed.) The GOP-controlled state legislature then introduced and passed a bill to require payment of court-imposed debts as a condition of regaining one’s right to vote.

However, Democrats and civil liberties groups say the requirement to pay court debts amounts to a “poll tax” and stymies the will of Florida voters, who passed Amendment 4 by 64 percent.

A flurry of lawsuits followed. Last October, a U.S. District Court judge issued a temporary injunction, ruling that the state must create a system to determine ability to pay. “Each of these plaintiffs have a constitutional right to vote so long as the state’s only reason for denying the vote is failure to pay an amount the plaintiff is genuinely unable to pay,” the judge wrote.

In January, the majority-conservative Florida Supreme Court issued an advisory opinion upholding the state law.

Civil liberties groups representing the plaintiffs in the federal lawsuit, such as the American Civil Liberties Union and the Brennan Center for Justice, applauded today’s opinion.

“The Eleventh Circuit told the state of Florida what the rest of America already knows,” Myrna Perez, director of the voting rights and elections program at the Brennan Center, said in a statement. “You can’t condition the right to vote on a person’s wealth.” 

The Fines & Fees Justice Center has found that Florida courts, which are funded almost entirely through fines and fees, had “115 different types of fees and surcharges, the second highest number in the country.” As a result, WLRN reports, Florida felony offenders will have to pay back hundreds of millions of dollars to restore their voting rights. “Across the state, over $1 billion in felony fines were issued between 2013 and 2018 alone, according to annual reports from the Florida Clerks and Comptrollers, a statewide association. Over that five year period, an average of only 19 percent of that money was paid back per year.”

The ruling is far from the end of the fight over Amendment 4. A full trial in the lawsuit is set for April, at which point the temporary injunction will expire. In a tweet, a spokesperson for Republican Florida Gov. Ron DeSantis’ office said the state will appeal today’s ruling and seek an en banc rehearing at the 11th Circuit.

Both sides expect the case to be appealed all the way to the U.S. Supreme Court.

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“What sets the Trump era apart is the rank incompetence of the people looking to cash in on [self-serving] opportunities,” write Lachlan Markay and Asawin Suebsaeng in their new book, Sinking in the Swamp: How Trump’s Minions and Misfits Poisoned Washington. “That’s great for us reporters. But it doesn’t inspire confidence in the administrative abilities of our present leaders that Trumpworld can’t even seem to do corruption right.”

Markay and Suebsaeng cover Washington and the White House for The Daily Beast and they dish on how Trump associates, appointees, and apparatchiks such as Corey Lewandowski, Lynne Patton, and Rudy Giuliani are constantly working to enrich themselves while desperately trying to stay in the president’s good graces. In a wide-ranging interview with Nick Gillespie, they also talk about Hillary Clinton’s own brand of incompetence, the deeper forms of D.C.-based corruption that result in Joe Biden’s son Hunter pulling down make-work jobs in foreign countries, why they think Donald Trump will win re-election, and their previous jobs at publications on the right and the left.

Audio production by Ian Keyser.

Related links:

Sinking the Swamp on Amazon.

Asawin Suebsaeng on Twitter and at The Daily Beast.

Lachlan Markay on Twitter and at The Daily Beast.

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After publicly criticizing President Donald Trump’s habitual commentary on federal criminal cases, Attorney General William Barr reportedly is threatening to resign if it continues. Trump, meanwhile, not only shows no sign of heeding Barr’s admonition; he does not seem to understand the concerns that motivated it. In fact, Trump thinks he has shown remarkable restraint.

“I chose not to be involved,” the president told reporters yesterday, referring to the revised sentencing recommendation for longtime Trump crony Roger Stone. “I’m allowed to be totally involved. I’m actually, I guess, the chief law enforcement officer of the country, but I’ve chosen not to be involved.”

The attorney general is usually described as the federal government’s “chief law enforcement officer”—a designation endorsed by the White House as well as the Justice Department. But Trump is alluding to the argument that the president, who is in charge of the executive branch and has a constitutional duty to “take care that the laws be faithfully executed,” is the ultimate wielder of that power. Barr, after all, answers to Trump, not the other way around. If Trump does not like the way Barr is running the Justice Department, he can always replace him with someone else.

But can is not the same as should—a distinction that seems to elude Trump. It would be one thing if Trump fired Barr because he thought the attorney general was doing a poor job of implementing the administration’s policies. It would be another thing if Barr got the boot because Trump thought the Justice Department should stop prosecuting his friends and start prosecuting his enemies.

Both decisions are within Trump’s power, but the latter is an abuse of his power, because faithful execution of the laws precludes using them to grant favors and exact revenge. This is precisely the sort of banana-republic corruption that people had in mind during the impeachment debate when they rejected the idea that Congress can remove the president only if he violates a criminal statute.

When it comes to presidential meddling in criminal cases, appearances matter. The president should not undermine the rule of law by ordering the Justice Department to make prosecutorial decisions based on his own personal or political interests. Nor should he undermine public confidence in the rule of law by making it look like he is giving such instructions. Those norms help protect the Justice Department’s independence, which in turn helps protect all of us from the whims of a vindictive president.

Speaking of appearances, Barr overrode the initial sentencing recommendation for Stone, which called for a prison term of seven to nine years, after Trump condemned it as “horrible and unfair.” The amended sentencing memorandum recommends “a sentence of incarceration far less” than the one originally proposed. Barr says he decided to file the new memorandum before Trump’s tweet, based on his own view of what was “fair and reasonable in this particular case,” rather than the president’s personal objections. Whether or not you buy that, Barr clearly believes the distinction is important, while Trump does not get what all the fuss is about.

Trump calls Barr “a straight shooter” and “a man with great integrity” but does not seem to understand what that means. “I do make his job harder,” he acknowledged yesterday, and he plans to continue doing so. “Social media, for me, has been very important because it gives me a voice, because I don’t get that voice in the press. In the media, I don’t get that voice.”

Leaving aside the risible claim that the world’s most powerful politician has trouble getting his message across, Trump’s insistence on expressing his opinions about which criminal cases federal prosecutors should and should not pursue reflects not just his notorious lack of discretion but his disdain for the very idea that justice should be blind. While that goal may always be more of an aspiration than a reality, Trump does not even seem to think it is worth pursuing.

“I am not supposed to be involved with the Justice Department,” Trump complained in a 2017 radio interview. “I’m not supposed to be involved with the FBI. I’m not supposed to be doing the kind of things I would love to be doing, and I am very frustrated by it.” After more than three years in office, Trump remains frankly puzzled by the notion that he should restrain himself to protect the integrity of the criminal justice system.

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California’s wildfires are getting deadlier and more destructive each year. Naturally then, state politicians want to make it easier to get insurance in fire-prone areas.

On Tuesday, Assemblymembers Lorena Gonzalez (D–San Diego) and Monique Limon (D–Santa Barbara) introduced Assembly Bill (A.B.) 2367. Their “Renew California” bill would require that insurance companies write new policies or indefinitely renew current ones for existing homes provided they meet yet-to-be-determined state standards for fire-hardening.

Roughly one million homes in wildfire-affected areas are already covered by a one-year moratorium on non-renewals issued by the state’s elected insurance commissioner, Ricardo Lara, in December 2019. Lara has endorsed A.B. 2367.

Both the current moratorium and Tuesday’s bill are meant to combat the rising trend of insurance companies refusing to renew policies in wildfire-prone areas. Data from the state’s Department of Insurance shows that non-renewals have risen by 10 percent in counties affected by 2015 and 2017 wildfires.

“Homeowners who have done all the right things, hardening their homes and mitigating for fire danger, are still seeing their insurance canceled or non-renewed,” said Gonzalez in a press release. “We can’t allow insurance companies to continue to drop responsible homeowners from San Diego to the Sierras just because they can.”

It’s possible insurance companies are dropping profitable policies “just because they can.” They could also be responding to state regulations that prevent them from raising rates to cover the increased costs of providing insurance in wildfire-prone areas.

In California, proposed rate increases have to be approved by the insurance commissioner. State law also prevents insurance companies from passing on to customers the costs of reinsurance (insurance on insurance), climate change, and other future risks. Third parties can also contest proposed rate increases, which consumer advocates frequently do.

Limited in their ability to raise rates, insurance companies have responded by issuing fewer new policies, and renewing fewer old ones in the riskiest areas of the state. That’s created the availability problems so many homeowners are facing now, says R.J. Lehman of the R Street Institute.

A.B. 2367, he cautions, could actually make things worse by encouraging some carriers to stop offering property insurance in California altogether.

“Homeowners insurance is risky. The returns are variable, and there’s companies that can just decide we don’t want to sell that product in that state anymore,” Lehman says, adding that they could content themselves with selling more profitable auto insurance instead.

That’s what happened in Florida during the 2000s, where a combination of state limits on rate increases and a string of major hurricanes prompted insurers like Allstate and State Farm to stop offering property insurance in the Sunshine State.

Proponents of the Renew California legislation argue that the bill merely requires insurance companies to not stiff responsible homeowners and communities who adopt the fire-hardening standards the bill would create.

That includes Lara, who said in a press release, that “if you have a fire-hardened home in a fire-hardened community, you should be able to get insurance and keep it.”

If these to-be-determined fire-hardening standards did actually reduce wildfire risks, counters Lehman, then the legislation Lara and Gonzalez are pushing would be unnecessary.  

“You wouldn’t need a bill requiring renewal if the risk was something that an insurance company wanted to take on. You only need the bill because it’s an acknowledgment that that mitigation is not enough,” he says.

The more California policymakers attempt to obscure the cost of living in wildfire areas, the more property and people will be in harm’s way when the next wildfire breaks out.

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A young Michigan man was mistaken for a wanted criminal and assaulted by a couple of plainclothes cops so badly that he needed emergency medical treatment.

That’s just where the awfulness began for James King as he was walking in Grand Rapids, Michigan, in 2014. Six years later, he’s still trying to hold the officers involved responsible for their behavior in a case that may be heading all the way to the Supreme Court.

On that fateful July day, a detective with the Grand Rapids Police Department and a special agent with the FBI approached King, mistaking him for a man wanted for breaking into the home of a former employer and stealing. According to King, they didn’t identify themselves but asked him questions, then pinned him against their SUV and took his wallet. King says he thought he was being mugged and attempted to run. The two officers then attacked King and beat him unconscious.

Bystanders who watched this happen also didn’t realize that King’s attackers were police. Some called the police and others filmed. When more police arrived, they ordered bystanders to delete video of the beating (some complied).

Rather than acknowledge they mistook King for someone else, police and prosecutors instead charged him with assaulting the police officers and resisting arrest. They tried to get him to accept a plea deal but King refused, forcing a trial and risking years in prison. While he was completely acquitted by a jury in 2015, the fight bankrupted his family.

King filed a lawsuit in 2016, accusing the two officers, Todd Allen of the Grand Rapids Police Department and FBI Special Agent Douglas Brownback, of violating his Fourth and 14th Amendment rights.

After filing the lawsuit, King and his attorney hit a huge jurisdictional problem. Those two officers were part of a multi-agency police task force, and neither the state nor the federal government are willing to say that the officers were operating under their jurisdictions. Even though the investigation and the crime wasn’t a federal crime or the result of a federal investigation, the officers nevertheless attempted to claim federal immunity in Michigan courts.

King was represented by attorney Patrick Jaicomo, who has joined the liberty advocates at the Institute for Justice. They are now petitioning the Supreme Court to stop the police and the Department of Justice from ping-ponging responsibility for how King was treated. Beyond that, King’s lawyers are challenging the concept of “qualified immunity” that law enforcement agencies use to shield themselves from lawsuits. The Institute for Justice has put up a page explaining the case and the background behind the lawsuit. They note about the jurisdictional games being played here that:

Applying these protective standards to the officers, the trial court held that James had guessed the wrong claims to bring against the officers, but even if he had not, the officers were entitled to qualified immunity because they could not have known that stopping, searching, beating and arresting an innocent person violated the Constitution.

Thankfully, the Sixth U.S. Court of Appeals reversed the trial court in every way but one, holding that the officers were not entitled to qualified immunity, but that they had acted under federal authority, not state authority … .

Now, the government has asked the U.S. Supreme Court to step in and provide additional protections for the officers—immunizing them from liability under a new interpretation of the Federal Tort Claims Act. At the same time, James has asked the U.S. Supreme Court to reject the government’s new arguments for immunity and end to the shell game that allows officers to violate the Constitution without consequence.

Over at the Washington Post, former Reason editor Radley Balko helps untangle the mess of federal and state legal precedents and notes that the proliferation of these task forces has led to a number of examples where jurisdictional confusion is used to avoid accountability and responsibility. In Missouri, marijuana task forces avoid state-level public records requests by claiming to be federal agencies but then claim to be state agencies whenever anybody attempts to use the federal Freedom of Information Act to get information.

Balko also takes note of the deliberately complex and obtuse civil asset forfeiture law variances between state laws and the Department of Justice’s “Equitable Sharing Program.” This program allows many state and municipal law enforcement agencies to bypass state laws that put restrictions on how much they can seize and keep from the people they arrest by partnering with the FBI and Department of Justice and using the federal seizure system, with its looser rules, instead. Some states have had to pass new laws forbidding their own police from bypassing state restrictions and going to the feds. Others have allowed it to continue.

It’s clear that these “task forces” are sometimes being used to shield law enforcement agencies from culpability for misbehavior and from having to comply with public records laws. The Institute for Justice put together a video explaining the complicated details of King’s case in Brownback v. King. Watch below:

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It is tempting to point and laugh—or at least chuckle a little bit—at the current, sad state of America’s two largest political parties.

One has been consumed by a cult of personality built around a man who holds few of the ideological principles that, until recently, defined Republicanism. The other, if current odds are to believed, is heading towards a presidential nominating convention that will either crown a self-described socialist (who is not an actual member of the party) or descend into total chaos.

At this moment, national polls suggest that the most viable alternative to Sen. Bernie Sanders’ (I-Vt.) promised revolution is the insurgent candidacy of another outsider: former New York City Mayor Michael Bloomberg, who may accurately be called a DINO—that’s “Democrat-in-name-only,” to repurpose a tea party era slur from the other side of the aisle.

Bloomberg is a billionaire—you know, the class of people whom Democrats have spent the last several years demagoguing against—with a history of supporting racist police tactics, donating to Republicans, and being downright Trumpian in his disregard for the rule of law, as New York Times columnist Ross Douthat highlighted last week.

Nothing is settled yet, of course, but it seems increasingly likely that the two-party system will produce a 2020 presidential general election featuring a rich Democrat-turned-Republican from New York City who admires authoritarians and has a long history of making disparaging remarks towards women running against a super-rich Republican-turned-Democrat from New York City who admires authoritarians and has a long history of making disparaging remarks towards women.

Or we could have the socialist who says having choices is overrated.

So, yes, it is easy to throw one’s hands up and laugh at this selection of candidates. It is easier still to laugh at the failures of the supposed mainstream candidates who were supposed to stop them—the Marco Rubios, Ted Cruzes, Joe Bidens, and Elizabeth Warrens of the political world, all of whom spent years working their way through their respective party’s system only to be bigfooted out of the way by a populist authoritarian of one variety or another.

If you’re a libertarian, independent, or anyone else who operates outside and around the two major parties, this might seem like good news; like the two-party system is finally losing its grip on American politics.

But don’t mistake the collapse of America’s two preeminent political parties for the collapse of the two-party system itself. The latter is certainly welcome. But the former could easily lead us into a nightmare scenario where populism rules both parties and alternatives remain effectively sidelined by structural barriers erected during a previous era.

To understand why, it helps to first understand what’s happened to the Republican and Democratic parties in the past few years. As political scientists from Yale, Marquette, and elsewhere have been noting for a while, both major parties are relatively weak right now—that is, the party structures have less influence over their presidential nominating processes than they historically have.

There are many examples of how political parties have become more small-d democratic in recent decades, but perhaps the most relevant is the way that the large-d Democratic Party changed its rules after 2016. This year, Democratic Party insiders who play a role at the party’s convention (colloquially referred to as “superdelegates”) will not be allowed to vote on the first ballot in Milwaukee.

In other words, having just watched a political outsider hijack the Republican Party, and having narrowly escaped Sanders’ surprise insurrection against Hillary Clinton—which was prevented, in part, by the influence of the superdelegates—the Democratic Party decided that the right thing to do was….make it easier for an outsider candidate to smash his way into the party.

Not being a partisan, I don’t have much interest whether the internal apparatus of the Republican Party or Democratic Party is strong or weak. As Reason editor at large Nick Gillespie has approvingly noted, Trump and Sanders are burning the traditional Republican and Democratic establishments to the ground. Good riddance to them.

But what I’d hope to see from the hollowing out of the two major parties is the creation of an environment where a greater set of political ideas can flourish. That, so far at least, has not happened.

Even though both parties are weakening internally, they remain externally strong. Thanks to decades of self-serving rulemaking, the two major parties will continue to have a stranglehold on power long after they’ve been hollowed out by the populists.

Just look at what happened when populism in the form of Trumpism invaded the GOP. The result has been a more bizarre form of political conformity, in which allegiance to Trump’s views and defense of his personal interests come before all else. Principled Republicans have mostly been forced out of the party or sidelined to a significant degree.

There’s no reason to think the outcome of a populist takeover of the Democratic Party would be much different. And that, I suspect, is part of the reason why longtime establishment figures on the left, like James Carville, are freaking out about the prospect of a Sanders nomination.

Upending the two-party system has not created fertile ground for a greater range of political viewpoints to compete in elections. Instead of destroying the political gatekeepers, we’ve merely handed the keys to the populists.

There’s been no groundswell of support for, say, reforming ballot access laws to let third parties have a more fair shot. The practical and structural barriers to the creation of new and different political parties remain roughly as sturdy as ever, and the media continues to cover politics as a two-way, zero-sum game, which only reinforces the idea that the only factions who matter are the ones currently controlling Team Red or Team Blue.

Indeed, if the two-party system itself was collapsing, Bloomberg would have entered the race as an independent. He’s flirted with that idea for years. But when he finally decided to toss his hat into the ring, it made more sense—even for the 9th richest man in the world—to try to hijack the name, branding, and built-in advantages of one of the existing major parties.

When it comes to policymaking, the populist takeover doesn’t seem to be accomplishing much good. Trump’s version of the Republican Party has jettisoned whatever fiscal conservativism it might have possessed and has become increasingly hostile to the free movement of goods and people around the world. A Democratic Party with Sanders at the helm would try to run deficits to even higher highs and might be even more hostile to trade.

And no populist administration is going to tackle the entitlement programs that are the biggest driver of America’s long-term budget issues, because doing so would be quite unpopular.

Instead of a broadening of political perspectives, we’re already running full speed into a 2020 election cycle that will recycle the same tired arguments that force voters into a binary choice—”if you don’t vote for Trump, you’re helping elect Sanders!” The only difference is that both choices might be populist authoritarians this time around.

In short, whether Trump or Bloomberg have an “R” or a “D” next to their names hardly matters—all that matters, it seems, is that they have one of those letters.

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In a study posted on SSRN today, my colleague Professor Richard Fowles and I explore the public safety implications of recent Cook County bail reforms.  We review the Cook County Chief Judge’s study of these reforms, which sanguinely asserted that as more defendants were released pretrial no additional crimes resulted.  We believe that, properly assessed, the study’s own data suggests a significant increase in crimes as a result of the changes.  Our conclusions may have broader implications about the public safety dangers of bail reform.

Bail reform issues have recently been in the news across the country. Reformers and their critics have argued about the need to make the nation’s pretrial release procedures fairer while at the same time protecting the public from crimes by defendants released while awaiting trial. Reformers have argued that traditional cash bail requirements for pretrial release needlessly incarcerate many indigent individuals merely because they are unable to raise the required sums. In light of that widely accepted criticism, many jurisdictions have experimented with new procedures that reduce the use of cash bail as a requirement for a defendant’s release and, more broadly, that release more defendants before trial.

Bail reform critics have responded that the expanded release of defendants produces additional crimes. For example, in New York, more generous pretrial release procedures have been blamed for an upsurge in crime at the beginning of this year. As bail reform measures continue to spread across the country, debates about effects on public safety will likely be at the forefront as such reforms are considered.

We tend to agree with critics of cash bail, who argue it is not the best means for regulating pretrial release.  But the broader question of how many defendants can safely be released pretrial is the critical one.  One opportunity to empirically assess these public safety issues has recently developed in one of the nation’s largest trial court systems: The Circuit Court of Cook County, Illinois (which includes Chicago). On September 18, 2017, the Chief Judge of the Cook County Circuit Court (Judge Timothy Evans) implemented sweeping bail reforms by issuing an order, which was designed to reduce reliance on money bail and, more important, increase pretrial releases in Cook County courts. A year-and-a-half later, Chief Judge Evans reviewed the results of these new procedures and published a study entitled “Bail Reform in Cook County.” The Bail Reform Study trumpets the fact that the new bail reforms led to a significant increase in the percentage of defendants who were released pretrial—from about 72% of all defendants to about 81% of all defendants. And the Study also argues that this increase in pretrial releases was accompanied by “considerable stability” in the “community safety rate” of the releases. Specifically, the Study claims that the new, more generous release procedures did not increase crime, stating that “[i]t should be noted that the increase in pretrial release has not led to an increase in crime” and that “bail reform has not led to an increase in violent crime in Chicago.”

Such research designed to develop empirical evidence on the effect of new judicial practices is commendable. And yet, it is obviously important that any “reform” measure be a genuine improvement. Only if an empirical study reports what has happened after a change in judicial procedures can the desirability of the reform measure be fully assessed.

Professor Fowles and I have teamed up in the past, including conducting empirical research on the 2016 Chicago homicide spike (which we believe can be attributed to an “ACLU effect”) and on Miranda‘s harmful effects on crime clearance rates.  Having closely reviewed the Study, we disagree with its upbeat conclusions regarding public safety after changes to pretrial release procedures.

The Study fails to recognize that, given that more defendants were released after the reforms, even a “stable” rate of “community safety” will inexorably lead to more crimes. That stable rate of safety—and, inversely, the stable rate of failure or public safety danger—would be applied across a larger pool of released defendants, which necessarily means that the public will suffer more crimes. In other words, at least in Cook County, more bail reform apparently means more crimes committed against the public.

In addition, we find that, contrary to the Study’s suggestion of stable numbers of crimes, there appear to have been significant increases in crimes committed by pretrial releasees. The Bail Reform Study artificially allowed the pre-reform defendants more time to commit additional crimes than the post-reform defendants, observing the “before” defendants for (on average) 243 days and the “after” defendants for (on average) only 154 days.  As a result, the Study’s construction skewed the results towards finding a lower recidivism rate after the change.

It is not an apples-to-apples comparison to look at one group of defendants who were released and observed for, on average, 243 days and then to compare them to another group of defendants who were released and observed for, on average, 154 days. We use Cook County data to estimate what would have happened if the Study had observed both groups of defendants for the same amount of time.  Properly estimated, the number of defendants who were charged with committing new crimes after bail reform increased by about 45%, as shown in Figure 1 below (comparing crimes by pretrial releasees before and after bail reform–with the first two columns being what was reported by the Study and the second two columns being what we estimate actually happened assuming comparable observation periods).

 

And, more concerning, using the same methodology, the number of pretrial releasees who committed violent crimes increased by about 33%.

In addition, as reported last week in a hard-hitting investigative report by the Chicago Tribune, good reason exists for thinking that these figures on violent crimes committed by releasees may have undercounted what actually happened after the reforms, including undercounting a significant number of homicides by pretrial releasees. And finally, as also reported by the Chicago Tribune, the number of aggravated domestic violence prosecutions that prosecutors dropped increased from 56% before bail reform to 70% after. A reasonable inference is that the increase was likely the result of batterers being able to more frequently obtain release and intimidate their victims into not pursuing charges.

Using all this information, we believe it is reasonable to estimate that Cook County’s expanded pretrial release procedures led to about 930 additional crimes against persons in the fifteen month “after” period compared to the “before” period.  (For these purposes, we define “crimes against persons” as including the FBI’s Uniform Crime Reports “violent” crimes of murder, attempted murder or non-negligent manslaughter, rape, robbery, and aggravated battery, and add domestic battery, battery, assault, assault with a deadly weapon, and armed violence.)

These public safety harms call into question whether the bail reform measures as implemented in Cook County were clearly cost-beneficial. And because Cook County’s procedures are state-of-the-art and track those being implemented in many parts of the country, Cook County’s experience suggests that other jurisdictions may similarly be suffering increases in crime due to bail reform.  Accordingly, our findings may be useful to policymakers elsewhere as they consider whether and how to implement changes in pretrial release procedures.

You can download our new study here.

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Kaitlin Bennett, a far-right gadfly associated with Infowars and Liberty Hangout, visited Ohio University on Monday to make a video for Presidents Day. In response, mobs of students surrounded her, screamed in her face, and threw liquids at her.

The students’ behavior is contemptible. It’s also a terrible strategy for countering the kind of narrative that people like Bennett want to tell about college campuses—indeed, it gives them the exact ammo they need to claim censorship. I would implore student activists to consider the optics: A mob of people surrounding and throwing things at a woman with a camera phone is only going to invite well-deserved opprobrium from the wider public.

Unsurprisingly, Bennett has leveraged the situation to her advantage, calling on President Donald Trump to “strip funding from universities like this that harbor terrorists.” In her tweets about the incident, she also slammed the police for failing to prevent the students from throwing liquids at her.

This is what happens when a Trump supporter goes to a college campus. Leftists at @ohiou started a riot when @Joelpatrick1776 and I showed up, and the @oupolice let it happen. I think @realDonaldTrump should strip funding from universities like this that harbor terrorists. pic.twitter.com/5TMlfdto9O

— Kaitlin Bennett (@KaitMarieox) February 17, 2020

Ohio University police described the incident as two-sided—Bennett and one other person, and the students—each engaging in First Amendment-protected activity, according to CNN:

Despite the tension, Ohio University police said there were no injuries or violent outbreaks reported during the protest. The students were exercising their First Amendment rights just as Bennett was, police said. “Contrary to allegations circulating on social media, the incident did not rise to the level of a riot,” police said in a statement.

The incident may not have constituted a riot, but a person should be able to visit a public university campus without having liquids thrown at them by hostile throngs. What happened to Bennett is another reminder that the threat to free speech on college campuses primarily comes not from the faculty but from a tiny subset of radical, anti-speech students. (For more on this subject, read this excellent piece by The Atlantic‘s Conor Friedersdorf.)

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The Washington Post invited me to write an op-ed about President Trump, Attorney General Barr, Roger Stone’s sentencing. It is titled, “Trump has the constitutional power to intervene in Roger Stone’s sentencing. The Constitution does not place a wall between the president and the Justice Department.”

Here is the introduction:

President Trump tweeted last week that he has the “legal right” to tell Attorney General William P. Barr how to handle Roger Stone’s prosecution — bringing the fury of the legal establishment down on him. Federal prosecutors had recommended a seven-to-nine-year sentence for Stone, who was convicted of perjury and witness tampering. Trump tweeted that the recommendation was “horrible and very unfair.” Subsequently, the Justice Department dropped the recommendation.

More than 2,000 former Justice Department employees promptly declared in an open letter that they “condemn” Trump and Barr’s “interference in the fair administration of justice.” Donald Ayer, who served as deputy attorney general under President George H.W. Bush, wrote in the Atlantic magazine of Barr’s complicity in the sentencing shift: “Given our national faith and trust in a rule of law no one can subvert, it is not too strong to say that Bill Barr is un-American.”

Un-American? Absolutely not. Unconstitutional? Not even close. Unwise? Yes. As a policy matter, the president should stay out of sentencing decisions, especially those involving his friends. But the president is correct that he has the legal authority to intervene in the case. The Constitution does not create a wall of separation between the president and the Justice Department. To the contrary, the Constitution vests the “executive power” in the president. And the decision whether and how to prosecute someone ultimately belongs to the president.

The original draft included a lengthy discussion of Thomas Jefferson’s micromanagement of the Aaron Burr trial. I developed this history for an article I’m working on, tentatively titled “What if Mueller had subpoenaed Trump?” Here are the original sections that were ultimately cut:

In 1807, the Jefferson administration prosecuted Aaron Burr for treason. he was accused of trying to establish an independent nation in the Louisiana territory. The basis for the prosecution was dubious, and President Jefferson withheld certain documents that could have proven Burr’s innocence. But more relevant, for our purposes, is the close interest Jefferson took in the case. Throughout the trial, Jefferson frequently wrote to George Hay, the United States Attorney, with precise instructions on how to manage the case.

In one letter, Jefferson wrote that the “prosecution of Burr had begun under very inauspicious symptoms by the challenging & rejecting two members of the grand jury.” Jefferson worried that the remaining members would not indict Burr. Jefferson had a preordained result in mind, and was not willing to let the process determine Burr’s guilt.  Jefferson also complained that Benjamin Latrobe, who served in his administration, had to testify in the case as a witness. Latrobe’s testimony, Jefferson carped, caused a  “great inconvenience.” The President added, “I hope you will permit [Latrobe] to come away as soon as possible.” Here, the President was dictating the prosecutor’s trial strategy..

In another letter, Jefferson urged Hay to “denounce [Marbury v. Madison for] it is not law.” Chief Justice John Marshall, who wrote Marbury, also presided over Burr’s trial. Hay acknowledged the directive, but ignored it.   Towards the end of the felony trial, Marshall issued a favorable ruling to Burr. Jefferson was incensed. He suggested that “these whole proceedings will be laid before Congress”; Jefferson was arguing, in short, that the record should be preserved to form the basis of articles of impeachment against the Chief Justice. Despite his bluster, there is no record that Jefferson actually sought to impeach Marshall based on the Burr case. Jefferson’s intemperate letters are in this respect not that different than Trump’s ephemeral tweets.

Eventually, Burr was acquitted of the felony charge. Immediately thereafter, Jefferson wrote Hay a letter that was joined by then-Secretary of State James Madison: “We are both strongly of [the] opinion that the prosecution against Burr for misdemeanor should proceed.” If the prosecution is “defeated,” Jefferson wrote, “it will heap coals of fire on the head of the judge”  — a reference to Chief Justice Marshall. Two days later, Hay followed Jefferson’s order, and sought an indictment against Burr for a misdemeanor charge. Once again, Burr was acquitted.

Let’s assume that President Trump in fact ordered Attorney General Barr to recommend a specific sentence Roger Stone. Such meddling would pale in comparison with Jefferson’s micromanagement of a high-profile, politically charged treason prosecution.

If we were drafting a Constitution from scratch, it may make sense to divide the executive power up. For example, in my home state of Texas, the Governor is separate from the Attorney General. This system has some virtue over the federal system.

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