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Last month a Tennessee judge overseeing a burglary case
rejected a pretrial motion in which the prosecution requested
that it not be referred to as “the Government” because that term is
“derogatory.” In the May 22 motion,
Assistant District Attorney General Tammy J. Rettig noted with
alarm that “it has become commonplace during trials for attorneys
for defendants, and especially Mr. [Drew] Justice [the defendant’s
lawyer], to refer to State’s attorneys as ‘the Government’
repeatedly during trial.” Rettig worried that “such a reference is
used in a derogatory way and is meant to make the State’s attorneys
seem oppressive and to inflame the jury.” She added that “attempts
to make the jury dislike the State’s attorney have no place in the
courtroom.” She therefore urged Williamson County Circuit Court
Judge Michael Binkley to bar Justice from using the
g-word during the trial and instead refer to her as
“General Rettig, the Assit District Attorney General, Mrs. Rettig,
or simply the State of Tennessee.”

In his response,
Justice argued that such an order would violate the First
Amendment. Should Judge Binkley nevertheless see fit to comply with
Rettig’s request, Justice said, he also should consider a few other
speech limits in the interest of neutral terminology:

First, the Defendant no longer wants to be called “the
Defendant.” This rather archaic term of art, obviously has a fairly
negative connotation. It unfairly demeans, and dehumanizes Mr.
Donald Powell. The word “defendant” should be banned. At trial, Mr.
Powell hereby demands be addressed only by his full name, preceded
by the title “Mister.” Alternatively, he may be called simply “the
Citizen Accused.” This latter title sounds more respectable than
the criminal “Defendant.” The designation “That innocent man” would
also be acceptable.

Moreover, defense counsel does not wish to be referred to as a
“lawyer,” or a “defense attorney.” Those terms are substantially
more prejudicial than probative….Rather, counsel for the Citizen
Accused should be referred to primarily as the “Defender of the
Innocent.” This title seems particularly appropriate, because every
Citizen Accused is presumed innocent. Alternatively, counsel would
also accept the designation “Guardian of the Realm.” Further, the
Citizen Accused humbly requests an appropriate military title for
his own representative, to match that of the opposing counsel.
Whenever addressed by name, the name “Captain Justice” will be
appropriate. While less impressive than “General,” still, the more
humble term seems suitable. After all, the Captain represents only
a Citizen Accused, whereas the General represents an entire
State.

Along these same lines, even the term “defense” does not sound
very likeable. The whole idea of being defensive, comes across to
most people as suspicious. So to prevent the jury from being
unfairly misled by this ancient English terminology, the opposition
to the Plaintiff hereby names itself “the Resistance.” Obviously,
this terminology need only extend throughout the duration of the
trial—not to any pre-trial motions. During its heroic struggle
against the State, the Resistance goes on the attack, not just the
defense.

The good news is not only that Justice triumphed but that even
the Government concedes that “the Government” has a negative
connotation.

[Thanks to Allen St. Pierre for the tip.]

Last month a Tennessee judge overseeing a burglary case
rejected a pretrial motion in which the prosecution requested
that it not be referred to as “the Government” because that term is
“derogatory.” In the May 22 motion,
Assistant District Attorney General Tammy J. Rettig noted with
alarm that “it has become commonplace during trials for attorneys
for defendants, and especially Mr. [Drew] Justice [the defendant’s
lawyer], to refer to State’s attorneys as ‘the Government’
repeatedly during trial.” Rettig worried that “such a reference is
used in a derogatory way and is meant to make the State’s attorneys
seem oppressive and to inflame the jury.” She added that “attempts
to make the jury dislike the State’s attorney have no place in the
courtroom.” She therefore urged Williamson County Circuit Court
Judge Michael Binkley to bar Justice from using the
g-word during the trial and instead refer to her as
“General Rettig, the Assit District Attorney General, Mrs. Rettig,
or simply the State of Tennessee.”

In his response,
Justice argued that such an order would violate the First
Amendment. Should Judge Binkley nevertheless see fit to comply with
Rettig’s request, Justice said, he also should consider a few other
speech limits in the interest of neutral terminology:

First, the Defendant no longer wants to be called “the
Defendant.” This rather archaic term of art, obviously has a fairly
negative connotation. It unfairly demeans, and dehumanizes Mr.
Donald Powell. The word “defendant” should be banned. At trial, Mr.
Powell hereby demands be addressed only by his full name, preceded
by the title “Mister.” Alternatively, he may be called simply “the
Citizen Accused.” This latter title sounds more respectable than
the criminal “Defendant.” The designation “That innocent man” would
also be acceptable.

Moreover, defense counsel does not wish to be referred to as a
“lawyer,” or a “defense attorney.” Those terms are substantially
more prejudicial than probative….Rather, counsel for the Citizen
Accused should be referred to primarily as the “Defender of the
Innocent.” This title seems particularly appropriate, because every
Citizen Accused is presumed innocent. Alternatively, counsel would
also accept the designation “Guardian of the Realm.” Further, the
Citizen Accused humbly requests an appropriate military title for
his own representative, to match that of the opposing counsel.
Whenever addressed by name, the name “Captain Justice” will be
appropriate. While less impressive than “General,” still, the more
humble term seems suitable. After all, the Captain represents only
a Citizen Accused, whereas the General represents an entire
State.

Along these same lines, even the term “defense” does not sound
very likeable. The whole idea of being defensive, comes across to
most people as suspicious. So to prevent the jury from being
unfairly misled by this ancient English terminology, the opposition
to the Plaintiff hereby names itself “the Resistance.” Obviously,
this terminology need only extend throughout the duration of the
trial—not to any pre-trial motions. During its heroic struggle
against the State, the Resistance goes on the attack, not just the
defense.

The good news is not only that Justice triumphed but that even
the Government concedes that “the Government” has a negative
connotation.

[Thanks to Allen St. Pierre for the tip.]

The ACLU released a new
report this week examining the growing trend of judges
sentencing nonviolent offenders to life in prison without parole.
The ACLU found, perhaps unsurprisingly, that the War on Drugs,
mandatory minimums, and “tough-on-crime” policies are to blame.

The report,
A Living Death: A Life Without Parole for Nonviolent Offenders,
profiles 110 of the 3,278 inmates currently serving their life
sentences for nonviolent crimes. Most of the offenders were
charged with crimes like possession of small amounts of drugs or
petty theft.

For instance, one inmate, Timothy Jackson, stole a $159 jacket,
which, combined with three other minor shoplifting charges, met the
threshold for Louisiana’s Four-Strikes law. Jackson received a
mandatory sentence of life without parole. Inmate Fate Vincent
Winslow is serving his life sentence for selling $10 worth of
marijuana to an undercover cop. Like Jackson, Winslow’s crime was
his fourth offense in Louisiana.

Another inmate’s story, that of Dicky Joe Jackson, is
reminiscent of the plight of Breaking
Bad protagonist Walter White. To pay for his
son’s $250,000 life-saving bone marrow transplant, Jackson started
transporting methamphetamine. Before long, however, he was caught
selling to an undercover officer. SWAT teams raided his family’s
home, and Jackson was thrown in federal prison. He is nearly twenty
years into his lifelong sentence.

In addition to the inmate profiles—which are a horribly
depressing, but worthwhile read—the report discovered several
interesting facts about life without parole (LWOP) in the US.

The Number of LWOP Sentences Has Been Growing For
Decades

Offenders serving life without parole, whether violent or not,
has been one of the most rapidly growing populations in the prison
system. According to the report: “The number of people sentenced to
LWOP quadrupled nationwide between 1992 and 2012, from 12,453 to
49,081.”

LWOP Is Due to the War on Drugs, Mandatory Minimums, and
Other “Tough on Crime” Policies

Nearly 80 percent of non-violent LWOP offenses are for drug
crimes. Among the cases the ACLU surveyed, 83 percent of offenders
were placed there because of mandatory minimums or three-strike
laws—in other words, the judges had no choice. As the ACLU
said:

The prevalence of LWOP sentences for nonviolent offenses is a
symptom of the relentless onslaught of more than four decades of
the War on Drugs and “tough-on crime” policies, which drove the
passage of unnecessarily harsh sentencing laws, including
three-strikes provisions…and mandatory minimum sentences.

There Are Racial Disparities

Like most aspects of the criminal justice system, there are
stark racial disparities in life without parole sentences.
Sixty-five percent of LWOP inmates are black, while in some states
the disparity is even higher. In Louisiana, 91 percent are black.
In the federal system, blacks are 20 times more likely to be
sentenced to LWOP than whites.

This Is A Uniquely American Problem

The US is part of the mere 20 percent of countries that even
offer LWOP sentences. And of those countries, the vast majority
“place stringent restrictions on where they can be issued and limit
their use to crimes of murder.” As a result, the US’s LWOP prison
population dwarfs that of other countries’. According to the
University of San Francisco’s report
on U.S. Sentencing Practices in a Global Context, the US’s LWOP
population is 51 times greater than Australia’s and 173 times
greater than England’s. 

The District Attorney’s office in Middlesex
County, Massachusetts ruled that no criminal charges should be
filed in the death of Alyssa Brame, who was arrested on January 12
for allegedly offering to perform a sex act of some kind for $40
and died of alcohol poisoning in a jail cell. The five (5!)
officers who were on the scene at her arrest claimed she did not
appear visibly overly
intoxicated, but by the time she was taken to the police station
she couldn’t walk on her own, and cops there debated whether she
was too drunk to be accused of offering sex for money.
Via the Lowell Sun:

As that debate continued, only detention attendant
Kevin Lombard asked whether someone should call an ambulance.

“Civilian Attendant Lombard did not feel that he was permitted to
contact 911 for medical assistance himself,” District Attorney
Marian Ryan wrote in the report.

The report says a sergeant told Lombard no. Another commander told
Lombard to simply “let her lay down.”

According to Ryan’s investigation, “police personnel determined
that this was another one of those occasions where Ms. Brame was
intoxicated and needed to sleep it off.”

The DA report found that putting an unconscious person in a
cell, as had been done to Brame, was against department policy, as
was not checking on her every thirty minutes. It had been nearly an
hour since police last checked on her when she was found dead. The
third policy violation had to do with the personnel dealing with
Brame not being CPR-certified.

The medical examiner ruled the death an accident, but noted it
may have been possible to save Brame’s life if there had been a
medical intervention earlier. The DA report says Brane, 31, had
been in police custody ten times before, nine of those while
intoxicated. It also mentioned police were aware the city hospital
believed they were sending too many intoxicated prisoners over.
It’s impossible to know whether Brane would have survived alcohol
poisoning absent her encounter with police, but being thrown in a
cage for making a harmless offer, in an environment where a
concerned person would feel they weren’t permitted to call 911 for
assistance, certainly didn’t help.

A police board of inquiry is now investigating the case.

Nine years ago, Weldon Angelos, a
24-year-old rap music entrepreneur in Salt Lake City,
was sentenced to
55 years in federal prison for three small-time marijuana sales. In
a letter released
today, 113 concerned citizens, including 60 former prosecutors, 17
former judges, seven former state attorneys general, and four
former governors, remind President Obama that he has the power to
free Angelos, whose case is frequently cited to illustrate the
injustices resulting from mandatory minimum sentences.

U.S. District Judge Paul Cassell, who imposed what may well
amount to a life sentence on Angelos, called it “unjust, cruel, and
even irrational” but noted that his hands were tied by the
mandatory minimums Congress prescribed for people who engage in
drug trafficking while possessing a gun: five years for the first
offense and 25 years for each subsequent offense. Angelos, a
first-time offender, had a handgun concealed under his clothing
during two pot sales; the third count was tied to guns police found
when they searched his home. He never brandished a gun, let alone
fired one, and no one but Angelos and his family suffered as a
result of the marijuana sales, which involved a total of a pound
and a half. The letter urging Obama to commute Angelos’
sentence, which was organized by the Constitution Project,
highlights the perversity of the penalty he received:

Had Mr. Angelos been charged in [a Utah] court…he would have
been paroled years ago. Indeed, Mr. Angelos’s sentence is longer
than the punishment imposed on far more serious federal offenses
and offenders. His term of imprisonment exceeds the federal
sentence for, among others, an aircraft hijacker, a second-degree
murderer, a kidnapper, and a child rapist. Incredibly, Mr.
Angelos’s sentence is longer than those imposed for three aircraft
hijackings, three second-degree murders, three kidnappings, or
three rapes. In fact, the 55-year sentence for possessing a firearm
three times in connection with minor marijuana offenses is more
than twice the federal sentence for a kingpin of a major drug
trafficking ring in which a death results, and more than four times
the sentence for a marijuana dealer who shoots an innocent person
during a drug transaction.

That’s right: Angelos would have been treated less severely if
he had shot the police informant posing as a customer instead of
selling him pot twice more. The sentence was so egregious, the
letter notes, that in 2006 “a group of 145 individuals—including
former U.S. Attorneys General, retired U.S. Circuit Court Judges,
retired U.S. District Court judges, a former Director of the FBI,
former U.S. Attorneys, and other former high-ranking U.S. Justice
Department officials—submitted a brief amici curiae in
support of Mr. Angelos’s case.”

As the letter points out, Angelos’ 55-year prison term is
precisely the sort of grossly disproportionate penalty that Obama
decried before he was elected president. In a 2007
speech at Howard University, for example, Obama noted that
George W. Bush had at one point questioned long sentences for
first-time drug offenders. “I agree with George W. Bush,” Obama
said. “The difference is he hasn’t done anything about it. When I’m
President, I will. We will review these sentences to see where we
can be smarter on crime and reduce the blind and counterproductive
warehousing of nonviolent offenders.” Has he delivered on that
promise?

In 2010, to Obama’s credit, he signed the Fair Sentencing Act,
which reduced (but did not eliminate) the irrational sentencing
disparity between the snorted and smoked forms of cocaine. But
since that law passed Congress almost unanimously, supporting it
did not take much courage. Last August, four and half years into
Obama’s presidency, his attorney general, Eric Holder,
announced a new policy under which federal prosecutors are
supposed to exclude drug weights from charges against certain
low-level, nonviolent offenders to avoid triggering mandatory
minimums. That policy, assuming that U.S. attorneys comply with it,
has the potential to
shorten the prison terms of about 500 people, 2 percent of the
25,000 federal drug offenders sentenced each year.

But Obama has conspicuously failed to use his commutation power
to shorten sentences that he and Holder have both called
excessively long—including those imposed on crack offenders before
passage of the Fair Sentencing Act, which did not apply
retroactively. He has issued only
one commutation and 39 pardons in
nearly five years, which so far makes him the least merciful
president in U.S. history (once you exclude, as seems only fair,
the first president’s first term and the abbreviated terms of two
presidents who died shortly after they were elected).

In light of Obama’s amazingly stingy clemency
record, this kowtowing passage from the Constitution Project’s
letter is laughable (although I understand why it was
included):

We recognize that the executive clemency power has been
besmirched in recent years by a few tawdry cases. But we also know
that you, as a former constitutional law professor and keen student
of history, appreciate the vital function that clemency plays in
our tripartite system of checks and balances.

The letter includes 28 footnotes, but none of them provides
evidence to back up that assertion, because there is precious
little. Obama still has time to provide some more, and freeing
Weldon Angelos would be a good place to start.

Marine Le Pen
and Geert Wilders, two of Europe’s best-known nationalist leaders,
vowed today at a news conference to work together ahead of the
European elections next year to free Europeans from what Wilders
described as “the monster in Brussels.”

From
The Wall Street Journal:

Two of Europe’s most prominent nationalist leaders pledged
Wednesday to drive a shared anti-euro, anti-immigration line in
European elections next spring and pull other right-wing parties
into their movement.

In a joint news conference in The Hague, France’s Marine Le Pen
and the Netherlands’ Geert Wilders said they would seek to take
powers back from European Union institutions in Brussels,
hoping to tap into opposition to EU controls that has grown amid
the financial crisis.

Follow these stories and more at Reason 24/7 and don’t forget you
can e-mail stories to us at 24_7@reason.com and tweet us
at @reason247. 

Members of the Chinese Communist party met this
weekend for the
Third Plenum, a session where the party broadly sets its
economic and political agenda for the coming years. This one was
the first held since Xi Jinping took office as president, and so
has been highly anticipated by China watchers. As usual for
political statements in the Communist country, the plenum’s report
was vague. The Global Post
suggested:

Even under ordinary circumstances, interpreting Chinese
politics is notoriously difficult. The system is opaque and
convoluted, with ritualized language, cookie-cutter leaders and
lots of befuddling slogans — see “The
Three Represents.”

But the communiqué released Tuesday evening after a four-day
conclave of top Communist Party officials may be a high-water mark
of mind-numbing vagueness.

The Post went on to dismiss the report as a “Rorschach
test” (more about the word cloud from the BBC, pictured, here)
and interpreting it to an exercise in cloud watching. However,
as CNBC notes, third
plenums are often followed by major reforms. And so there could
be,maybe, some
good news for free markets as the document calls for a
“decisive role” for markets in China’s economy as a centerpiece of
the (centrally) planned reforms. The South China Morning
Post
explains:

For the first time, the party also said the private
sector should be treated on the same footing as state-owned
enterprises. It said: “Both the public and private sectors are the
same important components of a socialist market economy and the
important bases of our nation’s economic and social
development.”

The party decided to set up a powerful organ to steer the reform
crusade. “The central leading group on comprehensively deepening
reforms will be responsible for the overall reform design … and the
implementation of reform policies,” it said.

On other fronts, the party vowed to “promote the rule of law and
respect for the constitution”, which will be crucial for a
market-oriented economic system to flourish.

The only actual result of the plenary session so far has been
the establishment of two new committees, one to direct economic
reforms, the other national security strategy, in case anyone
thought to question the party’s dedication to central planning and
the politics of committees.

Previously:
Hayekians in China

After weeks of refusing to reveal health plan
enrollment totals through the health insurance exchanges launched
in October, federal officials released Obamacare “enrollment”
numbers for the first time this afternoon. Except that they aren’t
real enrollment numbers.

According to the release, 106,185 people have “enrolled and
selected a Marketplace plan” from either a state-run exchange or
the federally facilitated exchange system operating in 36
states.

The important words to notice in that sentence are “and
selected.”

As a companion report on exchange activity by an office within
the Department of Health and Human Service explains, the 106,185
figure represents the number of “plan-eligible persons” who “have
already selected a plan by clicking a button on the website
page.” 

That’s really just an awkward way of saying that the report
counts all the people who have done the equivalent of moving a plan
into their online shopping carts—regardless of whether or not they
have actually paid their first month’s premium yet. Given that
those who don’t pay won’t be covered, this means that the true
enrollment number so far is almost certainly significantly
lower.

The report does provide a sense of how much the federal exchange
network has struggled. Of the 106k plan selections, just 26,794, or
about 25 percent, came through the federal exchange system, which
includes Florida and Texas, two key large states where the
administration has
indicated that enrollment is critical to the law’s success.

The report’s state-by-state breakdown of plan-selection totals
also offers some hints about the difference between the number of
people who have taken the step of “clicking a button on the website
page” and the number of people who have fully enrolled. For
example, the HHS report lists 97 people as having selected a plan
in the state of Delaware, one of the 36 states relying on a federal
exchange, between October 1 and November 2. But the Associated
Press reported last week that Delaware’s federally funded
marketplace
guides have successfully managed just four total
enrollments in the state.

Even the “selection” number doesn’t bode well for the law’s
success at getting people covered. Before the launch of the
exchanges, administration officials expected that
about 500,000 people would enroll in private coverage through
the exchanges during October.

So we learned something from this release. But we didn’t learn
how many people had actually enrolled. 

After weeks of refusing to reveal health plan
enrollment totals through the health insurance exchanges launched
in October, federal officials released Obamacare “enrollment”
numbers for the first time this afternoon. Except that they aren’t
real enrollment numbers.

According to the release, 106,185 people have “enrolled and
selected a Marketplace plan” from either a state-run exchange or
the federally facilitated exchange system operating in 36
states.

The important words to notice in that sentence are “and
selected.”

As a companion report on exchange activity by an office within
the Department of Health and Human Service explains, the 106,185
figure represents the number of “plan-eligible persons” who “have
already selected a plan by clicking a button on the website
page.” 

That’s really just an awkward way of saying that the report
counts all the people who have done the equivalent of moving a plan
into their online shopping carts—regardless of whether or not they
have actually paid their first month’s premium yet. Given that
those who don’t pay won’t be covered, this means that the true
enrollment number so far is almost certainly significantly
lower.

The report does provide a sense of how much the federal exchange
network has struggled. Of the 106k plan selections, just 26,794, or
about 25 percent, came through the federal exchange system, which
includes Florida and Texas, two key large states where the
administration has
indicated that enrollment is critical to the law’s success.

The report’s state-by-state breakdown of plan-selection totals
also offers some hints about the difference between the number of
people who have taken the step of “clicking a button on the website
page” and the number of people who have fully enrolled. For
example, the HHS report lists 97 people as having selected a plan
in the state of Delaware, one of the 36 states relying on a federal
exchange, between October 1 and November 2. But the Associated
Press reported last week that Delaware’s federally funded
marketplace
guides have successfully managed just four total
enrollments in the state.

Even the “selection” number doesn’t bode well for the law’s
success at getting people covered. Before the launch of the
exchanges, administration officials expected that
about 500,000 people would enroll in private coverage through
the exchanges during October.

So we learned something from this release. But we didn’t learn
how many people had actually enrolled. 

Prosecutors are pushing for the
10 year maximum sentence for Jeremy Hammond, who is accused of
large-scale hacking crimes against a private intelligence firm.
Hammond will be sentenced this Friday.

Hammond pleaded guilty to a
conspiracy charge, one of three charges brought against him in
2012 in the U.S. District Court Court for the Southern District of
New York. He and four other members of the hacking network
Anonymous were
accused of hacking and leaking emails from the private
intelligence company Strategic Forecasting (Stratfor).

Hammond turned the documents over to Wikileaks for publication.
The emails contained information about the Stratfor itself,
including potential
insider trading and
domestic spying, as well as information about international
affairs and individuals, such as Julian Assange and Osama bin
Laden.

Although the judge overseeing the case initially suggested
that Hammond could face life imprisonment, the 28-year-old hacker
made a plea deal for a 10 year maximum. His co-defendants, who were
located and tried in the UK, received comparatively lenient
sentences. The harshest was roughly two and a half years in prison;
the lightest was 200 hours of community service.

Hammond, who created HackThisSite, which hosts hacking
simulations, and has committed numerous controversial hacking

campaigns, like his one against conservative pro-war group
Protest Warrior, has people divided. Some believe him to be a
serious criminal. Others consider him an anti-war hacktivist hero.
Wired reports on the prosecution’s
stance:

Contrary to the picture he paints of himself … Hammond is a
computer hacking recidivist who, following a federal conviction for
computer hacking, went on to engage in a massive hacking spree
during which he caused harm to numerous businesses, individuals,
and governments, resulting in losses of between $1 million and $2.5
million, and threatened the safety of the public at large,
especially law enforcement officers and their families

On the other hand, organizations like the Electronic Frontier
Foundation suggest that Hammond’s actions “benefit the public
good.” They are among
265 groups and individuals that have written to the judge in
defense of Hammond. EFF contends that the punishment Hammond
faces outweighs the crime, and that the hacker’s motivation should
be considered. It “is a crucial fact,” EFF explains
“actions were not done out of malice or intent to gain financially,
but with an eye towards revealing uncomfortable truths about the
private intelligence industry.”