Month: April 2023

Ever since the 69-year-old conspiratorial activist Robert F. Kennedy Jr. declared his candidacy for the Democratic presidential nomination last week, a curious new category has appeared among the commentariat—libertarians and/or right-of-center journalists expressing strange new respect for a Hugo Chavez–admiring scion of the Establishment who has serially fantasized about throwing his political opponents in jail.

“I’m quite certain that I’ve never heard a more erudite speech in any political context,” enthused Brownstone Institute President Jeffrey Tucker after attending Kennedy’s announcement rally. “As [a] Democrat he must be bad on all sorts of things,” tweeted Antiwar.com’s Scott Horton, “But not the ones that matter the most.” The Libertarian Party of Colorado tweeted (and then deleted) “Bravo and godspeed hero.” Tablet, a publication not usually known for boosting overheated analogies to murderous 20th-century totalitarians, gave RFK Jr. an 18,000-word valentine with such soft-toss “questions” about his previous controversial statements (like terming the impact from childhood vaccines “a holocaust“) as: “You activated an automated outrage machine that was looking for a gotcha.”

The newly Kennedy-curious are intrigued by the rabble-rouser’s potential to disrupt an otherwise rubber-stamped Democratic primary, sure, but also by him having the right enemies—the media, the military-industrial complex, and, most of all, a political class that backed COVID-19 lockdowns and mandates.

“Just as Donald Trump…retrieved political themes from the deep past of the Republican Party,” National Review‘s Michael Brendan Dougherty mused, “so it must be that a Democrat should come along and try to revive left-leaning skepticism of government and corporate power, to denounce crony capitalism, censorship, and the CIA to boot.”

Recasting RFK Jr. as a foe of censorship and potential tamer of government requires ignoring what he has been and imagining things he’ll never be. Among a lifetime of eyebrow-raising public activities, Bobby Kennedy’s son has repeatedly egged on government to punish those who disagree with his idiosyncratic understandings of science.

Here he is in a September 2014 interview, for example, arguing that billionaire industrialists/philanthropists/political donors Charles Koch and his then-still-alive brother David Koch (both of whom donated to the Reason Foundation over the years) “should be in jail…enjoying three hots and a cot at The Hague with all the other war criminals” and that politicians who agree with the Kochs about global warming are “contemptible human beings” of whom he “wish[ed] that there was a law that you can punish them under”:

After this lock-’em-up interview drew criticism (including from National Review‘s Charles C.W. Cooke, who described it as “a sure sign of mental imbalance, and a gold-leafed invitation to be quietly excluded from polite society”), Kennedy came out with a clarification removing from his prosecutorial crosshairs most of the individual “climate-deniers,” but stressing that “corporations which deliberately, purposefully, maliciously and systematically sponsor climate lies should be given the death penalty.”

How would one pull off such a thoroughgoing trample of the First Amendment? Through the bold and vigorous exertions of government law enforcement. State attorneys general who have “particularly potent glands” and “the will, resolve and viscera to stand to up to the dangerous and duplicitous corporate propagandists,” Kennedy wrote in a piece headlined “Jailing Climate Deniers,” could “annul the charters of each of these mercenary merchants of deceit” and then “withdraw state operating authority from the soulless, nationless oil companies that have sponsored ‘Big Lie’ campaigns and force them to sell their in-state assets.”

He then helpfully provided a kill list: Koch Industries, ExxonMobil, and the American Petroleum Institute, of course, plus

the Cato Institute, The Heritage Foundation, Cooler Heads Coalition, Global Climate Coalition, American Legislative Exchange Council (ALEC), Americans for Prosperity, Heartland Institute, Committee for a Constructive Tomorrow (CFACT), George C. Marshall Institute, State Policy Network, Competitive Enterprise Institute (CEI) and American Enterprise Institute (AEI).

“These front groups,” he charged, “are snake pits for sociopaths.” (Kennedy’s denunciations of his political adversaries, then, now, and a quarter century ago, have been nothing if not florid.)

Alas, this episode was not some momentary anti-speech glitch in RFK Jr.’s otherwise civil libertarian matrix. At Al Gore’s 2007 Live Earth rally in New Jersey, he urged the audience to “get rid of all of these rotten politicians that we have in Washington D.C. —who are nothing more than corporate toadies for companies like Exxon and Southern Company, these villainous companies that consistently put their private financial interest ahead of American interest and ahead of the interest of all of humanity. This is treason and we need to start treating them now as traitors.”

Treason in the United States is punishable by death. In his 2014 interview, Kennedy wished such a prosecution on the Kochs: “Do I think the Koch Brothers are treasonous? Yes, I do.” At least when it came to notorious coal executive Don Blankenship in 2009, RFK Jr. limited his preferred sentencing to “jail…for all of eternity.”

Yet in 2023, Kennedy can plausibly claim (to those with short memories) the mantle of anti-censorship, for having been on the receiving end of Big Social Media’s often government-pressured pandemic speech-policing. He was banned from Instagram in February 2021 “for repeatedly sharing debunked claims about the coronavirus or vaccines,” and his anti-vaccine-mandate nonprofit Children’s Health Defense was similarly booted by both Instagram and Facebook in August 2022. He published a book last year called A Letter to Liberals: Censorship and COVID: An Attack on Science and American Ideals. As Tablet‘s David Samuels wrote, in one of that piece’s many eye-popping passages, “At this point, the fact that Robert F. Kennedy is the country’s leading ‘conspiracy theorist’ alone qualifies him to be president.”

So is the enemy of your enemy your friend? Depends on your tolerance for unlikely conspiracy theories, and your comfort level in Kennedy’s proposed punishments for alleged perpetrators. Where Jeffrey Tucker sees an orator with a “command of facts, history, and issues,” motivated both by “truth-telling in an age of nonstop lies” and a genuine urge to “heal” the political divide, I see someone whose presentation of facts—including grave accusations of criminality—have been repeatedly and persuasively found lacking.

When Kennedy alleged in a long 2006 Rolling Stone piece that the 2004 presidential election was stolen, for example, he accused the GOP of “outright fraud” and of employing “a wide range of illegal and unethical tactics to fix the election,” particularly in the critical swing state of Ohio. Election fraud is a serious federal crime, one that the Republican Party in this case was not guilty of, according to assessments of RFK Jr.’s case in U.S. News & World Report, Cleveland magazine, and Salon.com.

Wrote Farhad Manjoo at the latter: “I scoured his Rolling Stone article for some novel story or statistic or theory that would prove, finally, that George W. Bush was not the true victor. But nothing here is new…. If you do read Kennedy’s article, be prepared to machete your way through numerous errors of interpretation and his deliberate omission of key bits of data.”

In a long 2003 Atlantic article describing the murder conviction of his cousin Michael Skakel for the brutal golf-club beating of teenager Martha Moxley in Greenwich, Connecticut, as a “media lynching” and “miscarriage of justice,” Kennedy said the state’s case would have been “stronger” against a mentally ill drifter. In his 2016 book Framed: Why Michael Skakel Spent Over a Decade in Prison for a Murder He Didn’t Commit,” Kennedy straight-up accused two other men (one black, the other mixed-race) of having committed the murder as visiting teenagers from lower Manhattan because they were “obsessed” with Moxley’s “beautiful blond hair” and so decided to go “cave man” on her.

“There is nothing as devastating as being called a murderer,” one of them said in 2016 to reporter Leonard Levitt, who has reported on the case extensively. “I keep my curtains drawn so people can’t look inside. I can’t sit out in my backyard. My wife gets physically sick whenever this comes up. I don’t want to be near anyone with a camera.” Retorted RFK: “Let them sue me.” (In his detailed takedown of Framed, Levitt concluded: “Where is it written that a person of privilege and entitlement with a famous name can write lies about innocent people without consequence?”)

Kennedy’s readiness to embrace baroque explanations for seemingly adjudicated events extends to the assassination of his own father: He doesn’t think Sirhan Sirhan did it (much to his family’s chagrin). This despite the Palestinian communist’s admissions of responsibility and expressions of remorse, including to Kennedy himself, over the years. (Bobby Jr. believes the culprit was the late Thane Eugene Cesar, a right-wing, probably racist rent-a-bodyguard on the scene who “was also a CIA asset,” Kennedy told Tablet.)

RFK Jr.’s tentative new cheering section on the right typically makes the rhetorical move of reducing his critics to anti-anti-vaxxers who feel anger at how he has discredited their cherished Lockdown Liberalism. For instance, The American Spectator‘s Daniel J. Flynn:

Journalists representing outfits with the strongest ties to the Biden administration look upon his quixotic bid as a real threat and act accordingly. In headlines, he morphed from a man into an “anti-vaccine activist” (CNN) and “vaccine critic” (Reuters). A headline in the New York Times on the eve of his announcement read: “Robert F. Kennedy, Soon to Announce White House Run, Sows Doubts about Vaccines.”

Democrats, in their headlines, demonstrate the degree to which their party’s cult of Kennedy became a cult of COVID.

Why yes, a man with a vaccine-skeptical nonprofit and a best-selling 2021 book titled “The Real Anthony Fauci: Bill Gates, Big Pharma, and the Global War on Democracy and Public Health” might indeed be described in journalistic shorthand as a “vaccine critic.” But as the above examples, his past quarter-century of public life, and his daily behavior on the campaign trail illustrate, Kennedy is above all an activist who makes totalizing and not-infrequently bizarre statements about the awesome malevolent power of whatever forces he is lining up against.

So though there are a handful of obvious and multi-sourced reasons why Fox News decided to part ways with Tucker Carlson, RFK quickly found the real killer: “Fox fires @TuckerCarlson five days after he crosses the red line by acknowledging that the TV networks pushed a deadly and ineffective vaccine to please their Pharma advertisers,” he tweeted. “Carlson’s breathtakingly courageous April 19 monologue broke TV’s two biggest rules: Tucker told the truth about how greedy Pharma advertisers controlled TV news content and he lambasted obsequious newscasters for promoting jabs they knew to be lethal and worthless.”

Robert Kennedy Jr.’s candidacy is already a more serious proposition than those of former President Donald Trump’s would-be 2020 challengers Bill Weld, Mark Sanford, and Joe Walsh. In two national polls released Thursday, RFK Jr. averaged 20 percent, with fringe 2020 Democratic candidate Marianne Williamson clocking in at an impressive-for-her 8.5 percent. Surely, incumbent President Joe Biden has significantly less hold on his party’s electorate than Trump did on his; most likely, the recognizable last name hasn’t hurt Kennedy.

As someone foursquare in favor of more political competition, I am heartened to see Old Joe get a run for his money. But it would take more than semi-alignment on a couple of issues to get me excited about anyone who has ever suggested countering political speech with prison.

The post The Very Strange New Respect for Authoritarian Democrat Robert F. Kennedy Jr. appeared first on Reason.com.

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California law provides,

(a) The driver of a motor vehicle when reasonably necessary to insure safe operation shall give audible warning with his horn.

(b) The horn shall not otherwise be used, except as a theft alarm system.

The Ninth Circuit upheld this law earlier this month, against a challenge brought by a driver who wanted to honk her horn as an expression of support for political process. The court, in Porter v. Martinez (opinion by Judge Michelle Friedland, joined by District Judge Edward Korman, with a dissent by Judge Marsha Berzon), generally reasoned that the law was a content-neutral restriction on expression, and is narrowly tailored to the substantial government interest in traffic safety:

There is nothing novel about Section 27001’s traffic-safety justification—in fact, it seems the California legislature had traffic safety in mind when it first enacted a version of Section 27001 in 1913. That early version of the law prohibited honking “for any purpose except as a warning of danger.” . The traffic-safety justification for restricting the use of the horn can also be seen in the vehicle codes of at least forty other states, indicating a near-nationwide consensus on the need for such laws. This long history and consensus, coupled with the common-sense inference that the horn’s usefulness as a warning tool will decrease the more drivers use it for any other function, support the State’s asserted interest in traffic safety.

There’s now a petition for en banc rehearing, filed by Porter’s lawyer, David Loy of the First Amendment Coalition (a group that I’ve often represented in Amicus Brief Clinic cases); here’s the Introduction:

As drivers commonly do without inci1dent, Porter beeped her horn to support a protest. After being cited for doing so, she brought this First Amendment action. Over Judge Berzon’s dissent, the panel majority upheld a ban on expression in a public forum without a single fact showing the expression causes any risk of harm. The majority relied on fact-free conjecture by an “expert” and disregarded facts showing political horn use causes no hazard.

The First Amendment requires the government to prove hard facts before restricting speech. Rule 702 requires a foundation that expert opinion is reliable. By endorsing censorship based on conjecture and admitting speculative opinions from “experience” with no showing of reliability, the majority decision conflicts with the Supreme Court, this Court, and multiple other circuits. It confuses the law, threatens freedom of speech, and opens the door to unreliable opinions whenever a purported “expert” asserts “experience,” from product liability actions to personal injury cases to prosecution for numerous offenses. Rehearing en banc is warranted to harmonize this Court’s precedent on these vital issues.

An interesting issue; we’ll see soon whether the Ninth Circuit agrees to hear the case en banc.

The post Horn-Honking and the First Amendment appeared first on Reason.com.

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For a fifth straight year, the NBA’s Most Valuable Player award will go to someone born outside of the United States. While the league has not yet announced the winner of the Michael Jordan Trophy, the finalists are Joel Embiid, Nikola Jokic, and Giannis Antetokounmpo. Cameroon-born Embiid (the league’s leading scorer), Serbia’s Jokic (the two-time reigning MVP), and Greek-Nigerian Antetokounmpo (who hoisted the trophy in 2019 and 2020) each turned in a superlative 2022–2023 campaign and has strong claim to the title.

Along with Slovenian guard Luka Doncic, who at the tender age of 24 has already made the All-NBA First Team three years running, Embiid, Jokic, and Antetokounmpo are becoming the defining faces of the NBA’s global brand as presiding American titans LeBron James, Stephen Curry, and Kevin Durant approach the twilight of their careers.

These immigrant stars are still in their 20s and are just four of the 120 foreign-born players that now constitute about one-third of the league, a total that is up from just 23 such players 30 seasons ago.

This injection of foreign talent has been a boon for the NBA and, in turn, for American basketball fans. League revenue is at a record high, and quality of play is as well, by many metrics. While their pure hoops talent is key, the NBA’s foreign star quartet has accelerated the adoption of new, more free-flowing, all-court playing styles borrowed from the international game that have elevated the league’s on-court aesthetic.

The NBA’s adoption of talented individuals from around the globe provides a lesson for the wider American economy. While the NBA has been able to poach the best players the world has to offer, other key industries like technology, manufacturing, and finance have seen their available talent pools artificially limited by misguided immigration restrictions.

Major sports leagues can sponsor immigrants from any corner of the world under a dedicated visa just for professional athletes, the P-1A visa. Without much hassle, these players can legally come live and work in the U.S. Alternatively, an internationally recognized athlete could be sponsored by an agent under an O-1A visa. And if they win major international awards while playing in the NBA, they can qualify for a green card under the EB-1 category. None of these categories are subject to any labor market tests to see if Americans are displaced from a job, and they are allowed to be expedited for a fee, making wait times a matter of days.

The result is that American pro basketball is at its zenith.

But key companies in diverse industries don’t have the chance to attract the best talent from around the world like the NBA does. In most cases, other for-profit businesses must use the H-1B visa—limited to a mere 85,000 per year—to sponsor college-educated employees to work for them. Demand outstrips supply, so the U.S. government conducts a lottery for the visas which, last season, resulted in fewer than 25 percent of applicants selected. Even if companies can secure an H-1B visa for their desired worker, the green card process takes years, and if the workers happened to have been born in India, then they will never obtain a green card due to arbitrary per-country caps set by Congress.

The consequences of our current anti-merit immigration system is that companies offshore offices to countries where they can attract talent. All major U.S. tech companies have opened offices in neighboring Canada, where they send mostly Indian engineers and programmers. America isn’t just missing out on these highly paid immigrants’ productivity and tax revenue, but also on the money they would spend at U.S. businesses, for food, haircuts, health care, and everything else. By keeping offices in the U.S., their employers would create jobs here for Americans, such as administrative staff, construction workers, and electricians.

America’s population is less than 5 percent of the world’s total. There are millions more talented people living outside the U.S. than inside. Attracting the world’s top talent in every field isn’t just good for America’s economy, it’s also the most powerful tool to deprive rivals like China of economic brainpower. Welcoming immigrants to work in tech and the rest of the economy, as the NBA does, will have powerful economic benefits.

The post Immigration Should Be as Easy for Everyone As It Is for NBA Players appeared first on Reason.com.

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Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

The U.S. Supreme Court has said that (most of the time) you need Congress’s permission to sue federal officers when they violate your federal constitutional rights. But some state courts have rejected that reasoning when it comes to suing state officers for state constitutional violations. Which is right? In Arc Digital, IJ’s Anthony Sanders argues it’s the latter. He explains “law” doesn’t just come from legislatures. Sometimes “the people” make it via a constitution and sometimes courts do. But the belief in “parliamentary supremacy” makes us think courts can’t do what they’ve done for centuries: provide remedies for wrongs.

• A coalition of 46 states, D.C., and Guam sue Facebook for violating federal antitrust law by, among other things, purchasing Instagram and WhatsApp. But those happened years ago. Might these claims be barred by the equitable doctrine of laches? States: Nope, because we’re sovereigns, laches doesn’t apply. D.C. Circuit: You can be a “sovereign” to whom laches doesn’t apply, or you can be a “person” entitled to file antitrust lawsuits, but you can’t be both.
• You might think a law that bans therapeutic speech, but not other speech, would be a restriction based on the content of the regulated speech, but this Second Circuit opinion makes clear that those words don’t mean the things you think they mean. (This is an IJ case.)
• If you’re a criminal defense lawyer and your drug-smuggling client “sent around $90,000 to an attorney in Jamaica, who then wired it to a realtor in New York City, who then sent it to a Ugandan diplomat . . . , who wired the money” to you to send to the mother of his child, you just might be conspiring to launder money. So found a Baltimore jury. Fourth Circuit: This episode of “Better Call Saul” ends with affirming the conviction. Dissent: There was a serious question about whether the conspiracy continued into the statute-of-limitations period, and the jury should have been instructed on that issue.
• Dallas-based UPS worker sues the company for (among other things) invasion of privacy. Allegation: My supervisor denied me a bathroom break until I was forced to defecate on myself at my workstation. UPS: Aha! But since you were (allegedly) forced to sh*t yourself in public, technically it wasn’t an invasion of privacy. Lawyered! Fifth Circuit: What on earth is wrong with you? The invasion-of-privacy claim can proceed (though an intentional-infliction-of-emotional-distress claim is a no-go).
• Some might find interesting the substance of this Fifth Circuit NLRB case (whether it’s within the NLRB leadership’s prosecutorial discretion to withdraw a complaint). Your editor is more inclined toward the sparring between the majority and dissent over the party presentation principle. Is this a case where the bench litigates the case for counsel, or ought judges address legal questions even when presented less than perfectly?
• Nearly 33 months after oral argument, the Fifth Circuit has issued an unpublished, per curiam opinion dismissing a class action challenging Customs and Border Protection’s illegal practice of seizing cash at airports and then returning it only if its owners waive their right to sue. We could explain everything wrong with it but, since it’s an IJ case and some of those things are basic factual errors, we’ve got a petition for rehearing to write.
• If you affix a “bump stock” to a semiautomatic rifle, do you now have a “machinegun”? Sixth Circuit (en banc) (2021): We are evenly split and cannot decide. Sixth Circuit (three-judge panel, 2023): Um, since our full court can’t decide this, and a bunch of other judges are all over the place, and the same question is before us yet again, let’s just go with the rule of lenity. Concurrence: Lenity, schmenity, until Congress says so it’s not a “machinegun.”
• If the county takes your home to pay property taxes and then transfers it to its “land bank”—enabling the county to pocket any extra cash after the taxes are paid off—does the statute of limitations on suing to get that cash back begin to run when the county seizes or when it transfers? District court: Seizes. Sixth Circuit: Transfers. (Note, this is a different “equity theft” case from the one SCOTUS heard this week and in which IJ filed this amicus brief on behalf of one of our clients.)
• Seventh Circuit (2021, en banc): Indiana’s sex-offender registration law does not violate the right to travel. Neither does it violate the Ex Post Facto Clause. And, for good measure, it does not trigger heightened scrutiny under the Equal Protection Clause. District court (on remand): I get it, guys. That must mean that the law fails under rational-basis review. Seventh Circuit (this week): It does not.
• District court: It is clearly established that police officers need a good reason to point a gun at someone. But this Springdale, Ark. officer allegedly pointed a taser at a woman without a good reason. Qualified immunity! Institute for Justice: But wait! It is also clearly established that officers can’t threateningly wield a flashlight without a good reason. Eighth Circuit: Ah, but the officer had a good reason to point the taser. Dissent: No, he didn’t, and anyway that’s for a jury to decide.
• During an August 2020 riot in Minneapolis, man (per the feds) adds accelerant to a fire that causes $1 mil damage to Target’s headquarters, takes requests from friends for items to pilfer, and, among other misdeeds, brags about it on social media. Eighth Circuit: No need to disturb his conviction or eight-year sentence.
• Long Beach, Calif. animal control officer approaches woman running on the beach with her unleashed dog—a violation of city ordinance. Later, the woman calls animal control to file a complaint about one of the officers, whom she says was aggressive. The officer she speaks with threatens to sue her. Ninth Circuit (unpublished): The First Amendment prohibits gov’t officials from threatening citizens on the gov’t’s behalf. Dissent: The officer also has a First Amendment right to sue and threaten to sue.
• Epic Games, makers of the immensely popular Fortnite cross-platform video game, sues Apple, alleging that various App Store policies violate federal antitrust law and California unfair competition law. Apple mostly wins, but Epic prevails on state unfair competition, but then Apple wins some attorneys’ fees … look, it’s a really long opinion and we already had to read that Facebook antitrust decision, so you can read the Ninth Circuit‘s opinion (and partial dissent) yourself.
• In 2013, man is walking to bus stop and accepts a ride from an acquaintance who’d serendipitously driven by. Yikes! Shortly thereafter, Denver police give chase to the vehicle, which had been involved in an incident earlier that day. The acquaintance and his two brothers shoot at the police, hitting one officer in the shoulder. They crash. (One brother escapes on foot; another is shot dead; the third is taken into custody.) The man crawls out of the vehicle and is lying on the ground with his hands raised when the officer who’d been wounded arrives and (without communicating with another officer who was already there or giving any orders) shoots at the man 12 times. A round shatters his spine. Denver to public: Good shoot! Comported with dept. policy. Denver in litigation: In fact, it was “patently obvious criminal conduct,” and the city can’t be held liable for failing to train officers not to do obviously inappropriate things like shooting out of anger. Tenth Circuit: The jury verdict stands. The city is on the hook for $2.4 mil and the officer is on the hook for $131k.
• Cybersecurity company: Microsoft lied when it said it had a product a lot like ours and made $43 billion! Eleventh Circuit: Hmm, looks like you got the patent for your product the day before you filed this lawsuit. Well, anyway, how much did you actually end up with in sales? Company: Nothing. But we would have made, like, a lot if it weren’t for Microsoft’s lies. Eleventh Circuit: Ok, what evidence do you have? Maybe a lost profits expert or a survey or something? Company: We don’t need any. Eleventh Circuit: Wrong.
• District court: Whoa, this new set of Florida voting rules is off the chain! I’m enjoining a bunch of them and putting the state under VRA preclearance review for a whole decade. Eleventh Circuit (over a dissent): Nope, although few parts of the law have First Amendment problems.
• The Alabama Constitution of 1901 was enacted with the specific purpose of establishing white supremacy. To accomplish this goal, the 1901 constitution, among other things, contained a provision disenfranchising anyone convicted of a crime of moral turpitude. After the Supreme Court held that provision unconstitutional in 1985, the state enacted a new constitutional amendment that disenfranchised only those who committed felonies involving moral turpitude. So we’re good now? Eleventh Circuit: Yeah, this is fine. Dissent: Let’s count the ways in which it is not fine.
• And in state court news, the Massachusetts Supreme Judicial Court has elected to use its “extraordinary superintendence powers” and hold that about 27,000 defendants who pleaded guilty to DUI from 2011 to 2019 are entitled to a conclusive presumption of “egregious government misconduct” and to the suppression of the breathalyzer results if they seek to withdraw their plea—thanks to an investigation that uncovered “a history of intentional withholding of exculpatory evidence” and “blatant disregard of court orders” at a Massachusetts State Police crime lab unit. But defendants still have to show that they wouldn’t have pleaded guilty if they had known about the misconduct. And if they’re tried again, their sentence will be capped at the original sentence, unless (as happened with the defendant in this case) that original sentence was illegally low.
• And in amicus brief news, IJ is urging the Georgia Supreme Court to hold fast to certain state law protections against the abuse of civil forfeiture; namely, that officials must actually give property owners notice of why the gov’t is taking their stuff, and that forfeiture cases are to be dismissed and property returned if a hearing is not held within a 60-day deadline. Either or both of which mean the Decatur County Sheriff’s Office’s forfeiture complaint against the owners of a scrap-metal business should’ve been tossed, and the owners should get back the bank accounts, vehicles, business properties, and a former residence that were seized from them.
• And in cert denial news, the Supreme Court has declined to reconsider the doctrine of absolute prosecutorial immunity in a case involving prosecutors who, kid you not, violated the Thirteenth Amendment’s ban on indentured servitude. The petition gave the Court the opportunity to jettison the ahistorical, atextual doctrine entirely—or curtail it so that prosecutors who act outside the bounds of their statutory or constitutional authority lose their immunity (a longtime and salutary exception to immunity that has fallen into disuse).

In 2017, Kimberly Dunckel and her husband bought a severely dilapidated property in a rural, residential neighborhood in Winston-Salem, N.C. after officials said their plan to open an animal sanctuary for unwanted and injured animals would be no problem. But the city reneged! Earlier this year, and though the sanctuary and its 70 animals have been good neighbors, officials demanded that the Dunckels comply with an array of confusing and arbitrary zoning rules, including a ban on events (like their regular education classes for small groups of schoolchildren), that threaten the sanctuary’s viability. So this week, Kimberly and IJ filed a lawsuit under North Carolina’s Constitution, which protects the right to make peaceful and productive use of one’s property and the right to pursue a chosen occupation. Click here to learn more.

The post Short Circuit: A Roundup of Recent Federal Court Decisions appeared first on Reason.com.

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On Thursday, two anti-abortion legislative measures failed in Nebraska and South Carolina. Despite considerable Republican control in both state legislatures, both bills narrowly failed, signaling that support for harsh abortion restrictions could be waning among Republicans.

In Nebraska, the state Senate was considering a “heartbeat bill,” which would have banned abortions—except in the case of rape or incest—once fetal cardiac activity can be detected, which typically occurs at around six weeks. The bill failed by a single vote to receive the two-thirds support required to overcome a filibuster.

Republican state Sen. Merv Riepe—who had previously cosponsored the ban—abstained from the vote, citing concerns that too few women would know they had become pregnant by the bill’s cutoff. Despite Riepe’s previous support for the bill, he changed his mind in March when he proposed an amendment that would move the ban’s cutoff from six weeks to 12.

“At the end of the day, I need to look back and be able to say to myself, ‘Did you do the best?'” Riepe told the Flatwater Free Press in March. “No group came to me, asking me to do this. This is of my own beliefs, my own commitments.”

For his abstention, Riepe attracted the ire of Nebraska Gov. Jim Pillen (R). “I am a staunch defender of Life and supporter of the Nebraska Heartbeat Act,” said Pillen in a statement on Thursday. “I am profoundly disappointed in the cloture vote today. It is unacceptable for senators to be present not voting on such a momentous vote. I call on Senator Merv Riepe to make a motion to reconsider and stand by the commitments to Life he has made in the past.”

In South Carolina, the state Senate was considering an even stricter measure banning abortion entirely in the state with narrow exceptions for life-threatening medical emergencies. The bill failed by one vote, 22–21, in the Senate, having previously passed in the House. All five of the chamber’s women—including three Republicans—voted against the measure.

“Once a woman became pregnant for any reason, she would now become property of the state of South Carolina,” warned state Sen. Katrina Frye Shealy (R–Lexington), who voted against the bill, on Wednesday. “She could no longer make decisions on her own or at the advice of her well-trained doctor. Every female, regardless of her age, would suddenly become subject to the power of a code book regarding her health.”

The failed measure marks the third time since the overturn of Roe v. Wade (1973) that South Carolina legislators have tried—and failed—to ban abortion in the state.

The failure of both these abortion-restricting measures in otherwise staunchly red states indicates that Republicans’ political will to enact strict anti-abortion measures may be waning. While several red states have moved to restrict abortion since Dobbs v. Jackson Women’s Health Organization nearly a year ago, harsh anti-abortion measures have proved an ineffective electoral strategy.

On the national level, presidential candidate Nikki Haley has voiced this sentiment, insisting that she is “unapologetic” and “unhesitant” about being pro-life while also encouraging Republicans to try to find “consensus” by advocating for more popular, moderate reforms, like banning late-term abortions and making adoption easier.

“No Republican president will have the ability to ban abortion nationwide,” Haley said during a Tuesday campaign event. “We have to face this reality.”

In the face of recent legislative setbacks, perhaps more Republicans will shift toward a moderate approach to anti-abortion legislation. If they don’t, it very well may cost them at the polls.

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In thinking about the purpose of incarceration, the late criminologist Mark Kleiman argued, it is important to distinguish between “people we’re mad at” and “people we’re afraid of.” Kleiman added that, in light of research indicating that deterrence hinges on the probability of punishment more than its severity, “long prison terms are wasteful government spending.” A bill that Sen. Cory Booker (D–N.J.) and Rep. Tony Cárdenas (D–Calif.) introduced yesterday aims to apply those insights by using federal grants to encourage reductions in state prison populations.

“Over 1.2 million individuals are imprisoned in federal and state facilities, with an additional 636,000 locked up in local jails,” a press release from Booker’s office notes. “Data have shown that there is no compelling public safety justification for nearly 40 percent of the prison population to remain incarcerated.”

Booker is referring to a 2016 report from the Brennan Center for Justice, which analyzed the crimes committed by state and federal prisoners based on four factors: seriousness, victim impact, intent, and recidivism. The report’s authors estimated that 39 percent of prisoners “are incarcerated with little public safety rationale.”

Some of the judgments underlying that estimate are debatable. For example, the authors accepted the premise that drug trafficking is a serious crime, even when it involves nothing more than consensual transactions between adults. And they focused on three-year recidivism rates, which may not give a full picture of the threat that a given prisoner might pose to public safety.

Still, the Brennan Center report rightly argued that the treatment of low-level, nonviolent drug offenses, especially possession for personal use, is excessively severe, and it drew useful distinctions among predatory criminals. The burglary category, for instance, encompasses a wide range of conduct, including nonviolent invasions of unoccupied structures. However one might quibble over the details, the overall point is sound: Any attempt to substantially reduce the prison population will depend on doing a better job of identifying offenders we are appropriately “afraid of” and realistically appraising the benefits of keeping people behind bars.

Toward that end, the legislation that Booker and Cárdenas have proposed, the Smart Sentencing Adjustments Act, would offer “planning” and “implementation” grants to states that are interested in making more just and cost-effective decisions about who should be imprisoned and for how long. Building on a proposal that the Brennan Center published in March, the bill would offer additional money to states that succeed in reducing their prison populations by 20 percent over three years. Grant recipients would be required to eschew “overly punitive sentencing laws that do not have evidence-based effects on crime, such as mandatory minimum rules or truth-in-sentencing statutes.”

Those incentives, the Brennan Center argues, could have a meaningful impact on the number of prisoners. “If the 25 states with the largest prison populations met the bill’s 20% goal,” it says, “179,000 fewer people would be behind bars—more people than are currently incarcerated in the entire federal prison system.”

One might object that Congress has no business injecting itself into state criminal justice policy. But Congress has been doing that for many years by encouraging the “overly punitive sentencing laws” that have contributed to America’s astonishingly high incarceration rate. Even if you discount the official figures from authoritarian regimes such as China and Russia, the U.S. locks up a much larger share of its population than other liberal democracies do.

That situation is mainly the result of state policy decisions. But Congress, which eliminated federal parole in 1987 and has ratcheted sentences up for decades, establishing myriad mandatory minimums, has led by example, and it has encouraged states to follow that example by offering financial incentives. The Violent Crime Control and Law Enforcement Act of 1994, for example, provided $10 billion in subsidies for state prison construction, contingent on passage of “truth in sentencing” laws that limited or abolished parole.

That law, which our current president was proudly calling “the 1994 Biden Crime Bill” as recently as 2015, took effect after a long decline in the violent crime rate began in the early 1990s. More generally, there is much debate about the extent to which mass incarceration contributed to that downward trend. The Brennan Center argues that “rigorous social science research based on decades of data shows that increased incarceration played an extremely limited role in the crime decline.”

Even if you credit the expansion of the prison population with more than an “extremely limited role,” that does not necessarily mean it makes sense to double down on the policies driving that trend. “The crime-reduction gains from higher incarceration rates depend critically on the incarceration rate itself,” a 2014 Brookings Institution report noted. “When the incarceration rate is low, marginal gains from increasing the incarceration rate are higher. This follows from the fact that when prisons are used sparingly, incarceration is reserved for those who commit the most serious crimes. By contrast, when the incarceration rate is high, the marginal crime-reduction gains from further increases tend to be lower, because the offender on the margin between incarceration and an alternative sanction tends to be less serious. In other words, the crime-fighting benefits of incarceration diminish with the scale of the prison population.”

Whatever your take on these questions, conservatives should be able to agree with progressives that the public safety benefits of incarceration, whether from deterrence or incapacitation, depend on distinctions that current sentencing policies frequently fail to draw. “The Smart Sentencing Adjustments Act is a sensible solution that both Republicans and Democrats can support,” says the Due Process Institute’s Jason Pye. “This bill would help preserve law enforcement tools that protect public safety, stop the revolving prison door, and give real second chances to people who have been unnecessarily incarcerated and shut out from society.”

The post This Bill Aims To Reduce Mass Incarceration by Encouraging States To Cut Their Prison Populations appeared first on Reason.com.

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