In juxtaposition to the many instances of police (usually at the behest of school administrators) taking infantile pranks and turning them into very real prosecutions of children, four cops in North Providence, Rhode Island,  took the law into their own hands and did what one would imagine Andy Griffith would have done 50 years ago.

Four police officers in Rhode Island are being investigated for making five boys do pushups on the side of a street as punishment for damaging a mailbox.

Acting North Providence Police Chief Paul Martellini said a woman called police Friday morning to report her mailbox was damaged. Officers soon found a bright yellow sports car that matched the description, he said. Several teenagers were inside.

Mayor Charles Lombardi told WPRO-AM on Monday the officers thought the best way to reprimand the teens was to have them do pushups.

So they made the boys do a dozen pushups, gave them a stern warning to never vandalize a mailbox again, and sent them on their way.  No cuffs. No tasers. No criminal records. And for this, the community built them a statue, right?  Not exactly.

Martellini said he has ordered an internal investigation and would not immediately comment on whether the officers’ actions were appropriate.

Clearly, the cops acted as judge, jury and executioner, conceptually a position that most are disinclined to relegate to the police.  As Chief Martellini ponders whether this was “professional” behavior, he asks the wrong question.  It wasn’t.  Professional behavior would have compelled the officers to arrest the youths and turn the matter over to prosecutors, ultimately resulting in a determination of guilt or innocence, and if the former, a life saddled with a criminal conviction. Now that would have been the way a “professional” cop behaves.

Instead, they did what a cop would have done a few generations ago, when the idea of hanging a criminal record on every stupid kid would have been considered absurd and outrageous by pretty much everyone, cops included. 

Given how police are inclined to explain away as justified the needless deaths of innocents without blinking an eye, why is Chief Martellini not reacting with, “what the hell is wrong with you people”?  This could explain:

Martellini is acting chief because Chief John Whiting was recently convicted of stealing money from a stripper’s pocketbook after a car chase last year.

Once a department is perceived as dirty, even doing the right thing presents questions that aren’t so easily swept under the rug.  But this?

The problem is that these four cops did what one might hope they would do when dealing with dumb kids; the only additional thought is whether they had to pay to repair the damaged mailbox. They should. And maybe buy the person who suffered the damage a dozen donuts for the trouble they made. Case closed.

But the inclination of years past to trust police is long gone.  Praise these officers for taking the law into their own hands and you’ve taken a giant step onto the slippery slope of police misconduct.  Sure, this time the punishment, a dozen pushups, seems right on the money, but what about next time? A different set of cops, a different place, and it’s a taser and a few kicks in the head.  Suddenly, their notion of street justice doesn’t give us a warm and fuzzy Mayberry feeling.

On the one hand, putting the handling of punishment in the discretionary hands of cops doesn’t strike many as a good idea. There have been far, far too many times when police have demonstrated that they so utterly lack the judgment and discretion to control vicious urges, violent tempers and the knee-jerk resort to the weapons of their trade, to ever willingly go down the road to Mayberry.  Especially when it comes to children.

Yet, in this instance, what happened was clearly the best outcome for all involved.  The alternative of prosecution and potential criminal record would have ruined lives over a stupid, juvenile act. The boys needed to learn they can’t destroy things, that vandalism isn’t fun or cool.  But once the lesson was learned, they similarly need the chance to grow up and lead productive lives, unencumbered by the yoke of the criminal justice system. 

Let’s come to grips with reality here: no child is better off for having become embroiled in the system. Some may have engaged in conduct sufficiently serious that it can’t be avoided, but they are no better for it. When the offense is more prank than crime, and can be effectively dealt with by a good metaphoric spanking, we are all better off.

But because we are constrained to remember history so we don’t repeat it, we’re just not inclined to trust the police to handling things well either.  What a mess.  What a shame that there is no going back to Mayberry because most police aren’t Andy Griffith.  And if Andy Griffith came back again, he would likely find himself sitting at a desk, gun and shield surrendered, and under investigation. 

H/T Steve Magas, the Bike Lawyer

Like weeds, they popped up around the blawgosphere yesterday.  Blawgers (and bloggers) who want their fans to vote for them in the ABA Journal’s annual beauty pageant. Trying so very hard not to appear desperate and pathetic in their quest for validation, they humblebrag, they gently ask, they call to action, they ask for votes so that they can prove their worth.

The win has been worth paying for votes, or as was the case when a blog from New York Law School was in the mix, marshalling all tuition payers to vote up their baby.  Lawprofs have laid bare their souls for the honor of being able to claim they are the sexiest academic in the blawgosphere, while n00bs have grasped their eminence to pontificate about how they make their magic happen.

In some jesting on twitter by  Mark Bennett yesterday, the Trial Warrior, Antonin Pribetic, who masquerades as a Canadian blawger named Edith, offered a  simple truth in moment of uncommon clarity (not uncommon for Nino, but for twitter):

@MarkWBennett Frankly, SJ and DP will both likely lose, for the simple fact that you and @ScottGreenfield are not nice.

Every twelve seconds, someone on the internet argues that the Constitution means exactly what it says, and that us lawyers muddle it up for the sake of protecting our turf and collecting ill-gotten gain off the backs of hard-working citizens.  While we often can tell who these people are from their tin foil hats , there are some surprising voices joining the choir.

Orin Kerr at  Volokh Conspiracy offered these words:

Our Constitution is not alone the working plan of a great Federation of States under representative government. There is embedded in it also the vital principles of the American system of liberty. That system is based upon certain inalienable freedoms and protections which not even the government may infringe and which we call the Bill of Rights. It does not require a lawyer to interpret those provisions.

—Former President Herbert Hoover, 1935.

Joining in,  Ilya Somin offers;

Co-blogger Orin Kerr quotes Herbert Hoover’s statement that you don’t have to be a lawyer to understand the Constitution. Interestingly, the Supreme Court agrees. As Justice Owen Roberts put it in a unanimous 1931 decision, “[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.” This conclusion was reaffirmed by the Court in District of Columbia v. Heller (2008).

The momentum builds, but as Ilya explains:

Many parts of the Constitution really are readily accessible to laypeople. You don’t have to be an expert to understand that the Constitution establishes a system of separation of powers rather than a unitary parliamentary system, that it protects freedom of political speech, that it forbids the establishment of an official religion, that it requires the government to compensate property owners when it condemns their land, and so forth. Even when dealing with relatively simple parts of the Constitution, it may be difficult for nonspecialists to go through decades of accumulated legal precedent interpreting these provisions. But the Constitution is not just what the judges say it is, and even the latter is often constrained by the text, especially when the text is relatively clear.

That’s a rather wild assertion. with some inexplicable internal contradictions.  After all, why would “relatively simple parts” of the Constitution require “decades of accumulated legal precedent interpreting” them?  Either they’re simple or not, and if the former, then no interpretation is needed. Or if it is, then it’s not so simple. You can’t have it both ways.

Let’s test this thesis, using one of the examples Ilya offers as “readily accessible to laypeople,” the Establishment Clause of the First Amendment. It says, in pertinent part:

Congress shall make no law respecting an establishment of religion…

Ten words, no waiting. How hard could that be to understand?  The first five words seem about as clear as they could be, that Congress shall make no law.  We certainly know what Congress is, that domed place in Washington where 535 people spend their time trying to figure out how to make each other look foolish when they aren’t asking for campaign contributions.  Those people “shall,” a mandatory word, leaving no wiggle room, “make no law.”

Obviously, this doesn’t stop a teacher from requiring students to offer a prayer to Buddha before the start of a hard day of education, or a fire department from putting a creche in front of its combination garage/bar, or a judge from sentencing a drunkard to give Catholic confession twice a day for ten years.  Even if we blindly incorporate this clause under the Fourteenth Amendment, none of these actors can be construed under any stretch of language as “Congress,” or lawmakers. Easy, squeezy.

Then comes the second five words, “respecting an establishment of religion.”  Not nearly as clear as the first five, but not all that hard to understand. If we all agree that “respecting” means “with regard to,” the final four becomes fairly clear, right?  They can’t establish, or make official, religion.

Does this mean one religion? Does this mean they can’t make a law requiring us to believe in, say, one of the top three religions, and rid us of all the squabbling about a bunch of lesser religions? Does it mean they can’t pass a law requiring us to believe in something, putting an end to those commie atheists?

But establishing an official religion is a long cry from passing laws that encourage religion, or facilitate religious good works, or enabling religion to play a critical role in our lives.  After all, Kentucky’s homeland security law makes it a crime not to acknowledge that our security depends on the will of Almighty God. And you can’t walk into the Alabama’s Supreme Court without noticing that  Roy Moore, who refused to remove the 10 Commandments from the courtroom wall, is back on the bench.

And we still have those inexplicable anomalies, the “under God” thrown into the Pledge of Allegiance to differentiate us from the Ruskies, or “in God we trust” in the dollar bill. And they actually came at the hands of Congress.  Figure that out.

There aren’t many Americans, lawyers included, who believe the Constitution should be anywhere near as complicated to understand as it is, as our Supremes have made it.  While lawyers may have a leg up in tolerance for judicial tinkering, not because we like it but because we’ve grown inured to it, one would have to be awfully darn bold to think you can walk into court, point to the text, and walk out, secure in the knowledge that your job is done.  And that’s just with a cocktail napkin assessment of the first ten words of the First Amendment, which (as should be obvious) reflects nothing remotely resembling the state of the Establishment Clause in our fine nation.

And there isn’t anyone foolish enough, myself included, to play this game with the Fourth Amendment.

It strikes me that the adoration of the plain language of the Constitution is in direct proportion to whose ox is being gored.  It’s not that the plain words are too deep, complex and sophisticated for mere mortals, though experience informs us that simple is only simple until it’s not.  Arguments like Ilya’s, and the Open Law crowd of academics who believe that you give nonlawyers access to the whole of the law and they will have no problem become overnight legal scholars, feed into a libertarian-ish, populist trend that invites facile, self-serving “understanding” of the law that is used to justify their reaction to whatever beef they have with government.

On the other hand, if you leave the Constitution up to the group of nine to tinker with long enough, who decide to empower themselves with the authority to ignore the words entirely to reach whatever result they prefer, you end up with the Constitution we have today.  As a lawyer who makes arguments based on the Constitution, as interpreted by the Supremes, it’s not entirely clear that leaving it to judges to “interpret” the Constitution works any better than leaving it to the tin foil hat crowd.  Neither has done much for my ox.

Because “there’s a dearth of smart, non-sensationalistic crime coverage on the Internet these day,” Slate’s brand new crime blogger, Justin Peters, explains.  Given that a follow up post is about the Cannibal Cop, the explanation makes complete sense.  Serious stuff with none of the fluff.

Of course, it hurts to learn that I’m part of the dearth.  I hate to be part of the dearth. Dearths are bad.  It could be that I’m stupid and sensationalistic, but I’m more inclined to think that I, as well as the other criminal defense lawyers who write about such sensationalistic stuff as crime, am just not important enough to make it onto a crime guy like Justin’s radar. I’m am a gnat to his elephant.

Who, you ask? Justin Peters.  He explains his qualifications to fill the huge internet crime blog void:

What are my qualifications? Well, I was burglarized last year, which was unsettling. (As it turns out, I have nothing of value to steal, which was even more unsettling.) I was a background extra in the movie Curly Sue, so I’ve got unparalleled insight into crimes involving homeless grifters with hearts of gold and their adorably sassy adopted daughters. I’ve read everything ever written by Elmore Leonard, James Ellroy, and Franklin W. Dixon. And, of course, every Christmas I go down to the homeless shelter and distribute cakes laced with arsenic.

In short, I’m just the sort of preening, narcisisstic [sic] sociopath you’d want writing a blog like this.

Hah! What a card. Except after I stop slapping my knee, it’s kinda hard not to notice that Justin has no qualifications to write about crime at all.  Whether he’s actually very funny, as if that was important, is a matter of personal choice. I thought it was a bit of overkill, but that’s just me, and I am, after all, part of the dearth.



From his actual Slate bio, here the picture of himself he uses professionally, where he describes himself as “editor at the Columbia Journalism Review.” 

As easy as it may be to ridicule Justin Peters, or anyone named Justin for that matter, the fact is that he’s going to be the honcho of Slate’s crime blog, which means that a whole lot of people, even more than read here and Bennett’s blog combined, are going to be reading what he, and his minions (I assume he has minions) write.  Which raises the question: will they be any better off for having done so?

My fear is that they won’t. My fear is that this will be a popular blog, much like Huffington Post, that can be used for good or evil, to illuminate or make readers lose brain cells, and that it’s heading toward the latter.  In fact, I can’t imagine that Justin has the capacity to distinguish between illuminating and making people stupider because, well, he hasn’t got a clue what he’s doing.

Every once in a while, the question is posed whether the internet makes people smarter or stupider.  The answer, as usual, is it depends.  After all,  Radley Balko writes at Huffington Post, and he illuminates most of the time.* But then, Justin Peters is writing at Slate, and from all indicia, his light is dim.  Actually, reading the two substantive posts written since his introduction, it’s seems pretty clear that Justin’s style would be better suited to deep and thoughtful posts about, say, Lindsay Lohan playing Elizabeth Taylor, God rest her soul.

Consider, for example, his conclusion as to whether Ritalin reduces crime or helps criminals get away with it.

But it’s also entirely plausible that impulse control makes for better criminals. A jittery, hyperactive thief seems more likely to get caught or make a stupid mistake than one who has his nerves under control. As a user of such medication myself, I can say with confidence that the nefarious plots I conceive while on my meds are much more focused and plausible than the stuff I come up with when unmedicated. If your criminality involves long-term planning—if, for example, you are involved in an elaborate heist that requires you to memorize the blueprints to a museum—then a stimulant might be just the thing you need to succeed.

I can’t tell you how many clients have regretted not having downed a few tabs of Ritalin before memorizing blueprints for that museum heist.

Clearly, blogs written by lawyers lack the entertainment value that a major player and intellectual giant on the internet like Slate would demand.  After all, they’re written by lawyers, drones of the legal sort, who couldn’t possibly have anything sufficiently interesting or titillating for the likes of Slate readers. I understand this, and certainly can’t blame Slate for demanding a saucier approach.  But at the same time, as one of those drone-like lawyers, for whom the effort to illuminate matters and who believes the foremost rule of blawging is to make no one stupider for having read what is written, Justin’s posts are not likely to help.

People are already pretty darned ignorant of criminal law.  Now that Justin has filled the gap created by that sad, pathetic dearth of good criminal law blogs, it appears that they may well be a whole lot stupider.  Thank you, Justin. Thanks, Ms. Slate.  And really, thank you internet.  The dearth is now officially gone.

* Just leaving myself a little wiggle room here.

Thinking            1.3 hours

Somehow, I missed a post by Stewart Baker at the  Volokh Conspiracy explaining a psychological infirmity that afflicts those whose “real” issue while awaiting their turn for a full body scan by the TSA of which I was wholly unaware.  Not until I saw this  follow-up poll did I read his post. I was floored.

Bear in mind that Baker is a Steptoe & Johnson partner, having completed a stint as first Assistant Secretary for Policy at the Department of Homeland Security. He’s a passionate believer.

I’ve spent mine puzzling over the roots of TSA-hatred.

There’s no doubt that it’s virulent. As a privacy skeptic and national security conservative, I’m used to hostile comments.  But it’s only when I defend TSA that the comments go beyond hostile to visceral and occasionally even spittle-flecked.

Why is that? Notwithstanding the venom of the TSA-haters, polls show that most Americans support TSA, including the decision to use whole body scanners. But for a very vocal minority opposing the agency isn’t political. It’s personal.

I can’t explain the women who hate TSA with a passion, though I’m not sure how many there are.  Anti-TSA sites and comments have a distinct whiff of testosterone.

While I, unlike Stewart, don’t go sniffing around for testosterone, and while I can easily explain why women aren’t enthralled about having strangers rub their labia or lift their blouse in airports, the balance of Stewart’s thoughts about airport security took me by complete surprise.

After a lengthy quote from Michael Chertoff, Stewart’s former boss, describing his ritual preparations to go through the ordeal with ritualistic precision, he goes on:

It may not make sense. But I’m willing to bet that a lot of the men reading this have similarly choreographed plans for the security line.

I know I do. And if I’m honest with myself, the rituals of the screening line aren’t really about speed.  They’re about performance.  I feel a kind of competitive pressure to keep the line moving. I’m not happy to see more than about six inches of distance between my luggage and the bags in front of me on the belt. Every delay in pulling out my laptop or my liquids, every last minute bit of change I have to throw haphazard into the bin, every stutterstep as I realize it’s a whole-body scanner, not a metal detector, so belt and watch have to come off too –- all detracts from the performance.

Every once in a while, though, everything goes right, and I feel great. I’m Michael Chertoff, baby, all smooth competence, no wasted motions, no hesitation, no gaps on the conveyor belt.

Don’t you think to yourself, “I’m Michael Chertoff, baby”?  Me neither.  But why?  What is it about this “smooth competence” that gets Stewart’s “Michael Chertoff” juices flowing?

OK, that’s a little embarrassing to admit.  But it gets worse when I ask myself why I care.  If you’re the kind of guy who can’t throw away a piece of paper without wadding it up and arcing it into a basket across the room, you already know.

In part we do it to keep our place in the hierarchy of guys.  But in the end, what we’re really hoping for is an Alice Munro moment — that our easy concentration and economical movements will set up in someone “a procession of sparks and chills,” followed a few pages later by, well, what we deserve for all that demonstrated competence.

Wait for it….

And that means that TSA has an Alice Munro problem.

This, dear readers, is where it gets twisted. An “Alice Munro problem” comes from this quote, which Stewart places atop his post.

“I … watch him working at the stove.  His easy concentration, economical movements, setting up in me a procession of sparks and chills.”

– Alice Munro, Dear Life

What this means is that Stewart perceives himself, as he smoothly navigates the airport security line by wearing loafers and putting his keys and phone in the pocket of his blazer, as becoming sexually irresistible to women, causing them “sparks and chills.”

Perhaps I’m a quart or two low on testosterone, but I have never harbored a fantasy that my smooth negotiation of the airport security line has caused any woman to have “sparks and chills.”  In fact, not a single sexual thought has passed through my head as I pulled my laptop out and placed it gracefully in a bin. Never.

Had someone suggested to me that other men indulged in this sexual fantasy as they placed their shoes on the belt, I would have told him he was a lunatic and needed intensive therapy.  I would have been wrong.  Apparently, not only is there such a person, but he held high office in a department of the government that carries great sway with the imposition of these mandates.

Like the commenters to Stewart’s post, I am flummoxed by his revelation.  No, I do not share his sexual titillation at being the coolest guy on the security line.  No, there is nothing whatsoever about being a player in this TSA theater that makes my manliness come out, making me believe that women who watch me swoon with desire.

That Stewart needs therapy is not my issue.  I’m sure the Steptoe health plan can cover it, no matter how many years it will take to get him past his delusion.  But that Stewart had a voice in the way our government imposes its rules scares the hell out of me.  Do others behind these dictates similarly share a sexual thrill in the TSA security line?  Do they dismiss the “spittle-flecked” very vocal minority because of the manly thrill they get as they prove their smoothness? 

Had Stewart not made this very embarrassing admission, I would have never known, never believed, that some bizarre macho titillation was involved in the mastering of the full body scanner. I now know different, and it scares me.  Who are these people in charge of our lives, and have they passed any sort of psychological screening for something remotely resembling normalcy? 

No, Stewart, I do not share your testosterone-fueled feelings.  Not at all.  But I am of the view that one of us isn’t quite right, and this time, I don’t think it’s me.

Update: This just in, TSA footage, using their newest secret weapon of mind-imaging, of Stewart Baker on a security line.

Californians came to their senses when they reformed the insanity of there Three Strikes Law that imprisoned people for life for offenses that were utterly trivial because they followed two prior felony convictions.  It seemed to make so much sense in the beginning to people who were all too happy to rid society of those “parasites,” until reality sunk in.

From the New York Times :

As it turned out, three strikes created a cruel, Kafkaesque criminal justice system that lost all sense of proportion, doling out life sentences disproportionately to black defendants. Under the statute, the third offense that could result in a life sentence could be any number of low-level felony convictions, like stealing a jack from the back of a tow truck, shoplifting a pair of work gloves from a department store, pilfering small change from a parked car or passing a bad check.

For some crazy reason, such unduly simplistic ideas like three strikes never seems to take into account how things work out on its fringes, which often requires people to think a bit harder than mere convenient self-interest.  Then again, there was also the selling point of enlightened self-interest:

In addition to being unfairly punitive, the law drove up prison costs.

The reformation was intended to end the Kafkaesque aspect of ridiculously disproportionate sentencing of life for these minor felonies by making the third strike apply only to “serious” felonies:

The revised law preserves the three-strikes concept, but it imposes a life sentence only when the third felony offense is serious or violent, as defined in state law. It also authorizes the courts to resentence thousands of people who were sent away for low-level third offenses and who present no danger to the public.

On its surface, it seems to address the problem, or at least the most flagrant manifestations of the problem, while retaining the shiny appeal of simplistic mandatory punishment.  For those inclined to extrapolate from limited facts, it isn’t hard to foresee the next level of failure, when a well-placed punch or a home defended turns into a conviction for a violent felony. But let’s rejoice over reform and leave the thinking until the next few thousand lifers’ stories are told.

But an outgrowth of some deeper consideration of who the past third strike offenders were turned up a curious issue.

The resentencing process is shaping up as a kind of referendum on the state’s barbaric treatment of mentally ill defendants, who make up a substantial number of those with life sentences under the three-strikes rule. It is likely that many were too mentally impaired to assist their lawyers at the time of trial.

Mentally ill inmates are nearly always jailed for behaviors related to their illness. Nationally, they account for about one-sixth of the prison population. The ratio appears to be higher among three-strike lifers in California.

The inability to think rationally, to perceived the world around you in terms of reality, isn’t limited to California voters. Indeed, anyone who defends the accused has either had a close relationship with a mentally ill person or is thick as a brick.  Granted, financial motivations often drive people to commit crime, but there are a great many offenses that bring no money and are just plain wrongful conduct. Why would anyone engage in this conduct?  More often than we want to recognize, the individuals suffer from an inability to reason, to comprehend, to see, to think, in a way that would have allowed them to control their behavior and avoid the commission of a crime. They’re mentally ill.

Have you ever sat down to talk with a client, to ask what happened and, maybe in the course of hearing a course of conduct that just made no sense, why?  Did you pick up the affectation, the grandiose self-image or the inexplicably obsessive aspect that just couldn’t be explained?  There is no shortage of signs of mental illness, though nobody taught us in law school what to look for.  Worse still, there is nothing in our training that allows us to help.

Asked about the relationship of mental illness and three-strikes prosecutions, Michael Romano, director of the Stanford project, responded, “In my experience, every person who has been sentenced to life in prison for a nonserious, nonviolent crime like petty theft suffers from some kind of mental illness or impairment — from organic brain disorders, to schizophrenia, to mental retardation, to severe P.T.S.D.,” or post-traumatic stress disorder.

Nearly all had been abused as children, he pointed out. All had been homeless for extended periods, and many were illiterate. None had graduated from high school.

In other words, these were discarded people who could be made to bear the brunt of this brutal law without risk of public backlash.

The mindset of those who support simplistic sentencing notions like three strikes or mandatory minimums is one of personal responsibility. We all make choices in our lives, and if we chose to commit crimes, we have no one to blame for the consequences but ourselves.  It’s a neat and tidy philosophy, and allows us to shrug off the harshness of its results as the other guy’s choice, not ours. We certainly didn’t make him commit a crime. He did it to himself.  Easy.

Except that the philosophy doesn’t fit well with the mentally ill.  They don’t sit down and think about it, ponder the cost/benefit of engaging in crime.  They don’t think of the consequences, an assumption invariably argued and yet rarely known, no less considered, by those who end up convicted.  The myth of criminals knowing the law better than anyone else has always been hogwash. They didn’t know much to begin with, and experience in court and prison didn’t make them any smarter the second time around. Or the third.

Nor do they meet the legal definition of insanity such that their mental illness will save them from prison by putting them in an institution. Few outside the profession realize how rare and difficult it is to use this defense successfully.  The reality is that we see diminished capacity all the time, but careers go by without ever defending someone who is not guilty by reason of insanity. Mental illness covers a huge spectrum, with plenty of room for most defendants in the system.

But to expect the mentally ill to comport themselves the way people whose neuroses aren’t directed toward criminal conduct is just, well, nuts. It’s like passing a law that requires the blind to see or the deaf to hear. You can pass it, but it ain’t happening. 

While recognition of the existence of mental illness has come a long way, and the attached stigma is very slowly diminishing, the criminal justice system is lightyears behind in figuring out a way to accommodate it and address it.  Our only tool being a huge hammer to be dropped on the head of the convicted, it’s not going to do much to help. 

And yet, even with this reformed three strikes law, judges will still be constrained to bring their big hammer down on the heads of those defendants who are mentally ill on their third strike.  It’s just nuts.

On the front page of the  New York Times is a story about cellphones and the Constitution, which Orin Kerr at  Volokh Conspiracy immediately dismembers as being “somewhat confusing.”  In scholarly fashion, Orin explains how the articles has muddled the issues:

Unfortunately, the story rather confusingly switches back and forth between considering at least three different legal questions:

1) What privacy protections the Fourth Amendment or statutes extend to the cell-location records generated by phone companies and stored by them, if the government comes to the phone company and wants the records of where the phone was located.
2) What privacy protections the Fourth Amendment or statutes extend to copies of text messages or e-mails that providers may have stored, if the government comes to the provider and wants to obtain copies of a suspect’s text messages or e-mails.
3) Whether the Fourth Amendment permits a warrantless search of the cell phone — and if so, how thoroughly — incident to a valid arrest.

As technology races ahead of the law, courts and lawmakers are still trying to figure out how to think about the often intimate data that cellphones contain, said Peter P. Swire, a law professor at Ohio State University. Neither the 1986 statute nor the Constitution, he said, could have anticipated how much information cellphones may contain, including detailed records of people’s travels and diagrams of their friends.

“It didn’t take into account what the modern cellphone has — your location, the content of communications that are easily readable, including Facebook posts, chats, texts and all that stuff,” Mr. Swire said.

The issue will attract attention on Thursday when a Senate committee considers limited changes to the Electronic Communications Privacy Act, a 1986 law that regulates how the government can monitor digital communications. Courts have used it to permit warrantless surveillance of certain kinds of cellphone data.

A proposed amendment would require the police to obtain a warrant to search e-mail, no matter how old it was, updating a provision that currently allows warrantless searches of e-mails more than 180 days old.

Judges across the nation have written tomes about whether a cellphone is akin to a “container” — like a suitcase stuffed with marijuana that the police might find in the trunk of a car — or whether, as the judge in the Rhode Island murder case suggested, it is more comparable to a face-to-face conversation. That judge, Judith C. Savage, described text messages as “raw, unvarnished and immediate, revealing the most intimate of thoughts and emotions.” That is why, she said, citizens can reasonably expect them to be private.

I leave y’all with this quote from the opinion:

While assaults upon the Fourth Amendment and article I, § 9 of the United States and Texas Constitutions regularly occur, the one rebuffed by the trial court here is sustained. A cell phone is not a pair of pants.

Barack Obama has been twice elected President of the United States of America.  And he smoked dope. So did William Jefferson Clinton, and I would bet Hillary and him shared a joint before Bill didn’t have sex with that woman.  The only people who have any real anger about their dalliance into dope are people who hate them anyway, so they don’t count.  And if you think George Bush the younger wasn’t toking away, you’re dreaming.

The did the dirty deed and went on to become President. The sky didn’t fall.

Both Clinton, Obama and a whole bunch of other elected officials, appointed officials who smoked a joint in their younger years (and let’s face it, pretty much everybody who came of age in the last generation smoked dope. If you didn’t, you were such a loser that you belong on an Island with Papillon.), have one thing in common: they didn’t get busted for it.

This  New York Times editorial recites some interesting statistics about the numbers of young people busted for public possession of marijuana in New York.

Law enforcement officers have often described these arrests as a way of reining in criminals whose other, more serious activities present a danger to the public. But state statistics show that of the nearly 12,000 teenagers arrested last year, nearly 94 percent had no prior convictions and nearly half had never been arrested.

Now a new study by Human Rights Watch further debunks the main premise of New York City’s “broken windows” law enforcement campaign, which holds that clamping down on small offenses like simple marijuana possession prevents serious crime and gets hard-core criminals off the streets.

The study tracked about 30,000 people arrested for marijuana possession in 2003-4 — none of whom had prior convictions — for periods of six-and-a-half to eight-and-a-half years. The study found that about only 1,000 of them had a subsequent violent felony conviction. Some had misdemeanor or felony drug convictions, but more than 90 percent of the study group had no felony convictions whatsoever. The report concluded that the Police Department was sweeping “large numbers of people into New York City’s criminal justice system — particularly young people of color — who do not subsequently engage in violent crime.” This wastes millions of dollars and unfairly puts people through the criminal system.

[P]olice are still arresting people illegally in clear violation of both the commissioner’s directive and the state law. More than 50,000 possession arrests were made last year.

Break out the popcorn.

What’s interesting about this video, and the efforts of these two young journalists, Dan Dicks and Ashley Jessica, is that they had all the “usual” arguments thrown at them, and they fielded them quite well and with calmness and maturity. 

There were some very interesting moments in there, most notably the officer’s off-hand comment that the Germans had a point.  Moreover, this video offers a worthy juxtaposition to Curtis Bob Burns, TSA’s blogger Bob, whose  frontal assault on TSA critic, Amy Alkon, was a disgrace to the agency, government and himself.

What struck me about this video is that it appears they not only made their point, but that they were far more persuasive to the police officers who confronted them than the other way around. I picture the cops going home that night and telling their spouses, “you know, those kids had a point.”

Generally speaking, I’m not a fan of trying to push the envelope by confrontation, as it rarely turns out well and no one’s mind is changed.  Martyrdom isn’t all it’s cracked up to be.

But Dan and Ashley did a great job here. It may not be enough to move the world by itself, but one step at a time.  And everyone made it home for dinner that night.