Zero Tolerance

I’m not going to pretend to be an expert on this topic, but I’m going to lay out what appears to me to be true about the fiasco at the border.

First, illegal entry into the United States is a crime. If you enter the U.S. illegally, you can be prosecuted. If you are charged with illegal entry, you will be detained, and our law requires that adult criminal detainees be kept separate from children, which isn’t generally unreasonable.

(Note: not all people who enter the U.S. without authorization are entering illegally. Illegal entry requires that one either “(1) enter[] or attempt[] to enter the United States at any time or place other than as designated by immigration officers, or (2) elude[] examination or inspection by immigration officers, or (3) attempt[] to enter or obtain[] entry to the United States by a willfully false or misleading representation or the willful concealment of a material fact.” In theory, one can show up at a designated port of entry at the right time and present oneself to immigration officials to request asylum. My understanding, however, is that CBP has been blocking asylum seekers from entering legally. So they’re entering illegally instead. It’s worth noting that the aforementioned CBP practice appears to violate immigration law.)

Second, not all crimes need to be prosecuted. Prosecutorial discretion, for better or for worse, is part of our system. This means that, in certain circumstances, prosecutors can decline to charge people who may have committed crimes. One of the ways that the executive branch of our government effects policy changes is by laying out enforcement priorities. Of course, it’s possible to go too far with this, to the point at which the executive is no longer faithfully executing the laws. But faithfully executing the laws can’t mean a 100% prosecution rate for all crimes, in part because that’s impossible to achieve.

Third, there are some really good reasons not to charge at least some illegal entrants with illegal entry. For example, it is presumably more expensive to conduct criminal proceedings (which must be before an actual Court) than to conduct civil deportation proceedings (which are held before Article II immigration judges). Moreover, it is presumably undesirable (unless you’re Jeff Sessions) to separate children from their families, especially when doing so makes the whole immigration process more chaotic and costly for everyone involved. What’s more, at least some of these entrants will attempt to claim asylum, and at least some of these claims will be meritorious, and prosecutions against them will fail. The economic and moral cost of charging every illegal entrant is sufficiently high that you can make a strong case against charging every illegal entrant.

Now, Sessions implemented this zero-tolerance policy because he has deemed it expedient to separate parents from children, as this will deter illegal entry. He has made the judgment that, in spite of the cost of prosecuting every illegal entrant, which includes the cost of figuring out how to hold parents and children in separate detainment facilities without losing track of where people are, is outweighed by the good of deterring illegal entry. And this deterrence is supposed to be achieved by separating families. You may have heard the moral principle that we ought not to do evil that good may follow. But that’s exactly what the government is doing. They are separating families in order to deter people from entering the country illegally.

Our immigration system is a mess. It’s way overloaded with pending asylum applications, and we don’t have sufficient facilities to hold everyone who has crossed the border while we process their claims. There isn’t a simple and humane solution for the overload our system is dealing with. Nevertheless, the existence of a serious problem does not justify the Trump administration’s use of the suffering of children as a deterrent and/or political bargaining chip. This policy is evil and it should be changed.

 

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Trump’s DOJ and the ACA

You may have heard that the Trump DOJ is not going to defend Obamacare in court, and the administration lawyers have adopted the position that the law is unconstitutional. You may also have heard that this is an egregious breach of longstanding norms. The government is supposed to defend its laws, after all! Just remember that the Obama administration declined to defend the Defense of Marriage Act, so it’s not like the Trump administration’s decision is without precedent.

Indeed, it’s sometimes a good thing when presidential administrations take the requirements of the Constitution seriously enough to defy Congress. Not all laws passed by Congress accord with the Constitution, and having an independent executive is a useful check on Congress’s power in much the same way that having an independent judiciary is. We have three co-equal branches of government, and the Constitution is supreme above each of them.

Nevertheless, the Trump administration’s argument is bad. It’s not bad because they believe the individual mandate is unconstitutional and aren’t defending it, however, but because they are arguing that the individual mandate’s legal invalidity requires the judiciary to “strike down” other provisions of Obamacare, namely, the Guaranteed-Issue and Community-Rating requirements. These two requirements ensure that people with pre-existing conditions cannot be denied coverage or charged more than people without such conditions, all else equal.

The argument is based on the idea that the aforementioned requirements just don’t work without the individual mandate. This very well may be true. Insurance companies just can’t afford to insure sick people at a low price if healthy people don’t also buy insurance. That’s how insurance works. Get rid of the individual mandate and there just won’t be enough people paying for insurance without using it for insurance companies to make money.

The problem with this is that the way we think about courts and how they “strike down” laws is wrong. Courts don’t just decide whether laws are unconstitutional. They provide legal remedies for concrete injuries according to law, and this sometimes requires them to determine the constitutionality of statutes. For example, the individual mandate as originally written would injure me by requiring me to pay a penalty if I chose not to buy insurance. This is an injury that I can sue the government over. If the law is valid, then the government can use that as a defense against my lawsuit and prevent me from obtaining a remedy. But if it turns out that the law is unconstitutional, then the Court can command the government not to enforce the law against me, thus protecting me from injury.

However, this only applies to the part of the law that would actually injure me. In fact, it doesn’t technically apply to the law at all, but to the executive’s actions. Even if the Court tells the government not to enforce the law at all, the law remains law and stays on the books until Congress repeals it. The Court does not have the power to modify the law; it can only protect individuals from injury by enjoining the law’s enforcement. Because the Guaranteed-Issue and Community-Rating requirements do not unlawfully injure any parties before the Court, the judiciary does not have the power to do what the Trump administration is asking, i.e., invalidate the provisions.

The strangest thing about the whole situation is that Congress has already repealed the “tax”/penalty associated with the individual mandate, meaning that no one is injured by that particular provision anymore. The states that are suing are basically saying that they are being injured because the law doesn’t work and it is nevertheless being imposed on them. But just because a law doesn’t work very well doesn’t mean it’s unconstitutional, and the injury alleged is not exactly concrete and particularized. You can tell the injury isn’t particularized because there doesn’t seem to be a narrowly tailored remedy available (the plaintiffs request an injunction that basically forbids any enforcement of any provision of the ACA).

When you have a huge, complex law like the ACA, and one of the key provisions is unconstitutional, the proper course for the courts is not to sweep away the whole thing (or even to enjoin enforcement of the whole thing). They simply don’t have that power. All they can do is enjoin the enforcement of the unconstitutional provision as to the parties before the court. Then, if that provision is truly central to the functioning of the law, then the law will fall apart, and Congress will have to repeal it or modify it if they have any sense in them. Of course, that’s a big “if.” We’ll probably be stuck with this hacked-together healthcare disaster for a while.

Why Bother with an Op-Ed?

Laurence Tribe has an op-ed in the Washington Post arguing that the Supreme Court should strike down the death penalty as unconstitutional. His argument is that the death penalty “violates human dignity and constitutes cruel and unusual punishment.” I actually agree with him, in part, and I think that we should abolish the death penalty. However, the mechanism for doing so is through state legislatures or a constitutional amendment, not through the Supreme Court.

It’s odd to me that Tribe chooses to set forth his case in an op-ed at all, given that he obviously isn’t counting on ordinary legislative means to put an end to the death penalty in America. If all you need to do is convince the Court, then why care about convincing the public?

I suppose it makes some sense. If people continue to lose regard for the Supreme Court, viewing it as just another political branch of our government whose rulings are determined by the party that picks the judges, then trying to sway popular opinion is rational, as that will ultimately determine who sits on the Court. And of course, Tribe, like many other progressives, wants the Court to function as a policy-making instrument to advance progressive ends like the abolition of the death penalty, gay rights, and abortion.

But beyond that, if the Court oversteps its bounds too much, it will undermine its own legitimacy. It is the Constitution of the United States that created the Supreme Court and provided the Court with its judicial powers. If the Supreme Court flagrantly disregards the meaning of the Constitution, then it effectively saws off the branch on which it sits. As Justice Scalia said in his dissent in Obergefell v. Hodges:

With each decision of ours that takes from the People a question properly left to them—with each decision that is unabashedly based not on law, but on the “reasoned judgment” of a bare majority of this Court—we move one step closer to being reminded of our impotence.

The Court cannot enforce its own judgments.  It can only go so far in reinterpreting the Constitution before someone will say “no.” Indeed, this is already happening on the fringes. Roy Moore, a former Alabama judge, was removed from his seat for disobeying a federal court order. He is now the Republican nominee for Alabama’s seat in the Senate.

I don’t like Roy Moore. I consider him and people who support him a threat to the rule of law in this country. But it’s unsurprising that figures like him would pop up, given the Supreme Court’s lawless advocacy of progressive causes. If the Court doesn’t start to hold itself back from resolving all the most controversial political issues on the basis of Anthony Kennedy’s moral philosophy, Moore will start to become mainstream, no matter how many op-eds Larry Tribe writes.

“Only 2-10% of Reported Rapes are False”

I’m not going to explain why the statistic in the title is wrong. This blog post does a much better job than I possibly could at that. Instead, I’m going to explain why the false-rape statistic, regardless of its veracity, is utterly irrelevant to the way we handle sexual assault accusations.

I see people tout this statistic in response to the (true) claim that the Obama Dept. of Education’s Title IX guidance denied due process rights to those accused of sexual assault. Supposedly the low false-reporting rate means that due process protections are less necessary. This is nonsense.

Even if it is true (and it’s almost certainly not) that only 2-10% of rape accusations are false, those accused should be presumed innocent until proven guilty. For all we know, they could be part of that 2-10%. The only way to find out for sure is to thoroughly investigate the claim.

Here’s a way to think about the problems with the argument. You can rephrase the false-reporting statistic roughly as such: “90-98% of accused rapists are actual rapists.” Does it follow from this that we should treat 100% of people accused of rape as if they are actual rapists, even in the absence of proof? Surely not! Rape claims should obviously be taken seriously, but that doesn’t mean we should do away with the presumption of innocence.

Remember that to presume that a rape claim is true in the absence of evidence is to presume that somebody is a rapist in the absence of evidence. Such a presumption is unjust, because not all people accused of doing terrible things actually did terrible things.

Opposing DACA: More than Just Prejudice?

Everyone is buzzing about Trump’s decision to end DACA (Deferred Action for Childhood Arrivals). The policy was put into place by Barack Obama, shielding undocumented immigrants who arrived in the country as children from deportation, if they meet certain conditions. Congress had repeatedly failed to enact legislation (the DREAM Act) that would accomplish basically the same thing, so Obama took matters into his own hands.

I think DACA’s policy goals are good. But I’m skeptical of its constitutionality. Because of that, I don’t necessarily disagree with Trump’s decision to end it, but I do think that it is necessary for Congress to step in and pass the DREAM Act like they should have long ago.

Of course, there will always be those who oppose anything resembling amnesty, preferring to deport thousands of people who have spent most of their lives in the United States to countries they don’t even remember. For some people, getting rid of illegal aliens is an end in itself, worth doing regardless of the costs, both human and monetary.

I think these people are either dreadfully misinformed or blinded by prejudice. Their desire to get rid of illegal aliens prevents them from asking the following important question: Is it really in our interest to get rid of all the DREAMers? Given that the policy requires that applicants be of “good moral character,” it’s not like they are running around committing crimes. If they did so, they would lose their protected status. Most of them are educated and employed, making a significant contribution to the economy. Moreover, many of them have been here so long that they’re basically American in every way except in the eyes of the law.

I have yet to see a good nonlegal argument against DACA. Generally, such arguments seem to depend on outright lies regarding the beneficiaries of DACA. References to crime and refusal to adopt our values just don’t make sense when discussing this particular policy, because the policy itself places requirements on those it shields from deportation. It’s not a blanket amnesty. It’s conditional forbearance.

Which is why it’s hard not to think that certain of DACA’s opponents are motivated more by prejudice than by anything else. For example, Evangelicals for Biblical Immigration (yes, you read that right) released a letter explaining why they are in favor of rescinding DACA.

It is easier to speak publically of mercy, as we, and many, do. And, while loving mercy, who will also stand for justice to those citizens who cannot find a job due to cheaper foreign labor? Who will speak of the real cost of illegal immigration to our states? And while many non-citizens are good neighbors, who will stand for justice for Americans victimized by people here illegally who do not uphold our values and laws? And who will prevent more needless crime and death?

This is basically saying, “We should get rid of DACA because the DREAMers are stealing our jobs, committing crimes, and burdening our government.” But there is no reason to think that any of this is true. Indeed, the data suggest that deporting DREAMers would seriously hurt the economy, and that they have a low crime rate.

So what’s really going on here? Are the signatories to the EBI letter just ignorant, or is there something more sinister beneath the surface? I don’t like attributing unsavory motives to anyone without good reason. But I just can’t see any compelling reason to adopt the position that EBI has adopted. It’s one thing to oppose the abuse of executive power. But opposing reasonable protections for people who themselves have done nothing wrong is something else entirely.

Book Review: “The Collapse of American Criminal Justice”

One of my former professors, who has recently made criminal justice reform one of his main research areas, recommended that I read this book, The Collapse of American Criminal Justice, by William Stuntz. It’s a must-read if you care about criminal justice reform. Whereas it’s become popular to claim that our problems with mass incarceration are rooted in the war on drugs, Stuntz demonstrates unequivocally that the problems in the system go much deeper and much farther back. A combination of misaligned incentives between the many actors involved in the system, the Supreme Court’s ill-advised decisions tightening procedural requirements, and increasingly broad and rigid criminal statutes all combined to produce the nightmare we have today, in which our incarceration rate dwarfs that of any other liberal democratic nation in the world.

Stuntz provides a lot of helpful economic analysis. One of the main takeaways from the book is that the way costs are distributed in the criminal justice system encourages incarceration rather than crime prevention. Localities pay for their own police forces, while states pay for prisons. It is thus more cost-effective for local prosecutors to punish crime than to prevent it, as their counties do not bear the cost of punishment. Stuntz’s solution is to shift some of the costs of policing to the state, as well as to shift some of the costs of prison maintenance to localities. This way, localities have more of an incentive to prioritize prevention than punishment.

After all, there is an inverse relationship between the number of police officers active in a county and the number of incarcerations, which is at least a proxy for violent crime. Having more police around will make neighborhoods safer while also reducing the need to incarcerate such large swaths of our population. Arguably, increasing the presence of police in areas that most need policing will help to improve the quality of policing, as well. Strong police presence deters crime and gives officers less reason to fear for their lives (which is the most common defense offered by officers who kill innocent people).

Perhaps the most eye-opening part of the book for me was Stuntz’s discussion of the Supreme Court’s rulings on criminal procedure, such as Mapp v. Ohio, Miranda v. Arizona, and Gideon v. Wainwright. In effect, Stuntz argues, these rulings did little to secure the substantive rights of prisoners as a result of their misplaced emphasis on procedures. The Court’s rulings made conducting trials prohibitively expensive and less accurate in most cases, leading to the rise of plea bargaining in most or all cases. By tightening procedural requirements, the Court incentivized the abuse of plea bargaining that’s partially responsible for our overcrowded prisons. Moreover, the tightening of procedural requirements by the Court helps guilty and innocent alike, simultaneously making it harder to distinguish between the two, which is one of the most important functions of the justice system.

The shift away from trials and toward plea bargains was facilitated by the increasing codification of the criminal law. As Stuntz shows, criminal law used to be primarily judge- and jury-made. Locally selected juries had broad power to acquit defendants for just about any reason. This gave localities more control over the dispensation of justice in their communities. The vagueness inherent in unwritten common law gave room for communities to decide for themselves how to deal with crimes.

Nowadays, our criminal law is mostly found in statutes. Crimes are far more precisely defined, giving juries and judges less leeway in deciding who is to be punished and who is to be let go. Moreover, codification has made it possible for individuals guilty of only one criminal act to be charged with many crimes, each carrying its own sentence. The result is that criminal defendants have more incentive to accept plea bargains, even if the bargain includes a potentially excessive term. For a relatively minor criminal act, one might be put in jail for years and years as a result of the multiplication of criminal charges.

Stuntz doesn’t seem particularly optimistic about the possibility of reform. He suggests, however, that it’s possible. Reading the book has made me want to be a part of such reforms. I’m not sure what kind of involvement that might be.

Posted in Law

Cake, Again

A while back, I wrote about the Colorado baker being sued for refusing to bake a cake for a same-sex wedding. Since then, the Court has granted cert in the case. Very exciting, especially with the addition of Neil Gorsuch to the bench.

Today, I have a somewhat different opinion about the case, which I got from a Twitter exchange with Ole Miss lawprof Chris Green.

I’m still not convinced that the state is required to make an exemption for the baker by the Free Exercise Clause. But Green’s claim that the Privileges or Immunities Clause protects against unjustified occupational restrictions is interesting to me. Unfortunately, the Privileges or Immunities Clause is dead, at least for now (see The Slaughterhouse Cases).

What is it with Conservatives and the Police?

Conservatives are supposed to be all about keeping the government out of your business, right? Limited state power? Ambition checking ambition? If this is so, then why is the reflexive conservative response to police brutality generally to defend police officers who have killed innocent people? If we hold to Lord Acton’s dictum, that “power tends to corrupt, and absolute power corrupts absolutely,” then we should probably be a little bit more wary of the boys in blue. They’re human, just as we are, and they are just as capable of evil as anyone else.

I think the reason for the generally pro-police attitude among conservatives is that their thinking is grounded less in the principles of limited government than in a pre-existing belief that a certain subset of people are good and the rest are bad. The good people should be free from government interference, but the bad people should not. Moreover, the good people should be free from the effects of the bad people. Predisposition to such a belief would be linked to high orderliness and disgust-sensitivity, which are aspects of the big five trait conscientiousness.

We can offer a similar explanation for why radical SJW-types, who are ostensibly concerned that our institutions are tools of the white cishet patriarchy used to subjugate minorities, are often eager to use bureaucracy and courts to crush their opponents. They don’t have a problem with power per se, they just want to make sure that power is being used for their desired ends. As long as power is used against the bad people (white cishet Christian men), there is no problem.

What the radical SJWs and reflexive police-apologists have in common is a highly black-and-white moral worldview. In this worldview, there isn’t much doubt about who is good and who is bad, and therefore, there isn’t need for checks and balances against power, as long as it is exercised only by the good people. This is authoritarianism. It is bad, and it exists happily on both sides of the political spectrum.

If small-government conservatives want to be consistent with the principles they claim to uphold, then they should stop excusing police brutality, which constitutes abuse of governmental power in its purest form. The state is a monster that needs to be restrained if we are to be safe from it. It doesn’t make sense that we’d apply this to healthcare and taxation, but not to life itself.

 

On Charlie Gard

I do not often use profanity, but some situations call for it. This is fucking wrong:

Chris Gard and Connie Yates lost their final legal bid to take their son to the US for treatment.

Specialists at Great Ormond Street Hospital believe Charlie has no chance of survival.

The court agreed, concluding that further treatment would “continue to cause Charlie significant harm”.

Charlie is thought to be one of 16 children in the world to have mitochondrial depletion syndrome, a condition which causes progressive muscle weakness and brain damage.

His parents had previously seen a Supreme Court challenge to continue Charlie’s life support fail.

It’s one thing to argue that declining to offer treatments with an extremely low probability of success is permissible. It is another thing entirely to forbid such treatments as a matter of law. Charlie’s parents raised a large sum of money to pay for an experimental treatment for his condition in the U.S., but they have been legally forbidden to seek this treatment. Thus, Charlie will die. Perhaps he would have died anyway. But I guess we’ll never know, now.

Perhaps what is most chilling about Charlie’s situation is the rationale of the Court that effectively sentenced him to death. Justice Francis of the High Court writes, “The duty with which I am now charged is to decide, according to well laid down legal principles, what is in Charlie’s best interests.” According to Francis, it is in Charlie’s interest to die with dignity rather than to pursue a moonshot treatment, one that is unlikely to save his life and likely to cause him some measure of suffering. In itself, this claim, while certainly debatable, is at least reasonable. But this was not just a person arguing about medical ethics. Justice Francis’s opinion had legal force.

It is with the heaviest of hearts but with complete conviction for Charlie’s best
interests that I find that it is in Charlie’s best interests that I accede to these
applications and rule that Great Ormond Street Hospital may lawfully
withdraw all treatment, save for palliative care, to permit Charlie to die with
dignity.

At least Justice Francis is sure of himself.

There are two sides to the horror of the reasoning in the opinion. First, Francis’s opinion implies that a form of utilitarianism is the law of the UK. In Charlie’s case, the likelihood of continued suffering is so high, and the likelihood of recovery so low, that the expected utility of attempting further treatment is less than zero. Ergo, it’s better for Charlie to die. Were Charlie a legally competent adult, Francis could make the exact same argument and it would be equally valid. Would he not then defer to Charlie’s own opinion? Perhaps he would, but the reasoning in this opinion would compel him to overrule Charlie and permit the hospital to withdraw life support whenever it pleases. Is this really what we want?

The second disturbing thing about the opinion is its casual (and unequivocally wrong) assumption that the state is competent to decide objectively what is in a person’s interest. And if this assumption applies in this particular situation, there is no reason it shouldn’t apply in all of them. If the state can decide that it is better for you to die than to live, why shouldn’t it decide everything else for you? After all, most decisions we make are far less weighty than the choice between life and death. The stakes cannot possibly get higher than they were for Charlie and his parents.

The fact that this opinion was ever written is an abomination, made even more abominable by the fact that two appeals have resulted in no changes. Even if you agree with the utilitarian reasoning that Francis employs, you should be horrified by the monstrous power assumed to belong to the state by his opinion, the power to decide for you what is good for you even in matters of life and death. This is totalitarianism, pure and simple.