Monthly Archives: April 2010

The Illinois Legislature Gets Sexting Right?

Our laws against child pornography were created many years ago, when the production of child pornography was a much more difficult process. A would-be child pornographer had to use film cameras to take the pictures. And since a commercial lab would report him to the police, he had to have the equipment and skill to develop the film as well. Pretty much the only people willing to go through that much trouble were dedicated scumbags.

That’s not the case anymore. I haven’t seen any statistics, but I’m pretty sure that today the single largest group of child pornography producers — by sheer number of images and videos — are children. We can blame it on modern cell phones with built-in cameras, which give every child all the tools they need to create and distribute child pornography. And who has better access to naked children than a child?

Thus, we have the great “sexting” epidemic. And naturally we have the moral panic which goes with it. So we have teen couples who make videos of themselves having sex and get busted for child pornography, and we have 15-year-old girls busted for sending pictures of themselves to other kids.

All of which brings me to a rather surprising new law that’s just been passed by the Illinois legislature:

Teens who forward or post online racy pictures of their underage classmates would get juvenile court supervision that could result in mandatory counseling or community service under legislation sent to Gov. Pat Quinn today.

The first measure aims to educate teens about the dangers of “sexting” while modernizing state statutes for the Internet age. Under current Illinois law, teens caught with nude photos of other juveniles can be charged as sex offenders, lawmakers said.

The Illinois bill, which passed 52-0, doesn’t penalize youths who send or receive the risque photos but choose not to distribute them widely. It applies to kids under 18 who use computers or cell phones to distribute the pictures, and the court supervision amounts to a scolding.

That seems…sensible. The bill addresses the issue of sexting with a sense of proportion and avoids branding children as sex offenders. Our legislators appear to have successfully resisted the urge to moral panic and moral grandstanding.

I didn’t see that coming.

Another Reason Not To Consent To Searches

Scott Greenfield points out that if the police ask to search your car and you consent, the courts have ruled that you are consenting to let the police take your car apart. Here’s the language he quotes from United States v. Garcia:

The search here was reasonable. When the officers requested permission to search the truck after asking Garcia whether he was carrying “anything illegal,” it was natural to conclude that they might look for hidden compartments or containers.

Yes, I know that if a cop asked me “You don’t mind if I look in your car, do you?” I would immediately assume he intended to take it apart. Wouldn’t you?

Garcia only involves disassembling a speaker compartment, but where exactly does the court draw the line? Scott explains:

The problem, of course, is that the scope of the consent is whatever the cops say it is, and is based on a parsing of the language that far exceeds anything a reasonable person understands it to be.  When a cop asks a motorist if he can take a look in his car, does the motorist understand that to mean that he’s going to pull off the fenders in search of a secret compartment?

…Some cars, like the Nissan Maxima, were favorites, because they were fast and offered some great hiding places.

The solution became clear.  Not only were cops targeting Maximas, but after obtaining consent, physically dismantling the cars by pulling off body parts on the side of the road.  It was bad enough when they happened to stop a mule carrying drugs, but when they destroyed cars of innocent people in their search for the [hidden compartment], people were outraged.  Unfortunately, there was little to be done to stop it.  The courts ignored the issue of the search exceeding consent, the outrageous destruction of property in the never ending war on drugs.

Wouldn’t that suck? What do you do? Call a flatbed tow truck to pick up all the pieces and haul them to the dealer to be reassembled? Toss the parts in the back seat and drive to the body shop?

It was bad enough when they happened to stop a mule carrying drugs, but when they destroyed cars of innocent people in their search for the clavo, people were outraged.  Unfortunately, there was little to be done to stop it.  The courts ignored the issue of the search exceeding consent, the outrageous destruction of property in the never ending war on drugs.

Naturally, it’s the war on drugs. I’ve heard similar stories of customs agents cutting apart valuable import goods to make sure there aren’t drugs inside (except the customs agents don’t need your consent).

Personally, this ruling could come in handy. No police officer has ever asked to search my car, but if one ever does, I hang around enough crimlaw blogs to know that I should refuse the search on general principles. But I’m not very good at confrontations. I like to get along with people, and saying no to a cop would make me nervous. And you know his next question is going to be along the lines of “Why not? Have you got something to hide?”, which would really make me nervous.

Now, I’ve got an answer to “Why not?”: Because I just heard about a court case that says consenting to a search allows the cop to take my car apart, and I can’t afford the repair bill. It might work. Of course, if he manages to discover some probably cause, he’s going to tear my car apart for sure. So maybe that’s not a good idea.

Anyway, it seems to me that property damage during a search ought to be compensated, especially if nothing illegal is found. I’m sure the law-and-order types would argue that conducting searches of innocent people is an unavoidable cost of fighting crime. That’s probably true. But shouldn’t that cost be born by the public who benefit from all that crime fighting, and not the poor random folks whose property is damaged? Heck, since private property is being damaged for a public purpose, doesn’t this sound like a constitutional taking — requiring just compensation?

I know that sounds a bit crazy, but is it any crazier that the courts believing that people were actually consenting to have the police take their cars apart on the side of the road?

Happy 4/20 But Keep It Away From Me

So, it’s 4/20, which is apparently some sort of big day for pot smokers. I don’t know why, but pot smokers have glommed onto the number 420 or 4:20 or 4/20 as somehow being tied to pot. I’m sure it makes sense if you’re stoned.

Anyway, I think I’ve established my libertarian credentials well enough that I can now afford to make a libertarian confession: I hate marijuana.

When I was a teenager, I hung out with some friends who sometimes smoked pot. I remember being at parties where the smell got so thick in the air that I’d reflexively hold my breath until it started to hurt. When I finally took a breath, the smell made me want to vomit, and I had to leave. Marijuana smoke is a disgusting smell, and I can’t imagine ever voluntarily inhaling something that smelled like that. I’ve developed a visceral hatred for the weed.

I hate the smell of it so much that just thinking about it now makes be feel a little queasy. I don’t like to see pictures of people smoking it. I don’t even like seeing pictures of piles of marijuana. I can imagine the smell and it makes me ill.

(In truth, I have no idea what unsmoked marijuana smells like, having never been around it in significant quantities, but what I imagine is pretty awful.)

I hate all the gadgets that pot smokers use. I vaguely remember some friend showing me his collection of pipes and expecting me to think they were really cool because they were carved into weird shapes, or because he had fuckin’ stories about how when he bought each one and the places he used them. I hate watching pot smokers constantly fiddling with the pipes, poking at the insides for some damned reason. I hate roach clips, which always look filthy and have stupid shit attached to them. I hate all the stupid decorative bongs, and they way pot smokers get so excited about a new one.

I hate cannabis culture. I hate all the cute words marijuana smokers use — pot, weed, grass, joint, blunt, roach, spliff, toke, jay, reefer, chronic, ganja. I hate all pictures of people smoking up and all the stupid drawings of marijuana leaves and all the little cartoon figures of people smoking pot.

Kids, smoking pot doesn’t make you cool. It just makes you smell like pot.

Sorry, but I just needed to get that out there. Truthfully, I’m using the word hate for effect. I don’t hate all that stuff I just mentioned, I just find it all irritating. Except maybe the smell of pot. That I probably do hate.

I think the smell has a lot to do with it. Olfactory memories tend to run especially deep and strong. I hate the smell of pot so much that I have an unpleasant response to anything that reminds me of the smell of pot. Such as, for example, pot.

None of this means I am any less in favor of ending drug prohibition. I hated pot long before I learned to hate the drug war, and my dislike of many illegal drugs has nothing to do with how I feel about legalizing them. It will be a great day when marijuana is finally legalized.

But on a personal level, I’m not looking forward to the smell.

A Warning From a Violent Man

Radley Balko points out that former president Bill Clinton has an ugly editorial in the New York Times. It’s the anniversary of the bombing of the Murrah building in Oklahoma City, which killed 168 people. Clinton goes through the motions of mourning their deaths, but then he moves on to casting blame:

Finally, we should never forget what drove the bombers, and how they justified their actions to themselves. They took to the ultimate extreme an idea advocated in the months and years before the bombing by an increasingly vocal minority: the belief that the greatest threat to American freedom is our government, and that public servants do not protect our freedoms, but abuse them.

Clinton is, as usual, being careful with his words. He never quite comes out and accuses the “increasingly vocal minority” of causing the Oklahome City bombing, but there’s a clear implication that those of us who question big government are somehow culpable.

As we exercise the right to advocate our views, and as we animate our supporters, we must all assume responsibility for our words and actions before they enter a vast echo chamber and reach those both serious and delirious, connected and unhinged.

No. That’s dead wrong.

I assume responsibility for what I say and what I do. But my words have no power to compel other people, so I’m not responsible for what other people do upon hearing them. And I’m certainly not going to assume responsibility for what happens when my words reach the “delirious” and the “unhinged.” It would be foolish for Americans to censor their own voices in our democracy out of fear of how some unknown madman might respond.

Civic virtue can include harsh criticism, protest, even civil disobedience. But not violence or its advocacy. That is the bright line that protects our freedom. It has held for a long time, since President George Washington called out 13,000 troops in response to the Whiskey Rebellion.

Would that be the same George Washington who just a few years before had lead the armed insurrection against the British government? An insurrection which started, on this very day, in 1775 when local militia members killed 73 British soldiers in the battles of Lexington and Concord?

It’s assinine for someone like Bill Clinton, who for eight years commanded the most powerful army in the world, to say that violence has no place in civic virtue. If violence can never be virtuous, then why do we have a Department of Defense? Why do we arm our police officers? Why does our government have within its grasp, the power to kill millions with the push of a button?

The answer is that although violence is terrible, it is sometimes also the only way to protect ourselves against those who would do violence against us. In our civilized world, we have agreed to limit the use of violence, wherever possible, by empowering a democratic government to act violently against those who threaten us. This near-monopoly on the use of violence is the defining characteristic of government. George Washington understood this well:

Government is not reason, it is not eloquence — it is force! Like fire, it is a dangerous servant and a fearful master.

Which is precisely why our government is the single greatest threat to our freedom. What other threats could there be? The Russians? The Chinese? North Korea? Criminal gangs? Deceitful bankers? None of those threats compare to the harm that could come if those who should serve us try instead to become our masters.

Back to Clinton:

Fifteen years ago, the line was crossed in Oklahoma City. In the current climate, with so many threats against the president, members of Congress and other public servants, we owe it to the victims of Oklahoma City, and those who survived and responded so bravely, not to cross it again.

No problem. I’m just a blogger. All I’ve got are words. I have no blood on my hands.

Bill Clinton cannot say the same. It was his administration that sent the ATF into the Branch Davidian compound to start a violent confrontation where none existed before. He commanded the army that killed a thousand people in Mogadishu in 1993. He launched cruise missles into Afghanistan and the Sudan.

Whether you believe Clinton was right or wrong to use force when he did, it’s absurd that a man who has held the power to kill and used it should try to cast blame on those of us who only use words.

Kill Them Because It’s Easier?

From Bill Otis at the slightly disturbing Crime & Consequences blog, here’s a pro-death penalty argument that I just can’t get enough of:

Recently I noted that prison security  —  or, more precisely, the inevitable fallibility thereof  —  puts the lie to abolitionist claims that LWOP will keep us as safe as the death penalty.  In-prison murder, erroneous release, and escape are among the lethal problems we can expect (and already have, for that matter).

In other words, let’s execute more criminals because the people who run our prisons are incompetent.

(The linked story, on the other hand, is rather amusing. It includes sheep.)

If Not Now, When?

It looks like filling the next Supreme Court vacancy is yet another area in which I disagree with the Obama administration. CBS News‘s Jan Crawford says Obama wants “a sparkling intellectual who could go toe to toe with Roberts and Antonin Scalia,” but I’d much rather have Scott Greenfield.

in Legal

What Might Have Been…

Well, with Justice Stevens retiring from the Supreme Court, it’s time to start another round of speculation and wishful thinking about who will get the job this time.

I have no idea who the mainstream pundits are pushing for, but I’m always partial to Wise County Deputy Commonwealth Attorney Ken Lammers. He has more criminal law experience than the entire current court combined, and although he’s a prosecutor (and therefore won’t frighten the Republicans) he’s done some defense work in the past, and he seems less motivated by the desire to mete out punishment than certain other prosecutors.

On the other hand, Brian Tannebaum seems to be trying to generate a one-man blawgospheric groundswell for New York’s Scott Greenfield, proprietor of the venerated Simple Justice blog. Brian is obviously inhaling too much of whatever they’re smoking down there in Florida, but the thought of a no-holds-barred criminal defense lawyer like Scott on the Supreme Court is pretty amusing.

(And, let’s face it, the Supreme Court could sure as hell use a criminal defense lawyer in its ranks, someone who has had the experience of trying to save a client from the awful power of government vengeance. Not one of them has done that.)

Now it’s late at night, and I keep thinking about something that almost happened last year. I can’t get it out of my head, and it fills me with regret for what might have been…

Last year, some nut with ties to the Obama administration dangled the possibility of a federal judgeship in front of Norm Pattis. As things turned out, it didn’t happen. But what if it had…?

And what if the crazy impulse that lead them to consider Norm in the first place somehow struck again and lead them to nominate him to the Supreme Court? When I imagine a bomb-throwing madman like Norm on the Highest Court In The Land…damn, that would be glorious.

In Which I Slap Around the Fairfax County Police a Bit More

My latest post at When Falls the Coliseum takes on the issue of why the police in Fairfax County, Virginia, should be more forthcoming about how and why one of their officers shot and killed an unarmed man.

Jennifer tells me I need to work on my self-promotion skills, so I’ll just say that I think this is one of my more rantastic pieces. I almost sound like I’m accusing the Fairfax County police department of operating a death squad. You really should check it out.