Category Archives: Equal Protection

Two Victories on the Mandatory Minimums Front

Crime and Punishment, Equal Protection, General, Legal, Mandatory Minimum Sentences, Separation Of Powers, The Bill Of Rights, The War on Drugs, Theory and Ideas

WASHINGTON – The Supreme Court on Monday said judges may impose shorter prison terms for crack cocaine crimes, enhancing judicial discretion to reduce the disparity between sentences for crack and cocaine powder.

By a 7-2 vote, the court said that a 15-year sentence given to Derrick Kimbrough, a veteran of the 1991 war with Iraq, was acceptable, even though federal sentencing guidelines called for Kimbrough to receive 19 to 22 years.

In a separate sentencing case that did not involve crack cocaine, the court also ruled in favor of judicial discretion to impose more lenient sentences than federal guidelines recommend.

The challenges to criminal sentences center on a judge’s discretion to impose a shorter sentence than is called for in guidelines established by the U.S. Sentencing Commission, at Congress’ direction. The guidelines were adopted in the mid-1980s to help produce uniform punishments for similar crimes.

The cases are the result of a decision three years ago in which the justices ruled that judges need not strictly follow the sentencing guidelines. Instead, appellate courts would review sentences for reasonableness, although the court has since struggled to define what it meant by that term.

Kimbrough’s case did not present the justices with the ultimate question of the fairness of the disparity in crack and powder cocaine sentences.

In a time when 5-4 Supreme Court rulings are the norm, this 7-2 ruling is a strong signal that the courts should have more discretion when sentencing individuals. Some may call this ruling “judicial activism” and one could probably make that case. But assuming that this is judicial activism, I would argue that the courts are constitutionally held to an even higher duty to make sure the punishment fits the crime; to do justice. When the prescribed punishment violates common sense, then judicial activism is completely appropriate (see my posts about Genarlow Wilson here, here, and here). We cannot reasonably expect the courts to be reasonable if state and federal laws tie the hands of the judges with unreasonable mandatory minimum sentencing laws.

The article continues:

Congress wrote the harsher treatment for crack into a law that sets a mandatory minimum five-year prison sentence for trafficking in 5 grams of crack cocaine or 100 times as much cocaine powder. The law also sets maximum terms.

Seventy percent of crack defendants are given the mandatory prison terms.

Kimbrough is among the remaining 30 percent who, under the guidelines, get even more time in prison because they are convicted of trafficking in more than the amount of crack that triggers the minimum sentences.

Justice Ruth Bader Ginsburg, writing for the majority, said, “A reviewing court could not rationally conclude that it was an abuse of discretion” to cut four years off the guidelines-recommended sentence for Kimbrough.

Justices Samuel Alito and Clarence Thomas dissented.

The Sentencing Commission recently changed the guidelines to reduce the disparity in prison time for the two crimes. New guidelines took effect Nov. 1 after Congress took no action to overturn the change.
The commission is scheduled to vote Tuesday afternoon on the retroactive application of the crack cocaine guideline amendment that went into effect on Nov. 1. The commission has estimated 19,500 inmates could apply for sentence reductions under the proposal.

I certainly hope these 19,500 inmates do just that; these 19,500 spots would serve us all better if they were taken by violent criminals who are a genuine threat to the life, liberty, and property of us all.

The Supreme Court also made a ruling on another mandatory minimums case:

In the other case, the court, also by a 7-2 vote, upheld a sentence of probation for Brian Gall for his role in a conspiracy to sell 10,000 pills of ecstasy. U.S. District Judge Robert Pratt of Des Moines, Iowa, determined that Gall had voluntarily quit selling drugs several years before he was implicated, stopped drinking, graduated from college and built a successful business. The guidelines said Gall should have been sent to prison for 30 to 37 months.

The sentence was reasonable, Justice John Paul Stevens said in his majority opinion. Alito and Thomas again dissented.

The cases are Kimbrough v. U.S., 06-6330, and Gall v. U.S., 06-7949.

Another case of judicial activism? The court was once again correct to choose probation over prison. Mr. Gall had already taken steps to be a productive, law abiding citizen. What good would come of putting an already rehabilitated individual into the prison system? These are only questions which can be answered by a judge or a jury; not an arbitrary one-size-fits-all mandatory minimum sentencing law.

Stephen Littau
http://fpffressminds.blogspot.com/

Federalism vs. Individual Freedom

Blog Discussions, Constitution, Democracy, Equal Protection, Federalism, Government Regulation, Individual Rights, Separation Of Powers, Taxation, Theory and Ideas

The Constitutionalism of Ron Paul has ignited a debate that’s sorely needed in this country. The Founding Fathers envisioned a nation of individual States, each with its own quirks and ideas, and each with wide latitudes to set its own internal laws and policies as it saw fit. The central government was tasked only with foreign affairs and acting as arbiter of inter-state matters. The individual States had nearly full sovereignty with most other affairs. In many ways, the United States was set up and that is why the American symbol is of freedom with a roughly similar mix between central authority and State sovereignty as the current EU.

Ron Paul and many libertarians reflexively yearn for a return to such an idea. The central government we have now is a behemoth, trampling our freedoms under its oppressive taxes and mountains of regulation. Even worse, the system is largely out of control, and citizens have almost no power over its workings. Devolving power to the States and local governments would counter the dilution of power that naturally occurs when one is a single voice out of 300 million. Petitioning your city or state representative is much more effective than some Senator who may represent several million people.

Inherent in the assumption by these libertarians, though, is that moving power to smaller levels of government will improve individual freedom. I’m not sure that assumption is accurate. There are pros and cons of both systems.

Federalism:

On the positive side, federalism allows for experiments in freedom. States and localities compete on a whole host of aspects, such as taxation, regulation, and social policies. In many instances, it allows those states to do things that would not be allowed in a true top-down structure. In some cases, that may be liberalized policies such as California allowing doctors to prescribe medical marijuana, the city of Galveston, Texas to opt out of social security for their retirement plans, or states like Massachusetts recognizing gay marriages. These are all things that individual states or localities are doing to increase personal freedoms.

But there’s a big negative. Many policies undertaken by individual states inimical to individual freedom. For example, the trend to outlaw smoking in private businesses would be a simple example. Another fairly innocuous example would be the crazy alcohol “blue laws” dotting the nation, many of which have absolutely no justification and are simply a way to appease special interests at the expense of freedom. On a more serious note would be the “Jim Crow” laws, or if you’re looking for a modern incarnation, Massachusetts’ new health-care plan. States are laboratories for new policies, but those policies are not always pro-freedom.

Central Government:

The benefit of central government mandates are simple: if the central government does something right, it can immediately apply that across the country. Many of our Constitutional amendments have followed this path, such as the 24th, eliminating a poll tax. It was a way to end an immoral form of discrimination in a place which sorely needed it. Similarly, while the 14th amendment may have opened the door to some very strange unintended consequences, the idea is purely in favor of liberty: to make sure that individual states and localities cannot engage in unfair discriminates against individuals based on things such as race or gender.

But again, there’s a big negative. As co-contributor tarran quoted Barry Goldwater to me in a discussion on this topic, “The government big enough to give you everything you want is big enough to take it all away.” Look no further than the government’s failed attempt at Prohibition, a distinctly anti-freedom policy that might have been proven to be damaging if done in individual states that was instead foisted on the entire nation. Even worse, our central government has the potential to cut down individual states’ pro-freedom policies at the knees, as we saw in Raich.

So what’s best?

Well, the ideal government would be a single world government that was only powerful enough to protect freedom but disciplined enough not to infringe on individual freedom for the “common good”. However, such a government has never existed, will never exist, and with the incentives inherent in government, can never exist. So looking at the ideal government is not a useful way to answer this question.

The best way to answer this question is to ask how federalism relates to individual freedom. I used “vs.” in the title of this post for a reason. Of course, I don’t believe that federalism works contrary to individual freedom. However, I don’t think it necessarily works FOR individual freedom either. Federalism is only a tool for individual freedom if the people in a region believe in individual freedom, likewise a strong central government is only as damaging to individual freedom as the populace allows it to become.

Where federalism does shine, however, is in giving individuals choice over what mix of freedom and of taxation/regulation they prefer. However, as the differences in politics between the “liberal” and “conservative” states show, federalism does not automatically equal liberty. In states like California, there are large degrees of personal freedom, but not much economic freedom. In states such as Georgia, there is a large degree of economic freedom, but the level of social conservatism circumscribes personal freedoms. All this occurs in the spheres of control outside those of the central government, and I see no reason to believe this would not be the case if the central government were weakened.

The problem, whether you look at the central government or individual states, is that the government will only be as pro-liberty as the populace it represents. If you’re in Massachusetts, you just might get a weak version of socialized medicine through “mandatory coverage”. If you’re in Alaska, you may find nearly non-existent government that actually pays you out of oil revenues to live there.

But as I mentioned, if you then have a choice between Massachusetts and Alaska, you have a lot more choice than between America and Australia. The closer in proximity those choices become, for example between Taxachusetts and the Free State, and the better it will be for lovers of liberty. And the weaker the central government is, the more differentiation there will be between more-free and less-free states.

Federalism is not a panacea that will solve our nation’s problems. It’s a step in the right direction, but it must always be remembered that the message must be about freedom, not about federalism. Federalism is a potential means to the end, but it is not the end in itself.

Brad Warbiany
https://thelibertypapers.org/

Liberty and Racial Discrimination: Responding to David Duke

Democracy, Election '08, Equal Protection, Free Trade, Immigration, Individual Rights, Political Correctness, Socialism, Theory and Ideas

An earlier post of mine concerning members of Stormfront who are publicly supporting Ron Paul generated some very heated responses and a number of comments from people who are part of various movements that are generally tarred as being racist. Some of them made some very good points, and others raised questions that I think warrant an answer. This post is intended to acknowledge the good points and to answer those questions, especially the ones which were raised by David Duke.

The first point was made by commenter Drena who said,

I’m not sure if it’s a good idea to equate modern white supremacists with Nazism. The Nazis were anti-capitalist, protectionist, and in favor of central economic planning. There is nothing to stop a white supremacists from actively supporting laissez-faire capitalism. It is quite a leap to assume that because a person who thinks that his race is superior to another race, that he is in favor of Nazi economics. Nazis were economic fascists who just happened to be white supremacists. Modern day white supremacists may be more sophisticated than you think.

This is true, to a point. It’s quite possible to be a person who discriminates racially, but because you respect the rights of others and refuse to aggress against the people against whom you discriminate against. And certainly, I don’t have any problem with such forms of racial discrimination. I consider it to be stupid, but a person can chose whom he or she does business with, and I won’t try to prevent him or her from exercising his or her freedoms in ways that I consider stupid.

I say it is possible, but does not seem to happen much in practice. People who wish to practice racial discrimination often want to practice aggression against those whom they don’t approve of. Sometimes it’s out of an unwillingness to respect the rights of the people whom they don’t like, such as the Stormfront poster who claimed that the only thing certain black members of Congress were good for was target practice. Often, though, it’s the result of the economic disadvantage that people practicing racial discrimination place themselves in.

Discrimination Defined

At this point, I should digress to define discrimination. A lot of people have no understanding what it is, other than being told that it is bad. Discrimination is the act of judging someone by a quality they possess.

When is Discrimination Economically Beneficial?

Now, some discrimination is justified. For example, if a person wanted to hire someone to prepare a new translation of the 1001 Nights from Arabic into Swahili, he would almost certainly refuse to hire anyone who didn’t speak both languages. This form of discrimination against people who do not speak both Swahili and Arabic is entirely appropriate.

When is Discrimination Economically Harmful?

On the other hand some forms of discrimination are economically disadvantageous; for example, if the person refused to consider any candidate who wasn’t blond haired and blue eyed, he would be discriminating against people for reasons that have nothing to do with their abilities to do the job.

Why is this harmful?

Effects on the ‘victim’

For the “victim” of the discrimination, a dark-haired job applicant, the harm is quite obvious, since he cannot get the job. In fact, if such discrimination is endemic, he would have to settle for a job that does not fully take advantage of his wealth-creation potential, and thus his earnings will be less, his life less-fulfilled, etc. I should point out, though, that our dark-haired translator is not truly a victim; he has not been aggressed against – rather, an employer has merely declined to hire him.

Effects on the ‘oppressor’

But what harm to the employer?

Well, in my blatantly contrived example, he has limited his pool of applicants dramatically – whereas there might be fifteen applicants in the city who know both languages, there might only be one or two blond ones. The two guys can charge a much higher price for doing the work than they could command competing against a larger pool of talent. Additionally, the blond guys might not be the best in the field, and the employer could end up producing a very poor quality translation, and have to sell fewer books at a lower cost, reducing the return on his investment.

Effects on the ‘beneficiary’ of the discrimination

What about the blond Arabic/Swahili translator? Well, he might get a cushy job, but if the discrimination is widespread, the economic inefficiencies described above means that he will pay more for goods of less quality than he would in a society that did not discriminate against non-blonde people.

Using Government to Evade Economic Costs

The disadvantage suffered by those who practice racial discrimination was the historical impetus behind many Jim Crow laws. A racist who refused to hire black laborers had to pay a premium for his labor, while his less picky competitor would pay a discount for black workers and be able to undercut the racist. These people, unable to compete without sacrificing their cherished desire to racially discriminate often call for laws to prevent their competitors from taking advantage of the untapped pool of workers.

Note that this only applies if the racial discrimination is unwarranted. If one’s race truly is a determinant of one’s abilities, than the guy who uses race as a determinant in deciding whether to do business with someone could be making a great decision. In such cases, the person who refused to racially discriminate would be the one at a competitive disadvantage. I personally feel that racial discrimination is, generally, a dumb idea, as evidenced by the many laws passed to promote segregation and racial discrimination throughout history (and not just in the U.S.).

Now these laws were acts of aggression against innocent people. Primarily these laws targeted the freedom of association preventing people from conducting business with whomever they wish, for example when a school is forbidden from hiring black teachers., or a businessman is forbidden from hiring a black foreman or a bus company is required to segregate its customers by race.

Make no mistake, these laws are collectivist. In the end, they force people to trade goods and services not with the partners they would prefer, but with other people selected for them by the state. It really does not matter that the selection is performed impersonally.

The Difference Between Modern ‘White-Nationalism’ and German Nazism

Which now brings me to a point made by many respondents who posted comments to the effect that they were not “white supremacists” but rather “white nationalists”, and that their views diverged very radically from that of the German NDASP (the original Nazi party). » Read more

tarran
I am an anarcho-capitalist living just west of Boston Massachussetts. I am married, have two children, and am trying to start my own computer consulting company.
https://thelibertypapers.org/author/tarran/

The Broader Implications of the Genarlow Wilson Verdict

Crime and Punishment, Economics, Equal Protection, General, Individual Rights, Legal, Mandatory Minimum Sentences, Property Rights, Sex, Theory and Ideas

Last week’s 5-4 Georgia Supreme Court ruling in the Genarlow Wilson case is not only great news for Genarlow Wilson but also great news for others who have found themselves in a similar situation. With the ruling being as close as it was it’s clear that the court could have easily ruled the other way.

How is it that 4 of the justices arrived at the conclusion that Genarlow Wilson’s punishment was not cruel and unusual punishment? The dissent written by Justice George Carley explains:

(dissent pages 14-16)

[T]oday’s decision is rare because of its unprecedented disregard for the General Assembly’s constitutional authority to make express provision against the giving of any retroactive effect to its legislative lessening of the punishment for criminal offenses. If, notwithstanding a provision such as § 30 (c), the judiciary is permitted to determine that a formerly authorized harsher sentence nevertheless constitutes cruel and unusual punishment, then it necessarily follows that there are no circumstances in which the General Assembly can insulate its subsequent reduction of a criminal sentence from possible retroactive application by courts.

It seems that the main complaint by the court’s minority is that the court usurped the state’s legislative authority; perhaps the minority has a point. Justice Carley cites language from the 2006 bill which plainly states that individuals charged prior to the bill’s effective date of July 1, 2006 would be punished according to the old law (this would include Genarlow Wilson).

Regardless of the legislative intent, this seems unjust. Why should an individual who was charged the day before the law’s effective date be subject to a 10 year sentence while another individual commits the same exact crime one day later be sentenced to perhaps a year? Cruel and unusual punishment is prohibited by both the Georgia State Constitution and the U.S. Constitution. At some point or another, these justices each undertook an oath to defend these constitutions. While the minority can make the case that they upheld their oath by recognizing the separation of powers, the majority could make the argument that they upheld their oaths by their interpretation of what constitutes cruel and unusual punishment despite the intentions of the Georgia Assembly.

As a lay person, I cannot say which side is technically correct; one side is likely in error. But in cases where there is a grey area in the law, judges should err on the side of common sense, liberty, and justice. This is the side the court’s majority came down on.

Wilson is certainly not the only defendant convicted of aggravated child molestation who benefits at the expense of today’s judicial reduction of the General Assembly’s power to legislate. At present, any and all defendants who were ever convicted of aggravated child molestation and sentenced for a felony under circumstances similar to Wilson are, as a matter of law, entitled to be completely discharged from lawful custody even though the General Assembly expressly provided that their status as convicted felons would not be affected by the very statute upon which the majority relies to free them. […] Moreover, nothing in today’s decision limits its application to cases involving minors who engage in voluntary sexual acts. Any defendant who was ever convicted in this state for the commission of any crime for which the sentence was subsequently reduced is now entitled to claim that his harsher sentence, though authorized under the statute in effect at the time it was imposed, has since become cruel and unusual and that, as a consequence, he is not only entitled to the benefit of the more lenient sentence, but should be released entirely from incarceration. […]Accordingly, as a result of this “rare case,” the superior courts should be prepared for a flood of habeas corpus petitions filed by prisoners who seek to be freed from imprisonment because of a subsequent reduction in the applicable sentences for the crimes for which they were convicted.

Others who have been convicted and punished in circumstances similar to that of Genarlow Wilson will seek to overturn their convictions as well? I should hope so! Maybe the minority should think about the overall intent of both the old and the new laws: to protect children from child molesters. How is imprisoning teenagers who engage in sexual acts with other teenagers protecting children? What would be the benefit of registering Genarlow Wilson as a sex offender? As a parent of three small children, I want only the real predators to be registered. I don’t want to look at a neighborhood sex offender map on the internet and wonder which predators are real and which ones made typical bad choices when they were teenagers.

The effect of registering sex offenders (legitimately or not) has other negative consequences as well. Registered sex offenders have difficulty finding employment, housing, and many other freedoms we take for granted. What happens to an individual who cannot find work or a home? The likelihood is s/he engages in other dangerous criminal activity for sustenance such as burglary, drug trafficking, and/or prostitution (the latter 2 should not be crimes and have similar consequences which lead to real crimes).

This isn’t to say that I want to make life easy for genuine sex offenders – far from it. The answer is not the one-size-fits-all mandatory minimum sentencing laws but to punish offenders of each case based on the facts of each case using common sense. If a judge or jury finds that an individual is one who will likely offend again, then there should be no discussions of registration but incarceration. It should be extremely difficult if not impossible for a child molester to ever re-enter society.

Hopefully, this case surrounding Genarlow Wilson will start a discussion around the country about mandatory minimum sentences and the way we have chosen to deal with sex offenders. Its time to take a step back and examine our emotional response to these issues and search for more reasonable policies.

Stephen Littau
http://fpffressminds.blogspot.com/

Saw this one coming

Constitution, Democracy, Dumbasses and Authoritarians, Equal Protection, Federalism, Government Regulation, Individual Rights, Legal, Political Correctness, Politics, Theory and Ideas

So, for the last few years, supporters of gay marriage have pretty much given up on the legislative route; and have been depending on judges to try and impose their agenda on the states.

While I have no problem with the concept of gay marriage (the state should not be involved in religious marriage; and any two people should be able to enter any civil contract they want); if we are in fact a nation of laws, effectively re-writing the laws through judicial activism (and yes, that is very explicitly what is happening) is both morally wrong (because it abrogates the process), and a practical disaster.

Leaving aside the moral argument, we need to address the consequences of living in a federal republic. Although gay marriage advocates have repeatedly insisted that instituting gay marriage on a state by state basis would not cause constitutional and interstate compact issues; anyone with any knowledge of interstate law, or the concept of federalism could see that argument is false on its face. If anyone is interested in getting legal advice on same-sex law consider talking to someone similar to PETERS AND MAY. They have experience working with same-sex marital issues so I hear.

From the first legal same sex marriage in Massachusetts (and to a lesser extent civil unions in Vermont), there have been legal implications in other states. There are issues of marriage licenses in general being honored (full faith and credit), medical insurance, inheritance rights, property rights, medical control, and of course the big one: child custody. There is also the issue of what happens if the couple decides to look into legal separation in Georgia or any other state, due to the fact that different states have their own laws on separation. Once again it is wise to seek out legal counsel if you find yourself in a similar situation, so you can get the right advice for you.

Lawsuits have already been instituted in other states over all of these issues, in particular survivors rights; but ’til now a divorce case hasn’t hit the public eye.

Well, that just changed; and I wish I could say I didn’t see it coming, but I think we all did. All I can say is that a well qualified jacksonville family law attorney will be needed to tackle this case…


Married Gay Couple Seeks Right to Divorce in Rhode Island

Tuesday, October 09, 2007
Associated press

PROVIDENCE, R.I. – A lesbian couple married in Massachusetts should have the same right as heterosexual couples to now divorce in Rhode Island, lawyers for the women told the state’s highest court on Tuesday.

Cassandra Ormiston and Margaret Chambers wed in 2004 soon after Massachusetts legalized same-sex marriages. They filed for divorce last year in their home state of Rhode Island, where the law is silent on whether same-sex marriages are legal.

It is believed to be the state’s first same-sex divorce case.

If the women can’t divorce in Rhode Island, their lawyers said the only legal avenue available to them would be for at least one to move to Massachusetts and live there long enough to obtain a divorce.

“It is an absolutely unfair burden,” Ormiston said outside court after Tuesday’s arguments before the Rhode Island Supreme Court. “It is a burden no one else is asked to bear, and it is something I will not do.”

Lawyers for the women told the Supreme Court the only question to consider was whether Rhode Island could recognize a valid same-sex marriage from another state for the sole purpose of granting a divorce petition.

They stressed the case has no bearing on whether gay couples could get married in Rhode Island, or on whether a same-sex marriage would be recognized for other purposes.

“You have a valid marriage in the state of Massachusetts,” Louis Pulner, an attorney for Chambers, told the justices. “No one is asking the court to address the question of whether such marriages would be valid in Rhode Island.”

In September 2006, a Massachusetts judge decided same-sex couples from Rhode Island could marry in Massachusetts because nothing in Rhode Island law specifically banned gay marriage. But the courts and the legislature in Rhode Island have not taken any action to recognize same-sex marriages performed in Massachusetts.

Attorney General Patrick Lynch earlier this year issued a nonbinding advisory opinion saying the state would recognize same-sex marriages performed in Massachusetts.

Nancy Palmisciano, a lawyer for Ormiston, said Rhode Island routinely treats as valid heterosexual marriages performed in other states and even in other countries. She said when she recently handled the divorce of a couple from China, no one questioned the validity of their marriage certificate issued there.

“Here we have two American women who have not been able to push their divorce forward because they happen to be members of the same sex,” Palmisciano said.

Chambers and Ormiston married in Fall River, Mass., in May 2004 in a ceremony solemnized by a justice of the peace. Massachusetts is the only state to legalize same-sex marriages.

Chambers filed for a divorce last October, citing irreconcilable differences.

Two months later, Rhode Island’s chief family court judge asked the state Supreme Court for guidance on whether he has the authority to handle a same-sex divorce. The court agreed to weigh in and invited Rhode Island’s legislative leaders, governor and state attorney general to submit legal briefs detailing their position.

The justices did not indicate when they would rule.

In this case, the justices are in a bit of a bind; because they can attempt to qualify their ruling all they want by declaring “we’ll give you a divorce, but that doesn’t mean you were ever really married”; but that isn’t going to fly, especially when it comes to divorce. If it’s something they want to do, they may want to get in touch with someone similar to family law solicitors so they can do it within the law and with legal support.

Such a ruling would be ridiculous on its face, and would properly be struck down as arbitrary and capricious. There would be no valid legal principle to cover this tissue thin justification, and it would head to the supreme court as a giant mess.

Tough cases make bad law; and from where I’m sitting, this looks about like 10 year old shoeleather.

Chris Byrne
I am a cynically romantic optimistic pessimist. I am neither liberal, nor conservative. I am a (somewhat disgruntled) muscular minarchist… something like a constructive anarchist.

Basically what that means, is that I believe, all things being equal, responsible adults should be able to do whatever the hell they want to do, so long as nobody’s getting hurt, who isn’t paying extra

http://anarchangel.blogspot.com
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