Category Archives: Legal

Re-post: The Right to Life Also Implies a Right to Die

Civil Liberties, Culture, Government Ethics, Healthcare, Human Rights, Individual Rights, Legal, Liberty, Property Rights, Theory and Ideas

Brittany Maynard says ‘I don’t want to die.’ The 29 year-old is is not unique in her desire for self-preservation as most of us do not want to die. What does make her somewhat more unique is she has tragically been diagnosed with a stage 4 glioblastoma. To put this in laymen’s terms, she has terminal brain cancer which will end her life if nature is allowed to take its course.

Brittany, however; has other plans. She has moved from California to Oregon to take advantage of Oregon’s ‘right to die’ law. Her goal is to live until her husband’s birthday on November 1st. If she lives until November 2nd, Brittany says she wishes to die on her own terms on that day. “I may be alive on Nov. 2 or I may not, and that’s my choice,” Brittany explained.

Back in June of 2007, I wrote a post entitled: The Right to Live Also Implies a Right to Die. I wrote the post in response to Dr. Jack Kevorkian’s release from prison. While I appreciated the gravity of physician assisted suicide then, it was still a bit abstract. Since that time I have seen friends and family members waste away to terminal conditions and it is truly horrifying to witness. I cannot say for sure that any of these friends or family members would have opted to make the same choice as Brittany and others have made but they should have had the choice. The state should not stand in the way of end of life decisions by the person who owns his or her life.

The following is a re-post of the original article I wrote in 2007.

Dr. Jack Kevorkian has finally completed an eight year prison term. For what exactly? For helping a terminally ill and suffering man exercise his right to a have a dignified and peaceful death. I find it very irritating that the media has given Dr. Kevorkian the nickname ‘Dr. Death’ as if he were some kind of serial killer.

Dr. Kevorkian has done our society a great service by bringing this issue into the national debate. On what basis can society deny a person his or her right to die? If we truly believe that every individual has the inalienable rights of life, liberty, and property, then the individual cannot be denied this right on any of these measures.

The individual has the right to life but this does not mean that government can force an individual to live. The individual has the right not to exercise his or her rights. The individual has the right to keep and bear arms but the government cannot force an individual to own a gun. The individual has the right to his or her liberty (provided he or she does not infringe on the liberty of others) but he or she can willfully surrender his or her liberty to be subjugated to a cult or religion. The individual has a right to his or her property (which would include his or her body by the way) which means he or she can do with it whatever he or she wishes (again, provided he or she does not infringe on the life, liberty, or property of others).

Thomas A. Bowden has an excellent piece on this issue at Capitalism Magazine.

The Declaration of Independence proclaimed, for the first time in the history of nations, that each person exists as an end in himself. This basic truth–which finds political expression in the right to life, liberty, and the pursuit of happiness–means, in practical terms, that you need no one’s permission to live, and that no one may forcibly obstruct your efforts to achieve your own personal happiness.

[…]

For these reasons, each individual has the right to decide the hour of his death and to implement that solemn decision as best he can. The choice is his because the life is his. And if a doctor is willing (not forced) to assist in the suicide, based on an objective assessment of his patient’s mental and physical state, the law should not stand in his way.

The fear by those who oppose the inherent right to die is that the government would eventually start killing those who are suffering regardless of the wishes of the individual. But upon closer inspection, recognizing an individual’s right to choose his or her manner of death is protecting the individual’s right to life. The individual does not live for the purpose of pleasing society or the religious sensibilities of others.

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

How ‘Affirmative Consent’ Laws Threaten Due Process

Civil Liberties, Crime and Punishment, Individual Rights, Legal, Sex

A few weeks ago, California Governor Jerry Brown signed into law the nation’s first “affirmative consent” law. When it was proposed back in June, I said the proponents were control freaks. The law essentially says that consent must be given, affirmatively and actively, for each act of a sexual encounter. In other words “yes means yes.” It sounds reasonable enough doesn’t it?

The law has already spread with lawmakers proposing similiar laws across the country. New York Governor Andrew Cuomo implimented the policy at the SUNY system of universities across New York with plans to incorporate it into state law. Lawmakers in Illinois, New Hampshire, and New Jersey have plans to introduce similiar legislation across the country.

While the lawmakers proposing the bills are all Democrats, the laws have found support in unlikely corners, social conservatives and even some libertarians. Townhall.com writer Conn Carroll supports the laws because he wants to discourage the “hookup culture.” Libertarian blogger Kelli Gulite argues that the laws clear up the “ambiguity of the existing consent standards.”

However, while the affirmative consent laws are a well-intentioned attempt to address a problem (rape), they ultimately do more harm than good, especially where civil liberties are concerned. These laws will result in (mostly) young men either being expelled from universities and/or charged with a crime they did not commit.

Here’s some reasons why affirmative consent laws are not the way to go:

1) Sets us on the road to “precrime”. One of the lawmakers proposing these laws for their state, N.H. State Rep. Renny Cushing state this “We need to change the dialogue and we need to start talking about prevention rather than have a legal concern about whether or not someone was capable of giving their consent.”

I’ve heard that before somewhere:

These laws will no more prevent rape than laws against hate speech will prevent murder.

2) It eliminates the presumption of innocence. The laws state that someone is guilty of rape if there was no yes. This will force the defendant to have to prove that there was a yes. That forces the burden of proof on the defendant, not the state and the university. The only logical way for a potential defendant to protect themselves from a rape allegation is to record the sexual encounter or some kind of proof that the encounter was explicitly consentual.

In other words, we’re right back to the problem these laws were trying to prevent “he said vs she said.” Under the reasonable doubt standard, that’s clearly not enough evidence on its own to force a conviction. However, in a campus proceding or a civil lawsuit, there is no reasonable doubt but only preponderance of evidence.

These laws codify the process of the campus-based procedings which have been criticized as essentially kangaroo courts that threaten the rights of the accused.

3) It will lead to the prosecution of boorish behavior and bad sex as rape. In her defense of these laws, Gulite wrote:

The best way to show why affirmative consent is a better standard than previous standards is through an example. Two students agree to have vaginal intercourse, but without warning or asking permission, the male student begins to have anal intercourse. Of course, the female could say no immediately after taking a few seconds to register what happened and the male could oblige. However, the sexual assault has already occurred.

Under the affirmative consent standard, the victim has recourse. Without it, she does not. (emphasis hers)

Perhaps I’m a caveman, but I fail to see a case for disciplining, suspending, or expelling the young man; let alone having him arrested and subjected to the legal process for essentially an act of boorish behavior. This particular example looks like something that should be best handled between the two of them without involving the university or the authorities.

If this woman has recourse under this example under affirmative consent, what about bad sex in general? Or if a woman regrets a sexual encounter the next day? We know false rape accusations happen, even if we don’t know what the exact percentage is. I’m not quite sure what the cultural changes this law will bring. I fear this standard will increase the number of false accusations, though many of these may just be a case of confusion over the law. A different kind of change that may come from this law is that more men and women are drawing towards the likes of a sex doll as there is no confusion on the law when it comes to something like that. Perhaps what we need to do is simply educate men and women in how to be responsible in a sexual encounter. That could lead to less confusion on consent and the amount of accusations.

The road to the loss of liberties, is often paved with good intentions. The affirmative consent standards are an excellent example of this. We should resist the urge to “just do something” to address sexual assault at colleges. We should also resist using the government to impose our own personal morality. All those will do is just lead to erosion of more liberties.

 

Kevin Boyd
I’m one of the original co-founders of The Liberty Papers all the way back in 2005. Since then, I wound up doing this blogging thing professionally. Now I’m running the site now. You can find my other work at The Hayride.com and Rare. You can also find me over at the R Street Institute.
https://thelibertypapers.org/2005/11/22/a-bit-about-kevin/
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“Bad” or “Wrong” or “I don’t like it” is not equivalent to “Unconstitutional”

Commerce Clause, Constitution, Corruption, Dumbasses and Authoritarians, Federal Reserve, Federalism, Freedom, Government Incompetence, Government Regulation, Keep and Bear Arms, Legal, Liberty, Separation Of Powers, The War on Drugs, Theory and Ideas

In a comment on someone elses post, another reader wrote “The DEA is an unconstitutional and illegal agency”.

This bugs me… We frequently see these sorts of statements made about the DEA, the ATF, the federal reserve (where ok, there’s at least a rational and reasonable though flawed argument to be made… most of the people shouting stuff like that above aren’t making those arguments, but still)… Basically any federal agency that they don’t like, or which enforces laws, or uses delegated powers which they personally don’t like.

No, the mere existence of the DEA is not unconstitutional or illegal. It is perfectly constitutional in that it is an executive agency chartered to enforce the laws promulgated by the legislative branch.

The fact that the federal government has no constitutional authority to outright ban or criminalize such substances as the DEA is chartered to regulate, or to ban or criminalize their manufacture, use, or possession (and only limited power to regulate their sale. No, sorry, regulating interstate commerce and making such laws as necessary for the general welfare does not grant them such broad and deterministic powers… and Wickard v. Filburn is bad law and needs to be overturned), does not mean that all laws relating to such substances are illegal or unconstitutional. There are legitimate regulatory powers that such an agency may lawfully and constitutionally exercise.

AS CURRENTLY EXTANT AND IN THEIR CURRENT ROLES AND ACTIONS… The DEA often engages in unconstitutional behaviors, and acts to enforce unconstitutional laws. That much is certainly true. But they are not inherently unconstitutional, or illegal.

Those are actually really important distinctions. Not just semantics or distinctions without difference.

This is so, because you go about addressing the issues, and solving the problems, differently. Things which are blatantly and directly illegal or unconstitutional are best addressed in one way. Things which are peripherally so, are best addressed in a very different way.

You have to shoot at the proper target, with the proper ammunition.

Also, it’s really important to remember, that “bad and stupid” or “harmful” or “undesirable”, or “pointless”; does not necessarily mean “unconstitutional”. Nor does “constitutional” mean “good”, or “useful” or “effective”.

That’s not even a matter of judges discretion or interpretation… The constitution actually provides far less protection of rights, and limitation of powers, than people believe it, expect it, and wish it to (at least explicitly… the 9th and 10th amendments… there’s much bigger and messier issue).

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

Armed Customer Kills Armed Robber; Family of Robber May File Lawsuit

Crime and Punishment, Dumbasses and Authoritarians, Hubris, Keep and Bear Arms

In January of 2012, two armed thugs entered a Waffle House in Chesnee, SC. One thing these thugs didn’t account for: the possibility that one or more of the customers might be carrying a concealed handgun. One customer by the name of Justin Harrison saw his opening to act and fired several shots at one of the thugs Dante Williams, DRT.* The other thug, unfortunately, escaped with his life (he’s now the taxpayers’ problem for the next 30 years).  

Tamika McSwain, cousin of Dante Williams, is upset that Harrison “took the law into his own hands”** and that charges were not filed against Harrison for doing so. Due to this perceived miscarriage of justice, McSwain says the family might file a lawsuit. McSwain also contends that more training should be required before someone earns their CWP. Harrison’s CWP instructor David Blanton, however; disagrees.

“Not only was he defending his own life, which the law says he can do [***] but there were other people in the restaurant,” Blanton said.

Harrison, in defending his own actions said “They got the gun, he [Williams] picked it up. He could have said no.”

And that’s the bottom damn line, Tamika: your dirt bag cousin could have said no. Your cousin made a very bad choice and he paid with his life.

Let me further say, I really don’t give a rat’s ass how “sharp” or “goofy” or how much he “loved to dance” or that you think he was “a respectable boy.” On that night at least, he was a thug. A thug who deserved to die. People like your thug cousin are the reason why we need to have the right to carry weapons in public places. I wish people like your cousin didn’t exist at all. In a world without people like your cousin, we could beat all the guns in the world into plow shears. But as long as we do have people in this world like your cousin, we will need guns and people willing to use them to defend the rest of us.

*Dead Right There

**This phrase drives me crazy. The law is always “in our own hands” particularly in a threatening situation like this one.

***Isn’t that so nice of the law to allow individuals to protect their own lives!

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

One Out of 25 Prisoners on Death Row is Innocent

Crime and Punishment, Criminal Justice Reform, Culture, Death Penalty, Government Incompetence, Human Rights, Legal

Benjamin Franklin once argued: “It is better 100 guilty persons should escape than that one innocent person should suffer.” The purpose of courts as drafted in the Constitution was to minimize the occurrences innocent people from “suffering” via an adversarial system in which the accused is considered innocent until proven guilty to a jury of his or her peers.

Regardless of these lofty goals, the question must be asked: how well has this system worked?

If the standard is that of Franklin’s (i.e. less than 1%), then the idea that a rate of 1 in 25 death row convicts are likely innocent is clearly unacceptable. According to a study by the National Academy of Sciences, to the best the researchers were able to determine, this about what the rate is. If you feel that you are grieving as a result of wrongful death, contact Bill Berenson Injury Law.

Pete Yost for the Associated Press reports:

From 1973 to 2004, 1.6 percent of those sentenced to death in the U.S. – 138 prisoners – were exonerated and released because of innocence.

But the great majority of innocent people who are sentenced to death are never identified and freed, says professor Samuel Gross of the University of Michigan Law School, the study’s lead author.

The difficulty in identifying innocent inmates stems from the fact that more than 60 percent of prisoners in death penalty cases ultimately are removed from death row and resentenced to life imprisonment. Once that happens, their cases no longer receive the exhaustive reviews that the legal system provides for those on death row.
[…]
Because of various assumptions, it might be best to use the margin of error in the study and say the innocence rate is probably between 2.8 percent and 5.2 percent, said University of South Carolina statistics professor John Grego, who wasn’t part of the study.
[…]
“The high rate of exoneration among death-sentenced defendants appears to be driven by the threat of execution,” says the study. “But most death-sentenced defendants are removed from death row and resentenced to life imprisonment, after which the likelihood of exoneration drops sharply.” The study estimates that if all defendants sentenced to death remained in that status, “at least 4.1 percent would be exonerated. We conclude that this is a conservative estimate of the proportion of false conviction among death sentences in the United States.”

I have to say that, even as a fierce opponent of the death penalty, I would have never guessed the number of innocent individuals on death row to be this high. I was horrified by the notion that 1 in 100 or even 1 in 1,000 such individuals could be killed by the state, but 1 in 25?

This brings me to my question for those who support state sanctioned killing: is this an acceptable error rate to you? How many innocent people are we willing to sacrifice in order to kill the most heinous of individuals? Based on this study, the current policy is that we are apparently at peace with the idea of killing 4 innocent people to kill 96 guilty.

This is a price that a free and just country should be unwilling to pay. Yet it is a reality for many people who are falsely convicted and find themselves on death row, with many hoping that their appeals attorneys would be able to have their convictions exonerated.

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