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Federal Agencies Fail to Report Hate Crimes to FBI as Mandated

In violation of a longstanding legal mandate, scores of federal law enforcement agencies are failing to submit statistics to the FBI’s national hate crimes database, ProPublica has learned.

The lack of participation by federal law enforcement represents a significant and largely unknown flaw in the database, which is supposed to be the nation’s most comprehensive source of information on hate crimes. The database is maintained by the FBI’s Criminal Justice Information Services Division, which uses it to tabulate the number of alleged hate crimes occurring around the nation each year.

The FBI has identified at least 120 federal agencies that aren’t uploading information to the database, according to Amy Blasher, a unit chief at the CJIS Division, an arm of the bureau that is overseeing the modernization of its information systems.

The federal government operates a vast array of law enforcement agencies — ranging from Customs and Border Protection to the Drug Enforcement Administration to the Amtrak Police — employing more than 120,000 law enforcement officers with arrest powers. The FBI would not say which agencies have declined to participate in the program, but the bureau’s annual tally of hate crimes statistics does not include any offenses handled by federal law enforcement. Indeed, the problem is so widespread that the FBI itself isn’t submitting the hate crimes it investigates to its own database.

“We truly don’t understand what’s happening with crime in the U.S. without the federal component,” Blasher said in an interview.

At present, the bulk of the information in the database is supplied by state and local police departments. In 2015, the database tracked more than 5,580 alleged hate crime incidents, including 257 targeting Muslims, an upward surge of 67 percent from the previous year. (The Bureau hasn’t released 2016 or 2017 statistics yet.)

But it’s long been clear that hundreds of local police departments don’t send data to the FBI, and so given the added lack of participation by federal law enforcement, the true numbers for 2015 are likely to be significantly higher.

A federal law, the 1988 Uniform Federal Crime Reporting Act, requires all U.S. government law enforcement agencies to send a wide variety of crime data to the FBI. Two years later, after the passage of another law, the bureau began collecting data about “crimes that manifest evidence of prejudice based on race, religion, disability, sexual orientation, or ethnicity.” That was later expanded to include gender and gender identity.

The federal agencies that are not submitting data are violating the law, Blasher told us. She said she’s in contact with about 20 agencies and is hopeful that some will start participating, but added that there is no firm timeline for that to happen.

“Honestly, we don’t know how long it will take,”Blasher said of the effort to get federal agencies on board.

The issue goes far beyond hate crimes — federal agencies are failing to report a whole range of crime statistics, Blasher conceded. But hate crimes, and the lack of reliable data concerning them have been of intense interest amid the country’s highly polarized and volatile political environment.

ProPublica contacted several federal agencies seeking an explanation. A spokesperson for the Army’s Criminal Investigation Command, which handles close to 50,000 offenses annually, said the service is adhering to Defense Department rules regarding crime data and is using a digital crime tracking system linked to the FBI’s database. But the Army declined to say whether its statistics are actually being sent to the FBI, referring that question up the chain of command to the Department of Defense.

In 2014, an internal probe conducted by Defense Department investigators found that the “DoD is not reporting criminal incident data to the Federal Bureau of Investigation (FBI) for inclusion in the annual Uniform Crime Reports.”

ProPublica contacted the Defense Department for clarification and shared with a department spokesman a copy of the 2014 reports acknowledging the failure to send data to the FBI.

“We have no additional information at this time,” said Christopher Sherwood, the spokesman.

Federal agencies are hardly the only ones to skip out on reporting hate crimes. An Associated Press investigation last year found at least 2,700 city police and county sheriff’s departments that repeatedly failed to report hate crimes to the FBI.

In the case of the FBI itself, Blasher said the issue is largely technological: Agents have long collected huge amounts of information about alleged hate crimes, but don’t have a digital system to easily input that information to the database, which is administered by staff at an FBI complex in Clarksburg, West Virginia.

Since Blasher began pushing to modernize the FBI’s data systems, the Bureau has made some progress. It began compiling some limited hate crimes statistics for 2014 and 2015, though that information didn’t go into the national hate crimes database.

In Washington, lawmakers were surprised to learn about the failure by federal agencies to abide by the law.

“It’s fascinating and very disturbing,” said Rep. Don Beyer, D-Va., who said he wanted to speak about the matter with the FBI’s government affairs team. He wants to see federal agencies “reporting hate crimes as soon as possible.”

Beyer and other lawmakers have been working in recent years to improve the numbers of local police agencies participating in voluntary hate crime reporting efforts. Bills pending in Congress would give out grants to police forces to upgrade their computer systems; in exchange, the departments would begin uploading hate crime data to the FBI.

Beyer, who is sponsoring the House bill, titled the National Opposition to Hate, Assault, and Threats to Equality Act, said he would consider drafting new legislation to improve hate crimes reporting by federal agencies or try to build such a provision into the appropriations bill.

“The federal government needs to lead by example. It’s not easy to ask local and state governments to submit their data if these 120 federal agencies aren’t even submitting hate crimes data to the database,” Beyer said.

In the Senate, Democrat Al Franken of Minnesota said the federal agencies need to do better. “I’ve long urged the FBI and the Department of Justice to improve the tracking and reporting of hate crimes by state and local law enforcement agencies,” Franken told ProPublica. “But in order to make sure we understand the full scope of the problem, the federal government must also do its part to ensure that we have accurate and trustworthy data.”

Virginia’s Barbara Comstock, a House Republican who authored a resolution in April urging the “Department of Justice (DOJ) and other federal agencies to work to improve the reporting of hate crimes,” did not respond to requests for comment.

By: A.C. Thompson and Ken Schwencke

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If We Step Up the Drug War, You’ll Be a Victim

What word best describes the War on Drugs? Inane? Lunacy? Indecent? Harmful? Thuggery?

The right answer is All of the Above. Politicians have ruined lives and wasted money in a futile campaign to stop people from recreational drug use.

It may be true that people who use drugs are being stupid. Or even immoral. But the key thing to understand is that it’s a victimless crime.

Actually, that’s not true, there are victims. They’re called taxpayers, who have to finance the government’s drug war. And there are secondary victims thanks to bad laws (dealing with asset forfeiture and money laundering) that only exist because of the drug war.

Speaking of which, here’s another horror story from the drug war:

A report by the Justice Department Inspector General released Wednesday found that the DEA’s gargantuan amount of cash seizures often didn’t relate to any ongoing criminal investigations, and 82 percent of seizures it reviewed ended up being settled administratively—that is, without any judicial review—raising civil liberties concerns … the Inspector General reports the DEA seized $4.15 billion in cash since 2007, accounting for 80 percent of all Justice Department cash seizures.

Here’s the jaw-dropping part of the story:

… $3.2 billion of those seizures were never connected to any criminal charges.

In other words, the government took people’s money even if they weren’t charged with a crime, much less convicted of a crime.

Drug users also can be victims. Heck, sometimes people are victims even if they’re not users, as we see from this great moment in the drug war:

“They thought they had the biggest bust in Harris County,” Ross LeBeau said. “This was the bust of the year for them.” A traffic stop in early December led to the discovery of almost half a pound of what deputies believed to be methamphetamine. The deputies arrested LeBeau and sent out a press release, including a mug shot, describing the bust. According to authorities, the arrest was due to deputies finding a sock filled with what they believed to be methamphetamine … After the arrest, LeBeau was fingerprinted and booked into a jail where he spent three days before being released. The problem came after two field tests, performed by deputies, came back positive for meth. Later a third test was conducted by the county’s forensic lab which revealed that the kitty litter was not a controlled substance. The case was later dismissed.

And more bad things like this are probably going to happen because the Justice Department now wants a more punitive approach to victimless crimes.

C.J. Ciaramella of Reason reports on the grim details:

Attorney General Jeff Sessions ordered federal prosecutors to seek the toughest charges and maximum possible sentences available, reversing an Obama-era policy that sought to avoid mandatory minimum sentences for certain low-level drug crimes … the overall message is clear: Federal prosecutors have the green light to go hard after any and all drug offenses … The shift marks the first significant return by the Trump administration to the drug war policies that the Obama administration tried to moderate. In 2013, former Attorney General Eric Holder ordered federal prosecutors to avoid charging certain low-level offenders with drug charges that triggered long mandatory sentences. The federal prison population dropped for the first time in three decades in 2014, and has continued to fall since.

Some Republicans are unhappy about this return to draconian policies:

“Mandatory minimum sentences have unfairly and disproportionately incarcerated too many minorities for too long,” Sen. Rand Paul (R-KY) said in a statement. “Attorney General Sessions’ new policy will accentuate that injustice … Sen. Mike Lee (R-UT), although he did not directly criticize Sessions, wrote in a tweet Friday morning that “to be tough on crime we have to be smart on crime. That is why criminal justice reform is a conservative issue.”

For what it’s worth, Sessions isn’t the only one who deserves blame:

While it’s easy to point the finger at Sessions … Congress ultimately passed the laws the Justice Department is tasked with enforcing. Lawmakers in Congress had a golden window of opportunity over the past three years to revise federal sentencing laws—with bipartisan winds at their back and a friendly administration in White House—and failed miserably.

And there is a tiny bit of good news:

… the Office of National Drug Control Policy … Trump plans to reduce the agency’s budget by 95 percent … there are plenty of actual harm reduction advocates who would be happy to see the agency close up shop.

Though don’t get too excited:

… you know what federal agency with drug policy ramifications is not dormant? The Justice Department … In the grand scheme of the drug war, who might occupy the ONDCP’s bully pulpit matters less than the army Sessions is building.

So don’t hold your breath waiting for better policy.

Here’s another reason why the war on pot is so absurd. As reported by the Daily Caller, people without access to marijuana are more likely to get in trouble with opioids:

Opioids continue to claim 91 lives a day across the U.S., but new research shows medical marijuana programs are drastically cutting down on rates of painkiller abuse. Research from the Journal of the American Medical Association is adding to a growing body of evidence showing states with medical marijuana programs have lower rates of opioid related overdoses. Patients who are offered pot as an alternative treatment for chronic conditions are increasingly shifting off their prescription opioids entirely, reports WLBZ. The researchers found states with medical marijuana programs in 2014 had an opioid overdose rate roughly 25 percent lower than the national average.

Last but not least, an article in Reason explains how greedy politicians are undermining the otherwise successful pot legalization in Colorado:

Colorado … voters legalized recreational marijuana in 2012, transforming the popular stuff from a prohibited vice to a substance that could be produced, bought and sold without the hassle of hiding dealings from the authorities and the fear of arrest for voluntary transactions. Yet the marijuana black market is still going strong over four years later, with many sellers and customers willing to take a chance on legal consequences rather than make a risk-free deal … the driving force behind the black market … is taxes so sky high and regulations so burdensome that they make legal pot uncompetitive. “An ounce of pot on the black market can cost as little as 180 dollars,” according to PBS correspondent Rick Karr. “At the store Andy Williams owns, you have to pay around 240 dollars for an ounce. That’s partly because the price includes a 15 percent excise tax, a 10 percent marijuana tax, the state sales tax, and Denver’s marijuana sales tax.” Colorado also piles on expensive regulatory requirements to get a license.

This is not a surprise.

I wrote back in 2015 that the tax burden was excessive.

Indeed, I even wondered if legalization in Colorado was a good thing if the net result was a big pile of tax revenue that could be used to expand government.

The libertarian part of me says Colorado made the right decision, though the fiscal economist part of me definitely sees a downside.

And that downside may become an even bigger downer:

Governor John Hickenlooper wants to increase the marijuana sales tax from 10 percent to 12 percent. “It seems kind of odd that at the same time they’re trying to do something about the black and gray markets they’re going to ratchet up the taxes and drive more people to the black and gray markets,” state Sen. Pat Steadman (D-Denver) commented.

P.S. I wonder if Senator Steadman realizes he just embraced the Laffer Curve?

P.P.S. It’s worth noting that voices as diverse as John Stossel, Mona Charen, Gary Johnson, Pat Robertson, Cory Booker, John McCain, and Richard Branson all agree that it’s time to rethink marijuana prohibition.

Daniel J. Mitchell


Daniel J. Mitchell

Daniel J. Mitchell is a senior fellow at the Cato Institute who specializes in fiscal policy, particularly tax reform, international tax competition, and the economic burden of government spending. He also serves on the editorial board of the Cayman Financial Review.

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Indiana Used Stolen Funds to Pay Law Enforcement

There is a very clear reason as to why law enforcement has so diligently defended the routine use of civil asset forfeiture: it’s extremely profitable.

A recent federal audit of Indiana law enforcement agencies has shown just how beneficial this practice has been to its officers by revealing that the state used more than $400,000 of seized assets to pay for salaries, “fringe” benefits, and overtime pay.

This controversial practice has earned the nickname policing for profit.As lax as the federal guidelines on asset forfeiture are, using seized funds to pay for personnel is strictly prohibited. But that didn’t stop Indiana law enforcement from finding creative ways to move the money around.  

Policing for Profit

The controversial legal tool of asset forfeiture allows police officers and other law enforcement entities to seize money and physical property from anyone suspected of wrongdoing.

Unfortunately, as the Drug War and the War on Terror have both escalated over the last decade, national security has trumped liberty and the threshold for determining suspicious behavior has been lowered to include just about anyone.

Conveniently enough, routine traffic stops now frequently turn into “suspicious” situations as soon as the officer on the scene discovers that the driver is carrying large amounts of cash. This is precisely why the practice earned the nickname policing for profit. Since officers are “entitled” to keep a portion of the spoils, there are very few safeguards in place to protect innocent people from becoming victims of institutionalized highway robbery.

Officers of the law are profiting from the theft of innocent Americans.While many states have been successful in placing limitations on this practice over the years, the federal Equitable Sharing Program provides a loophole, allowing state law enforcement to act on behalf of the federal government, in exchange for a cut of the forfeited property, which is usually around 80 percent.

It was this same federal asset forfeiture program that allowed Indiana law enforcement to pay its officers with stolen money.

The Innocent Pay the Price

According to the federal guidelines on the Equitable Sharing Program, state agencies are prohibited from using forfeited funds to pay personnel costs “so that the prospect of receiving equitable sharing funds does not influence, or appear to influence, law enforcement decisions.”

This makes perfect sense; after all, it would be unjust to give officers incentive to accuse innocent people of criminal acts, since they stand to directly benefit from the situation.

While this safeguard may seem like a solid checks-and-balances system on paper, it hasn’t done much to stop local departments from using the money at their own discretion, which has often meant using it to pay for its officers’ salaries.

The federal guidelines do allow for one exception to the salary rule, however: if the funds are used to pay for the wages of an officer who has stepped in to replace a vacancy left by another officer leaving to join a special task force.

While this was true of an officer in Henry County, Indiana, the department had been using forfeited funds to pay the replacement over $40,000 more than the officer he was replacing. Since the base salary was, in fact, “allowable” or under the federal guidelines, the Inspector General only marked the extra $40,000 as “unallowable” on the part of Henry County.

Civil asset forfeiture will always be ripe for abuse.However, a recent Washington Post investigation found that 81 percent of those who have had money or property stolen through asset forfeiture have never actually been charged with a crime. Considering this, it is appalling that law enforcement is using this money to fund even a cent of their personnel costs at the expense of innocent bystanders.

No matter how the federal guidelines are framed to prevent abuse, at the end of the day officers of the law are profiting from the theft of American people, many of whom will never get their day in court because there were never any official charges filed.

In addition to the overpaid officer, the Inspector General found $165,000 of “unallowable” expenses within the state’s expenditures. This included an instance in Richmond County, where a $91,000 salary was being funded solely by forfeited funds. Henry County, as it turns out, had transferred around $380,000 to other departments and counties. Richmond was just one of several recipients.

Unfortunately, this federal program is not likely to go away anytime soon. Trump’s nominee for Attorney General, Jeff Sessions has been a huge advocate for this program which he believes to be integral to maintaining domestic law and order.

However, as Indiana’s audit has demonstrated, civil asset forfeiture will always be ripe for abuse because the entire system relies on incentivizing police officers to steal from those they have sworn an oath to protect.

Brittany Hunter


Brittany Hunter

Brittany Hunter is an associate editor at FEE. Brittany studied political science at Utah Valley University with a minor in Constitutional studies.

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Republicans Reach Out to Sessions in Support of Cannabis

Attorney General Jeff Sessions put recreational cannabis states on edge with his recent comments on the Schedule 1 substance, spurring Republican lawmakers to come to the defense of states’ rights in a big way.

Colorado State Attorney General extends an invitation to Sessions to head out West, to show him what an adult-use state really looks like.

In a recent morning meeting with Sessions, Colorado Attorney General Cynthia Coffman says she offered him an insider’s look at how a successful recreational cannabis industry is currently operating.

Coffman, a Republican, told The Denver Post, “I thought it was important to come to the states that have legalized marijuana, particularly Colorado since we have the longest history, and to see what we have done.”

Colorado boasts the oldest recreational cannabis industry, and the highest sales. State revenue and tax division data reveal that Colorado sold a billion dollars’ worth of the plant in the first ten months of 2016 alone.

Coffman was in Washington, D.C. for a meeting of the National Association of Attorneys General.

“They indicated an interest in doing that,” she said.

The invite comes days after the newly confirmed Attorney General had the following to say about cannabis to reporters, at the Department of Justice:

“I’m definitely not a fan of expanded use of marijuana,” he said. “States they can pass the laws they choose. I would just say it does remain a violation of federal law to distribute marijuana throughout any place in the United States, whether a state legalizes it or not.”

His words have most of the cannabis industry worried, but Senators like Rand Paul (R-KY) and Cory Gardner (R-CO) say they have been assured that Sessions’ will leave it up to the states.

“He told me he would have some respect for states’ right on these things,” says Sen. Paul, “And so I’ll be very unhappy if the federal government decides to go into Colorado and Washington and all of these places. And that’s not the [what] my interpretation of my conversation with him was. That this wasn’t his intention,” reports Politico.

As far as Sen. Gardner is concerned, following the comments from the Trump cabinet, “Nothing at this point has changed.”

Gardner adds, “He was talking about if there’s cartels involved in illegal operations, they’re going to crack down on that,” reports Politico. “That’s what everybody’s saying. I still haven’t heard Jeff Sessions say that there’s a big policy change coming. We obviously want to make sure we’re clear on what they’ve said.”

Alaska’s Republican Senator, Lisa Murkowski, remains cautiously optimistic. She says, “It’s probably a little premature to try to predict what may or may not be coming out of the administration on this, so I think we just need to sit back and see.”

Senators Murkowski and Elizabeth Warren (D-MA) just submitted a letter to Attorney General Sessions, in which they ask the Trump administration to uphold the Cole memo to allow state-legal cannabis programs, as did Obama.

The letter reads, “We respectfully request that you uphold the DOJ’s existing policy regarding states that have implemented strong and effective regulations for recreational marijuana use.”

By Chloe Sommers for The Marijuana Times

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BREAKING NEWS: President Donald Trump replaces Acting Attorney General Sally Yates with Dana Boente.

Acting Attorney General Yates had instructed lawyers in the Justice Department not to defend legal objections to Trump’s executive order on refugees and immigration. Yates was a holdover from the Obama administration. Boente is the, U.S. Attorney for the Eastern District of Virginia. She will hold the post until the confirmation of an attorney general, which is pending. Alabama Sen. Jeff Sessions is the nominee.

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BREAKING – Acting Justice Department Chief Sally Yates won’t Defend Trump Immigration Order in Court Actions

The acting chief of the Justice Department has instructed lawyers there not to defend President Donald Trump’s executive order restricting immigration in the name of national security.

Acting Attorney General Sally Yates, who was the No. 2 official at the department before Trump’s swearing-in and has been running the department since that time, sent a memo saying she doubts the wisdom and the legality of the directive.

“My responsibility is to ensure that the position of the Department of Justice is not only legally defensible, but is informed by our best view of what the law is after consideration of all the facts. In addition, I am responsible for ensuring that the positions we take in court remain consistent with this institution’s solemn obligation to always seek justice and stand for what is right,” Yates wrote in a memo released by the department. “At present, I am not convinced that the defense of the Executive Order is consistent with these responsibilitie,s nor am I convinced that the Executive Order is lawful.”

The memo clearly puts Yates at risk of being fired by Trump, who has that authority. However, that could disrupt other department operations, including surveillance aimed at suspected terrorists.

Yates’ order leaves the government with no authorized courtroom representation in several lawsuits and dozens of other court actions challenging Trump’s order and the way it was carried out by immigration authorities.

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DOJ Supports Lawsuit to End Juvenile Solitary Confinement

SYRACUSE, N.Y. – The U.S. Justice Department has submitted a “statement of interest” in a lawsuit seeking to end the solitary confinement of juveniles in a New York jail.

The lawsuit, filed by the New York Civil Liberties Union and Legal Services of Central New York, challenges the ongoing practice at the Onondaga County Justice Center in Syracuse of holding 16- and 17-year-olds in isolation.

NYCLU staff attorney Phil Desgranges said the statement of interest cites numerous court rulings that have found the solitary confinement of juveniles for short periods of time to be unconstitutional.

“The federal government also looked at the bevy of Supreme Court cases that have found juveniles to be constitutionally different than adults, and also noted that juveniles are much more susceptible to psychological damage as a result of being in solitary than adults,” Desgranges said.

In December, the NYCLU requested that the court issue an expedited order which, if granted, would require the jail to remove children from solitary confinement.

According to Desgranges, the juveniles are often placed in solitary cells next to adults who threaten them with assault, sexual harassment or other abuse. He said the vast majority are being held simply because they could not afford to pay bail.

“Despite the fact that they’re not convicted of a crime, these kids are punished on what we believe to be an unconstitutional basis, placed in solitary and deprived of any meaningful human interaction,” he said.

The children in solitary at the jail are also not receiving legally-mandated educational services.

The federal government is not a party to the lawsuit, and Desgranges said that is an indication of the significance the outcome of this case may have.

“The fact that the federal government has weighed in here, we think, shows the importance not only for this jurisdiction but for other jurisdictions around the country that they need to end these practices for juveniles,” Desgranges said.

Both the federal government and New York state have ended the practice of holding juveniles in solitary confinement.

More information is online at nyclu.org.

Andrea Sears, Public News Service – NY

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Obama Puts ‘Progressive Goals’ Before Due Process

On Jan. 5, President Barack Obama published in the Harvard Law Review a 56-page commentary expressing his personal views on criminal law and justice, entitled “The President’s Role in Advancing Criminal Justice Reform.”

The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion.

One glaring omission stands out: The article all but forgets the crucial need for mens rea (latin for “guilty mind”) reform to reverse the erosion of due process in federal criminal law. Thus, the commentary ignores the erosion of due process protections that are supposed to be afforded to honest Americans when it comes to enforcing criminal laws.

Mens rea is the fundamental principle that distinguishes between an accident and a crime.

In his expansive commentary, Obama briefly mentions that there are “important structural and prudential constraints on how the president can directly influence criminal enforcement.” But it omits mens rea as one constraint on the executive power to enforce the criminal law.

On the importance of this rule of criminal law, the United States Supreme Court said in Morissette v. United States (1952): “The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion.”

Far from it. The court continued, it “is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil.”

In his commentary, Obama only mentions mens rea once (and in a footnote at that), calling it a “proposal … that could undermine public safety and harm progressive goals.”

Obama could not be more mistaken on the role for mens rea in our criminal justice system.

As I have previously written, “mens rea safeguards everyone equally from unwarranted prosecution—from drug offenses (McFadden v. United States, 2015) to white-collar crime (see the FBI’s email investigation of Hillary Clinton).”

However, Congress and federal agencies “routinely produce criminal laws and regulations with weak or no intent standards,” sometimes deliberately and sometimes by simple omission.

These provisions may have proven to be an efficient and effective way to enforce “progressive goals,” as Obama puts it, but they often end up criminalizing conduct that no reasonable person would have assumed was immoral or illegal. Honest, otherwise law-abiding citizens have paid the price in the form of criminal prosecutions for morally innocent accidents and mistakes.

The federal prosecution of Lawrence Lewis is an excellent example. Lewis worked his way out of poverty whereas his three older brothers were murdered.

Lewis never intended to commit a crime but he nevertheless felt compelled to plead guilty.

After working during the day and taking classes at night, he became the chief engineer at the Knollwood military retirement center. He enjoyed his work and was able to take care of his elderly mother and two daughters.

The Knollwood center had a recurring sewage backup problem that cost Lewis dearly. Like his predecessors, Lewis would reroute backed up sewage into a storm drain, as he had been instructed to do, believing that it flowed into a municipal sewage treatment facility.

Unbeknownst to Lewis, however, the drain runs into a creek that flows into the Potomac River. The Clean Water Act makes any negligent discharge of sewage without a permit into the waters of the United States—which includes the creek and the Potomac River—a federal crime.

Lewis never intended to commit a crime—in fact, he thought what he was doing what was entirely proper—but he nevertheless felt compelled to plead guilty to a misdemeanor offense as part of a plea bargain to avoid a felony conviction and possible jail sentence.

When someone on a bus chartered by the Democratic National Committee to campaign for Clinton also dumped sewage into a storm drain, a committee spokesperson said that it “was an honest mistake and we apologize … We were unaware of any possible violations.”

So far, it appears that no one from the Democratic National Committee faced the same consequences that Lewis faced.

Manhattan Institute scholars James Copland and Rafael Mangual noted that in “a cruel irony,” the Obama administration “scuttled” criminal justice efforts because it opposed mens rea reform, which would afford “ordinary people” like Lewis “the same defense” afforded politically favored parties like the Democratic National Committee.

In 2014, the two moderate states of Ohio and Michigan both enacted mens rea reform in order to address this breakdown in the rule of law. In the last Congress, Rep. James Sensenbrenner Jr., R-Wis., and Sen. Orrin G. Hatch, R-Utah, introduced mens rea reform bills.

The current Congress should continue their work to enact a much-needed default mens rea provision that puts the rule of law above politics.

Obama’s disdain for mens rea reform reveals his preference for the “less desirable” legal system that Murphy warned against.

In his dissent in the seminal case of United States v. Dotterweich (1943), decided by a 5-4 vote, Supreme Court Justice Frank Murphy wrote that “a blind resort to ‘the good sense of prosecutors’” to define crime without a clear mens rea standard “is precisely what our constitutional system sought to avoid. Reliance on the legislature to defin[e] crimes,” Murphy continued, is what “distinguishes our form of jurisprudence from certain less desirable ones.”

Murphy warned that the “legislative power to restrain the liberty and to imperil the good reputation of citizens must not rest upon the variable attitudes and opinions of those charged with the duties of interpreting and enforcing the mandates of the law.”

Obama’s disdain for mens rea reform reveals his preference for the “less desirable” legal system that Murphy warned against, which allows him to more efficiently achieve his “progressive goals” without the meaningful protection against injustice that mens rea provides.

Contrary to Obama’s view, mens rea reform would improve the criminal justice system for everyone.

John-Michael Seibler


John-Michael Seibler

This article was originally published on FEE.org. Read the original article.

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NAACP protesters are arrested during sit-in to protest Sessions’ nomination for attorney general

Six protesters were arrested Tuesday evening during a sit-in staged by the NAACP to protest Donald Trump’s decision to nominate Jeff Sessions as attorney general.

Among those arrested were NAACP President Cornell Brooks and Alabama NAACP state conference president Bernard Simelton, report the New York Times, ABC News, CNN and the Washington Post. The group was protesting at Sessions’ office in Mobile, Alabama, and will be charged with criminal trespass in the second degree. The protest was among several organized by the NAACP throughout Alabama.

Sessions, a Republican U.S. senator from Alabama, was formerly Alabama attorney general and a former U.S. attorney in Alabama. Sessions was nominated for a federal judgeship in 1986, but the nomination failed amid allegations he had made racially biased comments.

The protesters want Sessions or Trump to withdraw Sessions’ name from consideration. Brooks told CNN that Sessions “has failed to acknowledge the reality of voter suppression while pretending to believe in the myth of voter fraud.”

The NAACP and other civil liberties groups have also pointed to evidence of Sessions’ biased comments aired during his 1986 judicial nomination. But Simelton told the New York Times that civil rights groups would have opposed Sessions’ nomination in any event because of a legislative record that showed “he has not been a champion for civil and human right.”

A live-stream broadcast of the NAACP sit-in on Facebook showed group members kneeling in prayer before their arrest and shaking hands with officers.

Also opposing the nomination is a group of more than 1,200 law professors, the Washington Post reports. Among those signing the professors’ letter are Harvard law professor Laurence Tribe, University of Chicago law professor Geoffrey Stone, Stanford law professor Pamela Karlan, and University of California at Irvine law dean Erwin Chemerinsky.

“In 1986,” the letter read, “the Republican-controlled Senate Judiciary Committee, in a bipartisan vote, rejected President Ronald Reagan’s nomination of then-U.S. Attorney Sessions for a federal judgeship, due to statements Sessions had made that reflected prejudice against African Americans. Nothing in Senator Sessions’ public life since 1986 has convinced us that he is a different man than the 39-year-old attorney who was deemed too racially insensitive to be a federal district court judge.”

Sessions has said he is not biased. On Tuesday, he ordered pizza for the protesters which, according to the Times “was taken to the office by a somewhat confused deliveryman.”

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POW or Criminal? Appeals Court to Hear Russian Soldier’s Case

A fight over whether the U.S. government properly prosecuted a former Russian military tank commander convicted of leading a Taliban attack on American forces is heading to a federal appeals court.

The 4th U.S. Circuit Court of Appeals in Virginia will hear arguments Friday in the case of Irek Hamidullin.

Hamidullin was accused of leading insurgents in a 2009 attack on U.S. forces in Afghanistan. He was sentenced last year to life in prison.

Hamidullin’s attorneys want the court to throw out his convictions. They argue he should have been treated as a prisoner of war and therefore shielded from criminal prosecution.

Prosecutors counter that fighters aligned with the Taliban don’t qualify for lawful combatant status because they don’t adhere to the laws and customs of war, among other things.