Blawg Review

It's not just a blog carnival; it's the law! ~ a fool in the forest

Crime & Federalism

a blawg reviewed by Mark Draughn

On Windypundit, I rant about civil liberties and legal issues and frightening police behavior. Because of these interests, I end up reading a lot of blogs by criminal defense attorneys. However, I've noticed that these attorneys themselves don't rant much about civil liberties, at least not in the same way I do. I guess that's because the justice system is something I observe, but it's something they're a part of. They may not like what they see, but it's the reality they have to work with everyday, and ranting about reality is for madmen. They have a client in peril, so they usually leave the ranting to outsiders like me.

This brings me to Norm Pattis at Crime & Federalism. Pattis is a criminal defense lawyer, but he's also a mad ranter like me. Check out his recent post on the Kelo decision, in which he comes within a hair's breadth of saying it's time to start shooting people:
Kelo is bad, terrifying law, the sort of law over which a person should think incendiary thoughts. We revolted against Britain over far less.
I guess a guy who's being hunted by one of his own clients is entitled to a little hyperbole now and then.

Pattis also does civil work, often suing misbehaving cops. He owns a rare book store. He writes fiction, and he's republishing one story in serial form on the Crime & Federalism site. Oh, and if the name "Norm Pattis" sounds familiar, it might be because he's been commenting on legal issues for the news media, although he's in recovery for that now.

The main show, however, is someone named Mike. He founded Crime & Federalism and describes it this way:
According to a report of the American Bar Association, there are over 3,300 federal crimes. These laws are interspersed in 50 titles of the United States Code. Also, the violation of federal regulations is often made criminal: the ABA estimates that the violation of at least 10,000 regulations is a federal crime.

We used to be able to count on one hand when Congress could define or punish crimes. Now no one can know the extent of potential criminal liability under federal law. This blog will explore what happened.
[Citations have been removed from most quoted content for clarity. See the original postings for more information.]

Mike summarizes his views and his concept of federalism like this:
I think there are two main types of federalists: the Heritage-Federalists and the Cato-Federalists. Our different approaches on policy, especially on crime and federalism, can be illustrated by comparing two different discussions on overcriminalization.

In Measuring the Explosive Growth of Federal Crime Legislation, sponsored by the Heritage Foundation, former Attorneys General Edwin Meese and Richard Thornburgh criticize Congress' willingness to criminalize garden-variety crimes, e.g., car jacking.. Some of the reasons they disagree with the growth of the criminal code include Congress' stepping on the toes of sovereign states, and the high economic cost to pay the law enforcement officers (including generous salaries and pensions). However, not once did Mssrs. Meese or Thornburgh talk about how unjust it is for a person's conduct to be covered by overlapping federal and state laws.

Heritage-Federalists are still down with the establishment, the only difference is they prefer smaller units of governments. Powerful states are fine, a powerful federal government is less desirable.

Cato-Federalists are more of the anti-establishment wing. We are as concerned with individual rights as the ACLU. We differ with the ACLU on many issues, though, because unlike the left, we think that less government leads to greater individual liberty.

Heritage-Federalists care about federalism because it strengthens the states. Cato-Federalists support federalism because it will help individual liberty flourish. It's two different worldviews.

Mike, 23 November 2004
Much of Crime & Federalism, especially the middle stuff, consists of summaries of legal briefs, decisions, and other kinds of things I don't really understand, such as Ken Lay Week or this discussion of pin and string cites. Mike's style changes several times, probably in response to changes in the kinds of work he does as he emerges from the legal education process.

Some of Mike's earliest stuff asks a lot of big questions about the law. Here is one of the most amazing things I've read about the Bill of Rights:
...Alexander Hamilton [...] thought a bill of rights would be unnecessary and dangerous...

Alexander Hamilton cited the preamble to the constitution, "We the people of the United States [ ] do ordain and establish this Constitution" as proof that we did not need a bill of rights. Since we created a government of limited powers, then why do we need a contract protecting our rights. "Here is a better recognition of popular rights than volumes of those aphorisms which make the principle figure in several of our state bill of rights, and which would sound much better in a treatise of ethics than in a constitution of government."

Moreover, Hamilton feared "declar[ing] that things shall not be done which there is no power to do? Why for instance, should it be said, when no power is given by which restrictions may be imposed?"

Can anyone today argue that Congress would lack power under the Commerce Clause to regulate the press? What did we learn about the Commerce Clause that Alexander Hamilton missed?

Mike, 12 April 2004
I never thought of it that way. If—as is apparently the case these days—the Commerce Clause really gives Congress the power to regulate carjackings and toilet flushes and what farmers grow for their own consumption, then of course the Commerce Clause gives Congress the power to regulate the press. It's only the First Amendment's revocation of that power that keeps them from doing so.

Mike characterizes the modern meaning of the Commerce Clause this way:
The only way to understand the Court's Commerce Clause jurisprudence is by turning to chaos theory. Chaos theory tells us that if a butterfly flaps its wings in Hong Kong, it may cause a hurricane in Texas.

If I sneeze in California, it may cause an earthquake in Missouri. Hence, Congress has the power to criminalize my intrastate sneezing because it may substantially affect interstate commerce. (After all, an earthquake can cause billions of dollars in damage. Everyone has heard of the million dollar man. But had you heard of the billion dollar sneeze?

Even one dollar spent in Utah will have a substantial affect on interstate commerce since this dollar will travel across the country many times.

Hence, the Commerce Clause confers upon Congress to regulate any activity it likes, so long as it does not offend the Court in so doing.

Mike 1 July 2004
Crime & Federalism covers a lot of topics. In a later post, he characterizes his earlier blog self as "quite the dilettante" for thinking himself qualified to write about some of those subjects. In a comment, Norm Pattis reassures him, "Dilettantes of the world unite! We have nothing to lose save our shame."

Besides, Mike brings a fresh point of view. Consider this comment about criminal defendants who get acquitted on "technicalities":
If an eighteen year old male who had sex with a 17 year and 9 month old female, was charged with statutory rape (in a state where the age of consent was 18), would we say he was charged under a mere technicality? If I committed some strict liability offense about which no reasonable person would know, who would say I was charged under a technicality? No one. Everyone would say, "You broke the law. Now go to prison where they serve chunky peanut butter."

How come only criminal defendants take advantage of technicalities? When prosecutors overcharge an indictment, or send people to prison for 10 years for importing lobster tails in plastic rather than paper bags, it's somehow consistent with wholesome morals and an effective criminal justice system. Why are constitutional rights technicalities where as criminal laws are the law?

Mike, 28 July 2004
I think that's pretty neat. I'm going to use that line of reasoning next time I get into that argument.

Mike's also annoyed by complaints about big-spending criminal defendants, and for exactly the same reason as I am:
Riddle me this: Why does it anger so many people when a criminal defendant spends massive amounts of money? Do they not know how much money the prosecution spends? This story from CNN is illustrative:
Prosecutors in the Kobe Bryant case spent nearly $400,000 trying to get the NBA star convicted of raping a woman at a Vail-area resort last summer, documents show. That includes nearly $75,000 for expert witnesses and travel, more than $78,000 to investigators and more than $35,000 for a broadcast news clipping service.
Once you factor in the salary and benefits for the investigators and prosecutors, the bill would likely reach 1 million dollars. Which is, by most educated guessers, what Kobe Bryant spent defending himself.

Mike, 15 September 2004. [The CNN link was dead.]
Benjamin Franklin once said, "Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety." Mike's New Year's Eve post from 2004 has a twist on that:
Disavowing the rights of criminal defendants on the ground that these rights so important to them will never be relevant to you, is immoral. Those who would allow the government to unconstitutionally abrogate the rights the rights of others but jealously guard their own deserve neither freedom nor safety.

Mike, 31 December 2004
What the heck, here's one more thing Mike and I agree about. Living in the land of the Nicarico case, this strikes home:
This excellent article entitled "Innocence Lost" discusses numerous cases of innocent people being freed from prison. As you might expect, none of the prosecutors apologized for falsifying evidence, withholding evidence in violation of their ethical and legal duties, and putting lying police officers on the witness stand. At the least, I expected to see a prosecutor ask: "How could this happen? How could I have done a better job? How can I prevent this from happening again?" Instead, what you get is this:
The strangest thing happened to John Stoll this past spring. After 20 years in jail for an infamous crime he did not commit, a judge said it had all been a mistake, and he was set free.

“You win some, you lose some,” the prosecutor shrugged, refusing to offer any admission of error or hint of an apology for all that her office had put Stoll through.
Mike, 16 November 2004
Read more of this review, first published on Windypundit.

Mike Cernovich is a Contributing Editor of Blawg Review, but he had no idea we'd be lifting this review. I confess to posting it here shamelessly just to make him and the reviewer, Mark Draughn, look good — and as a birthday gift for Norm Pattis.