Criminal Justice & Federalism

Topics

• 4th Amendment: Searches and Seizures, Privacy
• 5th Amendment: Due Process, Forfeiture
• 6th Amendment: Jury Rights. Right to Counsel.
• 8th Amendment: Right to bail. Cruel and Unusual Punishments.
• 10th Amendment: Federalism
• Colorado and local laws
• Federal Legislation
• Drug Policy
• Police and Police Violence/Militarism
• Sentencing, Mandatory Minimums
• Other topics

4th Amendment: Searches and Seizures, Privacy

See also Terrorism Policy; Digital Economy

Testimony to Congress against proposals to increase wiretapping.H.R. 4423 and H.R. 3484. U.S. House Subcommittee on Crime, July 13, 2000.

Florida v. J.L. (2000). Amicus brief filed by the Independence Institute and the National Rifle Association. There is no "gun exception" to the Fourth Amendment's ban on searches based on unverified anonymous tips. With Robert Dowlut.

Drug Testing: Shaky Science May Nullify Good Intentions. Independence Institute Issue Paper. 1990.

Short articles and blogging

Bloomberg's X-ray. NYC develops gun detectors to conduct secret warrantless searches. America's 1st Freedom. May 2012.

Cert. grant in Millender v. LA: Qualified immunity for an unconstitutional general warrant to seize firearms? Volokh Conspiracy. July 20, 2011.

Accounting for Privacy Lost. Bill would infringe on accountant-client privilege. Mar. 7, 2003. With Frank Zaveral.

Face the Facts: Facial recognition technology's troubled past -- and troubling future. Reason. Oct. 2002. With Mike Krause. Reprinted in in James D. Toor, ed. Homeland Security. At Issue (Greenhaven Pr., 2004).

The Prohibitionist's Burden. Congress has repealed the Fourth Amendment for everyone on a ship. National Review Online. July 14, 2001. With Mike Krause. Coast Guard and the drug war. In italiano.

Back at Ya, Strom. Rebutting Sen. Thurmond on the Fugitive Protection Act. National Review Online. Oct. 20, 2000.

Sneaking In the Secret Search. No person's liberty is safe in the last week of Congress. National Review Online. Oct. 10, 2000.

No Firearms Exception to the Fourth Amendment. Chronicles magazine. August 2000.

Colorado Supreme Court Paved Way for Mena Killing. Denver Post. With Ari Armstrong.

Red Meat Encryption. Decoding the FBI's Carnivore Program. National Review Online. Aug. 23, 2000. With Tim Daneliuk.

When You Call, Who is Listening? Communications Assistance to Law Enforcement Act (CALEA)--the law that the FBI is trying to turn into a tool for warrantless surveillance of the American people. Cato Institute.  Sacramento Bee. June 19, 1998.

Starr Chamber. Kenneth Starr's alleged unethical actions have direct parallels in actions implemented by White House or the Clinton Department of Justice. National Review. May 4, 1998.

Government Eavesdropping Via E-Mail. Rocky Mountain News. July 4, 1994. With Duane Thompson.

It's an Assault on Our Privacy. Drug testing. Colorado Statesman, Sept. 15. 1989.

blog: Drive a Hybrid, Get Pulled Over by the Virginia Police,11/4/05.

5th Amendment: Due Process, Forfeiture, Self-Incrimination

Joel Esquenzi and Carlos Rodriguez v. United States of America. Washington Legal Foundation and the Independence Institute amicus brief in support of petitioners. United States Court of Appeals for the Eleventh Circuit. Sept. 11, 2014.

Asset Forfeiture Reform is Overdue. Issue Backgrounder. Apr. 18, 2002.Discusses Colorado and Denver confiscation laws.

Denver's Property Confiscation Ordinances: Good Targets for HB 1305. Independence Institute Issue Backgrounder. 1999-N. Feb. 10, 1999.

Short articles and blogging

Virtue in Equivocation. Happy Guy Fawkes Day. National Review Online. Nov. 5, 2001.

Redefining Justice. Houston journalist Vanessa Leggett is jailed by the FBI. National Review Online. Aug. 27, 2001.

One Trigger-Happy Attorney. Prosecution of dance clubs in New Orleans. National Review Online. April 30 , 2001. With Glenn Harlan Reynolds.

Forfeiture Laws Harm Crime Victims. May 17, 2000. By Jerry Kopel.

Denver Property Confiscation Law May Meet its Match. By Jerry Kopel.

Just Say Nothing. What to do if you are questioned about a victimless crime. 1998.

The Dangers of Driving Through Denver. Property confiscation. August 5, 1998.

blog: Easier Forfeiture of Property: The New Federal Rules of Civil Procedure, 3/23/06.

6th Amendment: Jury Rights, Right to Counsel

All sides support jury rights idea. Dailies say 'conservative groups' behind concept, but ranks of supporters diverse. Rocky Mountain News/Denver Post. Oct. 11, 2003.

The Rules. John Ashcroft's John Walker Lindh comments were inappropriate. National Review Online. Feb. 19, 2002.

Miranda's Not the Problem. Police deception does more harm to law enforcement. National Review Online. June 28, 2000.

I, The Jury. Book review of Jury Nullification: The Evolution of a Doctrine, by Clay S. Conrad. The American Enterprise, May/June 1999.

Fully Informed Juries.

8th Amendment. Death Penalty, Right to Bail

Press conference against proposition 102. Initiative to eliminate alternatives to bail bonds. Sept. 20, 2010.

Photo illustrating story clouds issue. Brown cloud not the result of CO2 emissions. Rocky Mountain News/Denver Post, Oct. 6, 2007. Plus more global warming coverage, the Coors-Miller merger, the Udall-Schaffer race, and public opinion on the death penalty.

blog: Tookie Williams and Clemency, 11/28/05.

Nobel Peace Prize Nominees, 11/29/05.

Anniversary of Rosenberg Execution, 6/19/04.

10th Amendment: Federalism

For federalism aspects of Obamcare, see the Health Care page.

Amicus brief in support of petitions for a writ of certiorari from the Supreme Court in Pleau v. United States and Chafee v. United States. Sept. 2012.

Does the Supremacy Clause mean that the federal government always wins? Volokh.com. Oct. 2, 2012. About the Pleau brief.

The Expanding Federal Police Power, in Cato Handbook for Congress—107th Congress (2001).

The Brady Bill Comes Due: The Printz case and State Autonomy. 9 George Mason University Civil Rights Law Journal 189 (1999).

Taking Federalism Seriously: Lopez and the Partial Birth Abortion Ban Act. 30 Connecticut Law Review 59 (1997). With Glenn H. Reynolds.

Short articles and blogging

Hiding Behind State's Rights. Anti-gunners are hiding behind the false claim that right-to-carry reciprocity violates states' rights.  America's 1st Freedom. Mar. 2012.

Republican presidential candidates pledge to appoint judges to overturn the unconstitutional anti-abortion law they will sign. Candidates pledge to appoint judges who will adhere to the original meaning of the Constitution, but they promise to sign a federal law using the "interstate commerce" power to control what doctors tell abortion patients. Volokh Conspiracy. June 18, 2011.

Cert. Grant in 10th Amendment Case. Bond v. United States. Volokh.com. October 12, 2010.

DOMA case and the Tenth Amendment. Volokh.com. July 9, 2010.

The Push for States' Rights. KUER public radio, Salt Lake City. Apr. 7, 2010. Hour-long program. Kopel appears beginning at 12:54.

NPR on Alito and Machine Guns: The November 11, 2005, edition of NPR's "All Things Considered" features a segment on Judge Alito's decision in Rybar, in which Alito followed the Supreme Court's Lopez precedent to write that a federal ban on machine gun possession was not a valid exercise of the federal power to regulate interstate commerce. Guests on the program were Eugene Volokh, Kristin Rand of the Violence Policy Center, Erwin Chemerinsky of Duke Law School, and Kopel.

blog: Other Federal Appellate Judges on Machine Guns, 11/1/05.

Feel Like Dancing? Beware of Tom Daschle. Daschle's omnibus crime bill attacks RAVEs and dance parties by classifying them as "crack houses." National Review Online. Jan. 30, 2003. With Glenn Reynolds.

Wasted. Can't the DEA or Congress find a better way to use the DEA's resources? Medical marijuana raids in California. National Review Online, Nov. 19, 2001. With Mike Krause.

Sex and the Interstate Commerce Clause. Why the Fourth Circuit Court of Appeals was right to declare the federal Violence Against Women Act unconstitutional. Cato Institute. March 13, 1999. With Glenn Harlan Reynolds.

blog: Roberts on the Interstate Commerce Power, 9/16/05.

Colorado and local laws

Refining Colorado's Criminal Code. Independence Institute Issue Paper no. 10-1997. Dec. 1997. Fixing Colorado's criminal code to remove unconstitutional or oppressive provisions.

Spriggs is Sprung: New U.S. Attorney is Bad News. April 4, 2001.

Attorney General's Office Doesn't Control Violent Crime. Denver Post, Oct. 9, 1994.

Federal Legislation

Joel Esquenzi and Carlos Rodriguez v. United States of America. Washington Legal Foundation and the Independence Institute amicus brief in support of petitioners. United States Court of Appeals for the Eleventh Circuit. Sept. 11, 2014.

Unfair and Unconstitutional: The New Federal Gun Control and Juvenile Crime Proposals. By Dave Kopel and James Winchester. Covers the heavily-discussed issues from 1999's Senate Bill 254 (gun shows, juvenile gun possession) and many unknown provisions (including wiretapping expansion, forfeiture expansion, and others).

The Hill's Hidden Crime Agenda. Post-Columbine legislation. Cato Institute. Washington Times. June 15, 1999.

Dave Kopel's April 1997 testimony before the Senate Judiciary Committee on Criminal Street Gangs. Includes material about gun control, RICO, bullet-resistant vests, conspiracy statues, federalization of criminal law, and more.

Victims' Rights Amendment is All Wrong. Cato Institute. Sept. 20, 1996. By David Kopel and Elisabeth Semel.

The Crime Bill's Defeat Helped the Constitution. Aug. 1994. Flaws in the Clinton crime bill.

On the Firing Line: Clinton's Crime Bill. Heritage Lecture no. 476, delivered by Dave Kopel at the Heritage Foundation, Washington, D.C., Sept. 1993.

Drug Policy

See also: Fourth Amendment; Sentencing

The Future of International Drug Policy. Kopel interviews Mexican lawyer and professor Alejandro Madrazo regarding the drug war in Mexico. March 21, 2016.

Reducing the Drug War's Damage to Government Budgets. 35 Harvard Journal of Law & Public Policy 543 (2012). With Trevor Burrus.

Reefer Madness and the Prohibition of Marijuana in the United States. Encyclopædia Britannica blog. Oct. 26, 2010.

The Drug War on Human Rights and Civil Liberties. Occasional Paper # 8 from the Liberal Institute of the Friederich Naumann Foundation in Potsdam, Germany. English full text. September 2004 Symposium.

A Foreign Policy Disaster, in The New Prohibition: Voices of Dissent Challenge the Drug War (Accurate Press, 2004). With Mike Krause.

Smash-up Policing: When Law Enforcement Goes Military. National Review, print edition, May 22, 2000. Reprinted in Busted: Stone Cowboys, Narco-Lords and Washington's War on Drugs (New York: Thunder's Mouth Press/Nation Books, 2002). Mike Bray, editor.

Militarized Law Enforcement: The Drug War's Deadly Fruit. Chapter by Kopel in the Cato Institute book After Prohibition: An Adult Approach to Drug Policies in the 21st Century , edited by Timothy Lynch (November, 2000).

Extreme Drug Law Tramples Bill of Rights. Flaws Seen in Uniform Controlled Substances Act. Independence Institute Issue Paper. 1992.

Marijuana Jail Terms: Costly and Hasty. Independence Institute Issue Paper. 1991.

Drug Testing: Shaky Science May Nullify Good Intentions. Independence Institute Issue Paper. 1990.

Short articles and blogging

Does any government have the legitimate power to ban medical marijuana? Volokh.com. Dec. 10, 2012.

News out of joint on marijuana. Slang misuse, failure to check assertions hurts its coverage. Rocky Mountain News/Denver Post, Nov. 4, 2006.

Feel Like Dancing? Beware of Tom Daschle. National Review Online. Jan. 30, 2003. With Glenn Reynolds. Daschle's omnibus crime bill attacks RAVEs and dance parties by classifying them as "crack houses."

Meth lab video fearmongering. TV program pits neighbors against each other in government's crackdown on illicit drug factories. Rocky Mountain News/Denver Post, June 2, 2002.

Losing the War on Terrorism in Peru. The U.S. government has undermined the war on terrorism in Peru. National Review Online, Mar. 22, 2001. With Mike Krause.

Rumors: Quash one, fuel one. While debunking Harry Potter author's Satanist 'quotes,' News promotes drug's 'role' in deaths. Rocky Mountain News/Denver Post, Dec. 2, 2001.

Wasted. Can't the DEA or Congress find a better way to use the DEA's resources? Medical marijuana raids in California. National Review Online, Nov. 19, 2001. With Mike Krause.

License to Kill. The (drug) war on civilians in Peru. National Review Online. Aug. 16, 2001. With Mike Krause.

Out of Colombia. The drug-certification mandate and the international drug war are making America more like Colombia. National Review Online. Apr. 12, 2001. With Mike Krause.

One Trigger-Happy Attorney. Prosecution of dance clubs in New Orleans. National Review Online. April 30 , 2001. With Glenn Harlan Reynolds.

Make Policy, Not War. Confusing drug policy with "war" is dangerous. National Review Online. Feb. 21, 2001.

Colorado Supreme Court Paved Way for Mena Killing. Colorado Springs Gazette. Feb. 2000.

Drug War Kills Innocent People. Denver Post, Dec. 30, 1999. With Ari Armstrong.

Street Junkies are the Real Enemy. Phony drug war statistics. Colorado Statesman. May 18, 1990.

It's an Assault on Our Privacy. Drug testing. Colorado Statesman, Sept. 15. 1989.

War on Drugs versus War on Terrorists. 8/23/06.

Lawsuit over Denial of Federal Financial Aid to College Students with Drug Convictions, 3/20/06.

Dem. candidates' views on medical marijuana, 8/24/03.

RAVE Act & Feeney Amendment, 4/7/03.

DOJ abuse in California medical marijuana prosecution, 1/30/03

DARE program eliminated in its original host city, 5/13/02.

Police and Police Violence/Militarism

See also: Waco; Terrorism.

Militarized Law Enforcement: The Drug War's Deadly Fruit. Chapter by Kopel in the Cato Institute book After Prohibition: An Adult Approach to Drug Policies in the 21st Century, edited by Timothy Lynch (November, 2000).

Smash-up Policing: When Law Enforcement Goes Military. National Review, print edition, May 22, 2000. Reprinted in Busted: Stone Cowboys, Narco-Lords and Washington's War on Drugs (New York: Thunder's Mouth Press/Nation Books, 2002). Mike Bray, editor.

Moose Bull. The "D.C. Sniper" police chief's version of history in his book Three Weeks in October. National Review Online. Dec. 11, 2003. With Paul Blackman.

License to Kill. The (drug) war on civilians in Peru. National Review Online. Aug. 16, 2001. With Mike Krause.

Officer Politics. Recent police department scandals are a result of increased federal involvement and racial hiring practices. American Outlook. May/June 2001. By Dave Kopel and Mike Krause. Español.

Police Shootings Need More Scrutiny. Rocky Mountain News/Denver Post. July 29, 2001.

Violent home invasions by police lead to imitation by criminals claiming to be police, 4/2/02.

Posse Comitatus

The Posse Comitatus and the Office of Sheriff: Armed Citizens Summoned to the Aid of Law Enforcement. 104 Journal of Criminal Law and Criminology 671 (2015).

Bush's Terrible Idea (weakening Posse Comitatus Act), 9/28/05.

Biden's attack on Posse Comitatus, 7/22/02.

Sentencing, Mandatory Minimums

Prison Blues: How America's Foolish Sentencing Policies Endanger Public Safety. Cato Institute Policy Analysis. 1994.

Restore Flexibility to U.S. Sentences. National Law Journal op-ed by Senator Paul Simon and David Kopel. Dec. 1996.

Let's Repeal Mandatory Minimums. National Law Journal. 1993.

Marijuana Jail Terms: Costly and Hasty. Independence Institute Issue Paper. 1991.

Other Topics

The Evolving Police Power: Some Observations for a New Century, with Glenn Harlan Reynolds. 27 Hastings Constitutional Law Quarterly 511 (2000). Analyzes recent state court decisions striking down anti-sodomy laws, and suggests that courts in the 21st century--like courts in the 19th century--may increasingly recognize that the police power is not infinite. Also available in Word format.

Crime: The Inner City Crisis. The crime disaster in urban America, and how politicians use gun control to evade the difficulties of addressing the causes of poverty, alienation, and hopelessness.

Short articles and blogging

You've Got Identity. Why a national ID is a bad idea. National Review Online. Feb. 6, 2002. With Linda Gorman. Español

Is Miami another Waco? National Review Online. Apr. 26, 2000. With Paul Blackman.

Mr. President, You're No JFK. The Elian Gonzalez kidnapping. National Review Online. Apr. 24, 2000.