Gerrymandering and The Right to be Represented

Posted on March 14, 2017 by tesumner

We want government representatives to cover all viewpoints of their constituents fairly.

Advocates for racial representation try to segregate those of a particular color or race so that they can have their own representation.

How asinine!

A recent Democratic judicial panel in the US District Court of Western Texas ruled that Congressional boundaries were drawn so as to minimize relative numbers of a particular ethnic group, by spreading their bloc among adjacent districts and, thus, dilute their ability to elect candidates of the same ethnic persuasion in any of those districts. As if the identified group all thought alike and would want the exact same things…

Is it truly better to have a district with boundaries drawn so that a majority race or majority color can be constructed from adjacent districts that otherwise would claim those minorities?

Which groups or divisions of people are acceptable to create such a minority district from, and must it also be relatively contiguous geographically? Is it solely color of skin, or should all physical, mental, ethnic and cultural differences be accounted for separately in representation from districts?

If Italians and Irish are commingled in two adjacent districts, is it better to divide the two national-origin groups by gerrymandering the boundaries so that there is a more exclusively Irish district and a more exclusively Italian district? Or, should we simply draw compact and contiguous districts regardless of the relative proportions of Italians and Irish?

If Jews and Christians, similarly, are intermixed geographically, should we re-draw boundaries so as to give a district with primarily Jewish constituents in one or more districts while drawing the boundaries to concentrate Christians in the remaining districts?

How far should we take this objective of drawing boundaries to create a majority constituent group?

Should we segregate constituents by gender identity issues?
Maybe women from men?
Maybe English- from Russian-speaking from Chinese-speaking?
Maybe rich from poor?
Maybe smart from dumb?
Where does this divisiveness stop?

To unite people, we divide them. That’s logical.

We don’t try to see past differences – we focus on them.

We don’t try to find common ground – we seek confrontational divisive politics.

Melting pot, shmelting pot.

Those district judges “know” that if you have the same skin color as someone else, you want the same things and you vote the same way. They’re not prejudiced at all. And their views unite us all.

Votes – the Currency of Democracy

Posted on October 9, 2015 by tesumner

In democratic government power is wielded by those voted into power. Changes in the law, like Constitutional amendments and plebiscites also are voted on. Voting is a crucial element of practicing democracy in a republic.

Plurality Rules vs Majority Rules

Decisions are bought into by the voters primarily by majority voting. Counting ballots usually reveals that only a small portion of citizens eligible to vote actually show up to vote. The fact that many voters disenfranchise themselves is appalling. It is also appalling that, although eligible to become voters, many citizens simply fail to register to vote. Between these two appalling facts of failing to register and failing to vote we find that only a small fraction of the voting-aged population actually exercises their right to vote.

Worse, decisions are almost always determined by the largest number of votes received on an issue. A plurality is a pitiful way to decide things, especially considering the appalling facts above.

With 3 choices available, if 40% favor choice A, 35% favor B and 25% favor C, A will win. Even though A has only a plurality, it will be the official outcome.

Voter Fraud & Low Turnout

To put this in perspective, typically only 60% of the voting-aged population bothers to register to vote. In a typical election only 20-40% of those registered show up to vote. This means that tiny fraction of voters (12-24%) can determine the outcome, perhaps only 40% of 20% of 60% of voting age people. In a close race only half of 12% wins, maybe less. How can only 5% or less determine an election?

Registration to Vote

Sometimes it’s just laziness: the voter moved and didn’t re-register in the new voting precinct. Sometimes it’s to avoid jury duty, since often jury pools are selected from voter registries. Often eligible citizens don’t know the process or the place to go to register, and then it takes a while to get around to it.

Low Information Voters

What do we imagine the 5% or less that vote for choice A B or C know about the 3 choices and how informed they are to choose? Are they party-line voters, do they recognize the name of a candidate, or did they see a political advertisement that swayed them?

Fraud Affects Outcome

It should be obvious that having a cadre of informed voters who show up is essential to having good election outcomes. When a few votes out of 5% are fraudulent, it can alter the election outcome to become fraudulent, too. We cannot allow votes to be bought, to be stolen or in any way to be fraudulently or forcibly cast. We simply cannot afford to waste even a single vote.

Theft, Loss, & Counterfeit Votes

Since the democratic process runs on votes, the notion that votes are the currency of democracy is correct. Counterfeit currency steals value from other currency-holders. Counterfeit votes steal outcome from real voters. A voter’s wishes are diluted by the presence of fake ballots in the ballot box. Fake ballots are those created by someone without counting them as coming from a legitimate voter. In the past this illegitimate practice was called ballot-stuffing.

Currency stolen from its proper owner, whether the owner is aware of it or not, is still theft. Stealing a vote is a matter of attributing a ballot to a particular voter (who didn’t vote). These stolen votes are based on fraudulent identity, and steal the power of the legitimate voter, even though the voter may not know about the theft. When ballots are accounted for and handed out only to registered voters, only fraudulent identification of a registered voter will result in theft of vote.

Integrity from Start to Finish

Theft and loss of votes can also occur later during the canvassing of ballots. Ballots could be miscounted, could be discarded unintentionally or intentionally, or could simply be misreported. Trusting officials to safeguard ballots and to count them all properly forces us to design voting systems that can be trusted, typically by re-counting by separate mechanisms and different people and cross-checking the result or allowing audit of votes afterwards.

In an ideal voting system ballots would be intact from casting to canvassing with the ability for audit by officials and for voters to verify their individual ballots were counted and no others recorded in their names.

Single Vote vs Authenticating a Voter

But all systems rely on authenticating a person claiming to be eligible as a voter. It’s one thing to force everyone issued a ballot to dip their hand in indelible ink so we know only one ballot was issued, but how do we know if they’re eligible at all?

We adhere to the principle “One Man, One Vote” meaning you can’t vote twice for Governor or twice for President and so on. But, we also mean that Green Party members can’t vote in the Socialist Party primary election, and citizens in one county can’t illegitimately vote for county issues in another county. Proving that a voter is actually eligible to vote is crucial.

We have these 2 important points:

You must be eligible to vote
You must not vote more than once

Eligibility to Vote

Today only citizens may vote and residence is used to determine where they vote. Registering to vote allows an agency of the government to vet the person for citizenship, record any identifying information, confirm their taxpayer status, and issue a voter card. In an ideal voting system every citizen eligible to vote would be able to register to vote nearly instantaneously. This would allow the ‘green’ eligible area to be equal to the ‘blue’ registered area show in the graphic above.

Double Voting

Voting more than once can be detected by tracking when a person votes and having all other places or methods to vote precluded by that detection. If I vote for President in precinct 123, as soon as I cast a ballot for President, all other precincts know about it and I cannot go to another precinct and vote for President again. My vote is tied to my identity. If I can be uniquely identified, then duplicate votes can be stopped for me (if my identity is confirmed every time I attempt to vote).

Of course not only must other precincts be allowed to see I have already voted but other methods, such as early voting and voting by mail, should be checked before issuing a ballot to me and they should also be allowed to see that I have voted. Those other locations must be allowed to see the issuance as quickly in real time as possible – if there is a delay, then before allowing the ballot(s) to be cast, the issuance and casting at other locations must be checked.

Poll Book of Registered Voters

Each voting location, including mail processing, must confirm identity of the applying voter. The voting system will be no more secure against fraudulent and duplicate votes than the methods used to confirm identity of voters and verify uniqueness of ballot issuance.

The polling location that has a book of only names and addresses of eligible voters is probably the least secure. Identity confirmation based on names and/or birthday and/or address are common methods. Any of these methods are actually not very secure. Internal processes at the polling station should preclude such a possibility of ballot theft or duplicate voting, but with collusion it is still very possible.

No ID Required

If no ID is required, any person can come up to a clerk and claim to a name in the open book without an indication that the voter already voted. In fact poll-workers can simply issue themselves or their confederates ballots in the names of any people that have not already voted.

Signatures

Part of the ballot issuance process, then, should include a method of leaving a trace by the voter that it was she and not someone simply claiming to be the voter that can be audited later. A signature of the voter might work. However, very few people are expert enough to recognize whether a signature is a forgery.

Photographs

No poll books have photos of voters – so comparing the person’s face to a photograph in the book would not work for identification. But taking a photo (as the trace) would be a change a substantial number of voters would object to. However, almost all voters have pictures on their driver licenses or other government-issued ID card. A poll-worker could take a photo of the ID card itself to act as trace that the voter appeared to get a ballot.

Fingerprints

Fingerprints, such as a thumbprint, are useful to establish a verifiable trace of the voter’s appearance at the polling station, but comparing fingerprints is probably a difficult job for ordinary poll-workers unless they’re aided by machinery. And where would the source print come from to compare to? Driver licenses are often issued by the state department of public safety or motor vehicles, who also take fingerprints as part of the licensing process. This government source of fingerprints would be a good one.

Capturing biometric data at the time of registration and making it easy to verify at the time of issuing a ballot (or casting it) will add to the security and integrity of the voting system, but will also add some labor and storage needs for the data and the checking. Machinery to assist poll-workers in verifying could also add to the equipment cost of elections.

Voting Systems We Can Bank On

To safeguard votes, the currency of democracy, we need a voting system that

Allows near-instant registration to vote
Utilizes existing government identity systems as appropriate
Captures needed biometric data on the registered voter
Securely stores and distributes registration data and ballot data
Assists poll-workers in verifying voter identity data and detecting duplicate ballots
Minimizes the possibility of collusion in credentialing and issuance of ballots
Securely accepts and transports ballots to a canvassing location for secure storage
Permits a voter to confirm her ballot was counted and not altered
Permits poll-watchers to confirm a total visual count of voters appearing against the number of ballots cast
Permits a non-voter to confirm that no ballot was accepted in his name
Permits any citizen to see a list of who voted in which election and confirm each was verified by an official before a ballot was issued
Permits the public to confirm that total issued ballots matches total votes
Enables auditing of each of the various stages of the voting process

Clearly, verification of voter identity requires an ID card that provides some biometric data, such as a photo or fingerprint, that poll-workers can verify a voter’s identity. Further, the process must include capturing the same data at the time of ballot issuance and casting.

The Age of Intolerance

Posted on April 6, 2015 by tesumner

Welcome to a By-Gone Era

Quakers, Protestants and other religiously persecuted Europeans, mainly from Britain, escaped the government-run Anglican church and other intolerance hundreds of years ago. They came to America. They pledged to support each other’s beliefs, not by forcing everyone to conform, but by simple tolerance of each other.

Tolerance is not truly “support” but at least it’s not interference. The various groups having differing religious beliefs agreed not to interfere in the practices and beliefs of other groups. They agreed to tolerate the others’ views, respecting them.

Tolerance, Acceptance, Support, Adherence

Your beliefs in the After-Life or in a number of other things, like whether milk and meat can be cooked in the same pot, whether people are reincarnated into life after life until they ‘get it right,’ whether a man can marry 4 women, whether driving cars on Sunday is wrong, whether God exists at all, whether the King is the Son of God, and so on and so forth, are in fact your beliefs. No one else may believe the same thing you do, or maybe a billion other people have a lot of the same beliefs as you.

If someone else disagrees with your beliefs, do you want them to disagree violently with you, wielding the power to behead you? Probably not.

Would you want to be able to give your case for your beliefs to them and possibly convert them, or would you prefer to be rendered mute and unable to express even a single word about your own beliefs? Probably outlawing free speech seems too restrictive. Some people believe in allowing on speech that they consider acceptable. This love of political correctness chills the first Amendment right that some consider worthy of restrictions.

Support by Edict or Teaching Understanding

Would you want them to be able to force you to come to their synagogue, mosque, temple, church, or to be able to force you to donate your time, money or effort to support their beliefs? Maybe you should be able to force them to do the same? Not. Teaching the fundamental tenets of a religion may be possible for adults when studying comparative philosophies or religions, but care must be exercised with younger students not to cross the line between comparative study and advocating.

Would you want to have all commercial operations cease on your “holy day” – whatever day you choose, because that would be adhering to your beliefs? Or, would their day be “holy” too and commercial-free? Maybe forcing you to open your store on your holy day is just as unacceptable as forcing them to open on their holy day.

Which of the words best describes how you want other who don’t believe in your religion (or lack thereof) to behave:

Adherence – forced compliance with someone’s beliefs
Support – forced payment, participation, attendance or ‘training’
Acceptance – forced silence for all
Tolerance – live and let live, but freedom to act and speak according to beliefs

Freedom to Believe is Not License

If we agree that Tolerance of others’ beliefs is the correct approach, we need to recognize that some behavior is simply unacceptable, period. For example, it is never acceptable that someone is allowed to die or be killed as a direct consequence of a religious belief and in most cases as an indirect consequence either.

Equally, it is never acceptable for harm to be a consequence of religious belief. One may argue about social behavior, but violence or resultant harm is just wrong. It may be unkind or uncivil to deny someone when they ask for some voluntary action, but is it actually a crime?

A doctor, who has power of life and death, has sworn a duty to do no harm under the Hippocratic Oath, but does this oath obligate the doctor to accept the religion of the patient or embrace their religion? The sworn duty clearly obligates the doctor to accept and be silent in order to comply with the Oath. It does not obligate support or adherence of the religious beliefs of the patient, although some believe it does.

Religious Tolerance and the Law

A nurse who is ordered to administer a treatment that the nurse believes is against religious tenets may want to object, but does her duty override her beliefs? We have to go back to her medical Oath, if any, not to do harm. Absent a sworn duty to treat, a nurse has the right to obey his religious beliefs and not to render aid, legally, but it is not a license to commit an act adverse to the health of the person he is aware of.

Just because someone believes through their religious teachings that some act that the law has specifically proscribed is desirable, the law does not grant license to the believer to act contrary to the law and commit the proscribed act. Belief in doing some illegal act is not license to do the illegal act. If some men believe that their religion grants license to have sexual intercourse with underage children, the law takes precedence over those beliefs.

On the other hand, if someone believes through their religious teachings that some act is proscribed by their religion, the law cannot compel the believer to commit the act unless the life or limb of the person requesting the commission of the act. If some believe that water must not pass the lips of a believer during identifiable times, this prohibition cannot override medical necessity to drink liquids.

Some claim that the law may compel a doctor, for example, who has sworn a duty to protect life to perform an act that the doctor may believe is proscribed by his religion. We must look to the Hippocratic Oath for guidance and allow no harm whether through action or inaction.

Instead, with the PC police patrolling we find ourselves in an Age of Intolerance, completely lacking in traditional personal freedom.

Freedom – A Viewpoint

Imagine a scene in rural America not long after the Constitution. A family lives in a log cabin built by the husband and wife near a stream, far from any townspeople, with farm animals and planted crops for the family to survive off of. Freedom includes the family’s right to believe what they want about their Creator, if any, but also extends into how they live their lives on a day-to-day basis.

If they want to turn grape juice into wine and serve it to the whole family, including children, is that a part of their freedom?
Are they free to slaughter animals on their property for food or for any purpose, or must they answer to townspeople about what they do with the flesh or how they kill the animals?
Can the family dump its waste into the stream without regard to the neighboring farms or downstream property-owners who might be affected?
Can the family dig up and use the minerals and wealth of the land as they see fit or must they obey rules from the townspeople?
What will the family’s reaction be to townspeople claiming taxes on the family’s wealth that only the family worked so hard to create and maintain?

The notion that “it takes a village” is not part of the thinking of this family. They live on their own apart from the “village” and interface only as they see fit with the rest of the world. No one from town comes to the farm to plow the fields or tend the animals, but when the time comes for the bounty of their hard work to come to market, the villager want their pound of flesh. Like Shylock they care not if the farmer dies from their taxation. They want their pound and half of flesh. The farmer after all has eyes, and will suffer from the townspeople’s visiting their view of the world on him.

What, then, is the meaning of freedom as envisioned over two hundred years ago?

Does the village play any part? Are the views of townspeople important at all?
Or, does the farmer do as he wants up to the edge of his property, so long as nothing spills over onto a neighbor?
When dealing with his neighbors, does he negotiate as an equal and a neighbor or does he allow the townspeople to slant the table towards those they favor or feel need to be granted an upper hand?
Does he obey the townspeople’s rules solely when he’s in the village?
Does the farmer take on the role of “the Little Red Hen” and simply enjoy the product of his work, since no one stepped up to help him produce his farm output?
Does the farmer allow the townspeople to come onto his property, confiscate his grain and livestock, and re-distribute them to those the townspeople feel are needy?

Clearly to the farmer and his family “Freedom” means freedom from interference of those outsiders who appoint themselves to rule over him, and freedom to live as he sees fit, dealing with his neighbors honestly and only on an equal basis.

No Taxation without Representation

Posted on February 9, 2014 by tesumner

Voting today is limited to only those voters residing within the jurisdictional boundaries of the election. Typically, the geographic limitations are imposed by requiring citizens to prove residence in a jurisdiction before allowing them to vote. Residence implies that those voting have a vested interest in the outcome because they have to live with those results and pay the taxes that are used to fund the governance in the jurisdiction. If a citizen pays taxes, they should have a right to say how those taxes are spent. In 1776 we fought for the principle “No Taxation without Representation.”

If a foreigner visits NYC and pays sales tax on items he buys there, should he get a voter card there? If he is only visiting, he probably does not have more than a passing interest in who’s mayor or whether a sewer project is voted and funded by taxes and fees.

However, if the NJ citizen who commutes in every workday has to pay taxes on his paycheck he earns in NYC, he probably wants to have a say in whether tunnel fees rise or a stadium is paid for by his taxes. That’s only fair.

The same is true of a citizen who owns a second home, a dwelling he rents to others or property he simply pays real estate taxes on. He should have the right to say how those taxes are spent. While we’re sympathetic to the citizen who crosses a state line to buy goods that are cheaper or not available where he lives, we don’t think he should get a voter card for that situation, even though he pays sales tax.

But why does the apartment-dwelling suburban homeowner have to choose between voting in the city or voting in the suburbs? Why does the real estate investor have no say over how his taxes are spent that are collected on his rental property? By requiring residence in the property even though real estate taxes are paid the government has disenfranchised the investor and second home owner.

A citizen should have the right to vote in every jurisdiction where he lives and/or pays taxes.

We need a Constitutional Amendment to assure this.

We do need to limit this proposal with the notion we also adhere to “One Man, One Vote.” For example, suppose the suburban family owns a house in CT and a working parent of the family also owns an apartment in the city (NYC). Should the apartment dweller be able to vote in both NYC and suburban CT?

Yes, but she or he gets only one vote in each distinct jurisdiction. So, in each city he or she gets a vote and in each state, but not 2 votes for President, since that violates the One-Man One-Vote principle. The voter must decide which is the principal residence and vote for President in that precinct only.

When a voter is eligible to vote in more than one precinct because of her taxpayer or residence status, then any overlapping jurisdictions between the precincts have to be resolved to a single vote. If an investor owns 10 houses in 5 cities with 3 school districts, then she’ll get 5 city votes and 3 school board votes.

One does wonder, though, after due consideration, if “No Taxation without Representation” is a sound principle, is the converse also valid. If you pay no taxes, should you be able to vote to raise taxes on other citizens?

This parapraxis actually captures the concept described above. But since it generally disenfranchises people if they pay no taxes, we need to word any Constitutional limitation to cover the case where non-taxpayers are prohibited from setting tax rates or taxes for taxpayers. This might also include officials responsible for setting taxes and tax rates. If a person isn’t currently paying a particular tax, that person should not be able to increase taxes on those who are paying.

Two Wrongs Make a Right!

Posted on October 30, 2011 by tesumner

When do two wrongful acts turn out to be right?

A short review of the Exclusionary Rule

Maybe you’ve heard of the right of a defendant on trial to exclude evidence that was obtained illegally. Say, for example, that police went to a residence and just decided on their own that something was wrong, without any real cause or complaint from anyone, and they broke the door down, and voila found a small bag of marijuana in the back of the upstairs closet.

The district attorney, citing the evidence discovered by the police, gets the owner of the house brought in for questioning. During the owner’s interview with police, the owner admits he knew there was a plastic bag containing some crumbled leaves in a disused room, but he denies any wrongdoing. After several long hours of discussion, the owner signs a statement and tries to leave, but he is simply arrested.

After the weekend, the accused is brought before a judge, and the owner tries to explain what happened. The judge, however, repeats his question of whether the accused has counsel and promptly appoints a lawyer in the courtroom to be the owner’s attorney. Just as promptly, the lawyer enters a plea of ‘not guilty’ and asks for release of the owner on his own recognizance.

The state asks that bail be denied because of the seriousness of the crime the owner is accused of, Possession with the Intent to Distribute a Control Substance. The judge binds the defendant over for trial. The judge sets bail for $25,000 and bangs his gavel.

So far, you may wonder whether the owner is guilty and whether things have proceeded according to rules that are designed to protect us from intrusion by the government and the Constitutional protections against self-incrimination and against unreasonable search and seizure.

You Have the Right to Remain Silent, Mr. Miranda!

Eventually, the defendant is able to connect with someone outside of jail and they arrange for a bail bondsman to post bail after paying him $2,500 and pledging other property for the full amount. Hours later the defendant is released and goes home to find his home ransacked and many things broken, including the front door jamb. He doesn’t know how much stuff was stolen by passers-by or neighbors, but he realizes that his expensive flat-screen television is gone.

Some weeks later, after interviews with the court-appointed attorney, the defendant re-appears in court and the defense lawyer moves that the case be dismissed on the grounds that the defendant’s rights were violated. That is, the search was not properly authorized by a judge via a search warrant. Quickly, the district attorney consults with his colleagues and asks for a brief recess.

Returning from the recess, the district attorney withdraws the charge of intent to distribute and the defendant is set free.

This could have played out in several different ways. The trial could have proceeded instead of having a review of the admissibility of the evidence, and the defense lawyer could have brought it up later. Alternatively, the officer testifying as to the conduct of the search that resulted in the find could have been cross-examined by the defense attorney to reveal the lack of proper procedure to obtain a proper search warrant. Any of these or some other processes could have resulted in the ‘tainted’ evidence being made beyond consideration by the jury. The jury could have been asked without the bag found as evidence to decide whether a crime was committed.

If, hypothetically, we could have stepped into our time-machine viewport and witnessed for ourselves whether the defendant actually had distributed the outlawed weed and some portion was stashed by him in the closet, we’d know. If on the one hand we knew that the defendant was guilty, the wrongful act of the police in failing to get a search warrant resulted in the wrong of the defendant being canceled out. In effect, the two wrongs made a right!

There is a long history that led up to the Exclusionary Rule and it does encompass other acts that the police could have committed to cancel out the evidence obtained by them. Confessions and testimony can also be excluded. The question for us is whether, as a matter of public policy, the Exclusionary Rule makes sense.

Are the defendant’s rights so paramount that any failure along the way should nullify evidence against him? Put yourself in the place of a defendant. You know that the Constitution guarantees your right under the Fourth Amendment against unreasonable search and seizure.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and Warrants shall not be issued, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

This seems rather clear. Your body, your home, your records, and your things all are “reasonably” safe from search and some government official grabbing them and carting them off, period. Plus, a warrant to perform a search or other act can’t just be signed in blank – it has to describe what or where the police will search and what they will take, and only after someone has sworn to a judge that something was observed that appeared to be wrong and the judge agrees with that assessment.

Note that a reasonable search is not precluded in this portion of the Bill of Rights, but what is reasonable is left for later evolution. Also, notice that no consequence of violating these rights is described. Courts did, however, reason that the State somehow benefited from unconstitutional searches. [Remember, we the people are the state.] And to punish the State is a good counter to any benefit derived.

Never mind that officials of the State and the State (We, the People) are two distinct entities. When an official of the State steals from the State’s bank account, he will be charged (unless of course he is a Congressman taking foreign currency) with a crime. But, when an official violates a person’s rights by conducting a search illegally, he is not acting on his own behalf, but rather on behalf of the State and therefore the State benefits, not the official. At least this is the reasoning.

A reasonable person would say that we the people derive no benefit from the seizing of evidence in a search without a proper warrant. A policeman of some official may derive some benefit from the illegal act by increasing his prestige and possibly emolument (paycheck, rank, award, etc.). However, the court punishes the whole State by releasing a potential criminal, forever tainting the evidence against him with the exclusionary rule, but in fact a policeman who decides to break into a home without proper authorization on improbable cause is not punishable by law (this was changed about a century ago around the time of income tax). Certainly, he may suffer some administrative action against him, but it seems clear that because the criminal was released and the bad policeman was not charged that:

Two wrongs were committed, but the larger crime goes unpunished. Effectively, two wrongs make a right!

Now, we can disagree on whether a crime was actually committed and whether any crime is a large one or a small one. But, we should all agree that the policeman who breaks the law is breaking the law, and the criminal who breaks the law is also breaking the law. The court’s current thinking nullifies the wrong of the criminal because the policeman wronged him. But, what about the State? Why are we the people punished along with the official?

The policeman should have to face charges as if he were an ordinary citizen breaking into someone’s home. The damages he and his colleagues inflicted on the personal effects in the home and the home itself are vandalism. If these acts were authorized by a judge in the form of a warrant, the State has a positive defense. Who does pay for the broken doorframe or missing items?

If not authorized by a judge, then it would be like a neighbor breaking in, and at trial the government agent could defend his actions by saying there were exigent circumstances (some person or thing was in immediate danger, for example).

A neighbor could break in to save a child at risk from a fire, and we would all laud his efforts and dismiss the case against him. But, if he helped himself to things he found inside, we would probably let him spend some time alone to consider his character flaws, besides making restitution of the taken items or the damage.

A policeman could break in and just leave the place a disheveled mess with impunity. This is wrong on the face of it.

The accused should never be able to claim immunity because the evidence against him was obtained without a warrant or by some other breach of faith. The prohibition against self-incrimination in the Fifth Amendment overrides the acts of police or even judges to obtain confessions,

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

but the evidence obtained in an illegal search is another matter.

So, doesn’t it make more sense that the police should be able to search even without a warrant and find evidence of a crime against someone, but not be able to compel someone to testify against himself. Afterwards, without the warrant the policeman may find himself on trial for his (unconstitutional) acts, too, or for their acts if other policemen participated.

Note that double jeopardy applies only in criminal cases if we read it in the normal fashion, but not in civil cases. Also note that this restriction appears to be for bench or jury trials only, not in other administrative matters outside of trials, but one could easily argue that, for example, a Congressional hearing where testimony is compelled might result in gathering evidence of a crime. Could that evidence that was compelled then be used against the person giving it? Probably not, but probably against others.

Here we’re not talking about a whole police department going on trial but only those who actually participated or gave orders to perform acts not ordered by a warrant signed by a judge. A policy promulgated from the top down to search cars on routine traffic stops without reasonable cause, probably is a valid reason to charge the whole police department with a crime, although it may engender civil liability, too.

So, in our brave new world, the FBI can without reasonable cause look into financial accounts and if they find evidence of wrong-doing, the account-holder can be legitimately charged, but also the FBI agent (and possibly his boss who ordered it or was reasonably responsible for supervising) can be charged with the illegal search.

Of course, the agent who searches without a warrant may be found guilty (or possibly not guilty) depending on his jury, and if guilty, his punishment could be harsh or very light, depending on the circumstances and the judgment of the jury or judge. What, after all, is the damage to a victim of illegal search and therefore a just recompense? Or, perhaps, it is We the People who are harmed by the act and deserve compensation or justice.

But to letting the criminal go for lack of admissible evidence because the search was not properly ordered is just plain wrong, isn’t it? We, the people (the State), would be happy if they both went to jail – the criminal for his crime and the police agent for his crime.

Paradise-Lost

What was once found…now is lost

Category Archives: Rights