Searching for What Matters

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 no warrants shall issue, 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.
 - United States Constitution, Amendment 4

There is great consensus that the 1765 case of Entick v. Carrington encouraged the addition of the Fourth Amendment to the Constitution.  Mr. Entick was critical of the King; he was suspected of having written documents so declaring which he hid in his home.  Henchmen, under orders of Lord Halifax, stormed into Mr. Entick's house, opened locked cabinets and containers and found what they sought: political speech - or, as it was known then, sedition.  Mr. Entick charged them with trespass - and won because the court ruled that the authorities could not act outside the law even when searching for information that could be related to state security.

But the law had broad parameters including Writs of Assistance: lawfully granted warrants based upon thin air granting customs agents the authority to search anything they thought might contain contraband.  Even before Mr. Entick won his case across the pond, Bay Stater James Otis argued that the Writs of Assistance abrogated British convention - that by issuing such instruments of arbitrary power, the government denounced its own principles of law.  A government that prides itself upon notions of liberty denies its very essence when it disavows the process and principles it put in place to guarantee fairness.  Surely, the warrant requirement has not outlived its purpose.  Indeed, the most recent iteration on the meaning of the Fourth Amendment in the age of electronic surveillance, cites and quotes Entick v. Carrington  in its application of the need for a warrant when the authorities seek to attach a global positioning satellite (GPS) to a private vehicle.

Apparently Congress missed the memo.  They have created and will continue to enforce for at least five years, "lawful" warrantless searches.  But not to worry - it only pertains to suspected terrorists...and the people they talk to...including investigative reporters...and telemarketers.  Some lawmakers are troubled by the possibility of targeting innocent law-abiding Americans if a tangential link could be made to foreign interests. Fortunately, high powered folks like the director of national security have assured members of Congress who had some concerns about general eavesdropping by the government that the law had "no loopholes".  Whew!  That is a relief.

It is not as though most Americans pay attention - or care - as some routinely discuss the most intimate details of recent colonoscopies on cellphones while getting a manicure for all the world to hear.  Which is exactly why these laws can get passed and extended and upheld even when they violate the Constitution; that really irks people who still care about individual liberty.  This matters not because most people are discussing illegal activity on or off the phone or because anyone wants terrorist attacks to occur.  It matters because we have gone into extraordinary debt and we continue to ask the bravest men and women among us to fight and die for freedoms we are, at the same time, ceding to our own irrational fears.  We are concentrating an ever more centralized government holding extreme power - including secret courts and far off prisons with detainees held for years without counsel or process reminiscent of, well, other places.  Reflection is important so that we do not engage in the tyranny from which we fought so hard to gain independence.

Leave for the moment the pivotal case regarding electronic surveillance where the authorities placed a tap on a public phone without a warrant in order to obtain gambling information - which is almost cute now - where the Court ruled that we have reason to anticipate the privacy of our personal conversations.  That is, if the government wishes to listen in, it must get a warrant .  This is, of course, the law of the land regardless of what Congress seems to think.  But, engage in the history of not just interception of conversations, but actual conversations and miscommunication, also threatened by this unregulated monitoring.  

123 years ago, a horrific massacre occurred at Wounded Knee where American soldiers murdered  hundreds of unarmed men, women and children based largely upon a miscommunication.  It was right about Christmastime when one Paiute elder had a vision of a Messiah returning to Earth.  In his version of the Second Coming, the white man vanished as the bison returned in abundance with the spirits of native ancestors establishing peace ever after.  One would be hard pressed not to dream that dream when promises had been broken, treaties ignored, and starvation supplanted bounty that had ever graced the beautiful land.  And, in dreaming, dance to bring the vision to life.  That Ghost Dance, along with a deaf man who did not understand a soldier's order to surrender his expensive rifle, somehow got lost in translation resulting in the brutal, unconscionable slaughter of a people and their dreams.  

Twenty of the soldiers who opened fire on unarmed civilians, including infants in their mothers arms, who then chased down those who fled and killed them in cold blood, were granted not just commendations, but Medals of Honor for "bravery".  This cruel salt penetrated the open wounds of all who survived, their descendants and all Americans who must struggle with our conflicted history of freedom and honor and truth and fairness.  And, it is not as though this was an isolated event: the Dakota War almost thirty years before was prompted by similar broken promises, treaty violations and mass starvation.  For the more than 1000 who surrendered in that incident, trials reminiscent of the Star Chamber ensued; 38 men were hanged in the largest mass execution in American history.  Congress then drove the Sioux people from their homes and abolished their sovereign lands.

This was our government of the people, by the people, for the people.  This was we the people who murdered in cold blood and called it heroism.  This was we the people who forfeited the rights of others to fair trials before hanging them.  We the people forgot our principles, our identity and our morality and in so doing unleashed horrors for which we have not yet begun to answer.  Now, we the people have declared a war on the abstract of terrorism and in doing so we are violating every single thing we claim to believe in...again.

While there is absolutely no correlation between Native American people and Al Qaida, the historical lessons warrant review.  There is no doubt that white settlers in the West, most of whom had no understanding of this history of the conflicts with Native Peoples, and virtually none of whom grasped the devastation that befell those who suffered from Congress' refusal to uphold treaties it pledged to honor, feared the threat of attack by various tribes.  Those attacks were very real; innocent people were killed.  But the approach to the problem was to annihilate populations of people, including women, children and the elderly, who did nothing wrong.  There was no concern for rights or principles or "American values" because fear governed.  When we abandoned our core beliefs for fear's sake, we acted in disgrace.  The effects of The Dakota War and Wounded Knee and the Trail of Tears and all of the other brutal, immoral and incomprehensible actions our country took when it tossed aside the rule of law are still with us today.  Yet we forget those lessons whenever fear takes hold.

There is no question that people today, most of whom have no understanding of the forces behind Al Qaida and virtually none of whom grasp the global and ideological doctrines that seem to direct the madness, fear the threat of attack by terrorists.  Those attacks are very real; innocent people die.  But, the remedy for tackling the elusive forces of terrorism is not to deny our own foundational principles.  In seeking independence from a monarch, we vowed to create and sustain fair laws for all people, making this promise real with the ratification of the Fourteenth Amendment.  Our universal preaching on democracy and autonomy is hollow oration when we ignore our own historical battles.

No tax, no shot fired into an angry mob, no Intolerable Act or single event sparked the American Revolution more than unreasonable searches and seizures.  So integral was the right to be secure in one's home, person and effects that John Adams wrote to Abigail commenting that the Declaration of Independence was born in the courts of Massachusetts in 1761 with the cases on the writs of assistance.  Not only does artwork grace the Massachusetts State House commemorating James Otis pleading against the writs, but our own Art. 14 provided the impetus to enlarge the Fourth Amendment from its initial mere prohibition of general warrants to the broader (though not as broad as Massachusetts') reach it would ultimately encompass: the government can gain access to search and to seize, but it must be reasonable, premised upon probable cause, and secured by warrant.  It is not too much to require our lawmakers to make laws that honor who we are, not who we fought against in order to become who we are.

So, it matters that FISA reaches as broadly as the writs of assistance.  And, it matters that, barring judicial intervention, it will remain so for at least 5 more years.  And, it matters that there are secret courts enforcing these general warrants.  And it matters that we have no idea whose conversations are intercepted and why.  And it matters that those who listen in may hear what they think is being said rather than what is being said.  And it matters that we abide constitutional promises as we are asking men and women to die for them.  And it matters that America embodies the open and transparent government it promises.  It is not enough to say we believe in principles; we communicate those beliefs in our actions.  If nothing else, we must remember that miscommunication has led to massacre before.  And it matters.

Trigger Restraint (Banning High Powered Weapons Under The Second Amendment)

In the wake of the incomprehensible shootings in Newtown Connecticut which came in the wake of Virginia Tech which came in the wake of the Amish School Shooting which came in the wake of Red Lake which came in the wake of Columbine which came in the wake of  Stockton, CA which came in the wake of Cleveland Elementary which came in the wake of other shootings, explosions, suicides and homicides in schools, America once again is talking about gun control and mental health issues.

Without in any way minimizing the unspeakable acts of December 14, 2012, some numbers are important because individual deaths are just as senseless as multiple deaths.  In the United States, an average of 33 homicides occur each day by guns, over 30,000 people die from gunshots each year.  More than half of those are suicides.  The more guns that exist, the higher the death toll; the more powerful the guns, the more victims result.  The notion that guns are not the problem is patently false.  Because roughly half of the suicides in this country involve a gun, mental health concerns and gun storage factor into the discussion, but guns themselves cannot be left out.

Individual liberties must always balance against societal function.   Amid the heart wrenching photos of smiling first graders and their teachers senselessly killed are strewn thousands more faces, mostly poor, mostly urban, mostly unheralded children and teenagers and adults just as innocent, just as promising, just as lost to gun violence.  Guns, glorified in communities rich and poor (with poor communities bearing the brunt of most enforcement regulations), infest this great democracy with fear, abuse, irrationality and death.  Without common sense and societal restraint, even foundational concepts such as liberty and self determination result in anarchy, the antithesis of democratic aspirations.

Ideas related to more guns cannot provide answers as they do not address the correct question.  The question begged by recent Supreme Court rulings is whether and what types of weapons can be regulated or even banned by the federal and state governments.  In United States v. Miller, 307 U.S. 174 (1939), the Court declared that, absent a direct relationship between a restricted firearm and its necessity to a well-regulated militia, laws related to firearms did not violate the Second Amendment.  Indeed, District of Columbia v. Heller upheld and reaffirmed this idea.   The majority opinion of McDonald v. Chicago "incorporated" the Second Amendment to the states via the Fourteenth Amendment, a ruling so bereft of reason and logic that it boggles the mind; Justice Stevens' thoughtful and profound dissent in that case addresses the problems with that interpretation which will be reduced here to the statement that the Second Amendment's history clearly reflects a protection for the individual states to counter an overly aggressive federal government.  However, since the majority in McDonald depends on the interpretation in Heller, it, too, does not prohibit gun control laws.

Assuming, arguendo, the recent Supreme Court conclusion that there is an individual right to bear arms, that right is not limitless.  The right to freedom of speech is limited by time, place and manner; the right to freedom from unreasonable searches and seizures carries a broad interpretation of "reasonableness"; the right to freedom not to be compelled to self-incriminate permits police tricks and outright lies to coax confessions; the right to a lawyer in a criminal case does not "attach" until after arraignment and on and on.  Restrictions on all weapon purchases, licensing, registration, insurance obligations, safety training, and background checks are all warranted under the Second Amendment.  Outright bans on specific weapons with eminent domain buyback, seizures of qualifying weapons and immediate constraints on production in anticipation of a ban are not only lawful but reasonable acts to protect ordered liberty.

The earliest recorded domestic attack on school children seems to be the Pontiac Rebellion School Massacre in 1764 when members of the Delaware Tribe - who would later face retribution by their elders for targeting children - shot, killed and scalped a schoolmaster and 10 of his pupils.  Tribal assaults were real and therefore colonists often required men to have sufficient arms for protection.

In Colonial America, two great threats existed: the native populations and the foreign rulers.  Firepower was deemed necessary for defense from both threats resulting in the formation and regulations of militias. But a funny thing happened on the way to the nation; General Washington, appalled at the amateurish militias, encouraged a standing army - considered a threat in and of itself to those concerned with individual liberties.  The result was that the Constitution permitted both a standing army but also state militias where, historically, members paid for, owned and knew how to use their own muskets.

Colonists and early Americans were armed not only based on fears of martial law, but because there were no police forces.  Societal norms we now take for granted - First Responders - simply did not exist when the Constitution was ratified.  Today we pride ourselves on great military power in the best trained Army, Navy, Air Force, Marines and Coast Guard.  We train and regulate a national guard and each state has a militia or state guard.  We have federal police forces.  We have state police forces.  We have local police forces.  Regardless of what one's individual position about guns is, we have tackled many of the reasons for individuals to have arms for the common defense.  The proper question is not whether, but how, to regulate high power weapons in the hands of individuals and what restrictions must occur at the federal level. 

The very same people that decry a reduction in funding to the federal military, and seem to insist on policies strengthening the federal government's power over the individual incongruously seem to want a gun in every hand.  This is ideologically dishonest as those who believe in a strong federal government seek less power in individuals while those who believe in a weaker federal government seek to protect individual liberties.  One cannot have a stronger military, more police powers in the national and state arsenals, fewer freedoms to move about and more firepower in the hands of individuals without fomenting significant violence.  That is not an expression of democracy; it is a form of insanity.

One of the issues in Aaron Burr's trial for treason was whether the 50 or so men associated with Burr and the quest for Spanish controlled lands were armed as farmers or as military.  If they had materiel normally associated with warfare, that trial may have ended quite differently as the type of weapon itself could establish intent.  Arming for battle is clearly not part of American gun ownership history.  There is absolutely no protection in the United States Constitution or any other document that has ever graced this planet for an individual to possess for personal use of any kind arms with the made-for-soundbite name: "assault weapons."  The Framers were revolutionaries; they were not crazy. 

Specific items categorized as assault weapons vary; many are lightweight and mobile.  They range from semi-automatic firearms which shoot one bullet at a time but reload without additional human intervention (so that once a shot is fired, provided enough bullets are in the magazine or feeder, the gun will reload it and get another bullet ready to be fired) to grenade launchers.  None of the firearms deemed an assault weapon is a flintlock musket, the most common weapon known to the the Framers - the one that weighed between 7-8 pounds, was difficult to hide, required 13 steps between firings including tearing open a cartridge with one's teeth and which had a fairly poor accuracy record.  If the textualists want to be true to their text, this is the highest firepower that is protected under the Second Amendment's individual right to bear arms.  Few gun opponents would object.

But they do not want to be true to the notion, mostly because the idea that words have some kind of fundamental structure that makes them rigid in time and space itself is absurdly silly and, in relation to Constitutional interpretation, one shared by an exceedingly small and marginalized group.  Two of that tiny group, however, have some clout.  One issue to ponder is, unlike the last high power weapon ban in the 1990's (prompted by another horrific school massacre that people promised to remember but have all but forgotten), presuming Congress can pass a prohibition on some sorts of weapons, what criteria will the Court use to determine its constitutionality?  The correct analysis must focus on the type of weapons as well as appropriate regulations for purchase, use and storage. Fears of judicial reaction must not inhibit any real federal efforts as the mournful eulogies from 26 funerals hang in the air.


There is great talk by gun advocates that, not weapons, but mental health is the crux of the problem as several murderous sprees have involved legally obtained weapons used by severely disturbed individuals.  It is true that access to guns, mostly unlicensed and unlawfully held, in the poorest areas where the greatest number of gun deaths occur seems unaffected by gun control laws and therefore it is fair that we address the laws we have to determine efficacy.   Similarly, the identification, treatment and loss of stigma in regard to mental health must play a role - and not only in the purchase and access to guns, but also as part of the fabric of the American condition - but this does not prevent new laws restricting and eliminating certain weapons.

Under the Supreme Court's own interpretation, a federal ban could apply to the common denominator of all weapons not deemed necessary by the individual states for their militia.  All qualifying items could be removed from commerce through a massive eminent domain buyback and destruction program.  Each state could then further restrict any weapons it deemed unnecessary to its militia that did not fall within the federal ban.  Such a broad prohibition should rankle those who favor individual liberties, even those who despise guns, but it should be deemed constitutional.  Therefore, a compromise somewhere within this almost absolute ban as determined by the states and the free access that currently exists falls within the meaning of the Second Amendment.

Yelling "fire" in a crowded theater does not fall under the broad and grand protections of the First Amendment.  Whatever its parameters, firing automatic weapons in a crowded schoolhouse does not fall under the Second Amendment.  Until we become rational about guns, these irrational murders will continue in leafy suburbs and concrete alleys from sea to shining sea.  We, the People, can  - must - do better to ensure domestic tranquility and establish justice as we continue to form a more perfect Union. 

Mitigating Malice - What the Prosecutor Must Explain to a Grand Jury and Why

An educated citizenry is a vital requisite for our survival as a free people.
- Thomas Jefferson 

Indictment by grand jury, duly drawn from the community, sought to limit direct accusations by government officials.  Yet, grand juries have become an appendage of the Executive Branch of government which is often a tool of the Legislative.  The Fifth Amendment to the United States Constitution, provides for indictment by grand jury; it is deemed to be incorporated to the states via the Fourteenth Amendment.  But, in Massachusetts, with a constitution predating the United States' by almost a decade, the necessity of indictment by grand jury was not mentioned.  Federalist John Adams, the author of the state constitution, inserted the phrase, "the law of the land" into the Declaration of Rights Art. 12 which has been cobbled together with statutes and rules to establish a mandate for the practice.

Presuming the requirement for a body of people, rather than a government official, to indict, there lingers a question of responsibility: for the people to determine probable cause, must the Commonwealth present mitigating evidence?  In a split decision remarkable for the persuasive value for each of the three markedly different judicial opinions rendered, the Supreme Judicial Court tackled the question of whether the status of the target of a murder investigation as a juvenile alters the framework thereby requiring the presentment of mitigating evidence.  The short answer is that when a juvenile is charged with murder, the prosecutor has a duty to instruct on appropriate defenses and mitigating circumstances.  While the circuitous route to this conclusion is not wholly satisfying, the ramifications may lead to a slaking surfeit of historical magnitude.

In reaction to a spate of younger and younger members of society inflicting more and more violent offenses, Massachusetts law on juvenile justice radically changed in 1996.  Before then, a juvenile court would hold a two part hearing to determine whether the individual would be tried in juvenile or adult court; this affected a number of aspects of the trial as well as the sentence.  The new law altered several factors related to juveniles, but the one in question solely relates to murder.  Murder is a crime committed by adults and therefore those who are accused are indicted and tried as adults for all purposes.  The sentence for murder in the first degree is mandatory life with no possibility of parole (still true "on the books" for juveniles despite Miller v. Alabama) and the sentence for second degree murder is mandatory life with the possibility of parole.

First, the Supreme Judicial Court unanimously agreed that sufficient evidence had been presented to the grand jury; a conclusion in direct contradiction to the Superior Court judge who tossed the indictment. From there, the justices embarked upon three journeys which could not be more different or more interesting.  Justice Spina authored the dissenting opinion (joined by Justices Cordy and Ireland) which essentially averred the limited role of the grand jury and the power of the Legislature to fashion appropriate statutes.  Presentment of sufficient evidence for the grand jury legitimately to find probable cause to arrest for second degree murder satisfies any and all requirements: no special rules were necessary dependent on the defendant's special circumstances or the particulars of the offense.  Any other issues must be sorted out at trial.

The trial, claimed Justice Lenk, is the crux of the problem.  Weaving in recent Eighth Amendment jurisprudence and the traditional safeguards provided to juveniles, she noted that the troubling part of the accusation is that the charge itself decides how and where the case will proceed.   Because indictment for manslaughter retains the matter in juvenile court and affords the young defendant with protections unique to his circumstances, the grand jury should be so apprised.  The grand jurors should have sufficient information to indict for the proper offense in order to ensure a fair trial.

Justice Gants goes further (joined by Justices Botsford and Duffly) claiming that when prosecutors seek a murder indictment of any individual of any age and there are mitigating circumstances rising to the level that, if concealed from the grand jury it would impair the integrity of the proceedings, the government must instruct on the elements of second degree murder and on the legal significance of the mitigating circumstances.  Indeed, the decision says, "[u]nder Art. 12 of the Massachusetts Declaration of Rights and G.L. c. 263 §4, a defendant may not be indicted for a felony unless a grand jury, based on sufficient evidence, find probable cause..."  The statute is clear, the constitutional provision is not.  Either way, the point this opinion makes is that presentment of mitigating circumstances is meaningless without explanation to a lay jury and that the prosecutor also must conduct some investigation prior to presentment for indictment.  Only with the full picture can a grand jury indict properly. 

All three are thoughtful, well-reasoned and persuasive positions.  In essence: 

Justice Spina's conclusion is that the legislative determination, despite the reasons for treating juveniles differently, is not inappropriate for accusation: all mitigating evidence will be presented at trial and so it will all come out in the proverbial wash.  The role of the grand jury is not to parse but to realize whether probable cause exists or does not exist.  Unspoken is whether if grand juries must hear all mitigating evidence to determine probable cause, must a judge issuing a warrant hear such evidence as well and under what conditions does the minimal burden of probable cause require a complete picture?  That is, even assuming the ill conceived legislative directive, the response is not to place new constraints on an accusatory body which traditionally only heard evidence from one perspective.  

Contrasting that is Justice Gants who alludes to the investigatory history of the grand jury as a body separate from the elected or appointed government.  In this model, the grand jury is not just an accusatory arm of the government, but it seeks to establish and endorse community values separate from any desire of elected officials to prosecute.  These American roots run deep as the grand jury requirement post dated the travails of John Peter Zenger who was accused and arrested by government officials without input from the people.

While Justice Lenk takes an entirely different tack by incorporating the special circumstances of juveniles, supported by persuasive scientific research.  Her decision seeks to ensure that the grand jurors have a complete picture only as to this special population because the charge itself, in the hands of the Commonwealth alone, removes protections that society seems to want in place.

The overall effect of Commonwealth v. Walczak, 463 Mass. 808 (2012), without even trying, raises the spectre of jury nullification, an historical bulwark against tyranny.  And, it raises it in the accusatory phase of the proceedings.  Checks and balances of and by the three branches of government tempered by public sentiment establish the foundation upon which our republican system functions and these three approaches highlight this struggle.  Historically, investigative and accusatory grand jurors knew the penalty for the crimes they indicted.  They knew that their secret determination on probable cause could result in a public hanging.  But, as a majority of the Supreme Judicial Court expresses, grand jurors today are wholly unaware of the consequences of their accusation.  They have a limited role to conclude whether or not - mitigating evidence notwithstanding - the low threshold of probable cause has been met.  It is as though the powers that be do not want the people - there to protect against an authoritative government - to know the magnitude of this role.

This very approach has allowed for harsher and harsher sentences to attach to these offenses with fewer and fewer people apprised of the truth.  Putting aside the narrow majority related to juvenile murder accusations, query whether ordinary people would indict for crimes if they were provided with the aggravating circumstance that a conviction would result in a particular outcome.  Would it alter the process if grand jurors were given the range of sentencing options, particularly if there is a required sentence on any charge?  What if they were provided with the cost of incarceration per year?  To conclude that this is not the role of the grand jury is false.  Massachusetts has no constitutional provision save "the law of the land" (which has been deemed code for due process of law); the statute does not prohibit investigation and, indeed, encourages it.  If the grand jury is not a glorified arm of the Executive Branch enforcing the often draconian pronouncements of the Legislative Branch but is, indeed, an independent body, then isn't this information appropriate and even required?

In addition to the long and illustrious history of jury nullification for petit juries, there is a history of jury nullification for grand juries as well.  When Americans were not so afraid; when Americans were interested in the truth; when Americans still nursed their revolutionary battle wounds and experimented boldly with self governance, they disavowed rules and regulations that did not comport with their own sensibilities.  To do otherwise would be treason itself.  Scores and scores of people today bluster about the Constitution (they often have not read or understood) while 21st Century thought seeks guidance from 18th Century wisdom but few talk about the power of people to effect change by fighting back as jurors, grand or petit.  Indeed, our criminal justice forum has limited and constrained the voice of the people in ways unimagined by the Framers.

The federal Constitution twice protects the right to a jury trial for criminal defendants (three times if one counts interpretations of the Fourteenth Amendment granting independent due process of law) and it did so with a backdrop of jury nullification when enlightened thought embraced the law of the land.  The notion of independent townsfolk indicting (or not indicting) those facing a loss of liberty spoke volumes about what the new democracy intended.  That world, unlike ours, was one of limited voting opportunities (constrained primarily by property); all federal officials were indirectly elected by a relatively small enfranchised populace.  The voice of the people resounded in the courts where it now echoes in silence as too many cases resolve by plea (often dependent on grievous sentencing parameters) and courts prohibit juries from learning the consequences of the verdict.

But a majority of the Supreme Judicial Court, perhaps without even realizing it, just opened the door to raising and demanding that the grand jury be provided information on a variety of topics related not just to mitigating circumstances for juveniles, but also aggravating circumstances of the indictment itself.  The decision begins the conversation related to what the grand jury must know before it can accuse fairly.  This slight daylight allows for resurrection of the grand jury asserting its unqualified right not to indict. This is particularly vital where the course of procedures and the outcome depend on the accusation such as, for example, when a minimum mandatory sentence attaches to a particular charge.  The same clamor for voting rights must extend to juror rights: the beliefs of lay people representing the community matters.  There is no possibility that they will understand the ramifications of their decisions unless they are so instructed.

The question is not whether, in a democratic republic, juries, grand or petit, should be afforded the opportunity to correct an overreaching Legislature or an aggressive Executive.  The question is why the people who have created the laws and set the policies tremble in fear of what the populace will do with knowledge once they obtain it.

         

Wrong Number: The Limitless Limited Search

The history of liberty is a history of limitations on governmental power, not the increase of it.      - Woodrow Wilson

We forget history at our peril.  And, so, the Supreme Judicial Court has decided, in Commonwealth v. Berry and  Commonwealth v. Phifer that when a cellphone is seized incident to lawful arrest, the police can, without violating the Massachusetts Constitution, search that phone for recent calls.  It is fair to proclaim that the Framers could not have anticipated the modern world; it is not fair to proclaim that they would have allowed government - without a warrant - to know or obtain information on who speaks to whom at what time on any given day.

Historically, searches have a way of sidestepping the law and then creeping into jurisprudence as though they had always been legitimate. Indeed, checking phone logs without a warrant bears a striking resemblance to Star Chamber practices of seizing and prying onto personal papers later used in prosecution.  In 1765, Lord Camden outlawed the practice as violative both of the principle against self incrimination and the repugnance of general warrants.

Not just nosy searches and seizures but also the proposed prosecutorial value of their fruits influenced early Americans as they pondered the Fourth Amendment.  In Warden, Maryland Penitentiary v. Hayden, Justice Douglas made this connection and noted,

Our question is whether the Government, though armed with a proper search warrant or though making a search incident to an arrest, may seize, and use at the trial, testimonial evidence, whether it would otherwise be barred by the Fifth Amendment or would be free from such strictures. The teaching of Boyd is that such evidence, though seized pursuant to a lawful search, is inadmissible.

Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 319 (1967)(Douglas, J., dissenting).  The testimonial evidence in that case was clothing matching witness descriptions of a robber that had been seized from a washing machine during a lawful search.  Justice Douglas' minority view was that anything taken by an individual without his consent and used as testimonial evidence violates the Fifth Amendment. Id. at 320.  His point, lost to history, was that by permitting a search here and a seizure there, pretty soon it all adds up to a withering away of the purpose of the Fourth Amendment, to protect a zone of privacy free from government intrusion and prosecutorial use (thereby implicating the Fifth Amendment). 

Justice Douglas' concerns proved prescient in Terry v. Ohio, a decision that now seems quaint, where the Supreme Court of the United States puzzled over the notion of a "stop and frisk." That famous case birthed the novel idea that the Constitution allows a police officer - who possesses not probable cause, but a reasonable and articulable suspicion that criminal activity might be afoot - to accost an individual and pat him down for weapons.  The decision was intended to balance police officer safety (an undeniably legitimate concern) with personal integrity (an undeniable individual liberty).

Additionally, the question arose as to whether any discovered weapons or contraband could be used against the individual so stopped.  The Court cited two cases that bear mention: a civil case from 1891 refusing the authority to force a woman to submit to a physical examination in a case where she alleged injury and damages and a 1914 criminal case where the Court excluded from trial evidence obtained by police when they obtained a key from a neighbor and then were granted access by a boarder at a private home from which they took incriminating documents to prove fraud by the mails in relation to lottery tickets.  It then wrestled with its duty to fashion a fair equation balancing safety on the one hand with personal integrity on the other before launching an analysis considering whether the evidence, if any, obtained in such an endeavor could be used lawfully to prosecute.  No contraband or other evidence was germane to the decision as it rested solely on a permissible pat-down was for weapons which, if illegally possessed could be prosecuted.

Although long forgotten now, Terry established a two step process regarding both the authority of the police to stop and frisk and the evidentiary value of items seized cautioning against, "lawless invasions of the constitutional rights of citizens by permitting unhindered governmental use of the fruits of such invasions." Terry v. Ohio, 392 U.S. at 13.  This was a narrow decision designed to guard against street violence against police officers; it specifically stated that the authorities must obtain a warrant for any other search whenever practicable. Id. at 20.  Justice Harlan's concurrence emphasized the danger to law enforcement from concealed weapons (the word "weapon" appears 63 times in the decision), almost encouraging state legislatures to enact provisions to protect officers on the street.

In that case, Mr. Terry and his friends had been casing a shop with the intent to rob or burglarize it arousing the suspicions of experienced police officers who foiled the attempt.  Mr. Terry (and one other) carried a concealed firearm - he was charged and convicted of unlawful possession of the same and sentenced to 1-3 years in prison.   Today, we forget that the issue surrounded the danger of concealed weapons (indeed, the NRA is pushing for state legislatures to expand all firearms rights, as "individual liberties" protected under the Second and Fourteenth Amendments).  Indeed, this "limited and narrow" Fourth Amendment violation no longer depends upon a reasonable or articulable concern for crime or fear of weapons; stop and frisk is a daily event for many people of color.

As he did in Warden, Maryland Penitentiary, Justice Douglas dissented in Terry v. Ohio.  Championing the roots of the Fourth Amendment, he remarked that giving police more power than a detached magistrate, "is to take a long step down the totalitarian path. Perhaps such a step is desirable to cope with modern forms of lawlessness. But if it is taken, it should be the deliberate choice of the people through a constitutional amendment." Id. at 38 (Douglas, J. dissenting).  This path abruptly ended in a steep cliff off of which we have decidedly jumped.

To be sure, a stop and frisk is not the same as a search incident to arrest as a search incident to arrest must, necessarily, be premised upon probable cause.  While a stop and frisk balances the safety of the police as against the individual's right to personal integrity, a search incident to arrest is (a) to protect the safety of the police, (b) to secure contraband that could be destroyed, but not (c) to obtain evidence by which the authorities can then prosecute.  It is still a tool for safety, not a fishing expedition unless of course we are in Massachusetts and a cellphone is involved. 

Cellphones are neither dangerous nor contraband; the only purpose in searching them can be for the purpose of prosecution.  This is certainly a search under the Fourth Amendment and Art. 14 as one has a reasonable expectation of privacy in one's phone (and indeed in everything one wears or carries on one's body).  The comparison the SJC made to a gym bag seized in Commonwealth v. Madera is laughable -  a gym bag could hold not only offensive odors but also contraband and weapons that could pose a danger to police officers.  But a cellphone cannot.  It has private information including thoughts and personal contacts subject to other protected rights such as the right not to be compelled to self-incriminate, the right to free speech and the right to be confronted with live witnesses, rights completely ignored in these troubling decisions. 

Even if we put aside whether a cellphone is properly seized incident to arrest, it being neither contraband nor weapon, given the practicality of obtaining a warrant to search any of its contents, the Court should have so required.  Because the SJC found no constitutional violation in this "minimal" search, evidence thereby obtained will be admissible in violation of the Fifth Amendment and Art. 12 despite its testimonial nature (as Justice Douglas likely would find, who one chooses to contact and for whatever purpose such contact is sought is intrinsically testimonial and subject to Fifth Amendment protections).  The hemming and hawing over how tiny this step is and how limited it is echo the limitations the Court placed upon Terry-type stops which have exploded into "stop and feel", harassing lawful citizens and even into full-on arrests without probable cause.

By ignoring history, Americans have confounded our very purpose of self government.  It is not to eliminate government or the good that government can, should and must do to effect a civil, free and fair society.  It is, however, to protect individual liberties in the face of a police state.  Erosion of rights occurs in increments and we are like frogs set in a pan of cold water unaware that as the temperature increases we will eventually boil to death. 

Jumping Off the Fiscal Cliff, Landing in Troubled Waters

“The test of our progress is not whether we add more to the abundance of those who have much; it is whether we provide enough for those who have too little.”

- Franklin Roosevelt

The legal definition of "sequestration" is to take into custody property of those held in contempt.  Whether it is a metaphorical cliff or slope or staircase, the plummet of sequestration will have its harshest effect on the most vulnerable members of society, a population continually held in contempt simply for being poor.  Among the programs to be cut if Congress fails to act are Head Start, child care assistance, special education, substance abuse treatment, community health services, nutritional and housing assistance.  These programs provide necessities, not luxuries, to our neediest community members.  The cost of failing to engender even a modicum of dignity and sustenance may include far higher costs in increased criminal activity; the overall price will be more, not less despair.

Poverty itself is a crime; being poor is not.  Yet, since our earliest days, we have treated the poor like vermin.  Long before tea dumped into Boston Harbor, long before taxation without representation created a political slogan, convict transportation from England to the Americas was common practice.  Early on, these United States were populated by convicted felons, indentured servants and slaves; of these convicts were the cheapest source of labor.  Because those convicted of crimes were already somewhat outside the protections of the law, conditions of transport, no doubt, were abominable, with many dying on the journey and upon arrival.  Because there had been no price paid up front and no triangulation, such as with captured Africans, it is unknown what value convicts had and how expendable they were.  And they posed a risk: how could one count on continued servitude of a criminal?

Aside from the purchase of convicted felons on the cheap, America's early "poor laws", among other things, permitted the vendue of the poor.  This was considered "relief" to the impoverished - selling them at auction to the lowest bidder for their (wholly unregulated) care.  Only those with no family to support them were even eligible for this assistance.  Those with families were required to rely on them, not society, for their sustenance.  One need not think too hard to realize that this often led to more impoverishment rather than less.  If society helped with the care of one person, the remainder of the family might have enough to survive and provide a tad more to the next generation in order to thrive (indeed, recent studies on food assistance so prove).  Instead, the poor laws plunged marginal families to destitution perpetuating poverty and all its ills.

Able bodied adults would be forced to work; able bodied children essentially sold into apprenticeships and Americans really never thought of this as anything more than proper and just.  While we shudder today at the idea of selling human beings into bondage for the offense of being of African descent, we barely glance at this history of, well, selling people into bondage for the offense of being poor. We still insist that the poor work for any public help they receive.

Without much thought, society labels crimes associated with poverty: violence, drugs, and theft as more pervasive, more frightening and worse than crimes associated with wealth: identity theft, faking drug labels and embezzlement.  There are no qualms about punishing crimes related to poverty more harshly than crimes that destroy entire societies.  The Thirteenth Amendment even left open an exception to slavery and indentured servitude as penance for crimes (the definition of which had to be street crimes as a notion of "white collar crime"  would not exist until 1939.)  Violent crime has been associated with poverty for so long that it the two ideas are almost synonymous.  Law permits the police to describe an area as "high crime" in order to justify a stop of an automobile or a person.  By "high crime area", it is unlikely that they mean Wall Street even though deviance through non-violent, financially motivated offenses permeates society and affects significantly more people than street crime.

When history is honest it reveals that poverty was and continues to be the greatest offense to the American psyche.  To obtain assistance under the poor laws, one needed to have "settlement" (which is a lot like the modern quarrel about who "belongs enough" to be worthy of their neighbors' care.)  This notion of settlement affected who was even eligible for the horrid conditions of a poor workhouse.  Indeed, communities sued each other over who was responsible to pay for the care of a poor person whose settlement was in dispute.  Then, as now, there were deserving and undeserving poor.

Poor laws help explain the continuation of slavery even by states that had outlawed the peculiar institution.  That is, if a community were liable for its poor and it permitted manumission of impoverished slaves, not only would freed slaves become local vagrants without work, but "owners" could unload their elderly, infirm, idle and otherwise unprofitable workers at whim to the care of the state.  To guard against this occurrence, states with higher slavery rates instituted strict laws related to manumission including everything from outright prohibition to the requirement of freed men and women to leave the state within a short period of time of being granted freedom.  To prevent these same folks from becoming a burden elsewhere, in addition to local poor laws in states with high slavery rates, states with low or no slavery prohibited, or limited through high bonds, freed slaves from settling there.  With nowhere to go, even manumission was effectively meaningless.

Fear of poverty and caring for the poor fomented race bias as migration occurred with the end of the bond system and the increased demands of industrialized America.  This combination led to harsher criminal penalties for crimes, particularly those associated with poverty.   Today, it costs roughly half the amount of money per year to house, feed, clothe, and educate a member of society - even an entire family - than it does to remove any one person from society into prison.  Add to that basic cost, providing counsel to the indigent charged with crimes, the cost of the court system to prosecute, defend and adjudicate those offenses and the pricetag of longterm medical care for those serving long sentences (all of which also face cuts in sequestration).  Policies intended to punish the poor have created more problems and cost society more money than simply addressing poverty and our attitude toward the poor.

Without minimizing the difficult decisions Congress must make after years of reckless borrowing and costly wars, query whether entitlements for the poor are the problem or the solution to the nation's woes.  Neither extolling the virtues of the Framers on this topic nor ignoring that most did not believe that the poor should even vote, let alone care one way or the other about the survival of the impoverished, history may be of assistance.  Major reform movements of the 19th Century, unapologetically rooted in the very same morality that instituted the original poor laws, brought a new consciousness to the plight of the poor and the effect of poverty on the rest of society.  Those efforts would eventually result in federally funded social welfare programs, many of which were instituted during the greatest fiscal disaster of modern times.  These programs, along with those created in the 1960's, demonstrate compassion, reflect a societal priority and are now an accepted aspect of American life. They also lifted us out of the Great Depression and gave meaning to much of the Civil Rights movements.  The opposite - treating the poor like criminals, criminalizing the effects of poverty, and ensuring continued poverty through policy choices are historically proven to perpetuate and compound rather than eliminate problems. 

Sequestration will affect the poor severely leading to higher poverty rates, more crimes associated with poverty, and higher costs in regard to prosecuting and defending those offenses with further ramifications for future generations.  This affects all of America - North and South, 53% and 47%, blue and red alike.  Aristotle warned that poverty is the parent of revolution and crime; thus the cost of cutting welfare programs in a time of great need may become a terribly expensive error.  If we insist upon the attendant punishments for poverty-related crimes, especially without ever addressing "white collar crime" in a meaningful way, we will continue to bankrupt our future premised upon fear and loathing of the poor rather than our disgust that poverty exists at all in a nation premised upon equality with liberty and justice for all.