The STOCK Act’s Muzzle and How to Fix it in Conference (Update)

Good News/Bad News On Human Spaceflight Regulation

Utah Doubles Down on Gambling Prohibition

Facebook Filing Blasts Obama-Bush Overregulation of Sarbanes-Oxley and Dodd-Frank

Justice Kagan Should Recuse Herself from Obamacare Case

Michigan SEIU Scam the Product of Government Collective Bargaining

ACLU

Civil Rights Commission: Administration Lied About Who Dropped Voter Intimidation Case

by Hans Bader on October 29, 2010 · 1 comment

in Legal, Personal Liberty, Politics as Usual, Sanctimony, Zeitgeist

The U.S. Commission on Civil Rights has found that political appointees, not career Justice Department lawyers, made the decision to drop a voter intimidation case against two black panthers after the Justice Department had already won a lawsuit against them by default. That contradicts claims made by the Obama administration and its civil-rights chief, Tom Perez.

Earlier, a career Justice Department lawyer, Chris Coates, testified that under the Obama administration, the Justice Department has a policy of systematically ignoring voter intimidation and voting-rights violations when the perpetrator is a minority.

The case arose out of intimidating behavior by members of the bigoted New Black Panther Party outside a Philadelphia polling place.

The testimony by Coates, a former ACLU lawyer hired by the Justice Department under the Clinton administration, “supported earlier accusations made by J. Christian Adams,” a former Justice Department lawyer:

Adams had told the commission that DOJ officials “over and over and over” showed “hostility” to prosecution of voter-intimidation cases involving “black defendants and white victims.”
Adams testified that Associate Attorney General Thomas J. Perrelli, a political appointee, himself overruled a unanimous recommendation for continued prosecution by Adams and his associates of voter intimidation of white voters by members of The New Black Panthers at a Philadelphia polling place in 2008.
Adams had also testified that Julie Fernandes, a deputy assistant general in the Civil Rights Division in charge of voting matters, told Voting Section leadership that the Obama administration would not file election-related cases against minority defendants — no matter what the alleged violation of the law.
Coates verified Adams’ testimony about Fernandes, and also said he had been “specifically instructed” by Loretta King, acting assistant attorney general for civil rights, “not to ask any other applicants whether they would be willing to, in effect, race-neutrally enforce the VRA (Voting Rights Act).”

The Washington Post recently ran an interesting story about “deep divisions” and internal infighting at the Justice Department about whether to enforce the civil-rights laws “without regard to race,” even in cases where the perpetrator may be a member of a minority group — like the Ike Brown case in Mississippi, where a black political boss violated the voting rights of many whites as well as a few blacks. (Lawyers who worked on that case during the Bush Administration ended up being harassed by left-wing colleagues who did not believe that the civil-rights laws should be enforced when the perpetrator is a minority. A relative of one of those lawyers who worked in the Justice Department was also harassed.)

The Supreme Court has ruled that voting rights protect people of all races, not just members of historically disadvantaged groups.

Gene Patents Ruled Invalid

by Greg Conko on March 30, 2010

in Culture, Health and Illness, Healthcare, Intellectual Property, Legal, Nano & Biotech, Personal Liberty, Regulation, Zeitgeist

In a pretty remarkable move, the United States District Court for the Southern District of New York yesterday held that genes can not be patented merely because they have been isolated and purified out of their surrounding DNA. Attorneys from the American Civil Liberties Union and the Cordozo Law School’s Public Patent Foundation, working on behalf of the Association for Molecular Pathology, challenged the validity of patents held by Myriad Genetics and the University of Utah on the BRCA1 and BRCA2 genes (particular mutations in which are associated with breast cancer). District Court Judge Robert Sweet held that isolated “wild-type” DNA sequences are “naturally-occurring” things, and are therefore not patentable subject matter under the U.S. Patent Act [read the full decision in PDF format here].

The decision also invalidated Myriad Genetics’ patents on all methods of comparing the sequences of “normal” and “mutated” BRCA1 and 2 genes because they are “abstract mental processes,” which are also unpatentable subject matter. Although the case addressed only the BRCA1 and 2 genes, the decision now calls into question the validity of some 2,000 other gene patents that have been granted by the Patent and Trademark Office since the National Institutes of Health applied for the very first gene patent back in 1991.

Natural phenomena have always been unpatentable under the U.S. Patent Act, so the existence of patents on wild-type genes has long posed a bit of a paradox. However, as long ago as 1911, a federal court permitted the patenting of adrenaline, on the grounds that, once purified from the human body, the chemical existed in a substantially different form from that which was not extracted and purified. Similarly, patents on isolated genes have been rationalized on the grounds that they do not appear in nature in a purified and isolated form. Importantly, the scope of the patents on adrenaline or the BRCA1 gene extended only to those that were isolated from the human body. That’s why, for example, my mom and sisters haven’t been infringing the BRCA1 patents merely by having those genes in their DNA.

This is also why it is not perfectly clear that this District Court decision will stand up on appeal. Judge Sweet and the plaintiffs may be right that the isolation and purification doctrine is merely “a ‘lawyer’s trick’ that circumvents the prohibitions on the direct patenting of the DNA in our bodies but which, in practice, reaches the same result.” But, it’s a lawyer’s trick with a very long pedigree, and which has repeatedly been upheld in analogous situations over the past hundred years.

Nevertheless, I’ve long felt uneasy about the patenting of wild-type genes. This is quite different from, for example, intentionally changing the genetic structure of an organism to one that doesn’t exist in nature, which by all reasonable thinking amounts to a genuine invention. Judge Sweet’s opinion will have no effect on, for example, the ability to patent a new plant variety developed by conventional breeding techniques or a microbe genetically-engineered with a novel gene that makes it helpful in cleaning up oil spills, both of which have been upheld by the U.S. Supreme Court. These are, in fact, “new and useful process[es], machine[s], manufacture[s], or composition[s] of matter,” subject to patenting under the Patent Act. An isolated gene (or an isolated chemical for that matter) that already exists in nature, and which has not been modified by human hands, just isn’t.

Spending the time and resources to identify, map, sequence, and characterize a gene is a very useful activity, and one that the beneficiaries of which ought to be willing to pay for. If Judge Sweet’s decision does stand, and all gene patents become invalid, then I would expect to see an awful lot less of this very useful activity. That’s appears to be something that those cheering loudest for this decision seem not to have acknowledged. Still, I suspect that permitting the patenting of a product of nature is not the way to go about optimizing the level of such activity.

LibertyWeek 81: CPAC 2010 in Review

by Richard Morrison on February 22, 2010

in CEI Projects, Environment, Global Warming, Podcast

Richard Morrison, Jeremy Lott and Marc Scribner collaborate to give you Episode 81 of the LibertyWeek podcast. We cover the political adventures of CPAC 2010, Toyota’s chilly reception in Washington, the crackdown on credit cards, rising uncertainty about sea levels and the peeping laptops of high school officials.

Purpose of Hate-Crimes Bill Is To Promote Double Jeopardy and Shred Civil Liberties

by Hans Bader on May 9, 2009 · 1 comment

in Legal, Nanny State, Personal Liberty, Politics as Usual, Sanctimony

On April 29, the House voted 249-to-175 to pass the federal hate crimes bill, which the bill’s supporters explicitly want to use to prosecute people already found innocent in state court all over again in federal court. Such reprosecutions are, sadly, allowed under a Constitutional loophole known as the “dual sovereignty” doctrine, which says that state and federal governments are different sovereigns, and that double jeopardy only applies when you are prosecuted twice by the same sovereign. (This loophole was established in the Supreme Court’s 5-to-4 Bartkus decision, over a stinging dissent by Justice Black).

In the past, the possibility of reprosecutions was viewed as a vice, not a virtue, and civil-rights advocates and lawmakers alike have sometimes cited this risk in opposing bills broadening the reach of federal criminal laws. But civil-rights groups now view double jeopardy as a virtue when it comes to people accused of hate crimes. They consider hate crimes so terrible that not even innocence should be a defense.

The latest example of this comes from the Leadership Conference on Civil Rights (a coalition of hundreds of liberal civil-rights groups including the ACLU), and the Mexican American Legal Defense and Educational Fund in a May 5 blog commentary entitled, “Pennsylvania Teenagers Acquitted of Hate Crime; Federal Law Needed.” It approvingly quotes the General Counsel of MALDEF arguing that the federal hate-crimes bill is needed based on the acquittal in state court of teenagers accused of a hate crime against an illegal alien from Mexico: “Last week, the House of Representatives passed the Local Law Enforcement Hate Crime Prevention Act, which will . . . give federal government jurisdiction over prosecuting hate crimes in states where the current law is inadequate. ‘[T] his verdict underscores the importance of the passage of this Act,’ said Henry Solano, MALDEF interim president and general counsel. ‘It is time for the Department of Justice to step in and bring justice to the Ramirez family and send a strong message that violence targeting immigrants will not be tolerated and will be prosecuted to the full extent of the law.’ The Justice Department is currently investigating whether to prosecute the two teenagers under federal civil rights statutes.”

By contrast, four Independent and Republican members of the U.S. Civil Rights Commission opposed the federal hate-crimes bill in an April 29 letter, calling it a “menace to civil liberties,” since its “most important effect” will be to circumvent double-jeopardy guarantees.

MALDEF and the Leadership Conference on Civil Rights are not alone in seeking to reprosecute people found innocent in state court. Many supporters of the hate crimes bill want to allow those found innocent to be reprosecuted in federal court. As one supporter put it, “the federal hate crimes bill serves as a vital safety valve in case a state hate-crimes prosecution fails.” The claim that the justice system has “failed” when a jury returns a not-guilty verdict is truly scary and contrary to the constitutional presumption of innocence and the right to trial by jury.

But it is a view widely shared among supporters of the hate-crimes bill. Syndicated columnist Jacob Sullum pointed out in 1998 that Janet Reno, Clinton’s Attorney General, backed the bill as a way of providing a federal “forum” for prosecution if prosecutors fail to obtain a conviction “in the state court.”

Supporters of the hate crimes bill also see it as a way to prosecute people even in cases where the evidence is so weak that state prosecutors have decided not to prosecute. Attorney General Eric Holder has pushed for the hate crimes bill as a way to prosecute people whom state prosecutors refuse to prosecute because of a lack of evidence. To justify broadening federal hate-crimes law, he cited three examples where state prosecutors refused to prosecute, citing a lack of evidence. In each, a federal jury acquitted the accused, finding them not guilty.

Advocates of a broader federal hate-crimes law have pointed to the Duke lacrosse case as an example of where federal prosecutors should have stepped in and prosecuted the accused players — even though the state prosecution in that case was dropped because the defendants were actually innocent, as North Carolina’s attorney general conceded, and were falsely accused of rape by a woman with a history of violence (including trying to run over someone with her car) and making false accusations.

Civil libertarians like Wendy Kaminer and law professors like Gail Heriot have criticized the federal hate-crimes bill for taking advantage of a loophole in constitutional double-jeopardy protections.

The hate-crimes bill also violates constitutional federalism safeguards, such as the Supreme Court’s decision in United States v. Morrison (2000).

Supporters of the hate-crimes bill have all sorts of lame rationalizations for disregarding not-guilty verdicts. Hate-crimes activist Brian Levin, who testified before Congress, claims reprosecutions are needed because local jury pools are biased. NOW Legal Defense Fund told Congress that reprosecutions are appropriate if local prosecutors had “inadequate resources” or were of “questionable effectiveness.” (These rationalizations make no sense and have no principled limits: there is no evidence that state juries are more biased than the federal juries that would hear federal hate-crimes cases, or that they are typically biased; and even well-funded prosecutors have complained of having inadequate resources).

Given the politically-charged nature of many hate-crimes trials, Kimberly Potter of New York University was probably right when she told Congress back in 1998 that if the federal hate crimes bill is enacted, “the acquittal of [hate-crimes] defendants in state court will frequently trigger demands for federal prosecution.”

The bill’s sponsors seldom talk about that controversial aspect of the bill, however, when addressing the general public. Instead, they trumpet the fact that the hate-crimes bill would include gays, lesbians, and transgendered people among the classes of people it covers (the existing federal hate-crimes law only covers race, but not gender, sexual orientation, or disability, and it does not reach most hate-crimes, but rather only those that involve federally-protected activities).

The bill’s supporters, such as the National Center for Lesbian Rights and the ACLU, claim the law is needed because of the case of Angie Zapata. Zapata is a transgender woman whose lover killed her when he found out she was biologically a man. But this argument makes little sense, given that Zapata’s killer was swiftly convicted and sentenced to life in prison without the possibility of parole by a Colorado state court, which found the killer guilty of both murder and hate crimes. (The federal hate crimes bill does not provide for the death penalty, and its maximum penalty is the same one that Zapata’s killer got: life without parole).

But precisely for that reason, a federal hate-crimes law is duplicative and unnecessary. Moreover, even the few states that don’t have hate-crimes laws, like Wyoming, still punish hate criminals under their laws against murder and assault. The killers of Matthew Shepard were given life sentences, which is the maximum penalty available under the federal hate-crimes bill. (Ironically, the Wyoming prosecutor wanted them to get the death penalty, while liberal groups like Lambda Legal, which supports the federal hate-crimes bill, oppose the death penalty in all cases). There is no evidence that any state gives people who commit hate crimes lesser sentences on average than people who commit similarly violent crimes not motivated by bias.

There are plenty of reasons to oppose the federal hate crimes bill, which is known as the Local Law Enforcement Hate Crimes Prevention Act of 2009. But since it was used as a political wedge issue in the 2008 election by both the Democratic Party and President Obama, who support it, there is little doubt that it will pass Congress and be signed into law by the President.

The ACLU long opposed the loophole in Constitutional double-jeopardy protections that the bill is designed to exploit. But it switched its longstanding position in order to back the federal hate crimes bill, apparently believing that civil-liberties must be sacrificed in order to fight hate.

The ACLU’s support for the federal hate-crimes bill is hypocritical for another reason: the bill seeks to circumvent double-jeopardy protections recognized by a treaty called the International Covenant on Civil and Political Rights (ICCPR), which the U.S. ratified (albeit with a long series of reservations, understandings, and declarations — including one dealing with double jeopardy) in 1992. The ACLU has also long argued that the United States should not only comply with that treaty but give it a very expansive interpretation, and not seek to hide behind any reservations made by the U.S. in ratifying the treaty.

Article 14 of the treaty specifically prohibits double jeopardy, without any exception for the loophole relied on by supporters of the federal hate crimes bill, mandating that “No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted.”

But the ACLU conveniently ignores the treaty when it comes to the federal hate-crimes bill, even though the ACLU has sought to stretch the treaty’s language to achieve a host of liberal political goals, such as mandating “affirmative action” in the U.S. The ACLU also has argued for an expansive interpretation of the treaty to require benefits for illegal aliens. For example, the ACLU criticizes the U.S. Supreme Court’s decision in the Hoffman Plastics case, which refused to award illegal aliens backpay against employers who fired them. The ACLU’s bizarre interpretations of the treaty conflict not only with its language, but also with the longstanding practices of most ICCPR signatory countries.