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Excessive Fines and Incorporation

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"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."  So says the Eighth Amendment to the Constitution of the United States.

Fines imposed by whom?  As originally enacted, this amendment limited only the federal courts.  The first ten amendments, also known as the Bill of Rights, restrained only the federal government, not the states.

After the Civil War, the Fourteenth Amendment did limit the state governments, and the question of whether its limits "incorporated" the guarantees of the Bill of Rights, and which ones, has long been a constitutional controversy.  In Hurtado v. California (1884), the Supreme Court decided that the Fifth Amendment's guarantee of grand jury indictment for "infamous" crimes -- already obsolete by that time -- was not incorporated and did not apply to the states.  Also, nobody seriously believes that the Seventh Amendment guarantee of jury trial in civil cases for $21 applies to state courts. 

The First Amendment guarantees were applied, though, early in the twentieth century, and most of the criminal procedure guarantees were "incorporated" during the Warren Court era in the 1960s.  The incorporated provisions, of course, included the Cruel and Unusual Punishments Clause of the Eighth Amendment.

The Excessive Fines Clause has been left out of consideration up to now, but the high court has finally taken it up.  The full name of the case is Tyson Timbs and a 2012 Land Rover LR2 v. State of Indiana, No. 17-1091.  Yes, this is a forfeiture case, and the pricey 4x4 is a party to the action.

Petitioner Timbs drove petitioner Rover (purchased for over $40k) to a minor drug transaction which turned out to be with undercover officers.  The Indiana Court of Appeals found that forfeiture of Rover was an excessive fine, but the Indiana Supreme Court reversed on the ground that the Excessive Fines Clause does not apply to the states.

I'm inclined to agree with the defendant on this one.

As today's News Scan notes, Uber has announced it will do annual background checks for its drivers.  That is a step in the right direction, but not a big enough step.

CEO Dara Khosrowshahi has a post on Uber's website titled "Getting serious about safety."

Since Uber got started nearly nine years ago, we have conducted criminal and driving record screenings on millions of people. While no background check is perfect, our process is thorough, fair, and relevant to the work at hand. However, we can do more to ensure drivers continue to meet our standards on an ongoing basis, long after they take their first trip. Moving forward we will increase due diligence to strengthen our screening process:

The two paragraphs that follow describe the annual checks and new offense notifications.  Okay, they are getting more serious about new offenses.  How about old ones?  Follow the link in the above paragraph and what do we find?

Consequences of Banning the Box

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Responsibility is a pervasive character trait.  The best indicator of lack of responsibility is criminal history.  When employers blind themselves to criminal history because government requires it, because social pressure requires it, or because they think it is the cool and hip thing to do, irresponsible people are going to be hired.

For some jobs, that may be okay.  If a person is under constant supervision or doing a job where irresponsibility doesn't cause much damage, opportunities can be created for offenders to prove themselves and go straight.

And then there are jobs where people's lives depend on an employee doing the right thing when no one else is there.

Greg Bensinger and Alejandro Lazo report for the WSJ:

The test operator in the Uber Technologies Inc. self-driving car that killed an Arizona woman was a convicted felon with a history of traffic citations who wasn't watching the road before the accident happened, facts that raise new questions about the company's testing process for autonomous technology.
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Collateral Consequences

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Some companies are largely driven by one person or a small number of people.  What happens to a company when one of those people turns out to be a serial sexual harasser and possibly a rapist?  Ben Fritz reports for the WSJ:

Weinstein Co. is exploring a sale or shutdown and is unlikely to continue as an independent entity, a person close to the company said.

The film and television studio's board of directors has been talking to possible buyers as it mulls how to move forward after firing co-chairman Harvey Weinstein on Sunday amid dozens of accusations against him of sexual assault and harassment.
I hope they find a buyer.  It would unfortunate if regular working folks found themselves unemployed due to a company collapse.
Brett Kendall reports in the WSJ:

WASHINGTON--The Supreme Court on Friday agreed to consider whether North Carolina can bar individuals on the state's sex-offender registry from accessing social-media websites such as Facebook.

The high court, in a brief written order, agreed to take up the appeal of Lester Packingham, who was convicted of violating the social-media ban after a Durham, N.C., police officer in 2010 found a Facebook post in which the defendant happily announced the dismissal of a traffic ticket. "Man God is Good!" the post said.

Mr. Packingham in 2002 pleaded guilty to taking indecent liberties with a 13-year-old when he was age 21.

A North Carolina law enacted in 2008 prohibits sex offenders from accessing social-networking sites when the offender knows that the site allows minors to become members. The Supreme Court will consider whether that law is allowed under the Constitution.
Kent wrote here about Virginia Gov. Terry McAuliffe's blanket order restoring the voting rights of about 200,000 felons in that state.  This afternoon, the Virginia Supreme Court nullified McAuliffe's order.

Full participation in democracy is, in the abstract, a good thing.  And doing what we can to bring back into the system felons who understand the wrongfulness of their behavior and have corrected it is part of that.  Restoring the vote for those who continue to believe (and, often, to act) as if law is for other people, and rules are for suckers, is a different matter. That would certainly seem to be more an abuse than a use of this aspect of executive power.

At the end of the story linked above, Gov. McAuliffe is reported to have said he would effectively defy any court order contrary to his liking:  "I will sign 206,000 orders. They will have their rights back that day."

He is welcome to proceed, as far as I'm concerned.  Signing 206,000 orders in a day will obviously reflect exactly the mass "consideration" the Court forbade today, and thus will earn McAuliffe a contempt citation.

UPDATE:  As the first commenter points out, I failed correctly to link the WTOP story.  I apologize for this error, which I have rectified.  That said, the story states, as I quoted, "I will sign 206,000 orders. They will have their rights back that day."  In other words, it makes crystal  clear that McAuliffe intends to attempt to do by poorly disguised indirection what the Court has forbidden, to wit, grant a mass  pardon.

Blanket Restoration of Felon Voting

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"No person who has been convicted of a felony shall be qualified to vote unless his civil rights have been restored by the Governor or other appropriate authority."  -- Virginia Constitution, Article II, Section 1.

This provision is clearly intended to allow the Governor to restore voting rights, among other rights, upon an individualized determination that the person has actually "gone straight."  Is it limited to that?  Former Governor Tim Kaine (D) thought so.

Or does it empower a governor to effectively repeal the disqualification provision by entering a sweeping restoration of voting rights to all felons?  Present Governor Terry McAuliffe (also D) thinks so.  The WSJ has this editorial.

Why does Governor McAuliffe want more criminals to vote, whether they are rehabilitated or not?  Simple.  Criminals perceive -- correctly -- that on the whole Democrats are more likely to favor their interests as opposed to the interests of law-abiding people.  That tendency has been somewhat less pronounced in recent years than it was in earlier years, but the difference is coming back, as noted Bill's and my posts of Monday. 

Hence, criminals -- especially those who have not gone straight -- will vote for the Democratic Party in greater proportion than law-abiding people do, and in a close election the criminal vote may tip the scale.  After 2000, the Florida recount, and all that, we must recognized that such matters could have serious consequences.

The editorial notes that the Virginia Supreme Court heard arguments on the question Tuesday.
Jennifer Doleac, a visiting fellow at the Brookings Institution's Hamilton Project, has this post with the above title on Brookings' site.

Life in prison is meant to be difficult. But it doesn't always get better once you're out. Re-entering offenders often have a tough time finding employment, even when they are motivated and able to work. But "ban the box" - a popular policy aimed at helping ex-offenders find jobs - doesn't help many ex-offenders, and actually decreases employment for black and Hispanic men who don't have criminal records. This is a classic case of unintended consequences. We should repeal "ban the box" and focus on better alternatives.
Virginia Governor Terry McAuliffe today issued an order removing the disqualification from voting for felons who have completed their time, both in custody and on parole or probation.

Can he do that, constitutionally?  Of course.  Virginia Constitution Article V ยง12, the clemency power, is quite explicit on that point.

Why did he do it?  The primary reason, in my opinion, is that he expects that the criminal vote will go overwhelmingly to the Democratic Party versus the Republicans, and I believe he is correct on that.

The primary division in America today is not between rich and poor, labor and management, white and black, or any of the old divisions that have been prominent in the past.  The primary division is between people who believe in personal responsibility, obedience to the law, and work ethic, on one side, and those who do not along with their apologists, on the other.

Gov. McAuliffe believes that those who do not are more likely to vote for his party, and that should send a strong message to those who do.

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