Crime
When I was in law school, a couple of buddies and I went to the Woodford Reserve Bourbon Academy in Versailles, Kentucky. Though formal sounding, it was really just a long weekend where we learned about how bourbon is made, sampled whiskey straight from the barrel, and ate bourbon glazed pork chops. While we were there for a good time, there were a couple of guys in our class that were way more serious than us. They hung on every word and took books full of notes on the bourbon-making process. I’m sure they were planning to make their own corn liquor. Sadly for those guys, we also learned that at-home spirit distilling has been illegal for the last 150 years.
Recently, however, a U.S. District Court Judge in Texas ruled that the federal ban on at-home distilling is unconstitutional. The Hobby Distillers Association sued the federal government arguing that the ban on homemade spirits exceeded Congress’s Commerce Clause and taxing authority. Judge Mark Pittman agreed and issued an injunction ceasing the effect of the ban. He did, however, stay the injunction for fourteen days to give the government time to appeal. We’ll see what happens. In the meantime, I wonder if those enthusiastic guys kept their notebooks.
More crime
A recent study looked at the impact of implicit bias training for police officers. The study attempted to determine whether training in implicit bias reduces racial or ethnic disparities in police officer stops, arrests, summonses, frisks, searches and/or use of force. In a randomized controlled trial, the researchers administered implicit bias training to nearly fifteen thousand police officers. Next, the researchers studied the records of those police officers over the next year to see if the implicit bias training had any impact on the officers’ behavior. It did not. The study concluded that “no evidence of behavioral impacts of the training were detected.” (Worden and Najdowski)
The implicit bias training in this study did not fail because all police officers are hardened racists. It failed because the perniciousness of implicit bias is a false narrative. Most claims of implicit bias are associated with the Implicit Association Test (IAT). This test measures reaction times for word associations. The theory is, if a person has a quicker reaction time between negative words and racial or ethnic categories, then he has an implicit bias against those races or ethnicities. The IAT test, though, has been thoroughly debunked (see here). It’s basically a parlor trick from which no valid scientific conclusions can be drawn.
Sadly, many courts and legislatures have mandated implicit bias training based on political concerns rather than evidence. I am reminded of the following quote by Thomas Sowell: “Much of the social history of the Western world over the past three decades has involved replacing what worked with what sounded good.”
Textualism
The Indiana Court of Appeals issued an opinion recently in Tyree v. State that implicates textualist analysis. In Tyree, the defendant subpoenaed the state’s witness, who was the victim in the case, on three separate occasions for a deposition. The witness failed to appear each time. After that, the defendant moved to exclude the witness’s testimony. The trial court granted the defense motion. The state appealed from the trial court’s order excluding the testimony citing Indiana Code 35-38-4-2. That statute allows the state to appeal “from an order granting a motion to suppress evidence.” The defense argued that the appeal should be dismissed because the trial court’s order was exclusion of evidence for a discovery violation, not an order to suppress. The defense cited Black’s law dictionary which defines a motion to suppress as, “a request that the court prohibit the introduction of illegally obtained evidence at a criminal trial.” In finding for the state, the Court of Appeals wrote, “the plain text of the statute does not suggest that the legislature intended for ‘motion to suppress’ to be a term of art applying only to motions alleging violations of the Fourth Amendment to the United States Constitution or Article 1, Section 11 of the Indiana Constitution, which govern searches and seizures.”
I respectfully disagree. The statue does specifically say “motion to suppress.” And suppression is an exact legal term. Textualists do not rely on legislative intent, whatever that is. Rather, they apply what the legislature actually wrote, which is straightforward in this case.
Separation of powers
Last week, back when Joe Biden was still running for president, his administration announced plans to ‘reform’ the U.S. Supreme Court. Biden proposed legislation creating term limits for the Justices and a code of ethics. In a previous post, I discussed how a Congressionally adopted Supreme Court ethics code violates the separation of powers. You can read that post here. Term limits for the Justices is also unconstitutional. The U.S. Constitution provides that the judges “shall hold their Offices during good Behavior…” This has always been interpreted as creating lifetime appointments for federal judges and justices. Sorry Joe, or Kamala, or ….
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