A press release from the Texas Attorney General: Attor­ney Gen­er­al Ken Pax­ton Sues Five Cities Over Mar­i­jua­na Poli­cies Pre­vent­ing Enforce­ment of Texas Drug Laws

The state intends to clamp down on cities that are lenient on marijuana possession.

- Click here for it.

Texas Attorney General Ken Paxton has launched lawsuits against the cities of Austin, San Marcos, Killeen, Elgin, and Denton for adopting amnesty and non-prosecution policies that violate Texas laws concerning marijuana possession and distribution.

The five municipalities adopted ordinances or policies instructing police not to enforce Texas drug laws concerning possession and distribution of marijuana—an illicit substance that psychologists have increasingly linked to psychosis and other negative consequences. Texas Local Government Code forbids any political subdivision from adopting “a policy under which the entity will not fully enforce laws relating to drugs.” Further, the Texas Constitution notes that it is unlawful for municipalities to adopt ordinances that are inconsistent with the laws enacted by the Texas Legislature (Article 9, Section 5).

Links - 11/6/23

- TEXAS DISTRICT & COUNTY ATTORNEYS ASSOCIATION.

- U.S. BUREAU OF LABOR STATISTICS: Lawyers.

- Wikipedia: Attorney at law.

- Wikipedia: Attorneys in the United States.

- Wikipedia: Retainer agreement.

- Wikipedia: Law of the United States.

- Wikipedia: Docket (court).

- Texas Penal Code.

- Texas Code of Criminal Procedure.

- Mapping Police Violence.

- 2022 POLICE VIOLENCE REPORT.

- Texas Local Government Code.

From Reason: Remembering The Mann Act or, How Prostitution Killed The Constitution

A look at the gradual increase of federal power over the states' control of criminal law. It all boils down to the commerce clause.

- Click here for the article.

The Mann Act was the real beginning of the Bureau of Investigation (later, the F.B.I.), which then used Prohibition to extend its power. The bureau secured five thousand Mann Act convictions in the 1920s. Bureau chief J. Edgar Hoover personally led mass raids, and acquired information that compromised public officials. The act (like the income tax laws) was used to get gangsters who could not otherwise be convicted, and often targeted blacks who traveled with white women (most notably black heavyweight champion Jack Johnson), political dissidents, and other unpopular minorities.

The Mann Act showed how far the federal police power had been extended. Federal power “to regulate commerce among the states” had been extended to moral regulation, and might therefore be extended to any other kind of regulation. This went beyond the attempt to prohibit interstate shipment of things, as Attorney General Philander Knox put it, “noxious or dangerous in themselves,” which had heretofore been widely regarded as the limit of the police-power extension of the commerce power. In the Mann Act, there were neither things nor commercial activity involved. Chief Justice John Marshall provided a famous definition of what “commerce among the states” meant in 1824. Commerce, he said, “undoubtedly, is traffic, but it is something more: it is intercourse.” Only the most extravagant extension of this definition of commerce could reach cases...of consensual if illicit trysts. After the New Deal swept away the last vestiges of constitutional limitations on Congress’ powers, later legislators would not even bother to give pretexts to their attempts to regulate gun possession, domestic violence and, now, health care.

For more:

- Making a Federal Case out of a Death Investigation.
- The Expanding Federal Police Power.
- Regulating Intrastate Crime: How the FederalKidnapping Act Blurs the DistinctionBetween What Is Truly National andWhat Is Truly Local.

From the Texas Tribune: Analysis: Legal Matters Could Temporarily Expand Abbott’s Power

The plural executive might be - temporarily - a bit singular based on recent events.

- Click here for the story.

Texas doesn’t have a cabinet form of government, but in Gov. Greg Abbott’s case, it might soon have the next best thing.

Two of the state’s relatively new elected officials — Attorney GeneralKen Paxton and Agriculture Commissioner Sid Miller — are in deep political trouble at the moment. If worst comes to worst for either or both of those fine gentlemen, Abbott would appoint their replacements.

That’s a lot more say than he had when they won the positions in 2014.

State officials in Texas don’t run on tickets of their own choosing. What looks to the voters like a team — with candidates for governor, lieutenant governor, attorney general and so on — is really just a collection of unrelated candidates who happen to belong to the same political party.

. . . In other states, governors and lieutenant governors get elected together, like presidents and vice presidents. Many states have cabinet governments where, as in the federal government, the chief executive chooses the state’s top lawyers, finance officials and other high officials. The governor runs the government, gets the credit and takes the blame.

Texas governors get some of the credit, most of the blame and none of that power: The 18 judges who sit on the state’s highest civil and criminal courts and the eight officials who run other executive departments are elected in their own right — sometimes from opposing political parties or factions. Photo ops are the only Kumbayah moments.

Abbott can’t control the comptroller, steer oil and gas regulators, decide whether and how the state jumps into lawsuits, or run the Senate, the agriculture or land offices. He didn’t hire them. He can’t fire them. And replacing them is left to the voters.
Usually.

But if the wheels of justice turn against Paxton or Miller or both, forcing or prompting one or both of them to leave office, the governor would have vacancies to fill — just as he would in a cabinet form of government.

The new occupants wouldn’t be under his control, but they would probably remember how they got those great jobs. It’s a subtle difference, but a real one: Are they going to check in with the governor’s office on big decisions and announcements or follow their own political stars?

For background on the problems the AG and Ag Commissioner are facing:

- SEC Charges Ken Paxton With Securities Fraud.
- Timeline: Attorney General Ken Paxton's Legal Saga.
- Sid Miller Criminal Case Would Stay in Travis County.
- Texas Rangers Investigating Sid Miller's State-Paid Trips.












https://www.texastribune.org/2016/04/11/sec-charges-paxton-securities-fraud/

Are there more federal laws than the president can enforce?

That seems to be the point in one of the links I followed in one of the articles I linked to in the previous post. We are all - he claims - federal criminals. We just don't know it, and fortunately for us, the federal government lacks the resources to nail us.

- Click here for it.

Here are some of what we have done that might make us federal criminals:

1. Used any of the hundreds of substances banned by federal law

2. Underpaid federal taxes

3. Cut corners in your business dealings.

4. Mishandled supposedly dangerous substances or did a poor job of supervising workers who handled them.

5. Violated a wide range of miscellaneous federal regulations.

For more:


- Everyone Is a Criminal: On the Over-policing of America.
- Are You a Criminal? Maybe You Are and Don’t Know It.

From Al Jazeera: Panama Papers: Why some of this is perfectly legal What is the difference between tax avoidance and tax evasion?

We've been discussing crime policy in some 2306 sections. Here's a bit along those lines. The tax avoidance schemes reveled in the Panama Papers case are not necessarily illegal. To some degree that is because the people benefiting from the scheme are the same ones - or affiliated with - the ones making the laws.

- Click here for the article.

It is estimated that corporations are saving themselves as much as $260bn a year by setting up businesses in lower tax regimes. A favourite method to avoid paying tax is to ask companies in high tax regimes to pay royalties for the use of a brand name - or simply to make a loan and ask for repayment. In other words, one part of a company makes a loan or pays for services to another. Again, this is legal.

But to deliberately seek to evade tax is considered illegal. This is when corporations and individuals underreport how much they earn or make bigger deductions than they are entitled to.

There is no suggestion in the stash of files leaked to the International Consortium of Investigative Journalists that anything illegal has taken place. The so-called Panama Papers highlight how easy it is for the wealthy, political elite and their families to set up shell companies in tax havens to conceal their wealth.

According to financial transparency campaign group Tax Justice Network, as much as $32 trillion was hidden in offshore accounts by rich individuals. It can cost as little as $1,500 to set up an offshore structure to hide your wealth.

It has been known for some individuals to avoid tax by setting up offshore shell companies, in which they deposit their earnings before making loans to themselves. That way they avoid future tax liabilities.

Mossack Fonseca, the Panama-based law firm from which the documents have been leaked, has said it "does not foster or promote illegal acts". And that's the key: wealthy clients who may wish to hide money from their spouses, children and public scrutiny employ law firms to make sure they don't fall foul of the law.
While such offshore structures are legal they are increasingly seen as odious in the realm of public opinion.

More on the Panama Papers.

- Panama Papers: a massive document leak reveals a global web of corruption and tax avoidance.

From Vox: Big Marijuana is coming — and even legalization supporters are worried

This story applies to 2305 - since it touches on the influence of interest groups on both the legislative and administrative process - and 2306 because it hits on changed attitudes about marijuana. Modest changes were made in the 84th session of the legislature to criminal law regarding possession and medical marijuana, but some floated the idea of outright legalization.

It appears that some groups promoting legalization also want a monopoly on selling it - we noticed that that was the condition in Ohio when voters were offered the chance to legalize marijuana for recreational use, but only on the condition that sales be restricted to a monopoly.

I flagged the following labels for the story: monopolies, initiatives, lobbying, laboratories of democracy, criminal law, agency capture, 

- Click here for it.

Last month, Ohioans rejected a very unusual marijuana legalization proposal. Beyond legalizing pot, the ballot initiative would have given campaign donors direct rights to the state's 10 pot farms as an explicit gift for their support. It was, even legalization advocates argued, a flagrant display of would-be members of the pot industry trying to cash in on a movement motivated primarily by social justice issues.

But while Ohio's measure was rare in its blatant cash grab, some legalization backers are increasingly concerned that something like Ohio's initiative will become standard — and the interests of the pot industry, which will grow more and more as legalization spreads, will take priority over the public's best interests.

Dan Riffle, the former director of federal policy at the Marijuana Policy Project (MPP), a legalization advocacy group, recently told me that these concerns pushed him to leave MPP. In a revealing interview, he said that "the industry is taking over the movement."
"We used to talk three or four years ago about how we're creating this industry, yet nobody in the industry gives to MPP," Riffle said. "But now that they do give at least a little, it's like, 'Be careful what you asked for.' Because we owe them now, and they get to drive the agenda."

More than posing as a concern for the face and heart of the legalization movement, the worry that the industry will take over poses some challenges on the policy end as well. As support for marijuana legalization continues to grow, the question is quickly shifting from whether to legalize to how to legalize. And a movement that's led by a pot industry has different interests than the public and policy reformers might have.

The Bowie Knife is Illegal in Texas

We've had some fun in 2306 going over the bills being pre-filed for the 84th Session of the Texas Legislature, especially one flagged by the Texas Tribune which changes the definition of an illegal knife - HB 92. We had no idea what to make of it. The bill mentions Section 46.01 if the Texas Penal Code, and then it all started to make sense.

The Penal Code reads as follows:

"Illegal knife" means a:
(A) knife with a blade over five and one-half inches;
(B) hand instrument designed to cut or stab another by being thrown;
(C) dagger, including but not limited to a dirk, stiletto, and poniard;
(D) bowie knife;
(E) sword; or
(F) spear.

The Bill would amend it to read:

"Illegal knife" means a:
(A) knife with a blade over five and one-half inches;
(B) hand instrument designed to cut or stab another by being thrown;
(C) dagger, including but not limited to a dirk, stiletto, and poniard;
(D) bowie knife;
(E) sword; or
(E) spear
(F)

So it's just about making bowie knives legal. Why don't they just say so? It can be next to impossible to figure out what bills are really about sometimes.

And who knew bowie knives were illegal in Texas? That's like John Wayne movies being illegal in the state or naming things after Tom Landry, or Chuck Norris.

Here's a question - could someone argue that this restriction violates the 2nd Amendment? Is a knife an "arm?"

From PolicyMic: In 33 U.S. Cities, It’s Illegal to Do the One Thing That Helps the Homeless Most

For 2306's look at the role local government - as well as 2305's look at federalism - some analysis of the consequences of local policies related to homelessness.

- Click here for the article.

This is also an example of both agenda setting and interest groups - since it is based on a report by an advocacy group which is attempting to highlight the problems caused by cities banning food-sharing by private organizations for the homeless.

The report argues that such laws - as well as others - "criminalize" homelessness.

That said, this also illustrates the concept of an unintended consequence, as well as criminal justice policy. An increasing number of people are concerned about the tendency of government to deal with social problems by criminalizing them, making them a felony.

Are there more effective - and cheaper ways to deal; with these problems?

Here's a bit from the story:  

The news: In case the United States' problem with homelessness wasn't bad enough, a forthcoming National Coalition for the Homeless (NCH) report says that 33 U.S. cities now ban or are considering banning the practice of sharing food with homeless people. Four municipalities (Raleigh, N.C.; Myrtle Beach, S.C.; Birmingham, Ala.; and Daytona Beach, Fla.) have recently gone as far as to fine, remove or threaten to throw in jail private groups that work to serve food to the needy instead of letting government-run services do the job.

Why it's happening: The bans are officially instituted to prevent government-run anti-homelessness programs from being diluted. But in practice, many of the same places that are banning food-sharing are the same ones that have criminalized homelessness with harsh and punitive measures. Essentially, they're designed to make being homeless within city limits so unpleasant that the downtrodden have no choice but to leave. Tampa, for example,criminalizes sleeping or storing property in public. Columbia, South Carolina, passed a measure that essentially would have empowered police to ship all homeless people out of town. Detroit PD officers have been accused of illegally taking the homeless and driving them out of the city.

Houston's mayor is featured:

Some city officials, like Houston's Mayor Annise Parker, claim that "making it easier for someone to stay on the streets is not humane" and say that uncoordinated charity efforts "keep them on the street longer, which is what happens when you feed them."

States free to legalize marijuana

The Washington Post reports that the Obama Administration will not preempt state laws:

The Obama administration on Thursday said it will not stand in the way of Colorado, Washington and other states where voters have supported legalizing marijuana either for medical or recreational use, as long as those states maintain strict rules involving distribution of the drug.

In a memo sent Thursday to U.S. attorneys in all 50 states, deputy attorney general James M. Cole detailed the administration’s new stance, even as he reiterated that marijuana remains illegal under federal law.

The memo directs federal prosecutors to focus their resources on eight specific areas of enforcement, rather than targeting individual marijuana users, which even President Obama has acknowledged is not the best use of federal manpower. Those areas include preventing distribution of marijuana to minors, preventing the sale of pot to cartels and gangs, preventing sales to other states where the drug remains illegal under state law, and stopping the growing of marijuana on public lands.

A Justice Department official said that Attorney General Eric Holder had called the governors of Colorado and Washington around noon on Thursday to inform them of the administration’s official stance.

 

Sesame Street has new character with a dad in jail

Something we focused on in 2306 today.

Those friendly, fuzzy Muppets from “Sesame Street” have helped kids open up about all sorts of serious subjects, from hunger and divorce to military deployment.
But they’re now tackling a much more unexpected issue: incarceration.
Meet Alex, the first Muppet to have a dad in jail. According to a Pew Charitable Trusts report, one in 28 children in the United States now has a parent behind bars -- more than the number of kids with a parent who is deployed -- so it’s a real issue, but it’s talked about far less because of the stigma.
That’s why the Sesame Workshop says it created the “Little Children, Big Challenges: Incarceration” initiative, an online tool kit intended to help kids with a parent in prison find support and comfort, and provide families with strategies and tips to talk to their children about incarceration.

This is what happens when incarceration is used as an option to solve non-violent crime. And its become a more recent phenomenon, as can be seen by the following graph. 

The 83rd Legislature created 33 new crimes, including 6 felonies

So says Grits for Breakfast.

This makes total sense

The first commercial transaction over the internet involved the sale of a bag of marijuana.

In 1971 or 1972, Stanford students using Arpanet accounts at Stanford University's Artificial Intelligence Laboratory engaged in a commercial transaction with their counterparts at Massachusetts Institute of Technology. Before Amazon, before eBay, the seminal act of e-commerce was a drug deal. The students used the network to quietly arrange the sale of an undetermined amount of marijuana.

What would you do?

A very sad local story raises a troubling question:

An Alvin father remained in the Brazoria County Jail Monday, charged with murder in the alleged revenge killing of a drunk driver who plowed into his truck, killing his two young sons last December. David Barajas Sr., 31, a construction worker, is being held in lieu of $450,000 bail in the fatal shooting of 20-year-old Jose Inez Banda minutes after the Dec. 7 crash that claimed the lives of Barajas' 11- and 12-year-old sons.
"The whole incident is extremely tragic," said Brazoria County sheriff's lead investigator, Dominick Sanders. "The grand jury reviewed it and has indicted him for murder."

Tests showed Banda's blood alcohol was twice the legal limit when his Chevrolet Malibu rear-ended the Barajas' family's Ford 250 truck that had run out of gas on an unlit county road near Alvin, investigators said. The inebriated driver failed to swerve or even apply his brakes before plowing into the truck and crushing Barajas' sons, David Jr., 12, and Caleb, 11.

I was surprised to read that he was indicted for muder considering the circumstances until I read this:

During a two-month investigation, authorities located a witness who reported seeing David Barajas walk from the crash scene to his nearby home and return to Banda's car, after which the witness heard gunshots.

He - allegedly - walked home, got a gun and killed the driver. That makes this less a crime of passion than a premeditated act .... but still. So if you were on the jury, how would you rule?

Is cheerleading ( or in this case not cheerleading) protected free speech? And how do we know what is and isn't a frivolous lawsuit?

These question stem from an uncomfortable case from Silsbee that the Supreme Court refused to review.

- Raped Cheerleader Told by Courts to Go Home and Be Quiet

- Cheerleader who wouldn't root for assailant loses

- Court OKs booting of cheerleader who wouldn’t cheer for rapist

- Cheer for your attacker, or else!

Here's the decision from the 5th Circuit Court of Appeals:

- John Doe, et al v. Silsbee Indep School District

Internet Lets a Criminal Past Catch Up Quicker

From the NYT:

The pool of Americans seeking jobs includes more people with criminal histories than ever before, a legacy in part of stiffer sentencing and increased enforcement for nonviolent crimes like drug offenses, criminal justice experts said. And each year, more than 700,000 people are released from state and federal prisons, a total that is expected to grow as states try to reduce the fiscal burden of their overcrowded penal institutions.

Almost 65 million Americans have some type of criminal record, either for an arrest or a conviction, according to a recent report by the National Employment Law Project, whose policy co-director, Maurice Emsellem, says that the figure is probably an underestimate.
This is a touchy area for civil rights:

There is no federal law that prohibits discrimination against people with criminal records. But the Equal Employment Opportunity Commission has set guidelines on how employers can use such records. Because African-Americans, Hispanics and other minorities have higher rates of criminal convictions, a blanket policy that screens out anyone with a criminal history will discriminate against these groups, the commission says, and is unlawful under Title VII of the Civil Rights Act of 1964.

The E.E.O.C. has been a plaintiff in several lawsuits over background checks, and the guidelines have led to a raft of lawsuits against companies under Title VII — at least seven are working their way through the courts. One, brought by the commission against Peoplemark, an employment agency, was dismissed because the commission was not able to provide expert evidence to back up the discrimination claim.

Prosecuting Porn

The Justice Department is not prosecuting pornography - obscenity - to the satisfaction of social conservatives.

Equal Justice?

Joe Patoski writes about the "Red Headed Exception:"

What is it about Willie Nelson, weed and the law?

It’s been a question worth asking since at least 1971, when Willie brought together rednecks and hippies at the Armadillo World Headquarters in Austin with his unique style of country music and his open attitude about marijuana. His eldest daughter, Lana, and his former wife Connie said pot helped tamp down the rage; he had been a mean drunk when alcohol was his drug of choice.

Now 77, Willie is perhaps America’s best-known marijuana smoker. He is co-chairman of the advisory board of the National Organization for the Reform of Marijuana Laws, has been a High Times cover boy and famously smoked a joint on the roof of the White House when Jimmy Carter was president. His disciples include the actor Woody Harrelson and the country crooner Ray Price, his former employer — each known to have enjoyed a puff now and then. He is the inspiration for Toby Keith’s hit song “(I’ll Never Smoke) Weed With Willie (Again),” which testifies to the quality of his stash.

All that is part of Willie's folklore. It’s when he tangles with law enforcement that things get interesting, though not necessarily all that punitive.

When the Supreme Court Fears Too Much Justice - The Atlantic

When the Supreme Court Fears Too Much Justice - The Atlantic

More on Connick v. Thompson.
- ScotusBlog.
- Prawsblawg.
- ACLU.
- NYT Editorial.

Federalism and the Loughner Indictments

Today's NYT has information about additional federal charges against Tucson shooter Jared Loughner. The story touches on controversies regarding which level of government has jurisdiction over which offenses he violated. As we know from 2301s discussion of federalism, nothing he did violates a law that the federal government has a delegated power over. The Constitution does state that the federal government can pass any law within federal lands, but Tucson is not in federal land. What's novel about these indictments is that prosecutors are claiming that Loughner can be prosecuted for killing constituents waiting to see their member of Congress.

Laws have been passed federalizing the murder of federal officials (see here for example) many driven after Kennedy's assassination when it turned out the federal government had no jurisdiction over the crime (murder - falls under the reserved powers).

From the Story:

Prosecutors filed 49 federal charges Friday against Jared L. Loughner, the suspect in the Tucson shooting rampage, accusing him of murdering and attempting to murder five federal officials; killing four constituents of Representative Gabrielle Giffords who were attending a public event she sponsored; and injuring 10 others waiting in line to talk to her.

“You have a right to meet with your member of Congress openly and freely and peacefully,” said Dennis K. Burke, the United States attorney for Arizona, indicating he was confident that the novel legal theory the prosecutors were using — including charges involving victims who were not federal officials but merely attending a “federally provided activity” — would be upheld in court.

Outside legal experts, however, said the charges would give an opening for Mr. Loughner’s defense team, led by Judy Clarke, to challenge their validity.

The raft of new charges, some of which could carry the death penalty, go far beyond the previous indictment against Mr. Loughner, a troubled 22-year-old who is accused of opening fire outside a Tucson-area supermarket on Jan. 8 with a Glock semiautomatic pistol in an effort to kill Ms. Giffords.  
Background
- Why is there a separate federal statute for attempted murder of a member of Congress?

- Wikipedia: Federal Crime in the United States.
- Wikipedia: Violent Crime Control and Law Enforcement Act.