Great bit of reporting by my HuffPost colleague Elise Foley:

 On a single day this past fall, the United States government held 13,185 people in immigration detention who had not been convicted of a crime, some of whom will not be charged with one, according to information The Huffington Post obtained through a Freedom of Information Act request. Instead, at a cost of roughly 2 million taxpayer dollars per day, the men and women were detained while immigration authorities sorted out their fates.

This case stands in stark contrast to the stated goal of immigration policy under the administration of President Barack Obama: to detain and deport unauthorized immigrants who’ve been convicted of crimes.

“ICE is focused on smart, effective immigration enforcement that prioritizes the removal of convicted criminal aliens, fugitives, recent illegal border crossers and egregious immigration law violators, such as those who have been previously removed from the United States,” Immigration and Customs Enforcement spokeswoman Nicole Navas said in a statement. “ICE’s enforcement approach is enhancing public safety in communities around the country.”

The FOIA request for information on all immigrants in detention on Oct. 3, 2011, turned up a list of nearly 32,300. Forty percent of those held by ICE had not been convicted of a crime, nor were they awaiting criminal trial. Despite what the term “illegal immigration” implies, simply being in the country without status is a civil, not a criminal, offense.

Rapists and murderers, frequently cited as the main unauthorized immigrants ICE is trying to remove, made up a far smaller percentage of those held that day than the innocent, traffic violators or low-level drug offenders, according to ICE’s crime breakdown.

“The fact is, we’re not deporting huge numbers of rapists and murderers,” said Emily Tucker, director of policy and advocacy for the Detention Watch Network, which pushes for limiting detention and deportation. “They would like us to think that, but that isn’t what is going on.”

Locking people up is big business. The Corrections Corporation of America, which gives heavily to both parties, is explicit about the connection between immigrant detention policy and the private prison company’s bottom line. “[T]he demand for our correctional and detention facilities and services … could be adversely affected by changes in existing criminal or immigration laws, crime rates in jurisdictions in which we operate, the relaxation of criminal or immigration enforcement efforts, leniency in conviction, sentencing or deportation practices, and the decriminalization of certain activities that are currently proscribed by criminal laws or the loosening of immigration laws,” the company wrote in an analysis for investors filed with the U.S. Securities and Exchange Commission. “Immigration reform laws which are currently a focus for legislators and politicians at the federal, state and local level also could materially adversely impact us.”

I’ve poked fun at the HuffPost commenters for faulting private prisons for nearly everything that’s wrong with the criminal justice system. But the connection between private prisons, detention policy, and the odious immigration laws in states like Arizona is pretty hard to deny. I’ve never really been comfortable with private prisons. Whether they’re more efficient or cost effective is less important to me than the fact that I don’t like having a government-created industry whose bottom line is dependent on keeping as many people behind bars as possible. (I have similar feelings about defense contractors, though there are some important differences.) They also tend to be less transparent, and in many cases aren’t covered by open records laws.

Last July’s criminal justice issue of Reason also had  a good feature by Jesse James deConto explaining the odd legal space occupied by immigration detention centers.

The great Warren Zevon would have been 65 this week. Here’s my favorite:

• Stephen Colbert is making an important point with his Super PAC, but not the point he thinks he’s making.
• Cops on the Internet.
• Man gets Tasered, beaten despite having committed no crime. Federal judge finds that the force was excessive, and orders damages for pain and suffering in the amount of . . . one dollar.
• Guy Fieri, eating things in reverse.
• Permanent moon bases, bringing dinosaurs back to life, and pondering the possibilities of space sex: Just another glimpse into the ideas-cluttered mind of Newt Gingrich.
• Thanks to collective bargaining, public school teachers in Buffalo get free plastic surgery.
• Nickelback has had enough.

Prague.

I eagerly await an FTC investigation.

Mayor Bloomberg’s New York City health department has come in for repeated criticism in this space and elsewhere for crusading against salty and fattening foods through ad campaigns that manipulate viewer reactions in ways that border on the misleading and deceptive (“What can we get away with?” famously asked one official). They’re at it again. On January 9, Gotham’s for-your-own-good crew unveiled a new ad warning “Portions have grown. So has Type 2 diabetes, which can lead to amputations,” dramatically illustrated with a photo of an obese man with a stump where his leg had been. But as the New York Times reports, city officials “did not let on that the man shown — whose photo came from a company that supplies stock images to advertising firms and others — was not an amputee and may not have had diabetes.” Instead, they just Photoshopped his leg off, which certainly got the effect they were looking for, albeit at the cost of photographic reality.

You’re the mayor of a small city in Connecticut. Four of your police officers have just been arrested by the FBI on federal civil rights charges. They’re accused of harassing and abusing the Latino residents of your city. There’s video showing that they’ve lied in police reports about said harassment. You’re asked what you plan to do to clean up the department. If you’re East Haven Mayor Joseph Maturo, you say this:

“I might have tacos when I go home. I’m not quite sure yet.”

He has since apologized.

• Weird.
• Son of New York City police commissioner is accused of rape.
• “We have little hard evidence for this, but we’re pretty sure your kids might be hooked on heroin.“
• Our human rights victory in Libya.
• Headline of the day.
• U.S. drops to 47th in world press freedom index.
• Dear Tennessee Tea Party: What the hell are you doing?
• Obama promised in the 2008 campaign that he’d post every bill to the web five days before signing them. Three years later, he’s running at about 50 percent.
• Criminal justice outrage of the day.

Prague.

Speeches I’ll be giving in the coming months:

• February 13th, Vanderbilt University, 6:30 pm.  Topic: Police Militarization. Open to the public.
• February 19th, International Students for Liberty Conference, Washington, D.C., 10 You can register for the conference here.
• April 23rd, Vanderbilt University, 6:30pm. Topic: The Drug War. Open to the public.

I’ve also tentatively agreed to give a talk about police militarization at the International Association of Chiefs of Police conference in October. That should be interesting.

• Sniffing oxytocin could turn you into an extrovert. (That’s tocin, not contin.)
• Judge seals all the search warrants in that fatal Ogden drug raid.
• It’s astounding that after all the DNA exonerations we’ve seen in recent years, politicians will still grandstand about limiting death penalty appeals.
• The latest example of how preventing the “abuse” of controlled drugs often comes at the expense of people who need them.
•  Moronic libertarian-bashing of the day.
• Skip Oliva tells me that a former architect of Plan Columbia now owns the company that runs this creepy service. Seems appropriate.
• Police officer who admitted to snorting hydrocodone on the job, including in his cruiser, won’t face criminal charges.

Prague.

I’m currently working on a piece for Huffington Post on the latest prescription painkiller hysteria. In researching the piece, I found this 2010 Time piece by Maia Szalavitz on how post-mortem overdose diagnoses may be overstated.

The problem is that it’s difficult to isolated a particular drug as cause of death. So the rise in opioid-related overdose deaths that the CDC and numerous media outlets have been screaming about for the last few months could be the result of lots of people ODing on painkillers, or it could merely be that because more people are taking painkillers, more people are likely to have painkillers in their systems when they die. Hence, the use of the term “opioid-related” to describe these deaths. That allows panic-sowing without the need to establish any causal connection. (It’s similar to the way the government calculates “marijuana-related emergency room incidents.)

But the problem gets more urgent when we start using these diagnoses in court, as the government has done in the trials of doctors accused of contributing to a patient’s overdose death.

It’s here that the opinions of one of  Szalavitz’s sources seem particularly troubling.

Given the state of the science, then, should it be used in court? Ed Cheng, a professor of law at Brooklyn Law School and expert on scientific testimony, says, yes, noting that more research is still needed. “If we were to require studies and statistical assessment on every assertion, almost nothing would be able to be used in court. My view on this is that the question here is not throwing the baby out with the bathwater,” says Cheng. “It’s clear that the forensic sciences do not have as much of an empirical basis as we would like them to have. The question becomes how do we motivate them sufficiently to come up with the empirical basis that we want?”

In the Schneider case, which entered jury deliberations on Wednesday, the defense team sought and failed to prevent the jury from hearing testimony that it believed did not have sufficient scientific foundations. But according to Cheng, it may be preferable to let the jury hear both sides of the scientific dispute and make up their own minds. “I myself have floated between the poles on this,” he says. “I’m currently more on the ‘Let the jury hear it’ side. I’m not convinced that good science and bad science is always cut and dried.”

“Let the jury hear it” sounds great on its face. But there’s more to it than that. If the science linking a particular drug to a particular overdose isn’t established–if the scientific community is split over whether you can make that connection–then the jury shouldn’t hear it. (If nothing else, that would seem to establish reasonable doubt.)

Yes, we do have an adversarial judicial system. But lay juries aren’t trained scientists. Most people don’t know what to look for  when evaluating the veracity of some science-based claim. Get two scientific-sounding witnesses pitching the jury competing or mutually-exclusive theories, and the winner will more often be not who advocated the best science, but who was a better expert witness. Or more bluntly, who was a better salesman.

We’ve seen this over and over again with bite mark testimony. Frauds like Michael West have sold crap science to juries for years, sometimes unopposed, but often opposed by more credible experts. Even now, with a solid consensus in the forensics community that you can’t “match” bite marks in skin to one person to the exclusion of everyone else, we still see appeals courts shoot down post-conviction petitions on the grounds that the defense already challenged the state’s expert at trial, and the jury found the prosecution’s witness more convincing. It doesn’t seem to matter that we now know the prosecution’s witness was spewing pseudo-science hokum.

I think you could make a strong case that West was able to persuade juries because he didn’t sound scientific. I’ve read more than a few trial transcripts where West and the prosecutor would actually use an opposing expert’s credentials against him, contrasting him as a fancy out-of-town hired gun with a bunch of letters after his name with West, the local dentist just trying to do the right thing, helping put bad guys away with intuition, common sense, and some self-taught expertise. The scary thing is that when you see West in action, he sounds convincing, even when you know he’s a fraud.

Of course, West is only one example (although he is one of the most egregious). I don’t know the best way to determine what science has reached enough of a consensus to be used in a courtroom, but leaving the decision to individual juries on a case-by-case basis seems like a bad idea. In the federal courts, and in much of the country, challenges to scientific evidence are currently resolved by the judge in what’s called a Daubert hearing. From my understanding, while those hearings have done a decent (but far from perfect) job keeping junk science out of civil cases, the process has been less successful at keeping it out of criminal cases.

Skeptical as I am of blue ribbon commissions, this may be one area where we’re best off having an established, accredited panel of specialists set policy.

I linked to a story about this case last summer. It’s another “but for video” case in which a citizen-shot video (shot by a priest, no less) pretty clearly show that the cops lied in their police report. Bonus points, they actually lied about the citizen-shot video.

The police report, David Cari, one of two arresting officers, states that he didn’t know what the New Haven priest was holding. He wrote that he saw an “unknown shiny silver object” that Manship had “cupped” in his hands, and was afraid for his safety. Read the police report here. . .

The police report alleges that Father Manship concealed the fact that he was videotaping the officers, by cupping his hands over “a silver object.”

“Not knowing if Manship was holding a camera or a possible weapon this officer asked Manship to show me what was in his hands,” Cari’s report reads.

In direct contradiction of Cari’s claim, the video from Manship’s camera shows Officer Cari twice verbally identifying the “silver object” as a camera.

“Sir what are you doing? Is there a reason that you have a camera on me?” says Officer Cari, in the video.

“I’m taking a video of what’s going on here,” Manship replies.

“Well, I’ll tell you what, what I’m going to do with that camera,” Officer Cari says, as he walks around a shelving unit to approach the priest.

Here’s the news:

The FBI has arrested four East Haven police officers on conspiracy and obstruction of justice charges following an investigation into alleged civil rights violations . . .

Federal law enforcement officials said in indictment papers that Officer Dennis Spaulding, Officer David Cari Officer Jason Zullo and Sgt. John Miller executed unreasonable searches and seizures and used unreasonable force and concealed their actions.

“At its core, this is an abuse of power case,” said Assistant US Attorney General Thomas Perez.

Mayor Maturo said the four men were arrested at about 6 a.m. Tuesday.

The officers are linked to the 2009 arrest of Father James Manship, who videotaped officers inside a store owned by Hispanics. Father Manship was arrested, but the charged were later dropped.

In a statement, Janice Fedarcyk, the Assistant Director of the FBI in New York, said “These officers have damaged the reputation of their department.”

“They behaved like bullies with badges,” she said.

Once again, all due credit to the Obama administration on this. The DOJ is not only backing citizens in lawsuits against police who violate the right to record, in the more egregious cases it looks like the agency will also hold police officers criminally accountable for—well—breaking the law.

• Here are 300+ photos of dogs looking out of windows.
• Headline of the day. 
• Heroes of the Concordia.
• One in 419 Americans must now register as a sex offender.
• Federal judge says you can be forced do de-encrypt your laptop.
• I may have had a minor heart attack while watching this video. It ends well, though.
• Jonathan Coulton on Megaupload.
• “Those who sat through the film in its entirety were given a . . . a black beanie hat and . . . a blood-splattered tampon in a tube.
• The 2012 horse race.

Prague.

Great news. Even better, the ruling was unanimous, although there was a split on why warrantless GPS tracking violates the Fourth Amendment.

The Supreme Court on Monday unanimously ruled that the police violated the Constitution when they placed a Global Positioning System tracking device on a suspect’s car and tracked its movements for 28 days.

But the justices divided 5-to-4 on the rationale for the decision, with the majority saying that the problem was the placement of the device on private property. That ruling avoided many difficult questions, including how to treat information gathered from devices installed by the manufacturer and how to treat information held by third parties like cellphone companies.

The minority found the tracking itself to violate the Fourth Amendment, which I think is a more satisfying rationale. In her own concurring opinion, Justice Sotomayor went even further. (PDF)

More fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medi- cations they purchase to online retailers.

Perhaps, as JUSTICE ALITO notes, some people may find the “tradeoff” of privacy for convenience “worthwhile,” or come to accept this “diminution of privacy” as “inevitable,” post, at 10, and perhaps not. I for one doubt that people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited in the last week, or month, or year. But whatever the societal expectations, they can attain constitutionally protected status only if our Fourth Amendment jurisprudence ceases to treat secrecy as a prerequisite for privacy. I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection.

I think it’s probably time for me to concede that I was wrong about Sotomayor. (See here, here, here, and here.) Not only has she not been a liability in criminal justice cases, you could make a strong argument that in her short time on the court she’s been better on these issues than any other justice. (Despite his libertarian reputation, you could also argue that Thomas is the worst.) She is definitely now the justice who is  most wary of the death penalty.

I don’t think it was unreasonable of me to be wary, given Sotomayor’s background and how she was sold to the public. (Remember, Biden told a gather of cops and prosecutors not to worry about Sotomayor, because “she’s got your back.”) But so far, it’s nice to be proven wrong.

MORE/CORRECTION: Orin Kerr points out that the court did not rule that the government needs a warrant before attaching a GPS device, which means my headline is wrong. (Actually, it was wrong even aside from that; the majority only ruled on the application of the device to a car, not the act of tracking.) The majority ruled only that the placement of the device constituted a search for Fourth Amendment purposes. They didn’t rule whether conducting such a search without a warrant would be unreasonable. So this looks to be a rather narrow ruling. Alas.

The Sotomayor portion of the post still stands, though.

MORE: Here’s an even more pessimistic take on today’s decision.

Don’t even think about trying to smuggle your pot into space.

Along with the formidable force of standard security at Kennedy, a highly trained and specialized group of guardians protect the Center from would-be troublemakers. They are the members of the Kennedy Space Center Special Weapons and Tactics (SWAT) team and they mean business.

“We’re here 24-7,” said SWAT commander David Fernandez. “There’s never a point when SWAT is not here, so we’re ready to respond to something if needed at a moment’s notice.”

NASA contracts the 29-member team from Space Gateway Support (SGS) to protect Kennedy’s employees, visitors and national assets like the Space Shuttle from any potential threat. The SWAT team carefully prepares for special events like launch day and the arrival of astronauts and VIPs, but it also stands ready every day for possible problems that may arise.

Additionally, the SWAT team provides support to Kennedy security when special expertise may be needed to diffuse a dangerous situation. Skills like rappelling, defensive tactics, or marksmanship may be used to help keep the peace.

This seems less ridiculous than, say, the Department of Education’s SWAT team. But I still don’t understand the camouflage.

• Puppycide.
• Why GOP senators were more willing to jump ship on PIPA than Democrats.
• Loma Linda, California: Where there’s no alcohol, no tobacco, and the citizens are made of cardboard.
• Illinois ups the ante in the war on cold medicine: Any pseudoephedrine purchase will now put your name and address in a state police database.
• Like most everything else about the guy, Newt Gingrich’s war on the “media elite” is phony. See also here.
• A petition to investigate Chris Dodd for bribery.
• Police shoot a man dead after a bicycle violation.
• Asset forfeiture creep: How the DOJ is able to seize websites without a conviction.
• Here is a video of some guys rolling a giant tire into a lake.

Prague.

• Fox News contributor: Newt Gingrich’s three marriages could mean he’ll be a great president. But what happens when he leaves us for a younger, prettier country?
• Who says the GOP opposes assisted suicide?
• Condensed version of Newt Gingrich’s victory speech last night: I’m a millionaire, lobbyist, book author, academic, ex-House speaker, wannabe historian, Pericles-like statesman who has enough power to move the planet. And I’m here to take on those bastard elites!
• Gary Johnson: It’s time to end the war on drugs.
• Chris Christie (kind of) agrees.
• In defense of Warren Harding.
• This is a great idea. But it’ll cost the city revenue, which is why if it catches on, it will probably be banned.

• Florida Governor Rick Scott has ordered a new investigation into the jailhouse death of Nick Christie.
• Christie’s story was also featured on the Today show last week.
• Mike Riggs finds other police brutality cases in which the prosecutor (now deceased) who looked into Christie’s case cleared other cops of wrongdoing.
• Less important, but somewhat amusing: The many similarities between my article on Christie and this article that appeared two days later in the Daily Mail. Christie’s attorney apparently gave both of us the same quotes, word-for-word.

Since we spend so much time looking at excessive use of SWAT teams here, it’s worth pointing out instances where they’re used properly, and really do save innocent lives.

Here’s one such instance:

The terrifying abduction of an 11-year-old girl began with a kidnapper’s gunshots in the early-morning hours Friday as she was grabbed from her San Jose home. It ended almost five miles away and 12 hours later with a single shot, when a SWAT officer killed 42-year-old Tri Truong Le, the alleged kidnapper, during a gunbattle in a narrow staircase.

The girl, who was in the kidnapper’s arms when the gunbattle started, was miraculously almost unharmed and recovering from the trauma at a hospital, police said.

The officer who fired the fatal head shot was identified by police Friday night as Mauricio Jimenez.

Police Chief Chris Moore said the brave rescue by Jimenez and the highly trained team of special operations officers was the result of “what they are trained to do, time and time again, hoping they never have to use that skill set.”

“I am extremely grateful to our officers today for their courage and professionalism under fire,” Moore said. “Today’s events involved a lot of great work by a lot of people. Being able to reunite this little girl with her family was our number one mission.”

Note that the SWAT team didn’t resort to violence first, as is almost always the case with suspected drug offenders.

Police scoured the city looking for the girl and her kidnapper.

At 12:15 p.m., officers from the San Jose police special operations tracked him down. They quickly surrounded a two-story green-and-beige townhouse in the 3400 block of Pistachio Drive off Senter Road.

As officers set up a command post to see if they could get him to peacefully surrender, the suspect appeared in the window of the townhome with the girl in his arms and fired a handgun at officers.

The officers went into instant hostage rescue mode. They forced open the townhome front door.

Le was still holding the girl in his arms at the top of the stairs when he began firing at the officers. Jimenez fired back with his assault rifle, without hitting the girl, and killed the man.

“This type of crisis hostage situation only happens every 10 or 15 years,” said police spokesman Sgt. Jason Dwyer. “When an officer has a chance to save a hostage’s life you get one shot to make it count.”

This is why we have SWAT teams—to use violence to defuse an already violent situation. They saved this girl’s life.

• Virginia concert venue sues a new art center, claiming it has rights to the word “barns.”
• Daisy is starting her own occupy movement to protest.
• Other copyright laws in need of changing.
• Federal government gives Americans advice on . . . debt management.
• Pot activists get fined for collecting signatures for a ballot initiative.
• Tumblr of the week.
• Texas state senator admits he knew red light cameras had no effect on public safety, voted for them anyway.
• Nevada prostitutes endorse Ron Paul.

Back when the smoking bans were spreading across the country, those of us opposed to them made the point that you could make many of the same arguments about perfume and cologne that ban proponents were making about second hand smoke. (And there’s about as much evidence that fragrances are a health risk, which is to say very little.)

But you can’t really make a reductio argument for too long before someone embraces it.

Many women love wearing perfume, but have you ever gotten a headache from someone who has sprayed on way too much of a scent you don’t like? Back in 2008, Susan McBride, sued Detroit under the Americans with Disabilities Act, claiming a co-worker’s fragrance made it hard for her to breathe and do her job. She was eventually awarded $100,000, and the city warned workers to avoid using scented products like perfume, cologne, deodorant, lotion, and aftershave. Now New Hampshire is looking to do the same.

State representative Michele Peckham is sponsoring House Bill 1444 which hopes to ban state employees who work with the public from wearing perfume. Apparently a constituent with extreme allergies approached Peckham with the proposal. “It may seem silly, but it’s a health issue,” Peckham told the Union Leader. “Many people have violent reactions to strong scents.”

The author then poses an honest question that puts this nonsense into the proper perspective:

Allergies and annoyances aside, should the government be able to regulate what we smell like?

The bans at the moment are just for state employees. But that’s merely where these ideas start. Just to hammer the point home, this, from  a tweet from Stacy Malkan, head of an organization called the Campaign for Safe Cosmetics.

Fragrance is the new secondhand smoke.

Of course, body odor is fairly offensive to the senses as well. Don’t we deserve protection from that? Clearly the proper balance here is for the federal government to require regular showers and the application of deodorant, but ban all but the unscented varieties. All of this would be proper under the authority  of the Commerce Clause, of course.

A few of my favorites . . .