The new chairman of the House Judiciary Committee, Bob Goodlatte (R‑Va), discusses the problem of overcriminalization with Pat Robertson.

For related Cato work, go here, here, and here. I discuss the prospects for criminal justice reform in 2015 in this Washington Examiner article.

People ask about my soft spot for Justice Ruth Bader Ginsburg and from now on I’m just going to point them to this article.

Supreme Court Justice Ruth Bader Ginsburg admits to sharing some wine with her colleagues and not being “100 percent sober” for President Obama’s State of the Union address in January. …

“The audience for the most part is awake, because they’re bobbing up and down, and we sit there, stone-faced, sober judges. But we’re not, at least I wasn’t, 100 percent sober,” Ginsburg said during a talk at George Washington University on Thursday night, according to a report by The Blaze. 

“Because before we went to the State of the Union, Justice Kennedy brought in … it was an Opus something or other, very fine California wine […,” Ginsburg said.]

Ginsburg has also appeared to fall asleep during the president’s annual address to Congress in prior years.

As my Cato colleague Gene Healy has written, the annual speeches have long been “pompous, unedifying spectacles” in which Congressmembers clap robotically while “the president stands at the front of the House chamber making exorbitant promises that would shame a carny barker” and a supposedly typical citizen or two are invited to showcase touching, politically well-vetted personal tales. Any legislative proposals of interest will require analysis over days or weeks, a process not well suited to in-person lecturing. “President Jefferson, who thought delivering the speech before Congress assembled smacked too much of a king’s ‘Speech from the Throne,’ ” converted the report to a written document, Gene writes, but Woodrow Wilson (it would be him) revived the regal practice.

For bringing to this hard-to-endure, self-important ritual the attitude it deserves, a thanks to Justice Ginsburg. 

With the release of Peter Wallison’s new book, Hidden in Plain Sight, debates about the role of Fannie Mae and Freddie Mac in the financial crisis have heated up again. As I’ve written elsewhere, I believe there’s a lot more to the story than the GSEs’ housing goals. While there are a number of omissions in Peter’s otherwise fine book, I want to address a particular criticism of his work that strikes me as simply confused and mistaken.

I’ve often heard that Fannie and Freddie couldn’t have been a cause of the crisis because their loan loss rates (and totals) were far below those of banks. Robert VerBruggen recently repeats this in his review of Peter’s book. 

For this claim, Robert relies on loss estimates by David Min and Mark Zandi. The latter repeated this criticism at an AEI event for Peter’s book, and you can find Zandi’s estimates here (page 8, table 1). Zandi states that as a percent of debt, the GSEs witnessed a loss rate of 2.7 percent on their holdings of residential mortgages. Combined with the Federal Housing Administration’s losses, this comes to around $206 billion. In contrast, depositories (banks & thrifts) had a loss rate of 5.8 percent for a total of $217 billion—both the rate and total are obviously greater than that for the GSEs and FHA. 

So far, so good; I don’t disagree with any of the above. But Zandi’s estimates suffer from a massive omission: the other side of the balance sheet—equity. If you think losses are all that matter, consider that the dot​.com bubble erased about $8 trillion in wealth, whereas losses on mortgages, according to Zandi, were just under $1 trillion. So if losses are the issue, why wasn’t the dot​.com bubble so much worse than the subprime crisis? Because of leverage.

Yes, the GSEs’ losses on mortgages were less than that for depositories, but the differences in capital were far greater. The GSEs had far less shareholder money to fall back on if mortgages started to sour. Again bear in mind that total losses were similar between the GSEs and the depositories. In the 4th quarter of 2007, Fannie and Freddie held about $70 billion in shareholder equity, behind $1.7 trillion in assets and around $5 trillion in debt and guaranteed mortgage-backed securities. By contrast, depositories held $1.3 trillion in shareholder equity, or about 19 times the equity of the GSEs. Mortgage losses were not enough to sink the entire banking system, even if some banks did sink, whereas the GSEs were toast because of their low levels of capital. 

Why does that matter? Because it takes insolvencies to drive a financial crisis. The banking system, as a whole, was not driven to insolvency, but the GSEs where. Losses (and loss rates) only make sense relative to the capital ready to absorb those losses. And of course the failure of the GSEs was magnified through the system in a uniquely harmful manner. 

Did other banks hold Citibank equity? Of course not, but they did hold GSE preferred shares. This all isn’t to say that the GSEs were the only cause of the crisis; they weren’t. It is to say that loss rates presented out of context are meaningless and could even be misleading.

Over his 33 years at Cato and through his earlier activities in the libertarian policy sphere, Cato’s Executive Vice President David Boaz has played a key role in the development of both the Cato Institute and the libertarian movement at large; he even wrote the Encyclopedia Britannica entry on libertarianism!

On Tuesday, in conjunction with the release of his new book, The Libertarian Mind: A Manifesto for Freedom (which, incidentally, sold out on Amazon within hours), Boaz took to Reddit’s iAMA forum to discuss libertarianism, his book, and the burgoening “libertarian moment,” inviting Redditors of all ilks to ask him anything. 

During the hour long Q&A session, Boaz tackled a wide-array of questions, weighing in on everything from the drug war and abortion to effective strategies for social change and the efficacy of libertarian governance. Each one of his responses ignited impassioned debates amongst the forum’s diverse audience as commenters from all sides of the political spectrum hashed out the ideas of liberty. 

The resulting discussion is a fascinating one, very much worth your attention. Check out the Reddit discussion and Boaz’s book, and then continue the conversation on Twitter using #LibertarianMind.

In a joint press conference with German Chancellor Angela Merkel, President Obama stated that he was considering sending weapons to the government of Ukraine. Noting that Russia had already annexed Crimea and was now backing separatist rebels in eastern Ukraine, the president warned that “the West cannot stand and simply allow the borders of Europe to be redrawn at the barrel of a gun.”

Such sentiments might have more credibility if the Western powers, including the United States, had not engaged in similar conduct. But Washington and its NATO allies have indeed redrawn borders, including borders in Europe, through military force. Two incidents are especially relevant. Turkey, a leading member of NATO, invaded Cyprus in 1974 and amputated some 37 percent of that country’s territory. Turkish forces ethnically cleansed the area of its Greek Cypriot inhabitants and, in the years that followed, desecrated a large number of Greek historical and religious sites.

Ankara subsequently established a client state, the Turkish Republic of Northern Cyprus in the occupied territories. Turkey has steadfastly refused to atone for its illegal invasion and occupation, much less disgorge the land that it conquered. Yet except for some token economic sanctions imposed shortly after the invasion, which were soon lifted, Washington has never even condemned the aggression that its NATO ally committed. 

One might assume that it would be awkward for U.S. leaders to excoriate Vladimir Putin’s regime for annexing Crimea or setting up puppet states in the occupied Georgian provinces of Abkhazia and South Ossetia (which Moscow did after a short, nasty war in 2008) when a NATO member is guilty of similar behavior. But such flagrant inconsistency has apparently caused American officials little difficulty.

The other, even more blatant, case of redrawing European borders by force was the 1999 Kosovo war and its aftermath. The United States and its NATO allies launched an air war against Serbia lasting 78 days to compel Belgrade to withdraw its security forces and relinquish control of the rebellious province. A UN Security Council resolution ratifying that action still recognized Serbia’s sovereignty over Kosovo but mandated international control and governance of the territory for an indefinite period. A NATO occupation force became the instrument of that control, despite Russia’s misgivings.

In early 2008, the Western powers encouraged and then formally recognized Kosovo’s unilateral declaration of independence from (a now democratic) Serbia. Russia, China, and other countries strenuously objected to that decision, both because it bypassed the UN Security Council and set what they believed was a worrisome precedent in the international community. Indeed, nearly half of the member-states of the UN (including several members of the European Union) still refuse to recognize Kosovo’s independence. 

Given those precedents, it is astonishing for Obama or any other Western official to assert that redrawing European borders by force is unacceptable. Russia’s actions in Crimea and eastern Ukraine deserve condemnation, but the West’s hypocrisy is nothing short of breathtaking.

After a grueling seventeen hours of negotiation, German, French, Ukrainian, and Russian leaders emerged with a compromise agreement aimed at ending the conflict in Eastern Ukraine. Although similar to last September’s failed Minsk accords, the new deal provides more details on timing and implementation, which may help a ceasefire to hold. After so many prior failures, strong skepticism is understandable. But if U.S. and European leaders actually commit to the specifics of the deal, it can provide Ukraine with much-needed time to rebuild, reform and address its dire economic problems.

The all-night negotiations between leaders in Belarus showed how far apart the parties were on a number of key issues, including whether the deal should rely on the boundaries laid out in the Minsk I ceasefire, or on the current situation in Eastern Ukraine. Since rebel forces have made substantial territorial gains since September, neither side is keen to concede on the issue. Other issues, including which side will control border crossings into Russia, and the withdrawal of foreign fighters and equipment, proved equally thorny.

Admittedly, the deal still leaves many issues unsettled. It calls for an immediate ceasefire, the withdrawal of heavy weapons and a demilitarized buffer zone in Eastern Ukraine. It also mandates constitutional reform to allow the eastern regions increased autonomy, as well as amnesty for those involved in the fighting. But the issue of boundary lines is left effectively unsolved, requiring Kiev to adhere to the current front lines when withdrawing weaponry, and the rebels to adhere instead to the boundaries agreed upon in September. There is also no real mechanism to ensure compliance, although the situation will be monitored by the OSCE.

Still, Minsk II provides more concrete details on each issue, which may help this deal to succeed. Timing is more clearly defined for the start of the ceasefire, the removal of troops and heavy weapons, the creation of the buffer zone, while all constitutional reforms and elections are scheduled to be completed by the end of 2015. The sequencing of events is also more clearly defined: the agreement calls for control of the border to be returned to Ukraine only after new elections in the region, which themselves must follow constitutional reform in Kiev. Since Minsk I’s failure can be attributed in part to disagreement between both sides over who would implement such steps first, this is a welcome change. The restoration of social transfers from Kiev to residents in rebel-controlled areas is also welcome, and may serve to reduce some of the misery in the region.

Although an imperfect deal, it is important that U.S. and European leaders support it. In the next few days, we can expect to see hostilities increase as both sides attempt to make last-minute gains before the ceasefire begins on February 15^th. But thereafter, particularly during the first two week period, leaders must push strongly for both Kiev and Moscow to implement the deal. A substantive ceasefire will provide Kiev with breathing room, allowing them to begin the process of economic reform. Ukraine’s economy, never strong, has been a major casualty of the conflict, with the Hryvnia falling 65% in just the last year. A newly-inked IMF deal will provide Ukraine with $17.5 billion in reform-oriented aid, allowing the government to begin the process of reducing government waste, rooting out corruption, and salvaging the badly damaged economy. It will also provide time to bolster the Ukrainian armed forces, which have performed poorly in the conflict due to rampant corruption and inefficiency. Such reforms would be extremely difficult in the absence of a ceasefire.

This week’s Minsk deal doesn’t necessarily offer a viable long-term solution to the crisis, as it fails to address several key issues. But if it can be made to produce a successful ceasefire, even in the short- or medium-term, it will provide Ukraine’s government with time to strengthen itself by addressing its numerous economic problems and widespread corruption. Such reform is far more valuable to Ukraine’s future prosperity than the current military campaign. 

Advocates of increased transparency in law enforcement are understandably keen to see more police officers wearing body cameras. Not only is there some evidence that police officers wearing body cameras contributes to a decline in police “use-of-force” incidents, footage from police cameras has provided useful evidence to those investigating allegations of police misconduct. Yet despite the benefits of police body cameras there are serious privacy concerns that must be considered and addressed as they become more common.

Perhaps the most obvious privacy concerns are those of the civilians filmed by police officers. If footage from police body cameras is considered public record then hours of footage of innocent people’s interactions with police officers is potentially available. It is not hard to imagine a situation in which police officers wearing body cameras enter someone’s home and leave without making an arrest. Footage of that encounter could reveal embarrassing or private information about the homeowner.

In November of last year it was reported that Washington police departments were reviewing their policies related to dash cameras and body cameras in the wake of an increase in requests for footage from the public via public record requests. As the ACLU has pointed out, Washington is one of the states where body camera footage is considered “susceptible to public release upon request.”

At the end of last month, members of the North Dakota House overwhelmingly passed a bill that would exempt police body camera footage of the inside of a private place from a public record request. North Dakota House member Kim Koppelman, who introduced the bill, said that the legislation would protect civilians in situations similar to the one I outlined above. Koppelman reportedly introduced the bill “at the request of West Fargo Police Chief Michael Reitan.” Koppelman and Reitan may be primarily concerned with the privacy of civilians, but a civilian could have a genuine interest in seeing the footage gathered by police officers in her home, especially if she believes that officers damaged property or behaved poorly.

Writing in The Atlantic,Conor Friedersdorf suggested a policy framework for body cameras that included the following:

Members of the public who appear in body camera footage can request that it be sealed in certain cases—if they are a crime victim or witness, for example—but if no civilian in a video objects, then any member of the press or public can at least view it.

I would extend “certain cases” to include incidents involving police officers filming the interior of private property. Mother Jones’ Kevin Drum recommends that different police body camera policies be in place for footage captured inside private property and for footage captured in public. Whatever body camera policies police departments and lawmakers implement, they must be clear about when footage of the inside of private property will be available to the public. This is especially important because, as Friedersdorf highlights in his article, police departments are oftentimes unwilling to release their body camera footage disclosure policy (if they have one at all).

Jay Stanley at the ACLU has proposed a policy regarding when a police officer should turn on a body camera; such polices:

should require that a police officer activate his or her camera when responding to a call for service or at the initiation of any other law enforcement or investigative encounter between a police officer and a member of the public. That would include stops, frisks, searches, arrests, consensual interviews and searches, enforcement actions of all kinds, and any encounter that becomes in any way hostile.

This sounds like a good proposal, although it doesn’t address what ought to be done if such a policy is in place and an officer does not have his body camera on during an encounter. However, in October 2013 Stanley wrote that if a police department has a policy in place requiring that officers have body cameras on for all interactions with the public then failure to turn on body cameras should be dealt with in the following way:

And this requirement [to turn on body cameras during interactions with the public] must have some teeth associated with it — not only a risk of disciplinary action but also perhaps an exclusionary rule for any evidence obtained in an unrecorded encounter (for police who have been issued the cameras, unless there is an exigency to justify the failure to record). Another means of enforcement might be to stipulate that in any instance in which an officer wearing a camera is accused of misconduct, a failure to record that incident would create an evidentiary presumption against the officer.

These potential consequences may be enough to encourage officers to habitually turn on body cameras during encounters with the public, although it shouldn’t be surprising if there are genuine instances of police officers forgetting to turn body cameras on, particularly as they are introduced into departments. With something like Stanley’s exclusionary rule being strictly interpreted police officers will have to become used to regularly turning body cameras on in cases when doing so might be awkward or encumbering, such as during an unexpected on-foot pursuit of a suspect.

Some might argue that in order to get around the problem of officers not turning their body cameras on at appropriate times that cameras should be constantly on during an officer’s shift. This is technologically possible. During the first randomized control experiment on the effect of police body cameras, which took place in Rialto, California, cameras with a battery life of at least 12 hours were used, although officers taking part in the experiment were not required to have the cameras on at all times. 

While it is technically possible for officers with body cameras to have the devices on throughout a shift, there are serious problems with this requirement.

First, police officers deserve some privacy while on the job. The public should hold police officers to high standards and expect honesty and transparency from law enforcement officials, but it remains the case that police officers ought to be able to talk to each other in cruisers about department gossip and other topics without fear that members of the public may request footage of the conversation.

Second, police officers sometimes have to interact with informants and minors who are the victims of sexual assault. It would clearly not be appropriate for such interactions to be filmed by officers. Indeed, during the Rialto experiment officers were instructed not to have their body cameras on during such encounters.

Both of these issues raise concerns regarding a policy requiring that police officers have body cameras on at all times during their shifts. Any good police body camera policy cannot require that the cameras be on at all times.

It is my hope that an increasing number of police departments will issue body cameras to their officers. However, the issuing of these cameras must be accompanied by well-considered body camera policies that take into account the privacy concerns of civilians and police officers and the impact body cameras may have on law enforcement officials doing their jobs. Police body camera policies must also take into account local policing needs and should be crafted in this country’s labs of democracy.