Larry Craig and excesses of criminalization

Apparently ex-Senator Larry Craig didn't watch much Law and Order. The take-home message of that show, it seems to me, is that you should have a lawyer when being interrogated by the police. (Further, if that lawyer just sits there like a dead insect while Vincent D'Onofrio paces around looking at your crosseyed, get a new layer.)

(Actually, this incident suggests to me that the time has come for another step beyond Miranda and Gideon v. Wainwright. If a United States senator doesn't have it together to insist on his right to counsel while being interrogated by police (and it is clear on reflection that Craig would have benefited by counsel, given his gross misapprehension of the stakes involved and his recent vacillations regarding his confession and plea), then no one can be reasonably expected to effectively invoke and exercise counsel. Being smarter, more legally adept, and with greater presence of mind than a US Senator is too high a standard to expect of the average person. I think the time has come to go beyond affording suspects the right to an attorney if they ask for one and advising them that they may do so. The time has come to require that anyone interrogated by police have a capable attorney present with all reasonable celerity. Confessions not rendered in the presence of and with the assistance of legal counsel should be inadmissible.

This would be expensive, but it is in the interests of justice. Law is sufficiently complicated that can be expected to be in no one's interest to interact with it outside the context of active and vigorous legal advocacy.

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If the ex-Senator Craig really was soliciting sexual activity, then I agree that act was wrong and is scandalous. The man is married and attempting to cheat on his wife is not to be admired.

However. I'm not sure I believe the actions of Mr. Craig should be criminal. There is a difference between what is moral and what is legal, and all things that are immoral should not necessarily also be criminal.

Mr. Craig is accused of and plead to engaging in activities typical of someone soliciting homosexual activity. As far as I can tell from the press around this case, that involves pretending to drop something on the floor, reaching down for the floor, maybe feet wandering across stall barriers. Not all that clear on what's involved here, but it doesn't appear to involve bloodshed, or exposing oneself, or anything, well, criminal.

If someone in a stall next to me were engaging in these behaviors, would I even notice? I rather doubt it. Seems like it could be mistaken for having dropped something and having some rude misapprehensions of appropriate personal space. Rude? Probably. Criminal? I don't buy it.

I object to this being criminal. The August 31 Arizona Republic editorial vilifies Mr. Craig, asserting "It is illegal to troll for sex in public places, making those places repellent to the public."

What I don't notice won't repel me. It's not clear to me that any behavior here is actually repellent, or even noticeable.

Mugging someone should be criminal. Hitting someone should be criminal. An official's mishandling and destroying government property entrusted to him should be criminal. Stealing money by bilking investors should be criminal. Defrauding the taxpayers should be criminal. Lashing out at those exposing that criminal defrauding of taxpayers should also be criminal.

But reaching down while in a men's room stall? Putting your shoe in the wrong position? I don't see a compelling reason for these actions to be criminal. I have rather more faith in consenting adults. Certainly I trust people to more capably navigate the men's room than I trust them to capably navigate the extraordinary experience of being interrogated by an belittling and misleading police officer without legal counsel.

I read the necessary and proper clause differently than has become popular.

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Mr. Craig was arrested for activity in an airport men's room.

What I want to know is, what wasn't that police officer policing because he was attending to Mr. Craig's foot position? Was there a threat of violence in a school that could have been responded to by the presence of another law enforcement officer? A lead in a kidnapping case that could have been followed up on? Could this officer have been enforcing some crime that causes actual harm? Maybe somewhere someone was littering.

The cost-benefit analysis here doesn't add up.

Here in Chandler there's a serial rapist in the news. He apparently preys on young girls. That's a crime, a terrible, vicious, horrifying crime, deserving of police response. Maybe we could have one more police officer looking for him, instead of attending to perceived signals on the floors of airport bathrooms.