Julian Heicklen Interviewed by Nathan Larson

In February 2014 Nathan Larson interviewed Julian Heicklen via email, the result of which was originally posted to Nathania.org. That interview is posted in full below as the issues covered are relevant and likely to be of interest to readers of CopBlock.org.

Both Larson and Heicklen have not just been vocal to right perceived wrongs but have taken action in an attempt to bring about a positive change.

Larson, a prolific writer, created and maintains the wikis Nathania.org, SuicideWiki.org, and ChildWiki.net. In On the Harms of Blindly Obeying by Nathan Larson, Larson outlined the outlined what occurs when individuals mindlessly follow rituals that serve only to pay homage to the State. The 2011 video Presidential Threat Lands Man in Cage, But Where’s The Victim? documented the caging of Larson.

Heicklen, a retired chemistry professor who in 2012 left the US “when Obama signed the NDAA of 2012, which gave him the authority to arrest and detain indefinitely any person without charges or a trial,” has been especially outspoken around jury nullification and marijuana – it’s not surprising then, that his actions have been detailed here at CopBlock.org.

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Larson: What are the greatest opportunities for, and challenges to, informing the pool of prospective jurors about their jury nullification rights? In other words, if our goal is to make sure that as many jurors as possible know what their rights are, what do we need to do to achieve that, that we’re not already doing?

julian-heicklen-jury-nullification-copblock
Julian Heicklen being hassled for offering jury nullification information to passerbys.

Heicklen: I think that we have done quite well. Distributing literature at court houses would have almost no effect, except that the courts and cops cannot stand it and do foolish things, like harassing and arresting distributors. This, of course, stirs up great publicity and spreads the word. Recently jury nullification billboards have been placed in Washington, DC, Los Angeles, and Phoenix. James Babb is coordinating this activity. More billboards will emerge.

Recently several juries in 4 states have nullified. The New Hampshire assembly passed a state law saying that judges could not be punished for notifying juries of their rights. One judge in New Hampshire did this. Like all movements, it takes a generation for it to become complete.

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Larson: Prison systems often claim that freedom of speech much be stifled in order to protect the security and good order of the institution. For example, Program Statement 5266.11 allows the Federal Bureau of Prisons to send back incoming publications containing sexually explicit text pertaining to sadomasochism, bestiality, etc. Presumably, the theory is that other prisoners who see the material might get offended and start a fight over it. How should prison systems balance such concerns with freedom to receive material concerning controversial topics; or should such freedom even be a concern, given that these are people who the government has decided should be deprived of some of their rights because of their criminal behavior?

Heicklen: People in prison lose some civil rights. Whether or not this does any good, I do not know, but I do not think it necessarily is illegal.

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Nathan-Larson
Nathan Larson

Larson: The 2010 U.S. Sentencing Commission report Federal Offenders Sentenced to Supervised Release notes that in 2008, federal courts revoked the supervised release terms of 33 percent of federal offenders whose supervised release cases were closed that year (i.e., 11,797 out of the 35,724 offenders) as a result of commission of new offenses or other violations of the conditions of supervised release.

a) Does supervision serve a useful purpose that is worth the costs in terms of restriction of liberty and sending people back to prison for non-criminal violations, or for victimless offenses such as drug use that they wouldn’t have been caught doing if they hadn’t been subject to such close monitoring?

b) Do you think supervision could even be counterproductive toward crime prevention, in that people who are only partially free have less incentive to refrain from going back to prison, since their ability to live a useful and enjoyable life, even if they stop their criminal behavior, has been somewhat curtailed by the supervisory restrictions?

c) Are there some conditions of supervised release that you think courts should quit imposing? E.g., the standard conditions against leaving one’s judicial district or associating with felons have sometimes been criticized as unnecessary; and the conditions requiring people to submit to having the government’s spyware installed on their computers, or to wearing a GPS anklet, are a significant infringement of privacy.

d) What do you think of the increasingly common practice of putting sex offenders, including those whose only offense was possession or distribution of child pornography, on lifetime terms of supervised release? (At the federal level, this became the practice recommended by the Sentencing Guidelines after the passage of the PROTECT Act of 2003).

Heicklen: I think supervision should depend on the individual. Sex offenders are notorious repeaters. Lifetime supervision can be justified.

For many others, it interferes with their returning to useful citizens. Asking people on probation not to associate with each other is pointless and fails.

Of course arresting anyone for using drugs is ridiculous in the first place.

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Larson: What do you think of Schneckloth v. Bustamonte 412 U.S. 218 (1973), in which the Supreme Court ruled that police need not inform suspects of their right not to consent to a search? Would it be better if police officers had to give a Miranda-like warning, e.g. “You have a Fourth Amendment right not to consent to a search. Any contraband that I find can be used against you as probable cause for a wider search, or as evidence in a court of law.”

Heicklen: I am not sure about searches. I think the police should and will search if they expect you are carrying a weapon, or if they need identification of the individual. They always searched me after I was placed under arrest. Of course, I never carried any of these items. The lack of identification annoyed them. If I had to sign some document to get released, I signed John Galt.

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Larson: It seems like it’s usually disadvantageous for a defendant to confess before he’s been charged with a crime, or outside of the plea bargaining process. Often they do confess, though, because they are ignorant of the law and misled by innuendo to believe that it will be to their benefit, or the victim’s benefit, to do so. The confession is usually admissible as long as the interrogator didn’t make any inappropriate promises.

Heicklen: Confessing to a crime before or after being charged is stupid.

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Larson: What do you think about confessions in criminal cases; does it serve the interests of justice to allow them as evidence? The “Statement Against Interest” hearsay exception in Federal Rule of Evidence 804(b)(3) allows hearsay of a defendant’s inculpatory statements to be admitted as evidence; what about exculpatory statements (e.g. the defendant’s telling the interrogator “I didn’t do it”); should those be admissable hearsay? (Currently, they’re not, as was pointed out in Professor James Duane’s video.)

Heicklen: I think that none out of court statements should be allowed. If needed they should be given at the trial.

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Larson: a) What are some U.S. Supreme Court decisions that you would most like to see reversed, and why?

b) What are some of the best pro-liberty opinions written by judges that you would recommend people read, and why? (This can include dissents.)

Heicklen: a) The Sparf opinion which allowed judges to not inform jurors of the right to nullify. [Sparf and Hansen v. United States–156 U.S. 51 (1895)]

b) Thurgood Marshall opinion ridiculing the idea that free speech could be illegal on the Supreme Court plaza [United States v. Grace, 461 U.S. 171 (1983)]

“I would hold 40 U.S.C. § 13k unconstitutional on its face. The statute in no way distinguishes the sidewalks from the rest of the premises, and excising the sidewalks from its purview does not bring it into conformity with the First Amendment. Visitors to this Court do not lose their First Amendment rights at the edge of the sidewalks any more than “students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Tinker v. Des Moines Independent Community School District, 393 U. S. 503, 506 (1969). Since the continuing existence of the statute will inevitably have a chilling effect on freedom of expression, there is no virtue in deciding its constitutionality on a piecemeal basis.”

Of course the police and judges ignore this decision. I have been arrested more than a dozen times and incarcerated for distributing pamphlets in front of courthouses.

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Larson: What do you think of the practice of giving defendants harsher sentences for failing to express enough remorse? A federal judge writes, “I addressed the defendant: ‘I note in paragraph 45 of the PSR report that you knocked your then live in girlfriend off the front porch and broke her jaw in seven places and her leg in three places. Why would you do that to her?’ He responded: ‘She deserved it.’ I countered: ‘Excuse me, I don’t think I heard your answer.’ His follow up: ‘I said she deserved it.’ I don’t know what you could have said that would have helped you, but this really, really hurt you! He received an extra 10 months per word.”

Thus, if the defendant tells the judge what he wants to hear, then he gets a lighter sentence. As the judge notes, he’s not punishing the guy for every bone broken, but for every word he said that the judge didn’t like. Should there be concern about the implications for freedom of speech in these situations, since the defendant cannot say what he really thinks without being punished for it?

Heicklen: I think that it is inappropriate to punish a person for speech that is not libel.

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Larson: What do you think of the Free State Project? Is the idea of concentrating libertarians in a sparsely populated state a good and realistic idea? What do you think of the implementation of this idea thus far?

Heicklen: I think that it is an excellent idea. Probably the only one that will work. Once the Libertarians take over NH, others will see the advantage and either join them or push their current state in the Libertarian direction. Those people who want to tell others how to behave can stay in their own states and pester each other.

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Larson: What do you think of the Israeli Knesset‘s proportional representation system? Would that be a good model to import to the U.S., and use for choosing legislators in one or both houses of the U.S. Congress?

Heicklen: I like proportional representation. Israel has 13 political parties represented in the Knesset. As a result, less gets done. That is ideal, because the best government is the one that governs least.

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Larson: What do you think of parliamentary systems? Are they superior to presidential systems, all things considered? Do you think that model should be imported to the U.S., so that the chief executive would be appointed by Congress rather than being elected; since then Congress could fire the President for misuse of his powers, without having to find him guilty of an impeachable offense?

Heicklen: I prefer the multiple branches of government, so that they can act as a check on each other, and see that less gets done. The government that governs least governs best. Of course President Obama has destroyed all this. He now arrests and detains anyone he wishes without charges or a trial. If Congress does not pass a law he wants, he issues it by executive decree. Obama is not a president. He is a dictator.

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Larson: I notice that according to some of the accounts I read, or judging by the way they treated you, in some cases, the government seemed to suspect you of mental illness or mental disability given what they regarded as your unusual behavior in falling limp and so on when the police or court officers laid hands on you. This seems to be a common assumption when a lone activist is engaging in behavior they find inexplicable; if it’s a bunch of people, they seem more likely to understand that it’s civil disobedience. Does it seem to you that accusations of mental illness are used by the government to (a) distract from political controversies, (b) stigmatize and marginalize dissident activists, (c) violate dissidents’ dignity through court-ordered mental health diagnosis and treatment, and (d) justify the government’s restricting the dissident’s liberty? If so, what’s the best way to combat this?

Heicklen: The police and courts never thought that I had mental illness. They knew exactly what I was doing, and that it was succeeding. It drove them crazy, and they did stupid things, as I knew they would. Had they ignored me, I would have had no effect whatsoever. However they could not stand to have their chains pulled, gave me enormous publicity, and made themselves look foolish. The price of justice is eternal publicity.

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Larson: Did you ever feel the way that Thoreau did after serving his prison sentence, in which, according to his essay, he “saw to what extent the people among whom I lived could be trusted as good neighbors and friends; that their friendship was for summer weather only; that they did not greatly purpose to do right; that they were a distinct race from me by their prejudices and superstitions, as the Chinamen and Malays are; that, in their sacrifices to humanity, they ran no risks, not even to their property”? Did you ever feel frustrated with your fellow activists or fellow citizens; and if so, what have you learned are the best actions to take in response to such frustration?

Heicklen: There were frustrating moments, but I knew that was inevitable. These movements take time. Persistence is needed.

Over time, I had a large number of people working for jury nullification and other justice. The police were decent people trying to do their job.

The judges, with few exceptions, are scumbags, who only want to put people in jail. They have no understanding of the purpose of the courts, which is not to imprison people, but to keep them out of prison. They think the duty of the courts is to punish people. They are dead wrong. The purpose of a judicial system is to see that justice is done, which often means ignoring or changing the law.

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Larson: What are the most important reforms that you think should be made to the judicial and penal systems, and why?

Heicklen: Every person in prison is there improperly and should be released. Either they had no jury trial, which violates the Constitution. The 6th Amendment says in part: “Whenever someone is on trial for committing a crime, he or she has the right to a speedy and public trial by an impartial jury” It does not say may have the right or unless he waives a jury trial. Anyone in prison without a jury trial should be released immediately.

If the prisoner had a jury trial, the judge lied to the jury twice when he said “you must enforce the law as I give it to you.” It is not the duty of the jury to enforce the law. It is the jury’s duty to see that justice is done. If the jury decides to uphold the law, it is not the often incorrect version given by the judge. It must be the law in the written statute passed by the Congress or state Assembly. If the jurors do not have the written statute there is reasonable doubt. The jury must rule not guilty. Every person who had a jury decision must be released, because the jury was informed incorrectly of its duty.

All present judges should be dismissed. Most, if not all of them should go to prison for violating their oath of office to support and defend the U. S. Constitution.

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Larson: What advice would you give to young people considering going to law school and entering the legal profession so that they can make a difference for liberty? What paths are likely to put them in a good position to effect that kind of change; and what paths are they better off avoiding, if their main goal is to promote and defend freedom? There seem to be a variety of alternatives, such as the Public Defender‘s office, or private organizations, etc. but often there are tradeoffs to consider, such as the resources that will be available in these different organizations, or possible conflicts of interest caused by divided loyalties (e.g. the public defenders are ultimately court employees).

Heicklen: Good kids enter law school with the vision of upholding the law and helping people. They all graduate as criminals with the only intent to win cases, even by lying or distorting the law. In my criminal case for jury tampering in the US. federal district court in Manhattan, the U.S. attorneys forged the grand jury indictment document, since there never was a grand jury indictment, and the court accepted it. A federal speedy trial means within 70 days of indictment. My case for jury tampering dragged on for 17 months before it was dismissed, because the prosecutors could not produce any tampered juror. For details see: http://www.personal.psu.edu/jph13/Wood_4_17_12.html

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Larson: Why did you choose, at a certain stage in your life, to shift your focus to jury rights activism at the street level rather than, say, getting heavily involved in Libertarian Party campaigns for public office; or churning out a bunch of journal articles as an academic; or becoming executive director of a think tank? What made you decide on that particular avenue for making a difference?

Heicklen: All my life I was involved in civil rights of one sort or another. Jury nullification was my last one. It occurred, because of my disgust with the courts, both state and federal in NY City. I did run for several offices on the Libertarian Party platform, and was even elected to some local offices in Centre County, PA. I published 2 books and 284 papers on chemistry and a few pamphlets on contract bridge. I founded and appointed myself executive director of Smart on Crime and Tyranny Fighters. I held numerous positions in the Libertarian Party. For details see: http://www.personal.psu.edu/jph13/ResumeJPH.html

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Larson: What are some of the major lessons learned over the course of your activist career?

Heicklen: You need two characteristics to change the world.

  1. You must be stupid enough to think that you can do it.
  2. You must be persistent and not give up. It takes about 30 years to make changes.

You never convince the present generation. You are influencing the next generation.

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Larson: Do you favor (a) having judges be periodically elected by the people, so that they can be held accountable; or (b) having them serve a lifetime term, so that they will be insulated from political pressures; or (c) some other system? Why?

Heicklen: In principle the people should choose the judges based on their performance in upholding their legal obligations. In practice the people’s vote has failed, because they choose judges base on how many people they incarcerate or punish instead of how well they deliver justice. The lifetime appointments fail because the judges ignore the laws and Constitution and do whatever they wish. Short of impeachment, there is no remedy. I suggest that fixed term appointments may be a solution. The judge does his or her job for a period of time (say 5 years) and then returns to practicing law.

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Larson: What should be the role of juries in sentencing defendants? Currently, in the federal system, when juries are used at all (more often, the facts are set forth in a plea agreement) they mainly determine the guilt or innocence of the defendant and what the facts relevant to sentencing are, and then the judge makes the sentencing decision in accordance with the criteria set forth in 18 U.S.C. § 3553.

Heicklen: I think that this is OK, as long as the jurors are properly informed that their duty is to see that justice is done, which often means ignoring the law.

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Larson: Do you see the use of plea bargaining in the vast majority of cases, with the likelihood of a much harsher sentence if the defendant gets convicted at trial, as a major threat to the use of jury rights to safeguard freedom? If so, what should be done about this?

Heicklen: Plea bargaining is unconstitutional. Only a jury can determine criminal guilt.

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Larson: What should be crime victims’ role in the judicial and penal systems?

Heicklen: Probably not much. A victim is not likely to be unbiased.

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Larson: Are there some ways that privatization of certain elements of the judicial and penal systems could allow market forces to be harnessed for good; or would this cause too many perverse incentives and inequities? For example, the bail bondsman system has sometimes been praised as a good way of ensuring that only the less risky defendants get out of jail pending trial, and are successfully caught if they jump bail. But of course, the poor can’t afford it. Some libertarians have proposed that competing private prisons, in which the prisoners could go to whatever prison they could afford and that would accept them, could give prisoners a more rehabilitative experience by offering certain amenities, such as better work opportunities, that are unavailable in the current bureaucratically-run system.

Heicklen: I am opposed to private prisons. They always become corrupt.

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Pete Eyre

Pete Eyre is co-founder of CopBlock.org. As an advocate of peaceful, consensual interactions, he seeks to inject a message of complete liberty and self-government into the conversation of police accountability. Eyre went to undergrad and grad school for law enforcement, then spent time in DC as an intern at the Cato Institute, a Koch Fellow at the Drug Policy Alliance, Directer of Campus Outreach at the Institute for Humane Studies, Crasher-in-Chief at Bureaucrash, and as a contractor for the Future of Freedom Foundation. In 2009 he left the belly of the beast and hit the road with Motorhome Diaries and later co-founded Liberty On Tour. He spent time in New Hampshire home, and was involved with Free Keene, the Free State Project and The Daily Decrypt.