Author: Bill Otis

Pardoning at the End of a President’s Term

by · Nov 8, 2020 11:55 am

With Joe Biden’s now having won the election, the question arises whether and how President Trump will exercise his pardon power as his term comes to an end.  Presidents traditionally issue many if not most of their pardons at that time, thus  —  very unfortunately in my view  —  avoiding political accountability for them.  One reason this is so bad is that political accountability is the only kind there is.  Pardons cannot be reviewed or changed by either of the other branches of government.

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Should Justice Barrett Recuse Herself from Election Cases?

by · Nov 2, 2020 12:08 pm

This is not about criminal law, but might prove to be of considerable interest to readers in coming weeks.  It may turn out that tomorrow’s election will come down to a few closely contested key states (e.g., Pennsylvania, Wisconsin, Michigan, Arizona), and that, in those states, there will be heated disputes about ballot counting and other kinds of alleged election irregularities.  These could wind up in the Supreme Court.  With Chief Justice Roberts sometimes joining the liberals, the result could turn on whether Justice Barrett participates in the decision.  The question whether she should is thoughtfully addressed in this balanced article by Prof. Jonathan Adler of Case Western Reserve.  (Hint:  There is a reasonable argument that she should recuse herself but an at least equally strong argument that she shouldn’t.  Although she alone makes the call, she would very likely consult with her fellow Justices in making her decision).

How “Progressive” Cities Can Claim They Lower Their Crime Rate

by · Oct 30, 2020 12:38 pm

The view here at C&C is that if you shred and demoralize the police force, and have lax prosecution policies, sooner or later (probably sooner) your crime rate will increase; prospective criminals will notice when the cost of doing business goes down.  Still, that might not always be the case.  Seattle  —  as progressive a city as there is  —  may be on the cusp of showing us how to dramatically decrease the number of convictions no matter how much you shrink and demoralize the police force.

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Progressive Prosecutors, the Advanced Version

by · Oct 29, 2020 11:49 am

C&C has had a few posts on “progressive prosecutors,” to wit, those, like former Public Defender Larry Krasner, now District Attorney for Philadelphia, who tend to see things from the defendant’s point of view.

As ever with the defense side, however, one step forward is never enough.  Thus, I want to bring you the next step. Continue reading . . .

To Pack or Not to Pack, That Is the Question

by · Oct 22, 2020 4:56 pm

That may be the question, but Joe Biden won’t be giving us the answer.  Instead, he’s going to create a commission to “study” the issue of court packing, and other supposed judicial “reforms,” and get back to us.

Creating a commission is one of the oldest dodges in DC, so I suppose I shouldn’t be surprised that Mr. Biden would recur to it  —  he having been in this town since the War in Vietnam.  But it’s still just a dodge. Continue reading . . .

Is the United States “Incarceration Nation”?

by · Oct 22, 2020 12:45 pm

Kent discussed here the recently released BJS Report showing that the prison population in America declined again last year.  “Reform” advocates are likely to use the report as evidence that declining incarceration does not result in more crime.  As Kent explains, this is so much sleight of hand.  Part of the overall decrease in crime rates over the last decade stems from the trend in some large states to simply refuse to label more and more anti-social behavior (e.g., retail theft, small-time drug use) as crime, and part results from systemic delay, to wit (1) the delay between cause and effect, and (2) the delay between the commission of crime, its adjudication, its collection in crime statistics, and the statistics’ publication.

Still, it’s worthwhile looking at the BJS statistics themselves.  Even with their shortcomings, they tell a very different story from the one you’re going to hear from “reform” advocates. Continue reading . . .

The Criminal, Not Just as Societal Victim, But as Hero of the Resistance

by · Oct 19, 2020 5:52 am

I’m normally not a big fan of Andrew Sullivan, but he has a thought-provoking essay out titled, “Why Is Wokeness Winning?”  This passage in particular struck me:

BLM’s critical race activists do not support reforming the police, they want to abolish them entirely. In fact, they demonize all cops as “bastards”, and they justify violence and exonerate crime as legitimate resistance to the far greater crime of white oppression.

This crystalizes a thought I’ve had for a while about our opponents’ thinking:  The reason we should go soft on criminals is that we have the theory of moral culpability, not merely misunderstood, but backwards.

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Use the Pardon Power More Aggressively……Oh…….Wait……………

by · Oct 12, 2020 4:08 pm

Here’s the headline from Politico:  “Suspect in Whitmer kidnap plot was pardoned in Delaware last year.”

Now we know, from reading years of pro-leniency sources, that the Politico headline can’t be right.  It’s not that we give clemency to dangerous folks.  Noooooo!  It’s that we’re a punitive, compassion-challenged country that keeps reformed prisoners needlessly locked up for years for no reason other than the sadistic pleasure of it.

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