Defense Bar Discovers that Judicial Discretion Has Downsides

by · Aug 3, 2020 1:45 pm

I spent a good chunk of my career at the Justice Department and my life afterwards speaking up for a sentencing system that more nearly resembles law than the “anything-goes” regimen that existed when I started my career.  At that time, with limited exceptions, judges were free to sentence as they chose within any point in a very broad statutory range, pretty much with no questions asked.  This led to scandalously wide and irrational disparity.  In the Eighties, Congress noticed, and responded with one of its signal achievements, the Sentencing Reform Act of 1984.  The SRA established the Sentencing Commission and a system of mandatory sentencing guidelines, with departures allowed in exceptional cases, for good reason explained by the court on the record.

One of the main criticisms I encountered was that the SRA system was too rigid and took the human element out of sentencing.  We should “let judges be judges,” or so I was told.  I now see, however, that the adversaries of law-driven sentencing have had at least a modest change of heart.

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Murder Explodes in Cities Big and Small as Police Come Under Attack

by · Aug 3, 2020 9:18 am

The WSJ documents the surge in murder across the country.  The question is:  Why is this happening?  Let me ask that question another way:  When the police are hobbled by relentless and viciously slanted attacks on their basic decency, by movements to defund and disband them, and by other movements to have them do bake sales instead of street patrols, what did you think was going to happen?

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How To Deal with Criminals When the Police Stand Down

by · Aug 2, 2020 12:39 pm

Minneapolis has been at the center of the widespread insurrection and rioting the country has seen over the last couple of months.  Its City Council has voted to disband the police, while crime is surging (those who think those two things are unrelated can stop reading here).

With robberies and other violent crime on a tear while the police sit in criminal justice reform’s doghouse, law enforcement has sent out tips for how law-abiding citizens should react to criminals.  The advice is pithy:  Obey them.

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Court Overturns Boston Bomber’s Death Sentence

by · Jul 31, 2020 3:25 pm

In an unanimous 187 page ruling announced today, a panel of the First Circuit U.S. Court of Appeals overturned the death sentence given to Dzhokhar Tsarnaev, one of the two radical Muslim jihadist brothers who set off pressure-cooker bombs at the finish line of the 2013 Boston Marathon, killing three and injuring 260 others.  Nick Givas of Fox News reports that the court found that the trial judge had failed to properly vet the sentencing jurors with regard to possible bias stemming from publicity surrounding the bombing.

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Still Not Guilty, but Still Hounded

by · Jul 31, 2020 2:15 pm

Perhaps the defining moment of the Black Lives Matter movement, at least before George Floyd, was the 2014 police shooting of Michael Brown in Ferguson, MO.  It gave rise to the slogan, “Hands Up, Don’t Shoot,” which supposedly captured the moment in which Brown, with hands up and peacefully approaching white Police Officer Darren Wilson, was shoot dead for no reason.  That slogan is still shouted at BLM rallies today.

A new prosecutor, a black man, Wesley Bell, was elected in St. Louis County in 2018.  He reopened the investigation.  Result:  Darren Wilson is still not guilty of any crime that could be proven to a jury under the same standards applied to everyone else.

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Faithful Execution of the Laws

by · Jul 29, 2020 3:18 pm

40 U.S.C. §1315(a):

To the extent provided for by transfers made pursuant to the Homeland Security Act of 2002, the Secretary of Homeland Security … shall protect the buildings, grounds, and property that are owned, occupied, or secured by the Federal Government … and the persons on the property.

“Shall,” for those unclear on the concept, means this is a duty.

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Who and What Is Racist, and What Difference Does It Make in Criminal Law?

by · Jul 29, 2020 9:01 am

I’ve said many times that race has no place in fair-minded thinking about criminal law, first because human beings should be judged as individuals and not as members of racial (or gender or other innate) groups; second because criminal law is about behavior not identity; and third because race does not determine anything at all with which criminal law specifically ought to concern itself.

But I’ve lost that debate.  It has become impossible in the current climate to exclude race from discussions of criminal law.  Given that as the state of play, what questions should we be asking?

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A Presentation Featuring the Incomparable Heather Mac Donald

by · Jul 29, 2020 12:31 am

CJLF’s Legal Director, Kent Scheidegger, is for my money the country’s most knowledgeable, intellectually adept and fair-minded expert on the death penalty and habeas corpus.  Heather Mac Donald fills the same role on the intersection of crime, race and policing.  She will be holding forth in a presentation Thursday at noon Central Time.  This link tells you how to sign up to watch.  The way things are now, you can learn more listening to Heather for ten minutes than going to law school for three years.

When the Insurrection Comes Home

by · Jul 28, 2020 1:14 pm

Georgetown is a popular and lively part of Washington, DC with quite a few bars and upscale restaurants.  It attracts college students and young adults on the way up.  A resident of nearby Northern Virginia and a friend of mine, Prof. David Bernstein of Antonin Scalia Law School, posted yesterday about a revealing episode on a Georgetown street  —  an episode relevant to this blog and beyond.

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