How Bad Ideas Grow Legs

Last January,  Instapundit lawprof Glenn Reynolds wrote a short essay that became the darling of many folks who take an interest in criminal justice issues  entitled  Ham Sandwich Nation: Due Process When Everything is a Crime. To be kind, it was a simplistic rehash of long-time, discredited silver-bullet solutions to complex problems. The only virtue was that it came from Reynolds, who was a law professor and thus credible by definition even though he was dabbling at the edges of an area of law about which he knew nothing.

It was excoriated here. Gideon beat it up at  A Public Defender as well. Unlike Reynolds, this wasn’t a theoretical exercise for us. We lived with the problems, and would wind up living with whatever inane solution seemed like a cool idea to an academic.  Whereas Reynolds’ mantle of scholarly credibility was an asset for others whose interest came from a distance, ours was nuts and bolts, from living with the detritus of bad ideas in the trenches.

Radley Balko  took us to task for being critical of Reynolds. The Agitator offered a homily of cooperation, arguing that we ought to work with luminaries like Reynolds rather than saying mean things like their ideas aren’t fabulous. After explaining what was horribly wrong with a particular idea promoted by Reynolds that Radley found especially interesting (loser pays in criminal litigation), I wrote:

Radley also  questioned by twit why I wasn’t more open to embracing the ideas proffered by Glenn Reynolds and Conor Friedersdorf, “And it’s probably more productive to engage, persuade new allies than to shun and mock them.”  Since I hate to be a shunner or mocker, and I try to be relatively informative as reflected in this response to Radley’s query, I look forward to Reynolds and Friedersdorf, our new allies, engaging. Engage away, guys. Your turn.

Of course, I was shunning and mocking, just as Radley said. But then, I had no plan to suck up to Reynolds in an effort to gain him as an ally anymore than I planned to teach a pig to sing. As players in punditry go, Reynolds is a major player,* and he enjoys his importance. He doesn’t swim with minnows like Gid and me. At most, he eats us for a snack. Radley may have been well-intended, but didn’t really appreciate the pecking order.

Of course, there was nothing to stop Reynolds, either before or after he published his Ham Sandwich essay, from speaking with people who were actually knowledgeable about criminal law, whether that was Gid and/or me, or some other trench lawyers, who could explain why good ideas on paper don’t play as well in the courtroom.  But no. He didn’t. Since it was his essay being published to enlighten the world, it was his duty to get a clue, and his choice not to.

My point to Radley at the time was the when loud voices with ascribed credibility write something like this, bad things happen. Bad ideas are taken more seriously. Other people will mistakenly assume that Reynolds, lawprof and all, has a clue what he’s talking about and his ideas must have merit. After all, lawprofs could never be wrong about lawstuff.  And now that Reynolds had rung the bell, it could not be unrung.

George Will, certainly one of this country’s leading conservative intellectuals,  heard the peal of Reynolds’ bell this week. In an otherwise excellent column on Senators Leahy and Rand’s efforts to provide a backdoor to mandatory minimums (which raises the question of why they aren’t seeking to end mandatory minimums through the front door, but we’ll take it anyway they offer it), Will goes from the sublime to the ridiculous:

The House Judiciary Committee has created an Over-Criminalization Task Force . Its members should read “ Three Felonies a Day: How the Feds Target the Innocent ,” by Harvey Silverglate , a libertarian lawyer whose book argues that prosecutors could indict most of us for three felonies a day. And the task force should read the short essay “ Ham Sandwich Nation: Due Process When Everything Is a Crime ” by Glenn Harlan Reynolds , a professor of law at the University of Tennessee. Given the axiom that a competent prosecutor can persuade a grand jury to indict a ham sandwich, and given the reality of prosecutorial abuse — particularly, compelling plea bargains by overcharging with “kitchen sink” indictments — Reynolds believes “the decision to charge a person criminally should itself undergo some degree of due process scrutiny.”
He also suggests banning plea bargains: “An understanding that every criminal charge filed would have to be either backed up in open court or ignominiously dropped would significantly reduce the incentive to overcharge. . . . Our criminal justice system, as presently practiced, is basically a plea-bargain system with actual trials of guilt or innocence a bit of showy froth floating on top.”

While Instapundit is a Big Kahuna on the interwebz and among academics, George Will has a soap box that dwarfs Reynolds. And he’s taken Reynolds’ “ideas” mainstream, not only crediting Reynolds for his position as an academic, but taking for granted that he’s got criminal law chops.  It’s unlikely that George  checked Reynolds out at Tennessee Law School, where he teaches Administrative Law, Constitutional Law, Law, Science, and Technology, Space Law, Internet Law. See criminal law in there? See anything in his past to suggest even a passing familiarity with the actual practice of criminal law? Me neither.

Yet, I look forward to some fine senators extolling the virtue of a dangerous and hare-brained reform of the law, citing to Glenn Reynolds’ Ham Sandwich essays as the font of practical criminal law brilliance.  Because the myth has now been created and George Will gave it legs.

And this is how we end up with monumentally bad ideas being enshrined in law.

* For those who aren’t familiar with Instapundit, this from Reynolds’ Wikipedia page :

Much of Instapundit’s content consists of links to other sites, often with brief comments. (His frequent use of “heh,” “indeed,” and “read the whole thing” have been widely imitated and are often parodied by other bloggers.) Reynolds encourages readers to explore the wider blogosphere and to fully read articles and posts to which he links.

And that’s the foundation for being a major player on the internet.





110 thoughts on “How Bad Ideas Grow Legs

  1. Jim Majkowski

    Mencken had a good point about such solutions. And I’ve often seen references to “Instaputz.” Mr. Will has said that Bush 43 did the nation a great service by the appointment of two superior SCOTUS justices.

    As for eliminating plea bargains, the adversary system is based on the notion that combat brings out truth; sometimes that same combat leads to compromise, just as it does in civil cases and politics. And what is so wrong with that, anyway?

    BTW, perhaps some belles peel, but bells peal.

    As always, Simple Justice rocks.

  2. SHG

    I refer to Mencken’s point quite regularly, though I feel badly for overusing it at times. I would hate for it to become trite.

    And if you prefer peal, argue with spell check. I’m just the writer. (Fixed, btw. Thanks)

  3. Rollory

    Having read “Fixing the system: the usual suspects”, I don’t see how that specifically excoriates what Reynolds had to say (although I admit I have not read his piece). It doesn’t refer to any specific things he says at all.

  4. JT

    So in all your tut-tuttiness, neither you nor any of your cites were unable to refute the merits of ANY of Reynolds’ arguments. If ad hominem attacks are ok, then I will just call you a jealous hater. A dumb one, at that.

  5. Rewrite

    This seems nothing more than an add hominy attack on Glenn. Methinks that professional jealousy explains it.

  6. ajwpip

    The differences between politics, civil law and a criminal prosecution are large enough that compromise in a criminal prosecution is much more frequently going to be inconsistent with most people’s notion of justice. Compromise is consonant with justice as long as there is some fundamental agreement between the state and the accused. They both acknowledge some degree of guilt and use compromise to take out uncertainty and increase efficiency for both parties. But, if the defendant is innocent and pleas to a lesser charge just to avoid the greater then it is plain injustice. Political factions, or civil disputes typically just don’t have the same capacity for compromise being a miscarriage of justice. Also, politics and civil suits don’t tend to have such uneven access to resources to advocate their side of things.

  7. Rollory

    … All right, I’ll spell it out. Do you anywhere discuss precisely what it is that he talks about that you disagree with and why? Because what I see in that piece is generalizations – lots of them – not specifics. If you have specific criticisms of what he says and why it won’t work, I would absolutely be interested in reading them. If “well, ok then” is the sum total of specifics that are available, then I am wasting my time here.

    In short, it doesn’t make a convincing case for what it claims to be arguing, and I am telling you why I get that impression. If you don’t care whether you’re convincing, feel free to ignore me.

  8. Blaine Fields

    Anyone can bitch, moan, criticize, and bad-mouth. Good job on that front. I suppose if you had any ideas of your own we would have heard them by now.

  9. George Pepper

    You write a lot, but you say almost nothing. Why is, “loser pays” a bad idea? You don’t say. Why is ending or diminishing the number of plea bargains a bad idea? Again, you give your readers bupkis. All you do is rant about how bad the ideas are. I suggest more logic and less polemics.

  10. Donald Campbell

    After watching the Zimmerman trial, I think all prosecutors should be tar and feathered. The willful distortion of Justice for political gain tarnishes all in the legal profession.
    What we have is broke. Jury-nullification or riots in the streets are vigilantie justice. We deserve better. Simplistic ideas are a good way to start. Obamacare was complex, how is that working out for you. It may be the ten percent of lawyers give the other ninety percent a bad name, or it is 90 giving 10 a bad name. I can not tell, and I do not care. Either way it is not Justice being served but egos.

  11. Glenn Livet

    I would have enjoyed an actual critique of Reynolds’ ideas.

    But since you just wrote 1053 words and didn’t make one, I have to assume you had a different agenda.

    Expressing jealousy, for example.

  12. ed

    Is there an actual solution being offered by you or is snark all there is? So far I can condense what has been written by you down to “judges need to be neutral”. Which perhaps is pithy but not excessively revealing.

  13. David

    “Of course, there was nothing to stop Reynolds, either before or after he published his Ham Sandwich essay, from speaking with people who were actually knowledgeable about criminal law, whether that was Gid and/or me, or some other trench lawyers …”

    And with that we get to the heart of your complaint: The long-headed professor didn’t see fit to consult experienced “trench” lawyers like you.

    Aside from pissing and moaning and name-calling, do you have any actual ideas to contribute?

    Didn’t think so.

  14. The Grey Man

    Your essay relies heavily on ethos, some on pathos, but is devoid of logos.

    Frankly, I do not care about your personal critique of Mr. Reynolds, nor about his of you. I DO wish to see enlightened argument on the facts.

    The fact is that your response is personal. Why not provide a point by point rebuttal on the merits of the argument? The fact that you either would not, or could not, do so speaks rather loudly.

    I seem to recall something about facts, law, and pounding a table….

  15. SHG

    Why yes, I do discuss it. At length. You see, this is a criminal defense blog, and if you click on the links in the post, you will some of it. On top of that, there are probably a hundred other posts discussing these issues. The problem with day trippers is that they don’t do the leg work. and demand that any one post contain the contents of a hundred others because, well, they demand it.

    Reynolds “ideas” have been the subject of discussion among lawyers for many years. While these ideas are new to non-lawyers, they are very old news to criminal defense lawyers. and have been long discredited. Just because you’re new doesn’t compel me to repeat in every new post everything that’s ever been said or written about this nonsense.

    If you want answers, feel free to read. If not, that’s fine too.

  16. Victor Erimita

    So your response to Prof. Reynolds is condescension with no substantive criticism, which one assumes is beneath you. But condescending responses are not.

    So, law professors have no legitimate role in analyzing current law or pondering what improvements might be made? I’m a practicing lawyer of well over 30 years, and I am just as happy to dump on academics as the next guy. But I found Prof. Reynolds analysis pretty interesting. If you don’t like his proposed solutions, you might make a more substantive contribution by describing them. He has a hell of a lot more readers than you, and the only thing most of them know about you is from this piece. Like me, I suspect most of them will not be impressed by your copping the know it all pose you did.

  17. DF82

    This was not persuasive. Expecially the critique that “Glen Reynolds doesn’t teach Criminal Law.” That’s a lame and facile tactic, trying to undermine because he lacks a credential, and has nothing to do with Reynolds’ argument itself.

    Just because a truth is spoken by a child doesn’t mean it’s not a truth. And just because an opinion criminal law isn’t written by a criminal law professor doesn’t mean IT’S wrong.

    While your implied point that doing away with plea bargaining is unrealistic, given the extraordinary resources that would be necessary to try every crimina case, the prosecutorial abuse is a real problem. With the incredible growth of the regulatory state, overcriminalization, and the power of the government to monitor its subjects everywhere from their phone coversations to the sidewalks, life has become illegal.

    Look around for God’s sake. A boy was arrested for wearing a T-shirt his teachers didn’t like. People are fined and arrested for the horrid crime of attempting to help wounded animals (because said animals are on the endangered species list and, apparently preventing one from dying in its natural habitat is criminal). The EPA tried to charge a family $37,500 *a day,* and then deny that they had a right to appeal to a court of law.

    But perhaps you prefer it this way. More business.

  18. David

    Moral of the story: He ought to suck it up and get a therapist. He’s got some self-image issues best resolved in private.

  19. Harris

    Amusing that for someone who does an excellent job of coming off as shallow and pedantic and excoriates Reynolds for a lack diligence and attention to detail you blow off your incorrect usage of peal very blithely.

    It is not an issue of arguing spellcheck or “preferring” peal to peel. It was just wrong and your prickly response was illustrative.

    Given that you have no prescription of your own for the subject of Reynold’s piece you are merely a critic, to echo another famous quote, or possibly defending an inefficient system whose inefficiencies benefit you. Enjoy the guild while it lasts.

    Btw, obviously by linking to your piece Reynolds neatly pierces one of your canards. I can only hope your rudeness and woe is me tone was a stratagem to gain the link. Otherwise it is painfully (for you) evident why instapundit enjoys such popularity and the opportunity to express his views so broadly… While you do not.

  20. eddy wobegon

    Your site claims to: “… invite thoughtful comments, but please keep it civil and respectful.” But you clearly can’t abide by your own standards. You come off as a pompous snot with a fragile ego.

  21. A_Lurker

    The issues are overcriminalization and the resulting overcharging. It is very easy for an honest citizen to inadvertantly commit a federal felony by something as simple as throwing away a dead battery or light bulb. Prof. Reynolds is primarily concerned about this and offered some ideas to start a discussion on this issue. If you wish to read some inane regulations read the EPA regulations. Violations of many of these regulations is a federal felony if it was paperwork filled out incorrectly.

  22. Hombre

    If you think Will’s “soapbox dwarfs Reynold’s,” you are overestimating the popularity of newspapers.

  23. Anthony E Parent Esq

    Yeah what’s your point? Insty just did just give you more traffic than you’ll ever see in your life. So dont you feel on obligation to at least try to attack his argument and not the man. Maybe you even have a good point in your head. Yu just haven’t shared it with us.

    I mean, as a defense attorney you do agree that there is a problem now that anyone could be convicted at any time for something, and the only thing that saves you if prosecutorial descretion, right? Do you disagree with this premise?

  24. BikerDad

    WARNING: *** The following is a generalization, and may or may not apply to the author above, SH Greenfield ***

    Why, pray tell, should the perspective of those who are enriched by the current system, be given greater weight than that of a theoretically objective observer?

    Perhaps Reynolds, knowing that 99% of judges today are trained AS lawyers, are, in fact, part of the guild, has little to no faith in the notion of judges who have spent their entire professional lives working and upholding a mechanistic system (aka “the law”) are going to start behaving in the fashion you enjoin. Why would they start throwing out charge stacking? Why would they start hammering fellow lawyers who make idiotic arguments? There is NO benefit to a judge to do that.

    You’re correct that the problem is overcriminalization. That’s only part of the problem though. Another part of the problem is the failure of the system to rein in overzealous prosecutors. We can both agree that bank robbery and attempted murder are wrong. Yet the notion that a defendant can be charged with 9 counts of attempted murder because he fired 9 rounds into the ceiling during his robbery is absurd, at least to me. Yet it happens all the time.

    Since judges clearly ARE allowing such foolishness, the law has to be changed. How to go about that? (feel free to link to prior posts on the subject)

    Remember, to many of us out here, “the law” looks like a racket, with us as “taxpayers” and defendants getting fleeced. Much of the racket aspect is perceived to be in procedural shenanigans. Procedure, i.e. the courts (judges & lawyers), not the statutes.

  25. John Taylor

    It is most fortunate that people of wisdom and sagacity like you boys prevent us members of the hoi polloi from being led astray.

  26. A Witness

    “Whereas Reynolds’ mantle of scholarly credibility was an asset for others whose interest came from a distance, ours was nuts and bolts, from living with the detritus of bad ideas in the trenches.”

    Oh, please. You’re in no trench. You’re in a courtroom. Next week I have to testify in a trial against a habitual sexual offender. I witnessed a crime he committed in 1999 and notified the cops; because if that, I’ve this court appearance hanging over my head since October of last year, as the criminal’s public defender uses every trick in the book to keep his precious pervert from facing justice. I’ve endured delay after delay after delay, not to mention the fact that stopping a crime has come back to haunt me fourteen years later. Where’s justice for people like me, who just try to do the right thing and then get screwed by you and your brave “trench fighters”? You don’t give a damn about justice, so stop with the histrionic, self-aggrandizing arias.

  27. ajwpip

    Perhaps name calling and swagger work better than reasoned argument with juries. A sort of arrogant smugness in the veracity of your cause without need to be bogged down by the actual facts or arguments must be extremely useful when defending people who actually did the crime.

    For the record, it doesn’t seem like you actually understood what Reynolds was discussing. I read both your and the other blog post you refer to as taking Reynolds’ argument apart. I think you both misunderstood what he is discussing.

    He is discussing what to do when everyone and anyone can be charged with a crime even if they had no guilty mind and when most people wouldn’t believe that their actions constituted criminal behavior. He is talking about prosecutors using administrative law and regulations to go after people for reasons that had nothing to do with the actual crime being charged. He isn’t talking about conventional criminality but people who have violated one of the hundreds of thousands of rather petty regulations that quite often have criminal penalties attached that our government churns out.

    While there is overlap in incentives and the dynamic in play for prosecutors, judges, cops and politicians – he isn’t directly addressing the issues of people who are charged with crimes like murder, theft, assault etc. who are bullied into an unjust plea bargain.

    It turns out that administrative law and constitutional law are pretty on point to the subject he is discussing – if we are supposed to care a ton about credentials as you argue.

    What would be more interesting is if you discuss the expansion of people guilty of petty white collar regulatory infractions who are innocent minded people that is occurring in larger and larger numbers being swept into the criminal justice system. Or, what impact solutions to this problem would have on the more typical defendant.

  28. The Hobbit

    I suppose if I were a District Attorney or public presecutor I’d be in favor of everything being a crime. It’s a great way to persecute your enemies and get free blowjobs from gorgeous women!

  29. James

    Minimum sentencing came about when the public lost faith in the ability of judges to fairly and accurately apply the law. People started to believe that judges substituted personal beliefs over the standards set by the legislature (IE California Chief Justice Rose Bird). In fairness, this was also a time when felony convictions where for violent crimes or theft of large sums of money.

    Now the power is abused by the prosecutors and someone can receive a felony conviction for being lost in snow storm.

  30. The Juice

    When a prosecutor spends more time talking about what a bad guy a defendant is as opposed to what the defendant supposedly actually did, then you know he’s got a really weak case against the defendant. You spend most of your time complaining about Reynolds himself more than his proposals, and the conclusion is the same.

    I was “in the trenches” for 5 years as a public defender, and I find your outrage over Reynolds’ piece just… weird, and counter-productive to the constant task of keeping prosecutors (and the legislators who enable them) in check. What defense attorney hasn’t fantasized about shutting down the system in protest over a multitude of Mickey Mouse charges or overcharged petty crimes by refusing to accept any plea deals for a month?

    I don’t agree with every one of his proposals either, but the direction he proposes going would, in the main, be better for both your clients and the system & society as a whole. What’s more, in neither this piece nor in your post you describe as “excoriating” Reynolds, do you ever actually explain your objections or outrage with any sort of coherence. You complain instead that he didn’t talk about the overcriminalization itself (even though he does all the time) or that he doesn’t take prosecutors and judges to task for under-enforcing due process protections (which again, he does all the time). (That’s the problem with “day trippers” though, as I once saw someone write.) Distillled, it seems like your primary beef is that his proposal fails to meet some phantom goal of Absolute Perfection – but hey, for someone who likes to complain a lot
    constant failure to meet impossible standards is a feature, not a bug.

    I have to wonder if your objection isn’t so much with his ideas on criminal law reform as it is with his politics in general. What a shame that it blinds you so.

  31. Oldflyer

    If the lawyers in the trenches had more credibility maybe the Professor would be inclined to consult with you.

    My brother-in-law is such a lawyer (former Judge), he covers about three courts and spends his days bargaining with Prosecutors, and collecting fees. I cannot remember when he was last in court.

    So, I wonder just which trench Attorneys the self-important author would have him consult?

    Are there no improvements needed in our system? “If you believe that, go pet your Unicorn”

  32. cubanbob

    As a practical matter I see the need for plea bargaining nevertheless a jury should be made aware of the plea offered by the prosecution. After all that is what the government really valued the case. Every time I have called for jury service in a criminal procedure I have asked that question to the judge, not just to be excused but in the event I was called to try to be as fair and impartial as I can be.

    As for Reynolds, he does have a point. How many people really know about every possible criminal act they could be charged with in the locality they reside or work in?

  33. Anon

    Jeez. Just a layperson here, who read the first two pages of your diatribe and found little of actual facts about what you think works- a lot of ad hominems and trash talk, about another lawyer, who has a huge audience- how smart was it for you to turn down the opportunity to educate by simply referring to the issues with education and explication.

    I will say that I have followed Instapundit since before 9/11/01 and found him to be always reasonable and open to being educated, and even retract mistakes promptly, once informed.

    You didnt do much for yourself here, Sid, but confirm the generally low opinion most laypersons have for lawyers in general, and criminal lawyers in particular.

  34. Barry

    You may be right. Who knows.

    This I do know. I was hoping to find something substantive in this. I was genuinely interested. Instead, I found quite a few paragraphs of juvenile name-calling.

    Again, you may be right. But that doesn’t immunize anyone from making himself out to be a little bitch. And you do a fine job of that, here.

  35. Barry

    FTR I don’t typically do irony by accident, so yes, it was intentional. Sometimes, though, someone really does come off as a little bitch.

  36. Dave

    I see lots and lots of invective here, and absolutely NO substance. This is a simple, naked ad hominem argument. If Reynolds’ ideas are so terrible, it shouldn’t be difficult to explain *why*. Instead… just shoe-throwing. I’m not impressed.

  37. Mitch

    I’m a first time visitor here, and not likely to come again. You don’t like Reynolds’ proposal. You don’t like Reynolds much, either. You think he got some things wrong, but don’t say what, and his ideas are bad, but don’t say what a good idea would look like. OK, then. I can hear this sort of stuff any morning at the donut shop from people without law degrees. Why did you bother?

  38. moneyrunner

    Sorry, after that diatribe no one is really interested in following your links. You are not that interesting.

  39. David

    All lawyers are corrupt. This includes prosecutors and judges (and Reynolds). They must beg to the elite forebears for admission to the bar and promise to obey on pain of exclusion. The bar is nothing more than the same type of sacred class protectionism that the supposed libertarian Reynolds rails about when it is cosmetologists, interior decorators, restaurants vs food wagons or taxi restrictions.

  40. Robert

    So, from reading your other posts, the way that you propose to fix the problem is to “let the judges handle it”.

    If that was the solution, don’t you think it would have been done by now?

  41. ajwpip

    I did and it is pretty thin gruel. I think you missed the focus of Reynolds’ argument and once again assumed that people were familiar with the arguments against his proposals. There really wasn’t much explanation as to why his proposals were unworkable. The other blog you linked to divided half his arguments into good and bad ideas and just dismissed the bad ones out of hand. You talk here and in the other posts as if you have refuted his arguments but it is largely just hand waiving. For instance, why is loser pays a bad idea? Has it been tried and failed? There was one argument against presented that as a public defender is paid by the state we already have a version of this but I think this isn’t what people are thinking about when they say loser pays. And, certainly it should come from the DA’s budget not out of already stretched think public defender budgets. First, it might allow for greater private practice criminsl defense work which is going to be of superior quality than public defenders can muster. Second, who says that they will pay at public defender rates. maybe the state has to pay typical private hourly billing rates. Third – perhaps some sort of damages for the defendant can be allocated. Your great argument against just this one concept (which is about the most substantive argument you made in the previous posts) is thin.

  42. SHG

    Heh. Not no one. Quite a few lawyers, lawprof and judges, actually. This isn’t a political blog, but a law blog, and for people who care about such things, there seems to be a pretty good amount of interest. That may be why Reynolds found it necessary to note his hurt feelings about what appeared here. Apparently, he found it significant enough to call upon his readers to salvage his dignity.

    And if you don’t find me interesting, that’s fine too.

  43. SHG

    There’s quite a bit more to read here if you want to know things I propose. But that would be an awful lot of work.

  44. Barry Kearns

    This particular page should definitely be preserved for posterity, and linked as “Exhibit A” for anyone who should ever attempt to assert that this blog is not accurately named.

    Well done.

  45. TallDave

    Have to agree with the other commenters, ad hominem backed up with “but I made lots of good arguments before! go read those!” is weaksauce. Frankly, your behavior is a little bizarre, given that you broadly agree on overcriminalization if not the remedies. Balko gave you good advice.

  46. BooMushroom

    Congratulations on the Instalanche. They’re hard to come by.

    If, however, you read all the comments here and decide to craft a thorough rebuttal of Glenn’s ideas, I’m sure you will receive another one. And I look forward to reading THAT post soon.

  47. Victor Erimita

    The other problem with day trippers, otherwise known as potential new readers, is that if they drop in and read only condescending snark, they tend to write you off as uninteresting.

  48. Brian

    Just looking at the loser pays provision. While I get your argument that that will cause defendants to perhaps underestimate the costs of persisting to trial which is bad in the micro, it also seems that Reynolds’ argument is based on the macro effect, namely that a criminal justice system that sweeps as broadly as ours does only works if most cases are plead out. If most defendants go to trial, even if it is a bad idea in the micro, the system grinds to a halt, forcing prosecutors, judges, legislatures, and tax payers to start making choices about what crimes they want to actually pursue.

    In this way the loser pays policy may be bad for the individual defendants (at least at first) but good for society as a whole. If that is the case I see the disconnect between your view, that of a trial lawyer with a specific client you are trying to get the best outcome for, and Reynolds, who is taking a broader good for society view.

  49. Carl Pham

    Well, if I wasn’t inclined to give Reynolds the benefit of the doubt on his academic credentials — which I wasn’t actually — this essay sure changed my mind. Any ideas that can provoke a long screed of juvenile snark and haughty dismissiveness, without adducing, summarizing or even naming a single substantive counterargument must be worth a look.

    I always maintain you can tell a lot about the nature of ideas by the enmity it arouses. Anything that arouses this kind of undisciplined gnashing of the teeth has got to be worth a closer look. Thanks, guys.

  50. Jim Majkowski

    Justice? What is this “justice?” The name of the federal agency charged with prosecutions? So long as courts are administered by humans there are going to be so-called “injustices.” Get used to it. While on the subject, a[n apocryphal] lawyer got word that his client had won a favorable verdict, and wired to him “justice has prevailed.” The client replied, “appeal immediately.”

  51. SHG

    This is a law blog, whose readership is primarily lawyers, lawprofs and judges engaged in criminal law. It’s written for people are educated and knowledgeable on the subject. You folks were never the intended or desired readers. Just flotsam and jetsam drifting through because Reynolds felt compelled to call upon his fans to defend his honor knowing that within the legal profession, his idea aren’t as well received as they are with his more politically concerned readers.

    You guys will all be gone tomorrow, and the same lawyers, lawprofs and judges will get nothing more than a chuckle from all this. And Reynolds will remain a darling within his readers, and less so within the lawyer community. I suspect Reynolds realizes it, which is why he felt the need to act on it. The Instapundit crowd, on the other hand, has merely provided transitory entertainment for the rest of us.

  52. SHG

    Every criminal case is micro, one defendant against the government. The incentive system for abuse, overreaching and misconduct already strongly favors the government. The idea is to make it better, not add another highly charged incentive for the government to engage in misconduct.

    For the past 20 years, criminal defense lawyers have had pipe dreams of defendants taking every case to trial, tying the system in knots and forcing it to grind to a halt. It’s been discussed internally for decades, and in our fantasies, would produce the result you suggest, forcing the government to become highly selective about what to criminalize and who to prosecute.

    In the meantime, legislatures have created new crimes at geometrically increasing rate to the applause of the public, and rather than increase the selectivity of crimes and prosecutions, it’s caused the system to devolve into an ever-increasingly effective machine to swiftly convict with pressures of ever-greater sentences, broader abuse, reduced due process, reduced oversight (if a judge has to go from a 100 person calendar to a 1000 person calendar, he has that much less time to spend on any particular case) and the largest prison population ever. 

    Doubt this? This is how Congress reacted to reduce the number of habeas petitions brought in federal courts. They had a volume problem, so they instituted a one year time frame, which cut the numbers and time it sucked out federal judges at the expense of any defendant who innocence was proven by DNA that he never knew existed until ten years later.

    The result won’t be a rational reduction, but a more efficient-running machine. Trials in a month from arrest. One week trials over in a day or less. 25 page opinions done in 1 page. And what do you tell the innocent defendants who get life (because that will still happen, just with increasing speed) that they have to take it for the team so a macro theory can play out that will make society pretend it’s doing a better job at the expense of their life?

    Theories that have superficial appeal when disconnected from practical impacts are pernicious. Real people get hurt. To those who don’t deal with the nuts and bolts of how people’s lives are destroyed, they can indulge in theories. But like the guys who drop bombs from 10,000 feet in the air, they never see the dead bodies on the ground.

  53. Leo

    SHG, you should summarize all of your hundreds of posts on the subject into one substantive post for the edification of the tl:dr crowd. Now. And for free.

  54. Brian

    Fair points all. On the other hand the few areas I have seen a real effort by legislatures to decriminalize have been driven by resource scarcity, including in Texas where the “tough on crime” lege (the the tax payers) balked at having to pay for more and more prisons, so they started moving to diversion problems and decriminalizing certain acts.

    Also, are you sure that SCOTUS wouldn’t step in, at least to a degree to stop your nightmare scenario on the basis that these quicky trials are not due process? If our judges are so bankrupt as to allow what amounts to drive through kangaroo courts I don’t see why expecting them to do their jobs better is any more realistic than loser pays.

  55. SHG

    SCOTUS hasn’t been kind in that regard. As Nino says, no innocent person has ever been wrongly convicted.

    As for resource scarcity, there are two approaches. One is to thoughtfully address overcriminalization and excessive sentencing, and the other is to rework procedure to maintain the appearance of fairness while eliminating the costliness of actual process. Experience is that the former doesn’t get anyone elected, while the latter is adored. Notably, see what’s happening in California with the requirement that they release over-capacity prisoners? Prisoners cost a fortune, but the idea that an elected official would willingly open the prison doors to let non-violent offenders out is so unpalatable to elected officials that they would rather be held in contempt than comply.

  56. Tim

    Don’t you go changin’ SHG. These locusts have already flown off to infest someone else’s corn field.

  57. SHG

    Swarms don’t bother me. Ignorance does, and I feel remiss in not doing what I can to cure it.

  58. SHG

    We’re actual criminal defense lawyers, the ones who do the work and live with the consequences that scholars like Reynolds watch from the safe distance of the Ivory Tower.

  59. Deoxy

    The “flotsam and jetsom” outnumber you hundreds to one, they vote, and they have a DISMAL opinion of your profession and the “justice” system.

    If you think the current system is really the best possible, by all means, defend it, but what you are doing is NOT a defense… in fact, it is, in the eyes of those not “in the club”, CONFIRMING how bad the system is, and how much it needs to be changed.

    Obviously, I’m ignorant jetsom (or am I flotsam? So hard to keep those straight…), so you can ignore me… but when these changes you think are so terrible are enacted by the ignorant, remember that you left them ignorant.

    Of course, the other possibility is that we actually DO know a lot of these things, and simply value things differently than you do. But no, we’re far too stupid, and you FAR too wise, educated, and knowledgeable, for that to be the case.

  60. Deoxy

    let me fix that for you:

    We’re actual criminal defense lawyers, the ones who do the work and live with the SOME OF consequences that scholars AND EVERYBODY ELSE like Reynolds watch from the POOL OF PEOPLE WHO BEAR THE REST OF THE CONSEQUENCES.

  61. Deoxy

    Hey look! Actual arguments and value judgements on actual information and experience instead of blind invective!

    Was that so hard? THIS is what has a chance of convincing people instead of driving them away!

  62. Brian

    I’m not as pessimistic as you regarding legislative solutions since we are seeing improvements (albeit small) in states like Texas and Georgia (noticeably states without a super powerful Corrections Officers union like CA). These programs seem to be palatable enough to those voters that nobody I know of in TX lost their seat for being soft on crime. It might help that in TX and GA these movements are often driven by libertarian minded tea party types who view decriminalization of non-violent offenses as both good for the budget and good for small government (which works for their districts), how far that ultimately gets the country as a whole is debatable.

  63. SHG

    Sadly, your conflation undermines your attempt at having a point. Reynolds’ remedies being awful doesn’t mean that anyone here things the current system is “really the best possible.” You engage in the logical fallacy of a false dichotomy, but to bother explaining logical fallacies is a waste of time. If you understood them, you wouldn’t use them.

    Yes, the “flotsam and jetsom” outnumber us hundreds to one. That’s why things are as screwed up as they are. Happy with yourself?

  64. SHG

    There are occasional small successes, when money gets tight enough. At the same time, both Texas and Georgia remain with huge systemic problems that are getting worse (Tulia, for example?). But when the economy improves and the money loosens, the influence of scarce revenue will fade and they’ll be back to private prisons at full capacity.

  65. SHG

    This place is full of them. But you don’t get spoon fed because you show up here with a bib on.

  66. cubanbob

    For what its worth it’s been my observation (in FL) that most state district judges are lawyers who can’t earn a living as trial lawyers. To expect those judges to clean things up and police things is wishful thinking.

  67. SHG

    It’s not that anyone expects judges (and not all are bad by any stretch) to suddenly become paragons of intelligence, fairness and virtue, but that they wear the robe, make the calls, and yet escape responsibility for what they do. Judges need to be held accountable for ascertaining that law is upheld, by them and in their courtrooms.

    Most problems appear systemic, but have a sui generis component, meaning they’re part of a relatively unique set of facts and circumstances that happen in a court at any given time. Broad, macrocosmic theory sounds nice from a distance, but what happens in the trenches is what ultimately determines whether the system works or gives at best the appearance of working.  The view looks very different close up.

  68. Dave In SoCal

    So you expect that visitors should go back and research the issue by looking at prior posts and essentially make your argument for you?

    That’s certainly much easier than taking the time and effort to draft a rebuttal to Reynolds that says “Here’s why he’s wrong” and providing the appropriate links and cites to prior posts to support your contention.

    Which is the usual method of disagreeing with someone’s position.

    But hey, you’re a “real” lawyer, out there “in the trenches”, so what do I know.

  69. SHG

    You are so right. Instead of writing for the readers here, who are well aware of the points and have read my many prior posts, I should have anticipated Reynolds getting all butthurt about the legal community not holding him in as high esteem as his political fans, and prepared each post mentioning him for the benefit of his readers who are clueless on the subject and need to be brought up to speed from total ignorance so that they get what they are entitled to. After all, it’s all about pleasing guys like you, right, because you are the center of the universe and whatever you demand is what I’m obliged to do.

    My bad.

  70. Bryan

    I was going to be a lawyer but then I discovered my parents were married. I haven’t used that one in 10 years.

  71. NN

    No, just writing clearly without so many assumptions that everyone is a longtime reader.

    It isn’t so much about pleasing insta-fans, but about getting a good debate to see the pros and cons of his proposals. I read Instapundit a lot – I wanted to see the other side and instead got snark. Perhaps you shouldn’t assume the worst of his “fans”?

    This is perhaps why I prefer Volokh for law topics. I may not be a lawyer but their tone on that blog is certainly more even. Folks definitely disagree so the debate is interesting. And while their academic credentials may seem less worthwhile than that of working lawyer to you, their professionalism seems superior if this is a fair representative of working lawyer blogs.

  72. SHG

    Had Reynolds not had his feelings hurt and blegged for his fans to salvage his dignity, you wouldn’t be here. As for the “professionalism,” you are free to spend your time at VC if that suits your tastes. See how easy that is?

  73. Robert

    This is not the first time that I’ve been to this site, I’ve read posts on here quite a few times over the past year or so. A lot I’ve agreed with, but in this case, I don’t.

  74. ajwpip

    What I think is odd is you think the problem is that there has been too much engagement and political pressure brought by the uninformed public. Setting aside the roots of political and legal legitimacy in a democratic republic – the idea that our legal system hasn’t successfully managed to make itself into an insulated elite who have set things up for their own convenience is what strikes me as naive. Politicians are able to pander with bad law and order initiatives or duck being called soft on crime because of a lack of engagement – not too much.

    There are a number of things that I think underpins your animus to Reynolds and is part of your general approach in that you 1) despise the idea that there should be any distinction between types of defendants. A small business owner under criminal penalty for obscure EPA regulatory infractions is the same as a petty thief to you. 2) you want the “professionals” to regulate the system and want hold themselves accountable but are unwilling to acknowledge that the public is the only group that actually can hold them accountable. 3) you seem to have the political desire for a large state that manages as much of life as possible – you have a rather patronizing vision of regular people as being in need of their betters or experts to save them. Understandable for a criminal defense lawyer but quite blinkered as a general matter. 4)generally you seem to be blind to incentives except insofar as politicians pandering to the public’s desires for law and order.

    A lot of your disagreement seems to boil down to you wanting a large government but one that serves the interests of you and your clients. In your vision the government should be large enough to help your clients perhaps before they get to you – and once they are facing criminal charges they should have more resources and a more equitable balance of power. It is thus predictable that your solution is to have judges just do a better job – thereby making prosecutors do a better job.

  75. ajwpip

    I don’t think he got his feelings hurt. If he was a shrinking violet I don’t think he’d successfully be a libertarian in academia, or a targetable figure on the right. I think he found your original post so pathetic that it was worth pointing and laughing.

  76. ajwpip

    I read your response to Balko re: loser pays. While you raise some good points about higher costs making prosecutorial malfeasance to avoid increased costs to losing the case it still seems like a better idea than the status quo. Minimally in terms of getting rid of mickey mouse charges and over charging on a single underlying incident. Nuisance charges from a prosecutor need to have a cost. Ir, over charging – if someone throws a bag of marbles at someone charging an assault for each and every marble needs to have a cost. Having an incentive to have more thought brought by prosecutors on charging seems like a good idea. It seems like it should be bale to be structured to streamline charge sheets and stop minor empty charges brought by prosecutors out of pique.

    Do you think that prosecutorial malfeasance is specific or general? That is – how much marginal activity do you think there is? It would surprise me if there were a lot of prosecutors who manage to keep their ethics in place currently who throw them over once the costs to making bad choices under the new regime come home to roost. I’d think the currently ethical prosecutors would look at the new rules and make better judgements under the new rules still within the ethical guidelines for their office. Unless we think that loser pays is so egregious that it will drive otherwise honest people into lying and cheating it seems like something worth trying in some state. The fact that people who currently lie and cheat will have increased reason doesn’t seem like a reason not to try and improve things.

    The current system sucks in many ways. You think increasing the costs to overly aggressive prosecution is going to back-fire. Lowering accountability and incentives seem like a bad idea.

    So, in none of the three posts that you have pointed out as addressing these issues have I seen a positive agenda offered.

  77. SHG

    Three down. 5587 to go. Let me know when you’re ready to chat. It wouldn’t hurt you any to take a look at Gid’s post, linked above, or this new one, as well.

    To give a frame of reference, neither all prosecutors nor all cops are liars, cheaters and criminals. They can, in fact, be pretty darned fine people at times. There are even judges who are pretty darn cool. And occasionally, even a defense lawyer is okay.  But losers pays is an awful, terrible idea, even though I would be a beneficiary of it.

  78. Helcules

    The wisest thing in the world is to cry out before you are hurt. It is no good to cry out after you are hurt. People talk about the impatience of the populace; but sound historians know that most tyrannies have been possible because men moved too late. It is often necessary to resist a tyranny before it exists. It is no answer to say, with a distant optimism, that the scheme is only in the air. A blow from a hatchet can only be parried while it is in the air.

    – G K Chesterton, ‘EUGENICS AND OTHER EVILS’

  79. Rollory

    But you aren’t. You’ve got a lot of people asking simple questions (and echoing what I was asking about, I now see). Is it really not possible to write a paragraph along the lines of “Reynolds says a, b, and c are good ideas. He is wrong, because a will result in x as discussed here [link1], b will result in y as discussed here [link2], and c will result in z as discussed here [link3]”? Is it not worth the 15 minutes it takes to write such a thing to point people in the right direction who might otherwise not find answers to the questions they are asking and decide that they aren’t finding them because those answers aren’t actually present?

    (Or maybe they are correct to come to that conclusion.)

    That’s what I was hoping to find when I started following links in this piece. Instead, as I said, I just found generalizations and nothing specific about what the arguments even are. You are NOT trying to convince or cure anybody, you’re trying to stay inside a bubble.

  80. SHG

    That was my point. The gap here is that when the post about Reynolds was written, it wasn’t written with the idea that he would post about his hurt, a swarm of people who are otherwise not engaged in criminal law would show up and expect that my post would be written for the purpose of explaining the issues to them.

    The readers here had no problem with it, because they both understand the issues and are familiar with my past posts. My post was written for their benefit, not yours. Then you show up and complain that it’s not what you want to see.

    Truth is, had I anticipated the post hoc events, I would have done it differently. But then, you will be gone as soon as you get this out of your system and I will be back to writing for lawyers who don’t need the spoon feeding and simplistic explanations that you seek.

  81. ajwpip

    Yes. the only sure product of a trial is a verdict. Still, we need some measure of legitimacy for our legal system if we want respect for the rule of law and all the societal goods that come with it. It is fun to wallow in cynicism and can make you feel smarter and better than other folks – but if we all do it we end up with a decadent culture that falls apart in really painful ways.

  82. ajwpip


    Now I won the argument and can call you an idiot. Those are the rules around here, right?

  83. SHG

    Okay, now you’ve entered the gibberish phase. I’ve let you post a ton of comments here, but you’ve gone over the line of tedium. All done now.

  84. BL1Y

    The “but you didn’t explain why his ideas are bad” response is just silly. If this were a debate on the floor of a legislature and you left it at “everyone knows you’re wrong, Glenn,” then they might have a point. That’s the time to get the argument out in its entirety. But that’s not the context here. Reynolds’s essay is ostensibly an academic article — it’s got footnotes, a university on the front page, and it’s been uploaded to SSRN.

    In an academic article it’s incumbent on the author to not only become familiar with the pre-existing opposing arguments, but to disclose them and address them. (A serious academic would go beyond the objections already raised by others and actually try to find novel objections to his argument, but let’s not set the bar that high.)

    Reynolds’s article shows no greater thought and effort than a student raising his hand in the middle of Crim Pro to ask “What if we adopted loser pays?” Were a student to do so, it would be entirely fair for the professor to ask the student what he thought about the implications of loser pays as discussed in that day’s assigned readings, and when the student reveals he had not done the readings (and thought his solution was a novel thought experiment), the professor would be well within his rights to tell the student that the assigned readings should be viewed as a prerequisite to participating in class discussion.

    And for those day trippers still wondering what’s so wrong about loser pays, do you think it will create more incentive to prosecute wealthy defendants or poor defendants? Do you think it will create more incentive to tackle simple offenses (battery, drug possession) or complex ones (tax fraud, racketeering)? Do you think the chance of the state losing a large sum of money will put more emphasis on plea bargains or less?

  85. Stephen

    I don’t read Instapundit and I didn’t know who Glenn Reynolds was but from these comments alone I can believe he’s incredibly popular.

  86. richard40

    This article complains that Reynolds piece was shallow, and did not fully address the implications and details of what he wrote. OK, so I would then expect a piece that DOES address Reynolds points one by one, and DOES fully address the implications in detail. Instead I see a very shallow insulting partisan hit piece, filled with generalizations, polemics, and petty insults (admitted to with the sentence “Of course, I was shunning and mocking”). The writer appears to be more of a partisan hack than a real lawyer to me (of course maybe many lawyers are really partisan hacks), in the same way Paul Krugman is more partisan hack than economics professor.

  87. SHG

    Reynolds was one of the earliest of adopters of blogging, with a conservative libertarian focus. Despite being a lawprof, his blogging largely consists of links to other people with brief comments attacking Democrats and insightful stuff like “heh.”  He is the poster boy for depth of thought on the internet.

    Surprisingly, I would have expected significantly greater numbers of his fans to come by here to express their displeasure. The total page views out of Instapundit (and secondary fan sites) is about 9000, which didn’t really make much of a dent. I had expected far more.

  88. SHG

    It’s never tiresome to read something that’s already been addressed numerous times before.

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