Author Archives: SHG

Fault Lines: It’s Beginning to Crawl!

For those of you who have spurned my small request for a little love by reading Fault Lines, we’ve been slowly adding things to make it better, broader, more worth your while.

Two new writers, Murray Newman and Jeff Gamso, have joined. Both bring their perspectives to criminal law and justice, Murray pulling on his prosecutorial experience and Jeff on his years of fighting to save the lives of the ugliest defendants from execution.

In addition, the Mimesis big guy, Lee Pacchia, has started a morning link wrap, picking up the loose ends of stories that you need to know about, even if they don’t end up in a stand-alone post.  Plus, Lee has a bunch of other buns in his oven to continue to grow Fault Lines into a walking, maybe even running, toddler. Continue reading

A Subconstitutional System

One of the pitfalls of experience is that you’ve seen things before.  Painful memories of the birth and growth of civil in rem forfeiture in the 1980s, when it had a cool slogan (“take the profit out of crime”) and was only used to whack drug dealers and the occasional mobster. It gave rise to a body of law, both statutory and case, that created a bizarre hybrid system to deprive people of property based on the wildest conjecture and surmise.

Imagine someone was to arrive from Pluto and suggest we create a tier of law that allowed the government to seize and keep the property of people who have been convicted of no crime, on the basis of probable cause because it’s presumed that anyone using currency is a criminal, and shift the burden onto the property owner to prove he’s not, with the expense and burden of a legal proceeding, not to take it but to get it back.

It seems ridiculous that such a system, a process that falls far below what our beloved platitudes about justice suggest would ever be permitted, could exist. Yet it does, to the deafening applause of the public, because we hate those drug dealers and mobsters, and they don’t deserve a fair system. Screw ’em. Continue reading

Because A New Law Will Change Everything

It may be the single stupidest idea ever proposed with the best of intentions, but it reflects a mindset that has killed more people than any other.  And it’s always done with the best of intentions.  At Huff Post, H.A. Goodman argues that we need new federal legislation “protecting black citizens from aggressive law enforcement tactics.”

His starting point isn’t to survey what laws currently exist. He seems unaware of the Fifth And Fourteenth Amendments to the Constitution, or 42 U.S.C. §1983.  In fact, he never mentions any law at all.  That would require a little research, perhaps even a little thought, but it would deflect from his litany of the bad things.

With the dash-cam video of Sandra Bland being forcibly removed out of her car, simply because she refused to put out a cigarette, some context is needed in regards to similar tragedies spanning from Rodney King and Trayvon Martin to Eric Garner and John Crawford. While police brutality affects people of all races and backgrounds in the U.S., it’s important to note that black citizens face a unique experience within America’s criminal justice system, just as they’ve faced a unique state of affairs for centuries in the United States.

He repeats the word “unique” throughout his post, though at no point does he make an effort to explain this peculiar word choice.  Perhaps it’s the “say it enough and maybe someone will believe you” school of rhetoric.  What he means to say, based upon his disjointed cherry picking of a dozen out of millions of examples, is that blacks suffer disproportionately.

If he thinks there is something unique about a police boot striking the face of a black man as opposed to a white man, he would be wrong.  If he thinks the likelihood of that boot striking black skin is significantly higher, that would be a different issue. But by calling it “unique,” he suggests that it compels the need for a law to stop it. After all, doesn’t every unique circumstance demand its own law?  People keep telling us that, which goes a long way in explaining why we’re a nation with tens of thousands of laws.

What would such a law look like? Goodman offers nothing. How can we have a law that applies only for the benefit of black people in light of our Constitution’s prohibition on laws that fail to provide equal protections? No clue.  These seem to be insurmountable hurdles, for awfully damn good reason, but big thinkers don’t wallow in details, like the impact of the judicially manufactured concept of qualified immunity on police misconduct.

Even assuming such a law could be crafted without running afoul of the Constitution, another question arises: Who would enforce such a law?  People have this peculiar notion of free-floating law, as if Congress pronouncing that “police shall no longer needlessly beat or kill unarmed black people” will magically cause it to happen.

Think of the cop on the side of the road, about to tase someone, when an invisible hand comes down from the heavens and points his Taser elsewhere, a stentorian voice announcing, “No, Officer Smith, thou shalt not tase this black person.”

Great law, right?  Not particularly realistic, though.

But every time something bad happens to a black person (or any person, but more often a black person), people like Goodman immediately resort to the god-like magic of government:

When there are “no federal regulations governing the safety of prisoners in transport,” no federal regulations governing the streams of revenue that cities and municipalities derive from targeting black citizens, and no federal regulations ensuring an officer can’t pull a black woman from her car simply for smoking a cigarette, then America needs Congress to address the crisis faced by African-Americans.

Well, in fact there are, but not quite in the manner some would like at the instant bad things happen.  There are plenty of laws governing the relationship between law enforcement and citizens, but they tend to be overarching laws, like “you can’t shoot people just because they annoy you.”  No, there isn’t a law specific to smoking cigarettes in front of a cop. Or chewing gum. Or picking your nose. Or any of the millions of other activities humans engage in that could potentially be a problem.

Should we have laws governing every minute aspect of human behavior or interaction? You see, if we had, and some peabrain would point to the “you’re allowed to puff when a cop stops you for a traffic infraction” law, then it would suddenly be clear.  Without that law, who knows?

Or instead of grasping at ridiculously idiotic ideas, using inapt words, and trying desperately to come up with a solution that fits within the paradigm of progressive magic of passing a law about everything, we could turn to those that currently exist and demand that our police honor and respect the rights of others, even blacks, and limitations on their authority and use of force.

The laws are there. They have been for a long time, but they’ve been ignored, diminished, with society’s blessing.  Even Goodman can’t avoid his personal gertruding:

While I’m a huge supporter of police (I have several friends who are LAPD officers) and believe that most law enforcement officials are honorable men and women risking their lives on a daily basis, America must come to the realization that black citizens are being brutalized in a unique manner. 

Are your friends one dimensional cartoon characters, all good or all bad?  If this “unique” problem is so pervasive, yet most cops are “honorable” and risk their lives on a daily basis (papercuts are not life-threatening, by the way), who is doing all this unique harm to blacks, and what are all your honorable friends doing while that one bad apple is shoving broomsticks up their ass?

No doubt they could explain why good cops need qualified immunity to do their job and save people from harm, even if it means a few unique black heads have to roll.

There are problems. Very real, very harmful problems, that disproportionately impact blacks.  The reason they persist in apparent uniqueness is that clueless buffoons fail to learn enough about what these problems are, how they happen, why the laws that should prevent them don’t work, and how a peabrain’s call for ever more laws compounds the problems rather than fixes them.

This ain’t magic. This ain’t feelz. This ain’t crying and hand-wringing. This is about where conflicting rights and authority clash, and deciding which prevails.  Micromanaging people’s farts won’t save blacks from their “unique” experience at the end of a cop’s baton, but demanding that the police respect people’s rights may.  Even then, people will fall short, whether it’s the cop or the citizen. Because they’re people.

You won’t be able to control every tiny bit of society to create your perfect world, because people are messy, confused and confusing, prone to error and inadequate to the task of perfection.  No new law will change this. Ever. A new federal law to protect black people from aggressive police tactics is idiotic. We have that law. It’s called the Constitution. Use it.

About That Disease That Needed Curin’

Yeah, well, unfortunately the $222,172 we were going to give to cure [name your fav deblilitating disease] was diverted to another, more important, cause, according the National Institutes of Health:

The National Institutes of Health (NIH) is spending over $200,000 to study how men drinking alcohol look at women.

In an effort to limit “male-initiated sexual aggression toward female acquaintances,” researchers at the University of Iowa will analyze the actual eye movements of young men when they are drunk and sober.

This is cutting edge research, as previous efforts at research were cut short when the entire research budget was spent on buying beer. I mean, it’s Iowa, for crying out loud. Aside from meth, what else is there to do? Continue reading

Boyz To Men (Update)

“We’re focusing on campus sexual assault, but we haven’t looked at the younger group.”

— Jacquelyn W. White, professor emerita of psychology at the University of North Carolina at Greensboro

The United States Senate has pulled a fast one under our noses. Claire McKaskill (D-Mo) proposed a new law, curiously titled the Teach Safe Relationships Act of 2015, which would reallocate educational funds toward teaching K-12 students “safe relationship behavior” because they can’t teach it all in freshman orientation.

Earlier this month, the Teach Safe Relationships Act was rolled into the Senate’s larger overhaul of a No Child Left Behind Act rewrite called the Every Child Achieves Act. That legislation, a bipartisan effort to update the major education law that expired in 2007, passed the Senate overwhelmingly.

In years past, the “disputed” question was whether public school students should be taught about sex at all. With this new variation, federal money will push schools to teach males how to alter their male-ish behaviors to avoid the “epidemic” of rape. Continue reading

The Mentee Shortage

People ask me for advice. A lot. Sometimes, it’s new lawyers seeking career advice. Other times, it’s lawyers looking for some advice on how to handle a case or a client.  Still other times, it’s someone asking about advice on writing.  But they reach out to me, and I try to help.  It’s not that I’m just a swell guy; almost all lawyers I know are willing, if not happy, to help others.

But it’s not the same as it used to be.  Nobody wants to be told that the reason they’re having a problem is that they suck at whatever it is they’re doing, and should give serious thought to applying for an assistant manager’s job at Dairy Queen.  Even though that thought has passed through my mind more than once. Still, I try to be constructive under the assumption they’re not going to quit the law, so it would be best to help them not to be totally ruinous to other people’s lives.

Back then, advice such as work harder, stop trying to find a short cut, think harder, and suck it up was taken with equanimity, if not appreciation.  You see, mentoring sometimes means that you’re told “no, you’re not doing a good job. You need to do better.”

No more. It’s not just that mentees want to argue the point. They always did that, at least to some extent.  It’s that they now make it clear that they want an answer, even when the answer is that there is no answer, and they want an answer that doesn’t involve them breaking a sweat. Continue reading

The “Staggering Numbers” and Anecdotes

In an op-ed in the Washington Post, Michigan lawprof Samuel Gross writes about the “staggering number of wrongful convictions,”* an ironic title given that the one thing the op-ed can’t, and doesn’t, do is tell the reader what that “staggering number” might be. But Gross opens his op-ed with an anecdote, this one about the wrongful conviction of Rafael Suarez.

It’s a bad story, and the consequences were devastating to Suarez, but this is one guy. Why structure an argument about the “staggering number of wrongful convictions” around one guy?  The requisite anecdote has become the staple of argumentation, a facile appeal to emotion, to empathy.

Its purpose is to grab us by the throat and challenge us to not care about the nightmare imposed on this poor, undeserving person by whatever evil it is under discussion.  It’s the tyranny of the anecdote.  How can you not care? How can you not see the wrong and want to right it? How can you not want to help?

What has happened to us that we are so child-like in our understanding of right and wrong that this has become the method of choice in persuasion?  Gross, at the end of his op-ed, makes a persuasive case for the systemic mechanism in misdemeanor prosecutions. Nothing new or particularly revealing, but a solid argument: Continue reading

Two Courtrooms At Once

At Fault Lines, Cristian Farias makes a persuasive case for Attorney General Loretta Lynch’s jumping on the prosecution of Dylann Roof for the slaughter at the Emanuel A.M.E. Church in Charleston.  The distinguishing feature is that the feds, usually waiting in the wings for the outcome of state prosecution, were in from the start.

What’s striking about DOJ’s involvement this time is its seeming impatience. If in the Martin and Brown cases federal prosecutors worked quietly and did not interfere with the state cases as they ran their course, here they came out with guns blazing. And reasonably, one could say that Lynch’s move to impanel a grand jury and seek charges a mere two weeks after South Carolina did the same is an affront to a state’s prerogative to seek justice in its own terms. Federalism run amok.

And indeed, Jonathan Blanks at Cato made that exact point:

The Department of Justice should be more judicious with its funds and resources. The opportunity costs of a duplicative prosecution takes resources away from crimes that fall more appropriately in the federal purview, such as interstate criminal enterprises and government corruption. Today’s indictment is federal meddling in a case the state already has under control.

Continue reading

Mythbusters of the Federal Persuasion (Update)

Via Doug Berman at Sentencing Law and Policy, the National Association of Assistant US Attorneys (NAAUSA) has issued a “white paper” to bust the “most dangerous myths” of sentencing reform.

Myth One: Our prison population is exploding because of the incarceration of
recreational drug users or low-level drug offenders.
Fact: Our federal prison population is not exploding, and those who are serving prison sentences for drug crimes are incarcerated because of drug trafficking crimes, not recreational drug use.

Myth Two: The federal prison population is a product of mandatory minimum
sentences for drug traffickers.
Fact: The majority of drug traffickers sentenced in federal court are not being
sentenced pursuant to mandatory minimum sentences. Continue reading

No Butts For Sandra Bland

Despite my extreme reluctance to delve into what I consider a sideshow to a very serious case, too much effort has been put into parsing it in extreme detail for me to ignore it.  The question of real importance is how and why Sandra Bland was found dead in a Waller County jail three days after a crap traffic stop, and instead, all eyes are focused on the stop instead of the death, which has been essentially forgotten.

Was it the cigarette?

From the transcript of the video of the stop, this is what happened:

Encinia: You mind putting out your cigarette, please? If you don’t mind?
Bland: I’m in my car, why do I have to put out my cigarette?
Encinia: Well you can step on out now.
Bland: I don’t have to step out of my car.
Encinia: Step out of the car.
Bland: Why am I …
Encinia: Step out of the car!

Continue reading

Just Say No, Forensics Edition

Jeffrey Gamso, in his inimitable way of tying loose ends together, went from 9th Circuit Judge Alex Kozinksi to F.W. Murnau’s missing head to the decision in People v. Collins.  And if that doesn’t give you whiplash, reading Brooklyn Supreme Court Justice Mark Dwyer’s opinion will make your head spin.

Justice Dwyer begins with something that ought to be obvious to all, but few judges would openly admit:

This court recognizes that judges are, far and away, not the people best qualified to explain science. That observation is doubly applicable when novel scientific techniques are at issue—and that of course is precisely what Frye analysis involves. But courts are bound to do their best.

Continue reading

Skin In The Game

David Graham noted in the Atlantic that there are almost no black district attorneys.  Aside from what that may say about black lawyers, it’s got systemic problems as well:

According to a new survey, an overwhelming portion of the elected officials ultimately responsible for charging criminals, deciding what sentences to seek, and determining whether to allow them to strike plea bargains are white men.

There’s also little question that the U.S. justice system as it exists perpetuates and encourages huge racial gaps, leading to much higher incarceration rates for black men and serious social disparities in housing, education, employment, and beyond.

The inability of prosecutors to appreciate the world and life of black defendants has been a perpetual problem; they just can’t seem to grasp why poor black guys don’t see the world through Yale-colored glasses. This is not only a real problem, but really a problem. As smart as some of these prosecutors may be, they’re so lacking in life experience that they do not appreciate that everyone didn’t summer in Nantucket. I kid you not. Continue reading