Author Archives: SHG

Headless Nations: The Next Wave Of Drug Violence

It’s really quite remarkable that Slate’s Leon Neyfakh gets it, because he wasn’t around the last time it happened. But he gets it.

The first wave of convictions stemming from Operation Headache came in March 1996. But the biggest, most symbolically meaningful blow to the Gangster Disciples was delivered in May 1997, when Hoover was convicted of 42 counts of conspiracy to distribute drugs, received a sentence of six life terms, and was transferred to a supermax prison in Colorado, where his cell was located several stories underground and his ability to communicate with the remnants of his gang were severely constrained. Soon, the GDs in Chicago had been all but neutralized, and the authorities shifted their attention to decapitating the city’s other major drug organizations, the Black Disciples and the Vice Lords.

To the uninitiated, this would appear to be a huge success in the eradication of drugs and violence, a great success for law enforcement. And, indeed, it was. They took down an enormous enterprise by cutting off its head. So what’s the problem?

“Every time they hit these large street gangs, they’d focus on the leadership,” said Lance Williams, an associate professor at Northeastern Illinois University, and the co-author of a book about the rise and fall of the Black P Stone Nation, a gang that was eradicated in the 1980s. “It’s like cutting the head off a snake—you leave the body in disarray and everyone begins to scramble for control over these small little areas. And that’s where you get a lot of the violence, because the order is no longer there.” Williams added: “When you lose the leadership, it turns into chaos… What we’re dealing with now is basically the fallout of gang disorganization.”

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Housekeeping: It’s (not) In The Mail

No, you weren’t unsubscribed to your daily dose of SJ. The emails aren’t going out. Neither are the automatic twits when posts are published. I’m not often frustrated, but I am now. I apologize.

SJ is published on a platform called WordPress, which is where it ended up after my original platform from GoDaddy was “end of lifed.” For the uninitiated, there’s a dirty little secret about tech that the happy faces don’t talk about. The things upon which you rely, and for which you pay, magically disappear when the tech company that you’ve been paying either goes belly up, decides that they aren’t making enough money off a product to keep it supported or comes up with the next newest, coolest thing ever, so that they trash the old one that people were very happy using and create a new one that nobody wants and sucks.

Anywho, WordPress uses something called “plugins” to allow users to pick what the blog should do. One of the plugins used at SJ was WPTouch, which morphs the blog you see on your computer screen into the blog you see on your smartphone. The two are not the same, and while I don’t care for the smartphone version, some of you insist on reading SJ on your tiny screen, so I added WPTouch because I’m a swell guy. Continue reading

On Climate Change, The Answer Is Obvious

Ian Millheiser dedicated a post at ThinkProgress to a single quip made during six hours of oral argument in West Virginia v. EPA, not to confront the substance of the issue at hand, but to raise a collateral attack on the institution that will make an en banc ruling. It came from the mouth of Judge Thomas Griffith on the D.C. Circuit, and it was described as “A powerful judge’s subtle, chilling attack on a free press.”

What was Judge Griffith’s “chilling attack on the free press”? That it “was on NPR this morning. It’s big news!”  Since punctuation doesn’t happen when someone says something aloud, Millheiser added the exclamation mark at the end.

The remark was uttered by Judge Thomas Griffith, a George W. Bush appointee to the United States Court of Appeals for the District of Columbia Circuit. And it reveals how a newly ascendant Supreme Court doctrine could have a chilling effect on journalists and other commentators who write about policy.

Beyond noting that Griffith was a Bush appointee, a slur of the worst order at ThinkProgress, Millheiser’s point was that if the media’s reporting could give rise to a ruling against his beliefs, because the doctrine at issue is Chevron deference, and if it is a matter of “economic and political significance,” then the court isn’t required to defer to the Environmental Protection Agency’s decision on the future of the planet.   Continue reading

Once An Expert

It was late afternoon during a growhouse trial when the prosecution called an “expert” to the stand. The expert was a federal agent, whose testimony related to growing marijuana. He was a virgin, never before having been qualified to testify as an expert. It was my great fortune that he was called at the end of the day.

The agent’s foremost claim to expertise was that he was a graduate of Cornell University’s School of Agriculture, and he testified that his studies there enabled him to testify with sufficient authority about weed.  As it happened, I was good friends with a professor emeritus of the Ag School, one of the most highly regarded horticulturalists in the nation. So after trial broke for the day,* I gave him a ring and learned that there was no course, no class, at Cornell that dealt with pot. The Ag School was not in the business of teaching its students to prepare for the coming marijuana revolution. This may have changed since then.

As the agent had never been qualified as a weed expert before, he was ripe for attack. I voir dired the witness as to his qualifications, getting him to admit that he studied nothing about pot in any Ag School course (objection, sustained, as to “You learned nothing about marijuana in college?”), thus negating any claim of academic expertise in the demon weed. Of course, the judge subsequently admitted his testimony as an expert based upon his “training and experience” as a federal agent.  Continue reading

Under Pressure: A Failed Campaign’s Emails Of Tears

Coercion is a curious concept in Providence, Rhode Island.  It involves the use of force or threats to overcome another person’s free will. Its definition relies on the nature of force or threats exerted, as any other definition would make it contingent on the fragility of the person allegedly coerced.

For example, “she looked at me funny” isn’t coercive, even though someone might engage in conduct they preferred not to perform to avoid the “funny” gaze. Or in Providence, “he made me” is sufficient, without regard to any force or threats. Why? Because Providence is where Brown University is situated, and Brown uses its own definition of coercion.

The issue came before District Court Chief Judge William E. Smith when John Doe sued Brown for breach of contract after he was held to have coerced another student to engage in sexual conduct.*  The specific issue before the court was whether Brown violated its policy in its adjudication by finding that he coerced the student when the policy, at the time of the conduct, made no mention of coercion. Instead, Brown used a subsequent policy which did. Judge Smith held that Brown was obliged to use the policy in effect at the time.

While the case was pending, students at Brown decided that it was a good idea to make their feelings about the case known to Judge Smith, and began a campaign to deluge the court with emails.   Continue reading

When It’s Personal, The Virtues Of Due Process Become Clear

What happened in the Dean’s Office at Boalt Hall, the University of California, Berkeley, law school? Enough to get the former dean, Sujit Choudhry, shit-canned as Dean and permanently tarred as a sexual harasser, even though it didn’t go as far as to strip him of tenure and burn a scarlet letter into his forehead. Choudhry is taking his case to federal court, and his friend, Rick Hills, has discovered the virtue of due process.

Five years ago, I criticized my friend Peter Berkowitz for insisting in a Wall Street Journal op-ed that criminal procedures – in particular, the “beyond-a-reasonable-doubt” (BARD) standard — be imported wholesale into university hearings where accusations of sexual misconduct are being adjudicated. Without taking any position on the right standard of proof, I argued that one could not automatically assume that the BARD standard was appropriate for a university’s administrative hearing where the stakes are not personal liberty but rather suspension or expulsion.

The justification for criminal trial procedures favoring the accused is that the social and moral costs of convicting one innocent person vastly outweighs the costs of letting a lot of guilty people go free (the exact ratio of false positives to false negatives being a conundrum in which 1L criminal law professors delight*). The appropriate ratio of false negatives to false positives in the university setting is, to my mind, a closer call. Because the procedural norms for these university adjudications are both hotly contested and reasonably disputed, I urged that the U.S. Department of Education not prematurely centralize them with OCR guidance documents but instead allow universities to experiment with different procedures. (Paragraph broken up because it was too damn long.)

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“Manterrupting” Or Equality: Pick One

During the presidential debate, Donald Trump interrupted Hillary Clinton. A lot. It may be more accurate to call it interjecting, but that’s neither here nor there. What it was not was Trump allowing Clinton to speak without his speaking.  To my ears, it was rude.

Perhaps it’s my experience from the courtroom, from oral argument, but each side gets its time to speak unmolested by the other. When it’s done, then it’s the other side’s opportunity to respond. It’s not merely a matter of courtesy, or an unholy love of order, but effectiveness. Interruptions are negative distractions, reflecting poorly on the person doing the interrupting. Do they lack impulse control? Can they not control themselves long enough to let someone else speak? Are they so narcissistic that other people’s speech is inconsequential in comparison to their need to speak, whenever they feel the urge? YMMV, but that’s mine.

But in satisfaction of its obsessive/compulsive needs, the New York Times published an op-ed explaining that this wasn’t merely interruption, but “manterruption.” Jessica Bennett employs the word she coined:

At the 26-minute mark, the website Vox posted a graphic showing that Mr. Trump had interrupted Mrs. Clinton a whopping 25 times. Shortly thereafter, The Huffington Post proclaimed, “This is what manterrupting looks like.”

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Sex Offenders International

It would have taken enormous courage to say no because it was a shockingly awful idea that played well to the simplistic and ignorant.  President Obama lacked that courage. Perhaps he’s too busy with his lame duck session. Perhaps he feared that a courageous move would have affected the chances of the Democratic candidate for president. Perhaps his talk of reform was just talk, and he’s every bit as good with bad criminal law policy as everyone else.

No matter. He signed it. It’s now law.

After months of hype about the historic bipartisan consensus that we must make the American criminal justice system less harsh, President Obama finally signed a justice reform bill into law Monday. There’s only one problem: Instead of making the justice system more fair and less punitive, the new law will make it more vindictive and petty. Specifically, it will require people who have been convicted of sex crimes against minors to carry special passports in which their status as registered sex offenders will be marked with conspicuous identifying marks.

This is the stuff that’s easy to sell, as it plays into people’s “common sense” fears. Child molesters? Screw them. There is no one more despised than a child molester. There is no harm to be done to them that’s too harsh.  And if it was your child, you would . . . but that’s not the point at all, of course. Continue reading

The Social Justice Inquisition Murdered Harambe (Update)

Some memes make me chuckle. Most remind me that I’m not twelve anymore. The “dicks out for Harambe” meme is squarely in the second category. I fail to find it funny. Not even a little bit. It’s not that I find it offensive, but just, well, stupid. Clearly, whatever it is that turned the phrase into a meme flew over my head. That happens when you’re not twelve.

But then, so too did the outrage that struck University of Massachusetts at Amherst.

Poor Harambe. The gorilla murdered at the Cincinnati Zoo after a child wandered into its enclosure has now essentially suffered a second, equally odious death: this time at the hands of humorless University of Massachusetts residential advisors who told students to stop making Harambe jokes.

These jokes “are not only derogatory but also micro-aggressions,” two RAs wrote in a letter to the UMass-Amherst students who live on their floor. Failure to desist could even be a violation of Title IX, they suggested.

At least there appeared to be a distant, if disconnected, reason for this. Continue reading

The Thin Line Between De-Escalation And Death

The video was recorded by private investigator Ken Sheppard, who was doing his job.

It was just a routine workers’ compensation fraud case for Ken Sheppard.  Show up for a spot check, do some surveillance of the subject and keep it pushing.  But on March 3, 2014, it was anything but routine for the renowned private investigator known for busting reality TV series “Bridezillas” star Anita Maxwell for insurance fraud.

On location in Montrose, California, a city with just under 20,000 residents and less than one percent of them African-American, Mr. Sheppard was conducting regular surveillance of a subject while parked in his black Chevy Tahoe.

Black guy in a car, when LA County Sheriff’s Deputy Tai Plunkett came upon him. Plunkett didn’t know who he was or why he was there. Ignorance was a good enough reason. Continue reading

Dead Men Tell No Tales

For a bright shining moment, it was on everyone’s radar. A nation watched in horror as young black men lay dead on the street. And then it was gone, hijacked by shrieking children who were not only still alive, but amongst the most privileged in America. I try not to express emotional appeals, but this one was hard to take.  No, your hurt feelings about not being made to feel sufficiently loved are not comparable to a guy with a bullet in his heart.

Then there were three more dead black men in a week, and everyone refocused.

And it’s about to slide back into the cesspool of vagaries.

Another set of black men killed by the police — one in Tulsa, Okla., another in Charlotte, N.C.

Curious that Tyre King’s killing failed to make the cut, but this 13-year-old is dead too. Continue reading

Chased Away

The New York Times endorsed Hillary Clinton for president, because she doesn’t suck as bad as Trump of “her intellect, experience and courage.”  Lionel Shriver explains why it falls on deaf ears.*

Midway through my opening address for the Brisbane Writers Festival earlier this month, Yassmin Abdel-Magied, a Sudanese-born Australian engineer and 25-year-old memoirist, walked out. Her indignant comments about the event might have sunk into obscurity, along with my speech, had they not been republished by The Guardian. Twenty minutes in, this audience member apparently turned to her mother: “ ‘Mama, I can’t sit here,’ I said, the corners of my mouth dragging downwards. ‘I cannot legitimize this.’ ”

Stephanie West Allen had sent me a link to the Guardian story at the time, She didn’t like Shriver’s book? That’s fine. She didn’t agree with what Shriver had to say? That’s fine too. But she could not “legitimize this”? What the hell was that supposed to mean?

I defended fiction as a vital vehicle for empathy. If we have permission to write only about our own personal experience, there is no fiction, but only memoir. Honestly, my thesis seemed so self-evident that I’d worried the speech would be bland.

Nope — not in the topsy-turvy universe of identity politics.

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