Category Archives: Uncategorized

Why Congress Can’t Spell Parsimony

Until the day courts realized that the Supreme Court meant what it said in Booker, and that the guidelines really, really weren’t mandatory anymore, nobody gave a damn about 18 U.S.C. §3553(a). It was an orphan statute, rendered superfluous by Mistretta, and the annual tweaks by the unelected commissioners who magically caused huge sentencing swings for reasons that evaded empirical explanation. But that was then, this is now.

In the post-Booker world, there is nothing more critical to sentencing than 3553(a). Until you read it.  Section 3553(a) is best understood as two separate parts, the parsimony clause and the considerations.  First is a clear, and critical statement:

The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection.

The key phrase is “not greater than necessary,” the admonition that no judge is empowered to imprison a person for a day, a minute, longer than necessary.  The problem is, obviously, necessary to do what?  And so we come to the second part, the considerations: Continue reading

If You Can’t Fubar, Then Why Bother?

For those of you who don’t read the comments, you’re missing something quite remarkable.  An anon commenter here, who goes by the handle Fubar, has taken to offering comments that make my posts pale in comparison:

Excerpted from a manuscript initially hailed as a lost fifth book of Pope’s Dunciad, but quickly proved a wretchedly bad forgery, by a document examiner who could count.

Computer-armed, angry and witless,
Some jerk sent vile taunts to a witness.
“Slice your wrists!” is a threat?
Sayeth Kingkade, “You bet!”
Casting doubt on his logical fitness.

FIRE published the court-released docs.
(They never were locked in Fort Knox.)
“The vile taunt’s recipient
Was a witness percipient.
Lock ‘em up again!” bleat HuffPo’s flocks:

“Due process must always accrue
To me and mine, less so to you.
Tell the world that I’m talking,
I’ll be victim of stalking.
Common sense tells us that just won’t do.”

So goes forth this tale of stupidity,
And reasoning of dubious validity.
Do red faces enraged
Show their brains are engaged?
Or cerebral post-mortem lividity?

Continue reading

The Gray Lady Gets High

In one sense, it may not come as a huge shock that the New York Times editorial board has decided to go public in support of ending the federal prohibition on marijuana.  After all, its liberal credentials are renown, and isn’t legalizing pot a liberal cause célèbre? But it’s hardly that simple.

There are no perfect answers to people’s legitimate concerns about marijuana use. But neither are there such answers about tobacco or alcohol, and we believe that on every level — health effects, the impact on society and law-and-order issues — the balance falls squarely on the side of national legalization. That will put decisions on whether to allow recreational or medicinal production and use where it belongs — at the state level.

We considered whether it would be best for Washington to hold back while the states continued experimenting with legalizing medicinal uses of marijuana, reducing penalties, or even simply legalizing all use. Nearly three-quarters of the states have done one of these.

But that would leave their citizens vulnerable to the whims of whoever happens to be in the White House and chooses to enforce or not enforce the federal law.

Continue reading

The Silence of the Witnesses

The role played by sociology professor Danielle Dirks, in counseling the purported Occidental College victim to cry rape despite having engaged in consensual sex, became widely known from the publishing of publicly available court papers.  Her name didn’t hit the big time because she was an innocent victim to a terrible crime, but because of what she said:

The student, identified only as “John Doe,” had sex with his accuser on September 8th, 2013, according to details of the case obtained by the Foundation for Individual Rights in Education. Both Doe and his accuser had been drinking. By several accounts, the sex was consensual. The accuser sent Doe a text message beforehand asking him if he had a condom. She also texted a friend and clearly announced her intention to have sex with Doe.

After that night, the accuser spoke with several Occidental employees, including Danielle Dirks, an assistant professor of sociology. Dirks told the accuser that Doe “fit the profile of other rapists on campus in that he had a high GPA in high school, was his class valedictorian, was on [a sports team], and was ‘from a good family.’”

A week later, the accuser filed a sexual assault report against Doe.

At Huffington Post, Tyler Kingkade attacks FIRE, the Foundation for Individual Rights in Education, for its discussion of the Oxy case, including Dirks’ role in influencing the accuser to cry post-hoc rape.  Continue reading

Too Great Expectations

The Vera Institute of Justice study “revealed” that “the prosecutorial practices of the Manhattan district attorney’s office, one of the biggest and busiest in the country” weren’t quite as colorblind as most New Yorkers might have hoped.

The two-year study, conducted by the Vera Institute of Justice at the request of Cyrus Vance Jr., who took over as district attorney in 2010, found a pattern of racial disparities at multiple stages of the criminal justice process.

Even after controlling for factors like the seriousness of the charges and a defendant’s criminal history, blacks and Latinos were more likely than whites to be denied bail and more likely to be offered a harsher plea deal involving time behind bars. Blacks were also slightly more likely to be sentenced to prison than whites. When the charge was a misdemeanor drug offense, black defendants were 27 percent more likely than whites to get a plea offer that included incarceration.

This surprised some. Others, not so much. Continue reading

The Police Get Their Man (and no one was harmed)

In light of the inane efforts of the clueless (and some police) to rationalize the killing of Eric Garner, suggesting that there is no possibility of the police doing their job with a “noncompliant” person that doesn’t end in harm, Kevin Underhill at Lowering The Bar presents an alternative.

According to KTVB in Boise, the incident began when deputies suggested to a 21-year-old man that he might have violated the terms of his probation. The report says the man was on probation for stalking, and it appears that there had been an encounter between the man and the stalkee. He claimed that she, not he, had violated the no-contact order, but the deputies “discovered that was not true.” It’s not clear what evidence they had to support this, but either it was enough to convince the man he was busted or he suddenly remembered something very urgent he had to do in the direction police weren’t.

Flight is almost invariably cause to pull out a weapon, whether lethal or mostly lethal, rather than let the perp get away.  But not here.

This led to a 15-minute chase through suburban yards, onto a golf course, and then into the aforementioned pond. (You can call it a “water hazard” if you want to, but I’m sticking with “pond.”) And that led to the standoff, such as it was.

Continue reading

Ignorance Trumps The Particularity Requirement

It’s good to have no clue.  Information is a constraint, a limitation.  This sounds counterintuitive, but that’s only because you’ve never been asked to sign a search warrant for everything in the world ever.  That’s when ignorance becomes magic.

From Tim Cushing at Techdirt:

Judges willing to make the government fine tune warrant requests are still a very small minority, however. The more common approach is exemplified by Judge Gabriel Gorenstein of the Southern District of New York.

A New York judge defended a controversial order that gave the government access to all content of the Gmail account of a target in a money laundering investigation, holding that courts have long recognized the practical need for law enforcement to seize documents if only to determine whether they fall within the warrant.

Continue reading

Because Judge Kane Did His Job

While some may think this number pedestrian because they see it as an appropriate amount, a $3.25 million settlement for a jail beating is, to put it mildly, spectacular.  This is a huge amount, a monstrously huge settlement for the victim, Jamal Hunter, not just because of his injuries, but because of his status.  Jamal Hunter was a prisoner.

This settlement didn’t happen because the nice folks in Denver are a deeply caring, enormously reasonable, bunch. It happened because the plaintiff was fortunate enough to get a judge willing to do his job, no matter where it led.  That judge was John Kane.

Denver city attorneys have agreed to pay $3.25 million to a former jail inmate who accused guards of ignoring his screams while being tortured, choking him later when he complained about his pain and then covering up the abuse. City officials called it the largest settlement of its kind.

Denver wasn’t exactly cooperative in disclosing what was going on in its jail.  Lack of disclosure has become a disease in Denver. Judge Kane’s refusal to let Denver get away with it turned out to be the cure. Continue reading

Enfield Police Officer Matthew Worden: Beating “Not Significant”

One cop on the Enfield Police force stood out, Matthew Worden.  Not because he saved kittens stuck in trees. From the Hartford Courant:

Enfield, a department with nearly 100 sworn officers, has had 26 civilian complaints in the past four years. One-third of those were against Worden, records show. In 2013, Worden had half of the six citizen’s complaints against the department.

Might this be indicative of a small problem?  Chief Carl Sferrazza apparently thought so.  Enough so that an arrest warrant was sworn for his own officer’s arrest after the beating of Mark Maher.


Yes, the Enfield police had enough.  The Enfield police did what so many would expect them to do, even if it took years to get there. The Enfield police would no longer tolerate a violent criminal on the force, and sought prosecution.  Continue reading

The Future of Law: Prisoner Edition

Q:  What kind of Luddite lawyer won’t use email to communicate with his client?

A:  A good one.

While many lawyers are pondering the efficacy of the Cloud to store their client’s most confidential information and communications, because it’s not like the NSA (or any other fine agency known best by its initials) would ever think to look there, what has become the basic, prompt and most effective means of communications in our society is off limits for pre-trial prisoners.  You know, the ones we presume innocent?  The ones with the right to effective assistance of counsel?  Right?

Via the New York Times:

“That’s hogwash,” Judge Irizarry said. “You’re going to tell me you don’t want to know what your adversary’s strategy is? What kind of a litigator are you then? Give me a break.”

Continue reading

The Curmudgeon’s Dilemma

My fellow curmudgeon, Mark Herrmann, miffs the Slackoisie over at Above The Law by raising a hated presumption.

I’ve never met you, but I assume that you’re incompetent.

I realize that sounds a bit harsh, but it’s time someone told you the truth.

Why do I assume that all new people I meet are incompetent?

No, that’s too easy. Here’s the better question: Why am I right to assume that everyone’s incompetent, and why is that a helpful way to go through life?

A nice person functions in society by giving other people the benefit of the doubt.  We assume people are honest, kind, hard-working and caring.  We assume they know what they’re doing and desire to do whatever it is they do well.  We like kitteh videos too.

But Mark’s point doesn’t apply to nice people. It applies to lawyers.  Well, at least lawyers when they’re being lawyers.  They can be nice people the rest of the time, when they’re on their own time. But when they’ve got their lawyer hat on, it’s a different matter. Continue reading

The Chokehold Comes After A Lethal Move

Swirling around the controversy in the NYPD killing of Eric Garner was the use of a maneuver called a “chokehold” by those charged with giving names to the things cops do to people.  I say “swirling,” because some don’t see what happened as a chokehold, others don’t see it as choke-y enough to have done much damage to their lay eye, and still others watching the video decline to say with certainty that it was the cause of death.

Then there are those who wonder why Officer Daniel Pantaleo didn’t just pull his weapon, blow Garner’s head off and end the issue without risk of getting his uniform dirty.  After all, he could have just complied, so he was asking for it.

Of course, everyone believes they’re entitled to an opinion on such matters, because this is America and knowledge is a highly over-rated commodity.  NYPD Police Commissioner Bill Bratton saw a chokehold.  A former police officer and instructor here saw a chokehold.  But you didn’t. Well, your opinion matters too.  Just not as much as someone who actually knows something about the subject.

The “chokehold” uses the forearm to compress a person’s windpipe such that it cuts off the flow of air to the lungs, which in turn can cause death by asphyxiation. It’s considered a lethal maneuver, and its use was prohibited by the NYPD Patrol Guide in 1993Continue reading