Category Archives: Uncategorized

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

Fear, Loathing, Isolation And Debt

On the twitters, I asked whether young lawyers were “paralyzed with fear and anxiety.”  The response was overwhelmingly clear: they are scared shitless about the ability to survive under the debt they carry, plus feed a family, buy shoes and all the other good stuff that they expected from joining a learned profession.

Aside from that, they’re pretty happy doing the hard work of lawyering.

Yet, I keep hearing about lawyers and depression, misery and unhappiness. I keep hearing that new lawyers are wrought with emotions they cannot control, like a teenager discovering hormones, crying, pulling out hair in clumps, balled up in corners with snot running down their nose.

I suspect that the sort of lawyers who are paralyzed with fear aren’t the same lawyers who would tolerate following someone like me on the twitters. I’m not inclined toward rubbing their tummies and telling them it’s okay that they failed their clients, as long as they’re happy.  My question, thus, was put to a different universe of lawyers, those whose professional lives aren’t wrapped up in their own misery and unhappiness. Those who ought to be lawyers. Continue reading

381 Facebook Warrants, No Waiting

From a distance, the food may look delicious. It’s only when you taste it that you realize it’s bitter.  The Appellate Division, First Department, decided the long-awaited challenge to a mass search warrant for everything ever from Facebook for 381 people.  One might wonder what the structure of the warrant was, or whether it was well-founded, but that question can’t quite be answered because no one outside of Facebook, the New York County District Attorney’s office and the court knows.

No defendant, no target, no one else has ever seen it. No one.*

Of the 381 named targets in the warrants, 62 were indicted.  The other 319 have no idea that the entire contents of their Facebook pages are in the hands of the DA. And they never will.

Of the 62 who have been indicted, it’s unclear whether any of them are awaiting trial. Most of the defendants in the case have either pleaded guilty or had their cases dismissed. Notably, the court only mentioned that 62 were indicted. There was no mention of how many of the 62 who were indicted have since had their cases dismissed. Continue reading

Sandra Bland: The Suicide That Can’t Be

At Fault Lines, Murray Newman explains how the death looks through the prosecutor’s eyes, and offers an optimistic expectation that this won’t disappear down the rabbit hole of excuses:

The law enforcement officials involved in the Waller County investigation, however, seem to be taking appropriate steps to address the death of Sandra Bland. As noted in  USA Today, the Texas Department of Public Safety has already conceded the trooper who arrested Bland “violated the department’s procedures regarding traffic stops and the department’s courtesy policy.” That statement is a strong rebuke considering it comes so early in the investigative process.

Additionally, the Waller County District Attorney, Elton Mathis acknowledged that there was nothing evident as to why Bland would have committed suicide:

I will admit it is strange someone who had everything going for her would have taken her own life. That’s why it’s very important a thorough investigation is done and that we get a good picture of what Ms. Bland was going through the last four or five days of her life.

Continue reading

The Unnavigable Ship of Rhetoric

Democratic candidates for president, Senator Bernie Sanders and Governor Martin O’Malley stood on the ship, docked at the progressive port of Netroots Nation, and thought they had found shelter from the storm.  They were wrong.

Democratic presidential candidate Martin O’Malley was midsentence when the chanting began. “What side are you on black people, what side are you on!” rang the chorus of around four dozen mostly black protesters streaming into a convention hall in Phoenix, Arizona, on Saturday.

The two presidential candidates found themselves at the center of the chaos, both caught off guard and unable to answer the protestors.

“Black lives matter. White lives matter. All lives matter,” O’Malley said to boos and jeers.

O’Malley had his Donald Trump moment, for which he promptly apologized for his insensitivity and whitewashing of racism by his use of the white response phrase to the Black Lives Matter movement.  Deciphering the winds is critical when trying to guide the ship through rocky shoals, and O’Malley got smacked in the face with an unexpected gale. Continue reading

Changes: The Nuts and Bolts of Prisoner Re-Entry

Imagine what it must be like to be Rip Van Winkle, waking up after a 20 year snooze to find a different world than the one you knew when you closed your eyes. That’s what someone coming out of prison after serving a lengthy sentence finds, as ably shown in the New York Times Magazine story about Carlos Cervantes and Roby So.

Carlos and Roby are two ex-cons whose job it is to pick up prisoners on their way out.  Even so, they haven’t quite left prison behind.

He was hungry. He wanted biscuits and gravy and was still laughing about how, earlier, he caught himself telling Carlos that, unfortunately, he’d have to wait until tomorrow for biscuits and gravy, because today was Monday, and Monday was pancakes day. Part of his brain still tracked his old prison breakfast menu. ‘‘Why do I still know these things, man?’’ Roby said. ‘‘It’s been four years. I was supposed to. … ’’ His voice trailed off, so Carlos finished his sentence: ‘‘Delete.’’

The story tracks Carlos and Roby picking up newly released 65-year-old Dale Hammock’s first few hours of freedom, who just awoke from a 21 year nap. Continue reading

Not Just The “Non-violent” Offender

In the New Yorker, Gilad Edelman goes for the “real answer to mass incarceration.”  If his use of the “real answer” makes you cringe, it made me cringe as well. In a system as complex and flawed as ours, purporting to have the “real answer” is arrogant beyond words, but Edelman, a non-lawyer, makes an exceptionally strong case about an extremely critical point.

To change mass incarceration, we’ve got to stop sinking our collective empathy into the beloved “non-violent” offenders, and spend a little on the rest of them.  Why?  Because that’s where mass incarceration happens.  All the sob stories about harsh sentences for non-violent, first time drug offenders may be true, but they are not the ones clogging prison hallways.  They are there, but there just aren’t that many of them.

It is simply not true that the growth of the prison population is mainly due to the sentencing of nonviolent drug offenders. About half of federal inmates are serving sentences for drug crimes, but the federal system only accounts for about two hundred thousand prisoners. In state prisons, which house about 1.3 million, only sixteen per cent of inmates are serving a sentence for nonviolent drug offenses, according to the latest Department of Justice statistics. About fifty-four per cent, by far the largest number, are there for violent crimes, and about nineteen per cent for property offenses, like burglary. 

Continue reading

Book Review: Gerry Spence’s Police State

The comparison was obvious from the moment the query arrived.  Gerry Spence wrote a book entitled Police State, How America’s Cops Get Away With Murder, published by St. Martin’s Press.  Even the cover art struck an eerie similarity to Radley Balko’s Rise of the Warrior Cop, which I reviewed and subsequently recommended as mandatory summer reading.

How could I not accept the review copy?  How could I not read it?  What could possibly go wrong?

Ah, but this wasn’t a seminal work on one of the most important subjects in criminal justice by a journalist willing to put in the effort to ferret out decades of facts.  This was a book by the trial lawyer’s living legend, Gerry Spence, who never lost a case™.

It wasn’t until the first paragraph of the first chapter that the book went into Gerry mode, where appears the standard epiphany of how, after more than 60 years of practicing law, he finally came to grips with the question: Continue reading

Trash Talk

Following the departure of Ellen Pao as interim CEO of Reddit, a ruckus ensued over whether this was the result of sexist trolls or incompetent management.  The New York Times article about her resignation itself became problematic as it morphed from fact to commentary.

Ellen Pao became a hero to many when she took on the entrenched male-dominated culture of Silicon Valley. But sentiment is a fickle thing. Late Friday she fell victim to a crowd demanding her ouster as chief executive of the popular social media site Reddit.

Ms. Pao’s abrupt downfall in the face of a torrent of sexist and racist comments, many of them on Reddit itself, is quite likely to renew charges that bullying, harassment and cruel behavior are out of control on the web — and that Silicon Valley’s well-publicized problem with gender and ethnic diversity in its work force persists.

In explaining how the article, without notation, reinvented itself, the Public Editor explained: Continue reading