Category Archives: Uncategorized

If Judge Persky Was Wrong, What’s Right?

Millions upon millions of people have opined that Judge Persky was wrong to sentence Brock Turner to 6 months incarceration.  Many have called for his removal from the bench because they found this sentence outrageous.

But what is the right sentence?  Bear in mind, there are five factors to be considered in fashioning a sentence.

  • Retribution (punishment)
  • General Deterrence
  • Specific Deterrence
  • Incapacitation
  • Rehabilitation

Within that framework, parsimony requires that a defendant be sentenced to no more than is necessary to serve those functions. Continue reading

The Anti-Indulgent Post About You

After writing more than 1500 words this morning, I decided to trash my horribly self-indulgent post and instead quote Orin Kerr.

I’ve come to the realization that people who disagree with me are just arguing in bad faith. How do I know? Well, when I get into an argument, no one who disagrees with me ever says anything I find persuasive. They never even come close. It seems to me that if a person who disagrees with me were smart and acted in good faith, surely he would say something that persuaded me (even if only a little). But since that never happens, people who disagree with me must be either stupid or acting in bad faith. I’m a generous person, so I won’t assume the other guy is stupid. And that leads me to conclude, reluctantly, that people who disagree with me are arguing in bad faith.

This was written in 2010. It’s gotten worse since then. More significantly, smart, well-educated people have given up thought for emotion, and then indulged their value system by pretending that it’s justified because they’re right and anyone who disagrees is not just wrong, but malevolent. Continue reading

Damaging Things Stupid SJWs Twit For $1000, Alex

Cristian Farias wrote a post about a guy named Daniel McGowan, who was punished by the United States Bureau of Prisons for violating a regulation that had been rescinded, getting tossed in the hole and then being told by the Second Circuit that he had no “clearly established right” to not have this happen to him. I picked up on Cristian’s post, and wrote about it here.

This isn’t where this post ends, but where it begins.

A passionate advocate named Ryan Fletcher, who is with Movement Media, appreciated Cristian’s post.  Whether this was because he pitched the story or just liked it is unknown. That something like Movement Media openly exists is itself a disturbing sign of the times.

We are activists at heart and publicists by trade.
We create and anchor public relations and
communications infrastructure to build movements,
sustain momentum, and influence social change.

In the past, this would be considered a shameful endeavor, seeking to manipulate opinion to “influence social change.”  It’s not that it’s wrong to believe that one’s flavor of social change is a virtue, but that the means by which it succeeds is the merit of its argument, not public relations skills as are beloved in the marketing of new and improved laundry detergent. Continue reading

The Constitution Matters In Texas, But Not As Much As Money

When Andrew Fleischman finished writing his Fault Lines post about the Texas Supreme Court’s decision in Texas v. One 2004 Lincoln Navigator, he was still shaking his head.  “Why,” he rhetorically asked, would they have gone through all that effort to justify endorsing a constitutional violation?

The decision is one of those sophist’s arguments that reflect the sort of hypertechnical legal reasoning that makes people think “the law is a ass.”  It’s not that the rationale is logically wrong, but that, given the rationale for the opposite result is similarly logical, it reflects a policy choices between two rational positions.  And that’s what makes the decision so hard to fathom.

Why, one has to ask, would the Supreme Court of Texas make the policy choice to turn a blind eye to a violation of the Constitution for the purpose of allowing forfeiture of unlawfully seized assets.  After all, of the many assertions of authority by the government, few are more hated, more easily abused, more subject to error and more onerous for an innocent owner to fight than civil asset forfeiture. Continue reading

The Size Of A Closet In East Cleveland

Whether the $22 million verdict will hold up on appeal has yet to be seen. Whether it will be collected, in whatever amount is eventually determined, is a separate question. But what the cops in East Cleveland did to Arnold Black is as good a reason to bankrupt that cesspool in any event.

After leaving his mother’s house after dinner on April 28, 2012, Black was driving home through East Cleveland when he was tailed by Det. Randy Hicks who was driving an unmarked car, according to testimony.

The two exchanged glances and another officer, Jonathan O’Leary, pulled up behind him. O’Leary ordered Black out of the truck, handcuffed him and sat him on the hood.

Hicks tore apart the inside of Black’s green truck, including the door panels, searching for narcotics.

Scholars parse Supreme Court opinions for hidden meaning on the Fourth Amendment. Cops just rip apart green trucks because they want to. Fit that one into your law review article. Continue reading

Fashionably Biased

San Francisco Public Defender Jeff Adachi opened his op-ed on public defender bias with an anecdote:

A couple of months ago, a San Francisco public defender was assigned a case. The client was a 19-year-old African American arrested for carrying a gun. He faced a stiff sentence for weapon possession.

He explained to his attorney that he began carrying a gun after his best friend was shot dead by rival gang members at war with a gang in his neighborhood. He was not part of that group, but he feared he would be killed in the violence that rocked his streets.

The client’s lawyer, who had grown up in an upper-class neighborhood and graduated from a good school, had a hard time understanding this explanation. Why, she wondered, didn’t her client just call the police?

His purpose in relating this story was to show that even public defenders, a subgroup of criminal defense lawyers closer to minority defendants than any other, suffer from bias. It’s written for public consumption, to make a point about implicit bias, that some find it hard to grasp that there are people whose lives were different than theirs, and this gives rise to a misapprehension of how they think, how they react, how they exist. Continue reading

The Invisible Westboro Baptist Church

Most have forgotten about a blight upon all that’s holy, a group that was the embodiment of offensiveness that it sorely tested our mettle, our dedication to civil liberties, because there was no good person who wouldn’t rather smack the crap out of them than support their right to free speech. You guessed it, the Westboro Baptist Church.

The Supreme Court opinion these stains-upon-humanity birthed, Snyder v. Phelps, was an important one. And that sums up the total social utility of Westboro Baptist Church’s existence. So naturally, seeing a slight tear in the fabric of society which, if rent, could give notoriety to the group’s existence, they’re going for it.

A representative for the fundamentalist Westboro Baptist Church told USA TODAY that its members plan to picket Saturday outside the funeral for two of the victims of last Sunday’s shooting massacre at a gay nightclub in Orlando.

“It’s not about that person, it’s about that whole societal phenomenon,” Westboro spokesman Steve Drain of Topeka, Kan., said Thursday night in a telephone interview. “It’s never been OK to be gay and it’s never going to be OK to be gay, no matter how much the spirit of the times calls for the popularity of that sin.”

Continue reading

A NY Senator’s Silence

It wasn’t long after my buddy was elected to office that we had a beer and talked about what was happening in Albany, or as I put it, “why are they (note that I left him out, as I didn’t want to be offensive) totally nuts?”  He started to give me a party-line answer, because the first thing you learn when you get elected is which side your bread is buttered on, but then, as I looked at him with those eyes that said, “are you really gonna try to feed your old pal this line of bullshit,” changed his tune.

They don’t know and they don’t care.

Huh? What don’t they know? Why don’t they care? “The Constitution,” he replied.  This conversation happened when beers were a buck, but I’ve never forgotten it. There was much more to it, but this isn’t a post about my epiphany, but about New York Senator Jack Martins (R-Nassau County), who is backing up Governor Andy’s effort to silence the dumbasses who hate Israel.  And, as long as Martins is at it, get rid of whatever other speech he doesn’t like.

Adam Steinbaugh at FIRE gives the rundown of Martins’ really bright idea. Continue reading

An Imperfect Solution

During an interesting exchange on the twitters, I was tested by the New York Times’ Jesse Wegman to come up with a solution to the gun epidemic.  His challenge began with a quasi-snarky twit:

After explaining that I was anything but the “arbiter of common sense,” a misapprehension of my view that “common sense” is what people (or newspapers) use to avoid the real labor of thinking,  I went on to challenge the underlying premise of his question.

It’s not that we don’t want solutions, but learn that law never provides a perfect answer to all harms humans create.

This provoked the response from Jesse, “No one is claiming there is a perfect answer,” a good parry to the absolutist word “perfect.” But then came the riposte: Continue reading

Fault Lines: A Few Federal Judges and You?

It’s that time again, as Fault Lines is looking to expand its writers to continue to bring in diverse views of the system. Fault Lines has the most remarkable, most experienced, most knowledgeable corps of writers on criminal law on the internet. But we’re greedy. We want more.

Who? We want academics with a sense of humor. We want cops, cop union lawyers, prosecutors. We want judicial clerks. We want defense lawyers. We want males, females, and any other letter of the alphabet. We want blacks, whites, browns, greens and purples. We want all smart, funny, thoughtful legitimate voices.

But what if you’re not yet an experienced lawyer? What if you’re knowledgeable of, and deeply interested in, criminal law, but don’t think you have the resume to offer an experienced perspective? Heck, we want you too. We’ve started the Fault Lines junior varsity team, a place where n00bs can learn and grow under the watchful eye and gentle hand of an old curmudgeonly guy. No tummy rubs, and the demands are hard, but if you have the writing chops, you will get the support you need and the opportunity to go as far as your talent will take you.

Interested? You know where to find me. [email protected]

Gawker Uses Trump’s Hair To Make A First Amendment Point

As a fan of irony (and wrinkly, for you nasty youngsters), there was no question but that I had to write about Gawker’s follow-up post to the critically important question of whether Donald Trump’s hair was a weave.  What makes this too deliciously ironic to pass up?  It is the quintessence of both sides of the Gawker Dilemma.

On the one hand, Gawker has demonstrated that its position in the media is to be trivial, unserious, salacious and . . . no, that covers it. If those who hate Gawker for being Gawker, and ripped it a new asshole for airing content that millions of people want to see, and millions feel is “inappropriate” because they conflate their sensibilities with law, needed validation, you just handed it to them on a silver platter. Because Trump’s hair matters?

We all laugh at his hair. We’ve been laughing at his hair for a long time. But it’s just funny. We can all see his hair without you, Gawker. If this is what you call investigative reporting, then you’re the joke your haters claim you are. Was that what you were trying to prove, that you are the asshole of journalism? Well done, then.

But then came the letter. Continue reading

To Repeal An Amendment

David Cohen* makes an emotional argument for why it’s time to repeal the Second Amendment to the United States Constitution.  It opens curiously, with an appeal to authority.

I teach the Constitution for a living.

Except he doesn’t exactly teach the Constitution for a living. Rather, according to his own description, he “explores the intersection of constitutional law and gender, emphasizing sex segregation, masculinity, and violence against abortion providers.”

This doesn’t mean he isn’t knowledgeable about the Constitution, but starting with a misrepresentation is troubling.  Obviously, he says this to establish his bona fides to make the argument that follows. Is being a lawprof with an agenda inadequate? Perhaps, as there is no necessary nexus between advocate and legal competency, but claiming to be something you are not does little to establish knowledge except to those unaware of the deception. That makes this false assertion divisive.

I revere the document when it is used to further social justice and make our country a more inclusive one.

Continue reading