Bail Weather: Naive With A Chance Of Good Intentions

When something isn’t working the way you think it should, find something different. And few will argue that bail (or bond, as some refer to it instead) isn’t broken, keeping innocent people in jail pending trial for their inability to pay. This has myriad impacts, most notable among them being guilty pleas to crimes that never occurred or weren’t committed by a defendant because it gets him out now rather than sitting in the can for the next year and a half awaiting a trial that will never happen.

So why impose bail? You can’t let people arrested not appear for court in the future. That would subvert the system and reduce the majesty of the law to a farce. (For the sarcasm impaired, that was sarcasm). Under some bail regimes,* it’s also for the safety of the community, since a presumptively innocent defendant might be cut loose, re-offend and ruin a night’s sleep for the judge who let him out, causing the judge’s worst picture to appear on the front page of a tabloid and all dinner invitations to be rescinded. No judge wants to suffer such humiliation. And why take the chance, just to cut some likely mutt a break by adhering to the law.

The solution most adored is the one least subjective, and that provides the most plausible deniability to those involved, so if the shit hits the fan, the defendant who’s cut loose goes out and murders a white family, has sex with their dog, calls police mean names and then snorts crack, it won’t be the judge’s fault. Blame the algorithm! Continue reading

A Constitutional Right, Kensplained

At Fault Lines, Ken White added a wrinkle to an evergreen post amongst criminal defense lawyers.  We keep telling people to STFU.

Criminal defense attorneys say it (often in vain, often too late) to defendants and targets of criminal investigations.  Litigators say it to their angry clients.  When a lawyer says “shut up,” that doesn’t mean you should never talk about your case again.  It means that you shouldn’t talk to police without your lawyer, because the police don’t have your best interests at heart.  It means you shouldn’t talk to your pals about your case, because one of them may be trying to work off an arrest and may repeat what you say to the cops.  They may even be wearing a wire.  It means that everything you say may be used against you – criminally or civilly – and so now, in recognition of your human frailty, you should only say things in carefully controlled circumstances after the benefit of the advice of someone who knows what is going on.

You get it, right? You’ve heard it, over and over, and you don’t need to hear it again. Sure, some n00b will get internet access and have to learn it for the first time, but for you old-timers, we’re boring you. Got it.

So then comes the wrinkle: Continue reading

The Demon Constitution

Hemlines go up. Hemlines go down. So too, apparently, does the Constitution in the rhetoric of the deeply passionate.  To celebrate Constitution Day, Drake Law School in Des Moines, Iowa, is hosting a speech entitled “Guns, Speech, and Sex: The Rise of Constitutional Extremism.”

“In recent years, the Constitution has become an article of faith in the worst possible sense,” Franks said. “It is increasingly invoked to justify irrational and destructive agendas in a way that strongly resembles the way religious extremists use the Bible to advance fundamentalist views. This constitutional extremism occurs on both ends of the political spectrum: in the Right’s obsessive focus on the Second Amendment and the Left’s equally obsessive focus on the First. Though their targets are different, constitutional extremism on both the Right and Left is united in the privileging of the powerful.”

Rarely has anything so monumentally idiotic been said, no less at a law school on a day designated to honor the Constitution. But the coined phrase, “constitutional extremism,” is catchy. Rhetoric like this allows the weak-minded to rationalize why no rules should impair their achieving whatever goals they deem vital, at whatever the cost.

As for the “Left’s equally obsessive focus on the First,” that smacks of disingenuousness. These “First Amendment absolutists,” another catchy phrase enjoyed by the intellectually challenged, are hardly progressive. Continue reading

The Wells Fargo $124.6 Million

If you thought 5300 was a big number, try the payout to Carrie Tolstedt on her way out the door.

The executive who oversaw this group of rogue employees, Carrie Tolstedt, conveniently announced plans to retire over the summer and, according to Fortune, is being paid $124.6 million on the way out.

To put that in context, the penalty levied against Wells Fargo was $185 million. Somebody in the C-Suite went without an appetizer at lunch to cover that unanticipated cost.

The head honcho, John Stumpf, in an interview given to the San Francisco Chronicle, said:

“I don’t want anyone ever offering a product to someone when they don’t know what the benefit is, or the customer doesn’t understand it, or doesn’t want it, or doesn’t need it.”

Continue reading

Want Justice? Leave The Courthouse

In a stunning announcement, Ohio State lawprof Michelle Alexander, whose book, The New Jim Crow, has had an enormous influence on the impact of race in the criminal justice system, has resigned her position and joined Union Theological Seminary.

Law, policy and advocacy have been my world for more than 20 years, and my singular passion for 10 of those years has been finding ways to awaken people to the racial dimensions of mass incarceration and help them see it for the human rights nightmare that it is.

And yet I now feel compelled to change course. I am walking away from the law. I’ve resigned my position as a law professor at Ohio State University, and I’ve decided to teach and study at a seminary.

The “why” isn’t easily explained. Continue reading

With The Right Demographics, A Judge Can’t Suck

Many years ago, we were sent out on a civil jury trial to a Part* that made my co-counsel mutter, “oh fuck, no.”  The judge, whose name eludes me now,*** apparently had two issues. First, she was a dolt. Second, she couldn’t speak adequate English. This would have been hilarious, had it not been for the fact that real people’s lives were involved.

Daily during trial, the judge would say something that would evoke, from all counsel on all sides, a response of “what?” The judge would repeat herself, somewhat testily. So again, counsel would ask “what?” The third time she would start screaming at everyone, which reinforced the point that speaking loudly in a foreign language does not make it more comprehensible. The judge was female and Hispanic. This didn’t make trial any easier.

Afterward, I asked a buddy who was on the party screening committee how it was possible they ran a judge who couldn’t speak English, not to mention was a dolt (did I mention that?). He explained that they needed a judge with her immutable attributes to round out their dedication to diversity, and she was the only one who licked enough envelopes at the local Democratic Club for the job. Yes, that is the primary qualification to be nominated, and whoever is nominated by the Democrats in Manhattan wins, because reasons.**

Former New York Law Journal writer Dan Wise writes that the Manhattan Democratic Party judicial screening panel found Justice Doris Ling-Cohan unqualified for a second term. Continue reading

A Contract of Social Justice Adhesion

While some would argue that this proposed law impairs the right to contract, it’s not really true. Contracts on the internet are characterized by “adhesion,” meaning that you don’t get an option to negotiate terms, as you would in a person to person contract negotiation. You can take it or leave it, and if you “need” what they’re selling*, then you take it. More to the point, no one reads them, anyway, and no one knows what they’re giving away.

Both houses of Congress have now passed bills prohibiting contracts that preclude individuals from, or penalize them for, making negative reviews. Both the Senate’s and House’s versions offer protection:

(b) Invalidity Of Contracts That Impede Consumer Reviews.—

(1) IN GENERAL.—Except as provided in paragraphs (2) and (3), a provision of a form contract is void from the inception of such contract if such provision—

(A) prohibits or restricts the ability of an individual who is a party to the form contract to engage in a covered communication;

(B) imposes a penalty or fee against an individual who is a party to the form contract for engaging in a covered communication; or

Continue reading

Disingenuous Dauber

She led the townswomen carrying pitchforks and torches to burn down Judge Aaron Persky’s bench for not having destroyed Brock Turner’s life. But after Stanford shrew, Michelle Dauber, was called to account for the inconsistency of hating whom she wanted to hate despite not hating whom she didn’t, Dauber found herself in a conundrum.  How to have it both ways?

When ex-Stanford University swimmer Brock Turner became a registered sex offender for life last Tuesday, he joined a nationwide list of registered sex criminals that has grown dramatically in recent years to more than 800,000.

Even some who have denounced Turner’s six-month jail sentence as too lenient for sexually assaulting an unconscious woman question whether he should spend his life with the stigma and onerous restrictions of a registered sex offender.

Denounced as too lenient? Well, that’s rather harmless. After all, I thought it was too lenient. Ken White thought it was too lenient.  Michelle Dauber? She wanted him executed, then castrated, then executed again, this time with the judge, and his little dog too.   Continue reading

The Safety Of The Circle

Some years ago, when lawprof Danielle Citron was throwing her Cyber Civil Rights Symposium, then-adjunct prof Marco Randazza called it a “circle-jerk,” much to the distaste of the tenure track academics. They didn’t appreciate his coarse language, but worse, they didn’t appreciate his calling out their lying to each other. Inside the circle of like-minded believers, nobody points out that a fellow traveler is full of shit.

When New York Law School professor Ari Waldman threw a conference named after Tyler Clementi, no one was invited who wasn’t inside the circle. Indeed, some of the speakers have been subject to criticism here. There were no discouraging words to be heard, but tons of applause for the lies they told themselves.

One of the most curious aspects of the conference was that its purpose was to eradicate cyber-harassment. I asked Ari at the time to define cyber-harassment. After all, if you’re going to throw a conference about eradicating something, it would seem necessary to know what exactly you were arguing should be eradicated.  Ari’s response was typical academic deflection: Continue reading

A Healthy Concern

The video went viral, as it should. Hillary Clinton nearly collapsed.

A few hours later, her campaign announced that she had been diagnosed with pneumonia a few days earlier. It raised questions of whether this was true and why it was concealed. After all, pneumonia happens. It’s not a loathsome disease that reflects poorly on a person’s hygiene or posterity.

Concealment, on the other hand, is a different issue, especially for someone who polls show has serious trust issues.  The rationale for keeping health issues under wraps is obvious. Hillary Clinton’s health has been challenged, that she suffers from some debilitating health issues that would make her an inappropriate candidate for president, has for some time and is being dishonest about it.

Assuming it is pneumonia, and despite the best efforts at diagnosis over the internet, there is no basis to assume this is false, it’s not a big deal. Presidents get colds, the occasional flu, and sometimes puke on foreign dignitaries. Stercus accidit. Even people in high office get sick.  Continue reading

Empirical Sentencing: Weapons of Math Destruction?

Can math be racist? Efforts to change the means by which defendants are sentenced, to end the voodoo of gut sentencing, to empiricism have been around since the Sentencing Reform Act of 1984, which birthed the dreaded United States Sentencing Guidelines. And deeper efforts, championed by Senior Nebraska Judge Richard Kopf, are still in the works, even after the Supreme Court backed off its misbegotten Mistretta mandate in its punchline opinion in Booker.

The attraction is obvious, particularly in a world that has come to adore binary thinking, the belief that data doesn’t lie. It may not make us happy because it reveals truths we would prefer to hide behind flowery words, but it is truth nonetheless.  Whose truth, however, has remained an issue, as the empirical research of J.C. Oleson shows significant correlation between poverty and recidivism.

To be clear, the criterion wouldn’t be that black defendants would be sentenced longer because they were black, for example, but that poor people whose parents had criminal histories and didn’t graduate high school would be sentenced longer because, empirically, they would be more likely to be recidivists. Entirely different?

By raising the question of poverty as a proxy, which fails in my opinion for a variety of reasons ranging from “correlation not proving causation,” to its inadequacy as a proxy (say, a 74% reoffend correlation rate, statistically significant for empirical purposes, means 26% of defendants will be sentenced to a longer sentence than parsimony would allow, which is just plain wrong), to its placing the full weight of recidivism on the defendant.  “What,” you ask? Continue reading