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. 

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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

In Case You Missed It, Scarlet Letter Edition

In a comment, Frank pointed to a proposal by District of Columbia council member Anita Bonds, who apparently found herself a little late to the “rape epidemic” party, and desperately needed to come up with something, anything, to ride the wave to the twin glories embodied by this sham: Tough on crime and feminism.

To pander to two constituencies who are usually deathly antagonistic is a rare opportunity, and no politician worth her salt would miss the chance to hop on that speeding train.  Bonds was no exception.

Newly proposed D.C. legislation would require colleges to put a permanent and prominent notation on the academic transcripts of students who are convicted of sexual assault or who try to withdraw from school while under investigation for sexual misconduct — a “Scarlet Letter” that would follow them to new schools and graduate programs or into the workforce. Continue reading

The Integrity of Prosecutorial Integrity Units

Eugene Volokh continues to serialize the Georgetown law review article by Ninth Circuit Judge Alex Kozinski, with the latest addressing reforms to curb prosecutorial misconduct.  You know, the stuff that never happens, except when it does.

Most of Judge Kozinski’s recommendations are well known, like open file discovery and double blind sequential line-ups.  All good recommendations, though with caveats to address how things that look shiny on the surface can still have festering boils beneath, but Judge Kozinski’s support for these long time proposals doesn’t hurt.

But then, proposal 8 of his listicle is a curious one:

8. Establish independent Prosecutorial Integrity Units. In my experience, the U.S. Justice Department’s Office of Professional Responsibility (OPR) seems to view its mission as cleaning up the reputation of prosecutors who have gotten themselves into trouble. In United States v. Kojayan, we found that Assistant United States Attorney Jeffrey Sinek had misled the district court and the jury. The district judge, who had trusted the AUSA, was so taken aback with the revelation that he barred further re-prosecution of the defendants as a sanction for the government’s misconduct. Continue reading

A Decent Suit

He was home for a week, tops, before he had to get back to Cambridge for work.  That was all I had, and it wasn’t nearly as much as I wanted, so I had to work fast. I steeled myself for the likely rebuff coming, and forged ahead.

It’s time we got you a decent suit.

I know.

“I know”? Didn’t see that coming. I fully expected to be told I was crazy, supported by arguments along the lines of “nobody wears suits anymore,” or “I’m not wearing one of those, I’ll look like you.” But instead, total agreement.  I was stunned into silence for a moment. This hadn’t happened in years. Continue reading

Any Excuse To Kill

A long-form piece of investigative journalism by Brad Schrade at the Atlanta Journal-Constitution details the murder of a young mother, Carolyn Small, whose bad day turned far worse at the hands of Glynn County, Georgia, police officers, Sgt. Robert C. Sasser and Officer Michael T. Simpson.

While the article takes the story from inception through the ultimate machinations used to sanitize the cops from culpability, and each piece of the sordid story is a story within itself, the beginning is a fascinating place to focus on the separation of “us and them,” the dehumanization that allows cops to murder a human being without any apparent twinge of concern.

Not that it makes it worse, but that it removes one aspect from the mix: Carolyn Small was a white, attractive, young mother.  Glynn County cops were called to investigate a “suspicious person.”

The bloodshed began as a simple call to the police of a suspicious person. Continue reading

A Tiny Slice of “Yes”

Judge Joel Pressman ruled that UC San Diego’s actual disciplinary procedures, not to mention their self-assessment that provided the male student with an “abundance of process,” failed to approach anything a rational person would consider due process.  At Minding the Campus, K.C. Johnson provides a thorough recap of the hearing.

But one piece remains somewhat underdeveloped, and is critical as its parameters remain problematic, misunderstood if described kindly, batshit crazy otherwise.  What was the actual allegation, in context, that gave rise to the male student being put through this educational and legal nightmare?  From the petition:

Petitioner, a 20-year-old college student, seeks redress for his de facto expulsion from UC San Diego for an alleged instance of unwanted heavy petting that occurred between two sessions of consensual sexual intercourse with an adult female student on the weekend of January 31, 2014.

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The ITIF’s Confusion on Free Speech and Revenge Porn

A progressive think tank focused on promoting technology, the Information Technology and Innovation Foundation, decided to take a blind leap into the nasty waters of internet speech and revenge porn. It issued a report, written by ITIF Vice President Daniel Castro and research assistant Alan McQuinn, entitled Why and How
Congress Should Outlaw Revenge Porn.

Why and how ITIF and Castro thought themselves qualified to write such a report remains a mystery, but then, when it comes to this particular subject, mysteries abound.  Like why Mary Anne Franks blocked Eric Turkewitz and Jay Wolman on the twitters for asking why she claimed false rape claims were “infinitesimal” when the report she cited to put them at 45%.  Of course, a real discussion can be found at Data Gone Odd, but I digress.

Fusion reported on the ITIF report with a particularly curious title, due to one of the proposals in the report that the FBI create a special group for handling revenge porn claims.

But the Information Technology and Innovation Foundation, a non-partisan think tank, thinks legislators, after passing a federal ban, need to do even more to protect victims of nonconsensual nudes. In a report published Wednesday, the ITIF demanded the creation of a special FBI unit that would help revenge porn victims and put pressure on tech companies to develop best practices for quickly removing law-violating content from their sites. Continue reading

The Second Lesson of Gardena

The first lesson was there for all to see, but not too many people saw it, or at least realized it was a lesson of grave importance at the time.  Brooklyn criminal defense lawyer Ken Womble did, and it compelled him to write about it.

California law enforcement attorneys from across the state banded together to advance the idea that the public should not have access to the three dashcam videos that captured the Gardena shooting.  They claim that releasing the video to the public would violate the privacy of the officers involved in the shooting and could possibly interfere with “investigations.”

And it seems more than slightly hypocritical to claim “privacy interest” for one of your own while you have no problem holding press conferences to announce the alleged crimes of a private citizen, prior to any due process or actual conviction.

There were a few things known at the time. There was one man dead, another wounded, who were helping to find a bike thief for a friend, but had the misfortune to also be Hispanics on bicycles, which made them inherent suspects.  There was an investigation by police and the district attorney who concluded that it was a righteous shoot.  And there was a $4.7 million settlement.  It didn’t add up. Continue reading