Eugene Volokh rose to the challenge, when asked why he didn’t post about a matter that piqued a reader’s ire.

What are you guys scared of?

I can’t speak for my colleagues, but here are three things I’m scared of: 

1. Looking like a fool when I opine on a topic about which I don’t know enough, and thus get the facts or the analysis wrong.
2. Getting facts or analysis wrong, even if I don’t look like a fool.
3. Falling yet further behind on my various other responsibilities, as a result of taking the time to learn enough about a complicated, controversial, fact-rich question so that I can opine on it without being wrong.

While his third is a variation on what I would have written, my response being that it didn’t interest me enough to make it worthy of the time it would take to learn, Eugene’s points are well-taken.  I actually doubt Eugene is worried about looking like a fool, as I don’t believe he’s so fragile.  He’s certainly proven his worthiness too many times to be afraid of being called wrong. 

Rather, I suspect his concern is that he doesn’t want to think of himself as a fool for extending his reach beyond his grasp.  He knows his limits.  Even brilliant people like Eugene have limits.

With this in mind, I’ve noticed that Elie Mystal at Above the Law has been delving into criminal law issues lately, which is curious on two fronts.  On the first front, ATL is dedicated to the salacious aspects of Biglaw.  If you’re fascinated by which Biglaw associates are having sex or how they deal with pimples with a hot date looming, ATL is the place to read. 

On the second front, Elie is a smart cookie, having obtain both undergrad and law degrees from Harvard.  From there he went to Debevoise & Plimpton, where he became a trial lawyer in their criminal defense department did litigation until he quit the law in favor of commercial blogging.  Nonetheless, with a huge megaphone and a deeper tan than most, Elie has turned his attention from judicial boobies to judicial boobs.

On the one hand, this is a wonderful thing.  The audience at ATL could certainly stand to learn a thing or two about criminal law issues, given that their interests tend to run from Biglaw salaries to Biglaw bonuses.  The only thing they know about criminal law is that it involved yucky clients who they wouldn’t touch with a ten foot pole, and that they would be much more inclined to lock ’em up for life if they were ever to touch their Mercedes than worry about such technicalities as torturing a confession out of them.  But for Elie’s infusion of criminal law into their myopic world, they would have no exposure at all.

The problem, however, became notable with Elie’s recent posts, beginning with his apologias to Tyler Clementi’s roommate, Dharun Ravi, and last with his homage to Judge Joseph Williams of Allegheny County, Pennsylvania.

If you spend any time around criminal defense lawyers, progressive lawyers, or people in a black barber shop, you’ll hear the claim that African-American criminal defendants receive harsher sentences than their white counterparts. People have done studies about this, people have written reports about this, people have held conferences about this institutional expression of discrimination.

Rarely do we see anybody trying to do anything about it. There are many reasons this fundamental unfairness persists, but only one of those reasons makes any sense: at the end of the day, nobody wants to be more lenient on a convicted criminal just because that criminal is black. And nobody wants to be more harsh towards a white criminal just because he’s white. So while we have these wide variations in sentencing outcomes, judges can’t re-balance the system from the bench. They have to sentence the criminal in front of them.

This comes about because Judge Williams rejected a plea deal of three months probation for fighting with a police officer after a traffic stop.

A black judge from western Pennsylvania rejected a plea agreement for a man accused of fighting with police during a traffic stop, saying it was “a ridiculous plea that only goes to white boys.”

From this, Elie expounds:

This kind of thing happens all the time. White boy sits in an office with a white prosecutor, prosecutor sees a bit of himself in the impetuous youth. Suddenly, mouthing off and trying to hit a police officer during a traffic stop turns into three months probation.

And concluding:

But whatever, assume that this theoretical black defendant ends up in the prosecutor’s office (after a brief stay in the hospital, no doubt). Does somebody really want to tell me that he’d end up with three months of probation? For “resisting arrest” and “assaulting an officer” and whatever other charges the prosecutor throws at him?

There’s no doubt that his heart’s in the right place.  And there’s similarly no doubt that he’s taking a huge chance in raising a nasty, unpleasant subject on a blog whose readers are disinclined to spend sleepless nights worrying about the plight of criminal defendants, regardless of color.  As the comments to the post show, the readers aren’t exactly reluctant to offer their off-color thoughts.

Good intentions, however, are not a substitute for making a point, and backing it up with sound evidence.  Instead, Elie mashes things that never happened (defendants hanging out in the prosecutor’s office so they can work out a deal?) with street-level hyperbole.  Rather than make his point, he’s firmly convinced his readers that he doesn’t have a clue what he’s talking about.

This is where Eugene’s fears come into play.  More than just a concern, pushing the agenda without factual support, with claims that make little sense and rife with extreme allegations, not only reflects poorly on Elie (See Eugene’s Point 1), but results in an analysis that fails to accurately address the problem (See Eugene’s Point 2).

Look, given the facts available, I think three months’ probation is probably fair for a first time offender. The point that Judge Williams was trying to make was that such “fairness” would not be extended to a black kid. This is a real problem that needs to be fixed.

But white people will never let Judge Williams get away with what he was trying to do. Voters can elect people who are “tough on crime” as much as they want, but I don’t think these same voters have the stomach to see the criminal justice system that African-Americans know about applied to middle-class white people. They don’t want to live in a world where black judges and black prosecutors treat white defendants the way that black defendants have been treated for years. They would certainly want no part of a world where a “jury of their peers” is a colored wall of people unsympathetic to little Johnny’s emotional issues.

Oddly enough, Elie is somewhat right.  Not that white people get a free ride in the criminal justice system, an absurd proposition at best, but that defendants of color get an even worse ride.  Not all the time.  Not in every case.  But on the whole, sure.  The trouble is that neither this case, nor Judge Williams’ comment, nor Elie post, proves it.  Instead, the lack of support for his proposition feeds the ignorance of all those future Biglaw partner wannabes disdain for criminal defendants in general and defendants of color in particular.

There are any number of blogs that post really good stuff regularly about criminal law issues that better demonstrate the point Elie seeks to make, and provide factually accurate information in a well-understood context by people who stand beside these defendants, color notwithstanding, as they face the judge.  Elie has the reach, but not quite the grasp.  There are plenty of others who have the grasp if not the reach. 

Two options present themselves.  ATL is not only an extraordinarily big soapbox, but one that speaks to an audience that would otherwise hear little if anything about criminal law issues.  Either use the soapbox to inform based upon some time spent reading more knowledgable writing on the subject, using better examples and well-founded support, or turn over the podium to someone who has stood beside defendants and can speak from personal knowledge about the law. 

But don’t squander the opportunity like this, and ignore Eugene’s first and second points.  It not only fails to make your point, but doesn’t help your credibility much either.  And the issue is too important to screw up.