The Guardian did something that embarrassed the FBI in 2015. It kept track of how many people were killed by police.

The FBI director, James Comey, said in October it was “embarrassing and ridiculous” that the government did not hold comprehensive statistics, and that it was “unacceptable” the Guardian and the Washington Post, which began publishing a database of fatal police shootings on 1 July, held better records.

While true, there is a fairly obvious reason why the government hadn’t bothered to keep track of such things. It fulfilled no internal need. Who was killed and why was a matter of concern for those looking in, not those whose job it was to explain to Congress why its budget was inadequate to win the War on Crime.  No good could come of it for the FBI, in particular, or law enforcement in general.  After all, it would provide fodder for those who don’t appreciate how hard, how dangerous, how critical, their job is.  Why give ammunition to your enemy? Continue reading →

The D.C. Circuit denied the petition for rehearing en banc, which would have put the court in the awkward position of reinforcing the extant law that allows a district court judge to increase a defendant’s sentence based upon conduct for which he was acquitted.  Crazy, right?

Bell exercised his constitutional right to a trial by jury on those charges, and the jury acquitted Bell of ten of the thirteen charges against him, “including all narcotics and racketeering conspiracy charges.” The jury convicted Bell of only three crack cocaine distribution charges that together added up to just 5 grams.

Because Bell had no significant criminal history and the amount of cocaine was relatively small, Bell’s Sentencing Guidelines range for the offense of conviction would have been 51 to 63 months. At sentencing, however, the district court found that Bell had engaged in the very cocaine conspiracy of which the jury had acquitted him, and sentenced Bell to 192 months in prison—a sentence that was over 300% above the top of the Guidelines range for the crimes of which he was actually convicted.

But the Supreme Court, not to mention the advisory sentencing guidelines, says this is cool. As long as the sentence doesn’t exceed the maximum possible sentence for the crime for which the defendant was convicted, no harm, no foul. Continue reading →

For quite a while, there were only a few voices willing to take the heat for calling out the efforts of our favorite censorious shrews, Miami lawprof (but non-lawyer) Mary Anne Franks and Maryland lawprof Danielle Citron, to promote anti-revenge porn crimes.  They shamelessly lied (as opposed to “were mistaken”) to the public about the First Amendment because they had a goal to achieve, and only by promoting ignorance could they hope to achieve the level of legal stupidity needed.

The claim was that their anti-revenge porn crimes did not violate the First Amendment. The claim was a flagrant lie, but they were law professors, supposed scholars, so who could question them?  Trench lawyers? We’re not scholars, after all, and when it comes to the people upon whom we rely for deep thought, don’t scholars win?

In the beginning, Franks claimed that Eugene Volokh supported her law, and agreed that it was not unconstitutional. That was a lie, and Franks quietly dropped Eugene’s name from her promotion as if she never said it. By avoiding confrontation with anyone who would challenge or question her, she was able to continue to deny her lies each time she was caught. Continue reading →

This marks the 7th year of the Best Criminal Law Blawg Post, and there was a very serious question of whether the crim law blawgosphere would have the legs to make it this far.  So many of the blawgs that existed when the contest began have since gone dormant that it seemed, at the time, that there would be little left from which to choose.

As it turns out, there is not only life remaining in the criminal law blawgosphere, but some damn fine writing out there, as reflected in the nominations (as well as some truly excellent criminal law blogs that, inexplicably, didn’t muster a nomination but are still doing great work).

The nominations reflect the diversity and depth of thought that exist in the criminal law blawgosphere.  Unlike the shallow, often trivial and almost invariably wrong content proffered by mainstream web media, lawyers are providing actual and accurate insight rather than pandering to the bias and ignorance of the public.  It’s good to know there is still hope for the public to be able to find substantive information, even as most of the web does whatever it has to do to make a buck off clicks at the expense of sound information. Continue reading →

The response, that Bill Cosby has never been charged, has reached its end of life. Not that people were buying, and now that he’s been charged, the only thing left to do is sharpen up the guillotine blade.  No matter what happens in the case, he has already been convicted by the court of public opinion.  There is no appeal.

On the one hand, the decade-old allegations of Andrea Constand were declined by prosecutor Bruce Castor in 2005. On the other, this just shows how rapes are under-prosecuted by patriarchal prosecutors.  Given the amount of smoke that now swirls around Cosby, those inclined to believe see no doubt, none, that the dozens of women now accusing him are “lying.”

But the question isn’t whether anyone is lying. The question is whether Bill Cosby gets the benefit of a trial before he’s convicted.  He’s taken on a real defense lawyer, Brian McMonagle, to replace the Cozen O’Connor dilettantes, and plans to fight.  But when it comes to rape, when it comes to Bill Cosby, does it matter? Continue reading →

At Volokh Conspiracy, Orin Kerr takes Radley Balko to task for a material omission, a headline that neglects to include the salient legal details of a holding by District of Kansas Judge John W. Lungstrum.

Radley Balko is getting a lot of attention for his provocative post “Federal judge: Drinking tea, shopping at a gardening store is probable cause for a SWAT raid on your home.” It sounds crazy, right? Why would a federal judge think that drinking tea and shopping at a gardening store amounts to probable cause?

Fortunately, there was no such ruling.

Well, that’s technically true, as the decision was a grant of summary judgment to the defendants in a § 1983 case. The headline leaves out a critical detail, that the police field tested what “appeared to be wet marijuana plant material (leaves and stems)” found in the garbage of Adlynn and Robert Harte’s trash.  Not once, but twice, and both times it tested positive for THC. The Hartes, former CIA analysts, found themselves on the cops’ radar because Robert went to a hydroponics store that police believed to be frequented by pot growers. Continue reading →