Author Archives: SHG

Free Speech Even The ACLU Can Support

While the ACLU has largely chosen to forsake its interest in constitutional rights that don’t align with the social justice feelings of its staff, and its donors, it hasn’t entirely lost interest in defending speech, as reflected by the Maine chapter’s support of a high school sophomore at Cape Elizabeth High School.

Aela Mansmann, a 15-year-old sophomore at Cape Elizabeth High School outside Portland, has been at odds with Cape Elizabeth Schools for a month after posting a note in a bathroom that said: “There’s a rapist in our school and you know who it is.” She and two other students who left similar notes were ordered suspended.

As it turns out, there may not be a rapist in her school, and she doesn’t know who it is, but that’s not what her sticky notes were about. Continue reading

The Future of Pronouns

In a USA Today op-ed, former Republican turned confused former Republican, Tom Nichols, asks a snarky, yet very real question of the Democrats: Are you trying to lose?

When we watched CNN’s LGBTQ town hall for the Democratic candidates Thursday, we had very different reactions. This is the event, you remember, where former Rep. Beto O’Rourke of Texas said he’d punish religious institutions for refusing gay marriage, and where Sen. Kamala Harris of California started by informing us of her pronouns, and then host Chris Cuomo, after a mild and dopey joke, had to go on Twitter the next day and apologize for making light of it. This is where Sen. Elizabeth Warren of Massachusetts fielded a question about traditional marriage with a sneering, smug insinuation that the only people who would ask her about that are men who can’t find a woman.

You thought it was great. You saw a ringing defense of LGBTQ rights and a reaffirmation of what Democrats stand for.

I saw it and thought: Are these people insane? Are they trying to lose the election?

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It Happened, Just As We Knew It Would

No one, but no one, with the slightest grip on how criminal law happens doubted for a moment that there would be leakage. Some wouldn’t return to court. Some would commit another crime while a case was pending. And someone would commit a truly heinous crime after being released.

It’s not a fault in the system, but human nature. Despite the rosy characterizations of the poor and downtrodden as being victims of society’s ills, which may well be true, it doesn’t change the fact that people do bad things to other people. And so it comes as no surprise that a bad thing, a truly heinous thing, happened.

The Chinatown vagrant accused of fatally bludgeoning four other homeless men over a week ago was sprung from jail not once but twice by misguided nonprofits pushing bail reform, court documents show.

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The Unreasonably Scared Aaron Dean

There is a strong argument to be made for former Fort Worth police officer Aaron Dean, knowing that he was in a black neighborhood, and assuming that the silhouette he saw through the window inside Atatiana Jefferson’s home would be a black person, was a significant factor in his perception.

Maybe it meant that the life just wasn’t all that valuable to him. Maybe it meant that the person inside, likely being black, was likely more of a threat because too many cops still believe that black people are more likely to be criminals, more likely to be violent or more likely to pose a threat to a cop’s life. Outside of peeking into Dean’s head, there’s no way to know what synapses fired, in what order, due to race. Unfortunately, no post-hoc apologies or explanations will erase the fact that, yet again, a cop killed an indisputably innocent black person for her being in her home.

Don’t mention the gun she had within her home, which she may or may not have had in her hand. It’s completely irrelevant and immaterial, both because it was entirely lawful and proper for her to possess it, and it played no role in Dean’s actions, as he couldn’t have seen it under any circumstances. Continue reading

Good Judge, Bad Judge

At Slate, Cato’s Clark Neily calls for more judges with criminal defense experience, going so far as to call for a moratorium on judicial appointments from the ranks of prosecutors.

Fortunately, the solution is simple: a temporary moratorium on nominating former prosecutors to the bench and a strong preference for lawyers with substantial experience representing individuals against the government in criminal and civil cases. If that proposal seems extreme, consider the image of a federal judiciary in which former public defenders outnumbered prosecutors 4 to 1. Notwithstanding the transformative effect that would have on our deeply dysfunctional criminal justice system, not to mention the Bill of Rights, it’s probably not a good idea. But neither is it wise to continue doing nothing while the imbalance runs the other way.

Given the climate these days, few social justice warriors will disagree, and some might even split their donations between the ACLU and Cato. Not that it will happen, because the idea isn’t simple, but simplistic, and there are a host of reasons why it will not do what simple minds believe it will do. Continue reading

Close Rikers Became Abolish Prisons

Jails have a smell, a combination of disinfectant and disgust. The former never really washes away the latter, and the combination of the two odors is repulsive. Rikers Island was a repulsive place, and it bred a culture of cruelty among not only its transient residents, but among the staff overpaid to keep them in line.

Close Rikers became a rallying cry, even though it was nothing more than an island with human warehouses. Corrections officer culture had become toxic, and unionization plus political inertia prevented any serious change, so the simpler sell was that Rikers had evil walls, and ceilings and steel bars. Blame the buildings and it would fix the problem, as if any other jail wouldn’t smell as awful.

There were two actual problems with Rikers, its isolation and its size. Isolation was its virtue when it was built, since nobody wants a jail in their neighborhood, and the folks who reside there weren’t welcome on Sutton Place. Size was a by-product of necessity, when crack, and its daily killings, caused the need for cells to explode. When Rikers Island ran out of room, they put people on a barge brought in to take the overflow. Nobody ever said they would rather be on the barge than Rikers. Jails smell the same, and both had water views. Continue reading

Atatiana Jefferson’s Castle

S. Lee Merritt, the Gloria Allred of Michael Avenattis, twitted that she was playing video games with her 8-year-old nephew, which doesn’t help nearly as much as he apparently thinks it does. Was his point that “Tay,” as he calls her as if they were old friends, was a neglectful, if not abusive, aunt? It was 2:25 in the morning, not really the time of day to play video games with a child.

But even if that’s true, despite the fact that Merritt’s history of presenting accurate claims isn’t exactly reliable, so what? Jefferson was, without question, safely ensconced in the one place in the world where she didn’t have to explain what she was doing, why she was there. She was in her home, her castle, and that’s all that matters.

Officers responded at 2:25 a.m. to the house in the 1200 block of East Allen Avenue. James Smith, who called a non-emergency police number, said he saw the doors were open and the lights were on, which struck him as unusual. He knew Jefferson, his neighbor, was home with her 8-year-old nephew.

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The “Pet” Justice Fallacy

Jesse Wegman asks a fair question for the wrong reason.

To be sure, the mere presence of an underrepresented demographic on the court doesn’t guarantee a specific outcome — a point Justice Marshall emphasized when he rejected the idea that he should be replaced by another black justice. “There’s no difference between a white snake and a black snake,” he said. “They’ll both bite.” (Justice Marshall’s seat was filled by Justice Clarence Thomas.)

There are a great many underrepresented demographics in America, and if one is a slave to intersectionality, the number might reach 300,000,000, since each of us is our own unique combination of racial, sexual, class attributes. If we’re going to each get a justice who “looks like us,” whether literally or metaphorically, they’re gonna need a really big bench. Continue reading

Short Take: It’s Not About Your “Humanity”

At the Bulwark, Walter Olson offers an interesting post about the trio of cases argued before the Supreme Court this week, characterizing the issue as the “surprise plain meaning” approach to textualism.

The argument is this: If an employer would never fire Ginger for taking a romantic interest in men, but does fire George when it learns that he does so, it has treated him differently because of his sex. Similar arguments can reach the case of an employee’s gender identity.

You might call the phenomenon “surprise plain meaning”—a meaning of the text that the drafters did not intend or notice at the time. Every law student learns about this early on, as with the question of whether a “No Vehicles in the Park” rule covers bicycles, skateboards, or a statue of the general in his Jeep.

And, indeed, every law student learns, or at least used to learn, about the blunt weapon of words, meant to convey one meaning, one purpose, but resulting in unintended applications despite the non-lawyer’s retort, “but you know that’s not what they meant.” That’s why writing law is hard, and why recognizing how words often encompass things not intended, but unavoidable, when they’re later used to apply in way that are entirely within the word’s ambit while being completely beyond the law’s intended reach. It happens all the time. Continue reading

Any Touch Will Do

It was malarkey, total nonsense, I was told in response to the complaint by some young men that they would no longer take the “risk” of approaching a young woman in real life. The men feared that they could step on a mine at any moment which would blow up by screams of “rape.” The women, together with their male allies who flit about their feet, responded with deeply simplistic snark that if they didn’t want to be called “rapist,” don’t be a rapist.

Was Jamie Griffiths a rapist?

“The complainant’s evidence was very clear, logical and without embellishment,” a magistrate told the young man. “We can think of no motivation for you to touch the victim other than sexual. Had she not taken evasive action the assault was likely to have been even more serious.”

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