Fresh back from trademarking the Sentence-O-Matic 1000, Jake DiMare proudly advised me that this idea wasn’t dead yet, as demonstrated by Judge Richard Kopf’s continued push toward sentencing empiricism.  Oh, that Jake. Oh, that judge.

While yanking Attorney General Eric Holder’s chain for wanting his cake and eating it too, by decrying the use of race as a predictor of recidivism while prisons are filled to the brim with men of color put there on Holder’s watch for living the lifestyle of poor black rather than Attorney General (or president) elite black, the judge proffers an alternative list of factors as predictors.  Notably, race is crossed off the list.

Let’s face it friends, “race” is low-hanging fruit. It is too easy to attack, although the social science data on race when used as a predictive metric for sentencing is not really about genetics (“race”) as a causative factor in crime. It is about being correlated with crime, and there is a huge difference between the two (causation and correlation). But the word “race” is too freighted with the notion of “discrimination,” so let’s just agree for the sake of argument that empirical data on “race” will never be used at sentencing.

And indeed, race is certainly a flash point, despite its utility in what passes as empiricism these days.  So here’s the balance of the list, taken from James C. Oleson’s article on data-driven sentencing. Continue reading →

A black man did something in Ferguson, Missouri, that so many others were incapable of doing.  Someone took a photo of it so we won’t forget.

The man stood there in a police uniform. The normal style, without camouflage, body armor and a helmet and facemask. He carried no heavy armaments. Instead, he held a photograph of a young man, Michael Brown.  The man is Missouri state police Captain Ronald Johnson.  Continue reading →

Subject matter is the sort of thing that doesn’t make it onto the plate of non-lawyers, who properly assume that if they have an argument in support of their own defense, a court will hear and consider it.  This makes perfect sense, so naturally the government has come up with a way to screw with it.

Via Eugene Volokh at WaPo Conspiracy, the 9th Circuit’s opinion in United States v. Szabo:

William J. Szabo was prosecuted for violating a Veterans Administration regulation banning “disturbances” at VA facilities. The panel unanimously found that the regulation was constitutional as applied to Szabo’s speech, “because his conduct involved a ‘true threat’ of violence.” But Szabo also claimed that the speech restriction was unconstitutionally overbroad — something that is generally allowed in First Amendment cases.

Yet the majority held that Szabo couldn’t bring this challenge, because a federal statute expressly provided that such regulations could only be challenged in the U.S. Court of Appeals for the Federal Circuit. Szabo was arguing that the regulation was unconstitutionally overbroad before the federal district court that tried him, and then before the Ninth Circuit; that, the court held, was impermissible. “‘[So long as] Congress provides for a ‘special statutory review proceeding’ in one specific court, challenges to the administrative action must take place in the designated forum.’”

Continue reading →

The suicide of Robin Williams struck this country hard.  First, because he was so beloved. Second, that his suffering from depression, to the extent that he would take his own live, was unimaginable.  The latter reason isn’t a reflection on Robin Williams, but on us.  When it comes to mental illness, things like depression, anxiety, post-traumatic stress disorder and bi-polar disorder, we have maintained a national stupidity bordering on disgrace.

Robin Williams suffered from his own private demons.  That we don’t get it is because we suffer from ignorance.  And to be frank, it’s outrageous and unacceptable that we can perpetuate this national disgrace.  It’s time to grow up.

We persist in this inexplicable image of people who suffer from mental illness balled up in a corner, shaking, maybe drooling, with wild unkempt hair and crazy eyes, until they finally drop dead.  We do this because it gives us a visual image of how those people look, so we can distinguish them from the rest of us who aren’t crazy.

It comforts us to know that we’re not drooling, and our hair is combed, so that we can believe we’re not crazy.  We grasp as tightly as possible to this image born of ignorance so we can sleep at night. We do a lot of things for that reason. Continue reading →

Missouri’s nickname is the “Show Me” state, an ironic message to the police in Ferguson. Oh yes, they are showing who they are, in vivid combat colors.

They are showing plenty of force, but they are not showing the pieces of Michael Brown’s killing to show they haven’t brought this anger on themselves.  Continue reading →

For those who have waded through posts at SJ recently, you may have noticed a bit of a secondary theme developing, nipping the edges of police and prosecutors violating the laws that constrain them with abandon.

Some are gross violations, say murdering a guy for no particularly good reason except that it happens in the usual course, which tend to catch people’s attention.  But these are rare, despite the fact that they make the headlines and give the misimpression that it happens constantly.  The conduct may happen constantly, like a chokehold, for instance, but the outcome, fortunately, does not.

The focus here, however, is on a very different type of violation of the law.  The government, and those individuals who act on its behalf, has no rights.  Yes, judges and prosecutors write about the rights of the government, but they’re screwing up the words. The government has authority, and that authority is derived from laws that grant the government authority.  The exercise of that authority is both granted and restrained by the law. They have neither more nor less than the law allows. Continue reading →

Judges love dogs.  Not cats, and not all dogs. They love drug-sniffing dogs. They love them so much that despite decades of research and the many cases that have conclusively established how dogs are unreliable and manipulated with such ease and facility by their handlers, they still conclude that the rights of humans are secondary to the sniff of a dog.

Now that’s love.

But as cute, cuddly and effective as dogs may be in providing an essentially incontestable justification for the evisceration of constitutional rights, the dogs aren’t to blame. They’re just dogs, doing what dogs do, pleasing their best friends and the hand that feeds them.  They may be unreliable measures of probable cause, but they are reliable tools. Cute, cuddly, reliable tools. Continue reading →

At Hercules and the Umpire, Judge Richard Kopf takes Attorney General Holder to task for his speech before the National Association of Criminal Defense Lawyers.

“By basing sentencing decisions on static factors and immutable characteristics—like the defendant’s education level, socioeconomic background, or neighborhood—they may exacerbate unwarranted and unjust disparities that are already far too common in our criminal justice system and in our society,” Mr. Holder told the defense lawyers. Criminal sentences, he said, “should not be based on unchangeable factors that a person cannot control, or on the possibility of a future crime that has not taken place.”

Judge Kopf sees the AG as sticking his head in the sand, that he is “naïve and manifestly wrong.”

Indeed, a former policy analyst for the federal courts wrote three years ago that:

Evidence-based sentencing is based upon social science. Criminological meta-analysis has identified fifteen key variables that are significantly related to recidivism: 1) criminal companions, (2) antisocial personality, (3) adult criminal history, (4) race, (5) pre-adult antisocial behavior, (6) family rearing practices, (7) social achievement, (8) interpersonal conflict, (9) current age, (10) substance abuse, (11) intellectual functioning, (12) family criminality, (13) gender, (14) socio-economic status of origin, and (15) personal distress. If those variables can be used in sentencing, it may be possible to safeguard public safety while reducing the financial and social costs associated with mass incarceration.

J.C. Oleson, Risk Assessment at Sentencing, ASU Law Journal (June 20, 2011).

Continue reading →

There may be a good explanation for why Ferguson, Missouri, a mostly black working-class suburb of St. Louis, had a white mayor and police force. There might be a good explanation for why an unarmed, 18-year-old high school graduate, Michael Brown, was shot down in the street.  But if so, nobody has said so yet.  The only thing for which there is a good explanation is why Brown won’t be starting technical school today. That’s because he’s dead.

From the New York Times:

The fatal shooting of an unarmed black teenager Saturday by a police officer in a St. Louis suburb came after a struggle for the officer’s gun, police officials said Sunday, in an explanation that met with outrage and skepticism in the largely African-American community.

The cop isn’t named.  The story makes little sense. Continue reading →

Sen. Patrick Leahy proposed a tepid solution to the fact that we have a secret court in the United States of America that approves searches and seizures, despite also having a Constitution that says we can’t have secret courts, and we must have due process.  But hey, that’s such old news as to be unworthy of mention.

Nobody gets too hot and bothered by the FISA Court anymore, as absurd and outrageous an idea as it was when it was first created, or first disclosed,  Once something flagrantly wrong has been around for a while, it just becomes another piece of the landscape of America. You know, amber waves of grain and such.

But we learned, h/t Snowden, that the government had this tendency to be less than forthright to the court when securing authorization to do bad, bad stuff.   Rather than call into question the very existence of such a secret court in a constitutional democracy, someone came up with the compromise idea of having an adversary to the government, for those rare occasions when the government presented “a novel or significant interpretation of the law” that might benefit from, say, a point of view that wasn’t the government’s.

Judge John Bates, who has had some good moments on the FISA Court, has taken it upon himself to be the spokesman for the judiciary by informing Sen. Leahy that creating the post of advocate against the government (which, as we all know, speaks for all of us, the People’s lawyer), is a bad idea.  Judge Bates felt so strongly that he sent Patrick a letter explaining how introducing an adversary into the mix of a court system conceived with, and designed for, adversarial challenges, could be a disaster: Continue reading →