Long before the pandemic, when the word “corona” was mostly associated with a beverage with a lime, I made the point that sentences had grown outrageously long, beyond any rational justification. I blame Nelly Rockefeller for starting this mess, his idea being that if we make sentences irrationally long, rational people will stop committing drug crimes to avoid them.

This idea failed because Nelly miscalculated the causal connection between deciding to commit a crime and reason. The more significant factor was the likelihood of being arrested, not the length of sentence, and so the Rockefeller drug laws failed to produce the desired results. And unable to let go of the notion, sentences were made longer and longer, as if one more decade would do the trick because the first few weren’t Draconian enough. Continue reading →

Dear SJ Readers:

In these trying, uncertain times, we at Simple Justice want you to know we will be there for you. And since in many areas lawyers are considered “essential services,” after a few discussions with my mean-ass editor, I have great news to offer you. We’re hitting the road to help clients and fellow lawyers in need.

We’re retrofitting the old RV to become the Official SJ Mobile World Headquarters©. If you’ve got a criminal defense problem, just call us at our handy-dandy hotline, 1-888-GET-BENT. We’ll take your name, address, and phone number down and schedule you for a consultation when we get to your area or good and ready, whichever comes first. Continue reading →

Michael Curtis was the valedictorian of his class at University of the South in 1964. He received his J.D. with honors from the University of North Carolina in 1969. He spent the last 30 teaching constitutional law at Wake Forest Law School, spending some of his off-hours doing pro bono representation for the North Caroline Civil Liberties Union. The Judge Donald Smith Professor of Constitutional and Public Law has been around a while.

Wake Forest University Law School no longer deserves him.

Adjusting to the moment, he was teaching the First Amendment, which of necessity required the teaching of Brandenburg v. Ohio, the “fighting words” case. While it can’t be said with certainty, one would expect that he taught this case many times, every time he taught Con Law. The case is a big deal, and it would be shocking if he didn’t. In the decision, both in the body of the opinion and in footnote 1, is a word, a word that most of us find totally reprehensible, but a word that’s there on the page, that’s critical to the decision, that doesn’t disappear because we wish it would. But it’s just a word. Continue reading →

While last week’s Trump, who always took the pandemic very seriously unlike the Trump of the week before, morphed into this week’s Trump, for whom the cure is worse than the disease as he watched the Dow and his re-election prospects tank, the Senate has been in a fight to the death over its multi-trillion dollar stimulus package. Is it a “slush fund” to corporations, as Chuck Schumer’s talking point goes, or is it the opportunity for Dems to extort a progressive reinvention of business?

What’s most remarkable about this Senate naked mud-wrestling is that coverage has been replete with adjectives and active verbs, but almost entirely devoid of substantive details. Unsurprisingly, the New York Times seizes upon this to blame the Republicans. Continue reading →

In the midst of a pandemic, the Supreme Court, in a 6-3 decision written by Justice Elena Kagan, solved the age-old law school question of how best to frame the insanity defense. The M’Naghten rule? The irresistible impulse test? The Durham rule? Forget about it. Kansas don’t need no stinkin’ rule, and in Kahler v. Kansas, the Supreme Court says that’s just fine.

This case is about Kansas’s treatment of a criminal defendant’s insanity claim. In Kansas, a defendant can invoke mental illness to show that he lacked the requisite mens rea (intent) for a crime. He can also raise mental illness after conviction to justify either a reduced term of  imprisonment or commitment to a mental health facility. But Kansas, unlike many States, will not wholly exonerate a defendant on the ground that his illness prevented him from recognizing his criminal act as morally wrong. The issue here is whether the Constitution’s Due Process Clause forces Kansas to do so—otherwise said, whether that Clause compels the acquittal of any defendant who, because of mental illness, could not tell right from wrong when committing his crime. We hold that the Clause imposes no such requirement.

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There’s no social distance in a courtroom, even if it’s not nearly as much of an incubator as a jail or prison. But far more importantly, the continuation of routine criminal proceedings, mostly a waste of time under the best of circumstances, is beyond a pointless risk under current circumstances. Indeed, the administrative judge ordered hearings be limited to jail cases, because requiring bail cases to show up in court, which often includes getting there and back on mass transit, to be told when the next time they have to show up isn’t worth any risk of illness, no less death.

But Judge Pinky Carr will be there.

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I watched Outbreak. I watched Contagion. Still, I don’t feel qualified to speak to the significance of the pandemic. I hear what far more knowledgeable people are saying, from Dr. Anthony Fauci to a plethora of docs in the trenches, and I accept that their studies were deeper than the two movies I watched.

Yet, there is a niggling question that lingers in the back of my head. If this pandemic began sometimes between last December and January, it has a death rate of 1% and its growth is exponential rather than linear, why have there not been more deaths worldwide? As of this moment, the number of deaths is 14,756.* That’s nothing to sneeze at and every death matters, but it’s not in the hundreds of thousands, the millions. Continue reading →

When schools decided, essentially overnight, to close up their physical shop and move online, it created something of a panic. Few knew how to make this happen at all, and almost no one was prepared to do it. Profs struggled to find their zoom-legs while teaching a course online, and students struggled to figure out how they were going to do it. It wasn’t optimum for anyone, but the alternative was to shut down completely for a semester, which raises many other troubling issues, and so they made the best of bad circumstances.

We’re now scrambling to transition everyone to remote learning on short notice, addressing each obstacle that arises as a problem to be fixed. Yes, taken individually, each student who doesn’t have a laptop or WiFi access off campus, who didn’t bring their textbooks home when they left for spring break, or whose survival depends on a paycheck now lost can be helped. Online learning and conferencing tools may groan under heavy usage, but we can hope they won’t break. We can also hope faculty and staff won’t break under the huge additional workload entailed in moving courses online that weren’t designed to be taught that way: a translation that poses particular challenges for science labs and practical classes in everything from physical therapy and nursing skills to dance and music performance.

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There were plenty of conspiracy theorists before, and being cooped up on their own hasn’t made them any less paranoid. But that doesn’t make them wrong, and the Department of Justice isn’t helping the situation.

The Justice Department has quietly asked Congress for the ability to ask chief judges to detain people indefinitely without trial during emergencies — part of a push for new powers that comes as the coronavirus spreads through the United States.

Documents reviewed by POLITICO detail the department’s requests to lawmakers on a host of topics, including the statute of limitations, asylum and the way court hearings are conducted. POLITICO also reviewed and previously reported on documents seeking the authority to extend deadlines on merger reviews and prosecutions.

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Scott asked that I give you my point of view of how the pandemic has impacted the federal court in Nebraska. I will be short and only as transparent as I feel comfortable. Some things I am holding very close to my vest. And, of course, this post is personal and cannot be taken as an overview of the entire federal judiciary or my particular court.

First, our court is essentially shut down with most everyone working from home. My CRD who is a young woman, with no children, has volunteered to staff the Lincoln Clerk’s office every day. (She’s the best.) She will have one additional person help her each day with that second person serving on a rotating basis. A similar rotation system, I believe, is operating in Omaha. CM/ECF (electronic filing) is up and running as usual. Continue reading →