This blog post is based on a sentencing over which I presided on Tuesday, November 28, 2017. It was a “Welcome Back, Kotter” sentencing in the sense that I had already sentenced the African-American offender in 2000 to a 60-month mandatory minimum in a crack case. He did not do well on supervised release, violating less than 3 weeks after starting his term. The next year, I revoked his TSR and sent him back to prison for 24 months.

On November 28, 2017, he was before me on possession with intent to distribute methamphetamine. He had 24 criminal history points and 29 unscored convictions, including an assault on a police officer (in 1994) resulting in the officer being injured and unable to work for 8 months. The officer testified live at the sentencing.

The U.S. Attorney’s Office could have filed two § 851 enhancements—requiring a mandatory life sentence. They filed neither. The AUSA filed a powerful sentencing memorandum focusing on the offender’s terrible criminal history, failure to pay over $100,000 in back child support, history of noncompliance, and extraordinarily high risk of recidivism. The AUSA asked for both an upward departure and upward variance. The quantity of drugs was small, so the offender’s guideline range was only 130-162 months with a maximum of life. Continue reading →

Stroll around the lovely campus of Stanford University and one name surrounds you. Junipero Serra.

Two dorms; an academic building; a street (Serra Mall) that fronts Stanford’s historic Main Quad and is the university’s official address; and a major road running through the 8,000-acre campus are all named after Junipero Serra, the 18th century Spanish-born Franciscan friar who founded the first nine of the 21 California missions.

Now Native American and other campus activists are pressuring Stanford to erase from the campus all traces of the padre. Serra, the activists say, brutalized Indians at the missions, covered for Spanish colonization and squelched indigenous culture by converting the Indians to Catholicism.

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Weed? Many believe it’s just not a bad thing in general, but most believe that it has significant medicinal uses. Whether you believe legalizing recreational use of marijuana is a good idea, few would argue that it shouldn’t be available for medical users, despite Schedule I and Jeff Sessions’ ability to recite the entire script of Reefer Madness.

But should medical users be denied the right to vote? Oh wait, wrong right.

Hawaii is one of 29 states that allow medical use of marijuana, but it is the only state that requires registration of all firearms. If you are familiar with the criteria that bar people from owning guns under federal law, you can probably surmise what the conjunction of these two facts means for patients who use cannabis as a medicine, which Hawaii allows them to do only if they register with the state. Some of them recently received a letter from Honolulu Police Chief Susan Ballard, instructing them to turn in their guns.

“Your medical marijuana use disqualifies you from ownership of firearms and ammunition,” Ballard says . . ..

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If there is anyone Stanford lawprof Michelle Dauber hates more than Judge Aaron Persky, it’s former Stanford swimmer convicted sex offender Brock Turner. Turner is appealing his conviction, as is his right.

Brock Turner, the former Stanford University student and champion swimmer who was found guilty in March 2016 of sexually assaulting an unconscious woman on campus, is appealing his conviction.

A 172-page brief filed on Friday by Mr. Turner’s lawyer, Eric Multhaup, said Mr. Turner did not get a fair trial for several reasons, including the exclusion of testimony by character witnesses who spoke of his swimming career and his performance in school and attested to his honesty, the appeal said.

That’s a rather long brief, making the word “brief” seem somewhat incongruous. Whether it’s got merit or not has yet to be seen. The issues raised go to the conviction, whether Turner was denied due process and prevented from offering his defense. An appellate court will ultimately make a decision about it, as that’s the way appeals work. Continue reading →

When all you have is a hammer, and you’re Facebook, what could possibly go wrong?

This is software to save lives. Facebook’s new “proactive detection” artificial intelligence technology will scan all posts for patterns of suicidal thoughts, and when necessary send mental health resources to the user at risk or their friends, or contact local first-responders. By using AI to flag worrisome posts to human moderators instead of waiting for user reports, Facebook can decrease how long it takes to send help.

By “send help,” Facebook means call the cops. Facebook’s hammer is artificial intelligence. The cops’ hammer is deadly weapons. The option of sending “mental health resources” is easier said than done, as there aren’t any for the most part, and “local first-responders” tend not to be the local suicide hotline roadshow. They tend to be the cops.

But all of this raises the question: how will Facebook’s AI know you, and know you well enough, to detect “patterns of suicidal thoughts”? If your friends, your family, don’t see issues, is Facebook up to the task? Continue reading →

There is a strong policy argument against ICE, Immigration and Customs Enforcement, arresting people at a courthouse. It creates an extremely strong disincentive for defendants, witnesses, complainants, to show up. While it may not be a big deal to appear as required for jumping a turnstyle, if the consequence is getting held in ICE custody for a year before being deported to a country you left when you were three months old, the incentives for appearing are very different.

But this is a policy concern, even if it eludes a great many people. It is not the law. Contrary to popular belief, ICE gets to arrest people wherever they are, courthouses included. This seemed to elude lawyers in Brooklyn.

Nearly 100 defense attorneys staged an impromptu protest ouside a Brooklyn courthouse Tuesday after a lawyer’s client was arrested by federal authorities on an immigration charge.

When Rebecca Kavanagh walled [sic] into Judge Rosemarie Montalbano’s courtroom, she was warned to speak to her client immediately because U.S. Immigration and Customs Enforcement agents were present and prepared to detain him. Continue reading →

No decent person will shed a tear for a guy who is guilty of sexually molesting or raping a woman. When the man admits he did it, whether it happened yesterday or 20 years ago, we can take comfort in knowing the allegation is true, provided he didn’t fudge the confession because his publicist told him that was the smart way to cop a plea.

But the wave of feelz has a way of catching decent guys who should know better. At the Atlantic, Conor Friedersdorf caught the wave.

A scholarly article published in 2012 by Ian Ayres and Cait Unkovic defined the challenge: Many are reluctant to be the first person to accuse someone of sexual harassment, in part because the accused “routinely responds by trying to impeach the credibility of the accuser.” Yet first accusations often lead to more accusers coming forward. That’s a dynamic that tends to protect recidivist harassers.

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Harvard’s endowment is $37.1 billion. And it only returned a very disappointing 8.1% in 2017. Whether that’s because Harvard’s investment arm is “lazy,” “fat,” and “stupid,” as characterized by McKinsey, or the constraints of social justice-guided investment choices. But whatever. Their money. Their investments. But Faust’s whining about Harvard’s billions?

HMC’s trailing performance has worried University President Drew G. Faust, who last year warned the low returns would “constrain” budgets across the University for years to come. That rang true last year when the Graduate of Arts and Sciences, citing HMC’s low returns, cut the number of graduate students it accepts by 4.4 percent. Then, graduate students  and  professors learned they would receive smaller pay increases that were outpaced by the rate of inflation. Harvard also faces a number of financial challenges amid potential decreases in federal research funding.

Who cares? You should, because Drew Faust took her problems to Congress when she feared that Harvard’s endowment didn’t merely reflect its really mediocre investment skillz, but could be subject to (dare I say it) tax. Continue reading →

One of the components of the selling of “believe the women” has been the effort to turn excuses for the same failures that apply in every accusation into virtues when it comes to rape and sexual assault accusations. This is nothing new. Nor is there anything new about the use of false statistics to perpetuate the claim that false rape accusations rarely occur.

And the New York Times, for maybe the thousandth time, repeats the same nonsense it’s been relying on for years. But what could have possibly compelled them to turn to Shaila Dewan to write this “news analysis” listicle?

There are all sorts of reasons women who report sexual misconduct, from unwanted advances by their bosses to groping or forced sex acts, are not believed, and with a steady drumbeat of new reports making headlines, the country is hearing a lot of them.

But some of the most commonly raised causes for doubt, like a long delay in reporting or a foggy recall of events, are the very hallmarks that experts say they would expect to see after a sexual assault.

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The acquittal of Jose Ines Garcia Zarate for the murder of Kate Steinle will be one of those moments that either proves why Trump’s pandering to xenophobia was absolutely right, or the right side of the outrage machine should take a deep breath and be proud of their nation. If Ted Cruz, who should have learned something at Harvard Law School, gets his way, it will be the former. If you read this, maybe the latter will happen.

The defense in the case, adeptly and properly presented by public defender Matt Gonzalez, is explained exceptionally well by Sarah Rumpf at Redstate. Notably, the Steinle murder began with outrage, before she became a prop to the Trump campaign.

This seems to be a classic example of prosecutorial overreach. They pushed hard for a first degree murder verdict, which requires not only proving that the defendant killed the victim, but that he did it intentionally, and that it was premeditated (planned or thought out beforehand).

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