In Millard v. Rankin, an as-applied challenge, Colorado Senior District Judge Richard Matsch rejected the pretty ribbons the legislature wrapped around the Sex Offender Registry Act. Applying the “intents-effects” test to the law, the court held that it was unconstitutional under the Eighth Amendment.

In Smith v. Doe, 538 U.S. 84 (2003), the Supreme Court employed an “intent-effects” analytical framework to determine whether Alaska’s sex offender registration statute was punitive. The Court stated that it would first consider whether the legislative intent was to impose punishment; if so, “that ends the inquiry.” Id. at 92. If the intent was to enact a statutory scheme that is civil and non-punitive, however, the Court stated that it must further examine whether the statutory scheme is so punitive in purpose or effect as to negate the legislative intention to deem it “civil.” Id. In making the “effects” analysis, the Court considered five of the seven factors employed in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963):

The factors most relevant to our analysis are whether, in its necessary operation, the regulatory scheme: [1] has been regarded in our history and traditions as a punishment; [2] imposes an affirmative disability or restraint; [3] promotes the traditional aims of punishment; [4] has a rational connection to a nonpunitive purpose; or [5] is excessive with respect to this purpose.

Smith v. Doe, 538 U.S. at 97. The two additional factors considered in Kennedy were [6] whether the statute’s requirements come into play only on a finding of scienter; and [7] whether the behavior to which it applies is already a crime.

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Last week, I wrote about the statue of Chief Justice John Marshall. I provided some history about Chief Justice Marshall, noting his association with slavery.[i] That resulted in a number of interesting comments that expanded the discussion to, among other things, statues of confederate soldiers. I write next about those statues.

Imagine, if you will, a tin soldier in confederate garb. I am taking about an object a history buff might use in his or her basement to reenact a battle during the civil war. The little figure might be someone like Confederate General Thomas “Stonewall” Jackson.[ii]

This tiny tin soldier in the hands of a history buff would not be offensive to most people, whether they be white or black. But now let’s expand the thought a bit. Assume the tin soldier has been blown up and plunked down in front of a courthouse where blacks and whites go to get justice (whatever the hell “justice” means). Does that change things? Continue reading →

What are friends for? Shooting, when the cop brain goes into survival mode.

Andy Grimm, who knows Shaw, said he does not want the officer to be fired, the paper reported.

“I know Jake,” he said. “I like Jake.”

And Deputy Jake Shaw likes Andy Grimm too.

“We know the deputy. This is a small town of 5,000 people … We know the deputies. We work with them on a daily basis. We have an excellent relationship with them,” he said.

So a big hug will fix everything? Not the bullet holes in Andy Grimm’s body. Continue reading →

I still remember when I finally said, “screw it.” It was during the comments* to this post about Revenge Porn Princess Mary Anne Franks calling Techdirt’s Mike Masnick a liar. As I read my responses again, I cringed. Back then, I still tried to be relatively inoffensive to the delicate sensibilities of commenters. But then I realized it wasn’t possible.

Unlike some folks, it made no sense to me to deliberately provoke the wrath of the insipid. It came anyway, as demonstrated by Franks’ immediate resort to name-calling against anyone who pointed out that she was intellectually bankrupt. But this wasn’t some male against female thing. Indeed, my head remains in the old days of equality, where women and men were equal, meaning that both could be brilliant or idiots, as deserved, and if a woman was full of shit, you said so. Women were tougher then.

But this was the post that ended it for me. It’s not that I chose to use words designed to provoke unnecessarily, but that there was no avoiding the fact that anything shy of being an obsequious sycophantic ally to the cause would make me a shitlord regardless of what I had to say. And there was no way I was going to temper thoughts to align with the girls’ feelings. So, screw it.

A Bloomberg Views writer, Noah Smith, who apparently has deep cred among the -isms, wrote a series of twits which reflects his partial epiphany. Continue reading →

On this, Laura Dunn is absolutely right. Dunn is a lawyer and executive director of SurvJustice, a “survivor legal advocacy group.” Her job as ED isn’t to be fair, or even right, but to do everything in her power to further the goals of the organization. And so she tried:

Dunn criticized other FIRE proposals, such as the “clearly stated presumption of innocence.”

“A presumption of innocence advantages the accused only, and Title IX requires equity,” Dunn wrote in an email. “No presumption should be made either way, and schools should engage in an inquisitorial process to determine the truth rather than artificially favor the accused going into it.”

Dunn also wrote that she “100 percent” disagreed with a student’s right to have an attorney present.

“This is not court,” she wrote.

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Ken White called in on the twitters.

Granted, it took a few days before the answer appeared, but the winner is . . . the Daily Caller.

Arrested Utah Nurse Had It Coming

It would be hard to come up with a worse headline, but that’s on whoever dreamed up this clickbait. But the post itself? That falls on the shoulders of the author. Continue reading →

Who would have guessed that an op-ed by University of Pennsylvania law professor Amy Wax, with San Diego lawprof Larry Alexander, would have raised such a ruckus by extolling the virtues of traditional American norms?

[18] Law professors argue colleagues’ ‘bourgeois’ ideal is racist and classist

Guest Column by five Penn Law professors | Notions of ‘bourgeois’ cultural superiority are based on bad history

Guest Column by 54 Penn students & alumni | Statement on Amy Wax and Charlottesville

Guest Column by 33 Penn Law faculty members | Open letter to the University of Pennsylvania community

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In an editorial of breathtaking absurdity, the New York Times blames the otherwise entirely blameworthy Jeff Sessions for police abuse in Chicago.

The wrenching shift in the Justice Department’s approach to criminal justice under President Trump is playing out painfully as Chicago tries to rein in a scandalous police culture that tolerated officers routinely abusing and killing residents, particularly African-Americans and Latinos.

The Attorney General of Illinois, Lisa Madigan, has sued Chicago for a consent decree, putting aside the meaning of the word “consent.”

“In the absence of a committed Justice Department, my office will seek the reforms and support police officers need to implement safe and constitutional police practices,” said Ms. Madigan, a Democrat, who spoke of a “broken trust” between black and Hispanic Chicagoans and their police force.

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Listening to former SNL comedian, now United States Senate comedian, Al Franken read his book, it became clear that any mistake, any misunderstood joke, could end up splashed across social media as if he were just a total, idiotic, screw-up. Some people are in the public eye, and they can’t afford to court malevolent scrutiny.

Trump was that sort of person, whose every move, from dotting eyes to twitting covfefe, would cause howls of outrage. At the New York Times, Farhad Manjoo cried, “leave Trump alone!”

As protesters across the country marched in opposition to neo-Nazis this month, President Trump did something truly shocking on Twitter: He issued a level-headed statement praising the marchers.

“Our great country has been divided for decades,” he wrote on Aug. 19. “Sometimes you need protest in order to heal, & we will heal, & be stronger than ever before!”

But Mr. Trump’s belated attempt at statesmanship was overshadowed by what, for him, has become a frequent problem: He had flubbed his spelling. In some earlier versions of his olive-branch tweet, he had rendered “decades” as “decade” and “heal” as “heel.” The misspellings were up for only minutes before he deleted and corrected his tweets, but he was roundly mocked on Twitter.

While the rest of us were ridiculing the president for his bad spelling, Manjoo wanted us to chill out. Continue reading →

The Daily Kos is still around, much to the pleasure of conservatives, for whom it provides a perfect foil.

And, finally, I naïvely believed that liberals will finally take the threat of people who deny my humanity and call for my death seriously.

Instead, I’ve noticed a growing (and, frankly, confusing) pushback on Antifa from progressives. Suddenly, people who were supposedly on my side are denouncing a group of folks who organize against the people who will boldly march the streets shouting racist and anti-Semitic phrases. Individuals like Cornel West have explicitly said that Antifa activists have saved their lives, yet I see (white) liberals spending more time squabbling about alleged Antifa violence than pondering about what they’re doing to fight fascism and dismantle white supremacy.

There is one dilemma facing progressive calls for action. They can’t grasp that their jargonistic hysteria isn’t the least bit convincing to anyone but them. They argue the point they care passionately about as if to persuade no one who isn’t already desperately on their team, and can’t understand why everyone doesn’t see the world their way. It is, indeed, naive, not to mention unpersuasive, and yet they keep banging their head against the same wall over and over, expecting a different result. You know what that’s the definition of, right? Continue reading →