Following a debate between Judges Kopf and Bennett over the whimsy of discretionary sentencing, the omni-geeky Jake DiMare came up with the idea of the Sentence-O-Matic 1000.

Judge Richard Kopf raised the question of whether the language was so devoid of meaning and guidance as to render § 3553(a) worthless.  Judge Mark Bennett responded “Sentencing requires us to weigh that which cannot be measured,” to which Judge Kopf replied: “Let’s be honest then and declare that sentencing is entirely a matter of discretion…”  If so, this raises the specter of sentencing being so arbitrary and capricious, so captive to any judge’s whim, as to be a total crapshoot.

Jake offered this reaction:

Was there ever a task in the courtroom more ripe for automation?

Jake had a point.Remove the feelz component from the mix and reduce sentencing to cold, hard empiricism.

As a representative of the ignorant masses, I find comfort in the notion that everyone would be given sentences using the same criteria, and never again subjected to the whimsy of some of the judges.

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The cops were looking for a big, bald, black man with a machete, so naturally they beat Tatyana Hargrove instead.

It so easy to understand the confusion. Continue reading →

As Jesse Eisinger portrays Preet Bharara in his upcoming book, “The Chickenshit Club: Why the Justice Department Fails to Prosecute Executives,” he was a show pony who adored the spotlight and went for the low hanging fruit to become a public darling. The biggest notch on Preet’s gun was the former leader of New York’s Assembly, Shelly Silver. Silver was convicted on seven counts of corruption and sentenced to 12 years in prison.

The Second Circuit reversed and remanded.

It’s not that Silver didn’t engage in the conduct as alleged, but that Shelly Silver was the product of a long New York tradition, its roots going back to Boss Tweed, of New York politicians skirting the dirty. As Appellate Squawk explained at the time:

What has Silver done to deserve a murder sentence? You won’t find out from the media, dutifully delivering the prosecution’s press releases. “Bribery,” “kickback,” “extortion,”  “money laundering,” “scheme to defraud the public of honest services.”  You’d think he was some kind of Godfather putting horse’s heads in people’s beds.

Whether white-collar or no-collar, the names of criminal offenses are designed to conjure up horrifying visions vastly out of proportion to what the prosecution actually has to prove.  What could sound more wicked than “Scheme to Defraud the Public of Honest Services”? Visions of public works collapsing because they were built with Mafia cement. Little children going hungry because politicians are stealing their school lunches. But according to Caproni’s Jury instructions, “scheme” means only a plan to accomplish a goal and “defraud” simply means lying. It doesn’t matter if the public didn’t lose any money because of the “scheme.” It’s the idea of being lied to that deprives them of  the “intangible right of honest services.”

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As it happened, I was on the phone with Paul Nungesser’s lawyer, Andrew Miltenberg, when the Columbia Spectator got the story. This was a critical condition of the settlement, that Columbia University be the party to break the news in its own way, but once done, it was anybody’s game. For Columbia, the public relations piece was more important than any other, negotiating every vowel and comma of the statement to be publicly released. This is what they finally agreed upon:

Paul Nungesser and Columbia University have agreed to settle the lawsuit he filed in 2015.

While Paul was a student at Columbia, he was accused of sexual misconduct.  In November 2013, after a diligent and thorough investigation, Paul was found not responsible for any misconduct.  Columbia University stands by that finding.

In 2015, Paul graduated from Columbia in good standing as a distinguished John Jay Scholar.  John Jay Scholars, like Paul, are recognized for their remarkable academic and personal achievements, dynamism, intellectual curiosity, and original thinking.  Paul is currently enrolled at an internationally recognized film school and has launched a career as a filmmaker.

Columbia recognizes that after the conclusion of the investigation, Paul’s remaining time at Columbia became very difficult for him and not what Columbia would want any of its students to experience.  Columbia will continue to review and update its policies toward ensuring that every student – accuser and accused, including those like Paul who are found not responsible – is treated respectfully and as a full member of the Columbia community.

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Senior Nebraska District Judge Richard Kopf deconstructed an opinion by Southern District of West Virginia Judge Joseph Goodwin rejecting a plea agreement.

Greatly condensed and summarized, the judge recounted: (1) Walker’s stunning criminal history (although I think it likely because of the age of many of the prior convictions, and the maximum score limitation for certain relatively minor crimes, that Walker’s criminal history score was IV); (2) the fact that Walker warned his customers that other customers of his had overdosed; (3) the fact that the use of heroin and other opiates had risen to epidemic levels in West Virginia with the concomitant reality of a mounting death toll; (4) the fact that federal judges are not overworked so plea bargains are not necessary for the sake of judges; (5) that there is an inverse relationship between the increased number of federal prosecutors and each individual prosecutor’s caseload, thus suggesting that federal prosecutors do not need to plea bargain to handle their docket; (6) that the resolution of criminal charges by plea bargaining has replaced resolution by jury trial and that criminal jury trials in West Virginia (and throughout the nation) are few and far between; and (7) that jury trials provide an important public educational function.

Much of Judge Goodwin’s rationale deals with the quirks of the specific case, meaning that he just really hated the plea in this instance and thought it inappropriate. But the last two points are different. They are systemic issues, and as such, extend beyond the one plea agreement at issue to the broader question of whether pleas should be permitted at all, and who the court should be looking at when deciding whether to approve an agreement.

The first point is one often raised, that guilty pleas have replaced jury trials as the primary means of resolving indictments. This issue has been beaten to death, whether as the trial tax or the plea discount. Continue reading →

At Volokh Conspiracy, there has been a series of posts ripping to shreds a book about libertarianism by historian Nancy MacLean, Democracy in Chains: The Deep History of the Radical Right’s Stealth Plan for America.

As Ilya Somin explains:

In her badly flawed book Democracy in Chains: The Deep History of the Radical Right’s Stealth Plan for America, historian Nancy MacLean gets many, many things wrong about the history and purposes of libertarianism. Jonathan Adler, David Bernstein (see also here), Phil Magness (also here), Russell Roberts, and Michael Munger, and others, have highlighted some of her most important fallacies and distortions.

Rather than address the accusation that her book was substantively inaccurate, MacLean took to Facebook to attack the motives of her critics and call for social justice warriors to game the system in favor of the cause. Continue reading →

For a brief and shining moment, I thought perhaps the New York Times had paid attention to my pleas and decided not to pursue its quest to rid the nation of toxic masculinity. Such hubris.

This is the first of a weekly column.

Apparently, Roxane Gay didn’t cut the mustard, probably because she was black, intersectional and kinda stupid, so the Times gave a weekly column to Lindy West instead.

A few weeks back, some old friends invited me to appear on their podcast. They are two stand-up comedians in their mid-30s — I know, the podcast comes as a shock — and their show is a kind of micro focus group, investigating how to be better straight white dudes by picking the brains of guests who don’t fit that description.

They want to know what people like me, for instance (fat, female, feminist) need from people like them (plausible extras in a Buffalo Wild Wings commercial). It’s sweet and, I think, encouraging.

See? I wasn’t being mean in the title. West describes herself as fat, and who am I to deny her lived experience? Continue reading →

Judge Joseph R. Goodwin is a highly regarded and long serving United States District Judge in the Southern District of West Virginia.[i] He has written an opinion[ii] rejecting a plea agreement that deserves to be read by federal prosecutors and federal CDLs alike, no matter where they practice. It sets forth a thoughtful schema for rejecting regular plea agreements, not just Rule 11(c)(1)(C) plea agreements. With sincere respect, the good judge is quite wrong.

Charles Walker is a very small-time drug dealer. He was charged in a six count indictment. Four counts related to the distribution of heroin. Two counts related to the distribution of fentanyl and one count charged that Walker was a felon in possession of a firearm.

There were seven controlled buys resulting in small quantities of drugs. According to Judge Goodwin, Walker sold a total of 0.729 grams of heroin, 0.071 grams of fentanyl, and 0.17 grams of a furanyl fentanyl during these buys. After these controlled buys, an arrest warrant and a search warrant were executed. According to the judge, the agents searched the defendant incident to arrest and discovered an additional 9.7 grams of marijuana, 2.081 grams of powder cocaine, and 0.845 grams of a heroin and fentanyl mixture.[iii]

The agents then executed a search warrant and recovered a set of digital scales, one bag of a white substance, one box with a suspected methamphetamine pipe, one bag of suspected marijuana, five boxes of 45 caliber ammunition, two pistols, miscellaneous medical items containing the defendant’s name, and a cell phone used during the controlled buys. Continue reading →

When a defendant walks on criminal charges following a horrendous crime or tragedy, the outrage mob heads to the streets or social media crying foul play and the lack of fairness in the courts. This anger, seething in the Smoky Mountains, conceals a troubling revelation. Someone doctored a prosecution agreement giving Sevier County DA’s the authority to prosecute crimes in federal parks, and no one’s talking about it.

Aggravated arson charges against the boys, ages 17 and 15, were dropped Friday in part because 4th Judicial District Attorney General Jimmy Dunn did not have authority under a 1997 agreement between the state and federal government to prosecute crimes committed in the Great Smoky Mountains National Park.

The park was left out of the 1997 agreement, which granted both state and federal authorities the power to prosecute crimes committed on federal lands within Tennessee. That meant only federal authorities could level charges for crimes committed in the park. That omission was discovered during Dunn’s attempt to prosecute the boys.

 National parks are federal land. That means absent an agreement like the one former Governor Don Sundquist reached with the Feds giving local law enforcement power to prosecute crimes in national parks, the US Attorney’s office is left with the job. Continue reading →

David Brooks has caught no end of flak for what may be one of the most idiot paragraphs to ever appear in the New York Times*:

Recently I took a friend with only a high school degree to lunch. Insensitively, I led her into a gourmet sandwich shop. Suddenly I saw her face freeze up as she was confronted with sandwiches named “Padrino” and “Pomodoro” and ingredients like soppressata, capicollo and a striata baguette. I quickly asked her if she wanted to go somewhere else and she anxiously nodded yes and we ate Mexican.

So mindnumbingly bad was this paragraph that it immediately spawned ridicule. This was one of my personal favs:

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