It’s unclear why Linda Greenhouse chose to give a constitutional quiz, but it serves well to remind us why the police owe us nothing.  Often, people will remark disparagingly why cop cars bear the marketing pitch, “To Protect And Serve,” and yet the police appear entitled to do neither.  While nothing precludes them from fulfilling these words, nothing requires them to do so either.  Most people find that shocking.

It stems from a Supreme Court decision from 1989, DeShaney v. Winnebago County Department of Social Services.  By a 6-3 decision, the opinion, written by Chief Justice William Rehnquist, took the most niggardly view of the government’s obligation to the people possible.

But nothing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors. The Clause is phrased as a limitation on the State’s power to act, not as a guarantee of certain minimal levels of safety and security. It forbids the State itself to deprive individuals of life, liberty, or property without “due process of law,” but its language cannot fairly be extended to impose an affirmative obligation on the State to ensure that those interests do not come to harm through other means.

In DeShaney, a four-year-old boy was left comatose and brain damaged after he was beaten by his father.  The Winnebago County Department of Social Services knew of the alleged abuse, and chose to shrug it off, prompting Justice Harry Blackmun’s “Poor Joshua” dissent: Continue reading →

The head of the public defender’s office got an email with a modest request:

I am a Professor at the University of Pennsylvania Law School and I am writing to see whether you would be interested in collaborating on a research project aimed at improving plea bargain outcomes and reducing disparities.

In previous work, I have found evidence of substantial disparities in public defender outcomes, primarily due to differences in plea bargaining.  With this project, my colleague Megan Stevenson and I want to test a new tool that may improve plea bargain outcomes through the provision of more information to public defenders.

We have built a predictive tool that can estimate the range of potential case outcomes for a client based on certain characteristics (offense, criminal history, etc.).  We believe this tool may augment defender experience in deciding when to take a deal and when to push for a better one.  This could be particularly useful for defenders with less experience.  It could also help a defender demonstrate to a skeptical client that they are getting a good deal. Continue reading →

The days when it was socially acceptable for a male to try to seduce a female into a sexual liaison are long past. It ended with a campaign of “no means no,” such that a woman who responded with a clear “no” had fulfilled her part of the social interaction to communicate, clearly and decisively, that she did not consent to sexual contact.

Before those days, the social expectation was that a woman who wished not to be touched had to act to physically prevent the man from touching her.  He could try, and she could push back.  Even if she uttered words that made clear that she did not want to be touched, a physical manifestation was necessary.

After all, the male could try his damndest to convince her otherwise, even to the point of lying through his teeth.  That was the nature of “seduction” back then. It was an accepted part of the game played between a man who wanted to have sex and a woman who may or may not.  A woman might say no for a variety of reasons, from protecting her reputation to playing “hard to get,” when her “no” wasn’t really final.  Or maybe it was. How else would one know but to test her fortitude? Continue reading →

Via Doug Berman (who characterizes the post as “notable,” which always makes me chuckle), former lawyer and former prisoner Jay Berman argues that it should be part of the criminal defense lawyer’s duty to prepare his client for prison.

I was an attorney in Pennsylvania for over 30 years. I was also, more recently, a federal prisoner for almost five years. In 2007, I was charged with one count of mail fraud affecting a financial institution (Title 18 U.S.C. Section 1341). I pleaded guilty and served my sentence in five facilities of varying security classifications from June 2008 until April 2013. During the entire time I was incarcerated, I do not recall hearing of a single instance, my case included, where the defense lawyer provided any meaningful prison preparation or counseling for his or her client as part of the representation.

Berman, following a well-worn path, emerged from prison and decided to become a “prison consultant.”

Since completing his time as a federal inmate, he has participated in the production and business development of Prisonology, a Web-based educational program and a CLE course for lawyers whose clients face incarceration. He also authored and published a book titled “The Fall of the Firmest Pillar,” which is a memoir about his journey through the federal criminal justice system.

Continue reading →

That some crazies took over the administration building of the Malheur National Wildlife Refuge is a sideshow, having nothing to do with the sentences, and reversal and remand of those sentences, by the 9th Circuit in United States v. Hammond.  And none of the hoopla surrounding this craziness implicates the other sideshow, the racial divide in treatment by law enforcement. The signal to noise ratio surrounding the Hammonds’ case is off the charts, making it nearly impossible to focus on any particular salient issue.

And while each of these issues may be worthy of discussion, assuming anyone can focus sufficiently on one without devolving into the cesspool of craziness, the rationale of the 9th Circuit for reversing the sentence imposed by District of Oregon judge Michael Hogan is the sole issue this post will address.  Ken White does a “lawsplainer” at Popehat that addresses many of the other loose ends that seem to confuse people, and Patterico graciously provides much of the source material and an excellent overview.

After trial by jury, the two Hammonds, father and son, were convicted of two counts of arson each, under 18 U.S.C. § 844(f)(1).  Whether the conduct of the Hammonds was the sort of arson intended to be included within that section isn’t in issue, not because it cannot be questioned, but because the conduct falls within its parameters, and the jury convicted the Hammonds, who were acquitted of others, with some counts deadlocked. A deal was cut with the jury still out that the Hammonds wouldn’t appeal their conviction, would remain free on bond, the government would recommend a concurrent sentence for the arsons, and the remaining counts were dismissed. Continue reading →

Yale lawprof Jed Rubenfeld, with a couple of law students, proposes an alternative test to the “reasonable cop” metric for determining when a police officer should shoot.  His avowed purpose is both lofty and curious:

IN police shooting cases like that of 12-year-old Tamir Rice in Cleveland, grand jurors are typically asked to focus on one question: At the moment the officer fired, did he have reason to believe the person he shot posed a grave and imminent threat?

This question fails to consider whether alternatives to deadly force were available and how race might have affected the officer’s perception of the threat. Under the prevailing legal standard, those questions aren’t relevant. Until we make them relevant, American policing will continue to have a tragic excessive force problem and, specifically, a race problem.

The disparate impact view of police killing leaves little doubt that cops perceive blacks as more of a threat than whites.  Empirical studies back up the obvious. Continue reading →

Richard McGee got drunk, which occasionally happens with 3Ls, whether at Whittier Law School or elsewhere.  Richard McGee did something foolish when he was drunk, which often happens with guys who are drunk.  Richard McGee was shot and killed for it. That doesn’t often happen.

Jonathan Wade, who lives at the Residence at Canyon Gate, was hosting his friend the night of the shooting. He said his buddy wandered off and mistakenly knocked on the wrong door — a decision that would cost him his life.

Richard Rizal McGee, 31, died when he was shot by his friend’s neighbor at the apartment complex, near where Sahara Avenue and Fort Apache Road meet.

Police on the day of the shooting said the couple at 2200 Fort Apache Road, who Metro have not identified, feared for their lives as McGee pounded on their door just before 5 a.m. while screaming and yelling.

McGee’s screaming and pounding on the door at 5 a.m. must have been hugely annoying, especially to ordinary people who are asleep at home. His drunken night didn’t become their problem. But much as they might have thought to themselves, “I could kill this guy,” they instead decided to put their anger into practice. Continue reading →

Some words are burned into our psyche, but used for whatever purposes suit our secret feelings:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

Well, yes. Of course. And these lofty words are sufficiently vague, easily misunderstood, as to justify our rejection of the laws of physics, the parameters of human nature, the limits of reality.  We take comfort in the certainty of the righteousness of our beliefs, and yet, things aren’t really working out terribly well as people demand their self-evident truths be accepted by everyone else, all of whom have self-evident truths of their own, which are often in conflict.

I awoke this morning to an email from Jordan Rushie, with the comment, “I’m not even shitting you.”  It included a link to a story about how a woman, “a feminist and atheist,” suffers from Post Traumatic Stress Disorder caused by “online harassment and Twitter trolls.” Continue reading →

The Guardian did something that embarrassed the FBI in 2015. It kept track of how many people were killed by police.

The FBI director, James Comey, said in October it was “embarrassing and ridiculous” that the government did not hold comprehensive statistics, and that it was “unacceptable” the Guardian and the Washington Post, which began publishing a database of fatal police shootings on 1 July, held better records.

While true, there is a fairly obvious reason why the government hadn’t bothered to keep track of such things. It fulfilled no internal need. Who was killed and why was a matter of concern for those looking in, not those whose job it was to explain to Congress why its budget was inadequate to win the War on Crime.  No good could come of it for the FBI, in particular, or law enforcement in general.  After all, it would provide fodder for those who don’t appreciate how hard, how dangerous, how critical, their job is.  Why give ammunition to your enemy? Continue reading →

The D.C. Circuit denied the petition for rehearing en banc, which would have put the court in the awkward position of reinforcing the extant law that allows a district court judge to increase a defendant’s sentence based upon conduct for which he was acquitted.  Crazy, right?

Bell exercised his constitutional right to a trial by jury on those charges, and the jury acquitted Bell of ten of the thirteen charges against him, “including all narcotics and racketeering conspiracy charges.” The jury convicted Bell of only three crack cocaine distribution charges that together added up to just 5 grams.

Because Bell had no significant criminal history and the amount of cocaine was relatively small, Bell’s Sentencing Guidelines range for the offense of conviction would have been 51 to 63 months. At sentencing, however, the district court found that Bell had engaged in the very cocaine conspiracy of which the jury had acquitted him, and sentenced Bell to 192 months in prison—a sentence that was over 300% above the top of the Guidelines range for the crimes of which he was actually convicted.

But the Supreme Court, not to mention the advisory sentencing guidelines, says this is cool. As long as the sentence doesn’t exceed the maximum possible sentence for the crime for which the defendant was convicted, no harm, no foul. Continue reading →