It’s not as if New York Law School Professor Robert Blecker hadn’t staked his claim as the intellectual leader of the Kill ‘Em Now crowd already.  He’d been out there, pounding the pavement to drum up business in advance. So when the review copy of The Death of Punishment, published by Palgrave Macmillan, arrived, I was all ready to rip it to shreds.

It opened as I would have expected of anyone who sought to take ownership of the joys of capital punishment, immediately forcing me to wonder what trauma happened to Blecker in his formative years to stunt his intellectual growth and leave him an emotional cripple.  Maybe it was the simplistic notions instilled in him as a child, eye for an eye, revenge, retribution?

But a lousy thing happened on the way to hating Blecker’s book.  Aside from the inexplicably warped view of capital punishment, there was a grudging respect for him. He was no mental midget, not by a long shot. This was a very smart man. Continue reading →

Anyone who has ever sought to persuade another that their feelings on a subject are irrational knows that it’s a waste of time. Feelings aren’t based on reason; they’re feelings. Ultimately, it always devolves into, “well, that’s how I feel,” and the time spent discussing it is lost forever.

We used to be a society that embraced the “sticks and stones” mantra, which has since fallen into disrepute.  For many, it’s been replaced with the assertion that hurt feelings are every bit as real and painful as broken bones, and for them, this is not an issue worthy of discussion. That’s how they feel.

But the substitution of tangible harms with emotional harms has become a driving force in the call for new crimes outlawing and punishing things that give rise to hurt feelings. Continue reading →

An oft-repeated meme on the interwebz, and certainly one of my favorites, comes from a Peter Steiner cartoon, first published in The New Yorker on July 5, 1993.

Bearing in mind that Steiner recognized, more than 20 years ago, that we rarely have a clue we’re dealing with online, he was prescient.  But just how prescient is made clear by Glenn Greenwald at The Intercept: Continue reading →

Criminal defense lawyers are often accused of being callous, if not despicable, toward the victims of our clients’ crimes.  We know they happen, and we may well feel the pain caused to others, but we shut that out of our mind in order to fulfill our function to our client. We have a job to do, and we do it.

But in Tarrant County, Texas, television station WFAA-8, an ABC affiliate, did something unusual.  After Stewart Richardson* offered his apology, via a reporter, to the parents of young boy, 2 years old at the time he was left in a vegetative state because of Richardson’s drunk driving, the boy’s mother, Loubna Khader, asked WFAA if they would accompany her to the jail, with cameras shooting, to confront Richardson directly.

The station agreed, and the result was an extraordinary video. Continue reading →

Derek isn’t the only Jeter making news around these parts, even if these parts are extended to reach Bloomfield, New Jersey. Marcus Jeter was looking at five years, facing charges of “trying to elude [police], resisting arrest, [and] assaulting a police officer.”

What makes this remarkable is its unremarkability. No one, but no one except his lawyer and those who cared about him, would have blinked an eye had Marcus Jeter gone down on the charges.

It all began when police were called to Jeter’s home in Bloomfield, New Jersey.  After a brief conversation, Jeter left his residence as no charges were filed.

Jeter was driving down the Garden State Highway when everything suddenly changed. Continue reading →

Bill Keller will soon step away from the New York Times to lead the Marshall Project and save the world, but as a columnist, the opportunity to start early is open to him and he’s already taken his first/parting shot:

I’ll begin by making his excuses. The president’s powers in this area are limited. The action (and there is a lot of it right now) is mostly at the state level. His first term was entangled in economic crisis and health care. This president has faced tireless and often petty resistance from the Republican House on almost every initiative. Historically Democrats have risked being Willie-Horton’ed if they don’t maintain a tougher-than-tough-on-crime posture. And African-American constituents — who are also disproportionately the victims of crime — are not necessarily bleeding-heart voters. In short, it was probably naïve to assume that Obama was going to be the Criminal Justice Reform President.

There is little choice but to begin with excuses, Continue reading →

I, for one, welcome our new Computer overlords.

— Ken Jennings, upon losing to Watson on Jeopardy

Unbeknownst to most, one of the start-ups in the Big Data tech arena of law is a company called Lex Machina.  For the moment, it’s limited to the IP niche of law, but what it seeks to do is rather astounding:

We mine litigation data, revealing insights never before available about judges, lawyers, parties, and patents, culled from millions of pages of IP litigation information.

We call these insights Legal Analytics, because analytics involves the discovery and communication of meaningful patterns in data.

In other words, they purport to be able to cull from the pages of court documents Continue reading →

In my effort to understand and appreciate the controlled rhetoric of sex offenses, traditional and newly conceived, I’ve raised questions about the definition of rape and the definition of revenge porn.  While it’s fine to non-lawyers to cry “rape is rape,” the fuzziness of feminist rhetoric makes it difficult, if not impossible, to nail down what they’re talking about so that anyone who hasn’t OD’d on the Kool-Aid can discuss intelligently the merit of their view.

One reaction that comes with regularity, and the anger that suggests that anyone who doesn’t grasp and embrace it is, by definition, the scum of the earth, is the phrase “rape culture.”  It’s a catch-all justification for feminists, and spit at people as if no further explanation is needed.  If one doesn’t “get” rape culture, it’s proof of their misogyny. Not only do I not get it, but I didn’t really know what it meant as it was being thrown my way.  I may be thick, but it wasn’t part of my worldview.

Wikipedia, which is beyond dispute as a font of wisdom, has a “rape culture” page. The definition is: Continue reading →

Checking Radley Balko’s morning links, I came across a bullet point that simply said

• “The Sorry State of Indigent Defense”

How could I resist? It was criminal defense lawyer clickbait, and I fell for it. The link took me to The Crime Report, another of those self-important websites that claims to be “your complete criminal justice resource,” as determined by the John Jay College of Coppery and Shoe Repair.  What it lacks in depth, it more than makes up for in superficiality.

The post was by Sheldon Krantz, whose description at the bottom of the post says:

Sheldon Krantz is a Distinguished Visiting Professor of Law at the University of Maryland Carey School of Law.  For close to two decades, he was a litigation partner at DLA Piper, Continue reading →

The initial reaction to a huge win is always the same: Elation. It doesn’t happen often, and it means one more innocent life is snatched from the belly of the beast. And so the Court of Appeals decision in People v. Adrian Thomas, suppressing his confession made after hours of coercive interrogation, was cause for celebration.

Inasmuch as we conclude that defendant’s inculpating statements were not demonstrably voluntary, we reverse the order of the Appellate Division affirming defendant’s conviction (93 AD3d 1019 [3d Dept 2012]), grant defendant’s previously denied motion to suppress those statements, and direct a new trial.

Sure, it would have been sweeter had the Court phrased it differently, that the “inculpating statements” were the product of manipulation, coercion, compulsion, but “not demonstrably voluntary” will do. After all, without  the confession, there is no evidence of guilt. The “new trial” is a formality. They’ve got nothing. Continue reading →