The United States Sentencing Commission has given Doug Berman at Sentencing Law & Policy, an exclusive on its latest findings in the post-Gall world of sentencing.  Opening with a bizarre homage to Bugs Bunny’s nemesis, Elmer Fudd, Berman provides a list of his takeaways:

[1] The number of federal offenders has substantially increased, and most federal offenders have continued to receive substantial sentences of imprisonment.

[2] The guidelines have remained the essential starting point for all federal sentences and have continued to influence sentences significantly.

[3] The influence of the guidelines, as measured by the relationship between the average guideline minimum and the average sentence, has generally remained stable in drug trafficking, firearms, and immigration offenses, but has diminished in fraud and child pornography offenses.

[4] For most offense types, the rate of within range sentences has decreased while the rate of below range sentences (both government sponsored and non-government sponsored) has increased over time.

[5] The influence of the guidelines, as measured by the relationship between the average guideline minimum and the average sentence, and as measured by within range rates, has varied by circuit.

[6] The rates of non-government sponsored below range sentences have increased in most districts and the variation in such rates across districts for most offenses was greatest in the Gall period, indicating that sentencing outcomes increasingly depend upon the district in which the defendant is sentenced.

[7] For offenses in the aggregate, the average extent of the reduction for non-government sponsored below range sentences has been approximately 40 percent below the guideline minimum during all periods (amounting to average reductions of 17 to 21 months); however, the extent of the reduction has varied by offense type.

[8] Prosecutorial practices have contributed to disparities in federal sentencing.

[9] Variation in the rates of non-government sponsored below range sentences among judges within the same district has increased in most districts since Booker, indicating that sentencing outcomes increasingly depend upon the judge to whom the case is assigned.

[10] Appellate review has not promoted uniformity in sentencing to the extent the Supreme Court anticipated in Booker.

[11] Demographic factors (such as race, gender, and citizenship) have been associated with sentence length at higher rates in the Gall period than in previous periods.

What is fascinating about the Sentencing Commission’s perspective on its own existence is its inherent fixation on its own raison d’être, particularly reflected in number 2, and its production of the outcome in number 1 above.

The number of federal offenders has substantially increased, and most federal offenders have continued to receive substantial sentences of imprisonment.

Is this a good thing?  Are we winning the race against tyrannies everywhere?  Does the Bureau of Prison’s hand out “we are number 1” sponge fingers?  By noting this off the top, the USSC seems to see this as a feature rather than a bug of its guidelines, that they contribute to the United States of America being the land of the incarcerated rather than the land of the free. 

After all, if they concept of homogenizing offenses so that they can be sentenced by grid was sound, and was mandatory for a generation before becoming advisory, and yet still remaining the starting point for most sentences and “significantly influencing” sentences, then the efficacy of the model should produce fewer prisoners, not more.  If they worked, they would deter people from committing crime. Instead,

The number of federal offenders has substantially increased, and most federal offenders have continued to receive substantial sentences of imprisonment.

The number hasn’t decreased. It hasn’t even remained stable. It has “substantially increased.”  When the number of federal offenders is substantially greater than it was before, there is a clear take-away: You are doing something very wrong. 

On the other side, the USSC notes that things are changing (despite its claim that they are very much staying the same) because

For offenses in the aggregate, the average extent of the reduction for non-government sponsored below range sentences has been approximately 40 percent below the guideline minimum during all periods (amounting to average reductions of 17 to 21 months); however, the extent of the reduction has varied by offense type.

Forget the caveat, which has no business being included in the finding as it’s both obvious and uninformative.  There is a message in this finding to the USSC which, though noted statistically, doesn’t appear to be adequately processed:  The judges on the ground think your guidelines suck.  On their own (non-govermental sponsored below range sentences), judges are rejecting what the guidelines tell them is the “proper” sentence for an offense and going 40% below. 

Forty percent!  That’s huge.  And these aren’t lily-livered, soft-on-crime, wild-eyed liberal criminal lovers.  These are United States District Court Judges.  These are those very stern guys and gals who were voted “Most Likely to Never Know A Poor Person” in high school.  And even they think the guidelines are absurdly harsh. 

Despite the turgid language and apparent lack of introspection, the “legal market” is sending a message to the USSC that it’s not buying what they’re selling.  This should be cause for some celebration, as the world of federal sentencing is showing signs of returning to a state where individualized sentencing is more important than calculations of points. 

But the problem, as was made clear in  Judge John Gleeson’s recent memo about the drug guidelines, that the guidelines as a starting point remains a fiction that is unworthy of the dead trees upon which it is printed.  To the extent the guidelines serve to inform judges of a starting point in the consideration of sentences, we continue to perpetuate this myth, this fiction of empirical sentencing based upon offense conduct without regard to the plethora of facts and circumstances that comprise conduct that requires imprisonment.

And that is why this conclusion should remain the most disturbing:

The number of federal offenders has substantially increased, and most federal offenders have continued to receive substantial sentences of imprisonment.

As long as that remains the case, we have failed and continue to fail. The point is to reduce crime, not “substantially” increase the number of prisoners. We have failed, and there doesn’t appear to be anyone at the USSC who appreciates it.

The question I’m asked more than any other is whether having a robust social media presence a lawyer can find wealth and prestige on the internet. As even casual readers know, my answer is invariably “no.”  But since that blabbermouth, Jason Wilson, has spilled the beans, you might as well know the truth. You’re just too late:

This is not a joke. Lawyers, you MUST be on Vine now. If you aren’t producing 6 second looping videos about your practice, associates and their hipster attire, speaking engagements, ghost-written blog and marketing content, or the office cat, then you may already be too late. Wait any longer, and you’ll be behind the most innovative thinkers in the legal space, those who are making quirky videos to bolster their Twitter and Facebook feeds, MAKING THEMSELVES RELEVANT in today’s distraction economy. 1 If you aren’t doing this, the Millennials—your future associates—will think Luddites. And that’s just your potential workforce. Think about all the business you are missing out on, right now. After all, 95% of all lawyers use social media, and 50% of them get substantial business from it. These firms and lawyers are the future. Don’t be a five percenter.

The New York Times published an op-ed by Michelle Alexander, author of “The New Jim Crow: Mass Incarceration in the Age of Colorblindness,” entitled Why Cops Lie.  The Times has touched this subject numerous times, as have I, even bringing the term testilying to the public.

Ordinarily, I wouldn’t post about something unless I can add some value to it, but this op-ed is so good on its own that despite my inability to add anything worthwhile, I feel compelled to spread the word as far as possible. This is the conclusion:

The natural tendency to lie makes quota systems and financial incentives that reward the police for the sheer numbers of people stopped, frisked or arrested especially dangerous. One lie can destroy a life, resulting in the loss of employment, a prison term and relegation to permanent second-class status. The fact that our legal system has become so tolerant of police lying indicates how corrupted our criminal justice system has become by declarations of war, “get tough” mantras, and a seemingly insatiable appetite for locking up and locking out the poorest and darkest among us.

And, no, I’m not crazy for thinking so.

Read how she got there.  And, no, Michelle, you are most assuredly not crazy for thinking so. 

It’s necessary that this reality continue to be pounded into the minds of a denying public until either the practice stops or people realize that this is how the system works.

Radley Balko  twitted something so facially outrageous as to demand a reading, that “Oakland Cops Point Guns at Sleeping One-Year-Old.” Come on. But that was the story’s lede :

Two Oakland police officers pointed their firearms at a sleeping nineteen-month-old child while investigating a misdemeanor crime, according to a new report released Thursday. The sleeping child posed no threat to the officers, and yet they pointed their guns at the one-year-old anyway.

The alarming incident was cited by Independent Monitor Robert Warshaw in his latest report on OPD misconduct. Warshaw noted that the department has had a history of overly aggressive behavior toward city residents. Warshaw also noted in his report that OPD not only failed to make any progress in living up to court-mandated reforms in the latest monitoring period, but actually lost ground for the second quarter in a row.

Warshaw’s report also comes in stark contrast to recent statements by Mayor Jean Quan. At a January 23 press conference following the approval of a contract to hire William Bratton, Quan was bullish on the future of the Oakland Police Department. “The reality is that we’re making progress, this police department is changing,” she said of OPD’s decade-old federal reform effort.

But according to Warshaw’s latest report, nothing could be further from the truth. Warshaw, who is responsible for auditing OPD’s progress, found in the most recent quarterly report that OPD’s compliance with the Negotiated Settlement Agreement reforms decreased for the second quarter in a row. In the report’s executive summary, Warshaw wrote that the incomplete efforts deal with “critical supervisory and investigative tasks” which are “at the very core of Constitutional policing.”

Following yesterday’s post about Tony, Turk  retwitted the post because SJ “doesn’t have a like button.” It made me think about the fact that people who disagree with a post here have no problem finding the “hate” button, leaving me a comment to inform me how awful, how wrong, how stupid I am. As I earlier explained, this doesn’t bother me, but is part of the deal of blawging.

Seth Godin, marketing philosopher, posted yesterday that everybody isn’t going to get the joke.

And just about every blog post and book listing collects a trolling comment from someone who didn’t like it, didn’t read it or didn’t agree with it (or all three) and isn’t shy about speaking up with a sharp tongue.

For those people, the message from the creator of the work is clear: “It’s not for you.”

Unanimity is impossible unless you are willing to be invisible. We can be unanimous in our lack of feedback for the invisible one.

For everyone else, though, the ability to say, “It’s not for you,” is the foundation for creating something brave and important. You can’t do your best work if you’re always trying to touch the untouchable, or entertain those that refuse to be entertained.

“It’s not for you.”

I remember being a panelist at a Shanghai event a few years ago when someone in the audience asked me if I was ever concerned about offending people with this blog. My response went something like this:

No. In fact, I worry about not offending people. If we are not offending someone, we are not taking a stand. And if we are not taking a stand, we are not interesting. And if we are not interesting, we will not be read.

One of the advantages to being a founder of a small firm is that I do not have to worry about offending some people, I just have to make sure at least some people love us.

There can’t be too many guys named Tony from Jamaica living on Nantucket, population 10,142.  He’s a good looking guy around 30 years of age, which should narrow it down if necessary. He was wearing a Yankees baseball cap, though I don’t think he was actually a baseball player for the team. 

So if you happen to come across Tony, please do me a favor. Buy him dinner. Buy him a drink. Be nice to him. At the very least, tell him “thank you.”

A few days ago, I drove up to the Westchester Correctional Facility at Valhalla. It was a foggy morning, so I turned on the lights to avoid someone not realizing I was there and ramming into me at great velocity. It seemed prudent.  As I did so, I thought to myself, “don’t forget to turn the lights off when you get there.”  You see, this car had old-fashioned manual lights, the type that have to be turned off by hand when you stop the car.  The other cars have lights that turn off by themselves, so I never have to think about it. I tend to use the other cars more, and have gotten used to the lights going off by themselves. I knew this, which is why I made a point of reminding myself to turn off the lights when I stop.

I arrived at Valhalla and got my stuff together. There is a whole ritual, since one has to shed all undesirable things before entering a jail, and I try to make sure my entrance is as uneventful as possible. With my usual meticulous precision, I dealt with metal and communications devices, whatever contraband might be concealed on my person, and made sure I had the papers I needed in hand. Off I went to the gate, and it was smooth sailing from there.

When I returned, ready to motor back at the speed limit, I turned the ignition key and, click, click, buzzzz. Then silence. My eyes began to droop and found the knob for the headlights. I could see the stem, as the black bakelite knob was pulled toward the driver. I left the lights on. The battery was dead.

Crap, I thought to myself. What a moron I am. So I pulled out my trusty smartphone to find a garage to give me a jump. I turned it on, which was something I do not often do as I only turn it on when I need to make a call out. I rarely need to make a call out.  I was fairly sure that the last time I used it, there was a full battery. Apparently, some elf had stolen my full battery in the interim and replaced it with a dead one.  The phone was dead too.  Double crap.

Then Tony knocked on my window.  He asked if I needed a hand, and I told him the situation. He was parked two cars down, and was there because his girlfriend’s cousin was a guest of Valahalla. She was inside, and he was in the parking lot waiting for her.  Still, he could have stayed in his nice, warm car with a working battery, listening to music or reading Chaucer. Instead, he noticed I was having a problem and came to see what he could do to help.

He didn’t have jumper cables, unfortunately. But his car charger fit my cellphone. And he had a cellphone, also charged. And we found a garage that could send a truck to jump me. And he helped push my car out of the parking space into the middle of the parking lot, then down to a place where it was out of the way but the truck could still reach it. And he stood there, in the cold, talking to me. And when I got too cold to stand there anymore, he let me hang out with him in his car, where we listened to music and I made some incredibly humorous Jamaica jokes. It would have been too weird to read Chaucer to each other.

I have to admit that I had an inkling that maybe Tony had an ulterior motive when he first approach my car. I was suspicious, an occupational hazard of being a criminal defense lawyer in a jail parking lot. Afterward, it made me feel unworthy of the kindness Tony had shown me.

When the truck came to jump my battery, Tony got out of his car with me, and stood beside me to make sure the car started and everything was cool. He asked me if I had enough to cover the cost when the truck driver told me the tariff. It was eminently reasonable, and I had it covered, but Tony just wanted to make sure I wasn’t going to end up with another problem.

I thought about asking Tony if he wanted to grab some lunch, but realized he was waiting for his girlfriend and wasn’t actually there for my benefit. I thank him. He shrugged it off, saying it was nothing. He said that it was his pleasure to help.  And then we shook hands and he walked back to his car. 

I beeped the horn “thank you” as I drove out of the lot. But as I drove home, I wondered what I did to create the karma that brought a guy like Tony to Valhalla that day. Whatever it was, it wasn’t enough.

So if you happen to come across a Jamaican guy named Tony from Nantucket, I would very much appreciate it if you could show him some kindness. He is a good man.

Let’s start with the punchline: Richard Greenberg has settled, with the auto repair shop agreeing to pay $15,000 and the New Jersey State Troopers agreeing to pay $135,000.  While the settlements for misconduct usually fail to meet people’s fond dreams, this one was pretty darned good. Excellent, really.

What happened to Greenberg, and started this gravy train, was something that happens to all of us at some point: He paid a guy to do a job and the guy screwed up.  In this instance, it was an auto mechanic.

The dispute began when Greenberg went to the shop in January 2007 for an oil change and agreed to a radiator flush and battery cleaning.

But when his car came out of the garage, it had trouble starting after several battery jumps. The mechanic told him he’d have to get further repairs elsewhere, because the shop did not have the appropriate equipment on hand, according to the lawsuit.

Greenberg claimed his car had no history of trouble before bringing it to the shop.

He paid his bill, including $15 he disputed for the battery cleaning, and drove it immediately to a Pep Boys, where he claimed it stopped functioning again.

Mechanics there told him the battery post “had probably snapped.” Greenberg paid $88 to have a new battery installed, he said in court documents.

So Greenberg stopped his check, closed his account (purportedly because there was a missing check as well) and sent the garage a new check for the amount he believed he owed. The garage owner sent the check back, cut in half, and called his local state troopers instead.

The owner went to the state police, which covers enforcement and patrols for Hainesport, to have a report prepared to take with him to small-claims court.

After troopers investigated the matter, Greenberg was arrested without a warrant and without charges pending, his attorney said.

While Greenberg was chained to a bench, another trooper told him, “You’re not such a tough (expletive) now,” according to court documents.

After 15 minutes, when Greenberg agreed to pay the money, the trooper returned to tell him he was “a lucky man” because the shop had agreed to accept the money.

From the  Payton issue, not the fact that a New Jersey State Trooper thought his job was to collect money for a local business from a disgruntled customer by use of force authorized by the state.  In fact, the court suggested that the Trooper’s suspicion that Greenberg deliberately passed a bad check, a crime, was sufficiently reasonable to establish probable cause.

Granted, it’s hardly insignificant that the appellate court recognized, where the lower court did not, that State Trooper
Nicholas Pryszlak did not have the power to decide, on his own and without a warrant, to enter Greenberg’s home and arrest him.  There are some basic things they can never do, and breaching the sanctity of a person’s home to arrest without a warrant or exigency is one of them.  It’s always good to know that Payton remains the law.

Yet, the fact that there was any question, any confusion, about whether law enforcement has a legitimate role to play in fundamentally civil disputes should scare the daylights out of us. From the undisputed allegations, there was a very legitimate dispute.  This isn’t good, but it isn’t the end of the world either. People go to a business and get service, and are dissatisfied. Sometimes, as here, the service ended up causing the consumer more problems than what he started with, and the consumer has an excellent reason to be upset.  

When disputes over a consumer transaction happen, there are courts to deal with them. Small claims courts, not criminal courts.  This is important, because we already face  three felonies a day by coffee break, and need not fear that we are powerless to question and challenge disreputable businesses without risking arrest.  There has to be a line drawn somewhere.

Trooper Pryszlak didn’t get the message.  This reflects a deeper problem inherent in the mindset of law enforcement officers, not only that they can do as they please because of their great power and insight, but that they are authorized to decide right and wrong in all human interactions. This trooper decided to right what he, in his infinite wisdom, saw as a wrong, a bad check passer screwing a local business out of its money, and he was going to make it right.

“You’re not such a tough bastard now.”

Are people who dispute a charge “tough bastards”? I think so, and I think they should be. Too often, people allow themselves to be pushed around, acquiescing to the more assertive person for fear of, what, being disliked?  Why, I wonder, should anyone care? Certainly the business won’t charge you less, on top of providing poor or defective service, because you were nice about it.  They rely on people being too polite or wimpy to be disagreeable to get away with delivering crap. So it takes a tough bastard to refuse to let himself be treated like dirt.

But New Jersey State Trooper Sergeant Steven M. Jones was mistaken when he spoke those words to Greenberg.  Whether his agreement to pay the disputed amount was a momentary lapse or a strategic move, he was tough enough to take the troopers, besparkled in their imposing uniforms that haven’t (as far as I can tell) changed since the fifties, with leather Sam Browne and, often, black boots to their knees, to their knees.  Greenberg was a tough enough bastard to get $135,000 from the troopers.

The law has enough trouble distinguishing criminal from civil disputes, usually hinging on rhetoric rather than reality.  In this case, there was no question that Greenberg had a legitimate beef with the garage over their having broken his battery instead of fixing it. That’s more than sufficient to eliminate any potential that his conduct in stopping payment was criminally intended, and it’s a shame that the appellate division didn’t make that clear.  But this settlement, both for the garage and the troopers serves as a small reminder that the troopers, no matter how awesome they view themselves or how they see their role as fixing problems for local businesses, have no business getting involved in civil disputes.

Now, if only the payment would come from Trooper Pryszlak’s pocket instead of the taxpayer’s, maybe Jersey troopers would get a real message that even they have limits. 

In a New York Post op-ed, Glenn Reynolds argues, in light of the debate over legislating weapons following the Newtown tragedy, that there should be a waiting period for the enactment of laws:

So New York’s stringent new gun-control law bans guns or magazines capable of holding more than seven shots. Everybody’s safer now, except that — in the Gov. Cuomo-led rush to pass the bill — nobody thought to exempt the police, making all those Glocks felonious.

Well, sure, that was pretty embarrassing, but they can easily fix a little screw-up that sneaks into a law. Does that undermine the notion that there is a problem in need of a solution now, before anyone else is harmed?

After every tragedy, legislation gets rushed through that’s typically just a bunch of stuff that various folks had long wanted all along, but couldn’t pass before. Then it’s hustled through as a “solution” to the tragedy, even though close inspection usually reveals that the changes wouldn’t have prevented the tragedy, and don’t even have much to do with it.

The goal, thus, is to prevent close inspection through a combination of heavy-handed legislative techniques and bullying rhetoric: If you don’t want to pass our bill without reading it, you must hate the children.

This has been seen far too often, opportunistic law-making.  The iron is hot, so strike. That’s how the USA PATRIOT Act was passed sight unseen, Cuomo’s new gun law may not be of that magnitude, but enjoyed similarly smooth sailing. The question is whether it’s a problem in need of a solution, a solution in need of a problem, or just legislators who read the title of a new law, if that, and vote, neither knowing or caring what all the black, squiggly lines say below.

I’d like to propose a “waiting period” for legislation. No bill should be voted on without hearings, debate and a final text that’s available online for at least a week. (A month would be better. How many bills really couldn’t wait a month?)

And if the bill is advertised as addressing a “tragedy” or named after a dead child, this period should double.

It’s risen to the level of a meme that every tragedy involving a child begets a new law, and almost invariably one that either fails to address the actual problem, or is vague and overbroad, or replicates existing law, because two laws addressing the same issue are better than one.

Seriously, legislation is supposed to be a deliberative process. When they don’t want to deliberate, it’s because they’re hiding something. And they’re hiding it because they don’t want you to know about it.

I’d also add another provision: Anytime a “tragedy” bill has to be amended because slipshod legislating led to flaws, the bill to fix it must list the names of those who voted for the original, in bold type, at the beginning under the heading “IDIOTS WHO DIDN’T READ THE BILL OR THINK ABOUT IT BEFORE VOTING.”

In some instances, the failure of lawmakers to either deliberate, or actually read, a bill before voting can be blamed on lack of time. But then, if they had all the time in the world to read the bill before voting, would it change much? They are voting perception, their love of children and hatred of tragedy. People are filled with passion, and they plan to ride that passion wave as far as it will take them. Remember, passion impairs thinking, and there can be no better time to take advantage of it then when emotion run hot.

But even if there was a week, a month, a year to read a bill from cover to cover, to think long and hard about it, how many legislators would? How many citizens, aside from the tiny handful for whom it was primary issue, would? Be real. Reading is a lot of work. Thinking even more. It would make a lot of people’s head hurt, and people hate that, especially when they knew from the moment they heard of the tragedy what must be done.

Jeff Gamso brings up a controversial point, following the congressional testimony of former Representative Gabby Giffords.



For those who don’t remember former press secretary Jim Brady, who became the embodiment of gun control after being critically wounded during the Reagan assassination attempt, he was the fellow after whom the  Brady Bill was named. Giffords is this generation’s Jim Brady.

She didn’t say what because . . . . Hell, I don’t know why.  Because she doesn’t know what? Because it’s more than she can articulate since she was shot? Because it doesn’t matter?

Violence is a big problem
Too many children are dying
Too many children
We must do something

You know, for the children.

She’s right.  Violence is a big problem.  And too many people are dying.

Even though Giffords may not have enunciated an answer, she struck the emotional chord that something must be done immediately.  The stage is set for the people who advocated for or against gun control before the Newtown tragedy occurred. As soon as the opportunity presented itself, they started screaming.  Legislators were drowning in passion and heated rhetoric.

While Reynolds’ proposition may not serve in every instance, such as when we are about to go over a fiscal cliff and need an immediate stop-gap to prevent a discrete outcome no one wants, it certainly has its merit when it comes to social and criminal legislation in the heat of passion. 

But as he notes, it’s never going to happen, as the last thing legislators want is a limitation on their ability to pander when an opportunity presents itself.  Thoughtfulness and deliberation are hardly strong selling points with an election coming up, as it does every two years.

When will people make it a priority to hold their representative to actually reading a law before they vote on it?  Don’t be silly. Voters would never expect their representative to do something they wouldn’t do themselves.  And so we have a lot of laws named after dead children, enacted in the heat of passion because we have to do something, that still haven’t made our world perfect. What’s one more?

When Culpeper Town Police Officer Daniel Harmon-Wright shot and killed Patricia Cook, he claimed he had no choice.  If he hadn’t killer her, she would have killed him. That’s what he said.

Fifty-four-year-old Patricia Cook was shot to death on February 9 just outside a church parking lot in Culpeper, Virginia. The first two rounds, fired at point-blank range, tore into Cook’s face and arm. Another round, fired as Cook was driving away from the shooter, entered her brain. A fourth round severed her spine and veered into her heart, killing her. A telephone pole brought her Jeep Wrangler to a halt.

Patricia Cook had been parked in front of Epiphany Catholic School for a long time and refused to leave. The school called the police. A Culpeper police officer confronted Cook. Cook rolled up the officer’s arm in her window and punched the gas. The officer did what he had to do to stop the vehicle and save his own life.

Cook was a 54-year-old homemaker and Methodist Sunday school teacher who hadn’t received so much as a speeding ticket since the 1970s. She enjoyed quilting and cooking for her congregation at Culpeper United Methodist Church.

Local residents flooded the comment boards of the Star-Exponent*. Under the guise of anonymity, they defended “Pat” Cook, and called for an investigation into the Culpeper Police Department. “Two weeks after the shooting, [the publication] stopped that,” [Former elementary school teacher, 56-year-old James] Jennings says of the message boards. “It deleted all the existing comments and all the existing discussion on that.” The paper relaunched with Facebook commenting, requiring people to identify themselves. At that point, the message boards for the small-town paper went silent. “I think people were afraid to speak up,” Jennings says, adding, “there are a couple of bullies in town.”

So local news was sanitized, and local residents silenced. Even though witnesses disputed the police version of events, they were easily ignored. Who you going to believe, a hero cop or people who back a dead woman?

But Jennings wasn’t done yet.

Jennings created the Facebook page “Justice for Patricia Cook” on April 23. The About section reads, “Please consider joining our community, encouraging justice for the unarmed 54 year old woman who was shot by a Culpeper Police Officer, under questionable circumstances.” Beneath that description are the following questions: “What if it was your wife? What if it was your mother, sister, daughter? Would you be willing to sit quietly and say nothing? What if you pulled the trigger? Wouldn’t you want to see justice?”

Regional media, including the Washington Post, picked up the story, and miraculously, the Fauqier County special prosecutor convened a grand jury.

Yesterday,  one ex-cop’s world crashed :

Former Culpeper Town Police Officer Daniel Harmon-Wright was found guilty Tuesday on three charges — including voluntary manslaughter — in the shooting death of a woman in the parking lot of a Catholic school last year.

Most of the time, both the posts at SJ and the comments are negative, enough so that they might make people feel hopeless.  James Jennings refused to be hopeless, to give up.  He didn’t bomb the police station or scream wild-eyed threats; he persisted in demanding accountability, and rallied other, like-minded locals, to his cause. 

The good people of Culpeper prevailed, and a cop who killed a resident was convicted.  Don’t give up hope, and don’t quit. We may not win much, but if we don’t persist, we will never win.

H/T FritzMuffKnuckle

Following on  his decision in United States v. Dossie, castigating mandatory minimum drug sentences, Eastern District of New York Judge John Gleeson has taken the point a substantial step farther in his latest decision in United States v. Diaz.  Via Doug Berman :

Diaz will be sentenced in a few weeks, and when that happens I will carefully consider all the factors set forth in 18 U.S.C. § 3553(a) except one — the length of imprisonment recommended by the United States Sentencing Commission’s Guidelines Manual. Though I will not ignore Diaz’s Guidelines range, I will place almost no weight on it because of my fundamental policy disagreement with the offense guideline that produces it. In fairness to the government, I write here to explain my belief that the offense guideline for heroin, cocaine, and crack offenses (“drug trafficking offenses”) is deeply and structurally flawed. As a result, it produces ranges that are excessively severe across a broad range of cases, including this one.

The flaw is simply stated: the Guidelines ranges for drug trafficking offenses are not based on empirical data, Commission expertise, or the actual culpability of defendants. If they were, they would be much less severe, and judges would respect them more. Instead, they are driven by drug type and quantity, which are poor proxies for culpability. (Emphasis added.)

If the Commission wants greater adherence to the Guidelines, as it should, it needs to get better at fixing broken offense guidelines.  The drug trafficking offense guideline was born broken.  Many judges will not respect it because as long as the sentences it produces are linked to the ADAA’s mandatory minimums, they will be too severe.  Indeed, as discussed further below, for almost two decades the nation’s judges have been telling the Commission to de-link the drug trafficking offense guideline from those harsh mandatory minimums and to reduce the sentencing ranges.  The Commission should listen and act.  It should use its resources, knowledge, and expertise to fashion fair sentencing ranges for drug trafficking offenses.  That process will take time.  In the meantime, because real people, families, and communities are harmed by the current ranges, it should immediately lower them by a third….

On June 19, 1986, University of Maryland basketball star Len Bias died of a drug overdose. Congress promptly enacted the Anti-Drug Abuse Act of 1986 (“ADAA”), which established a two-tiered scheme of mandatory minimum and enhanced maximum sentences that have now become central features of the federal drug sentencing landscape. The ADAA’s five-year mandatory minimum, with a maximum enlarged from 20 to 40 years, was specifically intended for the managers of drug enterprises, while the ten-year mandatory minimum, with a maximum of life, was intended for the organizers and leaders. 

But right from the start Congress made a mistake. The severe sentences it mandated to punish specified roles in drug trafficking offenses were triggered not by role but by drug type and quantity instead. Instead of prescribing a five-year mandatory minimum for a defendant who the government proves to be a manager of a drug enterprise, the ADAA provides that the mandatory minimum is triggered by offenses involving 100 grams of heroin, 500 grams of cocaine, or 28 grams of crack. And instead of hinging the ten-year mandatory minimum on the government’s proof of a defendant’s leadership or “kingpin” status, Congress simply used larger drug quantities: 1 kilogram of heroin, 5 kilograms of cocaine, or 280 grams of crack. So if an offense happens to involve a drug type and quantity that triggers a mandatory minimum, every defendant involved in that crime, whatever his or her actual role, can be treated as a manager or leader at the option of the United States Attorney.