The black letter rule seems simple enough. From Roberts’ majority opinion in Blueford v. Arkansas :

The Double Jeopardy Clause protects against being tried twice for the same offense.

The Double Jeopardy Clause “unequivocally prohibits a second trial following an acquittal.”

nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb . . . .

The Clause does not, however, bar a second trial if the first ended in a mistrial. Before the jury concluded deliberations in this case, it reported that it was unanimous against guilt on charges of capital murder and first-degree murder, was deadlocked on manslaughter, and had not voted on negligent homicide. The court told the jury to continue to deliberate. The jury did so but still could not reach a verdict, and the court declared a mistrial. All agree that the defendant may be retried on charges of manslaughter and negligent homicide. The question is whether he may also be retried on charges of capital and first-degree murder….

The jury in this case did not convict Blueford of any offense, but it did not acquit him of any either. When the jury was unable to return a verdict, the trial court properly declared a mistrial and discharged the jury.  As a consequence, the Double Jeopardy Clause does not stand in the way of a second trial on the same offenses.

But wait, you say. Didn’t CJ Roberts already state that the jury “was unanimous against guilt on charges of capital murder and first-degree murder”?  Isn’t that kinda like, oh, an acquittal? Not any more. Sotomayor explains:

The Court holds that petitioner Alex Blueford was not acquitted of capital or first-degree murder, even though the forewoman of the Arkansas jury empaneled to try him announced in open court that the jury was “unanimous against” convicting Blueford of those crimes.  Nor, the Court concludes, did the Double Jeopardy Clause oblige the trial judge to take any action to give effect to the jury’s unambiguous decision before declaring a mistrial as to those offenses.

Sure the forewoman said so. Sure, that was what the jury found. Sure, the words rang out in the courtroom. But no, they don’t count.  You see the judge did not repeat the words on the record, as if some magical mantra uttered from a man in robes transforms the jury’s finding into legal reality. 

Instead of proclaiming, in a somber voice, that the defendant was hereby acquitted, or some other suitably officious words, and instead of putting quill pen to parchment to write in the Great Book of Acquittals the product of the jury’s deliberations, or having the jurors do so themselves, the judge skipped over that part and declared a mistrial.  According to the Supreme Court’s decision in Blueford, the judge’s failure to perform the ministerial acts of his office (as in, Oops, I forgot. Sorry guys) gives the state a full do-over, including another try at capital and first degree murder.

It’s as if the unanimous jury finding that the defendant was not guilty never happened. 

As Jeff Gamso notes, the argument is that it’s possible the jurors, after unanimously acquitting Blueford of the top counts, could have changed their minds later and decided instead to fry him.  The dissent responded that once the jury announces its unanimous acquittal, it’s game over, and the jury could not have gone back and decided to push the plunger.  The rest is just form over substance, which is ironically the argument usually leveled at the defense for expecting the words of the Constitution to be given meaning.

TV  Judge Andrew Napolitano call this “the most radical and dangerous departure from traditional criminal jurisprudence in the post-Warren Court era.”  How one rates this case on the most radical and dangerous scale isn’t clear, given a full field and such disparate impacts.  But what this case does reflect is a rule that so
clearly ignores the language, history and purpose of a constitutional amendment as to make one nervously chuckle whenever he hears the court pontificate about judicial modesty or faithful adherence to the intentions of our founding fathers.

Except the guy being retried after acquittal for capital murder. He’s not chuckling at all about the prosecution getting a mulligan.

The prosecution’s expert witness at the Frye hearing conclusively opined that

according to FBI figures, there are 900,000 arrests per year which, over a 23-year period add up to 20 million. [the expert witness] divided this figure by 60, which was the number of confessions that Dr. Ofshe had identified as false in a 1996 article. From this, [the expert witness] concluded that the frequency of false confessions is one hundredth of one percent.

There’s one little problem:  there was no head trauma.  No fractures, no abrasions, no nothing. Two leading medical specialists testified at trial that the baby died of natural causes. The medical records, beginning with the mother’s pregnancy complications and the baby’s premature birth, showed that he died of a systemic and chronic infection.

This didn’t stop the trial of Adrian Thomas from proceeding, with its videotaped confession.  The defense sought to introduce expert testimony of how the police interrogation methods induced the defendant to say whatever was necessary at the moment.  The court refused to allow the defense to call its witness, saying the jury could see the videotape and reach its own conclusion.  After all, scholar, judge, expert witness Paul Cassell said there was really no such thing as a false confession.

Cassell’s contribution to the truth-seeking process is his notion that nothing can be known about false confessions or their causes until we know how many there are. Just like nothing can be known about the flu until we know how many people have it. In the meantime, he wants to have videotaped confessions instead of Miranda warnings.  Needless to say,  there should be no expert testimony on the non-existent phenomenon of false confessions.

The trial judge swallowed this whole.

The basis upon which Paul Cassell was allowed to opine as an expert in false confessions seem simultaneously empty and full. How much more can one ask of an expert than to be endorsed as a scholar and former federal judge?  If he says he’s an expert, he must be, despite having absolutely no qualifications whatsoever to support his claim.

There is an occasional debate among law professors about selling one’s scholarly credentials, whether to the highest bidder or to further a personal agenda.  That Cassell has been a slavish ideologue in the fight for victims to be recognized before the crime is too well-known for dispute, but that it extends as far as flagrantly inserting himself in the war against the innocent is a new thing.

Will other scholars have anything to say about this?  Will the professoriate condemn their brother Cassell’s proffer of expertise as “no-such-thing-as-a-false-confession” expert?  We’ll see.

In the first part of the story, Appellate Squawk makes a point that I’ve argued for a long time, that the videotaping of confessions is not necessarily the panacea that so many on the criminal defense side believe it to be.  As this case shows, videotaping of only part of the interaction between cops and defendant provides the opportunity to conceal manipulative and coercive conduct, leaving the portion taped and presented to the jury making the police appear kindly and supportive.  It can be the coup de grace of false confession, conclusively proving the confession while conveniently concealing the coercion that led up to it.

Of course, had the defense expert, social psychologist and actual friggin expert on police interrogation techniques, Dr. Richard Ofshe, been allowed to testify, perhaps all of this would have been understood by the jury and the kindly confession videotape rejected for the sham it was. 

But scholar, judge and expert for sale, Paul Cassell, made sure that wouldn’t happen. And some say lawprofs have no impact on the lives of real people.

For many (and by that I mean many) bloggers, the only question is whether someone is friend or foe.  It’s all about partisanship, fellow travelers in the cause, whatever that cause may be.  Sides are chosen because someone else shares your ideology, loves the people you love or hates the people you hate.  We’re on teams, and our team is against their team.

At Popehat, Ken made the point, that we defend free speech because it’s speech, not because we agree with the speaker.  It’s not a novel point, by any stretch, but it needs to be repeated and reinforced constantly.  It seems that whenever an interest clashes with free speech, the latter is always the first to go.

Some of you may be familiar with blog called Patterico’s Pontifications, written by a Los Angeles County prosecutor named Patrick Frey.  He’s a good guy with a great sense of humor, despite the fact the we tend to view things pretty differently.  Because he took up arms against a fellow named Brett Kimberlin, he was SWAT-ed.

At 12:35 a.m. on July 1, 2011, sheriff’s deputies pounded on my front door and rang my doorbell. They shouted for me to open the door and come out with my hands up.

When I opened the door, deputies pointed guns at me and ordered me to put my hands in the air. I had a cell phone in my hand. Fortunately, they did not mistake it for a gun.

They ordered me to turn around and put my hands behind my back. They handcuffed me. They shouted questions at me: IS THERE ANYONE ELSE IN THE HOUSE? and WHERE ARE THEY? and ARE THEY ALIVE?

I told them: Yes, my wife and my children are in the house. They’re upstairs in their bedrooms, sleeping. Of course they’re alive.

Deputies led me down the street to a patrol car parked about 2-3 houses away. At least one neighbor was watching out of her window as I was placed, handcuffed, in the back of the patrol car. I saw numerous patrol cars on my quiet street. There was a police helicopter flying overhead, shining a spotlight down on us as I walked towards the patrol car. Several neighbors later told us the helicopter woke them up. I saw a fire engine and an ambulance. A neighbor later told me they had a HazMat vehicle out on the street as well.

Meanwhile, police rushed into my home. They woke up my wife, led her downstairs and to the front porch, frisked her, and asked her where the children were. Then police ordered her to stand on the front porch with her hands against the wall while they entered my children’s bedrooms to make sure they were alive.

The call that sent deputies to my home was a hoax. Someone had pretended to be me. They called the police to say I had shot my wife.

This is beyond any pale. This is sick stuff. This happened because Patrick wrote something on his blog that the other team didn’t like.

At Popehat, Ken (who has become perhaps the most active participant in the war against online censorship by his willingness to stand up for bloggers pro bono against threats and intimidation) has been writing about Aaron Worthing’s battle against a false prosecution designed to not merely shut up his criticism, but destroy his life.  It’s not because Ken is on Worthing’s political team. He’s not. But speech isn’t free for anyone if it isn’t free for everyone. That’s just how rights work.

I may share very little ideology with Patrick or Aaron, but I most certainly share one belief: they have the right to express their views without fear of being gunned down because some sick, malicious individual on the other end of the political spectrum disagrees with their views.

A blogger named Lee Stranahan declared today, May 25th, to be Blog about Brett Kimberlin Day, as I learned from  Ken and Patrick, as Kimberlin has become the poster boy for this diseased approach to shutting down speech through the use of the most vile and outrageous means.  I lend my voice and bandwidth to support those, like Ken, who champion free speech and denounce anyone, whether Brett Kimberlin or anyone else, who would do harm to their enemies to stifle their voice, regardless of what they have to say.

Via Turley, 17-year-old Deltona, Florida high school student Michael Rudi collapsed on the floor, unable to breath.  The school nurse watched.

The school dean found the inhaler in its original packaging with the student’s name and directions for its use. He seized the inhaler because of the absence of a form. When the boy began to have trouble breathing the mother was called to come into school. It is not clear why, if they could reach the mother, they could not get telephonic approval. More importantly, with the boy having breathing problems, the school insisted that it was still more important to get a form signed than help the child. Rudi is quoted as saying “[a]s soon as we opened up the door, we saw my son collapsing against the wall on the floor of the nurse’s office while she was standing in the window of the locked door looking down at my son, who was in full-blown asthma attack.”

Volusia County School officials stand by a Deltona High School nurse’s decision to refuse a student his inhaler during an asthma attack, citing a lack of a parent’s signature on a medical release form.

There is a rule about students taking drugs.  Apparently, there is no rule against allowing students to die as the nurse watches.  The school has a policy about calling 911 when a student can’t breath, which is a reasonably good idea, though it strains reason to understand why adults in charge of children in school need a rule to figure out that calling 911 (or, for the matter, giving life-saving medication) is a better idea than poking them with a stick.

Selesky said the district is looking into whether proper procedures were followed by the school, and while nurses can’t give medications without the proper authorization, it is district policy to call 911 when a student cannot breath.

Selesky could not explain why 911 was never called.

It seems obvious to me: The nurse was only on page 36 of the rule book, and the 911 rule wasn’t mentioned until page 492.  There is a rule against skimming and jumping ahead.

So many of the absurdities that come from this slavish adoration of rules end up with a child suspended or expelled over things that, under any rational assessment, fall outside the parameters of the evils sought to be eradicated by the rules.  We can, in a sense, appreciate that schools craft rules to guide teachers and administrators, given that the false security of “common sense” would produce wildly disparate results.

Schools hope to limit the particularly bad discretion of its people and guide them toward the ideals that school boards and administrators seek to impose.  We all get that.  It’s better than leaving matters relating to children in the hands of the AP English teacher who expects to become a celebrity when the next episode of  Hoarders airs.

But crafting rules intended to be absolute in their application is extremely difficult, if not impossible. The law of unintended consequences is bound to come into play.  It’s beyond the ken of most school boards, not to mention school attorneys, to create an overarching rule, though it’s incredibly easy to add in the words “zero tolerance” and bask in the applause of an ignorant community that hasn’t thought matters through.

But when the product of what seems to the casual observer to be a good way to run a school is a dead student lying on the floor a few feet away from an inhaler that would save his life, someone in a position of authority has to concede that the rule has a problem. 

The question isn’t who to blame after the child dies.  Was the mother at fault here for failure to have the signed form for this school year on file? Sure.  She screwed up.  Does the school really take comfort in the ability to point the finger elsewhere as they stand over the corpse of a student? 

Here’s an idea.  Rule 1 for all schools, to be printed on page one of the rulebook in boldface type, 24 point type, with nothing else on the page:

No student shall be left to die because of a rule.

No doubt there will be an unintended consequence of this rule, but it seems as worthy of suffering that possibility as the rule the prohibits students from being educated because their pants are too saggy.

Stetson University College of Law, best known for its five for one beer specials on Thursdays, has  announced a new prize for first year law students.

Stetson University College of Law alumnus Brian L. Tannebaum ’94 has created an award for students who excel in their first-year criminal law course. The Brian L. Tannebaum High Grade Award in Criminal Law rewards Stetson students earning the top grade in each section of their criminal law class with a financial award of $500.

Yes, that would be the same mean, nasty Brian Tannebaum who writes about  criminal law issues,  professional ethics issues and, at Above the Law, small firm issues.

Holy crap! You mean he’s not just an angry old lawyer spewing hate and venom around the interwebz?

Welcome to the world of real people, where reality too often flies in the face of efforts to ignore unpleasant advice.  Brian Tannebaum doesn’t hate law students. He doesn’t hate young lawyers. In fact, he actually cares a great deal about them and their future.  You’re shocked? You shouldn’t be. 

Contrary to the cries of those impaled on sharp words, the purpose of his critiques aren’t to wound but to help.  He responds to the happy faces singing the praises of magic bullet solutions to age-old practical and ethical problems.  He doesn’t do this for his sake, as he’s already achieved substantial success.  No, you do not threaten him. No, you aren’t even close to threatening him.

And it goes beyond some walking-around money:

Student Kacie Hohnadell, who has won the award multiple times, described receiving the Brian L. Tannebaum High Grade Award as one of the most gratifying experiences of her law school career.

“It was very rewarding for my hard work and dedication to be recognized,” said Hohnadell. “In addition to receiving the award, I had the opportunity to have dinner and a wonderful conversation with Mr. Tannebaum. His generosity and encouragement were inspiring, and I truly enjoyed meeting him.”

Yes, inspiring. He’s not obliged to sit down with students, or take them to lunch. He doesn’t have to talk to them. But he does.

Despite what the apologists in the Happysphere say, there is an obligation that many experienced lawyers take very seriously, to try to help, encourage and inspire law students and young lawyers to be the best they can be.  We want them to succeed.  We want them to be zealous, ethical and enjoy a fabulous life. 

And Brian Tannebaum puts his money, and his time, where his mouth is.  And he endures the ignorant backlash of those who feel the sting of his words because he won’t let them get away with unethical or improper behavior.  And he does it all to help others.

It’s one thing to be arrested. It’s another to be officially informed you’re under investigation. But what if a letter arrives from the FBI informing you that you can either take a deal or suffer the consequences, and it turns out to be a mass mailing?

According to Newsday, 21 former Long Island Rail Road employees have been arrested for participating in an alleged disability pension scam which the government claims cost $1 billion over a decade.  The allegations are fairly pedestrian, with the defendant claiming injury and the inability to work, then later (maybe even years later) seen engaging in physical activity that, the feds claim, they shouldn’t be able to do. But the 21 merely scratches the surface, according to the government, and there are at least another 1500 people out there doing the same. 

That’s a lot of arrests and prosecutions, not so easily accommodated. What to do?  Send ’em a letter.

In a letter mailed Tuesday to LIRR retirees claiming disabilities, prosecutors said those who come forward and admit by July 6 that they falsified their claims will get to keep all their past benefits, while those who wait for the deadline of Aug. 10 will have to give up half of their past benefits.

“If you are culpable in this fraud, the voluntary disclosure program announced today is certainly a better choice than crossing your fingers and hoping we don’t find you,” said Janice Fedarcyk, head of the FBI’s New York office.

“It’s saying to someone, ‘You’re admitting you committed a crime, you can keep all you made up to this day,’ ” said Richard Klein, a Touro Law school professor. “That’s what’s occurring here. The excuse is too many individuals, but we’re talking about a billion dollars here. . . . It’s really rather startling.”

On the other hand, this may reflect a heavy handed attempt to scare disabled retirees with the threat of prosecution when the government has absolutely no reason to suspect wrongdoing. It raises a host of questions, as the government has already indicted 21 people, which suggests they’ve gone after those against whom evidence exists, and the rest is a mop-up operation without any basis for the threats. 

While the government alleges that there may be another 1500 scammers out there, the threatening letter was sent to every former LIRR employee on disability.  How many of the recipients will be scared to death and decide to give up needed, and deserved, disability benefits rather than risk prison?  How many will have made some inconsequential exaggeration at some point in the disability process and fear that the FBI will be banging down their door over it?  How many will just cop to a crime that never happened rather than live in fear?

Receiving a letter like this is going to scare the crap out of a great many people. If they deserve it, that’s one thing, though as Klein says, it seems like an awful lot of crime left on the table if the government’s assertions are even close to accurate.  What gives the United States Attorney’s office the authority to give away a billion dollars because it’s too much of a burden to do their job?

And if the recipients don’t deserve to receive this letter, then it’s outrageous that the government use scare tactics to try to coerce admissions and relinquishment of disability payments from people who have done nothing wrong.

It’s not that it’s difficult for the government to rationalize this tactic. To many, especially given the loathing most LIRR riders have for the high price of train tickets, any smackdown of former LIRR employees will be met with applause.  People have a very tough time distinguishing their hatred of the entity with the conduct of any individual person involved.  So what if there are legitimately disabled former employees out there? They were overpaid anyway, and the LIRR keeps raising ticket prices, and somebody has to bear the brunt of public ire.

But the disabled employee is a person too, just like all the LIRR haters (and I hasten to add I have no love for the LIRR). With a family, a life and the need to survive.  If there is evidence that he engaged in a scam, then prosecute. But if there is no evidence, and this attack is nothing more than blindly pointing the government’s big gun at every disabled former employee, in the hope of scaring the powerless into submission, then this is just wrong.

The justification for the tactic is found in the argument that no one will come forward if they’ve done nothing wrong.  If only this was true. Just as people give false confessions, the recipients of disability (and these letters) are vulnerable. Some will speak with a lawyer, who hopefully will guide his advice without a thought to his pecuniary interest. Some will ponder what to do across the kitchen table, or with the next door neighbor whose daughter was a cop and therefore knows all about this sort of thing. And they will blindly make decisions that could have a deleterious impact on their lives.

There will be a lot of scared people out there, and some, maybe many, will take what they perceive as the safest course. Better to give up their disability then spent their final days behind bars.  So what if that isn’t what would happen, or that there is absolutely no evidence that they committed a crime. Play it safe. Protect the family. Fear the government.

This is very wrong.  If there is evidence of a crime, then prosecute. But if there is no evidence, then it’s outrageous to try to scare the innocent into submission.  And the shame is that it will enjoy some success, and many who hate the LIRR will applaud.

It started with a whiny post about a law student who blew off her summer job as a research assistant when she got a gig as a summer associated.  She sent NYU lawprof  Roderick Hills an email apologizing, but this wasn’t nearly enough for Rick.  She should have genuflected.

Rick Hills complained about the student leaving him high and dry, failing to make an act of sufficient contrition, and asked the crowd at PrawfsBlawg whether the student’s failing reflect a lack of “professional ethics,” or whether he was being an oversensitive curmudgeon.  For this, he got a universal smack down, and subsequently removed the post for his lack of discretion in posting the content of the student’s email.

At first, he apologized, though not for his inappropriate smear of the good name of curmudgeons.  But that was only the first step.  Rick Hills took matters a step further, and a step sideways, by taking an introspective look at how and why he could have been so utterly clueless.

“Privileged cluelessness” is the state of being oblivious about how one’s words or acts might affect others because of some privilege that one enjoys even as one forgets that one enjoys it. At its core, it is one’s loss of social empathy as a result of some advantage enjoyed over one’s audience.

It is no big surprise that professors are often guilty of privileged cluelessness. We hold the proverbial conch shell for so long in the classroom that we can easily forget that our position of perceived authority and actual power deprives us of useful feedback about the effects of our words and actions. Our “provocative” comments come off as pompous or arrogant; our lectures, riveting in our own minds, are, in reality, an opportunity for our students’ e-mailing checking or web browsing. Students are understandably cowed at providing feedback to such an authority figure, and professors can easily overlook how students’ sense of self-worth can be disrupted by the professors’ questions intended as provocative but coming across as humiliating.

Closer to law school home, Brian Tamanaha’s new book, Failing Law Schools, is a tough and coldly clinical examination of how law schools have become insulated from their students’ economic and professional reality.

…then we would all be incarcerated.  Superior Court Judge Glenn Berman sentenced former Rutgers student Dharun Ravi and target of anti-gay, anti-bullying activists following Tyler Clementi’s suicide.  From the Star-Ledger :

Superior Court Judge Glenn Berman shocked the New Brunswick courtroom Monday when he ordered Ravi to spend 30 days in jail, departing from established sentencing guidelines that called for up to 10 years in state prison. Visibly upset with the sentence, First Assistant Prosecutor Julia McClure immediately told the judge she would appeal.

In addition to 30 days jail, the judge sentenced Ravi to three years probation and told him to contribute $10,000 to a state licensed community based organization dedicated to assisting victims of bias crimes. Berman also said he would recommend Ravi, who has lived in this country most of his life but is not a citizen, not be deported to his native India.

Wails were heard across Middlesex County.  Curiously, the judge did not impose the presumptive ten year sentence of imprisonment because he did not believe Ravi was biased against gays :

Superior Court Judge Glenn Berman got it exactly right yesterday when he said Dharun Ravi acted not out of hate, but of “colossal insensitivity.”

There was never any clear evidence of [hatred]. And Ravi shouldn’t be held responsible for Clementi’s death. We’ll likely never know why he leapt off that bridge, yet it’s the political fury at the suicide that put Ravi in this position.

For all the heart-rending by those whose goal is to put an end to hurt feelings, this sentence presents a conundrum.  There must be consequences so that their agenda is taken seriously, enforced by a penalty of sufficient severity that they can impose their perfect world of happy feelings on others.  At the extreme:

One Columbia law professor even suggested he showed “the same disregard for human life” as someone guilty of vehicular manslaughter, as if texting while driving were in any way comparable. In that case, we know who caused the death. Here, we have no idea. Clementi left a suicide note, but authorities have refused to release it.

Yet most anti-bullying adherents are not so mindless as to seek a sentence so harsh as to destroy Ravi’s life.  Even the confusion as to the connection between Tyler Clementi’s death and Ravi’s act distracts from the problem. If there was proof that Ravi’s conduct precipitated Clementi’s suicide, the outcome doesn’t change the intent of the act that precedes it.  Of course, people (including lawprofs) have great difficulty grasping this concept.

The problem now is that they are forced to come to grips with the reality that there is a huge difference between those who engage in violence toward others and those who show “colossal insensitivity.”  The problem is that many people show “colossal insensitivity,” whether toward gays, or women, or Catholics or someone else. If pushed, one might call this a truism of humanity, that we are all insensitive toward someone else in the course of a lifetime. 

Most of us are insensitive fairly on a regular basis.  How insensitive, whether colossal or just regular, is a matter of opinion. If you happen to be on the south end of insensitivity, chances are you will feel it’s far closer to colossal than not.

What are the chances Ravi meant to do harm to Clementi when he streamed the video of his roommate making out?  What are the chances Ravi considered the impact of his conduct?  Pretty slim.  Of course, the lack of thought or insight into the commission of a criminal act is hardly an excuse. If “I didn’t mean to cause harm,” was an acceptable excuse, there would be far fewer people convicted and far more people harmed.

But this case goes into relatively new territory based on the anti-bullying fad, where the new happy order is that the crime is to hurt another person’s feelings and the myth is that it’s no different than a punch to the gut. 

The sentence imposed is hardly insignificant. Time in jail, even a day, is significant. The $10,000 means something. The 300 hours of community service is nearly two months of work.  Plus, there’s a college education lost, as well as a future of dubious expectations.  All because of colossal insensitivity.

While Judge Berman’s sentence shows substantial thought and restraint, compared with what it could have been given the cries for blood, it would have sufficiently served the purposes of sentence had it been limited to either the 30 days in jail or the 300 hours of community service.  Requiring a college student to pay $10,000 to a private organization whose purpose is to further a political agenda makes no sense at all, either from a financial or legal perspective.  Imposing all these components of a sentence is overly harsh and disproportionate to the conduct.

But if Judge Berman meant what he said, that this was not a matter of hatred but merely “colossal insensitivity,” then he should have tossed the verdict altogether.  Despite the advocates of government compelled “sensitivity,” it makes a criminal of all of us. 

We need to stop kidding ourselves that we can criminalize insensitivity and eliminate it from the human condition.  We need to toughen up and shrug off an unkind word and insensitive act rather than demand the perpetrator of our hurt feelings go to prison.  We cannot build a world of perfect self-esteem on the back of the criminal justice system.  Or we will need to build a lot more prisons to house all of us.

Those too unfortunate not to live in New York may not be familiar with the New York Post’s stance on police. They absolutely adore them. There is no tabloid more inclined to apologize and excuse a cop delivering a damn good beating than the Post.  But even the New York Post has limits, and apparently NYPD Sgt. Lesly Charles crossed that line.

The conflict arose from a parking dispute on Ditmas Ave. in Brooklyn.  Again for the uninitiated, crime is one thing, but illegal parking is serious in Brooklyn.  There are some things you just can’t get away with, at least not if you don’t want to evoke the ire of the cop who owns the road.

“This is my street. All right? If you got to play tough, that’s your problem . . . I do whatever the f–k I want.”

Well, of course. A police officer takes personal responsiblity for the excellent performance of his official duties, and the worst that can be said of him is that he uses the vernacular of the neighborhood so that his message of law and order is clearly understood?

Yet the parking perps weren’t satisfied with this warning, and sought additional instruction of the Sargeant, who, in keeping with the tradition of New York’s Finest, explained the ramifications in greater detail.



While the video may present some difficulties for those who don’t speak Brooklyn, the Post provides a transcription:

“I have the long d–k. You don’t,” the cop bragged.

“Your pretty face — I like it very much. My d–k will go in your mouth and come out your ear. Don’t f–k with me. All right?”

After the target of his tirade insisted, “I didn’t do anything,” Charles retorted, “Listen to me. When you see me, you look the other way. Tell your boys, I don’t f–k around. All right?”

“I’ll take my gun and put it up your a– and then I’ll call your mother afterwards. You understand that?”

For good measure, the sergeant added: “And I’ll put your s–t in your own mouth.”

Charles added, “I’m here every f–king day. I don’t go home. I have no life. No kids. I do what I do.’’

Dedication to the cause like this deserves a medal, though the local language may be deemed by some neo-Puritans to be a bit colorful.  What can’t be ignored on Ditmas Ave. is the quality of life this officer promotes.

Because the War on Terrorism and the other War on Drugs, plus the War on Crime, not to mention the wars on foreign soil for no discernible reason, aren’t enough to keep us busy. President Obama has announced the next one: The War on Prison Rape.

Sexual violence, against any victim, is an assault on human dignity and an affront to American values.  The Prison Rape Elimination Act of 2003 (PREA) was enacted with bipartisan support and established a “zero tolerance standard” for rape in prisons in the United States.  42 U.S.C. 15602(1).

My Administration, with leadership from the Department of Justice, has worked diligently to implement the principles set out in PREA.  Today, the Attorney General finalized a rule adopting national standards to prevent, detect, and respond to prison rape.  This rule expresses my Administration’s conclusion that PREA applies to all Federal confinement facilities, including those operated by executive departments and agencies (agencies) other than the Department of Justice, whether administered by the Federal Government or by a private organization on behalf of the Federal Government.

How exactly the government plans to achieve this goal isn’t clear.  While it’s another “zero tolerance” thing (which apparently means you don’t get your first prison rape free?), the presidential memo cites to the AG’s having finalized “a rule,” which apparently means they have cut the rule of combat sufficiently to the quick so that prison guards can follow it.

But nothing in the memo suggests what this rule is.  My first guess is that it’s “No rapes allowed,” and the implementation of the zero tolerance standard will involve big yellow signs with an erect penis and a circle with a line going through it.  If there was a second rule, it would be “Just say no” to rape, due to its effectiveness during the War on Drugs.


I’m only speculating here, but I do not believe the model for this symbol was Jewish.

When Ed at  Blawg Review sent me a link to President Obama’s implementing memorandum, the question was posed where this war might be going.  Ed responded with the  Connecticut scheme to label prison masturbators as sex offenders,

“This would be something that would be with them for the rest of their lives,” she said. “This isn’t something where you lose commissary privileges within the walls of the facility. Typically, a male prisoner does not want to be labeled as a sex offender.”

Simultaneously, they plan to ban all the nasty stuff that contributes to prisoners self-stimulation.

The move to pass legislation comes at the same time that the department is removing all pornography, material that contains “pictorial depictions of sexual activity or nudity,” from the prisons. Inmates were given a year to get rid of all their porn and the total ban takes effect in July.

The ban is intended to improve the work environment for prison staffers who might be inadvertently exposed to the material.

While Ed may be right, it seems that if this is part of the plan to eliminate prison rapes, no one explained to the screws in Connecticut how this whole sex thing works.  Initially, if you want to prevent rape, it seems prudent to encourage the release of pent up sexual energy rather than prohibit it.  Further, if your prison staffers dislike being inadvertently exposed to porn (as opposed to their intentional exposure at home), they’re going to really hate having to watch an explosion of prison rape.

Where this is heading defies imagination.  Were prison officials ignoring rape before?  Was this embraced as part of prison culture up to now?  And if they couldn’t stop it without a law, how exactly is a law, with or without the AG’s new rule, going to change this?

Despite the absence of any idea of the magical way the government has in mind to prevent this perpetual nightmare within the prison system, one thing is clear.  There is a new War to be fought, and that means unintended casualties and collateral damage.  And since it’s zero tolerance, what could possibly go wrong?