Sentence inflation is the sort of thing one notices. When I started defending people accused of crimes, a first-time gun possession would get probation. As fear rose during the crack epidemic, the sentence required a mandatory minimum of a year. Under New York law, it now has a mandatory minimum of 3½ years. So no time to serious time all in my lifetime.

The theory was based on a belief that made complete sense to the public, and was easily played by lawmakers who capitalized on public fears: the longer the sentence, the less likely someone would commit the crime. The problem with the theory was twofold: first, people don’t really consider sentence when deciding to commit crimes. They don’t know what the sentences are, even though people believe that people inclined to commit crimes are somehow knowledgeable about such things. They’re not. In fact, they’re often not the brightest folks around. Continue reading →

Not everyone turns to Die Hard as their favorite Christmas movie. Some enjoy the offerings from Hallmark, soothing, comforting and fascist propaganda, according to Amanda Marcotte at Salon.

None of this should be a surprise, because Hallmark movies, as cloying and saccharine as they are, constitute the platonic ideal of fascist propaganda.

They are certainly cloying. Definitely saccharine. But fascist propaganda, putting aside the question of whether Plato had an ideal about the issue? Continue reading →

There’s something sentimental about it which stirs even the hardest heart this time of year. It wasn’t a gift former Colorado Governor John Hickenlooper would give, but the new governor, Jared Polis, was in more of a giving move.

Gov. Jared Polis on Monday announced he has pardoned undocumented immigrant Ingrid Encalada Latorre, a Peruvian woman who had fought deportation and has spent the last two years in sanctuary, from felony charges related to a stolen Social Security number that she had purchased to work in the country. Losing those charges was a prerequisite for her to re-open her immigration case and ask an immigration judge to de-prioritize her deportation order.

That Latorre was targeted for deportation is unsurprising. She was undocumented and pleaded guilty to a felony. It wasn’t a terrible crime by any means, but it wasn’t a victimless crime either. Continue reading →

He’s making a list. He’s checking it twice. He’s gonna find out who’s naughty or nice. These words have very different meaning these days, none of them good. Some years, I write my usual thoughtful and inspiring note on Christmas. Other years, there is little to add. And, of course, some years, I’m reduced to writing gibberish.

Do this long enough and you feel a visceral sense of going nowhere fast. As I’m wont to do, I check the New York Times in the morning, and I did so this morning to see what they had to contribute to the Christmas spirit, to peace on earth and goodwill toward man. What I found was an op-ed by the editorial director of The Times’s Reader Center, Hanna Ingber, about Christmas trees. Well, not really about trees, but her feelings because no one writes about things anymore. Just their feelings about things.

In an interesting, if not entirely serious, proposal by Cato’s Clark Neily, there ought to be a Constitutional Small Claims Court. Sure, there are big cases with devastating damages and injuries that warrant a federal suit under §1983, but as a series of twits got Clark’s juices boiling, there are a million, a billion, trivial constitutional violations that happen and disappear for lack of anything to do about it.

First, this kind of thing happens all the time. Just noodle around on YouTube a bit and you’ll be struck by the utter banality of it all: The casual disrespect, intimidation, deceit, manipulativeness—it’s shocking how so many officers misbehave so flagrantly, even when they know they’re being recorded.

Second, as discussed below, there are rarely any consequences for officers who engage in the sort of low-level harassment described by Zeko and depicted in the links above.

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The New Jersey lawyer had booked a 12-day stay in New York with an Airbnb, but things didn’t go well, almost as if he had a cloud over his head. Karma. It’s a bitch.

on Labor Day weekend he was supposed to stay at a SoHo apartment for 12 days but the host didn’t respond to him on check-in day Sept. 1 after a dispute over a change in his booking that would have increased the cost of the stay by more than $600, according to his Manhattan Supreme Court lawsuit filed Tuesday.

Why this matter would be in Supreme Court is unclear, given what would appear to be at most a petty claim for damages that fails to meet the $25,000 jurisdictional threshold. As for the host not responding after a “dispute over a change” isn’t clear either. Was there a reason the host failed to respond, such as the dispute and the manner in which it was handled by the NJ lawyer? That can happen, especially when the lawyer behaves poorly. Continue reading →

If I haven’t mentioned it in a while, K.C. Johnson has done the heavy lifting of chronicling the intersection of crim law and academic insanity, starting with the Duke Lacrosse fiasco and continuing with the ongoing Title IX fiasco. Tracking cases isn’t always fun, but KC has been a critical resource, without which much of what’s gone wrong would blend into the abyss. And the least I can do is thank him for his efforts, which have enabled me to not only stay relatively abreast of developments, but see this bit of amazing wildness from the Johnson & Wales University case.

As Judge Mary McElroy noted in her ruling, this matter was unusual in that the student’s lawyer, James Erhard, made “his case for an unfair proceeding virtually entirely on facts put forth or acknowledged by JWU itself.” That material included affidavits justifying their guilty votes filed by the three members of the JWU disciplinary panel: Assistant Director of Clubs Elizabeth Zmarlicki, Assistant Director of Residential Communities Caitlin Codding; and Culinary Associate Instructor Tim Brown, whose job, he says, “enables him to shape the pastry chefs of tomorrow.” Each member of the panel appears to be an at-will employee, as opposed to students or tenured faculty who might have been less susceptible to feeling pressured by the school. Zmarlicki and Codding had never previously served on a Title IX tribunal.

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In the scheme of New York Times pundits, David Leonhardt is one of the lesser-known, but more even-keeled, columnists, showing a tendency toward realism while all around him lose their heads. That’s what made his op-ed on mainstream media’s bias toward centrists so painful.

Centrist bias, as I see it, confuses the idea of centrism (which is very much an ideology) with objectivity and fairness. It’s an understandable confusion, because American politics is dominated by the two major parties, one on the left and one on the right. And the overwhelming majority of journalists at so-called mainstream outlets — national magazines, newspapers, public radio, the non-Fox television networks — really are doing their best to treat both parties fairly.

Is there an “idea” of centrism? Is it “very much an ideology”? It’s possible, and they’ve conspired to keep it a big secret from me, which could explain why Leonhardt sees it and I do not. It’s not as if centrists have any duty to tell me what they believe in, and for all I know, they’re sitting around at night, chugging brewskies and laughing about how they’ve kept me in the dark. It could happen. Continue reading →

Is there a question whether transgender people exist? Most would answer “no, what a ridiculous question” as they obviously exist, even if they constitute an extremely minute percentage of the population. But to some, their existence is dependent on magic, because they rely on Harry Potter, and by inexplicable extension, its author, J.K. Rowling, for their being.

In the magical world of Harry Potter, the justice-minded and rebellious adolescent characters drink something called “Polyjuice Potion” to temporarily take on the general appearance of other people, even those of entirely different anatomies and gender expressions. As a teenager, I remember reading this and thinking, “Oh God, I wish it were that easy.” Continue reading →

In a very long PrawfsBlawg post, oddly with comments closed considering that he seems to invite them, Alabama lawprof Paul Horwitz raises a bevy of interesting questions about the “Abolish Prison” movement and how it’s being treated by the nice folks at the Harvard Law Review.

What raised his eyebrows was two things, that the issue took up a lot of real estate in not one, but two, HLRs published very close together, and that the only perspective offered was positive. In other words, it was all movement and activist stuff without any critical analysis that wasn’t promoting it as the solution to what ails us.

One might respond that there is no need to do so if those criticisms have been well aired elsewhere. I doubt that holds up as a scholarly justification: that might be true of one or two isolated articles, but when a journal devotes an entire issue and a major separate piece to what is largely a single perspective, that response becomes quite weak. The more it says from a single perspective, surely the more obvious it becomes that there are unanswered questions that ought to be addressed. Nor is it a good justification to say that the journal is uninterested in such perspectives because there is nothing to be said on the other side. At least on this issue, the Foreword itself notes several tensions in the movement, and both the Foreword and the Developments introduction note the difficulty in defining the movement at all. Obviously there are things to be said on the other side.

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