Michigan Lawprof Nicholas Bagley raises the alarm that, based upon the Supreme Court’s decision in Gundy v. United States, Justice Elena Kagan might be right that “most of Government is unconstitutional.” Whether that’s correct or hyperbole, is that a bad thing?

In Gundy v. United States, which concerned the constitutionality of a law requiring the registration of sex offenders, four of the more conservative justices endorsed a controversial legal theory according to which Congress lacks the power to delegate broad powers to agencies like the Food and Drug Administration and the Department of Heath and Human Services.

The “controversial legal theory” is called the “nondelegation doctrine,” which limits Congress’ authority to enact a law with a general concept and hand it off the bureaucrats to make it happen. Continue reading →

You loved him at Fault Lines. You appreciated him here. And now he’s broken free of the chains of bondage to join the ranks of big pundits pontificating to the passionately unwashed. Andrew Fleischman got the call and went for it.

The Supreme Court Just Showed a Way Forward on Criminal Justice Reform

in doing so, the quality of Slate’s legal writing just improved immeasurably. Andrew’s got no ax to grind that compels him to twist, if not outright fabricate, the holding of the Supreme Court in Rehaif v. United States to fit an agenda, because it would be a shame if any reader walked away without being told what they’re to think. Continue reading →

When Justice Sam Alito goes with the majority’s reversal of a death penalty conviction, you know it has got to be bad. And as Justice Brett Kavanaugh’s opinion made plain, it was bad.

Four critical facts, taken together, require reversal. First, in the six trials combined, the State employed its peremptory challenges to strike 41 of the 42 black prospective jurors that it could have struck—a statistic that the State acknowledged at oral argument in this Court.

Second, in the most recent trial, the sixth trial, the State exercised peremptory strikes against five of the six black prospective jurors.

Third, at the sixth trial, in an apparent effort to find pretextual reasons to strike black prospective jurors, the State engaged in dramatically disparate questioning of black and white prospective jurors. Continue reading →

Harvard’s admissions committee ended the week standing beside Massachusetts Governor Gerald “McNutty” Wanker as he advocated for a new law strengthening penalties against cyberbullying.

The move was another eye-raising one by the Ivy League institution, which started the week by rescinding the admission of an incoming freshman for making stupid remarks at age sixteen in a private Google document.

“We’re certainly not criminalizing speech,” remarked Governor Wanker, as cameras flashed on his Botox-enhanced grin.

That would run foul of the First Amendment, or so the ACLU and a boatload of lawyers tell me. What we’re doing here is criminalizing conduct! Kids have to know telling their peers to eat shit and die on Facebook is not okay, and when we lock someone away for fifty years because of a hateful tweet, it’ll be a wakeup call.

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It can be hard to get too teary-eyed over the fact that defendants sentenced to probation, or convicts released on parole, end up in prison for failure to abide the terms of release. The simple answer is that if you don’t want to go to, or back to, prison, comply with the terms of your release. How hard is that?

It’s a far bigger question than many realize.

Nationwide, 45 percent of admissions to state prisons are the result of probation or parole violations. Sometimes these violations are serious, but most involve technicalities, such as botched paperwork, curfew violations or missing a drug test, according to a report released Tuesday by the Council of State Governments (CSG) Justice Center.

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Among the worst of progressive inconsistencies in “reform” is the shift away from certain offenses that affect groups they favor, such as marijuana, and toward groups they don’t, such as sex offenses. And a huge reform celebrated in a New York Times editorial masquerading as a news article is the reform of the elements of sexual harassment under New York’s Human Rights Law.

Well, calling it reform may be a bit unfair. What the New York legislature has done is removed the words “severe or pervasive,” (note the disjunctive) which means there is no effective limitation on what constitutes harassment at all.

For decades, sexual harassment was the State Capitol’s worst-kept secret.

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When he first appeared on my radar, I thought he was kinda shallow, maybe even dense. I was wrong. There was method to his madness, his pandering to the crowd with half-truths, missing salient facts, contorted law and misstated theories.

In fairness, I came to appreciate the skills Director of Policy Scott Hechinger from LIsa Schreibersdorf’s Brooklyn Defender Services brought to the cause. He’s now got a blue tick next to his name and, at the moment, more than 55,000 followers. Give him credit. He’s pulled off a coup for the cause, and with it he’s earned the devotion and appreciation of a great many passionate advocates for social justice and criminal law reform.

My perspective over my career and my tenure at SJ has been guided by two basic principles: to be as intellectually honest as I can be, and to not make people stupider. These are not Hechinger’s principles. He will say whatever is necessary to whip up his audience and inflame their outrage if it will serve the cause. So what if it’s only half a story? If it works to serve what he believes to be the greater good, then isn’t a bit of lying worth it? Isn’t the cause greater than the truth? Isn’t the cause the truth anyway, if you’re passionate enough? Continue reading →

When asked about the hearings to be held on H.R. 40 in the House of Representatives, Senate majority leader Mitch McConnell offered his facile response, “telling reporters he does not favor reparations ‘for something that happened 150 years ago, for whom none of us currently living are responsible.'”

Reparations. Even President Obama told Ta-Nehisi Coates that he didn’t think reparations would work.

Now, does that mean that all vestiges of past discrimination would be eliminated, that the income gap or the wealth gap or the education gap would be erased in five years or 10 years? Probably not, and so this is obviously a discussion we’ve had before when you talk about something like reparations. Theoretically, you can make, obviously, a powerful argument that centuries of slavery, Jim Crow, discrimination are the primary cause for all those gaps. Continue reading →

Like it or not, the endorsement of the New York Times is a big deal for politics in general, and New York City in particular. And the Times gave its endorsement for District Attorney of Queens County.

The choice is difficult. The field of candidates is big but disappointing. Tiffany Cabán, a 31-year-old public defender, is the best pick.

Ms. Cabán does not have the managerial experience of Melinda Katz, the Queens borough president, or the prosecutorial experience of Greg Lasak, a retired judge and former longtime assistant Queens district attorney. But Ms. Katz has no experience as a prosecutor nor long commitment to criminal justice reform, and despite Mr. Lasak’s tenure, he would not seem to be someone to bring change to an office where he served for years.

What does Cabán bring to the race? Continue reading →

Years of research, on top of anecdotal experience, conclusively proved the unreliability of eyewitness identification. Yet, when it served a political end, someone at the New York Times thought it worthwhile to publish an op-ed that the trauma of being a sexual assault victim made their observations, their memory of victimhood, reliable.

It wasn’t merely outrageously false, but a sellout of fact to the cause. It was a lie, and they knew it and didn’t care. In their fight for “survivors,” it was a lie they needed people to believe, and so they conveniently forgot the exonerated on death row who were the victims of false eyewitness identifications and proclaimed it real, but with a hook. This was about victims of sexual assault and rape, as if the same trauma, the same false identification, the same false memories, weren’t the same worst evidence against every accused. With that hook, they could pretend it applied exclusively to rape, even though memories are memories for any crime. Continue reading →