Much to the chagrin outrage of many of the unduly passionate advocates for criminal law reform, I’ve refused to succumb to the facile, if simplistic, mantra of “everything is racism or sexism.” Indeed, I’ve explained why this is both wrong and a dangerous conflation of two extant problems that exist side by side, but separate, which is why they don’t want to hang out with me anymore. If you’re not part of their tribe, you’re part of their enemies’ tribe.

When it comes to an issue like the death penalty, invariably emotionally charged and particularly susceptible to reduction to absurdity, the calls that the system is broken because it’s racist are particularly loud and strident. It’s bad enough that so many advocates think only black and brown people are arrested and imprisoned, rather than grasp that they may be disproportionately targeted, but the same system puts white people in prison as well.

In California, where the death penalty remains a theoretically available punishment, the problem with this misguided understanding of the problem came to a head. Continue reading →

Two of Congress’ most curious economics mavens teamed up to introduce a bill to cap credit card interest rates at 15%. Their argument in favor of this legislation was straightforward.

Ocasio-Cortez (D-N.Y.) will introduce the House version of the bill. “There is no reason a person should pay more than 15% interest in the United States,” she said on Twitter. “It’s a debt trap for working people + it has to end.”

So “no reason” isn’t exactly a strong argument, but it’s more than sufficient to appeal to the base. And, in a vacuum, it’s hard to argue that interest rates of 15%, no less the maximum below usury, 25%, are fair when banks are paying a pittance, if anything, on deposits. But then, that’s not the criterion for unsecured credit. Continue reading →

A quiet suburban community is reeling from the horrific tragedy of two men leaving a home dinner mutually agreeing to disagree with each other over certain controversial subjects.

“Look, I like Jim,” said John Anderson, “We meet every week or two with our spouses for dinner, and we’ll try occasionally to find common ground on stuff, but I just think he’s wrong about a few things. He’s got great taste in scotch, though!”

“I’ve known John ever since he and his husband moved to the neighborhood,” quipped Jim Stone. “He’s an incredibly smart guy and very generous with his time to anyone who asks. I just fundamentally disagree with him on a few issues and have since we first met.” Continue reading →

The argument, spurious as it may be, is that the Sex Offender Registry is justified as a means of alerting people to the child molester or rapist next door. Not “fair enough,” but still, that’s the rationalization. So Florida has taken the “sex” part, ignored the rest of the reasoning, and run with it.

Florida lawmakers just voted to create a public registry of people caught paying or attempting to pay for sex.

After an initial defeat in the Florida House of Representatives, the registry—arguably the worst part of a new Florida crime bill capitalizing on human-trafficking propaganda—was revived and reinserted before the measure’s passage in the Florida Senate. The final version, approved last week, creates a database of convicted prostitution customers, targets strip clubs, and mandates that a slew of state workers and businesses jump through new hoops to accommodate a few politicians’ latest attempt to get their names in the press.

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Yesterday, the New York Times published an op-ed by former Obama chief of staff, now Mayor of Chicago, Rahm Emanuel, laying claim to having begun the successful reform of the Chicago police department. The Chicago Tribune replied with an editorial calling bullshit. The reason is clear: Emanuel, in the midst of his farewell tour, having announced that he would not be running for another term, has fabricated his success out of whole cloth. It’s a lie. It’s revisionist history. It is bullshit.

Today, the New York Times has published another lie, this time by Anita Hill. I have no clue what happened between her and Clarence Thomas. I remember well watching Thomas’ confirmation hearing. I recall being grossed out by Hill’s testimony about a pubic hair on her can of Coke. I was no fan of Thomas, and believed he was singularly inadequately distinguished to serve on the Supreme Court.

But Hill’s testimony, disturbing though it was, failed to doom the nomination for an obvious reason. She could have taken action against Thomas, proved her claim and prevailed. Instead, she did nothing, save made excuses for her failure to act. That was 1991, decades before people forgot that mouthing untested accusations was absurdly inadequate to prove they were wronged. Continue reading →

Tom Nichols, who has curmudgeon potential should he seek to work a little harder on it, revisits the (thus far) ineffective calls to fire Camille Paglia from Philly’s University of the Arts and Sarah Lawrence’s “Diaspora Coalition’s” condemnation of its professor, Samuel Abrams. And, of course, the students at Vermont’s Middlebury College, threatening governmental suicide if their demands aren’t met.

In Vermont, students at Middlebury College have threatened to disband their own student government if the school does not respond to a hodgepodge of demands ranging from greater student presence in the administration to the creation of a black-studies department. Many years ago, I taught at Dartmouth College and lived in Vermont just up the road from Middlebury; just 1.1 percent of the population of Vermont, the whitest state in the nation, and 1.9 percent of Middlebury’s is black. That might make recruiting faculty for a black-studies department a challenge for any institution in the region, but students also want a two-year plan to create an LGBTQ center, hire more counselors who are “femme, of color, and/or queer,” and “provide a more robust health service for transitioning people,” proposals that are likely to be especially expensive for a small institution in rural New England.

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Andrew Miltenberg won another big decision against Syracuse University. His client was John Doe. They’re always John Doe, and the accuser is Jane Doe, no relation. There are two things about this win that stand out. The first is that Judge David Hurd of the Northern District of New York recognized the inherent bias in “trauma-informed” interrogation.

John also contends defendants were influenced by biased sexual assault trauma training they received, specifically “trauma-informed investigation and adjudication processes,” which is required by federal and New York State law. The goal of which, according to the U.S. Department of Education’s Office of Civil Rights (“Office of Civil Rights”), is to ensure “the protection of girls and women.” Recipients of this type of training are taught that “inconsistencies in a complainant’s story are a direct result of the trauma,” that is, that they are “a natural byproduct of sexual assault as opposed to an indicator that the complainant’s story may lack credibility.” Plaintiff contends that this “bias in favor of the female accuser” is the only explanation for the Conduct Board’s findings in light of Jane’s inconsistent allegations.This bias, according to John, is further evidenced by the Conduct Board’s finding that Jane’s “actions throughout the process are consistent with a traumatic event such as she described in her statement.”

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It’s hard to argue against “Marsy’s Law,” both because victims are inherently sympathetic (and in the age of empathy, don’t we all feel just horrible about the poor victims?), and because it’s more an overarching concept than a specific thing, as each jurisdiction that considers or enacts a Victim’s Bill of Rights does so a little differently, each expecting to tweak it to make it workable.

From the perspective of the public, this not only seems just and fair, but obvious. Shouldn’t we be concerned about victims? Shouldn’t victims be treated with respect? Shouldn’t victims deserve to be protected from the retraumatization of their abusers? There’s certainly a strong pull in favor of answering each of these questions with a resounding “yes.”

No. The answer is “no.” There are no victims in criminal court. There are two tables, one for the prosecution and one for the defense. There is no third table for the victim, and there shouldn’t be. Continue reading →

The argument made to the jury about the person whose crimes are forgiven, who is taken into the DEA fold, is that when angels are involved in drugs, witnesses will be angels. Until then, the government is constrained to use the services of scoundrels to win the War on Drugs. And it works. All the time.

So what if the “confidential informant,” the euphemism for the mutt who yesterday was the worst lying scum alive but today, in the service of the DEA, is somehow rehabilitated into a reformed sinner repenting for his misdeeds. And, usually, working them off any way he can.

But just how bad must a snitch be to fall below the threshold of DEA love? Edward Quintana tested the depths to which the government would go, and the DEA failed the test. Or, according to the Tenth Circuit, the DEA won, because qualified immunity precluded culpability for their allowing Quintana to be out and free to sexually molest Jason Estrada’s minor son, and then murder Estrada. Continue reading →

My pal, Brian Cuban, has been a strong voice for lawyers who suffer, whether from mental illness or addiction, to seek help, pushing to remove the stigma that prevents lawyers from doing so for fear of ridicule and rejection. He’s taught me to appreciate the problem and value of dealing with it.

To be fair, it hasn’t been easy. While I can certainly appreciate Brian’s, not to mention other lawyers with whom I’m good friends and for whom I hold great respect, perspective, the flip side of the equation is clients. What about clients? Should they be represented by lawyers who, at any moment, might slip into mental illness, disappear in a fog of addiction?

Is there a way to reconcile the needs of lawyers to help themselves and the needs of clients to be helped by mentally healthy, non-drug addled lawyers whose foremost concern is them? Isn’t that why lawyers exist, to serve clients rather than have a place to go to every morning where they can feel comforted and secure? Continue reading →