There was a time when being a member of the United States Sentencing Commission was a big deal. But that was before Booker, holding the Sentencing Guidelines advisory. Since then, most judges have come to the realization that the grid was more random numbers than reality, more Draconian aspiration than a reflection of sentences either appropriate under § 3553(a) or some empirically determined aggregation of actual sentences meted out by actual judges.

That doesn’t mean the Commission doesn’t matter. There are still a few judges who refuse to recognize that the numbers on the sentencing grid, and calculations done to reach those numbers, are merely social engineering. And there are the younger judges, who never practiced law before the Mistretta went and screwed everything up, to whom the monstrously long sentences seem totally normal.

But there is one guy for whom the Guidelines were just too lenient, too soft on crime, a gift to the vicious jaywalkers who deserved life, or the more serious criminals who deserved life plus cancer. And it comes as no surprise that he’s finally getting his close-up. Continue reading →

She was predator, not prey. It was consensual, not coercive. But how would Monica Lewinsky know that someday, 20 years in the future, a narrative would arise that would enable her to reinvent herself as the victim?

I have been working toward this realization for years. I have been trying to find that power—a particularly Sisyphean task for a person who has been gaslighted.

To be blunt, I was diagnosed several years ago with post-traumatic stress disorder, mainly from the ordeal of having been publicly outed and ostracized back then. My trauma expedition has been long, arduous, painful, and expensive. And it’s not over.

Take a second to breathe, wipe the tear from your eye, and reflect. Monica has. Continue reading →

It’s long been recognized that prosecutors are part of the problem. They hold too much power over the system, as a by-product of mandatory minimums, based upon charging choices that constrain a judge’s authority to sentence as she sees fit. And then there’s the deference problem, that judges acquiesce to prosecutorial demands because they’re the good guys on the side of truth and justice.

And it’s long been recognized that much of the system that’s gone terribly awry, from mass incarceration to gross racial disparities, happens at the hands of prosecutors. But it wasn’t until Fordham lawprof John Pfaff’s research that we learned that prosecutors played a pivotal role in mass incarceration by increasingly pursuing felony charges, with their higher sentences.

Pfaff showed that many of the favored tropes about the system, the myth that the overload is caused by non-violent first-time drug offenders, for example, were false. If we repealed laws criminalizing drugs tomorrow, it wouldn’t empty the prisons. Most crimes are “violent,” and Americans remain convinced that violent criminals must be put away for life plus cancer. Continue reading →

Some view the New York Times as a sketchy resource, too often providing real estate on its op-ed pages for those who hold outlier, unfounded, factless views in support of social justice goals. Some, but not all.

Why is it that whenever the NYT starts “recruiting different kinds of writers than we have traditionally” they’re always white and racist and kind of mean? They’ve never been well stocked with writers of color who are kindly intelligent—why not diversify with some of those? pic.twitter.com/FUUFHSfwOX

— Steven Thrasher (@thrasherxy) February 27, 2018

It’s unclear, at least to me, what this means. Is the argument that Thomas Sowell should be a columnist? He’s black and intelligent. He can’t be racist, by some definitions. Maybe he’s not “kind” enough? Continue reading →

Is Middlebury College unduly harsh in its discipline? That’s a matter of perspective, and a “permanent” letter in a college student’s file can be a deal-breaker for some purposes. Grad school, for example. And that means it could conceivably make it hard for Elizabeth Dunn to achieve her goal.

Dunn told the Seven Days reporter that although they are applying to law school, they are not concerned with the discipline on their record hurting their chances of being accepted. Dunn said their backup plan is working in the Bronx public defender’s office.

Who are the “they”? That would be Dunn, as she either prefers her special pronoun or has multiple people residing inside her head. Will law school still want her with a blemish on her undergrad record? Certainly some law school will. Empty seats are depressing. Continue reading →

Today’s new word is “himpathy.”

an excessive sympathy for privileged male perpetrators with ostensibly bright futures.

What distinguishes these “privileged male perpetrators” is that they have neither been accused nor convicted, and so they just get away with it.

It’s very easy to condemn the likes of Harvey Weinstein now. A few months ago, it wasn’t—and, with regard to many serial sexual predators and other perpetrators, it still isn’t and never will be. Continue reading →

The Second Circuit could have dodged Zarda altogether. Donald Zarda died in a BASE jumping accident. His former employer, defendant Altitude Express, wasn’t fighting his claim that discrimination on the basis of sexual orientation was not covered by Title VII’s prohibition on discrimination “because of . . . sex,” but contending that his firing had nothing to do with his being gay. And the Second Circuit panel that heard the appeal of his partial summary judgment dismissal of his Title VII claim affirmed the district court.

Yet, the circuit took the case en banc anyway. One hundred and sixty-three pages later, only one thing is clear.

We now hold that sexual orientation discrimination constitutes a form of discrimination “because of . . . sex,” in violation of Title VII, and overturn Simonton and Dawson v. Bumble &
Bumble, 398 F.3d 211, 217–23 (2d Cir. 2005), to the extent they held otherwise.

Continue reading →

Some people are great drivers on a road with painted lines, but put them in an open parking lot, an open field, and they’re lost. Without lines, they have no clue where to go. They need structure. And it’s not enough that they get structure for themselves, but they demand that the structure they need be imposed on everyone else.

How is it possible that they could need structure and others don’t? How is it possible that others will do things that fail to comport with the structure that makes sense of the world to them? These are the rule-demanders, and they love them rules. They love rules for themselves. They love rules for you. They love rules.

Now, the current crop of pioneers at Antioch are moving the conversation beyond sex to discussions of consent in platonic touch.

When Alyssa Navarrette, a third-year student who is studying anthropology and art, came home for her first visit after starting college, she was taken by surprise when her mother hugged her.

“If you don’t want to be touched and your mom wants to hug you, you should be allowed to say no,” Ms. Navarrette said. “It’s about having autonomy over your own body.”

Continue reading →

The saying is that people in glass houses shouldn’t throw stones, but the impulse to throw stones is not just strong, but strengthened by the cheers of all the other people in the same glass house as you throwing stones of their own. When everyone around you is throwing stones, why shouldn’t you?

Mona Charen had stones to throw, but she also had principles. Her first was to build a house that wasn’t glass.

I’ve been a conservative my entire life.

You may not be a conservative. Not for your entire life. Not for a minute of your life. That’s fine. No one says you should be. You be you. And Mona Charen gets to be her.

So you’d think that the Conservative Political Action Conference, or CPAC, would be a natural fit. It once was. But on Saturday, after speaking to this year’s gathering, I had to be escorted from the premises by several guards who seemed genuinely concerned for my safety.

Continue reading →

In an excellent post at, of all places, The Nation, JoAnn Wypijewski includes a very insightful paragraph that is worthy of stand-alone consideration. She began with the telling of her #MeToo story.

We both were young, 20s, but I was older. We worked for the same outfit, but I was paid. We kissed while walking home from a party, and then at the back of a bus, and then in his stairwell. He had made the first move, but only I could say, in the midst of our distraction, “Of course this means I can’t hire you.” He was an intern, I a department chief.

The declaration astonished him—whether because he sensed I underestimated him, I cannot say. Ultimately, he so surpassed the qualifying test’s requirements that not hiring him would have been absurd. Years later, a catty friend would say ambition alone drove the boy’s kisses: “After all, he was gorgeous, and you…” I was his boss and lover, he my assistant and lover, each of us on the seesaw of power and weakness that those dual roles implied until, over time, the temperature changed.

As you can see, it’s not quite the #MeToo story a Jedi would tell you. But Wypijewski goes on to make an exceptionally important observation: Continue reading →