After the revelation of the video of the horrific treatment of a special needs white man by four black men and women, spinners spun to characterize the beating, knifing, toilet-water-drinking, and abuse in a way that somehow would distinguish it from the hypocritical rush to vilify others. The tables turned, the races reversed. Neither gender nor race fit the paradigm, and an intellectually challenged 18-year-old just to make everything worse.

But the day before all of this hit the fan, Paul Caron posted an “op-ed” by Daryl Jones, interim Dean of Florida A&M Law School, entitled “The Racial Rules That Keep Us Apart.” Timing can be a bitch.

Jones’ post was about Oregon Lawprof Nancy Shurtz’s boneheaded decision to wear blackface to a Halloween Party. But it wasn’t a post from the perspective of an academic. Nor a scholar. Not even a dean. In fact, Jones’ post had nothing to do with law at all. Rather, Jones wrote as a black person because, he explained, the racial barrier can never be broken.

Somehow, I am made to feel defensive by calls for her punishment.  It just makes me very uncomfortable and I don’t want her stoned in the public square for my vindication.  If I were on the faculty at Oregon I would feel compelled to protest the crowd’s outrage ostensibly expressed in recognition of my heritage and feelings.  But I might just sit, quietly grinding my teeth and hoping that the whole thing would just die down.  It is the punishment, the demand for this poor woman’s head on a platter that makes me uncomfortable.  There are clear dangers in an African American saying so.  I imagine that some colleagues might shake their heads in disgust at my own lack of outrage.  There is always the danger of being labeled an “uncle tom” or an apologist for racists if one doesn’t adopt the hot tone of indignation.  Or just plain ignorant.

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In the waning hours of his second term, the President of the United States of America was faced with an awful decision. Should he spend what remained of his time and capital accomplishing the criminal reforms he believed to be critical to the nation, or write a 53-page article for Harvard Law Review?

President Obama opted for the second choice.* The first three paragraphs of his introduction will not only give you the flavor of what’s to come (footnotes omitted, as they cite back to his own words).

Presidencies can exert substantial influence over the direction of the U.S. criminal justice system. Those privileged to serve as President and in senior roles in the executive branch have an obligation to use that influence to enhance the fairness and effectiveness of the justice system at all phases. How we treat citizens who make mistakes (even serious mistakes), pay their debt to society, and deserve a second chance reflects who we are as a people and reveals a lot about our character and commitment to our founding principles. And how we police our communities and the kinds of problems we ask our criminal justice system to solve can have a profound impact on the extent of trust in law enforcement and significant implications for public safety. Continue reading →

It’ s impossible to tell from the New York Times article whether a rape occurred, as its substantive description is limited to the conclusory allegations:

The case involved a woman, a sophomore, who had met a player on Stanford’s powerhouse football team at a fraternity party one Saturday night. They went back to her room where, she said, he raped her. He said they had consensual sex.

For the unwitting, the word “rape” carries horrific connotations. For anyone following the devolution of definition, the word means nothing. In criminal law, rape is a crime, and crimes are comprised of elements, specific conduct usually combined with a mental state of the accused.*

On campus, it means whatever the accuser feels it means, at the time, the next day, a year later. This doesn’t mean that the accuser wasn’t raped. It doesn’t mean she was, either. It only means that we lack sufficient information to have a clue. Continue reading →

William Felkner wanted to be a social worker, so he attended Rhode Island College to get his graduate degree. The course of study didn’t turn out quite as expected.

More than 12 years after William Felkner was forced to choose between staying in his graduate program and obeying his conscience, the former student has a chance to protect the First Amendment rights of students nationwide.

That’s according to a friend-of-the-court brief filed last month by the Cato Institute, Foundation for Individual Rights in Education and National Association of Scholars in Felkner’s lawsuit against Rhode Island College, a public institution.

Part of the curriculum, it turned out, involved lobbying for causes. Not Felkner’s causes. Not causes Felkner believe in or agreed with. Not that his professor gave a damn. Continue reading →

There’s a great saying, “I love humanity; it’s people I can’t stand.” New York’s governor, Andy Cuomo, is the walking, talking political version of this, gushing progressive when it suits him while putting his veto pen to use to kill any law that might actually accomplish his professed goals. It’s not that he doesn’t love the ideas, but he can’t tolerate them in practice.

Like what? Well, he vetoed statewide funding for indigent defense.  This has been a battle raging for more than a decade, to normalize funding across the state, to create a statewide office to oversee the function to assure quality and competence, and finally, finally, the Legislature passed a law. And Cuomo vetoed it. His spokesman explained:

“Unfortunately, an agreement was unable to be reached and the Legislature was committed to a flawed bill that placed an $800 million burden on taxpayers — $600 million of which was unnecessary — with no way to pay for it and no plan to make one.”

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As advocacy groups go, The FIRE, Foundation for Individual Rights in Education, is a good one. Its work on freedom of speech on campus has accomplished a great deal, which is really quite amazing given the flip-flop of academia from free speech to outright censorship. But when it comes to Title IX, it’s given away half the battle.

An advocacy group called the Foundation for Individual Rights in Education has argued for years that the Education Department guidance violates students’ due process rights. By reducing the burden of proof for sexual assault cases, the guidance by definition reduced the amount of certainty needed to issue punishment, said legislative and policy director Joe Cohn. “It is uncontroversial that there are both people who get away with things that they have done and there are innocent people who are getting expelled,” Cohn said. In response to the department’s guidance, campuses are “actively reducing due process protections, which is increasing the margin of error.”

Campus sexual assault adjudications, discussed here ad nauseam, certainly raise monumental due process problems, together with the question of whether the standard of proof, preponderance of the evidence, as dictated by the “Dear Colleague” letter from the Department of Education’s Office of Civil Rights, is grossly inadequate. Continue reading →

When some hated miscreant is convicted for a heinous crime, his angry, contorted, young face snarling out at you from the image in your newspaper, on your screen, it’s so easy to scream that he must be locked up for decades, centuries, until the day he dies, because it’s all so scary and he can’t hurt someone if he’s behind bars. What about the children? What about you?

So the answer has been easy, and one that’s rewarded politicians consistently: increasing the length of imprisonment, punishment, isolation, because, well, who really gives a damn if this person who has demonstrated an unwillingness to live amongst others according to the rules of acceptable behavior ever breathes free air again? It’s a simple solution to a complex problem, but it’s good enough and makes complete sense. Most importantly, you just don’t care enough to risk a headache thinking any more about it. Problem solved.

But years pass, and young men become old men, even older than they would normally age, because prison life isn’t nearly as much fun as you would think.  Three years out, there’s a vague recollection of the harm done. Five years, barely a twinkle. Ten, twenty, fifty, they’re mostly forgotten. Continue reading →

William Laurence Stanley left an unflattering review on Yelp about a mergers and acquisitions company, Generational Equity. For his efforts, he was convicted of a crime. He argues that his conviction violates his First Amendment rights.

Stanley, 54, says he was exercising his right to free speech and that everything he wrote about the company is true. He vowed to seek a trial and mount a First Amendment defense.

“This is America and you cannot shut up someone that is speaking the truth,” Stanley wrote The Dallas Morning News from prison via an email service.

Outrageous? Well, not so fast. Continue reading →

As Jacob Sullum notes at Reason, the good news is that the en banc Eighth Circuit held that blanket drug testing for students at Linn State, or officially, State Technical College of Missouri, was unconstitutional.

Last week a federal appeals court ruled that requiring incoming students at a state college to surrender their urine for drug testing violates the Fourth Amendment’s ban on unreasonable searches. The decision is a welcome departure from a body of case law that usually defers to the government’s perception of “special needs” that supposedly justify analyzing people’s bodily fluids without a warrant or any evidence that they pose a threat to public safety.

The bad news is that the kids still have to pee in a cup if they want to be in certain programs at Linn State, characterized as “safety sensitive.”

Linn State’s primary argument was that a drug-free school was an inherently good cause. Continue reading →

Last year, I queried whether there would be an 8th Annual Jdog award.

This marks the 7th year of the Best Criminal Law Blawg Post, and there was a very serious question of whether the crim law blawgosphere would have the legs to make it this far.  So many of the blawgs that existed when the contest began have since gone dormant that it seemed, at the time, that there would be little left from which to choose.

As it turns out, there is not only life remaining in the criminal law blawgosphere, but some damn fine writing out there, as reflected in the nominations (as well as some truly excellent criminal law blogs that, inexplicably, didn’t muster a nomination but are still doing great work).

The same was true this year, but a different issue arose. While the problem with criminal law blawgs fading into the sunset was disturbing, and for those of you who wondered why Fault Lines exists, you might want to noodle this a bit, this year was shy of nominations.   Continue reading →