One of the pitfalls of experience is that you’ve seen things before.  Painful memories of the birth and growth of civil in rem forfeiture in the 1980s, when it had a cool slogan (“take the profit out of crime”) and was only used to whack drug dealers and the occasional mobster. It gave rise to a body of law, both statutory and case, that created a bizarre hybrid system to deprive people of property based on the wildest conjecture and surmise.

Imagine someone was to arrive from Pluto and suggest we create a tier of law that allowed the government to seize and keep the property of people who have been convicted of no crime, on the basis of probable cause because it’s presumed that anyone using currency is a criminal, and shift the burden onto the property owner to prove he’s not, with the expense and burden of a legal proceeding, not to take it but to get it back.

It seems ridiculous that such a system, a process that falls far below what our beloved platitudes about justice suggest would ever be permitted, could exist. Yet it does, to the deafening applause of the public, because we hate those drug dealers and mobsters, and they don’t deserve a fair system. Screw ’em. Continue reading →

It may be the single stupidest idea ever proposed with the best of intentions, but it reflects a mindset that has killed more people than any other.  And it’s always done with the best of intentions.  At Huff Post, H.A. Goodman argues that we need new federal legislation “protecting black citizens from aggressive law enforcement tactics.”

His starting point isn’t to survey what laws currently exist. He seems unaware of the Fifth And Fourteenth Amendments to the Constitution, or 42 U.S.C. §1983.  In fact, he never mentions any law at all.  That would require a little research, perhaps even a little thought, but it would deflect from his litany of the bad things.

With the dash-cam video of Sandra Bland being forcibly removed out of her car, simply because she refused to put out a cigarette, some context is needed in regards to similar tragedies spanning from Rodney King and Trayvon Martin to Eric Garner and John Crawford. While police brutality affects people of all races and backgrounds in the U.S., it’s important to note that black citizens face a unique experience within America’s criminal justice system, just as they’ve faced a unique state of affairs for centuries in the United States.

He repeats the word “unique” throughout his post, though at no point does he make an effort to explain this peculiar word choice.  Perhaps it’s the “say it enough and maybe someone will believe you” school of rhetoric.  What he means to say, based upon his disjointed cherry picking of a dozen out of millions of examples, is that blacks suffer disproportionately. Continue reading →

Yeah, well, unfortunately the $222,172 we were going to give to cure [name your fav deblilitating disease] was diverted to another, more important, cause, according the National Institutes of Health:

The National Institutes of Health (NIH) is spending over $200,000 to study how men drinking alcohol look at women.

In an effort to limit “male-initiated sexual aggression toward female acquaintances,” researchers at the University of Iowa will analyze the actual eye movements of young men when they are drunk and sober.

This is cutting edge research, as previous efforts at research were cut short when the entire research budget was spent on buying beer. I mean, it’s Iowa, for crying out loud. Aside from meth, what else is there to do? Continue reading →

“We’re focusing on campus sexual assault, but we haven’t looked at the younger group.”

— Jacquelyn W. White, professor emerita of psychology at the University of North Carolina at Greensboro

The United States Senate has pulled a fast one under our noses. Claire McKaskill (D-Mo) proposed a new law, curiously titled the Teach Safe Relationships Act of 2015, which would reallocate educational funds toward teaching K-12 students “safe relationship behavior” because they can’t teach it all in freshman orientation.

Earlier this month, the Teach Safe Relationships Act was rolled into the Senate’s larger overhaul of a No Child Left Behind Act rewrite called the Every Child Achieves Act. That legislation, a bipartisan effort to update the major education law that expired in 2007, passed the Senate overwhelmingly.

In years past, the “disputed” question was whether public school students should be taught about sex at all. With this new variation, federal money will push schools to teach males how to alter their male-ish behaviors to avoid the “epidemic” of rape. Continue reading →

People ask me for advice. A lot. Sometimes, it’s new lawyers seeking career advice. Other times, it’s lawyers looking for some advice on how to handle a case or a client.  Still other times, it’s someone asking about advice on writing.  But they reach out to me, and I try to help.  It’s not that I’m just a swell guy; almost all lawyers I know are willing, if not happy, to help others.

But it’s not the same as it used to be.  Nobody wants to be told that the reason they’re having a problem is that they suck at whatever it is they’re doing, and should give serious thought to applying for an assistant manager’s job at Dairy Queen.  Even though that thought has passed through my mind more than once. Still, I try to be constructive under the assumption they’re not going to quit the law, so it would be best to help them not to be totally ruinous to other people’s lives.

Back then, advice such as work harder, stop trying to find a short cut, think harder, and suck it up was taken with equanimity, if not appreciation.  You see, mentoring sometimes means that you’re told “no, you’re not doing a good job. You need to do better.”

No more. It’s not just that mentees want to argue the point. They always did that, at least to some extent.  It’s that they now make it clear that they want an answer, even when the answer is that there is no answer, and they want an answer that doesn’t involve them breaking a sweat. Continue reading →

In an op-ed in the Washington Post, Michigan lawprof Samuel Gross writes about the “staggering number of wrongful convictions,”* an ironic title given that the one thing the op-ed can’t, and doesn’t, do is tell the reader what that “staggering number” might be. But Gross opens his op-ed with an anecdote, this one about the wrongful conviction of Rafael Suarez.

It’s a bad story, and the consequences were devastating to Suarez, but this is one guy. Why structure an argument about the “staggering number of wrongful convictions” around one guy?  The requisite anecdote has become the staple of argumentation, a facile appeal to emotion, to empathy.

Its purpose is to grab us by the throat and challenge us to not care about the nightmare imposed on this poor, undeserving person by whatever evil it is under discussion.  It’s the tyranny of the anecdote.  How can you not care? How can you not see the wrong and want to right it? How can you not want to help?

What has happened to us that we are so child-like in our understanding of right and wrong that this has become the method of choice in persuasion?  Gross, at the end of his op-ed, makes a persuasive case for the systemic mechanism in misdemeanor prosecutions. Nothing new or particularly revealing, but a solid argument: Continue reading →

At Fault Lines, Cristian Farias makes a persuasive case for Attorney General Loretta Lynch’s jumping on the prosecution of Dylann Roof for the slaughter at the Emanuel A.M.E. Church in Charleston.  The distinguishing feature is that the feds, usually waiting in the wings for the outcome of state prosecution, were in from the start.

What’s striking about DOJ’s involvement this time is its seeming impatience. If in the Martin and Brown cases federal prosecutors worked quietly and did not interfere with the state cases as they ran their course, here they came out with guns blazing. And reasonably, one could say that Lynch’s move to impanel a grand jury and seek charges a mere two weeks after South Carolina did the same is an affront to a state’s prerogative to seek justice in its own terms. Federalism run amok.

And indeed, Jonathan Blanks at Cato made that exact point:

The Department of Justice should be more judicious with its funds and resources. The opportunity costs of a duplicative prosecution takes resources away from crimes that fall more appropriately in the federal purview, such as interstate criminal enterprises and government corruption. Today’s indictment is federal meddling in a case the state already has under control.

Continue reading →

Via Doug Berman at Sentencing Law and Policy, the National Association of Assistant US Attorneys (NAAUSA) has issued a “white paper” to bust the “most dangerous myths” of sentencing reform.

Myth One: Our prison population is exploding because of the incarceration of
recreational drug users or low-level drug offenders.
Fact: Our federal prison population is not exploding, and those who are serving prison sentences for drug crimes are incarcerated because of drug trafficking crimes, not recreational drug use.

Myth Two: The federal prison population is a product of mandatory minimum
sentences for drug traffickers.
Fact: The majority of drug traffickers sentenced in federal court are not being
sentenced pursuant to mandatory minimum sentences. Continue reading →

Despite my extreme reluctance to delve into what I consider a sideshow to a very serious case, too much effort has been put into parsing it in extreme detail for me to ignore it.  The question of real importance is how and why Sandra Bland was found dead in a Waller County jail three days after a crap traffic stop, and instead, all eyes are focused on the stop instead of the death, which has been essentially forgotten.

Was it the cigarette?

From the transcript of the video of the stop, this is what happened:

Encinia: You mind putting out your cigarette, please? If you don’t mind?
Bland: I’m in my car, why do I have to put out my cigarette?
Encinia: Well you can step on out now.
Bland: I don’t have to step out of my car.
Encinia: Step out of the car.
Bland: Why am I …
Encinia: Step out of the car!

Continue reading →

Jeffrey Gamso, in his inimitable way of tying loose ends together, went from 9th Circuit Judge Alex Kozinksi to F.W. Murnau’s missing head to the decision in People v. Collins.  And if that doesn’t give you whiplash, reading Brooklyn Supreme Court Justice Mark Dwyer’s opinion will make your head spin.

Justice Dwyer begins with something that ought to be obvious to all, but few judges would openly admit:

This court recognizes that judges are, far and away, not the people best qualified to explain science. That observation is doubly applicable when novel scientific techniques are at issue—and that of course is precisely what Frye analysis involves. But courts are bound to do their best.

Continue reading →