In posts at Hercules and the Umpire, Nebraska Senior Judge Richard Kopf has posed questions relating to the use of empirical proxies to ascertain the likelihood of recidivism.  One questions why poverty, of highly correlated with recidivism, shouldn’t be considered.

While some have seen his raising this question as a reflection of his disdain for the poor, and by extension, minorities because of their disproportionate representation among the poor, I see it as an effort on his part to find a better, more reliable, methodology to sentence than what is used now.  Judge Kopf is big on empiricism.

The current method, which might be best described as “gut sentencing,” may have its virtues in that it allows advocates to use whatever factors present themselves, and to make as persuasive an argument as possible that the sentencing factors of §3553(a) are best served by a particular sentence.  That said, it remains, without a doubt, a hit or miss proposition.

By raising the question of poverty as a proxy, which fails in my opinion for a variety of reasons ranging from “correlation not proving causation,” to its inadequacy as a proxy (say, a 74% reoffend correlation rate, statistically significant for empirical purposes, means 26% of defendants will be sentenced to a longer sentence than parsimony would allow, which is just plain wrong), to its placing the full weight of recidivism on the defendant.  “What,” you ask? Continue reading →

When I reviewed Avvo’s latest effort, Avvo Advisor, my perspective was whether this notion, clients reaching out to lawyers for a 15 minute consultation for $39, could provide a meaningful service to clients.  Clients. That’s where my head went.

But as Sam Glover at The Puddle relates, I may have completely, totally missed the point.

But now I realize that’s not really the point of Avvo Advisor. Although some clients will certainly get the advice they need, it’s really a lead-generation service for lawyers. Granted, lead generation services for lawyers are a dime a dozen. I get please-write-about-our-company requests from lead-generation companies almost daily. They mostly follow a similar model: the company finds the potential clients, you pay a fee for each “lead,” and you do the legal work. The problem is that a lot of the leads are tire-kickers looking for free advice or just dead-ends (wrong jurisdiction, wrong practice area, etc.).

Duh. What was I thinking?  So this isn’t a means of providing inexpensive, quick legal advice to clients at all, but just another lead generation gimmick designed to eliminate the tire-kickers, the freebie question callers, by sucking $39 out of the naïve and making them pay the freight for lawyers to use the 15 minutes to throw on their hotpants, strut down the boulevard and score the case? Continue reading →

Just when it appeared that the New York Times’ Room for Debate was finding its way back to relevance, it veered off a cliff and fell to its brutal, painful death.  This happened in a “debate” it calls “The Parole Paradox.”

The question posed:

With the increasing notoriety of cases in which prisoners have proved their innocence, some parole boards have permitted the release of inmates without the traditional requirement that they admit their guilt, if there is strong evidence of wrongful convictions.

Should prisoners for whom there is substantial evidence of innocence be required to admit guilt to be granted parole?

This question is filled to the brim with irony.  We’ve been told forever by prisoners that they were innocent, but we didn’t know.  And then DNA exonerations changed everything, so that we now know, with certainty, that it happens.  But there was no “substantial evidence of innocence.”  There was the same evidence of guilt as in the cases of most others, except for the tiny detail that it was wrong.

As any trial lawyer knows, when you ask the wrong question, you get the wrong answer.  But then, it also matters who you ask. Continue reading →

WK: And by, “the c-word,” you mean the word [c-word]?

–Transcript of “Challenging the Ideological Echo Chamber: Free Speech, Civil Discourse and the Liberal Arts’ in The Smith Sophian

Smith College Alumna, lawyer and FIRE Board of Advisors member Wendy Kaminer committed an “explicit act of racial violence” from her seat on the panel. No, she took no bludgeon and struck a person with it because of their color.  She spoke a word.

She spoke a word.  She did so to make a point, that the mere utterance of the word didn’t make the heavens part, the sky fall, plague descend or life as we know it end.  Oh wait, the last did happen, which was pretty much Kaminer’s point.

The word she uttered was “nigger.” She is not the first to do so for this purpose. Continue reading →

There are few things that offend intelligence more than false analogies.  The reason is plain: they’re effective tools of persuasion, and utterly wrong.  Sometimes, the problem derives from their use among people who lack the basis of information to recognize the logical fallacy, and other times it’s because people can’t be bothered to think too hard. It makes their head hurt. Either way, the use of false analogy reflects poorly on its maker.

When its maker is an academic, the poverty of proposing a false analogy not only suggests a significant level of dishonesty, but suggests that it’s done to conceal the emptiness of any direct, valid argument to be made in favor of a position. This is abundantly demonstrated here**:

Continue reading →

Among the most ridiculous cases of the year, the search warrant in Manassas, Virginia to photograph the erect penis of a 17-year-old boy charged with sexting his girlfriend stands apart.  To describe what happened there as “crazy” is to be tepid. It was totally batshit crazy and every person complicit in the insanity was a flaming nutjob.

Jessica Harbeson Foster, who represented the teen, said as much.  Well, she was kinder.

Foster told The Post, in an article published online on July 9, that her client had already been arrested and his genitals photographed at the county jail. She said Assistant Commonwealth’s Attorney Claiborne Richardson told her on July 1 that the teen must either plead guilty or police would obtain another search warrant “for pictures of his erect penis,” for comparison to the evidence from the teen’s cell phone.

The online article concluded with this paragraph, which is the subject of Abbott’s complaint:

“Foster said Detective Abbott told her that after obtaining photos of the teen’s erect penis he would ‘use special software to compare pictures of this penis to this penis. Who does this? It’s just crazy.’”

See? Under the circumstances, a rather restrained expression of opinion. So naturally, Detective David Abbott, unsatisfied with being ridiculed for his involvement in the execution of a warrant to force a teenage boy to have an erection so it could be photographed, has chosen instead to add a new source of ridicule to the mix. He’s suing Foster for defamation. Continue reading →

For reasons that completely elude me, Judge Richard Kopf found a question in my acidic post about Tina Brown’s celebrity bash:

I am wondering about a question that Scott’s article very indirectly raises. If crime is highly correlated with poverty, and I believe that it is, can’t one make a compelling argument that imprisoning the poor for long periods of time when they commit crimes is far cheaper than truly trying to eradicate poverty? If that is so, maybe we need more, rather than fewer, prisons. Just a thought.

I would like to take this opportunity to answer the judge’s question. No. Absolutely not. Under no circumstances whatsoever does poverty, whether or not a proxy for potential recidivism, justify enhancing a sentence of imprisonment. Nope. No.

I’m glad we could have this chat.

On the one hand, Americans are so naively jingoistic as to believe we can dictate how a corporation should play fair when seeking a deal with some third-world grand poobah in competition with other corporations who labor under no limitations as to how many Bentley’s they’re allowed to offer the poobah’s twelve wives after the sumptuous luncheon paid for by some French company.

On the other hand, Americans naively believe that a bunch of kid prosecutors are so bizarrely brilliant that they can reform what our laws state are acceptable business practices for multinational corporations and dictate how the corporation is to thrive in the jungle of competition.

On the third hand (or are we down to foot?), we can pull the guy out of his CEO chair and throw him in a prison cell, but we can’t toss a corporation into the hoosegow because it’s not really a physical entity, no matter what the Supremes say.

And on the fourth hand (or other foot), there has to be some means by which corporations who engage in criminal conduct are subject to sanctions.  So the law provides for fines, which corporations address as business decisions, another expense to be paid, in the conduct of whatever business it does, carrying no moral shame or consequence that can’t be subsumed on the balance sheet. Continue reading →

There are many who consider “convicted criminals” to be so inherently worthless to society that they have no concern for what becomes of them in prison. It bears noting that the tune changes if they or their loved one ends up in the slammer, but that’s a truism. Nothing matters until it touches your life.

There is, however, one caveat that anyone with any humanity must consider when thinking about how prisoners are treated. They are entitled to survive the punishment. This caveat stems from two sources. First, prisoners have been sentenced to a term of imprisonment, not death. While they may be held to serve that sentence, they must not be held to serve a greater sentence.

Second, the doctrinal purposes of imprisonment lose their legitimacy if prisoners do not survive due to systemic failure.  A sentence of imprisonment cannot be justified if its outcome fails to reach the minimum state of survival. Risk of death at the hands of laughing screws is not an option.

At the WaPost, Radley Balko provides a litany of failures of the prison system to meet its minimum duty of survival. Continue reading →

Based upon the text messages, it all seemed rather flirtatious.  A few days later, after she discussed matters with her friends at Yale, the tone changed.

“Let’s just start with objective fact: you raped me,” she e-mailed the male student in May. “You are a rapist.”

And indeed, he did, provided one “defines” rape the way the United States Department of Education, Office for Civil Rights, would have it.  In the Yale case, the young man prevailed, presumably based upon the facts: the text messages, that they both undressed themselves, that they had sex again in the morning, after she could make no claim of drunken incapacity and the 13 months it took her to formally claim she was raped.

She made a curious claim in response to the morning sex:

The woman remembered the incident differently: “She woke up feeling terrible that she had become so inebriated and had sex despite not wanting to. . . . When he initiated sex that morning, the female student said she did not resist because she felt refusal would be too emotionally exhausting.”

Continue reading →