At Hercules and the Umpire, Judge Richard Kopf takes Attorney General Holder to task for his speech before the National Association of Criminal Defense Lawyers.

“By basing sentencing decisions on static factors and immutable characteristics—like the defendant’s education level, socioeconomic background, or neighborhood—they may exacerbate unwarranted and unjust disparities that are already far too common in our criminal justice system and in our society,” Mr. Holder told the defense lawyers. Criminal sentences, he said, “should not be based on unchangeable factors that a person cannot control, or on the possibility of a future crime that has not taken place.”

Judge Kopf sees the AG as sticking his head in the sand, that he is “naïve and manifestly wrong.”

Indeed, a former policy analyst for the federal courts wrote three years ago that:

Evidence-based sentencing is based upon social science. Criminological meta-analysis has identified fifteen key variables that are significantly related to recidivism: 1) criminal companions, (2) antisocial personality, (3) adult criminal history, (4) race, (5) pre-adult antisocial behavior, (6) family rearing practices, (7) social achievement, (8) interpersonal conflict, (9) current age, (10) substance abuse, (11) intellectual functioning, (12) family criminality, (13) gender, (14) socio-economic status of origin, and (15) personal distress. If those variables can be used in sentencing, it may be possible to safeguard public safety while reducing the financial and social costs associated with mass incarceration.

J.C. Oleson, Risk Assessment at Sentencing, ASU Law Journal (June 20, 2011).

Continue reading →

There may be a good explanation for why Ferguson, Missouri, a mostly black working-class suburb of St. Louis, had a white mayor and police force. There might be a good explanation for why an unarmed, 18-year-old high school graduate, Michael Brown, was shot down in the street.  But if so, nobody has said so yet.  The only thing for which there is a good explanation is why Brown won’t be starting technical school today. That’s because he’s dead.

From the New York Times:

The fatal shooting of an unarmed black teenager Saturday by a police officer in a St. Louis suburb came after a struggle for the officer’s gun, police officials said Sunday, in an explanation that met with outrage and skepticism in the largely African-American community.

The cop isn’t named.  The story makes little sense. Continue reading →

Sen. Patrick Leahy proposed a tepid solution to the fact that we have a secret court in the United States of America that approves searches and seizures, despite also having a Constitution that says we can’t have secret courts, and we must have due process.  But hey, that’s such old news as to be unworthy of mention.

Nobody gets too hot and bothered by the FISA Court anymore, as absurd and outrageous an idea as it was when it was first created, or first disclosed,  Once something flagrantly wrong has been around for a while, it just becomes another piece of the landscape of America. You know, amber waves of grain and such.

But we learned, h/t Snowden, that the government had this tendency to be less than forthright to the court when securing authorization to do bad, bad stuff.   Rather than call into question the very existence of such a secret court in a constitutional democracy, someone came up with the compromise idea of having an adversary to the government, for those rare occasions when the government presented “a novel or significant interpretation of the law” that might benefit from, say, a point of view that wasn’t the government’s.

Judge John Bates, who has had some good moments on the FISA Court, has taken it upon himself to be the spokesman for the judiciary by informing Sen. Leahy that creating the post of advocate against the government (which, as we all know, speaks for all of us, the People’s lawyer), is a bad idea.  Judge Bates felt so strongly that he sent Patrick a letter explaining how introducing an adversary into the mix of a court system conceived with, and designed for, adversarial challenges, could be a disaster: Continue reading →

Medical privacy is not merely a sound idea, but the law.  That’s why there are no video cameras in the clinic at Rikers Island. Makes perfect sense, except when guards order the staff out of a treatment room in the clinic and beat a prisoner.  That makes perfect sense too, if you happen to be a prison guard looking to beat a prisoner without being captured on video.

Even on the most violent cellblocks at Rikers Island, the beatings were astonishing in their severity. Two inmates were strapped to gurneys, taken to a clinic in a mental health unit and beaten so badly by correction officers that blood splattered the walls and witnesses described feeling sick to their stomachs.

Several witnesses, including civilian staff members, were so appalled that, in a rare occurrence at Rikers, they came forward to tell investigators what they had seen on that night in December 2012.

How heartwarming that the beatings were severe enough that civilian staff members spoke out.  So how many beatings did they witness that weren’t that severe, where they said nothing?  Where is the line between hero whistleblower and complicit toady? Continue reading →

Having come down fairly hard on the ridiculous hyperbole of the ABA Journal contest, Hackcess to Justice, it seemed only right to follow-up.  After all, maybe I would be proven wrong, as Bob Ambrogi offered, and they would come up with something so wonderful, so miraculous, so shiny, that it would change everything.

Maybe they would figure out a technological solution that would provide the full panoply of legal representation needed by the large swathe of Americans whose world was bound in legal red tape imposed by a government that commands there be regulation of nearly every aspect of life. but who couldn’t afford a lawyer.  Is that too much to ask?

Well, yes. It was a delusion then, and it’s a delusion now. The problem isn’t that technology can’t offer tools that will help in small niches, provided they’re very well done and very thoughtfully crafted so that they are not merely accurate, but adequate to distinguish between the affirmative help they offer, but recognize the line beyond which they cause harm. Continue reading →

When the medical examiner announced that the death of Ronald Reagan’s press secretary, James Brady, 73, was a homicide, he opened a national wound.  He was shot in 1981, 33 years ago, by John Hinckley, who was trying to assassinate Reagan to impress actress Jodie Foster.

Hinckley was tried for attempted murder and found not guilty by reason of insanity.  But that was attempted murder. Now that the medical examiner has concluded that Brady’s death was homicide, a new crime exists, and raises the question of whether Hinckley should be tried for it.  In the interim, Hinckley’s sanity has improved.

Hinckley, 59, has been confined to St. Elizabeths Hospital in Washington and has received psychiatric treatment since his acquittal in 1982. Since 1999, he has been allowed outside the facility, with his unsupervised visits to his mother’s home in Williamsburg, Va., gradually expanded to 17 days.

The legal question of whether Hinckley can be convicted of murder is tricky.  Eugene Volokh does an interesting analysis for the legal issues/stumbling blocks to conviction. Continue reading →

This is one of those meta posts, in response to angry emails sent me about why I’m such a horrible person.  One lawyer wrote to condemn me for occasionally including my own war stories in posts while denying other lawyers the same opportunity.

Why are your stories more worthy than mine?

Well, they aren’t, but you’ve asked the wrong question.  The problem isn’t that your stories are unworthy, but that this is my blog.  Tell your stories all you want on your blog.

My story was directly on topic and added your beloved “illumination,” yet you deleted it.

Well, it wasn’t quite as on-topic or illuminating as you think, but that’s not really the issue.  The issue is that every lawyer has war stories, and every lawyer loves telling their war stories.  When we sit around in the bar after a hard day in court, we’re all raconteurs, regaling each other with the bizarre and the ridiculous. Oh, how lawyers love to tell stories. Continue reading →

In a way, the story of the guy who called himself Stephen G. Dickerman, lawyer, and took a $10,000 retainer and charged $400 an hour is pretty funny.  He managed to convince clients in his Brighton Beach office that he was a lawyer. He managed to get himself admitted to practice in the Eastern District of New York as a lawyer. He managed to glom a profession by usurping the name of a lawyer who ceased practicing in 2008, and nobody knew.

What does that tell you about lawyers?  What does that tell you about judges?  What does that tell you about the people who hand over money to lawyers?

The New York Times article offers little insight into what gave him away, but lauds his “skill” at impersonation. Until he got caught.

Law enforcement officials say they are not certain who the accused man is; they only know that he is not Mr. Dickerman. The actual Stephen G. Dickerman was a lawyer for more than 40 years, but has not renewed his license since 2008. Court papers say the impostor then used the real Mr. Dickerman’s attorney registration number to set up shop for himself, charging $400 an hour for legal advice. Continue reading →

Within minutes of learning of the suicide of Aaron Swartz, the internet knew exactly what pushed a brilliant young man to the edge:  The government singled out Swartz, unique among all others because of his hacktivist politics, and a United States Attorney decided to destroy him to further her political career.

His family said so. Even Harvard lawprof Larry Lessig said so.  The myth was born, and grew to the size of a behemoth, in a flash.  Those of us who were so cruel as to suggest that the certainty of the hacktivists in their uniqueness were derided for not appreciating how Swartz was different.

But there remains a side of this tragedy that the geek community misses. Government overreaching, “bullying” as Lessig calls it, didn’t start on the day Aaron Swartz was arrested.  The eulogists, friends, watchers from the Hacktivist side seem to think this was an affliction that happened only to Swartz. Continue reading →

While much is written about the innocents caught up in the criminal justice system, reality is that many who find themselves in custody have good reason to be there.  Among this group, unfortunately, are people who suffer significant mental illness. They can be violent. They can be irrational. They’re crazy. For police, dealing with crazies is part of the job. At least it should be.

When a crazy ends up in a precinct lockup, the next step is to call in EMTs to transport a person to a hospital for treatment.  In a very real sense, that this is the route chosen reflects a grasp that the mentally ill aren’t necessarily criminals, but people in need of medical treatment.  It may not be a fully developed grasp of the difference between a person acting out a psychotic episode and a criminal, but it’s better than nothing.

Yet, one would hope that the recognition that a person in custody is crazy would stem the urge to react to their craziness in kind.  That wasn’t the case at the 67 Precinct in Brooklyn, where Emergency Services cops, theoretically trained to handle such situations, lost it big time.  From the Daily News: Continue reading →