In a very provocative claim, Penn lawprof David Abrams contends that we’ve been wrong this whole time. Via Dan Markel at PrawfsBlawg:

Almost every teacher of criminal procedure is aware of the idea of the “trial penalty,” which conveys the sense that defendants who exercise their right to a trial will invariably get a worse result if convicted than if they plea bargain.

Comes now (or relatively recently at least) David Abrams from Penn with an article that slays the sacred cow of the trial penalty by providing, you know, data. And the data is the best kind of data because inasmuch as it’s true, it is SURPRISING data. Specifically, Abrams argues that based on the study he performed (which originally appeared in JELS and now appears in a more accessible form in Duquesne Law Review), the data supports the view that in fact there’s a trial discount not a trial penalty. Continue reading →

A few days ago, an email came in from my friend, lawprof Ellen Yaroshefsky at Cardozo, with the first report from its Youth Justice Clinic. Among the many recommendations for dealing with youth incarcerated on Riker’s Island, foremost was the elimination of solitary confinement.

For an adult, long-term solitary confinement is torture.  For a child, it is an inexcusable outrage. In considering sources to support these contentions, there are too many, too solid, to select one.  If you feel compelled to demand support for the assertion, go Google it. There is plenty to read. In my view, the proposition that solitary confinement of children is inhumane requires no additional support.

The use of solitary confinement isn’t to protect the lives of corrections officers, but to teach prisoners who’s the boss. Continue reading →

Will Baude at VC/WaPo pointed to a fascinating article by Florida lawprof John Stinneford, entitled “The Illusory Eighth Amendment.”  As much fun as the 8th may be, the part that made this particularly curious had little to do with it, but rather with the Supreme Court’s punting in Miranda v. Arizona.

Discussion of Miranda these days is largely limited to two aspects, the first being that it’s a prophylactic rule, and the second that the Court expected that once given, no one would ever talk to cops again.  After all, could it be any clearer that anything you say can and will be used against you in a court of law?  Of course, experience has shown otherwise.

The surprise here, according to Baude, is that Stinneford raises what Miranda failed to address: Continue reading →

Governor Andrew Cuomo took what a New York Times editorial called “a bold step” by promoting the notion that educating prisoners will stem the tide of recidivism.

On Sunday, Gov. Andrew Cuomo of New York took a bold step to restore some common sense to this contorted debate, announcing new financing for college classes in 10 state prisons. The initiative will offer inmates the opportunity to earn either an associate’s or a bachelor’s degree over the course of two to three years.

There are two things that come of a stint in prison. A person can leave more bitter and hate-filled, learning from fellow inmates how to be a better criminal and care less about others and the law. Or, a person can leave with some hope of a law-abiding future, putting past transgressions behind him.  One tends to prevent recidivism. The other does not. Continue reading →

Not that anyone asked for more discussion of “special” victims, but when you hear the opening theme to Law & Order, SVU, playing in the background, there just isn’t much to be done other than to hum along.  At Concurring Opinions, Aníbal Rosario Lebrón presents an argument to fundamentally change the rules of evidence that is, well, breathtaking.

Today, I would like to touch upon what I believe to be a disturbing void within Critical Legal Theory. Although Crit-scholars have unmasked many examples of apparently neutral laws with discriminatory effects, they have overlooked to some extent the weight of apparently neutral evidentiary rules upon certain minority and identitarian groups.  The article I’m currently working on intends to explore this void by examining how evidence rules are not neutral in practice, but rather inexorably respond to our patriarchal practices.

There is a strong tug to quote the entire post, but I resist. Yet, with an opening like this, with all the makings of brutally painful scholarly head-banging, it would behoove you to read the post in its entirety. But first remove any sharp objects from your reach. Just sayin’. Continue reading →

The normal, rational reactions of productive, law-abiding people serve them well in almost all endeavors. Until they find themselves in contact with a system and its protectors that views the normal, rational reactions of productive, law-abiding people a threat. Peretz Partensky found out the hard way.

I live in a new gilded age in a golden city. But sometimes the cracks show, even here. The façade crumbles and you find yourself naked, in solitary confinement, in a wretched, feces-stained prison.

Even now, having written a lengthy and detailed description of his experience following his call to 911 to help two cyclists who took a bad fall, he’s not quite clear how he ended up at the bottom, below the good guy curve. Continue reading →

Among the many issues raised following the suicide of hacker activist Aaron Swartz was the failure of MIT to take a stand, instead merely being compliant with the government rather than proactive about the prosecution.  MIT could have told the government to get lost. It didn’t. It did as it was told.

Since then, another prosecution has dirtied the Institution, this time involving some undergrads who created a program called “Tidbit” for the Node Knockout hackathon. From the Tech:

The New York Times raises an oft-forgotten stepchild of the legal system, parole, in an editorial calling for change in the system. The reason it rarely comes onto the radar is simple, these are convicts. They are beyond the question of guilt or innocence, rarely have the capacity to retain counsel and are almost entirely unseen by anyone outside prison. Only their families know the disgrace of the parole system.

For those unfamiliar with New York’s sentencing scheme, many sentences are imposed with an indeterminate span, say 15 years to life in prison. That means a prisoner is eligible for parole after 15 years, having served the minimum of the sentence.

From the perspective of all the players at the time of sentence, it is anticipated that in the absence of any post-sentence aggravating factors, Continue reading →

When police harm someone with a disability that isn’t very easy to see or grasp, the comparison is often made to those who are blind or deaf.  After all, it really doesn’t take a genius to appreciate that a blind person cannot see or a deaf person cannot hear, right?  Sadly, no, as Jonathan Meister learned.  Via Courthouse News:

Clueless Hawthorne police beat and Tasered a deaf man as he signaled to them that he was deaf and his friend had loaned him the snowboard he was carrying, the man claims in court.

When the police approached Meister, he attempted to alert them to the fact that he was deaf by using hand gestures.  Cops hate hand gestures. They’re threatening.  Of course, since Meister was deaf, it’s not as if he had a choice in the matter. Continue reading →

Soon after I wrote about Mary Anne Franks’ efforts to distort free speech to gain advantage in promoting her revenge porn law, and catapult her from a decidedly undistinguished, untenured, career as an academic toward Kim Kardashian recognition, I received an email from a very well-regarded law professor who told me that she was a disgrace to the Academy.

“Why don’t you do something about it,” I asked?

“Because Franks will call me a misogynist or racist, and I don’t need that.”

He asked me to keep this to myself, and I agreed not to disclose it. He didn’t need to become embroiled in this sort of garbage, which has been the modus operandi for those challenging the religion of a small group of law profs who try to make their name by championing radical views. This wasn’t his fight.  That was understandable. Continue reading →