Putting Salve on the Sentencing Symptom

The  New York Times editorial calling for a “new safety valve” is one that holds a certain appeal for most of us. Both in its bipartisan support, and its recognition that the magic bullet solution of mandatory minimums, while simple enough for the masses to digest and embrace, lacks a certain reasoned fairness and efficacy, the possibility of changing this hideous concept should bring applause:

Congress’s new bipartisan task force on overcriminalization in the justice system held its first hearing earlier this month. It was a timely meeting: national crime rates are at historic lows, yet the federal prison system is operating at close to 40 percent over capacity.

In the 16-year period through fiscal 2011, the annual number of federal inmates increased from 37,091 to 76,216, with mandatory minimum sentences a driving factor. Almost half of them are in for drugs.

The problem starts with federal drug laws that focus heavily on the type and quantity of drugs involved in a crime rather than the role the defendant played. Federal prosecutors then seek mandatory sentences against defendants who are not leaders and managers of drug enterprises. The result is that 93 percent of those convicted of drug trafficking are low-level offenders.

Whether the details, not to mention the assumption and definitions, are precise isn’t terribly important. The two key sentences, one beginning the third quoted paragraph and the other ending it, are the ones to focus on. 

The final quoted sentence, that 93% of people convicted for drugs are “low-level offenders,” is the sort of argument intended to evoke sympathy, though there is no definition of what makes someone a low-level, as opposed to medium or higher level, offender. But it accepts the premise that any drug offender, even guys selling tons of the stuff, deserve to be punished to a term of imprisonment greater than murder.

What if the entire scheme was fundamentally flawed, a political joke if you will, perpetrated on a trusting but naïve public by a manipulative president and congress, who saw drugs as a bogeyman to be blamed for society’s ills, and used to create a demand for government to save them from it.  It gave politicians an easy punching bag, drug dealers, against whom laws could be passed to show the public what a wonderful job the government was doing protecting them from evil.

What if this scenario had the added virtue of not only getting those in office re-elected by adding a cynical law here and there, but convincing the public to relinquish rights to the government, allow and approve of these same politicians increasing their power and control, as a needed component of effectively fighting the evil enemy and protecting the public?  It’s the perfect set-up, really.

But this sounds like a wild conspiracy theory, right?  And if I told you this had happened, you would tell me to loosen my tin foil hat as it’s clearly pressing too hard on my brain.  But what if it wasn’t me saying this, but former Assistant United States Attorney, now United States District Court Judge John Gleeson?


The flaw is simply stated: the Guidelines ranges for drug trafficking offenses are not based on empirical data, Commission expertise, or the actual culpability of defendants. If they were, they would be much less severe, and judges would respect them more. Instead, they are driven by drug type and quantity, which are poor proxies for culpability.

*  *  *

On June 19, 1986, University of Maryland basketball star Len Bias died of a drug overdose. Congress promptly enacted the Anti-Drug Abuse Act of 1986 (“ADAA”), which established a two-tiered scheme of mandatory minimum and enhanced maximum sentences that have now become central features of the federal drug sentencing landscape. The ADAA’s five-year mandatory minimum, with a maximum enlarged from 20 to 40 years, was specifically intended for the managers of drug enterprises, while the ten-year mandatory minimum, with a maximum of life, was intended for the organizers and leaders. 

That Congress is finally prepared to revisit the notion that more than two generations of living under a legal regime driven by news story that caught the public’s interest and fed its naiveté sufficiently to influence our acceptance of the notion that illegal drugs were a plague that had to be stopped at all costs, is a good thing.  But they’re still only looking at the symptoms, one of which is mandatory minimums. 

The revelation that the drugs tables (and its the same from the fraud tables even though you didn’t ask) in the Sentencing Guidelines were made out of whole cloth, reveal the disease.  We have functioned since 1987 under the mistaken belief that the Guidelines offer some empirical basis for sentencing people for crimes. We spent the vast majority of that time praying to the Guidelines, as if the number 161 was infallible, or brought down by Moses and enshrined on the alter of punishment.

What if it’s all just a bunch of numbers that some guys in a room in Washington made up on their own, out of thin air?  After a couple generations of putting people in prison based on them, many people, tens of thousands of people, the made-up numbers that came out of that room took on the appearance of Truth.  Ten years was the sentence because, well, it’s been the sentence for a very long time.

This isn’t to blame the New York Times for thinking small. It’s what the Times does best, and conventional wisdom is to stick with what works for you.  But as reform happens, it’s worthwhile to remember what is being reformed.  Moses didn’t bring the Guidelines down from the mountain. There was no massive empirical study that conclusively proved that 161 months was the right number for drug dealers. 

And here’s a question that will rock the foundations of penal belief: What if drugs, regardless of whether you support legalization or not, aren’t as great a scourge on society as we’ve come to believe, and that drug dealers shouldn’t be punished as harshly as murderers?  What if the worst drug dealer, the one who sold the most drugs in the whole wide world, still wasn’t as bad as a murderer?

But drug dealers commit other crimes too, you say? So they get prosecuted and sentenced for those other crimes. Yet, the days when punishment was calibrated by the relative harm done by a crime got all screwed up because Len Bias happened to OD while Congress was noodling how to screw with our heads over the sentencing guidelines, and here we are, more than two generations later, trying to figure out where we went wrong and what we can do to fix it.


The Ethics of Overcharging

Brian Tannebaum twitted about the final sentence of John Steele’s post at Legal Ethics Forum, calling it “priceless.”


Criminal law is not my forte but the murder two charges seem to me to be clearly beyond what an ethical prosecutor should bring.
Brian’s point was that John, while disclaiming that he knew nothing about the subject, didn’t let that stop him from questioning the prosecutor’s ethics. This was about the Zimmerman case, a hot subject that many wanted in on. There is nothing wrong with having something to say about a high profile case that’s caught the interest of many, but one might suggest that if you’re going to write about it, you can’t simultaneously disclaim responsibility by the “I don’t know nothing about birthin’ no babies” caveat. Then again, Tannebaum tends a bit toward snark on twitter sometimes.

After reading Tannebaum’s twit, I asked John why, what ethical issues was he raising, what ethical proscriptions was he suggesting the prosecutor violated.  John explained.


At least by the time that probable cause affidavit was filed and the prosecutor prayed with the lawyer for the parents of the deceased, I’ve been of the opinion that the charges were filed not because they were supported and could be proven beyond a reasonable doubt but rather because of the politics. Looking over what evidence the State still has, I don’t see that they’re anywhere close to murder two and I don’t buy that the theory of “let the jury dispose of our over-charging” absolves prosecutors of their responsibilities.
From the outside, much of criminal law seems best explained by politics. If the prosecutor’s motivation isn’t to charge a defendant with the crime the evidence supports, but with a charge intended to appease public blood lust or, more charitably, appeal to the public’s sensibilities, it certainly emits an unpleasant odor.

But it’s hard to prove motive, particularly malevolence. We can assume it easily enough of our enemies, those with whom we don’t share the same politics, but we do so at our peril.  The system purports to weed out charges that are unsupportable by the evidence, but it offers prosecutors a rather wide berth to charge the highest and worst count conceivably supportable. 

Outsiders may see such charges as ill-conceived, improperly motivated, but that’s because we have the normative sense that it offends our sense of justice and propriety. But then, we’re outsiders, not the prosecutors, and they are charged with exercising the discretion of charging what they want.  It’s not a free ride, as charges can be dismissed when they overcharge, or they can be humiliated at trial when the evidence doesn’t bear out and the defendant walks.  Or they can get twelve men six women good and true to convict despite the lack of evidence. That’s our system for better or worse.

Is a Murder 2 charge for Zimmerman so far out the ballpark as to be utterly unsupportable, a charge that no rational jury could find?  It may be beyond the pale as far as some are concerned, but does it rise to the level of overcharging that puts the prosecution’s ethics in doubt?  The statute reads :

<
(2) 775.082, s. 775.083, or s. 775.084.
Was Zimmerman’s mens rea depraved? There are a great many people out there who would argue it was. John Steele thinks otherwise. Both are allowed their views, particularly since the trial has yet to start and evidence yet to be introduced. Laws based on mental states like “depraved” are sufficiently vague and wiggly that they lend themselves to such disputes.

Whether that’s the “right” charge under the facts and circumstances of this case remains to be seen. But that it doesn’t come anywhere near an unethical abuse of power by the prosecutors seems clear. It’s in the ballpark, even if somewhere near the top of the left field fence. That remains within the prosecutor’s reasonable discretion, no matter how unpalatable it may seem to some.

But after John responded to my query, Hofstra lawprof  Monroe Freedman decided to put in his two cents.

When a prosecutor overcharges – a common practice – the principal purpose is to “bargain” down from that frightening charge to a “negotiated” guilty plea to what the prosecutor should have had to charge and prove to a jury if the system were working pursuant to the Constitution. Too often, the charade of a negotiation is with the connivance of the court-assigned defense lawyer, who helps to con the defendant into thinking that he has gotten a truly negotiated deal to the best plea possible.


Another purpose is to frighten the defendant into asking for a lesser-included offense instruction, which gives the prosecution the possibility of a compromise verdict from the jury to a finding of guilt of a significant offense, although less than what was initially charged.


Freedman has been around forever. He’s got cobwebs in his office older than I am.  But aside from his comment having utterly nothing to do with the Zimmerman case or the discussion between John Steele and me, it is such malignant, simplistic cynicism as to shock even a curmudgeon like me.

Yes, Monroe, there are prosecutors and defense lawyers like that. There are also prosecutors who charge appropriately and believe they are doing their job of protecting the public from harm. There are defense lawyers who will fight to the bitter end for their clients against all odds, and there are defense lawyers who accurately advise clients that the end will be bitter.

Since John Steele’s blog is called Legal Ethics Forum, there ought to be an ethical takeaway. Mine is that Monroe Freedman has his tin foil hat on too tight, and ought to put down his keyboard and rest on laurels before destroying his legacy.  Not even a fixture in academia has the right to make people stupider by proffering such overcharges of hatred and malevolence. Not ethically.

A Dose of Marcus

At a website I like to call The Puddle, young lawyers with varying lengths of practice ranging from hours to months tell others how to be a rousing success with crucial issues ranging from the need for a really  cool lawyer logo to what practice management software to use on your iPad.  Others, not necessarily young, who don’t practice law at all, whether because they aren’t lawyers or lack sufficient interest, do the same.

If it sounds absurd, it is. But that doesn’t stop new lawyers from reading and thinking they must know something because if they didn’t, why would they be pundits at The Puddle?

Marcus Schantz hails from Chicago, where he decided to open his practice in 2008.  Aside from trying a bunch of cases, he started a blog. He didn’t do a lot of writing, but what he did was pretty good. It wasn’t about his love of iPads or a listicle of things that might attract the sort of eyeballs inclined to visit the Puddle, but rather about things like his murder trials.  Not nearly as breezy and intellectually stimulating as  how to teach a CLE when everyone else in the room knows more than you.

Marcus has now announced that he’s hanging it up. Not just the blog, but the practice of law. And his reasons offer far more insight than the entirety of the Puddle.


It’s fair to say that in 2009 I was hungry and had a lot of passion for the work. However, in the spring of 2010 when my client was convicted of murder something in me changed. Then a couple months later, another client was convicted of attempted murder. By the end of 2010, I had begun to grow cynical about the work. In short, I was forced to admit the criminal justice system is horribly broken. I also was forced to admit that I had failed two clients in a time of desperate need. As a result, fueling cynicism consumed idealism and I hardened.
Marcus writes about a few more trials, some highs and some very deep lows.


In a way, that case was the last straw for me doing this job in Chicago. In the summer of 2012, I decided I needed a change of scenery and no longer wished to practice law. I can’t fully explain it, but I began to feel unhealthy, though physical fitness is a cornerstone in my life. It was my mental health about which I worried. I was on medication for anxiety, depression and had to take pills to sleep. Chicago, and this job, began to make me feel sick inside.
There is no criminal defense lawyer who doesn’t know what Marcus was feeling. The bravado we put on for the benefit of others, the confidence we wear like armor in the courtroom, can’t make the ache go away when we realize that our lives are dedicated to a ruinous system that crushes the people we are there to protect.


But there was more to it.

Initially in 2009 and 2010, my business was a success and it was profitable. However, in 2011 and 2012, I saw final figures in the red and a resultant escalation in debt as I scrambled to keep things afloat. At the time, I couldn’t understand why business went from great to poor. The eventual answer was marketing. My initial marketing plan worked until it didn’t and I failed to understand why. If I made any errors in running the business, it was this.
Marcus came clean, where so many others hide behind the happy faces of bullshit. At the Puddle, kids throw parties for themselves, celebrate their fabulous business savvy, for having survived a year in practice. That makes them experts, worthy of teaching the profession their magic secrets of success.

Except success isn’t linear. A year or two of “great” business doesn’t make a success. Every criminal defense lawyer knows that his practice is only as successful as the next phone call from a good client with a good case. Sometimes, the phone rings off the hook. Sometimes, it’s silent and you wonder if it will ever ring again.


That my fiscal problems coincided with my burn out was rather fortuitous. I could have borrowed money and revamped my marketing but I chose not to. It was time to move on.
New lawyers have this bizarre belief in their exceptionalism, that they are special, that their experience will be different from that of the thousands who came before them. How many times can old lawyers say that the practice of law is hard work, a tough business?  It can be soul-crushing. It goes from high-flying to crash and burn in a blink of an eye. Marcus assumes that by getting out there, doing all the things that let the world know he’s available for purchase, would get him back on track. Even that isn’t reliable, though he will never find out.

My first reaction to Marcus’ announcement was that it was a terrible shame, a loss, for a new lawyer who has gained incredibly valuable experience in the courtroom to walk away.  Others who have gone through the same depression continued to practice but gave up at the same time. They’re the guys who don’t care about anything other than the quick buck and plea. Marcus decided that wasn’t going to be his future.

Upon further reflection, it’s clear that Marcus had to make the choice that was right for him and true to the life he wants for himself. He’s planning to be a novelist. It sounds a bit cliché, and every criminal defense lawyer thinks he’s got a few fascinating books in him, but that’s what he’s decided to pursue.

Maybe he’ll make it. He’s got two books in the can already, and perhaps he’ll send me a copy to review one day. Either way, his time in the trenches was honorable, and his experience is something far too deep and real for the childhood fantasies being offered at The Puddle. 

Before leaving, Marcus offered his dose of truth.  If other new lawyers are wise, they will pay attention.







Because There’s No Such Thing As Undemo

At Overlawyered, Walter Olson notes that the former Mercedes Benz dealership on Park Avenue in Manhattan, one of a mere three Frank Lloyd Wright projects in New York City, is gone.


“On March 22, the Landmarks Preservation Commission called the owners of 430 Park Ave. to tell them the city was considering designating the Wright showroom … as the city’s 115th interior landmark. … on March 28, the building’s owners, Midwood Investment & Management and Oestreicher Properties, reached out to another city agency, the Department of Buildings, requesting a demolition permit for the Wright showroom. The permit was approved the same day, sealing the showroom’s fate.”
Aside from the rather remarkable juxtaposition of the length of time it takes to save something versus the speed with which it can be destroyed, itself a social commentary on what we value in America, the story is offered as an example of how the monumental burden of landmark preservation forced the owner’s hand to destroy it before the commission could grab hold of it.


That’s only the latest in a series of incidents in which the prospect of city intervention under Gotham’s famously cumbersome preservation laws has precipitated teardown instead.
There is no question that landmarking a structure presents an overbearing burden on an owner. It impairs a property owner’s right to do as he pleases with his property. Instead, it forces an owner to do as he’s told by a bunch of well-intended but generally uncompromising folks who find it remarkably easy to make demands they don’t have to pay for. It reduces the value of the owner’s property, since future buyers take it with the burdens of landmarking, limits its potential uses and increases the costs by imposing requirements of maintenance that may well fly in the face of utility.

No question, landmarking can suck.

But then, how to preserve history in the face of big money?  Some (many?) won’t lose any sleep over the demolition of Wright’s interior, built in 1947 to house Max Hoffman’s showroom for newly imported German automobiles. Hoffman has vision, pushing Mercedes to create such icons as the 300SL gullwing and the Porsche Speedster.  The interior Wright created for him is so, well, perfect.



But in 2012, Mercedes moved out and the owners needed to rent the space. They didn’t own a museum, dedicated to guys like me who love old architecture as well as old cars.  They were in the business of being property owners, and while it might have made folks happy had they embraced the history of the space and chosen to preserve it because, well, that was their choice, it would have been great.

But do we force the owner of private property to eat the cost, eat the loss, and keep historic space as we, the people who don’t have to pay the price, would like them to?  That’s a problem.

Granted, trying to preserve a bit of history in Manhattan isn’t easy.  Its a tough place, where property owners will sell their mothers for a an extra half point increase in a rent stabilized apartment.  There are some who will keep a landmark alive because they think it worthwhile. There are some who will do so because it’s valuable as a landmark.  And then, there are some who will rip it out, destroy history, without blinking an eye.

The problem is that it only takes one of the demo crowd to destroy a piece of history, whereas it takes an unending series of owners and managers to keep history intact.  Like entropy, it only works one way when demolition is on the table. There is no changing your mind after some Philistine has had his way with a landmark, and hitting the undo button. Once something is demolished, it’s gone.

Is there a middle ground, a way to preserve history without impairing a property owner’s right to do as he pleases with his property?  Or at least providing fair compensation to the property owner for taking away a portion of his rights?  Sure, a purchase of rights can be done, but what if it the owner isn’t interested in selling?  Can there be a taking, a Park Avenue Kelo, where some committee of people who, like me, adore history so much that it matters more than property rights?

Being of that weird ilk that prefers to suffer to preserve, whether it’s property, cars or table manners, stuff like this matters to me, and it breaks my heart to hear of a loss of history that can never be recaptured.  I am willing to do it with the things I possess, but that’s my choice.  I don’t know that it’s right to force anyone else to feel as I do, or to put fundamental rights on the alter of preservation.

Yet, I mourn the loss. It isn’t good enough to see history in an image on an iPad, and if nothing is preserved, it will eventually all give way to more financially productive uses, as somebody down the road will not love the landmark as much as the cash.

Making Fudge (Gamso Update)

In the  New York Times Magazine’s Ethicist column, Chuck Klosterman published a letter from a juror.  Well, at least a person [name withheld] who was once a juror, 15 years ago, in St. Louis, and apparently hasn’t been able to sleep well since. St. Louis can do that to you.


During jury selection, I was asked if I supported the death penalty. I don’t. I’m unalterably opposed to capital punishment. But I feared that potential jurors who did not support the death penalty could be automatically disqualified by the prosecution. So I said I agreed with capital punishment. That way, if it came down to it, I might help spare the defendant from execution. But this violated the oath I had taken to tell the truth. Was it ethical for me to lie in order to possibly spare the life of this defendant?
There is, of course, a gap here, given that the writer says he lied, but doesn’t say whether he was left on the jury or deliberated to a verdict, but since this is for the Ethicist column, the question isn’t what happened but whether the road there was ethical.

Klosterman’s response was troubling.


Generally, lying is wrong. But lying is obviously justifiable if telling the truth will get someone unjustifiably killed. You, however, were dealing with a problem with less clarity. The person you were lying for was not necessarily innocent, so your lie was not for his short-term protection; your issue was with the magnitude of the state penalty for those who are authentically guilty.
The key words in this paragraph are “unjustifiably killed,” which is a loaded phrase. The question was asked by a person who was “unalterably opposed” to the death penalty, not opposed to the execution of innocents. One might suspect that every person, whether they favor the death penalty of not, is opposed to the execution of innocent people, Nino excepted.

Thus, Klosterman, pundit of ethics, has tacitly snuck his own moral imperative into the question: that the death penalty isn’t quite as wrong when the defendant deserves it. From this launching pad, he adds:


And while your overall motives were good, you should not have lied in this circumstance. You are negatively complicating a procedure that is already flawed.
This is where his analysis takes a quick nose dive, into the idea that adhering to a belief that no person should be put to death “complicates” a flawed procedure.


Our judicial system is imperfect and married to inflexible rules that occasionally contradict ethical living — but there is no better alternative for the enforcement of collective social laws. Granted, some of those collective laws are bad. But you were not in a position to change legislation; you were in a position to operate within the existing system of community enforcement, which tries to equalize the process by giving lawyers on both sides the ability to eliminate jurors whose views exist on the intractable poles of applied philosophy (which, in this instance, appears to include yourself). The process does not always work, but it has no chance of even coming close if potential jurors don’t tell the truth about what biases they bring to the table.
One of the problems faced by otherwise thoughtful people is that they are given heartfelt advice by well-intended but clueless people. As is apparently, Klosterman doesn’t understand the concept of a death-qualified jury.  Klosterman doesn’t understand that lawyers get peremptory challenges, which eventually run dry and leave the defendant’s fate to the wind.

But most importantly, Klosterman does not appreciate why we have a jury in the first place. When he writes, “you were not in a position to change legislation,” he is technically correct, though he is utterly wrong in the context of a particular case. That’s exactly what a jury is there to do, to change legislation, as it applied to a defendant in a specific prosecution. The jury is the conscience of the community, not a robot dutifully following directions to achieve a governmentally desired goal.

How many Times readers, sufficiently interested in ethics, read this column and walked away with the misguided belief that the lawyers, have “the ability to eliminate jurors whose views exist on the intractable poles of applied philosophy”?  We don’t. We don’t in any case, but we don’t for a separate reason in cases involving capital punishment.  Did it occur to Klosterman to find out how the procedure, flawed but “without better alternatives,” works?

The death qualified panel goes through a vetting process by the court to ascertain whether anyone is, as the questioner puts it, “unalterably opposed” to the death penalty. Even a jury who is reluctant to impose death is noted. And they are removed for cause. Didn’t any explain “cause” to Klosterman? Did he ask? Did he seek the advice of someone knowledgeable about the system before pontificating, or did he just decide to assume he had a clue?

What is omitted from Klosterman’s response is that a jury deciding a death case will be comprised of a group of people for whom the death penalty is fine. Not that they necessarily are chomping at the bit to put jaywalkers on the gurney, but they wouldn’t hesitate, if all goes as the government wants it to go, to flip the switch. Or at least approve someone else flipping the switch, though some might be happy to do it themselves.

What you won’t find on a death-qualified jury is anyone who isn’t inclined to say “fry ’em” if guilt is proven. And there is nothing, absolutely nothing, the defense lawyers can do about it.

Truth is good, as a general proposition. But there are higher order morals at stake when it comes to the killing of a human being.  Blind reliance on a “flawed system” is no way for life and death to be decided.  Knee-resort to truisms like “tell the truth” aren’t good enough to answer complex questions.

But most of all, Klosterman, before you opine on a soap box as big and loud as the New York Times, learn what you’re talking about.  Whether or not it was acceptable for the juror to fudge the truth is one question, a difficult one that will cause many to disagree. For you to fudge your response because you are so taken by your own brilliance or too lazy to find out the correct information, however, is a no-brainer.

And as for the flawed but best system ever, reading the platitudes carved over the lintels of the courthouse is no way to judge a legal system.  The ethical response would have been to admit this was far beyond your scope of knowledge if you were constrained to rely on facile slogans to answer an important question. Not even the Ethicist has the right to make people stupider.

Update: And this just in from Jeff Gamso, who isn’t nearly as kind to Klosterman as I am.

PSA: Still Time To Sign Up For Advance iPad From The ABA

It’s not your iPad, but your Advanced iPad. 



Program Description


Few technologies have so quickly and positively affected the legal profession as has the iPad®. Join us for this live iPad® demonstration to learn even more amazing things your iPad can do and how it can benefit your law practice. We’ll cover just a few of the practical iPad® tips and then delve deep in to a discussion and demonstration of legal specific apps and forensic iPad® tools.


And you get 1.5 CLE credits for this.  The program faculty will be:


Adriana Linares, Legal Technology Trainer and Consultant, LawTech Partners, Winter Park, FL

Malcolm Harsch (Moderator), Associate Director, American Bar Association, Chicago, IL
Remember the old days when CLE taught things like cross-examination or ethics?  Or when an association like the ABA drew its speakers from people who could find the courthouse without the GPS on their iPhone?

Heh. Those days are gone. Aren’t you glad we have CLE requirements to make us better lawyers so that we can better serve our clients.  And for those who think I might be too much of a luddite to appreciate the virtues of an iPad, I already learned all about it via this video.



H/T Leo Mulvihill

A Hard Earned Raise For Atlanta Cops

As  Radley Balko wrote when he twitted this story, what could possibly go wrong?  WSBTV.com in Atlanta reveals:



Channel 2 Action News has obtained an email sent to Atlanta police that says traffic ticket money will fund future pay raises.

No incentive there, right, because police are far too professional to let their personal financial interest color the exercise of authority and discretion.


An Atlanta police source told Channel 2’s Amy Napier Viteri there are concerns that linking pay raises to tickets creates an indirect quota system, but the Mayor’s Office and the author of the email insist there’s no push to write more tickets.

A cynic might suggest that anyone who would suggest such a thing is either a pathological liar or a blithering idiot.  A direct link between traffic tickets and pay raises makes perfect sense, however, for a city looking to shed itself of costs that would otherwise come out of its primary budget, and lay off the burden on the people who would benefit.  If cops want raises, let them work for them.

The police union president gets the message:


The email from police union President Ken Allen explains future police pay raises will be funded through traffic tickets and court revenue. It comes on the heels of the passage of the city’s budget.

“The mayor has designated traffic court/ticket revenue for future pay increases  …  (This is) the first time ever that a revenue stream has been designated to salaries,” Allen told officers in the email. “Future pay increases are in our hands. We need only enforce traffic violations as we are now, but increase our attendance in court to prevent cases being dismissed.”

A smart email.  Allen doesn’t need to explain that the more tickets they write, the more revenue the stream produces to fund pay raises. No matter whether you think cops are smart or not, they know how their bread gets buttered.  Allen recognizes, however, the need to remind cops to close the deal by showing up in court even if it conflicts with the time when the donuts come out of the oven, since there is a tendency to do only as much of their jobs as they find convenient and consistent with the new professionalism.  After all, if they’re waiting in court for traffic tickets to be called, they can’t be out on the street protecting and serving us.


A representative for the mayor’s office iterated sentiments about improving how the police department engages in traffic court, “especially regarding operations and the collections process  …  There is no push to increase revenues through the writing of additional tickets.”

If they just keep saying it, people will believe it. It must be true. It must be. Even though anyone with cognitive functions above a brick knows otherwise.


But a police source told Viteri the plan could make officers work toward increasing citations, in hopes of a higher wage. Some drivers Viteri spoke to agree.

“I’m probably going to switch from sales and join the police force in that case, if that’s the way it’s working,” Ken Miller said.

And union president Allen persists:


Allen said enforcement of traffic laws won’t change.

Tying pay increases to ticket revenue is a cop’s, and politician’s, dream. The cost of policing is a huge expense on a municipality. Cops are not only hugely expensive, even when they aren’t generating lawsuits and settlements in the millions, but their cost goes on forever as pension benefits burden administrations led by those yet unborn. 

But it’s hard, if not impossible, to beat the cops back come contract time. In negotiations, they remind us of how they risk their lives for us every day, and if we don’t like them, the next time we’re in trouble we should call a criminal. The arguments may fall short for those who insist on logic, but most of the public eats this stuff up.

To shift the burden off the general budget and onto the cops’ shoulders is the perfect administrative solution, as it allows the mayors and city council types to embrace fiery police rhetoric while being fiscally prudent.  As for the public, the scheme relies on the age-old fantasy that only the bad people, the law-breakers, will suffer, since good, law-abiding people will never be the targets of overly-ambitious enforcement.

So the mayor says so. The union president says so. And from the tenor of the news report, they aren’t quite ready to say anything else either. After all, only a cynic would besmirch the integrity of the police in the enforcement of the law and suggest that they might start handing out tickets for the most trivial of infractions.

Or worse yet, for no infraction at all, if they don’t like the way you look at them. Or just write out tickets and lose them down a sewer near the Coca-Cola museum, where the tourists go who will never come back to Atlanta to dispute the notice of a warrant in the mail. They may get angry, but it’s not like they vote for mayor in Atlanta.

What could possibly go wrong? 

Brief Lifespans

During dinner last night, I was trying to explain to Dr. SJ why I hated the new version of tweetdeck, a twitter interface that was created by somebody else, bought by twitter and improved to the point that it’s gone from great to awful. She, unwed to anything techy aside from me, asked why they would do such thing.

I explained that every six months or so, everything on the internet seemed to change. Nobody left anything alone, and even though it wasn’t broke, they were always fixing it until everybody moved to the next new thing. I told her I hated it.

“Does everybody hate it or just you,” she asked?

“I probably hate it more than most people,” I responded.

“Because you’re so adaptable,” she laughed.  When my children aren’t around to keep me humble, she picks up the slack.  The  New York Times public editor writes about the elimination of numerous blogs, with more to die soon. The age of blogs was born, matured, and died, according to the Times.

At The Faculty Lounge, where lawprofs openly seek only the company of their intellectual equals, Alfred Brophy asked whether law blogs were still relevant. I  semi-snarkily commented whether he was talking about law blogs or law prof blogs.

A few years ago, I tried to get law profs to engage with lawyer blogs. It went nowhere. They didn’t like they way they were treated by lawyers, which ranged from disrespectful to vulgar. And there was nothing in it for them, as they write for appreciation, some might say adoration, of their own kind. What lawyers think of profs is no more relevant to them than what non-lawyers think of lawyer blogs.

On the other hand, the lawprofs offered law bloggers a bit of an inside joke when they openly admitted that they were  happy enough to get spam comments rather than no comments at all. It really was an insight into how sad and desperate the need for validation can be within the Academy, and why their purpose for blogging was so very different than lawyers’.

One of the only blogs that was never really focused on gaining the adoration of the Academy was created by Eugene Volokh. It was a by-product of the politics, like an intelligent version of Ann Althouse meant for people who think rather than pander. But then, Eugene wrote a post yesterday that I found deeply unsettling, A Warning to Lawyers. 

He apparently just found out that lawyers were using marketeers to spam comments and offer guest posts.  Either Eugene was immune from the forces of evil that bore on the rest of us for the past five years, or he was shaken from his complacency by a conceit that really pissed him off.


Most recently, I got an e-mail asking whether I would take guest posts from a law firm’s lawyers — but the e-mail was badly written (which doesn’t augur well for the future guest posts) and also began with “Hi Eugene,” a salutation that many people find off-putting when it comes from a total stranger.

Like Eugene, I find it offensive when someone I don’t know presumes to be so informal as to call me by my first name. It’s not that I demand to be called “Mr. Greenfield,” but that the decision of what I’m called is mine, not some stranger’s. 

Still, it’s become so commonplace that in the scheme of bad things these marketeers are doing, it barely registers anymore. I’m told that within the commonly held beliefs of marketers and such, the use of the informal puts everyone on the same plane, thus making the target of the scam feel less inclined to turn away the scammer and more inclined to accept their pitch, as if they were equals.  It’s not true, but it’s just one of many marketer theories that don’t work.

But while Eugene’s main post left me scratching my head, thinking “seriously, Eugene?” because of this being an everyday experience for the rest of us for many years now, it was the update to his post that really got my goat.


UPDATE: For comments along a similar line (with more details), see Ken (Popehat). Ken has a good way of putting it, which paraphrases Eric Turkewitz: “when you outsource your marketing, you outsource your reputation.”
A  comment to the post pointed at Ken, and I suspect that’s the genesis of Eugene’s update. Now I’m friends with Ken and Turk, as well as Eugene, and have no issue with linking to Popehat per se. But just as Ken thought well enough to credit the attribution to Turk, Eugene chose to link to Ken instead.

Turk’s admonition has been repeated hundreds, maybe thousands of time. Turk has written much about it. So has Ken. So have many others, including me. This has been going on for years, and Eugene knew nothing about it?  He had to be told by a commenter that this was an issue about which someone else had written. I was offended by Eugene’s handling of it, and told him so.

Many of the old gang of the blawgosphere has gone. Some post sporadically, but unreliably. The signal to noise ratio in comments has gotten far worse over time, with the most persistent being easily identified from their tin foil hats. The number of blogs that seek to sell rather than illuminate has fallen precipitously. And as I’ve just learned from one of the grandmasters of the blawgosphere, he has somehow managed to remain so isolated as to be clueless of either the problems or benefits of the blawgosphere.

Just so you know, Eugene, Eric Turkewitz was one of the ten blawgs in the inaugural class of the ABA Hall of Fame.  Just like your blawg, Eugene. Didn’t you notice that either?



An Awful Long Time

Via Mike Masnick at Techdirt :


While much of the news coverage of FBI Director Robert Mueller’s Congressional hearing this week focused on his admission that the FBI has used drones domestically, there were some other points raised, including his “defense” of the broad surveillance techniques that appears to amount to the idea that it just takes too long to obey the Constitution and go through the proper procedures before getting information:
Testifying before the Senate Judiciary Committee, Mr. Mueller addressed a proposal to require telephone companies to retain calling logs for five years — the period the N.S.A. is keeping them — for investigators to consult, rather than allowing the government to collect and store them all. He cautioned that it would take time to subpoena the companies for numbers of interest and get the answers back.

“The point being that it will take an awful long time,” Mr. Mueller said.
Well, shucks
I couldn’t have said it better myself.



It’s very hard to protect us and do all that constitutiony stuff.  Work, work, work. Shucks.

Really Important Changes in Laws

Got a problem? Pass a law. As much as people complain that we have too darned many laws, the reality is that they want them, love them, see them as their salvation. Of course, it’s not that they just want laws willy nilly. Oh, no. They want laws to fix the critical problems that touch their lives, and so government, always happy to have something new to do so that they can remind us of how much they’ve done for us in their last term of office, is here for us.

In Florida, Governor Rick Scott feels the pain of those who can’t bear the delay of convicted criminals who should have been executed yesterday, but remain alive on the state’s dime, eating, drinking, watching cable TV and working out with their free gym membership, filing papers right and left to get a court to let them test some DNA to prove their actual innocence.

Innocence, shminocence. In a perfect world, Floridians would have them taken out back of the courthouse and shot within minutes of the verdict. Finality, baby. After all, isn’t this the best legal system ever created (except for that Casey Anthony woman, who should have been taken out and shot by accident. Oops, sorry Jose. My bad.) So Scott signed off on a law to put a smile on every redneck in the panhandle.



Gov. Rick Scott signed a bill into law Friday aimed at accelerating the pace of the death penalty process in Florida that could make the governor the most active executioner in modern state history.

The measure, dubbed “the Timely Justice Act” by its proponents, requires governors to sign death warrants 30 days after the Florida Supreme Court certifies that an inmate has exhausted his legal appeals and his clemency review. Once a death warrant is signed, the new law requires the state to execute the defendant within six months.

In a lengthy letter accompanying his signature, Scott aggressively countered allegations by opponents that the law will “fast track” death penalty cases and emphasized that it “discourages stalling tactics” of defense attorneys and ensures that the convicted “do not languish on death row for decades.”


Why are these guys languishing? Well, they won’t languish anymore, Scott promises.


“If this bill had been law, it would have ended my life — even though I was innocent,” said Sean Penalver of Broward County, who was exonerated after six years on Death Row, as he delivered 6,000 petitions to the governor’s office in May. “But if he signs this bill into law, I fear other innocent people like me will be unjustly executed by the State of Florida.”

Sure, Penalver. It’s all about you and those so-called innocent people wrongfully convicted and sentenced to death. Like that happened more than, oh, a few hundred times. Rule and roll, baby. We’ve got people to execute and there’s no time like the present. And if a few innocents get fried in the process, well, that’s the price of a free society.

Higher up the east coast, the  New York Senate has approved an Animal Rights Registry, because the 1999 Buster’s Law won’t be Republic Senator Greg Ball a thankful doggy lick.


Senator Greg Ball (R,C,I-Patterson) announced that the New York State Senate has passed  S2305A, legislation that will require those that violate Buster’s Law by abusing animals, register his or her name and address with the division of criminal justice services, undergo a psychiatric evaluation and will also ban them from ever owning a pet again.

Plus, anyone on the list, after having served their sentence under Buster’s law but clearly not punished anywhere near enough (and given that New York, unlike Florida, has no death penalty), will now have a new list of people who will be denied jobs, housing, education and futures.  So what if they paid their debt to society?  Do it for the votes doggies!


Unfortunately, animal abuse is a prevalent problem in our society. As there are laws to protect children and the elderly from abuse, it is important to extend this means of protection to animals as well. Much like Megan’s Law was designed to prevent sex offenders from repeating crimes against children, this legislation
will serve to prevent animal abusers from committing repeat offenses.

But wait. There are laws to protect children. There are laws to protect the elderly. There are laws to protect animals.  But there is no Child Abuse Registry. No Elderly Abuse Registry. Heck, we don’t even have a murderer registry, or a jaywalking registry (do you have any idea how prevalent jaywalking is in New York?).  How will we ever be saved?

Yet, there’s a far more serious threat than making sure we have registries so we know who to hate in perpetuity. That’s right. Bullies. Big meanies. When the Big Meany turns out to be little kid, however, they rarely have enough loot in their piggy banks to fund the next police crackdown. But their parents do.



As part of an effort to crack down on “harassment and emotional abuse among young people,” a Wisconsin town will reportedly ticket and fine parents whose children repeatedly bully others.


As The Wisconsin State Journal reports, the “parent-liability” approach is part of an overall ordinance passed last month by the Monona City Council and may break fresh ground in the nationwide effort to reduce schoolyard bullying among children and teens.


After all, bullies come out of the womb that way, so who better to blame when a kid calls another kid a mean name?  Even though the fine is only $144, Monona figures that if they put enough undercover officers on the playground, they can nail every parent, over and over, because they all think the bully is some other parents’ kid and not theirs! Their little darling would never say anything to hurt another child’s feelings. Oh boy, are they in for a shock.

And lest you feel left out, if there is anything or anybody who irks you, there are legislators standing by awaiting your phone calls to sponsor a law criminalizing anything that makes you sad.  All you need is a brief description and the name of a dead child, dead animal or meaningless buzzword that’s been in the news lately. No need to wonder when the hammer will drop on whoever or whatever pisses you off, as the days of languishing are over.

You want the perfect society?  No sweat. Just one more law will fix everything. Happy now?