If it happens every time, then it’s a “problem.” But if it’s the “exception rather than the rule,” then no problem.



From the Portland Press Herald, the Maine legislature’s criminal justice committee is reviewing the use of a prison restraint and the pepper spraying of a bipolar inmate to “to ensure it is an aberration and not an ongoing practice.”  What are the chances that the anyone will give them the real answer, “we don’t use it all the time; just when they deserve it”?

The inmate, Paul Schlosser, refused to go to the medical unit for a self-inflicted arm wound, suffers from bipolar disorder, a mental illness. What a surprise. So the inmate, spits at the guards, as mentally ill people sometimes do.  And the staff is only there to help, in their own friendly way, because corrections is a great place for dealing with people with mental illness due to their sensitivity to their needs. So what do they do?

But when one of the officers pins back Schlosser’s head, as his arms are being put into the chair’s restraints, Schlosser starts to struggle. When he spits at one of the officers, Welch sprays him with pepper spray, also called OC spray.

Schlosser becomes compliant and complains about not being able to breathe. One officer puts a spit mask on him, trapping the pepper spray on Schlosser’s face.

Welch tells him he must cooperate to avoid similar treatment. Schlosser is in distress for 24 minutes before he is allowed to wash his face.

An investigator’s report on the incident, obtained by the Maine Sunday Telegram, said Welch used a pepper spray canister that was intended for multiple subjects, 18 to 20 feet away.

Corrections Commissioner Joseph Ponte said last week the incident started out with the prison staff correctly trying to get Schlosser the treatment he needed despite his resistance.

Ponte said Welch’s behavior as the incident went on was troubling, but he determined, based on Welch’s unblemished record, that a suspension was appropriate and that Welch would not be fired.

Gerzofsky said the committee’s role is to make sure that incidents like the one involving Welch and Schlosser are the exception and not commonplace.

Rep. Mark Dion, D-Portland, House chairman of the committee and former sheriff of Cumberland County, which has the state’s largest county jail, said use of force to control or manage inmate behavior is part of a corrections officer’s duties.

The Judiciary Committee plans to hold a hearing Tuesday on a bill that seeks to prevent prisoners from filing protection-from-harassment complaints against corrections personnel.

“This process safeguards against harassment and retaliation by corrections personnel,” the statement said. “It should be obvious that this protection needs to remain in place even if used only a few times a year.”

At Above The Law, my fellow curmudgeon Mark Herrmann gives us a gift that us groundlings in criminal defense would otherwise never receive, the wisdom of star prosecutor Patrick Fitzgerald, who has left the government payroll to serve the clients of Skadden Arps.

We had the good fortune to have Patrick Fitzgerald — the former U.S. Attorney for the Northern District of Illinois who recently joined Skadden — speak to my company’s global compliance conference last month.

First, if you’re responding to allegations made by a whistleblower, don’t assume that you’ll avoid trouble by explaining that the whistleblower is nuts. Whistleblowers may often be nuts — it takes a certain personality to blow the whistle — but the fact that you’re nuts doesn’t necessarily mean that you’re wrong. Even a stopped clock tells the right time twice a day. It’s okay to explain briefly to prosecutors that the whistleblower is nuts, but the heart of your presentation must respond to the allegations.

So nuts doesn’t equal wrong? True, but not exactly new.  Maybe the white collar “specialists” at Biglaw never crossed a junkie snitch, but for the rest of us, this is pretty 101 stuff.

Second, for many corporate criminal investigations, the company’s misconduct may be less important than how the company responded to the misconduct. If you have a few hundred (or a few thousand, or a few tens of thousands, or more) employees working in your organization, then some of those employees won’t follow the rules. That’s inevitable, and prosecutors understand it. What distinguishes good corporate citizens from bad ones is often not the misconduct itself, but how the corporation responded when it learned of the misconduct.

Ah, now we’re getting a bit trickier. So the secret is to presume guilt before the government does (or just pretend, for the sake of pleasing the fine men and women in federal buildings) and throw a few people under the bus to satisfy their bloodlust?  Perhaps we could give this trick a cool name, like “when baby prosecutors say jump, corporate titans ask “how high”?

Third, Fitzgerald suggested providing a candid, comprehensive narrative when you meet with prosecutors. Too many companies, says Fitzgerald, hold their cards close to the vest, not wanting to give prosecutors information unnecessarily. That leaves the prosecutors to rely exclusively on the FBI’s version of the facts, which probably won’t paint the company in a great light.

The last thing a multinational corporation wants is to have a prosecutor rely on what the FBI says, so Fitzgerald’s solution is to confess to snatching the Lindbergh baby up front?

Finally, Fitzgerald said that many defense lawyers overplay the possibility that a conviction would cause the company to be debarred from doing government work, which would force the company into bankruptcy and leave thousands of unemployed workers pounding the pavement. Fitzgerald said that prosecutors do care about inadvertently crippling big corporate employers, but many debarment regulations are permissive.

One thing every corporate exec should know is that they can count on the kindness of the government to handle debarment from government contracts or bankruptcy. Prosecutors are sensitive people, and they would never be unduly harsh. They’re from the government, so you can trust them.

These words of wisdom probably cost Aon some big bucks, huge bucks maybe. After all, star prosecutors turned defense lawyer former prosecutor don’t come cheap.  This is a rare opportunity to obtain such insight, only offered to such high-fliers as Aon and the clients of a firm like Skadden.

So let’s review:  If your corporation and its executives become the target of a government investigation or prosecution, Patrick Fitzgerald tells you to take these steps:

Confess
Capitulate
Cop out
Cave in and trust the largesse of the government to provide your salvation
Comply

That’s about $10,000,000 worth of legal advice, courtesy of Fitzgerald.

But you didn’t commit a crime?  But the government prosecutors, none of whom have ever run a company, functioned in a corporate hierarchical structure, been responsible for the actual creation of anything, dealt with foreign cultures?

So what? You aren’t paying attention. The government can’t be wrong. The government can’t lose. It’s the government! Aren’t you listening?

Sadly, most boards of directors do listen, and embrace what Fitzgerald has to say. They don’t want trouble, and the easiest way out of it is to put as many millions (and maybe billions) of dollars on the table as needed to make their government accusers happy.  They will feel badly about having to take loyal, trusted, hard-working corporate executives and toss them mercilessly under the bus as a sacrifice to the prosecution gods, but your life is the price of capitulation, proving to the mighty prosecutors that you are cleansing your corporation of the disease.  So sorry about your family, your future, but they must save the corporate body by excising as many limbs as the government demands.

There is no room for concerns like innocence or that government prosecutors lack any grasp of the conduct in question.  Just be good, little corporate citizens and do as the government demands, no questions asked and no challenge offered.  Comply.

Patrick Fitzgerald is available for future speaking engagements, but you better have a whole lot of money to pay for his critical advice.  Then again, isn’t it worth it? After all, he’s a star.

Update:  I have learned that Patrick Fitzgerald’s talk to Aon was not a stop along the paid speaker circuit, but in fact given without charge.  This does not mean that he is available for federal defender offices and children’s birthday parties, but my assumption that this was a paid gig was wrong and it’s incumbant upon me to correct my error.

Fifty years ago today, the United States Supreme Court issues its ground-breaking decision in Gideon v. Wainwright, holding that an indigent defendant in a criminal trial has a fundamental right to counsel. Yet 50 years later, we find ourselves still waiting for the promise Justice Hugo Black made to Clarence Earl Gideon to be kept.

In anticipation of this day, a great many thoughtful articles have been written about the failure, chronicling courts today where defendants are routinely denied competent counsel, whether for the lack of any counsel at all, counsel sufficiently interested to be competent or counsel capable of being competent while carrying massive caseloads. Andrew Cohen wrote a brilliant piece for The Atlantic, and even the  New York Times captured the despair of the empty promise.

Listening in on a press briefing last week to Jonathan Rapping, head of Gideon’s Promise, formerly the Southern Public Defender Training Center, he noted that the empty promise can be attributed to a lack of funding, political will and systemic concern, all of which are clearly true.

It struck me that the failure of Gideon’s promise, as reflected in Rapping’s three roots, comes from one common source: the American public lacks any recognition that it is their rights, their life, at stake.

As the pseudonymous Gideon has pounded home at A Public Defender, every person in this nation is a mere unlucky step away from arrest and prosecution. We are a nation of overwhelming criminalization, committing three felonies a day, with an  incarceration rate dwarfing all others. Do people connect the dots? Do they care?

I asked a question of Rapping, whether there was any individual or group who spoke for the rights of indigent defendants on a national level.  He said there was not.

District attorneys have a national group. So do police. Even police chiefs have their own association, though theirs is international. Yet public defenders remain fragmented, small groups fighting daily for their survival, or individuals without any group connection at all. 

Granted, politicians rarely run for office proudly noting the endorsement of their local public defenders, though the Police Union endorsement is often displayed front and center. The reason is purely pragmatic, that voters support law enforcement, which they perceive to be meaningful to their lives. Public defense is at best an entitlement to some misbegotten poor criminal, and at worst a detrimental force in society that releases rapists and killers to harm good, hard-working, law-abiding citizens in their beds at night.

It’s not that we have lost the public relations battle, but that we have surrendered without a fight. 

Until the American people come to understand and appreciate what Gideon means to them personally, individually, and realizes that it touches their life or the life of a loved one, there will never be funding, political will or systemic concern. 

People who already share a concern for the criminal justice system may not appreciate that the vast majority of Americans neither know nor care about much of anything beyond the handful of issues that touch their daily lives. Until they, or someone they care about, finds themselves on the wrong end of an indictment, it isn’t important enough to them to take up space on the small plate of things they’re concerned about. It should be, as they learn when their luck runs out and they find themselves outraged at a system they’ve been told is the best ever created, but by then it’s too late. 

What is missing from this mix is an effort to grab the public’s heart and mind, to educate people as to the meaning of Gideon’s promise to them personally, to their children, their friends, their neighbors. Just as law enforcement has sold its merit to the public, so too must the defense of the accused poor.  Until the public shares a sense of personal need with the defense function and the representation of the poor, there will never be funding, political will or systemic concern.  The factory will continue to grind out justice as quickly and cheaply as possible, and there will no one to complain about it.

There are many leaders in the ranks of indigent defense, but no one has yet emerged as a national leader, a spokesman, a teacher. True, they are tied up in the trenches, fighting for crumbs, trying cases, trying to lighten the absurd caseloads of their offices. Who has the time to mount a larger effort when there are human beings marched in and out of courtrooms without meaningful representation?

Fifty years have gone by since Gideon. It’s time that the battle for the hearts and minds of Americans is joined. It’s time for a national coalition, a national leader, to emerge, to force the public to see that they are each a mere step away from being Clarence Earl Gideon. Until that happens, the fight in the trenches will never be on a level playing field, never be fair, never end, and the promise of Gideon will not be kept. Fifty years of silence is too long. Who will speak for Gideon?

Bruce Schneier, perhaps the foremost authority on internet privacy, has sad bad news.  It’s gone. The internet is now officially a surveillance state, and the shame is that we gave it away. From CNN :

The Internet is a surveillance state. Whether we admit it to ourselves or not, and whether we like it or not, we’re being tracked all the time. Google tracks us, both on its pages and on other pages it has access to. Facebook does the same; it even tracks non-Facebook users. Apple tracks us on our iPhones and iPads. One reporter used a tool called Collusion to track who was tracking him; 105 companies tracked his Internet use during one 36-hour period.

We’re staring down an apparent dilemma.

Increasingly, what we do on the Internet is being combined with other data about us. Unmasking Broadwell’s identity involved correlating her Internet activity with her hotel stays. Everything we do now involves computers, and computers produce data as a natural by-product. Everything is now being saved and correlated, and many big-data companies make money by building up intimate profiles of our lives from a variety of sources.

Facebook, for example, correlates your online behavior with your purchasing habits offline. And there’s more. There’s location data from your cell phone, there’s a record of your movements from closed-circuit TVs.

This is ubiquitous surveillance : All of us being watched, all the time, and that data being stored forever. This is what a surveillance state looks like, and it’s efficient beyond the wildest dreams of George Orwell.

We love computers. We love what computers have done for our lives. Whether it’s watching Youtube, chatting it up with our virtual pals or finding a pair of shoes, the computer is integral to our existence.  And as Schneier tells us, the computer knows everything about us.  We’ve told the computer everything about us when we let Facebook (or whatever your favorite may be) into our lives. 

And in return, we got some new shoes, a friend named Joe327 and hours of laughing at kitteh videos.

Was it worth the trade?  Society has responded with a resounding YES!!!  Most of us have known for quite a while that we’re leaving behind footprints that tell anyone interested in knowing all about us, yet continue to use the internet with abandon. We may have no real grasp of how all this technology works, but we know we’ve sacrificed our privacy for the convenience and fun of shiny gadgets.

To their credit, some technology companies  have refused the government’s efforts to hand over our deepest secrets upon demand. But it’s not exactly a foolproof method of protecting privacy, as businesses have other concerns than keeping our privacy ours.

This isn’t something the free market can fix. We consumers have no choice in the matter. All the major companies that provide us with Internet services are interested in tracking us. Visit a website and it will almost certainly know who you are; there are lots of ways to be tracked without cookies. Cellphone companies routinely undo the web’s privacy protection.

Fixing this requires strong government will, but they’re just as punch-drunk on data as the corporations. Slap-on-the-wrist fines notwithstanding, no one is agitating for better privacy laws.

Strong government will? The last thing the government wants is our privacy to be left intact. It makes law enforcement so much harder, when the total loss of privacy allows unfettered access to whatever information makes their case.

So, we’re done. Welcome to a world where Google knows exactly what sort of porn you all like, and more about your interests than your spouse does. Welcome to a world where your cell phone company knows exactly where you are all the time. Welcome to the end of private conversations, because increasingly your conversations are conducted by e-mail, text, or social networking sites.

And welcome to a world where all of this, and everything else that you do or is done on a computer, is saved, correlated, studied, passed around from company to company without your knowledge or consent; and where the government accesses it at will without a warrant.

Welcome to an Internet without privacy, and we’ve ended up here with hardly a fight.

Schneier doesn’t write this to make us feel bad, or stupid. He writes this because we’ve allowed ourselves to be screwed without putting up a fight.  This is a challenge to every computer user, emailer, kitten video lover, to stop giving our privacy away for free.

We’re done, but only for the moment.  We can become undone if computer users (read: everyone) stop enjoying the miracles of modern technology long enough to give a damn about modern reality.  Rather than vote for the politician who want to protect your guns or take them away, protect a women’s right to chose or outlaw abortions, protect a scientific education that isn’t dictated by someone’s bible, we can start demanding that our elected officials start protecting our privacy from our government.  We still get to vote, you know.

Schneier nails down two immutable facts: first, we are now a computer based society, and they are pervasive in our lives. This isn’t going away.  Second, technology knows everything about us.

We are still at the infancy of technology, and can still change the path we’ve gone down that offers up every aspect of our privacy for the pleasure of internet convenience.  The death of privacy and the joy of technology do not have to co-exist.  We’ve allowed it to happen because we were so transfixed by shiny gadgets that we couldn’t divert our eyes long enough to see the consequences.

But we have a long future ahead of us, and computers will be a part of it.  Unless you have no problem with the government knowing what porn you’re pulling up on Google when no one else is around, you better start caring about this issue and acting on it.  We do not have to give up privacy for the internet. We are not yet done.

Despite the amount of fodder that appears on these pages, I also have discussions with friends that aren’t in the public eye about the issues that concern us. One friend, Stephanie West Allen, who writes a blog called  Idealawg and often sends me emails to let me know about absurd conferences for lawyers that have absolutely nothing to do with law or serving clients, wrote something that gave me pause:

Aside: It’s true that not all the futurists are concerned only about new toys, and some are deeply concerned about the welfare of others and finding ways to overcome existing failures in the law to address unmet needs. But the demand that I murder 1,000 words to provide a comprehensive explanation that meets their detailed approval ignores the core of the message, mired in the same old shiny toy nonsense, and isn’t going to happen. If they want praise, they will have to give it to themselves. That they  demand I do it for them is absurd, and not going to happen.

While lawyers for the Aurora shooter, James Holmes, weren’t prepared to commit to a plea on his behalf, following Judge William Sylvester’s  rejection of motions relating to his coerced waiver of constitutional rights should he pursue an insanity defense, the court entered a “not guilty” plea on his behalf.  But Sylvester also added a needle to the mix :

If there was a way to bet the outcome, I would have gone all in that St. Louis Law School’s interim dean, Tom Keefe, would fail.

Keefe — a local plaintiffs attorney with no previous experience in academia — was appointed in August when former dean Annette Clark resigned after clashing with University President Lawrence Biondi over law school funding and autonomy.

Keefe immediately ruffled feathers when he told a reporter that he was not Biondi’s “butt boy” and announced that he would maintain his private law practice while serving as dean. Keefe is a longtime supporter of the law school and a friend of Biondi.

Keefe acknowledged that he was not a good fit for the job, telling the Post-Dispatch that he and the tenured faculty members were “like oil and water.” He also acknowledged making comments that others found inappropriate or that could be seen as sexual harassment.

“Our tears are not deep,” said the faculty member, noting that Keefe never really grasped how a law faculty functions, but did a better job at relating to students.

It is regrettable for the folks at SLU Law (faculty, students, staff, and alumni) that it has come to this.  At the same time, the episode provides a splendid example of how things can go wrong when a university administrator disregards the appropriate role of the faculty regarding a decision of enormous importance to a law school. 

Good enough to put Debra Milke to death at the time, Armondo Saldate, Jr. was a cop who knew how to make a case stick.  His trick was simple, and played right into the hands of a flawed system. Set up the confession so no one but him hears it, then put a ribbon on it for the jury and make it a swearing contest between cop and killer. It’s a done deal.

Except Saldate’s history finally caught up with him, a mere 22 years after Debra Milke was sentenced to death for the murder of Christopher, her 4-year-old son, when a court finally took issue with the prosecution’s concealment of Saldate’s massive history of misconduct and deceit that was never disclosed at trial. You know the joke, Saldate and Brady walk into a bar, and nobody knows.

In his concurrence to his own majority opinion at the 9th Circuit, Judge Alex Kozinski writes of the trouble :

This is a disturbing case. There’s no physical evidence linking Debra Milke to the crime, and she has maintained her innocence since the day she was arrested. Neither of the men who actually did the killing testified against Milke. Roger Scott refused to testify because his “testimony would not be what he felt was the truth.” After spending many years on death row, James Styers continued to insist that “Debbie had nothing to do with it and thats [sic] the truth.” The only evidence linking Milke to the murder of her son is the word of Detective Armando Saldate, Jr.—a police officer with a long history of misconduct that includes lying under oath as well as accepting sexual favors in exchange for leniency and lying about it.

Judge Kozinski goes on to describe what he calls Saldate’s “unorthodox interrogation methods,” together with a litany of other misconduct. There is even a chart in appendix A to the opinion (pages 45 through 53) because it’s too much to follow otherwise,

Noting that Milke’s execution would be based on nothing more than the word of a liar, who studiously avoided any potential that his claims could be disputed by making certain that ordinary evidence, like a recording of her alleged confession, didn’t exist, Judge Kozinski wrote:

No civilized system of justice should have to depend on such flimsy evidence, quite possibly tainted by dishonesty or overzealousness, to decide whether to take someone’s life or liberty. The Phoenix Police Department and Saldate’s supervisors there should be ashamed of having given free rein to a lawless cop to misbehave again and again, undermining the integrity of the system of justice they were sworn to uphold. As should the Maricopa County Attorney’s Office, which continued to prosecute Saldate’s cases without bothering to disclose his pattern of misconduct.

As much as Judge Kozinski’s plain talk and clear grasp of the problem is refreshing, it’s strikingly inadequate.  You see, Debra Milke was convicted and sentenced to death in 1990.  The number of official hands this case passed through, from the date of her arrest to the grant of habeas corpus by the 9th Circuit Court of Appeals on March 14, 2013, is beyond counting.  Milke was the mother of a murdered 4-year-old who spent that time in a cell awaiting execution. And not until Judge Kozinski spelled out in excruciating detail the wrongs that happened did any cog in the wheel of our justice system give a damn.

This isn’t a success story.  Judge Kozinski’s opinion doesn’t validate the system. It condemns it, though he doesn’t go that final step, despite excoriating so many who could have stopped this outrage from happening, and concluding that the system and each and every one of the official participants, failed.  The system is a failure and cannot be trusted to determine guilt.

At  Popehat , Ken explained the failure thus:

She spent that time there because the criminal justice system — which is required to accord to people like Debra Milke a presumption of innocence — instead accords to people like Armando Saldate, Jr. a presumption of truth. The system — and at least some of its participants — give that presumption freely because Saldate and his cohorts wear a badge and a gun. They do so no matter how many times Saldate and his cohorts show they are unworthy of the presumption.

He notes that the cop, Saldate, and prosecutors who covered him up, will suffer no consequences. But what of the judges?  What of the jurors, the ones so many of you think will nullify bad law if only they knew of their power to do so? 

There will be no consequences for anyone, other than Debra Milke whose son is dead and life is lost.  And yet the system, the one that allowed and enabled this travesty to happen and be perpetuated for more than two decades, will emerge unscathed as well.

And tomorrow, the same players, cops, prosecutors, judges and jurors, will be asked to play their roles in what is euphemistically called the criminal justice system.  If insanity is doing the same thing over and over and expecting a different result, then Judge Kozinski should have said so. 

The reason I lay this particular problem on Alex Kozinski is that he is one of the few people with the power to alter the course of disaster who shows interest and willingness to do what every other player in this fiasco refused to do.  It’s all we’ve got, that one good man who calls out the wrong. Aside from Judge Kozinski, who 22 years later explained the error of Milke’s conviction, the only person who has yet to fail is the executioner. 

H/T Spencer Neal, Oregon law Center

For the handful of lawyers who are actually engaged on a regular basis in reading or writing stuff that shows up on computer screens, the announcement that Google will be killing its RSS Reader was big news. For those unaware, RSS means “really simple syndication,” and unlike many of Google’s efforts to push its way into the marketplace of other people’s good ideas, its RSS reader was, by any definition, a success.

The purpose of an RSS reader is to subscribe to feeds from blogs you read, have them all show up in the same place whenever something new gets posts, and be able to see what’s new without having to go to 10 or 50 or 100 different blogs to check. It was fast and easy, as the name suggests. Simple to use, and for a guy like me, allows me to see the content on 100 blogs in a snap to decide what I want to spend time reading. Without it, reading other blogs took a long time. With it, I could scan 100 blog posts in seconds. Which do you think worked better?

And Google decided to kill it.

Those who adore the future of technology as the future of everything were stunned. This can’t be happening, because it’s the center of the universe and all life depends on technology.  And BetaMax is how everyone will watch television.  Carolyn Elefant at MyShingle, who is far more optimistic about the benefit of every new-fangled idea than me, took a wider view.

So what can we learn from the demise of Google Reader? First, that blogging (at least conversational blogging rather than blogging for SEO) is on the decline (I know that my buddy Kevin O’Keefe will disagree – but hear me out.  GoogleReader grew out of Google’s launch of Blogger and provided a tool to make it easier for blogs to gain traffic.  Here, my experience is typical; as a long time blogger, I relied heavily on GoogleReader for new stories (particularly when I was pumping out ten to twelve posts a week during my three year stint at Legal Blogwatch.

Yet lately, I’ve noticed that many of the younger people who’ve passed through my office as interns or clerks over the past few years don’t use GoogleReader, relying instead on other services like email alerts or GoogleNews tools to track new events. But then again, many of the younger generation whom I’ve worked with don’t follow blogs much as all, save for the big kahunas like HuffPo or maybe (if they’re lawyers) Above the Law. Indeed, when I recently scolded newbies for not knowing how to blog or set up and track RSS feeds, I didn’t consider the possibility that as a blogger, I’d become passe and needed to be dragged into the 21st Century 3.0 rather than the other way around.

You’re wrong, Carolyn. Blogging isn’t dead, and reports to that effect are nothing more than the usual garbage hauled out whenever there’s a change to the ecosystem.The reality is that RSS never caught on with the real world; it’s not how actual, live, honest-to-goodness human beings find and read stuff online (notice how I did not say, “how people consume online content”). People either arrange for new articles to reach them by email as they are published or they visit the publication online.  Some use Twitter to get updates from sites they like.But the only ones who use RSS readers are those in the echo chamber of social media. Ask a client if they use an RSS reader and they’ll look at you cross-eyed.When I ask clients if they read blogs, they have no idea what I’m talking about. But if I ask them if they read a particular site that I know to be a blog, they claim that they do.Heck, even many other lawyers don’t know what the heck RSS or blogging is. We do because we’ve been doing it for longer than more grade-schoolers have been alive.The real world calls it,” writing,” or, “articles.” Those articles are posted on, “websites.”

I hate to be the wet blanket of the blawgosphere (well, not really), but the idea that there can be an ever-expanding universe of blogs strikes me as insane.  I recently figured out how to use RSS feeds to monitor the blawgs that interest me on a regular basis, and it has definitely helped to keep track of new blog posts.  But even so, it’s a bit overwhelming.  And I limit my interests to blogs that offer substantive content.  None of these pretend blogs that are only there to scream “hire me!” make the cut.  And still there’s just too much.

I believe that this type of overpromotion will end up smothering the blogosphere by its own (dead) weight.  Most of these new blogs will bring nothing to the blawgosphere.  They will sporadically post primarily self-hype of no interest to anyone, under the mistaken understanding that everyone who gets a blog gets business from it.  My notion is that too much garbage in the blawgosphere will drive away anyone who comes by for a look, only to find junk, crap and garbage (or what I would call “marketing”).

Following on EDNY Judge John Gleeson’s  scathing “expose” of the United States Sentencing Guidelines as to drugs in  Dossie and Diaz, SDNY Judge Jed Rakoff  offered his views at the National Institute on White Collar Crime conference sponsored by the American Bar Association in Las Vegas.

“My modest proposal is that they should be scrapped in their entirety and in their place there should be a non-arithmetic, multi-factor test,” he said.

What?  Death to the grid?  Return judges to their historic function of being judges rather than bean counters?

Rakoff argued that the “fundamental flaw” of the guidelines is they assume every situation can be distilled into a number for the purpose of then calculating a sentence. He called the numbers assigned to various situations “arbitrary.”

For those who don’t spend enough time pondering the merits of the Guidelines, or the affect they have on framing the concept of an appropriate sentence in a federal criminal case, the numbers in cases involving financial crimes are married to loss calculations, the amount of theoretical money involved in any way, with the alleged offense. Not, as one might suppose, the actual loss, or even a fair estimate of the potential loss, but loss in a way that can only get bigger and worse, designed in such a way as to make the loss caused by the theft of a nice pen come out to $1.7 million. A bit of exaggeration, but not much.

Rakoff said he is not opposed to tough sentences, noting that in 2009 he sentenced former lawyer Marc Dreier to 20 years in prison for running a $400 million investment fraud. Prosecutors had sought 145 years.

But he was concerned with “the irrationality of the guidelines, particularly in white-collar cases.”

“This blind emphasis on the loss calculation to the exclusion of everything else leads to bizarre results in case after case after case, Adelson being just one example,” he said.

While post-Booker sentencing allows judges to factor in the legitimate purpose as expressed in the parsimony clause, there remain two problems that pervade criminal sentencing: first, that the Guidelines still influence the general perspective of what constitutes the appropriate sentence, and second, that there are now a great many judges who have never experienced sentencing without the Guidelines, and have come to believe that the numbers, and the astronomically long sentences they push on judges, reflect some sort of meaningfully appropriate length of imprisonment.

In other words, if white collar defendants whose offense involved (under the peculiar definition of the loss calculations) $10 million, then 50 years is an appropriate sentence.  Why? Because the Guidelines don’t provide for life plus cancer. That a sentence of that length is outrageously long doesn’t occur to them, as that’s the sort of sentence the Guidelines have mandated throughout their legal and judicial careers. That’s what they consider a “normal” sentence for that crime.

Instead of focusing on numbers, Rakoff said the guidelines should instead be overhauled for a list of factors judges would be required to analyze in writing. They could weigh the factors however they wanted, and the sentences would be subject to a robust appellate review.

“But it would not result in this irrational and in my view terribly dangerous situation we have now where certain factors are just singled out, given artificially inflated numbers and then imposed directly or indirectly on judges,” he said.

Not surprisingly, a spokeswoman for the United States Sentencing Commission reacted by saying

the commission reaffirmed its view that a “strong and effective” guidelines system is the best way to achieve the purpose of the Sentencing Reform Act.

The purpose of the Sentencing Reform Act is to achieve consistency in sentencing, from judge to judge, district to district.  Of course, if everybody got 100 years regardless of the nasty details that comprise the factors that otherwise go into disposing of human lives, consistency would be achieved as well. After all, does anything matter more than consistency?