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February 2, 2014

Heritage Foundation apparently endorsing Smarter Sentencing Act; where do other conservative groups and media stand?

A conservative friend alerted me to this notable entry from the blog of The Heritage Foundation authored by Evan Bernick and headlined "Time to Reconsider Mandatory Minimum Sentences."   Here are excerpts: 

The Smarter Sentencing Act is narrowly tailored to address one of the most pressing problems with mandatory minimums — arbitrary, severe punishments for nonviolent offenses— while leaving for another day the question of whether mandatory minimums should apply to violent crimes....

Mandatory minimums were intended to address widely acknowledged problems with the criminal justice system. But good intentions don’t necessarily give rise to good results. In particular, some drug offenses, which make up a significant proportion of mandatory minimums, can give rise to unduly severe punishments. The difference between a drug quantity that triggers a mandatory minimum and one that does not will often produce a “cliff effect.” For example, someone with 0.9 grams of LSD might not spend much time incarcerated, but another fraction of a gram will result in a five years behind bars. It is difficult to conclude that the additional one-tenth of a gram demands a minimum sentence of five years’ imprisonment in every case, regardless of its facts.

The Smarter Sentencing Act would allow judges to sentence nonviolent drug offenders below a mandatory minimum if the court finds that the defendant is not a serious offender (that is, the defendant has a limited or no criminal history, as defined by the U.S. Sentencing Guidelines, and no prior firearm, racketeering, terrorism, or sex offense convictions). The act would also make retroactive the Fairness in Sentencing Act of 2010, which prospectively reduced the disparity between the amount of crack cocaine and powder cocaine needed to trigger mandatory minimum sentences.

Mandatory minimum sentences have wrought terrible injustices in certain cases.  Granting district courts some additional limited sentencing discretion would improve the status quo without returning us to the era of unbounded judicial discretion.  It’s encouraging that, at a time when bipartisan consensus is difficult to come by, there is broad agreement that there are some problems with our federal criminal laws that ought to be addressed.  Too many mandatory minimums for nonviolent drug offenses committed by low-level offenders do not serve the ends of justice and leave no room for mercy.

I am not sure if this blog post represents the official view of The Heritage Foundation and therefore amounts to an official endorsement of the SSA.  But I am sure that those eager to see the SSA move forward in Congress should be encouraged to see this kind of sentiment being expressed on the website of a very influential think tank which says here that its "mission is to formulate and promote conservative public policies based on the principles of free enterprise, limited government, individual freedom, traditional American values, and a strong national defense." 

I am hopeful, based in part on the calls for reform represented by the votes and voices of Senators Ted Cruz, Mike Lee and Rand Paul, that a number of other groups and media with a mission "to formulate and promote conservative public policies" will also be vocal supporters of the Smarter Sentencing Act. If other prominent conservative groups echo the sentiments expressed above, my optimism about serious sentencing reforms being passed through this Congress may start to grow considerably.

A few older and more recent related posts:

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Comments

Given that mandatory minimums were injected into the bill, what does that signal that the Paul/Leahy Justice Safety Valve Act? I would see Mandatory minimums gone in my lifetime, but I do not see Congress diluting their own power to make "moral" statements by ratcheting up sentencing for whatever the outrage of the day is (drugs, porn, terrorism, etc) .

Watching even the Democratic senators vote yes to the amendments was a stark reminder that it's an election year and no one will vote in a way that will show "soft on crime" threads an opponent can yank.

Posted by: Angry Offender | Feb 3, 2014 5:23:55 AM

I do not think the JSVA has any chance, in part because prosecutors are against giving up the power MMs give them.

Posted by: Doug B. | Feb 3, 2014 8:34:09 AM

My view is a bit more complicated than support or opposition. I hate the lawyer phrase, it depends, but it depends.

The decision should be made on an individual basis, in accordance with standards of due care by a parole board, especially, the retroactive reductions.

1) See the indictments, not the adjudicated charges. The latter are fictitious in 95% of cases. The indictments have some relation to reality.

2) See the rap sheet. Was the sentence a pretext to incapacitate a very dangerous but not convictable offender? So if the sentence has to stand in for a dozen other serious crimes, do not touch. Most career criminals commit hundreds of crimes a year. Each is a mini or not so mini natural disaster to family and neighborhood, destroying lives and $millions in real estate value every day they live.

3) Make the decision makers fully liable for the damage done by the released and under-imprisoned if they deviated from professional standards of due care, include class actions by neighbors whose property values dropped as a result of the return of the criminal.

If these conditions are met, as a supporter of smaller government and opponent to rent seeking, reductions in prison populations is a benefit.

Posted by: Supremacy Claus | Feb 3, 2014 10:43:56 AM

Heritage Action endorsed the Smarter Sentencing Act months ago. Other conservative supporters include Grover Norquist, Ralph Reed, Justice Fellowship, the National Association of Evangelicals, R Street Institute, and the Texas Public Policy Foundation. The bill has also been endorsed by more than 100 former prosecutors and judges, the Association of Prosecuting Attorneys, the Major Cities Chiefs Association, and the International Union of Police Associations. So yes, there is reason to be optimistic.

Jeremy Haile
The Sentencing Project

Posted by: Jeremy Haile | Feb 3, 2014 11:56:17 AM

Angry Offender --

"I do not see Congress diluting their own power to make 'moral' statements by ratcheting up sentencing for whatever the outrage of the day is (drugs, porn, terrorism, etc)."

This is a wonderfully revealing statement.

What is it that gets dismissed as the Puritanical "outrage of the day?"

1. Drugs -- e.g., heroin, meth, Ecstasy. Yes indeed, just the pious "outrage of the day."

2. Porn -- e.g., producing and distributing pictures of ten year olds being forced to have sex with animals. Yes, indeed, just the pious "outrage of the day."

3. Terrorism -- The crown jewel of the lot. When an eight year-old gets blown to bits by a Jihadist nail bomb (along with two other people at the Boston Marathon), this is just the pious "outrage of the day."

Every now and again, those opposed to mandatory minimums, like "Angry Offender" will tell you what they really think, and, although it's way, way beyond sick, I'm grateful for the candid revelation.

P.S. Maybe "Angry Offender" should become "contrite offender." Better yet, judging from his unbelievably callous attitude, maybe he should be "incarcerated offender." Still, he's an up-close-and-personal example of what alleged rehabilitation actually produces.

Posted by: Bill Otis | Feb 3, 2014 12:56:09 PM

Bill Otis, according to the aboe e-mail "Heritage Action endorsed the Smarter Sentencing Act months ago. Other conservative supporters include Grover Norquist, Ralph Reed, Justice Fellowship, the National Association of Evangelicals, R Street Institute, and the Texas Public Policy Foundation. The bill has also been endorsed by more than 100 former prosecutors and judges, the Association of Prosecuting Attorneys, the Major Cities Chiefs Association, and the International Union of Police Associations." Seems like you are swimming against a rising tide.
Are they all wrong?

Posted by: obective observer | Feb 3, 2014 1:54:09 PM

objective observer --

"Seems like you are swimming against a rising tide. Are they all wrong?"

Yes they are, and you may be an observer, but somehow I doubt you're objective.

It's true that I'm swimming against the tide in the Senate, dominated as it is by Democrats. Yes, well, last time I looked, there's another chamber............

As to swimming against the tide: Right you are. Is that supposed to deter me?

I was swimming against the tide in the early Seventies in supporting the DP. How did that work out?

I was swimming against the tide in the late Seventies in supporting reform to the judges-run-wild sentencing system we had then. How did that work out?

I was swimming against the tide at the same time when I was supporting Ronald Reagan against the virtually uniform opinion of the chattering class that he was a cowboy nimwit who'd get us into WW III with the (then) Soviet Union. How did that work out?

Posted by: Bill Otis | Feb 3, 2014 2:12:06 PM

Mr. Otis,

My son was incarcerated for almost 20 years for cocaine trafficking because of people like you. I have been watching this issue for years, and I have wondered what type of person wants non violent offenders like my son locked up so long. Life is too short. It is people like you, who have been given too much power for too long. You must have destroyed many lives in the name of your idea of Justice.

Posted by: Mary Steinbeck | Feb 3, 2014 3:24:29 PM

Mary:

And despite his claim that mandatory minimums have led to the greatest decrease in crime since God Created Earth (based on a really stupid pseudo-study by "Freakonomics" author Levitt - which has generally been discredited), Bill just loves punishing everybody and anything.

"By their works you shall know them". You and I know Mr. Otis only too well. He is dangerous. No extreme strawman creation is too far-fetched for his simple-minded reasoning. But then I have to remember, he is an outstanding member of the high-lead exposure generation.

Posted by: albeed | Feb 3, 2014 4:12:13 PM

Remember that mandatory minimums are set by lawmakers before the fact when the problem is not fully knowable.

Posted by: Tom McGee | Feb 3, 2014 4:46:21 PM

Actually, Mary Steinbeck, your son was locked up because he decided to sell drugs. Unless, of course, somebody put a gun to his head and forced him to sell drugs. The AUSA who prosecuted your son is not responsible for your son's choices.

Posted by: Hmmm | Feb 3, 2014 5:10:51 PM

I would say the "Smarter Sentencing Act" is a little smarter, but not much.

Posted by: Tom McGee | Feb 3, 2014 5:14:21 PM

BO here's another you can add to your list of crumbling BS:

I was swimming against the tide denouncing the legalization of pot. How did that work out?

what a depressing old crank...

Posted by: Wally | Feb 3, 2014 5:27:43 PM

I think I was saying something the other day about anonymous guttersnipes.

QED.

Posted by: Bill Otis | Feb 3, 2014 6:44:32 PM

I'm not that self important, as you seem to believe you are, that my complete name and bio really adds additional importance to my opinions on this blog, unlike what you seem to believe. But, I so do prefer Wally over guttersnipe though. Enjoy the day gramps.

Posted by: Wally | Feb 3, 2014 7:06:23 PM

"your son was locked up because he decided to sell drugs"

The length of time a person is locked up depends on the statute, prosecutorial choices, sentencing choices etc. People who do the same thing ("sell drugs" or whatever) get different sentences for various reasons.

Emotional comments about family members should be taken with a grain of salt but warrant a tad bit more content than that.

Posted by: Joe | Feb 3, 2014 8:46:27 PM

Wally:
"Anonymous guttersnipe" is a badge of honor. Wear it well. Bill addresses the fact that your comment was anonymous (i.e., he can't verify your identity)instead of the merits of your argument. Given that this form of argument is used by Bill in many posts on this website for many years one has to wonder if he used it in Court or just here where the grading of his papers is not so outcome determinative?

Posted by: ? | Feb 3, 2014 9:26:25 PM

? --

"Anonymous guttersnipe' is a badge of honor. Wear it well."

As you wish.

"Bill addresses the fact that your comment was anonymous..."

Actually, I never referenced Wally's comment.

"...(i.e., he can't verify your identity)..."

Translation: Wally conceals his identity.

"...instead of the merits of your argument."

He MADE no argument. I had pointed out, in response to another commenter, that I had been swimming against the tide in three other instances in which the tide turned, so I don't really worry about how the tide is running at any given moment. Wally walked right passed that (as you do), and said that I could add to my "list of crumbling BS" my opposition to legalizing pot.

That's an argument? My foot it's an argument.

"Given that this form of argument is used by Bill in many posts on this website for many years one has to wonder if he used it in Court or just here where the grading of his papers is not so outcome determinative?"

I don't submit papers here; if I did, they wouldn't be to you; and what I argued in court you can easily find. Since I don't hide behind Internet anonymity, you can look up the cases in which I argued. My briefs were all publicly filed.

You used to have a modicum of manners. Where have they gone? Wally starts off with this, "BO here's another you can add to your list of crumbling BS:"

"BO," as you know, is about a sixth grade reference to "body odor," and was used as an insult. You know that perfectly well. Do you have a problem with it? Yes? No?

Three lines, later, Wally winds up what you mistakenly regard as an argument with this, "what a depressing old crank..."

Yet the problem here is me?

Well, not exactly. The problem is the arrogance, certitude, immaturity and intolerance of those wanting pot legalization.

P.S. Your apparent implication that I won my cases in court only because courts are "outcome determinative" is false.

Posted by: Bill Otis | Feb 3, 2014 11:27:26 PM

"Your apparent implication that I won my cases in court only because courts are "outcome determinative" is false."

I disagree. Federal Courts in criminal cases are for the most part fiefdoms ruled by judges and U.S Attorneys. Judges conduct the so-called voir dire--which lasts 2 hours--if that long. And with such penetrating questions, "Now despite the fact that......, you can still be fair can you not? We've all seen that nonsense. The government has virtually infinite investigative resources and the ability to buy witnesses with offers of immunity and reducing sentences to persons who would sell their souls to get out early, and offers of U-Visas to persons who would (and do) sell their souls to stay in this country. Leave aside the skewed rules of evidence and the jury instructions that are so bland they are meaningless. True, the jury is told that the defendant is presumed innocent, but the words are meaningless and a joke as jury polls repeatedly show. All practitioners know that in fact the presumption is that the defendant is guilty. After all, why on earth is he sitting there if he's not? So, Mr. Otis, your protestations to the contrary notwithstanding, the federal courts, at least in criminal cases, are indeed outcome determinative. (With a few fluke not guilty verdict from time to time).

Posted by: anon14 | Feb 4, 2014 12:33:34 AM

anon14 --

The reason the huge majority of defendants are adjudicated guilty is that they ARE guilty.

Do you doubt this?

Posted by: Bill Otis | Feb 4, 2014 1:33:43 AM

Mary Steinback stated: "My son was incarcerated for almost 20 years for cocaine trafficking because of people like you."

This says it all. The reason our prisons are overflowing is twofold, neither having to do with bloodthirsty prosecutors and prison employee unions looking to preserve their jobs.

It is because of people like Mary always looking to blame someone else for her kid's behavior. She is the mom who, when her 6 year old kid is misbehaving in the restaurant, says "You better calm down or the waitress will yell at you." When the waitress has to say something, it was her fault because she did not bring the crayons over quickly enough.

The second reason is because we used to refrain from actions because they were wrong. Old fashioned Judeo-Christian values. As a nation, we now refrain because they are illegal. No moral compass required, just the time to read tens of thousands of pages of laws put in place because we no longer know right from wrong. We could reduce the sentence of Mary's son. We could even legalize his action. The law can be changed but it is still immoral behavior that is damaging society, himself, and family. Unfortunately, Mary's criticism would merely change to blaming society for her son selling it in the first place.

Posted by: TarlsQtr | Feb 4, 2014 9:11:11 AM

TarlsQtr, I found the second reason you give for the recent increase in incarceration very interesting. I'm deeply skeptical that your argument is empirically correct (I think a much better explanation is increased enforcement of drug laws, rather than increased drug use), but that's a whole different debate. What I'm really interested in hearing is, what do Judaism/Christianity have to say about cocaine? Is there a biblical argument against the use of drugs?

Posted by: Curious | Feb 4, 2014 9:40:25 AM

Hi Curious,

To my knowledge, there is no specific mention of cocaine. However, we need to remember two things.

1) Jesus drank wine, so no Christian could ever make a reasonable argument that ALL intoxicants are banned. It is one thing (of many) that always puzzled me about Southern Baptists.

2) There are dozens of passages specifically banning "strong drink" and "drunkenness." Scripture also speaks of the body being a temple, etc. I believe it is more than reasonable to extrapolate these to include cocaine and hard drugs. You can drink wine without running afoul, but I do not see how one could consume cocaine, heroine, etc. without becoming "drunken." I believe that marijuana falls in here as well when consumed for any purpose other than medical, although I may be able to be convinced otherwise.

I am also not such a biblical literalist that I would read the disapprobations to deny people medicinal painkillers (e.g. morphine) for proper use.

Posted by: TarlsQtr | Feb 4, 2014 10:52:59 AM

TarslQtr, that's very interesting, thanks for your response. I come from the Jewish tradition, where it seems like occasional drunkenness is either condoned (four cups of wine at Passover! whiskey-drinking yeshiva students!) or encouraged (Purim!). So I find it difficult to imagine a religious disapprobation on responsible intoxication, whatever the substance.

Of course, irresponsible use that leads to self-harm or harm to others would be a no-no, and as you say, Southern Baptists say we should refrain entirely. But I don't think that folks who occasionally use alcohol, marijuana, psychedelics, cocaine, etc. are violating any religious commandment, at least from the Jewish perspective.

Also, as I'm sure you're aware, drug prohibition is a rather recent phenomenon in this country. Cocaine, heroin, and opium were widely available in the 19th and early 20th centuries (you could even order them from the Sears catalog!). So I'm not sure that increased drug use reflects a loss of "[o]ld fashioned Judeo-Christian values." If anything, it might reflect a return to old fashioned American values!

Posted by: Curious | Feb 4, 2014 11:16:52 AM

I am in a meeting, so I will respond to just this point for now: "Also, as I'm sure you're aware, drug prohibition is a rather recent phenomenon in this country. Cocaine, heroin, and opium were widely available in the 19th and early 20th centuries (you could even order them from the Sears catalog!). So I'm not sure that increased drug use reflects a loss of "[o]ld fashioned Judeo-Christian values." If anything, it might reflect a return to old fashioned American values!"

I believe it proves just the opposite and makes my original point. There were no laws against hard drugs because they were not needed. People did not take them because it was wrong to do so, not because of the possibility of government sanction. Those that did overwhelmingly did so for medical reasons.

Imagine the admittedly cliched and overgeneralized premise of the "town drunk." Each town had ONE (it was not "drunks") and he was shamed. The phrase is almost not used anymore, because intoxicated people are the norm and there is virtually no shame left in it. Look at this thread as an example of this phenomenon, where a cocaine dealer is somehow a "victim." Again, I understand that this is way too simplistic but there is truth in it. I do not believe it even controversial that hard drug abuse, even after the injuries of the Civil War, was non-existent compared to today. "Recreational drug use" is a modern phrase.

As we lost the urge to do right for right's sake, the government stepped in last century to fill the void.

Posted by: TarlsQtr | Feb 4, 2014 11:44:31 AM

Hmmmmmm, well, I'm sure that empirical data on rates of drug abuse from this time period is hard to come by, and neither of us are experts, but a bit of Googling turned up a few links that seem to contradict your theory. To wit:

"Drug addiction in the English-speaking world was rare at the beginning of the 19th century but common at the end of it, at least in the United States. By conservative estimate the U.S. had 200,000 addicts in 1900, with most of the increase occurring in the late 1800s. The Civil War is often blamed for this--after the war it's said morphine addiction was widely known as the army disease.'" (http://www.straightdope.com/columns/read/1335/did-the-u-s-civil-war-create-500-000-morphine-addicts)

"Opiates were popular in the United States throughout the 19th century, particularly among women. Tonics and elixirs containing opium were readily available in drugstores, and doctors commonly prescribed opiates for upper and middle class women suffering from neurasthenia and other 'female problems.' Chinese laborers who came to work on U.S. railroads in the 1850s and 1860s brought with them the practice of opium smoking. While a San Francisco city ordinance passed in 1875 banned smoking opium within city limits, by the turn of the century opium dens were commonplace throughout the nation." (http://www.pbs.org/wgbh/pages/frontline/shows/drugs/buyers/socialhistory.html)

"The euphoric effects of coca leaves have been known to mankind for thousands of years. Yet the first epidemic of cocaine use in America occurred during the late 19th century. Initially, there were no laws restricting the consumption or sale of cocaine. In fact, cocaine was freely available in drug stores, saloons, from mail-order vendors, and even in grocery stores. It is reported that one drug manufacturer, in 1885, was selling cocaine in 15 different forms, including cigarettes, cheroots, inhalants, cordials, crystals, and solutions. Many famous imported wines, such as 'Vin Mariani,' contained a mixture of wine and coca. For consumers on budgets, the wonder drug was available as Coca-Cola and dozens of other soda pops and pick-me-up drinks. One of them even had a simple and direct name, Dope." (http://www.ncbi.nlm.nih.gov/pubmed/8473543)

I'm sure we can find others, if we're really interested in hunting around. As for the "town drunk" theory, I'm certain you're wrong about that. Check out the Ken Burns' documentary on Prohibition, specifically the first episode, for a look at the major role that alcohol played in everyday American life. After all, the reason that we amended the Constitution to prohibit alcohol was because its use (and abuse) was so widespread!

Posted by: Curious | Feb 4, 2014 12:02:15 PM

Bill Otis writes: "The reason the huge majority of defendants are adjudicated guilty is that they ARE guilty."

I can't really say. I wasn't at the scene of the crime. I see the New York Times today has an article about the sharp increase in exonerations last year. In any event, we don't legally know (so to speak) that someone is guilty until folks have had a fair trial. My point is that in federal criminal cases at least, the trial is not fair because the deck is stacked against the accused in virtually every aspect of the trial.

Posted by: obective observer | Feb 4, 2014 12:10:55 PM

I believe you may be missing my larger point. I stated:

"Again, I understand that this is way too simplistic but there is truth in it. I do not believe it even controversial that hard drug abuse, even after the injuries of the Civil War, was non-existent compared to today. "Recreational drug use" is a modern phrase."

Yes, addiction caused by medicinal use is "drug abuse", but I was speaking specifically of recreational use. People used opiates for medicinal purposes and became addicted. I get that and suspect we can all see a lot less immorality in a soldier treating a shattered leg with morphine and becoming addicted than a bored suburban mother trying H.

Posted by: TarlsQtr | Feb 4, 2014 12:27:53 PM

Opium dens, saloons, and cocaine-infused wines and sodas all sure sound like recreational drug use to me. My larger point is that your image of a drug-free America declining into drug-addiction as a result of modern moral decay is just an illusion. The history shows that we've long been a nation of drunks and drug abusers.

Posted by: Curious | Feb 4, 2014 12:41:32 PM

Curious --

"The history shows that we've long been a nation of drunks and drug abusers."

Well, then maybe we could use more demanding standards rather than more lax ones.

Posted by: Bill Otis | Feb 4, 2014 2:00:10 PM

That could be, Bill, but that wasn't the point I was making. I was saying that its wrong to attribute the rise in drug-related incarceration to the loss of "old-fashioned" values. It seems like you agree.

Posted by: Curious | Feb 4, 2014 2:11:29 PM

Curious,

You are employing a straw man. I never called America "drug free" or implied it was anywhere near such a statement.

What I did claim, is that there was far less sue of recreational drug use addiction. Drugs were sold and used as medicine (even Coca Cola was), which makes up the overwhelming majority of drug use prior to the early 1900's. People were not allowed to be drug-addled unproductive members of society. They were shunned by polite society and would have starved.

I would further point out that some of your other examples (opium dens) were brought here by and used mostly by Asian immigrants.

Posted by: TarlsQtr | Feb 4, 2014 2:37:11 PM

Amphetamine-Used as medicine since invention in 1887 became a problem for addicts in 1950's and 60's.

Cocaine-Medicinal. 200,000 addicts in 1902. Adjusted for population, that would be less than 800,000 addicts today. There were 10.4 million cocaine users (13Xs more) in 1984.

Opiates-Again, addiction was mainly caused by medicinal purposes, not "recreational."

http://www.pbs.org/wgbh/pages/frontline/shows/drugs/buyers/socialhistory.html

Posted by: TarlsQtr | Feb 4, 2014 2:50:34 PM

TarlsQtr, you'll have to forgive me for misunderstanding your argument. Some of the statements you made, such as "There were no laws against hard drugs because they were not needed. People did not take them because it was wrong to do so," and "Each town had ONE [town drunk] (it was not 'drunks') and he was shamed," and "I do not believe it even controversial that hard drug abuse, even after the injuries of the Civil War, was non-existent compared to today," all made it seem like you were, at the very least, implying that America used to be "drug free." Still, I disagree with your contention that there was far less drug use in the late-19th/early-20th century than there is today, for the reasons already stated.

As for whether the sale and use of drugs as "medicine" (but don't forget cocaine-infused wine!) made up the "overwhelming majority" of drug use prior to the early 1900s, I really can't say either way. You haven't provided any evidence to back up your claim, but I'd be interested to hear the history, if you can find it. By picking that time frame, though, are you conceding that there was widespread recreational drug use during the early 1900s?

Posted by: Curious | Feb 4, 2014 2:54:29 PM

Thanks for the info! I'd just note that 10.4 million cocaine users does not equal 10.4 million cocaine addicts (just ask our last two Presidents!).

Posted by: Curious | Feb 4, 2014 3:17:11 PM

Did George W. Bush's infatuation with cocaine extend beyond his cheerleading career?

Posted by: Will Swanson | Feb 4, 2014 11:23:46 PM

obective observer --

I said, "The reason the huge majority of defendants are adjudicated guilty is that they ARE guilty."

You respond, "I can't really say. I wasn't at the scene of the crime."

Neither was the jury. Does that mean they cannot reach a verdict beyond a reasonable doubt?

"I see the New York Times today has an article about the sharp increase in exonerations last year."

I haven't and won't read the article, but assuming it's exactly as you represent it to be, it does not gainsay my statement that the reason the huge majority of defendants are adjudicated guilty is that they ARE guilty. "Vast majority" does not mean "all," and every system on earth errs at some point. Most of the errors in this system are mistaken, and sometime preposterous, acquittals, see, e.g., the lovely Ms. Casey Anthony, who literally got away with murder.

Do you care?

"In any event, we don't legally know (so to speak) that someone is guilty until folks have had a fair trial."

Actually, almost all the time we know because they plead guilty to it. And judges ARE LEGALLY FORBIDDEN to take a plea unless they are satisfied that it has a factual basis (i.e., the defendant did it) and is voluntary, Fed. R. Crim. P. 11.

By the way, are you telling us that Dzokhar Tsarnaev, the Boston Marathon bomber caught on tape doing it, is NOT guilty???

"My point is that in federal criminal cases at least, the trial is not fair because the deck is stacked against the accused in virtually every aspect of the trial.

Here's how the deck is stacked: The prosecution bears the burden of proof beyond a reasonable doubt, and has to get all 12. The defendant bears no burden and has to get one. The presumption of innocence alone is sufficient to acquit.

In a sense, though, you're right. The deck is stacked. The "deck" is the evidence of guilt.

Posted by: Bill Otis | Feb 5, 2014 3:02:10 AM

"By the way, are you telling us that Dzokhar Tsarnaev, the Boston Marathon bomber caught on tape doing it, is NOT guilty???"

Dzokhar is guilty but why the FBI secrecy in the killing of his friend while undergoing FBI interrogation Mr. Brickwall Otis? Is it being buried by your government in hopes that people will forget? How about the illegal martial law lockdown of the city of Boston which followed and the keystone cops handling of the matter? The system has crap all over its hands. You must be so proud!

You are truly a work of art, an apologist for the legislature, which has been bastardized by money and bears no resemblance anymore to being representative of the people.

The status quo cannot be sustained.

Posted by: albeed | Feb 5, 2014 8:24:53 AM

http://www.innocenceproject.org/

People like Bill Otis wield blunt instruments. They seek refuge in government. They consider themselves part of "team government".

It is both sad and scary.

Posted by: Hank Reardon | Feb 5, 2014 10:48:31 AM

Hank Reardon --

Still enjoying your dates with Dagney Taggart?

"People like Bill Otis wield blunt instruments."

That would be what, exactly? People who teach law don't have a lot of "instruments" except for the casebook. Mind telling me what you're talking about?

"They seek refuge in government. They consider themselves part of 'team government.'"

Actually, I resigned from the USAO 15 years ago to protest the government's position in the Supreme Court in the Dickerson case. People who are part of the team generally don't walk away from the team in disgust.

There is also no little irony that I get accused of being part of the team when I am OPPOSING the plans of the Attorney General. But I congratulate you on being part of DOJ's team. I hope someday Mr. Holder promotes you from water boy.

Posted by: Bill Otis | Feb 5, 2014 1:07:34 PM

((Sigh))

The finite length sentencing scheme, where we must administer everything from harsh incarceration through "yellow makes me sad" criminal rehabilitation within the same time period. Gotta love the passions it brings out on both sides of the issue.

Once we change to a dual-sentencing paradigm where both punitive and rehabilitative segments are independently adjudicated, where victim interests are satisfied in the punitive segment, while offender/community segments are satisfied in the rehabilitative segment, then we will always have this zero-sum game of victim rights vs offender rights. At least the Heritage Foundation / slash / Tea Party is attempting some movement toward sanity.

Posted by: Eric Knight | Feb 5, 2014 2:06:09 PM

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