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March 17, 2014

DC Circuit gives disconcertingly short-shrift to Antwuan Ball's many significant sentencing claims

Very long time readers with very good memories may recall the array of notable post-Booker issues that surround the sentencing of Antwuan Ball following his conviction for crack distribution in Washington DC. As first noted in this prior post (from June 2008!), Ball put the government to its burden of proof concerning allegations of a massive drug conspiracy and murders; a very lengthy jury trial led to Ball being acquitted in November 2007 on every count of a massive racketeering, drug conspiracy and murder indictment save for one crack distribution count related to a $600, half-ounce, hand-to-hand crack-cocaine deal in 2001.

Fast forward to 2011 and, as reported here, the feds are urging the district judge to rely heavily on all sorts of alleged/claimed wrongdoing by Ball to impose a max statutory sentence of 40 years on the crack charge. (Significant side note: in light of the passage of the FSA and Supreme Court's subsequent Dorsey ruling, I am not sure 40 years was in fact the proper stat-max for Ball, but more on that point later.)

Relying on the prosecution's allegations that Ball was the leader of a huge crack consipracy (claims which the jury rejected), the district judge apparently calculated Ball's guideline sentence range to be 292 to 365 months (though again, due to the FSA, I am not sure that was the right guideline range circa March 2011).   This NACDL amicus brief filed in January 2013 indicates that Ball's guideline range would have been only 51 to 71 months absent consideration of acquitted conduct.

As reported here, District Judge Richard Roberts at sentencing declared that he "saw clear evidence of a drug conspiracy [and imposed on Ball a 225-month prison sentence] for his conviction of the 2001 hand-to-hand drug transaction."  At the time of Ball's 2011 sentencing, I noted here that I was quite pleased the acquitted conduct issues preserved in this notable case, and I suggested "some circuit has to question at least the substantive reasonableness of a sentence that is greatly elevated on the basis of acquitted conduct."  

Now fast forward exactly three more years, and I find myself quite disturbed and troubled by how the acquitted conduct issues (and other issues) were given seemingly quite short shrift by a panel of the DC Circuit in its ruling late last week in US v. Jones, No. 08-3033 (DC Cir. Mar. 14, 2014) (available here).  

For starters, as I read the panel opinion in Jones, I find myself persistently wondering whether and how the district court at Ball's 2011 sentencing may have been influenced by the pre-FSA crack statutes and guidelines before the Supreme Court in Dorsey subsequently made clear that post-FSA rules should apply to all post-FSA sentencings.  This issue is not discussed in the Jones opinion (and perhaps it was not raised/preserved), but uncertainty about the application of the FSA at the time of sentencing might arguably alone be reason enough to require resentencing for Ball.

More fundamentally, to reject Ball's acquitted conduct claims, the DC Circuit opinion in Jones only cites to (now dated) post-Booker precedents from all the circuits via this discussion (my emphasis added):

Although we understand why appellants find sentencing based on acquitted conduct unfair, binding precedent of this court establishes that the practice does not violate the Sixth Amendment when the conduct is established by a preponderance of the evidence and the sentence does not exceed the statutory maximum for the crime.  See United States v. Settles, 530 F.3d 920, 923-24 (D.C. Cir. 2008) (citing United States v. Watts, 519 U.S. 148, 156-57 (1997) (per curiam)); Dorcely, 454 F.3d at 371 [D.C. Cir. 2006] (“[A] sentencing court may base a sentence on acquitted conduct without offending the defendant’s Sixth Amendment right to trial by jury.”).  This is true even when consideration of the acquitted conduct multiplies a defendant’s sentence severalfold.  See Dorcely, 454 F.3d at 370-71.  Appellants, in effect, ask us to reconsider Settles and Dorcely. But not only do those decisions bind us, no subsequent decision by the Supreme Court or another circuit calls their validity into question. Cf. FED. R. APP. P. 35(b)(1) (suggesting contrary decisions by the Supreme Court or by another court of appeals as grounds for en banc review).  Indeed, since the Supreme Court struck down the mandatory federal sentencing guidelines and freed judges “to exercise broad discretion in imposing a sentence within a statutory range,” United States v. Booker, 543 U.S. 220, 233, 243-44 (2005), every numbered circuit has addressed the constitutionality of sentencing based on acquitted conduct, and each one has reached the same conclusion reached by this court. See United States v. White, 551 F.3d 381, 384-86 (6th Cir. 2008) (en banc); United States v. Mercado, 474 F.3d 654, 656-58 (9th Cir. 2007) (collecting cases from every numbered circuit but the Sixth).  

I have emphasized a phrase from the middle of this paragraph because I actually believe there are at least two SCOTUS rulings since the DC Circuit addressed this issue in Settles and Dorcely that arguably "calls their validity into question."  Specifically, just from 2013, the Supreme Court's Peugh decision (basics here) and especially its Alleyne decision (basics here and here) provide a reasonable basis to question the continued validity of severe acquitted conduct guideline enhancements.  A fair reading of Alleyne suggests that judicial fact-finding as to facts which "alter the prescribed range of sentences to which a defendant is exposed and do so in a manner that aggravates the punishment" can be constitutional problematic even if these facts do not raise the applicable statutory maximum sentence.

Critically, I am not asserting that the 2013 SCOTUS rulings Peugh and/or Alleyne now require reversal of old circuit precedents upholding major acquitted conduct enhancements.  But I do strongly believe that 2013 SCOTUS rulings Peugh and/or Alleyne raise significant new questions about old circuit precedents upholding major acquitted conduct enhancements.  Consequently, I find this cursory treatment of what strikes me as a significant sentencing issue in a significant case to be disconcerting.

That all said, perhaps the "optimistic" way to read this opinion is as an invitation to Ball and others to see en banc review of old circuit precedent upholding major acquitted conduct enhancements.  At the very least, given that Ball still likely has a decade in federal prison left for his $600, half-ounce, hand-to-hand crack-cocaine deal in 2001, I hope he seriously considers pursuing further appeals of his sentence.

Some old posts on the Ball case and acquitted conduct sentencing enhancements:

March 17, 2014 at 01:31 PM | Permalink

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Comments

Doug --

Last week, you put up a Ninth Circuit case containing this wise language:

The Supreme Court has cautioned courts of appeals against concluding that “recent cases have, by implication, overruled an earlier precedent.” Agostini v. Felton, 521 U.S. 203, 237 (1997). Thus, “[i]f a precedent of [the Supreme] Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to [the Supreme] Court the prerogative of overruling its own decisions.” Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989). ###

I believe that is fatal to your view that, "I am not asserting that the 2013 SCOTUS rulings Peugh and/or Alleyne now require reversal of old circuit precedents upholding major acquitted conduct enhancements. But I do strongly believe that 2013 SCOTUS rulings Peugh and/or Alleyne raise significant new questions about old circuit precedents upholding major acquitted conduct enhancements. Consequently, I find this cursory treatment of what strikes me as a significant sentencing issue in a significant case to be disconcerting....That all said, perhaps the "optimistic" way to read this opinion is as an invitation to Ball and others to see[k] en banc review of old circuit precedent upholding major acquitted conduct enhancements."

As the Ninth Circuit correctly noted, a court of appeals, whether sitting en banc or otherwise, is in no position to depart from Watts, which is the basis of prior DC Circuit precedent. If that is to be done, it will have to be by SCOTUS.

But SCOTUS won't do it either. The die was cast on this issue in Booker, where, in order to accept the remedy of making the guidelines advisory only, the Court expressly rejected the alternative remedy of requiring Apprendi/Blakely proof BRD.

The defense bar can't have its cake and eat it too: Getting mandatory guidelines neutered (resulting, predictably, in more downward departures), AND requiring proof of sentencing facts BRD.

Personally, I would have preferred the BRD remedy, for the reasons brilliantly stated by Justices Stevens (writing) and Scalia, et al., dissenting from the remedial portion of Booker. But I didn't have a vote.

If we are to preserve the long-existing and Booker-chosen rule of proof of sentencing facts by a preponderance of the evidence (the same standard that is used to decide, for example, suppression motions), then Judge Roberts, and the DC Circuit, got this right.

Finally, I would add that, under Booker, Gall and Kimbrough, it makes no difference what the Commission says about the permissibility vel non of relying on acquitted conduct, or by what standard such conduct must be proved. After those opinions, the views of the Commission -- which is part of the judicial branch but not a court -- may be disregarded by sentencing judges.

P.S. I'm also willing to make one of my now-infamous bets that SCOTUS does not grant cert on the standard of proof question in this case. Are we on?

Posted by: Bill Otis | Mar 17, 2014 2:16:21 PM

Doug--we argued that Peugh and Alleyne help a defendant in a case such as this, where my client (Ball) and his co-defendants were sentenced by judge-made findings that they had committed the elements of another offense (conspiracy), of which they had been acquitted. The Circuit suggested taking it up with the Supreme Court. We will do that. And we will reach out to interested readers/scholars/groups to join us. At the Circuit level we were favored with an excellent amicus from NACDL/Nat'l Ass'n Fed Defenders and ACLU National Capital Region, authored by Jeffrey Green. I welcome input from you and your readers.

Posted by: Steve Leckar | Mar 17, 2014 2:27:13 PM

Was an as-applied Sixth Amendment challenge raised to the D.C. Circuit? Seems to me one of the best cases to make the argument.

Posted by: DEJ | Mar 17, 2014 2:49:01 PM

well bill I think that granting any sentence enhancement to anyone using so-called aquitted or unconvicted conduct is a unconstitutional crime committed against anyone. Sorry from what I see the DA and the Judge are the bigger criminals here and since they have a constitutional duty to uphold the law are now guilty of that so-called unconvicted crime which should bring summary execution.

as for this bit of criminal stupidity!

"District Judge Richard Roberts at sentencing declared that he "saw clear evidence of a drug conspiracy [and imposed on Ball a 225-month prison sentence] for his conviction of the 2001 hand-to-hand drug transaction."

someone might want to remind this criminal fuckup it's not HIS JOB to see the evidence. It's his job to decide what evidence goes before the JURY. it's THEIR job to decide to belive it or not.

the ONLY time he get's to see the evidence and render a decision on it that effects a post conviction sentence is during a BENCH TRIAL.

absent that he's a CRIMINAL maybe he should get the 225 months for that. oh wait. he's a sitting justice who's off his rocker and in violation of his oath of office. that's a nice 2 or 3 step enhancement. let's make it 1,000 months.

Posted by: rodsmith | Mar 17, 2014 3:27:04 PM

All fair points, Bill, though Watts plainly did NOT address a Sixth Amendment claim and Booker expressly distinguished it on that ground. Ergo, an as-applied Sixth Amendment claim is, technically, an open question. (And yes, DEJ, this claim based on Scalia's dicta in Rita was expressly raised (and expressly rejected) by the DC Circuit panel.)

More importantly, Bill, to the extent SCOTUS in Peugh concluded that even advisory guidelines have constitutional significance/import for purposes of the ex post facto clause because, as the majority put it, "the Guidelines [are still] the lodestone of sentencing," then advisory guideline calculations might still implicate the Sixth Amendment, especially if/when these calculations, in the words of Alleyne, dramatically "alter the prescribed range of sentences to which a defendant is exposed and do so in a manner that aggravates the punishment."

Critically, Bill, I think the story here --- both for constitutional and statutory purposes --- should be nuanced based on whether we are dealing with uncharged or acquitted conduct. As you have often said in this setting when we talk about the coercive force of charging MMs and other prosecutorial powers through charging/bargaining, the ultimate protection for defendants is to go to trial and raise reasonable doubt about the feds allegations. In this case, this is exactly what Ball did --- and yet he still gets hammered with an additional decade in prison because a (Clinton appointed) judge who was a prosecutor before becoming a judge is inclined to believe prosecutors more than a jury is.

You are the one, Bill, eager to have prosecutors eat their cake by being able to threaten extreme charges and back that up with a reality that the defendant will still get hammered even if a jury categorically rejects those charges at a trial. You also do not want to trust judges to exercise sentencing discretion, but do want them to have fact-finding authority. That is truly a bizarro-world of constitutional procedure that only a prosecutor who trusts government bureaucrats (and surely not a Founding Father) would be eager to embrace.

Posted by: Doug B. | Mar 17, 2014 5:42:30 PM

While procedurally correct (preponderance is all that is required, there is no explicit exception for acquitted conduct), the outcome here is questionable given Alleyne. The judge clearly "aggravat[ed] the punishment" by things specifically rejected by the jury. The proportionality of the upward variance is telling. I missed it, what was his criminal history score?

1B1.3 shenanigans are rarely surprising and were rarely worth litigating prior to Alleyne. I'd definitely like to see cert on this.

Posted by: Skeptical | Mar 17, 2014 6:06:48 PM

"The die was cast on this issue in Booker..."

The die is never cast. If it were, there wouldn't be a Booker.

Posted by: Michael Drake | Mar 17, 2014 8:35:21 PM

Acquitted conduct or uncharged relavent conduct, my option both are a crock.

My all time favorite cluster. Xxxx. Is Duck hunter gets 30 yrs. it was quite a fiasco on this guy.

He wasn't a sweet heart for sure. But 30 yrs essentially for a felond in passion of. Gun.
The guy took his Remington 870 and shot some ducks. Then oh yeah by the way, your are now an ACCA. Oh by the way, you apparently sent some pipe bombs to his old girl friends house. We are going to double it to 30 yrs.

Must have been old ex fed judge jack camp, maybe he was hungover from a coke binge the night before. I know it wasn't him. But what the hey, it's a mess. Ask holder to fix that one.

By the way what job is he after next, that's why he's greasing the wheel on drug sentencing. My opinion.

Posted by: MidWestguy | Mar 17, 2014 9:02:53 PM

Michael Drake --

"The die is never cast."

I believe what you mean to say is that die is never PERMANENTLY cast.

And in that you are mostly correct. I would think, though, that Brown v. Board, for example, is going to be around for a long, long time.

The cast die in this setting is the Supreme Court's decision in the remedial part of Booker to preserve the real offense system embraced by the SRA, in the terms that Congress understood that system to use. Those terms were judge-found facts at sentencing.

At the time SCOTUS handed down Booker, Apprendi and Blakely were settled law, and the alternative of requiring a BRD standard for sentencing facts was squarely before the Court. It was equally squarely rejected. With the Court's present membership, it's going to stay rejected (Roberts, Alito, Kennedy, Ginsburg and Breyer).

But if you think differently, I'll offer you the same bet I offered Doug.

Posted by: Bill Otis | Mar 17, 2014 9:52:44 PM

skept where did you find this bit of crap?

"While procedurally correct (preponderance is all that is required, there is no explicit exception for acquitted conduct), "

there certainly is an explicit exception for acquitted conduct. It's called BEYOND A REASONABLE DOUBT!

the jury acquitted. Therefore they DOUBTED THE EVIDENCE. therefore any judge who uses it to enhance a sentence is in fact and law a CRIMINAL.

Posted by: rodsmith | Mar 17, 2014 11:39:01 PM

rodsmith,

Sentencing enhancements carry a lesser burden than guilt or innocence (beyond a reasonable doubt). The concept is broadly named "Relevant Conduct", and was meant to ensure a defendant's "real offense conduct" would be considered by the sentencing judge, not just whatever the individual plead guilty to. You may Google "1B1.3 relevant conduct" if you want to review some law on it. As this issue demonstrates, the way "relevant conduct" is parsed by the judge or even included in the PSR (presentence report) is very government friendly.

Posted by: Skeptical | Mar 18, 2014 3:38:38 AM

Steve,

As you are aware the facts here are quite sympathetic to a Supreme Court challenge, but framing the issue requires some nuance.

As I think you are aware, this is some natural disconnect between caselaw which finds the sentencing guidelines "law" for certain purposes - ex post facto situations, if I recall correctly - and yet merely advisory for purposes of the Sixth Amendment. This creates an irreconcilable conflict as to the true nature of the sentencing guidelines that has been left unaddressed. This would be how I would focus any cert petition.

The nuance comes in framing a solution to the problem. The Supreme Court won't go for a solution where the jury has to decide every enhancement. And I think it will be hard to find a principled distinction between acquitted conduct and uncharged conduct. The only solutions I see at first blush involve either:

a) blowing up the current guidelines entirely, by not permitting enhancements based on felonious conduct that could have been part of an indictment but either was not brought or for which there was an acquittal;

or

b) requiring the sentencing guidelines to put more emphasis on the statutory range itself, so that the difference between being acquitted of conduct and being convicted becomes itself relevant other than simply setting an outer boundary.

The more honest approach would be to attack the constitutionality of some of these statutory ranges themselves as grossly disproportionate. But unfortunately, that would be tilting at windmills given the current precedent and makeup of the Court.

Posted by: Justin | Mar 18, 2014 11:48:57 AM

Justin --

I'm not on your side, but it's a true pleasure to read something about law as opposed to persons, and to read something analytically adept.

To my way of thinking, both solutions (a) and (b) are more legislative in character than the Court would feel comfortable doing. I just doubt the defense can win this issue as long as the Court is willing to buy a real offense system of sentencing, and I don't see any great reason to believe that the majority is ready to depart from the compromise the Court reached in the remedial part of Booker.

Posted by: Bill Otis | Mar 18, 2014 2:34:57 PM

Professor Berman:

I appreciate your response to Mr. Otis, but I think part of the problem is the limits of what a jury's verdict says. A "not guilty" might indeed mean, as you say, that the jury "rejected" the idea that the Defendant did, in fact, commit the offense. But it might mean (and, in my admittedly limited experience, more often does mean) a host of things that are entirely consistent with using the Defendant's conduct: perhaps they thought him "probably" guilty, but not guilty beyond a reasonable doubt; perhaps they engaged in nullification, perhaps they disapproved of the police's tactics, or any number of a hundred things. We don't know why the jury in Ball's case found him not guilty, and I think that's key to the question of whether that conduct should be used.

Posted by: GP | Mar 18, 2014 4:28:08 PM

GP --

Correct. The only thing we know for sure from a not guilty verdict is that the 12 jurors were unwilling to say, unanimously, that they were convinced by the evidence admitted in court that the government proved every element of the charged offense beyond a reasonable doubt.

The OJ Simpson case is a perfect example. No normal person I have spoken to thinks Simpson didn't do it, and a civil jury found him responsible for both killings. The acquittal is a legal fact, and an important one, but it is not a fact about what happened outside the courtroom.

Posted by: Bill Otis | Mar 18, 2014 4:38:32 PM

Skeptical:
The Supreme Court just held in Rosemond v. United States:
"We hold that the Government makes its [aider and abettor] case by proving that the defendant actively participated in the underlying . . . crime with advance knowledge that a confederate would [to extend the case beyond 924(c) offenses read: do the criminal act] during the [primary]crime’s commission."
This suggests to me the Supreme Court does not buy into the Sentencing Commission's now advisory, definition of "relevant conduct." I am presently arguing in all of my cases that 1B1.3 is overbroad in light of Rosemond --that Rosemond--not 1B1.3 provides the permissible scope of "relevant conduct."

Posted by: ? | Mar 18, 2014 9:53:49 PM

Bill:
Since, "The acquittal is a legal fact, and an important one, but it is not a fact about what happened outside the courtroom."
Would you also agree the "The conviction is a legal fact, and an important one, but it is not a fact about what happened outside the courtroom."
If not, why not?

Posted by: ? | Mar 18, 2014 9:57:31 PM

actually skept I don't need to go to google. the united states of America's constitution says if your not charged; tried and either convicted of plead out to something IT DIDN'T HAPPEN. at least as far as that individual is concerned sorry but last time I looked no law trumps constitution no matter what those 9 retards on the USSC try and creatively interpet.

they lost me and what little scemplence of legality they had when they creatively interpreted

"no expost"

to suddenly after almost 200 years to be no "EXCEPT' fill in the blank.

sorry they can't legally do that.

and GP as for this!

"But it might mean (and, in my admittedly limited experience, more often does mean) a host of things that are entirely consistent with using the Defendant's conduct: perhaps they thought him "probably" guilty, but not guilty beyond a reasonable doubt; perhaps they engaged in nullification, perhaps they disapproved of the police's tactics, or any number of a hundred things."

there is a reason for this. our founders thought we have real citizens not a bunch of sheeple or retards.

that's why they gave 2 choices to a jury.

GUILTY

or

NOT GUILTY!

when added to the states burden to prove their case beyond a reasonable doubt.

if it's anything but GUILTY. That is prositive proof that the state did NOT prove their case. Therefore under our constitution they are now legally innocent of that charge and it is GONE!

Anyone now trying to use it to punish then is now not only a CRIMINAL in their own right but if they are an agent of the govt they are a traitor to their oath of office and subject to summary execution by any American who wants to do the job.

Posted by: rodsmith | Mar 19, 2014 2:18:28 AM

? --

Because an acquittal reflects a reasonable doubt about what the defendant did out of court, and a conviction reflects no reasonable doubt about what the defendant did out of court.

Was that supposed to be hard?

Posted by: Bill Otis | Mar 19, 2014 3:12:39 AM

? --

"This suggests to me the Supreme Court does not buy into the Sentencing Commission's now advisory, definition of "relevant conduct." I am presently arguing in all of my cases that 1B1.3 is overbroad in light of Rosemond --that Rosemond--not 1B1.3 provides the permissible scope of 'relevant conduct.'"

1. And how many times has that argument prevailed?

2. Do you argue that your clients should be sentenced based on the whole of their life and behavior? If not, fine, but that would make you the exception among defense lawyers. If so, why should the sentencing judge regard "all of their life and behavior" to mean "all of their life and behavior except the bad parts"?

Posted by: Bill Otis | Mar 19, 2014 3:19:08 AM

If you consider civil cases or any case with a preponderance standard, you regularly see defense verdicts returned by the fact finder. Now while I acknowledge that there are many material differences between civil cases, broadly defined, and contested federal criminal sentencing hearings which address acquitted conduct, you would expect to see at least a few examples of where the sentencing judge finds that the government, in addition to failing to prove the crime BRD, also failed to prove the acquitted conduct by a preponderance of the evidence. (Personally I know of only one example.) It seems that sentencing judges automatically find the government has proven the acquitted conduct by a preponderance in 99.99% of the cases. Acquitted conduct would be less of an issue if sentencing judges occasionally found that the government had failed to prove acquitted conduct by a preponderance.

Posted by: Fred | Mar 19, 2014 10:03:02 AM

Bill:
1. Rosemond was issued March 5, 2014. So, do your really think that measuring how many times "that argument has prevailed" in the last 14 days is a good measure of its merit?

2. "Relevant conduct" as used in 1B1.3 does not incorporate the whole of a client's life and behavior. I often argue that sentencing should be based on what my client actively participated in relation to the offense of conviction--not what a co-defendant did that my client didn't know about. To address your question, I struggle with the issue of whether meritocracy is a valid sentencing consideration in all cases. So, the answer is sometimes I do and sometimes I don't advocate that a client be judged for a particular offense based on all of their life and behavior including all the bad parts. For the most part I believe people are capable of change--even incapacitation theory (as evidenced by mandatory minimum sentencing regimes) recognizes that as prisoners get older they are less likely to engage in serious misconduct. The primary indicator that clients' have changed for the better is when they say to their lawyers, judges and prosecutors "I'm tired" meaning I'm tired of doing time. There is no magic age, they could be in their 20's, 30's, or 40's when the light comes on. Those defendants, in my experience, rarely recidivate.

Posted by: ? | Mar 19, 2014 10:21:19 AM

? --

1. Let me know if/when you win on that Rosemond argument. That is not sarcastic; I'd actually like to know. I suspect it will be a long day in December, but I will stand to be corrected, depending on your results.

2. Fair enough. Although "change" in the sense I was using that word means something different from "gets old and runs out of steam." As I was using it, it means, "changes his conscience and his way of looking at his obligations to society."

3. I believe you were the commenter who was quite unhappy that I used the phrase, "anonymous guttersnipe." We've now had an anonymous poster (he calls himself "Tom") who has called my wife a kapo, meaning a Jewish concentration camp prisoner who turned on other Jews and helped the Nazis. It seems to me that that fully justifies my use of the phrase "anonymous guttersnipe." Do you disagree? Or are family members of commenters fair game for anonymous anti-Semitic slurs?

Posted by: Bill Otis | Mar 19, 2014 11:49:39 AM

Bill:
Requiring defendant to change "his conscience and in way of looking at his obligations to society" skirts very close to "thought police" activities. I am satisfied with the person who stops committing offenses -- their hearts and minds are for another day.

The beauty and ugliness of the internet is the ability to opine anonymously. I am a defense lawyer, I got a thick skin, getting mad detracts from getting the job done. The way you fight the "Toms" of the world is to not let them deter you. Simply recognize when someone goes ad hominen it detracts from the force of their argument. I don't know, don't care, and believe it doesn't matter if either your or your wife are Jewish. I'll tell you I am not sure if "Kapo" is anti-Semitic because one person's "cooperating witness" is another person's "Snitch" or Norwegian person's "Quisling" or a French person's "collaborator." All of these terms seem to have in common the theme of helping/assisting/supporting those who are in power by someone who is not in power. Probably an "us versus them" dichotomy. As to your use of the term guttersnipe, I am unsure how one determines from internet postings how an anonymous blogger is a guttersnipe i.e., " a scruffy and badly behaved child who spends most of their time on the streets." I might be anonymous but I am not a child and I spend most of my time in my office or in court. I think we should all avoid ad hominem arguments and focus on the merits and demerits of the myriad sentencing issues our secular Republic faces on a daily basis.

Posted by: ? | Mar 19, 2014 4:22:18 PM

? --

1. I have no intention of "requiring" the inmate to change his way of thinking, although that is what rehabilitation -- generally regarded as highly desirable -- is virtually always thought to mean. But if he doesn't change it, that shows he has learned nothing and cares nothing about the harm he did in committing the crime. That in turn legitimately affects the determination whether and when he should be released.

If someone wants to belt me over the head with a tire iron to get my wallet, and thinks that's an OK way to behave -- and then CONTINUES to think that way notwithstanding his conviction and sentence -- then I'd have to out of my mind to want to see him back on the street all that soon, wouldn't I?

2. I agree that people should have a reasonably thick skin and be able to roll with the punches. But going after commenters' FAMILY MEMBERS is a new low, and to go after them by saying that they are kapos is especially vile, since a kapo is a coward and traitor to his own people who sells out the helpless for better treatment for himself. To aim that insult to a Jew is appalling.

If behavior like that does not get strongly condemned, by, for example, having commenters of all ideological stripes denounce the person doing it just as Micheal R. Levine did, then what's going to happen is that people who want to put up their thoughts here will just go elsewhere, to sites where that kind of stuff is not tolerated (Crime and Consequences is one such site, and there are many others). That will be a loss to the quality and diversity of this board. It doesn't have to happen, and it shouldn't happen.

But that's only part of the problem. A certain minimal level of decency is per se due anyone you're talking to. I would never have thought of addressing a defendant or his lawyer with anything like that, ever. It is not acceptable in normal, adult discourse.

I am not using the term guttersnipe in its literal sense -- if I were, it would be too good for "Tom." What I am saying is that people who employ Internet anonymity to be able to employ insults like that without accountability should be condemned, shunned and effectively banished.

There is no excuse for it, none.

Posted by: Bill Otis | Mar 19, 2014 5:41:09 PM

ouch bill. that was harsh but very very appropriate. I agree completely

Posted by: rodsmith | Mar 20, 2014 3:24:51 PM

rodsmith --

Thanks. I should add that you are one of only three people who condemned it, although the entire board certainly must know it's way below the line.

Posted by: Bill Otis | Mar 20, 2014 3:56:21 PM

Bill, Brown v. Board was actually in the initial draft of my comment. It's an apt example, and I take it you approve of the decision.

But, as you might have put it at the time, "the die was cast" in Plessy. And so a string of litigants had to make a “loser” argument against it many times before that argument could finally become a winner in 1954.

So of course anyone on the scene before Sweatt who derisively shouted "Bet me!" would have been on the right side of the wager; but they would have been on the wrong side of history. Which side would you have rather been on?

Posted by: Michael Drake | Mar 20, 2014 5:51:38 PM

Michael Drake --

It's all true. Culture and law can change after seven or eight or nine decades.

If I said anything leading you to believe that I don't know this obvious, but for any practical purpose utterly irrelevant, fact, I'm so, so sorry.

Meanwhile, do you approve or disapprove of disgusting insults being directed to my wife? Yes, I know you're not the board policeman. But you have opinions about many things, and I would like to know your opinion of that.

Posted by: Bill Otis | Mar 21, 2014 12:00:56 AM

You misunderstand the point. But anyway, no, I don't approve of even mild insults being directed at your wife. I hope that helps.

Posted by: Michael Drake | Mar 22, 2014 3:45:53 PM

Michael Drake --

If the point was that history is inevitably on the side of whatever liberals want right now, the point is wrong. See, e.g., Gregg (effectively reviving the death penalty after Furman); Payne v. Tennessee (overruling Booth and Gathers and permitting the use of victim impact statements even in capital cases).

As to your disapproval of insults being directed to my or anyone's family members: Thank you.

Posted by: Bill Otis | Mar 22, 2014 11:33:45 PM

No, the point was just to have you look at your wager through a lens that would help you see how irrelevant it is to those who've made a career choice to represent the underdog.

Posted by: Michael Drake | Mar 23, 2014 12:59:42 AM

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