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July 29, 2018

How should advocates for reduced prison populations respond to deadly actions by released violent offenders?

In response to recent posts about clemency here and about reducing prison populations here, commentator federalist has flagged two local stories of violent offenders released after relatively short periods of incarceration gong on to commit murder.  One story, out of Atlanta, and is discussed in this newspaper piece under the headlined "‘Visionary’ didn’t keep promises to help violent teenager."  Here is a snippet:

One day last August, Gwendolyn Sands stood before a Fulton County judge and promised to rehabilitate a teenage boy already well on his way to a life of violence.... Her organization, Visions Unlimited, would pair the boy with a “life coach” for “24/7 supervision,” Sands told the judge. Her staff would instruct the boy in life skills, career readiness and the perils of street gangs. They would hold “family support” meetings every month  — “and more often,” Sands said, “as necessary.”

Later, she would even agree to take the boy into her own home.  It seemed the only way to shelter him from the streets where he had stuck a pistol in a woman’s face and robbed her.

But Sands kept almost none of her promises to transform Jayden Myrick.  Now Myrick is charged with murder, accused of shooting 34-year-old Christian Broder during a robbery on July 8 outside Atlanta’s Capital City Club.  Broder, an Atlanta native who lived in Washington, D.C., died July 20.  He left behind a wife and an infant daughter.  And, at 17, Myrick faces life in prison — the very outcome the judge had hoped Sands would help prevent....

Fulton Superior Court Judge Doris Downs, who twice released Myrick into Sands’ custody, declined to comment.  Other court officials would not answer questions about why Downs or other judges trusted Visions Unlimited or whether they vetted Sands’ credentials.  In a statement, Chief Judge Robert McBurney deflected responsibility for monitoring the performance of such organizations.

Another story, out of San Francisco, is discussed in this CNN piece headlined "Officials still don't know why a white man allegedly stabbed a black woman to death in a subway station." Here is an excerpt:

Nia Wilson was standing on a Bay Area Rapid Transit station platform in Oakland, California, Sunday night when she was stabbed to death in an apparently unprovoked attack.

By Monday night, John Cowell, 27, had been arrested in connection to the stabbing, but days later, officials still haven't said what prompted the attack, which a police chief compared to a "prison yard assault."...

Cowell was convicted of second-degree robbery and assault with a deadly weapon in 2016, according to the criminal complaint.  He was paroled in May after being sentenced to two years in prison for second-degree robbery, according to California Department of Corrections and Rehabilitation....

Cowell's family released a statement extending its sympathy to Wilson's, and said Cowell had long been suffering from mental illness.  "He has been in & out of jail & has not had the proper treatment," the statement said.  He's been diagnosed with bipolar disorder and schizophrenia, the family said, and they had to get a restraining order at one point "for our own protection."  Cowell's been living on the streets since.

In one comment, federalist not unreasonably asks "How, Doug, do we prevent mistakes like Judge Downs'?".  I do not have a fully satisfying answer: judges are imperfect at gauging risk, and the only certain way to prevent any and all released offenders from ever committing any serious future crimes is to never release any of them in the first place.  I am drawn to using actuarial risk-assessments in our criminal justice system because such tools should help reduce mistakes in forecasts of future violent behavior, but there still will be mistakes (and violent consequences) even with the use of (inevitably imperfect) risk-assessment instruments. 

As an advocate of various modern criminal justice reforms, I am in this context eager to (a) lament that we do not have been juvenile and prison programming to better rehabilitate violent persons, and (b) note that modern mass incarceration is the result of many "mistakes" of over-incarceration.  But these statements provide cold comfort to anyone reasonably inclined to call the tragic deaths of Christian Broder and Nia Wilson entirely preventable if we had just "gotten tough" with Jayden Myrick and John Cowell.

Another move, of course, is to stress that modern sentencing reform efforts are or should be particularly focused on non-violent offenses and offenders.  But sensible folks arguing for dramatic reductions in our prison populations rightly say that violent offenders should not be excluded from efforts to reduce reliance on incarceration, and there is also recidivism data showing that some non-violent offenders will go on to commit subsequent violent offenses.

So, dear readers, is there a "good" answer to the question in the title of this post?

July 29, 2018 at 06:24 PM | Permalink


Here is a stem-winder I wrote on here a while back:

It's so funny---Bill Otis, because he states the obvious, that incarcerating bad guys makes society safer, is subject to calumny and BS nonsense from the FAMM chick. Whatever.

Here's the deal--we are a nation of 300 odd million people. In our midst, there are criminals. Now, in a perfect criminal justice system, each offender would get exactly the right sentence and none of this debate would be necessary. But what all you Otis-haters fail to understand is that the criminal justice system deals in bulk. And when you deal in bulk, you are going to have punishments that are overly harsh in individual cases (which is why I have advocated on this blog a more vigorous clemency system). You are also going to have overly lenient sentences. So what is a society to do? Naturally, there is going to be a ratchet that allocates the risk of error to guilty criminals, rather than innocent society. When you guys can deal intelligently with that issue, come talk to me.

The other trompe l'oeil of the let's be more lenient crowd is to point up silly overcriminalization. For example, ruining some 16 yo girl's life because she sent a sext to her bf is surpassing stupid (and evil) and, as Doug is wont to say, not indicative of a society committed to freedom. And that goes for a lot of supposed crimes. This now gives me an opportunity to call bullshit on a lot of the libs in here--you know what Citizens United was all about--criminal penalties for making a video about a presidential candidate---is that what you people think is ok, but you want to be nicer to people who peddle poison to kids? Guys, this is why I have contempt for liberals' views on crime.

Now for drugs--I get the idea--harsh drug laws incarcerate a lot of minorities blah blah blah. I grew up in NYC during Dinkins era--drug dealers terrorized neighborhoods. They were willing to commit violence to keep their turf etc. Now it's certainly possible that perhaps crack laws were too harsh or the Rockefeller laws were too harsh---but that doesn't mean there should be a wholesale reduction in penalties, nor does it mean that the criminal justice system, in reacting to public safety crisis, is to be pilloried because, golly gee, it didn't get things 100% perfect, and people like Weldon Angelos got maybe too much time.

And what we never ever ever hear from the smug "smart on crime" crowd is the fact that many many many sentences are far far too low for the evil committed. Not only does that re-victimize victims, but it results in more, and preventable, victims. One example will suffice--a black judge, Olu Stevens, in response to the victimization of a white family by two black armed adult home invader robbers, gave the perps probation. Clearly, on the scale of wrongness, that sentence is far more wrong than the sentence given to Weldon Angelos (any of you libs want to debate that one?)---so enough of these things happen, people complain to their legislatures, and guess what, the hands of idiot judges like Olu Stevens get tied. And then you libs have the temerity to blame bad guys like Otis. When you "smart on crime" folks get outraged about Olu Stevens, then maybe I'll entertain what you have to say.

And let's talk for a sec about "violating" burglars, muggers etc. for popping positive. That you people cannot understand that people who are on drugs and who have a violent criminal history aren't a good mix is beyond me--either it's willful blindness or just plum stupidity. But any idiot knows you don't want a crackhead mugger on the streets. Because guess how he's getting his money? Yep, by knocking over old ladies.

Posted by: federalist | Jul 29, 2018 6:34:36 PM

Define good... I think there is a honest answer, a wise answer, and that answer is that it is unwise to make public policy based upon outliers. It will never be the case that a society exists where all crime is eliminated except in a perfectly anarchist society. So we should not try. Does this mean accepting a certain amount of crime as inevitable? Yes.

To me it is instructive to consider how we deal with auto accidents. During my youth I lost two close friends because they died in separate auto accidents. More than 2000 teenagers die each year in auto accidents. Do we ban cars? No. Do we stop people from driving? No. So why should we worry so much about a few recidivist criminals?

I've never understood this mentality that CRIME is so much different. It's such a SCARY word crime. MURDER. How TERRIBLE. Yet ACCIDENT is such a nice word, the word we don't pay much attention too, the word we don't do much about.

Sorry but I can't tell the difference in outcome between a person who dies to a murder and a person who dies in an auto accident. They are both dead. So we should consider them equally but we don't. Life is strange.

Posted by: Daniel | Jul 29, 2018 6:43:34 PM

To Daniel's post, wow.

Daniel, you take a trite truism "dead is dead" and draw exactly the wrong conclusions. Since we are mortal beings, there are a lot of things that can kill us--including car wrecks, plane crashes, sports etc. But we, as a society, spend huge sums of money to make things safer. Take plane crashes--the NTSB/FAA have a ruthless focus on airline safety.

As for death is death, well, yeah, but where murders happen in great frequency, it tends to show a neighborhood that's in bad shape. Daniel, you care to live in one of those areas?

Posted by: federalist | Jul 29, 2018 6:57:31 PM

Always grateful for your engagement, federalist, and I agree that "the criminal justice system deals in bulk." But I do think, generally speaking, in order to live in a truly free society we should be (and typically are) inclined to tilt the system toward the individual and away from "the collective." Indeed, if we really believed the "criminal" should bear the risk of error, our standard of guilt should be probable cause, not BRD, and a whole lot of our pro-defendant criminal justice rules would be hard to justify.

That said, I share your concern about hypocrisy here, especially when folks on the left express concern about mens rea reform or assail the clemency given to the Hammonds. But I still find it notable that you say only that Weldon Angelos "maybe" got too much time when he got 55 years in prison for selling weed. Why the doubt that this was wrong ... unless you simply think no prison sentence is ever certainly too long. And that attitude --- prison sentences can obviously be too short but are never clearly too long --- is a path toward an even larger and more costly and ineffective criminal justice system.

On this front, I would like to hear more about why you think giving probation to armed robbers (regardless of their skin color) is obviously "far more wrong" than 55 years in federal prison for selling weed. Notably, Texas has a history of giving probation to murderers, but I do not recall your complaints about that wrongness. https://dallasnews.com/news/investigations/2007/11/11/texas-killers-walk-on-misdemeanor-murders_ Is there something in particular about a black judge sentencing black defendants to probation that you think is a unique kind of wrong? Or is there something else going on here --- I recall your being somewhat supportive of Brock Turner's short sentence --- as I am genuinely eager to hear more about your sentencing wrongness metric. Is it based just on your own retributivist views or are other factors in the mix?

Posted by: Doug B | Jul 29, 2018 8:49:14 PM

Prof. Berman. Did you take a course in Critical Thinking, either in high school or in college?

I would like to make it a pre-law course requirement. One of its several components is the mitigation of cognitive biases. A cognitive bias in a legal authority violates the Fifth Amendment procedural due process right.

Would you like to comment on your post from that perspective?

Posted by: David Behar | Jul 29, 2018 9:20:03 PM

With respect to Texas' light sentencing of murders, I would not support light sentences for the intentional killing of another human being absent truly extraordinary circumstances that occur once in a million.

As for Angelos--he wasn't just dealing weed--he was dealing weed while armed.

As for Olu Stevens, recall that the crime was armed home invasion which terrorized a three year old boy. Then, on top of that, Judge Stevens berated the victims. So this is more than just a black judge sentencing black defendants. Note: I will never ever ever back off my assessment of a situation as a result of this cheap form of attempted bullying. Giving probation to criminals brazen enough to walk into someone's home and point a gun at the residents in order to rob them is a paradigmatic example of the sort of weak on crime nonsense that led to high rates of violent crime.

As for Brock Turner---I would have supported more time, but an ability to get off the registry after some period of time. I was mainly responding to the idea that the sentence was absurdly lenient--yes, but the lifetime SO registry is a nasty penalty.

Your BRD/Preponderance argument really doesn't obtain. There is a huge moral difference between the possibility of punishing the innocent at all and arguably over punishing the guilty. Guilty criminals have put themselves in the spot they are in. Also Doug, I think you have pooh-poohed my desires to see pardons routinely granted after years of law-abiding conduct, my criticism of overzealous prosecutions and a strong clemency system where sentences, after years of incarceration appear to no long serve any penological purpose.

But what fascinates me--your so-called commitment to freedom somehow fails to obtain when it comes to the idea that people should be allowed to be prosecuted for publishing a book. What was at issue in Citizens United was a CRIMINAL STATUTE that would have sent real people to jail for the "crime" of political speech. And I don't recall libs complaining when the Holder Justice Dept pulled guns on Gibson Guitar for what was at best a regulatory violation NOT COMMITTED BY THE EMPLOYEES.

As for "wrong"--I will say this--people who use guns in the commission of crimes against the person need to serve long stretches of time. If they are young juveniles, perhaps deeply intense supervision will be ok in some cases. but, those cases should be rare.

Posted by: federalist | Jul 29, 2018 9:29:07 PM

"... days later, officials still haven't said what prompted the attack,..."

10% of the murders around the world are committed by paranoid schizophrenics. These include almost all rampage killings, and mass shootings. 80,000 murders around the world are 100% preventable, except for you lawyers.

You lawyers took their care away from psychiatrists. It is part of the disorder to deny having any abnormality. They are sincerely puzzled by the urgings of their families and of their doctors.

For the past 40 years, they cannot be forced into treatment until they have done something physically dangerous. Now, they have to go through a trial, requiring the hiring of three lawyers. These know shit about anything. Yet, they get to decide who gets care.

You lawyers are 100% to blame for these murders. You lawyers are 100% to blame for these attacks for no reason by your clients, the paranoid schizophrenics.

Posted by: David Behar | Jul 29, 2018 11:27:37 PM

David: I think everyone is subject cognitive biases, and that makes all human decision-making fraught with challenges.


1. Your comments still do not fully clarify your claim that a probation sentence given by Judge Stevens was "far more wrong" than the 55 years given to Angelos. I get you are troubled by how Judge Stevens treated the victim, and I am not defending either the sentence or Judge Stevens' behavior (and I am curious about any recidivism by the defendants in that case). I ultimately come away with a sense that your wrongness claim flows from a fundamental belief we should err on the side of over-sentencing in every case (if sure of guilt), even extreme over-sentencing as in the case of Angelos, in order to avoid any risk of under-sentencing in any case. That is a defensible position, but one that does not seem to me fully consistent with a commitment to a free society with limited government (and I am not sure it would maximize public safety if it ends up breeding disrespect for the law and strains/mis-allocates limited crime control resources).

2. If we truly are committed to over-sentencing in every case to avoid any risk of under-sentencing in any case, I think we would jettison BRD. After all, if we think guilt is more likely than not, we risk the worst form of under-sentencing by still allowing an acquittal and the walking free of a person we think is guilty. And letting people we think guilty more likely than not escape even a conviction sure sound like "weak on crime nonsense that [could] led to high rates of violent crime."

3. I respect and appreciate your stated affinity for pardons and clemency and your criticisms of overzealous prosecutions. But I see a commitment to err on the side of over-sentencing in every case as largely accounting for why we see so few clemencies and so many overzealous prosecutions. The federal prosecutor in the Angelos case blithely threatened him with over 100 years of incarceration for dealing weed (with a gun in his car and another in his home). That is only possible in a system that promotes and prioritizes erring toward over-sentencing in every case. Despite Congress passing a law based on the premise that federal crack defendants were badly over-sentenced for decades, Prez Obama granted clemency to only a small percentage of them. Etc.

4. I do not believe I have ever defended a criminal prosecution for publishing a book or the criminal statute in Citizens United. You slip into Behar mode when you keep bringing up CU, and my support for mens rea reform is based in a consistent belief that nobody should be subject to criminal prosecution for mere regulatory mistakes. And, again, these modern realities merge: when you encourage governments and their agents to err on the side of over-sentencing in every case, lots and lots of folks beyond just the criminals using guns are going to get caught up in the severity action. Cheering on the huge government hammer when it pounds and pounds and pounds as in the Angelos case makes it so much harder to keep that massive hammer from hitting more than just those nails that you think deserve to be pounded.

5. I did this post because you usefully reminded me that I should not just leave to the comments our discussion of leniency sentencing mistakes that can have real consequences. But I sense that, while you are eager to assail liberals for not facing up to the risks/consequences of undue sentencing leniency, you are yourself eager to ignore the risks/consequences of undue sentencing severity.

Posted by: Doug B | Jul 30, 2018 12:00:36 AM

I assailed liberals (and you) over CU because I ask "Where's the outrage." The government lawyer arguing the case said that the government could ban a book--which means it could back up that ban with criminal penalties. Where were you and all the other libs? It's difficult to take a professed commitment to freedom when a fundamental freedom is so cavalierly treated.

I don't pick and parse sentences--my point is that the CJ system deals in bulk, and over punishment is going to happen when there are lots of lenient sentences handed out.

As for Stevens, his actions are indefensible. Re-victimizing a family about such a harrowing experience is truly awful, and the sentence seems to reflect a pooh-poohing of the suffering of the victim. So yeah, it's evil.

While you're on the subject of Obama, it would be interesting to compare and contrast his clemency for the Puerto Rican terrorist and his denial of Peltiier's claim. Could it be that he didn't want to tick off the FBI?

Posted by: federalist | Jul 30, 2018 7:44:48 AM

“To the extent a discretionary sentencing body will inevitably make mistakes, errors of mercy are preferable to errors of severity. Arbitrary and capricious harshness is worse than arbitrary and capricious compassion, just as the conviction of the innocent is worse than the acquittal of the guilty.” Josh Bowers, Mandatory Life and the Death of Equitable Discretion, in LIFE WITHOUT PAROLE:AMERICA’S NEW DEATH PENALTY? (Charles J. Ogletree Jr. & Austin Sarat eds., 2012) 31.

Posted by: APD | Jul 30, 2018 7:46:38 AM

IMO the right response is to make currently illegal drugs legal while increasing sentences for any type of violent crime. That will reduce incarceration and also reduce chances for released violent offenders to commit new violent crimes..

Posted by: William Jockusch | Jul 30, 2018 8:38:21 AM

federalist, I am always going to be more outraged over the lack of mens rea reform and severe drug mandatory minimums and dozens of other criminal justice realities that are much more consequential than a govt lawyer saying (wrongly) that the government could ban a book. Moreover, you continue to want to ignore how advocacy (and just acceptance) of over-punishment feeds a government beast that leads to this kind of government hubris putting the interest of "the collective" over the fundamental freedoms of the individual.

On the clemency front, I am 100% certain that politics played a huge role in how Prez Obama saw and used his powers. Of course, same has been true for just about everyone else in the Oval Office. That said, were you at least a bit gratified to see Obama move at least a bit closer to the "strong clemency system" you favor and are you hopeful Prez Trump goes even further than Obama did on this front?

Posted by: Doug B | Jul 30, 2018 9:26:41 AM

And I go further than Federalist and believe that plenty of crime should simply revoke the offender's right to live. I fully agree with him that the allocation of risk should tip against the offender I just disagree on how much of a safety valve there should be.

The one point that gives me pause with our current system is the cost, it is enormously costly and perhaps we could get nearly the same result by focusing more sharply on a subset of the criminal population. On that point I'm just not sure.

As for drugs ruining neighborhoods, I do have to wonder how much of that is the fact that they are illegal. The dealers can't go to law enforcement when they are victimized etc. I have seen plenty of investigation saying that the crack crime wave of the 80s and early 90s was fueled in large part by new criminal networks settling out, that it was a new market and the violence was a result of people going after bigger shares of that market. Unlike so many I have zero interest in saving people from their own actions, if an addict overdoses I see that as a societal good, I wish for it to be as cheap and easy as possible for users to off themselves.

Posted by: Soronel Haetir | Jul 30, 2018 11:54:29 AM


"But we, as a society, spend huge sums of money to make things safer. Take plane crashes--the NTSB/FAA have a ruthless focus on airline safety."

Correct but the analogy is inapposite and I think very revealing because planes are not human beings. We have made planes safer precisely by eliminating the human equation from the cockpit. Once there were three people in the cockpit, now there are only two. Once the pilot flew the entire time, now the autopilot does most of the work. So how, exactly, are we to eliminate the human equation from the criminal justice system? As far as I see it there are only two possible methods. (a) we can eliminate the human equation via some type of automated judging...this is the method advocated by people like David Behar. The other method is to kill them all and let God sort them out, the traditional method advocated by federalist, Bill Otis, and Ted Cruz.

I think the effort in either case isn't worth the candle. Society would be better off if we just became more crime indifferent.

Posted by: Daniel | Jul 30, 2018 12:01:45 PM

Cognitive biases likely originate in the working of the brain, since they are universal, as you stated. A course in critical thinking would rebut any argument against reform and the against the slowing of decarceration by labelling these tragedies as Exceptions, subject to Exception Fallacy.

You even have a legal maxim that means the same as the Exception Fallacy, hard cases make bad law.

While we are on opposite sides of the decarceration debate, I oppose using sensational but exceptional cases in our argument. Hard research work to guide policy will add more value.

The victims would testify in legislative committees. The lawmakers care about only one thing, votes. The brain based biases of their voters would force them to make bad policies.

Posted by: David Behar | Jul 30, 2018 1:09:35 PM

Daniel. I have often argued sentencing is about the person, since its only value is incapacitation of future crime.

I too supported a lively death penalty. I was thinking of 10,000 a year. Now, I got walloped with 60,000 opioid overdose deaths a year. Common law rime is about to disappear, almost entirely.

Internet and identity crimes will persist.

Posted by: David Behar | Jul 30, 2018 1:12:26 PM

That legal maxim was used by OW Holmes, a Harvard Law grad, who, to my knowledge, has never been wrong.

Posted by: David Behar | Jul 30, 2018 1:50:00 PM

The answer, it seems to me, is pretty straightforward: if we didn’t have some instances of those who were treated leniently commiting horrible crimes, our ststem is too harsh. Not sure anybody should be apologizing for these instances. We should obviously use the bad outcomes as learning opportunities insofar as the particular facts bear on exercising discretion going forward, but they say nothing about systematic under-incarceration. The wrong use of these incidents can have distructive policy implications. To take a historical example, did the Willy Horton incident prove that the Massachussets furlough program was misguided? Of course not. One problem with our system is that the average voter is not very strong on logical reasoning, and we allow politics to play too big a role in criminal justice outcomes. That is very strongly suggested by the experiences of European countries where decisionmaking is more insulated from politics, and we see both less draconian punishments and kess crime.

Posted by: Mark | Jul 30, 2018 11:30:18 PM

Doug---the issue wasn't the SG saying the government could ban a book--it's that a bare 5-4 majority held that CU had the right to engage in political speech without the fear of criminal prosecution.

None of the libs in her, nor you blasted Hillary or Obama for their craven support of the criminalization of political speech.

Mark, the Willie Horton incident did prove that the furlough system was misguided. Were weekend passes for violent criminals worth a rape and a victimized husband? I guess in your mind.

Daniel, the reason we make planes safer is to protect human lives. And as for fear, when you're walking around in a bad Chicago neighborhood at night, come talk to me.

With respect to Obama and clemency--I was not pleased---first, it seemed he crowded out pardons for those who have lived law-abiding lives, and he lied to the public about non-violent. That said, I was generally supportive of many specific instances of hs mercy. And I hope that each and every one of his clemency recipients lives up to the faith Obama placed in them (one, to my knowledge has not).

Doug, you ignore democracy--what did you think was going to be the democratic response to lenient sentencing? Take away discretion. You obviously have a disdain for democracy. And democracy is one of the core tenets of freedom.

Posted by: federalist | Jul 31, 2018 8:19:09 AM

federalist, I am a big fan of democracy, but we would not need the Bill of Rights if democracy alone could safeguard freedom. And you seem a bit vapid saying I ignore/disdain democracy after continuing your rant that folks should be more troubled by the democratically enacted law at issue in CU. Notably, supporters of that law think they are enhancing democracy. When you start criticizing GOP limits on the franchise, I might start to believe you sincerely care about democracy.

There is, of course, a long history in the US of democratic responses to problems that go too far in restricting liberty. Heck, we even once enacted a freedom-restricting amendment in the form of Prohibition. Advocating in alll arenas to pare back laws that one thinks goes too far in restricting freedom is not showing disdain for democracy, it is discharging the collective responsibility we all have to try to secure a more perfect union.

Posted by: Doug B | Jul 31, 2018 8:49:51 AM

Doug. The Bill of Rights of the Soviet Union was far more detailed, and broader than ours. Yet, no one had freedom. The source of our freedom is the separation of powers.

I also believe that one cannot make an off color joke at work because the employer will have a ruinous lawsuit from crybaby, overly entitled minorities, and from the majority gender, solicited by employment lawyers.

Your profession, in the US, runs a more oppressive surveillance state than the KGB. In Cuba, all political speech is reported to the secret police by old ladies on each street. I see no difference between that Cuban surveillance state and political correctness at your school.

Why do employers fire highly productive white males immediately on allegation of sexual misconduct from 20 years ago, by actresses, who are just fancy prostitutes? Employment litigation.

Your profession must be crushed if we are to regain our freedom.

Posted by: David Behar | Jul 31, 2018 9:48:20 AM

respect for democracy means that the people get to respond to under punishment by imposing MMs erc.

the thing you fail to realize is that over sentencing and under sentencing (if one could ever define the terms) are inevitably going to happen in a country of 300 million.

Society has a right to enact laws that reduce the risk of under sentencing. Seems to me that society is just so committed to freedom---it wants to reduce the loss of freedom like that suffered at the hands of Myrick.

And you can try to wriggle out of the CU box i have you in. The bottom line is that the Democrat party, a party you generally support, supports putting people in jail for certain kinds of political speech. In fact, Barack Obama scolded the Supreme Court for ruling the way it did. If you were so committed to freedom, you would have been more outraged at the attempt to take away political speech rights by employing the criminal law. And the same goes for all the libs in here.

Posted by: federalist | Aug 1, 2018 8:06:10 AM

federalist, I have never asserted that voters and their representatives lack the right "to enact laws that reduce the risk of under sentencing," and I do not think you would claim that they lack the right to enact laws that reduce the risk of over sentencing. Rather, the enduring concern, and the one that animates much of the Bill of Rights, is that democracy/majoritarianism will look to dramatically limit the freedom of the individual --- particularly the "deviant" or "criminal" or "politically incorrect" individual --- for the sake of the collective.

You seem to recognize this concern with respect to political speech with all your quirky CU commentary, but seem not to think it much of worry when it comes to sentencing laws and practices. I worry about it in all settings, and I particularly focus upon it when actual criminal charges are being brought and persons are being imprisoned (especially if for a long time). Since I did not see that actually happening on the basis for political speech, I did not focus on it as much in the CU setting as in Weldon Angelos' case. And I continue to struggle with idea federal prosecutors were somehow committed to freedom when threatening Weldon with 105 years of mandatory imprisonment for dealing weed while having a gun nearby.

Posted by: Doug B. | Aug 1, 2018 1:37:31 PM

Why am I not surprised?

The faculty lounge wouldn't like you ragging on Obama, Democrats as a whole and justices of the Supreme Court cheerleading the criminalization of political speech and demonizing those who say no.

And nope, you still can't defend Olu Stevens. Or show why his actions are not as bad as sentencing Angelos.

Posted by: federalist | Aug 1, 2018 8:58:24 PM

Not surprised by what, federalist, that a federal prosecutor threatening 105 years in prison for low-level marijuana sales concerns me more than a non-existent and never threatened criminal prosecution? You are clowning yourself, especially since it was GWB who signed this legislation into law and so should merit your enmity if you were not such a partisan. Maybe you want to shift back to your ridiculous claim that Trump is more moral than Obama while blaming Obama for tricking Bush into signing BCRA.

Meanwhile, the issue here is not whether Olu Stevens is defensible; it is whether his actions or the Angelos laws/prosecution is a greater threat to freedom. If other values are more important to you than freedom --- e.g., vindicating victims or preventing access to marijuana --- the behavior of Stevens could trouble one more than the feds being able to imprison a low-level offender for life. But if freedom is a preeminent concern, the government's power to --- as use of their power to --- cage citizens for life for low-level offenses should be an enduring concern.

Posted by: Doug B. | Aug 1, 2018 11:31:36 PM

First, I don't know that peddling illegal drugs while armed with a firearm is, um, low-level. And it is not surprising that you don't want to examine the particulars of Olu Stevens' actions.

I get that your sensibilities are offended by locking up gun-toting drug deals for very long stretches. And that's a debate we can have. But I have to laugh at your CU defenses--

(1) The issue under the CU case wasn't the prosecution of people, but the in terrorem effect of the law. It was a real impingement on freedom--the freedom of, unlike Angelos, completely innocent people. Barack Obama demagogued the issue and led the charge to attempt to deligitimise the freedom-loving decision. Bush did nothing of the sort, and yes, he shouldn't have signed BCRA, but Bush didn't lead the charge to enshrine in law the ability to criminally punish people for political speech. In China, people generally don't insult Xi Jinping, but there are reasons for that, namely jackboots who will lock you up. Obama wanted the same thing for those who wanted to make a film about Hillary.

(2) As for Obama's morality--yeah, and why did Lynch have a job after meeting with Clinton? And he presided over an Administration that put its thumb on the presidential campaign.

Posted by: federalist | Aug 2, 2018 9:07:22 PM

This entire matter is very sad. Judge Downs is one of the finest Judges I have ever known. When a social service agency steps up and agrees to monitor a 14 year old offender 24/7 most caring Judges would try to give the young man a chance. Now he has killed a person and hurt every person who comes through the Court system who would benefit from a second chance. Thanks to this Defendant other deserving offenders will not get a second chance. He should get the maximum penalty at this point!

Posted by: Penny Furr | Aug 19, 2018 10:39:02 PM

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