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December 1, 2007

A profile of Judge Gertner's sentencing courage

Boston Globe columnist Derrick Jackson has this new column entitled "A judge asks the tough questions" discussing Judge Nancy Gertner's decision to give a sentencing break to a defendant who pled guilty to selling small amounts of crack cocaine (basics here).  Here is how it starts:

US District Judge Nancy Gertner joked that she worried about a headline that could have read, "Limousine liberal lets crack dealer off." This was for setting free 37-year-old Myles Haynes last week after 13 months in jail for selling a small amount of crack cocaine in a Boston housing project.

Under federal sentencing guidelines, Gertner could have continued his sentence for another two or so years.  She decided that, with Haynes having children, not being a chronic offender, and having a reasonable enough track record of trying to serve in the military and find gainful employment, it was more important to give him a chance to be a contributing member of his family and society.  Gertner told Haynes from the bench, "When I see your son, I think that public safety requires that you be with your son so that he doesn't follow in your footsteps."

Public sanity requires following in Gertner's footsteps.

December 1, 2007 at 10:26 AM | Permalink


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A glimmer of hope then, or an oasis of common sense. Whatever next.

Posted by: peter | Dec 1, 2007 5:27:35 PM

The whole point of Article III lifetime tenure for federal judges is so they don't have to worry about asinine, misleading, moronic, simplistic, and erroneous headlines such as the example given half-jokingly by Judge Gertner.

I believe lifetime tenure for judges (at lesat those hearing criminal cases) should be, and implicitly IS, a constitutional right. Nobody should have to have their life and liberty determined by a judge who is worried about being called "soft on crime" come his next election.

The right to an article III judge is very clear in federal courts, so much so that Magistrate judges (who are not even elected, merely appointed) are not allowed to preside over felony trials (though they can preside over misdemeanors but ONLY if the defendant consents). I believe the right to a fair trial for criminal defendants includes the right to a judge with lifetime tenure and irreducable pay. Certainly more tenuous arguments have become the law of the land through SCOTUS dictate.

Here in Texas, where all state judges are elected, it's abundantly clear that judges will not rule in favor of the defense on any dispositive motion. I've had judges flat out tell me "I'll be destroyed in the next election if I grant that motion to suppress." Every opponent calls the incumbent "soft on crime" and cites examples of the incumbent judge's rulings in favor of a defendant (who did a horrible crime, blah blah blah). Year after year, this cycle continues, and we eventually end up not only with trial judges who are all former prosecutors (seriously, every single trial judge in Harris County, Texas, the Death Penalty capital of the world, is a former prosecutor and was "promoted" to the bench straight from the DA's office), but we end up with appellate judges like Sharon Keller, who rules in favor of the state 100% of the time. I challenge anyone here to find ONE case where Sharon Keller (presiding judge of the Texas Court of Criminal Appeals ("CCA")) sided with a non-cop defendant and against the state. The CCA itself rules in favor of the state about 90% of the time, but in the 10% of cases where it rules in favor of the defendant, Keller will vehemently dissent. Keller will, however, rule in favor of the occasional defendant who is a police officer. This happens when a cop is accused of perjury for falsifying a police report or for destroying evidence. Only then will Sharon Keller rule in favor of a defendant.

This is what happens when judges don't have lifetime appointments, removable only by impeachment. I think it is vital that we have a constitutional right to such a judge. Having a politician, worried about being called soft-on-crime at the next election presiding over a case that could mean life in prison or the death penalty is a blatant violation of due process and the right to a fair and impartial trial. How can it be impartial when the judge has a vested interest in ruling against the defendant? It can't.

Posted by: bruce | Dec 1, 2007 8:23:37 PM


Thank you for your post. It is, in its way, more eloquent than I could hope to be.

To start with the more minor point: There are those of us who believe that judges are not overlords, but instead are public servants who, like other public servants, should be accountable to the people who pay their salaries and have to live by the judgments they reach. Because of the nature of the judicial function, and in particular the need to safeguard independence in the judiciary to a greater degree than is true in other areas of public service, the exact nature and scope of judicial accountability is a complicated question. Still, if there be a federal Constitutional right to a state judge with lifetime tenure, I haven't heard of it. Could you point out a case, any case at all, holding that such a right exists?

The more noteworthy item in your post was somewhat tangential to this point, however. It lay in this sentence: "Every opponent calls the incumbent 'soft on crime' and cites examples of the incumbent judge's rulings in favor of a defendant (who did a horrible crime, blah blah blah)."

I just love the "blah, blah, blah." Often those on the defense side say (at least for public consumption) that some of these death-eligible crimes are deplorable or even ghastly -- but that the defendant still deserves a vigorous defense for reasons A, B and C.

Every now and again, however, the mask slips. Then we get a glimpse of what the real thinking is. Hence the significance of the "...defendant who did a horrible crime, blah, blah, blah."

I have seldom seen the dismissive and indulgent attitude toward crime more vividly expressed.

Maybe "blah, blah, blah" is what the lawyer for John Couey was thinking. Do you remember John Couey? Probably not. He's another guy who went down the memory hole. But I'll give you a clue, blah, blah, blah and all.

John Couey was the oft-convicted criminal who, given numerous chances to get back out on the street, finally cashed in by abducting, raping and killing (by burying alive, in a trash bag) a little girl name Jessica Lunsford. A heartless (and no doubt fascistic) prosecutor had the temerity to seek the death penalty for Mr. Couey, and a jury of his peers.....uh, make that a jury of bloodlusting monsters....obliged.

How could they??!! How uncivilized!! The EU would not approve, not a bit. Because, after all, it was just more overblown prosecution blather about the defendant's committing a horrible crime, "blah, blah, blah."

Posted by: Bill Otis | Dec 1, 2007 10:24:55 PM

Bill, if you read that much into an aside comment on a blog posting, you’re delusional. In other words, you’re delusional. If you think that those of us who support the rights of criminal defendants do so because we have a “dismissive and indulgent attitude toward crime,” then, frankly, you’re an idiot. Sadly, in my experience with AUSAs, you’re not alone. Fortunately, most AUSAs aren’t like you.

I’ve had a loved one raped and almost murdered. I’ve had guns pulled on me. Twice. Someone tried to car jack my then girlfriend with a gun. But no doubt I also have an “indulgent and dismissive” attitude toward crime.

I’m sure you go to bed at night “knowing” you’ve fought the good fight and you can pat yourself on the back. After all, the defense bar, your opposition, is just full of people who pretend to be doing something good but really harbor this horrible, immoral indifference to the victims of crime. How I wish I had as much moral courage as you.

Posted by: | Dec 2, 2007 12:50:41 AM

No case has held that there is a constitutional right, on the state level, for criminal defendants (at least those facing felony charges) to have a lifetime tenured judge. My point is: (a) THERE SHOULD BE such a right, and (b) a strong case for such a right could be made on a textual basis, but it would take a whole law review article to set it out properly, not a blog post.

Modern society cannot understand, handle, or accept middle grounds. If you're supportive of the rights of criminal defendants (or even convicted inmates) then you are clearly soft on and dismissive of crime. No middle ground. And the media takes full advantage of this, knowing that the average person is a total fucking moron (which by definition means 50% of people are even dumber).

Constitutional rights for the accused are, and must be, entirely separate from what the accused is alleged to have done. The 4th Amendment applies to a guy counterfeiting 100 pennies a day in his basement just as much as it applies to a guy who has kidnapped 100 babies, raped them until they bled to death, chopped them up into little baby-bits, masturbated on the bloody baby-bits, and then stir fried the bloody baby bits and ate them while downloading kiddie porn. Sure, the latter deserves a more severe sentence, but they both deserve the same rights.

The constitutional rights a criminal deserves are NOT inversely proportional to the gravity of the crime. Unfortunately, most people disagree.

Fortunately we do not live in a democracy. We don't decide who gets what rights by national online vote at plebiscite.gov ... althought with opinion polls being used by our elected representatives to make every decision, we have become a de facto plebiscite.

Bill, do you really believe an illegal search in violation of my 4th amendment rights should be ignored because I committed a really bad, ickly crime?

I'm more than willing to let Mr. Baby-Killer-Chopper-Eater go free if the evidence against him was taken in violation of his constitutional rights. Are you? Or should the gravity of the crime affect the constitutional analysis in deciding a motion to suppress? I gather from your post that you think it should. I could not disagree more.

On a tangengial note, I most certainly AM dismissive of most crime, because most crimes nowadays (other than the basic English common law crimes which, while statutory, still exist today) are malum prohibitum garbage. It's illegal to possess leaves and powders and to deposit over $10,000 without filling out a currency transaction report. Those are not real crimes. To the extent they're prosecuted, I'm very dismissive of them, and if I were on the jury I'd vote to acquit and sleep well that night having done the right thing via jury nullification.

Posted by: bruce | Dec 2, 2007 4:54:42 AM

Oh, for what it's worth, if anyone is interested, many of my thoughts, notions, ideas, and rants about, among other things, the criminal justice system (particularly related to my experience as a lawyer) can be found on my little blog. I don't update it as frequently as I would like, but I do respond to all worthwhile comments.

Posted by: bruce | Dec 2, 2007 5:27:20 AM

Well, guys, the two posts immediately following the one I put up at at about 10:30 last night have any number of items worth responding to, but this one just jumped out at me:

Post #1 (from a person who doesn't give his name): "Bill, if you read that much into an aside comment on a blog posting, you’re delusional. In other words, you’re delusional. If you think that those of us who support the rights of criminal defendants do so because we have a 'dismissive and indulgent attitude toward crime,' then, frankly, you’re an idiot."

Post #2 (from bruce, and following Post #1 by four hours): "On a tangengial note, I most certainly AM dismissive of most crime..."


Posted by: Bill Otis | Dec 2, 2007 6:16:11 AM

Bill: When you just quoted me, why didn't you complete the rest of my sentence, i.e. the part after the ellipsis. Taking people out of context is a worse crime than 40% of the federal offenses listed Title 18, U.S.C.

It's like if I said "I like Stalin about as much as I like having my ass raped with a toilet plunger." And you come back and quote me as saying "Bruce says 'I like Stalin...."

That's just wrong. If you're going to comment on what I say, comment on my statements in their entirety.

Posted by: bruce | Dec 2, 2007 7:27:17 AM


Thank you for your response, in which you say what you think without any PR spin. I just spent about 35 minutes writing a reply, but then pushed the wrong computer button, and it went poof.

I intend to say more, but for now, I just want to note that, while you speak of drug and regulatroy crime, the only episode I discussed in taking on your "...horrible crime, blah, blah, blah" remark was the Jessica Lunsford case, which by no means can be considered mere malum prohibitum. But you walked past that case, apparently content to leave the "blah, blah, blah" comment as it stands. It is your right to decline to discuss the Lunsford case after it has been put on the table, but exercising that right tends to undercut the notion, promoted by another poster, that your "blah, blah, blah" remark was a mere aside.

I hope to be back to you later to address some of your direct questions to me.

Again, I appreciate your candor.


Posted by: Bill Otis | Dec 2, 2007 7:34:39 AM


I just now saw your post at put up at 7:27, which you summarize by saying, "If you're going to comment on what I say, comment on my statements in their entirety."

That I cannot do, and no one here does such a thing or even tries to.

It is of course fair enough for you to ask that readers be alerted to the context of the remark I am discussing, and I did that, first by referring to the time and authorship of your post so that people could find and read the whole thing for themselves; and second, and more specifically, by using an elipsis (the three little dots) to indicate precisely that I was NOT quoting or purporting to quote the entire sentence to which you refer. That is a standard journalistic device, not a trick.


Posted by: Bill Otis | Dec 2, 2007 7:59:04 AM

Bill: I don't mind if you shorten my statement for purposes of efficiency, but don't take it out of context (like the Stalin example I gave earlier). The part of my statement AFTER the ellipses in your quote is what mattered.

Whatever John Couey did to sweet, cute blond haired, blue eyed Jessica (no idea who she is, but if she were black, it wouldn't have made the news and you wouldn't known about her), his constitutional rights should not diminished. If a defendant's constitutional rights are a function of the severity of the crime they are alleged to have committed, then the WORSE the crime, the MORE rights the defendant should have. Otherwise we have mob rule and mob victory.

I strive for bluntness, because all debate nowadays is based on false dichotomies. For example, the public debate is: "Either we force sex offenders to live 1000 yards away from every child and ever place where there is likely to be a child, or some children are going to be molested, raped, and/or killed by released sex offenders." I don't buy that, but for the sake of the argument, my position is: it is worth a few kids being molested, raped, and/or murdered each year to not have a system where people who have paid their debt to society are prevented from being able to find a home they can live in (or being forced to live under a bridge, as in Florida). A dead kid is not the worst thing that can happen. An innocent person being sent to prison for life is much worse than a dead child.

Now, I'm not saying that I want children to be raped or killed by sex offenders, but I'd rather a dozen or so kids be raped/murdered than live in a country where people are forced to live under bridges, or locked up perpetually under "civil commitment" (in violation of countless constitutional rights despite what the SCOTUS has had to say on the subject).

Living in a free society means children are going to get hurt and get killed. People need to learn how to deal with that fact and accept that. It may even be your children. And parents whose children have been harmed due to our free society can bitch all they want, but they need to be kept out of the policy debate, as their anger and bias causes them to be in no position to make public policy. The Constitution gives people accused of killing children rights. It gives people convicted of killing children rights. It does NOT give the families of those children rights, other than the freedom to speak about it on the street corner and in newspaper op-eds. I don't have much sympathy for victims who can't get over their loss. If your family member was murdered 15 years ago and you're still wearing a button on your shirt with his/her name on it, you need to get psychiatric assistance.

I realize that we live in a society where being a victim is the ultimate status symbom. Victims get free sympathy, love, gifts, and most valuable of all, they get free and unlimited attention. Everyone wants to be a victim. Victims literally wear their victim status on their shoulder with big home-made "I'm a Victim!" buttons. But victims should be kept out of the criminal justice process, no matter how desparate they are for revenge. As a side note, I've noticed watching victims talk in court, that the meanest, nastiest most unforgiving victims who spew forth talk about revenge and the desire that the defendant be given the maximum sentence (I hope you suffer!!! Brawarrrrgh!) are the one with the christian crosses hanging on their necks. I find it pathetically ironic. Christian victims should ask for the charges to be dismissed, or at least for probation, and say they forgive the defendant, as Jesus would surely do. But no, every time, the hypochristians are the ones who give the nastiest, meanest "victim impact statements" at the defendant's sentencing. Happens every time.

We need to remove the victims from the process, other than testifying as fact witnesses at the guilty/not guilty stage of the trial. Other than that one exception, victims should be kept at least 10 miles away from the courthouse while the trial of their tormentor is going on.

Posted by: bruce | Dec 2, 2007 8:35:53 AM

Hey Bruce,

I don't suppose you would mind if I still some of your quotes?

Posted by: EJ | Dec 2, 2007 11:10:08 AM


Posted by: EJ | Dec 2, 2007 11:16:08 AM

Bill, if you think there's a contradiction between someone being dismissive of some crimes and saying nobody has an overall dismissive attitude toward most or all crime (including the horrible crime you mentioned), then it becomes all the more clear how you live in your black-and-white world.

Posted by: 12:50 | Dec 2, 2007 11:59:29 AM


Having reconsidered the matter in light of your arguments, I believe you have the better of the case. The use of an elipsis is ordinarily adequate -- I do it and so does almost every writer, principally for purposes of needed brevity -- but in this instance it would have been better to continue the quotation of that sentence, and possibly the next one as well. I will try to be mindful of this in my future exchanges with you.

You have an unusual blend of intellectual honesty, which I view as admirable, and ideologically-grounded conclusions, many of which I view as appalling. Among the latter is this one (and I'll attempt to give a full context}:

"I don't buy that [the argument that forcing sex offenders not to live near children will keep children safe], but for the sake of the argument, my position is: it is worth a few kids being molested, raped, and/or murdered each year to not have a system where people who have paid their debt to society are prevented from being able to find a home they can live in (or being forced to live under a bridge, as in Florida). A dead kid is not the worst thing that can happen. An innocent person being sent to prison for life is much worse than a dead child."

Your stance seems to be directly at odds with the usual death penalty abolitionist theme that "death is different," meaning principally that it's irreversable and therefore dangerous for society to impose. Likewise, the death of a child (or anyone else) is irreversable, while unjust imprisonment can be stopped, so if we have to choose one of these dreadful things, presumably most abolitionists would choose the latter (as would I).

But for however that may be, your post contains a key insight often missing in these debates. The insight is that criminal law policy questions almost always involve trade-offs. Occasionally I have been asked at death penalty debates why I don't support executing everyone, since that is sure to reduce the number of murderers far more than just a paltry execution here and there. And occasionally, when I'm in a bad mood, I'll respond by asking the questioner why he doesn't support ending criminal punishment for everyone, since that is the only sure way to end UNJUST punishment.

The purpose of that answer is to drive home the point that we have no real choice but to accommodate competing values, and that the resulting compromises will have costs, sometimes fearsome ones. The question is inevitably one of degree, and of choosing among alternatives, none of which will be completely satisfactory. This is something your posts show you understand, meaning that at least we have enough in common to talk.

For now, though, I have talked too much, and the compromise about the disposition of the rest of the afternoon has been won by the Redskins.


Posted by: Bill Otis | Dec 2, 2007 1:17:58 PM

Bill, I've been for the death penalty my entire life... until I started practicing criminal defense. Once I law firsthand how vindictive and mean most prosecutors are, along with how they only care about career advancement (read: getting convictions and securing the highest sentence possible, especially death), I started to question my stance on the death penalty. Then, I started to realize how innacurate and unreliable the system is, how bad most of the court appointed lawyers are, and I decided the death penalty simply cannot stand. But my opposition to the DP is not on moral grounds, it's on practical grounds.

All policy debates involve tradeoffs, Bill. But the tradeoffs stated or implied by the politicians are always false ones. The false dichotomy. Either A or B. When, in fact, there's also C (or neither A and B).

Whenever I say I don't mind a few kids being killed, I always get yelled at. But everyone agrees with me, they just won't admit it. We could lower speed limits to 5 miles per hour everywhere and we'd save thousands of children's lives each year. Are you willing to drive 5mph everywhere? Of course not. And that would save more children than letting sex offenders live within 1000 feet of playgrounds.

I wish we didn't frame all policy debates about "saving the children" or "protecting the children" .... we have done that ever since the 19th Amendment was passed. Once women were given the vote, the maternal instinct (protecting children) was instantly and forever thrust into politics, and it controls 50% of the voting base. So, everything is about TPC (the precious children).

I am not willing to give up ONE right, not ONE liberty, to increase the chances some child might live an extra day. My right to drive 70mph is worth 100,000 dead children. On my blog I made a list of all the important fundamental rights and liberty interests, and listed how many dead (white, American) children they are worth.

EJ: which quotes, and for what purpose?

Posted by: bruce | Dec 2, 2007 5:31:39 PM

Bill, you should read my comments over at this thread as they're relevant to the discussion here.

Also, here is a link to my blog post where I give approximations for how many dead children various rights and liberties are worth. Everyone agrees X right/liberty is worth Y dead children per year, but it seems I'm the only one willing to not only admit it, but quantify it. For example:

Right to free speech: 50,000,000 dead children
Right to due process of law: 47,800,000 dead children
Right to bear firearms: 200,000 dead children
Right to privacy: 48,660,000 dead children
Right to jury trial in criminal case: 20,000,000 dead children
Right to jury trial in civil case: 11,000,000 dead children
Right to no unreasonable searches/seizures: 39,000,000 dead children
Right to warrant w/ probable cause: 37,000,000 dead children
Right to counsel: 18,500,000 dead children
Right to no cruel/unusual punishment: 41,000,000 dead children
Right to confront accuser: 13,850,000 dead children
Right to equal protection under the law: 45,000,000 dead children
Right to use drugs: 35,000,000 dead children
Right to beyond a reasonable doubt burden of proof in criminal cases: 37,000,000 dead children
Right to autonomy and self-reliance: 26,000,000 dead children
Right to smoke tobacco: 7,500,000 dead children
Liberty to drive w/out speed limits: 12,000,000 dead children
Right to contraception: 22,000,000 dead children
Right to abortion on demand: 3,500,000 dead children (not including aborted feti)
Wipe ass with double-ply TP: 144,000 dead children
Chew gum: 46,000 dead children
Air conditioning: 10,000,000 dead children

I don't have a scientific formula for coming up with these numbers. They're just my approximation on what I am willing to tolerate, and what I think society is willing to tolerate. How many dead children would it take for you to agree to change all speed limits to 5mph (and have a device in your car that prevents it from going over 5mph... to save the children of course)? There is a number, and I'm quite sure it's very high. Maybe a few million dead children.

Anyone who says they'd drive 5mph for the rest of his life to save the life on one child (which a lot of self-aggrandizing assholes would proudly say) is lying through his teeth, safe in the knowledge that the tradeoff will never actually arise.

Posted by: bruce | Dec 2, 2007 8:00:10 PM


It's ironic that you use traffic deaths as an illustation of trade-offs, since I do the same in capital punishment debates, only for a different point.

The point is that the prospect of executing an innocent person, while a moral cost of great gravity, is not a conclusive argument against capital punishment. As you note, society accepts thousands of fatalities every year in exchange for the benefits of being able to drive at highway speeds. These benefits are mostly of two kinds, personal convenience and economic efficiency.

In other words, whether and to what extent society is willing to tolerate the deaths of innocent people depends on what it gets in exchange. This does not mark us as monstrous or barbaric. It marks us as rational. And highway deaths are only one illustration.

The law of self defense explicity accomodates the taking of innocent life, but very few people have a problem with it. The law of self defense is that a person (who will often turn out to be a police officer) may use deadly force if he has an objectively reasonable, EVEN THOUGH ERRONEOUS, belief that he is in imminent danger of death or grave bodily harm. You hear of a few episodes every year in which some prank or practical joke goes awry, and the jokester winds up shot to death because the shooter mistakenly, though reasonably, believed that the prankster was the robber or intruder or what have you that he was pretending to be.

The reason we are willing to allow people to use deadly force in those situations, without penalty, is that society wants its citizens to be able to save themselves when they reasonably think that's their only option. To do this, it has to allow for error. Again, it depends on how high a value society places on what it gets in exchange for a law that allows actually innocent people to be killed.

Yet a third example is war. When we invaded Afghanistan after 9/11, the great majority of the country supported it. It did so notwithstanding that we all knew that in the course of the war to follow, hundreds or perhaps thousands of innocent civilians were likely to be killed. We were willing to pay that moral price, as we were willing to pay it in WWII, because what we got in exchange -- namely the destruction of the Taliban government and its hosting capacities for al Qaeda -- was deemed by the majority to be worth it.

None of this is to say that the possibility of an erroneous execution is exactly like civilian casualties in war, or traffic fatalities, or mistaken killings in self-defense (although if the DP has the deterrent value a number of recent studies report, it does bear a resemblance to societal self defense). It is to say that whether the execution of an innocent person -- which, so far as any neutral and authoritative source has declared, has not happened in the more than 30 years since Gregg -- is an acceptable cost depends on what society gets in exchange.

Ir is, in other words, a trade-off.

You say that you used to be a DP supporter, and even now you don't oppose it on moral grounds. I suspect that what made you a supporter is what makes most people supporters: For a crime like the Jessica Lunsford rape/murder, or the beltway sniper, or McVeigh blowing up the Murrah Building, imprisonment, no matter for how long, just does not fit the enormity of the evil. So long as there is no sensible doubt of the guilt of the person convicted -- and there isn't in those cases and many, many more -- the majority of the country believes, correctly in my view, that what we get by having and using the DP outweighs its costs.

Virtually every poll I have seen suggests that this is the public's moral calculus, and I agree with it, as did Lincoln, FDR, Eisenhower, Reagan, Clinton and you name it.


Posted by: Bill Otis | Dec 2, 2007 8:52:30 PM


I took a look at the thread you noted in your post at 8 pm this evening.

Without knowing more about the specific facts of the Utah molestation case discussed there, and the state law in Utah, I wouldn't hazard a guess as to what a substantively just sentence would be.

The only thing I'm sure of is that ex parte proceedings in sentencing are grossly imporper. Altering documents is completely off the wall.

This is a good illustration of what I mean when I say that judicial accountablity is imperative, even realizing that it will have to be handled carefully in order to preserve judicial independence.

If I were the chief judge of that court, I would issue an order sua sponte vacating the sentence and setting the case for re-sentencing before a different judge.


Posted by: Bill Otis | Dec 2, 2007 11:12:08 PM

Bill: I completely agree with your sentiments. And yes, I do feel that there are some people who commit crimes so horrible that killing them is just the proper thing to do, just "throw away the trash" and get rid of them. I think life in prison without parole is a WORSE sentence than death; however, some people are just too much trouble to keep alive, they're a danger to everyone in prison, they're an annoyance, and they'd just be better off dead. HOWEVER, I do not trust the state to decide who those people are. If they let me decide who gets the death penalty, I'd be more than happy to dole it out after studying the facts of each case, interviewing the defendant, and interviewing the jury which convicted each defendant (to see why they convicted him). Note that I would not interview the victim's family, their opinion is biased and irrelevant.

I think only 2-3 people per year, among the entire 50 states, are plausibly worth executing. They should have to kill at least 5-6 people to even be considered for execution. Not for deterrence (the DP is proven to not be a deterrent), not for retribution, but just to throw away the trash and get rid of them once and for all. They'd probably have to have a long history of crime. I agree the DC sniper is probably one of the few who should be executed. Just get rid of him.

But that's fanstasy, back to the real world, one need only look at judge Sharon Keller of the Texas Court of Criminal Appeals (TX's highest court for criminal cases, the one that affirms death sentences). As I pointed out earlier in this thread, Keller sides with the state EVERY single time (except in the rare case where the defendant is a cop). Seriously, ever time. If a majority of the court rules against the state, Keller dissents. Every time. And the TX CCA is a kangaroo court to begin with, a majority of its 9 judges rules in favor of the state at least 90% of the time (Keller = 99.9% of the time). The Supreme Court overturns them now and then (See Penry I, Penry II, Penry III, Penry IV, Penry V, etc) when they insist on killing someone in violation of the Constitution. But that defendant will be executed eventually, it might just take a while (in the meantime, the victim's family will be whining in the news about just wanting "closure").

My experience with the Texas CCA, with prosecutors, and with juries in general has made me vehemently against the death penalty. Most prosecutors are assholes, most of them are seeking the highest sentence possible for (a) career advancement and (b) to get the victim/victim's family to quit calling them 20 times a day nagging them for retribution. And going back to the original topic, elected judges have WAY too much to lose if capital cases in their courts end up not resulting in death sentences. They will lose their next election with TV commercials calling them "soft on crime." Even in non-cap cases, elected judges have a vested interest in the defendant being found guilty (for that same reason). Ditto for elected DA's.

I've long said there should be national limits on the death penalty. I'll be generous, 10 defendants per year, for the entire country (including federal defendants), may be sentenced to death. There can be a "tentative death" sentence, and a committee at the end of the year will review all of those "tentative death" defendants (with NO victim input), pick the worst 10, and those 10 get executed; the rest get life sentences. I think the number should be 2 or 3, but I'd be content with 10 as a start.

On a side note, it actually amazes me that the federal government, with all its monstrous beaurocratic procedures, internal policies, and 10 levels of review within the DOJ alone gets to seek the death penalty... along with elected county bumpkin state District Attorneys in little shacks across the country (presided over by elected state judges). When I stand in a huge, immaculate, prestigous federal court, endowed by the US Constitution, it humbles me and I feel if the death penalty is going to be handed down, it should be here. Then I go down the street to the state court, run by a county, which is a tiny little room. How did we come to have a system where who gets the death penalty is determined by the magnanimous, all powerful federal DOJ... or a two-bit "tough on crime" state district attorney who runs his office out of the back of his Suburban?

The death penalty is no place for federalism.

Posted by: bruce | Dec 3, 2007 12:05:59 AM


"I most certainly AM dismissive of most crime, because most crimes nowadays (other than the basic English common law crimes which, while statutory, still exist today) are malum prohibitum garbage. It's illegal to possess leaves and powders and to deposit over $10,000 without filling out a currency transaction report. Those are not real crimes."

this is the part I would probably be using the most. It's a pretty good answer.

Posted by: EJ | Dec 3, 2007 9:42:38 AM

Here's a question: Why are life-tenured federal judges considered "courageous" for making decisions that won't get them fired.

Posted by: federalist | Dec 3, 2007 11:57:06 AM


I was wondering the same thing. Not only will Gertner's decision not get her fired, it will get her boatloads of praise from her old pals, and, I suspect, speaking invitations and awards from various groups on the left.

I have no idea whether Nancy Gertner is "courageous" as a general matter. I have a much better idea whether it's "courageous" to make a warm and fuzzy ruling that will earn her unlimited finger sandwiches at ABA conclaves.



Posted by: Bill Otis | Dec 3, 2007 3:23:36 PM

EJ: Feel free to quote me anytime ya want. Yeah I like that too, heh :)

Posted by: bruce | Dec 3, 2007 3:57:29 PM


This is a question, not an argument: Are you in favor of legalizing drugs? If so, would that include all drugs, or just some like marijuana?

I can't quite tell from your posts, so I thought I'd ask directly.


Posted by: Bill Otis | Dec 3, 2007 4:21:01 PM

Bill: All drugs. Heroin, Cocaine, Meth, Ecstacy, everything. Just the way it used to be when we defeated the british, pioneered the industrial revolution, manifest-destinied ourself across the continent, won World Wars I and II, and became a superpower. Only then did we start banning the possession of certain chemicals and society then went downhill. It is not the government's business to tell me what I can possess, let alone what I can put into my own body. We should have learned from alcohol prohibition that prohibiting substances that people want does not work and creates crime. One day, 20 years from now, when tobacco is illegal to possess, and our streets are full of "tobacco-related crime" people still won't get it.

It's easy to say pot should be legal. But then people equivocate on the hard drugs. I should be allowed to buy heroin by the gallon at WalMart. And yes, it should be sold to children on playgrounds, children who have been taught how to safely and properly use it starting in Kindergarten. I want to see kids shooting up on playgrounds, and doing it safely with clean needles and pure unadulterated drugs. Though in reality, I don't think that would happen any more than kids are drinking vodka on playgrounds. I'm just responding to the "kids on playgrounds will be using drugs" argument against legalization.

My right to buy drugs legally is more valuable than the life of your child. Not that legalized drugs made in clean factories and sold in known, measured doses would kill anyone. But I digress.

OH. One more thing. Tax the HELL out of drugs. That's why god made drugs, for them to be used, enjoyed, and taxed. Get rid of the IRS and DEA, get rid of the income tax, and tax drugs at 15 to 20 percent. Revenue will double overnight.

Posted by: bruce | Dec 3, 2007 6:13:36 PM


Thanks for your direct and typically plain-spoken reply.

I disagree with almost all of it, of course, but it's hard to overstate the pleasure of hearing from someone so determined to avoid the hidden meanings, coded language and PR spin that is the life's blood of Washington, DC.

You might think about joining the Cato Institute, a libertarian outfit that largely shares your view of the drug war (if you aren't already a member).


Posted by: Bill Otis | Dec 3, 2007 11:38:42 PM

Bill I'm a big fan of the Cato Institute, and I worship Reason.com.

I hate spin, because nowadays everyone knows when you're spinning. A 2 year old can identify spin. And spinning means lying. Most public debate is premised on the false dichotomy, that's a result of our 2 party system. We're given two choices. Usually they're both bullshit (keep sex offenders 1000 yards away from playgrounds OR children will be raped). I always side with liberty. Whenever anyone says "there should be a law..." they are wrong. I'm a minarchist. We only need about ... oh.. i dunno... 50 laws .. just ballparking it. Maybe 100. No more than that. The government should exist solely to protect our rights and liberties and give us a system of recourse. Nothing more. Government is not here to protect children. That's the job of parents. Not government. I don't care how many children die. And yes, children will die if we don't have mandatory seatbelt laws. But too bad, that's not the purview of government. Let natural selection take its course and accept the fact that children will die, and a child dying is not the worst thing that can happen. Losing even the most trivial right or liberty is far worse than a child being killed. If don't even care if the rights and liberties lost are ones that I would avail myself of. I would not use LSD if it were legal, it sounds pretty scary. But my right to use LSD is worth at least 10,000 dead children (though that's not the real tradeoff).

Really, I'm just sick of everything being weighed and debated against the theoretical deaths of children. But so long as that's the debate, I'm against losing my rights and liberties, which means I'd rather the children die.

I'd recommend reading Jacob Sullum's great book "Saying Yes: In Defense of Drug Use" and I'll bet you'll then agree with me re: legalizing drugs.

Posted by: bruce | Dec 3, 2007 11:53:06 PM

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