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October 28, 2008

Law prof fears "mass freeing of criminal defendants"

Yesterday in this post I noted this new op-ed authored by Senator John McCain in which the Senator asserts that Sentaor "Obama's judges would coddle criminals."  Today, Professor Steven Calabresi, in a somewhat insightful and somewhat wacky op-ed in the Wall Street Journal, takes the anti-Obama rhetoric up a notch.  Specifically, Professor Calabresi contends that if Senator Obama becomes President and appoints a large number of federal judges, "we could possibly see ... the abolition of capital punishment and the mass freeing of criminal defendants." 

I was intrigued when Senator McCain promised that we might soon be seeing new judges coddling criminals, but I am really taking notice — as must be criminal defendants ranging from Senator Ted Stevens to Jeff Skilling from George Ryan to Conrad Black from Duke Cunningham to Tom Noe — now that a distinguished law professor is indicating that we might soon experience, as a result of new judicial appointment, "the mass freeing of criminal defendants."

I expect some hyperbolic tough-on-crime rhetoric coming from politicians like Senator McCain and former Mayor Rudy Giuliani (heard on recent robocalls).  But I am both sadded and very disappointed to see this kind of silly over-the-top rhetoric coming from law professors.  Though I know this is an exciting time legally and politically, I think everyone should just take a deep breath.

October 28, 2008 at 04:56 PM | Permalink


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The possibility that Barack Obama will do to the entire federal judiciary what Jimmy Carter did to the Ninth Circuit -- turn it into a travesty of justice for an entire generation -- is a very real danger. Professor Calabresi is quite right to call attention to it.

Posted by: Kent Scheidegger | Oct 28, 2008 5:32:36 PM

Doug. You give Professor Calabresi way too much credit when you call his op-ed "silly over-the-top rhetoric" and suggest "a deep breath." His op-ed is politically correct, circa-2008, Respectable-Law-Professor-speak for "Willie Horton! Willie Horton! Willie Horton!" Deep breath? Please.

Posted by: dm | Oct 28, 2008 5:41:55 PM

Kent. There mere fact that someone happens to disagree with your own policy prescriptions is not a "travesty of justice". I am not a fan of Obama but if the people elect him (which they will) they know what they are getting because his policy positions are their for all to see. I don't think the present system works very well and if the people want to try Obama's experiment they have that power. Personally, I doubt Obama's election will either raise or lower the overall amount of justice in the world because it seems to me the travesty is innate in the human condition and not subject to the reversal by any man or faction.

I agree with Doug. Take a deep breath.

Posted by: Daniel | Oct 28, 2008 5:46:29 PM

Daniel, perhaps you'd have the guts to make that statement to some victims of liberal judges letting criminals loose.

Posted by: federalist | Oct 28, 2008 5:52:05 PM

"There mere fact that someone happens to disagree with your own policy prescriptions is not a 'travesty of justice'."

And nothing in my comment says or implies that this characterization is based on mere policy disagreements. The problems with the Ninth are sufficiently well known that the point should not require further elaboration.

Posted by: Kent Scheidegger | Oct 28, 2008 6:05:56 PM

Jeez, I'm still waiting for the *last* crime spree that we were supposed to expect. Y'know, the "sudden influx of criminals from federal prison into your communities [that] could lead to a surge in new victims with a tragic but predictable result" that AG Mukasey so helpfully warned us about back in January in an attempt to prevent crack sentencing reform from being made retroactive. I'm sure that rampage will start any day now...

Posted by: Alex | Oct 28, 2008 6:13:15 PM

tell you what alex--we'll let one of these angels live next door to you . . . .

Posted by: federalist | Oct 28, 2008 6:58:35 PM

I think it's very likely that if Obama is elected, we will see the abolition of the death penalty. In fact, I'd say it's almost a certainty.

And Obama's views are not out in the open.

Posted by: | Oct 28, 2008 7:26:48 PM

If the federal judiciary abolishes the death penalty, states should ignore that and execute anyway.

Posted by: federalist | Oct 28, 2008 7:35:23 PM

Watching the house of cards tumble in slow motion this election is so much fun.

Posted by: | Oct 28, 2008 10:24:48 PM

STEVEN G. CALABRESI is co-founder of the Federalist Society.

4. The numbers. From Jan 81 to Mar 08:

Rs have appointed
8 to the Supreme Court
182 to federal appellate courts
675 to federal trial courts

Ds have appointed
2 to the Supreme Court
66 to federal appellate courts
305 to federal trial courts

In toto
865 appointed by Rs
373 appointed by Ds


Posted by: | Oct 28, 2008 10:30:42 PM

I wish I were capable of believing in heaven and hell, because if I were I'd be confident that there'd be a special place in hell for people who scare people into voting their way by lying about crime, criminals, and crime statistics.

If we abolished the death penalty and passed a general amnesty for all nonviolent drug offenders (giving them immediate release from incarceration), it would be a good start. Of coure there's no way Obama would do that. He wouldn't even have the authority to ban the death penalty as president, and the most he could do would be to pardon people and/or commute sentences. But he won't. Even Rush Limbaugh knows he won't.

So, I envy those who believe in hell, because it would give me some comfort right now to know that McCain and Calabresi would spend eternity burning there for their dangerous, irresponsible lies.

"Vote for us because our opponent will let criminals run loose and your children will be raped and murdered."

Damn them to hell.

Posted by: BruceM | Oct 29, 2008 2:22:52 AM

This op-ed is juvenile. Most of it is nose-counting about who appointed whom on what court. This might go over well with ignorant anti-American lay scum, but it isn’t very helpful to understanding actual criminal practice. Obama has never said that cases should be decided out of “empathy.” However, and this is a point that that Calabresi doesn’t understand: empathy does inform EVERYONE’s legal decisions. The way we understand the contours of the Fourth Amendment is based on what the “law-finder-guy” understands to be HIS reasonable expectations of privacy. Instead, Obama has said that he wants judges that just might happen to understand what it is like to be poor. (I disagree with this. The poor are immoral, and serve little role in society. The only life experiences that matter are yacht races.)

If the people elect Obama, Obama is free to pardon every person in jail on federal charges. This is provided for in the constitution. Get used to it. If you want to change the constitution, you can try. However, the last time it was tried the people had no time for your silly “gay marriage” and “flag burning” amendments.

Secondly, if Obama wants to appoint a judge, and Congress confirms them, then that is how things work in the US. This is no changed from the current regime. Even assuming that Obama appointed a judge that would simply hold that everyone that presented an petition for a writ of habeas corpus was entitled to one, that would be our democratic choice. Contrary to the stupid lay-people-baiting rheotic out there, there is no constitutional right to put other people in jail. Get used to it. Or move to Canada or Europe when you would be a lot happier.

Mr. Scheidegger, The fact that you Ninth Circuit was unimpressed with your lawyering or arguments does not mean that it is a “travesty” of justice. Good lawyers win cases. Bad lawyers blame others. If you had real clients rather than trolling the desires of some part of the population you would understand this.

If the death penalty is abolished not much will change. There will just be more people in jail for life.

Federalist, Again, if you want to make a “right” to keep someone in jail individually enforceable, by all mean, try to do so. But, I don’t think the people have much enthusiasm for your fringe ideas.

Bruce, I don’t think one can really “lie” about statistics, especially ones that are projections. If I tell you “I think Obama will win based on the polls” and McCain wins, I didn’t lie. I was just an idiot.

Posted by: S.cotus | Oct 29, 2008 10:08:27 AM

So, person who calls himself Supreme Court of the United States, you're back on that kick. What is the basis for your assumption that my comment about the Ninth Circuit has to do with losing cases there? Nothing in my comment says or implies that. Do you have an external source for such an assertion? Do you think it is acceptable behavior to go ahead and make statements about other people without any substantial basis for believing they are true? It is really quite astonishing how many people here use my comments as Rorschach ink blots and project in whatever they feel like.

The fact is, CJLF doesn't appear very often in the Ninth Circuit, and has a pretty good record when it does. See, e.g., Irons v. Carey, 506 F.3d 951 (2007). More often, we are arguing to the Supreme Court that the Ninth is wrong and should be reversed, and it almost always is.

And, getting back to the topic, that is the real problem here. If Barack Obama fills the federal courts with younger versions of USCA9 Judges Reinhardt and Pregerson, the damage to the rule of law will be deep and enduring.

Posted by: Kent Scheidegger | Oct 29, 2008 11:00:59 AM

Kent. I just don't agree with your philosophy. The only "rule of law" there is is that the law is what judges say it is. If there are 30 Reinhardt's on the 9th, then what they say is the rule of law just is the rule of law. That's the way the system works; it's the way it has always worked. You don't have to like their law and you are free to advocate for judges who will adopt a rule of law more to your liking. That's democracy. But it is sheer sophistry to argue that the decisions rendered by the judges Obama appoints will be something other than the rule of law.

Under an Obama administration the blow will not fall on the rule of law, the blow will fall on your values, your ego. But if Obama's election pains you, you should have thought about that eight years ago. If the Republicans don't like the fruit that they reap, they wouldn't have planted this Bush.

Posted by: Daniel | Oct 29, 2008 11:37:00 AM


Here is what Kent is suffering from: Obama Derangement Syndrome.

Posted by: Daniel | Oct 29, 2008 11:44:51 AM

S.cotus, I meant lying about the existence of statistics. "Democrats are responsible for 9 out of 10 child rapes" ... it's a made-up statistic. Not lying about actual numbers generated through an actual, scientific study. "Liberal judges free criminals" is also a lie about implicit statistics that do not exist. We all know there's no study that measures the "freeing of criminals" by liberal judges versus conservative judges. But this guy is basically saying just that. Lying about facts, or the existence thereof. I realize lying is central to politics, but lying to scare people about crime is the worst kind of political untruth.

Americans sit on their assess, eat their french fries, and when they're not watching American Idol they are watching news reports about crime - crime in their neighborhood (local news is 28 minutes of crime, 1 minute of weather and 1 minute of sports), missing children, murdered children, raped children, and the crying parents that are oh so good for ratings. Nothing gets the ratings up like a good "Amber Alert" - grab the chips and beer a kid's missing (and get the gun and strap a GPS monitor onto our kid's ankle). Americans are freaked out over crime and terrorism, and being freaked out due to crime and terrorism makes them eat even more food, and watch even more TV. It's a vicious cycle.

So anyonewho uses lies about crime and/or terrorism to gain political advantage deserves a special kind of death and torture. Hell would be too good for them.

Posted by: BruceM | Oct 29, 2008 11:55:51 AM

This discussion is completely silly, especially comments by Kent, federalist, etc.. The vast majority of the current federal judiciary are GOP appointees including a supermajority on SCOTUS. Who thinks McCain's appointments will differ significantly from Bush's? If you don't like how federal judges are ruling these days, put the blame where it lies - on the conservative politicians who appointed most of them.

Also, the meme that Obama may abolish the death penalty is irresponsible hogwash. He supported EXPANDING the death penalty to include child rape. Is there no requirement any longer for political commentary to have ANY connection to reality?

Posted by: Gritsforbreakfast | Oct 29, 2008 1:28:21 PM

Mr. Scheidegger: I can only draw inferences from your comments. You seem to think that there is something wrong or bad about the court not following your suggestions as to what the law is. If you lose, instead of blaming the court, consider whether you made your arguments well enough. Did you Bluebook correctly? Were your briefs detail-oriented?

I don’t really know what you people mean by “rule of law.” Where I come from the “rule of law” is the process by which we get to definitive answers. However, this “rule of law” usually involves a lot of “men” (and some “ladies”) who are appointed though a convoluted political process.

Bruce, the problem with your argument that "Democrats are responsible for 9 out of 10 child rapes" is a “lie” is that the word “RESPONSIBLE” is a legal determination. It isn’t a matter of being “true” or “false” but rather accepted as a political matter. In the US we generally don’t hold specifics political policies to be responsible for volitional criminal acts, but as a rhetorical flourish someone can say that ANY policy is “responsible” for any volitional act. However, to my knowledge, no criminal defendant has avoided criminal punishment by saying that “Democrats” are responsible for their actions.

Grits, Yo you said, “Is there no requirement any longer for political commentary to have ANY connection to reality?”

You misunderstand the issue. Politics creates its own reality. To me, it only becomes offensive when people involved in talking to the little people start misstating positions in briefs or a court’s opinion. But, when it come to broad analysis of societal trends, there simply isn’t a “reality” to lie about.

Posted by: S.cotus | Oct 29, 2008 2:42:56 PM

"You misunderstand the issue. Politics creates its own reality. ... But, when it come to broad analysis of societal trends, there simply isn’t a “reality” to lie about."

This is one of the sanest things I have read on the forums on this blog. Politics isn't a battle over the truth, no more than the courtroom is a battle over the law. Both are battles over who gets to determine what the truth is. This, and nothing more, is what I mean when I refer to democracy as a means of dispute resolution.

Kent's situation is that he believes, or at least he wants others to believe, that there is some universal and objective thing called the "rule of law" and that to the extent some policy or legal judgment deviates from that standard some harm has been done to the rule of law or to justice. I think that's nonsense. I don't believe that there is an universal and objective thing called the rule of law or justice. Or, to be clear, if there is such a thing, it is not within the human condition to either understand and/or implement that rule. So whether an objective rule of law doesn't exist or whether it is simply beyond our ken, the pragmatic result is the same. Everyone has their own individual truth; politics just is the method we use to determine social reality. And that social reality just is what determines the rule of law.

Posted by: Daniel | Oct 29, 2008 3:17:49 PM

by "responsible" I mean what the politicans who say such things mean. But-for causation. According to McCain, criminals will not be released onto the streets to rape your children but for the impending election of Obama/Democrats.

I don't mean responsible in a proximate cause, tort law, legal formalism sense (I don't mean it at all, i'm using a model quote from people with whom I disagree as an example).

Posted by: BruceM | Oct 29, 2008 8:17:16 PM

"when it come to broad analysis of societal trends, there simply isn’t a “reality” to lie about."

The question that statement referred to was whether Obama would abolish the death penalty. In fact, he supports his expansion.

I appreciate Daniel's Humpty Dumpty-ish lesson political rhetoric, but sometimes there is a touchstone reality just as there are frequently demonstrable lies. Claiming Obama wants to abolish capital punishment falls in the latter category. That's different from a "broad analysis of societal trends"

Posted by: Gritsforbreakfast | Oct 30, 2008 7:37:23 AM

Whether Obama “wants” to abolish the DP is itself a political claim. First of all, only if we could climb inside his head could we discern what he “wants.” Second of all, most executions are done by states. There isn’t much the federal government (or the president alone) can do about this. Anyone who claims that Obama could eliminate a state DP is trying to incite the rotten lay people that plague are nation with their evil.

I am sure that Bush “wants” to abolish the Fourth Amendment (at least as it applies to terrorists a/k/a people that didn’t attend college), but that doesn’t mean that he can or actually WOULD do so if he could.

Posted by: S.cotus | Oct 30, 2008 1:18:36 PM

I agree with Doug that the claim there will be "mass freeing of criminal defendants" is wacky.

Posted by: John Neff | Oct 30, 2008 9:27:20 PM

S.cotus says we can know Obama's death penalty stance "only if we could climb inside his head could we discern what he 'wants.'”

Alternatively, we can take his well-documented, repeated public pronouncements on the subject at face value and not assume every politician is lying just because their lips are moving. Obama's position on the death penalty is a matter of public record and it was misstated in this column. It's a factual mistake to claim he'd abolish the death penalty - either an intentional obfuscation or a reckless, uneducated projection of the author's fears - not a matter of interpretation.

Posted by: Gritsforbreakfast | Oct 31, 2008 7:55:42 AM

It's sad to see all the straw man arguments being trotted out here. All the more curious considering S.cotus's crusade against the average voter. It seems to me that the debate level here is not noticeably superior to what one might expect from average voters.

First, I'd like to thank S.cotus for drawing a parallel between Obama and the death penalty and President Bush and the 4th Amendment. It seems that he's finally beginning to acknowledge the constitutionality of the death penalty. That said, not even death penalty supporters would claim that it is required by the Constitution. We simply argue that it is constitutionally permissible.

Talks about Obama's intent regarding the death penalty miss Prof. Calabresi's point, as his article was focused on the judges that a President Obama might appoint. Considering the moratorium imposed by the Furman Court and more recently because of Baze, it is perfectly logical for Prof. Calabresi to argue that the judges a President Obama might appoint will abolish the death penalty. I have no idea what Obama's true intention regarding the death penalty is. What I do know is that the Supreme Court justices he favors are the ones who were in dissent in Baze or wrote a concurrence that all but declared war on the death penalty. That alone is sufficient to sustain Prof. Calabresi's point.

I thank Gritsforbreakfast for bringing up Obama's reaction to Kennedy v. Louisiana, because it proves that Obama is lying every time his lips move. After all, his favorite justices were in the majority in Kennedy. If Obama ever declared a litmus test over the Kennedy issue, it must be the best kept secret of this entire electoral campaign.

I also agree with Gritsforbreakfast that failure on the part of conservatives to attain a majority on the Court can be blamed on conservatives. If a conservative was appointed in Justice Souter's place, the Court would never have rendered recent travesties of the Constitution like Boumedienne, Kennedy,...etc. Fortunately, a President McCain will have the opportunity to atone for the sins of his Republican predecessors.

Posted by: realist | Oct 31, 2008 4:48:56 PM

Realist, remember, we lost Bork. We tried, and lost.

Posted by: federalist | Oct 31, 2008 11:54:02 PM

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