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October 24, 2015

Justice Anthony Kennedy condemns extreme US punishments as "ongoing injustice of great proportions"

This new piece in the Harvard Gazette, headlined "Kennedy assails prison shortcomings," highlights that an especially notable Supreme Court justice is saying some especially notable things about the US criminal justice system. Here is how the piece gets started:

Without mincing words, U.S. Supreme Court Justice Anthony Kennedy disparaged the American criminal justice system on Thursday for the three prison scourges of long sentences, solitary confinement, and overcrowding.

“It’s an ongoing injustice of great proportions,” said Kennedy during a conversation with Harvard Law School (HLS) Dean Martha Minow at Wasserstein Hall, in a room packed mostly with students.

Kennedy criticized long prison sentences for the high costs associated with them. (In California, where Kennedy comes from, the cost per prisoner is $35,000 per year, he said.) He also said long sentences have appalling effects on people’s lives.

Solitary confinement, he said, “drives men mad.” He called mandatory minimum sentences “terrible” and in need of reform. Sentences in the United States, he said, are eight times longer than sentences in some European countries for equivalent crimes. With more than 1.5 million prisoners in federal, state, and local jails, the United States has the world’s largest prison population.

The worst of the matter, he said, is that nobody pays attention to this wrong, not even lawyers. “It’s everybody job to look into it,” he said.

Kennedy, LL.B. ’61, whose views on the court reflect a preoccupation with liberty and dignity, has often been described as the high court’s swing vote on major issues. But during his talk with Minow, he said he hated to be depicted that way. “Cases swing. I don’t,” he quipped, as the room erupted in laughter.

October 24, 2015 at 12:25 PM | Permalink


Each reader who is a lawyer needs to send this article to his state bar journal. Most of those lawyers out there in America don't know nuthin bout birthin babies.

Posted by: Liberty1st | Oct 24, 2015 1:35:52 PM

Kennedy is a major nutcase but it's OK because he's a feel-good nutcase and so that makes it all better. Kennedy's opinions remind me of the homeless mutterer on the street with a shopping cart full intellectual junk. He's mentally ill and everyone knows it but since he isn't an aggressive panhandler like Scalia or falling down drunk and blocking traffic like Alito, he gets a free meal at the soup kitchen and the cops won't arrest him for sleeping on the grate. Kennedy is the homeless person the females in the community keep around because it gives them someone to mother once their own children have fled the nest or their favorite dog died. Any mature adult male would be embarrassed to be Kennedy but then as we learned in Obergefell the man has no shame.

Posted by: Daniel | Oct 24, 2015 2:58:58 PM

Doug, thanks,

Now representatives from all three branches of government have weighed in recently with respect to excessive sentences.

The Executive, President Obama

The Legislative, Congress

The Judiciary, Justice Kennedy

Justice Kennedy has been a champion for rationality in criminal sentencing, and authored the seminal case which conclusively settles the appropriate test to be used when analyzing as applied Eighth Amendment challenges. - Graham v Florida


Posted by: bruce cunningham | Oct 24, 2015 3:22:25 PM

What is it that invites a certain class of people to this blog?

Posted by: Joe | Oct 24, 2015 3:32:11 PM

Any of the nine baboons in black pajamas who says this and still supported the government in Smith vs. Doe is simply blowing smoke from a certain orifice.

Actions (and real decisions) shout so loud, that I cannot hear the lies you are telling me (and deluding yourself with).

Posted by: albeed | Oct 24, 2015 5:44:30 PM


Well, since you are part of that class why don't you tell us?

Posted by: Curious | Oct 24, 2015 6:40:47 PM

An assembly of stupidity with pure evil. Kennedy. Harvard Law. A Harvard Law alumnus. A law dean because Kennedy, America's most hateful lawyer weasel, begging Congress for a small raise, hat in hand, because he needs it for his expenses, this horrible human being is too good to be addressed by students. A Hall named after a vile feminist in Congress.

No one to speak on behalf of crime victims to these filthy lawyer traitors. Everyone in that room is scum lower in morality than the criminals they privilege. A lie that solitary confinement damages anyone, when it helps a lot of people, including the confined. A casual reference to the ultra-cheap cost of prison. No mention of the 1000 fold return on investment it returns in prevention of damage, especially to black people. No mention of the prominent leadership of black leaders in promulgating the original mandatory sentencing formulas. No mention of the 40% drop in crime that resulted, of this the greatest achievement of the lawyer profession in the 20th Century among a forest of utter failure. No mention of the seething hatred of the public for the lawyer profession that produced an explosion of crime after protecting criminals at the Supreme Court level, and how these guidelines saved the profession from this seething hatred, and saved it.

Posted by: Supremacy Claus | Oct 24, 2015 11:50:01 PM

Joe. Most of the commentators here are pro-criminal scum, as you are. They derive their income from the criminal. In collusion with scum on the bench, getting their pay from big government, they protect their incomes at the cost of 5 million violent crimes a year, including a now soaring murder rate, herded into black communities.

There is now actual lawyer unemployment after the guidelines dropped crime 40% across the board, thus the assault on them. Because there is no talking to people who will lose income if crime rates drop, only violence remains. Pray that Kennedy gets pistol whipped in a car jacking. If the black criminal in Washington shoots him in the gut, in the knee, so much the better. I do not want him killed. I want him to suffer atrociously as he condemns millions of crime victims to do each year. If he is killedhewill be immediately replaced with an identical pro-criminal weasel.

Posted by: Supremacy Claus | Oct 24, 2015 11:56:05 PM

These latest rants, Supremacy, have prompted more than the usual calls for me to ban you from the comments. Please try a little harder to be a little more civil --- or one of these days I might just give in to the pressure to no longer allow you think platform.

Posted by: Doug B. | Oct 25, 2015 11:15:40 AM

Prof. Berman. I am a guest, and will stop coming if you say so. I am not banned from C&C, just not welcome unless I change. I have not returned. I will move back to the Volokh Conspiracy with its wider range of law subjects, and new ownership. Volokh banned me after I got insistent about St. Thomas Aquinas and the church origin of the common law, to this prominent expert on the First Amendment. He wrote a blithering, saliva spraying policy on banning people shortly thereafter. He got upset about comments from my 10th Grade World History course. Volokh inspired the term, lawyer dumbass, to describe a person with the highest IQ on record, who became really stupid after attending law school. He is an expert on city flags containing a cross, which is really depicting a tourist attraction and not promoting religion. Meanwhile, he has no clue the Latin spewing law plagiarized the catechism, which is illegal in this secular nation. A dumbass. That word is a term of art, and not an epithet.

I note that C%C is saying the FDA is over-reaching in its obstruction of execution poisons, in lawyer language, several years after you heard that from me, in regular language. C%C has not yet reached the self evident conclusion that the correct regulatory body is the Department of Agriculture.

For my own edification, which is the objectionable term, the word, scum, or the phrase, rent seeking? If it is the word, scum, why is the polite term rent seeking less objectionable? It means, a man with a gun collects taxes from hard working people and gives it to political constituents who return nothing of value back. The sole benefit to the tax payer is to not be arrested or shot. That is what happens in an armed robbery. Are armed robbers not scum, a word condensing the moral standing of the lawyer profession? And the immunity of the lawyer in collecting taxes and handing them to the lawyer profession is self dealt. What term do you prefer rather than scum? I will gladly start using it.

Posted by: Supremacy Claus | Oct 25, 2015 12:05:23 PM

WELL , get the ball rolling and do something about it...it long past due for a change...the criminal injustice system in America is a shame...stop the insanity, enough is enough!

Posted by: PAPA | Oct 25, 2015 12:34:52 PM

Professor Berman.

I have been commenting on your blog as long as SC has if not longer. I've always have and continue to admire your commitment to free speech. It is a value I share. I won't lie--there are times when he has made my eyeballs feel like they were drowning in a pile of vile acid. Yet a commitment to free speech doesn't show its strength when presented with the language of kisses and hugs but precisely when discourse is at its most heated. I probably disagree with SC about 80% of the time. I might not care for him but I'd think a lot less of you if you banned him.

Posted by: Daniel | Oct 25, 2015 12:39:49 PM

I'm not really sure "curious" why certain other people come here. I come here since I'm interested in the subject matter and appreciate the webmaster's overall point of view. It objectively seems to me to be somewhat a specialized blog about somewhat academic subjects at times but mixed in we get comments about nutty homeless people (the comment to me is about as reasonable as SC, who at least -- check his blog -- appears to be playing a character) and so forth.

But, as a target of some of the comments, don't think blocking would be necessary. Now and then SC actually appears to even decide to be serious. About as often as I'm concise, but has his moments.

Posted by: Joe | Oct 25, 2015 1:00:50 PM

From the ACLU. "Where racist, sexist and homophobic speech is concerned, the ACLU believes that more speech -- not less -- is the best revenge."

People have challenged my lawyer loving and correcting remarks. I went back and counted the lawyers in a state legislature for half an hour. I found I was wrong. I retracted my statement and apologized, sincerely.

In support of accuracy of legal remedies, I have provided many innovative defense arguments, including a death sentence ending one. The Werther Effect would end the death penalty immediately is ever demonstrated, and I would support such an end because of utilitarian arithmetic. After the hanging of Saddam Hussein was posted on Youtube, hundreds if not thousands of kids around the world imitated it, and hanged themselves. That should end the death penalty if proven a robust effect.

Posted by: Supremacy Claus | Oct 25, 2015 1:05:27 PM

Volokh, national First Amendment expert, called his blog a dining room. So if I disturb his guests, and the dining room, I should leave.

I disagree. It is his property, but is more like the sidewalk outside his house. The property line extends to the middle of the street. However, it must be kept open for public use.

Posted by: Supremacy Claus | Oct 25, 2015 1:14:45 PM

As one of the very few people in this country who has gone through a Federal criminal trial and been acquitted...knowing that I COULD have faced 20 years in prison for the act of Buying a Boat...(otherwise known as "money laundering")...I also have a spouse who received an incredibly long prison sentence (as a first time non-violent offender)...and so I suffer daily with the reality of being a widow and single parent...watching my youngest grow up with out her father, or any apparent hope of seeing her father as a free man until she is well past young adulthood.
(so the pain of prison visits itself upon me and my family daily as well...I have NOT been able to move on)

...I will say...SENTENCES that are considered "reasonable" are way way too long for certain crimes.
It is hurtful to me to know that SC would have my spouse killed six times over for the supposed "loss" his supposed "victims" experienced...
But I agree that SC has the right to his opinion...even if it hurtful. I think if SC met my spouse, and got to know him as a person, he would not feel that way. It is so easy to say these
things about "they"..."They" deserve it..." when in reality there is a real live human being behind each statistic.

Look at the clip of Obama meeting the prisoners...even if you don't like him OR prisoners, you can see that they are human beings.

My spouse went to trial because he believed he was innocent of the accusations...he appealed for the same reason...and was denied cert. He did everything he could to clear his name...
and I think the trial penalty was applied with full force.
My spouse's actions in theory "caused" me, an innocent party, to undergo the terrible forces of the courts and the justice system...and my faith in both of these branches is greatly diminished. I feel I have been punished so completely and thoroughly by this entire process...it has changed completely who am.(and the loss of my spouse is not the punishment I'm referring to here) But I can find forgiveness in my heart for each...or I try to. (tho sometimes it is mighty hard)
Surely our country can find a way to show some mercy too

Posted by: folly | Oct 25, 2015 2:45:12 PM

Our judicial system is the shame of the country. Destroying families, putting innocent people in prison, turning illegal criminals loose on Americans and not following the Laws of the land.

Posted by: LC in Texas | Oct 25, 2015 7:40:04 PM

Folly. I have repeatedly proposed to no avail to change appeals. The trial should be reviewed by seasoned investigators, and should review accuracy. These investigators may be inquisitorial judges with subpoena and full investigatory powers.

Today, that is not allowed. Only errors of law may be appealed, and the appeal is to judges who know no facts about the case. These judges, especially Kennedy, then rule entirely based on personal feelings and biases. Their biggest bias favors their employer, the government, so the innocent defendant stands very slim chance of a proper review.

I have also discussed the nature of defense lawyers. Many are former prosecutors with friends remaining in that office. They will just laugh if one proposes to attack the prosecutor. Attacking a biased judge is beyond their ability to conceive. Defense lawyers also have a fraction of innocent verdict the same or lower than pro se litigants (defendants who represent themselves). So they take money, but do no better than one could do unassisted. Often, they may be replaced by email or the post office, since their sole activity is to hand carry the plea offer of the prosecutor. That is true in 95% of cases. So they take a lot of money and return no added value.

Posted by: Supremacy Claus | Oct 25, 2015 9:03:56 PM

Daniel. Give me an example of a proposal with which you have disagreed.

Many times, I have just repeated the valid points you are making in blunter terms. For example, you said measurements validated for educational purposes may not be used for assessment of criminal culpability. No one else agreed or repeated that point except me.

Posted by: Supremacy Claus | Oct 25, 2015 9:08:18 PM


Posted by: Mark M. | Oct 26, 2015 12:47:55 AM

Prof Berman: you write to S.C. "These latest rants, Supremacy, have prompted more than the usual calls for me to ban you from the comments. Please try a little harder to be a little more civil --- or one of these days I might just give in to the pressure to no longer allow you think platform."

I can't tell you how much better your blog would be were S.C. barred from it.
Countless more bloggers would participate and respond to interesting and critical points, but do not do so because they are repulsed and utterly disgusted by S.C's incoherent rants against lawyers, judges, and anyone whose ideas he opposes. How about kicking him off for one year, and see if he can reform himself.l

Posted by: observer | Oct 26, 2015 11:20:35 AM

I have a theory that Supremacy Claus is either Antonin Scalia or Alex Kozinski. In my head, he is one or the other of them, hunched over the keyboard, cackling with glee at the response his verbal bomb-throwing elicits.

Posted by: defendergirl | Oct 26, 2015 1:37:43 PM

Observer. If one is a lawyer, one is an advocate. One should be able to handle a civilian's loving criticism, with the justification for what goes on. I am not an appellate judge. I am a civilian. My views are the most common views held by the public, with a little better understanding or process. For example, you are on a bus or plane, sitting next to a random stranger. Ask them what they think of the work of Bruce Cunningham.

In a personal attack on you, you will disclose the fraction of your income or that of your employer, coming from government. We may then discount the credibility of your statement by the same fraction. Your anger may come from the questioning of your source of income. Most of the lawyers here are 100% government dependent. Because they not only return nothing of value, but destroy $millions in economic value every year they practice, they are called rent seekers. We would be way ahead to pay them full salary, but ask them to do nothing to earn it. Go home take a vacation for a year. We will pay you $120,000. We would be $millions ahead.

Most of them are capable of scrolling down and not reading my loving criticism of the lawyer profession. They may also miss innovative defense arguments, since my bias is toward accuracy. No one has tried these before nor yet. That I cannot control.

To my credit, when I have been questioned and found to be incorrect, I have admitted my mistake, and sincerely apologized for it.

I do not have to be banned. At C&C, I was told to change my tone or not comment. I have never returned.

Posted by: Supremacy Claus | Oct 26, 2015 5:25:36 PM

Attack a member of the lawyer hierarchy, get shunned and banished.

That effect is true even at the highest levels of government and power. A majority leader of the House of Representatives criticizes a federal judge on the record. Out of nowhere, he is beset by corruption charges, in multiple lawyer gotchas. He is driven from his position, from the House itself, and spends years defending himself in courts and against consecutive and interminable prosecutions. Everyone gets the message.

Posted by: Supremacy Claus | Oct 26, 2015 5:36:07 PM

It's difficult to underestimate the arrogance of this "judge." The US is a nation of over 300 million people with diffuse decisionmaking. When looked at from the standpoint of actual conduct or conviction, many many criminals are under punished either due to a problem with the law, a problem with the judge or a problem with the prosecution.

Let's start with a simple example---earlier this year, Judge Olu Stevens handed out probation to two criminals who committed a home invasion robbery by sticking a gun in the face of a mother and her 3 year old. This is the worst kind of injustice--law abiding citizens are humiliated and robbed, they go through the process and a judge adds insult to injury. I don't see Justice Kennedy or Professor Doug Berman whining about this. Yet Doug will whine incessantly about the so-caled "evil" of Weldon Angelos getting the hammer because he brought a gun to a drug deal. I think it plain,beyond any reasonable debate, that what was suffered by the home invasion victims was far far more of an injustice than what happened to Weldon Angelos. Or we can take the case in Washington DC where a gay man was slashed viciously, and the judge decided to impose a sentence of less than one year. But we're supposed to weep for Weldon? But even more to the point--what about the animal that tortued the family in Washington DC? He had so many brushes with the law---yet where was Justice Kennedy (or Doug Berman) decrying the evil of what happened to that poor family. A ten year old boy tortured---and a criminal justice system that failed numerous times---and I am supposed to weep for Weldon. Or what of the cop just executed in NYC--another criminal, more unjustified lenience. Once again, the silence from the "smart on crime" crowd is deafening. So Doug, what's worse--the execution of the cop or the plight of poor Weldon?

It is patently true that there are some instances of injustice--I, in fact, harshly criticized some harsh gun law sentences in this very blog. But Kennedy indicts the whole system, federal and state and without regard for local variances. That, of course, wouldn't be so bad--every man is entitled to his simplistic visceral reactions--but Kennedy loves to impose his views on the rest of us under the guise of Constitutionalism. And Kennedy isn't the sharpest tool in the drawer--it takes a rare combination of stupidity and arrogance to posit that releasing a bunch of criminals hardened by overcrowding could somehow improve public safety. (Doug, of course, defends that utter nonsense--nonsense that even Joe won't touch). And, of course, Anthony "dim bulb" Kennedy doesn't dare grapple with the fantastic reduction in crime.

Kennedy's whining about the legal profession is laughable--what the legal profession out to be doing is criticizing the 8th Amendment "we do what we want" "jurisprudence" or the ridiculous lawlessness of a case like Frye v. Missouri.

Posted by: federalist | Oct 26, 2015 9:17:24 PM


"That, of course, wouldn't be so bad--every man is entitled to his simplistic visceral reactions...".

and you are entitled to yours. Wouldn't the world be better place if everyone just adhered to your sense of "justus"?

Be careful of confirmation bias (as W.O. should also). We have already discussed the tyranny of the anecdote, so it will not be brought up again - yet.

Posted by: albeed | Oct 26, 2015 9:44:17 PM

Albeed. Those are not pajamas they are wearing. Those are church clerical robes.

And the place where the Justices work, what does it look like?

Posted by: Supremacy Claus | Oct 27, 2015 9:21:32 AM

albeed--in case you didn't notice, the anecdotes I used were more to call out Doug and the self-appointed "smart on crime" crowd who whimper about poor Weldon but apparently have nothing to say about the various injustices I just mentioned.

Plane crashes are anecdotes too. And do you think that probation sentence of Judge Olu Stevens was his first overly lenient sentencing decision?

Posted by: federalist | Oct 27, 2015 9:38:28 AM

Let's be realistic here, federalist 'cherry picks' to bolster his opinions as much as those he accuses of doing the same thing. It just seems like the 'picks' cite the same cases all the time. Harrumph, harrumph!

Posted by: Brent | Oct 27, 2015 6:20:51 PM

Brent, it would be appreciated if you'd follow the argument and would get that not all anecdotes are equal. Whether Weldon Angelos "deserved" the five decade prison sentence he received (my sense is that it's a little on the high side) isn't really a persuasive anecdote--one, it's not a huge injustice and two Angelos is largely responsible for his own predicament. Compare that,if you will, to the fate of Phillip Savopoulos, a 10 year old boy murdered by a repeat offender who got lenient sentences. As I indicated in a previous post, what is the greater injustice, the horrifying death of young Phillip, or the arguable overincarceration of a guy who brought a gun to a drug deal? The question answers itself---but where is that half-wit Kennedy? And where is Doug?

You can pass off the appalling crimes I've mentioned (and there are plenty plenty more) as anecdotes, but they aren't. They are a reflection of just how dangerous many criminals are. The stakes are very high, and the "smart on crime" crowd simply discounts it. I cannot help but notice--all the caterwauling about the so-called plight of juvenile killers who got LWOP--but nothing about the plight of the victims of eminently preventable crimes. They just don't count.

Posted by: federalist | Oct 27, 2015 10:40:16 PM

What the "tuff on crime" crowd fails to comprehend is that when the government commits the tip of the iceberg obscenity represented by Weldon (to use the anecdote of the moment), is that it does so in yours, mine, and our name. When a person commits a heinous offense, I, you, we, have no shared responsibility in its commission. I, you, we, can do something about the obscenity inflicted in our name at the instigation of the "tuffies." Every person who commits a criminal offense is not composed solely of that crime. 315 million is a whole lotta folks. How many of that number is it fair to throw away because some guy committed a crime that shocks our humanity? What's the defect in those that fail to recognized the humanity in every person who commits a criminal offense?

Posted by: Mark M. | Oct 27, 2015 11:38:24 PM

Mark M. They are not human.

1. Fearless. Cannot be deterred by threats of punishment, only incapacitated.

2. Impulsive. No thinking, acts in a half second.

3. Selfish to the extreme. My need for $5 for crack is no comparison in importance to cutting your throat to get it.

4. Presentist to the extreme.

I can you call you a naïve, oblivious fool. But you are worse. You are a government promoting rent seeking thief of tax funds. There is no talking to people like you and the lawyer hierarchy, because your livings depends on protecting the criminal. I would be asking you to give up your living after we kill all the violent criminals, those protected by the lawyer hierarchy for government make work jobs. The victims are black and poor. Where they live, the death penalty is at the scene, and there is virtually no crime, just 5 miles from the most dangerous neighborhoods in the USA. Where the lawyer lives, no violent criminals gets out of his crime alive.

Federalist is now the sole licensed lawyer here defending the substantive right of victims, not the phony and worthless right to boohoo in a public court after they have been victimized, as Prof. Berman does, but the real right to not be victimized. It is notable, Fed's living does not depend on the criminal.

Posted by: Supremacy Claus | Oct 28, 2015 1:24:05 AM

"How many of that number is it fair to throw away because some guy committed a crime that shocks our humanity? What's the defect in those that fail to recognized the humanity in every person who commits a criminal offense?"

Around 10,000 executions a year should end the violent birth cohort of every year. This would end crime by attrition, and assumes no deterrent effect of the certainty of a summary execution.

123D also solves the problem of false convictions. If you are mistaken about number 3, it does not matter, the dead guy would have proven to be a bad person twice before, and in need of death.

To keep it fair, and social class neutral, execute those committing financial crimes worth more than the value of a life, now around $6 million (overly generous, but OK to avoid another argument). I would include all hackers, all producers of malware, of adware, and of owners of businesses one can enter but never leave, local and foreign.

The foreign hackers abroad should be tried in absentia. If damage is found to exceed $6 million, send a drone, and take them. Family members in the same destroyed place would be called collateral damage. Their deaths would be the full responsibility of the hacker, and the wife and children that should not have allowed themselves to be in his proximity.

Posted by: Supremacy Claus | Oct 28, 2015 1:33:12 AM

The protection of the criminal by the lawyer hierarchy was a major factor in 9/11. I consider abolitionists to be threats to national security. Public opinion has no effect, so people here are safe. Only the hierarchy makes 99% of the policy in this nation. That is why I consider them internal traitors giving assistance to the enemies of the nation.

That, and their insurrection against the constitution by judicial review, constitutes treason, and justifies, their arrest, an hour's fair trial and summary execution. The sole evidence at the trial would be their written legal utterances protecting and enabling the enemy. There are about 25,000 of these traitors. Once eradicated, go about killing all the violent criminals. End violent crime by attrition.

Posted by: Supremacy Claus | Oct 28, 2015 8:07:10 AM

Hmmmm. A 10 year old in the ground after having been tortured with his family or a drug dealer who brought a gun to a drug deal getting 55 years--which is the obscenity? Ah, the drug dealer. It must be nice to be so enlightened.

And of course we have to have the cute name-calling too: "tuffie".

The issue is that there is some underpunishment, and the consequences of that can be very bad. Justice Kennedy is oblivious to that--and nothing anyone has said in response to my original post addresses that.

Posted by: federalist | Oct 28, 2015 9:43:12 AM

federalist, I think lots of folks in this thread have been responding to you by wondering/asking how much "overpunishment" we should embrace (and spend $$ for) in order to address the consequences of what you deem underpunishment. I do not think anyone would assert that some folks get underpunished and that this can have very bad consequences, but arguably the only way to avoid this possibility would be to overpunish everyone.

As you know from various past conversations, I seek to highlight this reality with a focus on drunk driving. I often asked you and others who want to err on the side of overpunishment in the name of public safety whether you think we ought to incarcerate all first-time drunk drivers for, say, 55 years comparable to what Weldon Angelos got for his first offense. Or, to use SC's (more refined?) approach, should we execute all drunk drivers for their third offense?

Statistically speaking, drunk drivers pose MUCH more of a threat to public safety than pot dealers like Weldon Angelos (and, in a world with Uber, drunk driving seems like an especially preventable offense, no?). Here are just a few recent news stories about repeat drunk drivers causing carnage and harm to innocent persons:




I do not think anyone is "oblivious" to the fact that underpunishment can have bad consequences --- indeed, the whole reason our laws required Judge Cassell to sentence Weldon to 55 years are concerns about underpunishment. But why are you -- and Bill and SC and others in the "tough-and-tougher" crowd not often emphasizing the underpunishment problem in those settings that are, statistically speaking, truly the greatest threat to innocent people?

If you readily joined me, federalist, in complaining about all the needless victims our soft-on-drunk-driving laws create, I would be much more sympathetic to your sniping about Justice Kennedy and others. But the types of cases that get the most attention from you and Bill and others in the "tough-and-tougher" crowd shows me that some commitments beyond just a concern for innocent victims sometimes fuels some of your views.

Posted by: Doug B. | Oct 29, 2015 6:30:39 PM

There appears to be one case where there is a fairly evenhanded concern as to overpunishment -- sex offenders, which is seen by a diverse group here as too often irrational moral panic. I was treated akin to the tough on crime group is seen at times for suggesting even a month in prison would be warranted for a teacher who had sex with five of her students.

Posted by: Joe | Oct 29, 2015 6:44:59 PM

"here" = this blog. Might not be as much elsewhere.

Posted by: Joe | Oct 29, 2015 6:45:40 PM

"I was treated akin to the tough on crime group is seen at times for suggesting even a month in prison would be warranted for a teacher who had sex with five of her students."

Five of her adult (i.e. 18 yo) students. You should be more accurate Joe.

Posted by: federalist | Oct 30, 2015 8:33:18 AM

Doug, nice way to try to get around the issue---I readily admit to not having the vehemence about drunk driving that you do--but so what--I don't oppose stiff sentences for drunks (particularly those with very high BACs) who get into wrecks.

And I don't think I am a tough and tougher kind of guy. My view is that (a) clemency needs to be more robust, (b) certain laws have been abused (e.g., sex offender laws) and that (c) violent criminals need to be punished harshly. And I support tough on DUI laws---why I think aliens caught drinking and driving should be deported.

Funny how you can't deal with the basic point--the comparison of the government-caused injustice with 10 year old Philip and his family vs. the possibly bad outcome for Angelos. And you have nothing to say about how things like Olu Stevens' sentence lead to things like less judicial discretion.

Posted by: federalist | Oct 30, 2015 8:46:58 AM

I agree, federalist, that you are more balanced than some in this space and that you are especially focused on being especially tough on violent offenders. But you dodge here and elsewhere the tough issue of how to avoid the harms of under punishment without creating extreme over punishment.

Posted by: Doug B. | Oct 30, 2015 9:58:16 AM

"But you dodge here and elsewhere the tough issue of how to avoid the harms of under punishment without creating extreme over punishment."

I don't think it lies in your mouth to accuse me of dodging given your inability to address serious underpunishment and Kennedy's one-sided view of the justice system. I've actually answered that question in the past. The answer lies in (a) restricting harsh sentencing regimes to people who do serious harm (so, for example, we lift restrictions on gun laws for people who have led clean lives for 15 years or who only have relatively minor offenses before 21 so that we don't jail hunters for 20 years and we don't prosecute a 15 year old for sending a selfie), (b) a vigorous clemency program (a la the previous Md. GOP gov) and (c) a serious monitoring of those who are on parole etc.

I am an advocate of vigorous responses to malum in se serious crime--I have profound concerns over the overcriminalization of many things. But I, unlike people like Obama, don't pick people who bring guns to drug deals to let go. And by the by, Doug, I've never noticed you harshly criticizing Obama or Clinton for their view on Citizens United--remember, that involved criminal penalties for writing something that a prosecutor could prosecute.

Posted by: federalist | Oct 30, 2015 10:23:23 AM

federalist, I have flagged my concerns with serious underpunishment repeatedly in the context of drunk driving. That has long been the focal point for my underpunishment concerns because, statistically speaking, drunk drivers seem to me to be the most dangerous of repeat offenders who are most consistently underpunished. Do you disagree with this basic assessment of which particular type of offenders do the most harm after being serious underpunished?

As I have also stated (seemingly to your dismay), I think we can and should always try to learn a variety of public safety lessons from the other types of underpunishment cases you are eager to flag in this space federalist (and that the folks at C&C often flag). But when I look at our criminal sentencing laws, I already see too many tendencies to push toward overcriminalization and overpunishment in response. That is why Weldon Angelos faced over 100+ years for committing acts in Utah a decade ago that are not dissimilar from what thousands of folks are doing now compliant with state law in Colorado and Oregon and Washington.

In this way, before I truly understand you lack of sympathy for Weldon Angelos, I need to better understand why you think he committed a "serious harm" more than, say, the 20-something discussed in this local article picked up for his FIFTH DUI with a baby in his car and a BAC more than twice the legal limit: http://www.kare11.com/story/news/crime/2015/04/07/repeat-drunk-driver-arrested-again-baby-in-car-benjamin-burns/25412619/. All the evidence suggests that this fellow poses much more a risk to innocent persons than Weldon --- both based on his current crime and likely future crimes --- and yet we never see an example of a repeat drunk driver getting decades in prison unless/until he kills someone.

If Weldon killed someone, even accidentally, I would understand your assertion that he committed a serious harm and that concerns about overpunishment are misplaced. But unless you think mere marijuana dealing or simple gun possession poses a huge threat to innocent lives, I fail to understand your contention you are only focused on serious harms.

The irony here, especially in light of your eagerness to rail on Justice Kennedy, is that modern extreme drug sentences might have been usefuly reigned in if Justice Kennedy did not take a pro-government view of all this by upholding a mandatory LWOP for mere drug possession on Harmelin 1991. In my view, Kennedy's Harmelin opinion is the ultimate example of the judiciary allowing states to always prioritize excessive overpunishment through mandatory exteeme incarceration even for non-violent drug offenses without any concern for a constitutional check. I think a lot of his more recent votes/opinions in cases like Plata/Graham/Miller are reflections of his realization that he really blew it in Harmlemin and that he bears some constitutional responsibility for modern mass incarceration.

As notable in this setting is that Kennedy's 2003 ABA Speech to the ABA made the first big important pitch for vigorous clemency before doing so became hip: http://www.supremecourt.gov/publicinfo/speeches/viewspeech/sp_08-09-03

In many ways, I think you and Justice Kennedy see the world in similar ways (as his Citizens United vote suggests), but he has been more moved to date more by concerns of government overreach than you have been, federalist.

Posted by: Doug B. | Oct 31, 2015 12:58:22 PM

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