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January 18, 2016

Some still timely phrases from MLK's "I Have A Dream" speech for advocates of criminal justice reforms

King-Jrs-speech-I-Have-A-Dream-7Long-time readers likely know that I have long stated in this space that I think Martin Luther King, whom we all should take time to honor today, would have been concerned with criminal justice and especially sentencing issues if he had lived into the modern era of mass incarceration.  I also have a tradition of spending MLK Day listening to the full legendary "I Have A Dream" speech Dr. King delivered in the "symbolic shadow" of Abraham Lincoln in August 1963. And as I was listening to the speech this year, more than a few lines had a timely resonance in light of on-going efforts to move forward with modern criminal justice reforms. Here are some of the lines catching my ear today:

We have also come to this hallowed spot to remind America of the fierce urgency of now.  This is no time to engage in the luxury of cooling off or to take the tranquilizing drug of gradualism.  Now is the time to make real the promises of democracy....  Now is the time to make justice a reality for all of God's children.

It would be fatal for the nation to overlook the urgency of the moment.  This sweltering summer of the Negro's legitimate discontent will not pass until there is an invigorating autumn of freedom and equality....

But there is something that I must say to my people who stand on the warm threshold which leads into the palace of justice.  In the process of gaining our rightful place we must not be guilty of wrongful deeds.  Let us not seek to satisfy our thirst for freedom by drinking from the cup of bitterness and hatred.

We must forever conduct our struggle on the high plane of dignity and discipline.  We must not allow our creative protest to degenerate into physical violence.  Again and again we must rise to the majestic heights of meeting physical force with soul force.  The marvelous new militancy which has engulfed the Negro community must not lead us to a distrust of all white people, for many of our white brothers, as evidenced by their presence here today, have come to realize that their destiny is tied up with our destiny.  They have come to realize that their freedom is inextricably bound to our freedom.

One reason I have spent much of may professional career working on criminal justice issues is because I strongly believe that freedom is a preeminently important human value and that each and every American's freedom is, in many senses, inextricably bound to each and every other American's freedom.  These beliefs keep me ever engaged in the struggle for an ever-sounder criminal justice system, keep me ever committed to the "fierce urgency of now," and keep me ever eager to encourage all to seek to satisfy the thirst for freedom without "drinking from the cup of bitterness and hatred."  

With the echoes of this remarkable speech still in my head, let me conclude this honoring of Dr. King by providing links to some prior MLK Day posts (from both of my main blogs).  As always, readers are encouraged to add their own perspectives via the comments (and also encouraged to keep it civil in honor of one of America's great civil rights leaders).

January 18, 2016 at 01:45 PM | Permalink


Didn't MLK deplore the rate of criminality in the black community? I believe he gave a speech in St. Louis where he did. Remember too, one of the bitterest complaints about the apartheid system was that it failed to protect law-abiding black South Africans from criminals.

"One reason I have spent much of may professional career working on criminal justice issues is because I strongly believe that freedom is a preeminently important human value and that each and every American's freedom is, in many senses, inextricably bound to each and every other American freedom."

Yes, but it seems you are into the freedoms of criminals more than the freedom of law-abiding society to be free from the depredations of criminals.

Posted by: federalist | Jan 18, 2016 1:59:22 PM

Like many, I was taught to venerate that speech as a child. As the years have passed, I have found it more and more disagreeable. It is a speech rooted in the kowtowing of a slave to his master. It is rooted not in a thirst for equality but in a rejection of equality. Fundamentally, King is not making the argument that that justice is the right thing to do, he is making the argument that justice is the decent thing to do. More and more I see this speech as the perfect evidence of the claim made by postmodern philosophers that morality is based upon nothing more than "convention and anecdote".

To my mind the speech is morally treasonous, not because it is a plea for the wrong result but because it amounts to nothing more than cultural butt-kissing. I'm with the philosophers who say that morality cannot be left to convention and anecdote. Racism is wrong, it always was and always will be wrong. And its wrongness has nothing to do with blank checks or inherent human dignity.

for many of our white brothers, as evidenced by their presence here today, have come to realize that their destiny is tied up with our destiny. They have come to realize that their freedom is inextricably bound to our freedom.

Wrong. As recent history has shown they came because they felt sorry for your black ass. The weren't motivated by a sense of common destiny but by a sense of noblesse oblige--that by helping the poor black child they were making the world a less cruel place for their own kind, because they were tired of African American caterwauling.

I want to be perfectly clear here. I am not blasting King for what he said. This was exactly the correct way to approach the problem at that time. Too much violence would have destroyed the sympathy the white nobles had for the treatment of the black community at the hands of low-class whites. I'm disgusted by the fact that it took this intellectualized butt-kissing to get white people to do the right thing. That's why I find it disagreeable.

Posted by: Daniel | Jan 18, 2016 2:49:43 PM

federalist: part of my call for freedom-oriented reforms involves pushing for a new understand of who is a criminal and who is law-abiding. Indeed, the grand moments of much of American history highlights that concern for the "freedom of criminals" has been a driving force of American exceptionalism. The freedom fighters involved in the Boston tea party were, of course, engaged in criminality. So turn were slaves who sought to flee from the south to the north via the Underground Railroad. So too was MLK when he was in the Birmingham jail and so have been so many others involved in civil disobedience throughout American history. Indeed, much of human history shows that the first step to the diminishment of the freedom of all citizens is when a government start to prioritize some citizens' freedoms over others.

Daniel: I am curious if you think much has really changed over the last half-century? Do you expect the BLM movement to achieve much in this era without being involved in intellectual butt-kissing of some sort? Critically, in a democracy were political power always trends toward a majority viewpoint, isn't it likely that all minority concerns (racial, religious, economic, social) will have to be pursued through at least some efforts to kiss the butts of the majority of voters through some means?

Posted by: Doug B. | Jan 18, 2016 4:02:04 PM

Doug, you can do better than that. Are you really positing that crack dealers are engaging in civil disobedience? If not, why mention?

And as for this:

"Indeed, much of human history shows that the first step to the diminishment of the freedom of all citizens is when a government start to prioritize some citizens' freedoms over others." Um, so what? We are talking about people who, through their voluntary acts, have wronged society. Or more to the point, this statement actually buttresses points I've made--the people who are in favor of retroactive sentence reductions (other than those required by the Constitution--this is to nip your irrelevant Scalia sloganeering in the bud) favor the interests of criminals getting early releases--without much back-end checking--over the interests of the law-abiding. Your unstated idea that the interests of the criminal class need to be equal with that of the law-abiding (else the law-abiding's freedoms are being elevated) is preposterous. Now, obviously, we have Constitutional protections and notions of fairness and justice which preclude LWOP for DUI. That's what criminals are entitled to--not some idea that their interests (note I say interests, not freedom) are somehow equal to the society that they have wronged.

You claim to want this debate on a practical level. Your responses disprove that. I get it--if you did want to really debate this, you'd be open to iron-clad guarantees of far better back-end checking than is currently the case, but you can't actually come out and say this because this was an obvious problem all the while, and you'd look like you didn't think all this through and got seduced by the siren-song of "freedom" for criminals and being morally superior. So you engage in platitudes and silly absolutism. You cannot even come out and say that the release of a guy who had a history of serious recent violence should not have been released under a regime that was supposed to keep locked up those who pose a serious risk of violence. You can't even say that---face it Doug, you simply think that too many people are incarcerated (a simplistic idea if ever there were one) and that whatever it takes to get the numbers down is ok. That would be honest.

Posted by: federalist | Jan 18, 2016 5:26:33 PM

@Doug B.

Liberals overweight sympathy as a bulwark against cruelty. I simply do not believe there is any historical evidence that sympathy can carry the burden of liberal hopes over the long run the way they expect it to carry that burden. Sympathy has its limits--nurses call it "care fatigue". I've seen this today among responses to BLM activists. What more do these people want? Look at all those millionaire black athletes! We even have a Black president and yet they still complain! How much is enough?

So while I think MLK was shrewd in his strategy at that time I believe he sent the country on a perilous course because sympathy is not a stable domestic emotion. Why do you think Trump is getting so much mileage out of his 'ban the muslims' comment? People get tired. They stop caring. Forget about butt-kissing; they don't want the minority anywhere near them. And when a culture has eliminated any essential moral or intellectual foundation for its policies--as this country has--then there is nothing to hold back the tide of human cruelty that we have seen perpetrated in Bosnia and Rwanda.

Hell may indeed have no fury like a woman scorned but let me assure you that history has many examples that are not pretty of a majority that has run out of sympathy for a minority. Butt-kissing may work in the short run but fundamentally it shifts the argument onto a ground that is poisoned.

Posted by: Daniel | Jan 18, 2016 6:04:26 PM

federalist: I do considerable comparable some crack dealers in Detroit and weed dealers in Denver and gun dealers in Durango and bootleggers decades ago during Prohibition. These are all often small "businessmen" looking to profit by providing adults access to a potentially harmful product. They are all exercising a form of freedom that gives meaning to the first term in the phrase "free market," and you are thicker than I thought if you cannot readily appreciate that any and all criminal prohibitions of free market transaction among adults, though perhaps justifiable on other grounds, serve to diminish human freedom.

Speaking of being thick, I must be missing something when you say it is problematic to say the "interests of the criminal class need to be equal with that of the law-abiding (else the law-abiding's freedoms are being elevated)." Huh? Are you saying that treating the so-called "criminal class" as having lesser interests in freedom does not amount to elevating the fredooms of the law-abiding? And are you ignorant to the historical fact that the first move of most repressive regimes are to brand as "the criminal class" guilty of "wronging society" whomever they wish to oppress (whether Jews in Germany under Hitler or gays in Russia under Putin).

I surmise you operate with a kind of formalistic forfeiture approach to these matters: once any individual has violated a duly enacted law and thus "wronged society," her interest in freedom (and lots of other interests, I presume) are forever diminished. That is certainly a defensible moral view, but it puts huge pressure on giving blind respect to duly enacted laws, and also raises hard questions as to whether any violation of any law passed by any sovereign diminishes the transgressors interests in society. Should everyone who ever speeds or jaywalks be forever considered part of a "criminal class" deserving of less respect? Everyone who engages in underage drinking or marijuana use? And should this dimiinshed respect persist for past behavior even if society comes to view prior prohibitions as misguided (e.g., should all adulterers and/or those who engaged in "sodomy" before Lawrence v. Texas be subject to diminished respect)?

Unless and until you explain in some detail whose freedoms should be respected and whose shouldn't, I will continue to believe strongly that all adults' freedoms should be respected comparably. That does not mean we cannot and should not restrict freedoms in service to lots of other societal values, but it does mean that I still am inclined to respect the interest in freedom that Weldon Angelos and Scooter Libby and Martha Stewart in the same way I respect your freedom interests.

I am not trying to be "morally superior," but rather just trying to explain my own personal moral perspective. And I would now be very eager to hear more about and better understand your distinct moral perspective --- specifically, I am eager to how just you define who gets relegated to "the criminal class" and just how you think their seemingly diminished interest in freedom is to be understood and applied relative to the freedoms of the "the law-abiding." Thanks in advance for any further explanation of your views so I can better understand your different perspective on these important issues in our "land of the free and the home of the brave."

Posted by: Doug B. | Jan 18, 2016 6:52:07 PM

Interesting comments, Daniel, and I concur that sympathy has its limits. But I surmise the core aspect of your pessimissm is the view that "when a culture has eliminated any essential moral or intellectual foundation for its policies -- as this country has -- then there is nothing to hold back the tide of human cruelty." To me, the genius of the MLK Dream speech was its repeated to the "essential moral and intellectual foundation" of the USA as expressed in our founding documents and repeated in the Gettsburg Address four score and seven years later.

Indeed, as I perhaps poorly explained in my post here, I think a commitment to human freedom (and a kind of political equality) is the "essential moral and intellectual foundation" of the American experience, and I think that foundation gets stronger and stronger as we have over time, with fits and starts and some temporary back-sliding, enhanced humans freedoms and political equality throughout the last 2.5 centuries.

There are certainly times in modern America, whether due to sharp political rhetoric or incarceration data or broader disrepect shown to freedom by many important people in many spheres, that I worry about a diminishment commitment to what I see as America's "essential moral and intellectual foundation." But then, if I look a bit harder, I can usually find new rays of freedom shining through even as dark clouds seem to gather. But, then again, I tend to be a perpetual optimist when in comes to the USA.

Posted by: Doug B. | Jan 18, 2016 7:16:07 PM

"Should everyone who ever speeds or jaywalks be forever considered part of a "criminal class" deserving of less respect? Everyone who engages in underage drinking or marijuana use? And should this dimiinshed respect persist for past behavior even if society comes to view prior prohibitions as misguided (e.g., should all adulterers and/or those who engaged in "sodomy" before Lawrence v. Texas be subject to diminished respect)?"

Apparently my comments about absolutism didn't take. Really? The problem isn't the idea that there are some bedrock rights people (criminals or not) have or that criminals have rights that we're obligated to respect--the problem is that you posit that criminals (who have committed serious crimes--I am not talking about nonsense like unenforced laws) somehow should be on equal footing. That's obviously nonsense.

"I do considerable comparable some crack dealers in Detroit and weed dealers in Denver and gun dealers in Durango and bootleggers decades ago during Prohibition."

Wow. Amazing things that will be said in order to avoid admitting error.

Posted by: federalist | Jan 18, 2016 8:47:45 PM

@Doug B.

Postmodern liberalism has abandoned the "essential" character of human equality and human freedom in the American tradition. This was the entire point of Richard Rorty's famous 1985 essay on "Postmodern Bourgeois Liberalism". For the record, Rorty is the intellectual godfather of gay rights and Justice Kennedy's opinion in Obergerfell is full of this type of postmodern bourgeois liberalism. In fact, what Kennedy really tries to do in that opinion is reconcile the libertarian "freedom" tradition in American life with postmodern liberal assertions of "human dignity", rooted in human sympathy. I'd argue that in a more inchoate way MLK speech is trying to do the same thing.

So my pessimism is rooted in fact. It is people like Kennedy and Rorty who tell me point blank that in America dignity and freedom have no essential character. You might believe that freedom is essential to the American experience, I might believe that freedom is essential to the American experience, but the five justices who signed on to Obergerfell do not. This isn't because they hate freedom. It's because they believe there is nothing essential about the American experience.

There is a historical irony in that stance because Obergerfell is perhaps the most beautiful example of what WEB Du Bois called "double consciousness". For Du Bois, however, double consciousness was not an identity but represented a lack of identity. Postmodernism has turned his criticism of Black culture into a virtue--it is the fact that America has no essential identity that is America's identity. That is what five justices on SCOTUS tell me. That is what the person who has been called the greatest American philosopher of the 20th century tells me. So excuse me if I feel that I have every right to be pessimistic about whether a country that says the fact that it has no identity is its greatest identity can hold the line against human irrationality.

Posted by: Daniel | Jan 18, 2016 11:06:47 PM

MLK, Lawyer Dumbass Victim

In the 18th Century, everyone educated knows slavery to be wrong.

Slave owning, lawyer dumbasses decide a tax bite of 2% of GDP requires a violent revolution against Mother England. They kill 10,000 people and maybe much more, for a few lousy pounds. They come up with the masking ideology of freedom and individual liberties, when no one has any, except them.

The American Revolution was one of the greatest mistakes in the annals of lawyer stupidity. Had we stayed a British colony, slavery would have ended in 1833 not in 1863. It would have ended peacefully as it did around the world, and without a war. The race problem that took another 100 to resolve, in 1964, would not have taken place. We would be more like Canada and less extreme in every way.

Lawyer dumbass, James Madison, allows slavery to continue in the US constitution.

Lawyer dumbass, John Marshall, uses Article III to violate Article I, Section 1. This filthy crook invents judicial review just out his fevered imagination, in violation of a lot of law.


Cut to lawyer uber dumbass, Justice Roger Taney. This asshole of assholes, uses Marshall's fiction of judicial review, and cancels the Missouri Compromise that prevented war for 30 years, abrogates a ratified international treaty settling the border with Canada and prohibiting the spread of slavery. He then invents out of whole cloth substantive due process right in the Fifth Amendment, another stupid lawyer fiction. Lawyer uber asshole Taney sets off Bloody Kansas, and the Civil War shortly after.

Did any of you lawyer assholes in this blog study the Dred Scot decision in law school courses on Constitutional Law? Not a single one of you assholes knows anything about it. And what I learned about it in high school was erased from your stupid brains by the criminal cult indoctrination you willingly underwent.

Along comes, Mr. “Please, Do Not Sue Your Neighbor.” To his credit, Lincoln issues an arrest warrant to arrest Taney for treason, then to hang him. A lawyer in the room snatches it back from the Federal marshal's hand. He persuades Lincoln to not arrest a Justice of the Supreme Court. Taney then dies a slow painful death, of course, soon afterward. Lincoln's soldiers enter the courts of Maryland lawyer traitors and pistol whip the judges issuing writs of habeus for accused Confederate spies. These are beaten whether they needed to be or not, and flung in Civil War era prisons. So far so good.

However, Lincoln is often called the greatest President by the lying filthy traitor lawyer, but who is really the very worst President, bar none. Lincoln, lawyer, dumbass supreme, has a decision to make. He is proposed to buy the slaves, to declare the newborn free, and other peaceful options. This lawyer dumbass, a moron, a distance learner, chooses war. His decision kills 850,000 Americans in the most catastrophic decision in our history, worse than even the stupid lawyer decision to have an American Revolution. Lawyer Lincoln is executed by an actor, as he well deserved to be. I did admire the way the conspirators were rounded up, arrested, tried, and hanged within weeks. When the lawyer is killed, justice is swift and certain.

Two lawyers and a judge form the KKK. They initiate a campaign of genocidal terror, by beating and lynching hundreds of innocent black males in front of hundreds of witnesses.


How do you that and not go to jail? The local prosecutor and the judge have given the lawyer founded and run KKK absolute legal immunity. That's how. The Klan is a lawyer fraternal organization. However, it cannot operate so openly without the legal immunity of the local lawyer profession.

The Congress says, enough. They pass the KKK Act. The Army hangs dozens of these lawyer pieces of treasonous, genocidal filth. The KKK goes away. Blacks thrive in every field, without any stupid affirmative action or political correctness, just by their own enterprise, and accumulate well earned wealth and power. The self evident lesson? Hang a lot of lawyer scum, blacks will thrive.

The election of 1876 is far more unsettled and disputed than Gore v Bush. A deal is struck. Republicans get the Presidency, and the Army of Occupation is removed from the South. The lawyer founded and run KKK comes roaring back. Same deal. Kill thousands of black in public lynchings, and nothing happens to the lawyers because their pals, the prosecutors have granted them immunity to do so. Blacks lose all their hard earned gains.

The Supreme Court allows Jim Crow laws. Had they allowed the market to be free, discrimination would be punished by ruination. If I do not want a third of the population in my restaurant, and my competitor across the street does allow them, I go out of business for discrimination. But lawyer passed laws had it so no white restaurant could accept black customers.

Cut to World War II. The lawyers elites have been soldiers against racist Nazi government. They saw that black soldiers did their part, return home, and get treated as the Nazi would have. These geniuses figure, this is not right. Meanwhile, reverend King studies the methods of lawyer super dumbass Mahatma Gandhi, admirer and good pal to Adolf Hitler. That asshole did not cause the deaths of 850,000 as our asshole, Lincoln, did. By getting rid of the British, he set off the ethnic cleansing and the killing of tens of millions of Hindu and Muslim Indians. Their lawyer assholes make ours look like geniuses.

So, MLK tactics pressure the lawyer dumbass to pick up the pace. The oppressive Civil Rights Act gets passed, in total violation of the Free Association Clause of the First Amendment, the due process clause of the Fifth Amendment, and the Equal Protection Clause of the Fourteenth Amendment. But political correctness, which is always lawyer job generating case, prevails. These violations are ignored.

MLK is assassinated by whom? James Earl Ray, the spawn of an ultra-violent career criminal, is himself a career, violent, super-predator. He should have been executed shortly after his fourteenth birthday. Instead he is protected, privileged, and empowered by the rent seeking, pro-criminal lawyer dumbass, despite committing thousands of violent crimes. This subhuman is allowed and enabled to kill a great leader, a non-lawyer, by the lawyer dumbass.

You disgusting lawyer traitors are not through with black people. Your vile feminists lawyer set about the destroy the black family, so big government may replace it. It took the lawyer founded and led KKK 100 years to lynch 5000 innocent black males. That is now the excess number of murders of black males every single year. The vile feminist lawyer and its male running dogs is 100 times more deadly to black males than the KKK. Now the vile feminist lawyer and its male running dogs are coming after the white family. All the social pathologies of the black population will now visit the white population because there are no genetic difference in behavior between the races.

Meanwhile, I live in a lawyer neighborhood only 5 miles from an extremely dangerous black ghetto. No crime. Welcome to Switzerland and Japan. The death penalty is at the scene for anyone not getting the memo. The lawyer is looking out for itself, and only for itself.

The lawyer profession has been, and continues to be the greatest enemy of the people of MLK.

Posted by: Supremacy Claus | Jan 19, 2016 12:20:27 AM

federalist: it seems you are much more eager to launch criticisms than to try to provide any explanation for your (still confusing) expression of your gut feelings concerns whose freedoms should and should not be a basis for concern.

This main post is about human freedom, and you criticized my concern for the "freedoms of criminals." I then noted that governments eager to diminish human freedom often brand the disfavored "criminals" to deny them (and others) freedom. You retreat in response, intimating that some branded as "criminals" have freedoms that merit concern (like MLK, I suppose), and that you are only assailing having concern for freedoms of "the criminal class" who "wrong society." But I do not understand how that is a meaningful distinction. Bootleggers in the 1920s, like today's weed dealers or unlicensed gun sellers, are all considered to have "wronged society" by failing to follow duly enacted federal criminal laws.

When I seek further explanation as to which criminals' freedoms you think I should or should care about, you add that you mean only those involved in "serious crimes ... [not] unenforced laws" as if this distinction somehow clarifies matters rather than just showing you are making this up as you go along to account for your gut feelings. We are left to wonder if, for example, shoplifting, DUI, domestic assault, buying/selling a gun without a license, small-time marijuana (or crack) dealing, or major lying (e.g., Martha Stewart/Scooter Libby/Bill Clinton) qualify as "serious crimes" or if instead the millions of Americans arrested and prosecuted for these types of crimes are able to avoid your "criminal class" label? I suppose we can ask for your gut feeling in each case, but I generally prefer the rule of law to the rule of federlist in important settings.

Let me keep it simple, in the hope I might still get some clearer understanding of your views: can you explain just how and why you see a small-time cocaine dealer today as so obviously different than, say, a small-time weed dealer (today or in the 1950s when a first-offense for marijuana possession carried a minimum sentence of 2-10 years) or a small-time bootlegger in the 1920s. I surmise you think it is obvious I should forever care much less about freedom of the small-time cocaine dealer today than about the freedom of the others, but some more explanation of how and why you see these figures as so obviously different will perhaps help me see what I am struggling to understand in your criticisms of my concern for the "freedoms of criminals."

Posted by: Doug B. | Jan 19, 2016 12:45:51 AM

Daniel: I will not question your view of postmodern liberalism, or of Richard Rorty's account of it or your reading of Justice Kennedy's opinion in Obergerfell. But I readily will question whether what Kennedy and Rorty have to say defines America is any more accurate or certain than what the Justice Holmes said in Buck v Bell to echo eugenic philosophers of a century ago.

I say this not to deny, Daniel, your claim "that you have every right to be pessimistic about whether a country that says the fact that it has no identity is its greatest identity can hold the line against human irrationality." But I say it to highlight that few paths in American (or human) history seem to me to be certain or even reasonably predictable.

Posted by: Doug B. | Jan 19, 2016 12:59:00 AM

Prof. Berman. Let's keep it simple. Find a small time drug dealer. Try to sell the same product in his territory. Report back.

That is the impetus for the Mandatory Guidelines, the massive increase in the murder rate caused by the crack epidemic and its profitability. See the movie, American Gangster, if you do not want to do the experiment. Based on a true story.

The funniest, most shocking part of that movie, no one has mentioned or even noticed. The ending. You have an incorruptible police officer. He turns in a suitcase from the trunk of a car containing $2 million in cash. He cannot be reached. He is therefore picked to head the task force, and takes down an entire division of NYPD, as well an entire black mafia. Rare individual.

He attends law school at night, passes the New Jersey bar. Frank Lucas is sentenced to multiple life terms, and his murderous rampages have not been indicted yet. So this incorruptible police officer becomes a lawyer. We see him, at the end, getting Frank Lucas out of prison in his appellate practice, and their walking around together, now friends, likely because offered him $million to get him out. I threw food at the screen seeing that for the first time.

Posted by: Supremacy Claus | Jan 19, 2016 1:43:06 AM

Doug, you're playing silly definitional games while equating crack dealers with the Underground Railroad. I foolishly entered the thicket of your position that criminals' freedom (which you seem to take to mean freedom from incarceration) is somehow on an equal footing with the interests of society. The whole thing is ridiculous--let's take murderers--any freedom from incarceration would be a matter of grace (from a normative standpoint)--obviously, other crimes have a different calculus.

And no, I didn't retreat--that's so silly--that I want to talk about serious crime, not consensual sodomy isn't a retreat, it's a focus on what's really important---you want to play these deconstructionist games to try to tease out what--that I don't know, and cannot fully know, the proper balance to be struck with respect to any criminal transgression? And for what--to somehow defend the ridiculous idea that (a) criminals can actually persecuted so therefore we, as a society, have to release serious felons early to prove up our commitment to not persecuting criminals and (b) that the interest of the law-abiding in freedom from incarceration is somehow equal to the interest of criminals? The caveat to (b), of course, is that where society goes way too far (a judgment call) then the interest in freedom of the criminal approaches that of the law-abiding. Getting into crazy deconstructionist nonsense to justify your opinion doesn't get it done. You want to criticize me as coming from the gut (of course, you didn't want to debate the actual law governing what Gleeson did)--but even if that's true--you posit that the incarcerated's freedom to walk around in society is a strong as the law-abiding. That cannot be right.

Posted by: federalist | Jan 19, 2016 9:15:19 AM

federalist, I am not playing "silly definitional games" at all, I am just contining to try to better understand your initial criticism that I ought not be so concerned about the "freedoms of criminals." I explained that my concern for the "freedoms of criminals" is rooted in the long history of governments using the label "criminal" to justify all sorts of widespread denials of freedom, and so I hoped to hear who exactly are the "criminals" whose freedoms you do not think I should care so much about.

You used the term "criminals" (and then "criminal class") as if it should be obvious who you are talking about, and all I keep trying to understand is just who you are talking about. I genuinely want to know, are you talking about marijuana dealers in Denver? All (most, some, a few) drunk drivers? Scooter Libby and Martha Stewart? I think all humans' freedoms are important, but you seem to say I am wrong for caring about (a few, some, all?) of these "criminals."

So, I keep asking if you mean all criminals, and eventually after trying to dodge this basic question, you suggested no, only "serious criminals." I then asked who are "serious criminals" and you make no effort to help me understand what you mean, but your prior references to crack dealers and now to murderers continue to leave me to worry, yet again, that you cannot provide any kind of clear and defensible account of the scope and meaning of your initial criticisms and thus will continue to avoid answering what should be simple questions about the meaning of the very terms you used to attack my concern for human freedom. Sigh, I guess I should give up trying to actually understand what you mean and just treat you more like SC whose feverish attacks I have learned to just ignore.

Posted by: Doug B. | Jan 19, 2016 10:00:34 AM

"Yes, but it seems you are into the freedoms of criminals more than the freedom of law-abiding society to be free from the depredations of criminals."

That's what I wrote--you transmogrified it into me taking you to task about not being so concerned about the "freedoms of criminals." Obviously, you cannot mean constitutional protections--since you and I are on the same page there--I never advocate for blowing off these protections. So what you are referring to is them getting out, and my criticism, which is correct, is that you seem to care far less about society which has to bear the predations of released criminals. I foolishly allowed myself to get into the your miasma of talking in terms of freedoms (which is obviously ambiguous when it comes to incarcerated criminals) and serious criminals. And so we get into the reduction ad absurdum which allows you to obfuscate your way out of ridiculous comments.

I don't know (don't really care) about the precise boundaries of serious criminals and not-so serious ones, as I am generally willing to defer to society's views on these things. What I do care about--three entirely preventable deaths. All you can muster is something along the lines of "well, to make omelets . . . ." But seriously, you advocate constant efforts to reduce sentences and pay little attention to the human wreckage that accompanies it, nor do you seem to care about the fact that criminals had a choice about what they did, whereas innocent members of society don't. You can dress up all your criminal friendly ideas as a commitment to freedom and try to make the case that crack dealers aren't really all that bad since they are akin to the Underground Railroad (truly offensive, by the by). But the bottom line is that people get hurt by policies you embrace, and that's certainly more of a freedom issue than whether we let out a crack dealer or some 16 year old animal who slaughtered a family.

Posted by: federalist | Jan 19, 2016 11:25:50 AM

federalist, if you are now asserting we are "on the same page" for constitutional protections of prisoners, I then struggle to understand why you attack my expressed views in cases like Montgomery and Plata. These cases are about whether and how the constitutional protections of prisoners should be given meaning through retroactive application of a new Eighth Amendment rule (Montgomery) and a congressionally authorized prisoner release order (Plata). Indeed, these cases are so challenging because we have to figure out how to balance the freedom interests of prisoners convicted of some VERY serious crimes with other interests, including public safety. I suppose I am pleased to hear you do not disagree with my take on prisoners' freedom interests in constitutional analysis, and I apologize that your prior attacks of my SCOTUS discussions led me to think that was what your attack at the start of this thread was partially about.

Turning to your latest articulation, you now say that you are assailing me because I "seem to care far less about society which has to bear the predations of released criminals." First, I wonder where exactly you see this in my expressions of concerns about human freedoms, and I still need to know which "released criminals" you think I am not concerned about with respect to their potential harm to society. I thought you had come to see that I worry a whole lot about the "predations" of released drunk drivers, who kill many more Americans than do released crack dealers.

And when you try to duck again explainnig key terms by saying you are "generally willing to defer to society's views," we get back to my first response that repressive regimes have a history of encouraging a society to view disfavored citizens and not-so-serious criminals as serious criminals (e.g., gays, socialists, bootleggers, weed dealers). (Also a big problem, in my view, is the tendency of some regimes also to encourage society to view what seem to be quite serious offenses (DUI, domestic assault) as not-so-serious.

I agree that many sentencing decisions can result in "human wreckage" and "entirely preventable deaths," but that is precisely why I often harp on drunk driving when the concern is public safety. Statistics continue to show me that better sentencing decisions in the drunk driving arena could result in much less "human wreckage" and "entirely preventable deaths," but I almost never see the usual tough on crime crowd talking about these cases.

Now you (and Bill these days) are understandably focused on the tragedy resulting from one drug offender's release. And because that tragedy is now very salient, I understand why. But, by the same measure, you seem to continue to want to ignore or disregard the people who get harmed --- and the potential harm to broader commitments to the value of freedom --- by the policies you embrace (which, again, I cannot even fully understand because you keep dodging my request that you explain how to distinguish a small-time cocaine dealer today from a small-time weed dealer or a small-time bootlegger).

I keep pressing a critical definitional point about WHICH criminals' freedoms you think I should care less about, because the more you say, the more it seems you agree with me with respect some part my human freedom concerns.

Indeed, I surmise by your telling use of the phrase "16 year old animal" that what is really in play here is your belief, federalist, that some people who commit certain crimes should not be treated or considered humans but instead should be treated and considered sub-human animals. The suggestion some humans are to be treated as "less than human" reminds me of the way repressive regimes have historically justified being repressive in certain arena. It also returns me to wanting to know who other than murderers do you think should be considered and treated as "animals" --- are repeat drunk drivers "animals" in your view? crack dealers? weed dealers?

I was previously inclined to give up on this thread; but your latest assertion that for prisoners' "constitutional protections [we] are on the same page" has me thinking our views, as we further explain them, may be more similar than even we realize.

Posted by: Doug B. | Jan 19, 2016 12:26:40 PM

@Doug B.

All fair points. I wasn't trying to dissuade you from your optimism, only to explain why I don't share it.

Posted by: Daniel | Jan 19, 2016 2:44:45 PM

Um, Doug, you and I disagree on what the Constitution requires, not that the constitution needs to be followed. As for Montgomery, um, don't see how that needs to be retroactive, even if one agrees with the underlying "constitutional" law.

All I am talking about is this idea of criminals getting out. All the other stuff is besides the point. I agree that drunk driving laws should be strengthened and that we should be looking at ways to ratchet up punishments. I don't know what else you want me to say---I've taken this position before.

My criticism of you has been very simple--you espouse this idea that releasing criminals proves up our commitment to freedom--I point out that you don't seem to care as much about the safety of society. You then try to drag me into some miasma of what constitutes a serious crime. Um, no. Not going there.

Second, you criticize me for calling some guy who slaughtered his friend's family an animal. Actually, he's worse, and in my view, death is really the only appropriate punishment. So forgive me if I don't think (a) a settled judgment should be ripped open for this guy and (b) you're morally obtuse for proposing some rule not required by the constitution to make the victim's family go through the hell of trying to keep this guy in prison. Sorry Doug, his interest in the naked power of 5 criminal coddlers on the Supreme Court shouldn't override the families' interest in repose. And yes, Doug, I remember the BS you espoused about re-sentencing being in the victims' general interests.

Posted by: federalist | Jan 19, 2016 6:22:41 PM

federalist, I think seeking to limiting deprivations of freedom "proves up our commitment to freedom." And I care plenty about the "safety of society," I just do not think historically high and costly incarceration and extreme criminal enforcement of drug prohibitions contributes effectively in the long term to the safety of society. Indeed, I genuninely believe we could have more freedom and more safety if we improve our sentencing systems. That is both my hope and my goal.

Posted by: Doug B. | Jan 19, 2016 10:16:55 PM

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