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February 16, 2016

Vetting Judge Jane Kelly: should sentencing fans be rooting for her to be Prez Obama's SCOTUS nominee?

48415631EBecause I always look at big legal issues through the lens of sentencing, and especially because the last four US Supreme Court appointments have been filled by persons who previously worked as a prosecutor and/or the US Department of Justice, I keep being drawn to one name on all the SCOTUS short-list stories because of her extended service as a federal public defender: Jane Louise Kelly.

I am pretty sure I have never met Judge Kelly, and I am very sure that I have no firm basis to predict what kind of Justice she would likely develop into over the course of he service on the Court.  But because professional choices and experiences always shape jurisprudential perspectives, and especially because Judge Kelly's two decades as a public defender would surely gave her an especially keen understanding of the doctrines and practicalities of federal criminal law, I keep thinking she should be a top choice for sentencing fans.

There also would seem to be possible political advantages to Prez Obama nominating Judge Kelly.  Most notably, she was unanimously (and quickly) confirmed by the Senate three years ago wth the backing of Senate Judicary Chair Charles Grassley.  (This Blog of Legal Times article provides the back-story on how that became a reality.)   Her Indiana birthplace and Iowa-based career would help diversify the Supreme Court geographically (and would enable Prez Obama to make much of an interest in ensuring "mainstream midwestern values" are represented on the Court).  In addition, the only apparently newsworthy aspect of her personal background that I could find, apart from her educational and professional history, was that she was violently attacked while jogging in Cedar Rapids back in 2004.  Her status as a crime victim could perhaps blunt any GOP criticisms that as a Justice she might be problematically biased toward criminals rather than victims.

This all said, because I have no direct experience with Judge Kelly and have not yet even taken time to try to review all of her recent work on the Eighth Circuit, perhaps I am much too quick to assume that her profesional background should make her a top choice for sentencing fans.  Thus the title of this post:  I would be eager and grateful to hear from readers (either via the comments or some other means) with any informed assessments of Judge Kelly.  I assume there are dozens, if not hundreds, of Iowa lawyers who have regularly encountered Judge Kelly professionally, and I am hopeful some of this number will chime in to provide a fuller picture of this notable short-lister.

Prior related posts on new SCOTUS nominee possibilities:

February 16, 2016 at 10:14 AM | Permalink


Doug, likely she would be a 5th vote to overturn Citizens United, which, as you know, entails criminal prosecutions for speech. Shouldn't that be a deal-breaker for someone who thinks that releasing murderers early shows our (self-flagellating, in my view) commitment to freedom?

Posted by: federalist | Feb 16, 2016 10:41:35 AM

I am not familiar with her decisions on the 8th Circuit. However, there are several things wrong with the present eight persons sitting on the Supreme Court now. All hail from Harvard or Yale. Five of eight are from the New Yorkie Connecticutt cut of the U.S. Two from CA and Clarence from PinHead GA. None ever represented a defendant in a criminal trial. One tried cases in trial court. All were clerks and government peons.

We need a Hugo Black, or an Earl Warren.

Posted by: JackMehoff | Feb 16, 2016 10:50:32 AM

How do you know, federalist, that Kelly would be a 5th vote to overturn CU? I would hope those who care about freedom have a robust view of the 1st A, and I am not even sure Kagan is a sure vote to reverse CU.

Posted by: Doug B. | Feb 16, 2016 11:28:30 AM

Doug, Kelly's political bonus points (Grassley's affection, past as a federal defender) do not outweigh her lack of distinguished legal scholarship (although this was also true of David Souter and Clarence Thomas). Her meager record on the Eighth Circuit has been quite superficial, and at times openly flawed to the detriment of federal criminal defendants.

Maybe she would mature on the bench as others have... but only maybe.

Posted by: d | Feb 16, 2016 11:29:19 AM

I'm intrigued at the prospect of Judge Kelly's nomination, too.

She has recused herself from a lot of cases. A Lexis search for "Judge Kelly did not participate" in the Eighth Circuit turns up 94 cases from March, 28, 2014 (her confirmation date) to the present.

In the cases she has decided, though, she is not surprisingly on the side of the accused, the convicted, and the incarcerated. In Newmy v. Johnson, 758 F.3d 1008 (8th Cir. 2014), she writes a concurrence to express concern about the Eighth Circuit's overly broad interpretation of Heck v. Humphrey. In the more recent Saylor v. Nebraska, 2016 U.S. App. LEXIS 1459 (8th Cir. Jan. 29, 2016), she dissents on the side of a prisoner plaintiff who was refused treatment for PTSD by the Nebraska Dept. of Corrections. In several death penalty cases, she has voted (often in the minority) for a stay of execution or a rehearing en banc. With respect to sentencing issues in particular, her concurrence in Thompson v. Roy, 793 F.3d 843 (8th Cir. 2015) is most telling. While she was bound by circuit precedent that Miller v. Alabama did not apply retroactively, she writes separately to announce, "Had the issue been presented to this panel as a matter of first impression, however, I would follow the holdings of those courts that have considered the issue and concluded the rule announced in Miller applies retroactively to § 2254 petitioners on collateral review." A footnote cites 14 cases on her side.

I hope President Obama will nominate her.

Posted by: Rob P | Feb 16, 2016 11:40:57 AM

Rob -- That doesn't really make sense to me. Are you sure the Lexis search wasn't just turning up en banc denials that were called before she arrived on the court? I think the typical practice is for a new judge not to participate in those. A court of appeals judge normally would not sit on a panel on the first place if she was recused, so I don't know why 94 ordinary cases would contain that language.

Posted by: anon | Feb 16, 2016 11:45:49 AM

You're correct, anon. They are petitions for rehearing, not recusals. I wasn't aware of that quirk and assumed wrongly. My apologies.

Posted by: Rob P | Feb 16, 2016 12:06:24 PM

"How do you know, federalist, that Kelly would be a 5th vote to overturn CU? I would hope those who care about freedom have a robust view of the 1st A, and I am not even sure Kagan is a sure vote to reverse CU."

Neat trick--but I think we all know that Obama would intend to appoint someone who would be that 5th vote. So, I think that a freedom-loving person like you would think an Obama nominee a deal-breaker on that basis alone.

Posted by: federalist | Feb 16, 2016 12:34:20 PM

Her votes for stays are disqualifying.

Posted by: federalist | Feb 16, 2016 12:35:24 PM

Rick Hasen in his latest book argued Prof. Kagan was wary of certain types of campaign finance laws. "Citizens United" [which involved requiring corporations to give to campaigns via PACs] as he noted in his book as well covers a lot of ground & could have been decided to uphold the rights of the group in question without the broad application in later cases, including in the Arizona case that seemed to FURTHER free speech by public financing. Before it, under the old rules, broad campaign finance funds were allowed, much more in fact than other countries. So, we are talking about a matter of degree.

I appreciate this blog highlighting Jane Kelly. Others are suggesting she would be a good choice too. I like she is from the Mid-West as well. She went to law school with Obama. So, has a connection to two key players. The defense angle is good too, but she is also a crime victim. I'm intrigued and would also like to learn more about her other positions.

Posted by: Joe | Feb 16, 2016 12:39:32 PM

The views of those like federalist ("her votes for stays are disqualifying") would scuttle her in the Senate.

Posted by: sagebrush | Feb 16, 2016 1:09:59 PM

Joe, as usual, you obfuscate instead of clarify. CU involved a criminal statute which would punish people for speaking about a presidential candidate. Talking about "matter[s] of degree" is deceit. You guys have to deceive in order to get around this issue--group of people organize in corporate form and decide to make a video about Hillary, then go to jail. I would think that the risk of this happening--i.e., people punished for political speech, would be enough to make anyone pause over this guy getting any more SCOTUS appointments, but no. You add to your shame by your weak posts.

Posted by: federalist | Feb 16, 2016 1:34:49 PM

The problem is that she is yet another Harvard grad. Everyone currently on the court is a Harvard or Yale grad and every President in the last 30 years has been a Harvard or Yale grad.

When is this going to stop?

We are a country of almost 400 million being dominated by a minuscule educational elite. There is a lot of hoopla about the 1% but the top positions are regulated to the .00001%.

Stop this madness.

Posted by: Daniel | Feb 16, 2016 1:35:44 PM

Speaking of freedom:


Posted by: federalist | Feb 16, 2016 1:56:30 PM

I said "could have been decided to uphold the rights of the group in question without the broad application in later cases." So, the result of the opinion can be right (fwiw, I'm inclined to think it was) w/o using the breadth of its reasoning.

To quote the first sentence of the opinion:

"Federal law prohibits corporations and unions from using their general treasury funds to make independent expenditures for speech defined as an “electioneering communication” or for speech expressly advocating the election or defeat of a candidate."

Query if the opinion "obfuscates" by not merely saying "group of people organize in corporate form and decide to make a video," but specifying just what is at stake.

The dissent also starts by explaining various ways, without anyone "going to jail," the group could have put out the video. And, Rick Hasen in his book in more detail describes the point. He also notes how the Supreme Court upheld a rule (supported by multiple CU advocates) blocking a Canadian from even spending fifty cents at Kinkos for an Obama flyer.

Finally, the majority upheld disclaimer and disclosure provisions. A group of people who organize in corporate form to decide to make a video without them would break the law. As Prof. Marci Hamilton, a conservative in various respects once noted:

"What could be wrong with such rights, you ask? I am now going to repeat what I tell my Constitutional Law II students every year: You think you know what the “freedom of speech” means? Let me be blunt to save us a lot of wasted time: you don’t, so get to work. It’s complicated."

As with federalist this time finding a crime victim he thinks should be opposed.


Posted by: Joe | Feb 16, 2016 2:07:23 PM

ETA: Actually, Stevens et. al. "concurring in part and dissenting in part."

Posted by: Joe | Feb 16, 2016 2:09:32 PM

People are complaining that Supreme Court appointees are always from Harvard and Yale. I agree with these folks to the extent that graduates from Yale are overrated. Clearly, however, the very smartest folks in the country are Harvard graduates. Thus, it is entirely appropriate, if not mandatory, that any future Supreme Court nominee be a Harvard Law graduate!

Posted by: Harvard Grad and proud | Feb 16, 2016 3:15:29 PM

good grief Joe, you wrote that it involved requiring corps to give to PAC . . . .

Basically, a group of people wanted to make a video about Hillary, and there was a criminal law preventing them from doing that. Why don't we start by getting that right? You want to obfuscate etc.--be my guest--you shame yourself and show your ignorance.

Doug, it appears, will tolerate the limitations on speech or tolerate a serious threat to it, but wants us to release murderers to show how committed we are to freedom.

First Amendment issues can be complicated--but they are not always complicated. Criminalizing political speech cannot be a part of any society that considers itself free.

Posted by: federalist | Feb 16, 2016 4:51:45 PM

A group of people could "make a video about Hillary." The case was more complicated than that. I expanded my quick reference to show this.

If the video doesn't have the proper disclaimers and disclosures? The Supreme Court STILL prevented them from putting it out. If the "group of people" aren't citizens? They STILL can be prevented in certain ways from putting it out. federalist should fight bigger game than little ole me if "limitations on speech" is the issue here. Of course, speech is not absolute & corporate speech is regulated in certain respects as is other people and speech. What a "serious threat" means is vague, but the non-citizen rule is a pretty serious limitation. It is allowed though. SCOTUS upheld a lower court opinion in fact without a substantive opinion on the point.

The majority opinion says: "They may establish, however, a “separate segregated fund” (known as a political action committee, or PAC) for these purposes." IOW, "it involved [a law] requiring corps to give to PACs."

I'll repeat myself. I think the result of Citizens United v. FEC was correct but the breadth of Roberts Court jurisprudence on this point, including involving public funding cases like one out of Arizona that FURTHERED speech is open to debate. Rick Hasen discusses this in his book. As to releasing murderers, Scalia wanted that too (or forcing children to face rapists in open court or not using evidence to prove whatever crime if obtained without proper procedures etc. etc.) if due process of law was not followed.

Posted by: Joe | Feb 16, 2016 6:03:08 PM

Federalist, I would respectfully encourage you to refrain from the type of ad hominem comments that deterred folks from posting on Doug's blog in the past. This is a very useful resource and we can all benefit from the comments. We don't have to agree but we can be civil.


Posted by: bruce cunningham | Feb 17, 2016 6:30:05 AM

Thanks, Bruce, for highlighting that federalist sometimes channels our now departed Supremecy Clause. I have come to think federalist might be a Trump advisor since both seem to prefer personal attacks over thoughtful discourse.

Posted by: Doug B. | Feb 17, 2016 7:22:31 AM

This blog is such a good forum for ideas and there is room for all to participate. I would always read Kent's posts and benefitted from them. Nobody has a monopoly on the "right perspective" but a few people can make posting thoughts unpleasant.

keep up the good work!


Posted by: bruce cunningham | Feb 17, 2016 7:34:38 AM

Bruce--I will call sophistry out. I will call lame arguments out. I have been the subject of naked ad hominem attacks, and you don't see me whining.

As for Joe, you can wriggle all you want, but the anodyne description of what was at stake in your original post was sophistry. The bottom line is that there was a criminal law sanction for people who got together (using the corporate form--I noticed you omitted that from your description of what I said) to make a video about Hillary. In other words, a statute criminalized political speech--saying that there may have been another way for them to do it obfuscates the fact that, apparently, four Justices of the Supreme Court were a-ok with people going to jail for criticizing a public figure. Why don't we start by getting that right?

The little crack about Scalia releasing murderers is a nice try--it is one thing when the Constitution (or some other law) requires the release of a murderer. Quite another when the make it up as they go along Justices create rights where none existed and then upset settled expectations. An incantation that the Constitution requires it just doesn't get it done. And it is amazing to me that you're cool with judges who can't see that restrictions on political speech violate first principles but are so clever as to divine the fact that the identity of the decisionmaker when it comes to release from prison (i.e., parole board vs. governor in a state where there is an unfettered power to grant clemency) matters from a constitutional standpoint. They are also clever enough to divine how the government could NEVER interfere with corporate speech like newspapers or radios or entertainment, but can criminalize political speech.

As for Doug, you're right, I am not really all that into civility. But I back everything I say with analysis. I don't talk issues to death like you do--I don't pivot. What I do is channel my inner Phillip II of Macedon and call a spade a spade. The bottom line is that it is incongruous for someone to yammer on about society's commitment to freedom but be outwardly agnostic about criminalizing political speech. But whatever--you want to whine about meanie federalist, go ahead and whine,

Posted by: federalist | Feb 17, 2016 8:59:22 AM

Alas, nothing deters federalist from his tedious, ad hominen posts. Like Trump, he seems to pride himself on being abrasive. I've often wondered about what type of law he, federalist, practices and whether he conducts himself in his practice the way he does on this blog.
Thanks for trying to encourage civility,Bruce and Doug, even if a la Trump such attempts seem only to produce even more tedious and incendiary comments from federalist.

Posted by: jiffypop | Feb 17, 2016 9:16:51 AM

Federalist, I am not whining. I am also happy to consider what comments you have to say, as long as you make the comment as seriously as I would take them. I assume you would like to persuade folks to accept your opinion, but your methods are getting in the way of your message.


Posted by: bruce cunningham | Feb 17, 2016 9:20:46 AM

I agree with Daniel. Harvard and Yale, Harvard and Yale, both are beyond the Pale. Palentate.

Posted by: JackMehoff | Feb 17, 2016 9:41:12 AM

"for criticizing a public figure"

I will again quote what federalist said (the corporate form thing, e.g., was quoted) ... Citizens United isn't merely about that. I explained this a few times and like people on the left simplifying talking about corporations apparently suddenly having rights or something, it's the usual confused trope, mixed with vitriol and the like.

I shouldn't have responded but recently read the Rick Hasen book and it was on my mind.

Posted by: Joe | Feb 17, 2016 10:04:10 AM

"A group of people could 'make a video about Hillary.' The case was more complicated than that."

Joe, that's what you said, so my comment about excising the corporate form was correct. As for confused trope, that's ad hominem if I ever saw it--problem is that it doesn't disprove anything I've written here. You try to blunt the threat of a 5th vote to overturn (or severely limit) CU by saying "Well, gee it's complicated." Well, the principle isn't. Like I said, and you haven't refuted this, a group of people chose to organize themselves in the corporate form and there was a criminal statute on the books that prevented them from making a video about a public figure. That CU may have been about more is (a) besides the point generally and (b) besides the point specifically---if Obama gets to replace Scalia, there is a significant threat that such a replacement would, in fact, be a fifth vote to overturn CU and allow such statutes to be enforced (i.e., statutes that criminalize political speech). My point to Doug was that someone who talks in terms of showing our love of freedom to lessen sentences on violent criminals should be outraged that the core freedom to make political speech is under threat. But of course he's not.

Bruce, everything I wrote in this post is entirely consistent with everything I've said above. Joe serves up obfuscation, and I called him out on it. And, by the by, I feel zero obligation to be civil to those who justify the theft

Posted by: federalist | Feb 17, 2016 11:55:52 AM


The great Clause has departed? Does that mean dead or merely got sick of this blog?

Posted by: Daniel | Feb 17, 2016 12:08:30 PM

Professor Berman (Doug),

For what it may be worth, I strongly agree with you. See Richard G. Kopf JUDGE JANE KELLY AND TRUE DIVERSITY ON THE SUPREME COURT, Fault Lines (February17, 2016).

All the best.


[ADDITION by DAB: Thanks for the tip, Judge, and here is a link to those interested in hearing more from you on this topic: http://mimesislaw.com/fault-lines/judge-jane-kelly-and-true-diversity-on-the-supreme-court/6888]

Posted by: Richard G. Kopf | Feb 17, 2016 1:10:41 PM

federalist, I am curious where you get the idea that I am "outwardly agnostic about criminalizing political speech" or that I am not "outraged that the core freedom to make political speech is under threat." I am generally supportive of CU along with all other expansions of 1st A rights, especially in the political arena. To that end, I have long been against any legal spending limits on political speech (mostly because I think they are ineffectual and usually benefit lawyers more than the public), and I would always be against using criminal law to try to chill any such speech. (Notably, to this end, I do not take down political comments by others on my blog that some might think go too far in part because I do not want to contribute to the chilling of any political speech. And I certainly would be deeply troubled (and be eager to defend pro bono) anyone who was subject to criminal prosecution for political speech.)

In other words, I am not aware of any evidence that the "core freedom to make political speech is under threat." Do you know of people exercising this freedom who feel threatened by the criminal law? (I assume you do not think the guy in Texas who failed to pay his student loans for decades is engaging in political speech by failing to pay his debts.)

To the extent I see political speech/freedom is under threat, it appears to me a much greater in the form of felon disenfranchisement and other limits on the political activities (ranging from jury service to gun ownership) of those accused or found guilty of certain crimes. I trust you see, federalist, that I consistently express concern --- though I rarely get outraged about much of anything political --- about criminal restrictions on these kinds of political activities for certain persons.

Daniel: I think the "great [Supremecy] Clause" realized finally that I had come to agree with many commentors that his rants were too often diminishing the value of the comment space on this blog. Though I urged him just to tone it down to maybe one or two comments per thread, he instead decided he would just withdraw entirely.

Posted by: Doug B. | Feb 17, 2016 1:42:30 PM

Doug--lessee here, you have stated unequivocally in here that this nation should demonstrate its commitment to freedom by reducing the sentences of any number of violent criminals and serious criminals. Ok, fine. So what do I do--ask, hey Doug, if you're so jazzed about freedom that you think that a commitment to freedom means we should be reducing sentences on those who have intentionally done serious harm to their fellow society-members, then one would think that the overruling of Citizens United, which invalidated a law the criminalized political speech about candidates for federal office (i.e., public figures). Given President Obama's vociferous criticism of CU, it is plainly a threat that his next appointment will be a fifth vote to overturn CU, which means that Congress will be free to pass laws that criminalize (and hence chill) political speech, and those laws will be upheld by the reconstituted SCOTUS. Therefore, it is simply astounding that you can say, for everyone to see, that you are "not aware of any evidence that the 'core freedom to make political speech is under threat'" given that CU is directly in the sights of President Obama and he will nominate a SCOTUS Justice. It bears repeating, CU involved Congress' criminalization of political speech. And that criminalization was overturned by a bare 5-4 majority.

By the by, "felon disenfranchisement" is specifically approved in the constitution, and it cannot be forgotten that felons had a choice about their actions, whether or not they were freedom fighters--those whose rights are chilled didn't do anything to suffer the cold.

Amazing that you'll get worked up about felons not serving on juries, but will also engage in willful blindness with respect to criminalizing political speech. But hey, you'll tolerate that sort of judicial abdication, when there are Wendell Callahans to free.

Posted by: federalist | Feb 17, 2016 2:09:01 PM

federalist, this is tedious.

Posted by: jiffypop | Feb 17, 2016 4:22:12 PM

federalist --- lessee here: are you saying that a nation "conceived in liberty" (Lincoln's words) and in which children pledge a commitment to "liberty and justice for all" should not be concerned about having the highest incarceration rate in the world> Do you really disagree with my "unequivocal" view that a nation's incarceration rate says something about its real "commitment to freedom"?

On the CU front, you are right that I am/would be troubled by laws that criminalize political speech. That is one reason (of many) I am generally a fan of CU. It is also a reason I am not sure Justice Kagan would vote to reverse it, let alone some not-yet-nominated Scalia replacement. (Moreover, when it comes to freedoms and especially freedom from criminal prosecution that can chill political activity in the wake of Justice Scalia's departure, I am much more worried about Heller's future than CU --- in part because I find somewhat compelling the claims by some Second Amendment supporters that gun ownership/advocacy/use can be a form of political activity).

I am not engaging in "willful blindness with respect to criminalizing political speech," but rather just prioritizing the freedoms that seem to me most at risk in modern American society in light of our tendency to overuse criminal laws. Because I know of few persons who were ever really concerned about going to prison for political speech even before CU --- but, at the same time, know of many persons in prison for a long time for selling marijuana and/or for possessing a firearm under the wrong circumstances --- the possible fate of CU is, for now, relatively low in my freedom concerns. That might change in the years to come, though this discussion ultimately reinforces my hope that whomever is the next person to join the Supreme Court will have a deep commitment to all sorts of American freedoms.

Posted by: Doug B. | Feb 17, 2016 5:45:10 PM

federalist --- lessee here: are you saying that a nation "conceived in liberty" (Lincoln's words) and in which children pledge a commitment to "liberty and justice for all" should not be concerned about having the highest incarceration rate in the world> Do you really disagree with my "unequivocal" view that a nation's incarceration rate says something about its real "commitment to freedom"?

Actually, my reaction to your position is more of "It's not even wrong." Why, because you don't deal with the critical question of why. Generally speaking, you have to know that people don't wind up in the state pen or federal pen without having committed some heavy duty crimes--there are exceptions, of course, and as you know, I find the idea of imposing serious time for non-serious crimes repulsive. Of course, you have the issue of over criminalization (the law at issue in CU obviously is overcriminalization), and I wholeheartedly agree with you that society that has over criminalization should have its fidelity to the idea of freedom questioned--whether or not the incarceration is high. By the by, another liberal justice would almost certainly uphold the sort of regulatory crimes, the existence of which does undermine the old saw "It's a free country."

You're a slippery one. You always talk about marijuana dealers and others---but what you hide is your desire to spring murderers and assorted other violent criminals. Given the obvious fact that too much lenience to violent criminals is antithetical to freedom (see, e.g., South Africa, Republic of), basically, your incantation of "freedom" to argue that we should be nice to violent criminals is, honestly, about as dumb as one can get. LWOP for a 16 year old triple murderer doesn't really say anything about society's commitment to freedom. Five years for one does though--and not in a positive way. (Two can play at that game.)

So the upshot is that you pooh-pooh the risk to the ability of all of us to conduct political speech, an unquestioned freedom, and you elevate the interests of assorted killers, drug dealers and others over our right to speak freely about Hillary Clinton. Color me skeptical of your commitment to freedom--rather, I think, that you'd be quite comfortable in a left-lib statist society where criminals were generally free to predate on people.

By the by, Doug, what about the freedom of over 50% of our society--how free were women in big-city America ca. 1984? Could women walk the streets alone, at night back then? To be a woman and have to do so was to live in utter terror. Our incarceration policies opened the streets up to women. Did it go too far in some cases---I am sure it did. But it also went not far enough in many others.

Posted by: federalist | Feb 17, 2016 8:08:36 PM

What is the basis, federalist, for your assertion that I want to "spring murderers and assorted other violent criminals"? You sure know (but always seem to ignore) that I want to get much tougher on drunk drivers (who kill/harm many more innocents than murderers assorted others), I am generally supportive of jurisdictions that choose to embrace the death penalty for murderers, and I advocate against overuse of criminal law for nonviolent offenders because it too often distract police and prosecutors from doing what is critical to identify and incapacitate true violent criminals.

Especially comical as you developed your distorted misunderstand of my views is the contention that I "elevate the interests of assorted killers, drug dealers and others over our right to speak freely about Hillary Clinton." Really? How? Because I see limiting all sorts of government power as essential to freedom? Again, point me to any single person who is seriously subject to (or even seriously concerned about) a taxpayer-supported prosecution for speaking freely about Hillary Clinton and I will work very hard to seek to undercut/limit/attack such a prosecution (and, notably, this is among the many reasons I support federal mens rea reform championed by some GOP folks these days). But until you identify a single such case of someone fearing taxpayer-supported prosecution for speaking freely about Hillary Clinton, I will instead continue to work to help the many thousands of people who seriously fear taxpayer-supported prosecution for seeking to buy or sell marijuana to help ill people or who face being subject potentially to decades of imprisonment for downloading the wrong dirty pictures on their laptops.

Finally, I find it useful to conclude by asking the "the critical question of why" you try so hard to deny the obvious links between the nature and application of country's criminal laws and its commitment to freedom. I surmise that you have a core retributivist instinct that makes you think it critical that persons you decide are evil ought to be punished for punishment's sake no matter what the impact on freedom or its contribution to "statist" tendencies. That is just fine for you, but I fear that such instincts, if not constantly tempered by an overriding commitment to freedom and to aggrassively checking the most extreme forms of government powers, creates far more long-term risks of statism than the "'rats" you love to attack.

Posted by: Doug B. | Feb 18, 2016 10:10:51 AM

What is the basis, federalist, for your assertion that I want to "spring murderers and assorted other violent criminals"?

Um, the fact that you supported laws providing for parole for LWOP juvies. The fact that you supported the early release of "non-violent" (funny how there's that word again) drug dealers like Wendell Callahan.

Speaking of comedy--this is priceless: "Because I see limiting all sorts of government power as essential to freedom?" Well, you believe in capital punishment (allegedly the most awesome power of the state) and dropping the hammer on drunk drivers. Somewhat self-contradictory.

In any event, Doug, I will avoid the rabbit hole. You have this belief in freedom--ok, so do I. You think that this belief leads means that if we as a society impose harsh punishments on people for even the worst of crimes then somehow we don't really have that commitment to freedom. That is, of course, balderdash, for any number of reasons: (1) overly lenient penalties impose costs on society that remarkably look like less freedom (I am talking in the broader sense, not strictly-rights based), see, e.g., NYC ca. 1984--the upshot of this, of course, is that even assuming your views, there's a goldilocks zone, which in turn means that it's almost certainly silly to tag someone on the right side of the goldilocks zone as anti-freedom and (2) your linking of freedom and our criminal justice is, to be blunt, simplistic--putting aside the over-lenience issue--whether society gives juvies (above a certain age) who have committed some awful crimes LWOP or some change at parole is really besides the point when it comes to society's freedom. Other aspects of the justice system are (or can be) linked to freedom and have a large impact on freedom---harsh interpretation of vague laws (e.g., the Lacey Act), bad science, overcriminalization etc.

I'll deal with the other stuff later. In short, I don't deny the connection between criminal justice and freedom--I am just better a secerning than you are.

Posted by: federalist | Feb 18, 2016 1:04:41 PM

What you are better at, federalist, is misunderstanding the critical difference between "harsh punishments" and "deprivations of liberty/freedom." I generally favor all sorts of "harsh punishments" that do not involve locking people in cages for excessively long periods of time, because doing so seems to me to be very costly and often ineffectual in addition to undermining a serious commitment to human freedom. Capital punishment involves the deprivation of life and my eagerness for "dropping the hammer on drunk drivers" involves an eagerness to use technology and economic sanctions and all sorts of other means to seek to deter and prevent the most common and consistent and predictable threat to public safety.

I never doubted that you see a connection between criminal justice and freedom --- your obsession early in this thread with CU dealing with a statute that included criminal sanctions makes obvious that you see a connection. What is so notable, though, is how quick you are to say that a society's commitment to freedom is not obviously at issue when a society uses the deprivation of liberty as its chief punishment and does so in extreme ways that have no comparable anywhere else in the world or really ever in human history. I hope you will enlighten me as to your grand thory about how a nation's freedom is to be understood without too much concern for how the nation denies freedom to its people through its criminal punishments.

Of course freedom can/does/should means so much more, but can you explain to me any way in which a nation's criminal punishments in the form of deprivations of freedome is not at least one part of an important metric in judging how free that society is? Or, put differently, if a nation wishes to be widely regarded as the "land of the free," isn't it a bit curious if they end up have the largest percentage of its citizen being forcefully deprived of freedom?

I will end here because it remains so clear that you are much more drive by commitments to punishment than to freedom. And that is fine, but it would be nice if you were willing to own it rather than try to play games with your own opaque accounts of what you think freedom "really" means.

Posted by: Doug B. | Feb 18, 2016 7:16:24 PM

eware of the pool, blue bottomless pool.

All I can say is wow. It's pretty clear that a society's criminal justice system does reflect on a society's commitment to freedom. And in other news, water is wet and beer tastes good. The problem with your position is that it proves far too much, and you sloganeer to make up for analysis. When you say things like "If a nation wishes to be widely regarded as the 'land of the free,' isn't it a bit curious if they end up have the largest percentage of its citizen being forcefully deprived of freedom?", I wonder if you haven't taken leave of your senses---are we talking North Korea? China? Saudi Arabia? And your little snark "isn't it curious" points up the basic flaw in your position-incarceration is by no means the only way freedom is deprived--see, e.g, women in Egypt and FGM.

But let's put your double-fault to one side. After all, it's not cricket to point out a laughable gaffe and walk away. So I'll take on your criticism of my "obsession" with CU. You expend a lot of energy talking about the fact that no one is prosecuting--well, guess what--there's a good reason--the law has been declared unconstitutional. But the danger to freedom--a bunch of incumbents passed this law to criminalize political speech, and when that went to the 9 judges, only 5 of them took a look at that and said NFW. And one thing is for sure--societies that criminalize political speech ain't free.

Bottom line Doug--you are willing to countenance an appointment that would put the right to make political speech at risk. And while people may not be prosecuted, the in terrorem effect is manifest. And when I look at your incantation of "commitment to freedom" to talk about why we should release people like Wendell Callahan or why we should give people who murder four at 16 a shot at parole.

Posted by: federalist | Feb 18, 2016 9:11:28 PM

I am glad we agree beer tastes good, federalist, and that actually is more of a revelation that your ground-breaking assertion that "incarceration is by no means the only way freedom is deprived." Not only is that obvious, I am rooting for a new justice who is committed to "political speech freedoms" AND crime/punishment "less incarceration freedoms". I surmise you, in contrast, desire a justice concerned about the first of these freedoms, but not the second. That is fine, but please own up to the reality that this is one form of freedom you do not think is important in modern American society (and, I surmise, is a form of freedom you hope a new Justice does not consider important).

Posted by: Doug B. | Feb 19, 2016 10:05:36 AM

Doug, you apparently don't get how much of a gaffe the quoted material was---you said that the land of the free (read, the United States) has "the largest percentage of its citizens forcefully [I think you meant forcibly] deprived of freedom." Hmmm. We're not anywhere close to the number of forcefully unfree of Egypt, Saudi Arabia (all women and Shi'ites), North Korea (99.99%). Face it, you said something dumb, so that's why I felt the need to point out that incarceration isn't the only way to take away freedom--in other words, I had to point out why what you said was gaffe-tastic.

But anyhoo, you want a Justice that is concerned about political speech freedoms (very unlikely given the nominator) AND one that is likely to take into consideration incarceration issues--well, on the front of overcriminalization, which is far more of an injustice than keeping Wendell Callahans of the world incarcerated for their original sentences, you're unlikely to get anything on that from this guy either. With respect to my views--I simply want Justices who follow the law, not recreate societal consensus based on their own policy preferences. And if that means less incarceration (e.g., because ACA is void for vagueness, so be it). (It may interest you that as an intern for an appellate court, I spotted an unraised issue that lessened some criminal's incarceration by 10 years.)

Apparently, you've learned nothing from what I've said in here about the linkage of freedom with the CJ system. For example, overcriminalization issues (e.g., CU or putting someone in jail without a mens rea basis) ARE very important in how free a society we have; or DA shenanigans or junk science . . . . or even prosecutorial discretion (i.e., why did Corzine not get prosecuted) . . . . or even post hoc impositions on RSOs who have long served their sentences, but whether or not we sentence armed career criminals to 10 years or 15 years isn't. And there is also something wrong with your incarceration rate is an issue analysis--if there are a lot of criminals, you should have a high incarceration rate.

You also completely missed the CU chill free speech issue. Weak.

And finally Doug, you completely fail to address the underincarceration issue and its effect on women in urban areas.

The sad thing is--you caricaturize my views, and I suspect you know it. Problem for you---you cannot make the same charge--I didn't call crack dealers freedom fighters. Isn't it funny--as biting as I can be in here, you're the one with the bombast.

Posted by: federalist | Feb 19, 2016 5:33:27 PM

Citizens United. A product of Harvard and Yale puds on the U.S. Supreme Court. Nuff said.

Posted by: JackMehoff | Feb 20, 2016 3:35:10 PM

federalist, your latest comments strike me as more dense than biting: you say "if there are a lot of criminals, you should have a high incarceration rate" right after you concede overcriminalization and DA shenanigans are threats to freedom. Do you not understand the simple reality that how crimes get defined and how DAs behave determines/defines whether a nation has "a lot of criminals"?

During alcohol Prohibition, the US had a whole lot more criminals because we decided wanting/making (good tasting) beer made someone a serious criminal. Today because of federal marijuana prohibition, we have at least 30 million folks engaged in federal crimes each month. Based on your facile "if there are a lot of criminals" claim, I guess I now see why you harp on underincarceration. (Jokes aside, I seriously wonder if your stated concern about prosecutorial discretion not to prosecute is meant as a criticism of the Obama Admin for not going hard after the thousands of major marijuana dealers now operating in public states like Colorado and Washington --- all of who are dealing much more MJ with guns around than did Weldon Angelos, who is still serving a 55-year federal prison sentence.

Especially mind-numbing here is your effort to lampoon the idea that how drug use/dealing is treated is connected to freedom a few sentences after stating overcriminalization is "very important in how free a society we have." Please know, federalist, I do not seek to "caricaturize" your views. I genuinely just want to better understand their foundation and to unearth whether there is real logic or deep contradictions beneath them. The only "logic" I keep finding is that you trust anti-drug warriors to define who is a criminal and should be put in cages but you do not trust anti-speech warriors (or anti-gun warriors?) defining who is a criminal and should be put in cages. By trusting some and not trusting others, you have plenty of fellow-travellers who persistently fail to understand that creating a big-government apparatus to go after the "bad" guys tends to grow government and a goverment that is always going to get to re-define who are the "bad" guys to serve their parochial interests --- e.g., Bernie Sanders claims he wants to reduce incarceration rates, but only after he says he thinks many Wall Street folks should be in prison for their "bad" behavior.

In contrast, I do not trust any government activities by either/any party whenever it involves the most forceful use of government freedom-deprivation power against its own citizenry: prosecution and imprisonment. In the realm of criminal justice (as opposed to civil regulation), my commitment to human freedom as a preeminent concern leads me to be eager to have crimes/criminals defined based on the most narrow version of JS Mill's harm principle and to cage people for extended periods only as a last resort form of punishment.

P.S. I think I meant to use the term "forcefully" because the decision by a government to prosecute an individual in criminal court and subject them to being locked in a cage is the most potent use of actual tangible force by a sovereign to prevent an individual from being free to enjoy the rest of their lives. True that women are not free to drive in SA; couples were not allowed to have multiple children in China; North Korea seems like a really ugly place on all sorts of mertics. But absent a criminal prosecution/incarcertation, even people deprived of some important freedoms in other nations still can freely make basic decisions about how to structure their lives on given day --- e.g., when/what to eat, whom to talk and make plans with, etc. Incarcerated persons are forefully and forcibly deprived of even these basic freedoms.)

Moreover, the very reality that here you bring up North Korea, China, and Saudi Arabia to make the point that the US is not the WORST country when it comes to all freedoms (a point which I agree with) reinforces my concern that the US, in part because of its broad use of criminal law and incarceration, is not the BEST country when it comes to all freedoms. I want the US to be the BEST country when it comes to all freedoms, which is why I want a SCOTUS justice who is deeply concerned about checking the work of other government braches involved in all deprivations of freedom in the US.

Posted by: Doug B. | Feb 21, 2016 10:59:03 AM

Hmmm, lessee. You wrote that the US had the most people who didn't have freedom. I point out that your words more accurately describe Egypt, North Korea, Saudi Arabia and other places, and then you say well, they don't incarcerate as much as we do. And now for the dense part--ever stop to consider that many of these places don't need to incarcerate as many due to fear---remember Doug, I've been mentioning "chill" in like 8 posts now? And I am not going to dignify this quote: "even people deprived of some important freedoms in other nations still can freely make basic decisions about how to structure their lives on given day --- e.g., when/what to eat, whom to talk and make plans with, etc. Incarcerated persons are forcefully and forcibly deprived of even these basic freedoms." Hmmm, Doug, tell that to an FGM victim.

"I want the US to be the BEST country when it comes to all freedoms, which is why I want a SCOTUS justice who is deeply concerned about checking the work of other government braches involved in all deprivations of freedom in the US." No, Doug, you just want the make it up as we go along judging that 'rat judges are famous for. And, pray tell, how can the US be the BEST country when it comes to freedom if CU gets overruled? There will be criminalization of political speech if that happens.

You call me dense because I agree that overcriminalization is a problem? Overcriminalization must not mean the same thing to us. And no, I am not getting into silly reduction ad absurdum definitional games. Suffice it to say that prosecuting parents for leaving a kid in a car when the parent is 20 feet away from the car is that. I am not talking about what you deem to be overly harsh punishments for gun-carrying drug dealers.

Of course you ignore the threat of underincarceration. Whatever.

Do you really think that DA shenanigans are any more than a miniscule amount of those in our prisons? If not, then that point is weak, and it doesn't even come close to proving me wrong, let alone dense.

At the end of the day, you do not like harsh sentencing regimes for malum in se crimes and you are willing to countenance power judging to see them undercut. You posit that these harsh sentences show that we aren't committed to freedom as a society. I think that sloganeering. For example, gee, if we have LWOP for juvenile murderers, we are losing our commitment to freedom. On its face, that is just dumb. Your commitment to freedom argument has tiny more force when it comes to drug dealing, but not much more. How free am I though, if I have to constantly worry that my kids will be exposed to drugs, and may, in a moment of weakness try something that could put them in a grave? You call people that would sell heroin etc. "freedom fighters".

Amazing what an ivory tower academic will do to defend silly things that come out of their mouths.

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