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February 22, 2023

US Supreme Court, in 5-4 ruling, rejects Arizona's claim of proper state-ground basis to uphold death sentence

In an interesting little ruling in a state capital case, the US Supreme Court this morning in Cruz v. Arizona, No. 21–846 (S. Ct. Feb 22, 2023) (available here), rejected an effort by Arizona to preserve a state death sentence on procedural grounds.  The Court's opinion was authored by Justice Sotomayor and joined by the Chief Justice and Justices Kagan, Kavanaugh and Jackson. Here is how the Court's opinion starts and ends:

Petitioner John Montenegro Cruz, a defendant sentenced to death, argued at trial and on direct appeal that his due process rights had been violated by the trial court’s failure to permit him to inform the jury that a life sentence in Arizona would be without parole. See Simmons v. South Carolina, 512 U.S. 154, 161–162 (1994) (plurality opinion); id., at 178 (O’Connor, J., concurring in judgment). Those courts rejected Cruz’s Simmons argument, believing, incorrectly, that Arizona’s sentencing and parole scheme did not trigger application of Simmons. See State v. Cruz, 218 Ariz. 149, 160, 181 P.3d 196, 207 (2008).

After the Arizona Supreme Court repeated that mistake in a series of cases, this Court summarily reversed the Arizona Supreme Court in Lynch v. Arizona, 578 U.S. 613 (2016) (per curiam), and held that it was fundamental error to conclude that Simmons “did not apply” in Arizona. 578 U.S., at 615.

Relying on Lynch, Cruz filed a motion for state postconviction relief under Arizona Rule of Criminal Procedure 32.1(g). That Rule permits a defendant to bring a successive petition if “there has been a significant change in the law that, if applicable to the defendant’s case, would probably overturn the defendant’s judgment or sentence.” Ariz. Rule Crim. Proc. 32.1(g) (Cum. Supp. 2022); see also ibid. (Cum. Supp. 2017).

The Arizona Supreme Court denied relief after concluding that Lynch was not a “significant change in the law.” 251 Ariz. 203, 207, 487 P. 3d 991, 995 (2021). The Arizona Supreme Court reached this conclusion despite having repeatedly held that an overruling of precedent is a significant change in the law.  See id., at 206, 487 P. 3d, at 994 (The “‘archetype of such a change occurs when an appellate court overrules previously binding case law’”).

The Court granted certiorari to address whether the Arizona Supreme Court’s holding that Lynch was not a significant change in the law for purposes of Rule 32.1(g) is an adequate and independent state-law ground for the judgment.  It is not....

In exceptional cases where a state-court judgment rests on a novel and unforeseeable state-court procedural decision lacking fair or substantial support in prior state law, that decision is not adequate to preclude review of a federal question.  The Arizona Supreme Court applied Rule 32.1(g) in a manner that abruptly departed from and directly conflicted with its prior interpretations of that Rule.  Accordingly, the judgment of the Supreme Court of Arizona is vacated, and the case is remanded for further proceedings not inconsistent with this opinion.

The  dissent was authored by Justice Barrett and joined by Justices Thomas, Alito and Gorsuch.  It ends this way:

The Court makes a case for why the Arizona Supreme Court’s interpretation of its own precedent is wrong.  If I were on the Arizona Supreme Court, I might agree.  But that call is not within our bailiwick.  Our job is to determine whether the Arizona Supreme Court’s decision is defensible, and we owe the utmost deference to the state court in making that judgment.  Cases of inadequacy are extremely rare, and this is not one.  I respectfully dissent.

February 22, 2023 at 12:18 PM | Permalink


Kavanaugh is a wuss. The state may have got it wrong on direct appeal, but so what? Res judicata.

Another example of BS death penalty "jurisprudence." What a joke. Why capital murderers with no credible claims of innocence get this sort of fly-specking treatment by federal courts (including SCOTUS) is reason enough to withdraw jurisdiction. The Supreme Court deals with this crap, but ignores the plight of Mr. Nowak? Weak weak weak.

Posted by: federalist | Feb 22, 2023 12:31:27 PM

The problem here is the state court rule (and most states have something like that rule) which allow cases -- both civil and criminal -- to be reopened in some circumstances. If res judicata was an absolute rule then Arizona would win. Since it's not absolute, we get into this debate (and the majority has the better argument) about whether Arizona bent its rule into a pretzel to avoid complying with a U.S. Supreme Court summary decision that they did not like.

These cases rarely come up because the doctrine definitely favors affirming the state courts. The last one of these that I remember involved my state with the issue being that, while the procedural bar that the State invoked was technically on the books, it was almost never followed. (It involved the requirement that continuance requests be in writing and, for the most part, our courts simply ignore it and deal with oral continuance requests on the merits. Given that practice, the U.S. Supreme Court found that we could not use the rule to evade looking at the merits of a continuance request that raised due process concerns.)

Posted by: tmm | Feb 22, 2023 1:10:04 PM

The state is pretty much the master of its rules here. There's no evidence of bad faith or anything like that. Res judicata has never been absolute (fraud), and the state court (presumed to be doing its job) gets to modulate when overruling of precedent really triggers the rule. This a "death is different" case.


Posted by: federalist | Feb 22, 2023 1:26:17 PM

Ruling the other way would've given a blueprint for states that wished to ignore the Supreme Court. I imagine some justices noticed that.

1. State ignores SC ruling they don't like.
2. Rule against every defendant who raises a claim under the ignored ruling.
3. Finally get another case where the SC tells the state to follow the ignored ruling.
4. Say that no defendant who was ruled against in the years between steps 1 and 3 can raise a claim because a "misapplication of law" doesn't warrant relief.

And then wait until states realize they could expand this system beyond criminal laws.

Posted by: D | Feb 22, 2023 1:30:39 PM

Kudos to Kent Scheiddegger for his commentary on the decision, noting that the AZ Supreme Court's position was indefensible and that SCOTUS was right to reverse. (Although his view would have counted for double in my book if offered prior to today's opinion :))

Posted by: John | Feb 22, 2023 2:04:27 PM

This is a rare occasion where I disagree with Kent, and this probably results from my dislike of SCOTUS flyspecking. His "on the merits" comment is distinct from whether SCOTUS owed deference to the state. The law is clear that it did. Kent may be going soft. LOL.

Posted by: federalist | Feb 22, 2023 2:08:28 PM

When the Supreme Court took the case, I was worried about a broad ruling. The majority opinion is very narrow and does not substantially alter what qualifies as a firmly established and regularly followed rule. The opinion is very fact specific and fits into the "good for this one case and this one day only" type of case that we get about once every two or three years from the U.S. Supreme Court. And it is what tends to happen when the Supreme Court thinks that a lower court is trying to evade its decisions.

Posted by: tmm | Feb 22, 2023 3:09:53 PM

tmm, the Supreme Court's inappropriate treatment of Alabama in the Maples case and its failure to deal with the Kindler case (Pa. had applied the fugitive disentitlement doctrine to his capital appeal and the Third Circuit waved that away) take away its moral authority to handwring over any state court trying to hold on to a death penalty judgment. This is not to mention the Supreme Court's institutional failure to ensure that AEDPA requirements are enforced.

Why the Supreme Court is wasting its time with this is beyond me. Capital punishment, in the absence of innocence issues, shouldn't be a big deal.

Posted by: federalist | Feb 22, 2023 4:56:04 PM

federalist writes: "Capital punishment, in the absence of innocence issues, shouldn't be a big deal." I'll put that statement second on the list, the first being that "Trump was a great President."

Posted by: anon | Feb 22, 2023 5:03:22 PM

Funny, anon, you never seemed to answer my list of accomplishments by Mr. Trump . . . .

And funny how Russia invaded Ukraine on Obama/Biden and Biden's watch. And one of Trump's accomplishments was bringing final justice to a host of brutal killers!!

Posted by: federalist | Feb 22, 2023 5:11:35 PM


Let's hope he bankrupts the city .. . .

Posted by: federalist | Feb 22, 2023 5:19:05 PM


Sickening. Kindness to the cruel is cruelty to the kind. The cost of Doug's freedom arguments . . . .

Posted by: federalist | Feb 22, 2023 5:19:56 PM

Not sure what kind of "freedom arguments" you are talking about, federalist, but you spend enough time on this site to know I do not blog much about bonds/bail and its various failings. That said, I am sure that it shouldn't take 3 years to try a seemingly simple robbery charge (and that multiple years on house arrest for a teen seems far from ideal).

Posted by: Doug B | Feb 22, 2023 5:44:30 PM

John --

Without taking a position on the merits here, I'll say that Kent is perhaps the most scrupulously honest and fair-minded legal analyst I ever met. (This did not stop some commenters on this site from calling him a Nazi).

Posted by: Bill Otis | Feb 22, 2023 6:02:27 PM

Doug, you used to make inchoate freedom arguments when it came to incarceration time--locking people in a cage . . . .

Posted by: federalist | Feb 23, 2023 8:46:38 AM

Do you disagree, federalist, that freedom is not well served by locking people in cages without a good justification? I sense you would agree with me that freedom was not well served when Anthony Novak was locked in a cage for four days. Likewise, I surmise you did not think freedom was advanced when Bogdan Vechirko spent time locked up in a cage.

Of course, the challenge in so many settings is figuring out what degree/length of caging is justified, and that challenge has been keeping this blog going for almost two decades now.

Posted by: Doug B | Feb 23, 2023 10:28:32 AM

"Of course, the challenge in so many settings is figuring out what degree/length of caging is justified, and that challenge has been keeping this blog going for almost two decades now."

Yup. But you've posited the idea that a society is less free the more it locks people up--true enough--and issues raised by Novak, Vechirko and countless others need to be address, but Janae Edmondson gets to spend her freedom without legs, and that's a problem too. Yeah, the Novak case is one of those that really makes me pessimistic for our country. The cops retaliated against this guy in plain sight, and the courts ratified it. And lawyers participated in it.

Gardner belongs in a cage.

Posted by: federalist | Feb 23, 2023 10:44:31 AM

when I said "true enough" i meant more of a truism.

Posted by: federalist | Feb 23, 2023 10:55:26 AM

Car accidents are a fact of life, federalist. In the US, roughly 100 people die every single day (and thus losing their "freedom" entirely). Another 4,500 suffer injuries in vehicle crashes each day (thankfully most do not suffer injuries as severe as Janae Edmondson). So I share you concerns about these kinds of harms, but I think it quite significant that they are not state-imposed.

When a private person complains about what pronouns I use, that feels and is a lot different than when a state actor seek to suppress or compel my speech. Private persons and companies, economic realities and the marketplace, culture and climate all impact our freedom all the time, but I see all that as quite different in kind from state action -- eg. if a private person locks me in a cage, that's kidnapping; when the state does this to Novak, Vechirko and countless others, it gets justified in the name of public safety with very little review or accountability.

Posted by: Doug B. | Feb 23, 2023 11:41:53 AM

You bring a lot of strands together. The problem in the St. Louis case is that the guy shouldn't have been free to drive without a license. When criminals get too low sentences and wind up hurting others, that's on the state, so to speak. The state had a hand in the deaths of members of the Petit family. Gardner was tough on the McCloskeys--soft on everyone else.

Posted by: federalist | Feb 23, 2023 11:53:17 AM

Doug --

Why the loaded word "caged"? How about "imprisoned"? Aren't law professors supposed to be neutral? "Caged" is anything but a neutral term. It's designed to imply that criminals sentenced to prison are being treated like animals, which implication is neither neutral nor true.

Posted by: Bill Otis | Feb 23, 2023 3:08:23 PM

Doug --

And speaking of caged, the NYT just now has an article about how defense bar hero Harvey Weinstein was just sentenced to be "caged" for 16 years. Is that wrong? Should he be sent to the country club for 16 years instead?


"Caged" is just designed to smear the system and build up hate against the people in it. It does nothing to advance reasoned argument.

Posted by: Bill Otis | Feb 23, 2023 3:13:56 PM


“Society is less free the more you lock people up…”

That’s not necessarily true. If you could miraculously round up every thug in Chicago and create a crime free city, do you think the residents would feel more or less freedom?

That’s an issue with your perspective. It’s focused on individuals, almost always the criminals, and never about whether a citizen can go for a peaceful walk at 10 PM. Instead, the citizen has to stay in his “cage” (to use your preferred word).

In other words, action/inaction and more/less incarceration all can negatively impact the “freedom” of the population.

The difference is I prefer the criminal over law-abiding citizens shouldering the burden of loss of freedom.

“ eg. if a private person locks me in a cage, that's kidnapping; when the state does this to Novak, Vechirko and countless others, it gets justified in the name of public safety with very little review or accountability.”

Do you really believe that people are put into “cages” with very little review or accountability? I’m not talking about specific injustices, which will happen under any system, but as a general rule. That’s risible.

Posted by: TarlsQtr | Feb 23, 2023 4:08:15 PM


Of course the Weinstein sentence is unfair. Don’t you remember? No one should serve more than 20 years and he is already serving a 23 year sentence. This last batch of sexual assaults should have been freebies.

He is also 70 years old. Only a monster like you would want to keep an elderly man in prison.

Posted by: TarlsQtr | Feb 23, 2023 4:17:09 PM

Bill: I used the word "cage" because that was the word that federalist used. Geez, you whine that I put words in your mouth and then whine when I use the exact words of others. I guess I should be grateful you are not also whining about my use of pronouns. I thought it was only the woke crowd that whines about every implication of every word, but maybe you are a lot more woke than I realized. :-)

Tarls: how about we just lock up every man in Chicago? And, based on data on crime per capita, let's also do every man in Memphis, Detroit, South Bend, Little Rock, Cleveland, Milwaukee, Lansing, Chattanooga, Kansas City and Houston. Wouldn't that make the women in those cities and all of us in the rest of the country more free as you see it? Or, if you want to be more focused on the most crime prone or "thug"-like, let's just lock up all the men in those cities between the ages of 16 and 36. Wouldn't that make everyone else in those cities more free as you see it?

I assume you'll say that you only want to round up the "thugs." But do you want to lock up every "thug" for the rest of their lives? (In another thread, you endorsed 150 years for a first offender with awful pictures on his laptop, so maybe you do.) If you do not want to lock every "thug" up forever, then we both are on the same page struggling with the same problem of how long it makes sense to lock people up.

You are right that I tend to focus on the individual and his/her position relative to the government in part because, even with recent reductions in incarceration, I fear we actually hurt public safety and waste tax dollars and also undercut our sense of a nation "conceived in liberty" through excessive use of excessive terms of incarceration. We still incarcerate more persons for more time than any other civilization in human history AND our crime rates are higher than most other countries that share our climate and culture (that's in part because crime is a young-man's game and while some of our prisons are starting to look like geriatric wards). Maybe you think incarcerating still more and more and more and more would make us freer, but that's not how I see it.

Posted by: Doug B | Feb 23, 2023 5:38:57 PM

My experience is that most times that people complain about people being improperly locked up, it is based on a one-sided review of the case. I have dealt with enough cases -- some of which resulted in charges being dropped, some of which resulted in people whom I still believe committed the offense going free, and some of which involved people who might not have been guilty being found guilty -- to know that most of them involved rather complicated facts with two sides to the story. Furthermore, in most of them, the person who got locked up (even if they didn't commit a crime) did something that made law enforcement legitimately believe that they committed a crime. While folks may argue that some of that conduct should not be criminal or that law enforcement got the wrong person, in most of these cases, there is an interpretation of the acts that would cross the line into a violation of the law or something that the defendant did that made them a suspect. And the current interpretation of Section 1983 makes it very difficult to sue law enforcement and the government for acts taken based on good faith interpretations of the law and evidence simply because somebody else later disagrees with their interpretation of the evidence and the law.

Posted by: tmm | Feb 23, 2023 5:50:37 PM

TarlsQtr --

Guilty as charged, your Honor. P.S. Are you and I still the same person? We were yesterday, but you never know when the Fruitcake Left is going to change its mind.

Posted by: Bill Otis | Feb 23, 2023 9:03:37 PM

Doug --

I think you've been using "caged" for a long, long time before TarlsQtr ever brought it up. But you shouldn't. It's just a loaded term designed more to promote emotion over thinking.

As for my views of Wokeism: https://ringsideatthereckoning.substack.com/p/should-desantis-run-as-the-angry

Posted by: Bill Otis | Feb 23, 2023 9:06:36 PM

Bill, I do on occasion use the term caged and cages as a provocative way to describe incarceration, in part because I think the emotion it may trigger can sometimes be justified. When I see all-too-frequent stories of inmates being raped by guards, of disabled prisoners being brutally abused, of prisoners confined in solitary for years on end, of food I would not feed a dog being served, I do fear that some criminals being sentenced to prison are sometimes being treated worse than animals. I sincerely hope that is the exception and not the rule, but prisons are notoriously opaque institutions and many that I have visited have lots of rooms with bars that, I think, can be fairly described as cages.

Posted by: Doug B | Feb 23, 2023 9:52:56 PM

Doug --

It's mistaken and unfair to judge the system by its outlier episodes, while ignoring that, for by far the most part, nothing like what you describe happens. It's also mistaken and wrongheaded constantly to see imprisoned criminals as victims. I can tell you from years as an AUSA that it's really hard to get yourself a prison sentence, and if you get one, it's not because you're a victim. It's because you earned it, typically by being a victimizer.

Posted by: Bill Otis | Feb 24, 2023 4:38:15 AM

Bill, there are situations (and I agree, thankfully rare) where bit players in major drug conspiracies get serious serious time.

The current version of the DoJ, in my opinion, doesn't have the moral authority to prosecute anyone.

Posted by: federalist | Feb 24, 2023 8:32:14 AM

"It's mistaken and unfair to judge the system by its outlier episodes, while ignoring that, for by far the most part, nothing like what you describe happens."

In a way, yes, but when errors are plain and don't get addressed, then there's a problem. Why should ANY of us pay taxes if the government is going to go easy on Hunter not paying his?

Tarls, I meant to say "truism"---obviously incapacitation of violent criminals helps free the law-abiding. My bad/

Posted by: federalist | Feb 24, 2023 8:54:38 AM

Bill, this NPR piece highlights that, for women in federal prison, being at risk of sexual abuse by guards has been the norm, not an outlier: "Male prison employees assault women in at least two-thirds of U.S. prisons." https://www.npr.org/2022/12/13/1142594198/male-prison-employees-assault-women-in-at-least-two-thirds-of-u-s-prisons

And here is research detailing that in 2021 "an estimated 41,000 to 48,000 prisoners in the United States were held in isolation for an average of 22 hours a day for 15 days or more."

And here is a report discussing that "the misuse of force against prisoners with mental health problems is widespread"

And here is an article discussing California's persistent failure to address abuse of physically disabled prisoners

All these stories, and many more I could provide, reinforce my fear that when we put people in prison cages, it is all too common that we treat them worse than animals. That concerns me not because I view "imprisoned criminals as victims," but because I think the state has an obligation to be better than a criminal and should try to treat all individuals with as much humanity as reasonably possible and should try to respect the importance of human liberty to the extent reasonably possible.

Of course, Bill, given that you dedicated much of your professional life to sending people into cages, I fully understand why you want to believe that people in those cages are not treated worse than animals or that they entirely "earned" being raped or abused or kept in extreme isolation while there. If I spent most of my professional life sending people into cages, I suspect I would want to believe the same thing. And I sincerely hope prison life for most people is as nice as you imagine it to be. My sense is that's true in Scandinavian counties, but not generally in the US. Perhaps I should take this back-and-forth as a sign that you would be a supporter of efforts to brings Scandinavian prison norms to the US: https://theconversation.com/a-pennsylvania-prison-gets-a-scandinavian-style-makeover-and-shows-how-the-us-penal-system-could-become-more-humane-187834

Posted by: Doug B | Feb 24, 2023 9:08:23 AM

And one last observation: federalist's comment --- that "the current version of the DoJ, in my opinion, doesn't have the moral authority to prosecute anyone" --- effectively highlights how readily the state can lose its moral authority to prosecute and punish in the eyes of the citizenry. I do not share federalist's view as to the DoJ, but his sentiments are one part of why I think it so very important for the state to be better than the criminals.

Posted by: Doug B. | Feb 24, 2023 9:46:03 AM

Doug, the Ashley Biden diary prosecution (together with the jackboot raid on James O'Keefe) shows that the FBI/DOJ has become a Praetorian Guard. That alone shows that it should be abolished. You simply cannot have this. And that's on top of the FBI's role in suppressing the Hunter Biden laptop story and to name another shameful episode, the doctoring of the Flynn 302.

Posted by: federalist | Feb 24, 2023 11:44:27 AM

So, federalist, should all these recent DOJ indictments/convictions be dismissed because DOJ "doesn't have the moral authority to prosecute anyone"?:

In addition to wondering exactly what you mean by your call to abolish the FBI/DOJ, I trust you (and Bill) can readily see how your frustrations with the work of federal cops and prosecutors which leads to a call for abolition is quite similar to many other groups making similar calls to "abolish" one or another a law enforcement institution that they fear does more harm than good.

Posted by: Doug B. | Feb 24, 2023 12:06:55 PM

Doug, of course not. But here you are falling into the trap--that DoJ does good does not mean that things like the Ashley Biden prosecution etc. are tolerable. The DoJ doesn't get to exist (in its current form anyway) because we need to prosecute these criminals. The DoJ is all we got. But it is rotten to the core. The Chinese government doesn't have any moral authority either--but murderers still need to be punished.

I guess you agree with my positions on the Biden diary etc. because you dare not challenge them.

Posted by: federalist | Feb 24, 2023 12:18:42 PM

I do not know the details well enough, federalist, to agree or disagree with your positions on the Biden diary etc. (I do not think the diary defendants have been sentenced yet, and I am looking forward to seeing their sentencing submissions.).

My point is that, based on your view of just a handful of cases --- what Bill would likely call "outlier episodes" --- you are saying that the FBI/DOJ "should be abolished." Notably, nobody died in any of these cases, nor did anyone serve extended time in a cage. And yet, because you are so troubled by law enforcement investigative behaviors in a few cases, you think a VERY MAJOR part of our national criminal justice systems are "rotten to the core." Fine, but I hope that gives you respect for those with an eye on injustices in other cases who make calls to abolish other law enforcement institutions that they think are "rotten to the core." (E.g., the fake stash-house sting case and the federal bail unlawfulness are other salient examples of other issues/cases that can look very ugly when you start to look under the hood.)

Put another way, you sound like many in the BLM crowd, federalist, it is just the types of cases that lead to calls for abolition that differ.

Posted by: Doug B | Feb 24, 2023 12:35:23 PM

Doug, Ashley Biden left behind a diary. It was sold. And this is a federal case? This means that partisan political considerations attended this prosecution--which is an absolute no-no. Lisa Page helped to edit the Flynn 302--a huge no-no.

The FBI suppressed the Hunter Biden story--which means that a criminal law enforcement agency was interfering in an election. That undercuts democracy.

The stash house stings look to be up to the line, but not over the line. Bail stuff, I agree, has gotten a little bit out of hand.

Posted by: federalist | Feb 24, 2023 12:47:54 PM

You have every right to draw your lines and cry out to abolish the FBI/DOJ based on the handful of cases that deeply trouble you, federalist. But same goes for the BLM crowd and others who focus on different "no-nos" while crying out for criminal justice reforms in their own way.

Posted by: Doug B. | Feb 24, 2023 1:33:35 PM

Organizations are run and staffed by human beings, and things are going to happen. However, the in plain sight election meddling by a law enforcement agency and the prosecution of people who found (then sold) abandoned property simply because that abandoned property happened to be the president's daughter's diary (in which she stated that Biden showered with her when she was 13/14, which is pretty creepy).

The FBI's actions likely affected the outcome of the 2020 elections, which, not to put too fine a point on that, delegitimizes the federal government.

Posted by: federalist | Feb 24, 2023 1:41:46 PM

Again, federalist, you have every right to believe that actions in 2020 by Trump's FBI serves to "delegitimize the federal government." And all sorts of others have all sorts of other reasons to believe all sorts of other government actions serve to "delegitimize the federal government." Thanks again for reinforcing the only point I was stressing here, namely that even small seemingly suspect actions by the state can lead it to lose its moral authority to prosecute and punish (or even its entire legitimacy) in the eyes of some members of the citizenry.

Posted by: Doug B. | Feb 24, 2023 2:28:09 PM

Doug, the most precious right of the People is to govern themselves, and elected officials must submit themselves to the People periodically in elections. When the government (which, in this case, you cheekily note was the Trump Admin--I don't even need to comment on that bit of sophistry) puts its thumb on the scale of an election by suppressing a legitimate story about a candidate, then the elections become unfair. Joe Biden, to his ever-lasting disgrace (along with that of Chris Wallace) accused Trump of parroting Russian disinformation in the debates. If that doesn't concern you, well, I just don't know what to say.

Posted by: federalist | Feb 24, 2023 2:50:01 PM

I have little interest in chasing or debating your partisan views of the FBI, federalist, but I surmise that you think the FBI during the Trump years headed by Trump's appointee was rigging elections against Trump and that serves to delegitimize the current federal government. Okay, and lots of other folks with lots of other partisan views have a different story that gets them to a similar conclusion that certain law enforcement institutions are "rotten to the core" and "should be abolished" and that associated governments are illegitimate.

You are more than welcome to keep preaching your perspectives here about which particular police forces you think should be abolished, federalist, and I will keep noting how similar you sound to the BLM crowd. You are singing the same basic abolition song, albeit in slightly different keys. And the songs you are all singing concern me; they are all in the same pitch as this entire blog as they call for us to be ever eager and vigilant to question and interrogate the exercise of state powers.

Posted by: Doug B | Feb 24, 2023 3:06:15 PM

Obviously, we'll need to replace the DOJ. But I absolutely have to laugh at your characterization of my points about the FBI--do you deny that the FBI was involved with the suppression of the Hunter Biden laptop story? Do you really think that any consideration other than the fact that it was Ashley's diary went into the prosecution of the two who found it?

Of course, you can't answer these points, so you descend into sophistry and ad hominem. Cute.

Posted by: federalist | Feb 24, 2023 3:09:39 PM

Not sophistry and ad hominen, federalist, just how I see things from the outside. I have never worked in the FBI or the DOJ, so I have little basis to understand their actions, mistakes, motivations, chain of command and review or whether to endorse your assertion that they are "rotten to the core" and "should be abolished." Perhaps Bill, who spent much of his career in federal law enforcement, can provide more of an insider perspective on the rot you now see. I have read that the FBI was hyper-concerned about disinformation in the run up to the 2020 election which prompted the Hunter laptop actions. Some of those actions sound hinky to me; but again, as an outsider, I do not know who should be held to account for any mistakes and biases in those actions. Moreover, as an outsider, I do not understand who exactly I am supposed to blame if an FBI/DOJ run for multiple years by Trump appointees is making mistakes that reflect political biases.

Also, as I have explained before, I see politics in everything done by federal law enforcement. Its lack of enforcement of marijuana prohibition is driven by politics, its capital punishment decisions are driven by politics, its approach to gun possession prosecutions is driven by politics, its other drug enforcement decisions (stash-house stings) are driven by politics, and on and on and on. Of course, DOJ insiders will surely have tales about only sound policy, not politics, in play. I suspect the folks who prosecuted the diary folks will say it is sound policy to prevent individual from trying to obtain and sell dirt on the children of federal candidates. But what some will reasonable believe to be justified by policy, others will reasonable see as a form of politics.

I am not attacking the sincerity of your beliefs that the FBI/DOJ are "rotten to the core" and "should be abolished." I am rather just continuing to make the point that lots of others, based on different prosecutorial and police activity that they find suspect and biased, also are inclined to conclude that certain law enforcement institutions are "rotten to the core" and "should be abolished" and that associated governments are illegitimate.

Posted by: Doug B. | Feb 24, 2023 3:45:56 PM

"I have read that the FBI was hyper-concerned about disinformation in the run up to the 2020 election which prompted the Hunter laptop actions."

I have to marvel at that--swallowing whole the excuse for trying to protect Biden.

And as for Ashley--really? She left the diary behind . . . .

Posted by: federalist | Feb 24, 2023 5:34:50 PM


If you are dumb enough to believe incarcerating every male between certain ages is logically connected to anything I have said, then you should step down from your position. Of course, I know you aren’t that dumb.

Now, let’s talk about “freedom.” Keith Melvin Moses has a long record, multiple felonies, some violent. He shot five people, killed three, including a nine year old and a journalist. Which is a bigger affront to freedom? If he would have been incarcerated a long time for his previous criminal record and not been out of prison or the death of those three people?

Posted by: TarlsQtr | Feb 24, 2023 9:25:40 PM

Tarls, your suggestion was that if we could "round up every thug" we would enhance freedom. One plausible means for seeking to do so would be to round up everyone most likely to be a "thug" (young men). Thus, it is sensible to inquire if you really think freedom would be enhanced by locking up everyone in this crime-prone demographics. My inquiry is one logical extension of the notion that locking up the "right people" enhances freedom.

That you balk at this proposed variation on mass incarceration suggests you recognize that at some point ever more incarceration does not advance freedom. I concur, and so it seems we are now on the same page of debating how and how long we should selectively incarcerate those who show themselves to be crime-prone via their behaviors. I am quite comfortable saying folks with violent records like Keith Melvin Moses should be locked up for a long time. But Weldon Angelos and Alice Marie Johnson and Luke Scarmazzo thousands of others are sentenced to decades or more in prison for non-violent offenses and I fear we undercut our resolve and the resources needed to keep the truly dangerous incarcerated by locking up the not-dangerous.

I might feel different if the scale of US imprisonment was not historically massive or if it seemed somewhat more effective. But, as I said before, we incarcerate many more persons for much more time than any other civilization in human history AND our crime rates are higher than most other countries that share our climate and culture. It is quite discouraging to see stories of persons with ugly histories allowed to be free to cause carnage, though those stories make me ever more depressed that waste resources and lives locking up those without ugly histories.

Coming full circle, you may view Americans in the 21st century as the most crime-prone people in human history, and so that is why we need to have historically high levels of American incarceration in order to be "free." But I am not quite ready to accept the idea that this country breeds the most crime-prone people in the world. But maybe it does and maybe I should just embrace mass incarceration as the best path to freedom within such a horrid population.

Posted by: Doug B | Feb 24, 2023 10:26:11 PM

federalist you rave on an on about Hunter Biden's laptop. Sounds like the never ending rant by Republicans about Benghazi, Benghazi.... which turned out to be a big nothing-burger. And you don't seem very much concerned about the Jan. 6 insurrection or Trump's multiple illegal and reckless acts. Hard to credit anything you say or argue given your view that Trump was a great President, when he was and is nothing but a charlatan and snake oil salesman.

Posted by: anon | Feb 25, 2023 10:12:15 AM


“Every thug” (me) to “likely to become a thug,” (you).

You never have any moral right to claim that people are putting words in your mouth.

Just curious. What objective measures do you use to define “likely?” It cannot be merely age, as far fewer than 50% of any age are criminals.

Wasn’t Angelos convicted of multiple counts of possession of a firearm in furtherance of drug trafficking? That’s not a guy carrying a joint around. If a guy is carrying a gun while trafficking, it’s reasonable to assume he would use it given the necessity.

I call BS. If Moses had not killed those people and was in prison for his previous crimes, we’d be hearing about how he was a juvenile when he committed them and we were just creating a better criminal, blah, blah, blah.

What other countries have the same “climate and culture” that we do?

Posted by: TarlsQtr | Feb 25, 2023 11:20:01 AM


Comparing Benghazi to Hunter’s laptop? My heavens. Just what has come out so far shows extensive criminality and complete lack of ethics from Hunter and “The Big Guy.”

Posted by: TarlsQtr | Feb 25, 2023 11:24:36 AM

TarlsQtr --

You are merciless, may God be praised.

P.S. Are we still the same person? I've lost track.

Posted by: Bill Otis | Feb 25, 2023 2:15:13 PM

Tarls, I am not trying to put words in your mouth. I am working through the implications of your claims that we increase freedom by locking up "the right people" (which you call "thugs") and presumably for decades since you seem concerned that Angelos got released after 13+ years. To the extent you balk at the idea that the "right people" to imprison is a huge number (or perhaps balk at the notion that you want all "thugs" to serve decades in prison to advance freedom), then I conclude we are on the same basic page and are ultimately debating how and how long we should selectively incarcerate those who show themselves to be crime-prone via their behaviors in service to the goals of freedom. (You may have other goals you want to achieve through long terms of imprisonment, but this discussion is about advancing freedom.)

Maybe I can simplify my point this way. I readily concede we can enhance the freedom of a community by incarcerating its greatest threats even if they need to be locked up for a very long time (eg, the serial killer, the serial rapist and even the serial grifters). Do you agree that we undercut the freedom of a community by incarcerating its mildest threats especially if we do so for a very long time (eg, the drug user, the jaywalker, the juve shop-lifter)? Assuming you concede that point, then we both agree that imprisonment can advance freedom at one extreme and undercut it at the other. I doubt this is controversial, and I was just trying, in perhaps an unclear way, to suggest there is some common ground here. I do not want to abolish prisons in the name of freedom, and I sense you do not want it massively expanded it in the name of freedom. We are just debating where between these extremes we might best be located to advance freedom. (Again, if you have other goals for our system other than advancing freedom, the discussion takes on additional variables. Many focus on "desert" in punishment systems; that's a different variable. And I surmise many in the "abolish prison" camp are focused on visions of racial equity, not a freedom agenda.)

With the easy part out of the way, the hard challenge is figuring out the "right" sentence to advance freedom for Weldon Angelos or Alice Marie Johnson or Keith Melvin Moses. That is always going to be very hard --- I think 5 would have been plenty for Weldon, you might think he still needs to be serving his original 55 year term --- but I also think a nation committed to liberty and freedom should always struggle with and have to justify the use of coercive state power to incarcerate because imprisonment is, by definition, an extreme restriction on freedom. You may think the harms of various crimes are so great, and the protections in place already so robust, and the risk to community so vast, that we ought to worry much more about under-incarceration rather than over-incarceration in the name of freedom. But the fact that many other nations are safer with much lower incarceration rates makes me sad and makes me think we can and should keep trying to do better in enhancing freedom in this country without incarcerating more and more and more.

Here are links to various (highly imperfect) sources comparing crime/homicides across nations:

When I reference countries that "share our climate and culture," I mean mostly western democracies with relative high GDP/capita, but there are really so many variables here in a large nation like the US which is truly like no other. Weather is a critical criminogenic factor (which is why I mention "climate"), and surely in part accounts for US variations in crime: New England always looks a lot like western Europe with relatively low crime rates, while parts of southeast US looks closer to part of South America with high crime rates. By "culture" I am thinking about capitalism/democracy that generally enables a social safety-net, though on reflection I suppose I should note that few other nations share the US "gun culture" which some use to explain our high rates of gun crimes/violence: https://www.vox.com/policy-and-politics/23141964/america-gun-violence-epidemic-chart

Posted by: Doug B | Feb 25, 2023 2:41:38 PM


We are the same person on even days, so tomorrow.


In the same sentence you say you are not putting words in my mouth, you do it again. “The right people?” After years on this blog, have you ever heard me condone incarcerating innocent people? Once?

How many jaywalkers and juve-shoplifters are in prison? Hell, even personal use drug users. However, even mild offenses that are repeated over and over deserve real punishment. No one should be walking the streets freely with a dozen arrests. They are proven scofflaws.

There is no other country with our “culture.” The western democracies you speak of lack the scars of slavery and the racial component. They set up the system and left to not face the consequences of it.

A huge majority of our crime is committed in a few neighborhoods of urban centers, with African-Americans committing a huge outsized proportion of it. If you remove that component, again one that Europe doesn’t have to deal with, our crime rate falls in line with other western democracies.

Posted by: TarlsQtr | Feb 25, 2023 9:51:02 PM

You are making reasonable and important points, Tarls, but they are incomplete. First, on terminology, I was not trying to say you want to incarcerate innocent people, I was trying to say you want to incarcerate certain people. You used the term "thugs" before, but now you reference "proven scofflaws."

Okay, but what does that mean and does it include repeat drug users and/or impaired drivers? CDC data suggest that past-month illicit drug use likely encompasses at least 40 million Americans over the age of 12. NSDUH data estimates the number of U.S. residents ages 16 years and older who drove under the influence in the past year was nearly 20 million for alcohol; 12 million for marijuana; 2.5 million for illicit drugs other than marijuana. If we throw in child porn downloading, this gets even more depressing as I have seen reports suggesting at lease 500,000 illegal images are downloaded in the US every day. Yuck. (Also, limited data suggests little racial differences in these crimes, save CP downloading, which seems to be mostly white folks.)

Point is that there are literally tens of millions of Americans committing "mild" (and not so mild) offenses and many are surely "repeated over and over." Do all these persons "deserve real punishment"? Will freedom be advanced by incarcerating all these persons? Some of them? Only the ones who get caught a lot? Send in enough police and we can catch as many as we want; subject folks to lots of "supervision" and we will see no shortage of "mild offenses that are repeated over and over."

Maybe these are not the "mild offenses" you have in mind, Tarls, and you want to focus on "violent crime." Good, I would like our system to focus much more on violent criminals. But there are nearly one million annual arrests for aggravated assault, so even a focus there is going to call for a lot of sorting in that one crime category. Perhaps you want to focus especially on repeat violent criminals, which I do to. And that's my main point, I think we are mostly on the same page, just debating the details.

I agree that the US is unique, but our crime problems are not unique to our cities. You are quite right that crime often is concentrated in a few lost neighborhoods in urban centers. But the stories in rural America are not looking so great these days.

Here is recent data highlighting gun violence in rural counties:

Here is a WSJ article on recent murder surges in the rural US:

I know you are not a big fan of Vera's work, but (pre-pandemic) they highlighted increased and high rates of jail use in rural areas:

Finally, if the urban/African-American explanation was the whole story, wouldn't we expect consistently low crime rates in mostly rural states with low AA population like Alaska, Montana, New Mexico, and South Dakota? They are all in the bottom quartile of states in AA population, but Alaska and New Mexico are at the very top of violent crime per capita, Montana and SD are in top quartile. Race, gender, class, economic inequality and a host of other factors are part of the stew of challenges we will always face in our responses to crime and in our distributions of punishment.

Incarceration policies always strike me as really hard, and yet I always think we can do better. Indeed, until the pandemic and our response thereto really messed up a lot of institutions, it felt like we were really starting to do better. And I am always going to keep trying.

Posted by: Doug B. | Feb 25, 2023 11:37:51 PM

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