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April 19, 2023
New analysis of original dataset concludes "COVID-19 amplified racial disparities in the US criminal legal system"
The journal Nature today released here a new study by multiple authors titled "COVID-19 amplified racial disparities in the US criminal legal system." Here is the empirical paper's abstract:
The criminal legal system in the USA drives an incarceration rate that is the highest on the planet, with disparities by class and race among its signature features. During the first year of the coronavirus disease 2019 (COVID-19) pandemic, the number of incarcerated people in the USA decreased by at least 17% — the largest, fastest reduction in prison population in American history. Here we ask how this reduction influenced the racial composition of US prisons and consider possible mechanisms for these dynamics. Using an original dataset curated from public sources on prison demographics across all 50 states and the District of Columbia, we show that incarcerated white people benefited disproportionately from the decrease in the US prison population and that the fraction of incarcerated Black and Latino people sharply increased. This pattern of increased racial disparity exists across prison systems in nearly every state and reverses a decade-long trend before 2020 and the onset of COVID-19, when the proportion of incarcerated white people was increasing amid declining numbers of incarcerated Black people. Although a variety of factors underlie these trends, we find that racial inequities in average sentence length are a major contributor. Ultimately, this study reveals how disruptions caused by COVID-19 exacerbated racial inequalities in the criminal legal system, and highlights key forces that sustain mass incarceration. To advance opportunities for data-driven social science, we publicly released the data associated with this study at Zenodo.
LawProf Jessica Eaglin has this companion piece in Nature describing the study. The full title of the companion piece highlights the themes: "COVID pandemic increased racial disparities in US prison populations. A public data set on the size and racial composition of US prison populations has been generated. Its analysis indicates how biases in sentencing lengths shape prisons’ racial make-up in the United States."
April 19, 2023 at 06:21 PM | Permalink
Comments
I saw a lot of rioters get away with it.
https://justthenews.com/accountability/political-ethics/hldsenior-irs-agent-blows-whistle-alleging-bide-doj-thwarting
What a system.
Posted by: federalist | Apr 20, 2023 9:45:05 AM
You have not provided your novel EP particulars yet, federalist, but does your theory entail that the IRS/Hunter story means we all now have a constitutional defense if we stop paying our federal taxes and face prosecution?
Posted by: Doug B | Apr 20, 2023 10:50:34 AM
It goes without saying that Hunter getting over because he's the president's son is an equal protection violation--there's no rational basis to vary tax enforcement decisions based on someone's closeness to the President. Thus the rights of all of us are violated. Does government get to do this? One some level it does because the consequences of a remedy are catastrophic--but that should mean that the government had damned well better not do crap like this. And if it does, the people who do it need to be severely punished--but that won't happen.
If the government is making enforcement decisions on this basis . . . . how is it ok for the government to give it to any citizen good and hard. Or are you saying that it is lawful for the government to base enforcement decisions on this basis?
Posted by: federalist | Apr 20, 2023 11:14:05 AM
I agree 100% percent that undue and unjustifiable leniency shown toward some, federalist, delegitimates the government's moral authority to be harsh on others. Of course, this has been a long-standing complaint by many marginalized groups who bemoan, for recent examples, the Clintons, Epsteins, Trumps and Bidens and so many others seemingly getting passes when others are subject to more punitive treatment. Such concerns soundly ground complaints about certain communities and peoples being overpoliced and receiving harsher punishments for behaviors that are often never even investigated in other communities and peoples. The move to sentencing guidelines and more structured sentencing is another echo of righteous concerns about inequitable favoritism in application of the criminal law.
But how do we sensibly turn these equity concerns into any meaningful and enforceable legal doctrine that impacts the application of prosecutorial powers? I would start by overturning Armstrong and giving defendants a lot more authority to gather data on pattens of inequitable application of the law by prosecutors. I would advocate for racial justice acts to provide statutory remedies for when significant inequties are identified. And I would urge hearings/oversight and other means of increasing transparency concerning the exercise of prosecutorial powers. Those steps seem much more tangible and viable than some unclear/unmanageable constitutional claim.
In other words, federalist, I am not saying your concerns are misguided. I am saying that many marginalized groups have been voicing similar concerns for a very long time (see, eg, McClesky as just one high-profile 40-year-old example), and that I hope your concerns about Hunter getting over makes you ever more sympathetic to these long-standing claims.
Posted by: Doug B | Apr 20, 2023 11:48:46 AM
You miss the point entirely. As I've stated many times, prosecutors have discretion. The problem here is that discretion is being used to protect the interests of the Democratic party. It's obscene. You try to deflect that point. Epstein had connections. Clinton got over because she was a Democrat. As has Hunter and, by all appearances, Joe. The Ashley Biden diary prosecution was an obscenity. Since when do we have a Praetorian Guard?
Posted by: federalist | Apr 20, 2023 1:39:07 PM
federalist, you keep missing that it gets even harder to convert yout inequity concerns into any meaningful and enforceable legal doctrine when "politics" is the basis for the gripe (especially since many would contend that we've long had a functioning Praetorian Guard for the rich elite --- eg, how did Madoff get away with his Ponzi scheme for decades?). That all said, I suspect we'd both welcome congressional hearings and more transparency on these fronts.
Posted by: Doug B | Apr 20, 2023 1:54:30 PM
Omg--there's a world of difference between the feds deciding to prosecute people for selling an abandoned book (and by the way roughing up James O'Keefe) because they want to send a message about messing with the Bidens and Madoff escaping scrutiny from a regulator. Just a world of difference--the first is malevolence, and the second is likely incompetence. Corzine getting away with what he did, that was a 'rat hookup.
These actions were to benefit the fortunes of the Democratic party.
And yes, my concerns about Hunter go over to others. We may not share the same view as what constitutes an injustice (like i don't think capital murderers are entitled to cosmic fairness) but I do have issues with say, Bloomberg's racism.
Posted by: federalist | Apr 20, 2023 3:55:07 PM
I get, federalist, that someone who is quite concerned with partisan matters finds any political considerations in the exercise of prosecutorial discretion to be particularly worrisome. But, as I have mentioned before, the fact that partisan political matters are baked into who runs prosecutions (at both the federal and state level) leads me to take for granted that at least some (significant?) measure of partisan decision-making always colors the discretionary work of prosecutors. I am not asserting that politicizing the exercise of prosecutorial discretion is justified, I am just saying that it seems to me inevitable and I am not sure how it can be soundly and effectively policed by courts (especially if the chief concern is declinations).
For others, of course, how race or religion or class considerations influence the exercise of prosecutorial discretion may be particularly worrisome. Moreover, such considerations are not formally baked into (though they certainly find their way into) who runs prosecutions (at both the federal and state level). Ergo, one could hope it might be somewhat eager to identify and seek to remedy the inequitable influence of these considerations (especially if the cheif concern is prosecutions and inequitable sentencing). Your last two sentences suggest you respect the spirit and efforts of groups and people assailing what they see as inequitable facets of our criminal justice systems even if may not see injustices in the exact same places and spaces.
In this way, we have returned to the topic of the research highlighted in this post, as the authors plainly think it worrisome that the racial composition of the US prison populations became more inequitable during the COIVD years (though I am still reviewing the study to see if there is really all that much "there there").
Posted by: Doug B | Apr 20, 2023 5:04:11 PM
You cannot have a system where law enforcement aligns with the base interests of a political party.
https://nypost.com/2023/04/20/of-course-biden-officials-are-interfering-in-his-sons-case-why-else-has-hunter-skated-for-five-years/
A lot of rioters seemed to commit crime with impunity---that should factor in . . . .
Posted by: federalist | Apr 21, 2023 9:53:07 AM
federalist: Mr. McCarthy should do some research on the rarity of federal prosecution for lying on gun applications. One student in my seminar is looking into this issue to assess whether state-lawful medical marijuana user would likely get in trouble if lying on the ATF form. Here is how she reported some of what she found: "In 2017, the Government Accountability Officer reported that out of 8,606,285 federal firearms transactions/background checks, 112,090 applications resulted in denials. Of these denials, ATF referred 12,700 to be investigated further. Of the 12,700 investigations, U.S. Attorney’s Offices only prosecuted 12 cases."
In other words, only small fraction of a small percent of those whose applications get DENIED are subject to prosecution; and I do not think Hunter's application was denied. In other words, McCarthy is flat out wrong that only a politician's son does not get prosecuted for this behavior. In all likelihood, millions of regular Joes (and irregular hunters) do.
Also comical is this from McCarthy: "The gun offenses are so straightforward that they’d take a competent investigator five days, not five years, to wrap into a prosecutable case." Uh, okay, but this all happened in Oct 2018 when Jeff Sessions was Attorney General. Is the claim that Joe Biden talked his old Senate pal AG Sessions to look the other way because Sessions should be eager to go easy on Democrats? I could imagine Uncle Joe asking Jefferson to do a solid for his kid, but would that be partisan politics or just cronyism/plutocracy at work?
And, of course, Sessions was out as AG in Nov 2018, meaning we had acting AG Matthew Whitaker followed by almost two years of AG Bill Barr. Was Uncle Joe able to get both of these Trump AGs to do his bidding for the benefit of Democrats for partisan political reasons? To state the claim is to show how sill it is, especially since Trump's "perfect" call to a foreign leader made clear to the whole world that Trump was eager to dig up whatever dirt he could find on the Bidens.
Finally, and even more fun, the Bruen case was already before SCOTUS when the Dems took over in 2021, and that case has led to a jurisprudence that has raised serious constitutional doubt about the statutory gun provision that could be the basis for a more serious charge against Hunter for his 2018 activity. I am 100% sure DOJ, under any administration, would not like a political hot potato to become the high-profile test case for the reach of shaky federal gun control laws.
None of this is an effort to say Hunter is not getting beneficial treatment in the criminal justice system. I am all but certain he is --- like just about every other rich and powerful person who will have greater resources and platforms to fight back against prosecutors who are far too used to just shooting defense fish in a plea bargainig barrel. Of course, I'd bet Hunter is also getting "added" special treatment, but than seems more like the norm than the exception for kids of presidents.
Posted by: Doug B | Apr 21, 2023 12:01:25 PM
I'd love to watch Andy McCarthy debate you . . . .
Evidence of Hunter's lies are out in the open, and that's the issue. BTW, the evidence of hooking up Dems for political purposes has piled up.
Posted by: federalist | Apr 21, 2023 12:11:21 PM
I am a big fan of Mr. McCarthy, especially because he soundly called BS on the GOP's effort to go after Justice Jackson based on her sentencing record in CP cases.
And, please know, I see and dislike all sorts of political favoritism in the CJ space, I just see this running in many directions AND this surprises me less than some of the other forms of bias baked into our bloated criminal justice systems.
Posted by: Doug B | Apr 21, 2023 12:18:50 PM
Doug,
It’s nice to say the AG was a Republican but we all know that not far below is a sea of lifetime bureaucrats who can ultimately make the decision by mischaracterizing the strength of evidence. If his inferiors say there is “no there, there,” an honest AG might let it go.
I would also bring up that at least Sessions played his position apolitically, unlike Obama’s “wingman” and your love interest for SCOTUS, Garland.
Posted by: TarlsQtr | Apr 21, 2023 8:12:29 PM
Doug,
My busy week is over, so I was able to get back to you on the other thread.
Posted by: TarlsQtr | Apr 21, 2023 8:30:08 PM
If you are going to waste time with silly smears, Tarls, at least have your facts right. I advocated against Garland as a SCOTUS pick both before and after he was made. Indeed, I think Prez Obama's terrible mishandling of the SCOTUS open seat was a big factor giving us Prez Trump. (I also advocated against Garland for Biden's AG pick.)
On the Hunter front, not sure what would be "mischaracterizing the strength of evidence." It would be accurate for an agent to say it will always be challenging to prove BRD that someone is an "unlawful user" of drugs AND that they knowingly lied about this status on ATF Form 4473. That is surely among the reasons why so few people are criminally prosecuted for this behavior, even though data suggests that millions of people in the US use drugs unlawfully and buy firearms each and every year.
Posted by: Doug B | Apr 22, 2023 1:57:21 PM
Doug,
My apologies if I had your position wrong. I thought I remembered you railing against Republicans and supporting him, but I must have been mistaken.
If I may ask, what was your reason for being against him?
As far as Hunter, I doubt most tax investigations include not paying taxes on revenue from Chicoms and Ukrainian oil companies. There is little doubt that the laptop investigation has been slow walked and obstructed. It appears to implicate the entire family, including Joe.
Meanwhile, the media cannot shut up about the nothingburger regarding Thomas.
Posted by: TarlsQtr | Apr 22, 2023 4:50:00 PM
Master Tarls, here is a lengthy post from Nov 15, 2016 that explained in detail my disaffinities for the Garland SCOTUS pick: https://sentencing.typepad.com/sentencing_law_and_policy/2016/11/looking-for-the-best-anti-garland-on-prez-elect-donald-trumps-scotus-not-so-short-list.html
For AG, I thought Doug Jones would have been a better pick for a lot of intricate reasons that Garland's rocky tenure has tended to reinforce.
As for HUnter, my comment was focused on the claim in the McCarthy piece cited by federalist that the gun purchase case was the "obvious" example of politicized DOJ decision-making. That particularly struck me as the weakest of arguments, in part because the other matters you mention that seem to me much more suspect.
Posted by: Doug B | Apr 22, 2023 5:08:42 PM
Yikes. You wanted an affirmative action pick.
That hasn’t worked out so well for the Biden Administration yet.
Posted by: TarlsQtr | Apr 24, 2023 2:58:46 PM
Doug, most lies on gun apps don't see light of day--this dope fiend lied, and then he misplaced his gun. That's enough to get you prosecuted.
Posted by: federalist | Apr 24, 2023 3:34:59 PM
Master Tarls: I do not want SCOTUS to be all former prosecutors, so I do want the Prez to make an affirmative effort to nominate persons other than prosecutorial G-men. And Justice Jackson's "paper credentials" before joining SCOTUS were arguably stronger that than any modern nominee.
federalist: "this dope fiend lied, and then he misplaced his gun. That's enough to get you prosecuted." I believe this happened in Delaware in Oct 2018, right? Well, "David C. Weiss was appointed by President Trump to serve as the United States Attorney for the District of Delaware and was sworn in on February 22, 2018." So, is USA Weiss the one you think was all for "hooking up Dems for political purposes" for the last 2+ years of the Trump Administration?
Posted by: Doug B | Apr 24, 2023 11:47:55 PM
Doug,
Let me remind you that you also mentioned age, race, and sex.
Posted by: TarlsQtr | Apr 25, 2023 1:44:30 AM
That is correct, because I think our nine-member Supreme Court should have a mix of highly qualified individuals who come from a variety of backgrounds and have a variety of experiences to help them collectively consider the wide variety of issues that come before the Court.
Posted by: Doug B | Apr 25, 2023 6:55:59 AM
Weiss seems to be a wuss. And he's tied in deep with Delaware.
Posted by: federalist | Apr 25, 2023 12:00:39 PM
Doug,
I prefer the best people on the bench.
Age will always skew old. Thirty year olds aren’t ready. It takes decades to get the experience to create a coherent legal ideology.
As far as blacks, women, and Hispanics, there numbers on SCOTUS are over represented compared to the federal judiciary.
Posted by: TarlsQtr | Apr 25, 2023 5:33:40 PM
*their 🤦♂️
Posted by: TarlsQtr | Apr 25, 2023 6:56:27 PM
Tarls, I also favor having the "best people on the bench" (as well as people who do not create the perception of corruption). But "best" in my view is not just about "a coherent legal ideology," it is also about having a sense for how the world functions and how legal decisions in the world function. That is why I favor the Supreme Court to be a mix of highly qualified individuals who come from a variety of backgrounds and have a variety of experiences to help them collectively consider the wide variety of issues that come before the Court.
Posted by: Doug B | Apr 26, 2023 8:28:41 AM
Doug,
Pronouns. I’m actually starting to favor, “My liege.”
It is literally impossible to put “the best people on the bench,” when ticking affirmative action intersectionality boxes. You cannot have it both ways.
And SCOTUS already has a higher percentage of females, blacks, and “wise Latina women” than the rest of the federal judiciary.
“Perception of corruption.” You aren’t buying into that Thomas BS, right?
Posted by: TarlsQtr | Apr 26, 2023 8:28:58 PM
Someone reveals so very much about his mindset and beliefs when suggesting that it is "literally impossible" for diverse people to be among "the best people."
Posted by: Doug B | Apr 27, 2023 8:04:59 AM
Doug,
Of course they “can.” I never claimed otherwise. What I said is that you are not looking for the best people for the job when ticking intersectionality boxes and eliminating huge sections of the job pool because of the color of their skin or what’s between their legs.
You are proposing discrimination. I’m not.
Perhaps it is your mindset and beliefs being revealed.
Posted by: TarlsQtr | Apr 27, 2023 10:27:47 AM
What you claimed was "It is literally impossible to put 'the best people on the bench,' when ticking affirmative action intersectionality boxes." That suggested to me you see diverse individuals to not be regularly among the best individuals (and, for me, diverse individuals include all persons, so no discrimination here). As I mentioned above, Justice Jackson's paper credentials before joining SCOTUS were arguably professionally stronger than any modern nominee, reinforcing my view that a commitment to diversity can help rather than hinder finding the best people for a job.
Posted by: Doug B | Apr 27, 2023 12:48:35 PM
Doug,
How about instead of saying, “That suggested to me…,” you say, “I incorrectly inferred…” and apologize for the insinuation.
BTW, what the hell is a “diverse individual?” It’s impossible for a person to be diverse.
And, yes, eliminating huge chunks of society from a job based on sex, race, etc., is practically the word for word definition of discrimination in the CRA.
Question. I’m sure you sit on hiring committees. Have you, or any of your colleagues to your knowledge, recommended hiring a professor based on race, sex, etc.? If a white man applied to take the position of your Dean of Diversity, was he given a level playing field compared to Dean Kathy Northern?
Posted by: TarlsQtr | Apr 27, 2023 8:07:45 PM
The comments in a blog about sentencing law and policy is an especially poor place to try to have a detailed and thoughtful discussion of hiring practices for academic deans or other positions at OSU or anywhere else. When I have ample time, I am happy to engage with folks off-topic, but internal hiring dynamics do not seem a proper topic for me in any forum (especially given that I have little role in hiring outside the context of the Center I run). I am especially disinclined to go further on this front in a thread that started by you describing AG Merrick Garland as my "love interest for SCOTUS."
I will explain that "diverse individuals" is a (poor and clumsy) descriptor that will always depend upon, and be contingent on, context: a mormon student will be diverse at OSU, but not at BYU; a woman will be diverse at the Citadel, but not at Smith; a white guy is diverse in the NBA, but not in the NHL. A person who has not worked defending or expanding the power of government would be diverse on SCOTUS, but not elsewhere. One of my favorite articles by a former law school classmate astutely argued that we ought to have a non-lawyer on SCOTUS (a Lay Justice): https://papers.ssrn.com/sol3/papers.cfm?abstract_id=943369. I sincerely think that's a really good idea, and a non-lawyer would be a diverse individual there but not elsewhere (except maybe in DC).
As I think I stressed in another thread, I view the concept (and values) of diversity as going well beyond the all-too-common focus on race and gender, and when I speak positively of "diverse individuals" I am referencing in general terms to what I see as the robust enriching benefits I have experienced from diverse learning and working environments that contribute to a tight nexus I see between assembling a collection of diverse people and assembling the best people for multi-person work and learning. Your mileage may vary.
Like so many across the political spectrum, you seem eager Master Tarls to focus on race and gender in discussions of diversity. When I corrected your mistaken "love interest" comment, I noted Garland's professional background, but you were eager to lean into age, race, and sex (while thereafter failing to engage with my statements that Justice Jackson's paper credentials before joining SCOTUS were arguably professionally stronger than any modern nominee). From both the left and the right, I find obsessions with race and gender issues in diversity and other discussions to be quite exhausting and often counterproductive on so many fronts.
Diversity concerns are not as I see it, nor as I have seen practiced in many legal and academic settings, a means to "eliminate huge chunks of society" from opportunities. Diversity concerns, as I have seen them practiced, do not function as a zero-sum game. In my experiences, these are dynamic matters that always reflect an array of important values --- and values that are sure to be weighed diversely by diverse people in diverse settings --- and I do not mean to question your values.
I do apologize if you did not meant to express the view that any focus on diversity in judicial selection will necessarily preclude selection of the "best people." Perhaps all you meant to say was that categorial exclusions definitionally/necessarily mean you do not going to ensure the pool includes all the "best possible people" for the job. If that is all you meant, I would generally agree. Indeed, I recall being moved by arguments along these lines to critcize exclusion of the LGBTQIA+ community from the millitary.
P.S. I am hitting the road tomorrow, so many not have much time in coming days to keep engaging on non-sentencing (or sentencing) fronts.
Posted by: Doug B | Apr 27, 2023 10:33:15 PM
Doug,
1. I get it. You exist in an intolerant work environment where freedom of thought is not appreciated. I didn’t really expect you to answer, as my intent was to make a point, which I clearly did.
Merrick Garland again? I know you are frustrated at points being scored on you by a layman, but it is common manners to accept an apology. I gave a clear and immediate apology for getting that wrong, yet you keep bringing it up like a scorned ex-girlfriend. It’s more than I got from you when you stated my position incorrectly.
2. “I will explain that "diverse individuals" is a (poor and clumsy) descriptor that will always depend upon, and be contingent on, context: a mormon student will be diverse at OSU, but not at BYU; a woman will be diverse at the Citadel, but not at Smith; a white guy is diverse in the NBA, but not in the NHL. A person who has not worked defending or expanding the power of government would be diverse on SCOTUS, but not elsewhere. One of my favorite articles by a former law school classmate astutely argued that we ought to have a non-lawyer on SCOTUS (a Lay Justice): https://papers.ssrn.com/sol3/papers.cfm?abstract_id=943369. I sincerely think that's a really good idea, and a non-lawyer would be a diverse individual there but not elsewhere (except maybe in DC).“
You still don’t get it. You can have a diverse campus, but not a diverse individual. A Mormon student is a Mormon student, not Mormon, Catholic, Muslim, and atheist.
I get the desire to have lay people on the SCOTUS. In fact, I wish we had a hell of a lot more farmers and electricians in Congress than lawyers. However, I’d love to see a few names you would suggest. I’m not sure an “activist” (the likely person) is going to get the theories for and against Chevron deference.
“ As I think I stressed in another thread, I view the concept (and values) of diversity as going well beyond the all-too-common focus on race and gender, and when I speak positively of "diverse individuals" I am referencing in general terms to what I see as the robust enriching benefits I have experienced from diverse learning and working environments that contribute to a tight nexus I see between assembling a collection of diverse people and assembling the best people for multi-person work and learning. Your mileage may vary.”
I went with the article you provided regarding age, gender, and race. It was a post by you, not me. And I never have gotten the “youth” angle. They are dumb, without the life experiences. Kids think Santa is real, then that they can be any gender they want, and later that the government cares about them. Mid twenties law students believe talking down others with different beliefs is “fighting fascism.” I want to puke whenever I hear about the, “wisdom of youth.”
“ Diversity concerns are not as I see it, nor as I have seen practiced in many legal and academic settings, a means to "eliminate huge chunks of society" from opportunities. Diversity concerns, as I have seen them practiced, do not function as a zero-sum game. In my experiences, these are dynamic matters that always reflect an array of important values --- and values that are sure to be weighed diversely by diverse people in diverse settings --- and I do not mean to question your values.”
Tell Asian students with better grades and SAT scores that it is not a “zero sum game.”
“ I do apologize if you did not meant to express the view that any focus on diversity in judicial selection will necessarily preclude selection of the "best people." Perhaps all you meant to say was that categorial exclusions definitionally/necessarily mean you do not going to ensure the pool includes all the "best possible people" for the job. If that is all you meant, I would generally agree. Indeed, I recall being moved by arguments along these lines to critcize exclusion of the LGBTQIA+ community from the millitary.”
Whenever the word “if” is used, it is an unapology. Again, you did not display the same manners I provided you.
Posted by: TarlsQtr | Apr 28, 2023 5:50:27 PM
Master Tarls:
1. OSU is not an "intolerant work environment where freedom of thought is not appreciated," but you clearly are going to believe what you want to believe about universities. Do you have any direct experiences with university administration and hiring? If so, and you think it proper to discuss such topics here, please do. If not, but still think it important to talk about workplace hiring in this setting, how about you start by talking about hiring in prisons that you saw or were involved in? Are all men and women of all sizes and backgrounds considered on "a level playing field" in the hiring decision-making you have seen? Are the results of the hiring process as transparent as they are in university settings?
2. Many adjectives about an "individual" necessarily engage conext. An individual can be "tall" at 5'10'' if a woman. But Brony James is called "short" at 6'3'' given his dad's height and his interest in an NBA career. I am certainly dumb in many contexts, maybe smart in some. Pretty/ugly, strong/weak, devout, beeing mannered, and on and on. But this is a small point and I agree we typically use the term diverse to describe groups rather than individuals (even though it is not hard to imagine the nature of a "diverse individual" in universities or Congress or prisons).
There are many "lay people" (non-lawyers) teaching at law school, mostly empiricists (though some others). Many very bright members of state legislatures do not have law degrees. Most leaders of Fortune 500 companies, prominent NGOs and universities are not lawyers. I have just listed probably 10,000+ people without law degrees that surely could figure out Chevron. (Even among lawyers, do you realize that nearly all modern SCOTUS picks come from the ranks of less than 200 circuit judges, when there are surely many, many of the "best" lawyers outside these ranks.)
3. You really do not get the "age" issue? Diane Feinstein and Joe Biden have lots and lots of "life experiences." Would you want them or your kids making important decisions now about you and your family's future for decades to come? I get that you dislike the progressive views of some folks under 25, but I am talking about whether we should generally want a few 40+-somethings among the 70+-somethings mostly in charge of running our country. If you read a concern for "age" in a discussion of SCOTUS nominees to be about kids or even 20-somethings, try to "read the room" a bit better. (That said, I had a 50-something former police chief in my crim law class last year who brought great diversity to our discussions.)
4. I am sorry if I misunderstand how you think about diversity in this world, Master Tarls. This forum makes it hard to pick up important context, and someof your other comments elsewhere may lead me to unfairly and inappropriately assume the worst in this context. I wouldsincerely welcome hearing you explain just how you think diversity considerations can (and should?) contribute to looking for "the best people."
Posted by: Doug B | Apr 29, 2023 10:41:30 AM
Doug,
1. Hiring in the prison system was done by civil service rules, with test scores for security and low level employees and grading your credentials for non-security staff. They would interview those with the top three scores and choose one. The two not hired would remain in the top three and a fourth would move up to third.
At the captain and above ranks, you served at the will of the commissioner.
As far as OSU, I suspect the DEI employee pool rounds to 100% being minorities. I also suspect the number of minority law professors outweigh their proportion in the bar. That in itself is not a problem if they all just happened to be the best to apply, but that’s another problem with affirmative action. AA or not, colleagues and others will wonder if they are, which is just as unfair but human nature. If you give a group special privileges, others will suspect they got the position because of those privileges.
I won’t even get into how AA hurts minority students.
2. I agree in part. I believe there are surely good options outside the Ivy League. I’m just not sure someone who has never argued a case in court could give a decision based on law. Then again, the liberal justices never do anyway…
3. Age is more than just a number. Like him or hate him, Trump is sharp. Biden cannot remember how many grandkids he has, even the ones he acknowledges, or what country he last visited even though he just came back from Ireland. A little kid had to hell him. Feinstein is toast, but Judge Judy is 80+ and as sharp as ever.
4. No comment I have ever made could have led you to believe I thought minorities could not be “among the best.” It’s a BS “apology” wrapped in an insult. Pathetic and dishonest.
Posted by: TarlsQtr | Apr 29, 2023 11:39:05 PM
1. Can you explain more about the "test socres" and "grading your credentials," Master Tarls? Who writes the test, what's tested and how do they relate to being an effective guard? What "credentials" matter -- college degree? advanced degrees? do fields matter? Who's "They" in "They would interview"? I don't want to get silly, but I'm sincerely curious about the way credentials are structured and about the structural dynamics that likely impact both who seeks these jobs and who gets them. And you did not speak to this issue that would seem germaine to our equality discussions: "Are all men and women of all sizes and backgrounds considered on 'a level playing field' in the hiring decision-making you have seen?"
There are all sorts of important policy issues around AA on all sorts of criteria and in all sorts of settings. But I try to avoid thinking of anyone with reasonable views in this area as "evil." SCOTUS seems poised to rework this universe for college admissions shortly.
2. I strongly do not want law to be only for lawyers and we wisely do not require all government officials to be lawyers. I'd not want every judges to be a non-lawyer, but a non-lawyer on a multi-member legal body makes sense to me.
3. Of couse, age is not a close proxy for intelligence or sharpness. But it's an important proxy for experiences that can matter to courts' work -- eg, most everyone under 40 understands media techology differently (and likely better) than most everyone over 70. Age also shapes scope of vision: old folks (especially without kids) are going to live without as much concern for climate change as those in the 40s. And so on. Point is, age can and should matter, especially for positions with impact for decades.
4. What you said suggested to me is that you thought it "literally impossible" to pursue diversity and seek "the best people" for the Supreme Court. That was the suggestion I took from you comments, combined with your prior assertions that those who pursue DEI are "evil." If you do not think that's what your comments suggest, perhaps re-consider how you use the word "evil" in this context.
Posted by: Doug B | Apr 30, 2023 12:10:20 PM
1. Most prison employees are hired after a civil service test. Other than veterans bonus points (I don’t like that either), it went solely by your test score regardless of race, gender, etc. It was essentially “blind,” except a psychological exam.
For civilian professional jobs (counselors, teachers, vocational instructors, etc.,) it was based on your credentials. As a teacher, you could be offered a job with only a bachelors, but people with a masters degree and more experience would score higher. They would then use the “top three” rule explained in a previous comment.
Yes, it seemed like people were treated equally, as far as race and gender. Again, veterans did get special treatment of 5 extra points, meaning they could score a 105. My superintendent (warden) was a woman, although the next levels below differed, mostly because of different interests. Men are over represented as Deputy Superintendent of Security, but this also occurs in the officer ranks. It’s choice, as fewer women apply for CO positions. Meanwhile, females are over represented as Deputy Superintendent of Programs, but there are also more female counselors, teachers, etc.
2. I don’t know. I can see a local magistrate doing tickets, but it seems people interpreting law on a higher bench should know how to do it. We aren’t back in the day when lawyers would just read law books. It has become incredibly complicated. I’d see them putting “feelings” before law, and we already have enough justices working backwards by coming to a desired conclusion and looking for justification after.
As another example, I could see a civilian as a public liaison working with the public and Chief of Police on community concerns, but I’d want my chief to know crime, rules of engagement etc., instead of a civilian. We see it all the time. Defund the police. Oatmeal Joe talking about shooting into the air, or my favorite that cops should aim for the legs. Anyone knowing anything about law enforcement must simultaneously cringe and laugh.
3. Yeah, kids know tech, but do they have the experience to compare pre-internet America with the current state and know how it has helped AND hurt the nation? How to use the good parts and remove the bad parts? It’s “racist” to blame TikTok for spying on us and using algorithms to ruin kids’ lives?
And, no, I don’t want to be lectured to by the human camera magnets AOC or the high school dropout from Sweden. Let the adults in the room handle it.
4. What I said was that if you are looking to tick boxes, you aren’t looking for or going to get the “best people.” I stand by that as an unquestionable fact. And “equity” is evil, as a great moral hazard. It’s also been tried several times, the Soviet Union and China to name a couple, and always ends badly. Usually with tens of millions dead.
Do you know where the phrase “politically correct,” came from?
Posted by: TarlsQtr | Apr 30, 2023 8:09:09 PM
Working backwards:
4. I guess I misinterpretted (and still do not understand) what you mean by "looking to tick boxes" in the SCOTUS setting. In prior eras, geographic and religious diversity played a big role in SCOTUS selection. Was that ticking boxes and not looking for the "best people"? Presidents also would draw folks with state executive/court backgrounds and also private bar experiences. I wish we'd really look for the "best people" for SCOTUS rather than now just pick from the few dozen judges of the "right age" ticking the circuit court box. (Notably, Justice O'Connor and failed nominee Harriet Meirs are the only 2 of the last 19 nominees over the last 50 years not to be federal circuit judges.) Indeed, you should be pretty grumpy about how SCOTUS picks are made now if you really hope for a robust search for the "best people."
3. Yeah, those darn "kids" lack the nolstalgia for the good old days. Heck, even nolstalgia ain't what it used to be.
2. I would welcome more lay involvement in part because law has "become incredibly complicated." Lawyers benefit in all sort of ways from making the law less accessible to the people, and the people should have some role in pulling it back (if they so desire).
1. Do you consider affrimative action for veterans in the prison setting to be "evil" or just a bad idea? And is it a bad idea, since I'd think most veterans get a certain kind of discipline through service that the average person does not get?
And I still wonder about the use of a "civil service test" in this setting. Is it a timed test in which fast readers are likely to do better? Is being a fast reader really an important skill for those who work in prisons?
Though this is a poor setting in which to keep pressing these matters, I suspect the development and application of criteria for prison jobs --- as is true for so many kind of positions, including at law schools --- reflect a lot of contestable history and tradition that may or may not advance equality of opportunity. I will readily accept your view, based on experience, that "it seemed like people were treated equally, as far as race and gender." I can make the same representation with respect to the law school hiring that I have seen.
Posted by: Doug B | May 1, 2023 5:06:25 PM
Doug,
4. Ticking boxes is the practice of evaluating someone based on immutable traits. The person needs to be black. Tick the box. The person needs to be a woman. Tick the box. The person needs to be gay. Tick the box.
When you do that, as Joe did with Kamala, KBJ, and KJP, you eliminate all other possible contenders. And at least two out of those three are a dumpster fire.
3. Who said anything about nostalgia, Mr. Red Herring? You don’t believe there is value in having the context of knowing life before and after the internet boom? There is no value in knowing how people interacted then (in person, in the park, mall, or sports facility) compared to almost solely in text or apps? Or in knowing the wealth of research indicating that girls and young women have never been as unhappy as now because of these apps (along with feminism)? That social anxiety and suicidal thought have never been higher even before COVID? Or knowing the physical health differences between then and now in an era when our military cannot meet recruiting goals partly because kids are too fat? Online bullying?
Is that “nostalgia” or real problems?
2. I have no argument that the law is far too complex and unaccessible. That needs to be addressed in the legislatures.
1. Yes. It is only a small part but it is a grave moral hazard for society to begin giving out special treatment. Former military can often be more disciplined, but it is far from a certainty on an individual basis, which is how we should be judged. I have slightly less of a problem with it though, because at least it is not based upon an immutable trait.
Yes, the test is timed but more than enough time is given. That said, we can argue whether reading quickly is important, but everyone is given the same opportunity. That’s the point.
What’s the racial and gender demographic of your DEI staff?
Posted by: TarlsQtr | May 1, 2023 7:12:54 PM
Ending numbers, as threads are fuzzy and I'm heading off line:
-- The many ways technology has transformed our society includes a lot of real problems, but I sense including younger folks (as well as older folks) in any discussion of these problems will enhance our ability to address those problems effectively. Indeed, I read your comment as shows you agree with the value of age diversity -- we need to include old and young people to share insights and experiences to best solve problems. (And I was making a nostalgia joke, though I do think older people -- especially those in power -- tend to recall the past more fondly and that can bias how they view the future. It is a winner's history problem of sorts.)
-- courts and commissions have a HUGE role in making the law so complicated.
-- giving everyone "the same opportunity" for tasks that define/skew "success" on suspect variables is not a testament to true equality. If we gave everyone "the same opportunity" at a basketball dunking test to decide who gets to go to college, would that be giving everyone an equal chance? That a silly/extreme hypo, but blog comments do not allow a robust discussion of the many challenges in separating "sound/equal treatment" and "special treatment" (eg, Anyone get extra time for the test? How about an audio reader? Is it provided in multiple languages? and so on.)
-- There are certaintly more people of color in OSU and in Moritz DEI-related roles than in others, and more men than women at Moritz in these roles. Many have other responsibilities (eg, student services) and some were at Moritz before DEI was a "thing" (eg, Dean Northern, who started in the mid 1990s). And, like you said about the gender disparity in the CO arena, I suspect that people of color disproprortionaely apply for these roles (though I do not personally know the data here).
Posted by: Doug B | May 1, 2023 7:50:39 PM
