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May 20, 2023
Based on state's new Racial Justice Act, state judge throws out gang enhancements after finding “significant statistical disparity”
This local article, headlined "Judge finds Contra Costa DA’s filing practices are racist, dismisses gang charges in murder case," reports on an interesting new ruling from a California state judge relying on an interesting new California law. Here are some details:
In an unprecedented ruling statewide, a Contra Costa judge on Friday dismissed gang charges against four men under the California Racial Justice Act, ruling that county prosecutors have disproportionately targeted Black people with sentencing enhancements that open the door for life in prison without parole.
It is a case already under heavy scrutiny because two of the defendants were directly referenced in racist text messages sent by Antioch police officers who investigated their alleged crimes. The texts — part of a much larger scandal involving racism, alleged civil rights violations and dozens of impugned officers — made light of injuring the men during their arrests and referred to Black people in explicitly biased, hateful ways.
Contra Costa Judge David Goldstein’s Friday ruling did not take into consideration any of the racist texts. Rather, Goldstein based it on a decade of data — what he called a “significant statistical disparity” — showing that gang charges are more often filed against Black people. The stunning development clears the way for any Black person who has faced or is facing those charges in Contra Costa over the past decade to challenge them in court....
In making his decision Friday, Goldstein relied on data that both prosecutors and defense attorneys largely agreed upon that showed that Black people were from 6 to 8 percent more likely to be charged with “special circumstance gang enhancements” than people who weren’t Black. Those enhancements, alleging gang membership and added on top of the underlying criminal charges at issue in a case, can greatly increase the sentence a defendant receives.
Goldstein threw out the gang enhancements against four East Bay men — Eric Windom, Terryon Pugh, Keyshawn McGee and Trent Allen — who are accused of fatally shooting a man to benefit an Oakland gang. His ruling does not affect the murder, attempted murder and conspiracy counts against them.
Friday marks the second time that prosecutors in Contra Costa have made California history for violating the Racial Justice Act. Last October, Judge Clare Maier ruled that a county prosecutor used “racially coded language” that “evoked racial stereotypes of African American men” during a two-defendant murder trial and threw out murder convictions for both men.
Maier’s ruling dealt specifically with a portion of the act that refers to the prosecution’s statements during trial, while Goldstein’s ruling cited a different subsection that covers the charging practices of an entire DA’s office.
Evan Kuluk, a lawyer with the county’s Alternate Defender’s Office and an attorney in both cases, told this news organization that “the impact of today’s ruling is an acknowledgement that racial bias infects every stage of the criminal legal process.”
Goldstein’s ruling calls into question dozens of other similar cases filed in Contra Costa, going back 10 years. Contra Costa DA Diana Becton — the first Black person and first woman ever to serve in that role in the county’s 173-year history — says her office now plans to look back at some of those cases with this new ruling in mind....
For many defense attorneys in Contra Costa, Friday’s ruling was a seen as vindication after years of calling on Contra Costa prosecutors to audit their own filing decisions. In 2019, Becton partnered with the Vera Institute for a project intended to identify implicit bias in the way cases are prosecuted but has yet to release the underlying data. Chief Public Defender Ellen McDonnell said Goldstein’s ruling “drives home the unfair charging practices that too often result from the role of implicit bias in our legal system.”
May 20, 2023 at 03:04 PM | Permalink
Comments
Wow.
Posted by: federalist | May 22, 2023 8:59:14 AM
Is this the kind of ruling you think would be constitutionally required by the EPC clause in every state, federalist?
Posted by: Doug B | May 22, 2023 9:28:47 AM
Absolutely not. In fact, my view is that it violates the EPC.
Posted by: federalist | May 22, 2023 9:49:32 AM
Well, I am confused yet again about federalist feelings. In other threads, you seemed to be arguing that disparate prosecution patterns meant that some could claim, based on rational basis review, that the EPC was violated by some prosecutions. Now, after a judge has found significant racial disparity in prosecution patterns, you believe the EPC precludes the remedy that California has provided in state law? To quote you, "Wow."
I suppose at this point I should stop thinking there is some logic or consistency to your musings about your feelings, federalist. But I suppose I do find it interesting how you make this stuff up without concern for logic or consistency.
Posted by: Doug B | May 22, 2023 11:27:06 AM
Oh good grief--disparate impact by itself is not a violation of EPC and acts to remedy it, e.g., race-norming punishment in public schools, can constitute disparate treatment.
Posted by: federalist | May 22, 2023 11:30:33 AM
Oh good grief, I thought some semblance of logic and consistency applies to federalist comments -- the text of Section 1 of the 14th Amendment says "No State shall ... deny to any person within its jurisdiction the equal protection of the laws." I do not see any part of that language that says proof of significant "disparate impact" is not enough to show a lack of "equal protection." Of course, ignoring inequalities shown by data has been a non-textual gloss given to the EPC clause by SCOTUS, but I thought you were a supposed textualist, federalist? (Then again, you do not address the reality that the Constitution does not have textual support for a SD right, so maybe you have all sorts of Ninth Amendment feelings or substantive due process feelings.)
Moreover, even with the ways SCOTUS has applied strict scrutiny only to intentional discrimination, your feelings about EPC rational-basis limits on disparate prosecution patterns would see to apply here, no? Even more to the point, how does a state violate the EPC claim when it says it will not conduct state action (prosecution) of people of a certain race if other people of other races are not subject to similar state action? We are not talking about public school admissions that may be viewed as a zero sum game, and so it seems you are claiming that state efforts to be equal in the use of prosecutoral power somehow violates the EPC. Hmmm.
Ah, yet again, your feelings are the only compass through the illogical and inconsistent things you say in the space.
Posted by: Doug B | May 22, 2023 11:56:32 AM
Doug, you really make a hash of this. You can't give one racial group a criminal law discount because the numbers/optics don't work. That's unequal treatment based on race, and it's barred by EPC. That's why I brought up the race-norming school discipline issue. Or do you think a school district can use race in terms of setting punishments?
What is the Second Amendment for, if not for self-defense. Plus self-defense falls under natural rights and the Ninth Amendment--e.g., the right to direct the upbringing of one's child. So your textual argument re: self-defense actually fails on the basis of the text of the Constitution.
Posted by: federalist | May 22, 2023 12:15:10 PM
federalist: nobody is getting a "criminal law discount," as the data shows now that black defendants are getting hit with an extra state hammer. All the ruling does, applying the state's Racial Justice Act, is hold that the state cannot be hitting black defendants with a hammer that's NOT being used on white defendants in similar situations. (I am assuming the research is controlling for other relevant factors, just as you do in your assertions about a rational-basis EPC limit on prosecutions.) And if a school district had data showing that it was expelling for a semester only black kids while just suspending for a week white kids for the same behavior, I think the EPC clause would call for (and certainly would allow a state to decide) to only suspend the black kids for a week when that's how similar white kids are getting treated.
The Second Amendment is for a lot of things, and how can felon disarmament (or disarming people under 18) be justified if you think armed 2A rights = common-law self defense rights. If your claim is that SD is a right protected by the text of the Ninth Amendment, what are its contours? This has never been established by SCOTUS or lower courts, but I think it is a strong argument because I think there are lots of rights rightly located in the 9th A (including abortion rights). For SD as a constitutional right under the 9th, what are your feelings about the burden be placed on defendants? Is the initial aggressor exception/limit to SD constitutional? How about duties to retreat? Could Kim Potter and Derrick Chauvin press their defenses in constitutional 9th Amendment terms?
Because I am a fan of both textual and non-textual rights, I like the idea of SD being a constitutional right. But it is certainly a non-textual one, federalist, and one whose scope as a constitutional right has rarely been formally recognized or its reach well-defined.
Posted by: Doug B | May 22, 2023 12:34:05 PM
Re: Ninth Amendment--it doesn't grant rights, it merely debunks your textual argument. There are rights that are so obvious as not needed to have been written down--there's self-defense, necessity ("he's not to be hanged that he would not have been burnt"), right to direct the upbringing of one's child (and I would argue the right to grow your own food on your own property--obviously, there are contours there, but Wickard was f'in wrong)
Doug, this is the use of statistical disparities and looks like disparate impact analysis, not disparate treatment.
Derek Chauvin is a murderer. Full stop.
I don't have a problem with the initial aggressor exception--you can't pick fights, then blow people away. But lawful activity, only very very rarely should be held to fall under "initial aggressor."
Posted by: federalist | May 22, 2023 1:15:54 PM
Ahh, still more federalist feelings about all sorts of stuff rather than any doctrinal analysis of how SD is grounded or works as a constitutional right. You say some rights are "not needed to have been written down" --- so you acknowledge they are NOT in the text of the Constitution, but should be recognized. Fine, recognized as non-textual rights (like lots of others), that are can been "found" in the constitution through the Due Process Clause or the 9th A or some other way. I won't both to ask about your feelings on this front as you will probably just chatter about other stuff you have feelings about.
Posted by: Doug B | May 22, 2023 1:39:50 PM
OK, so I whipped you on the Ninth Amendment stuff---the Ninth simply embodies the rejection of expressio unius, exclusio alterius when it comes to rights, but you still yap at me about non-textual rights found in the Constitution--but these rights are not found in/created by the Constitution, they are inherent rights that are protected by the Constitution. For example, we all have the right to eat. We all have the right to breathe. Prisoners have the right to escape a burning prison. You'll look hard in the Constitution to find these rights, but no one debates that people have these rights. Self-defense is one of these.
As for the EPC, I've whipped you there as well. It shouldn't be hard to see how remedying disparate impact can cause a disparate treatment issue.
Posted by: federalist | May 22, 2023 2:38:59 PM
"[W]e do think that Heller and McDonald point toward at least two metrics: how and why the regulations burden a law-abiding citizen’s right to armed self-defense."
Posted by: federalist | May 22, 2023 2:52:40 PM
You say so many confusing things, federalist, I never quite know where to start. First, I can't even understand if you are claiming the Ninth Amendment provides a textual (or non-textual) basis for SD rights and other rights AND you have not addressed where you claim to locate SD rights and other "inherent rights that are protected by the Constitution." Are they part of Due Process (which is often where non-textual rights are tethered)? Are they part of "privileges and immunities"? Are they somewhere else? Do you invent them based on your feelings or do the Justices? Are they enforceable in state court? If they are, how do you explain that SD rights are different in every state without any clear constitutional floor ever being discussed? Why do SD defendants who lose in state courts not state or pursue constitutional claims in federal courts? And so on and so on.
Of course, there are all sorts of widely accepted "rights" --- eg, common-law rights, international human rights, moral rights, statutory rights (some would also say natural rights) --- that are not addressed by the Constitution. Are you claiming every imaginable "inherent right" that you (or others?) might conjure is "protected by the Constitution" and subject to protection/enforcement by state and federal courts? And if so, aren't such rights sensibly described as "non-textual rights"? How else can they be described? And here I thought you were a Scalia fan, but he often stressed that the Constitution does not cover every possible right or issue that is of personal concern. As he put it once:
"The Constitution means what it says. You figure out what it was understood to mean when it was adopted and that's the end of it,” Scalia said. “If you want more rights, create them by statute, if you want more constitutional rights, create them by amending the Constitution.” http://www1.udel.edu/PR/UDaily/2007/apr/scalia043007.html
As for EPC, we're not discussing it generally. You have been foolishly yapping in multiple threads that even RATIONAL BASIS approaches to EPC could demand blocking some otherwise lawful prosecutions. But here with race involved and a statute seeking to prevent unequal prosecutions, you no longer stick to your prior claims.
Because your feelings are so illogical and inconsistent (and so far divorced from anything resembling law), I am getting tired of highlighting the many failing of your many silly statement. But if you want to believe your doltish feelings, because they are so confusing and absurd, leave me "whipped," enjoy being a legend in your own mind.
Posted by: Doug B | May 22, 2023 3:15:41 PM
In your view, federalist, is the constitutional right to self defense limited only to the "law-abiding"? If so, that suggests the innocent person wrongly incarcerated can shoot his way out of prison, but the guilty person even if held way too long has no SD rights because of prior law breaking. Is that your view of how the supposed "constitutional right to self defense" operates?
These issues actually get hard if you try to think them through rather than just blurt out your gut feelings. The 2A to SD "rights" is like the 4th A to privacy "rights." There are connections, but the details get messy because a whole lot of (NON-TEXTUAL) factors come into the analysis.
Posted by: Doug B | May 22, 2023 3:20:27 PM
First of all, the very existence of the Ninth Amendment presupposes unenumerated rights---e.g., the right to direct the upbringing of one's children. Self-defense is another, and necessity is another. Scalia's view is not to the contrary.
Second of all, the state does NOT get to look at gang enhancements and say, well, African-Americans are overrepresented (that's what the statistical analysis is all about) in terms of gang enhancement and then decide to pluck a few out and say you can't do the gang enhancement due to the overrepresentation. It's like declining to prosecute certain African-Americans because they are overrepresented in terms of murder convictions. This isn't hard. If there's a general rule that white guys get lenience, different issue . . . . But that doesn't seem to be the case. Rather, it seems to be disparate treatment used to remedy disparate impact, which generally is a no-no.
As for SD, there is a constitutional floor (and of course, there's the DP fair notice issue as well). No one would think it constitutional to pass a statute that says that someone cannot fight back if attacked. No one would think it constitutional to pass a statute that forbade a woman from self-defense against rape. You don't dispute this at all.
Once again, you seem to think that there are no self-defense rights as against the government, but yet cannot bring yourself to say that a woman doesn't have the right to stop a prison guard or cop from raping her. And yes, if someone is involuntarily committed under an ex parte civil commitment order obtained by abuse, that person certainly has the right to resist being forcibly medicated with Haldol.
Your question about the law-abiding is silly. That felons don't get arms, doesn't mean they lose the right to self-defense.
Posted by: federalist | May 22, 2023 3:57:43 PM
Sort of working backward, since your thinking it so backward.
1. If the 2A is about SD, then the reach of the 2A defines the reach of SD. Since you now say their reach is different, stop suggesting the 2A serves as your constitutional text/source for SD rights. It now seem you get that, so let move on to what other source for SD rights might be in the Constitution.
2. The right to child rearing has been grounded in substantive due process, not the 9th A. You can ground both unenumerated rights (on other words, non-textual rights) in the 9th A if that's your feeling today, federalist, but it entirely contrary to what Scalia said about how constitutional rights should work. Indeed, no SCOTUS ruling/Justice has yet to find enforceable rights in the 9th A. I hope they will someday --- perhaps the right to grow and consume a weed on your property --- but this is not existing law. I would readily ground a SD defense in the 9th A, but then the contours of the defense become a matter of constitutional right. I am fine with this, but it becomes a "non-textual" endeavor to figure out exactly what the Constitution demands for this and other unenumerated rights.
3. Of course there are SD rights against government actors, but they are based on law. A prisoner --- whether guilty or innocent, serving her first day or a day after due to be released --- can reasonably right back against a guard's rape attempt. A person being arrested --- whether on a valid warrant or an invalid warrant --- has a right to resist a pistol whipping. You are the one who is suggesting (but not really explaining in any clear way) why you think the (debatable) status of the prisoner or the person being arrested matters for claims of SD under law.
4. "If there's a general rule that white guys get lenience, different issue . . ." THAT IS EXACTLY THE ISSUE, which the data reveals. Of course, nobody says out loud, "let's just go after the black guys for gang enhancements." Similarly, nobody says out loud in DOJ, let's just go after the little people for lying. But just as you complain about Hunter and a "pattern" of others getting lenience from DOJ, here there is a study showing similarly situated white guys are getting lenience relative to similarly situated black guys. You came up with this whole Hunter-based EPC RATIONA BASIS theory, but the moment is getting actually applied in other setting, you balk. Of course, this is not a constitutional ruling (though you seemed to advocate for one), we just have application of a statute looking to limit application of unequal criminal hammers.
Posted by: Doug B | May 22, 2023 4:17:26 PM
And you haven't been able to cite a single case that says EPC is limited to race in the area of prosecutions . . . .
Posted by: federalist | May 22, 2023 4:17:39 PM
I never said EPC was limited to race, so why do you keep bringing that up? Man, you are so dense sometimes I do not know why I bother.
Posted by: Doug B | May 22, 2023 4:19:05 PM
1. If the 2A is about SD, then the reach of the 2A defines the reach of SD. Since you now say their reach is different, stop suggesting the 2A serves as your constitutional text/source for SD rights. It now seem you get that, so let move on to what other source for SD rights might be in the Constitution.
That just does not follow. The 2A is a means to vindicate one's SD rights--it does not mean that the rights are coterminous. Self-defense is a natural law right not taken away by the adoption of the Constitution and is protected by it.
2. I NEVER said grounded in 9A--I just said that 9A presupposes unenumerated rights and is a textual anti-textual argument.
3. So at last we agree---but how do you say there's a right to resist a pistol-whipping (illegal conduct) but not a right to resist an arrest warrant procured by an ex-cop with his buddy the magistrate? If the rule is that only the actor doing the illegality can be resisted, then where is that in the law? Don't see it anywhere. How do you draw the line?
4. No it's not the issue--and it's not clear from the article that white guys are getting lenience--more that African-Americans are overrepresented. Do you really think that--the difference with Hunter, of course, is that the political evidence is manifest. Do you really think that Contra Costa County is hooking up white murder defendants? I think we need more. But the linked article speaks in terms of statistical disparities, not different treatment of similarly-situated people. Hence my take. If racial is infecting charging decisions, it's a problem. I don't know how you deal with that in terms of violent crime--you obviously have to vindicate victims if the system is going to have legitimacy. Going lenient on a murderer doesn't work in the real world . . . .
Posted by: federalist | May 22, 2023 4:45:17 PM
I never said EPC was limited to race, so why do you keep bringing that up? Man, you are so dense sometimes I do not know why I bother.
My bad--you seem to think that a rational basis challenge to going easy on Hunter (due to politics) cannot be challenged on a rational basis especially given the FBI's thumb on scale actions when it comes to party politics. I think there's enough evidence to get the discovery . . . . you don't, and you've been screaming that there's no case law. My retort is that EPC deals in classifications, and there's plenty of evidence that the DOJ is playing partisan politics with going easy on Hunter. And partisan politics isn't a rational basis to pick and choose defendants . . . .
Posted by: federalist | May 22, 2023 5:11:16 PM
I am mostly off line until tonight, but your assertion of a “textual anti-textual argument" would make Orwell and Kafka blush together.
Posted by: Doug B | May 22, 2023 5:22:00 PM
https://www.thecollegefix.com/no-prison-time-for-black-man-who-set-asian-berkeley-students-on-fire-with-homemade-blowtorch/
Re: Ninth Amendment--it says that you can't point to the text and say it ain't in there to disparage, for example, the right to breathe. Hence the jibe.
Posted by: federalist | May 22, 2023 6:17:39 PM
So much messiness and fuzziness in federalist feelings:
1. You say "Self-defense is a natural law right not taken away by the adoption of the Constitution and is protected by it." So are all natural law rights "protected" by the Constitution? Just some? What provisions tether and shape our understanding of what "rights" do not appear in the text and yet are "protected by it"? The preamble? The Ninth Amendment? Due Process? P&I? penumbras?
And what does "protected" mean here? Can a state defendant asserting SD under state law also claim a federal constitutional rights defense? (We know, of course, that defendants can and regularly do make claims in state prosecutions based on other federal constitutional rights.) Is a duty to retreat as a SD limit a violation of the US Constitution? How about defense of others and defense of property, are they "rights" protected by the US Constitution? How about putting the burden on the defendant to prove SD? And why have constitutional questions like these gone mostly unlitigated and seemingly unaddressed if the SD right is "protected" by the Constitution?
3. The law of defensive force has always been defined and limited by objective reasonableness. Also, as a subset of necessity, it often involves a judgment as to whether there is a safe/legal way to avoid using force. Forcefully attacking the dirty cop seeking to turn a stop into rape is likely to be deemed objectively reasonable. Forcefully attacking a polite cop unknowingly ordered to make an arrest based on a suspect warrant or a polite prison guard who does not know a prisoner believes he is past his lawful release date does not strike me as objectively reasonable. Again, we have had centuries of encounters between law enforcement and individuals, but I am unaware of any common law or constitutional cases indicating individuals generally have a broad "right" to forcefully attack law enforcement engaged reasonably in their duties.
4. I have not seen the study that is grounds the ruling in CA, but I assume it shows (statistically) that white people are often not facing a gang enhancement when black people do for the same behavior. This is not about "hooking up" as much as prosecutors just deciding not to apply the same severe enhancement hammer to white defendants being applied to black defendants. In other words, based on my understanding of how these studies are typically done, the data show that racial bias IS infecting charging decisions. Perhaps it is unconscious racial bias (though there is other evidence suggesting it could be conscious bias), but the key idea is that data show white people are repeatedly getting breaks from the prosecution that black people aren't. That's what the CA law seeks to remedy and that seemed to be the heart of your Hunter-based/Dem-bias EPC assertions.
To be clear yet again, the EPC clause plainly applies well beyond race. What I said has been lacking in caselaw support are any EPC cases saying (or even suggesting) that a decision NOT to prosecute person A provides an EPC constitutional bar to an otherwise lawful prosecution of person B. That's what I have never seen -- eg, an otherwise lawful prosecution of, say, a felon found with a gun in his home for self protection (see, e.g., Wooden v. US) successfully subject to an EPC challenge because many millions of other felons are not prosecuted for having guns in their homes.
And what kind of "discovery" do you envision in this context? Does everyone ever charged with any of Hunter's (or Epstein's or Judge Camp's etc.) reported crimes get to demand seeing the full FBI file and all prosecution notes concerning every rich or famous or partisan person allegedly not charged or undercharged? I highlighted data in another thread about how few background checks/docs lead to firearm charges out of millions of checks. Can the "discovery" you imagine include demanding files for millions of records/declinations yearly? Heck, if the claim is favorable treatment of Dems, can everyone who is not a registered Dem who gets federally charged --- alert for George Santos --- demand discovery on every federal criminal case file for at least the last 2+ years? Does Derrick Chauvin and the folks who killed Ahmaud Arbery get to bring 2255 claims on this basis and at least get some discover according to the federalist EPC theory?
Yet again, your feelings take you all sorts of strange and senseless places. But I should learn by now that trying to logic this through will not change your feelings.
Posted by: Doug B | May 22, 2023 8:50:22 PM
"Yet again, your feelings take you all sorts of strange and senseless places. But I should learn by now that trying to logic this through will not change your feelings."
And so it goes that the DOJ can put an obvious thumb on the scale when it comes to crime and partisan politics, and the polity is defenseless. And let me fix the Due Process Clause while I am at it:
It shall be unlawful for any State to: make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; deprive any person of life, liberty, or property, without due process of law; and deny to any person within its jurisdiction the equal protection of the laws. Except in the most extreme of circumstances, a person subject to the unlawful behavior of the State only has the right to protect himself against such unlawful behavior as the State shall provide by law. In addition, the State need not provide any remedy for any person subject to such unlawful behavior.
Posted by: federalist | May 23, 2023 12:15:37 PM
And you can't even figure out a workable rule for "acquitted conduct" because defining it is extremely difficult.
Posted by: federalist | May 23, 2023 12:16:45 PM
The polity is not at all "defenseless," federalist -- the people can (and should) call for the passing of laws in Congress to demand much more transparency and accountability for DOJ and even for some version of CA's Racial Justice Act (call it the Partisan Justice Act). The polity can also vote out those who appointed/confirmed certain biased people to DOJ and vote out members of Congress that fail to pass laws to check a partisan DOJ.
As for your 14th Amendment draft, why don't you try to write up the "rule of federalist" that you still have not adequately explained? If your feelings about forcefully attacking law enforcement officials are enduring, you should be able to readily produce a draft amendment (or a draft statute or a draft jury instruction) so we might better understand your (seemingly ever-shifting) feelings about the "rights" of prisoners to forcefully attack prison guards.
And you are quite right that developing a workable constitutional rule for "acquitted conduct" is difficult, which is one reason some of this work should be done by statute by Congress. The House last year voted, by a margin of 405 - 12, to enact the Prohibiting Punishment of Acquitted Conduct Act. https://www.congress.gov/bill/117th-congress/senate-bill/601/text. I would like to see that bill make it through Congress, though that will not entirely obviate the need of the Justices to address this difficult matter. But the fact it is a difficult matter does not justify its continued avoidance, and that it why I have authored numerous amici briefs explaining why I believe SCOTUS should take this issue up.
Have you, federalist, authored anything I should read about your feelings on all the topics on which you opine?
Posted by: Doug B | May 23, 2023 1:25:54 PM
Given that the DOJ/FBI put its thumb on the scale of two national elections and one mid-term, I'd say the polity is pretty defenseless, other than after the fact fixes.
Never said attack. My hypo was an unlawful attack by a prison guard.
Posted by: federalist | May 23, 2023 1:53:24 PM
"but I assume it shows (statistically) that white people are often not facing a gang enhancement when black people do for the same behavior."
Given that the language of the article smacks more of disparate impact, rather than disparate treatment, I woouldn't bet a lot of money on that.
Posted by: federalist | May 23, 2023 1:54:46 PM
If your hypo is only about an "unlawful attack by a prison guard," why would it matter if the prisoner was still serving a lawful sentence or claimed he'd finished his term based on how credits should be calculated?
And the article referenced data that "Black people were from 6 to 8 percent more likely to be charged with 'special circumstance gang enhancements' than people who weren’t Black." Isn't being more likely to be CHARGED by prosecutors with a sentencing enhancement a form of "disparate treatment" rather than just "disparate impact"? Again, to be meaningful, a study would have to control for other relevant factors. But assume it did --- are you claiming it is unconstitutional for a state law to remedy people being subject to racially disparate sentence enhancements by prosecutors through charging? I thought your prior assertions suggested the EPC demanded a remedy in the form adopted here.
And I am still awaiting your accounting of the "discovery" you feel Rep Santos and Oath Keepers and others should get to explore DOJ's biases. Since it seems you see bias back into the Obama years, do they get 15+ years "discovery" of DOJ files of ALL criminal investigations? Can all federal defendants get that "discovery"? (Your EPC feelings would also seem to allow 2255 claims for tens of thousands now incarcerated.) Can you provide some account of the scope/reach of the Hunter-based discovery you now think justified by your EPC feelings?
Posted by: Doug B | May 23, 2023 2:42:51 PM
If your hypo is only about an "unlawful attack by a prison guard," why would it matter if the prisoner was still serving a lawful sentence or claimed he'd finished his term based on how credits should be calculated?
Not true--prisoners' right to self-defense is truncated under the law.
"But assume it did --- are you claiming it is unconstitutional for a state law to remedy people being subject to racially disparate sentence enhancements by prosecutors through charging?"
Your assumption is just that, an assumption. Until I see evidence that similarly situated whites (or Hispanics) are getting favorable treatment, the remedy is a huge problem.
Doug, even you cannot deny that there has been significant political machinations by the DOJ--at a minimum, this caused three unfair elections and wrongfully hamstrung a duly elected president. So I think, yeah, there needs to be discovery.
Posted by: federalist | May 24, 2023 9:25:06 AM
https://conservativebrief.com/fbi-over-73548/
Is this remotely ok?
Posted by: federalist | May 24, 2023 9:27:21 AM
I am so confused when you now say: "prisoners' right to self-defense is truncated under the law." Under which "law"? Is this a constitutional matter if SD rights are protected by the US Constitution? Are you now saying some actual prisoners are not really prisoners? Is this an "prisoner anti-prisoner claim" as a variation on an "textual anti-textual argument"? Are there also anti-guards and anti-wardens who can help figure out which anti-prisoners have special rights to attack guards?
You tip your hand that we are stuck in "rule of federalist" land when you say things like "Until I see evidence ... the remedy is a huge problem." You are not articulating any meaningful EPC principles, you are just setting forth the way you'd like to see your preferred rules applied when you "see" what you want to see.
This is not a dispute about "significant political machinations by the DOJ," as I am just asking you who gets "discovery" that you say "needs" to be provided given your purported EPC claims based on asserted "machinations." So I will ask again:
How can/should folks subject to DOJ prosecution like Rep Santos and Oath Keepers and others explore DOJ's "machinations" in light of your EPC claims; do they get "discovery" of DOJ files of ALL criminal investigations for many years? Can all federal defendants get all this "discovery"? (Indeed, can tens of thousands now incarcerated seek such discovery in 2255 actions?) Can you provide ANY account of the scope/reach of the Hunter-based discovery you now think justified by your EPC feelings?
Your link to a "Conservative Brief" article is a timely reminder that you really are just a partisan with feelings, not a serious legal thinker eager to develop serious legal ideas. The issue we're discussing is not whether the current FBI head (who is a GOP blue blood with Bush/Christie history) that was selected by Trump and confirmed by a GOP Senate might be engaged in "political machinations." What we're discussing is your claim that any such machinations limiting DOJ prosecutorial zeal could provide a constitutional basis under the EPC clause to block otherwise unrelated prosecutions. Perhaps realizing how legally unfounded such a claim is, you are now yapping only that "there needs to be discovery." But discovery of what and by who? Does every person subject to DOJ prosecution get discovery of every DOJ case file over the last 20+ years to look for political bias since Wray was confirmed as AAG in 2003 and he started working for DOJ in 1997?
Posted by: Doug B | May 24, 2023 10:12:25 AM
Just stop. Wray is stonewalling Congress regarding a whistleblower. Wray was a mistake by Trump. You really ok with this?
Posted by: federalist | May 24, 2023 10:45:00 AM
Okay with what? Are you calling to "defund the FBI"? Are you complaining about bias in law enforcement? I have spent much of my career complaining about a wide array of what I often see as self-serving, politicized (and constitutionally problematic) activities by DOJ and its agents (Bill Otis' work on appeal waivers included).
But that's not the topic, rather we are talking about your various assertion regarding EPC claims based on prosecutorial declinations serving to block other unrelated otherwise-lawful prosecutions (and now your latest assertion that "there needs to be discovery"). And so, I will ask yet again:
How can/should folks subject to DOJ prosecution like Rep Santos and Oath Keepers and others explore DOJ's "machinations" in light of your EPC claims; do they get "discovery" of DOJ files of ALL criminal investigations for many years? Can all federal defendants get all this "discovery"? (Indeed, can tens of thousands now incarcerated seek such discovery in 2255 actions?) Can you provide ANY account of the scope/reach of the Hunter-based discovery you now think justified by your EPC feelings?
If your feelings have no answers to these basic questions in response to your assertion that "there needs to be discovery," just say that. I suppose I should realize I am foolish to think you will reply with law-based answers to law-based questions.
Posted by: Doug B | May 24, 2023 12:20:30 PM
