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August 12, 2023

A busy week on the road justifies another round-up review of notable stories

A busy work week when I was mostly on the road meant mostly lacking time to blog about about a number of press articles and commentary that caught my eye.  So, continuing with a recent week-ending tradition, I will seek to catch up with this round up:

From the Austin Chronicle, "Texas Prisons Are Cooking People Alive. Are We Okay With That? Part 1 in a series about heat in prison"

From Fox News, "DOJ eyeing Americans ‘like ATMs,’ spending over $6 billion to aid civil asset forfeitures, watchdog says"

From The Hill, "Will mass incarceration outlive me?"

From The Hill, "By trying to get to Trump’s right on crime, DeSantis ends up in a ditch"

From The Hill, "They held him 525 days past his release. Will the courts let him fight back?"

From The Marshall Project, "These States Are Using Fetal Personhood to Put Women Behind Bars"

From Reason, "Idaho Keeps Scheduling This Inmate's Execution Even Though It Lacks the Means To Kill Him"

From the New York Times, "With an Array of Tactics, Conservatives Seek to Oust Progressive Prosecutors"

From NPR, "Prisons try to adjust as their inmate population grows older"

From the Washington Examiner, "Congress can finally support equal justice under the law"

From WBRZ (in Louisiana), "In response to governor, pardon board schedules hearings for 20 death row inmates seeking clemency"

From WESH (in Florida), "Gov. DeSantis suspends State Attorney Monique H. Worrell, citing neglect of duty"

August 12, 2023 at 05:42 PM | Permalink


The lack of air conditioning in some prisons can be a serious problem. For example Florida state prisons have no air conditioning, except in Medical Facilities. Most prisons in Texas and Arizona also have no air conditioning. There may on some days be an issue about whether the heat in the prison (110 to 120 degrees F) constitutes cruel and unusual punishment. Recently, reality t.v. stars Tood Chrisley and his wife have been complaining in the press about their conditions of confinement. They were convicted of $30 million in fraud. He is serving 12 years in the Federal Prison Camp at Pensacola, Florida, which is widely viewed as one of the easiest places to do time in the entire Federal prison system. But he complains that there is little or no air conditioning and the BOP doesn't sell hair dye at commissary, so his hair is no longer blonde, but has reverted to its natural gray. His wife is serving 7 years at the women's camp at FMC- Lexington, where there is no air conditioning.

Posted by: Jim Gormley | Aug 13, 2023 9:16:23 PM

Held him for over a year past release date--but even though the law said that he was to be freed--no right to self-help. Interesting.

Posted by: federalist | Aug 14, 2023 10:13:21 AM



And this is the organization pursuing Trump . . . .

Posted by: federalist | Aug 14, 2023 12:45:19 PM


And according to Doug, this man had to submit to this abuse . . . . I didn't realize that the First Amendment was you know, hortatory.

Posted by: federalist | Aug 14, 2023 1:19:14 PM

No federalist, this man, Jerry Rogers Jr, does not have to stand for this abuse. He can and should be able to pursue legal remedies in court. It seems that is what he is doing, and I hope Qualified Immunity does not keeping getting in his way. This kind of case is one of many reasons why I support proposals for repeal and/or significant restriction of QI. Are you also for significant QI reform?

QI issues aside, what additional remedies do you think Jerry Rogers Jr. should have, federalist? You have discussed physical attacks on prison guards and police in the past. Is that your legal advice for Jerry Rogers Jr., that he has an on-going rights to physically attack the police in response to his mistreatment?

As I have said repeatedly before, I want the law to provide lots of means for individuals to secure legal remedies (including appeals) in response to illegal behaviors by law enforcement officials. But I have read your prior comments, federalist, as suggesting that individuals may physically attack prison guards and police and other law enforcement (and court?) personnel whenever they believe they are subject to mistreatment. Is that a proper statement of your view? (As I have said before, I suspect a lot of Trump supporters would be eager to hear your advice on what you think they are legally entitled to do in response to what they may perceive as a wrongful prosecution.)

Though you hide your name, federalist, it would be helpful if you did not hide your precise accounting of just when and how you think individuals should be able to physically attack law enforcement officials if you are so eager to keep flagging these matters.

Posted by: Doug B | Aug 14, 2023 3:24:53 PM

Looks like Mr. Rogers was the one physically attacked--they didn't have the right to arrest him, and yet they did. So he wouldn't be attacking anyone. PLease explain why he can't defend his 1A rights on the spot. Can you?

Posted by: federalist | Aug 14, 2023 4:01:14 PM

I am trying to understand what you mean by "defend his 1A rights on the spot." Would you advise future Mr. Rogers that they can shoot any and all officers seeking to arrest him? And also the judge who signed off on the arrest warrant? And all those who booked him into the jail after his arrest? And all the lawyers seeking to defend the cops from legal liability?

I believe former Prez Trump claims he is being wrongly prosecuted for exercising his free speech rights. So he and all his supporters might also benefit from hearing more about the scope of what you think is proper for a person (and his allies) seeking to "defend his 1A rights on the spot."

Posted by: Doug B | Aug 14, 2023 4:45:49 PM

I would never advise such a thing. Ever. I don't want to see people get hurt. But here's the deal--agents of the government illegally applied force to him (i.e., arrested him for criticizing a cop)--and you're saying that, categorically, a citizen has no right to defend himself against that. What's your basis for saying so? My basis for saying that it aint so clear is that the right to SD (which is reaffirmed in Gruen) doesn't seem to vary all that much depending on whether the dude doing the illegal application of force has a badge or not. If you're willing to say that the government has the right to expect the citizenry to simply submit to plainly illegal application of force, then just say it. But that's not really the law. It may be reality--because the government is powerful, and it will crush an individual citizen, but that's power, not law. What's the difference between the officers in this case and the FSB?

As for prison guards, I would say that if in prison when you are past your release date, you have the rights of ordinary citizens to defend yourself--so, for example, if a guard threatened you with unlawful force, you would not have to take the first blow. (Well, that's not reality, because you'd get your butt whipped.)

IN my view, Mr. Rogers would have the right to resist the bullshit arrest. You may not have the same opinion, but that just means that you tolerate tyranny.

Posted by: federalist | Aug 14, 2023 6:50:26 PM

Existing law recognizes a right to reasonably resist "illegally applied force" and "unlawful force" --- at issue in hard cases is what is reasonable resistance under the circumstances and what is "plainly illegal application of force." (Eg, are particulars clear enough in Marion, Kansas for you to advise physical attacks on the police in that case? There, a claimed 1st A violation is seemingly on-going; I have never understood if, in your view, that means the right to physically attack law enforcement is on-going.)

The Trump crowd and the BLM crowd and lots of other crowds will often be quick to assert plenty of arrests and indictments are "plainly illegal," but I know that I want all crowds to comply with to the rule of law, not the rule of federalist. But, if you really believe everyone has an unlimited right to resist any and all law enforcement it perceives as FSB, I worry more about anarchy than about tyranny. But, I suppose if one sees much of US law enforcement to be just like the Russian FSB, then I certainly get the affinity for an "attack first" attitude.

Posted by: Doug B | Aug 14, 2023 8:03:57 PM

The Breonna Taylor case from Louisville might be a good example of resisting with reasonable force. Bre's boyfriend thought that they were about to be robbed in a home invasion robbery, when the police took down the door to her apartment with a "NO KNOCK" warrant. It also seems that the police didn't have badges out and were not clearly identifiable as police officers. They were wearing dark clothes at night. There is a reason that the Commonwealth's attorney did not indict the boyfriend for shooting a police officer in the femoral artery, from which he almost bled out and died. Under Kentucky's "Castle Doctrine", one has no duty to retreat and may use deadly force to defend the residence. The statute specifically carves out the use of deadly force against the police in one's residence, but what happens when the resident cannot tell that the people who took down the door are cops, and they did not announce themselves as police? I think the Commonwealth's Attorney did the right thing in that case by not charging the boyfriend. He had a reasonable belief that there was a home invasion robbery occurring. And this is a reason why NO KNOCK warrants are so dangerous to execute and have now been outlawed in many jurisdictions. There was a prior incident in Atlanta, where the police had lied to get a NO KNOCK warrant for a home occupied by a 93-year old woman in a wheelchair, who kept a pistol. When she pulled out her pistol and began firing, the police shot and killed her. The police tried to get a real informant to lie and say that he had given them the probable cause for the search warrant. The informant went ot an attorney, who took him to the F.B.I., which wired him up. Some of the police officers who lied to get the search warrant are now serving sentences for manslaughter -- one got 12 years.

Posted by: Jim Gormley | Aug 14, 2023 8:32:30 PM

Bre's boyfriend also had a permitto carry a concealed weapon for his lawful pistol.

Posted by: Jim Gormley | Aug 14, 2023 8:39:00 PM

Doug, the US government roughed up James O'Keefe for doing journalism. It did so operating as a Praetorian Guard for President Biden. This is FSB territory, and no self-respecting LEO would be a part of it, orders or no orders (ever hear of calling in sick?). You yap about the rule of law--but really the rule of law is, in your view, submission to raw power.

As for the First Amendment, the issue is that the application of force (or the threat thereof, they don't ask when they arrest you) is illegal. And generally people have the right to resist the illegal application of force. Your fig leaf that you never really know what's illegal until a judge says so is very problematic. And it's manifestly not true. And I'd agree with you that "reasonable resistance" may be a thing in cases where the police force isn't so corrupted as DOJ obviously is.

Posted by: federalist | Aug 15, 2023 10:07:52 AM

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